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[2017] ZALMPPHC 46
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Mokgotho v Road Accident Fund (1989/2014) [2017] ZALMPPHC 46 (25 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 1989 / 2014
Not
reportable
Not
of interest to other judges
Revised.
25/10/2017
In
the matter between:
MOKGOTHO
JEMESHIA
HLOMOHANG
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
SIKHWARI
AJ
[1]
In
this matter merits are settled 100% in favour of the plaintiff on the
15 June 2015. 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]
It is common cause that the plaintiff has suffered no past loss of
earning. The issue of general damages was referred to the
HPCSA. The
issue before court is for the determination of future loss of earning
capacity; and applicable contingency thereof.
[3]
It is common cause that the plaintiff is almost 24 years of age,
having been born on the 8 February 1993. The cause of action
arose
from a motor vehicle accident that occurred on the 2 February 2013 at
or along the R37 road at Ga-Kgwete near Burgersfort
when the
plaintiff was a passenger in a motor vehicle to wit CGP 585 L which
was involved in a motor collision with the vehicle
to wit BKX 920 L.
[4]
It is common cause between the parties that plaintiff sustained
injuries which are described as a mild head injury, soft tissue
injury to the neck, soft tissue injury to the back and scar of the
forehead. The parties agreed to argue the matter on papers without
leading evidence.
[5]
It is common cause that the plaintiff was in Grade 12 when the
accident occurred. The plaintiff has failed and repeated one
secondary school grade prior to the accident. School reports were not
provided. She failed Grade 12 in 2013 and counsel of the
plaintiff
attributed same to the accident. She passed supplementary exam in
2014. She is struggling with her tertiary studies where
she is
enrolled for electrical engineering certificate at the FET in 2015she
has failed three major subjects.
[6]
The plaintiff’s submissions in support of future loss of
earning capacity are that the plaintiff has a long terms
neurocognitive
impairment or deterioration to her cognitive,
behavioural and psychiatric functioning. According to Ms Monyela, the
sequelae to
the accident will disadvantage the plaintiff in manual
skills careers. She may be suffering from post-concussion syndrome.
She
did complain to her occupational therapist of blurry vision, loss
of memory, recurring headache especially in inclement weather.
She
also complained of painful neck which gets worse when she moves her
neck and lower back pain when she sits for a long period.
Dr Moloto
of the defendant was of the view that the plaintiff is exaggerating
her complaints.
[7]
The plaintiff prays for contingency deduction of 20 per cent and
referred the court to various decisions.
[8]
The defendant contend that the plaintiff has the basic life skills t
live independently. The plaintiff has managed to retain
her working
ability as a student. No complaints have been raised regarding her
performance. The defendant contends further that
the plaintiff’s
occupational therapist has confirmed that it is expected that if the
plaintiff follows the recommended treatment,
she will be able to
perform jobs that are medium to heavy in nature with improved
endurance capacity and further that the plaintiff
will be able to
compete fairly well in the open labour market, and her working life
is not expected to shorten as a result of the
accident.
[9]
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”.
[10]
In
Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA)
the
court held that there must be a proof that the reduction in the
earning capacity indeed gives rise to peculiarly loss when Jones
AJA
stated in para (11) that
“…
where
a person’s earning capacity has been compromised, ‘that
incapacity constitutes a loss
,
if such loss diminishes the estate’
(Rumpff
CJ in the above quotation from
Dippenaar’s
case)
and ‘he is entitled to be compensated
to
the extent that his patrimony has been diminished’
(Smalberger
JA in
President
Insurance Co Ltd v Mathews)
… A physical disability which impacts upon capacity to earn
does not necessarily reduce the estate or patrimony of the person
injured. It may in some cases follow quite readily that it does, but
not on the facts of this case. There must be proof that the
reduction
in earning capacity indeed give rise to pecuniary loss”.
[11]
The court in
Rudman
went
further to warn the courts that they must guard against making an
award in the final analysis which is based on speculation
rather than
evidential foundation.
[12]
In the case of
Naude
v Road Accident Fund 2013 (6C5) QOD 8 (GNP)
it was held in para (29) that
“
the
court must accordingly do the best it can on the material available
to it and in exercising its discretion the court must consider
an
award which it considers to be just and fair under all
circumstances.”
[13]
It is manifest that in determining loss of earning capacity and / or
applicable contingencies either approach involves some
degree of
guesswork to some extent. In the case of
Bhekisisa
Simon Dlamini v Road Accident Fund
(599188/13)
[2015] ZAGPPHC 646 (3 September 2015
)
at
para [31]
the
court stated that
“
when
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so with necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position of the plaintiff
would have succeeded to life rather than to accept them. Both
favourable and adverse contingencies have to be taken into account
in
determining the appropriate contingency deductions. Bearing in mind
that contingencies are not always adverse, the court should
in
exercising its discretion lean in favour of the plaintiff as he would
not have been placed in the position where his income
would have to
be the subject of speculation if the accident had not occurred.”
[14]
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.”
[15]
In my view, there is overwhelming evidence from other experts which
contradicts the baseless opinion of the plaintiff’s
industrial
psychologist to the effect that “
the
accident has had a definite negative impact on Ms Mokgotho’s
physical and emotional capacities. The accident injuries
have not
only limited her future prospects and work capacity but it has also
affected her entire life in terms of family, career
and potential for
earning. She should be adequately compensated for her loss of earning
in respect of her injuries and limitations
of future work prospects…”
[16]
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”.
[17]
It was further stated in
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”.
[18]
On taking into account the nature and extent of the plaintiff’s
injuries as well as the opinion of various experts herein,
except the
plaintiff’s industrial psychologist, I am not persuaded that
the plaintiff has suffered any future loss of earning
capacity. The
injuries she has sustained will heal and restore her full premorbid
condition if she can follow the treatment properly.
There is no
evidence based on the facts to sustain the suspicion that her
inability to pass Grade 12 at once and her challenges
at the FET are
connected to the accident. In the absence of her school reports, I am
persuaded on the evidence before me that the
plaintiff is a person of
average ability on academic matters.
[19]
in my view, the actuarial calculations of the plaintiff are without
basis as there is no evidence of future loss of earning.
I cannot be
tied to the actuary if I find no basis for same, as I did in this
case.
[20]
The plaintiff’s claim for future loss of earning capacity
should fail. I see no reason why costs should not follow the
event.
[21]
I accordingly make the following order:
1.
The
plaintiff’s claim for future loss of earning capacity is
dismissed with costs.
_________________________
MS
SIKHWARI AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For
Plaintiff
: Adv HL Ngomane
Instructed
by
: Makgahlela Mashaba
Attorneys
For
Defendant
: Mr PT Rampyapedi
Instructed
by
: Pule Incorporated
Date of
Hearing
:
8 August 2017
Date of
Judgment
:
25 October 2017