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[2024] ZAMPMBHC 58
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Nyalungu v Road Accident Fund (933/2022) [2024] ZAMPMBHC 58 (30 August 2024)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
MBOMBELA COURT
(MAIN
SEAT)
Case No: 933/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE:
30.08.24
SIGNATURE
In
the matter between:
NYALUNGU
XOLISILE LOLUTHAN
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MSIBI
AJ
INTRODUCTION:
[1]
The plaintiff, an adult female residing at stand no 2[...]
N[...] Township in Mpumalanga Province,
has instituted an action for
damages against the defendant for damages suffered as a result of the
injuries that she sustained
in a motor vehicle collision that
occurred on 1 April 2021. The other insured motor vehicle was never
identified. The action is
defended by the Road Accident Fund (“RAF”)
THE MERITS
[2]
At the start of the trial I was informed that the merits have become
settled in that the defendant
offered a concession on merits 100 % in
favour of the plaintiff and the plaintiff accepted the offer. General
damages have already
been settled in the amount of R500 000 by
agreement between the parties.
[3]
The issues for determination by this court is therefore the quantum
of past and future loss of
earnings and earning capacity. The
plaintiff, the Occupational Therapist and the Industrial Psychologist
testified during
the trial. The defendant did not lead any evidence,
nor submit expert reports.
[4]
The plaintiff confirmed the fact that she was involved in a motor
vehicle accident on 1 April
2021. At the time of the collision the
plaintiff was a driver of a Ford Motor vehicle, bearing registration
letters and numbers
F[...] P[...] G[...]. Following the accident she
had pain all over her body. She had sustained upper and lower back
injuries and
a fracture of her left arm on her wrist. She went to
hospital where she received treatment, a plaster of paris was
administered
on her left arm. She recuperated at home.
[5]
Ms Nyalunga stated that she completed her matric in 2004 and
thereafter obtained an office admin
certificate in 2007 at ADTI
College in Nelspruit. She previously worked at a Spar super market
where she was retrenched in 2013.
She did not have documents to prove
that she worked at Spar. Prior to the accident the plaintiff has been
suffering from a chronic
medical condition that necessitated that she
takes medication on a daily basis. At the time of the accident,
she was employed
at Shell garage as a petrol attendant, earning R800
to R1200 weekly. She worked at Shell garage from 2019 up to the date
of the
accident.
[6]
In 2023 she was employed by Dinawo Waybridge as a data
capture. She had to do the capturing manually
and on a laptop. She
struggled to cope with the long standing hours. She was a left hand
dominant worker who had to train her right
hand to do the capturing
due to the accident. She had to constantly use painkillers to cope
with the pain. Her basic salary was
R7000 and with overtime
R11 000. Her contract was not renewed due to the fact that she
was struggling to cope
with her work. The plaintiff is currently not
working.
[7]
The Orthopaedic Surgeon,
Dr Joseph Sibanyoni
, examined the
plaintiff 2 years after her injuries. In his report he states that
the plaintiff sustained a left distal radius fracture,
left hip
injury and lower back injury. She received emergency medical
treatment, a backslab and analgesics.
[8]
A clinical examination of the plaintiff revealed mild swelling
of the left wrist, left wrist
tenderness and restricted movement. The
expert also noted left hip restricted movement, tenderness of the
lumber spine and restricted
range of movement of the lumber spine.
[9]
Radiological reports of the left wrist revealed sclerosis at the
distal radius, also known as
post traumatic arthritis. A small bone
fragment was noted in relation to the medial aspect of the
carpometacarpal joint.
This may indicate a small fracture and
non-union of the fracture fragment. Radiological reports of the
lumber spine revealed evidence
of post traumatic arthritis.
[10]
The plaintiff’s work potential is negatively affected by the
accident in that it may be a challenge
for her to be in prolonged
employment. In short, her working life has been shortened by the
injuries that she sustained. Her whole
person impairment is 23%, she
qualifies for general damages, due to serious permanent impairment.
The plaintiff had no orthopaedic
history. She has been on ARV
treatment before the accident.
[11]
The neurosurgeon
Dr Akhona Mazwi
confirms the physical
injuries noted by the orthopaedic surgeon. Neurological examination
established that the plaintiff has normal
concertation, a normal
memory and a normal vision. The plaintiff experienced left wrist
trauma. Her life expectancy will
not be affected by the
injuries. The expert noted a whole person impairment of 10%.
[7]
The Occupational
Therapist Saddy Gregory Mashaba
testified
that from his physical findings, the plaintiff demonstrated
difficulties in performing demanding heavy work due to pain,
reduced
muscle strength, limited range of motion, pain and weakness of the
left forearm and hand. She had difficulty performing
activities that
involve bilateral handling of objects due to her left arm residual
symptoms. She also demonstrated difficulties
performing activities
that involve dynamic posturing (prolonged standing, walking bending
and squatting) due to pain on the lumber
spine and left hip.
[8]
The Occupational Therapist opines that she will not be able to
meet the demands of her previous
employment as a petrol attendant.
The injury on her left dominant hand also limits her ability her
work.
[9]
The expert further opines that the plaintiff’s residual
physical abilities appear to be
more suited for sedentary type of
work. However, the expert is of the opinion that her limited
vocational experience will disadvantage
her when seeking sedentary
type of employment due to lack of experience and the injury on her
dominant left arm. The majority of
sedentary jobs in the open market
involve prolonged static sitting which will exacerbate the pain in
her lumber spine. As such
she will be an unequal competitor in the
open labour market. Her functional abilities have been severely
compromised by the injuries,
even with further medical management and
rehabilitation, it is unlikely that she will regain her pre-accident
functional capacity.
[10] During
cross-examination the expert conceded that he had no collateral
information regarding the plaintiff’s employment
at Spar. The
only collateral that she produced was with regard to her employment
at Shell garage, where he was able to speak to
the manager, Mr Z M
Gama, who indicated the plaintiff’s work performance was
excellent. He was considering employing her
permanently.
[11] In
her report, the
Industrial Psychologist
Ms Faith Chamisa
Maulana
, stated that the plaintiff was employed as a petrol
attendant. Even with further medical management and rehabilitation,
it is unlikely
that she will regain her pre-accident functional
capacity. Prior to that she was employed at Spar as a shop assistant.
As a petrol
attendant she was a casual worker, only called to relieve
when an employee is who was on leave. She was earning R800 to R1200,
00 per week. Her earnings amounted to R51000 00 per annum.
[12]
The expert stated that the plaintiff’s annual earnings fell
between the median and upper quartile earnings
of unskilled workers
and or between the lower and median earnings of semi-workers skilled
workers as suggested in tea Quantum Yearbook
(R. Koch, 2021). The
suggested earnings of unskilled and semi- skilled workers as noted in
the Quantum Yearbook (R. J. Koch 2021)
is:
·
Unskilled workers: R21, 400-00 –R37 200 –
R88 000,00
·
Semi-skilled workers: R37,200 – R88 000 00 –
R193 000 00
[13]
The industrial psychologist contacted Mr Z M Gama a manager at Shell
garage, who confirmed the plaintiff’s
work history and
performance. He stated that her work performance was excellent and
there was a possibility of her being permanently
employed.
[14] The
expert stated that the plaintiff returned to work after an
unspecified period of unpaid sick leave. She cannot
recall her period
of recuperation while on sick leave. She has suffered loss of
income. Upon her return to work she
was suffered pain as a
result of her injuries, which was worsened by cold weather. Her
contract ended in November 2021 due to her
inability to work night
shifts because of the pain. From her payslips she established
that the plaintiff later worked as
a clerk at Danoher People Solution
(Pty) Ltd based in Malelane, in Mpumalanga. She was earning a basic
salary of R7, 077, 56 per
month. Her employment contract ended on 19
January 2024 due to her inability to work night shifts. Her
employment with the company
was confirmed with Mr Mpilo Dladla, the
company site clerk. She was unemployed at the time of assessment.
[15] Mr
Dladla, the site clerk at Danoher People Solution informed her that
the plaintiff worked night shift for
one month. She was thereafter
scheduled for day shift since she was complaining of pains. Her
contract ended on 19 January 2024.
The expert opines that her
physical limitations will negatively impact her employment potential,
therefore she is a vulnerable
employee in the open labour market.
[16] In
formulating an opinion regarding Ms Nyalunga’s pre and
post-accident prospect , the expert considered
the following factors:
The plaintiff’s age at the time of the accident, she was 39
years of age at that time. She is currently
42 years of age. She
obtained matric and an Office Administrative Assistant certificate.
She worked as a shop assistant, petrol
attendant and clerk.
[17]
The expert opines that if not for the accident the plaintiff would
have been permanently employed and she
would have secured an entry
level position. Her job would have been graded at the Peterson A3
median earnings (monthly basic salary).
Progression would have
stemmed from the job training, promotions and workplace experience.
She would have progressed reaching her
career ceiling by the age of
45. Her job would have been graded at the Peterson B1 median earnings
(annual guaranteed package).
Then, the plaintiff’s earnings
would have increased in line with inflationary increases until the
age of 65, at retirement.
[18] At
the time of re-assessment by the Occupational therapist, the
plaintiff was still unemployed. The expert
further noted that
employers rarely hire individuals with physical limitations not
sustained in their working environment. The
plaintiff has been
rendered an unequal competitor in the open labour market.
[19]
The Industrial psychologist recommends treatment as recommended by
the relevant experts and that her physical
limitations be addressed
by a significantly higher than normal post-accident contingency
deduction when comparing her to uninjured
peers. The expert concluded
that the motor vehicle accident and the sequalae thereof has had a
negative impact on the plaintiff’s
working ability and
competiveness in the open labour market.
THE
ACTUARY
[20]
The plaintiff’s loss of earnings since the collision and her
future loss of earnings have been calculated
by Mr Itai Karidza, a
consulting actuary of the firm Tsebo Actuaries on 16 February 2024.
The basis of the calculations which were
not counter-attacked,
included the minutes of the Industrial psychologist and the actuary’s
interview with the plaintiff.
According to the expert the
plaintiff was employed as a petrol attendant at the time of the
accident. She was earning R52 000
00 per annum in terms of 2021
monetary terms. After the accident, she was on unpaid leave until
October 2021. The contract of employment
ended in November 2021. The
plaintiff was employed thereafter but the contract of employment was
not renewed due to her limited
work potential which was a result of
pains that she suffered.
[21]
The capital value of the plaintiff’s past loss of earnings,
calculated at a 10 % contingency amounted
to R82 000 00. Her
future loss of earnings calculated at a 20% was amounted at
R2 595 444. The total capital value
of the plaintiff’s
loss of earnings including contingencies amounted to R2 677 673.00
SUBMISSIONS
[22] It
is submitted that as a result of the accident the plaintiff will not
be able to compete fairly in the
open labour market and that career
opportunities for her are slim despite the fact that she has obtained
a tertiary qualification.
The fact that she is currently not employed
attest to her unfortunate limitations. She might need to be
accommodated by a sympathetic
employer. She might have to retire
earlier than the normal age of retirement. It is not in dispute
that she should be compensated
fairly applying just and reasonable
contingencies.
[18] It was
argued on behalf of the defendant that the plaintiff has failed to
prove chances of career progression with
permanent employment due to
the fact that she was never employed on a permanent basis nor ever
promoted in her history of employment,
the only allegation of
permanent employment was in relation to her work at as a shopping
assistant at Spar. Proof of employment
at Spar was never obtained.
Neither were the occupational nor the industrial experts able to
follow such information as they did
with her other employers. There
is no evidence in support of the Industrial expert’s
postulation that she would have reached
her career ceiling by the age
of 45. Her age and pre-accident chronic condition should actually
aggravate contingencies.
[19] The onus
rest on the plaintiff to prove on a balance of probabilities that she
has suffered loss of income and
earning capacity and the extent of
her loss. The only experts that filed reports are those appointed by
the plaintiff. From the
said reports the plaintiff suffered serious
injuries and pecuniary loss. The plaintiff has discharged the onus
that rests on her.
APPLICABLE
LEGAL PRINCIPLES
[20] It
is trite that in the assessment of these kinds of damages, which
cannot be assessed with any amount of
mathematical accuracy; the
court has a wide discretion.
[1]
The principles applicable to calculation of loss of earnings and
earning capacity were set out in
Southern
Insurance Association Ltd v Bailey NO
[2]
Nicholas JA
stated as follows:
“
In a case where
the court has before it material on which an actuarial calculation
can usefully be made, I do not think that the
first approach offers
any advantage over the second. On the contrary while the results of
an actuarial computation may be more
than “informed guess”,
it has the advantage of an attempt to ascertain the value of what was
lost on a logical basis;
whereas the trial judge’s “gut
feeling” (to use the words of appellant’s counsel) as to
what is fair and
reasonable is nothing more than a blind guess (cf
Goldie v City Council of Johannesburg 1948(2) SA 913 (W) at 920)”
[21]
In
Herman
v Shapiro
[3]
the court said the following:
“
Monetary damage
having been suffered, it is necessary for the court to assess the
amount and make the best use it can of the evidence
before it. There
are cases where the assessment by the court is very little more than
an estimate, bur even so, if it is certain
that pecuniary damage has
been suffered, the court is bound to award damages”
CONTINGENCIES
[22] It
is trite that general contingencies cover a wide range of
considerations which vary from case to case.
Five percent and 15
percent for past and future loss of earnings, respectively, have
become accepted as ‘normal’ contingencies.
The usual
considerations include taxation, early death, employment, promotion
prospects, divorce etc. (Robert J Koch The Quantum
Yearbook 2015) The
actuarial took these factors into account.
General
damages have already been settled between the parties in the amount
of R500 000.
[23] I
agree with the Counsel for the defendant that higher than normal
contingencies to accommodate the plaintiff’s
history of
employment and pre-existing health should be applied. The plaintiff’s
loss of earnings will be adjusted as follows:
Pre- morbid
Uninjured
earnings R163 006 –40% R97
803
Injured
earnings R64 476 – 0% R64 476
Loss R33 328
Post- morbid
Uninjured earnings
R4 157 770 –35%
R2 702
550
Injured
earnings
R974 363—40%
R584 618 loss R2 117 932
Total
loss of earnings
R2 151
260
Order
[24]
The defendant is ordered to pay the following amounts
Loss
of earnings
R2 151 260
General
Damages
R500 000
Total
R2 651
260
1.
The defendant shall be liable for interest on the abovementioned
amounts, at the prescribed legal rate,
14 days after the date of this
order until date of payment.
2.
The defendant is ordered to pay costs on a party and party scale.
S
MSIBI
ACTING
JUDGE OF THE HIGH COURT
MPMALANGA
DIVISION MBOMBELA MAIN SEAT
Appearances
For
the plaintiff:
Mr
Mkhabela instructed by MH Mkhabela Attorneys, Hatfield Pretoria.
For
the defendant:
Advocate
Sithole instructed by Office of the State Attorney, Mbombela
[1]
AA
Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805.
[2]
1994(1) SA 98 (A)at 114
[3]
1926 TPD 367
at 379