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[2010] ZAGPPHC 578
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Mokatsane v RAF (38321/08) [2010] ZAGPPHC 578 (24 February 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: 38321/08
DATE: 24 FEBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
J A
MOKATSANE
........................................................................................................................
PLAINTIFF
Vs
RAF
..............................................................................................................................................
DEFENDANT
JUDGMENT
TOLMAY, J:
Plaintiff was
involved in an accident that occurred on 27 November 2006. she was
walking on the pavement when a motor vehicle mounted
the pavement,
coming at her from the front and crushed her legs against the shop
window.
She
suffered serious injuries
inter
alia
an
open fracture of the left tibia and fibula with grade 3 bone loss,
muscle loss and a degloving injury, a fracture of the right
tibia and
fibula. Nerve damage as a result of the injuries, including arterial
damage to the left leg. A filing defect within the
left main
pulmonary arterial in keeping with thrombus and whiplash injury to
the cervical and lumbar spine.
Plaintiff instituted
a claim for damages against the defendant. At the beginning of the
trial I was informed that the merits were
conceded and the parties
also reached an agreement on past medical expenses, in the amount of
R459 547-30. They also agreed that
an undertaking in terms of sec
17(4)(a) of the Act was given regarding future medical expenses.
Regarding general damages counsel
for both parties indicated that an
amount of R400 000-00 was reasonable under the circumstances.
The only remaining
dispute was future loss of earnings and earning capacity and the
applicable contingencies.
The report by the
orthopaedic surgeon and occupational therapist were handed in by
consent.
The plaintiff
testified that she has been working as a teacher at the Are-Ithokeng
Primary School for 17 years. She teaches grade
5 children in English
and Arts and Culture. Before the incident she also coached netball
and was a team manager during the athletics
season After the accident
and due to her injuries she is not able to coach netball or assist
with athletics any more.
Before the accident
she had no problem standing for the whole duration of a 30 minute
class. Now she has to sit down every 10 minutes
due to her injuries.
During evidence it was also clear that she cannot sit in the same
position for long periods of time and she
needs to stand up and shift
position often. She finds it difficult to teach from a sitting
position. She testified that as a result
of her having to teach from
a seated position she struggles to maintain discipline and to assist
the children who needs her help
effectively. In the Arts and Culture
classes she teaches music, drama, dance and the visual arts. After
the accident she is for
example no longer able to demonstrate dance
movements, which hampers her in her teaching.
She testified that
she cannot cope and have to rest between periods. She is often absent
from work, especially on cold and rainy
days as the pain is worse in
those weather conditions. She suffers from pain on a daily basis. She
loves teaching but find it now
frustrating as she is not capable of
maintaining the same standards as she used to.
She testified that
she would have worked towards promotion prior to the accident but due
to the deterioration in her ability to
perform she is not able to be
as productive as she used to be and cannot foresee any promotion
under these circumstances. There
are 33 teachers at her school and 4
Head of Department ("HOD”) positions.
Mrs Geneke the HOD
of the plaintiff testified that she knows plaintiff as they have been
working together since 1977. She testified
that plaintiff was a very
good teacher and did excellent work prior to the accident. Her work
has however deteriorated since the
accident. She does not partake in
extra mural activities due to her injuries, since the accident and is
often absent from work.
She has also noticed that plaintiff cannot
stand for long periods and needs to teach from a sitting position
which creates difficulty
in the effectiveness of her teaching and
maintenance of discipline. She confirmed that there is only 4 HOD
positions available
at the school. Three are now filled
The occupational
therapist testified that the plaintiffs ability to work has been
affected by the pain and discomfort she experiences
during activities
required by her work. She confirms that plaintiff also experiences
some limitation with regards to working in
a seated position.
She testified that
according to her, plaintiff is not coping and that a half day job
will be more suitable in her specific situation.
She also testified
that due to the symptoms caused by her injury plaintiff will also
experience problems in related employment
in clerical and
administrative positions. Therapy could improve her symptoms but she
will still only be able to maintain a half
day job. Plaintiff is not
receiving therapy at present due to a lack of funds.
Mr Stephan van
Huyssteen an industrial psychologist testified that it is possible
that plaintiff will continue to earn an income
as a full time
teacher, but it will become increasingly difficult for her to work in
a full time capacity. Although it is probable
that plaintiff will be
offered part time employment it is possible that the poorer quality
of her teaching due to her not being
able to stand and teach could
negatively impact on schools’ willingness to offer her part
time work. If plaintiff should
work part time her salary would be
between 30% and 50% of a full time teacher’s remuneration.
He further testified
that there is a small possibility that plaintiff will obtain and
sustain part time clerical work in the open
labour market. Due to her
age, lack of clerical work experience it will make it difficult for
her to obtain work. She will be competing
with younger, able bodied
candidates who will also probably be better qualified than her.
He is of the opinion
that plaintiff will in 5 years time in all probability be in a part
time teaching job.
The actuarial report
was handed in by consent between the parties. Mr Dredge argued that I
should award the loss of income based
on a 20% contingency as set out
in Basis (A)ii of the actuary’s report which amounts to R1 474
329-00. Ms Pauer argued that
I should apply a 15% contingency as set
out in Basis A(i) which amounts to R1 378 184-00. I set out the
relevant calculations as
done by the actuary hereunder:
BASIS
A(l)
........................................
BASIS
A(ii)
Income
of accident did not occur
R
3 347 937
.......................................
R
3 347 937
Minus
contingency
334
794
..............................................
334
794
3
013 143
_
3
013 143
Income
given accident did occur
1
923 517
…....................................
1
923 517
Minus
contingency
288
528
............................................
384
703
1
634 989
_
1
538 814
Loss of income
1 378
154
...............................................
1
474 329
In the light of the
evidence specifically the nature of plaintiff’s injuries and
the impact it had on her ability to teach,
the fact that she probably
will not be able to maintain of full time job for more than 5 years,
the limitations she will encounter
in getting a part time job, I
exercise my discretion and award the amount of R1 474 329-99 as
future loss of earnings as set out
in Basis A(ii) of the
calculations.
In the light of the
parties’ concessions past medical expenses in the amount of
R459 574-30 and general damages in the amount
of R400 000-00 should
be added to the amount of R1 474 329-99 awarded as future loss of
earnings.
Consequently I make
the following order:
1.1 The defendant
will pay to the plaintiff the sum of R2 333 904-20;
1.2 The aforesaid
amount will bear interest at the rate of 15.5% per annum from date of
judgment if it is not paid within 14 days
after date of judgment.
2. The defendant
will provide the plaintiff with an undertaking in terms of the
provisions of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of
1996
in respect of future accommodation of the plaintiff in a
hospital or nursing home for treatment of or the rendering of a
service
or supplying of goods to her, to compensate the plaintiff in
respect of the said costs, after the costs have been incurred and on
tendering of proof thereof, in respect of the injuries sustained, in
the motor vehicle collision on 27 November 2006.
3.
The
defendant will pay the plaintiff’s taxed or agreed party and
party costs which costs shall include but not limited to:
3.1 The reasonable
or taxable costs of the reports of the expert witnesses of whom the
plaintiff gave notice in terms of the provisions
of
Rule 36(9)(a)
and
(b);
0.9
8in; border: none; padding: 0in; font-style: normal; font-weight: normal; line-height: 150%">
3.2 The reasonable
and taxable consultation, preparation, reservation and qualifying
fees, if any, of the following witnesses, who
are declared necessary
witnesses;
3.2.1 Constable
Geel;
3.2.2 Mrs Geneke
3.4 Costs of
senior/junior counsel.
4. The amounts
stipulated in paragraphs 1 and 3 here above, shall be paid into the
trust account of the plaintiff’s attorney,
the details of which
are:
Waks Silent Inc
Standard Bank
Klerksdorp
Account number:
0[...]
Type of account:
Cheque
Branch code:
0[...]
R G TOLMAY
JUDGE OF THE HIGH
COURT
JOALANE AGNES
MOKATSANE
VS
RAF
CASE NO: 1515/08
ATTORNEYS FOR
PLAINTIFF
WAKS SILENT & GEACH
ATTORNEYS ATTORNEYS
143 CHARLES STREET
BROOKLYN
PRETORIA
(Mrs GEACH)
FOR DEFENDANT:
MAPONYA INCORPORATED
950 PRETORIUS STREET
ARCADIA
(Mrs B RANGATA)
DATE OF TRIAL: 11
February 2010
DATE OF JUDGMENT. 24
FEBRUARY 2010
JUDGE: TOLMAY RG