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[2019] ZAGPPHC 294
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Kopa v Road Accident Fund (88133/2016) [2019] ZAGPPHC 294 (12 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES:NO
Case Number: 88133/2016
In
the matter between:
MARIA
RAISIBE KOPA
Plaintiff
and
ROAD
ACCIDENT ,FUND
Defendant
JUDGMENT
DU
PREEZ, AJ:
INTRODUCTION:
1.
The
plaintiff instituted action against the defendant for damages
pursuant to a motor vehicle collision on the Moloto Road between
Hammanskraal and Kwa Mahlanga on 1 May 2015, during which she
sustained the following bodily injuries:
[1]
1.1
A neck injury with a C2 vertebral body
fracture without any neurological fallout;
1.2
A back injury without any neurological
fallout; and
1.3
A fracture of the left acetabulum.
2.
The
defendant conceded merits and by agreement, the parties proceeded
with the
quantum
claim
without leading oral evidence. but by arguing same by reference to
the expert reports.
THE
PLAINTIFF'S CASE:
3.
The plaintiffs case may be summarised as
follows:
3.1
The plaintiff, who is 37 years old,
obtained Grade 11 and was prior to the accident employed:
3.1.1
As a chef and a cook for five years;
3.1.2
In the construction industry for a year;
and
3.1.3
As a domestic worker for a year.
3.2
She was unemployed from 2012 until the
date of the accident and remained so thereafter.
3.3
She procured employment as a domestic
worker during January 2017, but was obliged to resign due to the
difficulties she experienced
in performing her duties resultant her
said injuries.
3.4
According to a report by an occupational
therapist, Manska du Plooy, dated 5 May 2017:
3.4.1
The plaintiffs physical capacity will
not improve to pre-accident levels and her future employment should
be limited to sedentary
to occasional light
work;
3.4.2
The plaintiff’s ability to compete
with uninjured peers in the open labour market has been significantly
restricted, considering
her education and predominant work
experience;
3.4.3
The plaintiff reported experiencing
increased fearfulness following the accident, she is afraid to travel
and is hyper vigilant
when she does.
4.
The
industrial psychologist, Dr WL Pretorius, reported that the plaintiff
is a vulnerable employee because she suffers from post-traumatic
stress disorder, major depression and of extremely elevated levels of
anxiety.
5.
Although
the plaintiff was unemployed at the date of the accident, she was in
the process of finding suitable employment.
6.
After
the accident, the plaintiff is;
6.1
Unable to do work similar to that that
she was employed in prior to the accident;
6.2
Only suited for sedentary to light
nature work;
6.3
Dependant on an accommodating and
sympathetic employer, as she will have to alternate between sitting
and standing;
6.4
A significantly vulnerable individual in
the open labour market;
6.5
Limited in her work and earning
capacity;
6.6
On a very optimistic postulation, able
to earn between R14,350.00 andR20,600.00 per annum.
7.
The
actuaries at Munro forensic actuaries, Chari du Plessis and Willem
Boshoff, calculated the plaintiff's past and future loss
of earnings
on two bases, to wit a scenario where the plaintiff is expected not
to reach the suggested pre-accident career potential
and another
scenario where the plaintiff is unemployable in future.
8.
In both scenarios, the plaintiff
suffered past and future loss of uninjured earnings in the respective
amounts of R216,500.00 and
R1,643,700.00.
9.
In
the first scenario, provision is also made for injured earnings in
future in the amount of R738,900.00
.
10.
In none of the instances, any
contingencies were applied.
11.
Counsel for the plaintiff argued that:
11.1
Further high post-accident contingencies
for the increase risk of earning less than postulated, should be
applied;
11.2
The plaintiffs general damage amount to
R515,205.00;
[2]
11.3
In respect of both scenarios,
contingencies of 5% and 15% should respectively be applied in respect
of the past and future loss
of earnings;
11.4
To determine the plaintiff's past and
future loss of earnings, it is reasonable to calculate the average
between the two scenarios
once the contingencies have been applied;
11.5
If the contingencies proposed by the
plaintiff are applied, this calculation amounts to an amount of
R1,288,787.50.
THE
DEFENDANT'S CASE:
12.
The defendant's counsel, relying on the
plaintiff's expert reports, argued that:
12.1
The plaintiff is employable and that
only the first scenario (plaintiff is not expected to reach her
pre-accident career potential)
has to be considered as to be
considered regarding her past and future loss of earnings;
12.2
A 30% contingency be applied in respect
of her pre-accident future loss of earnings and a 25% contingency in
respect of her post
accident loss of future earnings;
12.3
The higher contingencies find
application, among others, because:
12.3.1
The plaintiff was unemployed for almost
three years when the accident occurred;
12.3.2
According to the said occupational
therapist's report, the plaintiffs physical capacity and pain are
expected to improve with successful
rehabilitation;
12.3.3
The said industrial psychologist's
report indicated that:
12.3.3.1
The plaintiff did not suffer any past
loss of earnings;
[3]
12.3.3.2
Appropriate and not higher contingencies
should be applied;
[4]
12.3.3.3
During 2012, the plaintiff was diagnosed
with tuberculosis and did not return to the labour market after
treatment;
[5]
12.3.3.4
At the time of the accident, she also
suffered from hypertension and deep vein thrombosis.
[6]
12.3.4
Based on certain case law, the
plaintiffs general damage should be limited to between R350,000.00
and R450,000.00.
DISCUSSION:
13.
The
statement by the occupational therapist relied upon by the plaintiff
that with successful rehabilitation, the plaintiffs physical
capability and pain are expected to improve, is qualified, as the
occupational therapist pertinently states that
"in
light of her current functional limitations and the sclerosis of the
SI joints, despite surgical and rehabilitative intervention,
I would
not expect her physical capacity to improve to pre-accident levels."
14.
Furthermore,
the experts were aware that the plaintiff was diagnosed with
tuberculosis and suffered from hypertension and deep vein
thrombosis,
but nevertheless reported that the plaintiff had suffered a loss in
past and future earnings.
15.
It
is unnecessary to cite to the relevant case law and legal principles
pertaining to the quantification of the plaintiffs claim,
save to
state that:
15.1
In computing general damage, a number of
factors play a role, among others, the extent of the harm (which is
usually a function
of the nature, intensity and duration of the
harm), the specific purpose of the award, general considerations of
equity and parity
with previous awards.
[7]
15.2 Whether
contingencies should be applied, and in what percentage, is directly
linked with the amount the Court
considers just in respect of
compensation.
[8]
1 5.3 The amount to be
awarded as compensation, can only be determined by the broadest
general considerations and the
figure arrived at must necessarily be
uncertain, depending upon the judge's view of what is fair in all the
circumstances of the
case.
[9]
15.4
The Court has a large discretion to
award what the Court considers right.
[10]
15.5
The rate of the discount cannot be
assessed on any logical basis and is largely arbitrary and depends
upon the trial judge's impression
of the case.
[11]
16.
After
having read the papers, listened to the submissions of both parties'
counsel, considered the relevant facts of the case (such
as the
plaintiff's age, her qualifications , employment history, the
injuries sustained and the prognosis in respect thereof, her
past and
future earning capacity and the opinions of the expert witnesses) and
the applicable legal principles and case law, this
Court opines that:
16.1
The plaintiff's reasonable general
damage amounts to R450,000.00;
16.2
It is not prudent to accept that the
plaintiff will be unemployable in future, as she has presented with
the residual physical capacity
to perform sedentary to occasional
light work (although she will not be able to meet the demands of any
of her previous work as
a cook, chef, general worker in the
construction industry or as a domestic worker);
16.3
Scenario 1 should therefore apply with a
5% contingency in respect of the plaintiff's past (pre-accident) past
loss and 15% in respect
of both her pre and past accident future
loss of earnings;
16.4
The plaintiffs loss in earnings amounts
to R974,755.00, based on the actuaries' calculation of the capital
value of the plaintiffs
loss of earnings and applying the said
contingencies, and comprised as follows:
Past pre-accident earnings:
R 216,500- 0,5% = R 205,675
Plus Future pre-accident
earnings: R1,643,700 - 15% = R 1,397,145
Less
Future post-accident earnings: R 738,900- 15% = R
628,065
R
974,755
17.
The
plaintiffs damage amount thus to R1,424,755.00 (R450,000.00 general
damages+ R974,755.00loss of earnings= R1,424,755.00).
ORDER:
18.
The
Court consequently grants an order in terms of the draft order (as
amended to include the said damage amount of R1,424,755.00)
marked
"X".
DB
DU PREEZ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
12
JULY 2019
Counsel
for the plaintiff:
ADV CPJ STRYDOM
Instructed by: BOOYENS
ATTORNEYS
Counsel
for the defendant:
ADV MAGAGANE
Instructed by; MORARE THOBEJANE
INC
[1]
Medico-Legal Report by Dr JH Heymans dated 14 October 2016.
[2]
With reference to
M v Road Accident Fund
(2017) ZAGPPHE 77
and
M v Ratjuli
(19931/2006) [2017] ZAGPPHC 61. In both these
cases, the Court awarded general damage for a C2 fracture in the
amount of R450,000.00
in 2017, which equates to a current value of
R515,000.00.
[3]
First Addendum, para 10.1.1, p 68.
[4]
Second Addendum, first bullet point, p 93 & p 96.
[5]
First Addendum, para 3, p 74.
[6]
Ibid.
[7]
Du Bois (et al),
Willa's Principles of South African Law,
9
th
E d , p 1164 ; Neethling (et al),
Delict,
5
th
Ed ,
pp 230 - 232.
[8]
Van Ghent v Road Accident Fund
[2017] ZAFSHC 187.
[9]
Sandler v Wholesale Coal Suppliers Ltd
1941 AD 194
199 .
[10]
Legal Assurance Co Ltd v Botes
1963 (1) SA 608 (A) 614F
[11]
Van der Plaats v
SA
Mutual Fire
&
General
Assurance Co Ltd
1980 (3) SA 105
(A) 114 - 115.