About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 254
|
|
Mosetlhe v Road Accident Fund (2993/2015) [2019] ZAGPPHC 254 (25 June 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
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 26/6/2019
CASE
NO: 2993/2015
In
the matter between:
KAGISO
MOSETLHE
PLAINTIFF
And
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
MAKHOBA
AJ
[1]
Plaintiff
instituted an action against the defendant for damages suffered as
the result of injuries sustained in a motor vehicle
accident which
took place on 17
th
September 2011 on the road between Ganyisa and Tosca,
Morokweng, North West Province.
[2]
The
merits of the plaintiff's claim have been disposed of by way of an
order of this court granted on the 25th October 2017 in terms
whereof
the defendant was declared to be liable for payment of 100% proven
agreed damages. The only issue before court is the determination
of
the plaintiffs future loss of earnings.
[3]
The
parties agreed to hand in the following sets of documents
3.1. Plaintiff's reports
Exhibit A
3.2.
Joint
minutes between occupational therapists L Rakgoale and S Pretorius
Exhibit B
3.3.
Actuarial
reports Exhibits C and C1
3.4.
Amendment
of the further particulars Exhibits D and D 1
3.5.
Index
to plaintiff's expert report
3.6.
Index
to Defendant's expert report.
[4]
In
proving his claim for loss of earning plaintiff called the industrial
psychologist namely Cornel Schoombee who testified that
the plaintiff
is currently 35 years old and was 27 years old at the time of the
accident. He has passed grade 12 and is employed
by Kumba Iron Ore
mine. After the accident the plaintiff was on sick leave and received
full salary for five months then only a
portion of the salary. The
witness testified further that in order to determine the Plaintiff's
salary from 2012 to 2019 he relied
on his salary IRP5's. Plaintiff
was a dump truck operator and after the accident was redeployed to
general assistant. From 2018
he is now working as operations
controller.
[5]
In
addition the witness testified that he only spoke to the plaintiffs
manager by phone and he did not have a personal interview
with
him. Had the plaintiff remained working as a dump truck driver he
could have had a chance to progress to a supervisor level
and retire
at the age of 63 years. The witness suggested that normal contingency
deductions be applied since the plaintiff is involved
in a stable and
permanent employment despite the accident's consequences. The
plaintiff is seen as a liability and should
there be
retrenchment he will be the first to be retrenched because he earns
more for the kind of wok he is doing. There
is also the
possibility him pf deteriorating rapidly leading to his early
retirement.
[6]
The
plaintiff was cross-examined and plaintiff closed his case. Defendant
did not call any witnesses and closed its case. Both counsels
addressed the court and filed heads of argument.
[7]
The
actuarial certificate indicates a future loss of earning capacity in
the amount of R4019176.00 which is the award contended
for on behalf
of the plaintiff. This award is premised on a contingency deduction
of 50% of the value of the gross post-morbidity
earning capacity
calculated by the actuary in the amount ofR8821 863.00. The figures
have been agreed upon by the parties save
for the contingency
deduction.
[8]
It
was submitted on behalf of the plaintiff that an appropriate
contingency adjustment is a deduction of 50% of the value of the
plaintiffs calculated post-morbid earnings as set out in the latest
actuarial certificate date 30th May 2019 which is exhibit C1
before
court. Counsel asked for costs of two counsels due to the nature and
seriousness of the case.
[9]
For
the defendant it was submitted that the court should apply 25%
contingency deduction in the event the court is of the view that
25%
is low then 30% contingency deduction will be
appropriate. On behalf of the defendant it was argued
that the plaintiff has been employed for 8· years since the
accident and· he is earning double the amount he was
earning
at the time of the accident and his retirement age is postulated to
be at 60 years and not 63 years of age. Moreover there
is a
possibility of plaintiff being medically boarded.
[10]
In his final submissions counsel for the defendant submitted that
the contingency of 50% as requested
by the plaintiff is too
much and is not supported by the evidence. In addition the evidence
of Mr Schoombee in
that the plaintiff
may loose his employment any time is
unfounded.
[11]
That
is the totality of the evidence and submissions by the parties before
me. Both counsels submitted their heads of arguments.
[12]
In
Van Rij, NO v Employers'
Liability Assurance Corporation Ltd,
1964 (4) SA 737
(W)
the
plaintiff was a minor who had not yet embarked on a firm career the
court allowed 20% for contingencies, see also
De
Jong v Gunther and Another 1975
(
4)
SA 78
(W) at page 80.
In
Prinsloo v Road Accident
Fund
2009 (5) SA 406
(SE)
the
court was called upon to adjudicate he plaintiff's claim for loss of
earning capacity
the
court held that in assessing expert evidence, the court had to be
satisfied that the experts opinion had a foundation in logical
reasoning.
[13]
In
Road Accident Fund v Kerridge
2019 (2) SA 233
(SCA) paragraph 25
the
court 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".
[14]
On
paragraph 40 to 42 of the same decision the SCA articulate what is
loss of future earnings and the application of the contingency
deductions. In paragraph 40-42 the court said:
"E [40] Any claim
for future loss of earning capacity requires a comparison of what a
claimant would have earned had the accident
not occurred, with what a
claimant is likely to earn thereafter. The loss is the difference
between the monetary value of the earning
capacity immediately prior
to the injury and immediately thereafter. This can never
be a matter of exact mathematical
calculation and is, of its nature,
a highly speculative inquiry. All the court can do is
make an estimate which is
often a very rough estimate, of the present
value of the loss.
[41]
Courts have used actuarial
calculations m an attempt to estimate the monetary value of the loss.
These calculations are obviously
dependent on the accuracy of the
factual information provided by the various witnesses. In order to
address life's unknown future
hazard, an actuary will usually suggest
that a court should determine the appropriate contingency deduction.
Often a claimant,
as a result of the injury, has to engage in less
lucrative employment. The nature of the risks associated with the two
career paths
may differ widely. It is therefore appropriate to
make different contingency deductions in respect of the
pre-morbid
and post-morbid scenarios. The future loss will therefore
be the shortfall between the two, once the appropriate
contingencies
have been applied.
[42]
Contingencies are arbitrary and
also highly subjective. It can be described no better than the
oft-quoted passage in
Goodall
v President Insurance
where
the court said: ' In the assessment of a proper allowance for
contingencies, arbitrary considerations must inevitably play
a part,
for the art or science of foretelling the future, so confidently
practiced by ancient prophets and soothsayers, and by
authors of a
certain type of almanack, is not numbered among the qualifications
for judicial office'
[15]
The
court further reiterated the general rules in regard to contingency
deductions as follows in paragraph 44:
[44] Some general rules
have been established in regard to contingency deductions, one being
the age of a claimant. The younger
a claimant, the more time he or
she has to fall prey to vicissitudes and imponderables of life. These
are impossible to enumerate
but as regards future loss of earnings
they include, inter alia, a downturn in the economy leading to
reduction in salary, retrenchment,
unemployment, ill health, death
and the myriad of events that may occur in one's everyday life: The
longer the remaining working
life of a claimant, the more likely the
possibility of an unforeseen. event impacting on the assumed
trajectory of his or her remaining
career. Bearing this in mind,
courts have, in a pre-morbid scenario, generally awarded higher
contingencies, the younger the age
of the claimant. The court, in
Guedes,
relying on Koch's
Quantum
Yearbook 2004, found
the appropriate pre-morbid contingency for a young man of 26 years
was 20% which would decrease on a sliding
scale as the claimant got
older. This, of course, depends on the specific circumstances of each
case but is a convenient starting
point"
[16]
T
aking
into account the plaintiff's age, physical and mental condition and
that he has remained in employment since the accident
he is
indeed entitled to be compensated for future loss. However
considering the evidence of the industrial psychologist
there
is no credible evidence that the plaintiff will be
retrenched in the near future instead his
salary
has been increased over the years. There is also
a likelihood that he may
be medically
boarded. The court is of the view that the 50% contingency
is too high under the circumstance. I
am therefore of the view that
the just and ·equitable contingency deductions of the
gross-morbidity earnings capacity is
30%.
[17]
The
court is satisfied that due to the seriousness of the case the costs
of two counsels is justified.
[18]
The
following order is made
1.
CAPITAL:
The Defendant is ordered
to pay to the Plaintiff the amount of R 3297293.6 [Three million two
hundred and ninety seven thousand
and two hundred and ninety three
rands and six cents] (hereinafter referred to as the "Capital")
in full and final settlement
of delictual damages following injuries
the Plaintiff sustained in a motor vehicle accident which occurred on
17 September 2011,
which amount is calculated as follows:
CLAIM
AMOUNT
Past and Future
Loss of Earnings
R 2,254,894.00
Past Medical
Expenses
R242 489.06
Future Medical
Expenses
Section
17(4)(a)
Undertaking
General Damages
R 800 000.00
Total
R
3,297,293.60
The Capital is payable by
Defendant to Plaintiff on/or before 1 July 2019 by depositing same
into Plaintiffs attorneys of record's
trust account, the details of
which are as follows:
ACCOUNT HOLDER
:
MACROBERT INC
BANK
:
STANDARD BANK
TYPE OF ACCOUNT
:
TRUST
ACCOUNT NUMBER.
:
[….]
BRANCH
:
PRETORIA
BRANCH
CODE
:
01-00-45
REFERENCE
: M
BROOKES/2021311
2.
INTEREST:
2.1
Subject
to paragraph 2.2 below, the Defendant will not be liable for interest
on the outstanding capital amount;
2.2
Should
the Defendant fail to make payment of the capital amount on/or before
1 July 2019, Defendant will be liable for interest
on the
amount due to Plaintiff at a rate of 10.25% per annum as
from 29 May 201. 9 to
date of final payment.
3.
UNDERTAKING
:
The
Defendant is ordered to deliver to Plaintiff, within a reasonable
time, an undertaking in terms of Section 17(4)(a) of the Road
Accident Fund Act, Act 56 of 1996, wherein the Defendant undertakes
to pay to Plaintiff 100% of the cost of future accommodation
in a
hospital or a nursing home or treatment of, or rendering
of a service or supplying of goods to Plaintiff pursuant
to the
injuries he sustained in a motor vehicle accident which occurred on
17 September 2011, after the costs have been incurred
and on proof
thereof.
4.
COSTS:
The
Defendant is ordered to pay the Plaintiffs taxed or agreed party and
party costs on High Court Scale, which costs will include,
but will
not be limited to, the following:
4.1
The
costs of all expert. reports, medico-legal reports, addendum medico
legal reports, and combined joint reports,. RAF4 Serious
Injury
Assessment Report(s) and radiology reports of all experts of
whom notice has been given and/or whose reports have
been furnished
to the Defendant and/or its attorneys and/or whose reports have come
to the knowledge of the Defendant and/or its
attorneys as well as all
reports in their possession and/or contained in the Plaintiffs'
bundle of documents. This shall include,
but not be limited to, the
following experts of whom notice has been given, namely:
4.1.1
Dr Theo J. Enslin - Independent
Medical Examiner;
4.1.2
Dr Hans B Enslin - Orthopaedic
Surgeon;
4.1.3
Dr Daan de Klerk ..
Neurosurgeon;
4.1.4
Dr Franco Colin –
Psychiatrist;
4.1.5
Dr JPM Pienaar - Plastic and
Reconstruction Surgeon;
4.1.6
SAI Pretorius (Bester Putter) -
Occupational Therapist;
4.1.7
Maria Genis - Clinical
Psychologist;
4.1.8
Cornel Schoombee - Industrial
Psychologist;
4.1.9
Kobus Pretorius –
Actuary;
4.1.10
Dr HP
Ehlers.:. Maxillo-Facial and Oral Surgeon;
4.2
The full preparation,
reservation, qualifying and day fee(s) of the following experts (if
any and on proof thereof):
4.2.1
Dr Hans B Enslin - Orthopaedic
Surgeon;
4.2.2
SAI Pretorius (Bester Putter) -
Occupational
Therapist;
4.2.3
Cornel Schoombee - Industrial
Psychologist;
4.2.4
Dr Daan de Klerk -
Neurosurgeon;
4.3
The full fees of Plaintiffs
senior and junior counsel in respect of preparation, consultations,
pre-trial conference(s), heads of
argument and a day fee for 29 and
30 May 2019;
4.4
The reasonable travelling,
subsistence and transportation costs including e-toll fees incurred
by and on behalf of the Plaintiff
for attending all the medico-legal
examinations arranged by Plaintiff and Defendant;
4.5
The costs consequent to all of
the Plaintiffs trial bundles, expert reports, pleadings and notices,
all indexes, document bundles
and witness bundles, including the
costs of 5 (five) full copies thereof;
4.6
The costs of hol4ing all
pre-trial conferences, as well as roundtable meetings between the
legal representatives for both the Plaintiff
and the Defendant,
including counsel's charges in respect thereof;
4.7
The costs of and consequent to
compiling all minutes in respect of pre-trial conferences;
4.8
The costs of and consequent to
the holding of all expert meetings between the medico-legal experts
appointed by the Plaintiff;
4.9
The reasonable travelling,
subsistence and transportation costs including e-toll fees incurred
by and on behalf of the Plaintiff
for attending trial on 29 and 30
May 2019;
4.10
The reasonable taxable costs of
one consultation with the client in order to consider the offer of
the Defendant, the costs to accept
it, have it made an order of court
and to procure performance by the Defendant of its obligations in
terms hereof;
4.11
The cost incurred in obtaining
payment and/or execution of the capital amount mentioned in paragraph
1 above and/or delivery of
the undertaking in terms of Section
17(4)(a) of Act 56 of 1996 mentioned in paragraph 3 above;
5.
TAXATION:
5.1
Plaintiff is ordered to serve
the Notice of Taxation of Plaintiffs party and party bill of costs on
Defendant's attorneys of record;
5.2
The Defendant is ordered to pay
the Plaintiffs taxed and/or agreed party and party costs within
14
(FOURTEEN)
days from the
date upon which the accounts are taxed by the Taxing Master and/or
agreed between the parties;
5.3
Should the Defendant fail to
make payment of the party and party costs within
14
(FOURTEEN)
days after
service of the taxed accounts on the Defendant's attorneys of record,
Defendant will be liable for interest on the amount
due to Plaintiff
at a rate of 10.25% per annum as from the date of taxation to date of
final payment.
6.
CONTINGENCY
FEE AGREEMENTS:
The Plaintiff and the
Plaintiffs attorneys of record did not enter into any contingency fee
agreement.
SIGNED AT PRETORIA ON
THIS THE 29THDAY OF MAY 2019.
REGISTRAR
ATTORNEY
FOR PLAINTIFF
: MR M BROOKES
MACROBERT INC
(012) 425 3605
SENIOR
COUNSEL FOR PLAINTIFF
: ADV G ALBERTS
082 499 2000
JUNIOR
COUNSEL FOR PLAINTIFF
: ADV D GIANNI
082 841 7283
ATTORNEY
FOR DEFENDANT
: MS K MOLOISANE
MATIDPANE TSEBANE
ATTORNEYS
(012)
3411510
COUNSEL
FOR DEFENDANT
: ADV DP MOGAGABE
083 353 5979
D.MAKHOBA
ACTING
JUDGE OF TIIE GAUTENG DIVISION, PRETORIA