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[2019] ZAFSHC 23
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T M v Road Accident Fund (833/2017) [2019] ZAFSHC 23 (20 February 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
.
833/2017
In
the matter between:
T
M Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
BY
:
I
VAN RHYN AJ
HEARD
ON
: 19 AND 20
FEBRUARY 2019
DELIVERED:
5 APRIL 2019
INTRODUCTION:
[1]
The plaintiff instituted action against the defendant
in terms
of the provisions of the Road Accident Fund Act No 56 of 1996 (“the
Act”) for
the payment of R1,429,135.00 in
damages arising from an incident which took place on 17 March 2016.
A motor vehicle with registration
letters and -number […]
GP, driven by Mr. Hlalele (the insured driver) failed to slow down
and stop at the stop sign in
Maeli Street Bohlokong, Bethlehem and
collided with the plaintiff who was crossing the street. The
plaintiff was a pedestrian at
the time of the incident.
The
plaintiff’s action is based on the negligence of the insured
driver.
[2] On the 27
th
February
2018 Bokwa AJ ordered that the merits and quantum of the plaintiff’s
claim are separated in terms of the provisions
of Rule 33(4) and the
issue of quantum to be adjudicated upon at a later stage. By
agreement between the parties it was further
ordered that the
defendant is liable to pay 80% (eighty percent) of the plaintiff’s
proven or agreed damages. The defendant
was ordered to furnish the
plaintiff with an undertaking in terms of the provisions of s
17(4)(a) of the Act, limited to 80% in
respect of future
accommodation of the plaintiff in a hospital or the rendering of
future medical treatment arising from the injuries
sustained in the
motor vehicle accident.
[3] This matter was set down for
hearing on 19, 20 and 22 February 2019 to adjudicate upon the
remaining issues regarding the quantum
of the plaintiff’s claim
in relation to:
a) past medical and hospital expenses;
b) past loss of income;
c) estimated future loss of income:
and
d) general damages.
[4]
On 19 February 2019 the matter stood down with the view of a possible
settlement of the plaintiff’s claims. However, on
the following
morning the defendant rejected the plaintiff’s “ Serious
Injury Assessment “ and the trial proceeded
on
the
plaintiff's claim for past loss of income and future loss of earnings
or earning capacity. The plaintiff did not adduce any
evidence
regarding her claim for past medical and hospital expenses and
abandoned her claim in this regard.
THE
INJURIES SUSTAINED BY THE PLAINTIFF.
[5]
The plaintiff was 34 years old at the time of the motor vehicle
accident. She was transported to the Phekolong Hospital
subsequent to
the incident. The following morning she was transferred to the
Dihlabeng Provincial Hospital for further intervention.
She sustained
a fracture to her right proximal tibia and fibula and a fracture to
her 5
th
metatarsal in her right foot. She was taken to
theatre on 22
nd
March 2016 for an Open Reduction Internal
Fixation of the tibia and the 5
th
metatarsal. Whilst in
hospital she received physiotherapy treatment in the form of
strengthening exercises and mobility training
with the aid of
crutches. She was discharged from hospital on 23 March 2016. She
continued to mobilize with two crutches for approximately
three
months and then started using only one crutch. By November 2016 the
plaintiff was mobilizing independently.
[6]
Several expert notices were filed by both parties in terms of the
provisions of Rule 36 (9)(a) and (b). Joint minutes in terms
of the
provisions of Rule 35 (9) were filed by the following medical experts
and handed up as Exhibits “A”, “B”
and “C”
respectively:
(a) Orthopaedic Surgeons, Dr L F
Oelofse and Dr. T S Bogatsu dated 29 August 2018;
(b) Occupational Therapists, S Gouws
and S Moagi dated 18 January 2019;
(c) Industrial Psychologists, Mr. Ben
Moodie and Ms M Kheswa dated 13 February 2019.
[7]
The Orthopaedic Surgeons agree that the plaintiff suffered from acute
pain during the first two weeks after the accident. During
August
2018 she was still experiencing pain with a profound impact on her
amenities of life. Dr Oelofse opines that the plaintiff
is an unfair
competitor in the open labour market and must be accommodated in a
light duty and sedentary working environment. Due
to her injuries the
plaintiff will not be able to do physical labour. In the event that
the plaintiff is able to obtain employment,
provision must be made
for 5 (five) years early retirement. Dr Bogatsu however
disagreed and stated that the plaintiff’s
productivity and
retirement are not affected by the injuries that she sustained. Both
Orthopaedic Surgeons agreed to defer to the
opinion of an
Occupational Therapist and an Industrial Psychologist.
[8]
The Occupational Therapists indicated that the plaintiff gave
different versions as to her school education and therefore
uncertainty
existed whether the plaintiff completed Grade 10 or
indeed completed Grade 11. The Industrial Psychologists investigated
this aspect
and agree that the plaintiff progressed up to Grade 11
but failed this grade and then dropped out of school. She has no
further
formal or informal qualifications.
[9]
The Occupational Therapists agree that the plaintiff will experience
reduced occupational choices in the open labour market
compared to
able bodied, same age peers and she has therefore become an unequal
competitor in the open labour market. The plaintiff
will benefit from
optimum pain management, rehabilitation of the right lower limb,
training and energy conservation techniques.
The pre-accident
employment information provided further uncertainties as the
plaintiff indicated to Mrs Gouws that she was employed
as a packer
(groceries) at a till point at Shoprite Checkers prior to the
accident while she indicated to Mrs Moagi that
she worked as a
seasonal farm worker. Again the Industrial Psychologists investigated
the inconsistency and concluded that the
plaintiff initially entered
the open labour market as a farm worker and earned a salary of
R1000.00 per month. During February
2015 she obtained employment at
Shoprite in Bethlehem as a packer and earned an income of R468.99 per
week.
POST-ACCIDENT
EMPLOYMENT.
[10]
The experts agree that the plaintiff was unable to return to her
pre-accident employment due to the physical limitations resulting
from the injuries sustained in the accident. The plaintiff has been
unemployed since. The Occupational Therapists agree that the
plaintiff presented with reduced standing and walking endurance and
that she will struggle to meet the demands of excessive or
prolonged
walking and standing. She is best suited to meet the demands of
sedentary work with aspects of light work which does
not have
excessive mobility demands. She will never be able to do physical
labour. Noting the opinions of the experts as well as
the plaintiff’s
level of education and her work experience, the Occupational
Therapists concluded that the plaintiff will
not qualify for work
which is of sedentary in nature and that the plaintiff can thus, for
all practical reasons, be regarded as
unemployable in the open labour
market.
[11]
The plaintiff presented the evidence of Mr Johan Sauer, an actuary
practising as such at Brooklyn, Pretoria. The actuary calculated
the
loss of earnings on the basis of loss according to Mr. Moodie and as
well as an alternative calculation on the basis proffered
by Ms
Kheswa. It is therefore not in dispute that the plaintiff is unable
to return to her pre-accident work due to the physical
limitations
resulting from the injuries she sustained, but the issue in dispute
concerns the pre-accident income potential of the
plaintiff and the
contingencies to be applied. Mr. Moodie opines that if the plaintiff
continued working as a farm worker the prescribed
minimum wages as
set out by the Department of Labour must be taken into consideration
when calculating her future loss of earnings.
If the plaintiff
continued working as a packer her income would have been
approximately R4 365.00 per month, slightly more
than a farm
worker. Ms Kheswa stated that calculating the plaintiff’s loss
of income on the basis of a full time packer might
not be fair as she
was a casual employee during the festive season and she was a farm
worker from March to September.
[12]
Counsel on behalf of the plaintiff contend that, due to the
conflicting opinions of the Industrial Psychologists regarding
the
pre-accident income potential of the plaintiff, the opinion of Mr
Moodie, that the average income between a farm worker and
a packer
should be used to calculate the pre-accident income potential of the
plaintiff. Ms Kheswa proposed that the pre-accident
income potential
of the plaintiff should be calculated on the basis of a farm worker.
It is not disputed that the plaintiff worked
as a packer at Shoprite
Checkers in Bethlehem from February 2015 until January 2016,
approximately two months prior to the accident
occurred in March
2016.
[13]
Counsel on behalf of the defendant agree that the opinion of Mr
Moodie is considerate of the fact that the plaintiff submitted
proof
of her income as a packer and should therefore be the preferred
opinion under the circumstances.
[14]
On the basis that the plaintiff’s last employment prior to the
accident was as a packer in Bethlehem, I am convinced
that the
opinion of Mr Moodie is more pragmatic under the prevailing
circumstances and I therefore agree with the argument that
the
calculation of the plaintiff’s future loss of income should be
calculated as proposed by Mr Moodie.
CONTINGENCIES.
[15]
In
Southern
Insurance Association v Bailey NO
,
[1]
Nicholson JA held as follows concerning computation of future loss of
earnings as a component of delictual damages: “
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.”
[16]
Contingencies are the “
hazards
of life that normally beset the lives and circumstances of ordinary
people”
[2]
and should therefore, “
by
its very nature, be a process of subjective impression or estimation
rather than objective calculation”
[3]
.
Contingencies for which allowance should be made, would usually
include the following:
(a) the possibility of illness which
would have occurred in any event;
(b) inflation or deflation of the
value of money in future; and
(c) other risks of life such as
accidents or even death, which would have become a reality, sooner or
later, in any event.
[4]
[17]
In
Sandler
v Wholesale Coal Suppliers Ltd
[5]
Watermeyer JA held as follows:
"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".
[6]
In the Quantum Yearbook
[7]
the learned author points out that there are no fixed rules as
regards general contingencies. However, he suggests the following
guidelines:
"Sliding scale: yz% per year
to retirement age, i.e. 25% for a child, 20% for a youth and 10% in
the middle age…
Normal contingencies: The RAF
usually agrees to deductions of
5%
for past loss and 15% for
future loss, the so-called normal contingencies.”
[18]
Mr Greyling, who appeared for the plaintiff, submitted that
contingencies should be applied at the rate of 5% in respect of
past
loss and 12½% in respect of future loss of earnings, being the
average between 10% and 15% as initially calculated
by the
actuary. Counsel on behalf of the defendant conceded that the average
of 12½ % will be fair under the circumstances.
[19]
The plaintiff was 34 years of age at the time of the accident. The
only work experience she has is as a farm worker and a packer.
She
suffered from hypertension since 2014. She experiences increased pain
in her right leg when sleeping and suffers from pain
in her leg and
foot when standing for prolonged periods and during cold weather. She
will suffer a loss of income due to sick leave
for future treatment
and surgery should she be able to obtain employment.
She
has three children, the youngest is 3 years old
and
her two sons are 7 and 16 years of age. She is not married but
involved in a long term relationship. The plaintiff still suffers
from pain in her right lower leg, ankle joint and foot which caused a
profound impact on her productivity and working ability and
will
continue to do so in future. With the plaintiff’s level of
education, area of experience as well as the effects of the
injuries
it will be very difficult for her to gain future employment. I also
take note of the unemployment rate of approximately
40% prevailing in
South Africa.
Having
regard to all the circumstances of this matter I am of
the
view
that a
contingency
factor of 12½% should be applied.
[20]
The defendant is liable to pay 80% (eighty percent) of the proven or
agreed damages. The plaintiff’s past loss
of earnings is
calculated at an amount of R111 482.00 and an amount of
R839 807.50 for future loss of earnings. The plaintiff
should
therefore be compensated in the total amount of R 761 031.60 in
respect of her loss of earnings, after apportionment.
This amount is
reflected in the draft order submitted by the plaintiff’s
counsel, which I intend to make an order of Court.
[21]
ORDER
:
1.
The defendant is ordered to compensate the plaintiff in the amount of
R761 031.60 (Seven hundred and sixty One Thousand
and Thirty One
Rand and sixty Cents).
2.
Payment of the amount referred to in paragraph 1 above is to be made
in the plaintiff attorney’s trust account with the
following
details:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH CODE:
632005
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
[…]
3.
In the event of default on the above payment, interest shall accrue
on such outstanding amount at 10.25% (at the mora rate of
3.5% above
the repo rate on the date of this order, as per the
Prescribed Rate
of Interest Act, 55 of 1975
, as amended) per annum calculated from
due date, as per the
Road Accident Fund Act, of payment
;
4.
The Defendant is+ to pay the Plaintiff’s taxed or agreed party
and party costs into the above mentioned account up to and
including
the trial dates of 19 and 20 February 2019, for the instructing and
correspondent attorneys, which costs shall include
but not be limited
to the following:
4.1 All reserved costs to be
unreserved, if any;
4.2 The fees of Senior Junior Counsel
inclusive of but not limited to counsel’s full, reasonable day
fee and fees for preparation
and the preparation of heads of
argument;
4.3 The costs of obtaining all expert
medico-legal and any other reports of an expert nature which were
furnished to the Defendant
and/ or it’s experts;
4.4 The costs of obtaining
documentation/evidence, scans, considered by the expert(s) to
finalise their reports;
4.5 The reasonable taxable qualifying,
preparation, reservation, travelling and attendance fees of all
experts, including the costs
of consultation fees with the legal
teams, if any,
4.6 The reasonable travelling- and
accommodation cost, if any, incurred in transporting the Plaintiff to
all medico-legal appointments;
4.7 The reasonable costs for an
interpreter’s attendance at court at the medico legal
appointments for translation of information,
if any;
4.8 The above mentioned payment with
regard to costs shall be subjects to the following conditions:
4.8.1 The Plaintiff shall, in the
event that the costs are not agreed, serve the notice of taxation on
the Defendant’s attorneys
of record, and
4.8.2 The Plaintiff shall allow the
Defendant 14 (Fourteen) calendar days to make payment of the taxed
costs;
4.8.3 In the event of default on the
above payment, interest shall accrue on such outstanding amount at
the prescribed mora rate
on the date of taxation/settlement of the
bill of cost, as per the
Prescribed Rate of Interest, Act, 55 of
1975
, as amended, per annum, calculated from due date until the date
of payment.
_______________________
I
VAN RHYN AJ
On
behalf of the Plaintiff: Adv. P Greyling
Instructed
by: VZLR Inc. c/o Du Plooy Attorneys
On
behalf of the Defendant: Adv. K N Peterson
Instructed
by: Maduba Attorneys
[1]
1984 (1)
SA 98
(AD)
at
113G.
[2]
Corbett & Buchanan, The Quantum of Damages, Vol II 360 at 367.
[3]
Shield Ins. Co. Ltd v Booysen
1979 (3) SA 953
(A) at 965G-H.
[4]
Corbett & Buchanan, The Quantum of Damages, Vol I at 51.
[5]
1941 AD
194.
[6]
Sandler v Wholesale Coal Suppliers Ltd at 199.
[7]
Robert Koch, 2017 Edition, p 126.