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REPUBLIC OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

1)      REPORTABLE: NO

2)      OF INTEREST TO OTHER JUDGES: NO

3)     REVISED.

CASE NUMBER: 17703/2017

30/8/2019

 

In the matter between:

 

CHRISTIAAN JOHANNES MAURITZ SMIT                                                   Plaintiff

 

And

 
ROAD ACCIDENT FUND                                                                                      Defendant

JUDGMENT

ERASMUS AJ

INTRODUCTION

1.         The merits in this matter have already been dealt with, and the defendant is ordered to pay 50% of the plaintiff's agreed or proven damages which resulted from the accident that occurred on 1 September 2012.

 

REQUEST TO POSTPONEMENT THE PAST MEDICAL EXPENSES

2.         At the outset I was requested by the defendant to postpone the head of damages: past medical expenses. I have refused this request. I have indicated to the parties that the matter was previously on the roll on 6 June 2019, approximately six weeks before the matter came before me. There was ample opportunity for the defendant to investigate this issue and to do the necessary taxation on the past medical expenses. I have afforded the defendant until Friday 19 July 2019 to provide the plaintiff and myself with a figure for this head of damages.

3.         The reason for my refusal to postpone this head of damages is based on two considerations. Firstly, the accident occurred as far back as 1 September 2012. This is 7 years later and the time has come for this family to close this chapter in their lives. It is a tragic event in which the parents lost a child and in which the children lost their sibling. The family members also sustained severe injuries. There is no basis on which this litigation should be dragged out any further. I am well alive to the fact that it is only the father's claim that is before me. But in as far as his portion is concerned it needs to be finalised.

4.        In postponing this head of damages, it will simply lead to more legal costs, which costs will be payable by the defendant. We are all alive to the fact that the defendant is struggling financially and therefore it does not make sense in postponing this issue just in order for attorneys and advocates to write another trial fee in order to sort out something as simple as past medical expenses. This is something that can be sorted out fairly easy and there is no need why the defendant should be burdened with further legal costs in this regard.

5.         Despite my request that the figures for this head of damages should be provided by Friday 19 July 2019, it was not forthcoming.

6.         I have, subsequent to the matter standing down for judgment, made several email follow-ups on this amount, but even despite this the figure was not forthcoming. To some of my emails there was a response and some of my emails were left unanswered. I did in my last email correspondence inform the parties that I will disclose the fact of the email correspondence in my judgment.

7.         I can, and unfortunately so, not grant an order in this regard as no evidence was led on this head of damages. The fact that no evidence was led cannot be placed before the door of the plaintiffs legal team. We all, including Mr Senyatsi who appeared on behalf of the defendant, firmly believed that we will have the necessary figures by Friday 19 July 2019.

8.         For the reasons set out herein below it will become clear that I will request the plaintiffs legal team to do a re-calculation for the plaintiffs loss of income / loss of earning capacity on the basis which I will set out. It is necessary for me to consider the facts before me and therefore I will have to consider a further calculation. I will therefore afford the defendant one last opportunity to provide me with figures for the Past Medical expenses. Failure to do so, I will postpone the past medical expenses, but order that the claims handler who is dealing with this matter, and the attorney of record on behalf of the defendant should provide the Court with reasons why any further costs should not be paid de boniis propriis. I do not know where the problem lies and therefore both of them should be afforded the opportunity to place the facts before the next judge as to why the costs should not be born by them.

 

EVIDENCE BEFORE THE COURT

9.        The plaintiff testified himself, and he also called Dr Franco Collin, the psychiatrist and Mrs H T Kraehmer, the industrial psychologist.

10.      The defendant did not call any witnesses.

11.      The parties were ad idem that the remainder of the reports and joint minutes should serve before me as evidence.

12.       At this point I need to pause and mention that the defendant failed to file reports of any Neurosurgeon, Psychiatrist, Psychologist, Ophthalmologist or Plastic- and Reconstructive Surgeons. The evidence in these reports therefore stands uncontested before me.

 

EVIDENCE BY THE PLAINTIFF

13.      At the outset I need to indicate that the plaintiff was very emotional during his testimony. Even after he has testified, he was still emotional. When the evidence by Dr Colin commenced, his legal representatives requested me that I excuse him from the proceedings, which I did. I will later herein deal with the views of Dr Colin based on the emotional reaction by the plaintiff.

14.       The plaintiff is a qualified millwright. He testified that he is basically a jack of all trades. The plaintiff admitted that a millwright is a rare skill.

15.       At the time of the accident, the plaintiff was employed as a maintenance foreman at Jurgens Ci (Pty) Ltd(hereinafter referred to as "Jurgens".) When he was still employed at Jurgens he earned a nett monthly income of approximately R30 000.00.

16.      He resigned from this employment during the middle of 2018. The plaintiff resigned from this employment as a result of the financial difficulties the company was facing. Soon after his resignation, the company closed its doors.

17.      To date the plaintiff was not successful in finding any permanent employment. He did send out his curriculum vitae to various placing agents, and was called for approximately two interviews, but was not successful in any of the interviews. He also was not requested to attend any other interviews.

18.      After the plaintiff left the employment of Jurgens, and despite the fact that he was not successful in any of his job applications, the plaintiff did not sit back waiting for better days. He started his own business, doing small projects. Initially he decided to focus on electrical work. A tender was awarded to him to wire some panels in a factory. After he completed this tender, he realised that he forgot to check some very basic safety aspects. The things he forgot to do was some basic elements, but which could cause great harm to the factory. He realised that this is putting the factory (or any client for that matter) at a great risk.

19.       After this incident he realised that he cannot do the electrical work from a safety perspective. He then turned to start to seek some tenders on more basic building and maintenance projects. The plaintiff is putting tenders out on a regular basis, but in light of the fact that he is a one-man show he is not able to compete with the bigger enterprises and he is literally only tendering for the smaller projects.

20.       In order to make sure that he gets tenders or work, he literally gets into his motor vehicle in the morning, driving around to see if there are buildings that needs some maintenance. When he spots a building, he will approach the manager of the business or the owner of the building, enquiring whether they need someone to fix the broken items. or simply a paint job.

21.       Ever since the plaintiff started to work for himself, he received payment directly into his banking account The average payment he received was an amount of R4 000.00 per job, and the big jobs will bring in between R10 000.00 and R15 000.00. And then there are times where he will not secure any work, and therefore, will not secure any payment.

22.       Ever since his resignation at Jurgens, the total amount received by the plaintiff was between R60 000.00 and R70 000.00, all inclusive. This amount includes the building material and other overhead expenses and is therefore a gross income. This is therefore to date the total gross payments received for the last approximately ten months.

23.       The plaintiff understands the profit of a business to be the money you have left to provide for luxuries. This is, as was mentioned by Ms Kreahmer during her testimony that he is not a businessman, for me a clear indication of that fact. Even though he has the know-how as to how to the physical work, he does not have the skills to develop a proper business. Despite this, he is trying.

24.       The plaintiff had some savings as a result of the passing of his mother. Since his resignation in the middle of 2018, he had to delft into these savings in order to make ends meet. His view also assisted him in the payment of his monthly expenses. There were months he had to rely on his sister in order to meet his monthly commitments. In the last month before the trial, in other words in June 2019, she paid an amount to him in the amount of R54 000.00.

25.       The plaintiff does not have permanent employees in his service, but would acquire the service of the certain amount of people he needs in the event that he receives a tender. Sometimes the plaintiff will not acquire the service of a second person in order to fulfil his commitments, but wilt do the work himself, despite his orthopaedic injuries.

26.       During the cross-examination much emphasis was placed on the fact that the plaintiff indicated to his industrial psychologist that he can afford the monthly expenses of R27 000.00 per month. The plaintiff explained that he could afford the monthly expenses of R27 000.00 as a result of the fact that he utilised his inheritance from his mother. There was no evidence led by the defendant to proof the contrary.

27.       The plaintiff made a good impression on the court. He was open and honest and simply stated the facts as it is. He did not present as a plaintiff who was or is trying to milk the fund for every possible sent he can get from them. He rather presented as a plaintiff who was willing to try his utmost best to mitigate his circumstances in order to make ends meet where he had not sufficient funds to do so. It was clear to me that he took his responsibility towards his family seriously and he was committed into providing for them.

 

EVIDENCE BY THE DR FRANCO COLIN, THE PSYCHIATRIST

28.        At the outset, and I need to thank the defendant for that. the qualifications of Dr Colin were not disputed. It was therefore not necessary to lead any evidence in this regard.

29.       Dr Colin confirm the contents of his report. Dr Colin emphasised that the income and the potential income of the patient is well documented. He emphasised the fact that we have to look into the future and try and predict the future income of the plaintiff.

30.       At the very beginning stages of the evidence by Dr Colin, the plaintiff requested to be excused from the proceedings. Dr Colin emphasised the fact that it is clear indication as to the impact this event had on him and on his existence. Every time the plaintiff was reminded of the accident, or had to talk about the accident, he became emotional. The plaintiff even became emotional in speaking to friends and family about the children. Dr Colin marked the fact that the plaintiff requested to be excused as a remarkable event.

31.        The accident had severe consequences for the plaintiff. It should be remembered that despite the fact that he is suffering some severe physical losses himself, he lost his child. The uncontested evidence is that the plaintiff regards himself as the murderer of his second-born.

32.       The undisputed evidence is that the plaintiff suffers of the full clinical syndrome of a Posttraumatic Stress Disorder. The plaintiff further also suffers from a Major Depressive Disorder. The symptoms have decreased in intensity over time, but he still suffers from the full clinical syndrome in the present.

33.       During the consultation with Dr Colin in preparation of his report, he became tearful when describing the accident He shows extreme emotional !ability, blunted and depressed affect at times. He sat on the front edge of the chair and often leaned forward and looked to the floor. The plaintiff is clearly depressed.

34.       The uncontested evidence of Dr Colin was that the plaintiff is currently functioning at 50% of the level he used to function prior to the accident. It was further not contested that should the plaintiff go for the necessary and relevant therapy, he has only a 60% chance of recovery. The plaintiff will never recover fully.

35.       During cross-examination Mr Senyatsi took Dr Colin to the report of Ms A Cramer, which dealt with might have been a previous or other traumatic experience where the plaintiff was shot in an attempted hi-jacking. Mr Senyatsi hinted to the fact that this might also had an impact on the social and emotional functioning of the plaintiff.

36.      Dr Collin gave a proper explanation as to why this should not be regarded as something that has an impact on the functioning of the plaintiff. In order for a traumatic experience to present in a PTSD the person needs to give value the incident. It needs to be a watershed moment in the life of a person. It was properly explained that this incident did not postulate in a PTSO as the plaintiff did not really attach any value to this incident. The defendant had no evidence to the contrary and therefore I cannot take cognisance of the view of the defendant as it was not substantiated.

37.       The evidence by Dr Collin is clear. The plaintiff is suffering a severe loss of earning capacity. He is simply not functioning on the level he used to function prior to the accident. It is also clear that his chances of recovery are 60% in the event that the patient cooperates with treatment

38.       Dr Collin made a good impression on the court. I regard him as a reliable witness, who was willing to make the necessary concessions where it was necessary. I accept the testimony by Dr Collin.

 

EVIDENCE BY MRS H T KRAEHMER. THE INDUSTRIAL PSYCHOLOGIST

39.       Ms Kraehmer's qualifications were also not contested by the defendant, for which I am grateful.

40.       Ms Kraehmer confirmed the level of education of the plaintiff and that he was working as a maintenance foremen at Jurgens at the time of the accident. His latest salary advices indicated the following:

 

Description	R42 613,00	R42 643,00	R 42674100
Salary	R 35130,00	R 35130,00	R 35130,00
Travel Allowance	R 3 500,00	R 3 500,00	R 3 500,00
"Reimburse Travel"	R       602,76	R       723,80	R       -
Overtime	R       -	R       -	R 3 825,50
Employer Contributions
"Imperial Prov Disability    R         832,58		R       832,58	R       832,58
Imperial Provident Fund   R 1 988,36		R 1 988,36	R 1 988,36

 

 

 

 

 

 

 

 

 

 

 

 

41.       The business developed financial difficulties, as a result of which the plaintiff resigned approximately June 2018.

42.       Since July 2018 the plaintiff is a builder/ freelance millwright.

43.       Ms Kraehmer worked on the information provided to her, she provided the Court with a well apprehended basis as to why the bank statements not really would have assisted her. She indicated that the business is first of all not even a year old. Secondly, it happens from time to time that the money for the material gets paid into the bank account of the plaintiff. This cannot form part of his income. I agree with Mrs Kraehmer that this would not have assisted her.

44.       The only aspect of her report and the testimony I can critise is the fact that the worked on the assumption that the plaintiff's income is R27 000.00. From the evidence before me it is clear that this estimation is too high. She also conceded this. This was also properly explained in her report on page 184 of the Supplementary Bundle Plaintiff's Experts. There the position is clearly stated. The plaintiff has never made a profit from his business, but he was able to pay the people who assisted him. It was, however, necessary for him to draw from his own savings and rely on his wife to pay his monthly household expenses. This is in line with the plaintiff's evidence before me.

45.       In the joint minutes between Ms Kraehmer and Mr O O Schudi Ms Kraehmer stated that "Mr Smit reported that at present he is ale to cover his household expenses of approximately R27 000.00 per month (approximately R324 000 per annum. Based on this the basis for the calculation was that the plaintiff's monthly earnings are R27 000.00 per month. As I have already stated, the income of the plaintiff is much lower than the said R27 000.00 per month.

46.       Ms Kraehmer was willing to concede the point that she maybe made a mistake in accepting the figure of R27 000.00as it is clear that the plaintiffs income is much less than the R27 000.00. It was all in the fashion the question was phrased. She admitted that she should have phrased the question differently.

47.       This is in corroboration of the evidence by the plaintiff that the was able to afford to pay his monthly expenses, which is in the region of R27 000.00. He was, however, not able to pay these expenses from his monthly income and he had to delft into his savings and inheritance in order to make ends meet. I cannot accept that his monthly income is in the amount of R27 000.00.

48.       Ms Kraehmer in her evidence confirmed that the plaintiff is not a businessman. He does not have the necessary skills.

49.       Ms Kraehmer also made a good impression on the court. She was willing to make the necessary concessions during cross-examination. During cross-examination it was put to her that her report is subjective and not objective. I cannot agree with the statement by Mr Senyatsi on behalf of the defendant. There is simply no basis for this.

 

VIEWS EXPRESSED BY OTHER EXPERTS IN THEIR RESPECTIVE REPORTS AND JOINT MINUTES REGARDING LOSS OF EARNINGS AND EARNING CAPACITY

50.      In the joint minute by the Orthopaedic Surgeons, Dr de Graad on behalf of the plaintiff and Dr Bogatsu on behalf of the defendant agreed that after the accident he did return to his previous employment as Maintenance Manager but he had difficulties. The agreed that the injuries sustained had an influence on his work capacity. They referred to the Occupational Therapists.

51.      In the joint minute of the Occupational Therapists, it was noted by Ms Jordaan on behalf of the plaintiff that the plaintiff returned to his previous employment, but that he was accommodated to a great extend by his then employer. The business was sold, and the new owner of the business was not that accommodating towards him. In light of financial difficulties of his employer he resigned in 2018 and started to seek employment, but was unable to find permanent employment. In order to earn an income, he started engaging in some miscellaneous building/ maintenance work on a contract basis.

52.       The occupational therapists noted that his employment at Jurgens is considered to fall within the light demand category, with rare medium-heavy demands. It also included moderate agility and mobility demands, as well as moderate-high cognitive demands. Ms Jordaan and Mr Montwedi differs as to whether the plaintiff's current type of work is between medium - heavy physical demand work, with high agility and moderate mobility demands or whether it fall within the lrght demand category.

53.       Ms Jordaan states that the plaintiff demonstrated the ability to perform high ranges of medium-low ranges of heavy demand work, but giving the degenerative changes present in the cervical spine, it is recommended that the plaintiff limit load handling to low ranges of medium demands. According to Ms Montwedi, the plaintiff demonstrated the ability to perform low ranges of medium demand work. She noted that should the plaintiff undergo the recommended cervical surgery, he will need to be restricted to sedentary and light jobs.

54.       The occupational therapists agree that the plaintiff only partially meets the inherent demands of his pre-accident employment as a maintenance foreman. He would have been able to continue working in this position with some reasonable accommodation.

55.      The occupational therapists noted that the plaintiff presents with significant difficulties post-accident. Ms Jordaan is of the opinion that this is probably the biggest limitation in terms of his workability and potential.

56.      Ms Montwedi noted that the plaintiff remains employable on jobs of sedentary, light and occasional medium physical demands that were with his cognitive capabilities. The identified cognitive deficits do not render him unemployable, however, they limit his choices of employment. He might find challenges with purely sedentary office-based jobs requiring sustained attention and higher cognitive skills. Ms Jordaan agreed with this.

57.      In the joint minutes of the industrial psychologists, Ms Kreahmer stated that she is of the opinion that he will not be in a position to return to full-time employment and will have to rely on contract work to earn an income. Mr Sechudi opinion that the according to the occupational therapists, he remains employable in the open labour market on jobs of sedentary, light and occasional medium physical demands that are within his cognitive abilities. They further mentioned that the identified cognitive deficits do not render him unemployable, however they limit his choices of employment.

58.       I have the benefit of the evidence of Ms Kreahmer explaining why she formed the opinion that the plaintiff will only be able to do contract work in the future. Much emphasis was placed on the fact that he is struggling emotionally. She even stated that she does not know how he manages to get out of the bed in the morning. That is how severally ill the plaintiff is.

59.       Mr Sechudi did not testify.

60.       The industrial psychologists agreed that the plaintiff would probably have been able to continue working until approximately age 63 - 65, depending on the retirement age policy of his employer at the time.

 

INJURIES SUSTAINED BY THE PLAINTIFF AND THE SEQUALAE: VARIOUS REPORTS FILED

61.       I do not intend to deal with the injuries sustained by the plaintiff in great detail.

62.       The main question before me is the question of a loss of income / loss of earning capacity, and I will therefore mainly focus on these aspects when I deal with the respective reports by the various experts. The Joss of income / loss of earning capacity is the main bone of contention between the parties.

 

REQUEST FOR ABSOLUTION FROM THE INSTANCE

63.      After hearing evidence and after the argument on the expert reports filed before me, Mr Senyatsi requested that I grant absolution from the instance in respect of the loss of income. The argument by Mr Senyatsi was based on the fact that there is no documentary proof of the income of the plaintiff and therefore the plaintiff failed to proof his loss of income.

64.       In this regard, the defendant relied on the unreported judgment by the learned acting judge Petersen in the matter of Mthokozisi Theophilus Mlotshwa v Road Accident Fund[1] where absolution of the instance was granted in a similar set of facts.

65.      I am not convinced that I can grant absolution of the instance on a head of damages in the instances where:

65.1     The merits have been dealt with;

65.2     The other heads of damages are argued / settled.

 

66.       In the instance where the merits have been dealt with and an order has been granted, the liability of the defendant has been established. The question is whether or not the amount has been proved and therefore I, in my mind, can do one of two things, either grant an amount, or find that the head of damages has not been proved and therefore grant no amount.

67.       It should always be born in mind that employability and earning capacity of an individual should be assessed against criteria impacting individual work performances, such as: cognitive, emotional / mood, drive, motivation and physical variables. The combination of the person's cognitive, emotional and physical strengths and competencies as well as external factors (the economy, salary trends, demand for skills, etc.) will determine the employability and earning capacity of an individual. The evidence before me is abundantly clear that the plaintiff is so severely impacted by the accident that his earning capacity has been severely diminished. He needs to be compensated for this loss.

68.       I was not called upon to deal with this issue in detail. but I need to emphasise that in a recent judgment in the Supreme Court of Appeal, in the matter of Road Accident Fund v CK[2] the Court was also faced with the unfortunate circumstances where it had to rely on the evidence as the plaintiff was not able to proof the loss in the usual manner. There the court remarked, and by the mouth of the learned judge Dambuza, that:

 

"Calculation of past and future loss of income earning capacity

[25]      Indeed, a physical disability which impacts on the capacity to an income does not, on its own, reduce the patrimony of an injured person. There must be proof that the reduction in the income earning capacity will result in actual loss of income. (see Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) at para 11). However, where loss of income has been established but proof of the quantum thereof cannot be produced in the usual manner, the courts have shunned the non-suiting of a claimant and have preferred to make the best of the evidence tendered togive effect to the finding of proved reduction in loss of income earning capacity. As long as almost a century ago,

 in Herman v Shapiro (1926 TPD 361 at 379) the court said the following:

 

'Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is very little more than an estimate, but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages."

 

[26]      Since then this dictum has been quoted with approval in a number of cases."

 

69.       It is therefore clear that the mere fact that the bank statements was not presented to me during the case of the plaintiff, is not sufficient reason for me to grant absolution from the instance. There is sufficient uncontested evidence before me as to the impact the accident had on the plaintiffs ability to earn an income, and of his current nett income. The plaintiffs evidence as to the total amount received in the last 10 months was clear and he was also clear as to how he was able to pay the monthly expenses. This was clearly not from his business.

70.       Based on the judgement in the matter of Road Accident Fund v CK it is clear that where there is proof that there is a loss, I am dutybound to make an award, even if it is as much as an estimate. As I have already stated, it is clear from the evidence by all the experts before me that the plaintiff indeed suffered a loss of income. I therefore cannot agree with the submission by Mr Sinyatsi that I cannot make a finding on an estimation.

71.       The defendant lost sight of the fact that I also have to determine the loss of earning capacity. This was not addressed before me and there was absolutely no evidence before me detracting from the claim of the loss of an earning capacity. It is clear from the evidence before me that the plaintiff indeed suffered a loss.

72.       The request for the absolution of the instance should therefore be dismissed with the appropriate costs order.

 

LOSS OF EARNINGS/ EARNING CAPACITY

73.        As I have already stated, it is evident from the evidence before me that the plaintiff has a serious loss of earning capacity. This was carefully explained my Dr Collin. The defendant did not place any evidence before me that the plaintiff has not lost his earning capacity. Even the experts by the defendant confirmed this loss.

74.      The highwater mark of the defendant's argument is that the plaintiff did not provide the experts or the Court with his banking statements and therefore the plaintiff did not success in proving his loss of earnings. I have already dealt with this aspect. The SCA recently, and with approval, reconfirmed that where it is needed that Court may work on an estimation.

 

CONTINGENCY DEDUCTIONS

75.       I will first deal with the contingency deductions before I deal with the basis of the calculation of the pre- and post-morbid calculations.

76.       Mr Senyatsi on behalf of the defendant did not present me with any argument regarding contingencies and which contingencies should be applied. He was steadfast in his argument that absolution of the instance should be granted.

77.        I therefore only have the argument by Mr Upton in respect of contingencies.

78.        The locus classicus with regard to contingencies is the judgment of Nicholas JA at 116 - 117 of Southern Insurance Association v Bailey NOi where Nicholas JA summarised the question of contingencies as follows:

 

"Where the method of actuarial computation is adopted, it does not mean that the trial Judge is ''tied down by inexorable actuarial calculations". He has "a large discretion to award what he considers right" (per HOLMES JA in Legal Assurance Co Ltd v Bates 1963 (1) SA 608 (A) at 614F). One of the elements in exercising that discretion is the making of a discount for "contingencies" or the "vicissitudes of life". These include such matters as the possibility that the plaintiff may in the result have less than a Hnorrnal" expectation of life; and that he may experience periods of unemployment by reason of incapacity due to illness or accident, or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case. See Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114 - 5. The rate of the discount cannot of course be assessed on any logical basis: the assessment must be largely arbitrary and must depend upon the trial Judge's impression of the case.

 

…

 

It is, however, erroneous to regard the fortunes of life as being always adverse: they may be favourable. In dealing with the question of contingencies, WINDEYER J said in the Australian case of Bresatz v Przibilla [1962] HCA 54; (1962) 36 ALJR 212 (HCA) at 213:

 

"It is a mistake to suppose that it necessarily involves a 'scaling down'. What # involves depends, not on arithmetic, but on considering what the future may have held for the particular individual concerned... (The) generalisation that there must be a 'scaling down' for contingencies seems mistaken. All 'contingencies' are not adverse: All 'vicissitudes' are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."

 

79.       In determining, firstly, whether provision should be made for contingencies, secondly whether that provision should be positive (an addition) or negative (a deduction), and thirdly what that addition or deduction should be, regard must be had to factors such as the period over which the calculation runs (the longer the period the greater the degree of uncertainty), and the nature of the underlying calculation, i.e. whether it is spot-on, or liberal, or conservative.

80.       What will be fair contingencies on the facts before me? A good starting point is the fact that as general statement a continency deduction is applied, and that what one might term the "normal" contingency deduction, i.e. all things being equal, are 5% accrued (past) and 15% prospective (future).

81.       However, a 0.5% sliding scale (depending on the number of years remaining in the claimant's working span, has been referred to in a number of matters. In S M Mngomezulu v RAFii Kgomo J stated as follows:

 

"According to the well-known and respected actuary, Dr Robert Koch, who the Plaintiff submitted is being widely used by the Defendant in calculations of this nature, a well accepted principle is that every year of a person's remaining working life should represent a 0.5% contingency deduction"

 

82.       On her tum, Pretorius J in the unreported judgment of Van Rooven NO obo S Joubert v Road Accident Fundiii stated that : "It is so that it can be the starting point, but once again it will depend on the facts of each case".

83.       Mr Upton relied on the Q.5% deduction during his argument He indicated that the plaintiff has a 16 years of working life left, and therefore it is 8%. He therefore argued that a deduction of 10% will be reasonable.

84.       I do not agree with Mr Upton that a pre-morbid contingency of 10% should be applied. At the time of the accident the plaintiff had a stable work history. He was employed at his then employer for an extended period of time. He also is a qualified mill wright which he admitted is a scares skill. He also has extended experience. In the event, uninjured, that he would have lost his employment he would have in all likelihood secured employment quickly. am of the view that a pre-morbid deduction of 20% is more reasonable.

85.       During her examination Ms Kreahmer, and very reluctantly so, indicated that she is of the view that a post-morbid contingency deduction of 30% is fair under the circumstances. In order to form her opinion, she considered aspects such as the plaintiffs emotional functionality, the difficulty to build a career at this stage of the plaintiff's live, the constant trauma of the family and the fact that they actually never can simply just go on with their lives and the physical difficulties he is currently experiencing.

86.       During argument Mr Upton argued that a deduction of 40% is more reasonable and it will constitute fair compensation. I agree with mr Upton, and I am of the view that a post-morbid contingency of 40% should be applied.

 

BASIS FOR CALCULATION: PRE-AND POST-MORBID FUNCTIONING

87.       I am mindful of the judgment of Holmes J in Pitt v Economic Insurance Co Ltdiv stating that:

 

"[T]he court must take care to see that its award is fair to both sides- it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant's expense."

 

88       I am also cognisant of the view expressed in Hulley v Coxv that:

"we cannot allow our sympathy for the claimants in this very distressing case to influence our judgment."

89.       I, however, cannot agree with the basis for the calculation that was used now that the accident has happened. It is abundantly clear that the plaintiff suffers a severe loss of earning capacity and he should be compensated for this loss of earning capacity.

90.       The evidence is clear and Mrs Kraehmer, and in my view correctly so, conceded that she failed to ask the question correctly.

91.       It is also important to note that that in the joint minutes by the Industrial Psychologists it was indicated by Mr Sechudi that "Mr Smit reported to OS that he couldn't estimate his income since it differed from contract to contract. No proof of his income could be provided. Deference is given to factual information in this regard." The factual information before me was that in the last 10 months the plaintiff received payment of between R60 000.00 to R70 000.00. That gives me an average of between R6 000.00 to R7 000.00 per month.

92.       The Industrial Psychologists agreed that the plaintiff's income will probably increase based on inflationary pressure only and as such he will not reach his likely pre-morbid career ceiling earnings.

93.       I am of the view that I first need to see a calculation on the evidence before me as to what is the position should I have regard to his actual earnings and the evidence before me. I have a discretion to ask for a further calculation and I am of the intention to do so.

94.       On the pre-morbid scenario I need a calculation on the following basis (the same as it was done in the report dated 9 July 2019:

94.1     The plaintiff received earnings as a maintenance foreman I head of division, of R28 000.00 per month in 2012/09/01 monetary terms. Thus an annual income of R336 000.00 in 2012/09/01 monetary terms;

94.2     This income should be projected with linear increases until age 45, therefore until 2016 / 09 / 24;

94.3    Subsequent thereto, !he plaintiff earned a total package, equal to lower quartile C4 Paterson level of R497 411 per annum in 2016 / 09 / 24 monetary terms. 10% of this income needs to be assumed to consist of non-taxable fringe benefits.

94.4      This income should be projected with inflationary increases until 2018/06/30, when he resigned;

94.5      From then on, we project no income for 12 months, therefore until 2019/06/30, due to unemployment. Subsequently the plaintiff could have earned a total package, equal to median C4 Paterson level of R566 520 per annum in 2019/06/30 monetary terms. 10% of this income is assumed to consist of non taxable fringe benefits.

94.6      This income should then be projected with linear increases until age 52.5, therefore until 2024 I 03 / 24, when the plaintiff would have reached his career ceiling;

94.7      Thereafter the plaintiff would have been able to earn a total package, equal to upper quartile C4 Paterson level of R647 110 per annum in current monetary terms. 10% of this income is assumed to consists of non-taxable fringe benefits. This should be projected with inflationary increases until retirement age at 64.

95.       As I have already indicated, I am of the view that a 20% contingency deduction should be applied.

96.        As far as the post-morbid injuries is concerned, I have already indicated that with the evidence before me it is clear that the R27 000.00 on which the calculation was made cannot and is not a true reflection of the plaintiffs current earnings and I or earning potential. The undisputed evidence of the plaintiff is that he received payments between R60 000 to R70 000.00 over a period of 10 months.

97.       Evidence was also led by a resent tender that was awarded to the plaintiff. That should be taken into consideration. This was his biggest contract / tender to date. Ms Kreahmer indicated that at the end he will make a profit of approximately R40 000.00. If all the income received are taken into consideration, it gives me an average of approximately R10 000.00 per month over a period of 12 months.

98.       Given all the evidence, and in fairness to both the parties I am of the view that a calculation should be done on an average income post morbidly after he lost his income, on the current monthly income of R10 000.00. With this calculation I will be in a much better position to come to an informed decision.

99.       The calculation for the post-morbid scenario should therefore be done on the following basis:

99.1     No income should be projected for the plaintiff for a period of 1 month, therefore until 2012 /01 / 01, to allow for full loss of sick leave.

99.2     From then on, the same post-morbid earnings as in the pre-morbid scenario, but only until 2019/06/30;

99.3     Thereafter the plaintiff received an income, engaging in general construction projects and freelance maintenance work of R10 000.00 per month in 2019/06/30 monetary terms. Thus an annual income of R120 000 in 2019/06/30 monetary term

99.4     The income should be projected with inflationary increases until retirement at age 64.

 

100.         The contingencies as referred to herein above should be applied.

 

PAST LOSS OF EARNINGS

101.      The past loss of earnings of the plaintiff are minimal, but he should be awarded for this loss.

102.      On the calculation dated 9 July 2019 the loss calculation in accordance with Ms Kreahmer is in amount of R33 974.

103.      I am of the view that this is reasonable compensation.

GENERAL DAMAGES

104.     Both Mr Upton and Mr Senyatsi briefly addressed the question of generaI damages. They were not ad idem that the amount of R500 000.00 is the correct amount, but Mr Upton conceded that R500 000.00 for the injuries sustained constitute a fair amount.

105.    I will therefore award an amount of R500 000.00 in respect of general damages.

 

CONCLUSION

106.         Therefore, I make the following order:

106.1     Absolution from the instance is dismissed with costs;

106.2     The plaintiff is to provide me with a calculation of the loss of future earnings / earning capacity on the basis as set out in paragraphs 87 to 100 in my judgment. This calculation should be provided to me by no later than 5 September 2019;mber 2019;

106.3     The defendant is requested to provide me with the amount of past medical expenses by no later than 5 September 2019, and by failure, then I will deal with this heads of damages as set out in paragraph 8 of my judgment.

 

 

 

FOR PLAINTIFF: ADV M. UPTON

083 514 8903

INSTRUCTED BY: NEL VAN DER MERWE & SMALMAN INC

 

FOR DEFENDANT: ADV G. SENYATSI

072 413 3925

INSTRUCTED BY: MATABANE INC

 

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