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[2017] ZAGPPHC 394
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Mamphela DS v Road Accident Fund (53289/2013) [2017] ZAGPPHC 394 (30 March 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: 53289/2013
DATE
:
2017-03-30
Reportable:
NO
Of
interest to other judges: NO
Revised
In
the matter between:
MAMHPELA
DS
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
NKOSI
AJ
INTRODUCTION
[1]
The plaintiff instituted an action for damages against the Road
Accident Fund claiming inter alia past and future loss of income.
The
other heads of damages have already been settled .The Plaintiff is
only pursuing her claim for past and future loss of income.
[2]
It has since emerged that the defendant concedes plaintiff's claim
for past loss of income and is willing to accept the plaintiff's
actuarial calculations of past loss of income. However, in so far as
the claim for future loss of income is concerned, the defendant
is of
the view that the plaintiff has not suffered any loss of income.
FACTUAL
BACKGROUND
[3]
The plaintiff is an adult female person born on the 24 September
1986. She was a passenger in a motor vehicle which collided
with
another motor vehicle on the 4 February 2012.
[4]
At the time of the collision, she was employed on a contract basis as
a Safety Officer at Sebcon Contracting Service in Middleburgh.
Her
responsibilities would entail risk assessment, training of staff on
safety - related issues, implementation of safety procedures,
and
reporting of incidents. She was required to walk and stand for
prolonged periods of time, get into confined spaces and to climb
stairs. After the collision she was employed as a planner at the same
company.
[5]
She sustained a fracture dislocation in the left acetabulum. An open
reduction and internal fixation procedure was done at Wilgers
Hospital. Approximately four months later a total hip replacement of
left acetabulum and femvr head was done. According to Dr.
Francois A
Booyse, the plaintiff will require at least three hip revision
surgeries in
her
lifetime, one every 12 years. She also has a 2cm leg length
shortening which has resulted in pelvic obliquity and resultant
disturbance of sagittal balance and increasing lower back pain.
ISSUES
[6]
The dispute between the parties is whether the plaintiff suffered
loss of future income as the result of the motor vehicle collision
which happened on the 4th February 2012. If the court finds that
there is loss of future income, what contingency deductions must
be
applied.
ANALYSIS
[7]
Ms Louise Schubert, the plaintiffs Industrial Psychologist is of the
view that. the plaintiff's pre - accident earnings would
probably
have progressed to a Paterson cl /c2 level, in approximately
5
years time. Further that she would have had a further growth to a
career ceiling likely falling on Patterson c4/c5 level. She would
have reached her maximum in her mid - forties and thereafter the
salary increase would be influenced by the inflation trends.
[8]
According to Ms Schubert, the plaintiff was earning R 10 554 per
month, provident fund included.
[9]
The pre - morbidity scenario as postulated by Ms Schubert yielded the
following actuarial calculations, done by Mr. Wim Loots.
(a) Income had accident not
occurred R
9
827
926.00
(b) Income having regards to
accident
R 8 055
2
66.00
TOTAL LOSS
R 1 772
660.00
The
calculations do not make provision for any contingency deductions.
[10]
According to Ms Talifhani Ntsieni, the Industrial psychologist for
the defendant, the plaintiff earned R 4 876.00 per fortnight.
She
would have likely secured a permanent job and would have reached her
career ceiling at Peterson cl/c2 level by age 45, thereafter
received
inflationary increases until retrenchment age of 60 - 65.
[11]
The actuarial calculations done by Mr. Loots in line with Ms
Ntsieni's postulation indicate that:
(a) Income had accident not
occurred R 7
099 628.00
(b) Income having regards to
accident
R 7 059 406.00
Total loss
R 40,222.00
These
calculations also do not make provision for any contingency
deductions
[12]
Both industrial psychologists agree to large extent regarding the
Post Morbidity Scenario, they agree that :
(i) The plaintiff returned to work in
August 2012 and continued to receive her fortnightly basic wage.
(ii) She secured a permanent position
as a Planner at Howden in February 2016. Her basic salary has been R
19 500.00 per month,
and she is entitled to a travel allowance (R 2
925 per month at present) as well as fringe benefits.
(iii) Her current earnings level
corresponds to a Paterson C2 level between lower quartile and median.
[13]
The said psychologists differ in the following respect
(i). Ms Schubert assumes, for
quantification purposes, that the plaintiff will likely continue with
her current position as Planner.
However her prospect of following a
career as a Safety officer her preferred career , has been truncated
completely. She might
reach a career ceiling at Peterson C3 as her
maximum earning. Early retirement between ages 60 and 63 is
indicated.
(ii). Ms Ntsieni is of view that the
plaintiff seems likely to continue working in line with her skills
and residual capacity and
growth in her earnings and career will
still be as her pre-accident scenario.
ISSUES CONSIDERED
[14]
There is no doubt that the plaintiff sustained severe injuries which
are mainly orthopaedic and to some extent psychological
in nature.
The severity of her injuries put an end to her choice of career, that
of a Safety Officer. Prior to the accident in
question, she was
generally in good health.
[15]
She passed her grade 12 in 2004. In 2007, she passed a course in
boiler making level 5, in 2006 she obtained a qualification
in end
user computing, in 2008 she obtained a qualification in Safety
Management Training programme, in 2013 she passed a course
in Project
Planning and Control using Primavera as well as a course in MS
Project 2010- Level 1 and 2 in the same year .She furnished
proof of
all the courses she obtained.
[16]
She reported to both Industrial psychologists, that she enjoyed her
work as a Safety Officer and consequently enrolled for
a National
Diploma in Safety Management through UNISA in 2012. The accident in
question interrupted her aspiration. However, she
did not furnish the
both Industrial psychologists with proof of enrolment. This aspect
lead to a controversy, whether she did indeed
enrol for the said
Diploma. The defendants' attitude is that "she who alleges must
prove ". On the other hand, the plaintiff
argued that she had
the inspiration to study further and obtain the Diploma in Safety
Management.
[17]
Having regard to plaintiff's post metric education history, I have no
doubt that her aspiration is genuine. Not withstanding
her physical
and psychological challenges, she managed to enrol and complete a
course in Project Planning and control using Primavera,
in 2013, post
accident. This is a course relevant to her current occupation as a
Planner. She strikes me as a dedicated, hard working,
disciplined and
focused person. It is recorded that her current employer is happy
with her performance at work. According to Mario
Meyer. Lead Project
Planner, the plaintiff was regarded as an exceptional employee with
great potential. She was a very good worker
with excellent knowledge
of the plant. She would have secured a promotion at a significantly
later stage in her work life.
[18]
It is true that the general principle is that, "he who alleges
must prove". However in this instance, the defendant
is not
merely expected to defend lawsuits. The defendant is a creature of
statute; the Road Accident Fund Act 56 of 1966 ("the
act").
The act imposes certain statutory obligation on the defendant. The
act in its format imposes limitations to common
law rights of victim
of a motor vehicle accident. The constitutionality of the limitations
has attracted the attention of various
courts and in particular the
constitutional court. The Constitutional Court
[1]
held that the said limitation impacts on the victims right to
security as entrenched in section 12(1) (c) of the constitution.
[19]
The right to security is of great importance not only to the victim
but to the institution entrusted with administering social
justice as
expected in term of the constitution. The object of the Road Accident
Fund is not merely to compensate victims of the
Road Accidents but
also to actively investigate the circumstances of the accident and
consequences thereof so that the victim is
justly and adequately
compensated.
[20]
‘
That during the
last decade the Fund has too often failed to perform In a manner
consistent with the realisation of its object
of rendering an
indispensable service to vulnerable member of society , with
resultant prejudice to third party claimants, is evident
from the
adverse remarks made in a signification number of superior court
judgements given during that period
"
[2]
[21]
In Road Accident Fund v Klisiewicz
[3]
per Howie JA, the court stated that:
"A
special cost order is
therefore not only appropriate but
necessary.
The
[Fund] exists to
administer, in the interest
of
the road accident
victims, the funds it
collects
from
the public. It
has the duty to effect that administration with integrity and
efficiency
.
This
entails the thorough investigation
of
claims and where
litigation is responsibly contestable, the adoption
of
reasonable and
timeous
steps in advancing its
defence. These
are
not exacting
requirements. They must be observed".
[22]
In Madzuye and another v Road Accident Fund
[4]
the court,per Maya JA went on to state that
"This is particularly
so
having regard to the
fact
that the intention
of
the
act,
in terms
of
which the respondent functions, is to
give the greatest possible protection to victims
of
negligent
driving
of
motor vehicles".
[23]
In this present case, the one crucial issue which appears to have
been brushed aside is whether the plaintiff registered with
UNISA for
a .National Diploma in Safety Management. It does not appear from
Industrial psychologists or any expert report before
court that there
was an effort to investigate the plaintiff's allegation. This is
disturbing. In my view expert witnesses are not
there to regurgitate
what the patient alleges, but to also verify crucial information
which will impact on the quantification of
the damages. This is so
because their final postulation will necessarily attract doubt if not
founded on investigated or verified
facts. The Failure to verify or
investigate material allegations of fact should not be held against
the victim of the road accident
fund.
[24]
The Road Accident Fund, has not conducted an efficient or any
investigation of the plaintiffs' education history. The defendant
was
alerted by its own Industrial psychologist that the plaintiffs
alleges she had enrolled with UNISA for a course in Safety
management. Instead, the defendant places the plaintiffs to the proof
thereof and does not initiate its own investigation. The Head
office
and one of the branch offices of the defendant as well as UNISA are
situated within the jurisdiction of this court. It is
a matter of a
few minutes from the defendants' branch office to UNISA. It wouldn't
have been an onerous task to investigate whether
plaintiff was indeed
enrolled with UNISA as alleged.
DAMAGES
[25]
There is no doubt before court that the plaintiff aspired to pursue a
career as a safety officer. The only criticism is that
she did not
produce proof of registration with UNISA. I am not persuaded by such
argument. The worst should not be assumed but
the well investigated
facts should speak for themselves and be before court.
[26]
The undeniable fact is that the plaintiff is no longer the same
person mostly physically. Her aspiration and career choice
have been
shuttered. She suffers from physical and psychological challenges
which had a direct and negative impact on her pre accident
earning
capacity.
[27]
Having regard to her career choice, she would have pursued her
aspiration of becoming a better Safety officer with better prospects
of salary increment. The opinion of Mr Mario Meyer about plaintiffs'
character bears testimony to this fact.
[28]
I am inclined to accept the plaintiff's actuarial calculations based
on Mr Loot's subsequent and final calculations but to
factor
appropriate contingency deductions.
[29]
In my view the following calculation are fair and equitable:
(i).Income had accident not
occurred
R 9 827 926.00
less 15% contingency deduction
R
1 474. 188. 90
Subtotal
R 8 353 737.10
(ii) Income having regard to accident
R 8 055,266.00
less 35% contigency deduction
R 2
013. 816.50
Total loss
R 6 041449. 50
Total Loss R8353737,10- R6041449,50 =
R2 312 287,60
[30]
I therefore make the following order
(i) The plaintiff succeeds in her
claim for compensation against the Road Accident Fund,
(ii) The Road Accident Fund is to pay
the plaintiff a sum of R 2 312,287.60 her loss of past and future
income.
(iii) The defendant is to pay cost of
this action which includes all the plaintiff's experts qualifying and
reports delivered before
the hearing of this matter and the cost of
plaintiff's counsel.
[1]
Law Society of South Africa and others v Minister of Transport and
Another
2011 (1) SA 400
cc.
2011 (2) BCLR 120
at para 75.
[2]
Daniels
and others v Road Accident Fund others (8853/20101
[2011] ZAWCHC 104
(28 April 2011)
[3]
Road Accident Fund v Klisiewicz
[2002] ZASCA 57
at para 42 also see
Daniel and others v Road Accident Fund and others ,supra at para 18
[4]
Madzuye and another v Road Accident Fund 2007(1) SA 165 (SCA) para
17 – 18. Also see Bovungana v Road Accident Fund
2009 (4) SA
123
(E) at Para 3 where the court noted with concern the Increasing
tendence on the part of the Fund to disregard its objective