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[2016] ZAGPPHC 305
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Hartzenberg v Road Accident Fund (26112/13) [2016] ZAGPPHC 305 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 26112/13
DATE:
01 APRIL 2016
In the matter
between:
DANIEL STEPHANUS
DU TOIT HARTZEN
BERG
.............................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
NKOSI AJ:
INTRODUCTION
1. Plaintiff issued
summons against the Defendant following a motor-vehicle in February
2009, whereof he sustained some injuries.
2. He claims an
amount of R1 058 112.00 with interests at the rate of 15.5% p/a from
14 days of the date of judgment or settlement.
3. The action was
defended and the parties later settled on the merits at 90% against
the Defendant.
4. The only
outstanding issue is quantum, past and future loss of income and
general damages.
Issues to be
Determined
5. Whether the
Plaintiff qualifies to compensate for general damages or past and
future loss of income.
6. The evidential
value of the admitted expert reports.
Facte raised bv the
Plaintiff
7. It is common
cause that Plaintiff was admitted to Kalafong Hospital, after the
motor vehicle accident, for treatment on the 1st
of October 2009 and
September 2011.
8. He went to the
same Hospital for check up as he could not walk properly and had some
pins implanted in both legs. He complained
of neck swelling and
painful femur.
9. Prior to the
accident he was employed in an environment where he supervised
workers on construction of concrete walls which required
physical
assistance of a team of workers.
10. He was earning a
monthly salary of R6500.00 in 2009. He resigned in 2010 after six
weeks of a paid leave. He could not work
properly due to the leg’s
incessant pains.
11. He was then
employed by a telecommunications company as a sales consultant and
subsequently promoted to a store manager at a
salary rate of R18 500
per month with commision and R3000 car allowance. The daily chores
were then totally different from the
construction of concrete walls
which often required physical work.
12. On
cross-examination it was put to him that the physical work at the
construction did not form part of his job description of
which he
agreed. He only helped the labourers to get their work done.
13. it was further
put to him that the reason for his resignation was that he did not
reach his safes target and could not make
more money for the precious
employer.
14. He was asked of
his daily tasks with the present employer which he stated that he is
assisting events forecast for business
year ahead etc.
15.lt was his
testimony that his future plans were to continue with the present
employer though he loved the construction work.
16. He further
disputed his own medico-legal report's content that it is wrong at
some point
17. She testified
under oath that she examined the Plaintiff as an occupational
therapist. She conceded that the accident had no
career impact
between the period of 2009 to 2014 on the Plaintiff. She further
indicated that Plaintiff is still very young and
has full prospects
of career progression of 3 to 5 years. And that there are no risks of
injury in the present employment. On a
question of fluctuating or
reduced productivity she could only say what she heard from the
Plaintiff that the accident caused a
continuous pain.
18. No further
witnesses were called by the Plaintiff as all the expert reports were
admitted and accepted by the defendant. That
was his case.
19. The Defendant
closed its case.
CLOSING ARGUMENTS
20. Adv Theron for
the Plaintiff referred to different court decisions on general
damages and for future medical costs. That the
Defendant offered a
certificate in terms of Section 17 of the Road Accident Fund Act
which was accepted by the Plaintiff.
21.lt was his
submission that the Plaintiff suffered severe injuries which requires
further treatment. He had suffered a leg shortening
due to this
accident and had to give-up rugby as his sport ad the persistent neck
and backpain.
22.lt was further
submitted that he is no longer the same person. It was presupposed
that should he lose his present job it will
be difficult for him to
find a suitable one and this will be a post accident possibility of
employability and this would justify,
it was submitted, an
application of a higher contigency deduction on future income: 5% pre
and post accident 10% pre morbid 15%
post morbid.
He therefore claims
an amount of R337 892.00 and at least R500 000 for the general
damages. These amounts would be a fair compensation
given the fact
that he had internal fracture of the femur which required internal
fixation. His pains still intact and need corrective
surgery to
remove pins and plates in another operation.
23. Advocate Strauss
for the Defendant argued that they have accepted the expert reports
except for their evidential value thereof.
He conceded that the femur
has been corrected resulting in slight leg shortening made better to
12mm. He had healed and can participate
in heavy work tasks.
24. He submitted
that Plaintiff started testifying contrary to what his occupational
therapist said and said her report was wrong.
24.lt was further
submitted that he had only passed grade 12 at school and was earning
about R6500.00 when the accident occurred
post accident income rose
to R27 000 or more. He is satisfied with his current work and this
serves as an indication, it was submitted,
of career improvement and
he is now in a better position after the accident.
25. it was further
submitted that what needs to be compensated is loss of earning
capacity not loss of earnings for which I agree.
There was no
evidence that his estate has been diminished and it doubled instead.
Plaintiff did not lead any evidence on his future
career path.
Counsel argued further that the premise on which the industrial
pyschologist’s calculation was started on a
wrong footing and
requested the court to take its own fair calculation having
considered the evidence in totality.
26. There was no
evidence that the accident had any restrictive impact on his career
thus far except that he had pains; cannot compete
equally with others
for job positions as he gets older which is a loss of employability
which is a loss of income. I am of the
different view on this cost
aspect as it is based on speculation that on facts.
Consideration of all
Submissions
27. The court was
referred to different cases which are all relevant to this matter.
The only difference is that the court had an
opportunity to consider
the whole evidence accepted the concession of liability of 90% in
favour of the Plaintiff.
On quantum the court
will not have mathematical comparison of proposed calculations as
supported by the both submissions.
The court is guided
by its own wisdom and taking into consideration the merits of each
case confronted with without blindly accepting
a particular one. The
court’s discretion is exercised judiciously having considered
both submissions and the case law referred
to as it is on record.
The court is of the
view that Plaintiff had not suffered a diminished prospect of earning
capacity as his position was better off
as compared to the
pre-accident situation.
The only issue to be
decided is at what level or amount can he be compensated and at what
level of contigency deductions can be
considered.
As the consequent of
the above the court finds that the Plaintiffs case succeeds and it is
ordered as follows:-
a) Defendant to
compensate the Plaintiff in the amount of R500 000 (ess 10%
b) Contigency
deduction in the amount of 15%
c) Costs of suit on
party and party scale including the expert reports fees.
Signed and dated
on this 01 day of April 2016.
V.R.S.N NKOSI
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA