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[2010] ZAGPJHC 166
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Ferreira v Road Accident Fund (29295/08) [2010] ZAGPJHC 166 (23 September 2010)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
29295/08
DATE:
23/09/2010
In
the matter between:
D
K
FERREIRA
.......................................................................................
Plaintiff
and
THE
ROAD ACCIDENT
FUND
..........................................................
Defendant
J U D G M E N T
MEYER, J
:
[1] The plaintiff, who is 60
years of age at present, claims the payment of compensation for his
damages as a result of bodily
injuries sustained by him due to a
collision that occurred on 18 February 2006. An unidentified four
wheel motorcycle (quad bike)
collided with the plaintiff in the
parking terrain of the Stonehaven-on-Vaal Restaurant where he was on
duty as a car guard.
[2] The issue of liability has
been settled. The plaintiff will be entitled to 100% of his proven
or agreed damages. The parties
also reached agreement in respect of
most matters relating to the quantum of damages. It was agreed that
the defendant is to pay
to the plaintiff the amount of R170,000.00 in
respect of his general damages and to also provide him with an
undertaking in terms
of
s 17(4)(a)
of the
Road Accident Fund Act 56
of 1996
to pay for his future medical treatment in respect of the
injuries sustained by him in the collision. Only the plaintiff’s
claims for his past loss of earnings and for his future loss of
earnings or reduced earning capacity remain in issue.
[3] The plaintiff testified.
Each party called an occupational therapist – Ms E Kruger for
the plaintiff (exhibit A.15-70)
and Ms I H Shibambo for the defendant
(exhibit A.71-83), and an industrial psychologist – Dr A C
Strydom for the plaintiff
(exhibit A.86-110) and Ms C du Toit for
the defendant (exhibit A.111-117c). Each expert witness prepared a
medico-legal report
following their assessments of the plaintiff. He
was also assessed by orthopaedic surgeons – Dr D Heyns for the
plaintiff
and Prof A Schepers for the defendant. They were not
called as witnesses, but the parties agreed that the minutes of their
pre-trial
meeting (exhibit A.56-57) be received in evidence. Joint
minutes were also prepared and referred to by the occupational
therapists
(exhibit A.84-85) and by the industrial psychologists
(exhibit A.118-119).
[4] The plaintiff was born on 12
January 1950. At secondary school he obtained the equivalent of a
Grade 10 certificate in 1968.
He was employed by Iscor from 1974
until 1994. He obtained a tertiary technical qualification and he
inter alia
worked for Iscor in the capacities of millwright and electrician.
The plaintiff was declared medically unfit for employment at
Iscor
during 1994, and has since then been receiving a disability pension
from the Iscor and now Mittal Steel South Africa Pension
Fund. About
ten months after his discharge from Iscor, the plaintiff took up
employment as a general assistant and domestic servant
for six
months, a teacher’s assistant for four years, and he has been
working as a car guard since 2002 in order to supplement
his
disability pension. On 16 January 2004, the plaintiff successfully
completed the Grade E security officer course (exhibit
A.159) and on
31 October 2007, the Grade D one (exhibit A.155). He is registered
as a security service provider as contemplated
in s 21 of the Private
Security Industry Regulation Act 56 of 2001.
[5] The plaintiff performed
duties as a car guard for Ronêl Security from 2002 until the
collision on 18 February 2006
at the parking terrain of the
Stonehaven-on-Vaal Restaurant evenings from 06:00 pm until the last
vehicle left the premises; for
Fleischmann Security from May 2007
until June 2009 at the parking terrain of the Vaal Mall, which is a
regional shopping centre
in Vanderbijlpark, daily from 08:00 am until
the last vehicle left the premises at about 07:30 pm; and again for
Ronêl Security
from June 2009 until the evening before the
commencement of this trial at the parking terrain of the Riverside
Boulevard Complex
for patrons of The Dros Restaurant during evenings,
except Mondays and Tuesdays, from 04:30 pm until the last patron left
the premises.
The plaintiff testified that the Dros Restaurant
closed down and that Ronêl Security would place him as a car
guard at the
parking terrain of another restaurant, Villa Verdi,
which is about 2½ kilometres from his home in Vanderbijlpark.
[6] The plaintiff testified that
his duties as a car guard entail directing vehicles to parking areas,
attending at the vehicles
in order to greet the drivers and to seek
their permission to look after their vehicles, ensuring the safety of
such parked vehicles,
and attending at the vehicles when the drivers
return in order to accept any monetary value that is given to him.
It seems on
the evidence presented that the services of a car guard
in the position of the plaintiff are engaged or the car guard is
given
permission to guard cars at venues, such as restaurants and
shopping centres, by security services provider undertakings, in this
instance Ronêl Security and Fleischmann Security. The
plaintiff receives no remuneration or other financial benefit from
the security services provider undertaking. The plaintiff’s
sole source of income for his services as a car guard is in
the form
of tips or monetary donations given to him by members of the public
whose vehicles he looks after. A car guard’s
income is
affected by the location and how busy it is. This is also the
opinion of the industrial psychologist, Dr. Strydom.
The plaintiff,
in turn, is obliged to pay a fixed daily
‘sub-contractor’s
fee’
to the
security services provider in consideration for the permission to
perform the duties of a car guard at the particular venue.
He
testified that he paid Ronêl Security between R30,00 to R50,00
per day depending on the day or evening in question and
irrespective
of what he had received in tips on the particular day in question.
[7] It is common cause that the
reason why the plaintiff was declared medically unfit and why he went
on early retirement from his
employment at Iscor during 1994, is
because, following a diagnosis of cancer, he had an abdominal tumour
surgically removed. The
orthopaedic surgeons agreed that the surgery
in 1994 left the plaintiff ‘
with
a certain amount of weakness in the left leg
’
and that he ‘
is
suffering from neurofibromatosis
’.
The occupational therapists also noted in the minutes of their
pre-trial meeting that the plaintiff suffers from pre-existing
left
leg weakness following the abdominal cancer surgery which included
the removal of part of the left sciatic nerve.
[8] It is common cause that as a
result of the collision on 18 February 2006, the plaintiff sustained
a fracture of the left distal
third of the femur. He was admitted to
the Sebokeng Hospital after the collision. His fractured femur was
surgically fixed with
an internal fixation, a medullary nail. The
orthopaedic surgeons are
ad
idem
that the
plaintiff’s left femur has shortened by 2,8 centimetres during
the healing process when ‘
the
locking screw at the distal end of the femur fractured’
.
They are also
ad idem
that the intra-medullary nail is protruding into the intercondular
notch of the femur. It is common cause that there is a broken
drill
point present in the proximal area of the left femur. The plaintiff
was discharged from hospital on 24 February 2006.
[9] The orthopaedic surgeons
are
ad idem
that the plaintiff ‘
will
need removal of the internal fixation as soon as possible
’,
that he ‘
will
probably develop osteoarthritis of his left knee in another ten to
fifteen years’ time which might need a total knee
replacement
’,
that he ‘
for the
meantime will need a raised build-up shoe which will have to be
renewed twice a year for the rest of his life
’,
and that ‘
he will
benefit from conservative treatment as far as his left knee is
concerned to keep his knee mobile and strength in his muscles
in the
meantime
’. The
orthopaedic surgeons are furthermore
ad
idem
that the
plaintiff will have to be off duty for one month after the removal of
the internal fixation, apart from which his ‘
earning
capacity for the rest of his life should not be affected as a result
of the injury
’.
The knee replacement will be well past the plaintiff’s
retirement age.
[10] The plaintiff testified that
the pre-existing paralysis of his left leg requires him to be careful
where and how he walks.
He tries to avoid uneven surfaces and not to
walk too fast. He needed to take medication for pain before the
collision. Although
it was not
‘absolutely
necessary’
to
rest when he was on duty before the collision, he
‘took
a rest’
at quiet
times. The plaintiff testified that as a result of his
collision-related orthopaedic injury he currently suffers from
‘slight ache’
in the area of his left knee, which is aggravated when he stands or
walks a lot. Stiffness of his left leg occurs when he is on
his feet
for lengthy periods. The shortening of his left leg does not,
according to the plaintiff, affect his ability to walk
other than
that he walks with
‘a
slight limp.’
[11] The occupational therapists
are
ad idem
that
the plaintiff’s functional abilities were impaired by his
pre-existing nerve lesion and the
sequelae
thereof, and that they
were further impaired by his collision-related orthopaedic injury and
the
sequelae
thereof.
The former
inter alia
left him with limited
paralyses of his left leg that causes him to walk slower. The latter
left him with a shortened leg, which
causes him to walk with an
uneven gait as well as the other
sequelae
.
The occupational therapists are also
ad
idem
that the
plaintiff’s pre- and post-collision work as a car guard is
‘light to
sedentary’
.
[12] The opinions of the
occupational therapists, however, differ on the issue of whether or
not the plaintiff is likely to suffer
future loss of earnings or
earning capacity. The plaintiff’s occupational therapist, Ms
Kruger, is of the opinion that the
plaintiff is post-collision
suitable for
‘sedentary
work with occasional walking’
,
as opposed to
‘light
to sedentary’
work, and defers to the industrial psychologist for recommendation of
suitable employment. The defendant’s occupational
therapist,
Ms Shibambo, is of the opinion that the plaintiff’s physical
capacity exceeds his work demands, that the plaintiff
has the
physical capacity for occasional moderate work, but that his work
should not require extensive standing and walking. She
is of the
opinion that the plaintiff should be able to continue working as a
car guard after the recommended treatment.
[13] Ms Kruger mentioned that the
plaintiff takes very little pain relief and she conceded that he will
have less pain once the
internal fixation is removed. She expressed
the opinion that the plaintiff’s shortened leg causes him to
walk with an imbalance
of his muscle structure, which, she conceded,
will improve once he wears an adjusted shoe and has undergone further
rehabilitation.
She is nevertheless of the view that from a
functional point of view the plaintiff remains only able to perform
work of a sedentary
nature. Ms Kruger expressed the opinion in her
evidence that although the plaintiff might be coping in his position
as a car guard,
such position is not suitable for him as a result of
the collision-related orthopaedic injury and
sequelae
.
The likelihood of osteoarthritis developing, in her opinion,
increases should he remain in his present position. The accepted
consensual medical opinion of the orthopaedic surgeons, however, is
that the plaintiff ‘
will
probably develop osteoarthritis of his left knee in another ten to
fifteen years’ time
’.
The orthopaedic surgeons, I accept, were well aware of the
plaintiff’s position as a car guard, and nevertheless
agreed
that the onset of osteoarthritis of the plaintiff’s left knee
will occur in another ten to fifteen years’ time.
Ms. Kruger,
correctly in my view, conceded that the issue of osteoarthritis falls
within the expertise of orthopaedic surgeons
and that she could only
comment on what happens to patients generally.
[14] I consider the opinion of
Ms. Shibambo to be logically supported and consistent with the proven
facts and the plaintiff’s
work history before and after the
collision in question. See
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA), paras [34]-[40]. It is an
over-simplification and generalisation to say that the position of
car guard requires extensive
standing and walking. The plaintiff’s
evidence is that he did not cope as a car guard at the regional
shopping centre, because
of the long hours during the day when
extensive standing and walking was required. He, however, coped as a
security guard at the
parking areas at the restaurants where he was
working. What emerges from the plaintiff’s evidence is that
the position of
a car guard in a parking terrain of a restaurant,
such as Stonehaven-on-Vaal and The Dros Restaurant at the Riverside
Boulevard
Complex, requires less standing and walking than that of a
car guard outside the parking area of a regional shopping centre.
The
plaintiff did not work as a car guard at a shopping centre before
the collision and it is a matter of mere speculation how he would
have coped given his pre-existing limitations.
[15] The opinion of Ms Shibambo
is
inter alia
founded
on the information which the plaintiff communicated to her, which was
that he ‘
…does
not have problems at work and plans to continue working as a car
guard’
. She
also recorded the information which the plaintiff conveyed to her,
which is that when he was stationed at the Stonehaven-on-Vaal
Restaurant ‘
he
stood and walked earlier on after arrival
[of
the vehicles]
, sat most
of the time during the night and stood/walked to direct cars off the
parking occasionally
’.
It is recorded in the minutes of the pre-trial meeting of the
occupational therapists that the
‘...
plaintiff reported that he stands and walks early on upon arrival and
walks to direct cars off the car-park occasionally.’
The plaintiff’s industrial psychologist, Dr Strydom, recorded
in her medico-legal report that the plaintiff informed her
‘
…
that he is able to perform his work as a security guard. He can now
sit and rest when watching cars. He will not be able
to stand the
whole shift
’.
[16] The plaintiff testified that
he suffers from
‘slight
pain’
in his leg
when he returns home from his employment,
‘but
most of the time it is bearable.’
He did not suggest that he was unable to cope in the performance of
his duties as a car guard at the parking terrains of the restaurants
where he worked. He takes little pain relief. The plaintiff
testified that when he worked as a car guard at the Vaal Mall he
experienced a lot of pain in his injured leg. Onset of pain occurred
about an hour after he had commenced working, and increased
thereafter. I do not consider the plaintiff’s evidence in
chief that his duties as a car guard at the Stonehaven-on-Vaal
Restaurant and The Dros Restaurant required him to be predominantly
or primarily on his feet to be reliable. It is inconsistent
with his
statements to
inter
alia
his own
occupational therapist and industrial psychologist and the difference
in symptoms which he experienced when on duty as a
car guard at the
Vaal Mall, where he was predominantly on his feet, and at the parking
terrains of restaurants.
[17] The plaintiff’s
industrial psychologist, Dr Strydom, postulated that
but for
the collision
the plaintiff
‘...
would have been employed in any of his pre-morbid positions until the
normal retirement age.
The plaintiff’s claim for future loss of earnings or of
reduced earning capacity is also founded thereon that
but
for
the collision he
would have retired at age 68. Dr Strydom is of the opinion that the
plaintiff, as a self-employed person, is highly
likely to have worked
beyond the normal retirement age
but
for
the collision. Dr
Strydom accepted that the plaintiff’s employability has been
curtailed by the collision in question based
on the opinion of Ms.
Kruger that the plaintiff
‘...
will be able to work in a sedentary position with occasional
walking.’
Post-morbidly, Dr Strydom concludes as follows:
‘Mr
Ferreira is declared medically unfit for work and still receives a
pension from ISCOR. Thus his work as a Car Guard is
additional to
his pension. He does not receive a constant amount per month and his
income depends on the tips given by the clients.
Because he claims
to be able to perform in his current position, the writer is of the
opinion that he should remain in his position
for as long as he
possibly can. Should he no longer be able to perform this type of
work, he will probably suffer periods of unemployment
if not totally
unemployed given his age and limited employment opportunities. Mr
Ferreira is however willing and motivated to
work albeit with pain
and discomfort. The writer suggests an increase in his post-morbid
contingency deduction to compensate him
for the potential future loss
of income and likely earnings; loss of employability and suffering
periods of unemployment should
he lose his current position for any
reason.’
[18] The plaintiff testified that
he is able to obtain and to perform duties as a security guard of a
more sedentary nature, such
as a guard at a gate. Such position,
according to the plaintiff, is not as lucrative as that of a car
guard at a restaurant and
he therefore prefers to be the latter. It
is accepted that alternative sedentary positions that are available
in the market-place
for a person with the plaintiff’s
limitations, qualifications, and experience were not investigated and
explored by Dr Strydom,
because of the plaintiff’s stated
preference and intention to remain a car guard and his stated ability
to perform the duties
of one.
[19] The defendant’s
industrial psychologist, Ms. Du Toit, correctly, in my view, accepted
that the plaintiff was compromised
by his pre-existing condition and
also by the injuries that he sustained in the collision and the
sequelae
thereof.
But, accepting the opinions of the orthopaedic surgeons, she
expressed the opinion that the plaintiff should be able to
continue
working in a relatively similar way as before the accident. There
has, in my view, not been any acceptable evidence presented
at this
trial to conclude otherwise. The plaintiff is able to perform duties
as a car guard provided that extensive standing and
walking is not
required. I am unable to conclude that his limited employment
opportunities were any different before the collision.
The contrary
opinion of Dr Strydom is based on the opinion of Ms. Kruger, whose
opinion I am unable to accept.
[20] Ms du Toit expressed the
opinion, which is accepted by the occupational and industrial
psychologists for both parties, that
it is more probable than not
that the plaintiff, for his part, will attempt to be employed. He is
driven and committed to work.
His pain is relieved by mind over
matter. With reference to his work history it seems probable that his
‘employer’
is satisfied with his performance and the
undertaking of car guard duties by people of age is not uncommon. Ms
du Toit is in my
view correct in saying that the plaintiff’s
position is somewhat different than that of a self-employed person in
the usual
sense. She also differs with the opinion of Dr Strydom
that the plaintiff, as a self-employed person, is highly likely to
have
worked beyond the normal retirement age
but
for
the collision.
The plaintiff, in her view, is ‘self-employed’ insofar as
he generates his own income, but he requires
permission to do so,
both before and after the collision. He is getting older and must
compete with younger persons and he may
not get the required
permission. The plaintiff’s prospects to work beyond the
normal retirement age accordingly remain as
speculative as they were
before the collision.
[21] I am unable to find that the
evidence and the acceptable expert opinions establish that the
plaintiff is likely to suffer future
loss of earnings or of earning
capacity as a result of the collision, apart from the one month off
duty that the orthopaedic surgeons
agreed upon following the surgical
removal of the internal fixation, which the plaintiff, in their
opinion, requires
‘as
soon as possible’
.
This loss, I understood counsel not to differ,
translates into the
sum of R4, 751.00.
[22] Finally, I turn to the
plaintiff’s past loss of earnings. It is undisputed that the
plaintiff did not work as a car
guard from the date of the collision
on 18 February 2006 until 17 April 2007. The plaintiff testified
that he was able to go back
to work and to perform duties as a car
guard from October 2006. He did not look for a job, because he was
in a state of depression
and did not feel like working. Ms Kruger
notes in her medico-legal report that the plaintiff reported feelings
of depression since
the onset of his cancer and the results of the
‘
Beck Depression
Inventory
’
administered in her opinion ‘
can
be regarded as indicative of possible borderline clinical
depression
’.
His state of depression which prevented him from working can
therefore not be attributed to his collision-related injuries
and
sequelae
,
but rater to his pre-existing condition. I am of the view that the
plaintiff should be awarded compensation for his past loss
of
earnings for a period of eight months. The plaintiff testified that
he earned on average R3, 800.00 per month at the time of
the
collision. His past loss of earnings, on a simple calculation,
accordingly amounts to R30,400.00.
[23] In the result the following
order is made:
The defendant is ordered to pay
to the plaintiff the amount of R205, 151.00 within 14 days from the
date of this order, failing
which interest will start accruing on
the aforesaid sum at the rate of 15,5 percent per annum until date
of final payment.
The defendant is ordered to
provide to the plaintiff an undertaking as envisaged in
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for the costs of
the plaintiff’s future accommodation in a hospital or nursing
home or medical treatment of the plaintiff
or the rendering of a
service or supplying of goods to him arising out of the injuries
sustained by him in the collision which
occurred on 18 February
2006, after the costs have been incurred and on proof thereof.
The defendant is ordered to pay
the plaintiff’s taxed or agreed party and party costs of the
action, which costs shall include
the qualifying fees in respect of
the plaintiff’s experts, namely Dr Daneel Heyns (orthopaedic
surgeon), Ms E Kruger (occupational
therapist), Dr AC Strydom
(industrial psychologist), and Mr G W van der Linde (Scientia
Actuaries and Consultants).
__________________________________
P.A. MEYER
JUDGE OF THE HIGH COURT
23 September 2010