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[2016] ZAGPPHC 1048
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S v Road Accident Fund (74930/2014) [2016] ZAGPPHC 1048; [2017] 4 All SA 763 (GP) (15 December 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Case
Number: 74930/2014
15/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
N
N
S Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The plaintiff, a 29 year old male, claims damages in respect of
injuries he sustained in a motor vehicle collision that occurred
on
26 July 2013.
[2]
The parties have settled the merits of the plaintiff's claim and
certain of the heads of damages. The only two issues that remain
in
dispute are general damages and the plaintiff's loss of income and/or
earning capacity.
[3]
In respect of the plaintiff's past loss of income, the parties have
agreed on an amount of R 97 729, 00.
EVIDENCE
Loss
of income
I
earning capacity
[4]
The plaintiff, who is a citizen from Swaziland and does not have a
work permit, suffered the following injuries as a result
of the
accident:
i. right femur -
subtrochanteric; and
ii. fracture of the
mandible and left zygoma.
[5]
The plaintiff has the following qualifications:
i. a Grade 12 level of
education;
ii. a mechanical fitting
certificate; and
iii. Grade 2 and 3 trade
test.
[6]
In the joint minute of the orthopaedic surgeons, Mr M L Makgato and
Ms E du Plooy, the plaintiff's residual work capacity, was
summarised
as follows:
"7.
13.
We
conclude
that when competing in the open
labour market, Mr. S. is not
a
fair competitor and is
disadvantaged in terms of efficiency and ability to perform his job
demands independently in comparison to
a
normal healthy
person, the
same
age for
a
similar job."
[7]
The aforesaid conclusion is in accordance with the evidence of the
plaintiff. The plaintiff testified that he earned approximately
R 15
000, 00 prior to the accident. As a result of the injuries he
suffered in the accident, he finds it difficult to perform at
the
same pace than he did prior to the accident. He has difficulty
squatting, which difficulty affects his work capacity negatively.
[8]
In order to enhance his performance, the plaintiff has appointed an
assistant. The assistant is, however, not as experienced
as the
plaintiff and the plaintiff spends valuable time supervising the work
done by the assistant.
[9]
His net income has, after 3 years, remained at R 15 000, 00. Having
regard to the inflation rate, the plaintiff's ability to
earn an
income has indeed been compromised.
[10]
Based on the joint minutes of the Industrial psychologists, both
parties have obtained actuarial calculations in respect of
the
plaintiff's future loss of income
I
earning capacity.
[11]
The plaintiff relied on the actuarial calculations provided by the
actuary appointed by the defendant in calculating the plaintiff's
future loss of earnings
I
earning ability. Four scenarios were
proposed, which results in the following losses:
i. Scenario 1: R 1 208
051 (applying a 20% pre- and 45% post-accident contingency
deduction);
ii. Scenario 2: R 985
986, 20 (20% pre- and 40% post-accident deduction);
iii. Scenario 3: R 763
921, 90 (20% pre- and 35% post-accident deduction); and
iv. Scenario 4: R 541
857, 60 (R 20% pre- and 30% post-accident deduction).
[12]
From the above it appears that the basis for the calculation remains
the same, whereas the difference in the total loss is
occasioned by
the difference in the post-accident contingency deduction.
[13]
Ms Smit, counsel for the plaintiff, submitted that scenario 3, with a
contingency spread of 15%, represents a fair and adequate
compensation for the loss the plaintiff has suffered in respect of
future earning capacity. It is common cause that the plaintiff
will
still earn an income in future. Due to the injuries he sustained in
the accident his earning capacity has, however, been compromised.
[141
Mr Matladi, counsel for the defendant, did not agree. He contended
that the contingency spread should be 30 %. In support for
the higher
contingency deduction, Mr Matladi relied on an unreported decision in
which the fact that a foreign national did not
have a work permit,
was considered. [See:
Lesaoana v
Road Accident Fund
(113512011)
[2013] ZAFSHC 39
(7 March 2013)
]
[15]
Counsel for the defendant in the
Lesaoana
matter, referred to
two judgments of the then Appellate Division in support of his
contention that the plaintiff's income is illegal
because he had no
work permit. [See:
Santam Insurance Ltd v Refguson
1985 (4) SA
843
AD;
Dlamini en Ander v Protea Assurance Company Ltd
1974
(4) SA 906
A] In both judgements it was held that a claim for loss of
support based on earnings emanating from an illegal activity, is not
sustainable.
[16]
Notwithstanding reliance on the case law,
supra,
Counsel for
the defendant in the
Lesaoana
judgment, submitted that the
plaintiffs claim for loss of income should merely be reduced. The
court agreed and awarded 70% of the
plaintiffs claim.
[17]
In relying on the
Sanlam and Dlamini matters, supra,
Counsel's
contention that the claim for loss of income should merely be reduced
is clearly incorrect and not supported by the two
Appellate Division
decisions. Similarly, Mr Matladi's reliance on the
Lesaoana
matter
as authority for his contention that the plaintiff's claim should be
reduced because his income was derived from an illegal
activity is
not sustainable and clearly incorrect.
[18]
The two leading Appellate Division cases on the subject held
otherwise and is consequently the prevailing law that should be
applied, if applicable.
[19]
In the
Sanlam
matter, the widow of the deceased that was
killed in a motor vehicle collision lodged a loss of support claim.
The deceased earned
his income from a panel beater business that he
had been operating for 20 years prior to his death. The deceased,
however, did
not have the necessary licence to operate a panel beater
business. The court held that the "illegality" precluded
the
widow to rely on the illegal income as a basis for compensation.
[20]
The
Sanlam
matter is, however, distinguishable from the matter
in casu.
In the
Sanlam
matter the defendant
specifically pleaded reliance on the 'illegality" defence.
Consequently, the issue was fully canvassed
during the trial.
In
casu
the defendant did not rely on the "illegality"
defence. Although the plaintiff admitted during evidence that he did
not
have a work permit, the defendant chose not to amend its plea in
order to rely on the illegality defence.
[21]
In the
Dhlamini matter
the defence of illegality was not
pleaded and the issue was not fully canvassed during the trial in the
court
a quo.
On appeal, the parties, however, referred to the
relevant statutory framework and the issue was fully canvassed during
argument.
The Court in dealing with the issue, held as follows at 915
G-H:
''.........Namens
appellant is aangevoer dat respondent nie in sy pleitstukke die
verweer geopper het wat nou ter sprake is en dat
die Hof a quo ook
nie na enige wetgewing veM'.)ls is nie. Ek vind di! onnodig om op
hierdie betoog in te gaan omdat by 'n appel
soos hierdie die partye
sekere feite voorle en daarvolgens 'n regsvraag bes/is wit he.
"
[22]
In casu
this court was not called upon to decide the
illegality issue. Mr Matladi merely referred to the
Laseoana
judgment in support of his argument that the plaintiffs claim for
loss of income should be reduced because he did not have a work
permit. His submission is not supported by the prevailing legal
position and a reduction will not be applied herein.
[23]
In determining fair and reasonable compensation for loss of income or
earning capacity, the court has a wide discretion to
be exercised
judicially depending on the facts of the matter.
[24]
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 case and Van der
Plaats v South African Mutual Fire and
General Insurance Co Ltd)."
[25]
Having regard to the facts
in casu,
I am of the view that an
amount of R 600 000, 00 will adequately compensate the plaintiff for
his future loss of earning capacity.
General damages
[26]
Both counsel referred to various decisions in respect of the amount
of general damages that was awarded to plaintiffs with
injuries
similar to that of the plaintiff herein.
[27]
Although other authorities are helpful, each case should be decided
on its own facts.
[28]
The plaintiffs orthopaedic injuries are severe. Mr Makgato remarked
as follows in the joint minute of the occupational therapist:
“
7.
12 Mr.
Makgato further notes that the client has an unfavourable orthopaedic
prognosis. Dr. Schnaid (orthopaedic surgeon for the
plaintiff) notes
that due to on-going symptoms of the lumbar spine,
dysfunction
and superimposed disc degeneration is likely to occur.
Considering the prognosis Mr. Makgato notes that it is highly
likely that he will experience deterioration in his physical capacity
and he will find his duties
as a
mechanic increasingly
difficult to do in the future. It is probable that his physical
capacity will diminish and he will eventually
only perform light duty
or semi-sedentary work with reasonable
accommodation."
[29]
The plaintiff testified that he enjoyed playing soccer prior to the
accident, an activity that he can no longer enjoy due to
the injuries
he sustained in the accident. The plaintiffs enjoyment of life and
the amenities thereof has no doubt been seriously
compromised and he
should be adequately compensated for this loss.
[30]
In the premises, I am of the view that an amount of R 550 000, 00
would be fair and reasonable compensation in the present
circumstances.
ORDER
In
the premises, I make an order in terms of the order marked "X"
attached hereto.
____________________
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
Counsel
for the Plaintiff
: Advocate A E Smit
Instructed
by
: N J BELCHER ATTORNEYS
Counsel
for the Defendant
: Advocate Matladi
Instructed
by
: DIALE MOGOSHWA ATTORNEYS
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG LOCAL DIVISION, PRETORIA
CASE
NUMBER: 74930/14
In
the matter between:
N.
N.
S. PLAINTIFF
and
THE
ROAD ACCIDENT
FUND DEFENDANT
ORDER
1.
The defendant is ordered to pay the plaintiff an amount of R 1247
729,00 on or before 31st
of January 2017
by direct transfer
into the trust account of Plaintiff's attorneys:-
Account Number
: NJ
BELCHER ATTORNEYS
Bank
: FNB
(Trust Account)
Branch code
:
250205
Account number
: […]
Ref
:
NJB/MVA/10
2.
In the event that the Defendant fails to pay the aforesaid amount on
or before the 31
st
of January 2017, the Defendant shall be
liable for interest at the prescribed rate from the aforesaid date to
the date of payment.
3.
The Defendant is to provide an Undertaking to the Plaintiff in terms
of
Section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for
100% of the costs of the future accommodation in a hospital or
nursing home for the treatment of or rendering of a service
to the
Plaintiff or supplying of goods to the Plaintiff arising out of the
injuries the Plaintiff sustained in the motor vehicle
collision
giving rise to this suit.
4.
In the event that the Defendant fails to furnish such an Undertaking,
the Defendant shall be liable for the costs attendant in
obtaining
such an Undertaking.
5.
Defendant is ordered to pay Plaintiff's taxed or agreed party to
party costs on the High Court Scale inclusive of senior-junior
counsel and reservation and/or qualifying fees if any of the
following expert(s):-
5.1 Dr. BT
Nyathi
- Dentist;
5.2
Radiologist
-
5.3 Dr.
Schnaid
- Orthopaedic Surgeon;
5.4 Dr.
Malaka
- Industrial Psychologist;
5.5 Dr.
Segwapa
- Neurosurgeon;
5.6 Mr.
Makgato
- Occupational Therapist;
5.7 Clemans Murfin &
Roland - Actuary;
6.
The Plaintiff shall, in the event that costs are not agreed, serve
the notice of taxation on the Defendant's attorneys of the
record;
and
6.1. The Plaintiff shall
allow the Defendant 14 (fourteen) court days to make payment of the
taxed costs referred to above into
the Plaintiff's attorneys' trust
account.
BY
ORDER OF COURT