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[2011] ZAGPJHC 187
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Brits v Road Accident Fund (19395/07) [2011] ZAGPJHC 187 (29 April 2011)
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: 19395/07
NOT REPORTABLE
DATE:20/04/2011
In
the matter between:
BRITS
JOHANNES
Plaintiff
and
ROAD
ACCIDENT FUND
.
Defendant
R E A S O N S F O R J
U D G M E N T
TSOKA, J:
[1] On 18 February
2011 the parties approached the Court on what they described a stated
case.
[2] In terms of the
stated case, the parties agreed that the Court should only determine
the issue of Plaintiff’s future
loss of income or earning
capacity and the general damages. The court was informed that
the parties have settled the merits
in favour of the plaintiff as
well as the other heads of plaintiff’s damages. The
evidence relied upon by the Plaintiff
was that of his expert
witnesses. The expert evidence was admitted into the record by
consent. The defendant did not
lead any evidence. It
however, contended that the Plaintiff, on his own evidence, had
suffered no loss of income. A
draft order in this regard had
already been prepared. It was for the Court to only fill in the
appropriate globular award
having heard argument from the parties.
[3]
Having heard Counsel on both sides, I made an order in terms of the
draft order which I marked
“
X
”
,
initialled and dated 18 February 2011. In terms of the draft
order, amongst other things, I ordered the defendant to pay
to the
plaintiff the sum of R 150 000 in respect of the general damages.
I made no order in respect of future loss of income,
as on the
evidence before me, the plaintiff failed to prove any loss of income.
[4] The following
facts are common cause –
4.1
The plaintiff sustained soft
tissue injuries to his neck, back and right shoulder. He had
lacerations, two above his right
elbow, one behind the left elbow and
one on the left hand;
4.2
He was admitted to
hospital where the wounds were cleaned and the right and left elbows,
as well as the left hand, were sutured
and dressed. He was
given anti-inflammatories and analgesics and referred for
physiotherapy;
4.3
Only the plaintiff submitted
medico-legal reports which were, by consent, handed in as evidence
for the plaintiff;
4.4
The medico-legal reports
are that of Dr. P.F.B. Von Bormann, an Orthopedic Surgeon (“
Dr.
Von Bormann
”); Megan Spawns,
Occupation Therapist (“
Megan
Spawns
”); G. Mitchells, Clinical
Psychologist (“
G Mitchells
”);
Dr A.C. Strydom, Industrial Psychologist (“Dr. Strydom”)
and Ivan Kramer, a consulting Actuary (“Ivan
Kramer”).
[5] From the
evidence gleaned from the various reports, Plaintiff is a Creative
Director with an Advertising Agency.
He is also a shareholder
in the Agency. At the time of the accident, he was earning a
monthly salary of R25 000. After the
accident he was promoted as Head
of the Creative Department. His salary was increased to R35 000
per month. Presently his
monthly salary is R45 000.
[6] According to
Dr. Von Bormann, the Orthopaedic Surgeon, who consulted with the
plaintiff on 21 February 2007, the plaintiff’s
complaints, at
the time, were –
6.1
painful movement of the right
shoulder, painful enough to wake him up in the evening;
6.2
painful right elbow movements with
exertion at playing sport;
6.3
a historical chronic low backache
which has become more persistent and acute.
In conclusion, Dr. Von
Bormann states that ‘Healthy, active Mr Brits is still plagued
by pains in his limbs and back, all
dating from this accident.
However, with further treatment, great improvement can still be
expected.’
[7] From Dr. Von
Bormann’s medico-legal report, it is apparent that the
plaintiff suffered soft tissue injury of right
shoulder and right
elbow.
[8] On 11 December
2010, Dr. Von Bormann consulted further with the plaintiff. He
prepared an Addendum to his report.
In the Addendum, he
concludes that the plaintiff’s symptoms, with vigorous formal
treatment, would improve. He is, however,
of the opinion that the
chronic low backache is notoriously difficult to eradicate
completely.
[9] According to Ms
Megan Spawns, the Occupation Therapist, the restricted shoulder
movements and slightly reduced muscle
strength, would not restrict
the plaintiff to walk, stand, crouch and climb stairs. She
concludes by saying that –
‘
Given
this he meets most physical requirements expected of a creative
director. He is however limited in terms of his weight
handling
abilities and would require reasonable accommodation with regard to
lifting and carrying weight in excess of light classification.
Fortunately the tasks that demand this level of ability are not
essential job tasks and will not hinder his ability to work in
his
current capacity’
[10] On 31 January
2011, the plaintiff consulted with Dr. A.C. Strydom, Industrial
Psychologist, whom he informed that he
is still able to perform his
current job tasks in spite of the continuous pain in his shoulder.
[11]
The totality of the evidence reveals that the sequelae of the
injuries sustained by the plaintiff do not interfere with his
work
performance. He is still employed by the same employer in whom
he is a shareholder. Since the accident, in spite
of his
injuries, he received two salary increases, which increases, suggest
that plaintiff’s work performance is more than
satisfactory.
The plaintiff plans to start his own Agency in future. His
plans suggest that the
sequelae
of his injuries are not of such a serious nature that they would
interfere with his earning capacity. In the result I found
nothing in plaintiff’s evidence that suggests that the
plaintiff is less competitive in the labour market or suffers, or
would suffer any loss of employment ability deserving compensation by
the defendant.
[12] Although the
Clinical Psychologist, Mr G.J. Mitchell diagnosed the plaintiff with
Adjustment Disorder and some features
of Post Traumatic Stress
Disorder, these appear not to be related to the accident as prior to
the accident, the plaintiff suffered
from depression as a result of
abuse. The depression resulted in plaintiff attempting to
commit suicide. In any event,
Mr. Mitchell is of the opinion
that plaintiff’s Adjustment Disorder and the Post-Traumatic
Stress Disorder will require psychotherapy
which will significantly
lessen his symptoms to the extent that the symptoms would no longer
impact on his daily functioning.
[13] With regard to
General Damages, it must be borne in mind that the plaintiff did not
sustain any serious bodily injuries.
In the accident, the
plaintiff sustained soft-tissue injuries to his neck and back. His
treatment was conservative. It is only
when the conservative
treatment being unsuccessful that there is a 60% possibility of him
requiring surgery by way of arthroscopic
debridement and
decompression of the shoulder. Should he follow his
conservative treatment for the next two years, by taking
anti-inflammatories and analgesics and by receiving three courses of
local cortisone injections into his left elbow, he would be
cured.
[14]
Having regard to plaintiff’s injuries, their
sequelae
,
the previous awards, I awarded the plaintiff the amount of R 150 000
in respect of general damages, hence the draft order, marked
“X”
which I initialled and dated 18 February 2011 was made an order of
court. I made no order in respect of loss
of earnings as the
evidence on record fell short of proving such loss on a balance of
probabilities.
M
TSOKA
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
COUNSEL FOR PLAINTIFF
: ADV. E. DOS SANTOS SOARES
INSTRUCTED BY :
HOUGHTON HARPER INC
COUNSEL FOR DEFENDANT :
ADV. E. SWARTZ
INSTRUCTED BY :
SWARTZ INC