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2024
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[2024] ZAFSHC 381
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Bingwa v Road Accident Fund (1560/2018) [2024] ZAFSHC 381 (20 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case
number: 1560/2018
In
the
matter
between:
POGISHO
BRIAN BINGWA
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
LINK
NO: 4117481
HEARD
ON:
06 AUGUST 2024
JUDGMENT
BY
:
DANISO, J
DELIVERED
ON:
This judgment was
handed down in court and electronically by circulation to the
parties' legal representatives
via
email and
release to SAFLII on 20 August 2024. The date and time of hand-down
is deemed to be 11H00 on 20 August 2024.
[1]
In this matter
the defendant is being sued for damages relating to past and future
medical and hospital expenses, general damages
and past and future
loss of earnings. The damages arise from injuries the plaintiff
sustained as a result of a motor vehicle accident
which took place on
20 June 2014.
[2]
The plaintiff
was a passenger in a motor vehicle with registration numbers and
letters
DRX
[…]
driven
by
RUTH
GERRIT HARMS
when
it collided with another vehicle bearing registration numbers and
letters
CFY
[…].
As
a result of the said accident, he sustained a laceration of the
forehead and a fracture of the left tibia and fibula.
[3]
The injuries
sustained by the plaintiff and their sequelae are not in dispute, it
is in that regard that the defendant has conceded
the merits 100% of
the plaintiff's proven or agreed damages including the medical and
hospital related damages
.
General
damages have been rejected.
[4]
The only issue
that I have to determine is the contingency deductions to be applied
to the award relating to past and future loss
of earnings.
[5]
By agreement
between the parties, the matter was determined without the hearing
oral evidence as provided for in rule 38(2) of the
Uniform Rules of
Court on the basis of the conclusions as expressed in the plaintiff's
expert reports sourced from the Actuaries
Munro Forensic Actuaries,
Industrial Psychologist Dr Everd Jacobs, Occupational Therapist Nicky
Potgieter and Orthopaedic Dr Ziervogel.
[6]
The salient
background facts of this matter are generally common cause: the
plaintiff went to school until Grade 9
and has no
formal education. At the time of the accident he was 28 years old
employed as a technician a trade he learned on the
job. He worked for
Prestige Installation installing radio frequency towers for MTN and
Cell C. His salary was R51 600.00 per annum
which included a monthly
salary of R3500.00 and R800.00 subsistence allowance. He was
retrenched in 2016. Shortly thereafter, he
obtained employment at
Khabane where he was paid R8000.00 per month but was retrenched again
in 2021. Then from January 2021 he
worked for Cell C Towers where he
was paid R8000.00 per month, this job also ended with retrenchment in
April 2021.
Since then he has been unemployed
except for
part time jobs between five and six days per month. He receives
R300.00 per day.
[7]
According to
the experts, the fracture on the leg has healed but he still suffers
from pains which are exacerbated by cold weather
conditions. He also
experiences back pain caused by the uneven gait resulting from the
leg fracture. The pains are aggravated by
prolonged standing, walking
and sitting and although they can be managed by domestic pain killers
and his normal life expectancy
has not been affected, the plaintiff
is no longer able to work on heights or climb ladders as required by
his trade as a result
thereof, his capacity and ability to perform
his trade as a technician has been restricted
.
The experts
submit that this fact is also evidence by the series of retrenchments
post accident.
[8]
The experts
agree that there is no need for the plaintiff
to retire
early however, if he does work, he should only perform sedentary and
light work duties where he can be granted sufficient
resting periods.
His lack of both formal qualifications and sedentary skills, the
limited amount of job vacancies available as
well as the injuries
puts him at unfair disadvantage
in competing
in the open labour market.
[9]
The experts
postulate that the plaintiff would have been able to follow the same
career path in the uninjured scenario earning R51
600.00 per annum
until the age of 65 but due to the injuries, his ability to perform
all the physical tasks required by his trade
has been curtailed.
[10]
Thus was in
short the evidence presented on behalf of the plaintiff. No counter
evidence was presented from the defendant's side
.
[11]
Counsel for the plaintiff Mr Jankowitz confirmed that the plaintiff
continued to work after the accident however, it
was against medical
advice as he needed to earn a living. He argued that having regard to
the facts of this matter and the actuarial
calculations, the
following contingency deductions should be applied with regard to the
determination of the plaintiff's past and
future loss of earnings:
11.1.
Pre-morbid past
loss of earnings,
R742
000 00:
5%
11.2.
Post -morbid past
loss of earnings,
R590
000 00:
5%
11.3.
Pre-morbid future
loss of earnings,
R2
586 800.00:
25%
11.4.
Post-morbid future
loss of earnings,
R1
655 400.00:
60%
[12]
It was his submission that the amount that would be just and
equitable under these circumstances would be an amount of
R1 075
800.00 (One million seventy-five thousand eight hundred rand).
[13]
It
was the defendant's submission that on the available facts, the
plaintiff does not require further treatment as the injuries
have
healed. There is also no need for the plaintiff to retire early in
fact, post-accident the plaintiff resumed his duties and
worked at no
less than three different companies namely, Prestige Installation,
Khabane and Cell C. The only collateral information
provided was from
the plaintiff's erstwhile employer Cell C. It indicates that the
plaintiff worked well until he was retrenched
in 2021 and the
retrenchment was due to business closure and not due to the
plaintiff's incapacity or inability to work. The employer
was not
even aware that the plaintiff had sustained injuries in an
accident
[1]
accordingly, it
cannot be said that the plaintiff's unemployment post-accident is
attributable to the injuries he sustained in
the accident.
[14]
The defendant concedes that there is a residual loss of earnings and
tenders the loss of earnings however, higher contingencies
ought to
be applied namely, 35% and 25% in respect of the pre-morbid and
post-morbid future earnings respectively. The total amount
suggested
by the defendant in respect of the past and future loss of earnings
is the amount of R544 470.00.
[15]
It is trite that contingencies deductions are assessed at the
discretion of the court taking into consideration
that each case must
be treated on its own unique facts including a wide range of factors
which:
"...
include
such
matters
as the
possibility
the plaintiff may in the result have Jess than a normal expectation
of life; ...and that he may experience periods of
unemployment by
reason of incapacity due to illness or accident,
or
to
labour unrest or general economic conditions. The amount of any
discount may vary, depending on the circumstances of each case...
The
rate of discount account of course be assessed on any logical basis:
The assessment must be largely arbitrary and must depend
upon the
trial judge's impression of the case."
[2]
[16]
On
the facts germane to this matter, the plaintiff's assertion that the
injuries and their sequelae have contributed to his disablement
from
work which in turn is attributable to his past loss of earnings is
not borne out by the collateral information relied upon
by the
experts in their reports. The examination of the experts' reports
instead reveal that the plaintiff was retrenched due to
the
companies' closure. The plaintiff's evidence that due to the injuries
and their sequelae, he is no longer able to do the work
which he
formerly did as a technician
has
not been gainsaid by evidence to the contrary
.
[3]
I
am also alive to the general economic conditions prevailing which
involve the limited amount of job vacancies available particularly
to
unskilled labourers. I am also taking into account the plaintiff's
physical deficits and I agree that all these factors places
him at
unfair disadvantage in competing in the open labour market for that
reason, I am not satisfied that the contingencies suggested
by the
defendant accord with what is fair and just.
[17]
Having regard
to the facts of this matter and the entirety of the plaintiff's
evidence, a 25% contingency deduction in respect of
the plaintiff's
pre-morbid future loss of earnings and a 60% contingency deduction in
respect of his post morbid future loss
of earnings is justified
.
In the
circumstances
I consider
that a fair and reasonable award to be paid as compensation to the
plaintiff is an amount of R1 075 800.00 (One million
seventy-five
thousand eight hundred rand).
[18]
I make the
following order:
ORDER
1.
The defendant
shall pay the
plaintiff:
1.1.
An amount of
R1 075 800.00 (one million, seventy-five thousand eight hundred rand)
in respect of past and future loss of earnings,
within 180 days from
the date of this order.
1.2.
Interest a
tempore
morae
calculated
from 14 (fourteen)
days after
date of
this
order;
2.
The defendant
shall furnish the plaintiff with an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in respect of the
costs of the future accommodation
of the
plaintiff in a hospital or nursing home or treatment of or rendering
of a service
to him or supplying
of goods to
him arising out of the injuries sustained by him in the motor vehicle
collision which occurred on 20 June 2014.
3.
The defendant
shall pay the
plaintiff's costs of the suit, as taxed or agreed, on a scale as
between party and party within 180 days from the
date of the
allocator, such costs to include:
3.1
the reasonable
qualifying fees of the following experts:
3.1.1
Dr Ziervogel,
Orthopaedic Surgeon;
3.1.2
Nicky
Potgieter, Occupational Therapist;
3.1.3
Dr Everd
Jacobs, Industrial Psychologist; and
3.1.4
Munro Forensic
Actuaries, Actuary.
4.
All payments
shall be made
into the trust account of the plaintiff's attorney:
P
JOUBERT INCORPORATED
Trust
Account
BANK
Absa,
Santyger branch
BRANCH
CODE
632
005
ACCOUNT
NO.
4[…]
NS DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff:
Mr
Jankowits
Instructed
by:
P
JOUBERT INC.
C/O
ROSENDORFF REITZ BARRY
BLOEMFONTEIN
Counsel
on behalf of the defendant:
Ms.
Booysen
Instructed
by:
STATE
ATTORNEY
BLOEMFONTEIN
[1]
Paginated
page 33, para 9.5
of
the
Industrial Psychologist's report.
[2]
Southern
Insurance
Association v
Bailey
NO
1984
(1) SA 98
AD
page
99E
-
G.
[3]
2003(2)
SA 234
(SCA);
Road
Accident
Fund
v
Kerridge
2019(2)
SA 233
(SCA).