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[2019] ZAFSHC 134
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Dawood v Road Accident Fund (1913/2014) [2019] ZAFSHC 134 (1 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 1913/2014
In
the matter between:
MINNIE
DAWOOD
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
MOROBANE, AJ
JUDGMENT:
MOROBANE, AJ
HEARD
ON:
29 MAY 2019
DELIVERED
ON
:
1 AUGUST
2019
[1]
This is an action for damages in respect of personal injuries
sustained by the Plaintiff arising out of a motor collision which
occurred on 16 February 2012. The Defendant in terms of the Road
Accident Fund Act 56 of 1996, is obliged to pay for all loss or
damage wrongfully incurred by a victim of an accident in a motor
vehicle.
[2]
The parties had previously settled the merits limited only to the
issue of negligence. The Plaintiff's claim for general damages
was
rejected. At this stage, the only issue to be determined is the
quantum for loss of earning capacity.
[3]
The Plaintiff testified in person and led the evidence of four other
witnesses who testified on his behalf. They are Mr EM Pitse;
Dr PA
Olivier, an Orthopaedic Surgeon; Dr EJ Jacobs an Industrial
Psychologist; and Mrs N Potgieter an Occupational Therapist.
[4]
The Plaintiff testified that he left school at Grade 5 and obtained a
code 8 driver's licence. He was employed as a driver at
a Deboning
Company doing deliveries in and around Bloemfontein. His other duties
were to package meat, load and off-loading boxes
and crates, and to
pull heavy trolleys. On his injuries, he testified that his left
femur was injured and screws were inserted
into his left knee. As a
result, he was unable to properly control the clutch while driving.
In addition, he could not carry heavy
objects or stand for more than
10 minutes. Ultimately, he was dismissed from his employment. The
evidence of the witness is accepted,
except for the parts relating to
his dismissal and his other duties other than that of a driver. The
rest of his testimony was
corroborated by the other witnesses.
[5]
The second witness, Mr EM Pitse stated that he was the Plaintiffs
supervisor at the time of the accident. The Plaintiff was
earning
between R2 000.00 to R2 500 per fortnight. He testified that the
Plaintiff was a driver whose duty was only related to
driving. He
further testified that the Plaintiff was not dismissed, but he was
retrenched by the employer as the business went
into liquidation. I
found the witness was honest and truthful. I have no hesitation to
accept his testimony.
[6]
Dr EJ Jacobs testified that his opinion was based on the reports by
the Plaintiff's orthopaedic surgeon and the occupational
therapist.
His opinion was that the Plaintiffs job as a driver was lighter and
less physical. But it was not sedentary in nature.
He further opined
that the Plaintiff was less productive in his work after the
accident. He recommended that the Plaintiff be regarded
as
unemployable. I have no reason to doubt his evidence and the same is
accepted.
[7]
The fourth witness, Ms Nicolette Potgieter confirmed her report. She
testified that the Plaintiff was a functional driver whose
other
duties were to load and to off-loading medium to heavy deliveries.
She recommended that the Plaintiff should only do sedentary
type of
work. The Plaintiff's back pain was also confirmed by the Defendant's
occupational therapist. She conceded that the Plaintiffs
knee
function was normal as no weight was applied during the assessment.
Her conclusion was that the Plaintiff can still drive,
but it was not
advisable for him to do so. I accept only one part of her evidence.
In addition, I reject her evidence relating
to Plaintiffs alleged
duties other than that of a driver as it was based on incorrect
facts.
[8]
According to Dr Olivier's testimony, the Plaintiff will not be able
to perform strenuous weight bearing activities. He testified
that the
injuries resulted in long-term functional restrictions. As a result,
the Plaintiff will only be able to do light duty
or semi-sedentary
duties. I accept the experts' opinion under the circumstance.
[9]
In the light of the available evidence, the Plaintiff could still
drive although it would be risky for him due to his leg injuries.
Therefore, the Plaintiff has established a
prima facie
case on
a balance of probabilities. The Plaintiff is entitled to a sum of
money which will place him in a position as he would have
been had
the accident not occurred. The parties agreed that the Defendant's
actuary report should be used to determine the quantum.
The actuarial
computation forms a useful basis to assist the Court in the
calculation.
[10]
The principle to be applied in respect of the deduction of
contingencies generally, is set out in
Southern
Insurance Association Ltd v Bailey NO
[1]
that
where method of actuarial computation is adopted a Judge has "a
large discretion to award what he considers right".
[11]
As stated in
AA
Mutual Insurance Association Ltd v Maqula
[2]
the law is settled in
that a trial Court has a wide discretion to award what it considers
to be a fair and adequate compensation
to the injured party for his
bodily injuries and their
sequelae.
[12]
I agree that the contingency deductions of 5% and 15% on uninjured
past and future earnings respectively was correctly applied.
However,
a deduction of 15% should also be applied on the injured future
earnings.
[13]
After applying the contingency deductions, the total loss of earnings
amounts to R513 646.00. I am convinced that the amount
awarded for
damages will be appropriate in this case.
[14]
In the result I make the following order:
1. The Defendant is liable for payment
to the Plaintiff in the amount of R513 646.00 (five hundred and
thirteen thousand six hundred
and forty-six rand) for loss of
earnings;
2. The Defendant is ordered to furnish
to the Plaintiff an undertaking in terms of
section 174(4)(a)
of the
Road Accident Fund Act 56 of 1996
, of the costs of the future medical
expenses of the Plaintiff arising out of injuries sustained by him in
the said motor vehicle
collision.
3. The Defendant is ordered to pay the
Plaintiff's taxed or agreed party and party costs, including but not
limited to the costs
set out hereunder:
3.1
The reasonable qualifying, reservation, attendance fees, costs of
reports and expenses of the experts, including the costs of
witnesses
duly subpoenaed and costs of counsel.
4. The payment provisions in respect
of the aforesaid are ordered as follows:
4.1 Payment of the capital amount
shall be made within 30 days from date of the granting of this order,
directly into the trust
account of the Plaintiff's attorneys of
record by means of electronic transfer;
4.2 Payment of the taxed costs or
agreed costs shall be made within 14 days after the taxation or after
the agreement, and shall
likewise be effected into the trust account
of the Plaintiff's attorneys of record;
4.3 In the event that costs are not
agreed to between the parties, the Plaintiff shall serve a notice of
taxation on the Defendant's
attorneys of record.
4.4 Should payment not be made in
respect of any of the aforesaid amounts on or before the stipulated
date(s), interest will accrue
at 10.25%
per annum.
On
behalf of the plaintiff: Adv. LR Nortier
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of the defendant: Adv. PS Mphuloane
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
[1]
Southern Insurance Association v Bailey NO
1984 (1) SA 98
(A) at
116G
[2]
AA Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805
(A) at
809A-B