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[2017] ZAGPPHC 386
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Motswiane v Road accident Fund (14249/2015) [2017] ZAGPPHC 386 (24 April 2017)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO.: 14249/2015
DATE:
24/4/2017
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
...24/...04/...2017
In
the matter between
PATRICK
MOGASHO
MOTSWIANE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
VAN
DER WESTHUIZEN, A J
[1]
The plaintiff instituted
an action against the defendant in which he claims damages that
he
suffered as a
result of injuries he
sustained in
a motor vehicle accident that occurred on or
about 9 June 2013 at or near Burgersfort, Limpopo.
[2]
On the morning of the
commencement of the trial, the defendant conceded the merits and
accepted 100% liability in respect of negligence.
[3]
The parties were agreed
that only the issue in respect of quantum of past and future loss of
income is to be decided. But for general
damages, the other rubrics
of damages were settled. The issue of general damages is deferred to
the HPCSA and accordingly is to
be postponed.
[4]
In respect of the issue
to be decided, the parties were agreed and content to argue that
issue with reference to the joint minute
of the respective Industrial
Psychologists and the latest actuarial report. During argument,
counsel for the defendant made reference
to the report of the
defendant's Industrial psychologist, Ms Nel with special reference
to
the
plaintiffs
employment
history.
[5]
The
following
is
common
cause
between
the
parties:
(a)
The
injuries
suffered
by
the
plaintiff
and
the
sequelae
thereof.
In particular the
plaintiff suffered a shortening of the right
tibia
resulting
in
a
limping
gait
and
stiffening
of
the
left
index finger;
(b)
It is
accepted that
the
plaintiff
will
have
to
undergo amputation
of the
stiff
left
index finger
in
future;
(c)
The
plaintiff
was
unemployed at
the
time
of
the
accident;
(d)
The plaintiff only
obtained gainful employment a year after the accident;
(e)
The plaintiff
holds qualifications in security services and has held
various
positions
in
security
services;
(f)
The plaintiff
gained experience in Pipe Track Ventilation (PTV) whilst
employed
by
AAM
Mechanised
Mining
Solutions (Pty)
Ltd
(AAM)
based at Xtrata
Chrome Mine, Burgersfort. He held that employment for two years prior
to the accident occurring. His employment
in this capacity was
terminated shortly before the accident;
(g)
The
plaintiff
holds
the
required
red
card
in
the
mining
industry.
[6]
Although the Industrial
Psychologists are agreed on some aspects, their differences relate to
the past loss of income and the plaintiffs
capacity
to
secure
work
in
future
and
the
category
thereof.
[7]
Both Industrial
Psychologists are agreed that the plaintiffs ability to again secure
employment in the PTV field is truncated as
a result of the injuries
sustained in the accident. They differ on the degree of truncation.
[8]
Mr van
Niekerk,
the Industrial Psychologist
on behalf of the plaintiff, postulates that the plaintiff would, but
for the accident, probably have
again secured employment in the PTV
field within a year of his dismissal
that
occurred
immediately prior
to
the
accident
occurring. Ms Nel, the
Industrial Psychologist on behalf of the defendant, merely states
that it was unlikely that the plaintiff
would have been re
employed by
AAM
subsequent to
the
accident.
In
her
report, she
does not
consider employment in
the PTV field by other
employers active in that field. None of the Industrial Psychologists
seem to have specifically considered
the effect of the aforesaid
injuries on the plaintiffs
chances
of
securing work
in
the
PTV
field
post
accident.
[9]
However, counsel for the
plaintiff and the defendant conceded and accepted that due to the
injuries suffered with reference to the
shortening of
the right leg and the
stiffening of the left index finger, the plaintiff
would
have
difficulty
in
obtaining
employment
in
the
PTV
field.
[10]
Both Mr van Niekerk and Ms Nel are agreed that the plaintiff, as a
result of his impairments, was rendered an unequal competitor
in the
workplace. His options for employment within the sedentary / light
ranges were poor due to his impairments and his level
of education.
Both are further agreed that the probable and more obvious employment
would be within the security services field
and in that regard, as a
Grade C security guard.
[11]
It is also agreed between
the Industrial Psychologists that the level of income
would
be
with
the
PSIRA
rates
for
a
Grade
C
security guard.
[12]
Ms
Erasmus, counsel
for
the
defendant, submitted that
when regard is had to the
plaintiff's career history, his qualifications and most of his
experience related to that of security
services, and hence that the
likelihood of obtaining employment in the PTV field, but for the
accident, was poor. She submitted
accordingly that the second
scenario postulated in
the Actuarial report was,
post morbid, the more probable scenario. It being common cause that
the plaintiff was unemployed prior
to the accident, Ms Erasmus
submitted that the plaintiff
suffered
no
past
loss
of
income.
[13]
Ms De Meyer, who appeared
on behalf of the plaintiff, submitted that the plaintiff suffered
past loss of income despite the fact
that he was unemployed at the
time of the accident. That submission is
premised upon a statement
by Mr van Niekerk contained in the joint minutes
of the
Industrial Psychologists.
That
statement related to
an
opinion
that, but for the
accident, the plaintiff would probably have, within a year of his
dismissal,
obtained
employment
in
the
PTV
field.
[14]
In my view, the fact that the plaintiff was unemployed at the time of
the accident, and that in any event it would have taken
him a year to
obtain employment in whatever field, he has not suffered any past
loss of income as a result of the accident. The
plaintiffs
claim under this rubric is dismissed.
[15]
There is no real dispute that the plaintiff would in all probability
have succeeded in· obtaining employment in the
PTV field, Ms
Nel merely postulating that AAM would probably not re-employ the
plaintiff. Accordingly, I find that as a result
of the plaintiffs
impairments suffered as a result of the accident, the likelihood of
his chances of obtaining employment in the
PTV field have been
compromised. Both Industrial Psychologists accept that the plaintiff
holds preferences of securing work in
the mining industry. That
preference has now been compromised due to his impairments as a
result of the accident.
[16]
It follows that the first scenario postulated in the Actuarial
Report, with reference to the post morbid situation, is to be
preferred. In this regard, both counsel are agreed that a higher
contingency is to be applied, that of 15 - 20%. A recalculation
on
the higher contingency percentage amounts to R544 858,40 in respect
of future loss of income.
[17]
The plaintiff is accordingly entitled to the order as set out in the
draft order marked XYZ appended hereto, duly completed
by me and
counter signed by me.
I
thus grant the order contained in the draft marked XYZ.
_________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On behalf of Appellant:
Ms M de Meyer
Instructed
by:
Oosthuizen & Steyn Attorneys
On behalf of
Respondent:
Ms N
Erasmus
Instructed
by:
Rambevha Morobane Attorneys
IN
THE HIGH
COURT OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No:
14249/2015
Before
the Honourable
Van de Westhuizen AJ
On
this the 21st of April 2017
In
the matter between:
PATRICK
MOGASHO
MOTSWIANE
Plaintiff
and
THE
ROAD
ACCIDENT
FUND
Defendant
DRAFT
ORDER
BY
AGREEMENT BETWEEN THE PARTIES, IT IS ORDERED:
1.
Defendant shall pay to the Plaintiff the sum of
R 544 858.40 (
FIVE HUNDRED AND
FORTY-FOUR
THOUSAND EIGHT-HUNDRED AND FIFTY-EIGHT RAND AND FORTY CENTS.)
for delictual
damages.
2.
In the event of the
aforesaid amount not being paid timeously, the Defendant shall be
liable for interest on the amount at the rate
of 10.5% per annum,
calculated from the 15
th
calendar day after the date of this
Order to date of payment.
3.
The Defendant shall
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) of Act 56 of 1996 for payment of the
rendering of a service
or
supplying
of
goods
to
him/her resulting the
injuries
sustained
by the i tiff in the
motor vehicle accident that occurred on
9
June 2013
to
ompensate the Plaintiff in respect of the said costs after the costs
have een incurred and upon proof thereof, limited to
100
%.
The domestic assistance and home maintenance as envisaged in the
medical legal reports
shall
form
part
of
this
undertaking.
4.
5.
The Defendant shall pay
the Plaintiffs taxed or agreed party and party costs
on
the
High
Court
scale,
subject
thereto
that:
5.1.
In
the
event that
the
costs are
not
agreed:
5.1.1.
the Plaintiff shall serve
a notice of taxation on the Defendant's
attorney
of
record;
5.1.2.
the Plaintiff shall allow
the Defendant 14 (fourteen) Court days from date of allocatur to make
payment of the taxed
costs.
5.1.3.
should
payment
not
be
effected
timeously, the
Plaintiff will be
entitled to recover interest at the rate of 10.5% per annum on the
taxed or agreed costs from date
of allocatur
to
date
of
final
payment.
5.2.
such
costs
shall
include:
5.2.1.
the costs
incurred
in
obtaining
payment of
the
amounts mentioned in paragraphs 2 and 3 above;
5.2.2.
the costs of counsel,
including counsel's charges in respect of his/her full day fee for
21
April 2017,
as well
as
reasonable
preparation;
5.2.3.
the cost to date of this
order, which costs shall further include the costs of the attorney
and the correspondent attorney which
include necessary travelling
costs and expenses (time and kilometers), preparation for trial and
attendance at Court which shall
include
all
costs
previously reserved,
reasonable costs of
consulting with plaintiff to consider the offer, the cost incurred to
accept the offer and make the offer an
order of Court to the
discretion of The Taxing Master;
5.2.4.
the costs of the
actuarial calculation obtained by the Plaintiff, as well as such
reports furnished to the Defendant and/or to the
knowledge of the
Defendant and/or its attorneys, as well as all reports in their
possession and all reports contained in the Plaintiff's
bundles;
5.2.5.
the costs consequent to
the Plaintiff's trial bundles and witness bundles, including the
costs of 5 (five) copies
thereof;
5.2.6.
the costs of holding all
pre-trial conferences, as well as round table meetings between the
legal representatives for
both
the Plaintiff and
the
Defendant, including counsel's charges in respect thereof;
5.2.7.
the costs of and
consequent to compiling all minutes in
respect
of
pre-trial
conferences;
6.
The
amounts referred to
in
paragraphs 2
and 5
will
be
paid to
the
Plaintiffs attorneys,
Oosthuizen
&
Steyn Attorneys,
by
direct transfer into their trust
account,
details
of
which
are
the
following:
Name:
Oosthuizen
&
Steyn Attorneys Trust AcC
Bank:
Standard Bank
Account
number:
[3...]
Branch
code:
071445
Ref:
Oosthuizen/MOT297/0001
7.
The
issue
of
general damages is
postponed
sine
die.
BY
ORDER OF THE COURT:
________________________
REGISTRAR
Counsel
on
behalf of
Plaintiff
:
Adv. M. de Meyer
(Olivier)
(083-228-6169)
Counsel
on
behalf
of
Defendant
:
Adv. N.
Erasmus
082-304-4114