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[2016] ZAGPPHC 53
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Metsoamere v Road Accident Fund (2484/2013) [2016] ZAGPPHC 53 (9 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG PROVINCIAL DIVISION,
PRETORIA)
CASE
NO: 2484/2013
9/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
M.C
METSOAMERE Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
MADIMA.
AJ
[1]
The plaintiff is a 45 year old male in the employ of the South
African National Defence Force ("SANDF") as a procurement
officer. He lives in Mhluzi, Middleburg, in Mpumalanga Province. The
defendant is the Road Accident Fund ("RAF").
[2]
On the morning of 22 November 2010 at about 07:16 the plaintiff was
the driver of motor vehicle with registration letters and
numbers […]
("the insured driver") when a collision occurred between
his vehicle and another motor vehicle with
registration letters and
numbers […] ("the Insured vehicle") driven by one
V.N Kotsane ("Kotsane").
In
his particulars of claim the plaintiff alleges that Kotsane was the
cause of the collision due to his negligent driving. Kotsane,
according to the plaintiff
inter a/ia,
drove his motor vehicle
at an excessive speed and created the circumstances that caused the
collision, he failed to keep a proper
lookout, he failed to control
his motor vehicle and failed to avoid the collision.
[3]
The plaintiff was taken to the Midmed Hospital in an ambulance where
he stayed for three and not five days as stated in his
particulars of
claim. His injuries included injuries to his chest, right clavicle
and left hand. He was found to experience difficulties
sleeping on
the affected side. He feels pain when carrying, lifting and pushing
heavy objects, and finds it difficult to work with
hands above
shoulder height. He was treated at the hospital and upon his
discharge was provided with pain killers and anti-inflammatories
and
wore a sling for three weeks thereafter.
[4]
The defendant naturally denies that Kotsane was the cause of the
collision. For its part the RAF states that it was the plaintiff
that
caused the accident in that
inter alia
he failed to keep a
proper lookout and travelled at an excessive speed.
[5]
The plaintiff seeks compensation against the defendant in the
amount of R1 300 000.00. Of this amount R100 000.00 is for
past
medical expenses, R400 000.00 is for future medical
expenses, R300 000.00 is for loss of income, R400 000.00 is
for
future loss of income and R100 000.00 for general damages.
[6]
In preparation for the trial the plaintiff secured the services of
Ors Oelfse Medico-Legal Services who examined him and provided
a
medico-legal report in preparation of the trial. The doctors' report
states that the plaintiff sustained chest injuries and injury
to the
right clavicle as well as on his left hand
[7]
The medico legal report also states that the plaintiff's neurological
examination revealed a mild atrophy of the scapular muscles,
as well
as soft tissue injury to the right clavicle and shoulder joint. There
is residual pain and discomfort.
[8]
The report further states that there is a 10-20% loss of workplace
productivity of the plaintiff. His duties as procurement
officer
entailed standing, walking and handling light objects. He is
hampered, because of his injuries from carrying heavy objects.
His
overall productivity as stated in the report has decreased by up to
20%.
[9]
The plaintiff also provided another report by Burger Radiologists Inc
who stated that the plaintiff has internal fixation of
the fracture
of the shaft of the third metacarpal bone with plates and screws. Dr
Labuscagne & Partners also provided a report
on behalf of the
plaintiff. The doctors reported that a plate and screws could be
noted in position in the third metacarpal and
the old fracture in
this region has healed with a modelling deformity. They conclude that
there is a slight cortical thickening
in the medial aspect of the
fifth metacarpal.
[10]
The plaintiff was further examined by Dr Theo Enslin who also
provided a comprehensive report. In this report the doctor
recommended
that the plaintiff be examined by an occupational
Therapist, Industrial Psychologist, Clinical Psychologist, a Plastic
and Reconstruction
Surgeon as well as an Orthopaedic Surgeon. Dr
Enslin concluded that the plaintiff has suffered serious long term
impairment which
will warrant an award for damages. The plaintiffs
work output will remain limited and will continue to affect him in
future. He
will benefit from future conservative and possibly
surgical treatment.
[11]
The parties appeared before me on 11 February 2015. They had earlier
agreed on certain heads of damages. Pursuant to that agreement
I
inter alia
made the following order:
1.1. The defendant is to
pay the Plaintiffs attorneys the sum of R559 277.43 (Five Hundred and
Fifty Nine Thousand Two Hundred
and Seventy Seven Rand and
Forty Three Cents) in respect of past medical and hospltal expenses
(R24 833.43); general damages (R150
000.00) and loss of income as a
soldier of the National Defence Force (R384 444.00), as partial
finalisation of the Plaintiff's
claim;
The
Plaintiffs Attorneys' trust account details are as follows:
Account
Holder: Van Zyl Le Roux Inc
Branch:
ABSA Van der Walt Street
Branch
Code: 323345
Type
of Account: Trust Account
Account
Number: […]
1.2. In the event of
default on the above payment , interest shall accrue on such
outstanding amount at 09.00% per annum calculated
from due date until
the date of payment;
1.3. The judgment with
respect to the issue of loss of income in the capacity as salesman
for ASSUPOL is reserved.
2.1. The Defendant shall
furnish the Plaintiff with an Undertaking in terms of Section 17(4)
(a) of Act 56 of 1996, in respect of
future accommodation of the
plaintiff in a hospltal or nursing home or treatment of or the
rendering of a service or supplying
of goods to the Plaintiff (and
after the costs have been incurred and upon submission of proof
thereof) arising out of the injuries
sustained in the collision which
occurred on 22 November 2010.
2.2. if the Defendant
fails to furnish the undertaking to the Plaintiff on due date, the
Defendant shall be held liable for the
payment of the taxable party
and party additional costs incurred to obtain the undertaking.
The Defendant to pay the
Plaintiff taxed or agreed party and party costs in the above
mentioned account, for the instructing and
correspondent attorneys,
which costs shall include, but not to be limited to the following:
3.1. All reserved cost to
be unreserved, if any
3.2. the fees of Senior
Counsel;
3.3. the cost of
obtaining all expert medico- legal and any other reports of an expert
nature which were furnished to the Defendant;
3.4. the reasonable
taxable qualifying, preparation and reservation fees of all experts,
if any;
3.5. the reasonable
traveling and accommodation cost, if any, incurred in transporting
the Plaintiff to all medico-legal appointments,
and attendance at
court for trial purposes;
3.6. the above-mentioned
payment with regard to costs shall be subject to the following
conditions
3.6.1.
The Plaintiff shall, in the event that costs are not agreed, serve
the notice of taxation on the Defendant's attorneys of
record; and
3.6.2.
the Plaintiff shall allow the Defendant 14 (fourteen) calendar
days to make payment of the taxed costs.
No
contingency fee agreement exists between the Plaintiff and the
Plaintiff's attorneys.
Loss
of Assupol earnings past and future
[12]
As per my above order, what remained to be determined was the issue
of loss of past and future commission income of the plaintiff
in his
capacity as a salesman for Assupol.
[13]
Dr A.C Strydom, an Industrial Psychologist states in her report that
the plaintiff started work as a part-time consultant for
Assupol on 1
May 2010. The plaintiff received a commission of R1 000.00 for each
policy sold. He sold on average five policies
and thus made R5 000.00
per month in commission. Plaintiff was a good salesman and was rated
7/10 by Assupol. There were no additional
benefits at Assupol such as
increases or prospects of promotion, medical aid or pension. There
was no overtime as the plaintiff
worked at his own time and pace. The
plaintiff ate was he killed.
[14]
In the report the plaintiff stated that pre-morbid he earned between
R4 000.00 and R5 000.00 per month in commission. Post-morbid
the
plaintiffs output was reduced to 4/10 as he now could no longer drive
long distances to find clients. He only is able to sell
between 2 and
3 policies per month. The plaintiff has however retained his job at
Assupol. Post-morbid the plaintiff earns between
R2 000.00 and R3
000.00 per month commission. Dr A.C Strydom based her findings on
collateral information obtained from one Ms
Madihlaba, a manager at
Assupol.
[15]
Dr AC Strydom concluded in his report that the plaintiff pre-morbid
would have continued selling policies on a part-time basis
and would
have been able to increase his earnings in this regard. The plaintiff
continues to perform some work for Assupol as before
the accident
however based on collateral information he earns an average of R2
000.00 per month which is about R24 000.00 per annum.
In the same
report Dr A.C Strydom makes reference to a report by Dr L.A Oelofse
who noted that
"this patient will be able to work until the
normal retirement age of 65 after successful treatment. ·
This
evidence was also not challenged by the defendant.
[16]
The expert reports presented on the pre and post morbidity of the
plaintiff went largely unchallenged. I recall vividly enquiring
of
the legal representative of the defendant whether he was sure he had
no further questions for the plaintiff during cross examination.
[17]
The question is whether a court is bound to accept the unchallenged
evidence of a witness. It is a well-established principle
in law that
generally, a party must challenge in cross examination the evidence
of any witness of the opposing party if she wishes
to argue that
evidence given on a particular issue should not be accepted.
See
Browne v Dunn [1894] 6 R.67. HL.
Failure to cross examine a
witness on a particular important point may lead the court to infer
that the cross examining party accepts
the witness' evidence, and it
will be difficult to suggest that the evidence should be rejected.
[18]
As already stated above the plaintiff testified that he earned R5
000.00 per month in commission before the accident. He testified
that
he now earned between R2 000.00 and R3 000.00 per month as a result
of his inability to drive long distances to source clients.
[19]
I have no reason to doubt the evidence of the plaintiff. There was
nothing in his evidence that indicated that he was economic
with the
truth. He was not confronted and challenged by the defendant's legal
representative on his evidence.
[20]
It is trite that the court can reject the unchallenged evidence of a
witness only when there is doubt about the credibility
of a witness
and her evidence. The question I ask myself is whether the plaintiffs
evidence was tainted in anyway. Does the court
have any reason to
disbelieve the witness' evidence?
[21]
Although the witness did not provide any proof of his earnings pre
and post morbid, I am persuaded to accept his evidence for
two
reasons. The first is that his credibility and evidence was not
challenged by the defendants. The second reason is that the
plaintiff
is a credible witness.
[22]
The actuarial report on loss of income states that the loss in past
earnings pre morbid was in the order of R280 364.00.
The report
makes a contingency deduction of 5% and results in the total loss of
past earnings at R266 346.00. Post-morbid the loss
in past earning
amounts to R94 022.00 and allowing a 5% contingency deduction results
in the amount of R89 321.00. The difference
between the two amounts
pre and post morbid is R177 025.00. The defendant did not dispute
these actuarial calculations.
[23]
With regard to the loss of future earnings the amount pre-morbid is
calculated at R1 097 634.00. Allowing a 15% / 25% contingency
deduction leaves the amount of R932 989.00.00. Post-morbid the amount
drops to R369 884.00 and allowing a 15%
I
25% contingency
deduction leaves an amount of R277 413.00. The difference between the
two amounts is in the order of R727 750.00
and allowing a 15%
I
25% contingency deduction leaves an amount of R655 576.00
[24]
The difference in the loss of past earnings of R177 025.00 added to
the loss of future earnings of R655 576.00 amounts to R832
601.00
which represents the pecuniary loss, past and future for the
plaintiff. These calculations were not challenged by the defendant.
[25]
As I have stated above, my hands are tightly tied. I cannot disregard
the unchallenged evidence of the expert reports as well
as that of
the plaintiff that I have found to be credible.
[26]
In the circumstances I make the following order:
[26.1] The defendant is
liable to pay to the plaintiff the amount of R832 601.00.
[26.2] The above amount
is to be paid into the Trust Account of the plaintiff's attorneys
referred to in paragraph 11 above, within
30 days.
[26.3] In the event of
default on the above payment, interest shall accrue at 09.00% per
annum calculated from due date until the
date of payment;
_______________________
TS
MADIMA: AJ
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the Plaintiff: Adv N Diedericks SC
Instructed
by: VZLR Attorneys
Pretoria
Tel:
012 435 9444
On
behalf of the Defendant:
Instructed
by: T.M Chauke Incorporated
Pretoria
Tel:
012 326 8711/2
5261
Dates
of Trial: 11 February 2015
Date
of Judgment: 9 February 2016