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[2024] ZAFSHC 192
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Smit v Road Accident Fund (15/2020) [2024] ZAFSHC 192 (13 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED. NO
Case
Number: 15/2020
In
the matter between:
OCKERT
SMIT
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
HEARD
ON:
5, 6 and 13 MARCH
2024
CORAM:
JORDAAN,AJ
DELIVERED
ON:
13 JUNE 2024
[1]
The plaintiff,
Ockert Smit, was enrout from his place of employment to his home
driving his motor bike with registration number
[…] in the
early hours of the 14th
of January
2017 on Albrecht Street, Dan Pienaar, Bloemfontein when an unknown
vehicle driven by a n unknown driver collided with
him.
[2]
As
a consequence of
the
collision,
the
plaintiff
sustained the
following
lnjuries:
[1]
2.1
a right femur
fracture;
2.2
a right hip
dislocation;
2.3
concussion and
bleeding on the brain;
2.4
injury to C1
and C2 vertebrae;
2.5
various cuts,
abrasions and lacerations.
[3]
On the 2
nd
of February 2017, the plaintiff was a passenger in a motor vehicle
with registration number […], driven by G.Maarten when
it
collided with a motor vehicle with registration number […]
driven by D.B. Solomons
or F.Smith at
the intersection of the R64 Boshof Road and Du Plessis Road,
Langenhoven Park, Bloemfontein.
1.
Paginated Bundle: Particulars of claim page 5-6 paragraph 5.
[4]
As
a result of the collision as aforementioned, the plaintiff sustained
the following injuries
:
[2]
4.1
injury to
the left hand
and right thigh;
4.2
bilateral
femur fractures;
4.3
Various cuts,
abrasions and lacerations
.
[5]
The Plaintiff
consequently instituted action in terms of the provisions of the
Road
Accident Fund Act 56 of 1996
, as amended, to recover damages
comprising of:
5.1
Past medical
expenses
R500 000.00
5.2
Future medical
expenses
R1
700
000.00
5.3
Past loss of
icome
R403 200.00
5.4
Future loss of
income
R5 044 86 667.00
5.5
General
damages
R1 500 000.00
TOTAL
R
9 148 066
.
6
[6]
The
Defendant settled the merits 100% in favour of the plaintiff in terms
of a written merits settlement offer which was accepted
by the
plaintiff
.
[3]
[7]
In
terms of the order by Loubser J dated 30/10/2023, general damages and
future medical expenses were settled and separated in terms
of R
33(4) from adjudication of past and future loss of earnings and past
medical expenses
.
[4]
The
only
heads of damages for determination by this court is the loss of past
and future income, the aspect of past medical expenses
is
separated
in
terms of R 33(4) for later adjudication
.
[8]
The plaintiff
bore the onus of proof and thus the duty to begin. The Plaintiff
himself an the occupational therapist, Letitia Delport,
testified in
the Plaintiff's case.
[9]
It was agreed
between the parties that the evidence of the remaining experts will
be presented and handed in by way of affidavit
in terms of
Rule
38(2)
.
The
court accordingly accepted the following reports as exhibits:
9.1
The
Occupational Therapist's report by Letitia Delport, as Exhibit
"A";
9.2
The
Orthopeadic Surgeon's report by Dr A Szabo, as Exhibit "B";
9.3
The Industrial
Psycologist's report and
addendum
report by Bernard Swart Merwe, as Exhibit
"C1
& C2";
9.4
The
Actuarial
report
and
addendum
report
by
Human
&
Morris,
were
·
accepted as
Exhibits
"D1
& D2".
[10]
It
was the plaintiffs evidence that he matriculated in the year 2016,
had an interest in the engineering sciences as he was interested
in
working with his hands and confirmed his National Sneior
Certificate.
[5]
[11]
The Plaintiff
testified that at the time of the collisions, he was working as a
waiter
and
barman
at
no
[…]
S[…]
and
B[…]
G[…].
It
was
his
evidence
further that
he could only return to work in November 2017, due to a lengthy
rehabilitation, and continued to work at The Office
and Saffies until
November 2019, when he left for Cape Town.
[12]
It was his
testimony further that he worked as a barman/waiter which entails him
working for long hours on his feet, which was strenuous
on his legs
.
.He testified
that being on his legs for long caused pain in his legs and joints.
His main source of pain would be his right hip
which causes pain in
his nerves and does not allow for him to place his full weight on his
leg.
[13]
His
evidence further rang that he started to work as a junior technician
at Black Ops in
Cape
Town from 2020 and confirmed his salary slips.
[6]
During March 2021 he was appointed as the project manager which
involved a lot of traveling, earning a higher salary as his payslips
reflect.
[7]
[14]
The plaintiff
testified that the nature of his work involved a lot of walking,
picking up ad carrying of equipment and it requires
a lot of physical
exertion. He explained that he installs security camera's & alarm
systems while standing on ladders and cherry
pickers
.
It was
plaintiffs evidence further that the installations often occur in
confined spaces and takes a physical toll on his right
hip, but not
to the extent of his right knee & hip.
[15]
The plaintiff
testified thet his work also entails extensive driving which causes
leg pains and the sitting for long periods causing
a feeling of
pins &
needles
.
His
evidence further rang that from 5pm daily his limbs pain and the cold
weather only serve to exacerbale it. He has difficulty
sleeping
because of his hips and thus sleeps on his stomach, but his right hip
and right knee is the first to pain.
[16]
Durling
September of 2022 he moved to a company called TAG, The Alarm Guy,
in
the
same
industry
as
Black
OPS,
but
with
a
high
end
clientele
and
different
types
of
equipment,
in
order
to
enrich
his
experience.
He
left
the
company in December 2023 and confirmed his salary slips
.
[8]
[17]
Letitia
Delport, the Occupational Therapist, testified in essence that the
plaintiff would not be able to
continue with
the work that he is currently
doing beyond
55 years of age.
[18]
I
was her
evidence that the plaintiff would be able to work until the age of 60
years, but in a sedentary capacity
.
[19]
During
cross-examination she conceded that she cannot opine on early
retirement, but that it is within her expertise to opine on
the
functionary level estimations.
She
also
conceded
that
the plaintiff
is currently
in
a managerial
position. She confirmed her report.
[20]
That concluded
the
viva
voce
evidence.
[21]
Dr A Szabo,
the Orthopeadic Surgeon, opined that the Plaintiff sustained
Orthopeadic injuries and will likely develop post-traumatic
osteoarthritis the right hip and of the knee replacement at the
approximate age of boys old
.
He might need
same far left hip and knee as well.
[22]
He
opined
that
the
Plaintiffs
employability
and
working
capability
has been
affected. The Plaintiffs cannot stand for a long time and his walking
distance is limited due to his right leg pain. He
cannot sit for
longer than an hour due to knee pain
.
This will
probably have a bearing on his job opportunities, productivity and
potential earnings
.
[23]
Dr
Szabo
qualified
the
Plaintiffs
on
the narrative
Test for
serious
long term
impairment or loss of bodily function.
[24]
Industrial
Psychologist, Bernard Swart Merwe opined the Plaintiff's
physical
impairments
will
definitely
affect
his
promotional
prospects
in
the
security
industry adversely. The Plaintiff's potential for future promotions
will
invariably
be affected
adversely due to his physical limitations.
[25]
The industrial
psychologist opined that the most appropriate manner to calculate
the
Plaintiff's
claim
pertaining to loss of Earnings would be by way of differenctial
contingencies.
[26]
The
actuanial
calculation
make
provision
for
retirement
at
the
age
of
55 years
and
retirement
at
60
years,
both
assumed
trancated
retirement
ages not opined or determined by the othopaedic
surgeon.
[27]
If
one
applies a
15%
contingency
on
the on the unijured
scenario
and Scenario
and a 35% contingary on the injured scenario, the Plaintiff's loss of
income is an amount of R 3 166 610.00 in scenario
1 where
the
assumed
retirement age is 55 years. If one applies 15% contingency on the
unijured scenario and a 35% contingency on the injured
scenario in
scenario 2 where the assumed etirement age is 60 years the
Plaintiff's loss of future income is an amount of R2 904
041.00.
[28]
The
Defendant
rebutted
the
evidence
of
the
Occupational
Therapist
in That
she
does
not
have
the
necessary
competency
to
establish
a truncated
age
of
retirement
for
the
Plaintiff
in
the
absence
of
the Orthopadic
surgeon opining same.
[29]
The Defendant
proposed that while there might be a diminished capacity to earn an
income, it does not translate in a definite future
loss of earnings
and
in casu
the exact
situation has been manifested.
[30]
The
Defence
the
submitted
a
20%
contigency
be
applied
in
respect
of the
Plaintiff's unijured future loss of earnings and contingency
reduction of
35% be applied
in respect of his injuired future loss of earnings.
[31]
In order for
the Plaintiff to succeed with his claim for loss of earnings. He must
prove that his earning capacity has been compromised
as a Result of
the damage causing event. The .Plaintiff's own evidence and the
evidence as extracted from the expert witnesses'
reports established
this. I am thus satisfied that the Plaintiff was able to proved that
his earnings capacity has been compromised
as as a result of the
injuries he sustained in the accident in question.
[32]
The avaluation
of the amount to be awarded for the for the loss however, does not
involve proof on a balance of probabilities. The
Plaintiff herein
relied on the expertise of an Actuary in coming to an assessment of
the amount payable.
[33]
The
locus
classicus
as
to the value of actuarial expect opnion in assessing damages is
Southern Insurance Association Ltd v Baily NO
[9]
where Nicholas JA said the following:
"Where
the
method
of
actuarial
computation
is
adopted
in
assessing
damages
for
loss
of
earning
capacity,
it
does
not
mean
that
the
trial Judge
is
'tied
down
by
inexorable
actuarial
calculations'.
He
has
a
large
discretion to award what he considers right. One of the elements in
excercing that discretion
is the making
of a discount for contingencies
or differently
put the
'vicissitudes of life'."
[34]
In
Road Accident Fund v Guedes
[10]
Zulman JA
stated:
"The
calculation
of
the
quantum
of
a
future
amount,
such
as
loss
of earning
capacity, is not, as I have already indicated, a malter of exact
mathematical
calculation
.
By
its
nature,
such
an
enquiry
is
sepeculative
and
a
court
can
therefore
only
make
an
estimate
of
the
present
value of the
loss that is often a very rough estimate. Courts have adopted the
approach
that,
in
order
to
assist
in
such
calculation
an
actuarial
computation is a useful basis for establishing the quantum of
damages."
[35]
The
occupational Therapist analysis that the Plaintiff will have a
truncated retirement at 55years of age, could not logically be
motivated by the Occupational Therapist and is not supported by the
Othopaedic Surgeon
.
[36]
The Plaintiff,
notwithstanding his injuries which was known to his prospective
employer, was promoted in less than the projected
time of 7 years,
but 4 years to a Managerial Position
.
Therefor the
Industrial Psychologist postulation of the Plaintiff's post-accident
carrer path is flawed and not in line of the career
progression of
this Plaintiff
.
[37]
The Industrial
Psychologist opinion that provision should be made for retirement
between the ages of 40 years and 50 years for actuarial
calculations
are unfounded.
[38]
The Atuarial
calculations
are based on
truncated ages of 55 years and 60 years of age. These truncated ages
were not opined by the Orthopeadic Surgeon of
the Plaintiff and thus
based on unfounded postulations.
[39]
The
occupational Therapist oral evidence of a truncated age of 55 years
was not supported neither by her evidence in cross-examintation
nor
her written report
.
She testified
that the most suitable expert to dertmine whether early retirement is
indicated based on the injuries, would be the
Orthopaedic Surgeon
.
In her written
report, she did not mention the truncated retirement age
.
Thus
the
Actuarial
Report is based on collateral information or evidence pertaining to
retirement age, which is not credible.
[40]
In the
circumstances this court is not bound to accept the actuarial
calculations as per the actuarial report as it was based on
unfounded
expert postulations
,
deprived of
logic
.
[41]
This court had
regard to the age of the Plaintiff,
his admirable
drive and stellar advancement
in
his
career, not withstanding his injuries and its sequalae
.
The plaintiff
submissions were for an award of R 3 385 007
.
00,
while the
Defendant
submitted
R1
058 044.65 to be a just & fair award.
[42]
Having
regard to the
facts
of this case,
the
submissions
made, I
find that an
appropriate contingency to be applied to future loss of earnings is
45%
.
[43]
Thus the Pre
morbid earnings R 887 327,-
with a 5%
contingency and a future loss of earnings at R7 053 631.- with 15%
contingency
representing total pre morbid earnings, while Post- Morbid
earnings have
past loss of R
887 327
.
with a 5% contingency and a future loss of earnings at R7 053 631
with
a
45% contingency representing the post morbid earnings. Thus a total
loss of earnings of R 2 116 089
.
30
.
[44]
In
the
circumstance I make the following order:
The
Defendant
shall pay the
plaintiff
the
amount of
R
2 116
089.30
(TWO MILLION
ONE
HUNDRED
AND
SIXTEEN
THOUSAND
AND
EIGHTY
NINE
RAND AND THIRTY CENTS) for
loss of earnings
.
1.
The aforesaid
amount is to be paid into the following bank account:
Symington
& De Kok Attorneys
[…]
[…] […]
Account
number: […]
Branch
code: […]
Reference:
[…]
2.
The
Defendant
shall
be afforded
a
period of 180
calendar
days
from the date
of this order to effect payment herein, during which period the
Plaintiff will not be entitled to issue a writ against
the Defendant
.
3.
The
adjudication of the remaining aspect of past medical expenses is
separated in terms of
Rule 33(4)
and postponed to the pre-trial roll
for hearing on
30
September 2024.
4.
The defendant
shall pay the plaintiff's taxed party and party costs on a High Court
scale to date of this order, which shall include
the travelling costs
for the plaintiff and the reasonable qualifying
,
preparation
fees and reservation fees of Counsel and the following experts:
4.1
Dr
.
Aszabo
(orthopaedic surgeon)
4.2
Bernard Swart
(Industrial psychologist)
4.3
Letitia
Delport (Occupational therapist)
4.4
Human &
Morris (Actuary)
5.
Interest shall
accrue at he
prescribed
statutory rate in respect of:
5.1
The capital
amount of the claim, calculated 14 (fourteen) days from date of this
order to date of final payment,
in the event
that payment is not affected within the 180 days from date of this
order as per prayer 3.
5.2
The taxed or
agreed costs, calculated from 14 (fourteen) days from date of
taxation, alternatively date of settlement of such costs
to date of
final payment.
M
.T.
JORDAAN,
AJ
Counsel
for Plaintiff:
Adv M.D.J. Steenkamp
Instructed
By:
Symington & De Kok lnc Attorneys
BLOEMFONTEIN
Email:
tdupreez@symok.co.za
Counsel
for Defendant:
Ms J. Gouws
Instructed
By
State Attorneys
BLOEMFONTEIN
Email:
johandig@raf.co.za
[1]
Paginated
Bundle: Particulars of Claim page 5 - 6 paragraph 5.
[2]
Paginated
Bundle: Particulars of claim page 9 paragraph 13.
[3]
Paginated
Bundle
:
Notices
page 275-278
.
[4]
Paginated
Bundle: Notices page 390.
[5]
Paginate
Bundle: Notices Page 339.
[6]
Paginated
Bundle: Notices pages 343 to 347.
[7]
Paginated
Bundle: Notices pages 3348 to 355.
[8]
Paginated
Bundle: Notices pages 356 to 365.
[9]
1984
(1) SA 98 (A).
[10]
2006
ZASCA 19.