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[2015] ZAGPJHC 329
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B v Road Accident Fund (01163/2015) [2015] ZAGPJHC 329 (30 November 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
01163/2015
Reportable: No
Of interest to other judges: No
Revised.
In the matter
between:
B
S
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MAHALELO,
AJ
:
INTRODUCTION
[1] The plaintiff is a 30 year old
lady. She instituted an action for damages against the defendant
arising from bodily injuries
she sustained in a motor vehicle
collision where she was a passenger on 8 February 2006. The defendant
has conceded liability for
100% of such damages that the plaintiff
proves.
[2] The parties have agreed that the
plaintiff is entitled to general damages for pain and suffering in
the amount of R600 000,00.
The remaining issue in dispute concerns
the plaintiff’s past and future loss of earnings/earning
capacity and the contingencies
to be applied.
[3] The plaintiff’s case on loss
of earnings or earning capacity was that her injuries are such that
she could not remain
in her employment up to the ordinary retirement
age of 65 and that in all probability she stands to lose her
employment in the
near future.
THE
COMMON CAUSE FACTS
[4] The plaintiff’s highest
level of education is matric. Her work history included working
as an administrative assistant
at a bakery for a year and a manager
at Something Fishy for about two years. Prior to the accident she was
unemployed , however
she had applied for a receptionist position at
Seal Cool. She had attended an interview and was awaiting the outcome
when the accident
occurred. After the accident she was employed by
Atlantic Component for about three months in July 2006 and thereafter
by Kids
World for about eight months. She also worked at an old
age home for eight months. In 2010 she was employed by
Vereeniging
Meat Packers as a receptionist. She has been so
employed until the present time.
[5] The parties have agreed that the
plaintiff sustained the following injuries as a result of the
accident:
5.1
Brain injury;
5.2
Compound fracture of the
right humerous;
5.3
Fracture of the right
radius and ulna;
5.4
Fracture of the pubic
rami;
5.5
Radial nerve palsy;
5.6
Scarring of the back,
right arm and abdomen.
[6] They further agreed that as a
result of the injuries the plaintiff suffers from:
6.1
Occasional headaches;
6.2
Right wrist drop;
6.3
Poor self-esteem;
6.4
Neurogenic bladder
secondary to head injury;
6.5
Poor memory;
6.6
Concentration
difficulties;
6.7
Irritability and anger;
6.8
Fatigues easily;
6.9
Depression;
6.10
Diminished comprehension
of task instruction;
6.11
Severely diminished
complex mental tracking;
6.12
Very poor visual analysis
and planning;
6.13
Poor recognition of errors
especially in the visual modalities;
6.14
Confabulatory inclusions;
6.15
Very poor visual memory,
in both immediate and delayed time scales;
6.16
Post-traumatic stress
disorder;
6.17
Moderate communication
difficulties.
[7] The parties furthermore agreed
that but for the accident the plaintiff would have been employed in
the same position she was,
earning a salary of R4 500,00 per month
and would have progressed to Paterson B3/4-median level
reaching her career ceiling
at around 45 years, with inflationary
increases from there until retirement age of 65. Having regard
to the accident, the
injuries she sustained and the
sequelae
thereof as well as her track record and work ethics at her current
employer, the parties are agreed that the situation is not in
her
favour.
[8] The following medico-legal reports
of the plaintiff were admitted into the record as evidence:
8.1
Dr Shevel, the
Psychiatrist;
8.2
Dr Miller, the
Neurosurgeon;
8.3
Dr Bruce White, the
Plastic and Reconstructive Surgeon;
8.4
Dr Van Heerden, the
Neurologist;
8.5
Mr Reynolds, the Clinical
Psychologist;
8.6
Ms Ida Marie Hattingh, the
Speech Language Pathologist and Audiologist;
8.7
Dr Giampaolo, the
Neurologist.
[9] The following witnesses testified
in support of the plaintiff’ case: Ms Jonck, Senior
Payroll Manager at the plaintiff’s
current employment, Zander
Booysen, the plaintiff’s brother and Ms Vermaak, the Industrial
Psychologist. Their evidence
was not largely challenged.
The defendant called one expert witness, Ms MacGoldrick who is an
Industrial Psychologist.
[10] The joint minutes of the
Orthopaedic Surgeons, Occupational Therapists and Industrial
Psychologists were admitted into the
record as evidence.
[11] The injuries sustained by the
plaintiff in the accident are common cause. The physical
injuries have all healed.
What remains to be considered is the
physical and psychological
sequelae
of her injuries. In
his uncontested report Dr Miller, the neurosurgeon, noted that the
plaintiff sustained a significant
head injury. According to him
the head and resultant brain injury has resulted in moderate
cognitive and neuropsychological
changes. Further, the
plaintiff appears to have sustained a complete damage to the radial
nerves rendering her fingers, wrist
and hand functionless. She
also sustained ulnar nerve damage.
[12] Dr Reynolds, the Clinical
Psychologist, opined that the plaintiff manifests behavioural
excesses and neurocognitive impairments.
According to Dr
Shevel, the Psychiatrist, the plaintiff presents with psychological
difficulties.
[13] The crucial issue in quantifying
the plaintiff’s damages for loss of income is to consider the
effects of her physical
as well as psychological deficits on her
employability and therefore earning capacity.
[14] The plaintiff’s
pre-accident work history has been described in the joint minute of
the Occupational Therapists.
She worked in an administrative
capacity for a bakery and for Something Fishy as a manager.
Prior to the accident she was
job seeking. She had applied for a
position as a receptionist and was awaiting the results of an
interview she had attended.
[15] Post-accident the plaintiff was
employed in different capacities by at least three companies.
She was employed as a receptionist
by her current employer since
2010. She has been so employed until the present time.
After the accident she was admitted
in hospital for about four
months. Her capabilities dwindled after the accident, resulting from
her neuropsychological profile.
She could no longer cope with
the demands of her employment. According to Ms Jonck the
plaintiff often becomes emotional
and irritable, cannot effectively
perform her responsibilities without making mistakes, is not a neat
worker, cannot perform basic
administrative duties without support or
supervision, and is forgetful. Ms Jonck testified that the
plaintiff received various
warnings in the past and has recently been
served with a final written warning for failure to follow standard
work procedure.
Her poor work performance has resulted in some
financial loss to her employer. Dr Reynolds was of the opinion
that the plaintiff’s
behavioural excesses and neurocognitive
impairments directly diminish her ability to gain and maintain
employment. While
it would appear that her current employer is
sympathetic to her circumstances, it is clear that tolerance for her
impairments is
not assured and if she gets an alternative employment
it will mostly be in a sympathetic environment. Dr Reynolds was
of
the further view that it is improbable that the plaintiff will be
able to successfully undergo the requisite training to allow her
to
enter the labour market in an alternative career or vocation.
[16] A contentious issue arising
concerns the fact whether the plaintiff is likely to be dismissed
from her employment due to the
various warnings she previously
received which led to a final written warning and a disciplinary
hearing which was to be held against
her. According to Ms Jonck and
Ms Vermaak, the probability exists that the plaintiff would be
dismissed at the disciplinary hearing
when regard is had to her poor
work performance and her track record. Ms Vermaak testified
that should the plaintiff be dismissed
from her current employment
she will be without employment in the open labour market.
Regarding the plaintiff’s ability
to obtain new employment she
opined that because the plaintiff will have to go out in the labour
market and compete with people
who are not in the same position as
hers, taking into account her history with her current employer, her
chances of obtaining later
or future employment are not rosy.
She postulates that the plaintiff will find herself unemployed or
without employment in
the next five years. This is because the
plaintiff is in a sympathetic employment and she is being
accommodated only for
a period of time as she is not contributing to
the bottom line of the company.
[17] From the evidence at hand it is
quite apparent that the plaintiff’s future tenure in her
present employment is precarious.
The plaintiff reported to the
experts during assessments that she is unable to cope in her present
work environment.
[18] As regards the plaintiff’s
employability now that the accident has occurred Ms Vermaak was of
the opinion that the plaintiff
would, as a receptionist, likely be
remunerated at the B3/4 Paterson grading until she reached her
ceiling level around the age
of 45. The plaintiff is currently
receiving a basic salary of R5 200,00 per month and her income is
documented as R56 880,00
per annum on the employee income tax
certificate for the period March 2014 until 28 February 2015.
[19] This brings me to the evidence of
Ms MacGoldrick, the defendant’s Industrial Psychologist.
She disagreed with the
views expressed by Ms Vermaak. She was
of the view that the plaintiff would likely be remunerated at B3/1
basic scale until
she reached her ceiling level at the retirement age
of 65. According to her there is certainty regarding the
stability of
the plaintiff’s employment while she is still
employed because nothing concrete has come up regarding termination
of her
employment. Ms MacGoldrick was of the view that
the plaintiff is re-employable in the open labour market. I am
inclined to accept the evidence of Ms Vermaak in preference to that
of Ms MacGoldrick, as it is in all respects in accordance with
the
evidence and the views expressed by other experts. Ms
MacGoldrick conceded that she had not considered other expert
reports. This is so despite the plaintiff’s expert
reports having been furnished to the defendant long before trial.
[20] The actuarial reports were handed
in by agreement. Only the basis upon which the calculations were made
in both reports was
placed in dispute. Counsel for the
defendant submitted that the plaintiff’s actuarial report
should not be accepted
as it is not based on the joint minute of Ms
Vermaak and Ms MacGoldrick. I accept the basis of the
plaintiff’s actuarial
calculations. From the evidence at
hand it is clear that at the time of compiling her report Ms Vermaak
had considered all
the relevant expert reports and medical reports
whereas Ms MacGoldrick had not.
[21] In respect of the plaintiff’s
uninjured earnings the actuary accepted that she was unemployed at
the time of the accident.
She was between jobs. Were it
not for the accident she would have been able to secure a similar
position to the one she held
prior to the accident. Her salary
in the position she held pre-accident was R4 500,00 per month (in
2006), which would have
increased in line with inflationary rates to
R54 000,00 per annum. As for the injured earnings the actuary
accepted that
the plaintiff is presently earning R5 200,00 per month
which would have increased in line with inflationary rates to R62
400,00
per annum. Having accounted for certain assumptions the
final figures he arrived at are R3 422 083,00 (but for the accident)
and R293 747,00 ( having regard to the accident) resulting in a gross
loss of R3 128 291,00.
[22] Turning to the question of
contingency allowances to be made in respect of both scenarios, both
parties have agreed that a
5% contingency deduction for the past loss
uninjured income and 15% contingency deduction for the past loss
injured income should
be made. Having had due regard to the
authorities, the applicable principles and in particular the facts
peculiar to the
case I accept the proposal as it is reasonable in the
circumstances.
[23] On the future loss of earnings or
earning capacity I have taken into account the usual factors to be
taken into consideration.
The following factors peculiar to the case
have also been considered: the fact that the plaintiff’s
employer although
aware of her condition has kept her on and
increased her salary at least once in five years time, the fact that
the plaintiff has
no formal qualifications, limited prospects of
finding employment, the plaintiff had a pre-existing hip condition
and the possibility
of early retirement. In assessing all these
factors a contingency deduction of 20% is deemed appropriate.
Accepting the plaintiff’s
calculations, the plaintiff’s
total claim for loss of earning capacity/loss of income is an amount
of R2 502 632, 80 plus
R262 916,00.
[24] In the result I grant judgment in
favour of the plaintiff as follows:
1.
Payment of the amount of
R2 765 548, 80 in respect of the plaintiff’s loss of earning
capacity/loss of income.
2.
Payment of the amount of
R600 000, 00 in respect of general damages.
3.
The
capital amount is payable by means of direct fund transfer within 14
(fourteen) days from date hereof into the trust bank account
of the
plaintiff’s attorneys; YVONNE KRUGER INC TRUST ACCOUNT, RMB
PRIVATE BANK trust account, Sandton Branch code: 261 251,
Account
number: [...], reference B15/KS/MVA, and which amount shall be
retained in an interest- bearing account in terms of Section
78(2)A
of the Attorneys Act, for the benefit of the patient, pending the
creation of the trust referred to in paragraph 4 infra
and the
issuing of letters of authority.
4.
The
plaintiff’s attorneys are ordered therefore:
4.1
To
cause a trust( herein after referred to as ‘the Trust’)
to be established in accordance with the provisions of the
Trust
Property Control Act 57 of 1988, within a period of two (2) months
from the date of this order to administer the estate of
the patient;
and
4.2
To
pay the full amount invested in such trust account, including the
accrued interest, to the trust within one (1) week of the
establishment thereof and the opening by the trustees of a bank
account.
5.
The
trust instrument contemplated in paragraph 4.1 above shall make
provision for the following:
5.1
That
the patient is the sole beneficiary of the trust;
5.2
That
the first trustee(s) shall be Constant Wilsnach of Pretorius &
Wilsnach ( herein after referred to as “Wilsnach”)
or
failing him, such other employees of Wilsnach as they may
nominate;
5.3
That
the trustee(s) is to provide security to the satisfaction of the
master;
5.4
That
the ownership of the trust property vests in the trustee(s) of the
trust in their capacity as trustees;
5.5
Procedures
to resolve any potential disputes, subject to the review of any
decision made in accordance therewith by this Court;
5.6
That
the amendment of the trust instrument be subject to the leave of
this Court;
5.7
The
termination of the trust upon the death of the patient, in which
event the trust assets shall pass to the estate of the patient;
and
5.8
That
the trust property and the administration thereof be subject to an
annual audit.
6.
In
the event of the trust not being created within two months from date
of this order, the plaintiff and her attorneys are directed
to
approach this court within one month after the expiry of the first
period of two months, to obtain further directions with regard
to the
manner in which the capital amount should be further administered on
behalf of the patient.
7.
The
defendant shall pay interest on the amounts at the rate of 9% per
annum 30(thirty) days from date of judgement to date of final
payment.
8.
The
defendant shall furnish plaintiff with an unlimited undertaking
in terms of section 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 services to her or supplying of goods to her arising out of the
injuries sustained by her in the motor vehicle
collision on 8
th
February 2006 after such costs have been incurred and upon proof
thereof;
9.
The
defendant shall pay the plaintiff’s costs on the High court
scale either taxed or agreed, to date hereof, such costs to
include
qualifying
and or reservation fees, attendance fees and preparation of joint
minutes as well as addendums if any of the following
experts:
9.1.1
Dr.
Volkersz
9.1.2
Dr.
P Wilson Sunninghill.
9.1.3
Dr.
Miller.
9.1.4
Dr.
Shevel.
9.1.5
Dr.
B White..
9.1.6
Mr
Trevor Reyolds .
9.1.7
Ms
Suzette Murcott.
9.1.8
Ms
T Vermaak.
9.1.9
Ms
Izak Van Heererden.
9.1.10
Ms
Ida Marie Hattingh.
9.1.11
Dr.
D Giampaolo.
9.1.12
Arch
actuarial consulting (Actuary)
9.2
Cost
of Senior- Junior counsel;
10
Subject
to the following conditions:
10.1 The plaintiff shall, in the event
that costs are not agreed, serve the notice of taxation on the
defendant’s attorney
of record; and
10.2 The plaintiff shall allow the
defendant 7 ( seven) court days to make payment of the taxed costs.
_________________________________________________
B
MAHALELO
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARENCES
COUNSEL FOR THE PLAINTIFF :
ADV DJ COMBRINK
COUNSEL FOR THE DEFENDANT:
ADV S MPAKANE
DATE OF HEARING: 1 SEPTEMBER
2015
DATE OF JUDGMENT: 30 NOVEMBER 2015