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[2024] ZAMPMBHC 51
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Lubisi v Road Accident Fund (1484/2019) [2024] ZAMPMBHC 51 (19 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(MAIN
SEAT)
CASE
NO: 1484/2019
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE:
19/07/2024
SIGNATURE
In
the matter between:
MARIA
SISTENCE LUBISI
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
Delivered:
This judgment was handed down electronically by circulation to the
parties by email. The date and time for hand-down
is deemed to have
been 10h00 on 19 July 2024.
JUDGMENT
MOLELEKI
AJ:
[1]
The plaintiff is Ms Maria Sistence Lubisi an adult female of Mkuhlu
in Mpumalanga Province. The
Defendant is the Road Accident Fund, a
juristic body with legal personality established in terms of section
2(1) and with
section 15
of the
Road Accident Fund Act 56 of 1996
with its main object, the payment of compensation for loss or damage
wrongfully caused by the driving of a motor vehicle.
[2]
The plaintiff claims for damages suffered by her as a result of
injuries she sustained in a motor
vehicle collision on 30 November
2017 along Kiepersol main road when a taxi she was travelling in (the
insured vehicle) lost control
and rolled several times before hitting
a pavement. In the accident plaintiff sustained injuries on the upper
eye, scalp and dislocated
her knee. As a result of the bodily
injuries and the sequelae, plaintiff claims loss of income/ earning
capacity.
[3]
The defendant conceded the merits.
The defendant disputed
liability for general damages. It leaves the court with no
jurisdiction to assess the award of general
damages. The issue of
general damages is therefore, to be postponed
sine die
.
[4]
The plaintiff brought an application in terms of
Rule 38(2)
for the
admission into evidence of all the expert reports by way of
affidavit. The following expert reports for the plaintiff were
admitted:
a.
Dr GK Tsolo (Orthopaedic Surgeon);
b.
Phiwakahle Manana
(Occupational
Therapist);
c.
Mudzunga Makhado
(Industrial
Psychologist); and
d.
DT Mureriwa (Actuary).
The
defendant did not file any expert reports. It appears that the
defendant would rely on the reports of the plaintiff
’
s
experts. The defendant, however, takes issue with the contingency
deduction to be applied to future loss of earnings.
[5]
Pre-morbid, the plaintiff
’
s
highest level of education is grade 9. Her work history revealed that
she has work experience as a farm worker. At the time of
the accident
the plaintiff was 38 years old and at an establishment phase of her
career. She was left with 6 years and 11 months
to reach her career
ceiling at the age of 45. There was 12 years left to reach active
involvement in the open labour market before
she reached the
retirement age of 65 years. However, this would depend on a variety
of factors such as her health, personal circumstances,
business
demands, economic conditions and conditions of employment. Her
earning was R3 001.13 per month as a farm worker which
translated to
R36 013.56 per annum. The plaintiff
’
s
earnings fell between the median and upper quartile for unskilled
workers within the non-corporate sector.
[1]
[6]
Post-accident, the plaintiff was taken to Matikwane Hospital where
she received the following
treatment: clinical and radiological
examination and a diagnosis of soft-tissue injury. She was discharged
from hospital the same
day but attended for follow up treatment. This
was the plaintiff
’
s first motor
vehicle accident. Her current complaints are a painful lower back,
painful right knee associated with stiffness and
a painful right
shoulder which is aggravated with overhead activities. X-rays were
conducted on 13 April 2022. Radiologically,
the shoulder is normal.
The right knee shows narrowing of the joint space and this is in
keeping with osteoarthritis. The lumbar
spine indicates loss of
lumbar lordosis and levoscollosis which is in keeping with paraspinal
muscular spasms.
[7]
The plaintiff was absent from work for a period of two months after
the accident. However, she
was remunerated in full while she was
recuperating at home. Upon her return to work she was accommodated to
work at a factory as
she was experiencing pain when standing for too
long and when climbing trees.
[8]
As stated, medico-legal experts were appointed to assess the
plaintiff. They submitted their respective
reports which form
evidence before this court. I do not intend to traverse these expert
reports in detail. Reference will only
be made to certain salient
features of these reports.
[9]
The orthopaedic surgeon, Dr GK Tsolo, indicated that the plaintiff
continues to suffer moderate
pain on the right knee and lower back.
He is of the opinion that the plaintiff can be managed with surgical
and conservative methods.
[10]
From a functional perspective, Ms Manana, the Occupational Therapist,
opined that the plaintiff does not
meet the demands of her current
employment as it requires prolonged period of standing. This
aggravates her right lower limb and
lower back pain, consequently her
performance. The Occupational Therapist stated that there is no other
position that the plaintiff
can be suited for in her employment. This
has however proved incorrect as the plaintiff was moved to work at a
factory within the
farm. The employer provided her with reasonable
accommodation for her injuries and restrictions. The Occupational
Therapist indicated,
however, that should the plaintiff lose her
current employment she may struggle to obtain another employment. Her
chances of sustaining
and obtaining employment in the open labour
market have therefore been compromised.
[11] Mr
Mudzunga Makhado, the Industrial Psychologist, indicates that as a
result of the injuries, the plaintiff
will not be able to compete
fairly and efficiently for employment opportunities like she would
have, had the accident not occurred.
She is now vulnerable in the
open labour market and would require a sympathetic employer.
Therefore, the accident and its sequelae
has affected her future
employment and earning potential. He postulates that had the accident
not occurred, the plaintiff would
have continued working in the same
position, with annual inflationary increases until she reached
retirement at 65 years.
[12]
According to the plaintiff
’
s
actuarial calculations the plaintiff suffered loss of past income and
future loss of income in the sum of R50 588 for past loss
of income
and R402 797 in respect of future loss of income, totalling the
amount of R453 385.
[13]
The issue between the parties appears to be the disagreement with
regards the percentage of the contingency
deduction to be applied to
the future loss of earnings.
[14]
The plaintiff
’
s counsel submitted
that a 15% contingency deduction should be applied to past loss of
income pre-morbid, and 25% contingency deduction
in respect of future
loss of income, post-morbid. The defendant on the other hand
submitted that there is no actual loss of future
earnings rather loss
of earning capacity. A 15% contingency deduction pre-morbid future
loss and a 30% post-morbid future loss
is contended for by the
defendant.
[15]
The defendant
’
s counsel argued that
the plaintiff was remunerated in full whilst recuperating and that
she has been accommodated to work at a
factory. It was submitted
further on behalf of the defendant that the plaintiff is still
employed; that the accident will not hinder
her career growth. The
plaintiff is not necessarily unemployable but rather that she has
been considered a vulnerable employee
within the labour market. For
these reasons, the defendant
’
s
counsel submitted that a higher contingency deduction should be
applied.
[16]
In
Phalane
v RAF
[2]
Fourie
J remarked as follows:
"Contingencies
are the hazards of life that normally beset the lives and
circumstances of ordinary people (AA Mutual Insurance
Co v Van
Jaarsveld reported in Corbett & Buchanan,
The Quantum of
Damages
Vol II 360 at 367) and should therefore, by its very
nature, be a process of subjective impression or estimation rather
than objective
calculation (Shield Insurance Co Ltd v Booysen
1979
(3) SA 953
(A) at 965G-H). Contingencies for which allowance
should be made, would usually include the following:
(a)
the possibility of illness which
would have occurred in any event;
(b)
inflation or deflation of the
value of money in future; and
(c)
other risks of life such as
accidents or even death, which would have become a reality, sooner or
later, in any event (Corbett,
The
Quantum of Damages,
Vol I, p
51).
[17]
The approach in assessing damages for loss of earnings was set out in
Southern
Insurance Association v Bailie NO
[3]
as follows:
a.
“
Any enquiry into damages for loss of
earning capacity is of its nature speculative, because it involves a
prediction as to the future,
without the benefit of crystal balls,
soothsayers, augurs or oracles. 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. 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. That 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
”
.
[18]
The Plaintiff bears the onus to prove her case on a balance of
probabilities. She
is required to provide a factual basis that
allows for an actuarial calculation. This is a process designed to
assess actuarial/mathematical
calculations based on the evidence as
well as overall assumptions resting on such evidence (this is the
actuarial approach). This
approach seeks to determine the loss of
earnings as realistically as possible to what may be the plaintiff’s
actual loss.
This is so particularly since
actuarial reports and calculations are premised upon the assumptions
of the industrial psychologist
or prepared on instructions.
[19]
It is an established principle that the plaintiff bears the onus to
prove on a balance of probabilities that
the injuries he sustained
have reduced his earning capacity, which will result in actual loss.
[
See Rudman v Road Accident Fund 2003(2) SA 234 (SCA); Road
Accident Fund v Kerridge 2019(2) SA 233 (SCA)
]. The court in
Kerridge said at para 25 “Indeed, a physical disability which
impacts on the capacity to earn an income does
not, on its own,
reduce the patrimony of an injured person. There must be proof
that the reduction in the income earning capacity
will result in
actual loss of income…” That is, there must be proof
that the disability gives rise to patrimonial
loss. This of course is
dependent on the nature of the work that the plaintiff had done prior
the accident or would have done had
the accident not occurred.
[20]
The Supreme Court of Appeal in
Michael
v Linksfield Park Clinic (Pty) Ltd
[4]
confirmed the approach of our courts to expert evidence as follows:
“
what
is required in the evaluation of such evidence is to determine
whether and to what extent their opinions advanced are founded
on
logical reasoning
”
[21]
Before a court can assess the value of an opinion it must know the
facts on which it was based. If the expert
has been misinformed,
about the facts, or has taken irrelevant facts into consideration or
has omitted to consider relevant ones
the opinion is likely to be
valueless.
[5]
[22]
The expert reports and admitted evidence are very clear. The
plaintiff
’
s work history is that she
has been a farm worker since 2011 to date. Her duties involve
planting and harvesting fruits of the season.
To do this, according
to the reports, she must carry a bag where she puts the fruits when
harvesting from the trees. At times she
would use a 20-liter bucket.
Her employment requires frequent standing, walking, bending,
crouching and knee squatting. This therefore
requires physical
strength. Reasonable accommodation was implemented at the workplace.
She was placed at the factory. Her job title
remains the same
although her duties have been changed. Her work classification is now
light physical demand.
[23]
Following the accident, the plaintiff could not go back to work for a
period of two months for which she
was fully remunerated. Although
the actuary calculated an amount of R50 588 for past loss of income,
it is clear the plaintiff
has not incurred any past loss of income.
[24]
The Industrial Psychologist indicated that the plaintiff
’
s
earnings would have increased mid-point between the median and upper
quartile, unskilled non-corporate. Her source of growth would
have
been inflation related. It is significant to note that the Industrial
Psychologist is saying, now that the accident has occurred
the
plaintiff is unlikely to progress. It was postulated that her
remuneration would have doubled in seven years. This is improbable
and no basis for this assumption was put forward. Of significance is
that her salary is increasing. Since the accident, her salary
has
increased to R4 270. Although the experts state that she experiences
painful lower back, right shoulder and right knee, there
is no
collateral information to suggest that she has ever requested time
off work. The injuries have clearly not hindered her working
ability
over the past seven years whilst working at the factory. She has been
accommodated to do light physical work since 2017
and it has been
almost 7 years post-accident where the employer has accommodated her
whilst she retains the same job title.
[25]
The actuarial calculations are based on the assumption that the
plaintiff
’
s salary would have doubled
from R36 014.28 to R75 000 by age 45, which is improbable. The basis
for this assumption was not explained.
Post-accident the plaintiff
earns more than what she was earning pre-accident. From the actuarial
calculations, the actuary applied
15% contingency deduction on
pre-accident future loss and 25% on post-accident future loss of
earnings, with the resultant loss
of R402 797.00.
[26]
It cannot be denied that the plaintiff
’
s
life has changed from a physical point of view and
continues
to suffer moderate pain on the right knee and lower back. The
orthopaedic surgeon has recommended the type of interventions
that
would be necessary.
[27]
I am not persuaded that the plaintiff
suffered any loss. Contrary to the opinion of the Occupational
Therapist, the plaintiff
’
s employment
does have another position suited for her. This accommodation by the
employer is likely to allow her to maintain productivity
at her
current work which may enable her to retain employment until
retirement. At the time of the accident the plaintiff was 38
years
old. It was postulated that she would reach her career ceiling by age
45. She is currently 44 years old, turning 45 in three
months
’
time.
[28]
It is my considered view that the plaintiff
’
s
earning capacity does not appear to have been affected. She was
accommodated by placing her at a factory. She continues to be
employed by the same employer in a different capacity. The upshot of
it is that she performs all the necessary tasks in her new
position,
albeit with attendant pain. Be that as it may, there has been no
change in her remuneration. Instead, her salary increased.
Had the
accident not occurred, she would presumably have continued working
until age 65, subject to inflationary increases. There
is no proper
foundation to conclude that the plaintiff will not achieve her
pre-morbid earnings level. The mere fact that she experiences
some
degree of residual pain does not translate into the conclusion that
she will not reach her pre-morbid earnings level. It would
be fair to
assume that her current remuneration would continue until her
retirement at 65 years.
[29]
I am cognizant of the view expressed in
Hulley
v Cox
[6]
that
“
we
cannot allow our sympathy for the claimants in this very distressing
case to influence our judgment
”
.
[30]
The well-established position in our law is that courts need
to be mindful of the current situation of the plaintiff and exercise
a measure of common sense and judicious discretion in avoiding an
award that would amount to a windfall to which the plaintiff
would
not be entitled. The onus is on the plaintiff to prove the loss.
[31]
The actuarial calculation is premised upon the
information provided by the Industrial Psychologist to the
effect
that by the age of 45 years, the plaintiff
’
s
earnings would have increased to the average of the median and upper
quartile of the unskilled worker
’
s
scale in the amount of R75 500. Thereafter, the salary inflationary
increases until retirement at the age of 65 years. This would
have
been an annual increase from R36 001.19 to 51 246.72. There is no
corroboration nor was the court apprised of the facts on
which this
opinion was based.
[32]
In
Twine and Others v Sharon Naidoo and Another
[7]
,
Vally J stated, “before a court can assess the value of an
opinion it must know the facts on which it was based. If the
expert
has been misinformed, about the facts, or has taken irrelevant facts
into consideration or has omitted to consider relevant
ones the
opinion is likely to be valueless”
[33]
I am alive to the fact that the admission of expert evidence is open
to abuse. An expert witness is not expected
to use speculative
reasoning but should rather bring specialised knowledge to the court.
The industrial psychologist’s instruction
to the Actuary
reflects assumptions, which were based on facts that were not
supported by any evidence or are inconsistent with
the evidence led.
The Industrial Psychologist should have stated all the facts and the
assumptions upon which he based his opinion.
The facts upon which she
relied should have been proved by admissible evidence. While an
expert witness is entitled to make
assumptions, they should avoid
basing their opinions on conjecture or speculation for once they do
so they place their evidence
at risk of being disallowed. I can
therefore place no reliance on the opinion of the Industrial
Psychologist in so far as it relates
to the information she gave to
the Actuary.
[34] I
am not bound by, nor am I obliged to accept the evidence of the
expert. His opinion in so far as the salary
of the plaintiff becoming
double by age 45 was not properly brought forward nor is it based
upon foundations which justifies the
formation of such opinion.
[35]
On the body of evidence before me, I am unable to conclude that the
plaintiff
’
s capacity to fulfil the
tasks of the job has been affected materially. The plaintiff has
failed to prove her damages for past loss
of income and future loss
of earnings. Similarly,
for this court to attach weight to an
expert opinion, the facts on which it is based must be proven. The
actuarial calculations
which have been provided are therefore of no
assistance to the court.
[36]
On a conspectus of all the evidence presented, I am of the view that
the plaintiff has failed to establish
the facts in support of her
case to the satisfaction of the court in respect of the past loss and
future loss of earnings.
[37]
There is no reason to deviate from the general principle that costs
follow the result.
[38]
In the result I make the following order:
1.
The plaintiff’s claim for loss of earnings
is dismissed.
2.
General damages are postponed
sine die
.
3.
The plaintiff is ordered to pay the costs
of suit.
MOLELEKI AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
Appearing
for the Plaintiff:
Advocate K Mahlalela
45
Murray Street
Mbombela
Nelspruit
Info.
masingattorneys@gmail.com
info.masingattorneys@gmail.com
Appearing
for the Defendant
: Ms GG Mokoena
Road
Accident Fund
38
Ida Street
Menlo
Park
Menlyn,
Pretoria, 0081
Claims
Officer:
gugum21@raf.co.za
C/O
The State Attorney Mbombela
3
rd
Floor, Admin Block West Wing
R104
Samora Machel Drive
Date
of hearing: 29 April and 2 May 2024
Date
of Judgment: 19 July 2024
[1]
R
Koch The Quantum Year Book, 2017
[2]
Phalane v RAF
[2017]
ZAGPPHC 259
[3]
Southern Insurance Association v Bailie NO 1984(1) SA 98 (A) at 112E
114F
[4]
Michael
v Linksfield Park Clinic (Pty) Ltd 2001(3) SA 1188 (SCA)
[5]
Twine
and Others v Sharon Naidoo and Other (38940/14) ZAGPJHC 288.
[6]
1923
AD 234
at
246:
[7]
(38940/14)
ZAGPJHC 288
[2018] 1 ALL SA 297
(GJ) (16 October 2017)