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[2024] ZAECQBHC 62
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Strydom v Road Accident Fund (833/2022) [2024] ZAECQBHC 62 (8 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
Not
reportable
Case No.: 833/2022
In
the matter between:
ERIC
STRYDOM
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
Noncembu
J:
[1]
The plaintiff lodged the current action for
damages arising from a vehicle collision which occurred on 13 April
2019 in Gqeberha.
As sequelae of the collision, he sustained serious
orthopedic injuries more specifically, a right compound (bone pierced
the skin),
comminuted (fracture in two or more sites), proximal tibia
and fibula fracture, a right talus head intra-articular fracture and
a right tibia posterior eminence evulsion fracture.
[2]
Subsequent to the issue of summons, certain
issues became settled between the parties and on 3 December 2023 an
order of court was
obtained wherein,
inter
alia
; liability was conceded for 100%
of such damages as the plaintiff may prove; the defendant was ordered
to pay R550, 000 in respect
of general damages and payment of an
amount of R1,500, 000 as interim payment in respect of plaintiff’s
claim for past and
future loss of earnings and earning capacity was
ordered.
[3]
Initially the trial was set to proceed on
the issues of past hospital and medical expenses as well as the
plaintiff’s claim
for past and future loss of income and
earning capacity. Prior to the hearing however, the parties, by
agreement, sought and obtained
an order that the claim for past
hospital and medical expenses be separated from the claim for past
and future loss of income and
earning capacity and be postponed
sine
die.
Accordingly, the only issue for
determination before this court is in respect of the plaintiff’s
claim for past and future
loss of income and earning capacity.
[4]
In the amended particulars of claim the
plaintiff is claiming an amount of R7, 022,492.50 in respect of his
claim for past and future
loss of income and earning capacity. The
defendant has filed a plea of no knowledge to the claim.
The Expert Evidence
[5]
Pursuant to a pre-trial conference held on 8 February 2024, the
parties agreed that the following
documents may be admitted into
evidence without the necessity of formal proof:
(a)
the RAF 1 medical report by Dr M Swart, dated 9 May 2019;
(b)
the radiologist reports of:
(i)
Dr H Vawda, dated 14 April 2019;
(ii)
Dr H Vawda, dated 15 April 2019;
(iii)
Dr P Pretorius, dated 25 April 2019;
(iv)
Dr O Shenxane, dated 29 April 2019;
(v)
Dr P Pretorius, dated 29 April 2019;
(vi)
Dr O Shenxane, dated 15 June 2020;
(c)
medico-legal report by clinical psychologist, Mr I Meyer, dated 12
July 2021;
(d)
employment report by employment specialist, Mr D Williams, dated 24
March 2022;
(e)
the joint minute between occupational therapists, Ms R Shivambu and
Ms A van Zyl, dated 10 May
2023;
(f)
the joint minute between orthopedic surgeons, Dr B Perry and Dr S
Bismilla, dated 16 May
2023;
(g)
the joint minute between industrial psychologists, Ms A Engelbrecht
and Mr S Vilakazi, dated 31
May 2023; and
(h)
the actuarial calculation by Mr G Whittaker, dated 1 June 2023.
The Joint Minutes
[6]
In their joint minute the orthopedic surgeons, Dr Perry and Dr
Bismilla, agree on the following:
(a) that the plaintiff
presented with no pre-existing pathology prior to the accident. As a
result of the accident, he sustained
a right compound comminuted
proximal tibia and fibula fracture as well as a right talus head
intra-articular fracture. On 13 April
2019 an open reduction and
internal fixation of the right proximal tibia fracture was performed
with a plate and screws inserted.
He was discharged with conservative
management of the right talus fracture in the form of a frame walker
boot;
(b) that the plaintiff’s
present symptoms include pain in his right leg, ankle and foot
exacerbated by cold/inclement weather
and strenuous physical
activities; he is unable to stand for long periods of time, walk long
distances, jog or run. He currently
walks with a limp/ antalgic gait
and has a limited range of motion of the right ankle/ foot; and
(c) he is restricted to
sedentary or light duty-type of work.
[7]
Dr Perry is further of the view that the plaintiff sustained a
displaced right tibia posterior
eminence fracture / posterior
cruciate ligament evulsion fracture, which was not diagnosed in the
hospital records, but which is
apparent on a CT angiogram scan of the
right leg performed on 25 April 2019. (Dr Bismilla did not have
access to the scan.)
[8]
The occupational therapists, Ms Shivambu and Ms van Zyl agree that:
(a) the plaintiff’s
previous position could be regarded as having medium to heavy
physical demands;
(b) the plaintiff
demonstrated the residual physical capacity to manage a job with
light physical demands or a complete sedentary
job. They are thus of
the view that it is reasonable that the plaintiff did not return to
his job at Welfit Oddy after the accident
and that he is not best
suited to his previous position due to the specific physical demands
thereof; and their view is that
(c) the plaintiff will
find it difficult to re-enter the open labour market in his injured
state.
[9]
In a joint minute prepared between Ms Engelbrecht and Ms Vilakazi,
the Industrial psychologists,
on 31 May 2023, they agree that:
(a) the plaintiff holds a
grade 12 level of education;
(b) he completed CO2,
MIG, TIG and High-Pressure Vessel Welding Certificates between 2015
and 2016 and that he wanted to obtain
further qualifications in that
regard;
(c) he formerly held a
forklift and overhead crane operator license and was in possession of
a learner’s Code 14 license,
which was valid from February 2018
to February 2020;
(d) in respect of his
pre-morbid career and earnings, they agree on the following
postulation-
(i) the plaintiff would
have continued working at Welfit Oddy as a Grade 4 welder until
approximately the end of 2019;
(ii) towards the end of
2019 he would have pursued employment opportunities abroad in the
United States of America for approximately
three and a half years;
(iii) upon his return to
South Africa, he would have secured employment as a Grade 4 welder
and would have progressed further in
a technical capacity of coded
welder progressing to a Grade 5 welder by the age of approximately 43
years, where his career earnings
would have plateaued;
(iv) he would then have
continued until he reached the retirement age of 65 years; and
(v) the Metal and
Engineering Industries Bargaining Council (MEIBC) wage schedule and
the Koch (2020) earning ranges would have
found application;
(vi) he would have
enjoyed employer contributions towards his medical aid of 50%; and
(vii) employer
contributions towards provident fund of 8.5% of his basic salary; and
(viii) an annual bonus
(equivalent to a 13
th
cheque); as well as
(ix) allowances and
overtime.
(e) In respect of the
plaintiff’s post-morbid career and earnings, the joint minute
agrees on the following:
(i) the plaintiff was
unable to return to his previous position at Welfit Oddy after the
accident;
(ii) he has made attempts
to continue working in his injured state but he has not been able to
cope with the physical demands thereof
and sustain any of the
positions;
(iii) he is restricted to
positions with no physical demands, however, given his work
experience, skills, abilities and his aptitude,
he has limited
residual skills to offer the open labour market;
(iv) he will not be able
to find employment in a consulting, coaching or in a supervisory
capacity due to his experience and the
demands of such a role will
not be suited to his current condition;
(v) at best, he will be
suited to a sympathetic employment environment where his employer
will be reliant an accommodating and supporting
him. In the absence
of any existing employment relationship, this appears highly
unlikely;
(vi)
his post - morbid positions held and earnings are as set out in the
report of Ms Engelbrecht;
[1]
(vii) in the best-case
scenario, he may secure sympathetic employment from time to time in a
light duty capacity, where he will
at best earn approximately R4500
per month seasonally for three months of the year (2023 terms).
[10] In
addition to the above reports, a recruitment specialist, Mr David
Williams, filed a report dated 24 March
2023, pertaining to the
plaintiff’s employment prospects. He states in the report that
it is unlikely that the plaintiff
would obtain a position of a
sedentary nature given his basic educational record, lack of skills
and expertise within this field
and his various impairments. He
expresses the view that the open labor market offers a vast array of
candidates with related experience
and skills, good educational
levels who are able bodied who would receive preference ahead of the
plaintiff.
[11]
He is further of the view that the plaintiff is unlikely to obtain
sympathetic employment as these
types of employers are few and far in
between given the harsh economic climate and trading environment that
employers are exposed
to. He further asserts that one tends to find
that sympathetic employment is afforded to a person who is an
employee of a company
at the time of the accident. Very rarely would
one find an employer who is prepared to afford a new recruit such an
employment
opportunity.
[12]
He concludes by stating that it is unlikely that the plaintiff will
secure employment within the sedentary
and non-sedentary forms of
employment and that he will, in all likelihood, remain unemployable
for the remainder of his working
career.
[2]
Plaintiff’s
evidence
[13]
The plaintiff testified in support of his claim. His evidence, which
perhaps for obvious reasons, was not
seriously challenged, is
summarized below.
[14] He
is 31 years old, and he passed matric in 2010 without having failed
any grade in school. He started working
at Parmalat in 2010, where he
fulfilled various positions whilst still completing his matric. From
December 2013 until February
2015, he worked as a merchandiser, then
a packer and as a cashier at Spar in Blue Water Bay.
[15] In
February 2015, he started working for Furman Trading, a company that
is subcontracted to Welfit Oddy,
as a sandblaster. Whilst working at
Furman Trading, he completed certain welding qualifications after
hours with Welfit Oddy. Thereafter
he secured employment with Welfit
Oddy as a fabricator.
[16]
Welfit Oddy is in the business of building stainless steel
containers. In his position as a fabricator, the
plaintiff was
required to collect and assemble the various components necessary to
build the frame within which the container tanks
are placed. The work
he did was extremely physical, and it required the lifting of steel
products, climbing of ladders, etc. Part
of his job required the
manual lifting of steel beams sometimes weighing in the region of 500
kilograms when the hydraulic hysters
or cranes were not functioning.
[17]
When the accident occurred on 13 April 2019 he was working as a
fabricator at Welfit Oddy. He was not able
to return to work after
the accident other than to undergo certain medical examinations. He
was later informed in an HR meeting
that was held, that he could not
perform the functions of a fabricator, and that the only work he
could physically perform involved
computers (sedentary work), which
work he was not suitable for given his lack of experience and
qualifications. He was therefore
retrenched.
[18] As
a result of the accident, he sustained injuries in his right leg
where he sustained a fracture to his
right foot and his right knee.
He underwent surgery to his tibia/ fibula and conservative treatment
was undertaken in respect of
his foot fracture in the form of a moon
boot. He wore the moon boot from the time of the accident until
November 2019. He thereafter
used crutches to ambulate, after which
he used a cane which he uses up to date.
[19]
As sequelae to the injuries he sustained in the accident he is unable
to squat,
crouch,
kneel, jog, walk or stand for long periods of time. He is also unable
to carry heavy objects due to the pain he feels in
his right foot and
right leg, and furthermore, his ankle is often stiff and immobile. He
is in constant pain as a result of the
injuries and this also affects
his sleeping patterns adversely, thus causing him frequent bad moods
and feelings of inadequacy
as he is now financially dependent on his
wife.
[20]
He made various attempts to secure employment after the accident, and
although he was successful in doing
so, he could not maintain any of
such employment due to the injuries. To illustrate this point, he was
able to obtain work at Sutol
Engineering as a fabricator in June 2020
but resigned after 3 weeks as the work involved standing, carrying
weights and welding,
as such he was unable to cope with the physical
demands.
[21]
In April 2021 he was again employed by Welfit Oddy as an assembler
after being placed by King Recruitment.
The work involved a lot of
walking, steps and climbing ladders. He was informed by the Doctor at
Welfit Oddy that he was a health
risk and therefore medically unfit
for the job. His employment was terminated in May 2021.
[22]
In November 2021 he managed to secure employment at Bay Braais
through a family friend. The job was less
physical than his previous
employment as it entailed welding braais, however he still struggled
with it. He was still working at
the business when it closed down in
February 2022.
[23]
All his further attempts at securing employment have since been
futile, and he has not worked since February
2022.
[24]
At the time of the accident he was working as a grade 4 welder
[3]
at Welfit Oddy with aspirations of obtaining his Red Seal / Grade 5
qualification which is a specialist welder earning approximately
twice the salary of a grade 4 welder. For one to be able to undertake
the trade test to become a Grade 5 Welder, one must either
obtain
coding in all four forms of welding, alternatively, have worked as a
welder for a period of 5 years before being allowed
to undertake the
test.
[25]
When the accident occurred the plaintiff was in the process of
securing employment in the Agricultural Sector
in the United States
of America (US), where he intended to work for a period of 5 years
earning US Dollars, which would put him
and his family in good stead
financially in the future. The employment was being arranged by his
father-in law who was working
in the Agricultural Sector in the US at
the time, for the plaintiff and his brother-in law. To that end the
two had obtained code
14 learner driver licenses which they were
advised would put them in an advantageous position. The employment
was organised via
a placement agency called Golden Opportunities,
with which the plaintiff was in constant communication. His
brother-in- law secured
the work and left for the US in June 2019.
The plaintiff, however, was unable to finalise his process because of
the accident.
[26]
His intention on returning to South Africa after 5 years, was to
continue working as a welder at Welfit Oddy.
His father-in-law had
contacts there and would be able to pull strings for him to be
re-employed.
[27]
Due to the accident and the injuries sustained however, none of these
plans came to fruition.
The
legal principles applicable
[28]
The legal position relating to a claim for diminished earning
capacity has become trite. In
Dippenaar
v Shield Insurance Company Ltd,
[4]
Rumpff
JA stated the principle as follows:
‘
In
our law, under the
lex aquilia
the Defendant must make good the difference between the value of the
plaintiff's estate after the commission of the delict and
the value
it would have been if the delict had not been committed. The capacity
to earn money is considered to be part of a person's
estate and the
loss or impairment of that capacity constitutes a loss, such loss
diminishes the estate.’
[29]
Dealing with the issue of how to approach the problem of quantifying
a claim for loss of earning capacity,
Nicholas JA articulated the
following:
[5]
‘
Any
inquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a predication 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 on 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. See
Hersman v Shapiro & Co
1926 TPD367 at
379 per STRATFORD J:
“
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.”
…
In cases 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 an advantage
over the second. On the contrary, once the result of an actuarial
computation may be no more
than an “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” 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).’
[30]
In
D’Hooghe
v Road Accident Fund,
[6]
Chetty J summarized the proper method of determining a plaintiff's
loss as follows:
‘
It
follows from the aforegoing authorities that where, as in casu
,
a Plaintiff suffers a permanent impairment of earning capacity the
proper method of determining such loss is – (i) to calculate
the present value of income which the plaintiff would have earned but
for the injuries and the subsequent disability; (ii) adjust
that
figure having regard to all relevant factors and contingencies; (iii)
calculate the present value of the plaintiffs estimated
future income
having regards to the injuries sustained and the consequent
disability; (iv) adjust the latter figure with due regard
to all
relevant factors and contingencies; and (v) subtract the latter from
the former.’
[7]
Discussion
[31]
The plaintiff appeared as an open and credible witness before this
court and his evidence was supported by
documentary evidence. He
presented himself as a driven and highly motivated individual who was
consistently seeking to improve
himself and to achieve more in his
career. This is evident from his efforts in undertaking welding
courses after hours whilst working
as a Sandblaster at
Furman
Trading
. His plans of
securing employment overseas (which I accept as being realistic given
that they came to fruition for his brother-in-law)
and obtaining a
code 14 learner’s license in furtherance thereof further attest
to his drive. Even his attempts at securing
employment after the
accident further attest to his drive and tenacity.
[32]
The admitted reports of the experts and the joint minutes also talk
to the evidence of the plaintiff in so
far as the injuries he
suffered and the sequelae thereof, thus affirming his veracity as a
witness.
[33]
The plaintiff’s evidence provided a sound basis for the
industrial psychologists to make their postulations
in respect of his
pre-morbid and post-morbid career paths. Both the plaintiff’s
and the defendant’s industrial psychologists
are
ad-idem
in this regard (as set out above), leaving the only issue being that
of an appropriate contingency deduction to be applied.
[34]
Notably, the industrial psychologists in the joint minute have taken
a conservative approach in their postulations.
Although the plaintiff
planned to work in the USA for 5 years, they have reduced this period
to three and a half years. In addition,
despite the plaintiff having
testified to the effect that in order to qualify as a grade 5 welder,
one needed to have either completed
the four welding courses, or to
have been working in the industry for a period of 5 years before
being able to undertake the grade
5 wielding test, the industrial
psychologists agreed that it would take the plaintiff eleven years
after his return to South Africa
to qualify as a grade 5 welder.
[35]
Mr Whittaker, the actuary, using the joint minute of the industrial
psychologists, prepared a calculation
of the plaintiff’s loss
where he proposed two scenarios. In scenario 1 the calculation
includes a residual future earning
capacity which is based on the
industrial psychologists’ postulation of seasonal employment
for three months of the year.
A 50 % contingency deduction is applied
in this regard. In scenario 2 the actuary applied a 15 % contingency
deduction for past
loss and a nil value for post-accident future
earnings. In this regard a 20% contingency deduction is applied for
future loss of
earnings to cater for any residual earning capacity.
[36]
Mr van der Linde for the defendant, has argued that whilst he agrees
that the sequelae of injuries will have
a significant impact on the
employability of the plaintiff, there is however, no objective
impediment to him obtaining employment.
According to him the actuary
has found a way of dealing with this in scenario 1 where he applied a
50% contingency deduction to
the plaintiff’s injured future
loss of income, given that he will in all probabilities work for 50%
of the time.
[37]
Whilst I accept that according to the industrial psychologists the
plaintiff has some residual employment
capacity, the evidence
presented suggests that this is in theory only (given that he has
been out of employment since February
2022; and Mr Williams, the
recruitment specialist, whose evidence is to the effect that the
plaintiff has utilized all his sympathetic
employment and therefore
has nil chances of future employment)
[8]
.
[38]
I am therefore inclined to accept the calculation in scenario 2 which
shows a nil amount for injured future
loss. In any event the
allowance to be made for contingencies is a process of subjective
impression or estimation rather than objective
calculation that falls
within the court’s sole discretion. The adjudication of such
contingency is complicated and multifaceted
with some speculation
inevitably existing. The discretion must be based upon a
consideration of all the relevant facts and circumstances,
justice
and fairness being the ultimate criteria to both parties.
[9]
[39]
On the evidence presented, I am of the view that the calculation in
scenario 2, where the actuary applies
a 15% contingency deduction for
past loss of income and a 20% deduction for future loss, presents the
plaintiff’s total loss
which, given the above-mentioned
considerations, is not overly burdensome to the defendant and
therefore fair. In fact, given what
I have stated above, I find the
calculation to be on the conservative side.
[40]
Furthermore, in opening his closing argument in this regard, Mr van
der Linde for the defendant, submitted
that other than the fact that
he had no instructions to agree, he adopted a similar approach to
that adopted by the plaintiff’s
counsel.
[41]
In scenario 2 the actuary calculates the net past loss of income in
the amount of R1, 219,320 after applying
the 15% contingency
deduction, and the net future loss in the amount of R 5, 654, 249
after applying the 20% contingency deduction,
thus totaling a net
loss of R6,873,569. After applying the loss limit which is applicable
in the matter the total net loss is reduced
to R6,743,568. I have no
reason not to accept the actuary’s calculations as being
correct. I find therefore, that the total
loss suffered by the
plaintiff is the net amount of R6,743,568, which is the amount that
the plaintiff is entitled to be awarded
in damages.
Order
[42]
In the result, the following order is issued:
(a)
The defendant
is directed to pay to the plaintiff the amount of R5,243,568 as
damages for loss of earnings and earning capacity
(being the sum of
R6,743,568 less the interim payment totaling R1,500,000).
(b)
Payment of the
aforesaid amount to be made within 180 days from the date of this
order directly to the plaintiff’s attorneys
of record, being:
Bank:
Nedbank
Branch
Code:
1[...]
Account
Number:
1[...]
Reference:
MAT6312
(c)
Payment of
interest on the aforesaid amount at the prevailing prescribed
interest rate calculated from a date 14 days after the
granting of
this order, in accordance with section 17(3) (a) of the Road Accident
Fund Act, Act 56 of 1996, as amended;
(d)
The defendant
shall pay:
(i)
the
plaintiff’s costs of suit, including costs of two counsel
(where so employed) as taxed or agreed, such costs to include
the
costs of reports, supplementary reports, joint minutes, qualifying
expenses (if any) of:
(aa)
Dr M Swart;
(bb)
Dr H Vawda;
(cc)
Dr P Pretorius;
(dd)
Dr O Shenxane;
(ee)
Dr B Perry;
(ff)
Mr I Meyer;
(gg)
Ms A van Zyl;
(hh)
Mr D Williams;
(ii)
Ms A Engelbrecht; and
(jj)
Mr G Whittaker;
(ii)
the trial costs on 12 and 15 February 2024;
(iii)
the reasonable costs of consultations of plaintiff’s counsel
and plaintiff’s attorney with plaintiff’s experts
and lay
witnesses in reparation for trial;
(iv)
interest on the plaintiff’s said taxed or agreed costs at the
prescribed legal rate from the date of allocatur or agreement
to date
of payment.
V
P NONCEMBU
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for Plaintiff:
A
Frost
(with
K D Williams
)
Instructed
by:
PBK
Attorneys
Gqeberha
Counsel
for Defendant:
van
der Linde SC
Instructed
by:
Office
of the State Attorney,
Gqeberha
Date
Heard:
12
and 15 February 2024
Date
Delivered:
8
October 2024
[1]
Expert
Index: p165.
[2]
Index
to admitted reports: p55.
[3]
As
reflected on his various pay slips which were handed into evidence
in court and marked ‘Exhibit B7 – B34’.
[4]
1979
(2) SA 904
(A ) at 917 B-C; See also
D’Hooghe
v Road Accident Fund
(572/2007)
[2009] ZAECPEHC 36 (30 July 2009), unreported judgment of
Chetty J.
[5]
In
Southern
Insurance Association Ltd v Bailey N.O.
1984 (1) 98 (AD) at 113F – 114E.
[6]
See
fn 1
supra
.
[7]
At
para 19.
[8]
In
fact, the industrial psychologists agree in the joint minute that it
is highly unlikely that the plaintiff will find any employment
from
a sympathetic employer given his circumstances.
[9]
Cannon
v Road Accident Fund [2023] EC case no 2473/2021 (Unreported
judgment).