Khakhang v Road Accident Fund (1983/2018) [2021] ZAFSHC 306 (2 December 2021)

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: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case number: 1983/2018

In the matter between:

GEORGE

KHAKHANG

PLAINTIFF

and

ROAD

ACCIDENT FUND

DEFENDANT

JUDGMENT BY: CHESIWE,

J

HEARD ON: 09 NOVEMBER 2021

DELIVERED ON: 02 DECEMBER 2021

[1] The Plaintiff instituted action against the Defendant for damages arising from injuries sustained on 25 April 2015 due to a collision with a vehicle with registration number [….] being driven by BM ­­Languza (insured driver). The Plaintiff was a pedestrian.

[2] The Plaintiff alleged that the insured driver was negligent in that:

“He travelled at a high speed under the circumstances; he omitted to keep a proper look out; he omitted to keep his motor vehicle under proper control; he failed to comply with the statutory traffic rules; he failed to avoid an accident when by exercising reasonable care he should and could have done so; he failed to adequately apply the controls and other mechanisms of his motor vehicle in such a way that it does not pose a threat to other road users; he failed to adequately consider the presence, movements and clearly visible movements of the Plaintiff; he failed to consider the rights of other road users.”

[3] The Plaintiff sustained the following injuries: Left knee injury resulting in post-traumatic osteoarthritis, un-united left tibia fracture with painful instrumentations and un-united left distal fibula fracture resulting in post-traumatic osteoarthritis of the ankle joint and restricted range of movement.

[4] The Defendant filed its plea and denied each and every allegation and prays that the Plaintiff’s claim be dismissed with costs.

[5] On the day of the trial, it was placed on record that Defendant has agreed to settled liability at 90 percent. The Defendant further gave an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996.

[6] The expert reports of the Plaintiff were conceded by the Defendant and was handed in by agreement between the parties. The parties could not agree on the actuarial calculations regarding past and future loss of earning and general damages, as well as the applicable contingencies.

[7] The Court has to therefore determine loss of past and future income, general damages and the applicable contingencies.

[8] Counsel on behalf of the Plaintiff, Adv. Cross submitted in oral argument that the Defendant did not file any reports and that the Plaintiff is a car washer, which job involves a lot of standing. He further submitted that if the Plaintiff should lose his job, it will be virtually impossible to get any employment. He submitted that the Court is to apply the applicable contingencies as calculated in the latest actuarial report.

[9] Counsel on behalf of the Defendant, Ms Canham did not submit written heads of argument. She submitted in oral argument that the Plaintiff though he has sustained the mentioned injuries, he is still employed as a car washer and is earning an income of R2 100, 00. Ms Canham submitted that the Plaintiff’s latest actuarial report, the figures are different to the first actuarial report. She said contingencies applicable should be fair and just for both sides and that an amount of R680 601, 70 would be fair and reasonable for the loss of income. For the general damages, she submitted that an amount of R300 000, 00 is reasonable in the current circumstances of the Plaintiff.

[10] Expert reports of the Plaintiff stand uncontested as the Defendant did not file its expert reports to dispute those of the Plaintiff.

[11] Dr Oelofse, an orthopaedic surgeon, in his report opined that the injuries sustained by the Plaintiff had profound impact on the Plaintiff’s productivity, working ability and amenities of life. Dr Oelofse indicated that the degeneration in the Plaintiff’s left knee and ankle will progress and his productivity will decline. He stated that the Plaintiff will probably have chronic pains for the rest of his life, though the accident will not have a detrimental effect on his life expectancy.

[12] Ms Yani de Klerk, from Rita van Biljon Occupational Therapists, on page 45, stated in her report that:

“7.5.4 Considering degeneration in the left knee and ankle and the fact that the orthopaedic surgeon indicated that conservative treatment will not work and the probability for surgery of the left knee and ankle is more than 50 %, it is recommended that the Plaintiff not do full range light category work which requires frequent standing and walking (which will put undue strain on the left knee and ankle) and may hasten the progression of degeneration in these joint.

7.5.5 The Plaintiff is thus better suited to sedentary category work to maintain the integrity of the left knee and ankle joints.”

[13] The report of Mr Ben Moodie, an Industrial Psychologist on page 80 of the papers, indicates the following:

“6.9 He. According to [sic] writer is therefore not just an unfair competitor in the open labour market, but in fact will not be able to compete at all. The reality is he will not be able to do hard physical labour, jobs tasks that he would have been able to do in his uninjured capacity and task that according to his qualification, is actually tasks that he would have been able to get…he is restricted to work of a physical and labouring nature, however his accident-related injuries have excluded him from doing this type of work.”

[14] At paragraph 6.14 on page 82, Mr Moodie concludes that:

“Mr. Khakhang’s past loss of income would be the difference in earnings that he would have earned from August 2015 to October 2015 in his uninjured capacity should be taken into account. In terms of his future loss of earnings the difference between the pre- and post- accident earnings from today until age 65 should be taken into account.”

[15] The Plaintiff injuries which are common cause are summarised as left knee injury with post traumatic osteoarthritis, un-united left tibia fracture and left distal fibula fracture. The Plaintiff underwent an open reduction and internal fistula and debridement of the open fractures of his left tibia and fibula. The Plaintiff after his hospital discharge of three weeks later, continued to make use of a crutch for a period of four (4) months.

[16] The experts confirmed in their reports that the Plaintiff’s employability pre-accident was of long-standing periods as he was and still is employed as a car washer, a job that entails standing and walking the whole day. Thus, the Plaintiff will be an unfair competitor in the open labour market.

[17] The legal position relating to a claim for diminished earning capacity is trite (Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) 146 (A) also see Prinsloo v RAF 2009 (5) SA 406 (SE). These principles were well articulated in Dippenaar v Shield Insurance Co. Ltd 1979 (2) 904 (A), where the Court said the following:

“In our Law, under the Lex Aquilla, the Defendant must make good the difference between the value of the Plaintiff’s state after the commission of the delict and the value it would have had 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, if such loss diminishes the estate.”

[18] In Rudman v Road Accident Fund 2003 (2) SA 234 (SCA), the court emphasised that:

“…where a person’s capacity was compromised that incapacity constitutes a loss, if such loss diminishes his estate and that he was entitled to be compensated to the extent that his patrimony was diminished.” (See also Road Accident Fund v Delport N.O (183/2004) [2005] ZASCA 38; [2006] 1 All SA 468 (SCA) (31 March 2005))

[19] The Plaintiff though not highly qualified his highest level of education is Standard 8 (Grade ten). Pre-accident, he was employed as a car washer, a job which he is currently employed in. According to Dr. Oelofse the Plaintiff has limited physical movement and that post traumatic osteoarthritis which has progressed to end stage osteoarthritis. Indeed, the circumstances are such that a sympathetic employer would accommodate him. The Plaintiff was fortunate enough to continue with his current employment, that of being a car washer, as his employer was sympathetic enough to allow him to come to work using a crutch.

[20] The Courts have emphasised that any enquiry into damages for loss of income and earning capacity is of its nature speculative because it involves a prediction as to the future and all that the Court can do is to make a rough estimate of the present value of the loss. (Southern Insurance Association Ltd v Baily N.O 1984 (1) SA 98 (A) at 113 F-G)

[21] In Bailey Supra Nicholas JA added that:

“In a case where the Court has before it material on which an actuarial calculation can usefully be made, the first approach does not offer any advantages over the second. On the contrary, while 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.”

[22] Adv. Cross handed up the latest actuarial report to which he submitted that the Plaintiff will have to retire earlier than 65 years. That the 15 percent contingency will be just and equitable and that the clinical report also stands uncontested.

[23] The latest actuarial calculations based on the 15 percentage for past loss of income amounts to R14 721 and future loss of income amounts to R1 169 400, 00. Ms Canham handed up a spreadsheet calculation that she made with a total loss of earning amounting to R680 601, 70. The spreadsheet was based on calculations that Ms Canham made and not that of an actuarial.

[24] It is trite that no two cases are always similar since it is difficult to find a comparable case that is on all fours in respect of the facts. Past decided comparable cases, although useful, merely serve as guidelines. The need to adjudicate each case on its particular merits is always present.

[25] It is now settled that contingencies, whether positive or negative are an important control mechanism to adjust the loss suffered to the circumstances of the individual case in order to achieve equity and fairness to the parties. There is no hard fast rule regarding contingency allowances.

[26] The actuarial report is more accurate with regard to the Plaintiff’s loss of income and capacity to earn. The inherent difficulty and uncertainty in these calculations is generally accepted and it is preferable to make an assessment based on actuarial calculations rather than to take a blind plunge into the unknown mathematical calculations.

[27] Allowing for contingencies is one of the elements in exercising the discretion to award damages. (See Road Accident Fund v Reynolds 18/2/2005 (unreported WLD case No A5023/07).

[28] Having considered the actuarial calculations of the first scenario, the amount awarded is in my view, is reasonable, fair and just. The Plaintiff in respect of past loss of income is awarded R14 721.00 and for future loss of income is awarded R1 169 400.00, totalling an amount of R1 184 120.00.

GENERAL DAMAGES

[29] The Plaintiff sustained injuries to his left knee left tibia and left distal fibula. The fractures sustained by the Plaintiff tough were repaired by internal fixation, the fractures are still un-united. According to Dr Oelofse, fractures a gradually declining resulting in osteoarthritis and with the internal fixation the Plaintiff is bound to experience pain for a long period. Page 40 of Dr Oelofse’s report states that:

“He was unable to kneel on the left knee due to a stabbing pain in the knee. He changed to half-kneeling on the right knee. He reported no pain in half-kneeling. He reported mild lower back pain.”

[30] An award for general damages should be reasonable and fair. The Court takes cognisance of the fact that it has a wide discretion when awarding general damages. On the other hand, the Court in Pitt v Economic Insurance Co. Ltd,[1] Holmes J (as he then was) cautioned “not to pour largesse from the horn of plenty at the Defendant’s expense.”

[31] The Court has to take into account the nature, severity and permanency of the injuries sustained together with the pain and suffering, disfigurement, permanent disability and the effect thereof on the person’s lifestyle.

[32] In Smit v Padongelukke Fonds,[2] a 24 years old pregnant woman, suffered fractures to her left femur, right femur, pelvis, left arm and left ankle. Internal fixation was done on the femurs and left arm. The Court awarded R300 000, 00 damages, (present value is R783 000, 00.

[33] In Mgudlwa v Road Accident Fund,[3] 34 years old with fractures to the femur and tibia, causing the leg to be 5cm shorter. A total knee replacement was done. The Court awarded R300 000, 00 (present value R482 000, 00)

[34] In Ndaba v Road Accident Fund,[4] 42 years old with multiple orthopaedic injuries including pelvic fracture and fractures to the femur, tibia and a left knee injury, whereby an open reduction and fixation was done. The Court awarded R300 000, 00 (present value is R456 000, 00).

[35] The principle on awarding damages should be fair to both sides. Compensation must be given to the Plaintiff, but not to pour out largesse from the horn of plenty as stated in Pitt Supra.

[36] Having taken into consideration the above comparable cases as well as the expert reports, in my view, a fair and reasonable amount for damages to be awarded is R400 000, 00.

[37] Accordingly, the following order is made:

1. The Defendant will provide the Plaintiff with an undertaking in terms of the provisions of section 17(4)(a) of the Road Accident Fund Act 56 of 1996;

2. The Defendant is ordered to make payment for loss of earnings in the amount of R1 184 120,00;

3. The Defendant is ordered to pay general damages in the amount of R400 000,00.

4. The Defendant is liable to pay the Plaintiff’s costs, these costs shall include the reasonable qualifying fees of the following experts Dr Oelofse – Orthopaedic Surgeon, Mr B Moodie – Industrial Psychologist, Mr J Sauer - Actuary, Ms Y De Klerk – Occupational Therapist.

CHESIWE, J

On behalf of the Applicant: Adv. CG Cross

Instructed by: Du Plooy Attorneys

BLOEMFONTEIN

On behalf of the Respondent: Ms. R Canham

Instructed by: Road Accident Fund

[1] 1957 (3) SA 284 (N) at 287 E-F.

[2] Corbet and Honey, Quantum of Damages (QOD), Vol V at E3 – 11.

[3] (818/2020 [2010] ZAECMHC 13 (5 February 2010).

[4] 2011 (6E3) QOD 14 (ECB).