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2017
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[2017] ZALMPPHC 47
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Ngobeni v Road Accident Fund (2208/2015) [2017] ZALMPPHC 47 (25 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2208/2015
In
the matter between:
NGOBENI
FLORAH
GIRLEY
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
SIKHWARI
AJ
[1]
It
is common cause that the plaintiff is 45 years of age, having been
born on or about the 19 February 1972. The cause of action
arose from
a motor vehicle accident that occurred on 52 March 2014 at or near
Solomondale crossroads on the R81 road near Polokwane.
The plaintiff
was a passenger in the insured motor vehicle to wit CCG 082 L which
was being driven by Tshepo Douglas.
[4]
It is common cause that the plaintiff sustained injuries which could
be described as low back injuries as well as laceration
right forearm
and hand. The experts agree that the plaintiff sustained
bilateral paraspinal tender over the thoracic and
lumbar levels. The
plaintiff was a domestic worker and she has never been able to return
to work after the accident as a result
of back pain and right wrist.
[5]
The plaintiff has completed grade 6 at school. She is suitable for
sedentary, light and medium / moderate types of work due
to
impairment to her lifting abilities which has been caused by the
accident. Plaintiff will find it difficult to work in her trade
as a
domestic worker in future due to injuries.
[6]
The plaintiff prays that she be awarded an amount of R26 523.00
(twenty-six thousand five hundred and twenty-three rand)
in respect
of past loss as well as an amount of R308 637.73 (three hundred
and eight thousand six hundred and thirty-seven
rand seventy-three
cents for future loss of earning). That will make a total of
R335 160.73. On the defendant’s calculation,
the amount
will come to R129 674.95 after deduction of the 20% contingency.
[6]
The issue before court for determination of past and future loss of
earning and applicable contingencies. The parties are ad
idem that 5%
contingency should apply to past loss of earning. The court agrees
with the parties. For future loss of earning the
plaintiff prays for
15% contingency whereas the defendant prays for 20% contingency.
[7]
According to the expert reports, particularly of both industrial
psychologists, the parties agree that the plaintiff has suffered
loss
of earning capacity. I do not agree that the plaintiff has left the
job out of her own will. The nature of the pains she is
suffering
will make it difficult for her to do heavy duties. Domestic services
will require her to be on her feet at most time.
There is no employer
who will employ her on part-time basis at the area where she
operates.
[8]
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.”
[9]
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”.
[10]
Margo, J, stated further in page 393F – G, 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.”
[11]
In my view, the plaintiff has made a case to justify the finding of
this court that the circumstances of the plaintiff herein
call for a
15% contingency for future loss of earning. In the circumstances,
this court will allow the contingency deduction for
future loss of
income to be at 15 percent as submitted by the plaintiff, taking into
account the plaintiff’s age, her relative
skill in domestic
services and the fact that she has no history of changing work.
[12]
In instances where the court granted 20 percent contingencies, the
plaintiffs were not yet established in their work careers
or were
teenagers. These factors distinguished the said cases from the case
before this court. There is no evidence that the plaintiff
had prior
poor health or would not have been employed.
[13]
In the circumstances, the plaintiff’s claim will succeed. I see
no reason why I should deviate from the general rule
that costs will
follow the event.
[14]
Accordingly I make the following order:
1.
That
the defendant shall pay the plaintiff the sum of R335 160.73
(three hundred and thirty-five thousand one hundred and sixty
rand
seventy-three cents), made up as follows:
1.1
R26 523.00
for past loss of earning.
1.2
R308 637.73
for future loss of earnings.
2.
The
draft order marked “X” is made an order of the court.
_________________________
MS
SIKHWARI AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For
Plaintiff
: Adv F Baloyi
Instructed
by
: MG Mabunda Attorneys
For
Defendant
: Adv MC Netshiendeulu
Instructed
by
: Hamman-Moosa Inc
Date of
Hearing
:
22 August 2017
Date of
Judgment
:
25 October 2017