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[2019] ZAFSHC 177
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Ntsane v Road Accident Fund (1334/2013) [2019] ZAFSHC 177 (10 October 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1334/2013
In
the matter between:
MACKENZIE
BEN
NTSANE
Plaintiff
And
ROAD ACCIDENT
FUND
Defendant
HEARD
ON:
27
& 30
AUGUST
2019 and 20 SEPTEMBER 2019
JUDGMENT
BY:
VOGES, AJ
DELIVERED
ON:
10
OCTOBER 2019
[1]
On 8 August 2009 in Kroonstad, the Plaintiff, a pedestrian at the
time, was knocked
down by a motor vehicle [….], insured by the
Defendant, the Road Accident Fund (RAF).
[2]
The plaintiff sustained a fracture of the left tibia/fibula. He
was hospitalized
and had to undergo medical treatment. He will
also require medical treatment in future.
[3]
After the amendment of his claim, the Plaintiff claims in this action
compensation
form the Defendant as a result of injuries sustained
during this incident in the following amounts:
1.
Future Medical Expenses
Undertaking I t o
Section
17(4)(a)
2.
Past and future loss of income
R2
182 175.00
3.
General damages in respect of pain and suffering, loss of enjoyment
of amenities
of life, disfigurement and disability
R500 000.00
[4]
The merits of the matter had been settled on the basis that the
Defendant is liable
for 100% of the proven or agreed damages of the
Plaintiff.
[5]
The Defendant also undertook to cover future medical expenses of the
Plaintiff in
terms of
Section 17
(4) (a) of the
Road Accident Fund
Act, 56 of 1996
.
[6]
During the trial the claim for general damages was also settled in
the amount of R400
000.
[7]
This court is thus called upon to decide the quantum of the
plaintiff’s claim
in respect of past and future loss of
earnings.
[8]
The following witnesses testified for the Plaintiff:
1.
Mr McKenzie Ben Ntsane, the Plaintiff
2.
Dr Louis Francois Oelofse, an orthopaedic surgeon
3.
Mr Johan Landman, an industrial psychologist
4.
Mr Willem Hendrik Boshoff, an actuary of Munro Forensic Actuaries.
[9]
The Defendant only called Ms Moipone Kheswa, an Industrial
Psychologist.
[10]
The Plaintiff testified that he passed matric and is a married man of
35 years old. He
has 3 children and was employed at Pamodzi
Gold Mine as a Stope Team member at the time of the accident.
He worked underground
and earned R8000.00 per month. He aspired
to become a team leader. During the accident on 8 August 2009 he
sustained a fracture
of the left lower leg and his knee was injured.
He was admitted to hospital for 2 weeks, his leg was put in plaster
of Paris
and he was on crutches for another 6 – 7 months after
his discharge from hospital. He could not return to work
because
of his injuries.
In
2010 he secured a job as a chef at Wimpy at a salary of R2500 per
month. He left in 2011/2012 because “the money
was too
little”. He managed to do this work with the help of pain
killers.
He
then found employment at Joel Mine as Stope Team member from 27 April
2011. He struggled to perform his duties because
of his
injuries and was allocated the job of a winch operator, which was an
easier job. He worked as such until 11 May 2017,
when he failed
the compulsory physical test and had to leave.
Since
then he has been unemployed and survives on grant money and the
assistance of his mother.
During
cross examination it transpired that he could not return to Pamodzi
mine after the accident as the mine had closed down and
that he
refused surgery of the injured leg because he was afraid of the
consequences of such an operation.
[11]
Dr Oelofse examined the plaintiff twice (on 25 June 2014 and 15 May
2018) and compiled two reports
in this respect, namely exhibits B and
C.
He
confirmed the fractures of the tibia and fibula of the left leg of
the Plaintiff and found that the Plaintiff suffered a medial
and/or
lateral meniscus tear, instability of the medial collateral ligament
and post-traumatic osteo-arthritis of the medial compartment
of the
knee joint. Dr Oelofse also confirmed the treatment he received
and that his leg was in a plaster cast for 4 months.
As a
result his left leg is now 2.5 cm shorter than the right leg and
requires a built up shoe. He will possibly also have
to have a
knee replacement, or more than one, in future.
Dr Oelofse regards it to
be a “serious long-term impairment or loss of a body function”
that will not allow physical
work. He may, however, be able to do
light duty or sedentary work. Due to the deterioration of his
condition he will probably
have to retire earlier.
[12]
When questioned about the Plaintiff’s refusal to have his leg
operated, Dr Oelofse was
of the opinion that the conservative
treatment (plaster cast) was at the time the better option.
[13]
Mr Landman was of the opinion that the Plaintiff would probably have
been able to become a stope
team leader had he not been injured.
He testified about the employability of the Plaintiff, taking into
account the past
history of the Plaintiff, the reports of Dr Oelofse
and collateral information he obtained himself.
He
came to the conclusion that the Plaintiff is, because of the result
of his injuries, presently unfit to work as stope team member
or
winch operator or to do any work that may require physical ability.
Although he has the capacity to do light duty or sedentary
work, he
does not have the experience, qualifications or tertiary training to
be able to compete with able bodied persons for such
positions.
Mr Landman was not aware
of the fact that the Plaintiff was employed at the Wimpy for some
time after the accident, but conceded
that his earnings during this
time will have to be taken into account by the actuaries in
calculating his past and future loss
of income.
[14]
Mr Boshoff, the actuary, based his calculations on the final report
of Mr Landman. He,
too, was not aware of the Plaintiff’s
employment at the Wimpy and conceded that the income that he received
there must be
incorporated in his calculations and must be subtracted
from the past loss of income.
As
no pay slips was available, Mr Boshoff used the income reflected on
the IRP 5 certificates of the Plaintiff as obtained by Mr
Landman as
basis for his calculations.
He
applied a 5% past and 20% future contingency rate with a retirement
age of 60 years.
[15]
Ms Kheswa, the industrial psychologist called by the defendant, based
her report on information
obtained by a Ms Mavhumgu, a counsellor who
was previously employed by Gcina Human Potential. She (Kheswa) did
not interview the
Plaintiff herself. Apart from some documents
and reports supplied to her, she was unable to contact any further
persons.
She was not supplied with the expert reports of the
Plaintiff.
[16]
EVALUATION OF EVIDENCE
The
evidence in respect of the Plaintiff’s injuries and present
physical condition was not contested. Dr Oelofse’s
evidence was based on a thorough examination and evaluation of the
Plaintiff and I find no reason not to accept his evidence.
[17]
It was also not contested that the Plaintiff was unable to work for
several months after the
accident. Neither was it disputed that
he failed the physical test required for further employment at Joel
Mine.
[18]
The Defendant has an issue with the Plaintiff’s reason(s) for
not returning to Phamodzi
Mine, his failure to disclose his
employment at Wimpy to his experts and the possibility of future
employment.
[19]
It is not disputed that Phamodzi Mine was in the process of closing
down when Plaintiff was eventually
in a position to return to work.
Mr Landman’s evidence in this regard is accepted as I can find
no reason to reject
his evidence. It makes sense that the
closing of a mine will lead to retrenchments and that there was no
possibility that
the Plaintiff could remain in the employment of
Phamodzi due to his injuries.
[20]
The fact that the actuary did not incorporate the income that the
Plaintiff received at the Wimpy in his
calculations is not an
insurmountable problem. It relates only to past income and can
to some extend be quantified.
[21]
Ms Kheswa based her opinion that the Plaintiff “
is likely to
have remained employable in the semi-skilled to skilled category of
employment
” on the fact that the Plaintiff obtained an HR
Certificate. This fact is not borne out by any other evidence.
It was the Plaintiff’s evidence that he only has a matric
certificate and the alleged HR Certificate was not taken up with
him
during his evidence. His evidence in this regard is accepted.
[22]
In the end it was the opinion of the expert witnesses of both the
Plaintiff and the Defendant that the Plaintiff
can still do light or
sedentary work, but will have difficulty to obtain such a position
due to his qualifications/lack thereof
and his physical impairment.
[23]
LEGAL PRINCIPLES
In
terms of South African law a claim for loss of earnings in in fact
the Plaintiff’s loss of earning capacity and not his
physical
loss of income.
Santam
Versekeringsmaatskappy beperk v Byleveldt
1973 (2) SA 146
(A) at 150C-D:
“
Die
verlies van geskiktheid om inkomste te verdien, hoewel gewoonlik
gemeet aan die standaard van verwagte inkomste, is ‘n
verlies
van geskiktheid en nie ‘n verlies aan inkomste nie.”
There
are no hard and fast rules to be applied in deciding what a fair and
adequate compensation to an injured party should be.
Arbitrary
considerations must inevitably play a part. Any enquiry into
future loss of income is by nature speculative because
it involves a
prediction of the future, as was said in
Southern
Insurance Association v Bailey NO
1984 (1) SA 98
(AD).
[24]
A judge has a discretion to award what he/she considers right.
In exercising such discretion
a wide variety of contingencies must be
discounted. The following dictum appears in
AA Mutual
Association Ltd v Maqula
1978 (1) SA 805
(A) at 809A-B:
“
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
.”
[25]
In
Southern Insurance Association Ltd v Bailey NO
,
supra at 114E it was said:
“…
while
the result of an actuarial computation may be no more than an
“informed guess” it has the advantage of an attempt
to
ascertain the value of what was lost on a logical basis”
[26]
QUANTUM
OF LOSS
The
actuarial report of mr Boshoff was of great assistance to come to a
fair decision. The 5% contingency deduction applied
to the past
uninjured and injured scenarios appears to be fair and appropriate in
the circumstances.
The
past loss of the Plaintiff is largely known. What needs to be
incorporated in the amount as calculated by mr Boshoff is
the income
earned by the Plaintiff at the Wimpy. The Plaintiff
submitted that a period of 19 months in this regard
is applicable.
At a salary of R2500 per month it comes to a total of R47 500.00.
Taking
into account that the accident occurred on 8 August 2009, that the
Plaintiff’s leg was in a plaster cast for 7 months
during which
time he could not work at all and that he started to work at Joel
Mine on 27 April 2011 it seems to me that his employment
at the Wimpy
for the period between the injury and his new employment might have
been shorter than 19 months. I will, however,
accept the
Plaintiff’s submission that R47 500 be deducted from the past
loss suffered by the Plaintiff, as it will favour
the Defendant in
the circumstances.
[27]
Mr Boshoff based his calculation of future loss on the report of mr
Landman and took into account
that, uninjured, the Plaintiff might
have been promoted to stope team leader by the age of 45. He also
took into account, as testified
by Dr Oelofse and Mr Landman that the
Plaintiff will most probably have to retire at the age of 60 because
of the injuries he sustained.
A contingency deduction of 20%
was applied in respect of future loss of income. It appears to
be appropriate within the factual
context of this case.
For
the past two and a half years the Plaintiff did not succeed in
securing any employment and the chances of him finding a sedentary
job seems extremely slim.
I
am satisfied that I can rely on the calculations of mr
Boshoff
in
respect of the Plaintiff’s future loss of income. The
amount of R1 923 680.00 after the 20% contingency deduction also
seems to be reasonable in the circumstances of this case.
[28]
In the premises the following order is made:
1.
The Defendant is ordered to pay the Plaintiff the amount of R2 537
050.00, compiled
as follows:
1.1
Past and future loss of income: R2 137 050.00
1.2
General damages: R400 000.00
into the following bank
account:
HONEY ATTORNEYS TRUST
ACCOUNT
Nedbank Maitland Street
Branch, Bloemfontein
Branch Code:
11023400
Account No: [….]
Ref: D J
Joubert/YV/I22569
within 30 days from date
of this order.
2.
Should payment not be made within 30 days the Defendant will be
liable to payment
of interest on the capital amount at 10.25%.
3.
The Defendant must provide an undertaking to the Plaintiff in terms
of
Section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for
payment by the Defendant of 100% of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home or
the
treatment of or the rendering of a service or the supplying of goods
to him arising out of injuries sustained by him
in the motor
vehicle collision of 8 August 2009 after the costs have been incurred
and upon proof thereof.
4.
The Defendant is to pay the Plaintiff’s taxed or agreed party
and party
costs on High Court Scale to date of this order, including
but not limited to the following:
4.1
Full qualifying fees of the following expert witnesses:
4.1.1
Dr R Khan (General Practitioner)
4.1.2
Drs Verster & Partners (Radiologists)
4.1.3
Dr L F Oelofse (Orthopaedic Surgeon)
4.1.4
Drs Van Dyk & Partners (Radiologists)
4.1.5
Ms K Swanepoel (Physiotherapist)
4.1.6
Ms A George (Occupational Therapist)
4.1.7
Mr J Landman (Industrial Psychologist)
4.1.8
Munro Forensic Actuaries
4.2
The reasonable costs incurred by and on behalf of the Plaintiff in
attending the medico
legal examinations of all experts from both
parties, including fees for travelling time, accommodation and
disbursements incurred
in such amount as allowed by the taxing
master.
4.3
Full reservation fees and travelling expenses of the following
experts:
4.3.1
Dr L F Oelofse (Orthopaedic Surgeon)
4.3.2
Mr J Landman (Industrial Psychologist)
4.3.3
Munro Forensic Actuaries
4.4.
Counsel’s fees
5.
In the event that costs are not agreed upon:
5.1
The Plaintiff shall serve a notice of taxation on the
Defendant’s
attorney of record; and
5.2
The Plaintiff shall allow the Defendant fourteen (14) court days to
make payment of the
taxed costs.
VOGES, AJ
On
behalf of Plaintiff:
Adv. H Delarey
Instructed
by:
Honey Attorneys
Bloemfontein
On
behalf of
Defendant
:
Adv. J Ferreira
Instructed
by:
Maduba Attorneys
Bloemfontein