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[2016] ZAGPPHC 481
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Rachwall v Road Accident Fund (15741/2015) [2016] ZAGPPHC 481 (21 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 15741/2015
DATE: 21/6/2016
Reportable: No
Of interest to other
judges: no
Revised.
In
the matter between
COENRAAD
AMINE
RACHWALL
PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
MADIMA,
AJ
[1]
The plaintiff, a major female school teacher claims damages
against the defendant in terms of the Road Accident Fund Act (No.56
of 1996) (“the Act”). The claim is pursuant to a motor
vehicle accident on 11 November 2011 in which she sustained injuries.
The defendant has accepted liability for 100% of the plaintiff’s
proven damages.
[2]
The plaintiff’s past hospital and medical expenses have also
been settled in the amount of R4 555.79. The parties
have also
agreed that the plaintiff will be furnished with an undertaking in
terms of section 17(4) of the Act for any hospital
and medical
expenses she may in the future incur. I do not deal with the injuries
sustained by the plaintiff as same are not in
dispute.
[3]
The issue of general damages will be referred to the Health
Professional Council of South Africa (“the HPCSA”) for
assessment. I do not deal with that as well.
[4]
The parties are in further agreement with regards to the following:
4.1. That the plaintiff
was 44 years of age at the time of the accident;
4.2. That the plaintiff
was employed at the Talhado Children’s Haven, a pre-primary
school as a practitioner;
4.3. That the plaintiff
earned R6 000.00 per month;
4.4. That the plaintiff
enrolled for a 3 year National Diploma in Education at the Northwest
University in 2011;
4.5. That the plaintiff
resigned her position at the end of April 2013;
4.6 That the plaintiff
sustained no loss of earnings up to the end of April 2013;
4.7 That the plaintiff
sustained loss of earnings from 1 May 2013 up to the age of
retirement;
4.8 That the plaintiff
pre-morbid would have been able to work till the age of 65;
[5]
The parties do not agree with regards to the plaintiff’s
pre-morbid educational potential. The defendant is of the view
that
the plaintiff would take a bit longer than the envisaged three years
to obtain her diploma. The plaintiff also had planned
to study for an
additional one year for the M+4 qualification which was her ultimate
goal. The parties also disagreed on the actuarial
calculations. The
plaintiff’s experts stated that she would have been compelled
to retire at the age of 60 years instead
of 65.
[6]
The plaintiff‘s evidence was that, but for the accident she
would have continued with her studies at the Northwest
University which she would have completed in the allocated time of
three years. Plaintiff’s expert did however concede that
four
years for the 3 years diploma studied on a part0time basis was not
inconceivable.
[7]
The evidence tendered by the Industrial Psychologist was that the
plaintiff would have completed her qualification by 2014.
Her salary
would increase to R231 264.00 by 1 April 2016 and continue to do
so by 1% above inflation each year until the plaintiff’s
retirement age of 65. The further evidence was that the plaintiff’s
past loss of income is in the amount of R556 073.00
less a
contingency of 5% making it a total of R528 269.00. The latter
amount less the income received from the date of the
accident equals
to R424 679.00. The future loss of income for the plaintiff was
in the amount of R3 459 783 less
15% contingency which
translates to R2 940 816.00. The total loss claimed by the
plaintiff amounts to R3 265 204.00.
[8]
A joint minute of the Industrial Psychologists of the parties yielded
some disagreements. Ms Donaldson for the plaintiff opined
that the
plaintiff would have completed her diploma qualifications in the
scheduled time because her husband was a school principal
and they
studied together. Upon completion of her studies the plaintiff would
have secured a teaching post in the area because
of the short supply
of teachers with the requisite qualifications. She would then be
entitled to earn a salary based on the 2016
NAPTOSA OSD 85 level. Ms
du Toit for the defendant agreed with this scenario however stated
that this would have depended on the
plaintiff completing the fourth
year of study that is the M+ 4.
[9]
Ms du Toit’s evidence was that it would have taken the
plaintiff between 6-7 years to complete her diploma. The plaintiff
would qualify for a salary pegged at REVQ12 notch of R104 127.00
per annum.
[10]
The question for this court to answer is whether the plaintiff would
have completed her diploma, and the M+4 by the end of
2014 and worked
up to the age of 65.
[11]
There is no dispute that the plaintiff passed all of her first year
courses in 2011. Her evidence was that she achieved her
success
because of the motivation of studying with her husband, who was also
registered for a course. There is also no dispute
that in 2012 she
was able to pass two of the four courses she was registered for. This
was post the accident. She testified that
she was not able to
concentrate because of the accident and this was the probable cause
of her failing the two subjects in her
second year.
[12]
The plaintiff submitted that the court should accept that she would
have been able to complete her M+4 qualification in record
time but
for the accident. This the plaintiff would have completed at the end
of 2014, and commenced working in 2015.
[13]
Contingencies applied in the calculation of future loss of income are
subjective estimations. There are no objective criteria
to be
employed. Not by the actuaries. Not by the court. The court, just
like the parties is not in a position to can effectively
and
accurately predict what the future held. If it did, every party’s
life would be a lot easier. This was confirmed in
Shield Insurance
Co Ltd v Booysens
1979 (3) SA 953
(AD) at page 965G
when it was held that “
The determination of allowance for
such contingencies involves, by its very nature, a process of
subjective impression or estimation
rather than objective
calculation…
”
[14]
Contingency deductions are the prerogative of the court. Like all
other discretions exercised by the court, same must be exercised
judiciously. This means that all objective facts must be taken into
account before a decision is arrived at.
[15]
Our courts in
Guides v RAF
2006 (5) SA 583
(A)
have held that …
.to assist in such calculation, an
actuarial computation is useful a basis for establishing the quantum
of damages
.
[16]
The plaintiff submitted that when applying the plaintiff’s age
and the possibility of her obtaining her qualification
the general
contingency should be between 11% to 15%, considering the plaintiff’s
age and other risks.
[17]
The plaintiff’s academic prospects pre-morbid appear average to
good. This I deduce from her first year diploma results.
The
plaintiff was not in a position to present an impressive academic
record pre 2011. The plaintiff was last in an academic environment
in
1989 when she obtained her N1 qualification. It is therefore
difficult for the court to assess whether or not the plaintiff
is one
to start and finish her courses on schedule.
[18]
I am inclined to hold that the plaintiff would have eventually
completed her M+4 qualifications, albeit not in the envisaged
four
years. I would allow a period of 5 years from 2011. This means that
the plaintiff would have studied till 2017 to obtain her
M+4
qualification. I arrive at this view because the plaintiff was not
able to impress me as a witness. She was unable to explain
simple
issues arising out of her academic record. She did not know what
certain codes represented. This, I find had nothing to
do with her
current condition. Instead it represented her scholastic abilities.
For example how is it that a student does not know
what “DECLINED”
entailed in her academic transcript?. The plaintiff also was not able
to explain what the M+4 qualification
meant?
[19]
The reason she would not have completed her Diploma in scheduled time
is not all ascribed to her intellectual ability or lack
thereof.
There are other factors that unfortunately are the reality of
part-time students. These include the fact that the plaintiff
was a
mother, wife with other domestic responsibilities. These are real
factors that unfortunately impact on the progress of women
and hold
them back in their careers so as to compete on an equal footing with
their male counterparts.
[20]
Another important factor that I take into account is that there is no
guarantee that upon completion the plaintiff would walk
straight into
a job that would have been designed specifically for her. The
plaintiff would have had to wait in the queue like
all applicants for
posts in the public service. I doubt she would have been the only
applicant for the position. There is no telling
that she would have
been appointed to the teaching post.
[21]
The plaintiff’s actuarial report states that the plaintiff’s
claim regarding the loss of past income should be
in the amount of
R556 073.00. The experts have allowed a deduction of 5%
contingency, thus bringing the amount of loss to
R528 269.00. A
further amount of R103 591.00 of the value post morbid is
deducted, leaving a total of R424 679.00
representing the loss.
The defendant does not contest this amount and formula.
[22]
Regarding future loss the plaintiff claims a premorbid income of
R3 459 783.00. To this amount a 15% contingency
is deducted
leaving a net future loss of R2 940 816.00.
[23]
The above mentioned past and future losses of income are calculated
pre the application of the Amended Act. The post amendment
figures
are slightly lover. These are R379 885.00 and R2 885 319
respectively for past and future losses.
[24].
Taking into account all of the factors alluded to above regarding the
circumstances of the plaintiff, I am inclined to err
on the side of
caution and allow a contingency of 20% instead of the 15% proposed by
the plaintiff. I shall not intervene and interfere
with the 5%
contingency regarding the past losses of income of the plaintiff. The
defendant also does not have any objection to
that percentage and
amount.
[25]
A 20% contingency deduction with regard to the future loss of the
income of the plaintiff from the amount of R2 885 319.00
after the application of the amendments to the Act leaves an amount
of R2 308 255.00.
[26].
The total amount owing to the plaintiff by the defendant is therefore
R379 885.00 (past loss of income) and R2 308 255.00
(for future loss of income).
[27]
In the circumstances I make the following order
1.
The plaintiff’s claim succeeds
2.
The respondent to pay the plaintiff the
amount of
R2 688 140.00
3.
The respondent to pay the costs of the
action which costs shall include the preparation and reservation fees
of the plaintiff’s
experts.
________________________________
TS
MADIMA: AJ
ACTING JUDGE OF THE
HIGH COURT
On behalf of the
Plaintiff: Adv
S Meyer
Instructed
by: Joseph’s
INC
Dunkeld
Ref:
Sarina Snyman/J051/0132
Tel:
012 344-1445
On behalf of the
Respondent: Adv Binase
Instructed
by: Rambevha
Morobane Attorneys
Pretoria
Ref:
T Kgomommu/km/AA0404
Tel:
012 452-35710
Dates of
Hearing: 26
May 2016
Date of
Judgment: 21
June 2016