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[2019] ZAFSHC 176
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Mphunyetsane v Road Accident Fund (1258/2015) [2019] ZAFSHC 176 (9 October 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
No:
1258/2015
In
the matter between:-
MPUSI
LEONARD MPHUNYETSANE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM
:
MBHELE J
HEARD
ON
:
14
JUNE 2019
DELIVERED
ON
:
09 OCTOBER 2019
[1]
On 05 April 2013 a motor vehicle collision occurred between a vehicle
with registration letters and
numbers [….] driven by one
Olebogeng George Pule (The insured driver) and the Plaintiff who was
a pedestrian at the time
of the collision.
[2]
The Plaintiff sustained bodily injuries as a result of the collision.
The Plaintiff issued summons against
the defendant claiming damages
in the amount of R 1 300 000, 00.
[3]
Defendant is resisting the Plaintiff’s claim; it denies
liability and in the alternative prays
for apportionment of damages
in terms of the apportionment of damages act 34 of 1956.
Plaintiff’s
case
:
Plaintiff
testified in support of his case. His evidence was, inter alia, to
the effect that on the date of the accident he was
walking with his
friend from Steyn 2 to Bronville in Welkom.
[4]
He was walking on the left shoulder of the road between Welkom and
Virginia where he was hit by a vehicle
coming from Virginia. When he
was about to cross the road he saw a truck approaching, he waited for
it to pass. When the truck
was about to pass a motor vehicle emerged
and hit him. He did not notice this vehicle coming, when he saw
it, it was already
on him and he could not find ways to avoid the
collision. He denied when it was put to him that when the collision
occurred him
and his friend were in the middle of the road, crossing
to the other side and carrying a steel pole.
[5]
He further testified that before the collision he was a street
vendor, selling fruits and vegetables
and earning R15000.00 per
month. He did have a bank account but there were no bank statements
to prove that he was indeed earning
the amount he claimed he was
earning.
[6]
Both his legs are broken. He has no heel on his right foot. He was a
soccer player before the collision
and he cannot play soccer anymore.
He worked in Durban as a construction worker in 2010 and earned R1800
per month. It was not
clear how he managed to save R80 000
within 12 months with a salary of R1800 per month that he had to live
on and send his
family money in Lesotho. He used the R80 000.00
he saved to start a fruit and vegetable business in Welkom.
[7]
Dr. R. Khan
, a medical doctor examined the Plaintiff and made
the following diagnosis.
The
Plaintiff had Webber C fracture R fibula, Webber C fracture L fibula,
Right calcaneus fracture, proximal fracture 1
st
metatarsal bone right foot. Intermediate cuneiform fracture right
foot, fracture proximal head of 3
rd
Metatarsal right foot and de-gloving injury of the right heel (the
flesh on the heel was totally removed).
[8]
Plaintiff’s
complaints:
He
has lost the right heel. He had difficulty standing, walking uphill,
going upstairs, walking on uneven ground, squatting and
doing
recreational activities like playing soccer. He is unable to do heavy
work like pushing, pulling, climbing, carrying a bucket
of water,
walking on even ground without shoes, walking for over 15 minutes.
[9]
He opines that the Plaintiff will not be able to do manual work
especially the type of work he was doing
before the accident. He has
20% chances of developing osteoarthritis. He may be able to sit down
and sell vegetables and fruits
but he will need assistance to secure
stock, pull and push trolley and carry all the other items that will
enable him to run his
business. The Plaintiff has 15% whole person
impairment. In his view even if the Plaintiff gets heel replacement
he will still
struggle to do manual work.
[10]
Joshua
Francois Rosslee
an actuary testified to the effect that he prepared his report based
on the Industrial Psychologist’s report Susan Van Jaarsveld.
The plaintiff’s income was assumed at R33 200
per annum with his retirement age estimated at 66 .5 years.
The
actuary assumed past loss of income at R167 279.00 and future
loss of income at R652 744. 00.
[11]
Contingency was factored in at 5% Premorbid and 15% Post morbid. In
cross examination he conceded that he did not
have any proof of
income but used the income levels as provided by the Industrial
Psychologist.
[12] Susan Van
Jaarsveld, the Industrial Psychologist noted that the plaintiff went
to school until class 7 in Lesotho which
is an equivalent of grade 4
in South Africa. She is of the view that he will not continue doing
his job as a hawker because of
limitations imposed on him by the
accident. He cannot do sedentary job either because of his low
standard of education. She stated
that the plaintiff did not provide
him any proof of income. She was informed that he had a bank account
but she never saw the bank
statements. She opined that bank
statements would not have given a true reflection of the plaintiff’s
income because it is
difficult to determine income levels in an
informal sector.
[13] At the
end of the plaintiff’s case the defendant moved an
application for absolution from the
instance. Ms
Ferreira, on behalf of the defendant submitted that the plaintiff
failed to show what his earnings were before the
accident and as such
has failed to prove loss of income. She contended that the plaintiff
failed to bring evidence upon which the
court might in his favour.
She contended further that because the defendant disputed his
earnings the plaintiff must have obtained
bank statements to show
that he indeed earned an income which he deposited into a bank
account as he alleged. She further submitted
that the plaintiff
failed to prove quantum of general damages.
Mr.
Berry argued that the plaintiff qualifies for compensation for
general damages which were not rejected by the defendant.
He
submitted that the accident was a life changing event for the
plaintiff and his life has been altered to the worst permanently.
He
contended, further that it cannot be disputed that there was loss of
earnings following the collision. Failure to provide bank
statement
and proof of earnings does not indicate that the plaintiff did not
lose earnings as a result of the accident.
Legal
Principles
[14 ] The test to
apply in an application for absolution from the instance is set out
as follows in
Gordon Lloyd Page & Associates v Rivera
and Another
2001 (1) SA 88
(SCA)
at 92 F-H:
“
[2] The test for
absolution to be applied by a trial court at the end of a
plaintiff's case was formulated in Claude
Neon Lights (SA)
Ltd v Danie l
1976
(4) SA 403 (A)
at
409G - H in these terms:
'. . . (When absolution
from the instance is sought at the close of plaintiff's case, the
test to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which a Court,
applying its mind
reasonably to such evidence, could or might (not should, nor ought
to) find for the plaintiff. (Gascoyne v Paul
and Hunter
1917 TPD
170
at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2)1958 (4) SA
307 (T).)'
This
implies that a plaintiff has to make out a
prima
facie
case
- in the sense that there is evidence relating to all the elements of
the claim - to survive absolution because without
such evidence no
court could find for the plaintiff (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26 (A)
at
37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2).”
[15]
The defendant must make good the difference between the value of the
plaintiff's estate after the commission
of the delict and the value
it would have had if the delict had not been committed. The capacity
to earn money is considered to
be part of a person's estate and the
loss or impairment of that capacity
.
(See
Dippenaar
v Shield Insurance Co Ltd
1979
(2) SA 904
(A)
and
Santam
Versekeringsmaatskappy Beperk v Byleveldt
1973
(2) SA 146
(A).
[16]
The above principle was echoed in
Prinsloo
v Road Accident Fund
2009
(5) SA 406
(SE)
where the following was said:
“
A
person's all-round capacity to earn money consists, inter alia, of an
individual's talents, skill, including his/her present position
and
plans for the future, and, of course, external factors over
which a person has no control, for instance, in casu, considerations
of equity. A court has to construct and compare two hypothetical
models of the plaintiff's earnings after the date on which he/she
sustained the injury. In casu, the court must calculate, on the one
hand, the total present monetary value of all that the
plaintiff
would have been capable of bringing into her patrimony had she not
been injured, and, on the other, the total present
monetary value of
all that the plaintiff would be able to bring into her patrimony
whilst handicapped by her injury. When the two
hypothetical totals
have been compared, the shortfall in value (if any) is the extent of
the patrimonial loss. … At the
same time the evidence may
establish that an injury may in fact have no appreciable effect on
earning capacity, in which event
the damage under this head would be
nil.
”
[17]
It is so that the plaintiff bears the onus to
prove that before the accident he earned an income and that
such
income has been lost as a result of the accident. The plaintiff is
the only source of information in relation to the nature
of his
employment and his earnings. The experts who testified based their
findings on the information provided by the plaintiff
which was not
supported by any documentary proof. I am being asked to take the
plaintiff’s word as conclusive proof that
he indeed earned an
income prior to the accident without proof that such income existed.
Plaintiff’s bank statements
would have shed light on the
plaintiff’s earnings but such was not presented before me.
In
the unreported matter of
Mlotshwa v Road Accident Fund
(9269/2014)
[2017] ZAGPPHC 109 (29 March 2017)
at
paragraph 21 the following was said when the court dealt with the
loss of earnings for a claimant in an informal sector:
“
The
court
is
alive to the
nature
of the
informal
sector
in
South Africa and that the livelihood of many of our
people
is dependent
on
generating an income in
this
sector. Our courts can never discriminate
against
members
of
society
engaged
in
this
sector.
However,
the
courts
cannot
turn a blind
eye
to
the
duty of a litigant, where he bears
the
onus, to provide sufficient
proof
of
income.
The
proof
of
such
income
even
if
based
on
estimates
or
averages,
is
after
all,
often
than
not,
peculiarly
within
the
knowledge only of the plaintiff. The defendant cannot be prejudiced
simply on the say
so
of a litigant of an average
income
he earns
per
month and what
remains
after
payments,
without
providing
evidence
as
to
how
the
average
before
the
payments
was
generated.
”
[18]
I agree with the sentiments expressed above. In the current matter
the plaintiff could have produced
proof of income because he had a
bank account where his earnings were deposited but such was not
presented before court. The information
before me is insufficient to
help me estimate the plaintiff’s past loss of income and future
loss of earnings. I am unable
to find that the plaintiff managed to
prove his heads of damages for loss of income and future loss of
earnings. He has however
made out a
prima facie
case for
general damages. In the result the following order is made.
Order:
·
Absolution
from the instance in respect of past loss of income and future loss
of earnings is granted.
·
Absolution
from the instance in respect of general damages is dismissed.
·
Costs
to stand over for later adjudication.
NM MBHELE, J
On
behalf of the plaintiff:
Adv Berry
Instructed
by:
McIntyre Van Der Post
BLOEMFONTEIN
On
behalf of the defendant:
Adv Ferreira
Instructed
by:
Maduba Attorneys
BLOEMFONTEIN