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[2015] ZAGPPHC 926
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Mathaba v Road Accident Fund (58320/2011) [2015] ZAGPPHC 926 (7 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 58320/2011
DATE:
7 AUGUST 2015
In
the matter between:
SICEBI
MLUNGWANA
MATHABA
.................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGMENT
MALI
AJ
[1]
The plaintiff, a twenty two year old
male student, sued the defendant, the Road Accident Fund for damages
resulting from injuries
he sustained in a motor vehicle accident.
[2]
The claim in respect of general damages
was settled in an amount of R600 000.00 for general damages. The
defendant further agreed
that to furnish the plaintiff with an
undertaking in respect of future medical expenses in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
(“
section
17(4)(a)).Consequently
, the only issue for determination in this
trial is the quantum in respect of future loss of earnings in
particular the contingency
deductions as applied in the plaintiff’s
actuarial report.
FACTUAL BACKGROUND
[3]
On 21 April 2001 the plaintiff who was 9
years old then and a pedestrian was hit by a motor vehicle wit
h
registration numbers [NU 7……..]
.
The accident occurred at or near Malokane Area at Mthunzini in Kwa
Zulu Natal (“KZN”). After the accident he was admitted
at
Ngwelezane Hospital in KZN and was discharged in the beginning of May
2001.
[4]
According to the medical reports the
plaintiff suffered bodily injuries described as follows:
(I)
Head injury with loss of consciousness;
(ii)
Neck and upper limb injuries;
(iii)
Soft tissue injury of the neck, left
arm, chest, lower back and legs;
(iv)
Severe pelvis injury;
(v)
Broken left humerus;
(vi)
Injury to the urethra;
The details of the accident are common cause
between the parties.
CASE LAW PLAINTIFF’S EVIDENCE
[5]
The plaintiff testified that he was
injured at the age of 9 year and he resides at Empangeni in KZN.
[6]
He further stated that he sustained
injuries to the head, fractured left arm and had difficulties in
passing urine. He was fitted
with catheter since the time of accident
until 2007 to assist him to pass urine. He still experiences a lot of
pains when he passes
urine especially on cold days. Sometimes he
passes blood as he suffers from serious bladder pains. He suffers
from headaches during
hot weather which lead to difficulties when
reading, as well as loss of concentration. His left arm becomes
painful especially
when lifting heavy objects.
[7]
He is currently repeating grade 12 for
purposes of improving his marks to enable him entry to pursue a
course in Electrical Engineering
at University. The Higher
Certificate pass did not even qualify him to be accepted at Colleges
to pursue his desired field of study.
[8]
He stated that that he is not coping as
he easily gets tired and looses concentration.
EXPERTS
EVIDENCE
MR MAHOME WILLIAM
KHUMALO-EDUCATIONAL PSYCHOLOGIST
[9]
Mr Mahome William Khumalo an Educational
Psychologist testified that when compiling his report he took into
consideration the opinion
of the Clinical Psychologist, MrTromp.
MrTromp is of the opinion that
“he is at risk for developing severe psychological and
neuropsychiatric difficulties. It is evident that he is currently
presenting
a depressed mood, underlying anger, feelings of guilt,
irritability and anxiety. This signifies post-accident changes in his
psycho-emotional
functioning”.
[10]He concluded that severe psychological
difficulties interfere with the plaintiff’s attention span and
concentration at
school. The sequel shows that he has memory
problems. He might not be able to better the results although he will
get some level
of pass. He is not aware of anything he will do
differently in the current grade 12 to improve his ability to pass.
He further
stated that with the neuropsychological problems the
plaintiff is faced with no chances of passing matriculation with
better marks
than in 2012.
[11]He said that the plantiff failed grade 2
after the accident and also failed grade 10. The reason for failing
grade 2 is that
after the accident he stayed out of school for 6
months. The plaintiff’s failure of grade 10 may be attributed
to the fact
the work has become more demanding and he had reasoning
deficiencies and because of the demanding syllabus.
[12]Regarding the plaintiff’s desire
to enrol for Electrical Engineering at University; Mr Kumalo stated
that the evidence
points to the contrary because the cognitive
results show that he is below average. The possibility of him coping
with Post Matriculation
studies is limited. He can study Electrical
Engineering at Further Education College (FET) where standard 9 or
grade 11 is the
requirement. The FET qualification is less equivalent
than the University qualification.
[13]The FET qualification will disadvantage
the plaintiff in the labour market. Although the chances of the
plaintiff in the FET
are far better than coping in University but he
could not say he will pass well and get a qualification. Chances of
him getting
the job with FET qualification are slim. He emphasised
that he will be disadvantaged.
He
further stated that Electrical Engineering requires more physical
strength something which is compromised by the plaintiff’s
left
arm injury.
[14]The Educational Psychologist further
stated the following:
“there seems to be some evidence
that his capacity to learn well may also have been affected by the
accident as the areas
of memory and concentration seemed to have been
affected specifically. There is clear evident of impairment in all
aspects of memory".
MS RHIRHANDZU LOWANE MAYAYISE- INDUSTRIAL
PSYCHOLOGIST
[15]Ms Mayayise the Industrial psychologist
referred to page 10 of her report bundle 4(1) wherein her findings
are based on the
opinion of the clinical psychologist, Mr Tromp. She
therefore concluded that the injuries sustained by the plaintiff have
had a
major restrictive impact on his level of physiological,
behavioural, cognitive and scholastic functioning. He cannot perform
at
the same level as before the accident. Her view is that apart from
the financial constraints related with furthering his education,
the
plaintiff will most likely no longer cognitively cope with further
education and training ventures.
[16]She stated that based on the reports of
the Clinical and Educational Psychologist if it was not for the
accident the plaintiff
would have passed grade 12. She testified that
financial constraints are not an issue for the plaintiff not to
further his studies.
In support of this opinion she indicated that
due to persistence the plaintiff has shown he would have got
employment post matriculation
and then finance his studies. He would
have studied on a part-time basis to complete a Diploma. Whilst still
studying the plaintiff
would have entered the labour market with a
matriculation as an unskilled- semi-skilled worker with earnings
ranging between a
Paterson Grade A2/B1 and this would have been a
career physiologically demanding in nature.
[17]She further stated a post matriculation
Diploma qualification obtained while employed would have afforded him
opportunity to
advance his career initially as a semi-skilled worker
earning on a Paterson Grade B2/B3 upper quartile total cost to
employer and
reaching his career ceiling at Paterson Grade C4/C5
upper quartile total cost to the employee by the age of 45.
Thereafter a straight
line approach increase with inflationary growth
would be applicable.
[18]Ms Lowane- Mayayise further stated the
following at page 13 , paragraph 2 of bundle 4.1:
“with a poor matric
qualification Sicebi will most likely initially suffer a period of
unemployment as a result of the high
unemployment rate of both
unskilled and skilled individuals. A period of 3-5 years is here
inconsidered most likely in this regard.
As a job seeker with a poor
grade 12 certificate (NQF4) it is likely that he will enter the open
labour market as an unskilled
labourer i.e. general worker earning
with the lower quartile on a Paterson A1 level. Thereafter his career
will progress via a
straight line approach through a ceiling on a
Paterson grade A3/B1 median range basic salary by the age of 45.
Thereafter yearly
increase based on the consumer price index is
recommended until normal retirement. It is however noted that
Elfriede Tromp (Clinical
Psychologist) stated that
from
a
neuropsychological
point of view. Mr Mathaba suffered loss of
intellectual
potential and can therefore be expected to function at a
significantly
lower level than a pre-morbid intellectual potential. He
furthered
that neuropsychological assessments findings show that Mr
Mathaba
has many indications of Neuro-cognitive difficulties and
neuropsychological
seguel and that it can be concluded that from a
neuropsychological
point of view his cognitive dysfunction is of such a
nature
that he could find tasks that demand sustained attention and
concentration
difficult
. His attention and concentration challenges
will evidently render him error prone and as such perceived as in
competence and a
poor performer. This will always pose a challenge
towards his ability to maintain employment as well as achieve career
advancement
as postulated above. A considerably higher than normal
post- accident contingency deduction is therefore recommended on the
above
postulated amounts in light of the high risk of loss of
employment translating into long and frequent periods with no income
as
a
result of the behavioural and cognitive challenges which
will manifest as incompetence and poor performance in the workplace”.
MR I.J. MINNAR- ACTUARY
[19]Mr Minnar confirmed that his actuarial
calculations are based on the report of the Industrial Psychologist.
The said calculations
were made on the 26th of May 2015. His
calculation is based on two scenarios; viz age 60 and 65. He
submitted that the revised
figures, updated to 1 June 2015 , for the
value as at 26 May 2015 of the plaintiff’s future loss of
income are as follows,
without allowance for contingencies:
[20]
Retirement at age
65
Retirement at age 60
R
R Had the accident not occurred 6 991 093 6 531 288
Now that the accident has occurred 1 780
054
1 677 518
Net Prospective
Loss
5 211 039
4 853 770
[21]The plaintiff’s counsel indicated
that it will be fair and reasonable that age 60 be considered as his
retirement age.
He concluded an award of R4, 209 580.40 is
appropriate. The said amount arrived at as follows:-
[22]Income had the accident not
occurred
R6 531 288.00 Less 15% contingency R979 693.20 Subtotal R 5 551
594.80 Income now that the accident occurred R 1 677518.00 Less
20%
contingency R 335 503.60
Therefore
income pre-accident
R 5 551 594.80
Minus
income now the accident occurred R 1 342 014.40 Total loss of
earnings R 4 209 580.40
[23]The plaintiff’s counsel finally
submitted that the total monetary compensation should be R4 809
580.40; made of R600 000
agreed General Damages plus R4 209 580.40 as
indicated above.
DEFENDANT’S
CASE
(a) The defendant did not call any witnesses
and it neither submitted any actuarial report. However the
defendant’s case is
centred on one aspect of the plaintiff’s
actuarial report; i.e. percentage applicable for contingency, had the
accident not
occurred scenario.
[24]Mr Mabaso, Counsel for the defendant
argued that the plaintiff did not produce pre-accident school
reports; accordingly the
contingency applicable pre-accident of 15%
should be increased to 40%. He relied on Patuleni and others v Road
accident Fund
[1]
[295/2010] ZAECGHC
(“Patuleni”) wherein the
significance of school reports was emphasised. In my view court
placed emphasis on school reports
because it was the evidence placed
before it. I do not understand Patuleni to mean that the absence of
school reports is a dead
end apart from the court remarking on
comparisons found in the produced school reports. However it would
have been of much assistance
to the court if the defendant had
requested same from the plaintiff at the appropriate moment. It would
seem as though little,
if any, preparation had been given to the
defendant’s case, despite the matter proceeding to trial; in
particular that on
28 May 2015 the defendant requested the matter to
stand down for trial to 3 June 2015 fully aware of the status of its
case.
[25]He further submitted that the
Educational Psychologist testified that despite learning difficulties
that the Plaintiff encounters,
he can still manage to obtain an FET
engineering qualification. Counsel did not dispute evidence that the
FET qualification presents
serious limitations. For example the
Educational Psychologist stated the following:
[26]
“The
FET qualification will disadvantage the plaintiff in the labour
market. Chances of him getting the job with FET qualification
are
slim. Electrical Engineering requires more physical strength
something which is compromised by the plaintiffs left arm injury.
”
[27]From the above it is clear that the
plaintiff is more at risk in the injured state than he was before
injury.
[28]Counsel for the defendant further
criticised the Industrial Psychologist’s report on the bases
that when she compiled
her report she was not in possession of the
report of the Educational Psychologist. During cross examination the
Industrial Psychologist
referred to her joint minutes with the
Educational Psychologist which had been admitted.
[29]Counsel further stated that the report
of the expert should not be so biased to leave crucial information to
show how they arrived
at certain conclusions. Mr Minaar gave reasons
as to why he did not use Dr Fourie’s report, the defendant’s
Industrial
Psychologists. He stated that Dr Fourie did not set out
clear career path in the joint minute and it lacked sufficient
information
to assist him to come to a conclusion. I have no reason
not to accept this submission.
CONTINGENCY
[30]Contingencies have been described as the
normal consequences and circumstances of life, which beset every
human being and which
directly affect the amount that a plaintiff
would have earned AA MUTUAL INSURANCE v VAN JAARSVELD.
[2]
In his book The Quantum Yearbook, Koch states that when assessing
damages for loss of earnings or support it is usual for a deduction
to be made for general contingencies for which no explicit allowance
has been made in the actuarial calculation. The deduction
is in the
prerogative of the court. General contingencies cover a wide range of
considerations which may vary from case to case
and may include:
taxation, early death, loss of employment, promotion prospect,
divorce etc.
[31]Koch refers to the following as some of
the guidelines a regards contingencies:
•
“Normal contingencies” as
deductions of 5% for past loss and 15% for future loss.
•
Sliding scale: 1/2 % per year to
retirement age, i.e. 25% for a child, 20% for a youth and 10% in the
middle age and relies on Goodall
v President Insurance
[3]
.
•
Differential contingencies are commonly
applied, that is to say one percentage applied to earnings but for
the accident, and a different
percentage to earnings having regard to
the accident.
[32]When a court is called upon to exercise
an arbitrary discretion that is largely based on speculated facts it
must do so with
necessary circumspection. In the absence of contrary
evidence, the court can assume that a reasonable person in the
position of
the plaintiff would have succeeded to minimize the
adverse hazards of life rather than to accept them. Both favourable
and adverse
contingencies have to be taken into account in
determining an appropriate contingency deduction. Bearing in mind
that contingencies
are not always adverse, the court should in
exercising its discretion lean in favour of the plaintiff as he would
not have been
placed in the position where his income would have to
be the subject of speculation if the accident had not occurred.
[33]Having regard to the above I am of the
view that deductions of 20% contingency but for the accident presents
a fair value and
30% having regard to the accident will fairly
compensate the plaintiff for the loss suffered as a result of the
accident. My calculation
is as follows:
[34]
Income
had the accident not occurred R 6 531 288.00
Less
20% contingency
R 1 306 257.60
Subtotal
R 5 225 030.40
Income
now that the accident occurred
R 1 677 518.00
Less
30% contingency
R 503 255.40
Therefore
income pre-accident
R 5 225 030.40
Minus
income now the accident occurred
R 1 174 262.60
Total
loss of earnings
R 4 050 790.80
ORDER
I
accordingly make the following order:
1.
The
defendant is to pay the plaintiff a sum of R 4, 050 790.80 being in
respect of loss of earnings plus R 600, 000.00 in respect
of general
damages) which gives rise to a net award of R 4,650 790.80
2.
The
defendant is to provide the defendant with a section 17
(4)
(a)
undertaking in respect of future medical expenses.
3.
The
defendant is to pay the plaintiff his taxed or agreed party and party
costs of 17 February 2015, 28 May to 3 June 2015, which
costs should
also include the preparation , reservation and attendance fee of the
following plaintiffs experts for the above dates
as well as their
costs for preparing the medico legal reports:
(i)
Education Psychologist- Mr Mahome
William Khumalo;
(ii)
Industrial
Psychologist- Mr Rhirhandzu Lowane- Mayayise;
(iii)
Actuary
- Mr I. J. Minnar
MALI
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION PRETORIA
Counsel
for the Applicant: Adv. T.C. Maphelela
Instructed
by: Dreyer & Dreyer Attorneys
Counsel
for the Respondent: Adv. N.D. Mabaso
Instructed
by: T.M. Chauke Incorporated
Date
of Hearing: 03 June 2015
Date
of Judgment: 07 August 2015
[1]
r295/20101 ZAECGHC
[2]
1974(4) SA 729 (A)
[3]
1978 (1) SA 389