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[2018] ZAGPPHC 567
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Maluleke v Road Accident Fund (98018/2015) [2018] ZAGPPHC 567 (7 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
·
NOT REPORTABLE
·
NOT OF INTEREST TO OTHER
JUDGES
·
REVISED
CASE NUMBER: 98018/2015
7/3/2018
In
the matter between:
MALULEKE,
EMMANUEL
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
VUMA,
AJ
BACKGROUND
[1]
On 29 November 2017 I heard the trial
herein. On 30 November 2017 I reserved Judgment but made an Order
which appears on paragraph
40 hereof. I now give a full Judgment in
respect thereof.
[2]
The plaintiff is a 35 year old male
previously employed as a general worker, specifically as a supervisor
cum
plumber
. The plaintiff sues the defendant for damages suffered as a result
of personal injuries sustained in a motor vehicle collision
that
occurred on 11 August 2013 on the N1 South, direction Lethlabile in
Gauteng. At the relevant time the plaintiff was a passenger
in the
motor vehicle with registration numbers [….].
[3]
On 21 August 2015 the defendant conceded
liability thereby undertaking to pay 100% of the plaintiff's proven
or agreed damages,
thus the matter proceeded to trial on the issue of
quantum only.
[4]
At the outset of the proceedings the
parties agreed to argue the matter only on the basis of the
plaintiff's expert reports and
the joint minutes filed by the
experts.
THE ISSUES
[5]
Following a pre-trial conference held
between the parties on 23rd November 2017, the issues left for
determination are:
5.1
General damages; and
5.2
Past and Future loss of earnings.
INJURIES
AND SEQUELAE
[6]
The plaintiff filed the medico-legal reports appearing below herein
in which his injuries
are detailed:
6.1
Dr E Mennen, an Orthopaedic surgeon;
6.2
Dr A Pauw, a clinical psychologist;
6.3
Ms A Greeff, an Occupational therapist;
6.4
Ms R van Zyl, an Industrial
psychologist; and
6.5
Mr C Heymans, an Actuary.
[7]
The defendant also filed two
medico-legal reports, namely:
7.1
Ms Letta Selamolela, a clinical
psychologist; and
7.2
Ms Adelaide Phasha, an Occupational
therapist.
[8]
From the abovementioned
plaintiffs medico-legal reports, the extent of the plaintiffs
injuries, treatment and
sequelae
are
summarised as follows:
8.1
A right humerus fracture;
8.2
A soft tissue or crush injury;
8.3
A stiff right shoulder;
8.4
A Mild to moderate post-traumatic stress
disorder (PTSD); and
8.5
Depression.
[9]
The plaintiff was treated at
Jubilee Hospital. From there he was transferred to Ga-Rankuwa /
George Mukhari hospital (although
the Industrial psychologist medico-legal report states that he was
transferred to Steve Biko hospital)
for about a period of almost a
month where he received a U-slab and wore a plaster of paris for the
humerus fracture which was
removed after a week. He had to wear a
sling for another three weeks since his arm was still not well. Upon
examination it was
found that the plaintiffs right shoulder had a
decreased range of motion. He was then referred for physiotherapy and
asked to follow-up
in 2 months' time at his Local clinic.
[10]
Over and above the injuries stated in paragraph 8 above, according to
Dr Mennen's report the
plaintiff confirms the injury to his right
arm. Dr Mennen concludes that the plaintiff is suffering a
significant lack of range
of motion of his right dominant shoulder
and pain, which pain and injury result in a functional impairment
concerning both the
latter's employment as a supervisor in the
construction of man holes and pipes and his sport, which is
Karate, which he used
to participate in.
[11]
For the future, Dr Mennen states that
the plaintiff has suffered a significant loss of working capacity due
to the lack of range
of motion of the right shoulder and also because
of the pain he experiences on the very shoulder. He allows for
conservative treatment
.in the form of continued physiotherapy .
Future surgery-wise, although he does not rule it out, Dr Mennen
doubts if same will
increase the plaintiffs right humerus' range of
motion.
[12]
In her report, Ms A Greeff, the
occupational therapist's opinion is similar to that of Dr Mennen in
that both state that the plaintiffs
right humerus fracture has
negatively affected his general functioning in daily life, inclusive
of affecting the amenity enjoyment
and capacity for earning a viable
income. She accepts that the plaintiff will probably benefit from
physiotherapy and conservative
intervention, even on completion of
the recommended surgical interventions. She further states that the
plaintiff may not benefit
from any such recommended surgical
intervention. She then recommends that occupationally, the plaintiff
will benefit from garden
assistance of once a week in summer and
twice a month in winter, considering that he experiences pain on
inclement weather.
[13]
She states that during examination, the
plaintiff was not able to meet the required rate set for the open
labour market of 87,5%
with his executions. She further states that
the plaintiff does have the physical capacity to resume occupation
within the sedentary
to light physical ranges. She admits that
although she accepts that the plaintiff does probably have the
physical capacity to resume
occupation as a supervisor, what remains
is that he would still need to be selective in the type of
supervisory position that he
secures- in that it should not require
any physical hands on tasks.
[14]
The industrial psychologist, Ms R
van Zyl, states that due to dropping out of High School in 2000 after
repeating his Grade
11, the odds are stacked against the plaintiff in
the labour market, especially when one considers the physical
limitations imposed
on him by the injuries he sustained following the
collision. Furthermore, his lack of formal vocational training also
indicates
that he would probably only have been able to function in
an unskilled/ low-level semi-skilled capacity within the labour
market.
Ms van Zyl notes that though the plaintiff was previously
employed as a plumber, the said job is a skilled occupation. She
states
that despite his bank statements not clearly indicating the
source of the payments, they seem to confirm the plaintiffs reported
earnings. In respect of the plaintiffs pre-morbid employability
profile, Ms van Zyl states that despite the plaintiff having
functioned
in the achievement career phase, he had probably reached
his career pinnacle and would therefore had migrated through the
remaining
career stages until normal retirement.
[15]
Of much importance is the fact that both
parties agreed to use the amounts of R 319 896-00 and R1 428 139-00
in respect the plaintiffs
loss
re
both his past and future loss of
earnings as a baseline.
SUMBISSIONS
RE
CONTINGENCIES
AND PAST AND FUTURE LOSS OF INCOME /EARNING CAPACITY
[16]
Mr Maritz for the plaintiff submits that
prior to the collision the plaintiff was a general worker,
alternating between being a
brick layer and a plumber. The
plaintiff's highest qualification is a Standard 8 and this fact
therefore mean that pre-morbid,
he had to rely primarily on his
physical abilities to generate income for himself and his family. He
submits that the fact that
the plaintiff has suffered severe
orthopaedic injuries due to the collision means that his physical
ability has been to a large
degree diminished. It also means that in
all probability the plaintiff may never be able to do heavy work and
that furthermore,
he is now consequently limited to sedentary or
light work. He further submits that given the plaintiff's
qualification which is
coupled with the lack of drive he is
experiencing, it is near impossible for the plaintiff to can find
such a sedentary or light
work. His competitiveness in the labour
market has been compromised gravely and further that the
psychological
sequelae
due
to the injuries the plaintiff sustained are astounding.
[17]
He submits that even if the alternative
job for the plaintiff could be that of a supervisor as he previously
was before the collision,
it still will not be viable for the
plaintiff given the fact that the said position has some physical
requirements to it. He submits
that for the past 4 years the
plaintiff had not been to find a job due to the
sequalae
of the collision.
[18]
Mr Maritz further disagrees with the
defendant's counsel's submission that the court must apply a
contingency similar to pre and
post morbid and not the customary 5%
in respect of the plaintiff's past loss of income. He proposes the
following as the most equitable
and fair percentages to be applied
under the circumstances:
18.1
FOR PAST LOSS OF
INCOME
Past pre- & post morbid- 5%
contingency, that is, R303 901-00
18.2
FUTURE LOSS
Post morbid future loss of income=
50% contingency =R714 069-00 Future post- morbid earnings@ 40% = R571
255
Future loss post-morbid@ 50%
reduction =Total loss is R714 069-00
[19]
In his submissions, Mr Masombuka for the
defendant argues that the timeline in respect of plaintiff's 5 (five)
year pre-morbid unemployment
periods as recorded in Ms van Zyl's
Industrial psychologist's report are somewhat discomforting and
directly impact on the differential
ultimately to be applied to
redress same. He argues that from the Industrial psychologist's
report it is recorded that the only
period for which the plaintiff
was ever employed for an uninterrupted period was in 2013 as a
supervisor employed by a Mr JC Morapedi.
He argues that same should
be interpreted as an indication that the plaintiff was habitually a
person of 'unemployed' status despite
the collision. He buttresses
this submission by referring to the fact that even with regard to the
said supervisory position he
held just before the collision, the
contract thereof would have ended exactly a week after the date of
the collision.
[20]
The defendant's counsel further raises
the issue of the plaintiff not having provided proof regarding his
alleged earnings. He further
submits that in the orthopaedic
surgeon's report it is stated that the plaintiff's supervisory job
would have expired a week prior
to the collision, arguing that in
light thereof it would therefore mean that the presupposition that
'but for the collision the plaintiff
would still be employed
naturally
falls away. He further submits that the plaintiff's job as a
supervisor was on a temporary basis which would have expired
as
stated above regardless. On this basis the defendant's counsel
submits that a 5% past loss pre morbid and a 10% future
loss
post-morbid should be applied in respect of the plaintiff's loss of
income.
[21]
In respect of the future loss of income,
Mr Masombuka further submits that post- morbid, the plaintiff in fact
suffered no loss
since he is in a position to can still do
supervisory work, otherwise a compromise of 10% should be applied. He
argues that such
approach is motivated by the fact that from the
experts' reports, it is evident that the plaintiff had not always had
a job. Counsel
for the defendant further argues that their approach
is also motivated by the Actuarial report which, he submits, is
misleading
considering that it does not provide for the plaintiff's
lengthy periods of unemployment, hence the defendant's application of
a higher post-morbid contingency. To this end defendant's counsel
proposes a 20% contingency differential and that same be applied
as
follows:
Pre-morbid-
15%
spread
Post
-morbid-
35%
contingency.
[22]
In respect of the above suggestion, she
argues that this approach effectively brings us to a 20% contingency
differential which
is way higher than the ordinary 10% and 20%
respectively. He submits that under the circumstances, the above
approach is fair and
reasonable. He is still of the view that the
plaintiff's supervisory job stands him in good stead.
[23]
In respect of the
past
loss of income,
the defendant's
counsel submits that lack of income by the plaintiff or lengthy
unemployment periods is nothing new to the latter.
He however submits
that the defendant will apply a spread of 10% or 15% which brings the
payable amount to R31 989-60 and disagrees
with the plaintiff's
suggestion that a 50% contingency be applied. For
future
loss of income
the defendant
suggests a 20% spread = R285 627-80
GENERAL DAMAGES
[24]
For general damages the plaintiff's
counsel submits that an amount of R400 000-00 be awarded whereas the
defendant's counsel counters
same with an amount of R250 000-00. He
refers the court to,
inter alia,
the
matter of
Fortuin v Minister of
Safety and Security
(2728/02)
[2007] ZAWCHC 3
(25 January 2007)
where
the court, in making the award, took into account the fact that the
plaintiff lacked motivation following the cause of action,
which
affected his earning capacity. He submitted that the court should
factor these
sequelae
in
as appears in the clinical psychologist's report.
[25]
Mr Masombuka refers to the 1968 Mesia
matter heard in the Orange Free State High Court (OFS) where an award
of R1 250-00 was made
in
re
general
damages, the current value of which is R92 000-00. He further refers
to the
Maxula
and
Ndaba
cases, submitting that although
the said two cases were applicable in
casu,
the defendant will not apply the
principle thereof. The reference to the
Maxula
matter is rejected by the
plaintiffs counsel on the basis that the
Maxula
principle could never be applicable
in
casu
since
in
Maxula
the
plaintiffs earnings were never placed in dispute. As stated above the
defendant's counsel counter-offers the plaintiffs claim
with an
amount of R250 000-00.
THE
LAW
[26]
It is common cause that matters which
cannot otherwise be provided for or cannot be calculated exactly, but
which may impact upon
the damages claimed, are considered to be
contingencies. As was held in the matter of
De
Jongh v Gunter
1975 (4) SA 78
(W) 8OF
,
such matters are usually provided
for by deducting a stated percentage of the amount or specific
claims.
[27]
In the matter
of
Bums v National Employers
General Insurance
Co
Ltd
1988 (3) SA 355
(C)
365 ,
it
was held that contingencies include any possible relevant future
event which might cause damage or a part thereof or which may
otherwise influence the extent of the plaintiffs damage.
[28]
It was also held in the matter of
AA
Mutual Association Ltd v Maqula
1978 (1) SA 389
(W)
,
that the percentage of the
contingency deduction depends upon a number of factors, which factors
are usually taken into account
over a particular period of time,
generally until the retirement age of the plaintiff.
[29]
Colman J provided a useful exposition in
Burger v Union National South
British Insurance Co 1975 (4)
SA
72 (W)
75
,
of the approach to be adopted by the Court:
" A related aspect of the
technique of assessing damages is this one; it is recognised as
a
proper, in an
appropriate case, to have regard to relevant events which may occur,
or relevant conditions which may arise in the
future. Even when it
cannot be said on
a
preponderance of
probability that they will occur or arise, justice may require that
what is called
a
contingency
allowance be made for
a
possibility of
that kind."
[30]
In the final analysis, what has to
prevail is what was held in the matter of
Shield
Insurance
Co
Ltd
v Ha/11976
4
SA
431
(A) 444
,
that the provision for
contingencies falls squarely within the subjective discretion of the
court as to what is reasonable and fair.
[31]
It is common cause that contingencies of
whatever nature generally serve as a control mechanism to adjust the
loss to the circumstances
of the individual case in order to archive
justice and fairness to the parties. As was held in the matter of
Hall v RAF 2013 (6J2) QOD 126
(SGJ)
,
the
question of the contingencies deductions to be applied, as is the
calculation of the quantum of a future amount involving,
in
casu,
loss of earning capacity, is
often difficult. The Court has a wide discretion based on a
consideration of all the relevant facts
and circumstances.
ANALYSIS
[32]
It is my view that the defendant's
submissions regarding the plaintiff's future employability prospects
are somewhat unrealistic.
It is for these reasons that I find
contingency deduction suggested by the defendant's counsel not
reasonable or fair in respect
of both the plaintiff's future loss of
earnings, past loss of income and the general damages.
[33]
I am of the further view that the fact
that post the collision, the plaintiff will henceforth primarily
depend on sympathetic employment.
I am of the further view that this
finding should and can be mitigated by a moderately post-morbid
higher contingency deduction,
although not of the proportion as
suggested by the plaintiff's counsel. This finding is in in view of
the fact that the plaintiff
would be disadvantaged in an open labour
market and thus should weigh in his favour.
[34]
Bearing all of the above in mind, I am
therefore inclined to agree with Mr Maritz that based on the
sequelae
of the plaintiff's injuries, he
moderately higher contingency deduction in respect of the future
post-morbid loss of income is reasonable
and fair. I am mindful that
in applying an appropriate contingency to the plaintiff's post-morbid
earnings, his employability prospects
need not be established as a
probability but as a mere possibility.
[35]
In arriving at the award in respect of
the plaintiff's past loss of income, it should be noted that I relied
on Scenario 2B of Mr
Heymans' actuarial report, with the past
pre-morbid income stated as R303 901. Taking into account the
totality of the facts
in
casu,
I am of the view that a 50% reduction thereof is fair and reasonable
under the circumstances. The reason for this view is
because the
longer and rampant episodes of plaintiffs unemployment should have
been provided for in the report by the actuary as
correctly submitted
by the defendant's counsel.
[36]
With regard to the plaintiffs future
post-morbid loss of earnings/ earning capacity, it should be noted
again that I relied on Scenario
2 of Mr Heymans' actuarial report,
where both the future pre-& post- morbid income is stated as R1
428 139. Taking into account
the totality of the facts
in
casu, I am of the view that a 55%
reduction thereof is fair and reasonable under the circumstances. The
reason for this view is
because the plaintiffs historical employment
overview is such that by the very nature of his education, past and
future, there
would have been in the future periods when he would
have been unemployed, despite this collision. This finding is
especially supported
by,
inter alia,
the fact that the plaintiff would
still have been unemployed a week after the collision since his
contract as a supervisor would
have come to an end.
[37]
I am of the view that the contingency
deductions applied will serve both parties equitably by balancing
both their interests.
[38]
With regard to the general damages, from
the case law the court was referred to, I could not find one that was
comparable in terms
of both the injuries and the awards. Whereas the
plaintiff submits that an amount of R400 000-00 would be a reasonable
award with
the defendant's counsel suggesting an amount R250 000-00,
having considered the authorities cited by the parties, the injuries
suffered by the plaintiff and the
sequelae
thereof , and the future medical
intervention the plaintiff is yet to undergo, I have come to the
conclusion that an award in the
amount of
R300
000-00 (THREE HUNDRED THOUSAND RAND)
would
be appropriate compensation for general damages in the present case.
[39]
In the result I find that the plaintiff has proven his claim to the
extent as appears in the
Order below herein:
[40]
ORDER:
1.
The
Merits are settled on the basis that the Defendant shall pay 100% of
the Plaintiff's proven or agreed damages.
2.
The
Defendant shall pay to the Plaintiff the sum of
R300
000-00 (THREE HUNDRED THOUSAND RAND
only)
in respect of General Damages.
3.
The
Defendant shall to the Plaintiff the sum of
R151
950-60 (ONE HUNDRED AND FIFTY ONE THOUSAND NINE HUNDRED AND FIFTY
RAND AND SIXTY CENTS).
4.
The
Defendant shall pay to the Plaintiff the sum of
R642
662-55 (SIX HUNDRED AND FORTY TWO THOUSAND SIX HUNDRED AND SIXTY TWO
RAND AND FIFTY CENTS).
5.
Thus
the Defendant shall pay to the Plaintiff the sum total
R1
094 613-15 (ONE MILLION AND NINETY FOUR THOUSAND RAND SIX HUNDRED AND
THIRTEEN RAND AND FIFTEEN CENTS)
in
respect of General Damages, past and future loss of earnings/ earning
capacity.
6.
In
the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount at the rate
of
10.25% per annum, calculated from the 15
th
calendar day after the date of this Order to date of payment.
7.
The
Defendant shall furnish the Plaintiff with an undertaking in terms of
Section 17(4)(a) of Act 56 of 1996 for payment 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 him
resulting from the injuries sustained by the Plaintiff in the motor
vehicle accident that occurred on the 11
th
August 2013, to compensate the Plaintiff in respect of the said costs
after the costs have been incurred and upon proof thereof
limited to
100%.
8.
The
Defendant shall the Plaintiff's taxed or agreed party and party costs
on the High Court scale, subject thereto that:
8.1
In
the event that the costs are not agreed:
8.1.1
The
Plaintiff shall serve a notice of taxation on the Defendant's
attorney of record;
8.1.2
The
Plaintiff shall allow the Defendant 14 (FOURTEEN) Court days from
date of allocator to make payment of the taxed costs.
8.1.3
Should
payment not be effected timeously, the Plaintiff will be entitled to
recover interest at the rate of 10.25% per annu8m on
the taxed or
agreed costs from the date of the allocator to date of final payment.
8.2
Such
costs shall include but not limited to:
8.2.1
The
costs incurred in obtaining payment of the amounts mentioned in
paragraphs 2 and 5 above;
8.2.2
The
costs of and consequent to the employment of Senior junior
Counsel, including counsel's charges in respect of his full
day fee
for 29 November 2017, as well as reasonable preparation;
8.2.3
The
costs of all medico-legal, radiological, actuarial, accident
reconstruction, pathologist, and addendum reports obtained by the
Plaintiff, as well as such reports furnished to the Defendant and/ or
its attorneys, as well as all reports in their possession
and all
reports contained in the Plaintiffs bundles, including, but not
limited
to
the
following:
8.2.3.1
Dr E Mennen - Orthopaedic surgeon
8.2.3.2
Dr Annalie Pauw - Clinical psychologist
8.2.3.3
Anneke Greeff - Occupational therapist
8.2.3.4
Renee van Zyl - Industrial psychologist
8.2.3.5
T Doubell- Actuary
8.2.3.6
P Maleka - Interpreter
8.2.4
The
reasonable and taxable preparation, qualifying and reservation fees,
if any, in such amount as allowed by the Taxing Master,
of the
following experts:
8.2.4.1
Dr E Mennen - Orthopaedic surgeon
8.2.4.2
Dr Annalie Pauw - Clinical psychologist
8.2.4.3
Anneke Greeff - Occupational therapist
8.2.4.4
Renee van Zyl - Industrial psychologist
8.2.4.5
T Doubell- Actuary
8.2.4.6
P Maleka - Interpreter
8.2.5
The
reasonable costs incurred by and on behalf of the Plaintiff in, as
well as the costs consequent to attending the medico
legal
examination of both parties.
8.2.6
The
costs consequent to the Plaintiffs trail bundles and witness bundles.
8.2.7
The
cost of holding all pre-trail conferences, as well as round table
meetings between the legal representatives for both the Plaintiff
and
the Defendant, including counsel's charges in respect thereof.
8.2.8
The
cost of and consequent to compiling all minutes in respect of
pre-trial conferences.
8.2.9
The
reasonable travelling costs of the Plaintiff, who is hereby declared
a necessary witness.
82.10 The reasonable costs for the
eyewitnesses present at court, if any.
9.
The
amounts referred to above will be paid to the Plaintiffs attorneys,
Spruyt Incorporated as per the Consent and Instruction,
by direct
transfer into their trust account, details of which are the
following:
Standard Bank
Account number: [….]
Branch code: Hatfield (01 15 45)
REF: SD 1870
10.
There
is no contingency fee agreement between the Plaintiff and Spruyt
Incorporated Attorneys.
L VUMA
Acting Judge of the High Court
Gauteng Division, Pretoria
Heard: 29 November 2017
Judgment delivered:
March 2018
Appearances:
For Plaintiff: Adv S.G. Maritz
Instructed by: Spruyt Inc.
For
Defendant: Adv A Masombuka
Instructed
by: Diale Mogashoa Attorneys