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[2018] ZAGPPHC 450
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Nel v Road Accident Fund (8854/2015) [2018] ZAGPPHC 450 (9 March 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 8854/2015
9/3/2018
Not
Reportable
Not
of interest to other judges
In the matter between
HENRIETTE
NEL
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ
[1]
The plaintiff Henriette Nel instituted
an action for damages against the defendant in terms of the
provisions of the Road Accident
Fund Act, Act 56 of 1996 ("the
Road Accident Fund Act") arising from bodily injuries that she
sustained as a passenger
in a motor vehicle collision on 19 October
2012 at approximately 17h00 at Mimosa Street, Wavecrest, Jeffreys
Bay.
[2]
The issue of liability (merits) have
been conceded 100% in favour of the plaintiff. General damages were
previously settled an amount
of R450 000.00 and an undertaking given
in terms of section 17(4)(a) of the Road Accident Fund Act in respect
of future hospital
and medical costs. The sole issue for
determination by this court is loss of earnings. The parties'
submissions of the calculations
have been premised on the actuarial
calculations of the plaintiff's actuary, Munro Actuaries in respect
of future loss of earnings
dated 22 February 2018.
[3]
The main issue left to be determined, in
light of the submission of counsel for the defendant, is the
applicable contingencies to
be applied. Both parties filed numerous
medico-legal reports of various experts. The parties' agreed that the
said reports may
be accepted as evidence by the court.
[4]
The orthopaedic injuries sustained by
the plaintiff which are relevant to the main issue in dispute are
common cause and include:
4.1
a comminuted fracture of the left tibia
and fibula, involving the tibial plateau;
4.2
tri-malleolar fracture of the right
ankle.
[5]
The plaintiff completed grade 12 and
thereafter obtained two Tour Guide certificates, a post graduate
certificate in Creative Writing,
Diplomas in Travel and Tourism and
Small Child Development; and BA and BA Honours degrees from UNISA. At
the time of the accident
the plaintiff was unemployed. From 1997 to
2007, the plaintiff held many jobs, including that of a tour guide in
Gauteng and the
Western Cape, a teacher at Higher Technical School,
Gardens in Pretoria and various nursery schools and as a secretary.
The plaintiff's
last fixed employment prior to the accident was at
Elmar College in Pretoria where she was employed for approximately 1
year until
her resignation in 2007 for personal reasons and her
return to Jeffrey's Bay to live with her parents. She presently
remains unemployed,
on the premise that she cannot teach or work as a
tour guide as a result of her previous injuries.
[6]
Dr D.A. Birrell, the plaintiff's
Orthopaedic Surgeon, states in his report that he estimates the
plaintiff's present loss of work
capacity for work as teacher or tour
guide, which requires standing or walking most of the day to be in
the region of 25%. In 2014,
already Dr Birrell opined that assuming
the plaintiff who then was 38, returned to work as a teacher, where
she would hopefully
find some degree of accommodation from time to
time in her work situation and with a loss of work capacity of some
25%, she would
be able to work, until about the age of 50 as a
teacher, but thereafter would only be able to do work of a totally
sedentary nature.
[7]
Maretha Davel of Carina Liebenberg
Occupational Therapists notes that having matched the physical test
results of the plaintiff
to her previous job as teacher, her standing
and walking endurance tested functionally poor and as a result she
does not meet the
inherent requirements of a teacher.
[8]
The parties' agree that but for the
accident the plaintiff would have returned to work as a teacher. The
Industrial Psychologists
in their joint minute agree that the
plaintiff in the vent of her return to teaching would enter the
labour market at entry level.
Ms Nicolene Kotze, the plaintiff’s
industrial psychologist, was called to testify. Ms Kotze's evidence
was left undisputed
in respect her postulations which were used by
the actuaries in the actuarial calculations. The only issue taken
with Ms Kotze
is that the plaintiff was unable to provide salary
advices of her previous employment as a teacher to provide proof of
her income
at the time of the accident. Notably the plaintiff was
unemployed at the time of the accident and had been for 5 years. In
any
event, the Industrial Psychologists, agree that for
quantification purposes they agree that when the plaintiff secured
employment,
she could have progressed from the lower quartile of
Paterson 84, to the upper quartile of Paterson 85 by age and then
onwards
only annual inflationary increases would have applied. They
defer to the defendant's industrial psychologists report for the
salaries.
[9]
The Industrial Psychologists further
agree that if the plaintiff was able to secure employment as a
teacher again but for the accident
she would then have been able to
earn on par with the salaries indicated by Robert Koch (Quantum
Yearbook 2018): Teacher (4 years
tertiary) R245 700 - R556 035 per
annum. They postulate that in considering the expert opinions
available to them, that the plaintiff's
job choices have been
significantly curtailed and she would presently only be able to
perform work of a sedentary nature, but would
be reliant on a
sympathetic employer. Jobs that she is qualified for including
teaching and tour guide would then no longer be
available to her. The
industrial psychologists differ on one point; for the defendant it is
postulated that the plaintiff would
still be able to earn an income
as anticipated in the pre accident scenario, whilst for the
plaintiff it is postulated her
income would differ premised on
salaries in the clerical/administrative fields in the Jeffrey's Bay
area, unless she sought employment
in the bigger metros. In the final
analysis both industrial psychologists agree that it would be apt to
apply higher than normal
post morbid contingency deductions,
considering the totality of difficulties that the plaintiff presents
with.
[10] The parties
argued the issue of contingencies on scenario 3 of the actuarial
report; premised
on Ms Kotze's postulations. Mr Marumo for the
defendant contended that a 50% contingency deduction be applied
premised on the lack
of proof of income pre-morbid in the form of
salary advices.
[11]
Ms Coetzee for the plaintiff contended
that a 5% contingency deduction on the past uninjured income was low
and proposed that 10%
would be more reasonable in the circumstances
of this matter considering the fact that the plaintiff was unemployed
at the time
of the accident. On the future uninjured income with
retirement age at 65, the plaintiff would be left with 23 years to
work. On
the basis of
Goodall v
President Insurance
1978 (1) SA 389
0/V), Ms Coetzee contends that applying a ½ % per year to
retirement age would bring one to 11,5%. It is contended that
this
then be doubled to 23% to account for the plaintiff being unemployed
at the time of the accident. On the future injured income
it is
contended that a 65% contingency be applied considering the
plaintiff's reduced employment opportunities and the job market
in
Jeffrey's Bay.
[12]
In
Shield
Insurance Co Ltd v Booysen
1
79 (3)
SA 953
(A) at 965 G-H, Trollip JA stated:
'...
the determination of allowances for such contingencies involves, by
its very nature, a process of subjective impression or
estimation
rather than objective calculation, in other words, allowances on
which judicial opinions may vary appreciably...'.
[13]
In
Southern
Insurance Association v Bailey NO
1984
(1) 98 AD at 113 to 114C D, two approaches that e:an be used to
determine future loss of earnings is identified by Nicholas
JA:
"One is for the Judge to make a round
estimate of an amount which seems to him to be fair and reasonable.
That is entirely
a matter of guess work, a blind plunge into the
unknown. The other is to try to make an assessment by way of
mathematical calculations,
on the assumptions resting on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions,
and these may vary from the strongly
probable to the speculative. It is manifest that either approach
involves guesswork to a greater
or lesser extent. In a case where the
Court has before it material on which an actuarial calculation can
usefully be made, I do
not think that the first approach offers any
advantage over the second. On the contrary, while the result of an
actuarial computation
may be no more than an "informal guess"
it has the advantage of a logical basis".
[14]
Robert J Koch refers to the sliding
scale contingency theory as set out in Goodall
supra.
That theory embraces:
½
% per year to retirement age, i.e 25% for a child, 20% for youth and
10% in middle age"
[15]
I am satisfied that the application of a contingency of 10% be
applied to the past uninjured
income. Whilst the parties agree that
the plaintiff in all probability would have returned to teaching
post-morbid, I cannot lose
sight of the fact that she remained
unemployed and had not been pursuing a career as a teacher for a
period of 5 years prior to
the accident. Her work history as a
teacher was also not stable.
[16]
Having regard to the totality of the
evidence I am satisfied that a 10% contingency deduction be applied
to the past uninjured income
as agreed, that a 30% contingency
deduction be applied to the uninjured income in the future loss, and
a 65% contingency deduction
be applied to the injured income in the
future loss scenario. The net total loss of income accordingly
amounts to R4 281 850.00.
[17] The order
granted is in terms of the order attached marked X, duly incorporated
into the judgment,
with the insertion of the amount of R4 281 850.00.
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
Appearances
For the Plaintiff: Adv. L
Coetzee
Instructed by: Werner
Boshoff Inc.
For the Defendant: Adv. RL
Marumo
Instructed by: Morare
Thobejane
Inc. Date Heard: 27 February
2018
Date
of Judgment: 09 March 2018
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Before the Honourable Justice Petersen, AJ
On the 27
th
day of February 2018
Case number: 8854/2015
In the matter between:
HENRIETTE
NEL
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
DRAFT
ORDER
THE
FOLLOWING ORDER IS MADE AN ORDER OF COURT:
1.
The
Defendant is ordered to pay the Plaintiff the amount of R
4,281,850.00 (Four Million, Two Hundred and Eighty One Thousand,
Eight Hundred and Fifty Rand) which amount shall be paid to the
Plaintiffs Attorneys,
Werner Boshoff
Incorporated,
in payment of the
Plaintiffs claim for past and future loss of earnings/ earning
capacity.
2.
In
the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount at the relevant
prescribed per annum, calculated from the 15
th
calendar day after the date of this Order to date of payment;
3.
The
Defendant shall pay the Plaintiff's taxed or agreed party and party
costs on the High Court scale.
3.1
The party and party costs shall include:
3.1.1.
the costs incurred in obtaining payment
of the amount mentioned in paragraph 1 and 2 above;
3.1.2.
the costs of senior-junior counsel which
will include reasonable preparation and trial costs for the trial of
27 February 2018;
3.1.3.
the costs to date of this order, which
shall further include the costs of the attorneys, necessary traveling
costs and expenses
(time and kilometres), preparation for trial and
attendance at Court;
3.1.4.
the costs of all medico-legal,
radiological, actuarial, addendum and joint reports obtained by the
Plaintiff and furnished to the
Defendant and/or its attorneys;
3.1.5.
the reasonable preparation, qualifying
and reservation fees, if any, as allowed by the Taxing Master, of the
experts as referred
to above, including the attendance fees of Ms.
Kotze (Industrial Psychologist) for the trial on the 27
th
of February 2018;
3.1.6.
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;
3.1.7.
Plaintiffs costs for preparing 6
(six)
trial bundles;
3.1.8.
the costs of holding all pre-trial
conferences, as well as round table meetings between the legal
representatives for Plaintiff
and Defendant, including senior-junior
counsel's charges in respect thereof; costs from date of allocatur to
date of final payment.
4.
The
amounts referred to above will be paid to the Plaintiffs’
attorneys,
Werner Boshoff
Incorporated ,
by direct transfer
into their trust account, the details of which are as follows:
Account
holder: WERNER BOSHOFF INC TRUST
ACCOUNT
Bank:
Standard Bank, Lynnwood Ridge
Branch Code:
012 445
Account
no:
[.…]
Ref:
W B0SHOFFNK/MAT391
BY
THE COURT
:
REGISTRAR
On
behalf of Plaintiff
:
Adv. Lezanne Coetzee
083 324 9540
On behalf of Defendant:
Adv. R.L. Marumo
072180 3175