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[2018] ZAGPPHC 453
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Ubisi v Road Accident Fund (31563/2014) [2018] ZAGPPHC 453 (13 February 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 31563/2014
13/2/2018
Not
Reportable
Not
of interest to other judges
In
the matter between:
MBONGISENI
UBISI
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ
[1]
The plaintiff instituted action against
the defendant for damages suffered as a result of injuries he
sustained as a pedestrian
in a motor vehicle collision that occurred
on the 24
th
of December 2012 at approximately 20h00pm at Mdlala Trust,
Tonga between a motor vehicle with registration number [….]
driven by the first insured driver and a motor vehicle with unknown
registration number and himself.
[2]
The issue of liability (merits) has been
resolved in favour of the plaintiff with the defendant undertaking to
pay 80% of plaintiff's
proven or agreed damages. The defendant has
further given a statutory undertaking in terms of
section 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
for the future medical and
related expenses of the plaintiff. An agreement has been reached on
amount of R450 000 for general damages.
The issue of contingencies to
be applied to past and future loss of income remains in dispute. The
actuarial report of the defendant
is accepted as the basis for
arguments on contingencies.
[3]
The submissions on the issue in dispute
is premised on the joint minutes of the Occupational Therapists (E
Theron and R Kukuu),
the Industrial Psychologists (HT Kraehmer and CJ
Nel); and the Orthopaedic Surgeons (Dr Booyse and Dr Blignaut).
[4]
There is clear discrepancy between the
information reported to the Occupational Therapists and the
Industrial Psychologists on the
plaintiff's level of education. The
Occupational Therapists note that the plaintiff passed Grade 11,
whilst the Industrial Psychologists
note that he whilst he failed two
grades at school, he obtained grade 12 in 2011 at the age of 20. I
accept, however , that the
plaintiff made available his Senior
Certificate to Kraehmer and that should be accepted as the true
factual reflection. Pre-morbid
the plaintiff was employed by
lishlangu Sokuvikela Business Enterprise, his uncle's business. The
plaintiff supplied conflicting
information to the Industrial
Psychologists on what he earned at the time, claiming earnings of
R750 and R1500 per month respectively;
reporting to Kraehmer that he
resigned his position as general worker at the business prior to the
accident following a dispute
with his employer; and he was therefore
unemployed at the time of the accident whilst reporting to Nel that
he was still working
as a general worker at the time the accident
occurred. Kraehmer moves from the premise that if the plaintiff was
indeed unemployed
at the time of the accident, it should be accepted
that, given his age, he was still within the initial expected period
of unemployment
(usually two to three years), which is usually
associated with matriculants. The industrial psychologists agree that
in an uninjured
state, the plaintiff would initially have secured
employment in the informal sector of the labour market, probably
towards the
end of 2013, as was the case post-accident.
[5]
The occupational therapists note that
the plaintiff has previous experience in the open labour market as a
general worker, making
bricks, as a car wash assistant and as a
barman, with some experience as a taxi driver, general farm worker
and road maintenance
worker. The positions required light and medium
to heavy physical capacity. He was not able to cope with walking and
standing for
long hours; performing medium to heavy work and the long
hours of continuous driving. Post accident he would be expected
to
comply with work demands requiring sedentary physical capacity and
aspects of light physical capacity, provided standing and walking
to
a significant degree is not required. As a result of his injuries, he
is at a disadvantage with regards to competitiveness and
choices of
suitable work in the open labour market and would need reasonable
accommodation. The occupational therapists note that
according to Dr
Blignaut, he is of the opinion that even after successful surgery
he
d
oes
not think
that plaintiff would be
able to compete or secure work in the open labour market. (my
emphasis.)The industrial psychologists similarly
note that Dr Booyse
agrees with Dr Bliganaut on this score.
[7]
The resilience and tenacity of the
plaintiff post-accident is noteworthy and certainly admirable, if one
considers his eagerness
to work in the face of adversity and
notwithstanding conflicting information supplied. According to
Kraehmer the plaintiff reported
that he was unable to work for 4
months, where after he searched for employment, remaining unemployed
for some 10 months (until
October 2013). Nel was informed that he
remained unemployed for some 5 months following the accident until he
secured employment
at Mtunzini Bar and Lounge, earning R800.00 per
month, until he resigned 7 months later in December 2013. Kraehmer
was informed
by the plaintiff that he was employed by Big Time Bar as
a bartender in November 2013 and worked in this capacity for
approximately
two years. His employer at the time confirmed that he
earned R800 per month (R9600 per annum) and approximately R200 per
month
(R2400 per annum) from gratuities. His income at that time was
in accordance with his expected earnings in the informal sector.
Nel
was informed by the plaintiff that he was employed by the Big Time
Bar from January 2014 to June 2015, earning R800 per month.
At this
point it should be clear that information reported by the plaintiff
to the industrial psychologists regarding his employment
history is
contradictory.
[8]
The plaintiff reported to Kraehmer that
he was employed by an unknown employer on a short, fixed-period
contract from December 2015
to March 2016 to build a "walkway"
where he earned R5000 per month. To Nel he reported that he was
employed by an unknown
construction company as a general worker from
July 2015 to March 2016, but could not recall his income for the said
period. During
this period until at least October 2016 he is also
reported to have worked as a bartender at Big Time Bar once again, as
a car
washer and a gardener. In November 2016 he worked as a taxi
driver earning R1800 per month until at least the end of April 2017.
Until at least October 2017, the plaintiff worked amongst others, as
a gardener or builder on a part-time basis until he returned
to Big
Time Bar where he to date works as a bartender earning R800 per
month.
[9]
The industrial psychologists agree that
the plaintiffs residual pathology has curtailed his career options
and he will be an unequal
competitor in the open labour market and he
will be constrained to his current capacity in the informal sector.
They further agree
that exact financial impact associated with,
amongst others, the risk of prolonged periods of unemployment,
whilst not capable
of reliable prediction merits a
recommendation that significantly higher than normal post-accident
contingency deductions be applied.
They embellished in this view by
the opinion of Dr Blignaut and that of the occupational therapists
which leaves little room to
move.
[10]
Premised on the aforementioned, there is
a dispute
between the parties regarding
the contingencies to be applied to future loss of income. The
difficulty in quantifying
the monetary value of loss in claims of
this nature is succinctly stated in Terblanche v Minister of Safety
and Security and Another
at paragraph [14]:
The
difficulty with claims of this nature is generally not so much the
recognition that earning capacity constitutes an asset in
a person's
estate, but rather the quantification of the monetary value of the
loss of earning capacity by a trial court.
Each case naturally
depends on its own facts and circumstances, as well as the evidence
before the trial court concerned.' (my emphasis)
[11]
It is submitted on behalf of the
plaintiff that the contingency deduction on the value of income but
for the accident should be
10% rather than 20% premised on a
submission that the plaintiff was unemployed pre-morbid. This
submission does not take account
of the fact that whilst the
plaintiff gave conflicting accounts to the industrial psychologists
on his pre-morbid employment, he
was gainfully employed in various
capacities. I can therefore see no
reason
why the 20% contingency utilised
by the actuary is not reasonable. On the value of income having
regard to the
accident it is submitted that a higher than usual
contingency of 70% be applied , considering the opinion of Dr
Blignaut, the defendants
expert, with whom Dr Booyse concurs that
even after surgery he does not think that the plaintiff will be able
to compete or secure
work in the open labour market. The plaintiff
has shown resilience on the objective facts, albeit conflicting at
times by seeking
employment unconstrained by his medical deficits.
The Industrial Psychologists are in agreement a significantly higher
post-accident
contingency should be applied. The actuary applied a
35% contingency deduction to the post-accident earnings. In the
ordinary course
that in itself is significantly high. To my mind,
having regard to the totality of the facts, a fair percentage would
be 50% in
this context.
[12]
I am satisfied that the calculations
with the contingencies applied by the actuary based on the evidence
is otherwise sound in respect
of the pre-accident earnings, and that
the calculation premised on the non-corporate sector as postulated by
Ms Nel is appropriate.
With due regard to the reasons stated above, a
fair award that the plaintiff is entitled to should be calculated as
follows:
General
damages
R450 000.00
Past
Loss of Income
R42 178.00
Future
Loss of Income
R563 000.00
Total
R 1 055 178.00
[19]
In the result I make the following order, which is set out in the
Draft Order marked "X"
as incorporated in this order as
follows:
1.
The Plaintiff is entitled to 80% of his
proven/agreed damages.
2.
The Defendant pays to the Plaintiff the
amount of R450 000.00(Four Hundred and fifty thousand rand) as
general damages, R42 178.00(Forty
two thousand one hundred and
seventy eight rand) as past loss of income and R563 000 (Five
Hundred and Sixty Thousand Rand)
as future loss on income by Paying
into the Plaintiff's Attorneys Trust Account with account number [….]
at Standard Bank
White River.
3.
The Defendant will furnish to the
Plaintiff an undertaking in terms of
section 17(4)
(a) of the
Road
Accident Fund Act, 56 of 1996
, to pay the costs of the future
accommodation of the Plaintiff in a hospital or nursing home, or
treatment of or rendering of a
service to him or supplying of goods
to him arising from the injuries sustained by him in a collision
which occurred on 24 December
2012 after the costs have been
incurred;
4.
The Defendant shall pay the Plaintiff's
taxed or agreed party and party costs on the High Court scale, to
date subject thereto that
such costs shall include the following:
4.1
The costs of Plaintiff's counsel;
4.2
The costs of all medico-legal,
actuarial, addendum and joint reports served by the Plaintiff, as
well as such reports furnished
to the Defendant or its Attorney or in
the Defendant’s possession, including the costs of any
investigations requested by
the relevant expert;
4.3
The qualifying fees of the
experts referred to in paragraph 4.2 above;
4.4
The reasonable costs incurred by
and on behalf of the Plaintiff in, as well as the costs consequent to
attending the medico-legal
examinations of both parties;
4.5
The costs of all necessary
witnesses and or Plaintiff who attended Court.
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA
APPEARANCES
For
the plaintiff: Adv. G Lubbe
Instructed
by: Schutte De Jong Inc
For
the defendant: Adv. K Mhlanga
Instructed
by: Diale Mogoshoa Inc
Date
heard: 12 February 2018
Date
of judgment: 13 February 2018
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
On
this the 12
th
day of February 2018 before the
Honourable Ledwaba, DJP, in Court 8E
Case
no: 31563/2014
In
the matter between:
MBONGIS
E
NI
UBISI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DRAFT
ORDER
AFTER
HEARING COUNSEL THE COURT MAKES THE FOLLOWING ORDER
1.
The
Plaintiff is entitled to
80%
(eighty)
of
his proven/agreed damages;
2.
The Defendant pays to the Plaintiff the
amount of
R 450 000-00 as
general damages and R42178 as part of R563 000-000
by
paying into the Plaintiff’s Attorneys Trust Account with
account number [….] at Standard Bank White River, the total
amount of
R1 055 178.00.
3
.
The
Defendant will furnish to the Plaintiff with an undertaking in terms
of section 17(4)(a) of Act 56 of 1996 to pay the costs
of the future
accommodation of the Plaintiff in a hospital or nursing
home, or treatment of or rendering of a
service or supplying of
goods to his arising from injuries sustained by him in a collision
which occurred on 24 December 2012 after
the costs have been
incurred;
4.
The
Defendant shall pay the Plaintiff's taxed or agreed party and party
costs on the High Court scale, to date subject thereto
that
such costs shall include the following:
4.1
The costs of Plaintiff's counsel;
4.2
The costs of all medico-legal,
actuarial, addendum and joint reports served by the Plaintiff, as
well as such reports furnished
to the Defendant or it's Attorney or
in the Defendant's possession, including the costs of any
investigations requested by the
relevant expert;
4.3
The qualifying fees of the experts
referred to in paragraph 4.2 above;
4.4
The reasonable costs incurred by and on
behalf of the Plaintiff in, as well as the costs
consequent to attending
the medico-legal examinations of both
parties;
4.5
The costs of all necessary witnesses and
or Plaintiff who attended Court.
BY
THE COURT
REGISTRAR
FOR
PLAINTIFF:
SCHUTTE DE JONG
INC (D6678)
ADVOCATE
G LUBBE -
082 783 0411
FOR
DEFENDANT:
DIALE MOGASHOA INC
ADVOCATE
K MHLANGA-
079 235 56030