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[2018] ZALMPPHC 46
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Nyaka v Road Accident Fund (54/2015) [2018] ZALMPPHC 46 (9 May 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO: 54/2015
In
the matter between:
ELECK
NYAKA
:PLAINTIFF
And
ROAD
ACCIDENT
FUND
:DEFENDANT
JUDGEMENT
SEMENYA
J:
1.
Plaintiff instituted action against the defendant for general damages
and loss of earnings/earning capacity. The action arises
out of a
motor vehicle accident that occurred on the 15 March 2013 along
Dresden-Burgersfort road. The plaintiff was a passenger
in a motor
vehicle with registration numbers and letters [D...] when it collided
with another vehicle.
2.
At the onset of the trial, the parties informed me that the defendant
has already conceded 100% liability in favour of the plaintiff.
The
issue of general damages has also been settled and the defendant has
furnished the plaintiff with an undertaking in terms of
section 17
(4) of the Road Accident Fund Act for future medical expenses. There
is no claim for past medical expenses.
3.
The outstanding issue for determination by this court is whether the
plaintiff suffered loss of earnings/earning capacity as
a result of
the accident. The parties agreed that this issue can be resolved
based on the oral evidence of occupational therapists
who could not
agree on this point as well as other expert reports filed by the
parties.
4.
The parties agree that the plaintiff sustained left knee and head
injuries, right mandible fracture which resulted in deformity,
neck
and spine injuries.
5.
The plaintiff and Ms Petronella Radzuma (occupational therapist)
testified for the plaintiff. The defendant led the evidence
of Ms
Kgomotso Montwedi, also an occupational therapist.
6.
Plaintiff testified that he passed Grade 12 in 2002. He is a holder
of a code 10 driver’s licence. He secured employment
as a taxi
driver in 2009 and was earning R1200.00 per month. He returned to
work 6 weeks after the accident but quit the very same
day of his
reporting when his employer refused his request to keep the taxi at
his place of residence after hours. He added further
that another
reason why he quit was because his spine was painful. He stated
that it was difficult for him to turn his head
and observe mirrors as
he used to do before the accident.
7.
Plaintiff testified further that he had intended to remain in the
taxi industry and aspired to have a taxi of his own. He stated
that
the requirement was that he should be under the employ of somebody
else as a taxi driver for a period of five years before
he can be
given a licence to own one.
8.
He remained unemployed for some time after the accident but
subsequently secured part time employment at Boxer Super Store in
bulk section. He is earning between R1500.00 –R3000.00 per
month. His daily duties entailed packing 25kg of, maize meal,
10kg of
sugar, samp and rice as well as filling the refrigerator with cool
drinks etc.
9.
At some stage the manager became aware that he was not coping with
the type of work allocated to him and shifted him to cleaning.
It
soon became clear to him that he is not coping with the task and was
again shifted to the parcel counter. Plaintiff stated that
this task
was also strenuous as customers would bring big and heavy bags to the
parcel counter. He constantly suffers from headache
which he treats
with bruffen. He stated that his employer is not threatening to
expel him. He depends on his co-workers who
allow him to rest at
intervals.
10.
Ms Radzuma testified that she examined the plaintiff on the 6 March
2915. She found that the plaintiff’s ability to do
medium work
has been reduced and further that he will not cope with work that
requires cognitive thinking. According to Ms Radzuma,
the plaintiff
is less competitive because he requires accommodation. She confined
examination to sedentary, medium and heavy lifting.
She stated that
it would have been illegal for her to go beyond heavy object lifting
because of the plaintiff’s own weight.
According to her test,
she found that the plaintiff had already reached his maximum level of
improvement.
11.
During cross-examination Ms Radzuma stated that she ordinarily
refers to other medico-legal reports whenever she does
her
examinations. She conceded that she was aware of the conclusions
arrived at by Dr Williams, orthopaedic appointed by the plaintiff,
wherein he stated that he does not foresee any need for future
treatment of the plaintiff’s knee nor does he foresee the
possibility of future loss of income. She further agreed that Dr
Wlliams did not state in his report that the plaintiff sustained
neck
injury which could support her conclusion that the plaintiff’s
ability to work as a taxi driver has been compromised.
12.
Ms Radzuma stated that the job of a cleaner and a packer requires
good cognitive endurance. She agreed that during consultation
the
plaintiff did to inform her that he left his job as a taxi driver
because of neck pain. When asked as to whether she agrees
that the
reasons for the plaintiff’s leaving his job as a taxi driver is
not accident related, Ms Radzuma stated that she
does not know why he
wanted to go home with the taxi.
13.
Ms Montwedi, the defendant’s occupational therapist testified
that she was not in possession of other medico-legal reports
when she
examined the plaintiff. She however had the reports when she made her
findings. She stated that the plaintiff informed
her that he
left his job as a taxi driver because his employer did not allow him
to keep his taxi at home after hours. According
to her, the plaintiff
is suited for sedentary, light, medium and occasionally heavy duty
and has the residual capacity to work
as a taxi driver. She stated
that she is aware that Dr Mazwi, a neurosurgeon appointed by the
plaintiff stated in his report that
the plaintiff does not have
mental disturbance. Ms Montwedi, stated further that the plaintiff is
able to lift up to 24kg weights
safely but that she noted that 27kg
was too heavy for him.
14.
During cross-examination Ms Montwedi conceded that she does not know
the type of work the plaintiff is currently doing. She
further
conceded that the findings arrived at by other experts, including
that of Dr Mazwi, do not have a bearing on her own conclusions
as she
was not in possession of the relevant reports as at the time of
reporting. She further stated that she did not do the cognitive
tests
because she was not in possession of the psychologist’s report
and further that the plaintiff did not report that he
has cognitive
challenges.
15.
In Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at
917B it was held that it was held that:
“
In
our law, under the Lex Aquilia, the defendant must make good the
difference between the value of the defendant’s estate
after
the commission of the delict and the value of 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 loss,
if such loss diminishes
the estate.”
16.
It was argued on behalf of the plaintiff that the evidence of Ms
Montwedi should be disregarded on the basis that she failed
to
enquire about the plaintiff’s current employment. It was
further submitted that I should have regard to the scenario
of the
plaintiff’s industrial psychologist only and accept it as the
most fair and reasonable scenario.
17.
It was contended on behalf of the plaintiff that I should find that,
but for the accident, the plaintiff would have been able
to continue
with his job as a driver. It was submitted that the evidence of the
plaintiff that he wanted to work as a truck driver
and that he loves
the job very much was unchallenged. I fail to find any reason why the
defendant should be required to contest
the evidence of the
plaintiff’s own ambition.
18.
The industrial psychologists agree that the plaintiff has been
compromised to a degree by the accident and that the accident
related
injuries have affected his vocational possibilities to a degree.
It is however not correct, as submitted by the plaintiff,
that both
industrial psychologists agree that, but for the accident, the
plaintiff would have been able to continue to be a driver.
On the
contrary, Ms Krause (for the defendant) opines that with a driver’s
licence, the plaintiff, post- accident, may still
function as a
semi-skilled driver in the non-corporate environment.
19.
My understanding of Mr Smit’s(for the plaintiff) opinion on the
other hand is that the plaintiff will find it difficult
to secure
employment as a driver, not because of the accident, but because of
the economic climate in South Africa. The defendant’s
contention that the plaintiff’s inability to work as a driver
is not accident related seems to me to be common cause to most
experts.
20.
I further agree with the defendant’s contention that the
plaintiff’s evidence that he cannot continue to work at
the
Super Store because of the injuries he sustained in the accident
should be rejected. Ms Rudzani’s opinion is not in line
with
the opinions of other experts. Dr Williams noted that the knee injury
on the LEI is calculated at 0% and that he does not
foresee any
future treatment for it.
21.
Dr Segwapa, a specialist neurosurgeon appointed by the plaintiff,
reported that the plaintiff denied any sufferings from headaches.
He
opines further that the pain on the right lumber is caused by
sleeping on the right lateral position and therefore not because
of
the neck injury as plaintiff has alleged. I conclude, based on expert
reports, that the plaintiff is still employable and retains
residual
capacity to work as a taxi driver.
22.
My finding that the plaintiff retains residual capacity to drive a
taxi is further supported by reasons furnished by the plaintiff
himself as to why he left his job. Firstly, it is because his
employer did not allow him to keep the taxi at his own home. This
cannot be not be related to the accident. Secondly, it is because his
neck was painful. This is not supported by expert evidence.
23.
Ms Rudzane’s findings are rejected on the following
grounds. She testified that she was in possession of Dr William
and
Dr Segwapa’s reports at the time of assessment. She nonetheless
ignored his findings that he does not foresee any future
loss of
income and future treatment of the knee. Furthermore, on cognitive
functions, she again ignored Dr Segwapa’s
observation
that the plaintiff paid attention well during the interview and
sustained it throughout and that he has no neuro-physical
impairments. Although Ms Rudzane testified that the plaintiff found
it difficult to carry out certain tasks at the Super Store,
I am
unable to find any correlation between his inability to do so and the
injuries he sustained as a result of the accident.
24.
With regard to pre-morbid scenario, it is indeed so that the
industrial psychologists’ report that the industry related
salaries for taxi drivers is R4000.00. However, it cannot be correct
that the plaintiff was under paid as he was not employed on
a
permanent basis. He earned a salary of a part time taxi driver. I
agree with the plaintiff’s contention that there is no
evidence
that he would have progressed to full time employment in that regard
(due to high level of employment). I therefore find
that his past
earning should be calculated on the basis that he was earning
R1200.00 pre-accident.
25.
Having rejected the evidence of the plaintiff and that of Ms Rudzani,
I however note that according to the joint minutes of
the industrial
psychologists, the plaintiff’s accident –related injuries
has affected his vocational possibilities
to a degree. No light is
shared with regard to the extent thereof (it is unclear as to a
“certain degree” means). I
will accept, based on the
joint minutes of industrial psychologists, that the plaintiff has
been compromised to a certain degree.
He is entitled to be
compensated for this compromise.
26.
With regard to the calculation of loss, I find the following
statement made by Nicholson JA in Southern Insurance Association
Limited v Bailey NO
1984 (1) SA 98
(A) at 113F-114Eto be of
assistance;
“
While
the result of an actuarial computation may be no more “an
informed guess,” it has the advantage of an attempt
to
ascertain the value of what was lost on a logical basis; whereas the
trial judge’s “gut feeling” (to use the
words of
the appellant’s counsel) as to what to what is fair and
reasonable is nothing more than a blind guess.”
27.
I have decided to calculate the plaintiff’s loss as per the
actuarial calculations of Munro’s scenario 2, as it
is in line
with the findings that the plaintiff is still employable. I accept
that the plaintiff will be able to work up to the
age of 65.
28.
It is trite that contingencies (the hazards of life) are within the
discretion of the court – Van der Plaats v SA Mutual
Fire and
General Insurance Co Ltd 1980(3) SA 105(A) . In view of the findings
that the plaintiff can still work post-accident,
I agree with the
defendant’s argument that a higher contingency of 30% for
future loss and 5% for past loss should be applied.
29.
In the result I give judgement for the plaintiff as follows:
29.1.
Payment of;
1.1.
R11 000.00 for past loss; of earning
1.2.
R256 060.00 for future loss; of earning capacity
29.2.
The defendant would not be liable for payment of interest on
condition that payment is made timeously;
29.3.
In the event of the defendant not making payment timeous, the
defendant will pay interest of 10% per annum on the amount stated
in
1.1 and 1.2.
29.4.
In addition the defendant shall pay the following
29.5.
The defendant shall pay the plaintiff’s costs on the High Court
party and party scale. Such costs shall include the
fee and
qualifying expenses of all experts witnesses that prepared
medico-legal reports that referred to during argument;
29.6.
Costs of travelling costs of the plaintiff to attend the medico-legal
examinations with the defendant’s experts.
29.7.
The reasonable costs of attending the examinations and obtaining the
medico-legal, reports and such reports addendum and any
joint
reports;
29.8.
The costs of preparation of the trail bundle; and
29.9.The
reasonable costs of the plaintiff’s attorney which shall
include travelling costs, attendance to court, costs of
preparation
of pre-trial conferences and formulation of pre-trial minutes and the
costs of actual attence of pre-trial conference.
___________________________
SEMENYA M.V
JUDGE
OF THE HIGH COURT, POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF : MR. MASHABELA M.D
INSTRUCTED
BY :
MASHABELA ATTORNEYS
FOR
THE DEFENDANT : ADV. MAMPHADENI
INSTRUCTED
BY :
HAMMANN MOOSA INC.
DATE
OF HEARING : 15 FEBRUARY 2018
DATE
OF JUDGEMENT : 09 MAY 2018