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[2015] ZAGPPHC 345
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Nonzinyana v Road Accident Fund (59682/13) [2015] ZAGPPHC 345 (15 May 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case no:
59682/13
Date: 15 May
2015
Not
reportable
Not of
interest to other judges
In
the matter between:
NONZINYANA,
FULIWE
..................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
..............................................................................................
DEFENDANT
JUDGMENT
1.
This is a Road Accident Fund (“RAF”)
matter. Upon receipt and perusal of the court file two aspects were
glaringly obvious:
1.1.
the
“Special Pleas”, which are, in all respects, simply
carbon copies of each Special Plea in every RAF matter that
I have
heard this week;
1.2.
the
complete lack of thought that went into the holding of a proper
pre-trial conference.
2.
I will deal with these issues in due
course.
3.
The merits were conceded by the Defendant
at the start of the trial – why this could not have been done
earlier is rather
puzzling as the Defendant has absolutely no experts
or witnesses of its own to refute any of the evidence put forward by
the Plaintiff,
and the trial proceeded on quantum only.
4.
The main issue regarding quantum was the
report of the Industrial Psychologist who points out that the
Plaintiff ran an informal
business sewing and selling traditional
dresses for women and girls as well as duvet sets, chair covers and
peg bags which she
sold on order and at social grant pay points and
from door-to-door.
5.
Unfortunately, as the business was a cash
one, there is no proof of income and the Plaintiff also did not have
a bank account.
6.
As a result Defendant was not disposed to
admitting Plaintiff’s income which was alleged to be between
R7 000,00 and
R13 000,00 per month, nor was Defendant
disposed to admit the actuarial calculation for future loss of income
in the amount
of R1 003 633.
7.
In paragraph 1 (
supra
)
I raised the issue of the Special Plea and the pre-trial and I will
deal with these issues first.
8.
I have seen too many of these RAF matters
in which the same Special Pleas are repeated verbatim in one matter
after another. What
makes it even more irksome and frustrating is the
fact that, in this particular matter, it is clear that the Special
Pleas were
filed without any regard to the documents placed at the
disposal of the Defendant and were abandoned without further ado at
commencement
of the trial.
9.
The issue of the pre-trial is even more
frustrating:
9.1.
Judges
in North Gauteng are burdened with an ever-growing number of RAF
matters which are set down daily;
9.2.
the
roll of 6 May alone had 29 RAF matters standing down from earlier in
the week and 109 RAF matters set down on the day roll.
10.
Judges in this division are now also
additionally burdened with having to hold RAF pre-trials because
practitioners are not doing
their own work.
11.
Of the matters allocated to me, this
morning’s RAF matter settled once allocated but contained a
pre-trial minute that was
not deserving of the description and then
this matter in which the pre-trial minute is equally deserving of
censure.
12.
The present pre-trial minute is a document
of some 26 pages in length.
13.
Other than it stating in the beginning that
both parties’ versions are set out in their pleadings and other
than the admissions
made by Defendant in respect of documents and the
experts to be called by Plaintiff, there are simply no answers
provided to the
admissions sought by the Plaintiff.
14.
Similarly, under a heading “Admissions
Required and Enquiries to be directed by the Defendant” the
response is
“
To be advised”.
Suffice it to say that no admissions were sought by the
Defendant.
15.
This minute is dated and signed 17 January
2014.
16.
Neither of the two counsel provided me with
a more current pre-trial minute and I thus assume that the second
pre-trail was not
held.
17.
Rule 37 has as its purpose the curtailing
of issues so that a Court is placed in a position where it knows
exactly which issues
will proceed and what evidence is required and
similarly, not required.
18.
The pre-trail minute is also there to
provide a guideline on the duration of trial
once
all necessary admissions have been made
.
(My emphasis).
19.
Pre-trial minutes in the format given to me
are deserving of censure and given this I intend to show my
displeasure by disallowing
the costs of the calling of attending,
drafting, perusing and signing of the pre-trail meeting and pre-trial
minute for
both
parties.
20.
Counsel were not present at that pre-trial
held on 17 January 2014 - had they been, I would have disallowed
their costs of attendance
as well as the minute is not worth the
paper it is written on.
21.
I turn now to deal with the merits of the
matter.
22.
At the outset, the Defendant conceded the
merits of the matter as well as general damages in the amount of
R350 000,00 and
gave an undertaking as set out in paragraph 8.2
of the Particulars of Claim and such an order will thus be made.
23.
The Plaintiff abandoned paragraph 8.1 of
the Particulars of Claim (i.e. past medical and hospital expenses)
and moved for an amendment
of paragraph 8.3 of the Particulars of
Claim so that it reads “R1 832 100,00”. Mr
Mathabatha, on behalf of the
Defendant, objected to the amendment on
the basis that his client is prejudiced. The objection was overruled
as he had been in
possession of the Report of Mr Minnaar (the
actuary) since 14 April 2015 and thus there can be no possible
prejudice suffered by
the Defendant in this regard.
24.
The only issues thus to be decided were the
Plaintiff’s past and future loss of earnings and the costs of
suit.
The
facts (none of which, nor the injuries, were disputed) are, briefly,
the following
:
25.
On 17 November 2008 and at 06h30 when the
Plaintiff was on her way to sell her wares at Idutwya at the social
grant pay points,
she was injured when two motor vehicles collided
and one of them hit her.
26.
She was rendered unconscious and woke up at
the scene of the accident. From there she was taken to the
Butterworth Hospital where
she was treated for a large severe
degloving injury of the left leg. She remained in hospital for three
months and was then referred
to the Frere Hospital in East London for
a further two months.
27.
It is common cause that she also sustained
the following injuries: dislocation of her right knee, a fracture of
the medial malleolus
of the right ankle and ligamentous damage and a
deep wound of the gluteal groove.
28.
She underwent major split-skin grafting of
the right lower leg. No treatment was given to the wound of the
gluteal groove which
took three years to heal.
29.
The following experts gave reports and
their qualifications and expertise is conceded by the Defendant:
29.1.
Dr
G Read (orthopaedic surgeon);
29.2.
Mr
P W White (plastic and reconstructive surgeon);
29.3.
Ms
J van Zyl (industrial psychologist);
29.4.
Mr
Minnaar (Actuary).
30.
Dr Read summarises the Plaintiff’s
injuries as follows: “
Internal
derangement (instability). Right leg: severe scarring/soft tissue
damage. Right ankle and foot: medial malleolus fracture
and
ligamentous injury”.
31.
Ms van Zyl has summarised the sequelae of
the injuries at p 3 – 5 of her report. The most notable are the
following (at p
24 – 26 of bundle):
“
The Plaintiff has
difficulty sitting or standing for lengthy periods, she cannot bend
and squat, she cannot lift and carry heavy
objects, she experiences
chronic pain in her ankle and knee, she experiences chronic pain in
her right shoulder, she has dizzy
spells, her memory is impaired. She
suffers from depression.”
32.
None of these were placed in dispute by
Defendant. In fact, during cross-examination it was put to the
Plaintiff that the sequelae
were admitted by the Defendant.
33.
Defendant however placed in dispute the
Plaintiff’s income and time of accident as there was no
documentary proof of same.
34.
Thus, the Defendant refused to admit either
Ms Van Zyl’s report or Mr Minnaar’s report and these two
experts had to
be called so necessitating a further day of trial.
35.
Ms van Zyl was called. Her evidence was
simply that as contained in her report. She confirmed that Plaintiff
did not provide her
with proof of income and reported that, according
to the Plaintiff, she earned R7 000,00 to R13 000,00 per
month profit
from her sewing business. The Plaintiff had supported
her entire family for 14 years prior to the accident as her husband
did not
work and she had put all three children through school
through her business and would have continue without this business
for years
to come which Ms van Zyl took to be age 65 but may well
have been past that depending on her health and the availability of
customers.
36.
Given the lack of proof of income Ms van
Zyl used the 2008 income of semi-skilled workers in the
non-corporate/informal sector as
a guideline for the quantification
of Plaintiff’s pre-morbid earning potential as set out in
The
Quantum Hearbook
of Robert Koch
(2008) which ranges between R12 800,00 and R98 500 per
annum.
37.
With a reported income of between
R84 000,00 and R156 000,00 per annum , this placed
Plaintiff within the upper percentile.
38.
Ms van Zyl concludes by stating that
Plaintiff’s injuries have resulted in “functional
limitations and permanent impairment”
which has “probably
rendered her unemployable in all capacities in the formal and
informal labour markets due to the sequelae
of her injuries”.
She states that as a result, the Plaintiff has suffered a total loss
of earnings calculated from date of
accident until retirement.
39.
Cross-examination delivered nothing new nor
anything of note.
40.
The Plaintiff was a dignified, neatly
dressed woman who clearly struggled to walk and required the
assistance of a walking aid.
She was clearly affected by her injury
and broke down when describing what had happened to her and the
consequences of the accident
on her daily life.
41.
She explained that at the time of the
accident she was on her way, by foot, to a pension pay point and was
carrying a large bag
with the clothes etc, she had made to sell
there.
42.
She had been sewing and selling traditional
garments since ± 1994/1995 and with the money she received she
had supported
her family including two sons and a daughter (the
latter of which who also had an 8 year old child) and had put them
each through
school until Grade 12 each and had even paid for her
daughter’s college until she’d dropped out.
43.
Her mother had passed away at the age of 84
and she had hoped to emulate her. She would have worked “…
as long as my
limbs would carry me…” as she put it.
44.
She earned R7 000,00 –
R10 000,00 from making and selling her garments but since the
accident she could not longer
sit for long periods, operate either a
manual or electric sewing machine or carry her heavy bag to the pay
points and she could
not walk unaided.
45.
Her husband has been unemployed since 1999,
her eldest son lives in East London, her middle child (son) lives in
Johannesburg and
her daughter and granddaughter live with her.
46.
The highwater marks of cross-examination
delivered up the following evidence:
46.1.
that
her sons do not support her financially but sometimes Siyabulela (the
second son) will send her money if she asks him;
46.2.
that
she also grows cabbage and potatoes to sell for extra income;
46.3.
that
she wrote her garment orders down in a book which she discarded
shortly after the accident as no-one told her she needed to
keep it
to prove her income;
46.4.
that
she did not keep receipts of the material purchased and she had sell
the dresses she made for R250 – R350 each;
46.5.
that
she had gone to the RAF office in Port Elizabeth and was told that
she needed to give them her business licence and bank statements
to
prove her income. That the RAF official had given her a form but the
East London branch asked for three references. So she handed
in the
forms to the RAF official at Vryheid and gave one Zikiswa, one
Zandela and a Ms Yoyo as references but the RAF had lost
the form and
this is when she became discouraged and discarded the order book
she’d been using;
46.6.
that
she received a disability grant of R1 300 per month since 2010
and her husband also received a pension of R1 300,00
per month
and she had a Nedbank account since 2010;
46.7.
It
was put to her during cross-examination that:
46.7.1.
her
injuries were not disputed by Defendant;
46.7.2.
that it was
not
disputed that she gave three references on the RAF forms (which had
subsequently been lost by the RAF);
46.7.3.
that if the court accepted she had been
working, that an agreed average monthly income of R10 000,00
could be used to calculate
past and future loss of earnings.
46.8.
She
had been very healthy prior to 17 November 2008 and the only time she
had needed to see a doctor was for a caesarean.
47.
Mr Minnaar’s, the actuary, evidence
used R120 000,00 per annum (as agreed) as Plaintiff’s
average income to calculate
pre- and post-morbid loss of earnings. He
assumed that Plaintiff would have retired at age 70.
48.
Mr Minnaar has made no allowance for
interest on damages, for the effect of mortality from date of
accident to present time or for
contingencies and his calculation is
the following:
Accrued
loss
R828 467
Prospective loss (to age
65)
R416 515
Prospective loss (to age
70)
R587 118
Thus total prospective loss
R1 003 633
49.
Cross-examination of Mr Minnaar delivered
absolutely nothing of value.
50.
Thus the question before me is whether I
must accept Plaintiff’s version of her income despite a lack of
documentary proof?
Mr Mathebathe submitted that Plaintiff was not the
most reliable of witnesses and that given the fact that she discarded
valuable
evidence and had not called any corroborating witnesses her
evidence should be treated with caution. He submitted that the
inference
a court should draw from the fact that Plaintiff had
discarded valuable evidence corroborating her income, was that if the
documents
were available, it would have reduced her income.
51.
I do not agree: any inconsistencies in
Plaintiff’s evidence were so minor that they had no serous
impact on her credibility.
She came across as a dignified and
truthful witness and I have no difficulty in accepting her version
especially in light of Defendant’s
concession that she
had
provided them with the names of three witnesses and
they
had lost this evidence.
52.
Furthermore, the Plaintiff’s evidence
that she supported her husband and three children from her income as
a seamstress, put
her children through school, paid for her
daughter’s tertiary education and built on rooms and security
at her home stands
uncontroverted. How the Plaintiff would have done
this on an income other than that put forward by her is not explained
by the
Defendant nor would any explanation other than that given by
the Plaintiff be plausible.
53.
Clearly Defendant did not investigate this
claim properly or at all.
54.
This being so, the Defendant has conceded
that for purposes of the calculation to be made an average monthly
income of R10 000,00
should be used.
55.
If so, what of the contingencies? Mr
Myhill submitted that given Plaintiff’s age and her
circumstances a contingency
of 30% should be applied and is
reasonable given all the circumstances.
56.
Mr Mathebathe submitted that a contingency
of 50% is reasonable and quoted the matter
Mutual
Assurance Association Ltd v Maqula
1978
(1) SA 805
(A) as support. However, in this matter the Plaintiff had
an unstable work record which is not the case in the present matter.
Thus the facts are completely different and the two cases are
incomparable and can be differentiate.
57.
I also accept that the Plaintiff would have
worked to age 70 as the sole breadwinner (undisputed), in the
informal sector.
58.
I am of the view that a contingency of 30%
is reasonable which places the amount to be awarded (R1 832 100,00
–
R549 690,00) at R1 282 470,00.
59.
The only outstanding issue is thus the
question of costs : Mr Myhill submitted that the second day of the
trial was solely necessitated
by the conduct of Defendant who only
conceded merits and general damages shortly prior to commencement of
trial at 14h00 on 6 May
2015. Furthermore, had these concessions, so
the argument goes, been made timeously on 6 May 2015 the matter
could have proceeded
and been finalised on the first day. This is
further compounded by the Defendant’s insistence that Ms van
Zyl and Mr Minnaar
be called in circumstances where cross-examination
failed to contribute anything of value to the matter
60.
Mr Myhill referred me to
Louw
v Road Accident Fund
2012(1) SA 104
(GSJ) and sought an attorney and client costs order for the
qualifying fees of Van Zyl and Minnaar and the second
day of trial.
61.
Mr Mathebathe submitted that had Plaintiff
submitted proof of income, the calling of two experts would not have
been necessary.
62.
I do not agree with Defendant’s
submission. There was absolutely no necessity to insist that the
Plaintiff call either van
Zyl or Minnaar especially when
cross-examination delivered nothing of value and resulted in an
unnecessary waste of costs. It is
my view that Plaintiff should not
be out of pocket as a result of the Defendant’s failure to
timeously admit and concede
merits and general damages.
63.
In the circumstances I am inclined to agree
with Mr Myhill’s submissions.
64.
Thus the following order is granted:
64.1.
the
Defendant is ordered to pay the Plaintiff the amount of R350 000,00
for general damages;
64.2.
the
Defendant will furnish an undertaking as provided for in section
17(4)(a) of Act 56 of 1996;
64.3.
the
Defendant will pay Plaintiff an amount of R1 282 470,00 for
past and future loss of income;
64.4.
the
amounts set out in 62.1 and 62.3 (
supra)
will bear interest at 9% p.a from 14 days after date of judgment to
date of payment;
64.5.
the
Defendant is ordered to pay costs of suit as follows:
64.5.1. the qualifying fees of:
(a)
Dr
G Read
(b)
Mr
P B White
(c)
Ms
J van Zyl
(d)
Mr
I J Minnaar
on a party and party scale;
64.5.2.
the
costs consequent upon the experts testimony of Ms J van Zyl on 6 May
2015 and MR IJ Minnaar on 7 May 2015 on an attorney and
client scale;
64.5.3.
the
remainder of the costs of 6 May 2015;
64.5.4.
the
remainder of the costs of 7 May 2015 on the attorney and client
scale.
64.6 the costs of the calling of,
attending, drafting, perusing and signing of the pre-trail meeting
and pre-trial minute for
both
parties are disallowed.
__________________________
B NEUKIRCHER (AJ)
13 May 2015