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[2015] ZAGPJHC 33
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Simelane v Road Accident Fund (2013/43205) [2015] ZAGPJHC 33 (24 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2013/43205
DATE: 24 FEBRUARY 2015
In the matter between:
SIMELANE, NONHLANHLA
ROSE
................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...............................................................................................
DEFENDANT
J U D G M E N T
WRIGHT J
1. The plaintiff, Ms Simelane is 46
years old. In 2006 she was injured in a vehicle accident. Ms T
Seboko, counsel for Ms Simelane
and Ms L Abrahams, counsel for the
Fund informed me that Deputy Judge President Mojapelo had determined
the merits at 100% in favour
of Ms Simelane. The Fund conceded that
it would be obliged to furnish Ms Simelane with a certificate under
section 17(1)
of the
Road Accident Fund Act 56 of 1996
to cover
future medical expenses. Ms Simelane abandoned a claim for past
medical expenses. The Fund abandoned a special plea of
prescription.
It was agreed between the parties that the only issues to be
determined by me are:
1.1 General damages - (the parties
agreed that the Fund had accepted that Ms Simelane’s injuries
were sufficiently serious
to allow me to assess the quantum of
general damages.) See the proviso to
section 17(1).
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1.2 Past loss of earnings
1.3 Future loss of earnings.
2. By agreement I admitted in evidence
the following reports prepared for Ms Simelane:
2.1 Dr S.M Kasumba – Specialist
Surgeon
2.2 Dr E Shnaid – Orthopaedic
Surgeon
2.3 Thandiwe Gama – Industrial
Psychologist
2.4 Dr BK Cheyip – Specialist
Neurologist
2.5 Mamotshabo Magoele –
Occupational Therapist
2.6 Lindelwe Grootboom –
Neuro/Clinical Psychologist
3. The defendant admitted the
correctness of these reports.
4. I admitted in evidence the report of
an Actuary, Mr W Loots, prepared for Ms Simelane. The Fund conceded
the admissibility of
this report. The Fund conceded further that the
conclusions, methodology and arithmetic of Mr Loots were correct if
his assumptions
are correct.
5. A pre-trial conference was held at
the offices of the Fund in Pretoria on 9 December 2014. Present were
Ms Simelane’s attorney,
Mr Oguike and Mr Rachuene, an attorney
representing the Fund at the time. Between then and the commencement
of trial the Fund changed
its attorneys. Ms Seboko submitted that the
Fund, during the pre-trial conference had agreed that if the Fund did
not, subsequent
to the pre-trial conference, file any expert reports,
the contents of all the expert reports filed on behalf of Ms Simelane
by
the time of the pre-trial conference were correct. Prior to the
pre-trial conference no expert reports had been filed for the Fund.
All the expert reports for Ms Simelane had been filed prior to the
pre-trial conference.
6. Ms Seboko relied in particular on
paragraph 16 of the minute which reads “Defendant has not
appointed an expert till date
and both parties agreed that if the
Defendant is not able to obtain medico-legal reports as at when due,
the expert reports of
the Plaintiff will be used ”. Ms Seboko
submitted that, given that the Fund never filed any expert reports,
the word “used
” at the end of the quoted words meant
admitted as correct. After some debate with both counsel about the
meaning of the
words I called Mr Oguike to testify. He conceded that
English is not his first language. He comes from Nigeria and his home
language
is Ibo. He said that what was understood by him and Mr
Rachuene was that all the plaintiff’s experts’ reports
would
be admitted as correct in the absence of counter reports from
the defendant. He conceded that no attorney had signed the minute
on
behalf of the Fund. He said that Mr Rachuene had undertaken to sign
the minute but had been replaced by a different firm of
attorneys. I
accept Mr Oguike’s bona fides. However, I ruled that the
report of Mr Loots was admissible in evidence but
that the Fund had
not admitted its correctness.
7. I did so because there is a
difference between using a document as evidence and admitting that
its contents are correct.
8. The expert reports referred to above
(excluding that of Mr Loots) reveal the following:
8.1 In 1995 Ms Simelane was involved in
a car accident and suffered a fracture of the pelvis and lumbar
spine. The injuries sustained
by Ms Simelane in the accident in 2006
and their consequences are as follows.
8.2 Immediately after the accident she
started vomiting, felt feverish and could not move. She sustained a
laceration through the
right eyebrow and was in a lot of pain.
8.3 When taken to hospital she was
assessed as having severe injuries involving her head, chest and
abdomen and fairly severe pelvic
injuries.
8.4 She suffers from osteoarthritis of
the lumbosacral spine and left pelvic joint.
8.5 She underwent a total abdominal
hysterectomy due to chronic pelvic pains which only started after the
accident.
8.6 She had a fractured left pelvis and
a soft tissue injury to the left ankle.
8.7 She had a head injury with loss of
consciousness.
8.8 She was in a coma in ICU for one
month.
8.9 She had traction applied to the
pelvis.
8.10 She had a laparotomy of the
abdomen.
8.11 She needed to use crutches during
her recovery.
8.12 She experiences headaches.
8.13 Her left ankle swells in cold
weather.
8.14 She has become forgetful to some
extent. She has become somewhat rigid in her approach to problem
solving.
8.15 She cannot walk long distances or
sit or stand for long periods.
8.16 She cannot run or climb stairs.
8.17 She cannot lift heavy weights.
8.18 She has difficulty doing daily
household chores.
8.19 She may require a spinal fusion.
8.20 From being an active full time
nurse she has to work light duty. This prognosis is fixed.
8.21 She will need physiotherapy.
8.22 Her ability to participate
competitively in the open labour market has been reduced as a result
of the accident.
8.23 The prognosis for her left ankle,
lumbar spine and pelvis is poor.
8.24 Her present injuries have been
aggravated by the 1995 injury.
8.25 The 1995 accident never impacted
on her performance at work.
8.26 She recuperated at home for six
months after the accident before going back to work.
8.27 She qualified as a professional
staff nurse in 1996. Thereafter she completed a year course in
midwifery. She completed a Nursing
Degree in 2010.
8.28 Ms Gama, the Industrial
Psychologist stated in paragraph 7.1 of her report “Given her
professional choice of nursing,
the writer believes that even if the
accident had not occurred, Rose would have continued in her nursing
job for as long as possible,
whilst equipping herself with the
necessary qualifications to upgrade her status/rank in nursing. She
would have still obtained
her nursing degree as she still did post
morbid, and continued to work as a professional nurse, probably even
reaching status of
being matron depending on how she would have used
the opportunities available to her, even educationally. She indicated
that she
intends to complete her masters levels in her field, and
this would have probably still been her aim regardless of the
accident.
With a masters degree she would have qualified to reach
levels of being a matron in charge.”
8.29 In paragraph 8.1 of her report, Ms
Gama stated “Given her intentions of even reaching managerial
levels within Nursing,
if she had to obtain a masters degree level
and was probably eligible for promotions, she would have still
progressed beyond the
scale to the equivalent of C5 of the Paterson
scales by the time she reached her ceiling.”
8.30 There is a high probability of Ms
Simelane not reaching her pre-accident employment potential.
8.31 She suffers from urinary urgency.
8.32 She suffers from chronic tension
type headaches.
8.33 She has limited forward flexion in
her lower back.
8.34 She suffers from lower back pain
after sitting for 45 minutes.
8.35 Her standing and walking endurance
are mildly affected.
8.36 She experiences burning pain on
the lower left limb when standing and walking longer than 60 minutes.
8.37 She walks with a normal gait.
8.38 She struggles to get in and out of
the bath.
8.39 She dresses independently but
struggles to put on socks and to tie shoe laces.
9. Ms Simelane testified. Post-accident
she cannot work properly. She inconveniences her colleagues. She
cannot lift patients from
bed to bed. She can no longer work in ICU
or in theatre. Her husband left her because of her decreased libido
caused by the accident.
She has lost income since the accident
because she cannot return at night to the hospital where she works if
she gets a call, after
she has returned home in the evening, to come
back to the hospital to do emergency work. She has been told by
supervisors that
her chances of promotion are very limited because of
her condition. She has not received any promotion post-accident which
has
resulted in any increase in pay. A number of her colleagues have
been promoted in circumstances where she has not. She suffers pain
daily. She does earn overtime pay but this is a set sum and is also
earned by her colleagues. She earns this pay by working beyond
her
normal hours of 8am to 5pm Monday to Saturday. In such cases she
simply stays on at work after 5 pm.
10. The Fund presented no evidence.
11. In my view Ms Simelane has not
proved any past loss of income, that is between the date of the
accident and 1 October 2014.
She received her salary throughout. She
also received regular increases for inflation. She received overtime
pay. She mentioned
that she does not return to the hospital on call
in emergencies. I accept that she would have had there been no
accident. However,
there is no evidence, either from Ms Simelane or
any of her experts as to how much time she has forgone. There is no
evidence as
to what rate she would have earned had been able to
respond to calls. It is not at all clear, from a reading of Mr Loots’
report and that of Ms Gama, the Industrial Psychologist, how the
alleged past loss of income has been calculated. In her evidence
Ms
Simelane mentioned that the mere fact that one was promoted did not
imply a salary increase.
12. Similar considerations apply to the
claim for future loss of income. Ms Simelane mentioned the
possibility of retiring at age
50. None of her experts dealt with the
question of early retirement.
13. No loss of income has been proved.
14. On the question of general damages,
Ms Seboko moved for R1,5m. Ms Abrahams suggested that the amount to
be awarded should be
less than R700 000. Both counsel should be
complimented on their heads of argument and on having presented, as
best they could,
cases which were not easy to present. I think that R
500 000 is appropriate.
15. The parties have prepared a draft
order and it is for me to fill in the blanks. I make an order in
terms of the draft marked
X.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
On behalf of the Plaintiff: Adv T
Seboko
Instructed by: CH Oguike
Attorneys
011 333 0619
On behalf of the Defendant:
Adv L Abrahams
Instructed by: Tau Phalane Inc
011 333 0183
Dates of Hearing: 20, 23 and 24
February 2015
Date of Judgment: 24 February
2015