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[2016] ZAGPPHC 132
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Mkobeni v Road Accident Fund (12696/2013) [2016] ZAGPPHC 132 (7 March 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 12696/2013
DATE: 7/3/2016
Not reportable
Not of interest to other judges
Revised
In
the matter between:
SHADRACK
HASANI
MKOBENI
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
SK
HASSIM AJ
[1]
The
plaintiff claims compensation for bodily injuries sustained when a
motor vehicle collided with him on 1 January 2010. He
was
roughly 30 years at the time.
[2]
The
defendant’s liability to compensate the plaintiff has been
settled. The defendant has undertaken to pay to the plaintiff
70% of his proven or agreed damages. During the trial I was
informed that other disputes too had been settled. The
defendant has provided an undertaking in terms of section 17 (4) of
the Road Accident Fund Act, Act No 56 of 1996 (as amended),
limited
to 70%, for future medical treatment. The quantum of
compensation for general damages has been agreed at R105 000.00
which
is amount after the 30% for contributory negligence by the plaintiff
has been deducted.
[3]
The
only issue that is outstanding is whether the plaintiff has suffered
damages in the form of past and future loss of earnings.
In
this regard I have to decide the percentage, if any, to be deducted
for contingencies.
[4]
Apart
from the plaintiff, three expert witnesses testified in support of
his case. They were Ms M Kheswa an industrial psychologist,
Ms
Ferreira an occupational therapist and Dr K Bila, an orthopaedic
surgeon.
[5]
The
defendant closed its case without adducing any evidence.
[6]
The
injuries suffered by the plaintiff consequent upon the collision are
common cause. It is the outcome of the injuries and
the impact
they have on the plaintiff’s earning capacity which is in issue
here.
The
plaintiff’s qualifications
[7]
The
plaintiff was awarded a senior certificate in December 2002.
The plaintiff’s vision was to qualify as a paramedic.
In
2003, he did a one-month course at Stallion Security Academy.
[1]
In 2007, he obtained a Basic Computer Certificate after
three-months study. On 12 August 2009 (after studying for six
months) he successfully completed a “Fire Fighter One”
course presented by City of Johannesburg at its Emergency Management
Services Training Academy. This was a paramedic’s
certificate for fire fighters. He attended a course for a
paramedic’s qualification for one month. He referred to
as a “Paramedic’s Certificate”. It turned
out
that the training institution he attended was a fake (as he described
it).
[8]
In
addition to the Fire Fighting Certificate he obtained in 2009, he
obtained a Hazmat Awareness Certificate. The course was
part of
the Fire Fighting qualification.
Plaintiff’s
employment history pre-accident
[9]
The
plaintiff had not been employed for any length of time before the
accident. He had intermittently held temporary jobs.
In
his words he did “piece jobs”. He was not in steady
employment at the time of the accident. Nor has
he been in
steady employment since then.
[10]
His
work history prior to the accident can be summarised as follows:
a.
2003-2007
as a security guard at ADT. He earned R2 300.00 per month;
b.
Masana
Hygiene Services for approximately 8-9 months working as a cleaner.
A pay slip for 30 April 2007 was introduced into
evidence. He
earned R1 500.00 there. He left in order to find a higher
paying job.;
c.
Johannesburg
Fire station from 1 August 2008 to 27 January 2009 teaching fire
safety to children. He earned R1 200.00 per
month. He
left in order to obtain a formal qualification in paramedics.
d.
On
1 December 2009 he started working at New World doing varied tasks,
including packing of appliances. His wage was to have
been
R500.00 per week. His employment at New World became
contentious.
[11]
Plaintiff
testified that he commenced working at New World at the beginning of
December 2009. He worked there for 1-2 weeks
and not any longer
because the business closed for the festive season. He relayed
to the occupational therapist that at New
World his main duties
consisted of packing stock such as televisions, music centres,
microwaves, fridges and heaters. According
to him New World, in
a letter, offered to him permanent employment with effect from
January 2010. He said that the contract
was handed to him.
He was however required to sign it only in January 2010. He
earned R500.00 per week. A curious
feature about the evidence
surrounding his employment at New World is that the plaintiff told Ms
Kheswa, the Industrial Psychologist
that he was employed at New World
at the time of the accident. Ms Kheswa however established from
New World that he was offered
employment and he signed the contract
that was given to him on 1 December 2009. He, however, did not
report to work on 2
December 2009. The contract was therefore
terminated on 3 December 2009. On the whole, the plaintiff’s
evidence
on his employment at New World is unsatisfactory.
Plaintiff’s
employment history post-accident
[12]
Post-accident
the plaintiff held a temporary position at Concorde Bakery as a
driver. This was for a fixed period until January
2015. A
payslip for the week 8 September 2013 to 14 September 2013 was
introduced into evidence. According to this
he earned a gross
wage of R800.00 per week (net R792.00 per week).
[13]
Even
though the plaintiff holds a qualification in basic computers he has
been unable to obtain employment where he can utilise
the skill
acquired.
The
plaintiff’s evidence on the sequelae of the injuries
[14]
According
to the plaintiff he experienced challenges in his job at Concorde
Bakery. He was a driver delivering bread.
He had to carry
heavy crates of bread. He had no assistance. This
resulted in pain.
[15]
He
was unable to secure formal employment after he left Concorde
Bakery. He did “piece jobs”. The obstacle
to
obtaining employment was his inability to lift heavy objects and the
pain he experienced doing this. This was due to his
injuries.
[16]
He
is unable to pursue the job of a fire fighter because he is unable to
run. Since the accident he has been unable to stand
for long
periods. He is also unable to walk long distances because of
the pain. The plaintiff’s evidence suggests
debilitating
pain. However, the plaintiff does not take any medication for
pain relief even though he has no allergies to
medication. On
the totality of the evidence I am unconvinced that the plaintiff
experiences debilitating pain.
Dr
Bila: The orthopaedic surgeon
[17]
The
plaintiff suffered a left foot fracture over the lisfrac joint.
This was evident on X-rays. Also evident on X-rays
were loose
fragments of bone. According to Dr Bila these fragments could
cause pain depending on where the fragments are
in relation to the
bone. Dr Bila testified that pain is graded from 1 being the
lowest. Medication is not necessary
to control grade 1 and 2
pain. Grade 3 pain is controllable with medication. Grade
4 pain is debilitating. On
his assessment the plaintiff could
experience Grade 1 pain after prolonged walking and standing.
The grade 1 pain could increase
to grade 2 or grade 3. The
latter when heavy objects such as big appliances have been lifted.
This pain (i.e. grade
3) will set in at the end of a day, but can be
controlled with medication and the patient will be able to function.
[18]
It
is difficult to assess the true impact of the pain on the plaintiff’s
performance. This is because the plaintiff
has not been taking
any medication to control the pain. On the other hand, the
failure to take medication is an indication
that the pain is not
severe, and is at least not debilitating. This means that the
plaintiff is able to function. If
the plaintiff was
experiencing unbearable or debilitating pain, I would have expected
him to have sought medical attention for
the alleviation of the
pain. I am not unmindful of Dr Bila’s evidence that while
the fracture has healed, the injury
to the cartilage has poor
prospects of healing. I have not overlooked the evidence that
an injury to the cartilage causes
pain. However the pain which
the plaintiff experiences is either grade 1, 2 (medication is not
required for this type of
pain) or grade 3 (which can be controlled)
under certain circumstances.
[19]
On
a physical examination of the lower limbs, Dr Bila’s findings
were:
“
There
was a normal gait
There
were no scars
There
was no LLD
The
hips, knees, ankles and feet were normal”
Ms
Ferreira: The occupational therapist
[20]
Ms
Ferreira the occupational therapist testified that the plaintiff will
struggle to cope with medium occupations and will not cope
with heavy
occupations because these types of occupations are likely to
aggravate the pain he feels in the foot. He will
experience
difficulties in coping with a job which entail repetitive foot
movements, like in the case of operating a vehicle, loading
and
off-loading goods, and pro-longed periods of standing and lifting of
medium or heavy weights. However, after appropriate
treatment
with the application of pain relieving strategies and joint care
protection education, he will be able to cope with medium
occupations
until retirement. The plaintiff is able to walk for 510m in 6
minutes without pain and he is able to stand continuously
for 30
minutes without discomfort in the foot. He is able to assume
stooping, kneeling and squatting postures. He cannot
though
squat for more than a few seconds. He experienced no difficulty
in ascending and descending stairs. He was able
to sit for
approximately one hour without any problems. He is able to lift
a weight of 17.5 kg with low effort. High
effort is required to
lift a weight of 25kg and he feels discomfort in the foot when he
does this. Lifting a 32kg weight
was his maximum effort.
He will always be an unequal competitor in the open labour market.
His work options have been
significantly reduced since the accident.
He is suited to sedentary, light and medium occupations.
However, because
of his work history of being a general worker,
packer and driver he will not be able to secure sedentary types of
employment due
to his lack of office based experience. Ms
Ferreira was not aware of the plaintiff’s qualification in
computers.
She testified that this will change his prospects of
obtaining employment.
The
industrial psychologist: Ms Kheswa
[21]
Ms
Kheswa testified that even though the plaintiff holds a qualification
in computers, his employment options are very limited in
the open
labour market because of his lack of experience and the high rate of
unemployment in South Africa. In her opinion,
it is unlikely
that the plaintiff will be in a position to obtain sedentary
employment and even if he can secure such work, it
is uncertain
whether he will be able to maintain it. Insofar as work of an
administrative nature is concerned, according
to Ms Kheswa, the
plaintiff’s inexperience weighs against him. His
prospects of finding employment of an administrative
nature may
improve after three years of obtaining further qualifications.
The possibility of obtaining further qualifications
will depend on
the availability of financial resources.
[22]
Ms
Kheswa had not investigated whether jobs which entailed teaching fire
safety are available. In her opinion, even if such
jobs
existed, it would be difficult for the plaintiff to secure a teaching
position in the absence of a teaching qualification.
Has
the plaintiff suffered a loss of earnings (earning capacity) and the
contingency deduction?
[23]
It
is unfortunate that the defendant did not present evidence.
Three things are clear to me on the conspectus of the evidence:
First, the plaintiff does experience pain. The intensity
thereof cannot be assessed because he does not used medication to
relieve the pain. Second, he is unable to work under
circumstances where he is required to stand or walk for long
periods.
His ability to lift heavy objects is considerably
limited. Third, he has and he will suffer some loss of loss of
earnings
(or more correctly earning capacity). I am not
satisfied that the plaintiff is unemployable.
[24]
The
difficulty that presents itself for me arises from the absence of
evidence from the defendant as to the plaintiff’s prospects
of
obtaining employment and the type of employment this could be.
[25]
Over
a period of seven years (i.e. 2003-2009, both inclusive) the
plaintiff was employed for roughly five years and three months
(four
years at ADT, 9 months at Masana, six months at the fire station) and
engaged in studies for roughly ten (10) months (one
(1) month at
Stallion Academy, three (3) months basic computer certificate, six
(6) months for fire fighter one certificate and
a Hazmat
certificate). Thus over a seven-year period he was either
studying or working for six (6) years and one (1) month.
Viewed
in this light, the periods of unemployment are not as erratic as they
otherwise appear. Over a period of seven (7)
years the
plaintiff was employed for five (5) years and three (3) months.
[26]
I
am not satisfied that the plaintiff has demonstrated on a balance of
probabilities that he was indeed employed at New World.
I
therefore disregard this and consider him to have been unemployed at
the date of the accident. This being so, on the evidence
he was
last employed in January 2009 at the Fire Station. In 2009, he
attended the Fire Fighter One and Hazmat Certificate
Course for six
(6) months. The period of unemployment would have been after he
finished the six-month course. Assuming
that he commenced his
course study on 1 February 2009 and completed it by the end of July
2009, his was unemployed for five months
before the accident.
While I have disregarded the employment at New World, what the offer
from New World demonstrates is
that the plaintiff was in a position
to obtain employment in the unskilled labour market. The
plaintiff’s ambition
and his record at obtaining certificates
are two matters that feature in assessing fair and adequate
compensation. Based
on the plaintiff’s desire to obtain
formal training based on his history of successfully completing
courses, it is likely
that he would have continued in the endeavour
of qualifying himself for something other than unskilled labour.
It is curious
that none of the experts investigated this.
However, the plaintiff would have been unemployed for that period.
[27]
Insofar
as a contingency deduction for past loss is concerned the norm is
5%. However, in this particular case the plaintiff’s
employment was erratic, albeit that at times he was attempting to
advance himself. The plaintiff’s erratic employment
as
well as the fact that he was unemployed at the time of the accident
moves me to increasing the norm to 15%.
[28]
This
brings me to the contingency deduction for future loss of earnings.
In considering his earnings under the “but
for the accident”
scenario, I cannot leave his employment history out of account.
I also have to take account of the
fact that it is highly likely that
the plaintiff would have attempted to further his qualifications, and
while doing this he would
have been unemployed. On the other
hand, I must consider whether the improvement in his qualifications
would substantially
have benefitted him. It seems to me not, if
regard is had to the fact that even after he had obtained the basic
computer
certificate in 2007 this did not improve his prospects of
obtaining a job requiring such skills. I set the contingencies
for future loss of earnings on the “but for” scenario at
15%.
[29]
Turning
now to the contingency deduction “having regard to the
accident”. The plaintiff’s witnesses are
too
pessimistic as to the plaintiff’s prospects of employment.
The gravamen of the plaintiff’s complaint is the
pain in the
foot. The plaintiff complains of pain that according to Dr Bila
measures as Grade 1 pain. At worst he experiences
Grade 3 pain,
which can be ameliorated with medication. This will allow the
plaintiff to function. Another method of
reducing the pain
according to the experts is reconditioning the muscles through, for
example, physiotherapy. The occupational
therapist expects that
“after appropriate treatment with the application of pain
alleviating strategies and joint care protection
principles as well
as the implementation of reasonable accommodations [
sic
]
he will then be able to cope with medium occupations until
retirement”. I accept that the plaintiff will experience
difficulty in coping in a job rated in the heavy category, e.g.
picking up very heavy items.
[30]
The
defendant has sought to persuade me to allow a 30% contingency
deduction. This is untenable. (Considering that the
defendant argued for a 15% deduction on the “but for the
accident” this translates into a 15% disablement.) In
my
view the defendant’s assessment is far too optimistic. I
consider a 40% contingency deduction to be fairer and more
reasonable.
[31]
In
summary, I assess deductions for contingencies as follows:
(a)
15%
on the plaintiff’s past loss of earnings;
(b)
15%
on plaintiff’s future loss of earnings on the “but for”
scenario; and
(c)
50%
on plaintiff’s future loss of earnings on the “having
regard to scenario”.
[32]
The
actuarial calculations were as at 24 July 2015. The plaintiff
is directed to obtain an updated calculation of the plaintiff’s
loss considering the deductions for contingencies as provided in
paragraph 31(a) to 31(c) above and to prepare a draft order
reflecting
the amount of the compensation payable for past and future
loss of earnings taking into account the contributory negligence of
30%. The draft order shall supplement this order.
[33]
Consequently
I make the following order:
(a)
The
defendant is liable for 70% of the plaintiff’s proven or agreed
damages resulting from the injuries he sustained in the
motor vehicle
collision which occurred on 1 January 2010.
(b)
The
defendant must provide to the plaintiff an undertaking in terms of
section 17 (4)(a) of the Road Accident Fund, limited to 70%,
in
respect of the costs of the plaintiff’s future accommodation at
a hospital or nursing home or for the treatment of or
rendering of a
service or supplying goods to him after the costs have been incurred
and on proof thereof, resulting from the accident
that occurred on
1st January 2010.
(c)
The
defendant is to pay to the plaintiff general damages in the amount of
R 105 000.00;
(d)
The
defendant is to pay to the plaintiff past and future loss of earnings
as recalculated by the actuary on the basis set out in
paragraphs 31
and 32 above.
(e)
The
defendant is to pay the plaintiff’s taxed or agreed
party-and-party costs on the High Court scale, which costs shall
include the following:
(i)
Counsel’s
fees on the High Court scale;
(ii)
The
reasonable taxable costs of preparing the trial bundles in terms of
the Practice Directive dated 8 June 2010;
(iii)
The
reasonable taxable traveling costs, costs of preparing for pre-trial
conferences, the preparation of pre-trial minutes and the
costs for
attendance of pre-trial minutes and the plaintiff’s attorneys
costs for attendance at pre-trial conferences;
(iv)
The
reasonable costs of the plaintiff’s attorney for preparation
for trial.
(v)
The
reasonable taxable costs of obtaining all expert/medico-legal reports
from the plaintiff’s experts which were furnished
to the
defendant.
(vi)
The
reasonable taxable transportation costs incurred in attending
medico-legal consultations with the parties’ experts and
trial,
subject to the discretion of the Taxing Master;
(vii)
All
payments to be made into Chuene Attorneys’s trust account held
at Absa Bank, account number […], reference Mr.
Baloyi/MVA/JM/8805
(f)
The
following provisions will apply with regards to the determination of
the aforementioned taxed or agreed costs:
(i)
The
plaintiff shall serve the notice of taxation on the defendant’s
attorneys of record;
(ii)
The
plaintiff shall allow the defendant 14 (fourteen days) court days to
make payment of the taxed costs from date of settlement
or taxation
thereof;
(iii)
In
the event of payment not being timeously made, the plaintiff will be
entitled to recover interest at the rate of 9% on the taxed
or agreed
costs from date of
allocator
to date of final payment.
(g)
Payment
by the defendant of interest at the
mora
rate on the sum of the compensation 14 (fourteen) court days of the
order relating to the damages is made an order of court.
__________________________________
S
K HASSIM AJ
Acting
Judge: Gauteng Division, Pretoria
24
February
2016
[1]
Appears from
report of the industrial psychologist.