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[2019] ZAFSHC 181
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Motlhale v Road Accident Fund (3507/2015) [2019] ZAFSHC 181 (20 September 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: 3507/2015
In
the matter between:
MARATSWANENG
MARIA MOTLHALE
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
HEARD
ON:
19
JUNE 2019
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
20 SEPTEMBER 2019
[1]
This claim is for damages arising out of a motor vehicle collision
which occurred on the 6th
May 2011.The plaintiff was a passenger. The
merits were settled on the basis that the defendant was liable for
100% of the Plaintiff’s
proven or agreed damages. On the 29
th
March 2019 the defendant agreed to pay an amount of R350 000 to the
plaintiff being in respect of general damages. The defendant
also
furnished the plaintiff with an undertaking in terms of
s17
(4) (a)
of the
Road Accident Fund Act, 56 of 1996
.
[2]
In the sequel to this claim for damages, this
court is called upon to adjudicate plaintiff’s
claim for past
and future loss of earnings.
[3]
The defendant admitted into evidence the reports of the occupational
therapist, Letittia
Delport, the orthopaedic surgeon, Dr JF Ziervogel
and the serious injury assessment practitioner Dr Motlhamme. The
industrial psychologist.
Susan Van Jaarsveld and Johan Saure, an
actuary also presented reports and both these experts gave oral
evidence.
[4]
The plaintiff testified that she passed grade 11 at school. After
leaving school she sold
fruit and vegetables. She obtained a Grade C
security qualification and completed an NQF 3 Diploma Grade C in the
security industry
in 2010. She was employed at various security
companies as a security guard. Her work at the time of the accident,
inter
alia
,
entailed performing access control at the main gate of Metro Fruit
and Vegetable market. This work was of a physical nature requiring
the use of both hands and involved the opening of boom gates. At the
time of the accident her earnings were in the region of R2 500.00
per month. She also received overtime payment. She also did hair for
customers and earned in the region of R900.00 to R1 250.00
per
month in this private venture.
[5]
The plaintiff testified further, that after the accident she returned
to her job but was
transferred to another position at the Department
of Education as she was unable to manage her duties. A week later she
was transferred
to Mmabana Cultural Centre in Thaba Nchu where she
performed light duties. She was retrenched in 2013.
[6]
The plaintiff testified that she applied for numerous
jobs in the
Security
industry but was unsuccessful due to her disability as a result of an
amputated left thumb. She testified that she had
considered selling
fruit and vegetables but faced the challenge of lack of funds and the
possibility of not being able to lift
and carry her stock.
[7] Ms
Susan Van Jaarsveld evaluated the plaintiff on the 15
th
April 2014. In the said report she says:
“
5.1.3.2….Mrs
Motlhale also indicated that she received her full salary during her
recuperation period and was placed on light
duties on her return to
work. In May 2013 Mrs Motlhale was retrenched after the contract of
her employer was ended at the venue
where she was employed.
6.6
With regard to Mrs Motlhale’s post-accident income potential
she returned to her work as a security guard on the 1
st
of June 2011.
According
to Mrs Motlhale she performed light duty for 6 months and then
continued with her normal duties in respect of access control
(my
emphasis). Mrs Motlhale earned a basic salary of R2 304.00 per
month.
6.13
·
The
possibility exist that Mrs Motlhale will be able to secure employment
in the informal sector with earnings equivalent to the
median of an
unskilled labourer in the informal sector. It must, however be kept
in mind that Mrs Motlhale’s career options
are narrowed down
and that she will suffer from longer stints of unemployment and that
she will have to be accommodated by a sympathetic
employer. A
contingency deduction must thus be made for the fact that Mrs
Motlhale will be able to secure alternative employment,
although her
chances are very limited. The suggested earnings of an unskilled
labourer is as follows:
Lower quartile
Median
Upper quartile
R 6 800
R 17 400
R50 000
(the
Quantum Yearbook,2014, R.J. Koch)
”
[8]
In her testimony, Ms Van Jaarsveld testified that the plaintiff was
not a competitive employee in the
open labour market, and that it
was
unlikely that the plaintiff would ever find employment again in
the
said market. She conceded in cross examination that she
implied
in the information given to the actuary that the plaintiff was
unemployable.
[9]
Mr. Sauer, an actuary testified that he noted that the Industrial
Psychologist, Ms Susan Van Jaarsveld
stressed that it was highly
unlikely that the plaintiff would secure an employment in the future.
The actuary also testified about
paid sick leave in the loss of
income. He included same in his calculations. He testified that
in his view the plaintiff
would not be able to take that paid sick
leave at a later stage and would thus suffer the loss when taking
future unpaid sick leave.
Plaintiff, however, chose not to persist
with its inclusion in the calculation of past loss of income.
[10] The actuary
was further requested by the parties to prepare calculations based
on the scale of a security Officer
who is on Grade C and each
party gave his specific instructions on which to base the
calculations.
[11]
In the assessment of the Plaintiff’s future loss of earnings a
comparison is usually made between
what the plaintiff earned
pre-morbid and what he is likely to earn post-morbid. In the seminal
judgment,
Southern
Insurance Association Ltd v Bailey
1984(1) SA 98(A) Nicholas JA said the following:
“
An
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
rough estimate, of the present value of loss. It has open to it two
possible approaches: one is for the judge to make a
round estimate
which seems to him to be fair and reasonable. That is entirely a
matter of guess work, a blind plunge into the unknown.
The other is
to try to make an assessment, by way of mathematical calculation, on
the basis of assumptions resting on evidence.
The validity of this
approach depends of course upon soundness of the assumptions, and
these vary from the strongly probable to
the speculative….
”
[12]
The courts frequently rely on the opinions of experts in arriving at
certain decisions. The courts are,
however, not bound by the opinions
of the experts. It is necessary to indicate that the actuary in this
case relied heavily on
the opinion of Ms Van Jaarsveld in the
assessment of loss of earnings. Ms Van Jaarsveld reports that the
plaintiff returned to
her work and performed light duties for 6
months where after she ‘
continued with her normal duties in
respect of access control
.’ It is submitted in the heads of
argument that there had been ‘miscommunication’ between
the plaintiff and
Ms Van Jaarsveld which led to the
latter believing that the plaintiff returned to her normal duties.
This alleged miscommunication
is difficult to fathom.
[13]
One should bear in mind that out of the blue in her evidence the
plaintiff testified about her side business
in which she indicated
that she did hair for customers. She testified that her income in
that side business generated income in
the amount of R150 and R250
per month. She did approximately 6 customers per week. It is
difficult to discern how the plaintiff
omit to inform Ms Van
Jaarsveld of this important source of her income. This side business
generated the bulk of her income. It
brought a minimum of about R3
600 per month which is more than R1000 she earned in her formal
employment. While no explanation
was given for this omission, it
hardly can be attributed to so called ‘miscommunication’.
At the most it goes to the
heart of the credibility of the plaintiff.
Ms Van Jaarsveld has no reason to allege that plaintiff informed her
that 6 months after
her light duties stint, plaintiff informed her
that she returned to her normal duties performing access control. The
same cannot
be said of the plaintiff.
[14]
On her own version plaintiff is of the view that she can still do the
duties of a security officer.
Her Counsel, however, in her heads of
argument is of the opinion that plaintiff was not in a position to
assess herself. She goes
further and says that objectively speaking
plaintiff could not do all the physical work required by the
industry.
[15]
In my view this submission is without merit. Firstly, it is the
plaintiff herself who is deeply involved
in the industry. Surely she
knows or is expected to know the competencies and demands of her job.
At the time when she went for
an evaluation by the Industrial
Psychologist she had already returned to her job and was in a far
better position to assess herself
and make an informed decision as to
her competency. Secondly, in my view the only challenge alluded to in
evidence centred on the
so called access control at the boom gate of
Mangaung Metro and Vegetables. The plaintiff’s left thumb had
been amputated
as a result of this accident. Admittedly she will have
challenges in grabbing articles and at times holding things. But to
make
a blunt conclusion that she will be unable to perform access
control duties seems too far-fetched.
[16]
I agree with the sentiments expressed by Ms Van Jaarsveld that the
plaintiff will be able to secure
employment in the informal sector
with earnings equivalent to the median of an unskilled labourer in
the informal sector. Having
regard to the testimony of the plaintiff,
the Occupational therapist and the Industrial Psychologist, it is my
considered view
that the plaintiff is not unemployable. It is so that
she may experience bouts of unemployment. This can hardly be
attributed to
her disability in view of the high unemployment rate in
the country.
[17]
I have had the benefit of looking at the four scenarios sketched by
the actuary in the calculation
of loss of earnings. Having regard to
the peculiar circumstances of this case. In view of the fact that the
plaintiff did not lose
her job due to the accident and the fact that
she is not functionally unemployable, the fact that she may find
alternative employment
in the unskilled labour market and the fact
that she may experience bouts of unemployment, I have decided to
exercise my discretion
and award to her damages which in my view
seems fair and reasonable. I conclude that it would be fair and just
to award compensation
in the amount of R70 194.55 in respect of
past loss of earnings having taken into account a contingency
deduction of 5% on
both the pre-morbid and post-morbid scenarios. In
respect of future loss of earnings and earning capacity I find that
the amount
of R444 581.00 would be a fair and just compensation
having taken into account a contingency deduction of 5% pre-morbid
and
30% post-morbid scenarios.
I accordingly make
the following order:
ORDER
1.
The
Defendant is liable to pay to the Plaintiff an amount of R514 775.55(
Five hundred and fourteen seven hundred and seventy
five thousand
rands and fifty five cents) being in respect of past and future loss
of earnings;
2.
The
Defendant is liable to pay the plaintiff’s taxed or agreed
costs on the scale as between party and party, until date of
this
order, including but limited to the costs set out hereunder:
2.1
The
costs attendant upon the obtaining of payment of the amounts referred
to in this order;
2.2
The
reasonable preparation / qualifying / accommodation / travelling and
full reservation fees and expenses ( if any) of the following
experts, and the costs relating to the plaintiff attending their
medico legal examinations:
2.2.1
Dr JF
Ziervogel ( Orthopaedic Surgeon);
2.2.2
Dr Mohlamme
2.2.3
Susan Van
Jaarsveld (Industrial Psychologist);
2.2.4
Johan Sauer
( Actuary)
2.2.5
Letitia
Delport ( Occupational Therapist)
2.3
The
counsels’ costs of preparing for, and attending to pre-trials,
and costs associated with necessary consultations with
the plaintiff,
the plaintiff’s witnesses and the plaintiff’s experts;
2.4
The
attorneys’ costs of preparing for, and attending to pre-trials,
and costs associated with necessary consultation with
the plaintiff,
the plaintiff’s witnesses and the plaintiff’s experts;
2.5
The
travelling costs occasioned by the plaintiff, and the plaintiff’s
witnesses to attend to necessary consultation with his
attorney and
expert witnesses.
3.
The payment
provisions in respect of the aforegoing are ordered as follows:
3.1
Payment
of the capital amount shall be made without set-off or deduction,
within 30 (thirty) calendar 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, the
details of
which are the following:
Pieter Skein Attorneys
– Trust Account
Bank
-
ABSA
Branch
Code
- 632 005
Account No.
-
[….]
Reference
-
MOT662/0001
3.2
Payment
of the taxed or agreed costs shall be made within 30 days of
taxation, and shall likewise be effected into the trust account
of
the plaintiff’s attorney.
3.3
No
interest will accrue in respect of any of the aforesaid amounts on
or before the stipulated dates.
3.4
Should
payment not be made in respect of any of the aforesaid
on or before the
stipulated date, interest will accrue at 10,25% compounded.
4.
In
the event that costs are not agreed:
i.
The
plaintiff shall serve a notice of taxation on the defendant’s
attorney of record, and
ii.
The
plaintiff shall allow the defendant fourteen court days to make
payment of the taxed costs.
P.E. MOLITSOANE, J
On
behalf of the Plaintifft:
Adv. JF Mitcley
Instructed by:
Pieter Skein Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Mr Jeje
Instructed by:
Maduba Attorneys
BLOEMFONTEIN