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[2017] ZAGPPHC 870
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Mamagobo v Road Accident Fund (82593/2014) [2017] ZAGPPHC 870 (22 March 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 8 March 2017
Date
of judgment: 23 March 2017
Case
number 82593/2014
In
the matter between:
MOSEFE
VINCENT
MAMAGOBO
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER,
AJ:
1.
The material issue for adjudication in this
personal injury case is the claim by the plaintiff, Mosefe Vincent
Mamagobo ("Mamagobo"),
for past and future loss of income.
2.
On 18 March 2016, the defendant, the Road
Accident Fund ("the RAF"), conceded full liability on the
merits, for the negligence
of its insured driver, in a motor vehicle
collision on 19 March 2012, in which Mamagobo was injured in a head
on collision between
two vehicles, in one of which he was a
passenger. Mamagobo was born on 22 September 1985. He was 26 at the
date of accident and
31 at the date of this trial.
3.
An order was made on 18 March 2016, in terms of
which the RAF agreed to pay general damages of R1 200 000, furnish an
undertaking
for 100% of future medical expenses under section
17(4)(a) of the Road Accident Fund Act, 56 of 1996 ("the RAF
Act"),
and to pay his legal costs. The claim for past and future
loss of income was postponed for hearing on 8 March 2017.
4.
At inception, it was recorded that Mamagobo's
claim for past medical expenses was abandoned as the wee had paid the
service providers,
and that the RAF had accepted that any further
claim against the wee would not be factored into any calculations for
loss of income.
5.
The parties agreed to the introduction into
evidence of all expert reports and joint minutes of experts, being
the neurosurgeons,
orthopaedic surgeons, occupational therapists and
industrial psychologists. Both parties had agreed to defer to the
expertise of
one actuarial firm, namely, Munro Forensic Actuaries
("Munro").
6.
The parties were at issue on Mamagobo's probable
career path pre accident. Mamagobo had matriculated in 2002
without a university
exemption. He had rematriculated in 2003 with an
exemption. From the records, (confirmed by witness van Rensburg,
referred to below),
Mamagobo had spent three years (from 2005 to
2007) to complete a two year theory component of a three year diploma
in animal production,
at the Technical University of Tshwane. He had
not completed the one year practical course to qualify for the
diploma. He had failed
to secure a position with an employer in the
agricultural industry to complete the practical course. He had given
up with completing
the diploma after two unsuccessful attempts to
secure a job with the department of Agriculture in Limpopo and the
Irene Institute.
7.
It was common cause that Mamagobo was employed at
Spill Tech from circa March 2011 as an assistant technician involved
in cleaning
roads which had suffered chemical spills, working a five
day week, earning RSOO per week with no additional benefits. He had
returned
to work for about one month but was then asked to leave and
had remained unemployed since then.
8.
Both neurosurgeons, Dr Nkuna and Dr Okoli, had
agreed on neurocognitive and neuropsychological impairment and on a
30% whole person
impairment factor resulting from cognitive disorder.
Longevity was unaffected.
9.
The orthopaedic surgeons were at variance about
the sequelae of the orthopaedic injuries: Dr Read for the RAF
calculated a 2% WPI
with no longterm serious impairment while Dr
Kumbirai for Mamagobo calculated a 7% WPI with serious longterm
impairment.
10.
The occupational therapists Mr Ncwane and Ms
Eksteen deferred to the industrial psychologists concerning
Mamagobo's pre and post
accident job opportunities and loss of
income. They agreed that:
"Mr Mamagobo has
sustained a loss in physical capacity as a result of the accident,
which has affected his job choices and
work opportunities. His
present neurocognitive profile has also affected the level of work he
will be suitable for in the future.
Added negative aspects related to
employment will be his increased vulnerabilities pertaining to him
sustaining his performance
over a full work day as well as any mood
disorders associated with his condition."
11.
Both industrial psychologists engaged by the
parties had agreed that Mamagobo had been rendered "functionally
unemployable"
in the open labour market because of the accident.
They also agreed that:
"should he have
remained employed in the non-corporate sector of the labour market,
his income would likely have progressed
to the upper quartile
earnings of semi-skilled workers (2016: R143 000 per annum), to be
reached at approximately age 45. In this
sector, he would probably
also have received an annual bonus equivalent to 2-4 weeks wages and
he may also have belonged to a provident/pension
fund towards which
his employer would probably have contributed between 5%-10% of his
basic salary."
12.
The parties agreed to the introduction into
evidence of the expert reports of industrial psychologists Natalie
Brink ("Brink"),
for Mamagobo, and Cecile Venter ("Venter")
for the RAF, both of whom testified. Two lay witnesses, Willem van
Rensburg
("van Rensburg"), a lecturer at TUT, Mamagobo's
cousin, attorney Max Mokgashane, testified for Mamagobo. Mamagobo did
not testify. It was deemed unnecessary, by virtue of the nature of
his injuries, and in particular, the brain injury, to appoint
a
curator ad litem to represent his interests.
13.
Via their experts, it was agreed that Mamagobo
suffered the following injuries as a result of the accident:
a.
A
severe diffuse traumatic head injury, with right temporal lobe
contusion, bilateral subdural haemorrhage and hydrocephalus emonse;
b.
A
fracture of the left clavical;
c.
A
fracture of the left scapula.
14.
Van Rensburg, who had been employed as a lecturer
by the Technical University of Tshwane ("TUT") since 1
April 1990, confirmed
Mamagobo's record. He could not recall Mamagobo
personally. Having regard to Mamagobo's results in the theoretical
exams, he described
him as an average student. TUT did not
proactively secure practical placements for students but gave lists
of prospective employers
to students on request and held an open day
for students to meet prospective employers. Van Rensburg confirmed
that, if Mamagobo
had returned to TUT to attempt to complete his
practical, he could still have graduated with the diploma despite the
passage of
time between completion of the theoretical course. He
mentioned one example of a student who had finished the theory ten
years
previously but was admitted back to complete the practical. The
majority of placements, around 90%, were currently with the private
sector at present.
15.
Brink testified that three pre-accident scenarios
could be postulated, namely:
a.
Scenario 1: Mamagobo would have remained in the
semi-skilled labour market, with income progressing to R143 000 per
annum to be
reached at 45;
b.
Scenario 2: Given his Matric and completion of
the theory component of his diploma, he was capable of above average
cognitive application
and after 3-5 years in the noncorporate sector,
he would have found employment at the lower quartile of Paterson A3
with an annual
guaranteed package progressing to Paterson B4 at a
career ceiling of about 45 years of age; only 25% of the labour force
moved
to the formal sector;
c.
Scenario 3:If an opportunity had arisen, he may
have completed his diploma, leading to potential employment in animal
husbandry
the animal products industry, research and development.
From about 30 he would have earned an income equal to Paterson B2,
lower
quartile, progressing to Paterson B3 lower quartile, with a
guaranteed package, progressing to Paterson BS and then Paterson C3
at age 50.
16.
In Brink's view, scenario 1 was the most
unlikely, given Mamagobo's matric exemption, his three year theory
results, and his general
motivation to better himself. The gist of
her evidence was that scenario 2 was the most likely of the three.
17.
Mamagobo's cousin, Mokgashane, ("Mokgashane"),
a distant cousin of his, had lived with Mamagobo in Marble Hall and
had
attended the same high school. He confirmed that Mamagobo's uncle
was a teacher. This uncle had apparently paid for Mamagobo's studies
at TUT. Mokgashane had studied for his LLB degree with the aid of a
bursary and was currently employed as an attorney.
18.
In the view of the RAF's expert, Venter, the
description of Mamagobo's line of work even with a matric exemption,
could competently
remain that of a semi-skilled labourer. Had
Mamagobo been as motivated in animal husbandry as suggested by Brink,
he could have
approached businesses in the agricultural sector, even
without the practical requirements for the diploma in place, simply
to get
his foot in the door.It is axiomatic that the animal husbandry
sector has been in existence for centuries past. in her view,
scenario
1 was the most likely, the incomplete diploma counting for
nothing, especially considering the choice of business sector.
19.
She initially discounted the likelihood of
scenario 2 owing to the loss of employment experience for four years
post the partly
completed diploma and eight years post matric amidst
the competitiveness in the market place. The past track record of
Mamagobo
did not justify scenario 3. She accepted, however, that
career potential was one of the various factors which should be taken
into
account in the overall enquiry. Under cross examination,
however, Venter was willing to concede that scenario 3, with a
guaranteed
package, might have occurred, had Mamagobo completed his
diploma, but persisted in favouring the greater likelihood of
scenario
2.
20.
In argument, Counsel for Mamagobo abandoned a
claim for loss of income on the assumption that he would have
completed his diploma,
but on the basis that he would have entered
the formal corporate sector, graduating from casual labour to
Paterson A3 in October
2017 and Paterson B2/B3 in October 2030 at 45.
21.
This amounted to R2 931 035,00 per the
calculations of Munro. To arrive at this figure, Munro had made a 5%
contingency deduction
on past income uninjured and 15% on future
income uninjured. Counsel for the RAF submitted that, applying
appropriate deductions,
the correct figure should amount to R2 098
545, primarily because the enquiry as to potential earnings had to be
based on inferences
made from the proven facts.
22.
On a totality of the evidence, a higher contingency deduction should
be applied to post morbid earnings. This is because it
was a proven
fact that Mamagobo lost his motivation to complete the practical side
of his animal husbandry diploma and did not
see fit to try to obtain
employment in any animal-related industry post his two rather half
hearted attempts to find an employer
to complete his practical
component.
23.
Mamagobo's cousin confirmed that the former's
uncle had paid for the theory side of the diploma. There was no
evidence to controvert
the inference from this that the uncle would
have been willing to subsidise the practical component if Mamagobo
secured the practical
with an employer who declined to subsidise or
pay him.
24.
This attenuated motivation in general is
evidenced further by his choice of work in a sector entirely
unrelated to animal husbandry,
namely that of semi-skilled casual
labour at a weekly wage, this after being unemployed for three years.
25.
accept that the calculation is not premised on his obtaining a
diploma but rather on his entering the formal corporate sector.
This
notwithstanding, Iam entitled to take cognizance of Mamagobo's
general lack of drive and ambition, particularly since 2008.
He
entered the work place eight years post matriculation, compromising
his competitiveness even further. Mamagobo's expert, Nel,
mentioned
that it was statistically proven that only 25% of the labour force
moved to the formal sector.
26.
Mamagobo's reduced motivation would in all likelihood have impacted
on his prospects of competing amongst the 25% who succeed
in
transferring to the formal corporate sector.
27.
A contingency deduction of 30% on future loss of income on Munro's
scenario 1 calculation, which imports entry into the formal
corporate
sector, is justified and accommodates the various factors relevant to
what would constitute a reasonable loss.
28.
Based on Munro's report dated 8 March 2017, the
overall loss of income comes to R158 080,00 for past loss, at a 5%
contingency,
and R2 283 610,00 for future loss, at a 30% contingency,
equating to R2 441 690,00. This constitutes adequate compensation for
past and future loss of income.
29.
The losses fall below the loss limit in the RAF
cap in terms of section 17(4A)(b) of the RAF Act.
30.
An order is granted in terms of the draft order marked "X".
___________________
T BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANN ESBURG
22 March 2017
Appearances
Counsel
for the Plaintiff: Advocate JPJ du Plessis, assisted by
Advocate
A van Niekerk
Instructed
by: KR Nthulana Inc Attorneys
Counsel
for the Defendant: Advocate H Vermaak
Instructed
by: Diale Magoshoa Attorneys
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Before
Her Ladyship Ms Justice Brenner
On
9 March 2017
22/3/2017
CASE
NO: 82593/2014
In
the matter between :
VINCENT
MOSEFE
MAMOGOBO
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
DRAFT
ORDER
Having
heard the parties the Court grants the following order
1.
It is recorded that a court order had previously
been granted in this matter on 18 March 2016, which order dealt with
matters pertaining
to merits, liability, an undertaking in regards to
future medical related costs and a capital amount in regards to
general damages.
This court order is attached hereto marked "M1";
2.
In addition to the amounts to be paid by the
defendant in terms of the previous court order, in respect of past
and future loss
of earning and earning capacity, the defendant is
ordered to pay the amount of R 2 441 690,00 (two million
four hundred
and forty one thousand six hundred and ninety Rand), to
the Plaintiff’s Attorneys of Record, Nthulana Attorneys, by way
of
payment into Nthulana Attorneys’ trust account with the
following details:
ACCOUNT HOLDER: KR
Nthulana Attorneys
BANK NAME: First
National Bank
BRANCH: Pretorius Street
BRANCH CODE: 250655
TYPE OF ACCOUNT: Trust
Account
ACCOUNT NUMBER:
62494731203
3.
The aforesaid capital amount will not bear
interest unless the Defendant fails to effect payment thereof within
fourteen calendar
days of the date of this Order, in which event the
capital amount will bear interest at the rate of 10.25% per annum
calculated
from and including the fifteenth calendar day after the
date of this Order to and including the date of payment thereof.
4.
The Defendant is ordered to pay the Plaintiff's
taxed or agreed party and party costs, into the abovementioned
account, for the
instructing attorneys, which costs shall include,
but not be limited to the following:
4.1.
The cost occasioned by the employment of senior
counsel;
4.2.
All reserved costs to be unreserved, if any;
4.3.
The costs of obtaining all expert medico legal-,
actuarial, and any other reports of all experts which were furnished
to the Defendant
and/or its experts and for which notices in terms of
Rule 36 were served;
4.4.
The reasonable taxable qualifying, preparation
and reservation fees of all experts, if any;
4.5.
The reasonable traveling - and accommodation
costs, if any, incurred in transporting the Plaintiff to all
medico-legal appointments,
or that of the experts having to consult
the Plaintiff at his house, subject to the discretion of the Taxing
Master;
4.6.
The reasonable cost of an interpreter's
attendance at court and at the medico-legal appointments for
translation of information,
if any;
4.7.
The costs attendant upon the obtaining of payment
of the amounts referred to in this Order.
5.
The following provisions will apply with regards
to the determination of the aforementioned taxed or agreed party and
party costs:
5.1
The Plaintiff's Attorney shall serve the Notice
of Taxation on the Defendant's Attorneys of Record;
5.2
The Defendant shall be allowed 7 (seven) days
from date of settlement or of taxation within which to effect payment
of the agreed
or taxed costs; and
5.3
Should payment not be effected within the
aforementioned period, the Plaintiff will be entitled to recover
interest on the taxed
or agreed costs at the rate of 10.25% per annum
calculated from and including the day after the date of settlement of
the costs
or of taxation, to and including the date of final payment
thereof.
6.
The nett proceeds of the payments referred to
above, after deduction of costs in accordance with the fee agreement
between the parties
("the capital amount"), shall be
payable by the Plaintiff's Attorneys to the account of the Trust
referred to in paragraphs
9 to 12 of the previous court order, once
created.
7.
Until such time as the professional Trustee is
able to take control of the capital sum and to deal with same in
terms of the Trust
Deed, the Plaintiff's Attorneys of Record:
7.1
Are authorised and ordered to invest the capital
amount in an interest bearing account with a registered banking
institution in
terms of Section 78(2A) of the Attorneys' Act, 53 of
1979, to the benefit of the Plaintiff, pending the finalisation of
the Trust;
7.2
Shall be prohibited from dealing with the capital
in any other manner unless specifically authorised thereto by the
Court, subject
to paragraph 7.3 hereunder; and
7.3
Are authorised to make any reasonable payments to
satisfy any of the Plaintiff's needs that may arise and that are
required in order
to satisfy any reasonable need for treatment, care,
aids or equipment that may arise in the interim.
BY
ORDER
____________
REGISTRAR
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Before
His Lordship Mr Deputy Justice President Ledwaba
On 18 March 2016
CASE NO: 82593/2014
In
the matter between:
VINCENT
MOSEFE
MAMOGOBO
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
Having
heard the parties the Court grants the following order by agreement
between the parties:
1.
It is recorded that the Defendant has conceded
merits and liability towards the Plaintiff for the payment of 100% of
the Plaintiff's
proven or agreed damages;
2.
The quantum of the Plaintiff's claim pertaining
to loss of earnings and earning·capacity is separated in terms
of Rule 33(4)
and is postponed to 8 March 2017;
3.
The Defendant is ordered to pay the general
damages in the sum of amount of R1,200,000 (one million two hundred
thousand RAND) ("the
capital amount”) to the Plaintiff’s
Attorneys of Record, Nthulana Attorneys, by way of payment into
Nthulana Attorneys'
trust account with the following details:
ACCOUNT HOLDER: KR
Nthulana Attorneys
BANK NAME: First National
Bank
BRANCH: Pretorius Street
BRANCH CODE: 250655
TYPE OF ACCOUNT: Trust
Account
ACCOUNT NUMBER: […]
4.
The aforesaid capital amount will not bear
interest unless the Defendant fails to
effect
payment thereof within fourteen calendar days
of the date of this Order, in which event the capital amount will
bear interest at
the rate of 10.25% per annum calculated from and
including the fifteenth calendar day after the date of this Order o
and including
the date of payment thereof.
5.
The Defendant is ordered to furnished an.
Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, for the costs of the future accommodation or nursing
home or the treatment of or the rendering of a service or the
supplying of
goods to him arising out of injuries sustained by him in
the motor vehicle collision of 19 March 2012, in terms of which
Undertaking
the Defendant is obliged to compensate the professional
Trustee referred to below in respect of the said costs after the
costs
have been incurred either by the Plaintiff or by the
professional Trustee or by any party on behalf of the Plaintiff and
on proof
thereof.
6.
The aforesaid undertaking will include the costs
of the creation of a trust, and the costs of the professional Trustee
(including
the costs of the professional Trustee's furnishing of
security) but limited to the costs applicable in respect of a
curator
bonis
in terms of the provisions of the
Administration of Estates Act 66 of 1965
;
7.
The Defendant is ordered to pay the Plaintiff's
taxed or agreed party and party costs, into the abovementioned
account, for the
instructing attorneys, which costs shall include,
but not be limited to the following:
7.1
The cost occasioned by the employment of counsel,
a senior counsel
7.2
All reserved costs to be unreserved, if any;
7.3
The costs of obtaining all expert medico legal-,
actuarial, and any other reports of various experts which were
furnished to the
Defendant and/or its experts and for which notices
in terms of
Rule 36
were served;
7.4
The reasonable taxable qualifying, preparation
and reservation fees of all experts, if any;
7.5
The reasonable traveling - and accommodation
costs, if any, incurred in transporting the Plaintiff to all
medico-legal appointments,
or that of the experts having to consult
the Plaintiff at his house, subject to the discretion of the Taxing
Master;
7.6
The reasonable cost of an interpreter's
attendance at court and at the medico-legal appointments for
translation -of information,
if any;
7.7
The costs attendant upon the obtaining of payment
of the amounts referred to in this Order.
8.
The following provisions will apply with regards
to the determination of the aforementioned taxed or agreed party and
party costs:
8.1
The Plaintiff's Attorney shall serve the Notice
of Taxation on the Defendant's Attorneys of Record;
8.2
The Defendant shall be allowed 14 (fourteen) days
from date of settlement or of taxation within which to effect payment
of the agreed
or taxed costs; and
8.3
Should payment not be effected within the
aforementioned period, the Plaintiff will be entitled to recover
interest on the taxed
or agreed costs at the rate of 10.25% per annum
calculated from and including the day after the date of settlement of
the costs
or of taxation, to and including the date of final payment
thereof.
9.
The nett proceeds of the payments referred to
above, after deduction of costs ("the capital amount") in
accordance with
the. f13e agreement between the parties and both
counsels fees and the costs of experts, shall be payable by the
Plaintiff's Attorneys
to a Trust to be created within 12 (twelve)
months of the date of this Order, which Trust will:
9.1
Be created on the basis of the provisions as more
fully set out in the draft Trust Deed attached hereto marked "A";
9.2
Have, as its main objective, the controlling and
administering of the capital amount on behalf of the Plaintiff; and
9.3
Have, as its professional Trustee,
JEANNE
HELEN RABIE,
with powers and abilities as set
out in the draft Trust Deed attached hereto marked
"A".
10.
Should the aforementioned Trust not be created
within the aforementioned period of 12 (twelve) months, the Plaintiff
is directed
to approach this Court within 1 (one) month thereafter in
order to obtain further directives in respect of the manner in which
the capital amount is to be utilised in favour of the Plaintiff
11.
Until such time as the professional Trustee is
able to take control of the capital sum and to deal with same in
terms of the Trust
Deed, the Plaintiff's Attorneys of Record:
11.1.
Are authorised to invest the capital amount in an
interest bearing account with a registered banking institution in
terms of
Section 78(2A)
of 1he Attorneys' Act, 53 of 1979, to the
benefit of the Plaintiff, pending the finalisation of the Trust;
11.2.
Shall be prohibited from dealing with the capital
in any other manner unless specifically authorised thereto by the
Court, subject
to paragraph 11.3 hereunder; and
11.3.
Are authorised and ordered to make any reasonable
payments to satisfy any of the Plaintiff's needs that may arise and
that are required
in order to satisfy any reasonable need for
treatment, care, aids or equipment that may arise in the interim.
12.
The appointment of the professional Trustee will
be subject thereto that the professional Trustee furnish security to
the satisfaction
of the Master of the High Court.