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[2017] ZAGPPHC 353
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Pretorius v Road Accident Fund (49425/2014) [2017] ZAGPPHC 353 (29 March 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO:
49425/2014
DATE:
29/3/17
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
RICHARD
PRETORIUS
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 14 May 2011 in
which he
sustained serious bodily injuries. The plaintiff was a passenger in a
motor vehicle with registration number [F...]
at the time of
the collision.
ISSUE
IN DISPUTE
[2]
Merits have previously been settled 100% in favour of the
plaintiff and an undertaking furnished in terms
of section
17(4)(a) of the Road Accident Fund Act for future medical expenses.
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. 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:
Sandra Moses (Industrial
Psychologist) and Chari du Plessis and Alex Munro (Actuaries).
ISSUES
OF COMMON CAUSE
[3]
The evidence in the reports of the experts, Dr SK Mafeelane and
Professor JH Fleming (Orthopaedic Surgeons), Adelaide Phasha
and
Natassha Annandale (Occupational Therapists), Professor P Lekgwara
(Specialist Neurosurgeon), 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: head injury;
fracture of the right hand with tendon damage; multiple soft
tissue injuries.
[5]
According to Doctor Mafeelane the plaintiff has lost 5% loss of work
capacity but should be able to work until normal retirement
age.
Professor Lekgwara observes that whilst the plaintiff suffered a
grade 1 concussion (described as "no loss of consciousness;
post
traumatic amnesia less than 30 seconds), the injury does not normally
give rise to long term sequelae. A small percentage
of patients may
suffer from post-concussion headache and neuropsychological
complications which will need treatment. Ms Phasha
holds the view
that the plaintiff should be able to continue to perform pre-accident
work related tasks subject to noting
that load mismatches could
aggravate pain in his injured right hand.
THE
EVIDENCE THE PLAINTIFF
[6]
The plaintiff was employed as a salesman and operator by
Talisman Hire Potchefstroom for a period of 1 year
and 8 months at
the time of the accident. Prior to Talisman Potchefstroom he
worked at Talisman Zeerust
for 6 years and 4 months. He
recalls
his income at Talisman Hire Zeerust being
"something like"
R2800 per month. At Talisman
Potchefstroom he earned R4900 per month after deductions,
"but
it varied".
His basic earnings were
"plus
minus R5200 per month",
but it would vary from R6900
to R7000 per month when he worked overtime. At the time of
consultation with his attorney
he had no proof of his income.
The reason for this he says is that he was no
longer on good terms with his girlfriend
who refused to
hand over his personal belongings; and his former employer's
attitude towards him changed
because of his work performance,
he resigned 3 months after the accident and all attempts
at securing payslips
failed. Under cross
examination he testified that he was not aware that he had to produce
the said documents.
[7]
The plaintiff's evidence is that he
"sat at home for
a
year and nine months plus"
after resigning from Talisman
Potchefstroom before he did occasional odd jobs. He sought employment
but was afflicted by constant
pain and only earnestly sought
employment when his child was two years old and he had been
"sitting
at home"
for three years. He secured employment as a petrol
attendant at a friend's filling station, where he is currently
employed in a
supervisory position, earning R4800 per month. He
suffers regular memory loss which has created tension between himself
and employer
and he has been confronted orally about his performance
and a day before his evidence had received a written warning.
[8]
He conceded under cross examination that his salary estimated at
R6900 to R7000 per month was paid partly into his bank account
and
part by hand. The basic salary was always paid into his bank account
and he had been provided with payslips. He does not dispute
that he
told the Industrial Psychologists that he earned R4500 per month from
2010 to September 2011. The reason for this he says
was that he was
paid money
"on the side".
He vehemently disputes
that he told Ms Moses that he currently earns R2800 per month which
is what he earned at Talisman Hire. He
was at pains to explain the
contradiction in his evidence that he returned to
Talisman Hire Potchefstroom six
works after the accident whilst
telling Ms Moses he had returned to work after three months.
THE
INDUSTRIAL PSYCHOLOGIST
[9]
Ms Moses report was outdated at the time of trial. Counsel for the
plaintiff indicated that reliance would still be placed on
the report
insofar as it relates to the plaintiff's evidence on the issue in
dispute. Specific reliance was placed on the pre and
post-accident
employment prospects and not on the postulations regarding loss of
earnings.
[10]
Ms Moses noted that the plaintiff has a grade 11 level of education.
At the time of the accident in May 2011 he was employed
as a front
counter assistant at Talisman Potchefstroom since June 2011. He had
previously worked for Talisman in Zeerust for seven
years. Ms Moses
opines that the plaintiff would have continued as a front counter
assistant or other similar position until a better
position was
available. Given his low level of education coupled with his work
experience he would have remained in this capacity
within the
non-corporate semi-skilled labourer category, until his retirement at
age 60-65 years. Post-accident the plaintiff returned
to his
employment after three months of recuperation and resigned three
months later in September 2011. He thereafter remained
unemployed
for two years. In 2013 he worked in part time sales in Zeerust
for 8 months. He was then unemployed from June
2013 to June 2014,
when one Jaco Pretorius employed him to do generator repairs, a
position he still occupies.
THE
ACTUARIAL CALCULATIONS
[11]
The actuarial calculations were premised on outdated information.
ONUS
[12]
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
[13]
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-D:
"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-D:
"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."
[14]
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."
[15]
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 approaches
.
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."
[16]
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."
[17]
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
B-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
[18]
The oral evidence of the plaintiff is the only source of information
on his income. Notwithstanding evidence of being furnished
with
payslips and deposits of his basic income into a bank account, none
of this documentary evidence was adduced as evidence.
The plaintiff
was very disingenuous by claiming that he did not have the said
documents for two reasons: he was estranged from
his girlfriend who
refused to hand over his personal belongings; and an employer who
claimed to no longer have copies of payslips
available as they too
had parted ways on a bad note. This evidence is contradicted under
cross examination when he testified that
he was unaware that the
documents were required. These issues speak to credibility of the
plaintiff on this very pivotal evidence
required to assist in the
assessment and quantification of his claim. The reliability of the
information furnished to Ms Moses
is in stark contrast to the
plaintiff's evidence and he calls her credibility into question on
the incorrect income he furnished
to her. There is no basis to
question the reliability of Ms Moses report when regard is had to the
plaintiff's constant contradictory
evidence and his assumptions on
what he earned. He would want the court to assess on these
assumptions that cash payments to hand
which would by implication
have escaped the eye of the Receiver of Revenue, be taken into
account to assess his heads of damage.
On the paucity
of contradictory evidence, the plaintiff calls on 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.
[19]
In
conclusion, an analogous situation arose in an unreported appeal of
the Gauteng Local Division,
Boy
Petrus Modise and Passenger Rail Agency of South Africa
[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."
[20]
The conduct of the legal representatives of the plaintiff in
persisting with the claim, mindful that there was no
documentary
evidence in the form of payslips or bank statements; and
armed only with the outdated Industrial Psychologist report is most
unfortunate.
[21]
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 result:
[22]
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: TSEBANE MOLABA INC
On
behalf of the Defendant: MPHELA AND ASSOCIATES
DATE
HEARD: 16 November 2016
DATE
OF JUDGMENT: 29 March
2017
[1]
2009 5 SA 406
(SECLD) at 409C-41QA
[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) SA49 (T)
[7]
Case number A5023/2013 (11 June 2014)
at para [10]