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[2020] ZAGPPHC 23
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A.M v Road Accident Fund (56080/2012) [2020] ZAGPPHC 23 (21 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No. 56080/2012
21/2/2020
In
the matter between:
A[….]
M[….]
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MILLAR,
A J
1.
The
plaintiff was injured in a motor vehicle collision that occurred on
20 August 2011. He was 17 years of age at the time and is
presently
26 years of age. I was informed by counsel for the parties that the
liability has been settled on the basis that the
defendant is to pay
to the plaintiff 90% of his damages and also that the claims for both
future medical expenses and general damages
have already been
settled.
2.
The
only remaining issue for determination between the parties is the
quantum of the plaintiff’ loss of income. In this regard
the
parties, in consequence of agreements reached between the experts
briefed in the matter were able to agree on all matters in
regard to
the quantum of the loss of income save 2. It is these 2 issues that
are to be decided and an award made by the court
– firstly
which income scenario is applicable post-accident and secondly the
contingencies to be applied in respect of the
pre and post-accident
scenario’s.
3.
No
evidence was led by either party. The argument in respect of the two
issues was made with reference to the reports filed and
the
agreements reached by the experts.
4.
It
was common cause that:
4.1
the
plaintiff was still at school when the collision occurred;
4.2
the
plaintiff would but for the collision have attained a grade 12 with a
further 3 to 4-year qualification;
4.3
pre-accident
the plaintiff would have completed his studies and after seeking work
for 12 to 18 months started working earning R235
700 per annum which
would have increased uniformly to R520 000 over a 20-year period and
thereafter remained constant apart from
inflationary increases until
retirement at age 62,5.
4.4
post-accident
the plaintiff, having only obtained a grade 12 will after 3 years
without work start earning R25 500 per annum which
will increase
uniformly to R116 500 or R160 000 per annum at age 45 and thereafter
remain constant apart from inflationary increases
until retirement at
age 62,5.
5.
The
first issue between the parties relates to whether the plaintiff
would in the post-accident scenario have reached an income
ceiling of
R116 000 (median semi-skilled) or a ceiling of R160 000 (upper
semi-skilled).
6.
The
plaintiff argued that the plaintiff’s ceiling was limited to
R116 000 and this was because the plaintiff besides the physical
difficulties he experiences as a result of injuries sustained in the
collision, has reached the upper limit of his education with
the
attainment of grade 12. The defendant argued that the plaintiff would
reach the ceiling of R160 000 because he still had some
ability to
progress further although not to the level, he would have
pre-accident.
7.
The
educational psychologists agreed that “
he
seems to have reached his academic ceiling and would in any way not
be able to reach his pre-accident potential. He would remain
with a
grade 12 qualification.”
8.
The
argument for the defendant turns on the view of the one industrial
psychologist that he would reach the “midpoint of the
median
and upper notch” – the R116 000 and on the that of the
other that he would reach a ceiling “towards the
upper
quartile” – the R160 000. It bears mentioning that the
R160 000 is the upper quartile. The experts agree that
the plaintiff
will now, never progress beyond semi-skilled work. I am of the view
that the midpoint of the median and upper notch
is the appropriate
level at which the plaintiff’s post-accident earnings should be
determined.
9.
The
parties agreed that the pre-accident earning capacity of the
plaintiff, after the deduction of contingencies for the general
hazards of life of 5% in respect of the past and 20% in respect of
the future amount to a net figure of R6 404 640. It is from
this
figure that the post-accident earning capacity is to be deducted in
arriving at the amount to be awarded.
10.
It
is trite that the deduction of contingencies from awards of damages
for the general hazards of life are a matter within the discretion
of
the trial court and peculiar to each case.
11.
The
loss post-accident on the scenario argued by the plaintiff (the
maximum of R116 000 per annum) is R1 801 400. I was urged by
counsel
for the plaintiff to make a contingency deduction of 70% from this
figure. Such a large contingency deduction, it was argued,
was
warranted by the totality of all the circumstances in the case and
that the plaintiff was effectively unemployable on the open
labour
market. Counsel for the defendant argued for a contingency deduction
of 35%.
12.
I
have considered the submissions made by counsel as well as the
agreements of the experts and find that while the plaintiff has
is
indeed at an increased risk of losing or not maintaining employment
at his post-accident level, such risk does not elevate to
70%.
13.
Each
8.33% of a contingency deduction equates to one month of the year and
so a 70% contingency deduction would equate to 8,5 months
of the
year. This seems to me inappropriate in the circumstances of the
present case.
14.
A
35% contingency equates to 4,2 months and this in the circumstances
of the present matter is an appropriate post-accident contingency
deduction.
15.
Deducting
a 35% contingency from R1 801 400 leaves a net figure of R1 170 910.
This figure deducted from R6 404 640 is R5 432 945.
From this must be
deducted the 10% apportionment leaving a figure of R4 889 650. This
represents the amount I intend to award.
16.
The
parties handed up a draft order in which they set out their agreement
in respect of costs.
17.
In
the circumstances I make the draft that is attached hereto marked
“XYZ” an order of court.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
17 FEBRUARY 220
JUDGMENT
DELIVERED ON:
21 FEBRUARY 2020
COUNSEL
FOR THE PLAINTIFF:
ADV P LEOPENG
INSTRUCTED
BY:
GODI ATTORNEYS
REFERENCE:
MR
GODI
COUNSEL
FOR THE DEFENDANT:
ADV M MASHAO
INSTRUCTED
BY:
BRIAN RAMABOA ATTORNEYS
REFERENCE:
MS
MABASA