About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 12
|
|
Mohlaba v Road Accident Fund (12010/2014) [2016] ZAGPPHC 12 (21 January 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No: 12010/2014
DATE: 21 JANUARY 2015
In the matter between:
THATO
MOHLABA
....................................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
Before: The Honourable Holland-Muter
AJ
JUDGMENT
[1] The plaintiff instituted action
against the defendant arising from an accident that occurred on 2
July 2013 along the Mangope
Road in Ga-Rankuwa within the
jurisdiction of this court. The plaintiff was driving a motorcycle
with registration number [B ……]
GP and collided with a
motor vehicle with registration number [X……..] GP
driven by the insured driver.
[2] The merits of the collision was
settled previously 100% in favour of the plaintiff and an undertaking
as envisaged in
section 17
(4) of the
Road Accident Fund Act, No 56
of 1996
, as amended, was tendered for the plaintiff’s future
accident related medical treatment.
[3] The parties in addition to the
above, placed the following on record at the beginning of the trial
by agreement, namely that
the defendant was to pay the following
towards the plaintiff as a result of the accident as part of the
plain¬tiffs claim:
3.1 The plaintiffs past medical and
hospital expenses in the amount of R 74 706,00; and
3.2 The plaintiffs loss of past
earnings in the amount of R 100 000,00.
[4] Counsel for both parties agreed
that the only aspects to be adjudicated by the court were (i) the
quantum of the plaintiffs
general damages and (ii) the plaintiffs
estimated future post morbid earning capacity, if any, and the amount
to be awarded as
damages for such a loss.
[5] At the beginning of the trial,
counsel for both parties further agreed that the plaintiffs estimated
pre-morbid earnings, as
calculated by the defendant’s actuary
in the report dated 6 August 2015 comprises R 4 961 040,00. This is
however on scenario
2 calculation by the actuary: to enter the labour
market with grade 12 and a certificate level of education. The
actuary also calcula¬ted
the position should the plaintiff enter
the labour market with only grade 12 level of education. In the
scenario 2, the actuary
calculated the plain¬tiffs future loss at
R 4 961 040,00 (the amount agreed to ) and in scenario 1 at R 3 923
535,00. Mr Malatji
later in his written heads of argument denied such
agreement. I have to disagree with him about what was agreed, but as
will follow
later, from the evidence is clear that the correct
approach will be to work on the first scenario that of the plaintiff
entering
the labour market only with grade 12 level of education (the
first scenario ).
[6 ] The plaintiffs injuries and
sequelae are fully set out in the respective reports and joint
minutes of the orthopaedic surgeons,
Drs EM Mennen and DE Gantz. See
the summary of the joint minute in the bundle: Index A - Pleadings
Part D
-
9
: The injuries can be summarized as follows:
“ the plaintiff sustained a right
proximal radius and ulna fracture. A bony anklosis has formed between
the proximal radius
and ulna. On clinical examination the plaintiff
has no pro-and supination of his forearm and his forearm remains in a
fixed position
20 degrees pronation. The loss of the forearm pro- and
supination of the plaintiff’s dominant hand will prevent
him from working as a motorcycle
mechanic. He has suffered a significant loss of working capacity. He
has suffered an injury to
his right ulna nerve resulting in loss of
sensation in his small and ring fingers and some loss of his
intrinsic hand function
[7] The orthopaedic surgeons regard the
injury sustained to be serious within the application of the
narrative test.
[8] The medico-legal reports by the
orthopaedic surgeons and their joint minute were accepted by both
parties as evidence in the
matter.
[9] In his heads of argument on behalf
of the plaintiff, Mr Lourens explained in detail the role of cross
examination and how the
evidence of expert witnesses should be
approached. He also gave a explanation as to how mutually
de¬structive versions should
be approached. I am indebted to him
therefore. Mr Malatji in his heads also assisted the court with
valuable inputs. There is no
need to merely repeat the heads in this
judgment, but where necessary refe¬rence will be made to
particular the case law referred
to.
EVIDENCE DURING THE TRIAL:
[9] The plaintiff testified and called
three expert witnesses namely Dr A Pauw ( clinical psychologist), Me
A Greeff ( occupational
psychologist) and Me L Van Gass (industrial
psychologist). The defendant called two experts namely Me D Rocha (
occupational psychologist)
and Me C J Nel (indus¬trial
psychologist). Joint minutes by the occupational psychologists and
the industrial psychologists
were filed. The reports by the witnesses
are found in the Bundle: Index C: Expert Documentation and the joint
minutes in Bundle:
Index D: Joint Minutes.
[10] From the evidence the following is
clear: The plaintiff suffered serious in¬juries which has a
permanent effect on his
life, in particular his future earning
capacity. The occupational experts agreed that as a result of the
injuries sustained by
the plaintiff in the collusion, the plaintiff
is vulnerable and compromised in his capacity for sustaining
occupation while having
to rely on his level of physical fitness to
secure an income; that he has limited capacity in terms of performing
the occupation
as a mechanic ( his occu¬pation at the time of the
accident); that he will not be able to perform the full tasks of a
mechanic
and that he will need coaching and education in respect of
the environments for which he would be suitable in future. See
occupa-
tional joint minute.
[11] The industrial psychologists were
of similar view, more so after the plain¬tiffs results from the
Tshwane University of
Technology ( TUT ) became available during the
trial. See exhibit 5. From these results it is more likely that the
plaintiff would
not have achieved a tertiary qualification, but that
he would have entered the labour market with a grade 12 level of
education.
Nel, during cross examination, conceded that the
plaintiffs level of ear¬nings, with grade 12, will probably be
comparable
to the scale indicated for semi-skilled workers in the
non-corporative sector as per Koch, Quan¬tum Yearbook of 2015.
See par
3.8 in the industrial psychologists’ joint minute.
[12] Although the experts differed from
one another on certain aspects, in my view these differences do not
justify the total rejection
of a particular witnesses’
evidence. All of the experts are ad idem that the plaintiff has been
injured to such an extent
that his pre- and post morbid income
situation are far apart and that he be compensated for this loss.
[13] In view of the above, I am of the
view that the more probable scenario to
work on would be the first scenario as
calculated by the defendant’s actuary. The more logical
calculation of the plaintiff’s
future loss is to work on the
assumption that he would have entered the labour market with only a
grade 12 level of education equal
to the upper quartile for
semi-skilled workers per Koch 2015. See par [5] above.
[14] The post morbid earnings as
calculated on behalf of the plaintiff as stated in the heads of
argument by Mr Lourens ( par 21.2
of his heads ) are
R 1 835 296,00 ( less 25% post morbid
contingency in the amount of R 458 824,00 ) resulting in a net of R 1
376 472,00. If this
is subtracted from the pre-morbid amount of R 3
584 612,00 ( first scenario future loss of R 3 982 902,00 less 10%
contingency
), as in the defendant’s updated calculation, the
plaintiffs loss is R 2 208 140,00.
[15] According to par 22.5 of Mr
Malatji’s heads of argument, the plaintiffs loss is R 1 511
755,00 on a similar calculation.
In his heads of argument,
Mr Malatji made various calculations by
using different contingency per¬centages, the amounts to vary
between R 1 312 610,00
to R 1 710 898,00.
[16] The parties are therefore at least
R 696 383,00 apart in this calculation.
[17] I am of the view that a fair
approach will be to apply a 10/25% contingency spread on the amounts
as calculated. The parties
being R 696 383,00 apart, the more
reasonable approach to add 50% ( R 348 192,50 ) of the difference to
the lower amount, the plaintiffs
future loss to be R 1 859 947,50.
[18] This award takes into account that
the plaintiff is not totally incapacitated but has a residual working
capacity. There were
speculation as to the type of sedentary work
within the working capacity of the plaintiff, but nothing concrete
was presented to
the court in this regard. It is however undisputed
that the plaintiff did not suffer any head injury. The plaintiffs
psychological
functioning has been affected, but this can be improved
by future therapy, the undertaking to cover future treatment. The
extent
of the recovery of the plaintiff is not clear, but it cannot
be excluded that he will be able to im¬prove in future. His
depression
can be addressed which will also improve his position. The
court however has to take into account that he could be employed in
future and allowed a higher post morbid contingency of 25% above. His
pre-accident TUT results were not good, clouding the possibility
that
he would have progressed to a post grade 12 level of education even
if the accident did not occur. From his evidence, the
inference is
justified that
the plaintiff was not a model student
and he was evasive about his studies and progress. There is some
doubt whether he would have
progressed be¬yond grade 12 in any
event.
[19] The question of the plaintiffs
claim for general damages now needs atten¬tion. Counsel for both
parties provided the court
with a comprehensive list of previous
cases to consider as to the quantum of the general damages. During
oral arguments after submitting
their respective heads of arguments,
Mr Malatji contended that R 400 000,00 for general damages will be
rea¬sonable. Mr Lourens
replied that the award should be
somewhere between R 500 000,00 and R 600 000,00.
[20] There are various factors/aspects
to be considered when awarding damages for bodily injuries. The
plaintiffs individual situation
is the following:
i He was 22 years old at the time of
the accident.
ii He has reached maximum medical
improvement and his condition, but for his psychological improvement,
and will have to live with
the scars and restricted forearm movement
for life.
iii He can only be considered for
sedentary and very light work. He cannot lift heavy objects ruling
out various types of work in
future.
iv He is suffering from mild depression
as a result of then accident.
v He can no longer become a motorcycle
mechanic.
vi He lost the use of his forearm to a
great extent. This also impacts on his previous fondness to go
fishing, camping, cycling
etc.
vii It cannot be found that as a result
of the accident, he cannot continue to study. His pre-accident
results were poor.
[21] Turning to listed case law, some
of the cases referred to are not applicable. Some refer to
amputations, leg fractures, facial
injuries etc. When making an
award, th court must take care that the award is fair to both
parties, give just consideration to
all aspects applicable. See De
Jongh v Du Pisanie NO 2005 (5) SA SAC at 476 D par 60.
[22] The closest to the matter before
the court is the case of Adv JP vd Berg no v Road Accident Fund (
unreported on 17 Ferbuary
2014 in GNP Case No 10528/2011. The
plaintiff in that matter sustained similar injuries to his arm and
was awarded R 500 000,00,
in today’s value R 531 489,00.
[23] I am of the view that an award of
R 540 000,00 for general damages in this
instance will be a reasonable and fair
award. It must be remembered that the plaintiff is not totally
incapacitated but will be
able to do sedentary work. He however will
have to make work of his depression and undergo the necessary
treatment.
[24] The plaintiffs particulars of
claim was amended and the amended pages were served on the
defendant’s attorneys of record
on 16 November 2015. No
objection was received as the amendments were only to the amounts
claimed. The amendments are allowed.
[25] I am indebted to both Mr Lourens
and Mr Malatji for their professional handling of the matter and
their comprehensive heads
of arguments.
[26] The following order is made:
26.1 The defendant is to pay the
plaintiff the amount of R 74 706,00 in respect of claim for past
medical and hospital expenses,
the amount agreed to between the
parties;
26.2 The defendant is to pay the
plaintiff the amount of R 100 000,00 in respect of the claim for past
loss of earnings, the amount
agreed to
between the parties;
26.3 The defendant is to pay the
plaintiff the amount of R 1 859 947,50 in respect of the claim for
future loss of earnings;
26.4 The defendant is to pay the
plaintiff the amount of R 540 000,00 in respect of the claim for
general damages as a result of
the injuries sustained by the
plaintiff in the accident;
26.5 The defendant is to pay interest
on the above mentioned awards, the total of the above mentioned
claims are R 2 574 653,50
a tempore more as from 14 days from the
date of the judgment to date of the payment; and
26.6 The defendant is to pay the
plaintiffs costs of suit on a party and party scale, including all
costs occasioned by the matter
standing down since 7 August 2015 and
the costs of the expert witnesses who testified in the matter.
Signed at Pretoria on January 2016.
HOELAND-M0TER AJ.
Dates of hearing: 2, 3,4 & 5
November 2015.
Oral arguments in court on 10
December 2015.