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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)      REPORTABLE: YES/NO

(2)      OF INTEREST TO OTHER JUDGES: YES/NO

(3)      REVISED

Case number: 5852/2018

Heard on: 22 August 2019

Date of judgment: 27 August 2019

 

In the matter between:

 

MATSIMELA, MASHOTA MATIME                                                                     Plaintiff

 

and

 
ROAD ACCIDENT FUND                                                                                      Defendant

JUDGMENT

SWANEPOEL AJ:

[1]          This is a claim for damages resulting from a motor vehicle accident which occurred on 21March 2016, in which plaintiff, who was a pedestrian at the time, suffered a number of injuries.

[2]          Defendant has accepted liability for 90% of plaintiffs proven damages which, when the matter came before me, were comprised of general damages and future loss of earnings. Shortly before the matter commenced, the parties settled the quantum of general damages at R 600 000.00. The quantum of loss of future earnings is therefore the only dispute to be determined. Defendant does not dispute the plaintiffs expert reports, and it is incumbent on me to make a finding on those reports.

[3]          Plaintiff is a 22-year old male who was 19 years old at the time of the accident. He was enrolled at the Tshwane South College as a first-year electrical engineering student (N1 level}. He was aiming to achieve a National Diploma in Engineering Studies, and according to the plaintiffs industrial psychologist, he would likely have achieved this goal by the age of 24. He would have started earning at Paterson level 4 at age 25, reaching a Paterson level C4 at age 45. His academic record shows that he passed all four of his N1 subjects at the first attempt.

[4]          Plaintiff suffered a mild traumatic head injury in the accident which has resulted in persistent pain, discomfort, and he has also suffered disfiguring facial scars. Plaintiff has difficulty in concentrating and his memory is affected. The injury has resulted in a drop in academic performance, and, although his disability is mild, he has difficulty in getting along with people, and his participation in society and his cognition have been affected. It is unlikely that he will attain his pre-accident educational level. His limitations will no doubt impact negatively on his career and earning potential. In the view of the educational psychologist plaintiff is a vulnerable and unequal competitor in the labour market.

[5]          Plaintiff has, subsequent to the accident, terminated his studies, although it seems that his decision was partially motivated by financial constraints. He is currently employed as a merchandiser, from which he earns R 4 000.00 per month.

[6]          The plaintiffs experts postulate two scenarios. In the first scenario plaintiff continues to work as a merchandiser. He will likely struggle to retain employment and might well be in and out of employment for the rest of his career. In the second scenario he receives treatment, assistance and support to overcome his disability and to complete his studies, in which case he will resume earning at Paterson level A 3, and reach a peak at Paterson level 8 4.

[7]        Plaintiff has submitted an actuarial report which postulates that plaintiffs future income, but for the accident, would have been R 8 478 100.00. In respect of future loss of earnings having regard to the accident there are two scenarios. In scenario 1, which is based on the assumption that plaintiff will continue to work as a merchandiser or in a similar job, the calculation of plaintiffs future income having regard to the accident is based upon his present income, which amounts to a total of R 1 710 400.00.

[8]        In scenario 2, which postulates that plaintiff will obtain a qualification, his future earning capacity having regard to the accident (albeit with limitations), is calculated at R 4 751 800.

[9]        The only dispute between the parties is what contingency deductions should be applied to the undisputed figures. Defendant submits that due to plaintiffs youth one should apply a 20 % contingency deduction to the "but for" figure of R 8 478 100.00. Plaintiff has however conceded that a 25% contingency is more appropriate. This results in a total "but for" income of R 6 358 575.00.

[10]      With regard to the "having regard to" income in scenario 1, plaintiff has submitted that a contingency deduction of 30% to the sum of R 1 710 400.00 is appropriate due to the fact that this scenario is conservative. Applying this contingency results in an amount of R 5 161 295.00 as plaintiffs loss of future earnings:

 

Future income "having regard to" scenario 1:

 

R 1 710 400.00

X30%    R 513120.00

=R 1197 280.00

R 6 358 575.00 - R 1 197 280.00 = R 5 161 295.00

 

[11]      On the other hand, scenario 2 is very optimistic given plaintiff's disabilities, and so says plaintiff, a contingency deduction of 40% must therefore be made to the sum of R 4 751 800.00:

 

R 4 751 800.00

X40%      R 1 900 720.00

Total:       R 2 851 080.00

 

R 6 358 575.00 - R 2 851 080 = R 3 507 495

 

[12]      Scenario 1 thus results in a loss of earnings of R 5 161 295.00. Scenario 2 results in a loss of earnings of R 3 507 495. Finally, Plaintiff submits that a median between the two scenarios should be taken, resulting in future loss of earnings of R 4 334 395.00.

[13]      In determining a plaintiff's future loss of income one requires a crystal ball in order to see into the future. As stated in Allie v Road Accident Fund [2003] 1 All SA 144 (C):

 

"In assessing prospective loss, the court is virtually called upon to ponder the imponderables, yet it must do its best with the material available even, if in the result, its award might be described as an informed guess (Boberg The Law of Delict, vol 1 at 531). It is recognised that the trial court has a wide discretion to determine an amount which is fair to both parties, neither denying the plaintiff just compensation nor pouring out largesse from the horn of plenty at the defendant's expense (Boberg The Law of Delict (supra) at 53314)."

 

[14]      It is impossible to foretell what is going to happen in plaintiffs life. What is however clear is that plaintiff has suffered a severe setback from which he will likely never fully recover. In my view, defendant's submission, that a "spread" of 15% should be applied, resulting in a loss of earnings of R 1 271 715.00 is too conservative, and ignores plaintiffs socio-economic circumstances.

[15]      In order to generate the "but for" income in scenario 2 plaintiff would have had to qualify himself as an electrical engineer. The accident was a substantial blow to his ambitions. Plaintiff was never a strong academic candidate to start with, and the accident has placed him on the back foot. In order to pursue his dream of becoming an engineer, plaintiff would have to receive substantial support from his family, and treatment for his long-term physical and emotional injuries.

[16]      The difficulty is that he comes from a family that is already under financial strain, to the extent that he is no longer able to continue his studies. The socio­ economic circumstances of the plaintiffs family are such that they will likely not be able to access the services of psychologists and doctors, or to provide academic support to plaintiff. Even now, some three years after the accident, plaintiff is still working in a relatively low-income job. It seems unlikely, therefore, that plaintiff will receive the treatment and support that he requires in order to improve his lot. Much as one would wish for scenario 2, it is much more likely that plaintiff will continue to work at his present job, or in similar employment.

[17]      It is for the aforesaid reasons that I find plaintiffs counsel's submissions more persuasive. Plaintiff has already conceded that a 25% contingency deduction from the "but for'' income is appropriate, which is 5% more than defendant deemed appropriate. It is also persuasive, given the fact that both scenarios are still possible (even though scenario 1 is more likely), that one should take the median between the two scenarios. In the premises I am persuaded that the appropriate award for loss of earnings is the average between the two scenarios, amounting to R 4 334 395.00. The total damages resulting from loss of income and general damages is consequently R 4 934 395.00. A ten percent deduction is to be made as a result of the apportionment agreed upon by the parties. The award to plaintiff is thus R 4 440 955.50.

[18]      In the premises the following order is granted:

18.1    The order marked “X” is made an order of Court.

 

 

 

J.J.C. Swanepoel

Acting Judge of the High Court,

Gauteng Division, Pretoria

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