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[2019] ZALMPPHC 39
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Ramashala v Road Accident Fund (1535/2017) [2019] ZALMPPHC 39 (5 August 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 1535/2017
In the matter
between:
KATLEGO PAUL
RAMASHALA
: PLAINTIFF
And
ROAD ACCIDENT
FUND
: DEFENDANT
JUDGMENT
SEMENYA J:
[1] The plaintiff issued
summons against the defendant for damages he has suffered as a result
of a motor vehicle accident that
occurred along R71 Tzaneen-Polokwane
road on the 27 March 2016. The plaintiff was a passenger in a motor
vehicle with registration
letters and numbers [….] which was
then and there driven by Ramashala P (the insured driver). The
plaintiff was 17 years
old and in Grade 12 as at the date of the
accident. According to the police accident report, the vehicle the
plaintiff was travelling
in overturned when the insured driver was
avoiding a collision with another vehicle. The plaintiff did not
return to school after
the accident.
[2] The parties informed
me that the defendant admitted 100% liability in favour of the
plaintiff and that the issue of general
damages has also been
resolved. This court is called upon to determine the issue of loss of
earnings only. The parties have agreed
that the issues will be argued
on the basis of the reports filed by experts and will not tender any
oral evidence. There is a disagreement
between the parties on whether
the parties have agreed to argue loss only on the joint minutes filed
by industrial psychologists,
S Vos and T Maitin, or on other reports
as well. During opening address counsel for the plaintiff stated that
the parties have
agreed that no other report will be referred to
during argument. However, counsel for the defendant insisted on
addressing the
court on other expert reports as well, stating that
the court cannot ignore crucial evidence that is meant to assist it.
[3] The parties agree on
the following facts:
a. That pre-accident the
plaintiff never failed a Grade and was capable of achieving a diploma
or a degree;
b. that he sustained L1
fracture and suffered 30-33% whole body impairment;
c. that he did not
sustain a head injury and his cognitive functioning post-accident
falls within the average range, same way as
it was pre-accident;
d. that post-accident,
the plaintiff requires accommodation in the following:
aa) rest breaks during
tests/examination due to the lumber corset that he has to wear;
bb) a separate room from
that of other students for test/examination;
[4] The guiding principle
underlying the determination of loss of earnings or earning capacity
has been enunciated as follows in
Dippenaar Shield Insurance Co
(Pty) Ltd
1979 (2) SA 904
at 908 A:
“
When damage for
personal injuries has to be assessed, personal patrimony includes,
inter alia, the capacity to earn money through
his work and skill,
i.e his mental and physical efforts. The loss or impairment of his
capacity is therefore also an element of
acquillian damages, if it
has in fact led to a diminution of plaintiff’s patrimony.”
[5]Counsel for the
defendant argued that the plaintiff failed to prove that he has
suffered loss as a result of the accident. He
contended that the
Court cannot rely on the actuarial calculations tendered by the
plaintiff in that they were arrived at on the
basis of incorrect
information. Counsel argued, with reference to
S v Gouws
1976 (4)
SA 527
at 528D,
that the prime function of an expert is to
guide the Court to a correct decision on questions falling within his
specialised
field and that this decision should not displace that of
the tribunal which has to determine the issues to be tried. In this
regard,
counsel submitted that the Court should disregard the
industrial psychologist’s opinion that states that the
plaintiff is
unemployable. The ground upon which counsel made his
submission is that the plaintiff sustained orthopaedic injuries only,
which
falls within the expertise of the orthopaedic surgeon, who
according to counsel, would be the best expert to determine whether
the plaintiff is still employable. Counsel argued that the plaintiff
has the duty to prove his loss and was bound to lead oral evidence
to
prove that he is unemployable.
[6] Counsel for the
defendant further argued that the court cannot rely on Dr Lerato
Hlelele (educational psychologist)’s
opinion that the plaintiff
will struggle to find employment post-accident. It was argued that Dr
Hlelele submitted two conflicting
opinions in this regard. In her
initial report, Dr Hlalele stated that the plaintiff will not be in a
position to pass matric post
-accident. However, in the joint
minutes, she agreed with Dr R J Phetla that the plaintiff will be in
a position to pass matric
and tertiary education with the assistance
of special accommodation. It was submitted that the court will have
to resort to probabilities
in order to deal with this inconsistencies
or mutually distractive versions.
[7] In response to the
submissions made by counsel for the defendant, counsel for the
plaintiff contended that the parties have
agree to argue the matter
based on the joint minutes of the industrial psychologist only. He
submitted that the plaintiff cannot
be penalised for failing to call
witnesses when the parties have agreed that it would not be necessary
to do so. I agree with the
plaintiff on two reasons. Firstly, the
defendant does not deny that an agreement was reached that no oral
evidence will be led.
The plaintiff was entitled to hold the
defendant to this agreement. He cannot be taken by surprise in this
regard. Secondly, having
read the reports filed, I am of the view
that the issues between the parties can be resolved without oral
evidence.
[8] The defendant’s
argument that the Court cannot rely on the opinion of industrial
psychologists on the basis that it is
not their speciality is
misplaced. These experts stated clearly that they relied on the
opinion of the orthopaedics as well as
other experts. The orthopaedic
surgeons agree that the plaintiff suffered impairment in the range of
30-33% whole person impairment.
The industrial psychologists noted
the educational psychologists’ opinion that the plaintiff’s
cognitive function is
not affected by the accident and that he can
pass matric and further education, with the necessary accommodation.
The industrial
psychologists further considered the occupational
psychologists’ opinion that the plaintiff will benefit from
physical adaptation
and assertive devices with regular breaks if he
secures employment. They further agree that even with further
education that suits
his needs he is unlikely to be effective and
productive as his counterparts and that his status will cause
hardships for employers
and further limit his chances of securing
employment. It is on this basis that I accept the industrial
psychologists’ opinion
that the plaintiff is unemployable. This
conclusion was not reached in a vacuum. On the contrary, it is in
line with the opinion
held by other experts. It will be difficult if
not impossible, in my view, for the plaintiff to find a sympathetic
employer in
the time of high unemployment rate of able bodied
persons. The actuary’s reliance on this opinion cannot be
faulted.
[9] What remains to be
determined is the calculation of the award of damages that would
reasonably compensate the plaintiff’s
patrimonial loss. In
relation to the calculation of loss the Appellate Division in
Southern Ins Ass Ltd v Bailey
1984 (1) SA 98
(A) at 113-114
stated that the judge may either make a round estimate of an amount
which seems to him to be fair and reasonable which is entirely
a
matter of guesswork, a blind plunge into the unknown, or try to make
an assessment, by way of mathematical calculations, on the
basis of
assumptions resting on the evidence. The court said the validity of
this approach depends of cause upon the soundness
of the assumption,
and these may vary from the strongly possible to the speculative.
[10] Gerard Jacobson
actuary made provision for two scenarios, one where the plaintiff
would have completed a Diploma and where
he would have completed a
Degree. Counsel for the plaintiff submitted that the court should
make an award which will be somewhere
between the two scenarios by
adding the amount suggested in the scenarios and dividing it by two.
Educational psychologists did
not provide this Court with the
plaintiff’s school reports I therefore did not have the
advantage of making an independent
assessment of his academic
performance to satisfy myself that he would have made the credential
of obtaining a civil engineering
Degree, a Degree he had aspired to
obtain. Counsel for the plaintiff made a letter from the school
principal available to the Court
during argument. Unfortunately the
letter served to inform the Court that the plaintiff was a Grade 12
learner at the school and
was hospitalised for three months after the
accident. It further states that the plaintiff suffered from a spinal
and backbone
injuries and had since not recovered in full. Nothing is
said about his academic performance. I will however accept that the
plaintiff
would have passed Grade 12 and a Diploma in view of the
fact that he has never repeated a Grade.
[11] In
Carstens v
Southern Ins Ass Ltd
1985 (3) SA 1010
(C) at 1021
it was held
that ‘While the Court will generally have regard to
arithmetical calculations and to actuarial evidence of probabilities
to assist it in its assessment, ultimately it must decide whether the
results of such calculations and the evidence accord with
what is
fair and reasonable.
[12] Counsel do not agree
on the contingencies that should be applied to the calculations.
Counsel for the plaintiff submitted that
a deduction of 20% will be
reasonable in view of the plaintiff’s youthful age. Counsel for
the defendant submitted that 50%
would be an appropriate deduction.
In
Mehlo and Another v Road Accident Fund Corbett and Buchanan Vol
5 A2-30 (C)
a contingency deduction of 20% for future loss and 5%
for past loss was applied in respect of a 20 year old boy who was
rendered
functionally useless and completely unemployable as a result
of a motor vehicle accident. The distinction between that case and
the one before me is that the plaintiff in this case was not
functionally useless. He can still function, albeit to a limited
degree. He still retains his cognitive function and the ability to
pass matric and tertiary education with the assistance of a corset
and special accommodation. It is in any event common cause that his
IQ is still intact. The only hiccup is that it will be difficult
for
him to find a sympathetic employer. I am however of the view that a
deduction of 50% as suggested by the defendant is too unreasonable.
[13] The plaintiff was 17
years old when the accident occurred. He has not yet completely
healed. His life expectancy has not been
reduced. Dr Aden stated that
the calculated impairment will gradually deteriorate due to the
abnormal distribution of forces and
the resultant fatigue of muscles
it may cause. In the result, I find that a contingency deduction of
30% to future loss will be
the most reasonable and fair calculation.
[14] The following
calculations will apply in this case:
For future loss of
earnings the defendant is ordered to compensate the plaintiff as
follows:
Value
of income but for the accident:
R8 356 140
Minus 30%
contingency:
R2 506 842
TOTAL FUTURE
LOSS:
R5 849 298
[13] In the circumstances
I make the following order:
1. The defendant shall
pay the plaintiff the sum of R5 849 298 in full and final
settlement of the plaintiff’s claim
and the said amount is
payable into the following bank account:
Account
holder: Mafetse
Mogashoa Attorneys
Bank
name:
Standard bank
Branch
code:
001805
Account number:
[….]
Type of
account: Trust Account;
2. The defendant will not
be liable for interest on the above amount provided that same is paid
within fourteen (14) days, failing
which interest at the rate of 10%
per annum will be payable calculated from the date on which this
order is made;
3. The defendant is to
pay the plaintiff’s taxed or agreed party and party costs on a
High Court scale. In the event that
the costs are not agreed, the
plaintiff agrees as follows:
3.1. The plaintiff shall
serve the notice of taxation on the defendant’s attorneys of
record;
3.2. The plaintiff shall
allow the defendant fourteen (14) court days to make the said payment
of the taxed costs; and
13.3 Should payment not
be made timeously, the plaintiff will be entitled to recover interest
at the rate of 10% on taxed or agreed
costs from date of allocator to
date of final payment;
4. The above costs will
also be paid into the above trust account, which costs shall include
the following:
4.1 The costs of counsel
including travelling for the 13 May 2019
4.2 The costs of
obtaining reports, reservation and reasonable taxable preparation
fees, if any, for the following:
4.2.1. Dr A A
Aden-Orthopaedic surgeon;
4.2.2. Ayanda
Sodi-Occupational psychologist;
4.2.3. D J
Phetla-Educational psychologist
4.2.4. S Vos-Industrial
psychologist
4.2.5. Gerard
Jacobson-Actuary
M.V SEMENYA
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION.
APPEARANCES:
ATTORNEYS FOR THE
PLAINTIFF : MAFETSE MOGASHOA ATT.
COUNSEL FOR THE
PLAITIFF
: ADV. S.K MOJAMABU
ATTORNEY FOR THE
RESPONDENT : NOKO MAIMELA ATTORNEYS
COUNSEL FOR THE
RESPONDENT : ADV.
RESERVED
ON
: 15 MAY 2019
JUDGMENT
DELIEVERED ON
: 05 AUGUST 2019