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South Africa: South Gauteng High Court, Johannesburg
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[2017] ZAGPJHC 123
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J v Road Accident Fund (1639/2016) [2017] ZAGPJHC 123 (2 May 2017)
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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
DIVISION, PRETORIA
CASE
NO: 1639/2016
2/5/2017
Reportable:
No
Of
interest to other judges: No
In
the matter between:
J
T
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
KUBUSHI,
J
INTRODUCTION
[1]
The plaintiff instituted action against the defendant for damages in
respect of bodily injuries she sustained in a motor vehicle
collision
on 29 November 2014.
[2]
At the hearing of the case I was informed that the merits part of the
claim has been settled and that the defendant accepted
full liability
for the damages sustained by the plaintiff and undertook to provide
the plaintiff with a certificate in terms of
section 17
(4)
(a)
of
the
Road Accident Fund Act, 56 of 1996
, as amended, in respect of
future medical costs.
[3]
What remains in issue is the damages part of the claim in respect of
general damages and future loss of income. The general
damages are to
be postponed
sine die
as
per
agreement between the
parties. I only have to decide the quantum for loss of future income.
[4]
The defendant has not filed any quantum experts' reports. The parties
are agreed that no evidence will be led and that arguments
will be
based on the plaintiff's quantum experts' reports. The plaintiff's
experts' reports are contained in the 'Index to Plaintiff's
Expert
Bundle' which was handed in court, by consent, as Bundle "A".
[5]
Bundle "A" consists of the following experts' reports:
5.1 Medico-Legal report of the
orthopaedic surgeon;
5.2 Medico-Legal report of the
occupational therapist;
5.3 Clinical-psychological report of
the clinical psychologist;
5.4 Medico-Legal report of the
neurosurgeon;
5.5 Psycho-Legal report of the
industrial psychologist; and
5.6 Addendum to the medico-legal
report of the orthopaedic surgeon.
[6]
The crux is whether the plaintiff is entitled to damages for loss of
future income, and if so, what contingencies should be
applied, if
any.
LOSS
OF FUTURE INCOME
[7]
The plaintiff is an attorney by profession. She was involved in a
motor vehicle accident on 29 November 2014. She is presently
29 years
old. At the time of the accident she was 27 years old. She commenced
her career at Meintjies-Smit Inc in 2010 as a candidate
attorney. She
worked in this capacity for two years and was retrenched when the
company closed down. She was earning a salary of
R18 000
per
month. Next, she was self-employed as an attorney for a period of
one year and earned an estimated income of R20 000
per
month.
On 7 January 2013 she commenced employment as an attorney, notary and
conveyancer at FSF Attorneys Inc. She was employed
as a senior
associate and earned a salary of R30 000
per
month with no
added benefits. At the time of the accident she was employed with FSF
Attorneys. Post-accident she did not take any
sick leave and
continued in her pre-morbid job until end of August 2016 when she
resigned. No past loss of income was incurred
as a result. The
experts accepted that she would have in any event resigned from FSF
Attorneys but for the accident. She became
self-employed again
working as a cost consultant. She entered into a retainer agreement
with WB-lnc Attorneys earning R37 000
per
month. She further
ventured into legal/litigation work as well as conveyancing work
which arise from time to time. The experts are
agreed that but for
the accident the plaintiff's career would have not necessarily
developed any differently.
[8]
As a result of the accident, the plaintiff sustained a whiplash neck
injury and soft tissue injury to her back. The orthopaedic
surgeon
first assessed her on 14 March 2016 and later again on 31 January
2017. The MRI scan to the back revealed the degeneration
of the discs
at L1/2, L4/5 and LS/SI. The finding of both the orthopaedic surgeon
and the neurosurgeon was that the degeneration
will get worse in time
and that the plaintiff would require lumbar back surgery and surgery
to the neck in 10 to 20 years. The
experts opined that due to the
extent of the injuries the plaintiff will have to go on early
retirement. Initially the prognosis
was that she would retire 3 to 5
years earlier but after the second assessment of 31 January 2017 the
orthopaedic surgeon confirmed
that she will have to retire 5 years
earlier.
[9]
The experts are agreed that the plaintiff has been compromised by the
injuries she sustained in the accident. The orthopaedic
surgeon found
that as a result of the injuries, the plaintiff showed adequate
capacity for low range of medium physical work with
adequate
tolerance to sitting, standing and mobility in an occupational
sitting. This according to the expert would result in her
going on
retirement 5 years early.
[10]
The parties are in agreement that the plaintiff is entitled to be
compensated for loss of future earnings due to the fact that
she will
have to go on early retirement. The parties are, however, not agreed
as to when she will go on retirement. The plaintiff
s contention
based on the evidence of the orthopaedic surgeon is that she will go
on retirement 5 year earlier. The defendant's
submission is that the
plaintiff will go on retirement 3 years early because she was not
seriously injured. According to the defendant,
the plaintiff was
injured over the weekend and was able to go back to work immediately
thereafter.
[11]
I am not inclined to accept the submission by the defendant that the
plaintiff will go on retirement 3 years earlier. This
submission is
unfounded. I am more prepared to accept the substantiated evidence
before me provided by expert witnesses which show
that the plaintiff
will retire 5 years early. The orthopaedic surgeon had initially
indicated that the plaintiff will retire 3
to 5 years early but had
to revise that time after assessing the plaintiff again. The new
assessment indicates that the injuries
have caused further
degeneration of the L112, L4/5 and L5/SI.
[12]
The defendant's further submission that the plaintiffs injuries are
not serious is also unsubstantiated. The experts confirm
that she was
seriously injured. Besides the orthopaedic surgeon, the industrial
psychologist also concludes in her report that
the plaintiff has been
compromised by the injuries sustained and that her condition is
likely not going to improve much. The neurosurgeon's
opinion is that
the plaintiff sustained serious soft tissue lumbar back injury that
will require surgery going forward.
[13]
I am as such inclined to accept that the plaintiff will retire 5
years early.
CONTIGENCY
CALCULATIONS:
[14]
The plaintiff relies on the contingencies used in the actuarial
report contained in Bundle "A". The actuary has made
the
following deductions: 15% to the pre morbid future earnings and
25% to the post-morbid future earnings.
[15]
The defendant's submission is that a higher contingency should be
applied because the plaintiff had a hip replacement at the
age of 4
years and suggest a contingency deduction of 20% pre-morbid. I do not
agree. It is evident from the reports of the various
experts that the
hip replacement was not taken into account when assessing the
plaintiff for the current claim. It is also evident
from the injuries
sustained by the plaintiff, namely the neck and the back, that there
is no nexus between these injuries and the
previous injury of the hip
replacement.
[16]
As is trite, contingencies are within the discretion of the court.
The deduction of 15% pre-morbid is normal and to me reasonable
in the
circumstances of this case. As such the plaintiff should be awarded
an amount of R2 486 319 for loss of future income.
ORDER
[17]
I make the following order
17.1 The Defendant is:
17.1.1.
declared liable to pay 100% of the damages sustained by the
Plaintiff, which forms the subject matter of this action;
17.1.2.
ordered to pay the sum of R2 486 319 (Two Million Four Hundred and
Eighty Six Thousand Three Hundred and Nineteen Rand)
being for
damages for loss of future earnings with interest on the above sum at
the rate of 9%
per annum
calculated from the date of this
order; and
17.1.3.
furnish an undertaking as envisaged in
section 17(4)(a)
of the
Road
Accident Fund Act, No. 56 of 1996
, as amended, to the effect that the
defendant shall compensate the plaintiff in respect of 100% of the
costs of future accommodation
of the plaintiff in a hospital or
nursing home, treatment of the plaintiff, rendering of a service to
the plaintiff and supplying
of goods to the plaintiff, after such
costs have been incurred and on proof thereof arising from injuries
sustained by her, which
forms the subject matter of this action.
17.2 The damages claim for general
damages is postponed
sine die;
and;
17.3 Costs are reserved.
_________________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD
ON THE
: 24 APRIL 2017
DATE
OF JUDGMENT
: 2 May 2017
PLAINTIFF'S
COUNSEL
: ADV. L. COETZEE
PLAINTIFF'S
ATTORNEYS : SURITA
MARAIS ATTORNEYS
DEFENDANTS'
COUNSEL :ADV. B.T.
MOELETSI
DEFENDANTS'
ATTORNEY : BRIAN RAMABOA INC.