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[2017] ZAGPPHC 1260
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Mbatha v RAF (82393/14) [2017] ZAGPPHC 1260 (18 April 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
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO:82393/14
18/4/2017
In
the matter between:
THABANE
ABSON
MBATHA
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ:
[1]
The plaintiff THABANE ABSON MBATHA instituted a
claim against the defendant, THE ROAD ACCIDENT FUND, arising from a
motor vehicle
collision on 24 December 2011 where he as a pedestrian
was struck by a white Nissan truck with registration number [….]("the
insured vehicle").
[2]
The plaintiff sustained the following injuries:
2.1 Multiple facial
fractures;
2.2 Tibula fracture;
2.3 Severe bruising;
and
2.4 Severe scarring
over his face and upper limbs.
[3]
The parties reached an agreement on the following heads prior to
the
commencement of the matter:
3.1
an undertaking in terms of
section 17(4)
(a) of the
Road Accident
Fund
Act, 56 of 1996
, limited to 80%, for future
accommodation of the plaintiff in a hospital or nursing home for
treatment of or rendering of a service
or supplying of goods to him,
to compensate the plaintiff in respect of the said costs after the
costs have been incurred and on
tendering of proof thereof, arising
from the collision which occurred on 24 December 2011.
3.2
compensation of general damages in the amount of
R300 000.00
3.3
that the claim for past hospital and medical expenses be
postponed
sine die.
3.4
that the calculation in the actuarial report of
Human and Morris dated 05 April 2017 in respect of loss of earning
capacity was
not contentious.
[4]
The narrow issue for determination by this court is the contingency
to be applied to the loss of earning capacity.
[5]
The following reports were handed in by consent:
5.1 Dr DA Birrell (
Orthopaedic Surgeon)
5.2 Dr JPM Pienaar
(Plastic Surgeon)
5.3 Dr EJ Muller
(Maxillo Facial)
5.4 Dr JJ du Plessis
(Neurosurgeon)
5.5 C Macdonald
(Occupational Therapist)
5.6 T Reynolds
(Clinical Psychologist)
5.7 Dr D Schreuder
(Industrial Psychologist)
5.8 Human and Morris
(Actuary)
[6]
The plaintiff's highest level of education is Grade 10. His
employment
history
is as
follows: from 2004 to 2005 he worked
as a back griller at Nando's Alberton; was unemployed from 2005 to
2007; held the position
of built-belt driver and cleaning spillage
underground at lmpulelo (Standerton) Anglo American; and he has been
an Engineering
Senior Assistant at Zibulo Colliery from 2010 to date.
His income at the time of the accident was as follows: Basic Salary
(R4733.00
per month); Bonuses (R3854.80 per month); Housing Subsidy
(R3993.00 per month) and a travel allowance of R2494.00 per month.
[7]
Dr du Plessis in his report recorded that
"No loss has
occurred due to
a
brain injury. There has been
a
5%
loss of work efficiency due to compression fractures to his thoracic
vertebrae. He will probably have to retire at the age of
approximately 64 years due to the sequelae of the back injury."
The retirement age at the plaintiff's current employer is 63
years, one year shy of the prognosis of Dr du Plessis. Ms Macdonald
postulates that
"Despite the symptoms Mr Mbatha complains of
when working,
he
still copes with his job and did the past
nearly five years.
He
can continue doing his job and should
find it easier following optimal physical conditioning."
Dr
Schreuder submits that ·
higher post-morbid contingency
deduction is indicated on the
same
basis of quantification as
for the premorbid scenario to make provision for loss of earning
capacity,
early
retirement and the impact the combination of
his problems has on his work efficiency and productivity."
[8] The
plaintiff returned to work after his ordeal and has continued working
in the same
capacity for the last five years notwithstanding his
medical constraints. An undertaking has been given for future medical
expenses
which should ameliorate the impact of his medical
conditions.
[9]
Adv Williams SC for the plaintiff submitted that in the circumstances
of this matter
it would be fair and equitable to apply a contingency
differential between uninjured and injured income of 10%. The basis
of this
contention is that the plaintiff still has some 30 years to
work, that there is a risk of the plaintiff losing his employment as
result of his medical conditions without being able to secure
alternative employment given his qualifications.
[10]
Adv Nyandeni for the defendant submitted that a contingency
differential between uninjured and
injured income of 5°/o should
be applied. The basis of the contention is that the plaintiff is
still young and he is still
employed in the same position he held
pre-accident.
[11]
It is widely 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.
In
Dippenaar v Shield
Insurance
Co
Ltd
[1]
the following was said at 917B-D:
"In
our law, under the /ex
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."
The
law in this regard is therefore trite. 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
[2]
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."
[12]
The determination of contingency allowances remains within the
discretion of the court, which
varies appreciably amongst judicial
officers.
Shield Insurance Co Ltd v
Booysen
[3]
.
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
[4]
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."
[13] The plaintiff and
defendant are not far apart on their submission of what would
be a
fair amount. Upon a careful preponderance of the facts of this matter
I am satisfied that the submission advanced on behalf
of the
plaintiff would account for any of the eventualities envisaged in the
next 30 years before the plaintiff reaches retirement
age.
[14]
In the result I accept the 10o/o differential as set out in Human &
Morris's
report which amounts to a nett loss of
R788 451.00.
The
nett loss with the amount agreed in respect of general damages totals
R1088451.00.
From this amount 20% as agreed must be deducted
bringing the loss of earning capacity to
R870 760.80.
[15]
The order granted is accordingly in terms of the order attached
marked X, duly incorporated
into this judgment, with the insertion of
the amount of
R870 760.80.
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
On behalf
of the Plaintiff: Adv Williams SC
Instructed
by Marais Basson Incorporated
On behalf
of the Defendant: Advocate Nyadeni
Instructed
by TM Chauke Incorporated
DATE HEARD:
18 April 2017
DATE
OF JUDGMENT: 18 April 2017
[1]
1979 2 SA 904 (A)
[2]
2016 (2) SA 109 (SCA)
[3]
1979(3) SA 953(A) at 965 G-H
[4]
19841 SA98