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[2014] ZAGPJHC 441
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Human v RAF (24720/2013) [2014] ZAGPJHC 441 (17 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
24720/2013
DATE: 17
SEPTEMBER 2014
In the matter
between
KM
HUMAN
................................................................................................................................
Plaintiff
And
RAF
............................................................................................................................................
Defendant
J U D G M E N T
WEINER J:
INTRODUCTION
[1]
The plaintiff has sued the defendant in
respect of a road accident that occurred on the date of 16 February
2011, when the plaintiff
was injured. Her injuries consist of the
following: a head injury with loss of consciousness, facial injury,
lower back injury,
left knee lateral tibial plateau fracture and a
left foot small toe un-displaced fracture.
ISSUE
IN DISPUTE
[2]
The issue to be decided is what the
retirement age of the plaintiff would have been. The plaintiff gave
evidence that she had worked
for her son since 2009 doing office
work. She was earning R3 800.00 in 2009 and at the time of the
accident, R5 000.00.
[3]
She had intended to retire at age 65 and
her son agreed. I must note that her son did not give evidence and
perhaps his evidence
would have assisted this court in some way. The
plaintiff was divorced in 1994 and from approximately 1996 to 2007
she lived with
a man (her partner) and according to her, ran his
business until he passed away in 2007. She submits that he supported
her. She
says before the accident her health was fine and after it
she tried to work, but could not.
[4]
There was no employment contract with her
son according to the plaintiff and she was paid in cash. She says her
duties were answering
the phone, taking orders, filing et cetera and
that she assisted her daughter-in-law in this regard. She was not
responsible for
running the office. She admitted that she was given
this job by her son, because she needed a job and needed to earn
money. It
also appears to be common cause that the plaintiff was not
an ambitious employee at any part of her life.
[5]
From about 1990 to 2009, other than helping
her partner run his business, she did not have formal employment. She
was unemployed
until she began working for her son in 2009. It seems
clear that she was sympathetically employed by her son. She made
certain
remarks to the medical experts that her work consisted of
‘pouring coke for her daughter-in-law the whole day’
[6]
The information that she gave to the
medical experts is that since she has been unable to work, her son
has been taking care of
her and has given her accommodation, food and
covered her medical aid. She was being supported financially by her
son. It is clear
that the plaintiff cannot work since the accident.
PLAINTIFF’S
RETIREMENT AGE
[7]
The two industrial physiologists in this
matter, Dr Kellerman (plaintiff’s expert) and Ms Garner
(defendant’s expert)
have differing opinions in this regard. Dr
Kellerman says that it is the norm to retire at 65 from informal
employment such as
that of the plaintiff. In regard to pre-existing
medical conditions, there is reference in the report to Dr Gantz, the
defendant’s
orthopaedic surgeon who examined her. Her
examination revealed local tenderness and limitation in neck
mobility. The x-rays showed
advanced degenerative changes and
cervical spondylosis. Considering that it takes years for such
changes to become apparent on
X-rays, it is reasonable to assume that
they were already present by the time of the accident and that part
of her present condition
is age-related and caused by this
pre-existing condition.
[8]
It is therefore fair to apportion the
reasons for her present symptoms to both the pre-existing cervical
spondylosis, and the accident.
In Dr Gantz’s opinion, the
percentage would be 60/40 respectively.
[9]
Ms Garner states that it remains unclear if
the plaintiff would have continued to work passed her pensionable age
of 60. Giving
the plaintiff the benefit of the doubt, Ms Garner
cannot object to the view that she would have worked up to around age
62 to 63.
Although, the plaintiff criticizes this view, where a
person is sympathetically employed and not in formal employment, it
will
always remain unclear if she would have continued to work past
her pensionable age of 60 and/or until the age of 65.
[10]
In addition, the pre-existing medical
condition contributed to a substantial degree to her symptoms. She
was in pain and discomfort
and it appears that the pre-existing
cervical spondylosis contributed to that. She would therefore
probably have been compelled
to give up work earlier than 65.
[11]
Taking all of the above into account, as
well as the fact that she was sympathetically employed, and being
financially supported
by her son, her retirement age be as would the
defendant’s industrial psychologist, Ms Garner, opined i.e.
between 62 and
63 years old.
[12]
Giving the plaintiff the benefit of the
doubt, as the defendant’s industrial psychologist has done, the
court is of the view
that the retirement age of 62½ is just in
the circumstances. Therefore, the total loss of income would be
R253 500
[13]
An order is accordingly made in terms of
the draft order.
S
WEINER
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA (GLD)
Appearances
For
the Plaintiff: Advocate Thea Londman
Instructed
by: Leon JJ van Rensburg
For
the Respondent: Advocate Themba Malandela
Instructed
by: Nozuko Nxusani Inc.
Date
of hearing: 17 September 2014
Date
of Judgment: 17 September 2014