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[2021] ZAGPJHC 12
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Storm v Road Accident Fund (17949/2018) [2021] ZAGPJHC 12 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
CASE
NO
:
17949/2018
DATE
:
29
th
January 2021
In
the matter between:
STORM
,
PETRUS JACOBUS
NICOLAS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Coram:
Adams J
Heard
:
11 and 12 August 2020 – The ‘virtual hearing’
of
this matter – the trial – was conducted as a series of
videoconferences on the aforementioned trial dates on the
Zoom
digital platform.
Delivered:
29 January 2021 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
system of the GLD
and by release to SAFLII. The date and time for hand-down is deemed
to be 10H00 on 29 January 2021.
Summary:
Damages – application for default
judgment – bodily injuries – determination of quantum in
an application for
default judgment based on undisputed facts –
court still has a duty to ensure that just and fair compensation
awarded –
court must use available evidence to determine
quantum –
ORDER
Jud
gment
by default is granted in favour of the plaintiff against the
defendant for: -
(a)
Payment of the
sum of R2 455 345.31.
(b)
Payment of
interest on the said sum of R2 455 345.31 at the prescribed
legal rate from fourteen days from date of this
judgment to date of
final payment.
(c)
The defendant shall furnish the
plaintiff with a 100% undertaking in terms of section 17(4) (a) of
the Road Accident Fund Act, Act
56 of 1996 (‘the Act’),
to pay the costs of future accommodation of the plaintiff in a
hospital or nursing home, or
treatment of or rendering of a service
or supplying of goods to him, arising out of the injuries he
sustained in the motor vehicle
collision on the 8 June 2017, after
such costs have been incurred and upon proof thereof.
(d)
Payment of the plaintiff’s
costs of suit, including the reasonable costs of all medico-legal
reports and joint minutes obtained
by the plaintiff, and the
qualifying fees and court attendance fees of his expert witnesses.
JUDGMENT
Adams J:
[1].
On the 8
th
of June 2017 the plaintiff sustained serious bodily injuries in a
motor vehicle collision along the R516 Road between Vaalwater
and
Lephalale, near Bulge River. He was a passenger in a light delivery
vehicle, which collided with a TLB, which had inopportunely
cut
across their line of travel from their right hand side. When the TLB
cut across their lane of travel as it did, they were so
close to it
that a collision was inevitable. In this action the plaintiff claims
damages from the Road Accident Fund (‘the
Fund’) for the
serious bodily injuries he sustained in the collision.
[2].
The matter was
set down for trial on the 6
th
of August 2020. On this date there was no appearance on behalf of the
Fund, which, in the months preceding the trial date, had
terminated
en masse the mandates of all of the firms of attorneys which had up
to that point served as the Fund’s panel of
suppliers of legal
services. The idea was that the Fund would deal with the claims and
litigation arising therefrom internally
without the assistance of
outside lawyers. That was easier said than done. Despite his every
endeavor to amicably settle this action
directly with the Fund during
the days leading up to the trial date and on the few days thereafter,
Mr Kok, the plaintiff’s
attorney, was not able to resolve the
disputes. In fact, the communiqués he addressed to the Fund
went unanswered.
[3].
On the 11
th
of August 2020 the matter came before me, it having been standing
down for allocation since the 6
th
of August 2020. By then, there was still no appearance on behalf of
the Fund. The plaintiff therefore proceeded with an application
for
judgment by default, and in support of that application
viva
voce
evidence was led. The plaintiff himself gave evidence, as did his
brother, his life partner and his Industrial Psychologist, Ms
Talia
Talmud. From the evidence led, the facts in this matter are as set
out in the paragraphs which follow.
[4].
The Fund is
clearly liable for the plaintiff’s damages. On the evidence
before me, the driver of the TLB was negligent and
his negligence
caused the injuries sustained by the plaintiff in the accident.
[5].
The
plaintiff’s date of birth is 01 April 1965. That makes him 55
years old at present and 52 years old at the time of the
accident on
the 8
th
of June 2017. At present he lives on a plot in a rural area with his
fiancé and her son. The plaintiff is a skilled artisan
and
possesses numerous technical skills and qualifications. At the time
of the accident, he was employed as a Workshop Foreman
at L & N
Auto, having been in that position since the 1
st
of November 2013. When he met the accident, the plaintiff had
therefore been employed in that capacity for approximately 3 years
and 7 months. His duties entailed
inter
alia
the
running of the workshop, preparing quotations, invoicing, budget
planning and planning of manpower hours, as well presenting
the
budget to management, managing approximately twelve other workers and
himself attending to the maintenance and repairs on all
earthmoving
vehicles.
[6].
His aforesaid
employment before the accident was of a heavy physical nature. His
work was challenging also from a cognitive point
of view. He earned
about R15 000 per month, which, by all accounts, was well below
the market related salary for persons employed
as Workshop Foremen or
Supervisors in the heavy machinery and equipment industry. As
indicate later on in the judgment, the plaintiff
ended up in this
position due to circumstances beyond his control, however at the time
he was looking out for better opportunities
and higher-paying
prospects.
[7].
In fact, at
the beginning of June 2017 – literally days before the accident
– the plaintiff had received an official
job offer from T-Rex
Field Services, a company owned by his brother, for the role of
Maintenance Mechanic. This offer the plaintiff
had already accepted
and, but for the accident, he would have commenced employment with
this company on the 1
st
of August 2017 at a monthly salary calculated on the basis of an
hourly rate of R160 per hour, which translates into a salary of
approximately R31 200 per month – R374 400 per annum.
[8].
Due to the
accident and the injuries sustained by him, the plaintiff was unable
to take up the position at T-Rex. He therefore remained
in his
position as a Workshop Foreman at L & N Auto, where he still
earns approximately R15 000 per month.
[9].
In the
accident, the plaintiff sustained the following injuries: a fracture
of his right ankle with serious complications, notably
wounds that
became septic and just would not heal; a soft tissue injury of the
right knee; and a laceration of the forehead. His
present complaints
are: he has a stiff right ankle, which is always painful; two wounds
on his right ankle just won’t heal;
he has difficulty sleeping
due to the pain and the wounds; his right ankle is swollen most of
the time and he has very limited
movement in his right foot; his
right knee is weak and he will probably need a knee replacement
within about two years; his right
knee often gives in when walking;
he has difficulty getting up from a seated position due to pain; he
cannot climb stairs or any
machinery at his job; he can no longer
climb a ladder; he cannot lift or carry heavy objects as he cannot
put weight on his right
knee and right ankle; he cannot run or
crouch; he has difficulty getting in and out of the bath,
specifically due to the wounds;
and he has difficulty walking or
standing for extended periods.
[10].
Emotionally,
he is a mess. He gets angry quite easily – he is short-tempered
and irritable. He feels frustrated with his situation.
He is more
prone to conflict since the accident due to his moods. His
relationships with his fiancé and step-son have been
affected.
[11].
Immediately
after the accident, the plaintiff was transported by ambulance to the
Bela-Bela Hospital. The same evening, after he
had been stabilized,
he was transferred to the Sunshine Hospital where he was admitted for
approximately six days. There he underwent
an operation to insert
plates in his right ankle. His face and knee were sutured. After
being discharged from hospital, the plaintiff
wore a moon booth for
three months and mobilised with crutches until December 2018. There
can be no doubt that the injuries sustained
by the plaintiff as a
result of the accident were of a very serious nature.
[12].
The orthopedic
surgeon assessed the plaintiff’s Whole Person Impairment
(‘WPI’) at 44%. He was accordingly of
the opinion that
the plaintiff’s injuries were of a serious nature and that it
qualifies him for general damages.
[13].
As indicated
by the plaintiff’s expert witnesses, his job working as a
diesel mechanic would have required of him to stand,
walk and work in
small confined spaces most of the day in most weather conditions
especially if in the field. Without the use of
power tools and
hydraulic lifts, the plaintiff would have had to rely mostly on
manual power to get the job done. For this type
of work, he required
the full use of both his upper and importantly too his lower limbs.
There is a high frequency of crouching,
kneeling, squatting and
crawling all of which the plaintiff can no longer do. He is no longer
able to use his lower limb for capacities
that requires pushing or
pulling of any kind.
[14].
By all
accounts, the plaintiff is currently being accommodated in his role
as Workshop Foreman in the sense that he is no longer
required to
perform any of the tasks that require physical ability. He is suited
to his current accommodated role, which is sedentary
to light in
nature. His current employer is quite happy to accommodate him in
this role given the valuable and scarce skills and
knowledge he
possesses. The company probably cannot afford to lose his valuable
knowledge and experience as it is important to
the company and for
the requirements of his role.
[15].
According to
the Orthopaedic Surgeon, plaintiff, due to his injuries and the
progressive deterioration of his joints, would have
to retire five
years early. There does not appear to be much dispute about this.
[16].
With that
background, I now proceed to deal with the quantification of the
plaintiff’s claim under the different heads of
damages.
Past
Hospital and Medical Expenses
[17].
Under this
head of damages, the plaintiff claims an amount of R29 145.60.
Included in this total, is the following three sizeable
amounts,
totaling R20 273.67, all paid on or about the 26
th
of August 2018, when the plaintiff had removed from his ankle the
screws and other internal fixative: R15 000 paid by the
plaintiff to Mediclinic Limpopo, which is the private hospital where
the surgery was performed; R2 409.67 paid to the Orthopaedic
Surgeon, Dr G F Van Zyl, the surgeon who in fact did the operation
during which the fixatives were removed; and R2 864 paid
to the
Anaesthetist, Dr Hugo Van Rensburg, who assisted Dr Van Zyl with the
surgery.
[18].
The balance of
the amount claimed was in respect of small sums paid from time to
time by the plaintiff for over the counter medication,
mainly
painkillers, which he purchased from Pharmacies and in respect of
which he was able to produce documentary proof in the
form of
invoices and cash or credit card slips. A reconciliation of these
slips indicates that these small amounts, which range
from anything
between R26.45 and R660.40, add up to R7 550.98, which results
in a grand total of R27 824.65 for past
hospital and medical
expenses. This total amount is evidenced by the plaintiff’s
testimony and supported by the documentary
evidence.
[19].
Therefore, the
amount to be awarded to the plaintiff as representing his past
hospital and medical expenses is the total amount
of R27 824.65.
Future
Hospital, Medical and Related Expenses
[20].
There was more
than adequate evidence before me that, as a result of the injuries
sustained by the plaintiff in the accident, he
would require future
hospital and medical treatment. The details and particulars of such
hospitalization and treatment are contained
in the medico-legal
expert reports by the plaintiff’s expert witnesses.
[21].
This head of
damages should be dealt with on the basis of a statutory
undertaking
to be provided by the Fund to the plaintiff in terms of section 17(4)
(a) of the Road Accident Fund Act, Act 56 of 1996
(‘the Act’),
and I therefore intend granting and order to that effect.
Past and
future Loss of Earnings / Loss of Income Earning Capacity
[22].
The
plaintiff’s past and future loss of income has been actuarially
calculated and the bases of such calculations, which are
elaborated
upon in the paragraphs which follow, appear to accord generally with
the facts and the probabilities in the matter.
[23].
It is assumed
that, at the time of the accident, the plaintiff was employed as a
Workshop Foreman by L & N Auto, earning R15 000
per month
with no other benefits. It is also assumed that at the time the
plaintiff earned, in addition to his income from his
formal
employment, from an informal Chicken Farming operation about R14 625
per month. Following the accident, the plaintiff
was off work for two
weeks. He did however receive his remuneration in full during his
period of recovery, and he has remained
and still remains employed at
L & N Auto, still earning R15 000 per month (assumed as at
April 2019).
[24].
It is also
assumed that the plaintiff suffered a total loss of profit in respect
of his farming business from February 2018 to date.
[25].
But for the
accident, the plaintiff would have secured employment as a Diesel
Maintenance Mechanic at T-Rex Services on 1 August
2017, earning
R31 200 per month. The postulation is that the plaintiff would
have worked in this capacity, receiving annual
inflationary increases
until retirement at age 65, and he would have continued working as a
Chicken Farmer, earning annual inflationary
increases until
retirement between ages 65 and 70.
[26].
Now that the
accident has occurred, it is assumed that the plaintiff will continue
working in his current accommodated capacity
until early retirement
at age 60.
[27].
Disregarding
the accident, his earnings are taken as R180 000 per annum from
the date of the accident until 31 July 2017 and
as R374 400 per
annum from the 1
st
of August 2017, to increase in line with the Consumer Price Index to
R420 277 per annum as at the 1 August 2020. Additionally,
his
earnings from the Chicken Farming business are taken as R175 500
per annum from the date of the accident and would have
increased in
line with the Consumer Price Index to R197 867 per annum as at 1
August 2020, representing about 47% of the plaintiff’s
projected future income as from the 1 August 2020. The importance of
this ratio I shall revert to later on in my judgment when
I deal with
the probabilities relating to whether or not the plaintiff would have
continued with his Chicken Farming business after
returning to a
position in which he would then have been paid a market related
salary.
[28].
On the basis
of these assumptions, the results of the actuarial calculations
relating to the plaintiff’s past loss of income
are as follows:
Pre-morbid projected income, before the application of contingencies
= R1 259 622, and post-morbid income
= R577 228.
Included in the amount of the pre-morbid earnings is the income that
would have been generated by the plaintiff
from his Chicken Farming
business. The difficulty with this approach is that the plaintiff
started that business out of necessity
and in order to supplement his
otherwise meagre salary after he took a drop in salary after losing
his previous job. In other words,
he only started this business in
order to make up for the fact that he was earning less than what he
would have earned as being
market related. Effective the 1 August
2017, he would have returned to earning a salary at market rates. The
need to engage in
extra work would have fallen away. It stands to
reason that this is a factor, which should be taken into account when
calculating
the plaintiff’s loss.
[29].
I am of the
view that this should be done by applying a higher contingency to the
income disregarding the accident. That contingency
should be close to
the 47%, which represents the portion of the plaintiff’s income
constituted by the earnings generated
from the Chicken Farm
enterprise. I believe that, in the calculations relating to the
projected pre-morbid past earnings, that
contingency should be 30%.
As for the post-morbid past earnings, I am of the view that applying
normal contingencies of 5% is appropriate.
This would then result in
the plaintiff’s past loss of earnings being calculated thus:
R881 735.40 – R548 366.60
= R333 368.80.
[30].
As for the
future loss of income, the above assumptions and its application
result in future projected pre-morbid earnings, before
the
application of general and other contingencies, of R3 908 222
and post-morbid earnings of R778 646. For the reasons
mentioned
above relating to the income earned from the Chicken Farm enterprise
and the fact that the plaintiff would probably not
have continued
with that business after resuming employment at the level and for the
remuneration fitting of his experience and
qualifications.
Contingencies of 40% should therefore be applied to the future
pre-morbid projected income. As regards the post
morbid income, I
think that normal contingencies should be applied. The fact of the
matter is that the plaintiff brings with him
a wealth of experience
and skills independent of his physical abilities. These qualities
will stand him in good stead and is one
of the reasons why he is at
present still employed and he probably would remain employed to
retirement age notwithstanding his
physical challenges. He retains
the ability and the skills to supervise and manage and to train. And
he can earn a good living
in that way. 10% contingencies, and not
30%, as suggested by the plaintiff, should be applied to the
projected future post-morbid
earnings.
[31].
The
calculations would therefore be as follows as regards future loss of
income: R2 344 933.20 – R700 781.40
=
R1 644 151.80.
[32].
That means
that the plaintiff’s total loss of income (past and future) is
R333 368.80 + R1 644 151.80 = R1 977 520.60.
This is the total amount, which I intend awarding to the plaintiff as
loss of income.
General
Damages
[33].
I now turn to
deal with the quantum of the general damages suffered by the
plaintiff. In that regard, I am satisfied that the plaintiff’s
injuries are serious and that he qualifies for general damages. There
can be little doubt about this. And although the Fund has
never
formally accepted liability for the plaintiff’s general
damages, it similarly has never disputed liability for such
damages.
Moreover, in compliance with the Act and the regulations promulgated
thereunder, the plaintiff had lodged with the Fund
a Form RAF 4 by
Professor Chris Frey, who assessed the plaintiff’s WPI at 44%,
which more than qualifies the plaintiff for
general damages.
[34].
Mr Kok
suggested that a sum of R500 000 should be awarded to the
plaintiff for his general damages. For comparative purposes,
he
referred me to a number of cases. Importantly, I was referred to
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA), in which the SCA in 2003 awarded general
damages of an amount of R175 000 to a plaintiff who suffered a
fracture femur,
which resulted in manifold complications. The amount
of R175 000 updated to 2020 monetary terms equates to R513 000.
In that matter, like in the present one, the plaintiff was
incapacitated by the comminuted fracture of his femur and the
resultant
complications for four of the eight years from the date of
the accident to the date of the hearing of the matter in the trial
court.
Mr Marunga also had to undergo numerous operations and other
surgical interventions.
[35].
In casu
the plaintiff, not
unlike Mr Marunga, suffered serious orthopaedic injuries, with
complications, which have had a devastating effect
on his activities
of daily living and on his occupation. I have dealt with those issues
supra. Importantly, the complications which
resulted from the ankle
injury are such that the plaintiff faces the possibility of a below
the knee amputation of his right leg.
He suffers from constant and
chronic pain in the right leg.
[36].
I therefore
consider an amount of R450 000 to be fair and adequate
compensation to the injured party in respect of his general
damages.
Conclusion
[37].
The amounts to
be awarded to the plaintiff as damages are therefore the following:
R27 824.65 – for past hospital, medical
and related
expenses; R1 977 520.66 – future loss of income; and
R450 000 – general damages = Total
amount to be awarded:
R2 455 345.31.
[38].
In respect of
the future hospital, medical and related expenses, I intend directing
the Fund to furnish the plaintiff with a statutory
undertaking in
respect of such costs.
Costs
[39].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so. See:
Myers v Abramson
,
1951(3) SA 438 (C) at 455.
[40].
I can think of no reason why I should
deviate from this general rule.
[41].
Accordingly, I intend awarding costs in
favour of the plaintiff against the defendant.
Order
Accordingly,
judgment by default is granted in favour of the plaintiff against the
defendant for: -
(a)
Payment of the
sum of R2 455 345.31.
(b)
Payment of
interest on the said sum of R2 455 345.31 at the prescribed
legal rate from fourteen days from date of this
judgment to date of
final payment.
(c)
The defendant shall furnish the
plaintiff with a 100% undertaking in terms of section 17(4) (a) of
the Road Accident Fund Act, Act
56 of 1996 (‘the Act’),
to pay the costs of future accommodation of the plaintiff in a
hospital or nursing home, or
treatment of or rendering of a service
or supplying of goods to him, arising out of the injuries he
sustained in the motor vehicle
collision on the 8 June 2017, after
such costs have been incurred and upon proof thereof.
(d)
Payment of the plaintiff’s
costs of suit, including the reasonable costs of all medico-legal
reports and joint minutes obtained
by the plaintiff, and the
qualifying fees and court attendance fees of his expert witnesses.
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
11
th
and 12
th
August 2020 – the trial of this matter proceeded on
the 2 aforementioned days as a ‘virtual hearing’
in a
series of videoconferences on the
Zoom
digital platform
JUDGMENT DATE:
29
th
January 2021 –
judgment handed down electronically
FOR THE PLAINTIFF:
Mr Rudie Kok
INSTRUCTED BY:
Leon J J Van Rensburg
Attorneys, Rosebank, Johannesburg
FOR THE DEFENDANT:
No appearance
INSTRUCTED BY:
No appearance