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[2016] ZAGPPHC 567
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Mothoa v Road Accident Fund (48272/2014) [2016] ZAGPPHC 567 (13 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 48272/2014
In
the matter between
DIBAKENG
SONNYBOY
MOTHOA
.........................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
......................................................................................
DEFENDANT
JUDGMENT
MALI
J:
[1]
The plaintiff is a fifty six year old
male former general worker with grade 6, as his highest academic
qualification. The plaintiff
is the Road Accident Fund. The plaintiff
sued the defendant for damages resulting from injuries he sustained
in a motor vehicle
accident.
[2]
The claim in respect of general damages
was settled in an amount of R200 000.00. The defendant further agreed
to furnish the plaintiff
with an undertaking in respect of future
medical expenses in terms of section 17(4)(a) of the Road Accident
Fund Act 56 of 1996.Consequently,
the only issue for determination is
the claim for loss of income. The defendant challenges the
plaintiff's claim.
[3]
On 2 December 2009 the plaintiff who was
49 years old at the time; was hit by a motor vehicle with unknown
registration number,
driven by the unknown driver. The accident
occurred at or near Auto -Tyre & Exhaust, Marble Hall, and
Limpopo at the plaintiff's
former work place.
[4]
The accident occurred whilst the
plaintiff was changing the wheel of a stationery car. On 3 December
2009 he was admitted at Louis
Pasteur Hospital in Pretoria. He was
absent from work for a period of 5 days. Upon his return to work he
resumed his normal pre-accident
duties until he resigned in September
2014. This is as a result of him not being able to cope with the pain
anymore. According
to the defendant there is no basis for plaintiff’s
resignation from work; hence the claim for loss of income is
impugned.
[5]
According to the medical reports the
plaintiff suffered bodily injuries described as follows:
5.1.
Left ankle (soft tissue injury);
5.2.
Right knee injury.
LOSS OF INCOME
[7]
The
plaintiff must prove that he will probably suffer financial loss or
diminution of his income. In Sandler v Wholesale Coal Suppliers
Ltd
[1]
it was stated that:
“
It
is no doubt exceedingly difficult to value the damage in terms of
money, but that does not relieve the Court of the duty of doing
so
upon the evidence placed before it. This is a principle which has
been acted on in several cases in South African Courts".
[8]
In
Rudman
v Road Accident Fund
?, the
Court said:
“
There
must be proof that the reduction in earning capacity indeed gives
rise to pecuniary loss. ”
[9]
The plaintiff, according to the report
of the Specialist Surgeon, Advocate/Dr Gerhard Kaiser (“Dr
Kaiser”), states that
the extent of the plaintiff’s
injuries are extremely severe as far as he has suffered ostratritis
on his right knee. As a
result the plaintiff's knee was replaced and
will require another replacement in a period of 5 years.
[10]Dr
Kaiser further reported that the plaintiff finds it extremely
difficult to continue with his activities. He is unemployed
and
depends on his wife’s income.
[11]
Dr
Gwen -Mare Beatrix Cloete
(“Dr Cloete”)
the occupational therapist at paragraph 4.5 of her report dated 19
January 2016 , paginated page 18, reported
as follows:
“The
Candidate’s current incident-related complaints according to
the client-
•
Left
lower back pain
•
Right
knee pain
•
Non-intrusive-left
ankle pain
•
Not
being able to sleep on the left side of his body due to pain in his
left lower back, especially in winter.
•
Struggles
to stand for more than 30 minutes
His
right leg hurts when he walks for more than 30 minutes"
[12]Dr
Cloete at paragraph 5.2.3 of her report states that the client is
able to safely lift a capacity which requires heavy duty.
She further
noted that the client’s worker role as a general worker is
classified as a medium physical demanding job.
[13]At
paragraph 5.5.3 Dr Cloete reported that functional impairment noted
was consistent with the impairment related to the client’s
diagnosis. In respect of the plaintiff’s loss of amenities of
life, at paragraph 6.7. page 24 Dr Cloete states;
“
The
injuries sustained in the accident have caused a moderate loss of
enjoyment in the client’s life. Prior to the incident
he was a
general worker who enjoyed spending time with his family, doing
karate, and playing soccer. Pre accident he was independent
in all
self- care tasks. He would assist his wife with household chores. He
also enjoyed gardening in his small garden at home.
Following
the accident he remained independent in all relevant day to day
activities although he does experience pain when he needs
to engage
in tasks that require flexion of his lower back and when placing
weight through his right knee for a period of time.
Post injury the
client now struggles to maintain his garden and home tasks due to
pain. His worker role has also been affected.
He reported that he is
unable to do karate and play soccer because of the pain in his left
lower back and right knee while running,
weight- bearing on his right
leg; and when he needs to flex his left lower back during the game.
At present the client would
benefit from assistance incorporating joint protection principles and
energy conservation techniques
in order to facilitate better joint
hygiene for his lower back and preserve the joint integrity of his
right knee. A work visit
and home visit would also further assist his
overall comfort levels.(own
emphasis).
Overall,
it is of the writer‘s opinion that the client’s
documented injuries to date, seems to have had a moderate impact
on
his work, leisure and home spheres”
[14]According
to the plaintiff’s counsel the above observations show that the
plaintiff did not exaggerate during his examination
by Dr Cloete. It
has to be borne in mind that this report was compiled on 19 January
2016, more than 5 years from the date of accident.
[15]Dr
Ben Moodie (“Dr Moodie") the Industrial Psychologist; in
his report dated 22 February 2016 at page 15 he states
as follows;
“
Even
though in theory he might be able to continue with his previous job
which is classified in the medium physical capacity, the
fact that he
resigned 5 years post-accident as a result of him not being able to
cope with pain any longer, is indicative of the
severity of the pain
and that as he ages the pain will become worse to such an extent that
the total knee replacement will be inevitable
as indicated by the
Special Surgeon.
Due
to his los scholastic school qualification and work experience in any
other lighter type of work (sedentary/ clerical) then
he would not be
able to obtain work in such a field. He is already 56 years of age
and it is unlikely that he would be trained
in such a field in order
to obtain permanent employment. He would, as a result of this, be
extremely compromised in terms of trying
to obtain any form of
employment. ”
[16]The
defendant’s case is that there was no basis for the plaintiff’s
resignation from work. The defendant did not
call any witnesses and
it neither submitted any experts report.
[17]It
was submitted on behalf of the defendant that none of the plaintiff’s
expert reports recommended his resignation from
work. It is common
cause that the plaintiff resigned 5 years post accident. In my view
if the plaintiff’s intention was to
exploit defendant’s
fund he would have resigned immediately after the accident. Instead
he persevered under challenging circumstances
caused by the pains
resulting from the accident; until the pain was no longer bearable.
[18]It
appears that the defendant counsel is oblivious to the conclusion of
Dr Ben Moodie, the Industrial Psychologist. Dr Moodie
in dealing with
plaintiff’s post-accident income carefully considered his
potential scholastic school qualification, his
age inter alia and
found that the plaintiff would be extremely compromised in terms of
trying to obtain any form of employment.
The plaintiff’s
limited future working capacity as a result of lessened competitive
edge is well articulated by Dr Moodie.
Dr Moodie's report is informed
by Dr Kaiser' report the Specialist surgeon. It would seem as though
little, if any, preparation
had been given to the defendant’s
case.
[19]Having
regard to the above the plaintiff has proved that due to the injuries
he sustained will suffer future loss of income.
[20]In
casu the plaintiff’s past and future loss earnings and his
earning capacity have been calculated by George Schwalb
of GRS
Actuarial Consulting as at 22 February 2016.The basis of the
calculation and the assumptions made were undisputed and not
counter-
attacked. According to the report, the plaintiff’s past income
if the accident did not occur is R528 226 and future
income is R766
080, thus bringing the total income to R1,294, 306.
[21]Dr
Schwalb's calculation that the accident did occur, is R391,140 in
respect of past income and NIL for future income. Thus
living the
total income at R391,140. The above figures do not take into
consideration contingencies.
[22]Contingencies
have been described as the normal consequences and circumstances of
life, which beset every human being and which
directly affect the
amount that a plaintiff would have earned.
[2]
In his book The Quantum Yearbook, Koch states that when assessing
damages for loss of earnings or support it is usual for a deduction
to be made for general contingencies for which no explicit allowance
has been made in the actuarial calculation. The deduction
is in the
prerogative of the court. General contingencies cover a wide range of
considerations which may vary from case to case
and may include:
taxation, early death, loss of employment, promotion prospect,
divorce etc.
[23]Koch
refers to the following as some of the guidelines a regards
contingencies:
“
Normal
contingencies” as deductions of 5% for past loss and 15% for
future loss.
•
Sliding
scale: 1/2 % per year to retirement age, i.e. 25% for a child, 20%
for a youth and 10% in the middle age and relies on Goodall
v
President lnsurance
[3]
.1978
(1) SA 389.
•
Differential
contingencies are commonly applied, that is to say one percentage
applied to earnings but for the accident, and a different
percentage
to earnings having regard to the accident.
[24]When
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so with
necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position of
the plaintiff
would have succeeded to minimize the adverse hazards of life rather
than to accept them. Both favourable and adverse
contingencies have
to be taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies
are not always adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been
placed in the position where his
income would have to be the subject of speculation if the accident
had not occurred.
[25]In
this matter, as earlier stated there are no opposing expert reports
from the defendant. I did not understand counsel for
the defendant to
be arguing that the actuarial report was incorrect, biased and unfair
or based on incorrect principles.
[26]Under
the circumstances therefore, I am of the view that 5% contingency
should apply in calculation for past income and 15%
contingency for
future income. The said contingencies are equitable and will serve to
balance the interests of both parties.
[27]The
plaintiff’s claim is calculated as follows:
General
Damages
R200 000.00
Past
Income
R130 232.00
Future
Income
R651 168.00
[28]
Accordingly I make the following order:
28.1.
The defendant is ordered to pay the
plaintiff the sum of R981, 400.00 (Nine hundred and eighty one
thousand four hundred rand)
28.2.
The defendant is ordered to provide the
plaintiff with an undertaking for future medical expenses in term of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
;
28.3.
The defendant is ordered to pay the
plaintiff’s taxed or agreed party and party costs, which shall
include
28.3.1
the costs of counsel;
28.3.2the
costs of obtaining the reports of and the reasonable taxable
preparation and/or qualifying fees of the following experts;
1.
Dr G H R Kiaser (Specialist Surgeon)
2.
Gwen-Marie Cloete (Occupational
Therapist)
3.
Ben Moodie (Industrial Psychologist)
4.
Geogre Schwalb (Actuary Consulting)
NP
MALI
JUDGE
OF THE HIGH COURT PRETORIA
APPEARANCES
FOR
THE PLAINTIFF: Adv. JA du Plessis
Instructed
by. O Joubert Attorneys
FOR
THE DEFENDANT: Adv. T Lekalakaia
Instructed
by: TsebaneMolaba Incorporated
Date
of hearing: 22 February 2016
Date
of judgment: 13 May 2016
[1]
1941
(A) 194
-2003(2)
SA 234 (SCA) at para [11]
a
AA Mutual Insurance v Van Jaarsveld 1974(4) SA 729 (A)
[3]
1978
(1) SA 389