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[2017] ZALMPPHC 45
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Mukhari v Road Accident Fund (200/2016) [2017] ZALMPPHC 45 (25 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 200 / 2016
Not
reportable
Not
of interest to other judges
Revised.
25/10/2017
In
the matter between:
MUKHARI,
VUKATIMUNI
SYLVIA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
SIKHWARI
AJ
[1]
In
this matter merits are settled 100% in favour of the plaintiff. The
issue of future medical expenses has been settled by way
of a
certificate in terms of Section 17(4)(a) of the Road Accident Fund
Act. Plaintiff’s injuries and possible treatment
thereof is
common cause.
[2]
The issue of general damages was referred to the HPCSA. The issue
before court is for the determination of applicable contingencies
on
the loss of earning.
[3]
It is common cause that the plaintiff is 40 years of age, having been
born on the 9 May 1977. The cause of action arose from
a motor
vehicle accident that occurred on the 21 October 2012 at Bambeni
village along the main road from Giyani to Mageva area
in Limpopo
province where the plaintiff was a passenger in the insured motor
vehicle to wit CNR 233 L being driven by Shiviti Mbhazima
Norman.
[4]
It is common cause between the parties that plaintiff sustained
injuries which are described as soft tissue injury to the cervical
spine, soft tissue injury to lumbar spine and sof tissue injury to
the thoracic spine. The parties agreed to argue the matter on
papers
without leading evidence.
[5]
The plaintiff’s submission is that past loss of earning should
be subject to 5% contingency deduction and future loss
of earning
should be subject to 30% deduction. Plaintiff submitted that at the
time of the accident she was employed as a domestic
worker. After the
accident she could only do incidental to light duty functions. She
will not be able to do medium and heavy duty
activities. The employer
is no satisfied with the plaintiff’s performance and the risk
of losing her job is very high. It
was submitted that there is
likelihood that in 2022 plaintiff will be unemployed.
[6]
Plaintiff prays that 5% contingency deduction be done in respect of
past loss of earning of R160 720. For the same reasons,
a
deduction of 30% contingency be effected on the future loss of
earning on the earning capacity of R334 990. The plaintiff
prays
that the fair and reasonable award will be a total amount of
R236 510.
[7]
The defendant argued that the plaintiff’s injuries are minor as
there is no bone injury. The plaintiff’ injuries
were
conservatively treated was not left with exercises and
bed rest. It was argued that the intensity of the symptoms
has
deteriorated since the accident.
[8]
Defendant argued that the plaintiff was paid all her salary
notwithstanding that she stated that she was not paid. Her salary
scale is R1 500 per month as opposed to R1 600 per month
which she claimed to earn. It was argued that there was no past
loss
of earning. The defendant concedes that the only scenario that could
be justified is scenario 2 which has the amount of R46 620
as
the fair and reasonable amount to be awarded to the plaintiff.
[9]
Contingency determination is a matter which is within the discretion
of the court. That discretion has to be exercised judicially.
In the
case of
Legal
Insurance Company Ltd v Botes
1963 (1) SA 608
(A)
at
page
614F
that
“
in
assessing the compensation the trial judge has a large discretion to
award what under the circumstances he considers right. He
may be
guided but is certainly not tied down by inexorable actuarial
calculations”.
[10]
In the case of
Dippenaar
v Shield Insurance Co Ltd
1979 (2) SA 904
(A)
at para
[9]
it was stated that
“
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 his estate”.
[11]
In the case of
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD
194
,
the court stated that “
it
is no doubt exceedingly difficult to value the damage in terms of
money, but that does not relieve the court of the duty of doing
do
upon the evidence which has been acted on in several cases in South
African”.
[12]
In the case of
Goodall
v President Assurance Company
1978 (1) SA 389
(WU) at pages 392H –
393A, Margo. J
stated that
“
in
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the sort of
science
of foretelling the future, so confidently practiced by ancient
prophets and soothsayers, and by modern authors of a certain
type of
almanac, is not numbered among the qualifications for judicial
office.”
[13]
Margo J stated further at page
393A–E
that
“
In
Van
Rensburg’s
case the plaintiff was 25 years old, and in
De
Jongh’s
case,
which was a claim by dependents for loss of support, Nicholas J,
adopted the figure of 20 per cent for contingencies in relation
to
the deceased’s earning power, the deceased having been
approximately 25 years of age at the time of his death.
Van
RD, N.O v Employers ’Liability Assurance Corporation Ltd,
1964
(4) SA 737
(W)
,
but reported on this point only in Corbett and Buchainan, Vol. 1 at
p.618, in another instance of 20 per cent being allowed for
contingencies, the plaintiff in that case being a minor who had not
embarked on a firm career. In the well-known case of
Sigourmay
v Gilbanks, 1960(2) SA 552 (AD),
SCHREINER, JA, at p.569, made provision for contingencies in an
amount equal to approximately 16 per cent. The plaintiff in that
case
was 33 years of age, a fact which appears from the report of the case
in the Appellant Division, or in the court of first
instance, or
Corbett and Buchanan”.
[14]
Margo J stated further in page
393F–G
in
Goodall case
(supra)
that
“
In
the present case, however the plaintiff is 46 years of age, as
already noted, so that the period for which contingencies must
be
taken into account will be much shorter than in the cases cited
above. Although his working career has been undistinguished,
he
has been a pretty steady employee, changing his job only in an
endeavor to improve his prospects.
“
He
has enjoyed good health apart from his injuries and the consequences
thereof, and he appears, to judge from his background to
be a
responsible and reasonable individual. In these circumstances I
consider that the allowance for the possibility of yet further
promotion to the post of sectional manager, I consider that the
provision for contingencies should not exceed 10 percent.”
[15]
In my view, the plaintiff has not suffered any past loss of earning.
The plaintiff’s claim for past loss of earning will
fail.
suffered future loss of earning.
[16] as regard to the
future loss of earning capacity, the plaintiff has been able to show
such loss; and as such she will succeed
in that front. The awarded
amount will be subject to contingency deduction of 30% for future
loss of earning capacity. Although
her injuries were treated to a
large extent, but the pain and the sequelae will be there for a
fairly longer period. The plaintiff’s
claim on future loss of
earning should succeed with costs.
[17]
Accordingly I make the following order:
1.
That
the plaintiff’s claim for past loss of earning is dismissed.
2.
shall
pay the plaintiff the sum of R236 510.00 (two hundred and
thirty-six thousand five hundred and ten rand) for loss of
earning.
3.
Interest
on the above amount at the rate of 10.25% per annum from the 1
December 2017 to the date of final payment.
4.
That
the defendant shall furnish the plaintiff with an undertaking in
terms of Section 17 (4) (a) of the Road Accident Fund Act,
Act No. 56
of 1996, as amended, in respect of future medical expenses.
5.
That
the defendant shall pay the plaintiff’s taxed or agreed party
and party costs, including the costs and / or qualifying
fees of the
following experts:
5.1
Dr
TJ Enslin
5.2
Dr
HB Enslin
5.3
Dr
Joachim FL Mureriwa
5.4
Rixile
Consulting
5.5
Dr
Mpho Zwane
5.6
Munro
Actuaries
_________________________
MS
SIKHWARI AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For
Plaintiff
: Adv MD Mphahlele
Instructed
by
: Baloyi Attorneys
For
Defendant
: Adv TI Ngwana
Instructed
by
: Hamman-Moosa Inc
Date of
Hearing
:
22 August 2017
Date of
Judgment
:
25 October 2017