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[2017] ZAGPPHC 109
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Mlotshwa v Road Accident Fund (9269/2014) [2017] ZAGPPHC 109 (29 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
29/3/17
CASE
NO: 9269/2014
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
MTHOKOZISI
THEOPHILUS
MLOTSHWA Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
PETERSEN
AJ:
INTRODUCTION
[1]
The plaintiff instituted action against the defendant for damages
arising from a motor vehicle accident on the 01 June 2012
in which he
sustained serious bodily injuries. The plaintiff was a passenger in a
motor vehicle with registration number [D....]
when it overturned.
ISSUE
IN DISPUTE
[2]
Merits and general damages have previously been settled in favour of
the plaintiff. The only issue in dispute is the determination
of past
loss of income and loss of earning capacity. The plaintiff testified
in support of proof of his income, whilst no oral
evidence was
presented by the defendant. The reports of the following experts,
whilst handed in by consent forms part of the issue
in dispute:
Angelique Da Silva (Industrial Psychologist), Dr MC Kgosana
(Industrial Psychologist), the joint report of the Industrial
Psychologists (Dr MC Kgosana and Talia Talmud) and the updated
actuarial calculations of Gerard Jacobson.
ISSUES
OF COMMON CAUSE
[3]
The evidence in the reports of the experts, Dr lmran Ahmad Khan
(Orthopaedic Surgeon), Frizelna Steyn and Talia Tamud (Occupational
Therapists), Natassha Annandale (Occupational Therapist), Dr Andre
Vlok (Orthopaedic Surgeon) and the joint minutes of the Occupational
Therapists (Frizelna Steyn and Natassha Annandale), is not in dispute
and were handed in by consent.
[4]
The plaintiff sustained the following bodily injuries as a result of
the motor vehicle accident: right side rib fractures; right
side haem
pneumothorax; right patella fracture; laceration on the forehead; and
a soft tissue injury to the right shoulder.
[5]
The occupational therapists agree that the plaintiff's pre-accident
work as a plumber, classified as medium to heavy work and
his
post-accident status no longer allows him to cope with the demands of
being a plumber. He will not be able to cope with running
his own
plumbing business, due to the fact that he will not be able to engage
in manual work. He has suffered occupational dysfunction
and his
career choices have been narrowed considerably due to the accident.
He will remain disadvantaged in the competitive
manual labour
fields of work in terms of efficiency, effectiveness and productivity
as compared to a normal healthy individual
of the same age and
education level.
THE
EVIDENCE THE PLAINTIFF
[6]
The plaintiff worked as a plumber for seven years prior to the
accident. He currently works as a cashier at a Tavern where he
earns
R2500 per month. He is married and has 5 children, aged 15years,
6years, 5years, 3years and 6 months from four different
mothers. Two
of the 5 children live with him and his wife. Prior to the accident
he maintained his children who were born at that
time and currently
continues to maintain all his children. Each child pre-accident
received a maintenance contribution of R800
per month and he
contributed financially to the school transport costs of his
children. He currently spends R450 per month on his
own transport
costs. He maintained his mother with a R500 per month contribution.
He rents a room at a house in Middelberg shared
with his wife and two
children, for R650 per month.
[7]
The plaintiff himself maintains that he can no longer work as a
plumber as a result of the injury to his knee and pain in his
right
shoulder. The plaintiff confirmed under cross examination that he was
a self-employed plumber with two employees prior to
the accident,
generating an average monthly income of R19 000. From this income he
paid his two employees at a rate of R110 per
day, made business
purchases and would be left with no less than R11 000, which he
utilised for his personal needs and obligations.
[8]
He conceded that he has no proof of any bank statements to prove his
income, having been paid cash to hand by his clients; and
he was not
registered for income tax purposes with the South African Revenue
Service (SARS). He in fact has no documentary proof
of his income. He
conceded that whilst he had a bank account pre-accident he only
deposited small amounts of cash at any given
time. He also has no
proof of the maintenance payments he made as he disposed of the
receipts once the money was paid. The plaintiff
conceded that he now
realises the importance of keeping records of his income and the
maintenance payments.
[9]
The plaintiff was confronted with the information he gave to the
Industrial Psychologists, Talia Talmud and Dr MC Kgosana regarding
his income. In the joint minutes of the said experts he reported that
he generated R11 000 and R10 000 per month respectively.
He maintains
he had told both experts that he earned a minimum of R11 000 per
month. He has no idea on what basis Dr Kgosana stated
that he earned
R10 000 per month.
[10]
When confronted with Dr Kgosana's recordal of an amount of R8000 per
month as his income at the time of the accident, he assumes
this may
have been the result of a language barrier between himself and Dr
Kgosana. In all fairness to the plaintiff, it is evident
that Dr
Kgosana may have erred in this regard. In his report notes he records
the R8000 as income earned for the period 2007-2012
and the R10 000
as income earned for the period 2006-2007, whereas in the joint
minutes he defers to the R10 000 as income earned
at the time of the
accident.
THE
INDUSTRIAL PSYCHOLOGISTS
[11]
The Industrial Psychologists note in their joint report that the
plaintiff attempted his Grade 12 during 1999, failed the year,
and
did not repeat it. At the time of the accident he was self-employed
as a plumber working in the Middelberg area in Mpumalanga.
He
reported to Ms Talmud that he made a profit of R11 000 per month and
to Dr Kgosana that his earnings amounted to R10 000 per
month. Ms
Talmud contacted a plumbing business in Middelberg to enquire if an
R11 000 profit per month was reasonable. The information
is hearsay
by nature and no evidential weight can be attached to thereto in the
determination of the plaintiff's earnings. As correctly
in my view
conceded by Ms Talmud in the report, the plaintiff having provided
only an estimate of earnings she has to defer actual
earnings to
factual information.
[12]
The Plaintiff reported that he remained unemployed from the date of
the accident until November 2013 and although he attempted
to
recommence with his plumbing business he was unable to work as result
of his weak right arm and knee. He thus suffered a loss
of earnings
during his period of unemployment. The plaintiff has secured work as
cashier after the accident earning R2500 per month
which was
confirmed by his employer Mr Philemon.
THE
ACTUARIAL CALCULATIONS
[13]
The parties defer to the actuarial calculations of M.S.
Jacobson of Gerard Jacobson Consulting Actuaries. Mr Jacobson
was
requested to assess the loss of income of the plaintiff, relying on
the profit of R11 000 and R10 000 respectively reported
to the
industrial psychologists. His calculations were thus a culmination of
disputed figures.
ONUS
[14]
The onus is on the Plaintiff to prove his case on a balance of
probabilities. He is required to adduce sufficient evidence
of his
income to enable the court to assess and quantify the loss of past
earnings and future loss of earnings.
THE
LAW
[15]
It
is
accepted
that earning capacity
may
constitute
an asset
in
a person's
patrimonial
estate.
If
loss
of
earnings
is
proven
the
loss
may
be
compensated
if
it
is
quantifiable
as
a
diminution
in the
value
of
the
estate. The
law in this
regard is
trite
as
is demonstrated
in a very
useful
exposition of
the
law
related
to
a
claim
for
diminished
earning
capacity,
where
the learned
Judge
in
Prinsloo
v
Road
Accident
Fund
[1]
,
quotes
extracts
from
locus
classicus on the subject:
Santam
Versekeringsmaatskappy
Bpk v
Byleveldt
[2]
where
the
following was
said
at
1508-0:
"In
'n saak soos die onderhawige word daar namens die benadeelde
skadevergoeding geeis en skade beteken die verskil tussen
die
vermoensposisie van die benadeelde v66r die onregmatige daad en
daarna. Kyk, bv,
Union Government v Warneke
1911 AD 657
op bl
665 ... Skade is die ongunstige verskil wat deur die onregmatige daad
ontstaan het. Die vermoensvermindering moet wees ten
opsigte van iets
wat op geld waardeerbaar is en sou insluit die vermindering
veroorsaak deur 'n besering as gevolg waarvan die
benadeelde nie meer
enige inkomste kan verdien nie of alleen maar 'n laer inkomste
verdien."
Dippenaar
v
Shield
Insurance
Co Ltd
[3]
the
following
was said at
9178-0:
"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 the estate."
[16]
The difficulty
in
quantifying
the
monetary
value
of
loss in
claims
of
this nature is
succinctly
stated
in
Terblanche
v
Minister
of Safety
and
Security and
Another
[4]
at para
[14]:
"The
difficulty with claims of this nature is generally not so much the
recognition that earning capacity constitutes an asset
in a person's
estate, but rather the quantification of the monetary value of the
loss of earning capacity by a trial court. Each
case naturally
depends on its own facts and circumstances, as well as the evidence
before the trial court concerned."
[17]
The
approach to
adjudicating
loss of
earnings
is often
argued from
the perspective
of
the
passage
found
at
113F-114E
of
the
locus
classicus
of
Southern
Insurance Association v Bailey NO
[5]
where it
was said:
"...
Any enquiry into damages for loss of earning capacity is of its
nature speculative, because it involves a prediction as
to the
future, without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the court can do is to make an estimate,
which is
often a very rough estimate, of the present value of the loss.
It
has open to it
two possible a
pproaches.
One
is for the
Judge to make a round estimate of an amount
which seems to him to be
fair and
reasonable.
That is entirely a matter of guess-work, a blind plunge into the
unknown.
The
other is to try to make
an assessment, by way of
mathematical calculations, on the basis of assumptions
resting on the evidence.
The
validity of this approach depends of course upon the soundness of the
assumptions, and these may vary from the strongly probable
to the
speculative.
It
is manifest that either approach involves guess-work to a greater or
lesser extent. But the Court cannot for this reason adopt
a
non
possumus
attitude and make no award. See
Hersman v
Shapiro and Company
1926 TPD 367
at 379 per Stratford J:
'Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is little more than
an estimate; but even so, if it is certain that
pecuniary damage has
been suffered, the Court is bound to award damages."
[18]
I agree with the salutary practice proposed in the above quoted
paragraphs of
Bailey.
It has mustered approval in numerous
judicial pronouncements and is widely accepted as the best practice
available. I wish to add
however, what the learned judge said further
at page 379, which is omitted in
Bailey.
The two
sentences which follow immediately upon the quote in
Bailey
are apposite:
"
...
It is not
so
bound
in the case where evidence is available
to the plaintiff
which
he
has not
produced;
in those circumstances the Court is justified in giving, and
does give, absolution from the instance. But where the best
evidence
available has been produced, though it is not entirely
of a conclusive character and does not permit of a mathematical
calculation
of the damage suffered, still, if it is the best evidence
available, the Court must use it and arrive at a conclusion based on
it."
[19]
In
Lazarus
v Rand Steam Laundries
[6]
,
Bressler
AJ, concurring with De
Villiers J,
elaborated on
the duty of
the
appellant to prove
her
damages. At
page 53 at paras 8-F:
"
. . .We were urged, on the authority of Turkstra Ltd V Richards,
1926
T.P.D. 276
, to find that, as there was an admission of damage, the
Court should not be deterred by reason of the difficulty of computing
an
exact figure from making an award of damages ... In Turkstra v
Richards there was an actual valuation, 'an estimate of some sort',
in the language of Stradford, J.(as he then was) . . .
It
does not seem to me that Turkstra v Richards, supra, meant that,
given one or two facts, including that of damages, a judicial
officer
should then be required to grope at large in order to come to the
assistance of a litigant, especially one whose case has
been
presented in such a vague way. It seems to me that the judicial
officer must be placed in such a position that he is not called
upon
to make an arbitrary or merely speculative assessment, a state of
affairs which would result in injustice to one of the parties
..."
EVALUATION
[20]
The plaintiff is the only source of information regarding his
employment history and earnings. The recommendations of the
industrial psychologists are premised on the information supplied by
the plaintiff and the actuarial calculations are in turn based
on the
industrial psychologists reports. The paucity of the evidence of the
plaintiff is that he generated an average income of
R19 000 per month
and after certain payments he would be left with no less than R11 000
per month on average. In evidence in chief
the focus was
predominantly on disbursements made by the plaintiff in respect of
maintenance and transport costs for his children,
a payment to his
mother and payment of a non-fixed daily remuneration for each of two
employees. The evidence provided no direct
detailed evidence of
income. It also provided no basis, even if premised only on estimated
values, on which the court could make
a reasonable and fair
determination of the plaintiff's income. Costing charges germane to
the plumbing profession, if applicable
and applied by the plaintiff,
which would include,
inter
alia,
call out fees,
hourly rates, out of hours work, drain cleaning, installations and
costs of materials and profit mark up on same,
was not tendered.
[21]
The court is alive to the nature of the informal sector in South
Africa and that the livelihood of many of our people is dependent
on
generating an income in this sector. Our courts can never
discriminate against members of society engaged in this sector.
However,
the courts cannot turn a blind eye to the duty of a
litigant, where he bears the onus, to provide sufficient proof of
income. The
proof of such income even if based on estimates or
averages, is after all, often than not, peculiarly within the
knowledge only
of the plaintiff. The defendant cannot be prejudiced
simply on the say so of a litigant of an average income he earns per
month
and what remains after payments, without providing evidence as
to how the average before the payments was generated. It appears
common cause between the parties that there has been a past loss of
income and there will in all likelihood be a future loss of
earnings.
However, the paucity of evidence is such that it calls upon me, in
exercising the wide discretion I am afforded, to embark
upon
conjecture and speculation in quantifying the damages. I am not at
large to do so.
[22]
In
conclusion,
an analogous situation arose in
an
unreported appeal of the
Gauteng
Local
Division,
Boy
Petrus
Modise
and
Passenger
Rail
Agency
of
South Afric
a
[7]
.
On
appeal against the dismissal
of a claim
for
damages
for
loss
of
earnings
and
damages
for
future
loss
of
earnings,
Wright J, Carelse
J
concurring,
held:
"This
is an unfortunate case. One suspects that the plaintiff did suffer a
past loss of earnings and will suffer future loss
of earnings.
However, I may not allow a suspicion, nor my sympathy for the
plaintiff, to translate into a basis for awarding damages
where the
evidence does not allow this. The variables in the equation are
simply too many."
[23]
In the result, the plaintiff has failed to prove his heads of damages
for past loss of income and future loss of earnings.
ORDER:
In
the resuIt:
[24]
Absolution from the instance is granted with costs.
__________________________
AH
PETERSEN ACTING
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
On
behalf of the Plaintiff: Lekalakala Attorneys
On
behalf of the Defendant: Tau Pahlane Attorneys
DATE
HEARD: 15 November 2016
DATE
OF JUDGMENT: 29 March 2017
[1]
2009 5 SA 406
(SECLD) at 409C-410 A
[2]
1973 2 SA
146 (A)
[3]
1979 2 SA 904 (A)
[4]
2016 (2) SA
109 (SCA)
[5]
1984 1 SA 98
[6]
(1946) (PTY), LTD
1952 (3) SA 49
(T)
[7]
Case number A5023/2013 (11 June 2014) at para [10]