About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 77
|
|
Sambo v Road Accident Fund (2469/2021) [2024] ZAMPMBHC 77 (25 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
25
October 2024
CASE
NO:
2469/2021
In
the matter between:
CHRISTABEL
BELLAH SAMBO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
Mazibuko AJ
Introduction
[1]
The plaintiff, Miss Christabel Bellah Sambo (
Ms
Sambo
), instituted a claim against the
defendant, the Road Accident Fund (
RAF),
for damages she suffered as a result of injuries she sustained on 1
March 2019 when a motor vehicle driven by an identified driver,
travelling on D797 road, Sasol filling station, KaMhlushwa,
Mpumalanga Province, collided with her.
Facts
[2] At the time of
the accident, Ms Sambo was a pedestrian, 26 years of age and an
intern plumber. Merits were settled at
100% in her favour.
[3]
The parties agreed that the issue before the court
for determination was quantum for past and future loss of income.
[4]
The court granted the application, which was by consent between the
parties, for the evidence to be adduced by way of
affidavits in terms
of rule 38 of the Uniform Rules of Court
[1]
.
[5] The oral
evidence of the orthopaedic surgeon, occupational therapist, clinical
psychologist, and actuary was dispensed
with.
Issue
[6]
Whether Ms Sambo has made out a case for her claim of loss of
earnings.
Evidence
Oral evidence
[7] The plaintiff
testified and called one witness, the Industrial Psychologist, Mr
David
de Vlamingh.
Ms Sambo
[8]
Ms Sambo testified that she sustained injuries due to the accident
and received medical treatment.
She held a
National Certificate in Plumbing (NQF 4) Skills Programme through
Mpumalanga Regional Training Trust ("MRTT")
as a workplace
trainer in learnership. At the time of the accident, she was an
intern plumber receiving a stipend of R1 600 from
November 2018.
After the accident, she was home. She recovered over a period of
three to four months.
[9]
Upon returning to her plumber internship, she struggled to perform
heavier tasks, such as using a wheelbarrow to carry
sandbags weighing
25kg, and carrying plumbing pipes, geysers, and bricks for draining
systems. She resigned after two weeks of
her return as she
experienced headaches and dizziness. She was using braces and walking
devices. She could not complete her plumbing
practical due to the
sequelae of the accident.
[10]
She then started to work as an Assistant Teacher on a contract basis
until November 2022. She coped with typing on a
computer for 30
minutes and other office-based work. She has been unemployed and
financially supported by her parents since then.
She commenced
studying for a Diploma in Business Administration. However, she could
not finalise it due to lack of finances.
[11]
Under cross-examination, she conceded that her internship would
commence in November 2018 and continue until 2021. However,
due to
Covid-19, it stopped in March 2020. She was away from the internship,
recuperating at home from March 2019 until August
2019.
Industrial
psychologist
[12]
By qualification, Mr David de Vlamingh is an industrial psychologist.
He assessed Ms Sambo on 13 February 2023. He testified
on Ms Sambo's
education and employment history. In his view, Ms Sambo would never
be a plumber due to the accident. She can only
do sedentary work
following the accident. According to her erstwhile employer's
certificate at the time of the accident, she received
a monthly
stipend of R1 600.00.
[13]
He concluded that before the accident, Ms Sambo was fully able to
perform her employment duties as an Intern Plumber,
which can be
regarded as medium physical demand with occasional heavy demand work.
Uninjured, she would have been able to complete
her internship
successfully at the end of 2019. She would do a Trade Test and secure
employment within three months, starting on
1 April 2020, as a young,
inexperienced but qualified plumber.
[14]
As a qualified Plumber, her income would have started at the Paterson
B3 level, around R22 167 monthly in 2020. After
gaining five years of
relevant experience and practical skills, she would have progressed
to the median of the Paterson C2 level,
R45,833 per month in 2023.
[15]
Her earnings would probably have peaked at the median of the Paterson
C4 level, around R63,667 per month, by age 45.
Thereafter, she would
have continued to receive annual inflationary increases until her
retirement at 65.
[16]
Under cross-examination, he testified that plumbing fell under
Artisan, and the trade test in plumbing was the pinnacle
that could
be attained. Between 2021 and 2022, for a period of six months, she
was employed on a contract basis at a primary school
as an assistant
teacher, earning R3 500 per month.
[17]
He conceded that though Ms Sambo initially wanted to be a lawyer,
that needed more cognitive capability, and so did the
Diploma in
Business Management. He could not clearly explain what informed his
postulation beyond the C2 level and the measures
used to place Ms
Sambo in a median quartile. Also, to be compensated for the
difference between the plumbing and office administration,
except
that she registered for the Diploma in Business Management and
dropped it for the plumbing, and when she returned to it,
she could
not continue as she did not have funds to finance the studies.
Expert reports
Orthopaedic
surgeon
[18]
The court was referred to a report compiled by an orthopaedic surgeon
who assessed Ms Sambo. It revealed
that she
sustained the following injuries: a
fracture T11 and T12 of
the thoracic spine, compression fractures of the lumbar spine,
acceleration/deceleration to the cervical
spine, soft tissue on the
elbow, left knee (internal derangement of the knee joint) and major
post-traumatic depressive disorder.
[19]
She complained of neck pain, stiffness of the neck, headaches, pain
between shoulder blades, and colder weather pain.
To alleviate the
pain, she takes pain medication, two tablets once to twice a week.
There is moderate spasm of the neck muscles.
The cervical spine
demonstrates no visible fractures. The thoracic and lumbar spines
demonstrate wedge compression fractures. She
could be treated with
non-surgical treatment, pain medication and anti-inflammatory drugs.
[20]
He concluded that she was ill-suited to do her work as a plumbing
intern or a plumber as she could not carry bags of
cement or pipes
and could not bend or squat to lay pipes. She can do administrative
work but with adequate thoracic support.
Clinical
psychologist
[21]
The clinical psychologist concluded that the accident was a traumatic
life event for Ms Sambo, which resulted in physical
and psychological
injuries. It strained her already limited psychological resources and
coping abilities, resulting in symptoms
of stress and trauma, as well
as depression, as it occurred shortly after her brother's death.
[22]
She opined that Ms Sambo suffered from severe symptomology, which
indicated a significant loss in psychological functioning.
She tends
to become easily overwhelmed. She displayed symptoms of PTSD, which
include changes in memory, attention, planning, and
problem-solving.
[23]
She concluded that Ms Sambo appeared cognitively intact and did not
report significant or apparent changes in her cognitive
functioning
following the accident. In her present psychological condition, she
is mainly unsuitable for employment. However, this
is expected to be
short-term, as access to the recommended interventions will improve
her functioning and ability to secure and
sustain employment.
Occupational
therapist
[24]
The Occupational therapist noted that she was right-handed and
wearing a knee guard, with moderate to severely restricted
movement
of the right shoulder and elbow. A flexion contracture is present at
the elbow, and she uses an elbow guard. The right-hand
grip strength
is moderately impaired.
[25]
In her opinion, she will benefit the most from an intense
rehabilitation treatment program for her pain. She is suited
to tasks
of a sedentary selected light physical nature to lessen the strain on
her affected joints to avoid speedy deterioration
of the affected
joints and delay surgery for as long as possible. With the
recommended treatment, her physical condition will most
likely
improve, and it is anticipated that she will experience a reduction
of pain in future.
Actuary
[26]
The actuary stated that they expressed no opinion on the assumed
income but
simply
did calculations based on their interpretation of the Industrial
psychologist's recommendations. The actuarial calculation
was done
and presented as follows:
Past Loss:
Pre-morbid:
R897 255.00
Post-morbid:
R24 200.00
Total:
R873 055.00
Future Loss:
Pre-morbid:
R11 579 376.00
Post-morbid:
R7 546 002.00
Total:
R4 033 375.00
[27]
The defendant did not lead any evidence nor did they appoint experts.
They informed the court they would rely on the
plaintiff's experts
and exercised their right to cross-examine where necessary.
Parties'
submissions
[28]
Ms Sambo, through her counsel, Ms Delport, submitted that the court
was required to accept the expert evidence as the
defendant called no
expert witnesses to counter the quantum claim. She submitted that a
10% pre-morbid and 0% post-morbid deduction
was fair with respect to
past loss of earnings. Concerning future loss of earnings, she stated
a 25% pre-morbid and 35% post-morbid
on future loss of earnings was
fair and reasonable. She further argued that an amount of R4 562
960.20 in respect of loss of earnings
was fair and reasonable.
[29]
The defendant, through its counsel, Ms Sigwavhulimu, argued that the
past loss was not 24 200 but R9 600 as all the interns
enrolled with
Ms Sambo were terminated due to COVID-19 in March 2020. The
Industrial psychologist did not give a fair postulation
as her
postulations were without evidence, as raised during
cross-examination. She suggested a contingency of 15% and 20% in
relation
to pre-morbid and post-morbid with respect to future loss of
earnings and argued that R578 968.20 as a final award to Ms Sambo was
fair and reasonable.
Discussion
[30]
Experts' reports give opinions on facts and documents provided to
them by claimants. I have concerns about accepting
the industrial
psychologist's evidence and actuarial report without reservations if
regard is given to the evidence before the
court.
Regarding
past loss of earnings, the loss was stated at R24 000. However, it
was clear Ms Sambo lost earnings from September 2019
to February 2020
as the internship stopped in March 2020 due to Covid-19. There is
uncontested evidence that Ms Sambo was contracted
as an assistant
teacher until November 2022, earning R3 500 per month. She left at
the end of her contract. There can be no loss
attributed to RAF in
this regard.
[31]
The assumption that Ms Sambo would have done a Trade Test and secure
employment within three months, from 1 April 2020,
as a young,
inexperienced, but qualified plumber cannot be correct. The
uncontested evidence before the court is that the internship
was
scheduled to run from 2018 until 2021. The internship programme was
stopped in March 2020 due to Covid-19. Ms Sambo, together
with her
colleagues the interns in her then class, would not have received any
stipends after March 2020, so there can be no loss
due to the
accident. If any, it would be due to Covid-19. Therefore, the
actuarial postulations of an income loss of R266 000 per
year
calculated from 1 April 2020 are incorrect and are based on no facts
nor collateral evidence. Therefore, they cannot be accepted.
[32]
It is trite that when the court considers an appropriate quantum, it
would be guided by previous comparable cases. In
respect of
future
loss of earnings, Robert Koch,
on page
100 of
The Quantum Yearbook
,
states that
a sliding scale used is 0.5% per year
of employment to retirement, that is, 25% for a child, 20% for youth
and 10% for middle age.
Ms Sambo was about 31 years old at the time
of calculation and, therefore, falls within the 20% sliding scale
based on the Robert
Koch Quantum yearbook.
[33]
The
determination of the general contingency deduction to be made falls
squarely within the discretion of the court, which must
decide what
is fair and reasonable.
[2]
[33]
A contingency deduction is made so that any possible and relevant
future event which might otherwise have caused or influenced
the
extent of the damages sustained by the plaintiff is considered.
[3]
Contingencies have been described as 'the vicissitudes of life, such
as illness, unemployment, life expectancy, early retirement,
and
other unforeseen factors.
[4]
The
courts have recognised, however, that the fortunes of life are not
always adverse; they may be favourable.
[5]
[34] As they stand,
the actuarial calculations are based on the scenario in which Ms
Sambo will be employable and earn the
income she would not have
earned pre-morbid. There was no evidence supporting the fact that she
was unemployable. In fact, after
the termination of the internship,
she was employed as an assistant teacher. There is unchallenged
evidence that she is compromised
by the injuries sustained. She could
not pursue her plumbing career due to the accident. Her performance
is impacted and compromised.
However, she can pursue other career
paths. She is currently unemployed and can only do sedentary work.
[36] Having
considered the evidence before me, which must influence the
assessment of the general contingencies to be applied
and the content
of the expert reports. The court does not accept the actuarial
calculations of a 10% spread (5% / 5%) for the past
loss of earnings
between April 2020 and November 2022. However, Ms Sambo may be
compensated from September 2019 for the past loss
of earnings.
[37] Regarding
future loss of earnings, I could find no justification for applying
the median scale. In my view, the lower
quartile is justified,
considering the plumbing industry. Ms Sambo is compromised, and her
future earnings from plumbing and any
other work will be affected due
to the accident. However, whilst recuperating in 2022, she could
still secure sedentary employment.
Sadly, the experts' reports do not
show an accurate picture as per the given facts and evidence. The
postulations do not recognise
the interruption caused by COVID-19; it
is as if all was due to the accident, contrary to Ms Sambo's evidence
and the uncontested
evidence and common facts before the court.
[38]
In Hersman v Shapiro and Company
[6]
,
the court stated 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 little more than an
estimate, but even so, if it is certain that
pecuniary damage has
been suffered, the court is bound to award damages.
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.
It is manifest that
either approach involves guesswork to a greater or lesser extent. But
the court cannot for this reason adopt
a non possumus attitude and
make no award.'
[39] The court has,
therefore, considered all the evidence, factors and the experts'
reports and decided to make a round estimate
of an amount which, in
its view, is fair and reasonable, notwithstanding that the basis of
the Industrial psychologist's postulations
was not reliable as they
were not based on the available evidence. His report was admitted
into evidence, and made concessions
regarding the inaccurate
calculation of the past loss.
[40] The Industrial
psychologist was persistent about his election of the C2 level and
quartile, as well as the Diploma in
Business Administration issue in
calculating the loss, even when he was referred to the available
evidence contrary. He did not
appear to independently assist the
court but seemed to be assisting the plaintiff's case. Generally,
experts are not for parties
as such but to independently assist the
court according to their exposure and speciality regardless of who
among the parties appointed
them. The court believes that an
appropriate award for the plaintiff's total loss of earnings must be
in the amount of R2 100 000
(two million one hundred thousand rand).
[41] Concerning
costs, the plaintiff has been successful, and there is no reason why
she should not be entitled thereto.
[42] Consequently,
the following order is granted.
Order:
1.
The defendant is to pay 100% of plaintiff’s proven or agreed
damages.
2.
The defendant is ordered to pay the plaintiff the amount
of
R2 100 000
(
two
million one hundred thousand rand)
, with respect to loss of
earnings, within 180 days from the date of this order.
3.
The above-mentioned amount is to be paid to the
plaintiff's Attorneys, Frans Schutte & Mathews Phosa Inc.
Trust account with
account number 030355818
At Standard Bank, White
River.
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 the date of
granting 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 1 March 2019, 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 of the instructing-
and correspondent attorneys, as
agreed between the parties, and such costs shall include the
following:
6.1
The day fees of counsel on scale B, Adv. I E M Delport, as
well as reasonable preparation fees, including consultations with
industrial
psychologist and plaintiff and drafting of heads of
argument in preparation for trials, as set down for 19 August 2024
and 20 August
2024, respectively;
6.2 The reasonable
costs of the plaintiff's Attorney for the first Judicial case
management on 28 February 2024 and special
judicial case management
on 30 April 2024, which includes drafting of practice note, pre-trial
minute and indexing and paginating
of bundle and reasonable
photocopies relating thereto, attended and appearance by plaintiff's
Attorney including preparation for
same.
6.3
The costs of all medico-legal, actuarial, addendum, joint reports and
opinion letters, obtained and/or served by the
plaintiff, as well as
such reports furnished to the defendant or it's Attorney or in the
defendant's possession, including the
costs of any special
investigations (
X-rays, MRI scans, blood test etc.)
requested
by the relevant expert.
6.4 The reasonable
costs consequent to attending the medico-legal examinations.
6.5
The costs relating to confirmatory affidavits by medico-legal experts
and the reservation fees of all medico-legal experts
and specifically
the fee of the industrial psychologist for trial
as set down
for 19 August 2024 and 20 August 2024, respectively.
6.6 The cost of
consultations with the plaintiff to consider the Offers of settlement
(if any).
6.7 The costs of
interpreter for trial on 19 August 2024.
7. Should the
Defendant fail to make payment of the taxed or agreed costs within
180 days, then the defendant will be liable
for payment of interest
on the taxed costs or agreed costs calculated from 15 days from the
date of the taxation or settlement
at the tempore morae rate.
8. There is a valid
contingency fee agreement.
N.G.M. Mazibuko
Acting Judge of the
Mpumalanga Division, Mbombela
This
judgment was handed down electronically by circulation to the
parties' representatives by email.
Representation:
For
the Plaintiff:
Attorneys
for the Plaintiff:
Ms
IEM Delport
Frans
Schutte & Mathews Phosa INC
For
the Defendant:
Attorneys
for the Defendant:
Heard:
Date
of Judgment:
Ms
D.E. Sigwavhulimu
State
Attorney (Mbombela)
19
August 2024
25
October 2024
[1]
Act
59 of 1959
[2]
Fulton v Road Accident Fund
2012 (3) SA 255
(GSJ), at paragraphs
[95] to [96]; and Nationwide
Airlines
(Pty) Ltd (in liquidation) v SA Airways (Pty) Ltd
[2016] 4 All SA
153
(GJ), at paragraph [147].
[3]
Erdmann v Santam Insurance Co Ltd
[1985] 4 All SA 120
(C); Ncubu v
National Employers General
Insurance
Co Ltd
[1988] 1 All SA 415
(N); and Burns v National Employers
General Insurance Co Ltd
[1988] 3 All SA 476
(C).
[4]
Road Accident Fund v Guedes
2006 (5) SA 583
(SCA), at paragraph [3].
[5]
Southern Insurance Association v Bailey NO, n 1, supra, at 117B.
[6]
1926
TPD 367