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[2020] ZAGPJHC 246
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M V v Road Accident Fund (26116/2011) [2020] ZAGPJHC 246 (28 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA,
LOCAL
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 26116/2011
In the matter
between:
V,
M
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MIA, J
[1]
This
is an action in which the plaintiff issued summons against the
defendant, the Road Accident Fund(RAF) as the statutory insurer
in
terms of the
Road Accident Fund Act 56 of 1996
, for general damages,
medical and hospital expenses and loss of earnings sustained as a
result of the collision. The plaintiff
claims the sum of R
6 242 678.35. On 24 October 2014, the issue of merits
was settled 100% in favour of the plaintiff.
In terms of
rule 33(4)
,
the issue of quantum was separated from the merits, and postponed
sine
die
for later determination. Thus only the issue of quantum proceeded
before me.
[2]
The
matter was set down for 12 February 2020. The parties attempted to
settle the matter on the first day given the unavailability
of judges
but were not able to. The case came before me on 13 February 2020.
The plaintiff testified, and the parties requested
the matter be
postponed for further evidence. Due to the national lockdown
commencing 26 March 2020, following the regulations
issued in terms
of
section 27(2)
of the
Disaster Management Act 2002
, the matter
could not proceed as envisaged. The matter proceeded on 2 and 3 July
2020 with the expert witnesses giving testimony
virtually through
Microsoft Teams following the Practice Directive issued by the Judge
President.
[
3]
To
discharge the onus resting on him, the plaintiff’s evidence was
led. His evidence was followed by Dr Versfeld, the orthopaedic
surgeon and Ms Barbara Donaldson, the industrial psychologist. He
testified that he was born on […] April 1963 and was 57
years
old. He qualified as a construction plant mechanic with the South
African Railways Agency. He resigned from the railway agency
and took
up a position as a quality control inspector at A S Transmissions and
Steering in Boksburg. Later he resigned from this
position as well to
accept a better opportunity offered to him at Ring Rollers, based in
Springs. He began as a quality control
inspector and worked his way
to the position of Heat Treatment Superintendent.
[4]
The
plaintiff recalled that he sustained an injury previously whilst he
was an apprentice. He had also had an accident whilst riding
his
motorcycle. On that occasion, he recalled that his left leg hit the
motor vehicle when he passed the vehicle, and this resulted
in a
fracture. He did not institute a claim against the RAF in that
instance. He also recalled injuring his leg when he assisted
his
brother in law whilst they were taking down a tennis court fence. The
injury regarding the present claim occurred after those
injuries. It
was on a Sunday, […] April 2007, his birthday. He had been
called to work. He went in and worked for
an hour and a half. He then
returned to his home in Brakpan. On his way home, the collision
occurred. He was driving a 1000 CC
Suzuki motorbike. He only recalled
the moment of impact and then lost consciousness. He woke up on the
centre island where he landed.
The vehicle involved in the accident
drove away. There was a witness to the accident. He was taken to
Parklands clinic in Springs
and admitted for treatment.
[5] The main
issue for determination is the quantum of damages. Specifically, the
general damages, past medical expenses and the
future loss of
earnings with the appropriate contingency deduction to be applied
having regard to the post morbid scenario after
having regard to the
experts' reports filed by the plaintiff and defendant and the joint
minutes of the experts. This court is
also required to determine the
costs of suit.
[6]
The plaintiff testified as a result of the collision he sustained
four fractured ribs, his foot was injured, and his toe was
fractured.
He also injured his shoulder ligament. He was hospitalised for
three weeks. His arm was in a brace, and his foot
was in a cast. He
received anti-inflammatory and pain relief medication and received
physiotherapy in hospital and for some time
after being discharged
from hospital. At the time of the collision, he was employed at
Ringrollers Heavy Forging and Rolling as
a supervisor. He was
office-based, i.e. ensuring that work completed was packed and moved
out for delivery. It was paper-based
as opposed to heavy lifting. He
was able to return to work after a month and was able to continue
with his work. He was however
retrenched in 2014 after working with
the company since 1987, i.e. for twenty-seven years. He took a
voluntary retrenchment package
as he believed his position was
earmarked and the company would retrench him in the next round of
retrenchments which was scheduled
to occur in the ensuing months.
[7]
Upon accepting the retrenchment package, he went in search of other
positions. He experienced difficulty finding a position
in the area
or close to his residence. When his partner was also retrenched, they
combined their packages and opened up a business
repairing
motorcycles. This business operated for four years after which they
closed as it was no longer viable commercially. During
the time he
repaired motorcycles, he experienced challenges because he worked
with pain and discomfort. Ideally, he required assistance
working on
the motorcycles due to the injuries he had sustained but could not
afford to employ an assistant. After the business
closed down, he
found employment at the company where he is currently employed. He is
employed as a mechanic and maintains forklifts.
[8] To maintain
the forklifts, he is required to work overhead with his hands lifted
above his head and shoulders extended. The
work is more physically
taxing than the work he was employed to do at DCD Ringrollers. He is
physically tired and in pain after
a day of work and experiences pins
and needles in his hands. He takes pain killers to relieve the pain,
and he requires medication
to sleep.
[9]
The
parties agreed that the joint minute of the orthopaedic surgeons, Dr
Versfeld, for the plaintiff, and Dr Swart, for RAF should
be
admitted. In the report, the experts disagree on the need for major
medical treatment in the future for the plaintiff. Dr Versfeld
noted
that the plaintiff suffered a brachial plexus injury with weakness of
abduction of his left shoulder. He noted decreased
sensation over the
thumb, index and middle fingers of his left hand. There was also
weakness of his pinch grip and fifth finger
pinch grip. There was a
weakness of dorsiflexion of his left wrist and weakness of extension
and flexion of his left elbow. Dr
Versfeld further found decreased
sensation over the outer aspect of the left forearm. In his view,
this represented a significant
permanent impairment. Dr
Versfeld testified that the plaintiff was limited in the work that he
can do. After he accepted
the retrenchment package, he was limited in
the work he could do due to the injury to his left shoulder. For this
reason, he opined,
the plaintiff should be considered unfit for his
usual position as a supervisor which was the level of work he had
reached and
therefore, he qualified for the Narrative test.
[10]
Dr Swart, for the defendant, noted that the plaintiff complained that
his wrists were stiff and sore, he, however, found that
they were
normal and required no treatment. He found that the plaintiff had a
mild bilateral loss of muscle mass. This resulted
in a bilateral
decrease in movement of 25% in all directions. The bilaterals were
tender to the supraspinatus insertion. Dr Swart
agreed that there
were rib fractures. He was of the view that the plaintiff’s
injury was worsened due to the 2009 injury.
He believed that
conservative treatment should be considered for the left foot injury.
Dr Swartz was also of the view that there
was no loss of work
capacity as a result of the accident, consequently there was no need
for early retirement and therefore no
loss of income. In his view,
the plaintiff did not qualify for the Narrative test.
[11]
The joint minute of the industrial psychologists was also admitted by
agreement. Ms. Barabara Donaldson, an industrial psychologist,
testified for the plaintiff. Mr Tshepo Tsiu also an industrial
psychologist testified for the defendant. Ms Donaldson noted that
the
plaintiff's gross income before the accident and his retrenchment was
last R254 528.00 per annum. He also enjoyed the
benefits of
medical aid and pension whilst working as a supervisor. She agreed
with Mr Tsiu that the plaintiff had reached the
ceiling once he
became a supervisor. She noted that the plaintiff took a voluntary
retrenchment package. His brother, who did not
take the package, is
still employed at the company.
[12]
Mr. Tsiu noted that the plaintiff’s loss of income was
economy-related due to the company's retrenchment process and
his
decision to participate in the voluntary retrenchment. He expressed
the view that the loss of income could not be attributed
only to the
accident as the plaintiff would have accepted the retrenchment
package in any event. He did, however, concede after
discovering that
Frankwen Forge (Pty) Ltd appointed the plaintiff that he would have
pursued his options as a supervisor had the
accident not occurred. If
he had done so, he would then have been a desirable candidate
with many years of experience. He
could have secured a favourable
position similar to the position he held as a supervisor. Mr Tsiu
testified, however, that there
were opportunities for employment
available to the plaintiff, but they were not all available where he
found himself in Springs.
Employment opportunities required
relocation or travel away from the plaintiff's home.
[13]
The joint minute of the occupational therapists was admitted by
agreement between the parties. They agree
on
the accident-related injuries as indicated in the records and medical
experts’ reports. Furthermore, they agreed that the
plaintiff
presented with the ability to execute work demands in the sedentary
to light category of work with partial compliance
to the medium
category of work. He was not deemed to be suited to work demands with
a full range of medium, heavy and very heavy
category of work. He was
also not viewed as an equal competitor on the open labour market in
this nature of employment. The experts
agreed that his current job
would need to be within the light category of work with increased
reliance on an assistant for more
strenuous lifting demands. It was
evident to the experts that he could comply with his current work
demands, which he reported
was in the light category of work, but
this was due to him being accommodated with extra support. His
employer and work colleagues
were supportive due to his physical
limitations. The experts agreed that if he lost his current
employment, he would experience
challenges in securing alternative
employment due to his physical limitations, especially as much as his
work history relied on
manual labour type positions. They agreed
furthermore that his scope of possible future occupations had been
severely restricted,
as he was now more reliant on manual labour type
positions than before the accident based on his qualification. The
occupational
therapists as per their Joint minute were in total
agreement on all aspects and no disagreements were noted between
them.
[14]
I
n
RAF
v Kerridge
[2019] 1 All SA 92
SCA at para 25, the court stated that:
“
Indeed,
a physical disability which impacts on the capacity to an income does
not, on its own, reduce the patrimony of an injured
person. There
must be proof that the reduction in the income earning capacity will
result in actual loss of income. However,
where loss of income
has been established but proof of the quantum thereof cannot be
produced in the usual manner, the courts have
shunned the non-suiting
of a claimant and have preferred to make the best of the evidence
tendered to give effect to the finding
of proved reduction in loss of
income earning capacity. As long as almost a century ago, in
Herman
v Shapiro
the
court said the following:
“
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is certain
that pecuniary damage
has been suffered, the Court is bound to award damages.”
[15]
In
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA) at 587 A-B, the Court in addressing the
assessment of compensation and a trial judge's discretion stated:
"The
court necessarily exercises a wide discretion when it assesses the
quantum of the damages due to loss of earning capacity
and has a
large discretion to award what it considers right. Courts have
adopted the approach that to assist in such a calculation,
an
actuarial computation exercise is a good basis for establishing the
quantum of damages. Even then, the trial court has a wide
discretion
to award what it believes is just"
[16]
Ms Pather, appearing for the plaintiff submitted that there was
agreement on substantial issues between the experts and referred
to
the case of
Glen
Marc Bee v The Road Accident Fund
2018
(4) SA 366
(SCA) which she argued found application, where the Court
held:
"Where
the parties engage experts who investigate the facts, and where those
experts meet and agree upon those facts, a litigant
may not repudiate
the agreement "unless it does so clearly and, at the very
latest, at the outset of the trial." "In
the absence of a
timeous repudiation, the facts agreed by the experts enjoy the same
status as facts which are common cause on
the pleadings or facts
agreed in a pre-trial conference." A litigant cannot be expected
to adduce evidence on the agreed matters.
Unless the trial court
itself were for any reason dissatisfied with the agreement and
alerted the parties to the need to adduce
evidence on the agreed
material, the trial court would, I think, be bound, and certainly
entitled, to accept the matters agreed
by the experts."
[17]
Ms Pather further submitted
that
past awards in comparable cases were a useful to guide in the
determination of general damages. The process of comparison need
not
entail a meticulous examination of awards and should not interfere
with the court's broad discretion. She referred to
Protea
Assurance v Lamb
1971
(1) SA 530
(A) p535H – 536A and
De
Jongh v Du Pisane NO (OBO JG Rabe )
2004 (5) 103 (SCA) which held that the tendency to increase
awards is only one factor to be taken into account. The amounts
awarded in previous awards must be adjusted to provide for the
erosion of the value of money. She referred to three cases by way
of
comparison to award general damages. The first case
Thwala
v Road Accident Fund
2011 (6D4) QOD 1 (GNP): The plaintiff sustained an arm fracture and a
blow to the right side of the head with an open wound that
was
sutured; a blow to the right ear, also with an open wound that was
sutured; abrasions on the forehead and nose; an unspecified
injury to
the right shoulder; a blow on the right knee with an open wound that
was sutured. Plaintiff has lost substantial power
in the left hand.
The award in current day value was R 418 000.00. In
G
B v Road Accident Fund
2017
(7B4) QOD 31 (ECP): Plaintiff suffered a severe degloving injury of
the scalp, fractures of both mandibles were treated using
an internal
fixation. There was a contusion of the brachial plexus of the right
shoulder from which the plaintiff recovered, but
there was also a
possible rotator cuff injury of the same shoulder with a 30%
possibility of requiring treatment in future. The
award in
current-day value was R551 000.00. In
Mlalandle
v Road Accident Fund
2011 (6J2) QOD 90 (ECP): The plaintiff sustained a fractured right
clavicle, a fracture of the blade of the right scapula, multiple
bruises, brachial paralysis in her right hand and fracture of three
ribs. She developed contractures of the ligaments of the
metacarpophalangeal
joints of the right hand and unable to flex
fingers. The award in current-day value was R516 000.00
[18] Ms Smit,
appearing for the defendant, argued that the plaintiff did not suffer
past loss of earnings as a result of the accident,
but rather because
he was retrenched during 2014. She continued that both industrial
psychologists agreed that he was in a compromised
position due to his
age. This was exacerbated by the fact that he was a white male in his
fifties and that employment opportunities
were limited in the
geographical area where he is currently situated. She argued that the
plaintiff testified himself that he was
not aware of any complaints
about his work performance from his employer. The plaintiff testified
that he was accommodated with
additional assistance to do the heavy
lifting. She argued that this was also to be seen in the context of
his evidence under cross-examination
that he is in a supervisory
position in the current position. He does not do the heavy lifting of
the engines but fixes parts,
and after it is reassembled, he makes
sure that all the nuts and bolts are correctly tightened. He did not
work in an above shoulder
position all the time, but only for short
periods to do the checks. The plaintiff also said under examination
in chief that he
experienced pain in his leg when he stood for long
periods and then under cross-examination, he said he had to sit due
to his back
pain.
[19] She argued
that the plaintiff applied for numerous positions as a supervisor
similar to his position at Ringrollers, but it
was only when he
applied for a job as a diesel mechanic, that he managed to find work.
He sustained numerous injuries over the
years, and Dr. Versfeld did
not have sight of the post-2008 accident medical records up to the
date of consulting with the plaintiff
in 2014. For this reason, the
plaintiff could not prove a claim for past loss of earnings.
Therefore, she requested the court to
dismiss the claim for past loss
of earnings as the plaintiff was working continually from the date of
the accident until his retrenchment
in 2014. He elected to start his
own business as opposed to seeking employment as a diesel mechanic
for which he was qualified.
[20] In respect of future loss of
earnings, Ms Smit argued that due to the plaintiff’s age, race
and geographical situation,
which was confirmed by the experts he
could not obtain similar employment as he had in 2014. He was,
however, a qualified
diesel mechanic, and once he applied for that
position, he managed to secure it. It was common cause she argued
that he experienced
discomfort when working with his arms above his
head. However, she continued, this discomfort, did not render
him incapable
of working at all. This was also confirmed by Mr. V
himself, who affirmed that there were duties that he could perform
given his
technical knowledge. Therefore, she submitted the plaintiff
only suffered the loss of earning capacity, which should be
compensated
by way of a contingency differential.
[21] Furthermore, the experts agreed
that provision should be made for conservative treatment and surgery,
during which periods
the plaintiff might suffer a loss of earnings.
She submitted that it would therefore be reasonable to consider that
in determining
the contingency differential. She proposed a 20%
differential as being reasonable. She sought an order from the court
which used
a calculation based on the plaintiff's current earnings,
as a diesel mechanic, which amounts to approximately R366 741.17 p.a
as
per his pay slip dated 1 January 2020 with inflationary
increases until age 65.
Future loss of
earnings
Pre-accident
Post-accident
R3 654 968
R 3 654 968
Less contingency
10%
30%
R3 289 471.00
R2 558 477.00
Total nett loss
R730 994.00
.
[22] On the issue of general damages,
Ms Smit referred to the matter of
Gattoo v Road Accident Fund
(61778/2009) [2012] ZAGPPHC 24 (15 February 2012): the plaintiff was
a female hawker with rib fractures and soft tissue injuries
to the
neck and back. The court awarded R75 000.00 in general damages
(current value R 119 538.00). In
Mlatsheni v Road Accident
Fund
(418/2005)
[2007] ZAECHC 108
;
2009 (2) SA 401
(E) (6
December 2007): the plaintiff was a 49-year-old man. He
sustained three injuries in the accident, namely a dislocation
of the
left shoulder complicated by a tear of the rotator cuff tendon, a
sprained right wrist and two broken teeth. The most serious
of his
injuries, and the injury that still plagues him, was the injury to
his left shoulder. He underwent surgery to repair the
rotator cuff
tendon. The plaintiff's left arm was immobilised in a sling for some
six weeks. Since the accident, the range of movement
of the left
shoulder has never been more than 75 percent. "The court awarded
general damages in the amount of R140 000.00(current
value R
298 610.00). She argued that the plaintiff’s injuries were
somewhat more severe than the abovementioned case
as he also had
fractured ribs, bruises to his knees and a left foot injury. He will
need follow-up treatment but is still able
to work with discomfort.
He also did not go for follow-up treatment on his shoulder. She
submitted, therefore that an amount of
R350 000.00 was fair and
reasonable. She advanced that the court should thus order future loss
of earnings in the amount of R 730
994.00; general damages in the
amount of R 350 000.00 and past medical expenses was accepted at R 23
640.53. An undertaking
for future medical expenses in terms of
section 17(4)(a)
would be limited to the treatment of the shoulder
and rib injury.
[23] In considering the damages, I
have had regard to the different cases that both counsel have placed
before me. Two cases are
instructive on these facts in respect of the
general damages i.e.
Thwala
and
Mlatsheni
. The
plaintiff falls squarely in the type of awards granted. An average of
the values has been used to achieve the desired amount
rounded off to
R385 000.00 for general damages. This amount, in my view, is
reasonable and fair.
[24] On the question of past medical
expenses, the defendant has conceded the amount as well as the
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act for
future medical expenses.
[25]
I move now to the question of loss of earnings. It is trite that
contingencies of whatever nature generally serve as a control
mechanism to adjust the loss to the circumstances of the individual
case to ensure justice and fairness to the parties. The question
of
the contingency deductions to be applied, to the calculation of the
quantum of a future amount involving loss of earning capacity,
is
often tricky
[1]
.
The court has a broad discretion based on a consideration of all the
relevant facts and circumstances. I agree with the
submissions
made by counsel for the defendant that the plaintiff did not suffer
past loss of earnings as a result of the injury
sustained in the
accident. The plaintiff’s calculation seeks to compensate the
plaintiff for past loss of earnings and in
this it is not helpful.
[26] Moreover, concerning the future
loss of earnings, the plaintiff did not lose income because of the
accident
per se
. He accepted a voluntary retrenchment package
hoping to find similar work. He was unable to find comparable work
because of a combination
factors including his race, age, injury and
reduced capacity and unwillingness to relocate. It is this reduced
capacity that must
be compensated. In my view, a contingency
deduction must be applied to compensate for the future loss. I have
used ten percent
for pre-accident loss and an amount of thirty
percent for post-accident loss of earnings. The result is a future
loss of earnings
in the amount of R730 994.00, general damages
in the amount of R385 000, past medical expenses in the amount
of R 23
640.53 which all amount to a total of R 1 139 634,53.
[27] I turn to the question of costs.
Counsel both argued that costs should follow the outcome. The usual
costs order is applicable
as there are no reasons why costs should
not follow the cause.
[28] Given the reasons above, I grant
the following order.
ORDER
1.
The
defendant shall pay the sum of R 1 139 634,53 to the
plaintiff into the plaintiff's attorney's account payable by
direct
transfer into the trust account of:
Munro, Flowers and
Vermaak Trust Account
Nedbank
Branch: Business
North Rand
Account: 1469 036 657
Branch Number: 146 905
2. The defendant
shall provide an undertaking in terms of Section 17(4)(a) of the Road
Accident Fund Act 56 of 1996 ("the undertaking"),
to
compensate the Plaintiff/ M V for 100% (one hundred percent) of the
costs relating to the future accommodation of the Plaintiff/
M V in a
hospital or nursing home or treatment of or rendering of a service or
supplying of goods to the Plaintiff/ M V after the
costs have been
incurred and on proof thereof and arising from the collision which
occurred on 27 April 2007.
3. Defendant shall
make payment of the plaintiff's taxed or agreed party and party costs
on the High court scale, which costs shall
include the following:
3.1 the costs of counsel on the high
court scale, which shall include the costs of preparation for trial
and appearance for 12,
13 February 2020, 2 and 3 July 2020;
3.2 the reasonable taxable costs of
obtaining all medico-legal and actuarial reports and joint expert
minutes from the plaintiff's
experts which were furnished to the
defendant;
3.3 the reasonable taxable preparation
and reservation fees for 12, 13 February 2020 and 2,3 July 2020, if
any of the following
experts:
3.3.1 Dr Versfeld
(Orthopaedic Surgeon)
3.3.2 Mrs Donaldson
(Industrial Psychologist)
3.3.3 G Whitaker-
(Actuary)
3.4 The above costs will also be paid
into the aforementioned account.
4. The following provisions will apply
to the aforementioned taxed or agreed costs:
4.1 the plaintiff shall serve the
notice of taxation of the defendant.
4.2 the plaintiff shall allow the
defendant sixty court days to make payment of the taxed costs from
the date of this order or the
date of taxation whichever is earlier.
4.3 should payment not be effected
timeously, the plaintiff will be entitled to recover interest at the
rate of 8.75% on the taxed
or agreed costs from the date of the
allocator to date of final payment.
_________________________________________________
S C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
On behalf of the
applicant
:
Adv. N Pather
Instructed by
: Munro, Flowers &
Vermaak
On behalf of the respondent
: Adv.
A Smit
Instructed
by
: Pule
Incorporated
Date of
hearing
: 13 February 2020, 2,3
July 2020
Date of judgment
:
28 September 2020
[1]
Hall
v RAF 2013 (6J2) QOD 126 (SGJ)