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[2015] ZAGPPHC 168
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Qondo v Road Accident Fund (19534/12) [2015] ZAGPPHC 168 (20 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE NO: 19534/12
DATE: 20 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
QONDO,
S.S
.......................................................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...........................................................................................
DEFENDANT
JUDGMENT
MUDAU AJ,
[1] The plaintiff, a
40 year male, instituted a damages action against the defendant as a
result of certain bodily injuries he sustained
in a motor vehicle
collision on 13 December 2007. The accident occurred between the
motor vehicle with registration number FHG
191 NW (in which the
plaintiff was a passenger) and a motor vehicle with registration
number DZK 406 NW (the insured motor vehicle).
[2] In the
particulars of claim at paras 6 to 7 the plaintiff alleges as
follows:
“
6.
the collision was
caused solely as a result of the negligence of the insured driver,
who was negligent in one more or all of the
following respects:
6.1 he failed to
keep a proper lookout;
6.2 he travelled at
a speed which was excessive in the circumstances;
6.3 he failed to
apply the brakes of the motor vehicle he was driving timeously,
alternatively adequately, alternatively properly,
alternatively at
all;
6.4 he entered an
intersection against a red traffic light and when it was inopportune
and dangerous to do so;
6.5 he failed to
take cognizance of the presence and/or the movements of the motor
vehicle with registration number FHJ
191 NW;
6.6
he failed to
avoid a collision, when by the exercise of reasonable care he could
and should have done so.
7
in and as a result
of the collision, the plaintiff suffered the following injuries:
7.1 and abdominal
injury;
7.2 an injury to his
spleen; and
7.3 fractured ribs.”
In its plea the
defendant essentially denied the allegations and placed the plaintiff
to the proof thereof.
[3]
At the commencement of the trial the issue of liability had already
been settled between the parties. As a result thereof, the
only issue
for determination in this trial was the plaintiffs damages for past
and future loss of earnings and earning capacity
as well as general
damages. The parties further agreed that no oral evidence was to be
led, and that the issues in dispute were
to be determined by the
court solely on the contents of the various experts’ reports.
In the matter of
Southern
Insurance Association Ltd v Bailey N.O. (1984(1) SA 98 (A)
at
113G - 114B, the Court stated the following in this regard: -
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future
....
All that the court can do is to make an estimate, which is often a
very rough estimate, of the present value of the loss,
a
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. This 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 of course 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
.....
There are cases
where the assessment by the court is little more than an estimate;
but even so, if it is certain that pecuniary
damage has been
suffered, the court is bound to award damages".
In
S v Gouws
1967
(4) SA 527
(EC)
at 528D Kotze J (as he then was) said with regard to an expert: -
“
the
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specialized
field. His
own decision should not, however, displace that of the tribunal which
has to determine the issue of be trial”
Against this
background, it is to the relevant evidence that I turn to deal with
below.
[4] Dr D A Birrell,
an orthopaedic surgeon, interviewed the plaintiff on 31 July 2014,
and filed a report in respect of the plaintiff.
The report and
hospital records indicate that the plaintiff was admitted to the
Anncron clinic from 13 December 2007 to 15 December
2007. The
following injuries were noted:
4.1 abdominal injury
with a ruptured spleen;
4.2 bilateral rib
fractures;
4.3 soft tissue neck
injury;
4.4 soft tissue back
injury.
As a result of his
injuries, sonar was performed of his abdomen and x-rays were taken of
his neck and back .He was given intravenous
infusion and referred for
specialist care. A urinary catheter was inserted. He had to use a
neck collar for 2 to 3 days. After
his discharge, he had to return to
the outpatients department for follow-up review. During the
examination by Dr Birrell, plaintiff
complained of lower back pain
that he had not experienced before the accident, particularly when
doing strenuous physical activities
like picking up objects. These
symptoms worsened by inclement weather conditions. He had since
gained weight as a result of physical
inactivity or less activity.
[5] The plaintiff
also reported according to the occupational therapist, Ms T
Holshausen, decreased endurance since the accident
as compared to his
preaccident level of stamina. He reported being able to sustain about
an hour of sitting .However, he tends
to shift his position from 30
to 40 minutes. He is able to manage about 30 minutes of standing in a
static position. He walks somewhat
slower than before. He relies on
medication to be able to jog. His driving has since been affected as
he is able to manage about
1 hour 20 minutes when travelling long
distances. He experiences difficulty in bending to the floor.
[6] An x-ray report,
dated 13 December 2007 by Dr Kritzinger, noted a 10
th
rib
fracture on the left and an 11
th
rib fracture on the
right. X-rays were obtained on 31 July 2014, reported on by Dr.
Hinovska, showed slight narrowing of the anterior
aspect of C3/4.C4/5
associated with small osteophytes with evidence of early ex
degeneration; mild spondyolisthesis at L5/S1 and
a very mild right
convex curvature of the lumber spine. On perusal of the x-rays dated
31 July 2014, Dr Birrell reported that there
is a mild “cog-wheeling”
type of appearance of the lower lumbar spine. In the cervical spine
there is loss of normal
physiological lordosis with a slight
disruption of the anterior vertebral body line at C5/5, in
association with mild degenerative
changes noted by the Radiologist.
Dr Birrell expressed an opinion and noted the following future
medical treatment:
1. a 3% or less
chance of cervical spine surgery with two-month sick leave;
2. a 10% chance of
lumbar spine surgery with 3 months sick leave; and
3. Conservative
treatment.
[7] It is common
cause that at the time of the accident the plaintiff was employed.
His work history can be summarised essentially
as follows: he first
volunteered at the fire department in Ventersdorp from January 1996
until November 1996. He was permanently
appointed with effect from 1
December 1996. He remained in the same position as a fire-fighter
until November 2001. On 1 December
2001 he was appointed by the
current employer, the Department of health at the North West
provincial ambulance services as basic
ambulance attendant. He
remained in this position until 2009. Between 2007 and 2009 he
completed a three-year diploma in EMT (Emergency
Medical Technician).
In April 2012 he was transferred to the training department of the
North West EMRS EMC instructor. In 2013,
he registered at the
University of Johannesburg for a bridging program towards a B -Tech
degree Emergency Medical Care, but failed.
Plaintiff is on an EMS
(lecturer)-level Grade 1 with a top notch of R 157 557-00, a
remuneration ceiling in his current position.
[8] The evidence by
the industrial psychologist, Esme’ Noble, deals primarily with
the plaintiffs life history and his work
record (as indicated above
at para 7) and prospects of future progress in his field of
employment. Ms Noble is of the opinion that
disregarding the
collision, i.e. without physical limitations and thus the ability to
work operationally, plaintiff may have continued
working as an
operational emergency care technician (ECT), with the potential to
progress to the position of the ECT grade 3. The
implication hereof
being that without the physical limitations referred to above, he
would have received one notch increases on
a yearly basis over and
above the general increases until retirement age at 65. Having
regards to the accident it is postulated
that plaintiff will continue
working in EMT at EMRS College, due to his physical limitations and
without realistic prospects for
graduating with a B-Tech degree.
Consequently, plaintiff will henceforth only receive yearly general
increases until normal retirement
at the age of 65. Consideration
being had to the pre-and post-accident scenarios, plaintiff will
suffer a loss of income being
the difference between the pre-and
post-accident income as postulated here in.
[9] In the instant
case, the plaintiffs loss of earnings since the collision and his
future loss of earning capacity have been calculated
by Dr G A
Whittaker, from a consulting actuary of the firm Algorithm, during
January 2015, with the validity date as at 1 April
2015. The basis of
the calculation and the assumptions made were undisputed and not
counter-attacked. According to the actuarial
calculation, the
plaintiffs pre- accident income amounts to R3, 979, 424, 00 whereas
the post-accident income amounts to 3, 346
064, 00. If one was to
consider a 10% contingency differential (spread) with a 15%
contingency deduction on the pre-accident income
and a 25%
contingency deduction on the post-accident income, the plaintiff’s
loss of income/earning capacity amounts to R872,962
,00.
[10]
In an assessment of damages for loss of earnings, it is usually the
practice for a deduction to be made for general contingencies
for
which no explicit allowances have been made in the actuarial
calculation. General contingencies cover a wide range of
considerations
varying from case to case and may include: “
taxation,
early death, safe travel costs, loss of employment, promotion
prospects, divorce,"
et
cetera. (Koch in the Quantum Yearbook 2013 page 106). It is trite
that contingencies, “whether negative or positive, are
an
important control mechanism to adjust the loss suffered to the
circumstances of the individual case in order to achieve equity
and
fairness to the parties” (Gwaxula v RAF
(09/41896)
T20131 ZAGPHC 240
(25
September 2013) at para 25).
The learned Judge
also added that:
“
There
are also unforeseen contingencies based on factors such as errors in
the estimation of future earnings and life expectancy,
loss of
earnings due to unemployment and sickness, retirement at an earlier
age and hazards of life. The list can never be exhaustive
."
That said, however,
this contingency differential remains the prerogative of the Court.
[11] It is trite law
that no two cases are similar. Past decided comparable cases,
although often useful, merely serve as guidelines.
The need to
adjudicate each case on its own particular merits and facts is always
present.
[12] In this matter,
there are no opposing expert reports from the defendant. I did not
understand counsel for the defendant to
be arguing that the actuarial
calculations were wrong, biased, and unfair or based on incorrect
principles. To the contrary, counsel
was constrained to concede that
the award suggested is, under the circumstances, fair.
[13] Under the
circumstances therefor, I am of the view that the actuarial
contingency deduction calculated by the plaintiff’s
actuary
cannot be faulted. I see no reason not to grant the amount as
suggested.
[14] In the
circumstances, the following order is made:-
1. The draft order
as amended marked with an “X” and initialled by me is
made an order of this court.
MUDAU TP
ACTING JUDGE OF
THE HIGH COURT
DATE OF HEARING:
12 FEBRUARY 2015
DATE OF JUDGMENT:
20 FEBRUARY 2015
APPEARANCES:
FOR THE
PLAINTIFF: ADV M VAN ANTWERPEN
INSTRUCTED BY:
ADAMS AND ADAMS
FOR THE
DEFENDANT: ADV J MAKUMBILA
INSTRUCTED BY:
MALULEKE SERITI MAKUME MATLALA INC.
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
HELD AT PRETORIA
ON THIS THE 12
th
DAY OF FEBRUARY 2015 AT COURT 8B BEFORE
THE HONOURABLE JUSTICE MADAU (J)
Case no: 19554/12
In the matter
between:
QONDO
,
SS
…....................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...........................................................................
Defendant
DRAFT ORDER OF
COURT
HAVING
HEARD COUNSEL
for
the Plaintiff and the Defendant:
THE
COURT GRANTS JUDGEMENT
in
favour of the Plaintiff against the Defendant in the following
terms:-
1.
The Defendant shall pay the total sum of
R
1,177,858.34
(ONE MILLION ONE HUNDRED AND SEVENTY SEVEN THOUSAND EIGHT HUNDRED AND
FIFTY EIGHT RAND AND THIRTY FOUR CENTS) in settlement
of the
Plaintiff’s claim, which amount is made up as follows:
Past
medical expenses: R 4,896.34
(FOUR
THOUSAND EIGHT HUNDRED AND NINETY SIX RAND AND THIRTY FOUR CENTS)
Past
and future loss of earnings
I
earning capacity: R 872,962.00
(EIGHT
HUNDRED AND SEVENTY TWO THOUSAND NINE HUNDRED AND SIXTY TWO RAND)
General
Damages: R 300,000.00
(THREE
HUNDRED THOUSAND RAND)
2.
The aforementioned total sum of
R
1,177,858.34
(ONE
MILLION ONE HUNDRED AND SEVENTY SEVEN THOUSAND EIGHT HUNDRED AND
FIFTY EIGHT RAND AND THIRTY FOUR CENTS) shall be payable by
direct
transfer into the trust account of Adams & Adams Attorneys,
details of which are as follows:
Nedbank
Account
number : [...]
Branch
number :
198765
Pretoria
Ref: DBS/WW/LT176
3. The Defendant
shall furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) in respect of 100% of the costs 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, after the costs
have been incurred and on proof thereof, resulting from the accident
that occurred on 13 December
2007.
4.
The Defendant shall make payment of the Plaintiff’s taxed or
agreed party __and party costs
on
t
he
High Court scale, which costs shall include, but not be limited to
the following:-
4.1
The fees of Junior Counsel on the High Court Scale, inclusive of
Counsel’s full reasonable day fee for 12 February 2015
and the
reasonable costs of preparation of the Heads of Argument, if any;
4.2 The reasonable
taxable costs of obtaining all expert, medico-legal, and actuarial
reports from the Plaintiff’s experts
which were furnished to
the Defendant;
4.3 The reasonable
taxable preparation, qualification, travelling and reservation fees,
if any, of the following experts of whom
notice has been given,
being:-
4.3.1 Dr DA Birrell
(Orthopaedic surgeon),
4.3.2 Ms T
Holshausen (Occupational Therapist),
4.3.3 Dr F Greef
(Surgeon),
4.3.4 Ms E Noble
(Industrial Psychologist),
4.3.5 Mr GA
Whittaker (Actuary).
4.4 The costs of a
consultation between the Plaintiff and his attorney to discuss the
terms of this order;
4.5 The reasonable
costs of a consultation between the Plaintiff’s counsel, the
Plaintiff, and the Plaintiff’s attorney
in preparation for the
hearing of this action;
4.6 The reasonable,
taxable accommodation and transportation costs (including Toll and
E-Toll charges) incurred by or on behalf
of the Plaintiff in
attending medico-legal consultations with the parties’ experts,
consultations with the legal representatives
and the court
proceedings, subject to the discretion of the Taxing Master;
4.7 The reasonable,
costs of all consultations between the Plaintiff’s experts,
counsel and attorney in preparation for the
hearing of the action;
4.8 The above costs
will also be paid into the aforementioned trust account.
4.9 It is recorded
that the Plaintiff’s Klerksdorp instructing attorneys shall not
be entitled to debit the Plaintiff for
services rendered in terms of
a contingency fee agreement.
5. The following
provisions will apply with regards to the determination of the
aforementioned taxed or agreed costs:-
5.1 The Plaintiff
shall serve the notice of taxation on the Defendant’s attorney
of record;
5.2 The Plaintiff
shall allow the Defendant 7 (SEVEN) court days to make payment of the
taxed costs from date of settlement or taxation
thereof;
5.3 Should payment
not be effected timeously, Plaintiff will be entitled to recover
interest at the rate of 9% per annum on the
taxed or agreed costs
from date of allocator/settlement to date of final payment.
BY ORDER OF THE
COURT
DBS/WW/LT176