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[2015] ZAGPJHC 177
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Matsane v Road Accident Fund (12/19810) [2015] ZAGPJHC 177 (24 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE NO: 12/19810
DATE: 24 AUGUST 2015
In the matter between:
MATSANE, Petronella
Nkele
......................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
YACOOB, AJ:
[1] The plaintiff, Ms Matsane, was a
pedestrian involved in a collision in March 2009. She suffered
injuries, which are common cause,
and was admitted to hospital after
the collision, where she remained for three days. She has made a
claim against the defendant
for future medical expenses, future loss
of earnings and general damages.
[2] The Deputy Judge President ordered
on 13 May 2014 that the merits and quantum in this matter are
separated, and that the merits
of the claim are settled 70% in the
plaintiff’s favour. The order also provided that the defendant
furnish the plaintiff
with an undertaking for the costs of expenses
arising from her injuries and their sequelae in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56, 1996
. The question of
general damages was referred to the Health Professions Council of
South Africa for determination, and had not,
at the time of hearing,
been determined yet. The only issue to be determined at this stage
is, therefore, the plaintiff’s
claim for future loss of
earnings.
[3] The plaintiff’s counsel, Ms
Docrat, indicated at the outset that there was a matter of an
outstanding medical expense
which had not been paid, an amount of
R1680. Ms Strydom, for the defendant, submitted in argument that the
evidence regarding that
expense is before the court, and the
defendant is not disputing the evidence. I was invited to deal with
that issue as I saw fit.
[4] The relevant facts are set out
below.
[5] The plaintiff was born in July
1987. She was therefore almost 22 years old when the collision giving
rise to this claim occurred,
and is now 28 years old. The plaintiff
was unemployed at the time of the collision, having completed a
diploma in logistics at
the end of 2007, and having started to look
for work at the beginning of 2009.
[6] The plaintiff was crossing the road
at a pedestrian crossing when she was hit by a car. She was injured
on her spine and right
shoulder, she was cut on her forehead, and
broke her tooth. She remained in hospital for three days and after
her discharge she
took tablets for three weeks. Her hand and shoulder
were “tied” for a month.
[7] Her broken tooth was not treated at
hospital, she got it attended to later, and it cost R1800, which her
mother’s medical
aid paid part of. She borrowed the rest of the
money from her mother. The plaintiff has initially said she did not
have to pay
her mother back, but in later said she did have to do so.
[8] She has not had her scar attended
to because she would have to take time off work to attend treatment.
[9] The plaintiff obtained employment
in 2010, as an intern in “supply chain” at the Department
of Agriculture. Her
responsibilities included preparing spreadsheets
for tender committees, printing orders, asset verification, asset
barcoding and
transport management. She moved from being an intern to
being an accounting clerk, within a year, but was doing the same job.
She
enjoyed the job but her injuries affected her ability to do the
job, as she needed to lift items for verifying barcodes.
[10] The plaintiff testified that right
hand (her dominant hand) is weak and her spine gets tired. Her right
hand does not lift
properly and her back hurts if she sits or stands
for a long time. She has to stretch or move about after an hour.
[11] Despite the difficulties she
experienced, the plaintiff only left her job at the Department of
Agriculture when she got a new
job at the Department of Correctional
Services in October 2011. Her problems with her back and arm
influenced her to take this
new job, because it was difficult for her
to lift things. Her job with Correctional Services entailed dealing
with payments: receiving
invoices from suppliers, capturing on the
system and pre-authoriseng payments.
[12] The plaintiff stayed at
Correctional Services for two and a half years. She applied for and
received a promotion to the Department
of International Relations and
Co-operation. She testified that this is a different job, and it
entails capturing suppliers on
a database on a daily basis. She sits
for 8 hours a day, although with a lunch break and comfort breaks.
The plaintiff’s
previous supervisor at Correctional Services
was aware of her injuries and pain, but not her current supervisor.
[13] While she was at Correctional
Services, the plaintiff worked “like the others”. She
also applied for other promotions
after her move to International
Relations, for a supervisor post, but was unsuccessful. The post went
to someone who had been at
International Relations for 8 months, when
the plaintiff at the time had been there for 6 months.
[14] The plaintiff testified that she
feels the accident is limiting her. She would like to get another
post, but she would have
to do more work, and it will not be easy for
her as she is a sickly person. She wanted to be at a managerial
position in 5 years,
and was willing to work hard, but she has now
changed her expectations. She cannot achieve what she initially
wanted because of
her “illness”.
[15] The plaintiff stated that she is
willing to work on her own initiative, but would not work late
without pay. She also stated,
in contradiction, that she was prepared
to work long hours but cannot manage it.
[16] The pain the plaintiff experiences
brings her down mentally and affects her work, about twice a week,
and her supervisor sometimes
complains because she makes mistakes, so
her supervisor says the plaintiff doesn’t concentrate (however,
the industrial psychologist
who testified on the plaintiff’s
behalf spoke to the supervisor, who said that she had never really
noticed the plaintiff’s
difficulties or mistakes). The manager
tries to support her, telling her not to concentrate on her pain. Her
co-workers are not
really supportive and think the manager is
favouring her. The plaintiff stated that if she gets a supervisor who
is not supportive
she will make mistakes and no one will help her,
and she may be fired.
[17] Whether she sits or stands, the
plaintiff experiences pain after an hour, and has to do something to
relieve the pain, whether
it is stand up, stretch, go for a walk or
otherwise move about. She stated that she would need to walk a
distance that the parties
agreed was about 50m to relieve the pain.
However, she also said that simply moving from sitting to standing
while she testified
was suffiicient for her to “stretch”.
[18] The plaintiff did go to a
physiotherapist at a public hospital, which didn’t cost her
anything, but it didn’t help
and she stopped after three weeks
because the physiotherapist said she was fine.
[19] Since then she has not sought
treatment, save for going to a pharmacy to ask for medication last
year, which she did not buy
because it was too expensive. She did not
go to a doctor for a prescription, also because it was expensive.
This is despite the
undertaking that has been furnished by the
defendant, and the fact that she has medical aid. However, she
testified that she did
try to find another physiotherapist, even
though she found physiotherapy did not help her, but was unable to
find one that would
see her on a Saturday, and she did not want to
take time off work.
[20] The pain is there all the time,
and stays the same, it has not got worse. However her concentration
problem is getting worse.
The plaintiff is not aware of pain when she
is asleep. She is unable to walk long distances or do washing because
of the pain.
[21] The plaintiff testified that the
pain has caused her to change what she wanted to do in her life. She
is a sporty person and
wanted to pursue a career in netball but
cannot do that anymore. At work, she does not see her future in the
same way as before.
She thinks she will now retire earlier than 65
years of age. She would not be able to be a manager because that
would require her
to attend long meetings which she can’t do
because she can’t sit for a long time. The plaintiff intends to
remain where
she is, because another job will be difficult because of
her pain.
[22] It is clear that the plaintiff’s
life has been negatively affected by the injuries she has suffered,
and that her career
choices impacted. However, the issue is not
whether the plaintiff is able to do the kind of job she initially
wanted to do, or
whether her life is more difficult, as general
damages are not before me. The only thing before me is whether the
plaintiff can
show loss of earnings as a result of the injuries she
suffered in the accident.
[23] The plaintiff called Ms Ngoako, an
industrial psychologist, to give expert evidence on this issue. Her
evidence regarding the
earning potential the plaintiff would have had
before the accident was based on the Paterson scale. The plaintiff
would have entered
the labour market at Paterson level A2 or A3,
within 12 to 18 months after she obtained her diploma. She would have
progressed
to a B4 or B5 salary scale within a five year period, and
would have progressed at three to five year intervals to reach a
career
ceiling at a C3 or C4 salary scale.
[24] Ms Ngoako testified that the
plaintiff’s needs for accommodation would result in her being
less competitive, and her
need to take breaks and seek medical
treatment, as well as her pain, would make her less productive. The
plaintiff would be even
less competitive in a corporate environment.
Althought she would still progress to the same career ceiling, her
progression would
be slower.
[25] Ms Ngoako acknowledged that the
plaintiff had already reached a C1 salary scale. She expressed
surprise the the plaintiff’s
job was characterised as being at
that level, but the question whether the plaintiff’s employer
is paying too much or too
little for specific jobs is not before
me.The fact is that, at the age of 28, the plaintiff has progressed
to just two Paterson
levels below her career ceiling, which she is
expected to reach at the age of 45. She has actually progressed
faster that it was
envisaged she would do had she not suffered the
injuries she has.
[26] Ms Ngoako had no information about
whether the plaintiff would be more easily accommodated in a public
service environment
than in a corporate environment. Even as far as a
corporate environment is concerned, she was unable to say that the
plaintiff’s
requirements would definitely have a negative
effect in the workplace, saying that it depended on the people that
were involved.
[27] The plaintiff gave no evidence
about whether she wanted to move out of the public service. She did
say she wished to attend
“corporate meetings”, but from
her description what she understood this to be, this could equally be
management meetings
within the public service.
[28] Although the plaintiff had been
denied one promotion, which went to a senior colleague, she has
obtained employment within
the public service at an expected level,
and has been promoted twice, exceeding her expected progression.
[29] I was referred to a number of
judgments by counsel in argument, but the most determinative in
setting out the principles regarding
income earning capacity and loss
of earnings appears to be the unreported judgment of Bizos AJ in the
matter of Deysel v RAF, case
number 2483/09 (24 June 2011), in which
the relevant judgments preceding that one are summarised.
[30] According to Bizos AJ in Deysel,
if the plaintiff shows loss of earning capacity as a result of a
change in “employment
situation”, which in turn resulted
from the sequelae of the accident, she would then be entitled to
succeed in her claim.
[31] Although loss of future earnings
is, by necessity, somewhat speculative in its nature, in this
particular case, I find that
the speculation which leads to a
conclusion that the plaintiff has lost earning capacity and will
suffer loss of earnings is not
based on a sound foundation. The facts
which emerge from the evidence adduced on the plaintiff’s
behalf themselves contradict
the assertion that she has, and will,
suffer loss of earnings.
[32] The plaintiff has already
progressed faster than she was expected to, and there is no evidence
that her progression will now
slow to the extent that her predicted
progression will not be realised.
[33] For these reasons, I find that the
plaintiff has not proved loss of earnings, and is not entitled to
succeed in her claim for
loss of earnings.
[34] As far as the plaintiff’s
past medical expenses are concerned, the plaintiff has proved those
expenses and is entitled
to them.
[35] I was also asked to determine the
question of the costs of the reports of the plastic surgeon and
maxillo-facial surgeon. These
reports do not deal with the injuries
suffered by the plaintiff which affect her at work. They are
therefore not relevant ot the
enquiry before me.
[36] Ms Docrat, for the plaintiff,
contended that this hearing is to determine everything that remains
for determination in this
case, excluding general damages.
[37] I find this argument without
merit. If the plaintiff is found to have a claim for general damages,
these reports should be
dealt with together with that claim.
[38] It is a pity that this matter was
set down before the plaintiff’s entitlement to a claim for
general damages has been
determined by the Health Professions Council
of South Africa. This means that the plaintiff’s claim is dealt
with piecemeal,
which is both undesirable and unfortunate. However,
it is this court’s duty to deal with the matter that is before
it, and
no more.
[39] For the reasons above, I make the
following order:
1. The plaintiff’s claim for loss
of income is dismissed with costs.
2. The defendant is to pay to the
plaintiff 70% of the plaintiff’s past medical expenses of
R1680, within 14 days of this
judgment.
S YACOOB
Acting Judge of the South Gauteng
High Court, Johannesburg
APPEARANCES
PLAINTIFF: FF DOCRAT
Instructed by Noko Attorneys
DEFENDANT: I STRYDOM
Instructed by Kunene Rampala Botha
DATE OF HEARING: 14, 15& 22 May
2015
DATE OF JUDGMENT: 24 August 2015