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[2018] ZAGPPHC 710
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Du Plessis v Road Accident Fund (87933/2016) [2018] ZAGPPHC 710 (9 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 87933/2016
9/3/2018
Not
Reportable
Not
of interest to other judges
In
the matter between:
JEROME
ALPHONSUS DU
PLESSIS
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ
Introduction
[1]
The plaintiff instituted action against the defendant for damages
arising from a motor
vehicle accident at or near Grahamstown Road For
Beaufort, Eastern Cape Province on the 30 April 2015 in which he
sustained serious
bodily injuries as a passenger.
Issues of common cause and issues in dispute
[2]
Merits have been conceded 100% in favour
of the plaintiff. The issues in dispute at the commencement of the
trial included general
damages and loss of earning capacity. The
plaintiff subsequently accepted an offer of R550 000.00 in settlement
of general damages.
[3]
The remaining issue calling for
determination by this court is the determination of loss of earnings
or earning capacity. The central
issue is the employment history of
the plaintiff on which the experts rendered opinions and the actuary
premised calculations.
Synopsis
of the evidence
[4]
The joint minutes of the industrial
psychologists, orthopaedic surgeons, occupational therapists and
actuary of the plaintiff were
admitted including the respective
reports of the said experts. The reports constitute evidence which
this court may have regard
to.
[5]
The plaintiff testified in support of
his claim. No oral evidence was presented by the defendant.
The
evidence
The
Plaintiff
[6]
The plaintiff testified that he was a
plumbing technician at the time of the accident on 30 April 2015. He
was employed by Mr. Alfons
du Plessis, who is engaged in the
construction industry. A reading of the papers shows that the latter
is the plaintiff's father.
He could not indicate when his employer
commenced business or what the juristic nature of the business was.
He had been employed
by his father for 2 years and he is currently
unemployed as result of the accident and was remunerated in cash at a
rate of R1500.00
per fortnight. The plaintiff consulted many doctors
for purpose of this matter and informed them that he was employed in
the construction
industry. He disputes having told any of the experts
that he was unemployed at the time of the accident.
[7]
Under cross examination the plaintiff
testified that he attended his consultations with the various experts
alone and only he had
supplied information to them. The consultations
were in English in which he is fully conversant. The plaintiff was
taken through
personal data he furnished to Myburgh the occupational
therapist. This included completing standard 8 (grade 10), working
for Game
and Dion Wired for
one
year, as a painter at Paint Shuttle for about one year. He worked as
a construction worker for most of his life on both an employed
and
self-employed b sis. He confirmed that this information emanated from
him. On the question why he failed to mention plumbing
or a plumber,
the plaintiff maintained that "they" do everything. He
agreed that he had testified in examination in chief
that he was a
plumbing technician but cannot explain why he failed to tell Dr
Myburgh this. He further agreed it was his evidence
that he was
employed by his father. It is his evidence that he was self employed
when he was not working for his father. When confronted
with a
contention that there would have been periods that he was unemployed
or not employed by his father he testified that, (we},
would go out
on our own at times. (We) would sit at home for maybe a week or a
month and go look for work. He conceded that there
were periods he
would be at home for weeks without work.
[8]
In a similar vein, the plaintiff was taken through the report of the
plaintiffs industrial
psychologist. He confirmed that he had told the
industrial psychologist that he completed Grade 9; that pre-accident
he was unemployed
for 6 months before the accident and post-accident
he has been unemployed, having reported specifically “since
before the
accident to date.” When confronted with the
contradictory versions given to the experts, the plaintiff testified
that there
was a mistake as they were on their way from work on the
day of the accident. When told that he had not mentioned to the
aforementioned
experts that he was a plumbing technician or in
construction he repeated that on the day of the accident they were
from work. He
was drawn to silence when confronted on the
contradictory reports and his evidence in court and when pressed for
an answer testified
that he does not know what to say about the
varying information given to the experts. When confronted with
further contradictory
reports made to the experts, including why he
had told the industrial psychologist he earned R1000.00 per fortnight
as opposed
to his evidence that he earned R1500.00 per fortnight he
maintained that something was not right. He was reduced to silence
when
told that nobody could confirm his employment with Mr Alfons du
Plessis or produce salary advices showing how much he earned.
[9]
In re-examination, the plaintiff testified that he had not told any
of the experts
that he was unemployed. He confirmed his evidence
under cross examination that he was unemployed at times whilst
looking for work
in the construction industry. The plaintiff
testified that when he was not employed by Mr Alfons du Plessis he
would earn anything
between R1000.00 to R2000.00 per week depending
on the work. To explain the contradictions in his reports to the
experts he maintains
that he could have made a mistake. He could not
recall when he consulted with the experts but as shown to him he had
not been to
any of the experts within a month of the accident as he
had been hospitalised for 2 months.
The
expert evidence
[10]
Counsel for the plaintiff highlighted
extracts from the expert reports of both the plaintiff and defendant.
It was pointed out that
the plaintiff was seen by Dr Mushwana an
independent examiner on 08 July 2016 and reported to him that he was
job hunting. In the
joint minute of the occupational therapists it
was highlighted by Ms Sekele that the plaintiff informed her that he
worked as a
plumber. He told the plaintiff's industrial psychologist
that he was unemployed at the time of the accident. He told the
defendant's
industrial psychologist that he was employed as a plumber
at Lafirm Construction at the time of the accident on a permanent
basis
which his employer Mr du Plessis confirmed. He is said to have
earned roughly R1500.00 per fortnight. Counsel for the plaintiff
accordingly submits that the court should find on the evidence that
the plaintiff was a general labourer at the time of the accident.
[11]
Counsel for the defendant submits that the court is faced with three
contradictory versions;
that the plaintiff was unemployed, job
hunting or employed, without setting a basis for any of the versions
. He highlighted the
conflicting reports on the work history given to
the experts as opposed to the plaintiff' own evidence and submits
that the claim
for loss of earning capacity should be dismissed. In
the alternative he submits that if the court is inclined to find that
the
plaintiff was employed that a 50% contingency deduction be
applied to future loss of income which will equate to an award of
R486
043.05 on the postulation of the plaintiff's industrial
psychologist.
Onus
[12] The onus is
on the plaintiff to prove his case on a balance of probabilities. He
is required
to adduce sufficient evidence of his employment to enable
the court to assess and quantify the loss of earning capacity.
The
law
[13]
It is accepted that earning capacity may
constitute an asset in a person's patrimonial estate. If loss of
earnings is proven the
loss may be compensated if it is quantifiable
as a diminution in the value of the estate. The law in this regard is
trite as is
demonstrated in a very useful exposition of the law
related to a claim for diminished earning capacity, where the learned
Judge
in
Prinsloo v Road Accident
Fund
2009 5 SA 406
(SECLD) at
409C-41A quotes extracts from
locus
classicus
on the subject:
Santam Versekeringsmaatskappy Bpk v
Byleveldt
1973 2 SA 146
(A) where
the following was said at 150A-D:
'In 'n saak soos die ondei:hawige word daar
namens die benadeelde skadevergoeding geeis en skade beteken die
verskil tussen die
vermoensposis ie van die benadeelde voor die
onregmatige daad en daarna. Kyk, bv,
Union Government v Warneke
1911 AD 657
op bl 665 ... Skade is die ongunstige verskil wat
deur die onregmatige daad ontstaan het. Die vermoensvermindering moet
wees ten
opsigte van iets wat op geld waardeerbaar is en sou insluit
die vermindering veroorsaak deur 'n besering as gevolg waarvan die
benadeelde nie meer enige inkomste kan verdien nie of alleen maar 'n
laer inkomste verdien. '
Dippenaar v Shield Insurance Co Ltd
1979
2 SA 904
(A) where the following was said at 917A-D:
'In
our law, under the
lex Aquilia,
the defendant must make good
the difference between the value of the plaintiff s estate after the
commission of the
delict
and the value it would have had if
the
delict
had not been committed. The capacity to earn money
is considered to be part of a person's estate and the loss or
impairment of that
capacity constitutes a loss, if such loss
diminishes the estate.'
[14]
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
2016
(2) SA 109
(SCA) 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.'
[15]
In
Southern
Insurance Association v Bailey NO
1984
1 SA 98
, the court referred with approval to the case of
Hersman
v Shapiro and Company
1926 TPD 367
at 379 per Stratford J where the following was said:
'Monetary damage having been suffered, it is
necessary for the Court to assess the amount and make the best use it
can of the evidence
before it. There are cases where the assessment
by the Court is little more than an estimate; but even so, if it is
certain that
pecuniary damage has been suffered, the Court is bound
to award damages.'
[16]
On
the
contrary,
in
Lazarus
v
Rand
Steam
Laundries
(1946)
(Pty)
Ltd
1952
(3) SA
49
(T) at page 53 paragraphs B-F Bressler AJ, concurring with De
Villiers J, elaborated on
the
duty of the appellant to
prove
damages:
'... We were urged, on the authority of
Turkstra Ltd V Richards ,
1926 T.P.D. 276
, to find that, as there was
an admission of damage, the Court should not be deterred by reason of
the difficulty of computing an
exact figure from making an award of
damages...ln Turkstra v Richards there was an actual valuation , 'an
estimate of some sort',
in the language of Stradford, J.(as he then
was)...
It does not seem to me that Turkstra v
Richards, supra, meant that, given one or two facts, including that
of damages, a judicial
officer should then be required to grope at
large in order to come to the assistance of a litigant, especially
one whose case has
been presented in such vague way. It seems to me
that the judicial officer must be placed in such a position that he
is not called
upon to make an arbitrary or merely speculative
assessment, a state of affairs which would result in injustice to one
of the parties...'
[17]
In an unreported appeal in the Gauteng
Local Division of
Boy Petrus Modise v
Passenger Rail Agency of South Africa,
case
number A5023/2013 (11 June 2014) at paragraph [10] against the
dismissal of a claim for loss of earnings and future loss of
earnings, Wright J held:
'This is an unfortunate case. One suspects that
the plaintiff did suffer a past loss of earnings and will suffer
future loss of
earnings. However, I may not allow a suspicion nor my
sympathy for the plaintiff, to translate into a basis for awarding
damages
where the evidence does not allow this. The variables in the
equation are simply too many.'
Discussion
[18]
The oral evidence of the plaintiff
contradicts several of the expert reports. He was said to have
remunerated in cash. Whilst his
father confirmed to one of the
experts that he was employed until the accident, no further
confirmation was sought about how he
was paid and if payslips were
available. I would accept that any registered business will issue
payslips considering the fact that
statutory deductions have to be
made and paid to the relevant institutions, including SARS. The
confirmation of employment at the
time of the accident by the
plaintiff's father contradicts his own evidence and that supplied to
a number of experts. No explanation
is forthcoming from the plaintiff
why payslips are not available nor bank statements for that matter.
The variables in the contradictory
evidence are just too many. The
court is implored, notwithstanding the contradictory evidence to
essentially embark upon conjecture
and speculation in exercising a
wide discretion in awarding loss of income and earnings. I am not at
large to do so.
[19]
I am not convinced that the plaintiff
has proven the heads of damage for loss of income and earning
capacity on a balance of probabilities.
At most at this stage he
stands to be compensated for general damages sustained as result of
his injuries.
Order
[20]
In the result:
1.
Absolution from the instance is granted
in respect of the claim for loss of income and earning capacity.
2.
General damages as agreed is awarded in
an amount of R550 000.00.
AH
PETERSEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
Appearances
For the Plaintiff: Adv. VM
Magwane
Instructed by: MG Mali
Attorneys
For
the Defendant: Adv. AM Masonbuka
Instructed
by: Diale Mogashoa Attorneys
Date
Heard: 28 February 2018
Date
of Judgment: 09 March 2018