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2024
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[2024] ZANCHC 93
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Molaoa v Road Accident Fund (1832/2019) [2024] ZANCHC 93 (6 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1832/2019
Date heard: 06-02-2023
Date delivered:
06-09-2024
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:
Yes/No
In
the matter between:
KOBISANG
MICHAEL MOLAOA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
WILLIAMS J
JUDGMENT
WILLIAMS
J:
1.
The plaintiff, Mr Kobisang Michael Molaoa,
who was a pedestrian at
the time, was injured in a road traffic accident on 23 September
2015. He has instituted a claim
for damages against the
defendant, the Road Accident Fund (RAF). The merits have
previously been conceded at 70% in favour
of the plaintiff. The
general damages have also been settled between the parties in an
amount of R550 000,00 as well
as an undertaking by the RAF in
terms of s 17(4)(a) of Act 56 of 1996. The remaining issue to
be considered is the plaintiff’s
loss of earnings.
2.
It is not in dispute that the plaintiff sustained
an injury to his
right ankle as a result of the accident. Dr PA Olivier, the
plaintiff’s orthopaedic expert describes
the injury in his
report as a Dupuytren fracture to the right ankle. During his
testimony he explained that it involved the
fracture of two bones,
one on the inside of the ankle and one on the outside. Despite
an open reduction and internal fixation,
the plaintiff has developed
osteoarthritis. The injury has affected the mobility of the
plaintiff.
3.
The plaintiff, who was 30 years old when the
accident occurred (37
years at the time of the trial), has a grade 10 qualification.
He upskilled himself in the building
trade from a general worker to a
skimmer and plasterer at the time of the accident.
4.
During 2015 he worked as a skimmer at Esmoené
Ceiling where he
had been employed since 2012. His work as a skimmer involved
carrying a toolbox and ladder, climbing and
balancing on the ladder
and stretching to neaten and even out ceilings before it gets
painted. He earned between R3000,00
and R5000, 00 per week
depending on the amount of work done.
5.
Some 8 to 9 weeks after the accident, and
after the plaster cast had
been removed from his ankle, the plaintiff attempted to return to
work but found that he could not wear
his safety boots because his
right foot started bleeding. As a result he had to leave the
site. About 3 months afterwards
he went back to Esmoené
but found that his position had been filled by someone else.
6.
During 2016 the plaintiff did not do any formal
work but was
supported by his wife and by doing piece work.
7.
From 2017 to 2019 the plaintiff was employed
by a shopfitting
business named Petite, where he did carpentry, skimming and the
installation of ceilings. The plaintiff
testified that he was
not employed at Petite full-time, but only when shopfitting contracts
were to be carried out. He earned
R1500, 00 per week on those
occasions. Petite’s contract came to an end sometime
after the middle of June 2019 which
was when he stopped working
there.
8.
At the beginning of 2020, the plaintiff started
working for Theron
Ceilings and Partitions, also as a skimmer, carpenter and installer
of ceilings. He earned R4000,00 per
month. Unfortunately
the Covid 19 pandemic struck and the plaintiff lost his job there at
the end of March 2020. Thereafter
he received about R3900, 00
per month for 3 months from the Unemployment Insurance Fund.
Since
then he has been unemployed and reliant on the R350,00 per month
Government grant which has been implemented for the unemployed
since
the pandemic.
9.
The plaintiff testified that post-accident
he has been suffering from
pain in his right foot but had to force himself to work despite the
pain and swelling of the right foot
caused by putting weight on it
when standing on a ladder, since he was desperate to put food on the
table for his family and had
no other means of earning a decent
income.
10.
The piece work he did when it became available and when he could
manage it physically, consisted of the installation of doors from
which he earned about R250, 00 per door. His evidence was
that
he could at times manage to install up to three doors per day but
that at times up to 3 months would pass without him having
any work.
He stated that he would not be able to work as a skimmer anymore
unless he was forced to do so due to his circumstances.
11.
The plaintiff’s evidence with regard to his ability to perform
work as a skimmer/plasterer is confirmed by the evidence of both Dr
Olivier and the plaintiff’s occupational therapist, Ms
B
Crouse.
12.
Dr Olivier testified that the plaintiff’s osteoarthritis would
have a negative effect on his ability to perform weight-bearing
activities. The osteoarthritis is progressive and is
responsible
for the plaintiff’s inability to negotiate uneven
or slippery surfaces or to balance on ladders or scaffolding.
The
plaintiff is expected to experience progressively more pain in
the right ankle. According to Dr Olivier there are only who
options available to provide the plaintiff with a stable and painless
ankle, i.e. an ankle arthrodesis or a total ankle replacement.
13.
An ankle replacement is however only recommended for elderly people
since it loosens very quickly – after about 5 years. An
ankle arthrodesis involves the fusion of bones within the ankle
which
results in stiffness and will probably leave the plaintiff with a
permanent limp. He will not be able to work in confined
spaces,
squat or balance properly. Either way he will not be able to
perform duties such as installing ceilings, negotiate
building sites,
carry toolboxes or stand on ladders.
14.
Ms Crouse, who during her examination of the plaintiff, performed
all
the standardised tests on him, was of the opinion that as far as
mobility is concerned, standing and repeated negotiation of
stairs
aggravated the plaintiff’s ankle pain. Long distance and
fast walking also increase his pain and swelling of
the ankle.
He relies heavily on the injured leg when going down on his haunches
and has poor balance when standing on the
injured leg alone.
The plaintiff experiences pain in cold and rainy weather, when he has
to wear formal shoes or safety boots
and his ankle swells when he is
required to carry a heavy weight.
15.
Ms Crouse, who has been informed by the plaintiff of his work history
and functions, considered the plaintiff to be a semi-skilled worker
merely because he has no formal qualifications. She was
further
of the opinion that although the plaintiff had worked for some time
post-accident, it was done with pain and at risk to
himself since he
has poor balance as well as creating a safety concern for his
employers.
16.
Both Dr Olivier and Ms Crouse assessed the plaintiff and compiled
their reports during 2018, some 5 years before the matter came to
trial. Despite some criticism from Mr Mogano for the RAF,
that
updated reports had not been compiled and provided, both these
witnesses stood by their reports on the basis that it was a
known
fact that osteoarthritis is a degenerative disease and that the
plaintiff’s condition would not have improved over
the course
of the intervening years, but would have worsened.
17.
Dr E J Jacobs, an industrial psychologist, also testified on behalf
of the plaintiff. He had interviewed the plaintiff and had
insight into the reports of Dr Olivier and Ms Crouse. He
also
made use of two invoices which the plaintiff had supplied relating to
work he had done for Esmoené just before the
accident during
September 2015 as well as Koch’s Quantum Yearbook of 2020 to
give an opinion on the plaintiff’s loss
of earnings claim.
18.
Dr Jacobs compiled his report in July 2020 and has had regard to
the
plaintiff’s history up until that stage. He informed that
he had prepared an addendum to the report during September
2022.
This addendum has not been filed, but is according to Dr Jacobs of no
consequence as the plaintiff has remained unemployed
after the
initial report.
19.
Be that as it may, based on his assessment of the plaintiff and the
supporting documentation, Dr Jacobs opined that the plaintiff was a
semi-skilled worker who was relatively stabilized in his career
before the accident. He had worked as a subcontractor for
Esmoené for 4 years before the accident and based on the
invoices dated 3 September 2015 and 22 September 2015, Dr Jacobs
determined an income of R3315, 00 per week, which translates to
R152 490, 00 per year in 2015. This amount falls within
the parameters of Koch’s Annual Income Tables 2020 (as
adjusted) for semi-skilled workers. Dr Jacobs testified that
the plaintiff had informed him that he sometimes earned up to
R5000,
00 per week, but that he did not take that into account as it could
not be proved. No provision had been made by Dr
Jacobs for
career improvements because the plaintiff was self-employed.
Based on the information supplied to Dr Jacobs by
the plaintiff, he
determined the plaintiffs injured income at R54 000, 00
per year. The plaintiff, who is not
suitable for sedentary
work, as he has no skills in this regard, would only be able to
secure light jobs (as per the report of
Ms Crouse) and will not earn
more than R54 000,00 per year in his injured state.
20.
Dr Jacob’s report, which stipulated the retirement age for
the
plaintiff, both in the injured and uninjured state as 65 years (since
Ms Crouse, although suggesting an early retirement, did
not stipulate
an age was used as a guideline for the actuarial calculation of the
plaintiff’s loss of earnings.
21.
Mr Willem Boshoff of Monroe Forensic Actuaries, compiled an actuarial
report based on the data supplied by Dr Jacobs without taking into
account any apportionment of negligence or contingencies. Mr
Boshoff calculated the plaintiff’s past loss of earnings at
R729,00.00, his future loss of earnings at R2 342,500.00,
bringing the total loss of earnings to an amount of R3 071,500.00.
22.
During cross-examination, Mr Boshoff was confronted with the fact
that Dr Jacobs, in his report which was relied of for the actuarial
calculations, did not take into account all the income made
by the
plaintiff post-accident, which would have the effect of increasing
his earning capacity post-accident
23.
The only income, as far as I could discern from Dr Jacobs’
report, which he failed to mention, relates to the piece work done by
the plaintiff and a possible one month’s salary received
from
Theron Ceilings before the Covid-19 lockdown. According to Mr
Boshoff, should there be uncertainty about income in the
region of
R50 000,00 it would have no real impact on the claim.
Should unaccounted for income be in the region of R100 000.00
it
would affect the claim for future loss of earnings but could be
addressed with contingencies.
24.
It is clear from the plaintiff’s evidence however that the
piece work (installation of doors) had been done only when he was
physically able to do it and even then the work was not regularly
available. In my view, taking into account the medical evidence
and that of the plaintiff that he will not in future be able
to
perform work as an installer of ceilings or a skimmer, the amount of
R54000,00 per year which has been determined by Dr Jacobs
as his
injured earning capacity is generous and in favour of the RAF.
25.
Another issue which arose during Mr Mogano’s cross-examination
of Mr Boshoff and during his argument, was that the past and future
uninjured earnings of the plaintiff have been calculated without
taking into account his tax liability in his uninjured state.
The argument is that it would be unjustifiable for the plaintiff
to
have more money in his pocket as a result of a loss of earnings award
than what he would have had had the accident not occurred.
26.
There are certain misgivings which I have with this line of
argument.
Firstly, the plaintiff was never cross-examined on
his tax liability prior to the accident; secondly it must be kept in
mind that
the plaintiff was a sub-contractor for Esmoené prior
to the accident. Or, at the very least he was regarded as a
sub-contractor
for Esmoené. The invoices from Esmoené
and on which his past and future uninjured earnings have been based,
refer to him as a sub-contractor and no deduction for tax has been
made. I would assume that he would have been responsible
personally for paying his taxes. Whether he paid tax and/or
whether he would have been entitled to the benefit of tax deductions
is not known. These are the issues that should have been
canvassed with the relevant witnesses. Mr Boshoff has testified
that uncertainties with regard to earnings are often a challenge to
actuaries but that it could be addressed by the application
of
appropriate contingencies. I agree with this view.
27.
The only issue which remains then is the assessment of the
contingencies
to be applied. Mr Jankowitz has argued that there
is no need to deviate from the normal contingency adjustments of 5%
to
the plaintiff’s pre-accident earnings and 15% to his future
earnings, taking into account the usual vicissitudes of life and
the
fact that the plaintiff was willing to abide with the actuarial
calculations of 2020 and not insist on an updated calculation
which
would presumably result in an increased award for loss of earnings.
Mr Mogano on the other hand has suggested that
the contingencies be
fixed at 40% pre-accident and 50% post-accident which would make
provision for the deduction of tax to the
actuarial calculations, in
addition to the usual contingencies.
28.
I do not agree with either of these submissions. The
contingencies
suggested by Mr Jankowitz are too low in my view,
taking into account the nature of the plaintiff’s employment or
work skills.
As a subcontractor he was essentially
self-employed. In addition to the normal contingencies with
regard to a shorter life
expectancy, unemployment due to ill-health,
accident, retrenchment, his employment is also dependant on the state
of the country’s
economy and specifically the building
industry. His past employment history, pre-Esmoené, as
can be gleaned from the
report of Ms Crouse, shows two
retrenchments. Another example of the fluctuations within the
building industry can be found
in the plaintiff’s inability to
obtain employment post-accident for close to 6 months after the Petit
contract had come to
an end.
29.
The contention by the RAF regarding the contingencies to be applied,
is highly speculative and not based on any evidence regarding the
plaintiff’s pre-accident tax liability. While it
is so
that the determination of contingencies would of its nature be
speculative, because no one has the ability to see what the
future
holds, the assumptions made should at least be consistent with the
evidence before court.
30.
In my view, taking into account all the relevant circumstances, the
appropriate contingencies to apply are that of 10% to past loss of
earnings and 25% to future loss of earnings.
31.
The RAF has not called any witnesses in this matter. It is
not
in dispute that the plaintiff has suffered a loss of earnings and
will in future suffer a loss of earnings. The only
issues
challenged by the RAF were those I have dealt with herein. The
award for loss of earnings will be determined based
on the
contingencies I have proposed above.
32.
The actuarial calculation based on the information received from
Dr
Jacobs can in my view safely be used as a point of departure.
The result is as follows:
Past loss of
earnings R729,000.00
Less
10%
R72,900.00
Subtotal
R656,100.00
Future loss of
earnings R2 342,500.00
Less
25%
R585,625.00
Subtotal
R1756,875.00
Total loss of earnings
before
apportionment R 2
412,975.00
Less
30%
R723,892.00
R1689,083.00
33.
General damages have been agreed upon between the parties in the
amount of R550,000.00. After apportionment the amount to be
awarded is R385,000.00.
34.
There is one further issue which I need to determine. At the
commencement of the trial the plaintiff brought an application in
terms of Rule 38(2) for the evidence of one or more or all of
their
expert witnesses to be adduced by way of affidavits. The
reasons given for this application were that Dr Olivier, Ms
Crouse
and Mr Boshoff were all from Cape Town and that their attendance in
court would result in enormous costs for the plaintiff
especially in
light of the fact that their reports did not appear to be challenged
by the RAF, which had not filed any countervailing
expert reports.
This application was opposed by the RAF on the basis that it had not
admitted the plaintiff’s expert
reports, that it had a right to
test the evidence of the plaintiff’s witnesses and that the
plaintiff should have been aware
of the cost implications of
appointing experts outside of this province. In its opposing
affidavit the RAF suggested that
the plaintiff in any event has an
alternative option which would not impinge on the RAF’s right
to test the plaintiff’s
witnesses and that is that these
witnesses testify virtually should I deem it reasonable for them to
do so.
35.
I did not make a ruling on this application at the time since I did
not have all the facts before me. The matter had been set down
for hearing initially for two days. The plaintiff and
Dr
Jacobs, who is from Kimberley, were available and ready to testify,
Ms Crouse was available to testify virtually. Mr Mogano
reserved his
rights with regard to the actuarial evidence based on what Dr Jacobs
would testify and it was not clear whether Dr
Olivier would be
available to give his testimony virtually on the days reserved for
the trial.
36.
The matter resolved itself however in that the initial two days were
used in hearing the evidence Dr Jacobs and the plaintiff in court and
I allowed the evidence of Ms Crouse to be heard virtually.
The
evidence of Dr Olivier and Mr Boshoff were heard virtually on the
postponed dates. The only issue remaining with regard
to the
Rule 38(2) application, is that of costs.
37.
In this regard it must be mentioned that the Rule 38(2) application
was served on the State Attorney one and a half months before the
hearing of the matter. The RAF filed its opposing affidavit
a
day before the hearing. In all fairness to the plaintiff and
his attorneys, they could not have known the attitude to be
taken by
the RAF and to have prepared for the relevant witnesses to testify
virtually. On the other hand the plaintiff and
his attorneys
cannot as a matter of course expect their expert witnesses’
evidence to be addused on affidavit simply because
there was no
timeous opposition from the RAF. The granting of such an
application lies within the discretion of the court.
But be
that as it may, no court time was wasted except for the time it took
to argue the application, which was a matter of minutes.
In my
view the appropriate costs order in this application would be that
each party has to pay its own costs.
38.
The only remaining issue is that of the costs of the action.
There is no reason why the plaintiff should not be entitled to his
costs, inclusive of the qualifying costs of his experts.
The
following order is made:
1)
The defendant is ordered to pay the plaintiff the amount of
R1 689,083.00 (one million six hundred and six hundred and
eighty
nine thousand and eighty three Rand) in respect of loss of
earnings.
2)
By agreement, the defendant is ordered to pay the plaintiff
R385,000.00 (three hundred and eighty five thousand Rand) in respect
of general damages.
3)
The defendant will pay interest on the amounts in paragraph 1
and 2 above at the applicable statutory rate calculated fourteen (14)
days from the date of judgment to date of full and final payment.
4)
By agreement the defendant will provide the plaintiff with an
undertaking in terms of s 17 (4)(a) of Act 56 of 1996.
5)
The defendant is to pay the plaintiff’s taxed or agreed
costs (inclusive of VAT), which costs will include the qualifying,
attendance and travelling expenses (where applicable) of the
following expert witnesses: Dr Everd Jacobs, Dr Pieter Olivier, Ms
Benita Crouse.
6)
The plaintiff shall, in the event that costs are not agreed,
serve the Notice of Taxation, alternatively the notice contemplated
in Rule 70(3B) of the Rules, whoever is applicable, on the
defendant’s attorney of record.
7)
The plaintiff shall allow the defendant 14 (fourteen) days
within which to pay the agreed or taxed costs after which the
defendant
will pay interest thereon at the prescribed rate of
interest to date of full and final payment.
8)
Each party is to pay its own costs in the Rule 38(2)
application.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv D
Jankowitz
P
Joubert Inc
For
Defendants:
Mr
Mogano
State
Attorney