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[2020] ZAGPJHC 39
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Mantsie v Road Accident Fund (34199/2011) [2020] ZAGPJHC 39 (10 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE NO: 34199/2011
10/2/2020
In
the matter between:
HERBERT MPHAHLA
MANTSIE
Plaintiff
And
ROAD ACCIDENT
FUND Defendant
JUDGMENT
YACOOB
J:
1.
The
plaintiff was a passenger in a motor vehicle which was involved in a
collision on 08 November 2009, and was injured. He lodged
a claim
against the defendant for damages resulting from his injuries.
2.
The
defendant conceded the merits of the plaintiff’s claim in 2012,
and the claims for past and future medical and hospital
expenses in
2014. The parties agreed that the issue of general damages should be
postponed
sine
die
,
since it has been rejected by the defendant and must still be
considered by the HPCSA.
3.
The
matter is then only before me to determine loss of income.
4.
The
question is whether the injuries suffered by the plaintiff have
resulted in past and or future diminution of his earning capacity,
and if so, what the appropriate contingency to be applied.
5.
The
plaintiff was, at the time of the collision, 37 years old, and a
teacher. He was hospitalized for 14 days after the collision.
He
suffered a chest injury, with a rib fracture and lung contusion,
liver contusion, face and head lacerations and neck and back
injuries. His initial Glasgow Coma Scale score was 14/15, where the
best response is 15.
6.
There
is a dispute about whether the plaintiff suffered a compression
fracture on his T11 and L1 vertebrae, and any brain injury
The
remainder of the plaintiff’s injuries are common cause.
7.
Also
in dispute is whether the plaintiff’s ability to progress in or
maintain his career was compromised as a result of the
collision, and
whether his depression and post-traumatic stress disorder was caused
and/or exacerbated by the collision or existed
before the collision
occurred.
8.
The
joint minutes of the various experts were admitted. The plaintiff
called an orthopaedic surgeon and a neurosurgeon as witnesses,
and
gave evidence himself. The defendant did not call any witnesses.
9.
The
orthopaedic surgeon called by the plaintiff, Dr Liebenberg, testified
that he had examined the plaintiff three times, in 2013,
2017 and
2019, and had had X-rays on each occasion.
10.
When
the plaintiff was initially admitted to hospital no X-rays of the
spine were done, so there was no diagnosis of fractures of
the
vertebrae. The compression fractures of the vertebrae were, for the
first time, diagnosed by Dr Liebenberg.
11.
Dr
Liebenberg suggested that a reason why no X-rays of the spine were
done was that the pain from the chest injuries, including
the lung
and broken ribs, eclipsed that of the spine and it was possible that
the spine injuries were not picked up. He stated
that the pain from
the fractures would not have been felt while the plaintiff was lying
on his back with drainage for the chest
injuries, but only once he
started moving around.
12.
There
was no evidence adduced from the defendant’s side regarding
these injuries. Dr Liebenberg said that it appeared that
the
fractures were caused by the collision but obviously there was no
proof that they did not occur at some other time.
13.
The
plaintiff’s second witness was Dr Steyn, a neurosurgeon. Dr
Steyn testified that the plaintiff currently exhibits symptoms
of
both cognitive and personality issues. He reported headaches and back
pain that is exacerbated by movement. His planning ability
was
compromised. He was unable to stand for long periods.
14.
Dr
Steyn testified that that symptoms exhibited by the plaintiff,
including those recorded in the minutes of experts who did not
testify, including post-traumatic amnesia and neurocognitive decline,
indicated a brain injury. The plaintiff did not perform as
well on
tests as a person of his educational level would be expected to. The
plaintiff’s cognitive function deteriorated
even between 2014
and 2019.
15.
The
plaintiff himself was the last witness. He testified that he had been
a teacher at Parktown Primary School. HE started teaching
there in
2002. He taught Grade 7, and he had been a class teacher rather than
a subject teacher, teaching all learning areas. He
had also coached
badminton and soccer and had been a union representative.
16.
The
plaintiff has a senior primary teachers’ diploma, a BA Honours
degree and has completed the coursework component of a
Masters
degree.
17.
After
the collision he was not able to return to work for three months
after his discharge from hospital.
18.
After
the plaintiff returned to work the timetable was changed to
accommodate him. He had subject teaching rather than class teaching,
and he had assistance from learners. He also needed time to go for
follow ups to hospital and so on.
19.
The
plaintiff had pain from his back, in his chest, and head. He cannot
concentrate for long due to the headaches. He also could
not write on
the board as he used to. The change was noticed by the school
management. He had to sit down more. He then resigned
because he was
not able to fulfil the standards and parents were complaining.
20.
The
plaintiff then resigned in April 2013.
21.
The
plaintiff’s wife and unborn child died, which contributed to
his decline. There was a dispute regarding whether they died
before
he resigned or after. The parties produced information from the
plaintiff’s sister that the plaintiff’s wife
died before
he resigned. However later the birth certificate was produced showing
that the death occurred in May 2013.
22.
The
plaintiff then tried to start a business which did not work, and
bought a vehicle to run an airport transfer business. However
he
could not do the driving himself due to his injuries and the drivers
he hired were not sufficiently disciplined so that failed
to. He then
stayed at home in Limpopo until he got an opportunity at a school in
Mpumalanga. He is still teaching there, in a temporary
position.
23.
The
plaintiff still has pain and gets tired more quickly, and cannot
concentrate or teach for a long time.
24.
In
2018 he taught Sepedi, Social Science and English, and in 2019 only
English and Social Science because it was too much for him.
He also
has many free periods to rest or mark. According to the plaintiff he
has an extremely reduced workload.
25.
The
reports by the experts of what the plaintiff’s current and
former school heads were put to him as contradictory. He was
able to
explain apparent contradicts. No witnesses testified regarding the
plaintiff’s teaching either before or after the
collision.
26.
To
the extent that the defendant wished to rely on what the plaintiff’s
employer and former employer had to say, those people
ought to have
been called as witnesses. The reports by experts of what they have
said are in essence third hand and cannot be probed
or tested. The
plaintiff’s version is therefore the only real version before
me of his work difficulties.
27.
The
plaintiff also showed signs of distress in court while giving
evidence, of confusion and headaches. At one point his eyes even
became red. This could not have been falsified.
28.
As
far as the issue of the spinal compression fractures are concerned,
Dr Liebenberg was the only witness, together with the plaintiff’s
own description of his back pain. I found Dr Liebenberg’s
description of why the injury was not picked up at the hospital
to be
sufficient. There is no X-ray of the area taken at the hospital which
could show that there was no fracture at the time.
29.
I
therefore find that the compression fractures resulted from the
collision, and that the pain resulting from them is part of the
sequelae
of
the collision.
30.
The
plaintiff amended his claim at the last minute to include that he has
suffered a brain injury and cognitive decline. The defendant
contended that any cognitive and emotional decline is due primarily
to the plaintiff’s loss of his wife and child, and that
he
showed problems at work before the collision.
31.
However,
there is no reliable evidence of problems at work before the
collision since there was no witness who could be interrogated.
The
plaintiff suggested that the report was mistaken and insisted there
were only problems after the collision.
32.
According
to the occupational therapists’ joint report the plaintiff can
do sedentary to light work, which is how his occupation
is
classified. However he would need to apply pain management principles
in the workplace.
33.
In
my view the fact that the plaintiff’s occupation is classified
as the kind of work he is able to do according to the occupational
therapists does not mean that he does not actually have difficulties
arising from his injuries.
34.
The
industrial psychologists’ joint minute suggests that the
plaintiff would have been promoted had he not resigned, and would
have carried on until the normal retirement age of 65 had he not been
injured. The plaintiff is earning less now than he would
otherwise
have been and therefore suffers a loss of income.
35.
However
the plaintiff would still be likely to work until age 65. The
plaintiff suggested that a significant contingency spread
was
appropriate to account for the plaintiff’s significant
cognitive decline.
36.
In
my view the plaintiff has proved sufficiently that his ability to
earn has been impacted by his injuries, as he will earn a lower
amount until retirement. He has not simply shown a loss of capacity
but an actual lowering of his earnings. His patrimony has been
diminished. This is consistent with the test set out by the SCA in
Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA)
37.
The
plaintiff’s counsel suggested that the appropriate contingency
to be applied to the past loss of earnings is 5%. For the
plaintiff’s
future earnings, it was suggested that that the appropriate
contingency to apply to the plaintiff’s uninjured
earnings is
15% and to his injured earnings is 30%. This results in a spread of
15%, which is a large spread but not excessively
so. I agree with the
plaintiff’s submissions regarding the appropriate contingency
deductions.
38.
The
plaintiff submitted an actuary’s calculations based on these
deductions, which I accept.
39.
The
plaintiff submitted a draft order annexed to his heads of argument as
annexure “C”, which I have amended appropriately
and
annex to this judgment as the order marked “X”.
40.
I
therefore order:
40.1.
The
plaintiff’s claim for general damages is postponed
sine
die
;
40.2.
The
remainder of the relief is as set out in the order annexed hereto
marked “X”.
S. YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances
Counsel
for the Plaintiff:
Mr N.C Maritz
Instructing
Attorneys:
MacRoberts
Inc
Counsel
for the Defendant: Ms M
Putuka
Instructing
Attorneys:
Maluleke
Msimang & Associates
Date
of hearing:
10 June 2019
Date
of judgment:
10 February 2020