Van Zyl v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Daniso J
• Judgment Date: 25 August 2023
• Citation: 2023 JDR 3351 (FB)
• Docket Number: 2867/2013
• Court: Free State Division, Bloemfontein

Daniso J:

[1]

On 03 January 2010 the plaintiff was a passenger in a motor vehicle with registration numbers and letters DFG 216 FS when it collided with a vehicle with registration numbers and letters JHJ 840 FS. She sustained a head injury, factures of the left femur and the right acetabulum with face and shoulder lacerations.

2023 JDR 3351 p2

Daniso J

[2]

On 17 July 2023 the plaintiff issued summons against the defendant for damages the plaintiff sustained as a result of being injured in the said collision. In the particulars of claim (as amended) the plaintiff claimed an amount of R5 289 497.91 made up as follows:

2.1.	Past medical and hospital expenses:	R235 582.91
2.2.	Future medical expenses:	R100 000.00
2.3.	Past and future loss of income:	R4 203 915.00
2.4.	General damages:	R750 000.00

[3]

The injuries sustained by the plaintiff including the sequelae thereof is not in dispute. The defendant has since conceded the merits 100% in favour of the plaintiff and thereafter agreed to pay R700 000.00 (seven hundred thousand rand) in settlement of the plaintiff’s general damages and to also undertook to furnish the plaintiff with the statutory undertaking in respect of her future medical and hospital expenses in terms of section 17(4) (a) of the Road Accident Fund Act 56 of 1996 (“The Act”).

[4]

By agreement between the parties the claim relating to past medical and hospital expenses was postponed for later determination and the only issue that I have to determine is the contingency deductions to be applied to the award relating to past and future loss of income.

[5]

According to the plaintiff, that she would have followed the same career path in the uninjured scenario up to retirement age of 65 years but due to the injuries she had to resign form her employment to work in a sedentary job and will have to retire ten (10) years earlier. Based on those reasons, a 5% contingency deduction should be applied with regard to the determination of the plaintiff’s pre-morbid past loss, 15% for pre-morbid future loss and 30% post-morbid future loss as per the actuarial calculations.

2023 JDR 3351 p3

Daniso J

[6]

The defendant disagrees and submits that that there is no justifiable reason why the plaintiff would no longer be able to follow her uninjured career path post-morbid until retirement otherwise, the defendant suggests that contingencies of 5% in respect of pre-morbid past loss of earnings, 35% pre-morbid future loss of earnings and 20% post-morbid loss of earnings should be applied.

[7]

The plaintiff testified in support of her case and also called Dr Everd Jacobs as a witness. What follows hereunder is the summary of the evidence led in that regard.

[8]

The plaintiff is a qualified teacher. She grew up and also went to school in Bloemfontein. During her school years she also lived in Vryburg in the North West Province and later Aliwal-North in the Eastern Cape Province where her parents operated Wimpy businesses. Her family ultimately left South Africa and relocated Guernsey in the United Kingdom where the plaintiff obtained her Teaching Diploma in Child Care.

[9]

She began her employment career in 2004 Guernsey where she worked as a pre-school teacher until her Visa expired in 2006. She then returned to South Africa and continued to work as a pre-school teacher from 2006 to 2007 thereafter she worked as a Nanny taking care of a disabled seven-year old child until she met her accident in January 2010. She was 23 years old at that time.

[10]

As a result of the injuries, she was hospitalized and underwent various surgeries to repair the fractures and debridement of the lacerated wounds. She only returned to her work after three (3) months but she subsequently resigned and went to work at a pre-school Tjokkertjie Paradys as a teacher. About a year and two months later she bought the business (Tjokkertjie Paradys) with her then husband.

2023 JDR 3351 p4

Daniso J

[11]

In 2015 she relocated to Jeffreys Bay after suffering a miscarriage followed by a divorce. Whilst in Jeffreys Bay she decided to return to Guernsey to be with her parents who owned a restaurant, Blue Diamond / Fruit Export Company Ltd (Blue Diamond).

[12]

In order to obtain a working Visa in Guernsey she was required to have a qualification or experience and a job offer from a prospective employer in Guernsey as a result, she decided to pursue a career in hospitality. She also obtained a job as a waitress at Nina’s restaurant with effect March 2016. A year later she was promoted to manager and during February 2019 she resigned and relocated to Guernsey where she was promptly hired by her parents as a waitress at their Blue Diamond restaurant from April 2019. Five months later she was promoted to manager.

[13]

It was her testimony that Blue Diamond restaurant was a busy restaurant. She worked very long hours from 8am to 5pm, mostly six (6) days a week and by the end of the day she would be in severe pain emanating from the injured hip and the knee. The hip pain was constant and became worse when lying down and her feet swelled up as she spent long hours on her feet as a result, she resigned from Blue Diamond in July 2021. She was immediately offered a job as a trainee client executive at an insurance company Artex Risk Solutions.

[14]

She has been employed at Artex Risk Solutions since 02 August 2021. Her duties are mainly deskbound and this has helped in managing the pain. Sitting for long hours still poses a challenge for her back issues but her employers were generous and have provided her with a special chair to counter the adverse...