About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 157
|
|
TN v Road Accident Fund (3877/2017) [2019] ZAFSHC 157 (6 September 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
3877/2017
In
the Matter between:
T
N
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
CORAM:
POHL,
AJ
HEARD
ON:
3,
4 and 6 SEPTEMBER 2019
JUDGMENT
BY:
POHL,
AJ
DELIVERED
ON:
6
SEPTEMBER 2019
INTRODUCTION:
[1]
This is an action by the Plaintiff against the Road Accident Fund.
The Plaintiff claims compensation from the defendant
as a result of
injuries he sustained when he, as pedestrian, was run
over by a motor vehicle on 6 May 2016.
[2]
The merits of the matter had been settled on the basis that the
Defendant is liable for 90% of the Plaintiff’s proven
or agreed
damages. This agreement was made an order of Court on 14 August
2018. This Court is thus now called upon
to decide the quantum
of the plaintiff’s claim and thus the amount to be paid to him
by the Defendant.
[3]
The sub-heads of damages to be decided by this Court are the
following: Future medical expenses, past and future
loss
of income and general damages.
THE
EVIDENCE
[4]
Except for two joint minutes, only the Plaintiff presented any
evidence. The plaintiff himself testified,
his industrial
psychologist, Mr Ben Moodie testified and the actuary Mr Johan Sauer
also testified. The first joint minute
is a joint minute
between Dr Oelofse and Dr Moloto, the respective orthopaedic
surgeons of parties. This minute serves before
this Court as Exhibit
“A”. The second joint minute is a joint minute
between H Meyer an S Moagi, the respective
occupational
therapists of the parties. This minute serves before this Court as
exhibit “B”. The Defendant closed
its case without
calling any witnesses.
[5]
From the joint minute, Exhibit “A”, it
appears that the orthopaedic surgeons are in agreement that the
Plaintiff suffered from a left knee injury in the form of a patella
fracture, which was treated by way of an internal fixation.
They however furthermore agree that the Plaintiff sits with a united
patella fracture, but with painful instrumentation,
a
possible meniscus injury and atrophy of the muscles. In
the premises they agree that the Plaintiff is thus now an
unfair
competitor in the open labour market. They agree that he must
be accommodated in a light duty and sedentary working
environment and
that he should never be allowed to do physical labour.
[6]
From the joint minute, Exhibit “B”, it
appears that the occupational therapists are in agreement that,
with regards to the Plaintiff’s residual work capacity,
that he is at present not suited for occupations that fall
within the
full range of light, medium, heavy to very heavy type of
work. The reason being the injury he sustained
to his knee.
They note that the Plaintiff’s pre-accident work tasks as
Chef, fell within the category of light
to medium range of
work, which requires pain free optimum limb function and
strength. They thus agree that his workability
for his
pre-accident work tasks are reduced to the extent that he is no
longer an equal competitor in the open labour market.
They
conclude that the Plaintiff will only be capable of sedentary work,
with some aspects of light work with minimal mobility
demands.
[7]
The Plaintiff testified that after the accident and due to the
injuries he sustained, he is no longer able to do the work
he
had done as a chef before the accident. He testified to the
effect that the work of a chef requires you to stand for long
periods
and he is not able to do that anymore. According to him,
he went back to work after a few months. He
was accommodated by
his employer with less strenuous work. He however lost his work
because of the fact that he apparently
stole food from his employer.
He testified to the effect that he earned virtually the same salary
from this employer when
he came back after the accident. He
further testified that he went to school, but was not able to
pass grade 10.
He has no other qualifications.
[8]
The industrial psychologist, Mr Ben Moodie’s evidence in
essence was that, with regards to the Plaintiff’s
pre-accident
income potential, in general, it can be accepted that
individuals that holds a below grade 12 level of
school
qualification, such as the Plaintiff, enter the open labour
market in an unskilled capacity, progressing with
time and
experience to the semi-skilled category. He would have reached
the pinnacle of his career between the average of
the median and
upper quartile of the semi-skilled category of work, i.e
R116 000.00 per annum.
[9]
With regards to the Plaintiff’s post-accident income
potential, Mr Moodie emphasizes that due to the Plaintiff’s
physical limitations as a result of the injuries, coupled with
the fact that he has a below grade 12 school qualification,
he
will not qualify for typical light work. He opines that the
type of income that he will be able to earn will be on par
with the
pre-accident scenario, but with the difference that
post-accident his chances of obtaining and sustaining suitable
employment are very slim. With his physical and scholastic
limitations, he now has to compete with a large number of
able
bodied job seekers.
GENERAL
LEGAL PRINCIPLES:
[10]
As a point of departure, it must be remembered that this case
as all other cases, can only be decided on the evidence
that
was presented to the Court. In this case, only the
Plaintiff presented any evidence in Court, except for
the joint
minutes.
[11]
In terms of South-African law, a claim for loss of earnings,
is in fact the Plaintiff’s loss of earning capacity
and not his
physical loss of income. I align myself with the following
dicta in the decision of
SANTAM Versekeringsmaatskappy Beperk v
Byleveldt,
1973 (2) SA 146
(A) te p150C-D:
“
Die
verlies
van geskiktheid om inkomste te verdien, hoewel gewoonlik gemeet aan
die standaard van verwagte inkomste,
is
ʼn verlies van geskiktheid en nie ‘n verlies aan inkomste
nie.
”
[12]
It is clear from the contents of the joint minutes and the evidence
aduced by and on behalf of the Plaintiff, the he
indeed suffers
from a loss of earning capacity and that he should thus be
compensated in this regard. The fact that the Plaintiff
lost
his job as a result of him stealing from his employer, does not
take away the proven fact that he suffers from a loss
of earning
capacity. Put differently, the theft did not take away
the consequences of the injuries he sustained in
the accident,
which forms the core of his deminished earning capacity.
[13]
With regards to the approach to the contents of joint minutes between
experts, I agree fully with the Supreme Court of
Appeal in the
decision of
BEE
v Road Accident Fund,
2018
(SA) 366 (SCA) and in particular pareagraphs [65] and [66] at p 383
to 384:
“
[64]
Where the parties engage experts who investigate the facts, and where
those experts meet and agree upon those facts, a litigant
may not
repudiate the agreement unless it does so clearly and at the very
latest, at the outset of the trial. In the absence
of timeous
repudiation, the facts agreed by the experts enjoy the same status as
facts which are common cause on the pleadings
or facts agreed in a
pre-trial conference. Where the experts reach an agreement on a
matter of opinion, the litigants are
likewise not at liberty to
repudiate the agreement. The Trial Court is not bound to adopt
the opinion but the circumstances
in which it would not do so are
likely to be rare. Sutherland J’s exposition has been
approved in several subsequent
cases, including in a decision of the
Full Court of the Gauteng Division, Pretoria in
Malema
v Road Accident Fund
….
[65]
In my view we should in general endorse Sutherland J’s
approach, subject to the qualifications which will follow…
[66]
Facts and opinions on which the litigants experts agree are not quite
the same as admissions by or agreements between the litigants
themselves (whether directly or, commonly, through their legal
representatives) because a witness is not an agent of the litigant
who engages him or her. Expert witnesses nevertheless stand on
a different footing from other witnesses. A party cannot
call
an expert witness without furnishing a summary of the expert’s
opinions and the reasons for his opinions. Since
it is common
for experts to agree on some matters and disagree on others, it is
desirable, for efficient case management that experts
should meet
with a view of reaching sensible agreement on as much as possible, so
that the expert testimony can be confined to
matters truly in
dispute. Where, as here, the Court has directed experts to meet
and file Joint Minutes, and where the experts
have done so, the Joint
Minute will correctly be understood as limiting the issues on which
evidence is needed. If a litigant
for any reason does not wish
to be bound by the limitation, fair warning must be given.
In
the absence of repudiation (i.e. fair warning), the other litigant is
entitled to run the case on the basis that the matters
agreed between
the experts are not in issue.
[14]
The joint minutes were of course handed in by agreement and the
Defendant
of course did not attempt to repudiate same. I therefore have
no qualms in accepting same and the agreements contained
in them as
reliable evidence.
[15]
In deciding what a fair and adequate compensation to an injured party
should be, I once again agree with the Supreme
Court of Appeal
in the decision of
AA
Mutual Association Ltd v Maqula,
1978
(1) (SA) 805 (A), at p 809, where the following dicta
appears:
“
It
is settled law that a trial court has a wide discretion to award what
it in the particular circumstances considers to be a fair
and
adequate compensation to the injured party for his bodily injuries
and their sequelae.”
[16]
With regards to the appropriate contingency deduction to be applied
in the future injured scenario, it is important to
have regard
to the fact that it is to a large extent a speculative exercise
because the future is unknown, as opposed to
the past,
which is largely known. The Court must however endeavour to be fair
to both parties in deciding on the appropriate
deduction to be made.
PLAINTIFF’S
LOSS OF INCOME:
[17]
I accept the evidence of the Plaintiff’s industrial expert Mr
Moodie with regards to the Plaintiff’s pre-accident
and
post-accident income potential. There is no evidence presented
by the Defendant to the contrary. Mr Moodie’s
evidence is
furthermore based on the acceptable and accepted evidence of the
other experts, reiterated in the joint minutes.
The
actuary, Mr Sauer, clearly and correctly, took this
evidence into account when he did his calculations.
[18]
The 5% contingency deduction which is applied in the uninjured
scenario in respect of the Plaintiff’s past loss of income,
had
the accident not occurred, appears be fair and appropriate in
the circumstances. As indicated above, the
past is
largely known and there is no evidence before me to indicate that a
percentage of more or less than 5% should be applied.
The 15%
contingency deduction in the uninjured scenario in respect of the
Plaintiff’s future loss of income, also appears
to be
appropriate within the factual context of this case.
[19]
The 5% contingency deduction applied in the injured scenario in
respect of the Plaintiff’s past loss of earnings, also
appears to be fair in the circumstances.
[20]
Given the fact that the Plaintiff now suffers from a diminished
earning capacity, requires the Court to apply a somewhat higher
contingency deduction in respect of his future loss of earnings.
The fact of the matter is that the evidence of Mr Moodie
was to the
effect that because of the Plaintiff’s injuries, which
necessitates light physical work, coupled with
his low level of
education, the Plaintiff’s chances of obtaining and sustaining
employment post accident, are very
slim. Mr Moodie opines
that the chances of the Plaintiff securing and holding down
employment in future can not be more than
between 20% to 30%. If
one furthermore take the present rate of unemployment in South Africa
of 34% to 36% on the evidence
of Mr Moodie into account, it is
my view that a contingency deduction in respect of the future in the
injured scenario of
75%, would be fair and appropriate in the
circumstances.
[21]
The Plaintiff also led the evidence of Mr Sauer, an actuary.
He confirmed in evidence the contents of his expert
report that
serves before Court. In essence, his evidence is to the
effect that based on Mr Moodie’s evidence
the appropriate
contingency deduction in the future scenario would be 75%. Put
differently, since Mr Moodie testified
to the effect that given
the Plaintiff’s injuries and consequential diminished earning
capacity, coupled with his grade 10
qualification, the
likelihood of him being gainfully employed in future, will not
be more than 25% of the rest of his
working life.
[22]
Mr Sauer testified that the 10% apportionment can simply be done on
the total amounts that the Court may decide to award to
the
Plaintiff. This is what I will do.
[23]
Just before the close of the Plaintiff’s case, The
Plaintiff moved for an amendment of the particulars of claim.
He applied for an amendment to the effect that his loss in respect of
future loss of damages be amended from an amount of
R450 000.00
to
R1 663 670.00
.
This was the amount that Mr Sauer testified to as being the
Plaintiff’s future loss of income. No objection
was
raised by the Defendant when the evidence was led. Although the
application for amendment was opposed, I exercised
my
discretion in favour of the applicant and allowed the amendment.
[24]
I am satisfied that the calculations done by Mr Sauer on the second
scenario is done on the correct factual basis, and
I thus find
that the Plaintiff’s past and future loss of income amounts to
R1 181 999.00
less the 10% apportionment. Such
an amount would thus be fair and appropriate in the circumstances,
I,e.
R1 063 799.00
GENERAL
DAMAGES:
[25]
In argument, Me Motshabi, for the Defendant, confirmed
that the Defendant apparently already tendered an amount
of
R350 000.00,
before any apportionment is applied, in
respect of General Damages. If one has regard to the joint
minutes of the orthopaedic
surgeons and the occupational therapists,
exhibits “A” and “B” and the evidence
of the plaintiff
and then compares same to previous awards by the
Court, I am of the view that an award in respect of the
Plaintiff’s
general damages in the amount of
R350 000.00
would be fair and appropriate in the circumstances. Thus
R315 000.00
after apportionment.
FUTURE
MEDICAL EXPENSES:
[26]
The Plaintiff’s future medical expenses will be covered by an
undertaking in terms of section 17(4) (a) of the Road Accident
Fund
Act, to be provided by the Defendant. The undertaking
will however be limited to
90%
of such expenses by virtue of the apportionment referred to in
paragraph 2, supra.
[27]
In the Premises, the following order is made:
1.
The
Defendant will pay the Plaintiff (after apportionment), the amount of
R1 378 799.00
which amount is compiled
as follows:
(i)
Loss of
income
R1 063 799.00
(ii)
General
damages
R315 000.00
2.
The
Defendant is to furnish the Plaintiff in terms of Section 17(4)(a) of
the Road Accident Fund Act with an undertaking,
limited to
90%,
for future accommodation of the Plaintiff in a hospital or a
nursing home or the treatment of or rendering of a service or
supplying of goods to him, arising out of the injuries
sustained by him in the motor vehicle collusion of 6 May 2016.
3.
Costs of
Suit to be paid by the Defendant, except that the Plaintiff is
liable for the wasted costs occasioned by the postponement
of the
trial on 4 September 2019.
________________
L.
LE R. POHL, AJ
On
behalf of plaintiff : Adv P Du P Greyling
Instructed
by: Du Plooy Attorneys
Bloemfontein
On
behalf of the Defendant: Me K Motshabi
Instructed
by: Maduba Attorneys
Bloemfontein