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[2016] ZAGPPHC 1240
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Bester v Road Accident Fund (84510/2014) [2016] ZAGPPHC 1240 (11 November 2016)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
REPUBLIC OF SOUTH AFRICA
11/11/2016
CASE NO: 84510/2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In
the matter between:
WESLEY
BESTER
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The plaintiff, a 28 year old male, claims damages in respect
of injuries he sustained in a motor vehicle collision that occurred
on 3 August 2013.
ISSUES COMMON CAUSE
[2]
The parties have agreed on the following issues:
i. the defendant is
liable for the damages suffered by the plaintiff as a result of the
motor vehicle collision that occurred on
3 August 2013;
ii. the plaintiff is
entitled to be furnished with an undertaking as envisaged in section
17(4)(a) of the
Road Accident Fund Act, 56 Of 1996
;
iii. the plaintiff is
entitled to general damages in the amount of R 300 000, 00; and
iv. the plaintiff is
entitled to the costs of the action.
ISSUE IN DISPUTE
[3]
The sole issue in dispute pertains to the plaintiff's loss of
earnings.
EVIDENCE
[4]
The plaintiff relied on various expert reports in support of
his claim for loss of earnings. Save for a few aspects in the reports
of the orthopaedic surgeon and the industrial psychologist, the
contents of the reports are not in dispute.
[5]
The orthopaedic surgeon, Dr P Engelbrecht, testified,
inter
alia,
in respect of the orthopaedic injuries the plaintiff
sustained as a result of the motor vehicle collision, to wit:
i. left radius and ulnar
fracture (midshaft);
ii. fractures of fingers
(multiple) left hand;
iii. open wounds dorsal
aspect of second and third fingers; and
iv. open wounds on palmar
aspect of third finger.
[6]
The plaintiff was employed in the metal work industry prior to
the accident and has since the accident been unemployed. Ms Adroos,
the occupational therapist, reported that the plaintiff, as a result
of the injuries, will not be able to cope with the full spectrum
of
welding i.e he will not be able to return to his previous employment.
In respect of alternative employment, Dr Androos is of
the view that
the plaintiff will be able to cope with sedentary work for example
reception duties, a function he perform pre-accident.
[7]
The problem with sedentary work, however, is the plaintiff's
low level of education. He completed a Grade 10 Special Needs
certificate,
which 1s equivalent to a mainstream Grade 8 certificate.
[8]
In view of the aforesaid, Mr Kruger, an industrial
psychologist, suggested a significantly higher post-morbid
contingency deduction.
Although the plaintiff relied on the evidence
of Mr Kruger, Mr van der Merwe, counsel for the plaintiff,
strenuously argued that
the plaintiff should be deemed to be
unemployable post-morbid.
[9]
Mr Lusenga, counsel for the defendant, did not agree. He
submitted that a post morbid career path should be calculated
and
that a significant higher contingency deduction, as suggested by
Mr Kruger, should be applied.
LEGAL PRICIPLES
[10]
Mr van der Merwe provided a detailed expose of the prevailing legal
position in respect of awards for loss of earnings.
[11]
Zulman JA, with reference to various authorities, summarised the
prevailing legal principles in
Road Accident Fund v Guedes
2006
(5) SA 583
SCA at 586 H - 587 B as follows:
"It is trite that
a person is entitled to be compensated to the extent that the
person's patrimony has been diminished in consequence
of another's
negligence. Such damages include loss of future earning capacity (see
for example President Insurance
Co
Ltd v Mathews).2 The
calculation of the quantum of a future amount, such as loss of
earning capacity
,
is not, as I have already indicated
,
a
matter of exact mathematical calculation. By its nature, such an
enquiry is speculative and a court can therefore only make an
estimate of the present value of the loss that is often a very rough
estimate (see, for example, Southern Insurance Association
Ltd v
Bailey NO). 3 The court necessarily exercises a wide discretion when
it assesses the quantum of damages due to loss of earning
capacity
and has a large discretion to award what it considers right. Courts
have adopted the approach that, in order to assist
in such a
calculation, an actuarial computation is useful basis for
establishing the quantum of damages. Even then, the trial Court
has a
wide discretion to award what it believes is just (see, for example,
the Bailey case4 and Van der Plaats v South African
Mutual Fire and
General Insurance
Co
Ltd)."
DISCUSSION
[12]
Having regard to the opinions of the various experts, I am of the
view that it is unrealistic to assume that the plaintiff
will find
employment in future. The plaintiff, due to his low intellectual
capacity, embarked on a career in the artisan industry.
It should be
noted that the plaintiff has no formal training in this field and
obtained "hands-on-training" during the
course of his
career. In the report of Mr Kruger, the following feedback was
obtained from the plaintiff's supervisor at his place
of employment
pre-morbid:
"Mr van
Amelsfoort reported that Mr Bester was a 'low average worker' who
completed his tasks. However, Mr van Amelsfoort indicated
that
although Mr Bester had the necessary skills and experience to
complete the tasks, he required close supervision and then he
will
only complete what was required of him."
[13]
It appears that, even in the artisan field, the plaintiff had to be
supervised to perform optimally. This is a further indication
of his
limited abilities pre-morbid.
[14]
The plaintiff had to rely on physical work to earn an income. Due to
his intellectual ability this was the only option open
to him. This
ability he has lost as a result of the injuries he sustained in the
motor vehicle collision. In my view, he should
be adequately
compensated for this loss.
[15]
Mr Kruger expressed the opinion that the plaintiff would possibly
have worked until the age of 70 years due to a lack of financial
planning. I agree and the award will take the aforesaid into account.
[16]
In the premises an amount of R 1 280 147, 00, as per the calculation
of the actuary, C Heymans, is awarded in respect of the
plaintiff's
claim for loss of earnings.
ORDER:
1.
The Defendant shall pay to the Plaintiff the sum of R 1 580
147, 00.
2.
The amount mentioned in paragraph 1 is to be paid to the
Plaintiff within 14 days of the date of this Court order.
3.
In the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount at the
rate of
10.50% per annum, calculated from the 15
th
calendar day after the date of this order to date of the payment.
4.
The Defendant shall furnish the Plaintiff with an undertaking
in terms of
Section 17(4)(a)
of Act 56 of 1996 for payment of the
future accommodation of the Plaintiff in a hospital or nursing home
or treatment of or rendering
of a service or supplying of goods to
him resulting from the injuries sustained by the Plaintiff in the
motor vehicle accident
that occurred on 03 August 2013, to compensate
the Plaintiff in respect of the said costs after the costs have been
incurred and
upon proof thereof.
5.
The Defendant shall pay the Plaintiff's taxed or agreed costs
on the High Court scale, subject thereto that:
5.1. In the event that
the costs are not agreed:
5.1.1.
The Plaintiff shall serve a notice of taxation on the Defendant's
attorney of record;
5.1.2.
The Plaintiff shall allow the Defendant 7 (SEVEN) Court days from the
date of allocator to make payment of the taxed costs.
5.1.3.
Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest at the rate of 10.50% per annum
on the
taxed or agreed costs from the date of allocator to the date of final
payment.
6.
Such costs shall include but not be limited to:
6.1. The costs of and
consequent to the employment of Counsel, including counsel's charges
in respect of his full day fee for 11
and 12 October 2016 as well as
reasonable preparation and costs for the day of noting judgment;
6.2. The reasonable
taxable preparation, qualifying and reservation fees as per account,
if any, in such amount as allowed by the
Taxing Master, of the
following experts:
6.2.1.
Dr Engelbrecht - Orthopaedic surgeon; (present at court 12 October
2016, reserved for 11 October 2016)
6.2.2.
Abida Adroos - Occupational Therapist; (present at court on 11 &
12 October 2016)
6.2.3.
Kobus Prinsloo - Industrial Psychologist; (present at court 11 &
12 October 2016)
6.1.4.
A Cramer - Clinical Psychologist (present at court on 12
October 2016)
6.1.5.
Dr Pienaar - Plastic Surgeon;
6.1.6.
T Doubell - Actuary. (present at court 11 & 12 October 2016)
6.1.7.
The reasonable travelling costs of the Plaintiff, who is hereby
declared a necessary witness.
6.1.8.
The reasonable witness fees for Mr J Rocher an independent eye
witness present at court on 11 October 2016.
7.
The amounts referred to above will be paid to the Plaintiff's
attorneys, Spruyt Incorporated as per Annexure "A" hereto
(The consent and instruction), by direct transfer into their trust
account, details of which are the following:
Standard
Bank
Account number: [...]
Branch code: Hatfield (01
15 45)
REF: SD 1872
N
JAN E VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
ATTORNEYS FOR THE
APPLICANT:
SPRUYT
INCORPORATED
COUNSEL ON BEHALF OF THE
APPLICANT:
Advocate
F J VAN DER MERWE
ATTORNEYS FOR THE FIRST
RESPONDENTS:
DIALE
MOGASHOA ATTORNEYS
COUNSEL
ON BEHALF OF THE FIRST RESPONDENT
Advocate
W LUSENGA