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2019
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[2019] ZALMPPHC 55
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Selepe v Road Accident Fund (3177/2016) [2019] ZALMPPHC 55 (21 November 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 3177/2016
21/11/2019
In
the matter between:
BAFANA
ABEDNIGO SELEPE
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The
plaintiff has instituted action against the defendant for damages and
ancillary relief arising from a motor vehicle accident
which occurred
on the 27
th
June 2015 when the driver of the insured vehicle lost control and it
overturned. At the time of the accident, the plaintiff was
a
passenger inside the insured vehicle.
[2]
The merits of this matter has been disposed of and liability on the
part of the defendant has
been resolved on the basis of 100% in
favour of the plaintiff’s proven damages. The court is called
upon to determine the
issue of loss of earnings or earning capacity
only.
[3]
The plaintiff was called to testify on a limited issue. He testified
that on the 27
th
June 2015 he was involved in a motor
vehicle accident. He sustained bodily injuries as a result of the
accident. Before the accident
he had failed twice at school. However,
after the accident he had failed three times. Currently he is not
performing well at school.
[4]
The plaintiff was cross examined and he stated that at the time of
the accident he was in grade
9 and was 19 years of age. That
concluded the evidence of the plaintiff and he closed his case. Both
counsel addressed the court
on the merits of the case.
[5]
Counsel for the plaintiff in addressing the court has stated that the
injuries which the plaintiff
has suffered as a result of the accident
were fracture of the right humerus, laceration on the head, had loss
of consciousness
and amnesia, had general body aches and also back
pain. He submitted that Dr Ramokgopha the plaintiff’s
Orthopaedic Surgeon
has found that on the nurse’s notes of the
27
th
June 2015, she had noted that the plaintiff had
sustained a lumber spine wound. However, Dr Tladi, the defendant’s
Orthopaedic
Surgeon was unable to pick up the lumbar spine wound.
[6]
The plaintiff’s Counsel submitted that had the defendant’s
Orthopaedic Surgeon picked
up the plaintiff’s lumbar spine
wound, he would have arrived at the same conclusion as that of the
plaintiff’s Orthopaedic
Surgeon.
[7]
The conclusion of the plaintiff’s Orthopaedic Surgeon is that
the plaintiff has residual
symptoms that will need intermittent
medical treatment; that he will also be prohibited to do heavy manual
labour, particularly
because of the lower back symptoms and; and
further that he will be able to cope with semi-sedentary occupations
in future. The
conclusion of the defendant’s Orthopaedic
Surgeon is that the plaintiff has returned to his premorbid
occupational capacity
and that there will be no significant effects
on his future employability.
[8]
The Counsel for the plaintiff has conceded that as per the expert
reports, the plaintiff would
not have schooled beyond grade 12, and
would likely become an unskilled worker. He would therefore be more
reliant on his physical
abilities to secure employment. However, his
physical abilities have been compromised as a result of the injuries
that he had sustained.
Counsel for the plaintiff submitted that in
that situation a high contingency deduction should be applied.
[9]
Counsel for the defendant argued that the plaintiff’s version
is riddled with inconsistencies
and that it is the version that the
plaintiff has used to come up with the calculations for the alleged
loss he alleges to have
suffered. Counsel for the defendant has
further submitted that the report of the plaintiff’s Industrial
Psychologist in paragraph
6.1 state the following:
“
One
assumes that but for the accident Bafana could have stayed healthy
and reached high school education (Grade 11/12). Thereafter,
he could
have been eligible for employment in the unskilled level and over
time, could have progressed to positions in the low
semi-skilled
level. His sound capacity would have stood him in good stead in
physically demanding work. His prospects are fair.”
[10]
Counsel for the defendant submits that the plaintiff whether the
accident had occurred or not, he will remain
unskilled. That
according to the defendant’s Occupational Therapist report, the
plaintiff has six household members, his
mother who is a pensioner;
two brothers, one employed the other unemployed; nephew who is
unemployed and niece who is in grade
1. The plaintiff has no record
of any earnings and that since most of his household members are
unemployed, the possibility is
that he also will be unemployed.
[11]
Counsel for the defendant submits that the table of calculations of
the plaintiff’s actuary is based
on that of the skilled workers
whilst the plaintiff would have remained unskilled, and that the
calculations are therefore misleading.
According to the defendant’s
counsel, pre-morbid and post morbid are the same and therefore, the
appropriate way to deal
with the plaintiff’s situation is to
apply a spread.
[12]
It is not in dispute that the plaintiff has sustained injuries as a
result of the accident he was involved
in. It is not in dispute that
as per the expert reports, even if it was not for the accident, the
plaintiff would not have schooled
beyond grade 12 and would have
therefore been eligible for employment as an unskilled worker. The
defendant’s Occupational
Therapist has stated that the
plaintiff will not cope with sedentary requiring high cognitive
functioning and that this is not
accident related. She has further
stated that the plaintiff will be more dependent on his physical
abilities to secure employment
in future, and that his physical
abilities have been compromised by his injuries.
[13]
In RAF v CK
[2018] ZASCA 151
;
2019 (2) SA 233
(SCA) (1 November
2018)
at para 25 Dambuza JA said:
“
Indeed,
a physical disability which impacts on the capacity to an income does
not, on its own, reduce the patrimony of an injured
person. There
must be proof that the reduction in the income earning capacity will
result in actual loss of income. However, where
loss of income has
been established but proof of the quantum thereof cannot be produced
in the usual manner, the courts have shunned
the non-suiting of a
claimant and have preferred to make the best of the evidence tendered
to give effect to the finding of proved
reduction in loss of earning
capacity. As long as almost a century ago, in Herman v Shapiro the
court said the following:
‘
Monetary
damage having been suffered, it is necessary for the court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the court is very little more
than an estimate, but even so, if it is certain
that pecuniary damage
has been suffered, the court is bound to award damages.”
[14]
The Industrial Psychologists of both the plaintiff and the defendant
in their joint minutes both agree that
the plaintiff is unlikely to
compete for physically demanding work, and further that he is
unlikely to compete for work in the
low semi- skilled level, like as
a driver or messenger. The Occupational Therapist of both plaintiff
and defendant in their joint
minutes are in agreement that the
plaintiff has physical limitations as a result of the accident and
that he will be able to perform
work task within the light physical
demands.
[15]
Even if it was not for the accident, the plaintiff would have
competed in the labour market as an unskilled
worker. The accident
has rendered him to be unable to compete for heavy manual work. His
physical abilities have therefore been
compromised as a result of the
accident and he needs to be compensated for that.
[16]
The plaintiff at the time of the accident was aged 18 years 11 months
and was still in grade 9. Academically,
he was not performing well at
school and that is not as a result of the accident, but the accident
might have exacerbated the existing
condition which even if the
accident has not occurred he would still have competed in the
unskilled labour market. At age 23 the
plaintiff is still in grade 12
and not as a result of the accident but due to him struggling
academically. He was never employed
and has therefore no employment
history.
[17]
The defendant’s counsel has submitted that as in the
plaintiff’s family there is a history of
unemployment,
therefore, he too there is a high likelihood that he will be
unemployed. I don’t agree with this submission.
This is a
conservative submission that belongs to the past. There are many
successful people who comes from poor family background
where none of
their family members were employed. Nowadays there are many
programmes that motivates people to be successful in
life and those
programmes are not only meant for those who are from the well-being
families.
[18]
Both parties have submitted their actuarial reports. However, in my
view the report that is more detailed
is that of the plaintiff as in
their calculations they took into consideration the joint minutes of
the Industrial Psychologist
of both parties. I therefore find the
plaintiff’s actuarial report to be more reliable.
[19]
The plaintiff is now aged 23 years and still in grade 12 and not as a
result of the accident but due his
existing condition of not
performing well academically. He seems to have an interest in
education as at age 23 is still in grade
12. He has therefore not yet
entered the labour market out of his own pre-existing condition and
not as a result of the accident.
In my view, he has not suffered any
past loss of earnings as a result of the accident, but due to his
love for education even though
struggling academically. Therefore,
there is no past loss of earnings that he had suffered which is as a
result of the accident.
[20]
Turning to the future loss of earning capacity, in my view, taking
into consideration the age of the plaintiff,
that he has no history
of employment, his pre-existing condition of poor performance
academically and the present economic downturn
which does not
guarantee that he will be employed, in my view, a high contingency
deduction will be appropriate. In
Bee v RAF
2018 (4) SA 366
(SCA)
it was held that the younger the victim, the longer the period over
which the vicissitudes of life will operate and the greater
the
uncertainty in assessing the claimant’s likely career path.
Therefore, in my view, a 50% contingency deduction will be
appropriate under the circumstances.
[21]
In my view, the following calculations are fair and adequate:
(a)
Past Loss
R0-00
(b)
Future Loss
R4 039 380-00
Less
50% contingency deduction
R2 019 690-00
Total
Loss
R2 019 690-00
[22]
I therefore make the following order
22.1
The plaintiff succeeds in his claim for compensation against the
defendant.
22.2
The defendant is to pay the plaintiff the sum of R2 019 690-00
representing the plaintiff’s future loss of
earnings.
22.3
The defendant to pay the plaintiff’s costs on party and party
scale.
MF.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCE:
Counsel
for the plaintiff
: Adv I
Mabaso
Instructed
by
: Sekonya Attorneys
17
F Schoeman Street
Counsel
for the Defendant
: Adv
TS Ngwana
Instructed
by
: Mathobo, Rambau & Sigogo
Attorneys, 98 Marshall Street
Date
of hearing
: 14 October 2019
Date
of judgment
: 21
ST
NOVEMBER 2019