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[2019] ZAFSHC 80
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Moreki v Road Accident Fund (2454/2017) [2019] ZAFSHC 80 (18 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
2454/2017
In
the matter between:
MATSHIDISO
MARIE MOREKI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
19
& 20 MARCH 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
18 JUNE 2019
[1]
At the commencement of this trial the parties handed in a draft order
in the following terms:-
“
BY
AGREEMENT BETWEEN THE PARTIES, IT IS ORDERED THAT:
1.
1.1
The Defendant is liable to pay 90% (Ninety percent) of the
Plaintiff's proven or agreed
damages;
1.2
The Defendant is to pay the Plaintiff's attorneys the sum of
R366 000.00
(
Three hundred and
sixty thousand rands__________________)
after apportionment;
The Plaintiff's
Attorney's trust account details are as follows:
ACCOUNT HOLDER:
VZLR
INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE:
632005
TYPE OF ACCOUNT:
TRUST
ACCOUNT
ACCOUNT NUMBER:
[….]
1.3
In the event of default on the above payment, interest shall accrue
on such outstanding
amount at 10% (at the mora rate of 3.5% above the
repo rate on the date on this order, as per the Prescribe 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.
2.
The Defendant to pay
the Plaintiff's taxed or agreed party and party costs, in the above
mentioned account, for the instructing-
and correspondent attorneys,
which costs shall include, but not be limited to the following:
2.1
The fees of Senior Junior Counsel;
2.2
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;
2.3
The costs of obtaining documentation / evidence, scans, considered by
the expert(s) to finalise
their reports;
2.4
The reasonable taxable qualifying, preparation, reservation and
attendance fees of all experts,
including the costs of consultation
fees with the legal teams, if any;
2.5
The reasonable traveling- and accommodation costs, if any, incurred
in transporting the
Plaintiff to all medico-legal appointments;
2.6
The reasonable costs for an interpreter's attendance at court and at
the medico legal appointments
for translation of information, if any;
2.7
The above-mentioned payment with regard to costs shall be subject to
the following conditions:
2.7.1 The
Plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the Defendant's attorney
of record; and
2.7.2 The
Plaintiff shall allow the Defendant 14 (fourteen) calendar days to
make payment of the taxed costs;
2.7.3 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
made it an order of Court.
[2]
The only issue before for the determination is the past and future
loss of earnings. The plaintiff was represented
by Ms. K Peterson and
Mr. S Motloung appeared on behalf of the defendant.
[3]
The joint minutes between Drs. Oelofse and Bogatsu were handed in and
marked Exhibit “A”.
Both experts who are Orthopaedic
Surgeons agreed on the nature of the plaintiff’s injury and
provisions to be made for treatment.
They also agreed that the injury
had resulted in profound impact on the plaintiff’s amenities of
life and will continue to
do so in the future. Of importance they
concluded that she must be accommodated in a light sedentary working
environment as she
will never be able to do physical labour anymore.
In fact they hold the view that given her expertise, level of
education and the
injury, she will most probably never work again.
[4]
The Occupational Therapists Mesdames Jansen and Moagi also compiled
the joint minutes which were handed
in as Exhibit “B”.
Their conclusion as per their findings is recorded on page 3
paragraph 7 as follows:-
“
7.1.
The plaintiff lacks the physical capacity to meet the full range
physical demands of light, medium, heavy
and very heavy category work
because of her walking, standing, forward bending and crouching
limitations which in turn restricts
frequent weight and handling.
7.2.
Considering the physical demands of her pre-accident
vocation/educational abilities,
we conclude
that the plaintiff
lacks the physical capacity to function in this capacity at the same
pre-accident level.
7.3.
We agreed that Ms. Moreki’s physical capacity would meet the
physical requirements for
occupations that fall with in sedentary to
static light / light types of work category with minimal mobility and
dynamic working
posterior real patents demands.
7.4.
Deference is made to the Industrial Psychologist command on loss of
earning incurred by the plaintiff
since the accident and future loss
of earnings with early retirement foreseen.”
[5]
The
plaintiff was assessed inter alia by Industrial Psychologist namely
Mr. Ben Moodie and Ms. Moipone Kheswa respectively. They
too compiled
the joint minutes handed in and marked Exhibit “C”. Based
on their findings they agreed that:-
“
7.1.
The plaintiff lacks the physical capacity to meet the full range
physical demands of light, medium, heavy
and very heavy category work
because of her walking, standing, forward bending and crouching
limitations which in turn restricts
frequent weight and handling.
7.2.
Considering the physical demands of her pre-accident
vocation/educational abilities, we
conclude
that the plaintiff
lacks the physical capacity to function in this capacity at the same
pre-accident level.
7.3.
We agreed that Ms. Moreki’s physical capacity would meet the
physical requirements for
occupations that fall with in sedentary to
static light / light types of work category with minimal mobility and
dynamic working
posterior real patents demands.”
[6]
Exhibit
“D” is the Actuarial Certificate and Report by an Actuary
Johan Sauer. According to the Actuarial Certificate
calculated taking
into consideration 20% contingency differential, the total loss of
earnings is R 124 758.00. It is this
amount that counsel for the
plaintiff urged me to award taking into consideration 10%
apportionment. In his submission counsel
for the defendant argued
that there was no evidence placed before me for contingencies. This
submission is unsound. The reports
and joint minutes handed in per
agreement between the parties makes provision for the application of
contingencies. This is an
aspect that I must make a ruling on it.
[7]
The quantification of the loss of income is a complicated task. The
courts have accepted that the most
reliable manner is to use
mathematical calculations grounded in evidence based assumptions.
This is essentially how the actuaries
do their calculations which is
better than any guesswork. The approach of the actuary clearly
explained that he applied the value
of the defendant’s cap
published before the date of the accident. This was done without
inflationary increases to the annualized
loss of income in each year
of the general contingencies deductions.
[1]
I have no reason(s) to reject the calculations of the actuary. I
accept them.
[8] I
make the following order:-
8.1. The
defendant must pay the plaintiff the sum of R 112 282.00.
8.2. Interest
at the rate of 10.25 % calculated from fourteen (14) days of the date
of this order.
8.3.
Defendant to pay the taxed or agreed party and party costs.
M. A. MATHEBULA, J
On
behalf of Plaintiff:
Adv. K.
Peterson
Instructed
by:
VZLR
Inc.
c/o Du
Plooy Attorneys
Bloemfontein
On
behalf of Defendant:
Adv. J. S. Motloung
Instructed
by:
Maduba Attorneys
Bloemfontein
/roosthuizen
[1]
Road Accident Fund v Sweatman
(162/2014)
[2015] ZASCA 22
;
[2015] 2 All SA 679
(SCA)