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[2014] ZAGPJHC 455
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Jabanga v Road Accident Fund (41437/12) [2014] ZAGPJHC 455 (13 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 41437/12
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
13.06.2014
In
the matter between:
JOHANNA
MANTOA
JABANGA
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
Windell
J:
INTRODUCTION
[1]
This is an action for damages arising from bodily injuries sustained
by the plaintiff in a motor vehicle accident on 21 August
2009.
[2]
The issue of liability was settled before the matter went to trial.
The parties also settled the general damages and past medical
expenses. It was agreed that the defendant would pay an amount of R
400 000 towards general damages and R 85 407.77 towards past
medical
expenses. The defendant had also undertaken to furnish the plaintiff
with an undertaking in terms of the provisions of
s 17(4)(a) of Act
56 of 1996.
[3]
The only remaining issue in dispute is the general contingencies to
be applied to the agreed future loss of income.
[4]
The matter proceeded before me by way of a stated case and on the
issue of contingencies only. The parties agreed not to call
any
witnesses. The joint minutes of the orthopaedic surgeons, the
occupational therapists, the psychiatrists and the industrial
psychologists were admitted as evidence.
COMMON
CAUSE FACTS
[5]
The plaintiff was a passenger in a motor vehicle when it was involved
in an accident on 21 August 2009. She suffered the following
injuries
in the accident:
Fracture
of the right acetabulum.
Fracture
of the left clavicle.
Fractures
of the sight seventh, eighth, and ninth ribs.
Concussion
[6]
The plaintiff qualified as an auxiliary nurse in March 2004. It was
agreed that if it was not for the accident, that she would
have
qualified as a professional nurse by at least 2016. Because of the
accident she will however remain in her position as auxiliary
nurse
until the age of 65.
[7]
The
orthopaedic surgeons
agreed that her right hip movements
were slightly decreased and that these symptoms were likely to worsen
requiring increasing
doses analgesics and anti- inflammatories. They
agreed that she would almost definitely require a right total hip
replacement,
and that in view of her age, she might require a
subsequent revision of the arthroplasty. They were also in agreement
that her
ability to continue working in her current position was
likely to decrease progressively.
[8]
The
psychiatrists
agreed that the plaintiff was suffering from
a mild depressive illness secondary to a general medical condition
(primarily fracture
right hip)
[9]
The
occupational therapists
agreed that the plaintiff would
benefit from a rehabilitation treatment programme that includes
therapy by a physiotherapist and
biokineticist, for pain management
of her right hip and left arm. She would also benefit from
occupational therapy sessions and
recommended several assistive
devices. They agreed that she was currently suited for work that
falls within the light work category
and that her work as auxiliary
nurse falls within the medium work category with aspects of heavy
work (when manually handling patients)
. She is therefore not suited
to her current work as auxiliary nurse and she should consider
pursuing nursing in a field that requires
less physical strength than
the current demand. It was agreed that there was a possibility that
she might further her studies that
would entail her to do more
administrative duties and allow intermittent sedentary periods for
pain management. They were in agreement
that she remains a vulnerable
individual and would in all likelihood be disadvantaged compared to
her peers in the competitive
open –labour market and that early
retirement should be considered.
[10]
The
industrial psychologists
agreed that the plaintiff’s
work capacity had been severely compromised and that one of the
following scenarios might occur:
1. She will not
be able to continue working as an auxiliary nurse and will have to
apply to be medically boarded within three to
four years.
2. She will
qualify as a professional nurse. Should she qualify as a professional
nurse, she should still be able to continue working
but with
accommodation. She will have to focus on posts where the job demands
are not that physical and she will have to delegate
more strenuous
tasks. She will therefore always remain an unequal competitor.
3. A slight
possibility does exist that management might place her in an
alternative sedentary position.
GENERAL
CONTINGIENCIES
[11]
I
have been furnished with an actuarial calculation by the plaintiff
prepared by Mr Whittaker of Algorithm Consultants and Actuaries
CC.
It is agreed between the parties that the calculations made in
respect of the loss of earnings/earning capacity as contained
in that
report are correct. The only difference between the parties is the
contingency deduction that should be applied in this
particular case.
[12]
Counsel for plaintiff submitted that a 14% contingency pre morbid
should apply. Counsel for defendant suggested a 20% deduction.
It is
common for courts to apply a sliding scale of ½ per year to
retirement age which results in approximately 25% for
a child, 20%
for a youth and 10% for a middle aged adult. Plaintiff is currently
37 years of age and if the sliding scale is applied,
a 14%
contingency should apply. Counsel for defendant furnished no reasons
why it should be increased to 20%. The plaintiff’s
work history
did not suggest a higher contingency than the norm. I am satisfied
that a 14% contingency must be applied pre-morbid.
[13]
The parties are in agreement that the plaintiff will continue working
as an auxiliary nurse until retirement age at 65. They
however both
argued that there are special circumstances present that might
influence this prediction. Counsel for plaintiff submitted
that a 60%
contingency post morbid should apply. Counsel for defendant disagreed
and suggested 30%.
[14]
Counsel for plaintiff argued that in light of the fact that the
orthopaedic surgeons agreed that:
she
would almost definitely require a right total hip replacement and;
her
hip symptoms were likely to worsen and her ability to continue
working in her current position was likely to decrease
progressively;
that
a higher contingency should be applied. Counsel for plaintiff further
submitted that as the occupational therapists agreed
that the
plaintiff was currently suited for work that falls within the light
work category and that the work as an auxiliary nurse
falls within
the medium work category, that it strengthens the argument for a
higher contingency. The experts were of the opinion
that she was not
suited to do her work as an auxiliary nurse as it requires high
physical strength, and that there was a possibility
that she might
have to apply to be medically boarded before retirement age.
[15]
Counsel for defendant agreed that a higher contingency should be
applied, but submitted that a 60% contingency was not substantiated.
Counsel relied on the possibility that the plaintiff might further
her studies, that would result in her doing more administrative
duties and sedentary work. It was counsel’s contention that as
the experts agreed that there was a slight possibility that
management might place her in an alternative sedentary position, she
will not easily be medically boarded because she was employed
by a
State hospital and nurses were in high demand.
[16]
It is common for courts to apply different contingencies for post and
pre accident. In
Seme v RAF
2008 JOL 22068
D
in par
[51] Tshabala JP (as he then was) in dealing with contingencies said
the following:
“
When
a court accepts an actuary's calculation determining future earnings
of an injured plaintiff, it usually then considers the
"general
equities of the case" and adjusts the figure in order to "blend
the scientific with the equitable".
The figure is usually
adjusted for certain contingencies which may not have been taken into
account by the actuary. What these
contingencies are and what they
take into account varies from case to case and ranges beyond
statistics. Determining what contingencies
to take into account is by
its very nature a process of subjective impression rather than
objective calculation. It is a matter
that falls within the
discretion of the court, which will determine an amount that it
considers to be right rather than being tied
down by inexorable
actuarial calculations. However, the courts are mindful of the
fact that the process involves "pondering
the improbable"
and
primarily encompasses educated guesswork in which the court makes
assumptions which cannot be proved”.
[23]
As a result of the injuries sustained there is likelihood that the
plaintiff might be unable to continue working as an auxiliary
nurse
but there is also the possibility that she might be accommodated in
doing sedentary work. The fact that she shows an interest
to further
her studies and progress to a professional nurse cannot be ignored.
The hospital accommodated her just after the accident
by placing her
in a less demanding position. It is however agreed that her hip
symptoms were likely to worsen and her ability to
continue working in
her current position was likely to decrease progressively. It was
agreed that she would also benefit from a
rehabilitation treatment
programme. Exercising my discretion and making
the
best use I can of the evidence before me
,
I find that contingencies of 14% pre- accident and 40% post- accident
must be applied on the agreed future loss of income.
[24]
In the result the following order is made:
1.
The draft
order as amended is made an order of court.
L.
WINDELL
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Counsel
for the Applicant: D. Combrink
Instructed
by: Erasmus De Klerk Attorneys
Counsel
for defendant: S.J Maisela
Instructed
by: MF Jassat Dhlamini Incorporated
Date
of Hearing: 29 May 2014
Date
of Judgment: 13 June 2014