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[2020] ZAGPPHC 62
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Myekwa v Road Accident Fund (56080/2012) [2020] ZAGPPHC 62 (21 February 2020)
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:
AVELA
MYEKWA
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MILLAR,
AJ
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 2020
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