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Ntsontsoyi v Road Accident Fund (978/06) [2008] ZAECHC 72 (5 June 2008)

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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) CASE NO.: 978/06


In the matter between:-


AKHONA NTSONTSOYI Plaintiff



And



ROAD ACCIDENT FUND Defendant



JUDGMENT



PAKADE, J.:



BACKGROUND:


[1] The plaintiff is a 24 years old young man who lives with a single parent and his four siblings in an informal settlement known as Joe Slovo Park in the outskirts of the city of Mthatha. On 13 May 2004 he was knocked down by an unidentified motor vehicle on the public road between Mthatha and Engcobo, which sped off from the scene after the collision.


[2] As a result of the collision aforesaid, the plaintiff sustained a fracture of the right femur; fracture of the right tibia and fibula and laceration on the chin. He was taken by ambulance to Mthatha General Hospital and then to Bedford Orthopaedic Hospital for treatment.


[3] The plaintiff has now instituted an action against the defendant under the Road Accident Fund Act, Act 56 of 1996 (the Act) alleging negligence on the part of the driver of the unidentified motor vehicle which collided with him and claiming damages he suffered from the collision.


[4] When the matter came before me for trial on 23July 2007, Counsel for the plaintiff, Mr Dutton and an Attorney for the defendant, Mr Mnqandi agreed that liability be separated from quantum of damages and that I should make an order to that effect in terms of Rule 33(4) of the Uniform Rules of Court. I accordingly made the order separating liability from quantum of damages as requested by them. Thereafter, in dealing with liability, I was presented with an order consented to by both legal representatives with a request that I should make it an order of the Court. Therein the parties had consented to an order declaring the defendant 100% liable for the damages suffered by the plaintiff. Indeed I made it an order of the Court. The issue of quantum had to stand over for determination at a later stage.


[6] The trial on quantum of damages commenced before me on 22 April 2008 and lasted for three days.


THE ISSUES


[7] The issues had by this time been narrowed down into one, namely, whether the plaintiff suffered past and future loss of income as a result of the accident and if so what amount to be awarded to him as compensation. The general damages had been settled by the parties and the defendant had agreed to pay a sum of one hundred and fifty thousand rand to the plaintiff in respect thereof. The defendant had also undertaken to issue a certificate to the plaintiff in terms of section 17(4)(a) of the Road Accident Fund Act 1996 guaranteeing liability for the future medical treatment and for the costs reasonably and necessarily incurred and for services rendered to the plaintiff in respect thereof for injuries arising from the collision with the motor vehicle which is the subject of this action.


[8] The applicant`s claim is created by statute, the Road Accident Fund Act, 1996. In terms of the Act, anyone who is injured in consequence of the negligent driving of a motor vehicle, be it identified or not, can claim compensation for any loss suffered (see also Engelbrecht v Road Accident Fund [2007] ZACC 1; 2007 (6) SA 96 (CC)).


[9] A said in paragraph [7] above, the main area of dispute between the parties is whether or not the plaintiff suffered a loss of earning capacity with resultant loss of earnings in the future, or the potential of such loss and, if so ,what monetary value ought to be attached to this loss. It is by now well settled that a court faced with this task has two options; a so called lump-sum award or an award based on mathematical and actuarial calculations. These options are graphically illustrated in the judgment of Southern Insurance Association v Bailey NO 1984 (1) SA 98 (AD) at 113H:


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 degree ”.


[10] In discharging the above task, I have had the benefit of guidance by expert opinion from the following experts: Industrial Psychologist, Occupational Therapist, Actuary, Physiotherapist and Orthopaedic Surgeons. I am mindful of the principles which regulate the admission and evaluation of expert evidence. I am aware that an expert opinion is admitted only if it can assist the court on matters calling for specialised skill and knowledge. I am cognisant of the fact that the expert must not be allowed to usurp the function of the court to decide the issues by deciding for it and also that the duty of an expert is and should always be to give facts from which his or her opinion is based. Those facts are either within his or her personal knowledge either through having been furnished by the plaintiff or other people. If the opinion is based on his observation, then he or she must testify as to their existence (D.T Zeffert, AP Paizes & ASQ Eksteen: The SA Law of Evidence (2003) at 299; PJ Swikkard & SE Van der Merwe: Principles of Evidence 2nd Ed (2002) at 89).


[11] Mr Mackenzie, an orthopaedic surgeon, examined the plaintiff and thereafter issued a report which was admitted by the Court. He did not testify because his findings on the injuries are common cause between the parties. What is disputed is their sequelae on the plaintiff`s future earning capacity. His findings are that the plaintiff walks with a left sided limp. He needs persistent drainage of fluid on his right thigh. He suffers from a 20mm shortness of the right leg. Mr Mackenzie found that subject to successful surgical treatment the plaintiff would remain capable of working as a petrol attendant up to age sixty.


[12] Another orthopaedic surgeon, Dr Theo Berkowitz testified on behalf of the defendant. He confirmed, to a large extent, the findings of Mr Mackenzie. He, however, went further to say that the plaintiff complained of pain in the right thigh at the extremes of movement. Straight leg raising of 90 degrees on both sides would, according to Dr Berkowitz, generate complaint of pain on the front of the right thigh. The right leg is 2.5 centimetres shorter that the left leg. He cannot hop on the right leg. He recommended a shoe raise to balance the shortness of the right leg. He concluded that based on the clinical and radiographic examinations, the plaintiff is fit to resume his pre-accident work but at the expense of some pain and discomfort. The two orthopaedic surgeons are, in my view, ad idem that the plaintiff is capable of resuming his work but with limitations caused by the injuries.


[13] The actuarial report prepared by Mr Ivan Kramer, the Fellow of the Institute of Actuaries, has calculations thereon done on the supplementary report of Mr Gideon de Kock, the Industrial Psychologist. The principle used by the actuary in his calculations is that the plaintiff has to be placed in the same financial position he would have been had he not been injured in the accident. He then concludes that the difference between the two is the loss suffered by him. The calculations are based on the assumption that the plaintiff would, in his present condition, get sympathetic employment. Mr Dutton agrees with the actuarial calculation and requests the Court to award the amount suggested by Mr Kramer as what the plaintiff stands to lose in future earnings if he were to get sympathetic employment. Mr Kramer has calculated his loss of earnings to an amount of R1, 344, 129.00.


[14] Mr de Kock has ruled out, in his evidence and in his report, any possibility that the plaintiff is employable in the open labour market. With the present scarcity of jobs in the country, he ruled out completely any possibility of the plaintiff getting sympathetic employment while in the present condition described by the orthopaedic surgeons.


[15] The experts who have examined the plaintiff are unanimous that his chances of employment have been compromised by the injuries and their sequelae. They found that he can lift 20 kg load which he can only carry for a distance of six metres. He could work at the expense of pain and discomfort in his right thigh for which he would require a 10 to 15 minutes rest and would require drainage of his right thigh. He walks with a visible limp. He would have problems in walking, standing and squatting. He also has a problem in accessing the areas below the knee level. He would therefore struggle to perform any manual labour as he would need to be given time to rest. He would struggle to compete for employment as he is only a candidate for sympathetic employment. Ms Andiswa Gowa, an occupational therapist, testified that to secure and maintain employment up to retirement could be difficult for him. While her viewpoint is confirmed by a physiotherapist, Ms Grace Hughes, the conclusion thereon is not supported by the two orthopaedic surgeons whose opinion I must accept, namely, that the plaintiff is capable of resuming his pre-accident work but with some limitations caused by the injuries.


[16] I know that Mr Gideon de Kock does not support the opinion of the orthopaedic surgeons. His view is that plaintiff is completely unemployable in his present condition. He testified that the physical condition of a labourer plays a major role in the selection process of employees. If one of the employees has a limp the employer would interview him and explain to him his job requirements. A person who requires his thigh to be drained would be compromised in the selection process. He ruled out any prospects of a person in the condition of the plaintiff being selected. If he is selected he would be laid off during the probation period as there is no obligation of the employer to retain him. The rule is that a disabled person can be selected provided his disability does not affect the work.


[17] In my view, Mr de Kock is, instead of guiding the Court, deciding the issues for the Court to simply endorse. That has also been the kind of approach by the occupational therapist and physiotherapist. To that extent I do not accept this kind of evidence.


[18] Dr Theo Berkowitz recommended that if plaintiff were to resume work within the next two to three months it would not be unreasonable to allow over the rest of his working life three to four months sick leave. This is not out of the ordinary as an employee has, in terms of the Labour Legislation, a right to sick leave. The sick leave will compliment his condition up to, according to orthopaedic surgeons, retirement age. I accept the findings of the two orthopaedic surgeons that the condition of the plaintiff is such that he can, nevertheless, resume his pre-accident work.


Mr Dutton relies on these experts in accepting the calculations of the actuary.


[19] It is common cause as having not disputed that the plaintiff had no formal education nor employment at the time of being involved in a motor collision. He was looking for employment. He was 21 years old at the time, having been born on 29 July 1983. He depended on part-time jobs of washing cars, digging pit toilets and selling cigarettes. Naturally, he had no fixed income. His earnings have not been disclosed. I could imagine that he was occasionally earning a small amount in those jobs. After the accident he still engaged in digging toilets but with difficulty which caused him to stop working altogether. Mr de Kock testified that if one looks at the progress in his family, he had a potential of developing himself to a semi-skilled labourer such as a painter or machine operator or he could be a taxi driver like his father who had been.


[20] His mother, Ms Funeka Msindo presented the Court with a comparative analysis of his performance in the family as against his siblings prior and post accident. The plaintiff has four siblings. The first born had a driver’s licence, code 14. He passed away in Welkom where he had gone to look for work. He died before he got employment. The second born is employed at Pick ‘n Pay in Mthatha. The third born is still looking for work as a security guard.


The first born had passed standard 9 while the second born had failed standard 10. The third born passed standard 7. The plaintiff passed standard 2. He is the last born. When not in town he would assist his mother in her informal business in which she sells sheep’s heads.


[21] Mr Kramer’s calculations were not disputed. Mr Kramer assumed, for purposes of his calculations, that the plaintiff would have continued searching for employment and would have secured work in the building industry as the non skilled general labourer two years after the accident date at age 22. In this position he would have started earning at Patterson A1 lower level. After a further six years he would have been earning on the A1 mean level. He would then have developed himself over time through training to the level of a semi skilled worker such as a brick layer; plaster; carpenter or building machine operator. His career ceiling would have been at the B3 level with intervals of seven years in between each level. He then recommended an award of R1, 344, 129.00.


[22] This recommendation was made on the basis that the plaintiff will struggle to compete in the open labour market and is unlikely to find employment. The recommendation of Mr Kramer is inclusive of contingency deductions.


AWARD


[23] It is trite that the plaintiff is required to prove that he had suffered loss of income by reason of the injuries he sustained in the accident. The Applicant was not, as said in the foregoing paragraphs, in any formal employment. The question that lingers in my mind is, would he as a labourer with some difficulty in writing figures have developed himself to a semi skilled labourer? If not, would he have accumulated the future income as huge as R1, 344, 129 at age sixty five years? I do not think so unless he were to strike a fortune and win a lotto. This is a pragmatic approach I have adopted in assessing what award I should make to the plaintiff. The experts have expressed grave reservations about his intellectual capacity, a fact which creates doubt that he could be able to work himself up to a semi skilled labourer. While I agree that plaintiff is entitled to a reasonable award which is not only fair to him but also to the defendant, that award is in my view far less than what is recommended by the actuary. I base this finding on the fact that the plaintiff has no formal education which would take him up to the training required for one to qualify as a semi skilled labourer and he also suffers from intellectual incapacity.


[24] ORDER.

In the circumstances, I make the following order:


  1. The defendant is ordered to pay to the plaintiff loss of income in the globular amount of ( R 350 , 650.00 ) Three Hundred and Fifty Thousand Six Hundred and Fifty Rand only;

  2. The defendant is ordered to furnish the plaintiff with a certificate of undertaking in terms of section 17 (4) of the Road Accident Fund Act, 1996, guaranteeing payment for future medical expenses, costs of treatment and services reasonably and necessarily incurred in connection thereon as arising from the injuries sustained in the motor vehicle accident which is the subject of this action;

  3. The defendant is ordered to pay costs of suit, including the qualifying fees in respect of the following experts:

Dr L Mackenzie;

Ms Andiswa Gowa;

Ms Grace Hughes;

Mr Gideon de Kock; and

Mr Ian Kramer

_________________________

L.P. Pakade

JUDGE OF THE HIGH COURT


Heard on: 22nd; 23rd; 25th April 2008

Delivered on: 5th June 2008

Counsel for Plaintiff: Adv Dutton

Instructed by: Nonxuba Inc.

23 Elizabeth Street

BLOEMFONTEIN

Counsel for Defendant: Adv Ntsaluba

Instructed by: Messrs Dambuza Mnqandi Inc.

18 Owen Street

MTHATHA