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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 (MIDDELBURG LOCAL SEAT)

 

CASE NO 684 / 2019

(1)    REPORTABLE:  NO

(2)    OF INTEREST TO OTHER JUDGES:  NO

(3)    REVISED

DATE: 28/03/2024

SIGNATURE

In the matter between:

ANDRE GROBBELAAR                                                                                                                PLAINTIFF

 

And

 

THE ROAD ACCIDENT FUND                                                              DEFENDANT

RAF 5[...]

Link 4[...]

JUDGMENT

LANGA J:

 

Introduction

[1]        The Plaintiff Andre Grobbelaar instituted action against the Defendant, the Road Accident Fund (“the Fund/Defendant”) for damages arising out of a motor vehicle incident which took place on 10 September 2018. The Plaintiff, who was 30 years of age at the time, was driving a motorcycle with registration number J[...] 5[...] M[...] when he collided with an unknown motor vehicle in John Magagula Street Middelburg. He sustained injuries in the collision.

 

[2]        The issue of liability was settled on the basis that the Defendant would pay 100% of the Plaintiff’s proven or agreed damages. The issue of general damages was referred to the Health Professional Council of South Africa for investigation. The Fund in principle agreed to settle the issue of future medical by an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 996, the Act. The only issue for adjudication is therefore loss of earnings.

 

Evidence 

[3]        The Defendant did not adduce any evidence or file any expert reports. The Plaintiff’s version is that as a result of the collision, he sustained serious bodily injuries including a fractured left radius; injury to the right and left knee and multiple abrasions and lacerations. The Plaintiff gave viva voce evidence and also relied on the following experts whose reports and evidence was tendered by way of affidavits with the consent of the Defendant.

 

1. Dr Oelofse (Orthopaedic Surgeon)

 

            2. Dr Oelofse (RAF 4 Form)

 

            3. Ms Kunz (Occupational Therapist)

 

            4. Mr Moodie (Industrial Psychologist)

 

            5. Johan Sauer (Actuary)

 

[4]        In his testimony the Plaintiff Mr. Grobbelaar confirmed that he was knocked down by an unknown motor vehicle which did not stop after colliding with him. He stated further that he was injured and taken to Life Midmed and discharged the same day as confirmed by Dr Oelofse in his report.

 

[5]        Regarding his personal circumstances Mr Grobbelaar stated that he obtained a grade 10 level of education before discontinuing his education to support his family financially. He confirmed that he worked at Power Engineering from 2005 to 2007 as Assistant Mechanic, earning around R8 000 per month. In 2007 he commenced his working career at his father’s business, Natville Construction & Services, as a semi-skilled boilermaker earning between R6 000 and R7 000 per month.  He received in-service training and was trained by qualified people in the trade. He worked his way up to the point where in 2017 he took over the family business earning about R40 000 per month. Although he explained that to become a qualified boilermaker one can gain an N2 level of education or gain knowledge and experience in the field and then pass your trade test, it is, however, common cause that he did not complete any of these formal qualification routes.

 

[6]        Regarding his earnings, Mr Grobbelaar stated that immediately prior to the accident he was earning about R40 000 per month at Natville working as supervisor. After the accident, he returned to work where he continued his work in a supervisory position. As he performed supervisory work only, his earnings were apparently reduced by R8 990 per month to R31 010 per month. When the business was later liquidated in around the year 2021 after experiencing financial challenges, the Plaintiff obtained employment as a driver at Middal from around August 2021 until March 2023. He earned R9 000 per month. He then found work opportunity in the United States of America (“USA”) for 7 months where he worked as tractor driver on a farm where he earned a fluctuating income of around $2 400 per month average with a rand-dollar exchange of around R17 - R18 per $1. His average income was calculated as being plus or minus R 40 8006 and R 43 2007 per annum. Mr Grobbelaar stated that his aspiration to become an artisan was dealt a death knell by the accident.  He explained that he experiences pains when doing physical work.

 

[7]        In his report dated 17 October 2019, (Exhibit “A”), Dr Oelofse deals mainly with the injuries suffered by the Plaintiff. After examining the Plaintiff, he was of the opinion that he suffered serious injury and was startled that the HPCSA had questioned the seriousness of his injury. He confirmed as stated above that he sustained a fractured left radius (wrist),

had injury to the right and left knee as well as multiple abrasions and lacerations. Regarding the treatments he stated that reports show that after he was stabilised in the emergency room and X-rays taken, a back slab was applied to the left hand the Plaintiff received pain medication and prescribed analgesics.

 

[8]        Concerning the impact of the injuries Dr Oelofse opined that as a result thereof the Plaintiff experienced chronic pain and tenderness of the left wrist; weakness of the left wrist; post-traumatic osteoarthritis of the wrist joint; difficulty lifting and carrying heavy objects; residual pain in both knees and decreased physical work capacity. He described the Plaintiff’s left wrist fracture as complex as it damaged some of the cartilage around the wrist which caused post-traumatic osteoarthritis of the wrist joint which can only get worst with time. He opined that conservative and surgical treatment, as well as physiotherapeutic and biokinetic rehabilitation is expected. Regarding the knees he opined that there is a possibility that conservative treatment will not be successful for one or both of them and which event the Plaintiff might have to undergo an arthroscopic debridement of both knees.  He observed that the Plaintiff experienced excruciating pain when squatting, handling heavy objects and climbing. He also experiences severe pain when getting in and out of a vehicle, driving a light vehicle and sleeping.

 

[9]        Regarding his ability to work Dr Oelofse opined that the injuries, particularly his left wrist injury, would have a profound impact on the Plaintiff's amenities of life, productivity and working ability and will continue to do so in the future. He was of the view that with successful treatment his productivity will improve even though degeneration in his left wrist will have a negative effect. He stated that regardless of successful treatment the Plaintiff will always have a permanent deficit which will make him an unfair competitor in the labour market. In his opinion the Plaintiff would require accommodative light duty work environment.

 

[10]      Ms Alet-Mari Kunz, an Occupational Therapist assessed and evaluated the Plaintiff 14 July 2020 and compiled a report which was admitted into evidence as Exhibit “B”. She noted that the Plaintiff complained of his left wrist and lower back since the accident even though the lower back injury has not been attributed to the accident. She opined that he is suited for sedentary, light, medium and heavy work and as such currently suited for his pre-accident, post-accident and current work as a Business Owner and Boilermaker. Ms Kunz however stated that the Plaintiff still experiences pain of his left wrist when doing welding work. She further noted that according to Drs Oelofse and Deacon the Plaintff had post-traumatic osteoarthritis of the left wrist joint for which work which requires heavy load handling such as his current duties, is not recommended as continuous strain on the left wrist could lead to quicker deterioration of his condition the decrease in his physical

work capacity.

 

[11]      The next witness was the industrial psychologist, Mr. Ben Moodie who assessed the Plaintiff on 4 November 2020 and filed a report dated 15 June 2022 which was admitted into evidence as Exhibit “C”.  He confirmed the Plaintiff’s educational level and working career as stated above. He confirmed in particular that before the accident he worked as a semi-skilled boilermaker and that in 2017 he took over the family business and earned about R40 000 per month in September 2018. He stated that although he had no formal qualifications required for boiler makers, the Plaintiff was able to earn on par with qualified boilermakers. After the accident in question the Plaintiff had to employ an assistant and this had a direct impact on his earnings with his salary dropping by an amount of R8 990 to an amount of R31 010 per month.

 

[12]      Mr Moodie’s uninjured postulation is that but for the accident the Plaintiff would have continued at Natville earning R40 000 per month probably until the liquidation of Natville in 2021. Upon losing his employment, the Plaintiff would have gone on to accept any paying employment, as he has done. The Plaintiff was employed as a Driver at Middal on earnings of R9 000 per month which translated to R108 000 per annum. He opined further that the Plaintiff would have continued working in the capacity at Middal whilst going on to apply for, complete and pass his Trade Test, eventually qualifying a as Artisan or qualified Boilermaker. He then opined that a full-time employment as a Boilermaker in approximately 2022/2023 would have enabled the Plaintiff to earn on par with the median level of Paterson level B5/C1 (annual guaranteed package). He stated further that the Plaintiff would have been able to progress to a Paterson Level C3/C4 (annual guaranteed package) between 5 - 8 years later, perhaps in the position of Supervisor, given his many years of experience, which is the Plaintiff’s career ceiling. The Plaintiff would have received annual inflationary increases up until the retirement age of 65.

 

[13]      Mr Moodie’s injured postulation is that upon his return the Plaintiff continued with his pre-accident duties as a Semi Skilled Boilermaker. He struggled with his normal work duties, lifting heavy objects and performing intricate welding work. The company employed an assistant for the Plaintiff in order to compensate for his challenges but that this costs him R8 990 per month loss in salary resulting in a salary or income of only R31 010 per month or R 372 120 per annum. He opined that the Plaintiff had therefore, suffered a direct loss of earnings, for which he should be compensated. He stated further that the Plaintiff’s earnings decreased further to R23 863 per month or R286 356 per annum apparently due to the company’s financial difficulties. He also confirmed that when the company went into liquidation, the Plaintiff secured employment at Middal as a Driver earning about R9 000 per month or R 108 000 per annum. He noted although the Plaintiff has been able to obtain and sustain employment at Middal he still experienced pain in both of his knees when driving and standing for extended periods. His left wrist also troubled him with pain when driving which often distracted him resulting decrease in his work speed. His Supervisor at Middal confirmed that he was aware of the Plaintiff’s accident-related difficulties, particularly those related to lifting heavy objects but nevertheless stated that the Plaintiff was still able to fulfil his duties of a driver.

 

[14]      Mr Moodie state taking into account his future prognosis by Dr Oelofse particularly that his deficits are permanent and degeneration inevitable despite undergoing successful treatment, the Plaintiff will in future continue to experience constant chronic pain which can demotivate him and have a negative effect on his emotional and physical wellbeing. He opined that due to his deteriorating wrist injury and the sequalae thereof, the Plaintiff will not be able to return to his pre-accident employment as a Boilermaker. He however stated that as he is a licensed driver and also considering his accident-related injuries and sequalae thereof, he is likely to remain limited to this range of employment as a driver. Mr. Moodie is of the opinion that his current earnings can be considered his earnings ceiling now, following the accident and that he must therefore be compensated for his loss of earnings as described in his report.  He opined that as the Plaintiff will not be able to continue in his current capacity as driver, or in any profession deemed suitable by the Occupational Therapist on account of chronic pain and the effects thereof, an appropriate post-accident contingency should be applied.

 

[15]      The actuarial report by Johan Sauer Actuaries dated 20 June 2022, dealing with the calculations of the value of the loss was admitted as Exhibit “D”. The calculation is based on the uninjured and injured career path and earnings as postulated by the industrial psychologist. It further assumed the calculation date of 1 July 2022 and factored in contingencies of 5% to past uninjured and 5% to past injured. Regarding the future uninjured earnings, it applied contingencies of 15% and 35% for future injured earnings.

The statutory cap was taken into account in the calculations which reduced the loss of earnings by 12.145 which is equal to R1 131 680.00. Taking into account the statutory cap, the total loss of earnings, after contingencies is R8 191 648.00.

 

[16]      Although the Defendant has filed the notice to defend and plea, it has however not filed any reports. Instead, the Defendant stated that it will rely on the Plaintiff reports accordingly. The Defendant has further not denied that that the Plaintiff sustained the injuries as per the Hospital records. The Defendant argued amongst other that as the occupational therapist stated that despite the injuries the Plaintiff was still suited for light to heavy work and in particular his pre-accident work. The Defendant further contended that a higher contingency deduction should be applied in this especially as the occupational therapist was of the opinion that the Plaintiff was still suited for the pre-accident work. The Defendant’s counsel therefore proposed an amount of R608 169 based on 15% and 20% contingency deduction as fair.  

 

Discussion

[17]   It is trite that there are no hard and fast rules as regards the application of contingencies. Contingencies are the risks of life that normally happens to people in life and may include illnesses, inflation, accidents or even death. In assessing damages for loss of earning capacity a court will consider the factors which may operate to decrease or increase the predicted loss. These factors which are referred to as contingencies can be positive or negative. Contingencies almost always decreases an award for full compensation for the injured person.

 

[18]      As the assessment under contingencies of damages does not involve a calculation but a prediction of the future, it must be accepted that assumptions upon which awards are made may be wrong. In the Quantum Yearbook Robert Koch suggests a sliding scale % per year to retirement namely 25% in respect of a child, 20% in respect of a youth and 10% for an adult. The so-called normal contingencies ordinarily accepted by the RAF is 5% for past loss and 15%.

 

[19]      The Plaintiff contended that it would be fair and reasonable to apply the 5% to past uninjured, and 5% to past injured earnings and 15% for future uninjured earnings and 35% for future injured earnings. It was further suggested that the higher contingency for the future injured scenario is in line with the opinion of Mr. Moodie.

 

[20]   It is trite that it is ultimately the court’s imperative to make a determination on the amount to be awarded as well as the contingencies to be applied. Where future loss of earning capacity has been established as a reasonable probability, and not mere speculation, the loss of an opportunity to earn a certain level of income in the future may be taken into account in calculating the loss of future income, a loss which may otherwise be difficult or impossible to access. 

 

[21]      The contingency deductions of 15% and 35% for future uninjured and injured, respectively, as proposed by the Plaintiff’s counsel are in my view not consonant with the facts and circumstances of this matter.  The Plaintiff is pitched post-morbid at a very low level with the application of higher than usual contingencies. My view is that lower contingencies should be applied to the post-morbid projected income for the simple reason that he may very well perform and earn at a level higher than where he is pitched. I am of the view that given the speculative nature of the Plaintiff’s future prognosis, the contingency deductions for future injured loss should be lower than that suggested by the Plaintiff.

 

[22]   After the conspectus of the evidence and facts I am satisfied that the following contingency deductions would be fair and reasonable. As regards the pre-morbid a higher contingency of 10% and 30% in respect of the past and future loss, respectively, should be applied. Regarding post-morbid, I am of the view that the lower contingency deduction of 10% and 10% would be fair and reasonable.  The calculations would therefore be as follows:

 

Pre-morbid Past earnings:             R1 207 044 minus R1 120 704 (10%) = R1 086 339

Pre-morbid future earnings:           R12 163 396 minus R3 649 018 (30%) = R8 514 378

                                                            Total: R1 086 339 + R8 514 378 = R 9 600 717

 

Post-morbid Past Earnings:           R820 226 minus R82 022 (10%) = R730 204

Post-morbid Future Earnings:       R2 127 748 minus R212 774 (10%) = R1 914 974

                                                            Total: R730 204 + R1 914 974 = R 2 645 178

 

Conclusion

[23]   Consequently, with the application of the above contingencies, the pre-morbid past earnings would amount to R1 086 339 while the pre-morbid future loss would be R8 514 378.  Post-morbid the past and future earnings with the factoring in of a 10% spread would amount to R730 204 and R1 914 974, respectively. That means that the Plaintiff’s total loss of income (past and future) is R9 600 717 – R2 645 178 = R6 955 539. What remains to be factored in is the deduction of the RAF cap of R 131 680 from the total loss of earnings which leaves a total loss of earnings R5 823 859 and this is the amount in intend awarding as loss of earnings. 

 

Costs

[24]      The general rule in matters of costs is that the successful party should be awarded costs, and this rule should not be departed from except where there are good grounds for doing so. See: Myers v Abramson 1951(3) SA 438 (C) at 455. In this matter there is in my view no reason why there should be deviation from this general rule. Accordingly, I intend awarding costs in favour of the Plaintiff.

 

Order

[25]   Accordingly, judgment is granted in favour of the Plaintiff against the Defendant as follows: 

 

1.  The Defendant shall pay to the Plaintiff the sum of R5 823 859 (five million, eight hundred and twenty-three thousand, eight hundred and fifty-nine rand) in respect of loss of earning capacity within 180 days of this judgment;

 

2. The Defendant shall pay the aforesaid amount of R5 823 859 into the nominated trust account of the plaintiff’s attorneys;

 

3.The Defendant shall further furnish the Plaintiff with a 100% undertaking in terms of section 17(4) (a) of the Road Accident Fund Act, Act 56 of 1996 to pay the costs of future accommodation of the Plaintiff in a hospital or nursing home, or treatment of or rendering of a service or supplying of goods to him, arising out of the injuries he sustained in the motor vehicle collision on the 5 September 2009, after such costs have been incurred and upon proof thereof.

 

4. The Defendant shall pay the Plaintiff’s costs of suit, including reasonable taxable full reservation, preparation and appearance fees in respect of the counsel and the experts employed;

 

5.           The costs in (4) above shall be paid into the Attorney’s trust Account in (2) above.

 

MBG LANGA

JUDGE OF THE HIGH COURT

MIDDELBURG LOCAL SEAT

 

Appearances:

For the Plaintiff:	Advocate CPJ Strydom
For the Defendant:	Mr TO Ngwenya
Date heard:	24 November 2023
Date delivered:	28 March 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 28 March 2024 at 14h00.

 

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