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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No. : 1735/2017

In the matter between:-

K P                                                                                                                        PLAINTIFF

And

THE ROAD ACCIDENT FUND                                                                         DEFENDANT

 

HEARD: 25 OCTOBER 2019

JUDGMENT BY: MOLITSOANE, J

DELIVERED: 27 JANUARY 2020

 

[1] The plaintiff instituted an action for damages against the defendant as a result of certain bodily injuries sustained in a motor vehicle accident on 1 July 2016. The plaintiff was a passenger in the insured vehicle.

[2] On the 20^th March 2018 the merits were settled and the defendant was ordered to pay the plaintiff’s 100% of the proven or agreed damages. The claim for general damages was rejected by the defendant. This court is called upon to adjudicate the following heads of damages:

1. Past loss of earning potential;

2. Future loss of earning potential.

[3] Dr Oelofse, an orthopaedic surgeon, examined the plaintiff and her hospital records. He compiled and filed a report and same was accepted in evidence. The report and hospital records show that plaintiff was involved in a motor vehicle accident on the 1^st July 2016. She was transferred to Boitumelo hospital by ambulance. Upon arrival at the hospital she complained of pain in her head over the left side of the face, left ear and right wrist and hand. Shortly thereafter she was taken to theatre for debridement of the face, left ear and right arm.

[4] Dr Oelofse further testified that the right index finger and wrist of the plaintiff raised concerns. The finger could not extend by itself or passively. The wrist had at the time of examination developed arthritis. He opined that generally there is a 5% chance of arthritis developing in a person’s wrist when they are 80 years of age, but in this case the plaintiff developed it (arthritis) at a tender age of 28 years and it was likely to be as a result of trauma. The plaintiff further complained with back and neck injuries. He opined that the injuries of the plaintiff were permanent and would get worse and rendered the plaintiff an unfair competitor in the open labour market. He is of the view that plaintiff should be accommodated in a light sedentary and neck friendly environment. He opined that in that kind of environment the plaintiff could still work for another 20 years. However, depending on the surgery received, she may still be able to work until she reached 60 years or only another 10 years.

[5] Mr Schoombee, an Industrial Psychologist, also testified on behalf of the plaintiff. He also compiled a report which was accepted in evidence. His report contained contested hearsay evidence. That part of hearsay evidence was provisionally admitted upon application by the plaintiff’s Counsel. I will revert to this hearsay evidence later.   He indicated that the plaintiff presented with the obvious and visible right hand disfigurement. He indicated that he requested from the plaintiff copies of the Grade 12 results, the NQF 2 certificate and details of the previous manager at the Department of Land Reform. At the time of the compilation of the report the said documents were still outstanding.

[6] Mr Schoombee testified that the plaintiff completed Grade 11 in 2009. She went further to complete NQF2 certificate in Office Administration in 2011. In 2017 she completed NQF 2 certificate in Waste Water and Reticulation with Flavius Mareka College. From the consultations with the plaintiff she found that after the accident the plaintiff struggled with her school work at Flavius Mareka College. The plaintiff could not read or write and had to solicit the help of other students.

[7] According to Mr Schoombee the course open to the plaintiff due to the injuries would be sedentary type of work which was office based or computer based. However, due to the neck and back injuries such work was contra indicated. He opined that while sedentary type of work was the better option, the plaintiff would require at least matric to enter such type of labour market which qualification, the plaintiff did not have.

[8] The plaintiff testified that she was 31 years old and unmarried. She testified that she was right hand dominant and could not lift heavy objects. She enrolled for a Waste Water Reticulation Certificate at Flavius Mareka College. The type of work designed for this qualification required physical exertion. This work entailed the fixing of pipes, meters, cleaning water and industrial use of chlorines. She testified that before the accident she was a fast learner at Flavius Mareka but after the accident she became the slowest and had to ask for help from other students to write. According to her she suffers from back pains and cannot sit for long hours. She is of the view that her injuries have impeded her chances of being employed by the municipality. Save for working for two months at a take away shop after the accident, she never got employment.   

[9] During cross examination it emerged that she was unaware of anyone in her class or group who was employed by the Municipality after completion of the course. It also emerged that she only knew of some students who studied Sanitation who were employed by the Municipality but all these were not in her class of Waste water and Reticulation. 

[10] Ms Visser, an occupational therapist also consulted with the plaintiff. She also compiled a report which was accepted in evidence. Her report overlapped in great detail with the reports and testimony of other experts called by the plaintiff. According to her the plaintiff’s right hand performed below the expectation in the different tests and median. According to her, the lack of feeling in the index finger of the plaintiff left her (plaintiff) seriously impaired. Her productivity is compromised and has rendered her physical work capacity decreased. According to her the plaintiff would be best suited to perform sedentary type work but her neck and back injury placed limitations on her being able to do sedentary type work and she would require ‘back friendly’ work environment.

[11] Mr Sauer, an actuary, also compiled two reports and same were admitted in evidence. The reports were compiled on the basis of the information from the Industrial Psychologist, Mr Schoombee. He took into account, inter alia, the salary of the plaintiff as an intern, to wit, R15 840, the date one would have expected her to enter the labour market and salary she could have received at the time of entering the labour market, namely R123 600. Mr Sauer presented two scenarios, the one based on a total loss of employability while the other was based on early retirement. On both scenarios he applied high contingences of 15% pre- morbid and 55 % post -morbid. The defendant chose not to lead any evidence.

[12] The assessment of loss of earning capacity involves the comparison between the position of the claimant had the accident not occurred and his bodily injury, on the one hand, and his position now that the accident had happened. In the seminal judgment, Southern Insurance Association Ltd v Bailey 1984(1) SA 98(A) Nicholas JA said the following:

“An enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction 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 rough estimate, of the present value of loss. It has open to it two possible approaches: one is for the judge to make a round estimate which seems to him to be fair and reasonable. That is entirely a matter of guess work, a blind plunge into the unknown. The other is to try to make an assessment, by way of mathematical calculation, on the basis of assumptions resting on evidence. The validity of this approach depends of course upon soundness of the assumptions, and these vary from the strongly probable to the speculative….”

[13] The courts frequently rely on the opinions of experts in arriving at certain decisions. The courts are, however, not bound by the opinions of the experts. It has to be borne in mind that the actuary in this case relied heavily on the report of Mr Scoombee in the assessment of loss of earnings.Adv Mphuloane submits that reliance on the said expert report was flawed.

[14] In his report and in his testimony Mr Schoombee relied on collateral information he received from one Mr Matlepe from Flavius Mareka. The information received related to the fact that the plaintiff could not read or write after the accident and had to be assisted by other students. Further information related to the fact that the Municipality undertook to absorb the students in Waste Management and Reticulation class in its employment. The said collateral information constituted inadmissible hearsay seeing that Matlepe was not called to testify. Adv. Sanders implored me to accept the evidence finally in terms of s3 of the Law of Evidence Criminal Amendment Act 45 of 1988(the Act).

[15] The high water mark of the defendant’s case is the challenge against the collateral information from Mr Matlepe. Adv. Mphuloane made it clear in cross examination of both Mr Schoombee and the plaintiff that the collateral information was disputed. The defendant did not consent to the leading of evidence as envisaged in s3(1)(a)  of the Act. For this reason this court could only admit the hearsay evidence in terms of s3(1)(c) of the Act.      

[16] Section 3(1)(c) of the Act provides as follows:

“Subject to the provisions of any other law, hearsay evidence shall not be admitted at criminal or civil proceedings, unless-

(c) the court having regard to –

i. the nature of the proceedings ;

ii. the nature of the evidence;

iii. the purpose for which the evidence is tendered;

iv. the probative value of the evidence;

v. the reason why the evidence is not given by the person upon whose credibility the probative value of each evidence depends;

vi. any prejudice to a party which the  admission of such evidence might entail; and

vii. any other factor which should in the opinion of the court be taken into account,

is of the opinion that such evidence should be admitted in the interests of justice.”

No reasons were given by the plaintiff as to why Matlepe whose credibility the probative value of the collateral information was obtained could not be called to testify. It is not the case for the plaintiff that he cannot be traced. It was made clear at the opportune time that the defendant sought to cross examine the said Matlepe. The whole case of the defendant rested on collateral information received from Matlepe.   Failure to call him would lead to prejudice to the defendant and consequently any collateral information relied uoun by Mr Schoombee ought to be rejected as its admission would not be in the interest of justice.

[17] Adv Mphuloane urged me to disregard the actuarial calculations as according to him they are based on hearsay evidence. This submission cannot be entirely correct. Save for the parts of hearsay evidence alluded to above; the rest of the report is in sync with the testimony of other witnesses including that of the plaintiff. The uncontested evidence before this court is that the plaintiff sustained serious injuries on her dominant right index finger and wrist. She also sustained neck and back injuries. Dr Oelofse diagnosed her with arthritis of the wrist at her tender age. In its heads of argument the defendant pertinently indicates that it does not contend the evidence of Dr Oelofse. It is undisputed that she could be accommodated in the sedentary type work.  As alluded to above the function of experts are to assist the court to arrive at just decisions. I can find no reason to reject the testimony of Mr Schoombee in toto save for the collateral information from Matlepe.

[18] It is undisputed that the plaintiff did not have matric although she has an NQF2 Certificate in Office Administration. It is further undisputed that she managed to complete her qualification in Waste Water Reticulation after the accident. As a waste water reticulation operator, the work of the plaintiff would have required her to turn large wheels, cope with large levers, use pliers and such similar tools and due to her dominant hand injury would have been unable to do so. In my view it would be near impossible to obtain employment in the industry which requires physical exertion like waste water and reticulation. In the Waste Water and Reticulation she might be unemployable.

[19] The fact that the plaintiff may be unemployable in the trade that she had been trained for does not render her unemployable in other kinds of work. All the experts called by the plaintiff are of the view that she is best suited to perform sedentary type of work. In any case she has a qualification in Office Administration. This qualification she obtained without matric. She even worked as a receptionist at the Department of Land Affairs prior to the accident although she may have challenges now that the accident has occurred. I am unable to find that the plaintiff is unemployable in sedentary type of work. The greatest challenge, however, for the plaintiff is the injury to the back and the neck. She is unable to sit for long hours. Her work rate has decreased. The employment at the take away shop illustrates this challenge she would have in the future. Dr Oelofse opines that she may be forced to take early retirement. While I share the sentiment that her best alternative would be sedentary type of work, I also agree that there is a strong possibility that she may be forced in early retirement due to her injuries. A high contingency deduction as suggested by the actuary would go a long way in addressing the vicissitudes of life going forward. I accordingly agree with the calculations by the actuary as set out below:

Post-morbid: Early retirement

	Had the accident not happen	Now that the accident has happened	Difference: Loss
Past Earnings	150 537	8 916
Less contingency deductions (5%/5%)	7 527	446
Total loss of past earnings	143 010	8 470	134 540
Future earnings	3 176 123	2 071 707
Less contingency deductions (15%/55%)	476 418	1 139 439
Total loss of future earnings	2 699 705	932 268	1 767 437
Total loss of earnings			1 901 977

[20] I cannot find a reason to depart from the practice that costs follow the event. I accordingly make the following order

 

ORDERS

1.1 The Defendant is liable to pay 100% (Hundred Percent) of the proven or agreed damages;

1.2 The Defendant shall pay the Plaintiff the sum of R1,901,977, (One Million Nine Hundred and One Thousand Nine Hundred and Seventy Seven Rand) in respect of loss of earnings;

1.3 The Defendant shall pay the Plaintiff the sum of R1,901,977, (One Million Nine Hundred and One Thousand Nine Hundred and Seventy Seven Rand), into the Plaintiff’s trust account;

The Plaintiff’s Attorney’s trust account details are as follows:

ACCOUNT HOLDER:            VZLR INC

BRANCH:                              ABSA BUSINESS BANK HILLCREST

BRANCH CODE:                   632005

TYPE OF ACCOUNT:           TRUST ACCOUNT

ACCOUNT NUMBER:           3014-7774

1.4 In the event of default on the above payment, interest shall accrue on such outstanding amount at 10% (at the mora rate of 3.5% above the repo rate on the date on this order, as per the Prescribed Rate of Interest Act, 55 of 1975, as amended) per annum calculated from due date until the date, as per the Road Accident Fund Act, of payment;

1.5 The issue of loss of earnings and future medical- and hospital expenses are separated from all the other issues in terms of Rule 33(4), with the remainder of the issues of quantum  being postponed to the Pre-Trial roll of 24 February 2020;

1.6 The issue of general damages is referred to the HPCSA for determination.

2 The Defendant to pay the Plaintiff’s taxed or agreed party and party cost in the above mentioned account up to and including the trial dates of 22, 23 & 25 October 2019, for the instructing- and correspondent attorneys, which costs shall include, but not to be limited to the following:

2.1 All reserved costs to be unreserved, if any;

2.2 The fees of Senior Junior Counsel inclusive of but not limited to counsel’s full, reasonable day fees for 22, 23 & 25 October 2019 and fees for preparation, including the drafting of the heads of argument;

2.3 The costs of obtaining all expert medico legal- and any other reports of an expert nature for the purposes of adjudicating a claim of loss of earnings which were furnished to the Defendant and/or it’s experts;

2.4 The costs of obtaining documentation / evidence, scans, considered by the expert(s) to finalize their reports for the claims of loss of earnings;

2.5 The reasonable taxable qualifying, preparation, reservation and attendance fees of all the above-mentioned  experts, including the cost of consultation fees with the legal teams, if any;

2.6 The reasonable traveling- and accommodation costs, if any, incurred in transporting the Plaintiff to all medico-legal appointments pertaining to the claim of loss of earnings;

2.7 The reasonable cost for an interpreter’s attendance at court and at the medico legal appointments for translation of information, if any;

2.8 The above-mentioned payment with regard to costs shall be subject to the following conditions:

2.8.1 The Plaintiff shall, in the event that costs are not agreed, serve the notice of taxation on the Defendant’s attorney of record; and

2.8.2 The Plaintiff shall allow the Defendant 14 (fourteen) calendar days to make payment of the taxed costs;

2.8.3 In the event of default on the above payment, interest shall accrue on such outstanding amount at the prescribed mora rate on the date of taxation / settlement of the bill of cost, as per the Prescribed Rate of Interest Act, 55 of 1975, as amended, per annum, calculated from due date until the date of payment.

   

 

___________________

P.E. MOLITSOANE, J  

 

On behalf of the Plaintiff: Adv. A Sander

Instructed by:

VZRL Inc Attorneys

BLOEMFONTEIN

On behalf of the Defendant Adv  S Mphuloane

Instructed by:

Maduba Attorneys                                                               

BLOEMFONTEIN

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