---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE  N0114971/12

23/10/2015

 

In the matter between:

 

BALOYI MARTHA                                                                                               PLAINTIFF

and

ROAD ACCIDENT FUND                                                                                DEFENDANT

JUDGMENT

KUBUSHl, J

[1] When the parties appeared before me the merits and quantum in respect of general damages had been settled. Only damages in regard to the loss of earnings remained to be argued, and was indeed argued before me.

[2] No evidence was led. The parties relied in their arguments on the following medico-legal report filed of record by the plaintiff: the reports by the orthopaedic surgeon, the occupational therapist, the vocational psychologist and the actuary. The defendant did not file any medico-legal reports.

[3] The plaintiff was involved in a motor vehicle collision whilst a passenger in a taxi which collided with another taxi. She is thus in this action claiming damages sustained as a result of that collision.

[4] The plaintiff sustained a fracture of the distal left radius. She complains of a painful left wrist which decreases her ability to carry heavy objects. She has been diagnosed of an average strength deficit of 15% post distal radius fracture. The symptomology is going to get worse with time. There is a 15% chance that she might get osteoarthritis of the left wrist which might warrant fusion in the next 15 to 20 years.

[5] At the time of the collision the plaintiff was self-employed as a street hawker selling vegetables and second hand clothes. She has been so employed for 16 years. This job necessitated normal use of both hands and involved carrying and lifting of weights in the form of stock. She has never been formally employed in the open labour market and has always been self­ employed.

[6] Post-accident the plaintiff is still working as a hawker. She can only carry limited goods at a time for selling for the day due to the pain in the left wrist. This reduced her income considerably. In order to maintain her pre­ accident income she had to employ an assistant to help her carry the heavy goods. She pays the assistant R300 a week, as a result she herself now earns less income.

[7] The findings of the orthopaedic surgeon is that she is always going to be limited in her choice of occupation as she has moderate pain in her left wrist with decreased strength. She will not be able to compete fairly for a job on the open labour market. Her loss of work capacity is estimated at 10% for such jobs.

[8] At the time of the collision she reported earnings of about R15 000 per month. Post-accident she can only perform a light physical type of work. Her abilities as a hawker have been compromised. She will only continue to sustain her employment as a hawker with the help of an assistant. She has as a result sustained partial loss of future earnings which pertains to the expense of hiring an assistant for her business

[9] The actuary did not apply any contingencies to his calculations and left them for the court's decision or negotiations by the parties. The parties' negotiation has fallen through I have now to determine the contingencies.

[10] The defendant's counsel concedes that the plaintiff does require an assistant in her business but submits that punitive deductions based on the following factors should be applied: chances of orthopaedic fusion falls when the plaintiff will long have retired; there is no collateral evidence to support the plaintiff's assertion that she was working as a hawker for 16 years; and, the reports are not supported by documentary evidence. The defendant's counsel submits that after all the normal contingencies have been applied a 50% deduction should be applied to the claim.

[11] I am not in agreement that punitive deductions as submitted by the defendant's counsel should be applied. But, I am of the view that higher than normal contingencies in respect of the future income should be applied for all the reasons raised by the defendant's counsel.

[12] The calculations should be as follows:

Item of loss	Past Income	Contingency deduction	Total Income
Pre-morbid Income	730 390	0%	730 390
Post-Morbid Income	592 770	0%	592 770
	137 620		137 620

 

Item of loss	Future Income	Contingency deduction	Total Income
Pre-morbid Income	1796 043	20%	1436 834 - 40
Post-Morbid Income	1612 228	30%	1128 559 - 60
	183 815		308 274 - 80
Total  Loss			445 894 - 80

 

[13] In the circumstances I make the following order:

1. The plaintiff's claim for loss of earnings succeeds in the amount of R445 894, 80.

2. The defendant is ordered to pay the plaintiff's costs of suite which costs shall include the costs of –

a. Dr P. T. Kumbirai the orthopaedic surgeon;

b. Mpho Zwane the occupational therapist;

c. Letsholo M Tabane the vocational psychologist; and

d. Wim Loots the actuary.

 

_____________________

E.M.KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON THE: 09 OCTOBER 2015

DATE OF JUDGMENT: 23 OCTOBER 2015

PLAINTIFF’S COUNSEL: ADV. D MPHAHLELE

PLAINTIFF'S ATTORNEY: BALOYI ATTORNEYS

DEFANDENTS' COUNSEL: ADV. T L MARISHAHI

DEFENDENTS' ATTORNEY: A P LEDWABA ATTORNEYS

---