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1995
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[1995] ZASCA 88
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President Insurance Company Ltd. v Nxele (612/93) [1995] ZASCA 88 (5 September 1995)
Case No 612/93 IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between
PRESIDENT INSURANCE COMPANY LIMITED Appellant
v
JEREMIAH
NXELE Respondent
CORAM
: HEFER, MARAIS JJA et VAN COLLER AJA
HEARD
: 16 AUGUST 1995
DELIVERED
: 5 SEPTEMBER 1995
J U D G M E N T
HEFER JA
:
2 This appeal is directed at the quantum of the trial court's award
in
an action in which the respondent successfully sued the
appellant, a
nominated agent of the Motor Vehicle Accidents Fund, for
compensation
under the provisions of Act 84 of 1986.
Prior to the collision in which he was injured the respondent, although he
had no formal training, used to work from home as a self-employed
auto
electrician. It is alleged in the particulars of claim that his injuries have
brought about inter alia that he is "disabled
in the workplace where he cannot
lift heavy weights or bend forward as required in his trade". The loss which he
allegedly suffered
as a result of his disablement is claimed on two alternative
bases. Claim A is for a total amount of R847 086 in respect of his past
and
future "loss of earnings" and is based on the allegation that, but for his
injury, he would have continued to earn an income
of R3 840 per month working
for his own account. Claim B (the alternative) is for a total amount of R494 184
in respect of his past
and future "loss of earning capacity" and is based on the
allegation that, but for his injury, he would have been able to be employed
in
the formal sector as an artisan's aid earning a salary of Rl 700 per month.
The trial court was not prepared to grant claim A because the respondent
3 had no reliable personal recollection of his earnings immediately before
the
collision and the documents on which he sought to rely by way of
proof
were found to be fabrications. However, since it was common cause
that
he would have been able to work as an artisan's aid should he ever
have
wished to seek employment in the formal sector and it was found that
his
ability to do so had been seriously diminished by his injury, the court
upheld claim B to the extent that he was awarded an amount of R206 300
which was intended (as appears from the reasoning and calculations in
the
judgment) to compensate him for his loss of earning capacity but is
listed
in the actual award under the rubric of loss of earnings.
The only question to be decided is whether the respondent has proved his
loss. In contending for a negative answer appellant's counsel
submitted that it
has not been established that he has suffered any loss and, alternatively, what
the extent of his loss is.
There is no substance in the first submission. The argument in support
thereof is to the effect that, because the respondent's earnings
at the time of
the collision have not been proved, it has not been shown that he conducted a
profitable business and without proof
of a profitable business it cannot be
found that he suffered a loss. This line of reasoning reveals
4
an obvious misconception of the nature of claim B and the award made in
respect thereof. Appellant's counsel seems to have overlooked
that we are no
longer concerned with claim A to which his argument might have been a logical
answer. On claim B which relates to
an alleged loss of earning capacity it has
no bearing. The nub of the claim is that the respondent has lost his ability to
compete
for employment in the open market and the trial court's finding that
this admitted ability has indeed been gravely diminished is
not challenged. The
measure of success with which he conducted his own business in the past has thus
become entirely irrelevant.
For his alternative submission appellant's counsel relies heavily on the
respondent's attempt to mislead the trial court by producing
fabricated
documentary proof of his loss of earnings under claim A. This, he argues, also
taints the evidence produced in support
of claim B. The quantification of the
loss of earning capacity is based on the evidence of Mrs Barbara Donaldson, an
industrial psychologist,
about the respondent's prospects before the collision
to obtain employment as an artisan's aid and his probable rate of remuneration.
Since Mrs Donaldson's assessment is partly based on information given to her by
the respondent who has been found to be a wilfully
untruthful witness, the
submission is that her evidence should not have been accepted.
5
I do not agree. Admittedly the respondent did inform Mrs Donaldson of his
earnings and that his business had been "very successful"
until he was injured.
Admittedly she did rely on this information. But the enquiry plainly does not
end here. Mrs Donaldson's evidence
was presented in support of both claims and
it is only with regard to claim A that she relied on information which was
subsequently
found to be false. For that claim to succeed it was necessary to
discount the possibility of the respondent abandoning his business
to seek
employment. On the assumption, as she repeatedly stressed, that he conducted a
lucrative business Mrs Donaldson expressed
the (obviously acceptable) view that
he probably would not have made such a change. But this remained a viable option
at least until
the respondent was injured. Mrs Donaldson's evidence relating to
the respondent's prospects of obtaining employment and his probable
rate of
remuneration does not rest in any respect on any proven or even suspected
falsehood. The respondent was put through what
is known as the Industrial Test
Battery - a test specially developed for illiterates and semi-literates in South
Africa - and produced
exceptionally good results. This achievement together with
his "track record" - ie his employment record before commencing his own
business
and the experience gained while working as an auto electrician - persuaded Mrs
Donaldson (and eventually the trial judge)
that, had he sought employment in the
formal sector, he could have
6 been expected to earn a salary in at least the
upper quartile because he was
"better equipped in terms of the service he could render" to an artisan.
At
the trial the results of the test and Mrs Donaldson's interpretation
thereof
went virtually unchallenged. It was not suggested then, nor is it
suggested
now, that there is any reason to doubt the reliability of this part
of her
evidence or of the figures which she presented relating to the rates of
remuneration of artisans' aids. Moreover, the respondent's own evidence
about his "track record" was not questioned in the trial court nor has it
been
challenged in this court. There is thus a firm foundation in the evidence
for
the award under claim B which has not been shaken in the least by the
respondent's mendacity in relation to claim A. The alternative submission
must also be rejected.
The appeal is accordingly dismissed with costs.
CONCURRED
:
MARAIS JA
VAN COLLER AJA