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[2019] ZAGPPHC 5
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G.T.M v Road Accident Fund (22100/2012) [2019] ZAGPPHC 5 (31 January 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
NOT REVISED
Case No. 22100/2012
In
the matter between:
G
T M
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MILLAR, AJ
1.
The
plaintiff was injured in a motor vehicle collision on 15 November
2009. Action was instituted against the defendant for damages
suffered in consequence of those injuries. Liability and all other
heads of damage have already been previously resolved.
2.
The
only outstanding head of damages is the claim for loss of income. The
parties were agreed that the plaintiff has suffered no
past loss and
so the only issue to be determined is the future loss of income.
3.
The
case was presented and argued on an agreed statement of facts and
furthermore the parties agreed that the determination of the
quantum,
subject to the court's findings, should be in accordance with the
calculations prepared by the defendant’s actuary.
4.
The
plaintiff was born on 13 February 1995 and was 14 years of age at the
time of the collision. She suffered a number of serious
orthopaedic
injuries which included.... She underwent a sacroiliac joint fusion
by means of a single cannulated screw and an external
fixator to
close the pelvis anteriorly, suffers a gait abnormality which is
secondary to a mild malunion of the pelvis and there
is even now a
certain degree of malrotation still present; The plaintiff is at risk
of long-term back pain due to the sacroiliac
joint injury and
experiences ongoing pain in her back, her hips and pelvic area after
walking for prolonged periods of time. The
plaintiff is showing signs
of depression and post-traumatic stress disorder and has been left
with extensive, serious permanent
disfigurement in the form of
scarring as a result of this collision.
5.
After
the collision the plaintiff was able to complete grade 8, which she
was in at the time.
She has
since then been unsuccessful in her endeavors to improve upon her
formal educational qualifications, despite three attempts
to complete
grade 9 and attendance at an ABET (Adult Education) college to obtain
a grade 12 equivalent education. Counsel for
the defendant also
placed on record that the plaintiff had had a baby in the year
following the collision. I will return to this
aspect later.
6.
Opinions
were obtained by the parties from Industrial Psychologists, both of
whom were agreed that the plaintiff's pre-accident
work and earning
capacity was within the semi-skilled sphere. Both also agreed that
she would have only entered the labour market
at the age of 25
earning R39 804,00 per annum. The only difference between them was
the earnings the plaintiff would achieve upon
reaching her career
ceiling at age 45.
7.
The
one scenario was that the plaintiff would reach a career ceiling
earning R150 996,00 per annum - the more optimistic scenario
argued
for by the plaintiff and the other, less optimistic, and argued by
the defendant, a career ceiling of R105 000,00. Retirement
was agreed
at age 65.
8.
In
regard to the post-accident scenario, the difference in opinion of
the experts was more marked and reversed. The less optimistic
scenario was that the plaintiff would reach a career ceiling earning
R59 004,00 per annum. The more optimistic scenario that the
plaintiff
would only suffer a
"reduction
in work capacity of between 11
% -
20%"
9.
Both
of the industrial psychologists opined that both pre and post
collision, the plaintiff would not have started working until
the age
of 25. The plaintiff is presently 23 years of age and is not working.
During argument both counsel for the plaintiff and
the defendant
argued that this should be accepted by the court taking into account
the plaintiff's particular circumstances that
had been agreed.
Included in those circumstances was the birth of her child during her
teenage years.
10.
The
plaintiff was unlikely to have attained a qualification that would
have enabled her to enter the labour market at a level other
than
that of a semis skilled worker. Furthermore, consideration of all her
personal circumstances has resulted in the experts agreeing
that she
would not have in any event, notwithstanding the occurrence of the
collision, started working before the age of 25.
11.
It
was argued on behalf of the plaintiff that she would have reached
earnings on the more optimistic scenario. I do not agree, firstly
persons in the semi-skilled sphere of work would usually start
working between the ages of 18 and 20. This would mean at least
a
25-year period to reach the career ceiling. The plaintiff would only
have had 20 years to do so and so as a matter of probability
I find
that had the collision not occurred, her career ceiling was likely to
have been the annual income of R105 000,00 - the less
optimistic
scenario.
12.
The
actuary calculated the plaintiffs pre-collision income on this basis
in the sum of R2 011 440,00. Having considered the matter
as a whole,
I am unable to find that the plaintiff has suffered a loss of earning
capacity that can be expressed by the deduction
of a percentage from
the pre-accident earnings as contended by the defendant. I accept
that that the plaintiff has a residual earning
capacity and accept
the post-accident income calculated on the same basis as the
pre-accident, with a career ceiling of R 59 004,00
as calculated in
the sum of R1 346 024,00. These figures represent the gross figures
before the deduction of contingencies.
13.
In
respect of the deduction of contingencies generally, the principle to
be applied is that set out in Southern Insurance Association
Ltd v
Bailey NO
[1]
-
"Even where method of
actuarial calculations is adopted the trial Judge still has
a
discretion to
award what he considers right
-
Can make
a
discount for
contingencies
-
Nature of
contingencies that can be taken into account
-
Such
contingencies not always adverse
"
14.
In
considering the contingencies for the pre-accident scenario, it is
stated in the oft cited Quantum Yearbook
[2]
it is stated:
"The RAF usually agrees to
deductions of
5%
for past Joss and
15% for future loss, the
so
called "normal
contingencies"
And
"Differential
contingencies are commonly applied, that is to say one percentage
applied to earnings but for the accident and
a
different
percentage to earnings having regard to the accident"
15.
This
is the basis upon which the actuary was instructed by the parties.
Illustrative contingencies of 15% for the pre-collision
and 25% for
the post-collision earnings respectively were applied. The plaintiff
argued that the pre-collision contingency deduction
should be reduced
because of the fact that the parties had already agreed that her
working life would have been 5-7 years shorter
than it would
otherwise have been. The defendant argued that the plaintiffs
personal circumstances militated for this contingency,
notwithstanding the agreement as to when she would have started to
work.
16.
In
regard to the post-collision contingencies, the plaintiff argued that
the contingency to be deducted should be substantially
higher than
25%. It was argued that the plaintiffs delay in entering the
workplace together with the sphere of work and the nature
of the
injuries meant that this particular contingency should be between 50%
and 80%. The defendant argued that a 25% contingency
deduction was
appropriate.
17.
I
have considered the matter as a whole and am of the view that an
appropriate pre-collision contingency deduction is 10% and a
post-contingency deduction is 50%.
18.
The
pre-collision income net of the 10% contingency is R1 810 296,00
[3]
The post-collision income net of the 50% contingency is R673
012,00
[4]
The amount to be awarded to the plaintiff is the difference between
the two, i.e. R1 137 284,00.
19.
In
the circumstances I make the following order:
19.1
The
defendant is ordered to pay to the plaintiff the sum of R1 137
284,00;
19.2
Payment
is to be made into the Trust Account of the Plaintiff's Attorney,
Frans Schutte Mathews Phosa Inc. held at the Standard
Bank of South
Africa with account number [….].
19.3
The
defendant is to pay the plaintiff's taxed or agreed costs on the
scale as between party and party which costs are to include
the costs
of counsel and of all the medico-legal reports served by the
plaintiff on the defendant.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
29 JANUARY 2019
JUDGMENT
DELIVERED ON:
31 JANUARY 2019
COUNSEL
FOR THE PLAINTIFF:
ADV F PAUER
INSTRUCTED
BY:
FRANS SCHUTTE MATHEWS PHOSA INC
REFERENCE:
MS
D DE JONG
COUNSEL
FOR THE DEFENDANT:
ADV D WESTEBAAR
INSTRUCTED
BY:
BRIAN RAMABOA INC
REFERENCE:
MS
SIBIYA
[1]
1984 (1) SA 98
(A) at 98 E-F; see also Goodall v President Insurance
1978 (1) SA 389 (W)
[2]
Van Zyl Rudd & Associates, 2018 at page 114 under the headings
"Normal Contingencies" and "The unemployed
victim"
respectively.
[3]
R2 011 440,00 less R210 144,00
[4]
R1 346 024,00 less R673 012,00