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[2014] ZAGPJHC 121
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Oostuizen v Road Accident Fund (2012/29620) [2014] ZAGPJHC 121 (3 June 2014)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2012/29620
In
the matter between:
LETTA
MARIA
OOSTHUIZEN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J U D G M E N T
KATHREE-SETILOANE,
J
:
[1]
The plaintiff, Letta Maria Oosthuizen claims damages from the
defendant arising out of bodily injuries sustained in a motor
vehicle
collision which occurred, on 18 May 2009, in Vereeniging, between the
insured motor vehicle and the motor vehicle in which
the Plaintiff
was a passenger.
[2]
The issues of negligence and liability have been agreed and settled
on the basis that the defendant admits 100% liability for
the proven
damages that plaintiff has suffered as a result of this collision.
The defendant has undertaken to furnish the
plaintiff with an undertaking in terms of
s 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
for the costs of the future
accommodation the plaintiff in a hospital or nursing home or
treatment of or rendering of a service
or supplying of goods to her
after the costs have been incurred and upon proof thereof.
The
defendant has also agreed to pay the plaintiff the amount of
R16887.00 in respect of her claim for past medical and hospital
expenses.
[3]
The matter comes before me for the determination of the quantum of
damages in relation to the plaintiff’s past and future
loss of
income, and past medical expenses. The issue of general damages was
referred to the Health Professional Council of South
Africa prior to
the trial.
[4]
The plaintiff testified, as did Dr Oelofse (Orthopaedic Surgeon), Ms
E Kruger (Occupational Therapist) and Mr F.P Möller
(Industrial
Psychologist) on her behalf. The following expert witnesses testified
for the defendant: Mr B Moodie (Industrial Psychologist)
and Ms S
Harrison (Occupational Therapist). The defendant produced the expert
report of its Orthopaedic Surgeon, Professor Schepers,
but did not
call him to testify. Joint minutes were prepared by the Orthopaedic
Surgeons (Oelofse and Schepers), the Industrial
Psychologists (Möller
and Moodie), and the Occupational Therapists (Kruger and Harrison).
[5]
It is common cause that the plaintiff suffered a severe injury to her
cervical spine, resulting in a cervical condition which
is causing
severe pain, requiring conservative treatment and probable surgical
intervention in the future. The conclusions drawn
from the MRI
results is that the plaintiff sustained a serious long term
impairment and loss of body function in terms of the narrative
test.
Having regard to the injuries sustained by the plaintiff, the
Orthopaedic Surgeons concluded as follows in their joint minute:
“
38.1
Having regard to the patient’s physical pre-morbid
employment duties, the patient’s complaints and clinical
presentation, as well as the radiological findings, it is agreed that
the patient is physically unsuitable to perform her pre-morbid
duties.
38.2
It is agreed that the patient will have to undergo the recommended
medical treatment ....
38.3
It is agreed that the injuries sustained in the collision and the
sequelae
thereof constitutes serious long term impairment and loss of body
function in terms of the narrative test.”
[6]
At the time of the collision the plaintiff was […..] years old
and unemployed. She was in possession of a grade 10 certificate
and
had between 7 to 8 years’ experience as a child-minder working
in the children’s nursery industry. She had resigned
from her
last job as a child-minder at Telly Tubbies Nursery School in
Vereeniging in 2008, where she worked fulltime for eight
months of
the year, and two months part time. Telly Tubbies is owned by her
sister, Ms Ina Albrecht. The plaintiff resigned from
this job in
order to take care of her youngest daughter who became depressed
after the death of her father, and developed a medical
condition
requiring surgical intervention. She intended to return to work in
2010, due to financial constraints and because her
daughter’s
condition had improved, but was prevented from doing so due to
the injuries which she sustained in the accident.
As a result of the
injuries sustained in the accident, the plaintiff experiences severe
and chronic neck pain, which is aggravated
when walking, reaching,
handling heaving objects, rotating her neck, looking up and down etc.
She also experiences severe headaches
and muscle spasms in her neck,
and struggles to sleep at night due to the pain. She struggles
to carry children, and has
difficulty lifting them up, or bending
down to tend to them. She uses analgesics to treat her pain.
[7]
The plaintiff’s duties as a child-minder included lifting
children, feeding, cleaning and dressing them as well as playing
with
them. In late 2010, she assisted her sister at Tellly Tubbies for a
day. She was unable to perform her duties fully as she
was incapable
of lifting and carrying the children. When she informed her sister of
this, she was told that if she was unable to
physically handle the
children, then she could not return to work. Although the plaintiff
never returned to work at Telly Tubbies,
she sought employment at two
crèches in the area. When she disclosed her medical condition,
and that she was only capable
of working with children in a
supervisory capacity (monitoring the children), she was advised that
she could not be employed unless
she was able to lift and carry
children, and cope with the other physical demands of
child-minding.
[8]
Although initially agreeing that post-accident the plaintiff is
suited to sedentary work, on consideration of the joint minute
of the
Orthopaedic Surgeons, the Occupational Therapists for both the
defendant and the plaintiff, are in agreement that
the plaintiff is
unable to perform her pre-morbid work duties and is totally
unemployable post-accident.
Pre-Accident
Scenario
[9]
Mr Möller, the Industrial Psychologist for the plaintiff, is of
the opinion that the plaintiff would have been successful
in securing
a similar position as a child-minder in the nursery school industry
during 2011, and that her career would have progressed
as follows:
(a)
The plaintiff would have remained
unemployable for a period of six months, during which time a suitable
position would have been
sought.
(b)
By age 45 the plaintiff would have been
employed as a child-minder earning R2000, 00 per month (between the
median and upper quartile
as an unskilled worker).
(c)
By age 50, the plaintiff would have earned
R3000, 00 per month (closer to the upper quartile of an unskilled
worker)
(d)
By age 55 the plaintiff would have reached
her career ceiling, earning R4000,00 per month (upper quartile of an
unskilled worker).
(e)
Thereafter the plaintiff would have
received annual inflationary increases until normal retirement age of
65.
[10]
Mr Moodie, the Industrial Psychologist for the defendant agrees in
general with Mr Möller, but deviates from Moller’s
view on
the following two issues: the period within which the plaintiff would
have been able to secure employment and her age of
retirement. In
this regard, he is of the view that plaintiff would have secured
employment within a period of six months from first
starting to look
for employment in 2010, and she would have worked to retirement age
60-65 as opposed to 65 as opined by Mr Möller.
He is of the
opinion that she would have worked to retirement age 60-65 because
she would have found herself at a distinct disadvantage
when
competing for posts against more suitably qualified younger
child-minders, and that because plaintiff relied on her physical
strength to perform her job, she would have opted to retire at the
younger age of 62.5 years. To the contrary, I am of the
view
that plaintiff would have elected to work to age 65 because she is a
widow, a single mother of five children, and is in financial
need.
Having regard to her experience of 7 to 8 years as a child-minder, I
am of the view that she would have faced little difficulty
securing
employment in a similar role at a crèche, nursery school,
private home, or an institution for special needs children
at age 65.
The objective evidence demonstrates that in the Vereeniging area
alone, where the plaintiff previously worked, there
is a demand for
child-minders. Her experience as a child-minder would, therefore,
have made her a more attractive employee than
younger, less
experienced child-minders. Furthermore, due to plaintiff’s
financial constraints, she would have opted
for an extended work
life, as opposed to the lower state pension. Accordingly, I find that
the plaintiff would, post- accident,
have retired at age 65. Also,
having regard to the high demand for child-minders in the Vereeniging
area alone, I find that plaintiff
would have been unemployed for a
period of six months and would have found employment in 2010 as
opposed to 2011 as opined by Mr
Möller.
Post-
Accident Scenario
[11]
Having regard to the joint minute of the Orthopaedic Surgeons, the
Industrial Psychologists agree that post-accident, the plaintiff
is
unable to compete in the open labour market as a child-minder or for
any job, which she would have been pre-morbidly qualified,
because of
the plaintiff’s physical condition, her lack of trainability,
and that she will be required to compete with an
oversupply of newly
matriculated younger and healthier job applicants. Accordingly, they
agree that, post-accident, the plaintiff
is totally unemployable.
[12]
On consideration of the expert views I consider the plaintiff to be
unemployable for the next fifteen years until age 65.
She will
undoubtedly suffer loss of earnings as a result of the injuries
sustained in the accident. The plaintiff has prepared
a calculation
of the plaintiff’s past and future loss of income based on the
assumption that from June 2010, the plaintiff
would have earned
R2000,00 a month (in 2014 terms as agreed by the Industrial
Psychologists), that her income would have increased
in line with
inflation (5.4%) until her retirement at age 65, and that since the
date of the accident, plaintiff has earned
no income, and will
not earn any income in the future. Although there was some
discrepancy between the evidence of the plaintiff
and the experts as
to the amount that she earned at Telly Tubbies between 2005 and 2008,
this is irrelevant to the calculation
of the plaintiff’s past
and future loss of earnings, as the Industrial Psychologists agree
that R2000,00 is a fair estimate
of what the plaintiff would have
earned when she resumed employment in 2010. Importantly, in this
regard, Mr Moodie stated that
the plaintiff’s sister currently
(in 2014) pays child-minders employed at Telly Tubbies R2400.00 a
month.
[13]
The plaintiff’s income but for the accident is calculated to be
R85 900, 00. to which is applied a 2.5% contingency deduction,
resulting in a net past loss of R83 752.50. I consider the
application of a 2.5% contingency deduction to plaintiff’s
income,
but for the accident to be fair and reasonable, since the
evidence reveals that but for the accident the plaintiff would have
secured
employment at Telly Tubbies, which belonged to her sister.
[14]
The plaintiff’s future loss of income, but for the accident is
calculated to be R277 700,00, to which is applied a 7.5%
contingency
deduction resulting in a net future loss of R256 872.50. I am of the
view that the application of a 7.5% contingency
deduction to
plaintiff’s future loss of income, but for the accident is fair
and reasonable since the evidence reveals that,
but for the accident,
plaintiff would have been employed to age 65, as she is highly
experienced, and there is a high demand for
child-minders in
Vereeniging. Accordingly, I award the plaintiff an amount
of R340 625.00 for past and future loss
of earnings.
[15]
In the result I grant judgment for plaintiff against the defendant
as follows:
1.
The defendant shall pay the plaintiff a
capital amount of R357512.00 in respect of plaintiff’s claim
for past and future loss
of earnings and past medical and hospital
expenses.
2.
The capital amount is payable by means of
direct fund transfer before or on 30 June 2014 into the trust bank
account of the plaintiff’s
attorney; Mills & Groenewald
Trust Cheque Account, Absa Bank Vereeniging, Account number.[………],
Branch
code: [……..], reference […..].
3.
No interest will be payable except in the
event of default of payment before/ on the above mentioned date in
which case interest
will be payable at the rate of 15,5% calculated
on the capital amount from 30 June 2014.
4.
The defendant will furnish the plaintiff
with an undertaking in terms of
s 17
(4)(a) of the
Road Accident Fund
Act, 56 of 1996
, for 100% of the costs of the future accommodation of
the plaintiff, in a hospital or nursing home or treatment of or
rendering
of a service to the plaintiff or supplying of goods due to
injuries sustained by the plaintiff in the motor vehicle collision
which
occurred on 18 May 2009 and the
sequelae
thereof, after such costs have been
incurred and upon proof thereof.
5.
The defendant shall pay the plaintiff’s
taxed or agreed party to party costs up to date on the High Court
scale, which party
and party costs shall include, but not be limited
to:
5.1
The reasonable costs in
respect of the preparation of the medico legal reports,
the addendum medico legal report, the
radiological reports, the RAF1
Third Party Claim form, and the RAF4 Serious Injury Assessment
Reports;
5.2
Consultations when detailed
instructions were given due to the complexities of the matter;
5.3
Costs of counsel from 12 May
2014 up and until 21 May 2014;
5.4
Drafting of heads or argument
as per the direction of the court (plaintiff’s leading senior,
Piet Uys);
5.5
Costs pertaining to 16 May 2014
and 20 May 2014 as well as all costs pertaining to qualifying/ and or
preparation and/ or reservation
fees and/ or travelling fees of Dr
Oelofse and Enid Kruger.
5.6
Qualifying and/ or preparation
and/ or reservation fees, if any, for trial on 12 May 2014 up to 16
May 2014 to be proven to the
taxing master in respect of the
following experts:
5.6.1
Dr Oelofse (Orthopaedic Surgeon);
5.6.2
Dr M Wilson (Radiologist);
5.6.3
Dr J.H.S Van Zyl (Physician);
5.6.4
Ms E Kruger (Occupational Therapist);
5.6.5
Mr F. P Möller (Industrial Psychologist);
5.6.6
Munro Consulting Actuaries (Actuaries);
5.6.7
As well as the preparation fees of Dr Oelofse (Orthopaedic Surgeon)
in respect
of the joint meeting discussions and preparation of the
joint minute with Professor Schepers (Othopaedic Surgeon);
5.6.8
As well as the preparation fees of Ms E Kruger (Occupational
Therapist) in
respect of the joint meeting discussions and
preparation of the joint minute with Ms S Harrison (Occupational
Therapist);
5.6.9
As well as the preparation fees of Mr F. P Möller (Industrial
Psychologist)
in respect of the joint meeting discussions and
preparation of the joint minute with Mr B Moodie (Industrial
Psychologist).
6.
Subject to the following conditions:
6.1
The plaintiff shall, in the event that costs are not agreed, serve
the notice of taxation
on the defendant’s attorney of record,
and
6.2
The plaintiff shall allow the defendant 7 (seven) court days to make
payment of the taxed
costs.
_____________________________
F KATHREE- SETILOANE
JUDGE OF THE HIGH
COURT OF
SOUTH AFRICA, GAUTENG
LOCAL
DIVISION,
JOHANNESBURG
Counsel
for the Plaintiff:
P Uys and H Schouten
Attorneys
for the Plaintiff:
Mills and Groenwald
Counsel
for the Defendant:
A Nondwana
Attorneys
for the Defendant:
Hogan Lovells Attorneys (previously known as Routledge Modise
Attorneys
Date
of Hearing:
21 May 2014
Date
of Judgment:
3 June 2014