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[2015] ZAGPPHC 348
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Chuma v Road Accident Fund (28200/14) [2015] ZAGPPHC 348 (15 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no: 28200/14
Date:
15 May 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
CHUMA
VUTIVI
PETUNIAH
..........................................................................................
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
....................................................................................
DEFENDANT
JUDGMENT
1.
This is a Road Accident Fund matter in
which I was advised by both counsel at commencement of this trial
that the following was
common cause between the parties:
1.1.
that the Plaintiff had no expenses in
respect of her claim under 8.1 of the particulars of claim in respect
of past hospital and
medical costs;
1.2.
Defendant had given an undertaking as
provided for in section 17(4)(a) of Act 56 of 1996 (par 8.2 of the
particulars of claim);
1.3.
that Defendant would pay the Plaintiff
general damages in the amount of R500 000.00;
1.4.
that the Plaintiff abandoned her claim for
past loss of earnings as set out in 8.3 of the particulars of claim;
1.5.
the Defendant conceded the qualifying fees
and expert fees of Plaintiff’s experts are conceded.
2.
Thus the only dispute to be decided was the
amount to be awarded to Plaintiff for future loss of earnings and the
contingencies
to be applied to that award.
3.
Mr Maphelela for Plaintiff submitted that
the accident, Plaintiff’s injuries and contents of the
Plaintiff’s expert
reports are not in dispute which was
confirmed by Mr Mphahlele who acts for Defendant.
4.
The Plaintiff was a nursing student. She
had no prior injuries or surgeries. As a result of the accident she
can no longer walk
or stand property which is required in the nursing
profession.
5.
According to the occupational therapist the
Plaintiff will deteriorate and she will not be able to work at her
chosen profession
(i.e. nursing) and she will have to change careers:
it is doubtful that she has the funds to do this at this stage.
6.
According to the Clinical Psychologist the
Plaintiff has “…
poor
working memory, major problems with focussed attention and
concentration, as well as problems with memory and speed. Her sort-
as well as long term memory functions are problematic,
underachievement in all areas of her cognitive functioning…”
.
This does not bode well for the Plaintiff’s chosen profession
where she has a multitude of functions to perform which include
following doctor’s instructions and dispensing medicine.
7.
Counsel for Plaintiff has submitted that
the sequelae of the accident have not rendered the Plaintiff
completely unemployable. The
Industrial Psychologist clearly
indicates that although Plaintiff has a residual work capacity,
people in her position struggle
to find work and if they do, it is
usually in the unskilled labour market.
8.
Plaintiff’s retirement age is
calculated to be age 65.
9.
When looking at the actuarial calculations,
I was informed that the parties had agreed to use the calculation on
p 97 of Bundle
A (and not those on p 98).
10.
Bearing in mind that Plaintiff has
abandoned her claim for past loss of income in the amount of
R199 700,oo the calculation
now looks as follows:
Future uninjured
income
R6 611 200
minus
Future
injured income
R3 233 100
_______________
Loss
of income
R3 388 100
11.
Mr Maphelela submitted that the usual pre-
and post-morbid spread of injuries is 5% pre up to 15% post.
12.
He submitted that a 20% pre-morbid
contingency is reasonable which bring the calculation of “future
uninjured income”
to R5 288 960. He submitted that a
post-morbid contingency of 25% is reasonable and the “future
injured income”
will then be R2 417 325. This leaves
Plaintiff with an amount of R2 871 635 in respect of future
loss of income.
13.
Thus Mr Maphelela claims the following
order should be granted:
13.1.
an amount of R2 871 635 for
future loss of income;
13.2.
an amount of R500 000 for general
damages;
13.3.
the undertaking in respect of section
17(4)(a) of Act 56 of 1996;
13.4.
costs, including the costs of all the
experts who prepared reports.
14.
Mr Mphahlele on behalf of Defendant
submitted that given the fact that Plaintiff completed her nurses
training on 31 October 2013
i.e. four months after the accident, her
sequelae cannot be as severe as has been stated (as I understand
him). He supports this
argument by referring to the report of Dr
Kumbirai (Orthopaedic Surgeon) who gives a 10% occupational reduction
i.e. the Plaintiff
has a 90% working capacity. However, this does not
take into account the fact that the Defendant has already conceded
the expert
reports which includes the facts and findings.
15.
In any event one cannot look at this report
in isolation as the report of the Industrial Psychologist states that
Plaintiff’s
condition will deteriorate and she will not be able
to work at her chosen profession. In the absence of any evidence to
the contrary
(as no experts were called by Defendant or gave reports)
I must accept this evidence as she is the one who determines
Plaintiff’s
future work prospects, not the orthopaedic surgeon.
16.
Mr Mphahlele submitted that bearing in mind
that Plaintiff previously was employed at Khari Gode (as school for
adult learners)
where she earned R1 350,00 per month in 2011 –
2011 a pre-morbid contingency of 50% should be applied which would
put
her uninjured income at R3 305 600.
17.
He submitted that a post-morbid contingency
of 25% is appropriate putting Plaintiff’s injured loss at
R2 417 325.
18.
This then leaves R899 275 for her
future loss of income.
19.
I do not agree that 50:25 spread is
reasonable given the facts and circumstances of this case.
20.
Mr Mphahlele then tendered the costs of
suit on a party and party scale including the costs of Plaintiff’s
experts.
21.
I also note herein that the matter stood
down from 6 May 2015 until today as no judges were available.
22.
Given the facts of this matter and having
regard to the report of the Industrial Psychologist, I am of the view
that the 20:25%
spread submitted by Plaintiff’s counsel is
reasonable.
23.
Thus the following order is made:
23.1.
Defendant is to pay the Plaintiff an amount
of R3 371 635;
23.2.
interest at 9% will run from 14 days of
date of this order to date of payment;
23.3.
the Defendant is to give the Plaintiff an
undertaking as provided for in section 17(4)(a) of Act 56 of 1996;
23.4.
the Defendant is to pay Plaintiff’s
cost including the costs consequent upon the employment of all her
experts their, their
qualifying fees and reports.
_________________________
B
NEUKIRCHER (AJ)
14
May 2015