Mokwena v Road Accident Fund (82577/2018) [2020] ZAGPPHC 807 (25 November 2020)

IN THE HIGH COURT OF SOUHT AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE 82577/2018

NOT REPPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

COLLEN MOKWENA

PLAINTIFF

and

ROAD ACCIDENT FUND

DEFENDANT

JUDGMENT

TLHAPI J

[1] The plaintiff instituted action against the defendant for damages suffered in a motor vehicle collision in Arcadia, Pretoria on 17 December 2017 where he was a passenger. Merits and General Damages were settled at 100% and R500 000.00 respectively and an undertaking in terms of section 17(4) of the Road Accident Fund Act was tendered on 30 January 2020. The remaining issue to be dealt with was that of loss of earnings.

[2] A first pre-trial meeting was held on 12 July 2019 with the defendant's erstwhile attorneys Tsebane Molaba Inc., the defendant had not as yet appointed experts and as at going to trial no defendant expert reports were available. The defendant was duly notified of the trail date and there was no appearance for the defendant at trial.

[3] The plaintiff relies on its experts and the expert reports are accompanied by confirmatory affidavits from the following experts:

Industrial Psychologist: Mr Oscar Sechudi

Orthopaedic Surgeon: Dr Joseph Sibanyoni

Neurosurgeon: Dr DN Chula

Occupational Therapist: Mr J T Matsape

Clinical Psychologist: Dr A Peta

[4] The plaintiff was born on 1 March 1996. After matriculating he registered for a Law degree with UNISA in 2016 and dropped out after a year. He was then employed at Mercedez Benz as launcher from 2016 to 2017 and he was also attached to TUKS as an athlete 2012 to 2017. He was unable to resume his activities and occupation after the collision due to the sequelae of the injuries sustained.

[5] According to the Orthopaedic Surgeon and relying on the hospital records the plaintiff sustained the following injuries

-soft tissue injury of the back;

-soft tissue injury of the neck;

-injury of the right elbow;

-painful chest;

Further injuries described by the patient were:

-lacerations to both knees which left scars;

-fracture of the nasal bone;

-neck injury;

-head injury;

Lower back injury;

After further examination and calling for x-rays the final diagnosis was that "there was a previous avulsion fracture of the tibial tuberosity with non-union; a narrowing of the LS/S1 disc injury at that level and no arthritic changes." He further found that the plaintiff had sustained serious orthopaedic impairment which qualified under the narrative test. The right knee tibial tuberosity at 20% equalling to a WPI of 08% and the spine at 3% equalling a WPI of 3% which totalled a WPI of 11%. It was also found that the injuries sustained had curtailed his sporting activities which would reduce him to a sedentary lifestyle.

[6] The Neuro Surgeon examined the plaintiff almost three years after the collision. Adding to the injuries already stated he records that the plaintiff lost consciousness after impact with a GCS of 15/15. He regained it a day later in hospital and that he had a period of amnesia and confusion. After examination he stated that the plaintiff suffered of:

"...chronic headaches neck pains, thoracic pains and lower back pain, poor school performance; memory impairment anxiety and post-traumatic stress disorder ...... he had no seizures although which he had a 3% risk of developing as a result."

[7] The Clinical Psychologist's assessment was done almost three years after the collision having regard to hospital records and reports of other experts. The plaintiff was also subjected to psychological and neuropsychological tests. He was generally a healthy person prior to the collision. He had a number of cognitive deficits and had below average cognitive abilities. The post traumatic stress disorder had a negative impact on his inter­ personal and physical functioning and he would benefit from psychotherapy .

[8] The Industrial Psychologist opined on the scenario that would have prevailed had the plaintiff not been involved in the collision. He stated that in the capacity as a semi-skilled worker employed as an athlete and launcher, his earning capacity was in the region of R13 000,00 which would amount to R156 000 per annum, this translated to an earning capacity between the "Median and the UQ of the scale [Median: R73 000; UQ: R160 000] per year (Koch 2018) and that the Koch 2020 suggested earnings for semi-skilled workers that ranged between: R37 900 -R86 000 - R186 000. He suggested that considering his age the plaintiff's earnings would have progressed to the UQ (R186 000) towards his career ceiling at 45 and that at 46 his earnings would have stabilized only earning additional inflationary increases up to retirement age at 65 years.

[9]Two Actuarial Reports by Munro Actuaries were filed. The first bearing instructions for calculations dated 8 June 2020 and the second with instructions dated 25 November 2020 and based on the Industrial Psychologist's report of 8 June 2020 and on the figures as per the Robert Koch Yearbook 2020 relating to semi-skilled workers. The narration in both reports are almost similar, the difference lying in what was considered as the Capital Value on which the calculations were based. In the former report the following was stated:

Past 393 000

Future 3 987 000

Total 4 380 000

The calculations of the plaintiff's loss of earnings following his career path stated his earnings as at date of accident as at 2017 to be in the region of R13 000.00 per month.

The latter report stated the Capital Value as follows:

Past 169 100

Future 3 204 600

Total 3 373 700

The key instructions from the attorney were that the earnings as at date of collision were in the amount of R 3 500 which was indicated in the affidavit by the plaintiff which is filed on 091-1 of case lines. No contingencies were applied and the cap was not applicable.

EVALUATION

[10] The Industrial Psychologist described the plaintiff's career as that of an Athlete and Launcher. It does not seem to me that an in-depth enquiry was launched as to what these employment activities entailed and the enquires with the past employers of the plaintiff. It also does not seem that enquiries were made with the employers as to where it was possible to fit him into the labour market. Except that the plaintiff attained a grade 12 and dropped out of University during his first year Law Degree with Unisa and no details are given regarding his academic performance at the time. There is no indication whether his involvement with TUKS and being an Athlete was related to his further studies and how or why he would have earned a salary as postulated. The plaintiff's affidavit relating to his salary as at the date of collision was attested to in 2019, two years after the collision and he stated that he earned R3 500 per month and not the R13 000 as postulated as what he would have earned as a semi -skilled worker in the earlier actuarial calculations.

[11] Instructions given to an actuary for calculation should be based on proven facts and in this instance the plaintiff bears the burden to prove such facts relating to his/her loss as shall be relied upon on a preponderance of probabilities. This relates also to the expectation that the actuary on the facts provided would postulate figures which are realistic, as the actuary is there to give guidance to the court. It is also important to note that the court has a wide discretion to make an award that is fair given the proven facts to both litigants. In this instance as already indicated the actuary made no postulations regarding contingencies.

[12] Further, in paragraph 6 of counsel's Heads of Argument he uses postulations in the latter actuarial report of November 2020 which gives the value of the income uninjured at R169 100 and the valued of income injured at R3 204 600. He charts three scenarios in which different contingencies were applicable, being, scenario 1where contingencies of 5% on past loss and 15% on future loss was applied; scenario 2 where 5% of past loss and 20% on future loss was applied; scenario 3 where 5% of past loss and 22% on future loss was applied.

[13] In my view a contingency of 5% on past loss and 25% on future loss would be fair and reasonable and this is calculated on the postulations in the latter Actuarial Report. where the uninjured income was on past loss valued at R169 100 and on future loss valued at R3 204 600. 00. A draft order reflecting these figures should therefore be prepared for loading on case lines to be made an order of court. The calculations are reflected as follows:

Value of income uninjured

169 100.00

Less 5% contingency

8 455.00

160 645.00

Value of income injured

3 204 600

Less 25% contingency

801 150

2 403 450

Total Loss R2

564 095

[14] In the result the following order is granted in terms of the above amount and the order is in that amount is to be loaded on case lines for signature by myself.

TLHAPI W

(JUDGE OF THE HIGH COURT)

MATTER HEARD ON :

24 November 2020

JUDGMENT RESERVED ON

: 25 November 2020

ATTORNEYS FOR THE PLAINTIFF: : H C RAMATLADI ATT.

ATTORNEYS OF THE DEFENDANT : THE ROAD ACCIDENT FUND