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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION, MBOMBELA

(MAIN SEAT)

CASE NO:  3289/18

In the matter between:

P B                                                                                                                              Plaintiff

and

THE ROAD ACCIDENT FUND                                                                              Defendant

JUDGMENT

Roelofse AJ:

[1] The plaintiff was injured in a motor vehicle accident (“the accident”) on 20 January 2017. As a result of the accident, the plaintiff suffered injuries to his neck, left hand, right and left knee and his right ankle.

[2] Persons who are injured in motor vehicle accidents are entitled to compensation by the defendant if they have suffered loss due to the negligence of drivers whom the defendant insures.

[3] The plaintiff has instituted an action against the defendant for damages he allegedly suffered as a result of the accident. The defendant has admitted liability on the basis that the insured driver was 80% negligent and the plaintiff 20%.

[4] The plaintiff claimed general damages, i.e damages for non-pecuniary loss as well as loss of past and future income. At the hearing, the plaintiff abandoned his claim for general damages. I am only asked to determine whether the plaintiff has suffered a loss of income due to the accident and if he did, the amount of the loss.

[5] In order to succeed with a loss of income claim, a plaintiff must prove a causal link between the injuries and the loss.

[6] The plaintiff says that he cannot continue with the same occupation he had before the accident and subsequent thereto and, that prior to the accident, he farmed with chickens which he is no longer able to do in his injured state.

[7] The injuries that the plaintiff sustained as a result of the accident were not in dispute. What is in dispute is the plaintiff’s allegation that he is unable to work as a result of his injuries. The plaintiff’s allegation that he farmed with chickens before the accident is also in despite.

[8] The plaintiff, his occupational therapist and his industrial psychologist testified. The defendant called no witnesses in the trial. 

[9] The plaintiff testified that he secured employment as a representative in July 2017, i.e approximately six months after the accident. The plaintiff’s new job involved extensive travelling for long periods of time. The plaintiff continued with this new job until October 2018 when he resigned. He resigned from this job because he could not cope with the requirements of the job as a result of his injuries. The plaintiff testified that he farmed with chickens prior to the accident and as proof, explained various cash deposits in his bank statements which were discovered in the trial proceedings.

[10] The plaintiff testified that, having regard to his bank statements, an income of R 10 000 to R 15 000 per month on average was the income he derived from his chicken farming business. No other witnesses were called by the plaintiff to corroborate his claim that he farmed with chickens before the accident and no longer does so.

[11] I am not going to repeat the plaintiff’s occupation therapist’s testimony because the parties’ occupational therapists prepared a joint report where they agreed that:

“……on a physical level, his [the plaintiff’s] suitability for medium physical occupations would be challenged by his reported neck pain; knee pain and hand problem, especially when performing bi-manual handling/bimanual dexterity such as controlling or manipulating hand/foot pedals in an OLM at production pace rate. Furthermore, considering the degenerative disc disease progression that could be exacerbated by certain tasks in this category” – paragraph 5.6 under the heading “WORK ABILITY” of their joint report.

and

“….that it can however be expected that experienced [sic] pain to his right knee as reported during the evaluation would have had a negative effect on long distance / constant driving requiring use of the right leg to manipulate right foot pedal [sic]. Cognizance is given to the recommendation of both Orthopaedic Surgeons in which they recommend conservative treatment for cervical spondylosis It is a general consensus that pain affects one’s productivity which could have been the case even following the accident.” – paragraph 5.7 of their report.

and

“We agree that he is now expected to seek lesser demanding jobs and this will render him as an unequal competitor for jobs in the open labour market or he might experience brief periods of unemployment waiting for suitable positions.” – paragraph 5.9 of their report.

[12] From the occupational therapists’ joint report, I find that the injuries have compromised the plaintiff in the sense that, as a result of the injuries, the plaintiff’s employment opportunities and his ability to keep his employment has been adversely affected. He must now be content with jobs with less physical demands than that of driving of a motor vehicle for extensive periods of time.

[13] The plaintiff’s industrial psychologist testified. In her testimony, she confirmed the findings in her report. Her findings and testimony were not upset under cross examination. In her report, she says as follows:

 “Given his [the plaintiff’s] reduced physical capacity, the writer opines that Mr. Bila’s occupation choices are limited by his injuries / residual pains. He is rendered a vulnerable employee and an unfair competitor.” – paragraph 8.2.4 of the industrial psychologist’s report.

and

“…Although he [the plaintiff] retains capacity to execute certain jobs, he is therefore rendered a vulnerable employee given his residential physical capacity….The writer opines that Mr. Bila’s employability is has been negatively impacted as a result of the injuries he sustained in the accident. Mr. Bila would be expected to suffer loss of future income.” – paragraph 11.2 under the heading “Future loss of income”

[14] The industrial psychologist’s opinion accords with the occupational therapists’ opinions and the plaintiff’s testimony regarding his present difficulties. I find that the plaintiff resigned from his new employment as a result of the effect of his injuries. The plaintiff must be compensated for his past- and future loss of income. The question is, how much must the plaintiff be awarded to compensate him for his past and future patrimonial loss?

[15] Only the plaintiff submitted calculations from his actuary. The plaintiff’s actuary based his calculations upon the plaintiff’s pre-morbid income including the plaintiff’s alleged farming income.

[16] Let me deal with the question whether the plaintiff has proven that he farmed with chickens and how much he earned from that enterprise. There is no independent testimony to corroborate the plaintiff’s claims about his farming activities. Surely there would have been people that could corroborate the plaintiff’s version for the evidence of a single witness (which the plaintiff was in this respect) must be approached with caution. Surely the plaintiff’s friends or family knew about his farming enterprise or surely, one of his clients could have corroborated his version. The plaintiff himself testified that he employed a helper for the chicken farming during the week when he was normally employed. No explanation was given for not presenting such corroborating evidence. I ask why as I am entitled to ask. Negative inferences are allowed when evidence of persons who may be witnesses are not presented. A party’s failure to call available witnesses may in exceptional circumstances lead to an adverse finding being drawn from such failure against the party concerned. In ELGIN FIRECLAYS LIMITED v WEBB 1947 (4) SA 744 (A), WATERMEYER CJ, at 749 to 750, sets out as follows:

“Counsel for the applicant relied upon the fact that the herd was not called to give evidence, and, from respondent's omission to call him as a witness, asked the Court to draw the inference that his evidence was in some way unfavourable to the respondent. With regard to this request, it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. See Wigmore (secs. 285 and 286).) But the inference is only a proper one if the evidence is available and if it would elucidate the facts”.

[17] In SAMPSON v. PIM 1918 AD 657, the plaintiff’s witness was subpoenaed and available but not called. SOLOMON, J.A., at 662, made the following remarks which in my view, finds application in this case:

'The inference is irresistible that his evidence would not have supported the plaintiff's case. It might of course have been negative, as he may not have been keeping a look-out and so may not have been able to assist the Court one way or the other. But if he could have given evidence favourable to the plaintiff it is inconceivable that he should not have been called.'

[18] In my view the fact that even a single corroborating witness over the plaintiff’s farming enterprise may have carried the day for the plaintiff. The plaintiff’s experts accepted the plaintiff’s say so in that regard as appears from their report. Not even they succeeded in getting corroboration in respect of the plaintiff’s alleged farming enterprise. It may be that this matter was approached as many other RAF matters that the issues will be resolved upon expert reports. This is a dangerous road to take as is demonstrated in this matter. I find that the plaintiff did not prove on a balance of probabilities that he ran a chicken farming business from which he derived an income before the accident.

[19] Having rejected the plaintiff’s version that the plaintiff farmed with chickens prior to the accident, I am faced with a challenge for the plaintiff’s actuary’s report includes in its calculation the plaintiff’s farming income. That income was taken as R 10 000 to R 15 000 per month whereas the plaintiff’s income from his formal employment was taken as
R 7000 per month.

[20] The only way I see to resolve this difficulty is to recalculate the amount derived by the plaintiff’s actuary by multiplying that amount by the fraction represented by the plaintiff’s formal income over his total income including the alleged farming business income – i.e 7/(12.5 (representing the average between R 10 000 and R 15 000 + 7 (representing the plaintiff’s formal income of R 7 000)) by the amount calculated by the plaintiff’s actuary in respect of the plaintiff’s past- and future income. The formula is thus 7/19.5 multiplied by the actuary’s amount.

[21] Let me do the maths for ultimately the amount awarded as damages is within the court’s discretion which is guided by fairness between the parties.

[22] The plaintiff’s actuary applied a contingency percentage of 35% on the plaintiff’s future loss of earnings. The actuary calculated the plaintiff’s total loss of earnings in the amount of R 1 970 270 after deducting a contingency of 35%.

[23] Having regard to the parties’ occupational therapists’ joint opinions and the plaintiff’s industrial psychologist’s opinion, the plaintiff has demonstrated that he is, as a result of the accident, an unequal competitor in the labour. However, the plaintiff is not entirely unable to work in future. Havong regard to these factors, I consider a contingency of 35% to be fair.

[24] I therefore determine the plaintiff’s loss by applying the following calculation:

R 1 970 000 x 7/19.5 = R 707 276

[25] The defendant admitted its insured driver’s negligence and agreed to an apportionment of damages at 80/20 percent. The amount arrived to above must therefore be apportioned in accordance with that formula:

R 707 276 x 80% = R 565 821

[26] the premises, I make the following order:

(a) The defendant is ordered to pay the plaintiff an amount of R 565 821.00 plus interest at a rate of 10% per annum, calculated daily, reckoned from the date of summons to the date of payment, both days included;

(b) The defendant shall indemnify the plaintiff for all of the plaintiff’s future medical expenses associated with the injuries the plaintiff sustained in the motor vehicle accident on 20 January 2017;

(c) The defendant is ordered to pay the plaintiff’s costs including the costs of the plaintiff’s experts.

Roelofse AJ

Acting Judge of the High Court

DATE OF HEARING: 3 and 21 February 2020

DATE OF JUDGMENT: 25 February 2020

APPEARANCES

FOR THE PLAINTIFF:                ADV M MBHALATI                         

INTSTRUCTED BY:                    NGOMA & ASSOCIATES ATTORNEYS

FOR THE DEFENDANT:             ADV N MOHLALA               

INSTRUCTED BY:                       T.M CHAUKE INCORPORATED

 

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