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2024
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[2024] ZAMPMBHC 19
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Ndzundzukani v Road Accident Fund (532/2022) [2024] ZAMPMBHC 19 (25 March 2024)
HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA (MAIN
SEAT)
Case No.: 532/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE:
25 March 2024
SIGNATURE
In
the matter between:
NGOMANE
NDZUNDZUKANI
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
BHENGU
AJ
[1]
The Plaintiff was involved in a motor vehicle accident on 16 May
2021, whist she was conveyed
as a passenger. The Defendant conceded
merits in its offer dated 14 June 2022. The Plaintiff does not
qualify for General Damages
as determined by the Health Professions
Council on 04 October 2023. The matter is only proceeding for
determination of the Plaintiff’s
loss of earnings.
[2]
In order to prove its case, the Plaintiff appointed the following
experts:- Dr Oelofse (Orthopeadic
Surgeon), Ms Stipp (Occupational
Therapist), Ms de Vlamingh (Industrial Psychologist) and
Mr J Potgieter (Actuary).
The experts have filed affidavits
confirming the contents of their reports. The Defendant did not
appoint any experts. The Plaintiff
made an application in terms of
Uniform Rule 38(2) that the experts reports be admitted into evidence
without having to call the
experts to give evidence viva voce. The
Defendant does not object to the application and consequently, the
application is granted.
Evidence
of the Plaintiff
[3]
In summary, the Plaintiff testified that she is currently 27 years
old. Her highest level
of education is Grade 10 which she obtained in
2014. She is currently unemployed. She sustained hip trauma and
spinal injuries
in the accident. She was conveyed by an ambulance to
Tintswalo hospital where she was treated for four days.
[4]
Before the accident she was a seasonal farm worker harvesting
oranges. Her work included
carrying a bag around her chest to put
oranges. She used a ladder to climb the tree. She would come down
when the bag is full to
offload the oranges into a bin. She was on
her feet for most of the time from 08h00 to 16h00. She was paid
according to the number
of bags she filled up. She had to be quick so
as to make more money. She stopped working in 2020 and she was
unemployed at time
of the accident. She was unable to return to her
work because she gets cramps on her hips and due to her spinal
injuries. She is
unable to bend as it becomes painful.
Expert
Evidence
[5]
According to Dr Oelofse, Orthopaedic Surgeon, the Plaintiff sustained
soft tissue injuries
to her left sacro-illiac joint, a lumbar spine
injury described as disc lesion at level L5-S1 and retrolisthesis at
L5-S1. The
injuries have resulted in the joint dysfunction and
radiculopathy at lumbar spine. Dr Oelofse recommended surgical
intervention
in the form of posterior lumbar laminectomy, discectomy,
and fusion with internal fixation. He recommended that the Plaintiff
should
look for less demanding jobs in the future such as light
manual work or sedentary work.
[6]
According to Ms Stipp, Occupational Therapist, the Plaintiff is
suffering from pain in her
left hip and lower back, and she ambulates
with a single crutch. Ms Stipp opined that she remains with the
capacity to perform
work of a sedentary physical nature. She noted
that as the Plaintiff has a Grade 9 level of education and limited
work experience,
she has been rendered an unequal competitor in the
open labour market and she is not suited for manual labour due to her
injuries.
[7]
According to Ms De Vlaming, the Plaintiff will not be able to reach
her pre accident earning
potential as a result of the sequelae of her
injuries. She has been physically compromised and has no real chance
of securing employment
in the formal sector of the labour market. Ms
de Vlamingh opined that subject to recommended treatment, she may be
able to secure
employment in the informal capacity, but in a much
lower level of income. She may suffer long periods of unemployment
over the
remainder of her working life. Ms de Vlamingh suggested that
this should be addressed by application of higher than normal
contingencies.
For quantification purposes two scenarios were
postulated as per the actuarial calculation by Mr Potgieter.
Scenario
1
[8]
It is postulated that but for the accident, the Plaintiff would have
secured entry level
unskilled employment by July 2022. She would have
started earning a minimum wage of R23,19 per hour. He income would
have increased
in a straight line until reaching R72,000.00 per year
in March 2023 terms at age 45 earning between median and upper
quartile for
unskilled workers. Thereafter she would receive
inflationary increases until retirement age 65. It is
postulated that the
Plaintiff is unemployable post-accident.
Scenario
2
[9]
It is postulated that the Plaintiff will receive no income from the
date of accident until
30 June 2024 to allow for recommended
treatment. From 1 July 2024 she would obtain employment on a part
time basis working three
days a week earning an income of R26,000.00
per year (lower quartile earnings of unskilled workers in July 2023
terms). It is postulated
that her income will increase in a straight
line until reaching R36,000.00 per year at age 45. Thereafter, her
earnings will increase
with inflation until retirement age 65.
Plaintiff’s
submissions on contingency deduction
[10] The Plaintiff’s
counsel suggested that a 10% contingency deduction should be applied
to the Plaintiff’s
past loss of income. This percentage
is double the normal amount of 5% due to the fluctuating nature of
unskilled employment.
Regarding future income it was submitted that a
higher than normal pre-morbid contingency of 25% should be applied
for the benefit
of the Defendant. Plaintiff’s counsel
recommended that post accident, a much higher than normal contingency
deduction of
35% be applied. He submitted that as per the Industrial
Psychologist’s opinion, factors such as progressional
vulnerability,
the sequelae of the accident and the need for
Plaintiff to undergo future surgery justifies the application of a
much higher than
normal contingency deduction. He suggested that a
median of the two scenarios should be used to compensate the
Plaintiff.
Defendant’s
case
[11] Mr Mkansi on
behalf of the Defendant contended that the Plaintiff’s
premorbid potential was already
compromised due to her limited level
of education, limited work experience as a seasonal farm worker and
no formal vocational training.
He argued that the Plaintiff is
not in possession of a driving license and that she was unemployed at
the time of the accident.
He is of the view that the limitations that
the Plaintiff is complaining about are not only as a result of motor
vehicle accident.
He referred to the Occupational Therapists report,
that indicated that the Plaintiff is obese. He supports the view that
she will
benefit from consultations with a Dietician for advice on
how to lose weight in order to reduce strain on the affected
joints.
This according to Mr Mkansi will improve the Plaintiff’s
chances of obtaining employment in the future.
[12] The Defendant
acknowledged that the Plaintiff is compromised due to her physical
limitations and that she
suffered earning capacity loss. Regarding
contingency deductions, the Defendant proposed that for
quantification purposes, a 15%
contingency should be applied on the
Plaintiff’s pre-morbid earnings and a 25% contingency on the
post morbid earnings. He
argued that the pre and post-accident
scenario should remain the same (R1 464 960.00). He suggested that
the contingency deduction
with a 10% differential spread should be
applied. He submitted that a fair and reasonable compensation for
Plaintiff’s claim
for loss of earnings is an amount of
R146,496,00.
Analysis
[13] The Plaintiff
was 25 years at the time of the accident. She completed Grade 10
level of education with no
further qualification. Although there was
conflicting information on whether or not she passed Grade 10, I find
that issue to be
immaterial in the determination of her claim for
loss of earnings as it is common cause that she did not obtain Matric
and has
no further qualification. Her work experience ranged from
being a domestic worker and a seasonal farm worker. These kinds of
occupations
require physical exertion. It is clear from the evidence
of the Plaintiff and supported by the experts’ opinion that the
Plaintiff is compromised due to her orthopaedic injuries.
[14] I find that
even though the Plaintiff was not employed at the time of the
accident in 2020, her working history
demonstrated that she was
someone who had sought work and was able to earn an income. I do not
accept the Defendant’s contention
that the Plaintiff’s
earning potential is still the same post the accident and that any
potential loss should be addressed
by contingency deduction based on
an obesity diagnosis by the Occupational Therapist. It is noted that
the Occupational Therapist
opinion was not final as she deferred to
an opinion of a Dietician.
[15] Furthermore, it
clear from the report of Dr Oelofse that the Plaintiff’s
injuries resulted in the joint
dysfunction and radiculopathy at
lumbar spine. There is future surgical treatment indicated by the
expert in the form of posterior
lumbar laminectomy, discectomy, and
fusion with internal fixation. The experts recommended that that the
Plaintiff is now suitable
for light manual work or sedentary work.
Taking into account the Plaintiff’s limited education,
prospects of obtaining sedentary
jobs are slim if not non-existent.
It is for these reasons that the Defendant’s argument should be
rejected.
Contingency
Deductions
[16] Regarding
contingencies, the approach adopted in Goodall v President Insurance
1978 1 SA 389
(W) of a sliding scale of ½ % per year to
retirement age is accepted as normal contingency. That is, 25% for a
child, 20%
for a youth and 10% in the middle age. The Quantum
Yearbook (2023) by Robert Koch states the following regarding
contingencies:
-
“
The deduction is the
prerogative of the courts…The RAF usually agrees to deductions
of 5% for past loss and 15% for future
loss, the so-called normal
contingencies”.
[17] In RAF v Guedes
[2006] 2006 (5) SA 583
(SCA) at para 8, Zulman JA stated the
following regarding loss of earnings:-
“
The court 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 a useful
basis for establishing the quantum of damages. Even then, the trial
court has a wide discretion to award
what it believes is just”.
[18] The
Plaintiff was still young at the time of the accident (25 years), and
she still had 40 years to
participate in the open labour market.
Using the sliding scale of ½ % per year until retirement will
result in 20% contingency.
However, taking into account the argument
by the Plaintiff’s counsel that the Plaintiff’s
occupation was only limited
to the unskilled sector in the informal
labour market which in the main require manual work positions, it is
accepted that she
was going to face periods of unemployment and
fluctuating earnings. In this regard, I therefore find that an
increased contingency
of 25% in the pre accident scenario is
reasonable.
[19] In the post
accident scenario, I agree with the Industrial Psychologist that the
Plaintiff is currently a
vulnerable employee in the open labour
market due to her injuries and that she is excluded from performing
strenuous tasks. She
will require time off work to attend to
recommended treatment. in Krugell v Shield Versekeringsmaatskappy Bpk
1982 (4) SA (T) 95
at 105, the court found that the expert evidence
proved that the claimant would be able to obtain employment for
interrupted periods.
The court had regard to the additional
challenges that arose as a result of the accident which would affect
the likelihood of the
claimant obtaining subsequent employment and
retaining such employment. The court applied a contingency deduction
of 35%. I
therefore find that a higher than normal contingency
of 35% in the post accident scenario is reasonable.
[20]
Regarding
Plaintiff’s past loss of earnings, 5% is accepted as normal
contingency. I am satisfied that a 10% contingency,
which is double
the normal 5% contingency is reasonable. This increased contingency
takes into account the fact that the Plaintiff
was unemployed at the
time of the accident and that employment in the unskilled sector is
vulnerable to periods of unemployment
and fluctuating income.
[21] I am of the
view that a median of scenarios 1 and 2 as per the actuarial report
of Mr, J Potgieter represent
reasonable compensation for the
Plaintiff’s loss of earnings.
[22] In the result,
it is ordered that: -
1.
The Defendant is to
pay 100% of the Plaintiff’s proven or agreed damages;
2.
The
Defendant is ordered to pay to the Plaintiff the amount
of
R903 867.00 (Nine Hundred and Three
Thousand Eight Hundred and Sixty-Seven Rand),
in respect
of past and future loss of earnings, within 180 days from the date of
this order.
4.
Should the Defendant fail to make payment as set out in
paragraph 2 above then, in this instance, the Defendant shall be
liable
for payment of interest, calculated from 15 days after date of
granting of this order, at the
tempore morae
rate.
5. The Defendant
will furnish to the Plaintiff with an unlimited Undertaking in terms
of section 17(4)(a) of Act 56 of 1996, to
pay 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 her
arising from injuries sustained by her in a collision which occurred
on 16 May 2021, after the costs
have been incurred.
6. The Defendant
shall pay the Plaintiff’s taxed or agreed party and party costs
on a High Court scale.
JL
BHENGU
ACTING
JUDGE OF HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
For
the applicant:
Adv APJ Bouwer briefed by Frans
Schutte & Mathews Phosa Inc
For the respondent:
Mr C Mkansi – State
Attorney, Mbombela
Date of Judgment:
25 March 2024