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[2019] ZAFSHC 41
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Makhala v Road Accident Fund (508/2017) [2019] ZAFSHC 41 (29 March 2019)
SAFLII
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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
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Case number: 508/2017
In
the matter between:
BAHEDILE
EVELYN MAKHALA
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
CORAM:
DAFFUE, J
HEARD
ON:
26 FEBRUARY 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
29 MARCH 2019
[1]
Plaintiff is a 37 year old female employed as a domestic worker.
On 7 February 2016 she was seriously
injured in a motor vehicle
collision, inter alia sustaining a pelvis fracture and a ruptured
bladder. She returned to work
after about six months and is
still being employed by Mr and Mrs Gerber and their major son who is
staying with them.
[2]
On 22 August 2017 defendant fully conceded the merits.
Thereafter the matter was set down for
hearing of the
quantum
of plaintiff’s claim on 26 and 27 February and 1 March 2019.
[3]
On the first day of the
quantum
trial the court was informed
that an agreement was reached in respect of past medical and hospital
costs, past loss of income and
general damages. The RAF also
agreed to provide the customary undertaking in terms of s 17(4) of
the RAF Act.
[4] It
turned out later, and after hearing of evidence, that defendant’s
counsel did not have instructions
to settle past medical and hospital
costs. No evidence was led in this regard, but plaintiff
decided to abandon this part
of the claim, the reason being that she
had received treatment in a state hospital free of charge.
[5]
The only issue to be adjudicated was the claim for future loss of
income, inclusive of the contingency percentage
to be applied.
In order to prove the claim, Mr Greyling who appeared for plaintiff,
called the industrial psychologist, Mr
B Moodie, to testify. By
agreement the following documents were also handed in:
(a)
the joint minutes of the occupational therapists, Mesdames Smit and
Moagi as exhibit A,
(b)
the joint minutes of the orthopaedic surgeons, Drs Oelofse and
Moloto, as exhibit B,
(c)
the joint minutes of the industrial psychologists, Mr Moodie and Ms
Kheswa as exhibit C and
(d)
two reports of the actuary, Mr Johan Sauer, as exhibits D and E
respectively.
[6]
During the testimony of Mr Moodie it soon became clear that he
probably based his version on assumptions
that could not be accepted
as correct. Therefore, Mr Greying wisely decided to call Mr
Gerber Jr, plaintiff’s employer,
as a witness. Plaintiff
attended the court proceedings, but did not testify. After
plaintiff’s case was closed,
defendant closed its case without
calling any witnesses.
[7]
I
return to Mr Moodie’s evidence.
He
testified with particular reference to the joint minutes between him
and Ms Kheswa. They agreed that if plaintiff could
obtain work
for the additional days that she did not work pre-morbid, she would
have earned the minimum wage of R3 500.00
per month pre-morbid.
[8]
Mr Moodie did not impress me as a witness. I do not understand
why he insisted on relying on the
minimum wage of R3 500.00 per
month pre-morbid in respect of full-time employment whilst he knew
that for many years plaintiff
worked two days per week only, to wit
on Tuesdays and Fridays. In fact, he stated that her pre-morbid
income should be calculated
at R3 750.00 per month or R45 000.00
per year. She worked for a short period, which ended several
months before
the collision, on Saturdays for friends of the Gerbers,
Mr and Mrs Gous. This couple passed away according to the
evidence
of Mr Gerber Jr. Since 2004, when plaintiff started to
work for the Gerbers according to the information provided to Mr
Moodie,
she was not able to obtain work for the extra days of the
week, save for the short period mentioned
supra
.
Plaintiff’s employment record was not in dispute. She
either did not want to commit herself to full-time employment,
or she
faced the economic realities in this country with its high
unemployment figures.
[9] Mr
Moodie testified that he had a telephonic conversation with Mrs
Gerber, the mother of Mr Gerber Jr, on
the morning of the trial and
she had conveyed to him that she was sympathetic towards plaintiff
and this was the reason why she
was kept in her employ. The
witness clearly tried to indicate that in the event of a successful
claim, Mrs Gerber’s
sympathy might vanish into thin air.
His version is in direct contrast with that of plaintiff’s
employer. Mr
Gerber Jr testified that his mother suffers from
dementia and she would repeat whatever words are put in her mouth.
Mr Gerber
Jr regarded plaintiff as a fantastic employee.
Although she takes longer to complete her daily tasks than prior to
her injuries,
he by no means suggested that her employment might be
terminated in the event of a successful claim. He moved back to
his
parental home a few years ago to assist his elderly and sick
parents.
[10] Mr
Moodie insisted that plaintiff’s pre-morbid income should be
postulated at the minimum wage for a five
day week in the amount of
R3 500.00 contrary to the
de facto
position of several
years in terms whereof plaintiff earned R2 381.00 pre-morbid.
Mr Moodie conceded in cross-examination
that plaintiff could not get
full-time employment since 2004; therefore for a period of 12 years
pre-morbid. He stated that
he and his colleague agreed that if
plaintiff was to lose her current employment she should be considered
unemployable.
[11]
Mr Gerber Jr testified that as far as he could remember plaintiff had
been employed by his parents
from 2012. He did not stay with
them at that stage or earlier. He regarded her as an
“
excellent
worker”
and
he would have recommended her to other prospective employers.
He would not terminate her employment even if she obtains
compensation from the defendant. She is still able to do the
household chores, although she is
“
battling”.
In
the past she would be through with her work at 15h00, but now she has
to work until 18h00. Presently she works Fridays
only.
His testimony about plaintiff’s ability to work is contrary to
the version of the occupational therapists in
their joint minutes.
[12] I accepted
two actuarial reports of Mr Sauer handed up from the bar by agreement
as exhibits D and E respectively. The
first report is based on the
minimum wage of R3 500.00 per month plus a food allowance,
whilst the second report is based
on the assumption that the
plaintiff’s pre-morbid income was R200.00 per week only.
The first report is based on the
assumption that the amount of
R2 381.00 would increase in monetary terms to the amount of R3
500.00 which is at present the
minimum wage for a full-time
employee. Obviously, the second report is factually incorrect
and does not correspond with the
agreed pre-morbid earnings of
R2381.00 plus food allowance per month. In the first instance
the future loss of income is
calculated as R635 234.00 based on
10% and 50% contingency deductions in respect of pre-morbid and
post-morbid income respectively.
The 50% contingency was
arrived at to allow for
“
increased
employment vulnerability, labour incapacity, uncertainty, possible
long periods of unemployment and early retirement.”
In
the second instance the future loss is calculated in the amount of
R84 821.00, after applying the same contingencies.
[13] Mr
Greyling requested leave to file written heads of argument as he felt
uncomfortable to argue the matter there
and then. Such leave
was granted to both parties on the basis that the court would
adjudicate the matter without allowing
a further opportunity to oral
argument.
[14] I
accept, as Mr Mazibuko submitted on behalf of the defendant, that a
court should strive to be fair to both parties
when damages are
awarded. Sympathy for a plaintiff should not influence a
court’s judgment.
[15] Mr
Mazibuko submitted that Mr Sauer incorrectly made allowance for a
contingency deduction of 50%. He should
have allowed 15% only.
If that was the case, the plaintiff’s claim would still be in
excess of R500 000.00 and
much higher than the amount of
R400 000.00 Mr Mazibuko submitted should be awarded for future
loss of income. It is
evident that Mr Mazibuko accepted that Mr
Sauer’s second scenario as set out in exhibit E is factually
incorrect.
I am of the view that a higher contingency
deduction should be allowed than that submitted by Mr Mazibuko,
bearing in mind the
agreement between the experts relating to
plaintiff’s vulnerability.
[16] Mr Greyling
submitted that, based on the reports and joint minutes of the experts
referred to, plaintiff’s post-morbid
income should be regarded
as zero. In making this submission he disregarded the reports
of his own expert, Mr Sauer, and
in particular exhibit D. Mr
Greyling also incorrectly submitted that plaintiff’s pre-morbid
income should be calculated
at R3 500.00 per month. The
actuary correctly calculated the pre-morbid income in the amount of
R2 381.00 plus the food
allowance and valued same at the present
monetary terms to be R3 500.00. Eventually Mr Greyling
submitted that an order be
made in terms of the actuary’s
calculation of R635 234.00 in respect of future loss of income.
I do not agree
with this conclusion for the reason set out in the
next paragraph.
[17]
Plaintiff was 35 years old when she sustained her injuries, leaving
her with a pre- and post-morbid retirement
age of 65 years based on
the assumptions made by Mr Sauer who accepted Mr Moodie’s
report. In my view there is no acceptable
reason why the
actuary accepted a 10% contingency in the case that the accident had
not happened. Even if the so-called sliding
scale of .5% per
year is used as a yardstick, a contingency of 15% should have been
applied in this regard. That being the
case, the amount of
R793 013.00 in respect of pre-morbid future income should be
reduced to R748 957.00. I deducted
R132 169.00 (15%)
instead of R88 113.00 (10%) from R881 126.00 to arrive at
this figure. The actuary’s
50% contingency deduction in
respect of post-morbid income in the amount of R157 779.00 is
too generous in favour of plaintiff.
In my view a 30% deduction
should be allowed, bearing in mind plaintiff’s ability to work
over the last three years since
the accident. Therefore the
amount of R94 667.00 (30%) should be deducted from R315 557.00
to arrive at the sum
of R 220 890.00. The amount to be
awarded for future loss of income is R748 957.00 less
R220 890.00, to wit
R528 067.00
[18] In
adjudicating plaintiff’s claim I have not lost sight of the
joint minutes of the orthopaedic surgeons and the
occupational
therapists. I accept that plaintiff is an unfair competitor in
the labour market. Her productivity has
been compromised and
she should not be working more than two days per week. Her
employer must be sympathetic and allow her
time to take rest breaks.
She must be accommodated in a permanent light duty working
environment, and if so accommodated,
she will be able to work until
the age of sixty years. The factual matrix is clear.
Plaintiff is still employed for
one day per week and she is regarded
as an excellent worker although her abilities have been compromised.
She should be fairly
compensated, but not excessively.
[19] The amounts to
be awarded for general damages and past loss of income have been
agreed to in the sums of R400 000.00
and R50 000.00
respectively. These amounts together with the sum of
R528 067.00 equals R978 067.00 and this
globular amount
will be awarded as reflected in the orders contained in the next
paragraph.
ORDERS:
[20]
Consequently the following orders are made:
1.
The defendant shall pay to plaintiff the sum of R978 067.00 (Nine
hundred and seventy eight thousand
and sixty seven Rand), this amount
to be paid into the plaintiff’s attorney’s trust account,
details which are as follows:
ACCOUNT HOLDER :
VZLR INC
BRANCH
: ABSA
BUSINESS BANK HILLCREST
BRANCH CODE
: 632005
TYPE OF ACCOUNT :
TRUST ACCOUNT
ACCOUNT NUMBER: [….]
2.
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 on 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, until the date of
payment.
3.
The defendant shall furnish the plaintiff with an undertaking, in
terms of Section 17(4)(a) of Act 56
of 1996, in respect of future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or the rendering of
a service or supplying of goods of a
medical and non-medical nature to the plaintiff (and after the costs
have been incurred and
upon submission of proof thereof) arising out
of the injuries sustained in the collision which occurred on
7
February 2016
.
If the defendant fails to furnish the undertaking to the plaintiff
within 30 (thirty) days of this order, the defendant shall
be held
liable for the payment of the additional taxable party and party
costs incurred to obtain the undertaking.
4.
The defendant shall pay the plaintiff’s taxed or agreed party
and party costs, in the above mentioned
account for one set of
attorneys only, 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;
4.3
The costs of obtaining all expert medico legal-, actuarial, 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 finalize their reports;
4.5
The reasonable taxable qualifying, preparation, reservation and
attendance fees of
all experts, including the costs of consultation
fees with the legal teams, if any;
4.6
The reasonable traveling- and accommodation costs, if any, incurred
in transporting
the plaintiff to all medico-legal appointments;
4.7
The reasonable costs for an interpreter’s attendance at the
medico legal appointments
for translation of information, if any;
4.8
The above-mentioned payment with regard to costs shall be subject to
the following
conditions:
4.8.1 The plaintiff
shall, in the event that costs are not agreed, serve the notice of
taxation on the defendant’s attorney
of record; and
4.8.2 The plaintiff shall
allow the defendant 14 (fourteen) calendar days to make payment of
the taxed costs;
5.
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.
J
P DAFFUE, J
On
behalf of plaintiff:
Adv P Du P Greyling
Instructed by: VZLR Inc
c/o Du Plooy Attorneys
Bloemfontein
On
behalf of defendant: Adv M
S Mazibuko
Instructed by:
Maduba Attorneys
Bloemfontein