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[2016] ZAGPPHC 498
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Nkosi v Road Accident Fund (2210/2010) [2016] ZAGPPHC 498 (25 May 2016)
IN THE
HIGH
COURT
OF
SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
CASE
No:
22610/2010
DATE:
25 MAY 2016
In the matter
between:
Colin Sibusiso
Nkosi
Plaintiff
And
The
Road Accident
Fund
Defendant
JUDGMENT
Maumela J.
1.
The plaintiff, a male who is 25 years of age instituted
an action against the defendant. The merits were settled. The parties
agreed
that general damages shall be referred to a tribunal. Future
medical expenses are not in dispute in that the defendant tendered
a
certificate concerning them in terms of section 17 (4) (a) of the
Road Accident Fund Act 1996: (Act 56 of 1996) 'The Act'. Plaintiff
accepted same.
2.
There
was consensus about the fact that no issue arises on past loss of
earnings. This is because plaintiff is still attending school.
He
could therefore not suffered loss of earnings. There remains a
dispute about plaintiff's future loss of earnings.
BACKGROUND.
3.
The cause of action arose out of a motor vehicle
collision which took place on the 1st of May 2009 along the N11,
leading from Ermelo
to Hendrina. Plaintiff was a passenger in
a
vehicle registered DBN 814 MP. It was driven by one
Shobe,
who is the 2nd
insured driver. The other vehicle involved in
the
collision was
registered DRW 212 MP. It was driven by
A.
Mdluli, the 1st
insured
driver.
4.
As
a result of the accident, the plaintiff sustained the following
1nJunes:
4.
1.
Fracture of both femurs, and
4.2. Fracture to the
tibia.
5.
Plaintiff was admitted at Midmed Hospital where he
received emergency treatment. He was hospitalized further for some
time. Examination
of the plaintiff revealed that he shall require
further hospital and medical treatment, thereby incurring further
expenses. However
in the light of the section 17 (4) (a)certificate
signed, the further expenses are covered and they are no longer a
subject of
contention. Examination of the plaintiff also revealed
that as a result of the accident, plaintiff experienced emotional
trauma
and shock; much as he shall continue to do so in future. The
plaintiff has also been permanently disabled.
6.
Past medical expenses are conceded. It is conceded that
plaintiff suffered serious injury as contemplated in section 17
(1)
(a)
of the Act. The merits were admitted. Liability lay on the first
insured driver. It is not necessary to outline the manner in
which
the accident happened and to determine whose fault it was.
THE
ISSUE
.
7.
The court is to determine whether the plaintiff is
entitled to claim on the basis of loss of future earnings. For that
purpose the
court has to take into consideration that the accident in
issue did not render the plaintiff to be completely disabled. It has
to be taken into consideration that the plaintiff can still do work,
albeit with pain and subject to the limitations brought about
by his
permanent disability.
8.
Were
the court to find that the accident indeed brought about limitations
to the capacity of the plaintiff to earn in future, he
will have to
be compensated for the difference between what he would have been
able to realise had he not been involved in an accident,
and what he
is capable of earning after the accident.
9.
While the defence did take issue with some of the
aspects in the reports, it admitted all of them at the start of the
proceedings.
The admission of the reports suggests that the contents
thereof are admitted. It is not necessary to reflect the contents of
the
said reports in detail, but it is necessary to mention a few
aspects in them.
THE
EVIDENCE.
10.
The
defendant admitted reports compiled upon the examination of the
plaintiff. The reports were compiled by:
4.
1.
Dr. Ben Moodie, (an Industrial Psychologist).
4.2.
An
actuarial report by Johan Potgieter, and
4.3.
A medico-legal report by Dr J. Pretorius.
11.
Dr. Moodie the Industrial Psychologist stated in his
report that the plaintiff suffered among others, fractures of both
femurs,
as well as a fracture of his left Tibia. His left leg ended
up shorter than the right one. This affected his gait in a manner
irreversible.
It was found that the plaintiff suffers pain in both
hips. He has an asymmetrical posture which causes pelvic obliquity,
therefore
causing a tilt towards the left leg, which grew shorter.
12.
The plaintiff also suffers pain on the left hip
whenever he sits for a long time. Back flexion causes him pain. Upon
squatting,
he experiences pain at both shins and knees. He
experiences pain on both legs whenever he stands for more than 30
minutes. He suffers
the same pain when he walks over long distances.
He experiences the same pain when he climbs stairs. He cannot go down
on his haunches.
13.
Dr. Moodie found that even before the accident the
plaintiff struggled with pre-existing learning difficulties. He is of
the view
that the plaintiff would remain unemployed for the initial
18 to 24 months. He can later earn a salary of an unskilled worker at
a scale between R6 400-00 and R 16,400-00, which can be the one as
much as R 47, 300-00 per annum. He views that if the plaintiff
gains
skills, he could earn about R 47, 300- 00 R 120,000-00 per annum up
to the age of 40 to 45.
14.
He states that the plaintiff can also earn a salary in
the informal labour market in an unskilled capacity, where he would
equally
be unemployed for the initial 18 to 24 months.
He
could later obtain a job where he made before to work as
a
general labour; for
example as a shelf packer. Due to
the
physical demand of
such work he would have to retire at
the
age of about 60 to
65.
15.
It was found that the plaintiff did not acquire any
additional educational difficulties as a result of the accident. It
was also
reported that prior to the accident, pre-existing
educational difficulties were attendant to his person. It was found
that physical,
he can endure light to low range medium work. In that
way, his occupational choices are now limited. He can no longer cope
optimally
with manual work because of his gait problems. He can also
not continue with ambulatory work where he is supposed to walk or
stand
for more than 15°/o of the working day.
16.
Dr Moodie views that in the midst of the scarcity of
jobs prevailing, it is highly probable that the plaintiff will find
it extremely
difficult to secure employment. Dr moodie views that the
lack of job opportunities might compel plaintiff to seek employment
of
a heavier duty in nature. In such an event, plaintiff will not
last long in such employment due to the physical demands that come
with it, especially now that he has limitations due to the accident.
17.
Mr. Johan Potgieter placed the value of the plaintiff's
loss of capacity to earn at an amount of about R 694,773-00. His
calculation
is based on the assessment by the industrial
psychologist. He attributed the loss of capacity to earn on the part
of the plaintiff
to the accident he was involved in.
18.
The defendant did not advance any evidence
which challenges
the plaintiff's evidence regarding
allegations by the plaintiff concerning the latter's reduced capacity
to earn.
19.
The
plaintiff is a scholar. He was 22 years of age when the incident
happened. While the accident left him permanently disabled,
examinations revealed that it did not affect his educational
capability in any way. All it did was to limit his physical agility,
thereby narrowing the scope or range with in which the plaintiff can
physically cope with ease as an employee.
20.
More
particularly to this case, the plaintiff alleges that he has
experienced loss of earnings and will in future continue to
experience
loss of earnings and earning ability. The parties
are
in
agreement
that
because
the
plaintiff
is
still
attending
school,
he cannot claim on the basis of past loss of
earnings.
However the
plaintiff
seeks
compensation
for
future
loss
of
earnings.
He
contends
that
the
injuries
sustained
limit
his
ability
to
earn,
much
as they
shall
continue
to do so on an
increasing
basis in the future.
21.
Dr. J.J.L Heymans indicated that the plaintiff
complained of pain and discomfort in both his legs. He stated that
with the recommended
treatment, and with time, the plaintiff's
symptoms shall clear progressively, so much so that he will be able
to finish his school
career. He views that the plaintiff's
employability and its lifespan are not adversely affected.
22.
Ms Van der Walt , who is an Occupational Therapist,
stated that whereas plaintiff did not sustain head injuries, she
cannot explain
why he presented with increased educational
difficulties after the accident. She views that the plaintiff shall
in all probability
only be able to obtain employment in a
semi-skilled or unskilled capacity.
23.
At the time of the accident the plaintiff was doing
Grade 10. He has since failed that grade a number of times, so much
so that
he is repeating it for the fifth time. Reports show that the
plaintiff also suffered emotional strain as a consequence of the
accident
he was involved in. This may have contributed to the
reduction on his capacity to maintain the same educational standard
he was
capable of before the accident.
24.
Wilma Van Der Walt found that the plaintiff's endurance
for stooping and bending is affected. A test known as VCWS 9 was
conducted
on the plaintiff and it was found that he struggles to
endure stooping. Stooping causes which causes him pain on the left
hip.
25.
The VCWS 201 test also revealed that Plaintiff suffers
pain on the hip when balancing on either of his legs, waking on his
toes,
walking backwards, squatting, kneeling, crouching, stooping and
crawling. It also revealed that plaintiff cannot squat without pain.
He walks with a limp and his walking pace has been adversely
affected. His blood pressure remains high even after sitting down
for
more than 30 minutes.
26.
Wilma Van Der Walt views that plaintiff shall not be
able to continue with ambulatory work where he has to stand and walk
for more
than 15°/o of the work day. He will have limited
capacity to cope with manual work, due to the problem of his gait. He
will
have to take certain protective measures in order to manage or
to cope with several physical activities relevant for the sustenance
of his life and for performing work.
27.
For purposes of loss of earning potential the plaintiff
claims an amount of R 1,109,825-00. This amount is contested by the
defendant.
The court also has to take into consideration that
although laden with the disability indicated above, the plaintiff can
still
cope with other forms of work which do not require him to have
the full use of his disabled leg. He will have to adapt his situation
from time to time in line with the physical limitations the accident
is brought to bear upon him.
28.
However it has to be heeded that job opportunities have
grown to be scarce and that situation is not about to change anytime
soon.
In the meantime plaintiff shall have to make a living despite
the limitations that accident is brought to bear upon him.
EVALUATION.
29.
The experts found that as a result of the injuries, the
plaintiff has lost ability to earn. He has also lost the enjoyment of
amenities
of life, and he shall do so on an increasing basis in
future as well.
30.
From the above facts the court finds that the injuries
the plaintiff sustained in the accident have brought about a limiting
effect
to his ability to perform the entirety of kinds of physical
exercise he was capable of before the accident. As such limitations
have been brought to bear upon him concerning his capacity to do all
kinds of work. Plaintiff therefore has to be compensated for
the
difference between what he is capable of achieving by way earnings in
his current state, as opposed to the reduced ability
with which he
shall be able to earn after the accident.
31.
Having found as such the court has to determine the
amount at which plaintiff has to be compensated for the loss of his
capacity
to earn. In order to arrive at an appropriate amount as
compensation in this regard, the court has to take into regard the
fact
the accident has had on his capacity to earn. This has to be
contrasted with what the plaintiff is capable of now that he has been
through an accident.
32.
The court has determine the difference between what the
plaintiff was capable of before the accident, and what he is capable
of
now that the accident he was involved in has reduced his capacity
to work and therefore his capacity to earn. It also has to be
taken
into regard that due to the passage of time plaintiff's capacity to
earn would any case get a reduced due to ageing.
33.
In the case of Southern Insurance Association Ltd v
Bailey N0
[1]
,
the following was held:
"Any enquiry
into
damages
for
Joss of earning
capacity is of its nature speculative, because
it
involves a prediction as to the future, without the benefit
of
crystal balls, soothsayers, augurs or oracles. All that the
Court can do is to make an estimate, which is often a very
rough estimate, of the present value of the Joss. It has open
to it
two
possible
approaches. One is for the Judge to make a
round
estimate of an amount which
seems
to
him to be fair
and
reasonable. That is entirely a matter of guesswork, a blind plunge
into the unknown. The other is to try to make
an
assessment, by way of mathematical calculations, on the
basis
of assumptions resting on the evidence. The validity of
this
approach depends upon the soundness of the assumptions, and these may
vary from the strongly probable to
the
speculative. It is manifest that either approach
involves
guesswork to a greater or lesser extent. But the Court can not
be
contrasted
with
what
the
plaintiff
is
capable
of
now
that he has been through an accident.
32.
The court has determine the difference between what the
plaintiff was capable of before the accident, and what he is capable
of
now that the accident he was involved in has reduced his capacity
to work and therefore his capacity to earn. It also has to be
taken
into regard that due to the passage of time plaintiff's capacity to
earn would any case get a reduced due to ageing.
33.
In the case of Southern Insurance Association Ltd v Bailey N0
,
which is often
a
very rough
estimate,
of the present
value of
the loss.
It has
open
to it
two
possible
approaches.
One
is for the Judge
to make
a round
estimate
of an amount
which seems
to him to be
fair and
reasonable.
That is entirely
a matter
of
guesswork,
extent. But the Court cannot
for
this reason adopt
a
non-possumus
attitude and make no award. In
a
case
where
the Court has before it material on which actuarial calculations can
usefully be made the
first
approach does not offer any advantage over the second. On the
contrary, while the result of an actuarial computation
may
be no more than an 'informed guess', it has the advantage of an
attempt to 'ascertain feeling'
as
to
what is fair
and
reasonable is nothing more than
a
blind
guess. It is true that, in the case of
a
young
child, the assessment of damage for loss of earnings is speculative
in the extreme.
Nevertheless,
even in such
a
case,
it
is not wrong in principle to make an assessment on the basis of
actuarial calculations.
"
34.
To arrive at a fair amount as compensation the court
has to take into consideration the jurisprudential trend adopted and
maintained
by courts over time. In that regard the court has to
reflect on decisions by courts weight regards circumstances that
compare similarly
to that of the plaintiff.
35.
Reflecting
on the case cited under paragraph 33 above it becomes clear that
there is no specific method applicable to cases of this
nature. The
individual circumstances of each case shall have to hold sway in the
determination of compensation that can be regarded
as appropriate.
Plaintiff should therefore not be compensated as if he would have
maintained the same standard of capability throughout
his life
without changes.
36.
In the unreported matter of Riana Deysel v Road
Accident Fund
[2]
, the court stated as follows:
"Earning capacity
is
part
of
the person's patrimony but this
capacity can only be proven
to have been
lowered
and
the damages
of this quantified
by
proving an actual loss of income. However
when both of
these
losses
have been shown to exist, the claim for one is also
the
claim for the other and they appear to be
interchangeable."
37.
This is where a judgment by Kubushi AJ comes into focus
where in the case of Mvundle v RAF, the honourable Judge stated:
"It
is
trite that damages
for loss
of income
can be
granted when
a
person has in fact suffered or will suffer
a
true
patrimonial loss in that his or her employment situation
has
manifestly changed. The plaintiff's performance can also
influence his/her patrimony if there was
a
possibility
that
he/her
could lose his/her current job and/or be limited in
the
number of quality of his/her choices should he/she decide
to
find another employment.
See
the
Road Accident Fund
v
Oelpoort
[3]
.
"
38.
The plaintiff became permanently disabled as a result
of the accident. It is therefore indisputable that he is capacity to
do work
has been reduced by the accident in which he got involved.
That brings with it limitations to his capacity to earn.
39.
It is trite that for purposes of an exercise of this
nature where the court is to determine an amount to be awarded as
compensation
for loss of future earnings it is unavoidable to go
speculative and two factor into the equation aspects that have not
been a subject
of an objective test based on tried and tested
incidents that have taken place in reality. The court has to project
into the future
and engage in the form of guesswork in order to
attain an idea about what the future possibly wants for the plaintiff
at hand from
time to time.
40.
In the case of Burger v Union National South British
Insurance Company
[4]
Coleman J stated:
"A relevant aspect of the technique of
assessing damage is this one; it is recognised
as
proper
in
an appropriate
case,
to have
regard
to relevant
events which may
occur, or relevant conditions which may arise
in the
f
uture. Even when it cannot be said to have been proved,
on
a
ponderous of probability, that they will occur
or
arise,
justice
may
require
that
what is called
a
contingency
allowance being made for the possibility of that kind.
"
41.
The general depreciation in the value of the currency
and the obtaining consumer price index (CPI), should also guide in
order to
avoid undesirable results. In the case of Van Vuuren
[5]
the plaintiff sustained soft tissue injury on the neck and back.
Immediately after the collision she was unable to move. She could
not
lift her head or back. She suffered acute pain for 2 to 3 days after
the collision. Thereafter she suffered severe pain. She
wore a neck
collar for two weeks and received physiotherapy. Simple tasks like
holding the cup and entering the pin on a prepaid
meter became
difficult. The fingers were sensitive and had no strength. She
suffered from constant pain in her neck which radiated
into her
shoulders and into her arms. She suffered a significant loss of
amenities of life. The injury resulted into her being
unable to
pursue, not only a baking business, but also a nursing venture. She
was awarded R 120,000-00 in 2010. Currently this
amount quantifies
into R 133,000-00.
42.
In the case of Mavimbela
[6]
and administrative officer in the Department of Public
Works suffered soft tissue whiplash injury to the neck and a soft
tissue
injury to the medial collateral ligament to the left knee.
Prior to the collision the plaintiff participated in soccer, cricket
and played pool. His leg became troublesome and he was no longer as
physically active in sport as he was before the collision.
He
experienced pain in the neck when he turned. 50°/o probability of
surgical intervention in the form of a knee replacement
was indicated
he was awarded R 175,000-00 in 2010.
43.
In De Bruin v Road Accident Fund
[7]
a 26-year-old tyre builder suffered moderately severe whiplash injury
to cervical spine and injury to lower back. No direct trauma
to the
physical and lumbar discs, facet joints of vertebrae where indicated.
Consequently no degenerative changes in the cervical
and /or lumbar-
sacral were expected. Further treatment would be conservative.
Symptoms of pain would persist. The plaintiff was
obliged to give up
heavy manual work as a tyre builder and obtain alternative employment
as a sales representative. He experienced
pain and stiffness in lower
back after long hours of driving. He was unable to resume previous
sporting activities which he pursued
at club level. He was awarded R
70,000-00 in 2010.
44.
In De Bruin v Road Accident Fund
[8]
an 18-year-old counter salesman sustained multiple injuries including
soft tissue injury of the neck and back, shattered teeth
and
displaced jaw, lacerations to the forehead, and fracture of the left
wrist and hand. He was awarded R 90,000-00 in 2011.
45.
In the case of Masilo Dorothy Motlalepule v Road
Accident Fund
[9]
,
the court stated:
"The mere fact of physical disability does
not necessarily reduce the estate or patrimony of
the
injured person. Put differently, it does not follow from of
a
physical injury which impaired the ability to earn an
income that there was in fact
a
dimunition in earning
capacity."
This view was further endorsed in the case of
Krugell v Shield Versekeringsmaatskapy Bpk
[10]
where the court stated:
"Die
bloote feit dat 'n
besondere betrekking verloor is of 'n besondere rigting vir 'n eiser
geslote is, beteken nag
nie noodwindig dat sy vermoe
om
te verdien daardeur geheel
of gedeeltelik vernietig
is nie. Oit hang van die omstandighede af "
In this case the
court is to be employed a slightly different method because the
plaintiff being a scholar, is not earning at the
current moment, and
therefore the aspect of past loss of earning does not apply to him.
46.
The court finds that that the plaintiff is made a
successful case for an order to satisfy his claim for loss of
capacity to earn.
The court makes the following order:
ORDER.
1.
Plaintiff's claim for loss of future earnings is
granted.
2.
The defendant is ordered to pay to the plaintiff an
amount of R 320, 000,00
3.
The
defendant shall pay the costs.
T.A.
Maumela
Judge
of the High Court of South Africa.
[1]
1984 (1) SA 98
(A) at 99B-E
[2]
Case No 2483/90, South Gauteng High Court ,
Johannesburg (24 June
2011)
[3]
2005 (1) All SA 468
(SCA).
[4]
1975 (4) 72 (TPD).
[5]
2010 (6C3) QOD 542 (GSJ).
[6]
2011(6C3) QOD (GNP).
[7]
2011(6(5) QOD 1(ECM).
[8]
2011 (6D5) QOD 1 (ECM), page 5.
[9]
Unreported judgement by Makgoka J
[10]
1982 (4) SA 95
(T), at page 99E.