Mahlangu v Road Accident Fund (14662/2015) [2021] ZAGPPHC 789 (17 November 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

Case number: 14662/2015

In the matter between:

JOHANNES SFISO

MAHLANGU

PLAINTIFF

And

ROAD ACCIDENT

FUND

DEFENDANT

JUDGMENT

PHAHLAMOHLAKA AJ

INTRODUCTION

[1] On the 2 March 2013 at approximately 22h30 the Plaintiff was a passenger in a motor vehicle driven by the insured driver when a collision occurred and as a result of the collision the plaintiff sustained injuries. The plaintiff, therefore, instituted a claim against the ROAD ACCIDENT FUND for compensation as a result of the damages he suffered.

[2] This matter was heard in the absence of the defendant because the Road Accident Fund decided not to participate in these proceedings.

[3] At the commencement of the trial Counsel for the plaintiff informed me that the aspect of liability was settled in that the defendant was ordered to pay 100% of the plaintiff’s proven or agreed damages. All the other aspects of quantum, safe for past and future loss of income, were also settled. The only issue to be determined by this court is therefore, that of past and future loss of income or earning capacity.

INJURIES

SUSTAINED

[4] From the accident the plaintiff sustained injuries to his head, face, chest and his left ankle with a non-union of the medial malleo.

THE LEGAL

POSITION

[5] In order to succeed with his claim the plaintiff must prove that he sustained injuries in a motor vehicle accident and as a result of the injuries he suffered damages. The plaintiff has to prove that because of the accident his estate has diminished. The fact that the plaintiff sustained injuries does not automatically qualify him for award of damages. The plaintiff ought to prove that his patrimony or estate has been compromised as a result of the injuries. This principle was well captured by Jones AJA in the case of Rudman v Road Accident Fund (370/01) [2002] ZASCA129 at paragraph 11 where the learned Judge of appeal said the following: “in my opinion the learned judge in the court a quo has not misdirected himself in his understanding of these authorities or in his application of the law to the facts. His judgment correctly emphasises that where a person’s earning capacity has been compromised, “that incapacity constitutes a loss, if such loss diminishes the estate.”(Rumpff CJ in the above quotation from Dippenaar’s case) and ‘he is entitled to be compensated to the extent that his patrimony has diminished.”

PRE ACCIDENT

EMPLOYMENT POTENTIAL

[6] At the time of the accident the plaintiff was 43 years of age and he is currently 52 years of age. His highest level of education is grade 11. He informally acquired the skill to perform electrical and plumbing work. Before the accident plaintiff was self-employed semi-skilled electrician and plumber. According to the plaintiff he returned to work approximately 6 (six) months after the accident. However, the plaintiff had four assistants employed at the time. The industrial psychologist, Nelia Joyce, made the following comments in this regard: “My understanding was that Mr Mahlangu had workers who helped and continued with the work under his supervision. A loss of income is implied, but probably more in the region of R50 000.00”.The industrial psychologist goes on to say: “with regards to Mr Mahlangu’s career and considering his age at the time of the accident, pre accident as well as post-accident career history, writer is of the opinion that Mr Mahlangu but for the accident probably would have remained in the semi-skilled labour work classification range. Mr Mahlangu continuing in this capacity with the probability of expanding his business. He would continue employment until retirement age of 65 years or as long as his health would have permitted him.”

POST ACCIDENT

EMPLOYMENT POTENTIAL

[7] On the post-morbid employment potential the industrial psychologist opines that “Mr Mahlangu still has the employment potential capacity to function in the non-corporate South Africa and global labour market. The problem Mr Mahlangu faces is that he is a vulnerable employee”. The industrial psychologist concluded that “Based on the information received and Mr Mahlangu’s work industry Writer is of the opinion that an increased post-morbid contingency deduction should be allowed. Mr Mahlangu’s pre and post-accident scenarios should be used in quantifying his loss of earning capacity”.

[8] It must be noted that the plaintiff is self-employed and he also employed four other persons who could continue doing the job during the time he was recuperating. However, the industrial psychologist opinions that he suffered a residual loss of earning capacity. In other words his pre and post morbid scenarios are the same. The plaintiff has a duty to prove that as a result of the injuries he suffered damages has suffered damages in the form of loss of earnings. According to the experts the plaintiff could not prove his pre-accident earnings. On this aspect, Nehia Joyce, the Industrial Psychologist reports as follows: “Mr Mahlangu could not provide/proof his income but stated that his pre accident earnings was between R8000. and R10 000 per month”.

[9] On the post morbid employment potential the industrial psychologist opinions that Mr Mahlangu’s earning has since the accident significantly dropped. He reported post-accident earnings at R3500 to R4000 per month. Still there is no proof of this earnings and therefore the industrial psychologist is giving an opinion based only on the information given by the plaintiff.

[10] The actuary calculated a past loss of income of R575 044 and it is not clear what informed such a huge amount of past loss because the plaintiff had four assistants working at the time he was recuperating from the injuries and he could not present any proof of the loss. The industrial psychologist confirmed this assertion when she reported that “Mr Mahlangu states that he had four assistants employed at the time. During his recuperation period, they continued with the jobs under supervision. He reportedly resumed his normal duties approximately a year after the accident, although in slightly adapted capacity. According to Dr Van Der Bault, a R72 000 loss of income was experienced during the six months that Mr Mahlangu was unable to work. My understanding was that Mr Mahlangu had workers who helped and continued with the work under his supervision. A loss of income implied, but probably more in the region of R50 000”.

[11] There is clearly a contradiction between the experts and this is because they both speculate as the plaintiff could not furnish them with any proof of his earnings. I cannot therefore make a finding based on speculations, especially when it comes to the past loss of earnings which is supposed to be an actual loss.

[12] I am of the view that past loss earnings cannot be implied. In the result I find that the plaintiff has failed to prove that he suffered past loss of earnings and therefore the plaintiff’s claim for past loss of earning ought to be dismissed.

[13] This brings me to the aspect of future loss of earnings or earning capacity. I have already said earlier that the plaintiff could not prove his earnings even after he told the experts that he was self-employed as an electrician and plumber and he had employed four assistants. It is not clear how the amount given to the experts as earning was arrived at. The experts however, are of the opinion that the plaintiff would suffer a residual loss of earning capacity.

CONCLUSION

[14] I am of the view that the plaintiff’s pre and post morbid earnings potential are the same. I will use the Actuarial calculation in respect of the future uninjured scenario and future injured being the same and I will apply a 15% spread on the amount.

[15] Therefore, I will apply 15% contingencies on the uninjured and 30% on the injured. The calculation will yield the following results:

Uninjured

1 508971

Less 15% contingencies 226 345, 65

= 1508971

Injured 1 508 971

Less 30% contingencies 452 691.3

1 056 279.70

=

226 345.65

[16] Consequently I make the following order:

16.1 The Defendant is ordered to pay the Plaintiff an amount of R226 345.65 (Two Hundred and Twenty Six Thousand Three Hundred and Forty Five and Six Five Cents) in respect of the Plaintiff’s claim for future loss of earning capacity.

16.2 The Plaintiff’s claim for past loss of earnings is dismissed.

16.3 The defendant is ordered to pay costs on party and party scale.

Draft order marked “XKF” is made court order.

KGANKI

PHAHLAMOHLAKA

Acting Judge High Court,

Gauteng Division, Pretoria

HEARD ON

: 03 August 2021

FOR THE

PLAINTIFF :

Adv Van Der Westhuizen

INSTRUCTED BY

:

Roets Van Rensbuyrg Inc.

FOR THE

DEFENDANT : No Appearence

DATE OF

JUDGMENT : 17 November 2021