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[2019] ZAFSHC 180
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Mathaba v Road Accident Fund (6038/2016) [2019] ZAFSHC 180 (10 October 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
6038/2016
In
the matter between:
MZIKAYISE
MICHAEL MATHABA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON
:
5, 6, 8
FEBRUARY, 23 APRIL, 18 & 19
JUNE,
20 AUGUST
2019
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON
:
10 OCTOBER
2019
[1]
The
Plaintiff in this action is an adult male aged 38 years who sustained
serious injuries in a head on motor vehicle accident on
18 November
2014 and the NS road near Smithfield. At the time of the collision,
he was driving a truck bearing registration numbers
[….]. He
suffered multiple injuries to his lower limbs, namely a fracture of
the right femur, compound fractures of the
right and left tibia and
fracture of the right tibia plafond. These injuries appear from a
report by Dr. A. A Osman, a specialist
orthopaedic surgeon, which
report was handed in by agreement between the parties. In the report,
it is stated that the Plaintiff
is suffering from a serious long-term
impairment as a result of stiffness of the right ankle and deformity
of the forefoot and
toes. His future earning capacity will be
seriously compromised. He is unable to drive a manual vehicle, to
play sports, to run,
to stand or walk for longer than 10 minutes or
to sit for longer than an hour.
[2]
The
Plaintiff now claims from the Defendant in terms of the provisions of
the
Road Accident Fund Act 56 of 1996
the amount of R 7 209 937-00,
calculated as follows: R 678 676-00 for past loss of earnings, R 5
031 261-00 for future loss of
earnings and R 1 500 000-00 for general
damages. On 13 March 2018 this Court had already ordered, by
agreement between the parties
that the Defendant is liable for
payment of 90°/o of the Plaintiff's proven or agreed damages.
When the present proceeding
commenced, the Court was informed that
the parties had reached further agreement to the effect that
Defendant would provide the
Plaintiff with a certificate in terms of
Section 17(4)
of the Act (limited to 90%, of the expenses) and that
Defendant would pay to the Plaintiff the sum of R 800 000-00 for
general
damages (again limited to 90°/o thereof). The dispute
concerning the past and future loss of earnings was the only dispute
that remained unresolved between the parties, and is therefore the
only issue this court has to decide.
[3]
The
evidence concerning the past and future loss of earnings, as
presented by the Plaintiff, became fiercely contested on behalf
of
the Defendant and the proceedings as a whole took up altogether seven
court days to complete. The Plaintiff presented the evidence
of five
witnesses, but the Defendant closed its case without presenting any
evidence at all. Notwithstanding, it soon transpired
during the
course of the proceedings that it is the case for the Defendant that
the Plaintiff is not unemployable at all, and that
the Plaintiff has
failed to prove his damages as far as his alleged loss of income is
concerned. In order to decide whether there
is any merit in these
contentions, it is necessary for this Court to consider the evidence
presented in some detail.
[4]
The
first witness called to testify, was the Plaintiff himself. He
testified that, after the accident, he spent some two months
in
hospital. He underwent surgery during this period for a nail and
plating with screws to be inserted into his legs, inter alia.
As a
result of all his injuries, he now has to use crutches to walk, and
he therefore has become a disabled person for all practical
purposes.
He cannot sit, nor can he stand on his feet for long periods of time.
This became evident when he requested to be allowed
to stand up after
he had spent some time sitting in the witness stand.
[5]
The
Plaintiff further testified that at the time of the accident, he was
employed by a company named Civcon as a driver, and that
he earned
some R 8 000-00 plus some R 3 000-00 overtime per month in that
capacity. During cross-examination this alleged income
became
disputed, but I will revert to this issue again later herein. It also
appeared during the course of the proceedings that
Civcon had closed
its doors in January 2015, with the result that the Plaintiff would
have become jobless in any event, had the
accident not occurred. On
the other hand, had Civcon not closed down, the Plaintiff would have
been unable to return to his job
because of his injuries. Fortunately
for him, though, he managed to secure a job on 2 July 2015 through
the intervention of a friend
of his, who mentioned his plight to a
Mr. Gonzales of a company named Hirecor.
[6]
Mr. Gonzales then employed him out of compassion, because he knew
that the plaintiff
could only drive short distances and that he was
unable to load and to offload his truck, the Plaintiff testified. To
this end,
Mr. Gonzales purchased a light truck with automatic
transmission to accommodate the Plaintiff. With this truck, the
Plaintiff undertakes
about two short trips per day, and on these
trips he has to be assisted by other employees to do the loading and
offloading. The
rest of the day he spends doing odd jobs like passing
spanners to a mechanic or updating the records of his employer. The
plaintiff
testified that his employer does not really need his
services, but that he is employing him out of sympathy only until he
gets
paid his damages by the Defendant. He is earning about R 5
500-00 per month presently, but his employment would soon come to an
end. Because of his disability, there is no prospects that he will
ever be able to find a job again, he testified.
[7]
In
cross-examination it was suggested to the Plaintiff that he is
currently rendering a specific service to his employer which is
needed by him, and that he is therefore not employed out of sympathy
only. The Plaintiff was referred to a report by his occupational
therapist, Mrs. Wendy Young, in which it is mentioned that his
current employer is satisfied with him and that he will remain in
his
employment even after payment by the Defendant. The plaintiff
vehemently denied these suggestions, saying that it would be
extremely difficult for him to continue with his employment because
of his disabilities and the pain he suffers as a result thereof.
He
added that he cannot even lift a generator. In further
cross-examination the income earned by the Plaintiff at both Civcon
and Hirecor was disputed. It was put to him that the overtime
recorded at Civcon was excessive, and that he would not have been
able to continue with those excessive overtime hours until the age of
65. It was finally suggested to the Plaintiff that he is
not
unemployable because he is still able to drive short distances as a
truck driver.
[8]
Mr.
Gregory Paul Gonzales was the next witness called by the Plaintiff.
He is a businessman and the current employer of the Plaintiff.
He
confirmed the evidence of the Plaintiff in all respects. He described
the Plaintiff as a wonderful man with a good attitude,
who is always
trying to be helpful. He has such mental strength that it can only be
regarded as a pity that he is now disabled.
Mr. Gonzales even became
emotional in the witness stand when he testified that it is a
privilege for him to know the plaintiff.
Notwithstanding, the
Plaintiff is in actual fact only costing him money in circumstances
where he does not really need him. Because
of his disabilities, the
Plaintiff always has to be accompanied by other workers when he does
the short distance deliveries, because
he cannot do the offloading
himself. Due to financial constraints, he already had to lay off 18
employees in the recent past1 and
the Plaintiff will also have to
leave once he is paid by the Defendant. According to this witness1
the Plaintiff will become unemployable
when his present employment is
terminated.
[9]
In
cross-examination Mr. Gonzales denied the proposition that the
Plaintiff would still be able to work after he is compensated
by the
Fund. He testified that there is no market for disabled drivers over
short distances. Therefore, he may perhaps only find
limited
employment with a sympathetic employer like himself. Referring to the
report of Mrs. Young, the witness pointed out that
his financial
position has changed drastically since his consultations with Mrs.
Young. He now cannot afford to employ the Plaintiff
any longer, he
testified.
[10]
Mrs. Young, the occupational therapist,
also gave evidence. She testified that the Plaintiff is only able to
do some light work.
This, however, will only realize if he finds
another sympathetic employer like Mr. Gonzales. Having examined the
Plaintiff, she
found that he could only walk with great difficulty if
he is not using his crutches. She is of the opinion, though1 that the
Plaintiff
could perhaps embark on training programs to improve his
skills, but it must be kept in mind that he will nevertheless be
unable
to sit or stand for long periods of time. In cross-examination
Mrs. Young confirmed that the plaintiff would be able to do some
light work, but not all types of light work. This would only be
possible if he finds a sympathetic employer. As for the training
to
improve his skills, the witness testified that such training happens
very rarely, because normally the employer has to pay for
such
training.
[11]
Mr.
Robert Julian Koch, an actuary, was called to testify next. He
testified that he calculated the loss of income by comparing
the
income the Plaintiff would have earned but for the accident, with the
income he earned or would earn after the accident. The
only
indication of what the Plaintiff earned before the accident,
consisted in three monthly payslips for the year 2014. The pay
slip
for May 2014 showed the total number of hours worked as 408 hours,
which is very high. He averaged the earnings indicated
on the three
payslips in making his calculations, and he regarded those three
payslips as providing a sufficient level of confidence
for the
calculations he made. Mr. Koch further testified that the hours of
overtime reflected in the May 2014 pay slip, were not
repeated in the
other two payslips. In his experience, long distance drivers do work
considerable hours overtime from time to time.
He further testified
that, in any event, the Plaintiff was earning below the income of the
industry in general at the time when
he was employed by Civcon, that
is, before the accident.
[12]
While Mr. Koch was still in the witness
stand, he recalculated the Plaintiff's loss of income as at 8
February 2019, his initial
calculations having been made as at March
2018. He came to the conclusion that the total loss for past and
future income amounts
to the sum of R 5 709 937-00. This conclusion
is based on the assumption that the Plaintiff would not be able to
find employment
again in the future, he testified. He suggested that
a contingency deduction of 5°/o be applied by the Court for the
past loss
of income, and a 15o/o contingency deduction for the future
loss of income in the present case.
[13]
In
cross-examination Mr. Koch refrained from providing an opinion on
whether the Plaintiff could do light work if he finds sympathetic
employment. Based on the information he had, he assumed the
likelihood of the Plaintiff finding employment in the future as being
nil. Questioned about the number of overtime hours reflected in the
May 2014 pay slip, he conceded that the number was high, but
in order
to cater for this, he averaged the overtime to industry acceptable
limits.
[14]
Mrs. Goodness Busi Pepu, an industrial
psychologist, was the last witness called to testify. She testified
that the impression she
gained from the Plaintiff was that he is
hard-working despite his limitations, that he is driven to earn an
income, that he is
an honest person, and that he is not fabricating.
Despite this favorable impression, she is of the opinion that it will
be difficult
for the Plaintiff to obtain any other employment. The
occupational and safety risks pertaining to himself and his employer,
should
he indeed find other employment, are high, and it should
therefore be concluded that the likelihood of finding employment
again
is low, if not non-existent. During cross-examination, it
transpired that the witness had prepared an amended report in March
2019,
which report was apparently not made available to the defence
or to the Plaintiff's own legal representatives for some unknown
reason. The proceedings therefore had to be postponed to another date
for the report to be furnished.
[15] When
the proceedings resumed again, it transpired that the second report
amended the first report in
a number of respects, also in so far as
the question of the plaintiffs earnings at Civcon were concerned. She
explained that the
three payslips she was initially provided with,
were not clearly legible. She also explained that in the first
report, she should
have taken the overtime, the subsistence and the
pension benefits into account, which she had not done. These
deficiencies were
corrected in her second report.
[16] In
cross-examination Mrs. Pepu was severely criticized for the
deficiencies in her first report. She
responded by explaining that at
the time of the first report, she had gone through a personal tragedy
which had distracted her.
Under normal circumstances she should have
called for clearer copies of the payslips, she conceded. She could
not tell whether
her second report was made available to the actuary.
Be it as it may, the evidence of Mrs. Pepu concluded the evidence
presented
by the Plaintiff. As mentioned before, the Defendant
presented no evidence at all.
[17]
In presenting final submissions to the
court at the end of the case, counsel appearing for the Defendant,
Miss Ferreira, advanced
mainly two grounds on which the Court should
not allow the Plaintiffs claim. Firstly, she contended that it was
not shown sufficiently
and convincingly that the Plaintiff was
totally unemployable. He has been rendering services to Mr. Gonzales
for the past four
years, and there is no reason why he could not
continue in that fashion in sympathetic employment elsewhere, the
argument went.
He can at least be employed doing work of a sedentary
nature, or other light work for that matter. Secondly Mrs. Ferreira
submitted
that the calculations of Mr. Koch were unreliable because
they were based on figures of income provided in the first report of
Mrs. Pepu, which figures were later proven to be wrong by her own
admission. For this reason, the Plaintiff has failed to prove
the
quantum of his damages, and his claim for past and future loss of
income should therefore be rejected, she submitted.
[18]
I cannot agree with these submissions.
The totality of the evidence presented, leaves no doubt that, on a
balance of probabilities,
the Plaintiff will never find employment
again in whatever capacity, that is unless a sympathetic employer
comes to his rescue
again somewhere in the future. The prospect of
that happening, is to my mind so minimal that it may safely be
disregarded. In the
present economic circumstances where many
thousands of able-bodied people are desperately seeking for
employment mostly without
any success, I deem the chances of a
helping employer hand reaching out at a severely disabled man
virtually non-existent.
[19]
However, on the other hand, Mrs. Pepu
testified that the Plaintiff is a hard-working man despite his
limitations, and that he is
driven to earn an income for his family.
In addition, it was the evidence of Mr. Gonzales that the Plaintiff
has a positive attitude
with great mental strength. In my view, the
indications are that the Plaintiff is not the type of person who
would be content to
sit back and do nothing once his present
employment is terminated after he is compensated. He could, for
instance, pay to be trained
for sedentary or light work in a
different field, although he cannot sit or stand for long. He may
perhaps decide to purchase property
which he could rent out for an
income, however small that income may be. Or he may perhaps decide to
purchase a light truck with
automatic transmission to generate an
income, although he will not be able to load and offload by himself.
The point is that he
may be able to generate some sort of income for
himself, despite the fact that he must be regarded as unemployable in
the open
labour market. To allow for such probabilities, I will apply
a 20°/o contingency deduction to his future loss of income, and
not the 15o/o suggested by Mr. Koch.
[20]
Secondly, it is not correct to say that
the actuary has relied entirely on the first report of Mrs. Pepu as
the basis for his calculations.
He was placed in possession of the
three salary slips at the time of his calculations. It is clear from
his calculations that he
took into account allowances and overtime,
as well as a pension subsidy which the Plaintiff had received before
the accident. This
information came from the payslips. I therefore
find no reasons to doubt the basis for the actuary's calculations. In
any event,
there is no evidence to controvert the evidence of the
actuary.
[21]
The further submission that the
Plaintiff has, as a consequence, failed to prove the amount of his
alleged damages and that his
claim should be dismissed on that basis,
is equally without any merit. It is obvious that the Plaintiff's
earning capacity has
been severely compromised by the accident. The
three payslips gave an indication of his earnings prior to the
accident, and although
they do not provide an entirely satisfactory
exposition in that respect, they must be regarded as the best
evidence available to
show the pre-accident income of the Plaintiff.
That pre-accident income then has a direct bearing on the calculation
of the future
loss of income in the present case. Such calculation is
not a matter of exact mathematical calculation, but is only
speculative,
and a court can therefore only make an estimate of the
present value of the loss, which is often a very rough estimate.
Without
actuarial assistance, a Court has to rely on what would be
fair and reasonable in a specific case, and the court's decision
would
therefore be no more than a blind guess. An actuarian
computation, on the other hand, provides the Court with at least an
informed
guess, since it has the advantage of an attempt to ascertain
the value of what was lost on a logical basis. (See
Southern
Insurance Association Ltd v Bailey N.0.1984 (1) SA 98 (AD).
[22]
What then remains to be determined is
the amount of compensation to be paid to the Plaintiff. The actuary
testified that the past
loss of income amounted to the sum of R 678
676-00. His evidence in this respect was undisputed. To this amount I
will
apply
a 5°/o contingency deduction, as suggested by the actuary, and
this equates to R 33 934-00. The net value of the past
loss of income
is therefore R 644 742-00 after the So/o d eduction. As for the
future loss of income, it is the evidence of the
actuary that it
amounts to the sum of R 5 031 261-00. As mentioned earlier, I will
apply a contingency deduction of 20% to this
amount, which equates to
the sum of R 1 006 252-00. The loss of future income is therefore the
amount of R 4 025 009-00 after the
deduction. The result is that the
total loss for the past and future income is the result is that the
total loss for the past and
future income is the sum of R 4 669
751-00. In terms of the agreement reached by the parties, the
Defendant is liable for payment
of 90o/o of this total, namely the
sum of R 4 202 776-00.
[23]
As for costs, I can find no reason to
deviate from the general rule that the successful party is entitled
to his costs. The remainder
of the orders will be in accordance with
the agreement reached by the parties.
[24] In
the premises, the following orders are made:
1.
The
Defendant shall provide the Plaintiff with an undertaking terms of
Section 17(4)(a) of the Road Accident Fund Act 1999, as amended,
to
pay 90% of the costs of the future accommodation of the plaintiff in
a hospital or nursing home or treatment or rendering of
a service or
supplying of goods to him arising out of the injuries sustained by
him in the motor vehicle collision which occurred
on 18 November 2014
after such costs have been incurred and upon proof thereof as
referred to in the medical reports filed by the
Plaintiff in terms of
Rule 36(9)(a) and(b).
2.
Judgment
1s granted in favour of the Plaintiff against the Defendant for
payment of R 720 000-00 in respect of general damages.
3.
Judgment
is granted in favour of the Plaintiff against the Defendant for
payment of R 4 202 776-00 in respect of past and future
loss of
income.
4.
Payment
of the amounts referred to in paragraphs 2 and 3 of this order shall
be paid within 14 days of the date of this order.
5.
In
the event of the Defendant failing to make payment in terms of
paragraph 4 hereof, the Defendant shall pay interest at 10, 25°/o
per annum from such date to date of payment.
6.
The
Defendant is ordered to pay the Plaintiffs taxed or agreed party and
party costs which shall include the following:
6.1
all the costs of consultations with the
Plaintiff's expert witnesses, namely Dr. Osman, occupational
therapist Wendy Young, industrial
psychologist Goodness Pepu and
actuary Koch, including the reasonable fees for preparation,
qualifying, reservation, accommodation
and traveling fees (including
air travel where incurred), and fees for attendance at court where
such witnesses actually attended
court, and the costs of their expert
reports;
6.2
the
reasonable traveling expenses (including air travel where incurred)
and accommodation expenses of the Plaintiff, the Plaintiff's
attorney, the Plaintiff's counsel and Mr. Gonzales; and
6.3
the
reasonable fees of Senior Counsel where so employed, such to include
the reasonable fees for the drafting of all heads of argument.
P.J. LOUBSER, J
For
the Plaintiff:
Adv. H. A de
Beer SC
Instructed
by:
Shireen Amod and
Company
Verulam
c/o Honey Attorneys
Bloemfontein
For
the Defendant:
Adv. J. Ferreira
Instructed
by:
Maduba Attorneys
Bloemfontein