Nkosi v Road Accident Fund (61638/2014) [2018] ZAGPPHC 399 (25 May 2018)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

CASE NO: 61638/2014

25/5/2018

In the matter between:

LSS NKOSI

PLAINTIFF

And

ROAD ACCIDENT FUND

DEFENDANT

JUDGMENT

MIA, AJ

[1] The plaintiff Lindisiwe Siphesihle Sakhile Nkosi instituted an action for damages against the defendant in terms of the provisions of the Road Accident Fund Act, Act 56 of 1996 ("the Road Accident Fund Act") arising from bodily injuries that he sustained as a passenger in a motor vehicle collision on 22 January 2011 in Richards Bay. When the matter commenced the plaintiff’s father assisted him herein. The plaintiff has since reached the age of majority.

[2] The issue of liability (merits) have been conceded 100% in favour of the plaintiff. The issue of general damages and loss of earnings was separated from all other issues in terms of an order in terms of Rule 33(4) with the remainder of the issues(past hospital and medical expenses) being postponed sine die. The defendant undertook to furnish an undertaking in terms of section 17(4) (a) of the Road Accident Fund Act in respect of future hospital and medical costs. The sole issue for determination by this court was loss of earnings as the defendant offered an accepted amount of R650 000 for damages. The evidence of the plaintiff was led regarding his ability to compete and his progress in his particular field having regard to the injuries sustained.

[3] The parties agreed that the contents of the various medico- legal reports obtained on behalf of the parties and joint minutes compiled by the overlapping experts obtained would serve as proof of the opinions of the experts regarding the impact of the injuries on the plaintiff and his future career prospects and trajectory. Counsel referred to the joint minute of the occupational therapists E Kingsley and S Moagi and the industrial psychologists Ms K Kotze and Ms M Kheswa. Counsel's submissions regarding the loss of earnings were premised on the actuarial calculations of the plaintiffs actuary, Johan Sauer in a report dated 12 March 2018 in respect of future loss of earnings.

[4] The main issue left to be determined, in light of the submission of counsel, is the applicable contingencies to be applied. Both parties filed numerous medico-legal reports of various experts. The parties' agreed that the said reports may be accepted as evidence by the court. I have considered the evidence of the plaintiff and the joint minutes herein.

[5] The orthopaedic injuries sustained by the plaintiff which are relevant to the main issue to be determined are common cause and include:

4.1 right shoulder injury;

4.2 right hip and upper leg injury;

4.3 psychological trauma

The plaintiff had his first hip replacement in 2016 and was booked off for 6 weeks after the accident and was on crutches for four weeks resulting in a total of ten weeks off. He was prescribed pain medication and muscle relaxants for pain.

[6] The plaintiff was a Grade 8 scholar at the time of the accident. He completed his National Senior Certificate in 2015 with 2 distinctions. He enrolled at Lanseria Flight Centre (Pty) Ltd and is in his final year of studying toward his Private Pilot's Licence. Mr Nkosi testified regarding his experience during training as toward this licence. He passed the civil aviation physical examination. During his training and as a qualified pilot he was not permitted to take any pain medication whilst flying as it could interfere with his assessment and decision making.

[7] Mr Nkosi testified there was a 2cm difference between his legs. This impacted on his ability as a pilot. Whilst he now completed his private pilot licence, he was completing his commercial pilot licence. He would usually fly a small plane, namely a Cesna 172. He described that the wings of the plane are on the top or bottom of the plane. The pilot is required climb onto the wings and to check the fuel personally. He experienced difficulty executing this task as it required him to climb onto the wing of the plane which is a distance from the ground. The difference in the length of his legs and the hip injury made this routine task of a pilot very difficult for him. He explained further that with small planes the pilot usually attended to all the preparation such as checking the fuel and loading the plane him or herself. This required carrying and packing the luggage onto a plane where the entrance was approximately one and half metres above the ground. He struggled with entering such a plane on his own and packing luggage posed a greater challenge. The injury to his hip caused discomfort when he climbed in and out so he had to find an alternative way to access the plane.

[8] He testified that he was required to fly two hundred hours in total to achieve his licence. He was only able to fly two hours and thirty minutes after which he needed to take a break. Students who want their commercial licence fly four hour flights at a time to achieve their licence. This would be a flight from Johannesburg to Port Elizabeth which student completed in one day. He took two days to complete the same flight as he experienced fatigue when flying and was compelled to stop. He was very uncomfortable and unable to stretch his leg which aggravated the pain he experienced. This contributed to loss of concentration and impacted on his work progress. The roof of the plane was very low and the flight was very cramped which further contributed to his discomfort as he was restricted to a small space for a long period of time without being able to stretch and relieve pressure from being seated for long periods.

[9] He explained the possible career trajectory of pilot was to become an instructor after which a pilot could take on contract flights for small planes and after seven years possibly proceed to commercial flying. This he explained would cause great discomfort to him due to the long duration of international flights. He explained there were very few commercial flights available of less than three hours. Whilst employment equity advantaged him. The availability of short international flights and his inability to tolerate longer flight times would prevent employers from seeking him out. The lack of availability of short flights presented a problem and limited the availability of opportunities for him.

[10] The occupational therapists, Ms S Moagi and Ms E Kingsley, agree that the plaintiff's capacity does not meet the physical requirements for occupations that require working in prolonged squatting and crouching due to right hip pain. He also presented with reduced standing and walking endurance. They agreed that he is best suited for sedentary tasks that enable him to alternate between sitting and standing. They agree his employment as a pilot has light physical demands however requires prolonged periods of sitting during flights while operating foot controls. He would not be able to tolerate this position for the

duration of the flight and the resulting physical pain would interfere with his concentration levels. As he was not permitted to

use pain medication to reduce the pain, his work ability as a pilot is compromised as a result of the injuries sustained during the accident.

[11] The industrial psychologists, Ms Kotze and Ms Kheswa, agree that the plaintiff is not fully suited to the work in the role of a pilot considering his right hip impairment and the concomitant restrictions as well as the necessity of future hip replacements. They note he is disadvantaged when required to fly long distances and "his need for accommodation will render him a less competitive and vulnerable employee. This will be further exacerbated by the psychological sequalae of the accident". They agree that a higher than normal contingency be applied. They also agree that he will incur a loss of income as a result of sick leave and not being able to work as usual as he will not be able to take pain medication which prohibits him from flying.

[12] The evidence of the plaintiff's experience in comparison to able-bodied persons was uncontested. This would result in a loss of income as his detailed explanations of his experience and the hardship endured whilst trying to achieve his private and commercial pilot licence show. He submitted that on this basis the Court ought to exercise its discretion to ensure that the plaintiff was not prejudiced. He submitted further that the Court was not bound by any calculations. As a pilot the normal contingencies would be applicable but in the plaintiff instance there were additional perils and hardship. He has to break up a normal flight which means he will not be a preferred pilot. He will have to manage flights to accommodate client's needs and will only be able to work with an employee who has a considered sympathetic position for his physical limitations. The result is that he will lag behind and may become depressed.

[13] Both Mr Scheepers appearing for the plaintiff and and Mr Khwela appearing for the defendant referred to various decisions to assist the Court in coming to a decision. Mr Scheepers submitted that 15 % is a usual conservative differential. Calculating the loss from the present to age 55 years old at %% per year based on Goodall v President Insurance 1978 (1) SA 389 (W), takes it to 17%. In line with the experts view that the contingency deduction be higher than normal Mr Scheepers submitted

that 20% was not a huge difference and he submitted that this was more appropriate to the circumstances.

[14] Mr Khwela submitted that Mr Nkosi could progress with delay to his premorbid scenario. He was therefore of the view that a 25% contingency post morbid deduction was reasonable under the circumstances. He referred to the decision of Southern Insurance Association v Bailey NO 1984 (1) 98 AD. Two approaches were identified that can be used to determine future loss of earnings at pp113 to 114C-D, by Nicholas JA:

"One is for the Judge to make a round estimate of an amount 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 calculations, on the assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent."

[15] In Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A) at 965 G-H, Trollip JA stated:

'... the determination of allowances for such contingencies involves, by its very nature, a process of subjective impression or estimation rather than objective calculation, in other words, allowances on which judicial opinions may vary appreciably,...'.

[16] On the basis of the joint minute of the industrial psychologists, the plaintiff could enter employment as a pilot but is not suited to the work role. His career prospects and associated earnings have been truncated to a significant degree by the sequelae of the injuries sustained in the accident. They envisage a higher contingency deduction should be applied in respect of truncation of Mr Nkosi's future career prospects and earnings. They note that future sick leave will affect his income. Further they note an early retirement at approximately age 50 to 55 years of age.

[17] The aforegoing translated into an actuarial calculation by the plaintiff's actuary Johan Sauer Actuaries and Consultants in terms of which the net loss of earnings (past and future) of the plaintiff was calculated on the basis of two possible scenarios. The first scenario postulates the plaintiff's post - morbid earning an income in comparison to his pre­ accident earnings. The second scenario postulates a case where the plaintiff was not affected by the accident. Both scenarios apply a 10% contingency. The first scenario where the accident had not occurred the plaintiff’s loss of future earnings would have been R10 880 604. The second scenario now that the accident has occurred, still applying a 10% contingency the plaintiff loss of future earnings amounts to R7 219 313.The plaintiff’s loss of future earnings if thus R.

[18] The plaintiff's future pre - morbid income, as well as his post - morbid income, were calculated at R3 661 291, before the application of contingencies. The contingencies applied were as follows: the standard 10% contingencies in respect of the pre - morbid future income, and a 10 % higher contingency of 25% was applied to the post - morbid projected income, resulting in nett future loss of income of R3 661 291.

[19] Having regard to the to the sliding scale contingency theory referred to by Robert J Koch set out in Goodall supra, which provides:

"1/2 % per year to retirement age, i.e. 25% for a child, 20% for youth and 10% in middle age"

Mr Sauer the plaintiff's actuary considered the Impairment Assessment Report which indicated a whole person impairment of 15% present. He thus illustrated a future contingency split of 15% and future post morbid contingency deduction of 25%(10%+15%).

[20] I am satisfied that the application of a higher contingency be applied to the future loss of income. Whilst the parties agree that the plaintiff in all probability would attain his commercial pilot licence, the certainty of passing his annual medical examination

reviews remain an uncertainty. He is due to have further medical procedures which may impact on these medical reviews. I cannot lose sight of the fact that this is acknowledged by the experts. The experts also in view of the future treatment procedures foresee a loss of income due to a loss of flying time whilst Mr Nkosi is recovering and due to an early retirement age of 50 or 55 years old.

[21] Having regard to the totality of the evidence I am satisfied that a 25% contingency deduction be applied to the future loss, The net total loss of income accordingly amounts to R3 854 880.00 which includes the damages in the amount of R650 000 which counsel submitted was offered by the defence.

[22] The order granted was granted in terms of the draft order attached marked" X" , duly incorporated into the judgment, with the insertion of the amount of R3 854 880.00.

S C MIA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Appearances:

On behalf of the plaintiff

: Adv G Scheepers

Instructed by

: VZLR Inc .

On behalf of the Defendants

: Adv NP Khwela

Instructed by

: Tau Phalane Attorneys

Date of hearing

: 14 March 2018

Date of judgment

: 25 May 2018