Mareka v Road Accident Fund (4362/2018) [2021] ZAFSHC 251 (6 October 2021)

IN THE HIGH

COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: 4362/2018

In the matter of:

MS

MAREKA

PLANTIFF

and

ROAD ACCIDENT

FUND

DEFENDANT

JUDGMENT BY: MOLITSOANE, J

HEARD ON: 03 and 27 AUGUST 2021

DELIVERED ON: 06 OCTOBER 2021

[1] The Plaintiff instituted a claim for damages against the Defendant arising out of a motor vehicle collision on 2 May 2015 as a result of which he sustained certain injuries.

[2] The parties have since partially settled as follows:

a) That the defendant accepted liability for payment of 80% of the Plaintiff’s agreed or proven damages;

b) That the Defendant furnish the Plaintiff with an undertaking in terms of s17(4)(a) of Act 56 of 1996 for future medical expenses limited as in paragraph 2 (a) above;

c) General damages in the amount of R400 000 less 20%.

[3] The matter serves before me only for the purposes of adjudicating the issue of past and future loss of income. During the trial the Defendant accepted the contents of all the Plaintiff’s expert reports where the affidavits of the experts including their reports were handed up by agreement between the parties, as undisputed evidence.

[4] After the expert reports were handed up, the only issue remaining between the parties is the percentage to be applied to the contingencies regarding past and future loss of income. The plaintiff testified and did not call any further witnesses. The defendant closed its case without leading any evidence.

[5] For the purposes of the adjudication of this claim it is necessary to set out in brief the injuries sustained by the plaintiff. He sustained a bimalleollar ankle fracture with chronic pain of the ankle. He had a mildly restricted range of movement of the ankle. An antalgic gait as well as a post-traumatic osteoarthritis of the ankle joint.

[6] Dr Oelofse, an orthopaedic surgeon, opines that the plaintiff had a probability of greater than 75% for the degeneration in his ankle to progress to end stage osteoarthritis. He further opines that even if he can be accommodated in a permanent light duty and sedentary position as determined by an Occupational Therapist, provision must be made for 5 years of early retirement.

[7] The experts agree that the plaintiff was currently suited for sedentary occasional light work. They further agree that even with conservative treatment, the plaintiff should not presently or in future perform work exceeding sedentary to occasional light demands. Elreen Visser, an occupational therapist opines that the plaintiff is suited to his work as a driver, albeit with accommodations such as driving an automatic vehicle, where repeated strain of the lower limb is not required.

[8] Ms Visser is of the view that due to physical limitations, the plaintiff is disadvantaged in the competitive work place with regards to efficiency and effectiveness in comparison to uninjured peers. He is thus not an equal competitor within the open labour market. She further opines that in the event that the plaintiff foregoes his current employment, whilst still symptomatic on his left ankle, it would be difficult for him to find suitable employment in the open labour market having regard to his current position of being restricted to sedentary to occasional light work, his level of education, Grade 8 and exposure to semi- skilled work only.

[9] Mr Ben Moodie, an Industrial Psychologist, is of the view that the likelihood of the plaintiff obtaining employment in the future would be difficult and it would in all likelihood be difficult for him to sustain employment in the future. For this reason, Moodie is the view that a higher post –morbid contingency deduction should be applied in this regard.

[10] Johan Sauer, an actuary, calculated past and future loss of earnings of the plaintiff. His report was based on the admitted evidence of Ben Moodie. The report of Sauer was also accepted except only for the contingencies applied. He applied 5% total deduction for past losses for both pre and post post-morbid scenarios. He further applied 35% total deduction for future losses in post-morbid scenarios. According to him the higher contingency applied for future post-morbid scenario was to allow for increased employment vulnerability, labour incapacity, uncertainty, possible long periods of unemployment and early retirement.

[11] The provision for contingencies falls squarely in the discretion of the court as to what is reasonable and fair. The court has a wide discretion in this regard which must be exercised having regard to the circumstances of each case[1].The determination for future loss of income is more of an informal guess to a certain extent[2].

[12] The plaintiff in his testimony had difficulties in remembering the dates of his employment and other details concerning such employment. His Counsel even had to remind him of the date of the accident. It must, however, be remembered that this plaintiff gives testimony about 7 years after the incident. The reports of the experts which are undisputed and which were admitted by agreement, and compiled much earlier before the plaintiff testified, assisted this court to adjudicate the issue of loss of earnings.

[13] Ms Bomman in her Heads of Arguments argues that there is no proof of earnings claimed pre or post morbid. She also contends that the inconsistencies in the Plaintiff’s testimony should be considered.

[14] The difficulty with the submissions on behalf of the defendant is that it is not supported by the evidence or the facts. The conclusion arrived at by Sauer is based on the evidence of Moodie which in turn is based on other undisputed reports as well as the consultation with the plaintiff. The reports set out explicitly the periods of the employment of the Plaintiff and periods of unemployment. His testimony of being a taxi driver and subsequently an owner after the passing on of his mother is undisputed.

[15] The defendant adduced no evidence whatsoever relating to the contingencies to be applied. A submission is only made from the bar that contingencies favourable to the defendant must be applied by this court.

[16] The uncontested evidence is that the plaintiff sustained serious injuries on his left ankle. His testimony in court was that his highest level of education was Grade 8 while the report of Moodie indicates it to be Grade 9. This contradiction is in my view immaterial as the plaintiff remains a semi-skilled worker.

[17] Dr Oelofse is of the view that the plaintiff must not perform physical labour. The uncontested evidence of the experts is that the plaintiff must be accommodated in a permanent light duty and sedentary working environment. It is undisputed that the injuries sustained by the plaintiff have impacted his life negatively. Dr Oelofse also opines that with successful treatment and intervention surgery the plaintiff’s productivity would improve but as degeneration of his left ankle takes effect, his production will decrease.

[18] It is undisputed in my view that the plaintiff is an unfair competitor in the open labour market. That due to the degeneration of his left ankle his productivity level would decrease. I am also in agreement that a higher contingency must be applied in the calculation of future earnings as proposed by Sauer. According to him 5% contingency deduction must be applied on the pre and post morbid scenarios on the past loss of earnings. The defendant is also in agreement with this contingency deduction. On the calculation of future loss of earnings, he suggests 15% contingency deduction on the pre-morbid scenario 35% on the post-morbid scenario. The total loss of earnings would thus be as follows from which 20% must be deducted as contributory negligence:

Had the accident not happened Now that the accident has happened Difference: Loss Past earnings Less contingency deductions(5%/5%) 528 204 26 410 113 985 5 699 Loss of earnings Future earnings Less: contingency deductions(15%/35%) 501 794 5 902 964 885 441 108 286 5 236 374 1 832 731L 393 508 5 017 519 3 403 643 1 613 876 Total loss of earnings 2 007 384 Less: 20 % 401 477 Total payable to Plaintiff 1 605 907

ORDER

In the circumstances I make this order:

1. The defendant is liable to pay 80% (eighty percent) of the Plaintiff’s proven or agreed damages;

2. The Defendant shall furnish the Plaintiff with an undertaking in terms of s17(4)(a) of Act 56 of 1996 for future accommodation of the Plaintiff in a hospital or nursing home or treatment of or the rendering of a service or supply of goods of medical or non-medical nature to the Plaintiff (and after the costs have been incurred and upon submission thereof) arising out of the injuries sustained in the collision which occurred on 2 May 2015. The costs of the expenses herein-mentioned shall be limited as in paragraph (1) above;

3. The defendant shall pay the Plaintiff the sum of R1 925 907.00 (One Million Nine Hundred and Twenty-Five Thousand Nine Hundred and Seven Rands) in respect of damages as follows:

GENERAL

DAMAGES R 320 000.00

LOSS OF

EARNINGS R 1 605 907.00

TOTAL R 1 925 907.00

4. The Defendant shall pay the sum of R 1 925 907.00 (One Million Nine Hundred and Twenty-Five Thousand Rand Nine Hundred and Seven Rands) in the trust account of the attorney of the Plaintiff details of which are as follows:

ACCOUNT HOLDER: VZLR Inc.

BRANCH:

ABSA BUSINESS BANK HILLCREST

ACCOUNT NUMBER: 30147774

BRANCH CODE: 632005

TYPE OF ACCOUNT:

TRUST

5. The Defendant shall pay the Plaintiff’s agreed or taxed costs which shall include, but not limited to the following:

5.1 The fees of Counsel

5.2 The reasonable qualifying costs of the following experts:

5.2.1 Dr LF Oelofse, an orthopaedic surgeon;

5.2.2 Dr Van Heerden, a plastic and reconstructive surgeon;

5.2.3 Elreen Visser from Rita Van Biljon, occupational therapist’

5.2.4 Ben Moodie, an industrial psychologist;

5.2.5 Johann Sauer, an actuary.

P MOLITSOANE J

On Behalf of the Plaintiff: Adv P Du P Greyling

Instructed by: VZLR Attorney

Bloemfontein

On Behalf of the Defendant: Ms. C Bornman

Instructed by:

The State Attorney

[1] Southern Insurance Association Ltd v Bailey N.O. 1984(1) SA ; AA Mutual Insurance Association v Magula 1978( 10 SA 805.

[2] Anthony and Another v Cape Town Municipality 10967(4) SA 445.