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[2019] ZAFSHC 31
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T M v Road Accident Fund (833/2017) [2019] ZAFSHC 31 (5 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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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 DB […]
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.