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[2011] ZAGPPHC 158
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Munnik v Road Accident Fund (75621/2009) [2011] ZAGPPHC 158 (30 May 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 75621/2009
DATE:30/05/2011
In
the matter between:
A
M
MUNNIK
....................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
............................................................................................
Defendant
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
(1.1)
This is a RAF matter which only pertains to quantum.
(1.2)
The merits (100 percent) have been conceded by the Defendant.
(1.3)
This is a brief judgment per arrangement with counsel and at a later
stage more comprehensive reasons will be supplied if
so requested.
(1.4)
The parties have agreed not to call any witnesses, but only make
submissions based on and pertaining to the Plaintiff's expert
reports
- bundle B. (The Defendant file no expert reports).
(1.5)
The agreement [paragraph (1.4) above] is contained in exhibit C1 and
Exhibit C2 of which the relevant portion reads as follows:
"It is agreed that:
1. The Defendant
concedes the merits of the action in totality.
2. The Defendant accepts
the content of all the Plaintiff's expert reports of which notice
were given by the Plaintiff in terms
of Rule 36(9)(a) and 36(9)(b),
both with regards to facts therein and the opinions therein expressed
as true and correct.
3.The parties agree it is
not necessary to call the expert witnesses to proof any of the
content of the expert reports. Argument
will be based on the expert
reports insofar as it pertains to the contents of the expert
reports."
[2] EXPERT REPORTS -
BUNDLE B: (2.1)
General:
2.1.1 Plaintiff filed 5
expert reports. NOTE:
2.1.2
On page 80(2)(b) [BUNDLE B] the retirement date is indicated as 54
years. It is common cause that it should be 65 years. A
fresh
calculation based upon this factor was prepared by the auctiary and
handed in (exhibit C3) and accepted by the Defendant
as to the
calculations.
2.1.3 It is common cause
that the Plaintiff (subject to theafore said agreement and draft
order X) has to prove her case as to:
(a) Loss of future
earnings / earning capacity;
(b)
General damages.
2.1.4
The reports are as follows:
No.
_____________
Document
.........................
Page
1.
DrJJ Viljoen 1-15
Neurosurgeon
Report
dated 3 April 2008
~2. Dr AH van den Bout 16-45
Orthopaedic
Surgeon
Report
dated 27 January 2010
3. Abida Adroos 46 - 70
Occupational
Therapist
Report
dated 28 March 2011
4. Christa du Toit 71 -84
Industrial
Psychologist
Report
dated 21 January 2011
5. Wellsfaber Human & Morris 85 -
91
Consulting
Actuaries
Report
dated 28 April 2011
(2.2)
Dr J.J. Viljoen
2.2.1 '
:
p2-1
HUIDIGE KLA G TES:
Sedert die ongeluk het sy
feitlik konstant nekpyn. Dit wissel egter in intensiteit Hiermee
geassosieerd het sy dan nekspierspasma
en geassosieerde hoofpyn".
(My emphasis)
2.2.2 "p3. - 2. Pyn
in die regter heup area:
Sedert die ongeluk het sy
pyn in die regter gluteale area wat soms na mediaal en haar lae rug
versprei".
(My
emphasis)
2.2.3 "p3 - 1.1.4
Affek en assosiasie:
Sy
het 'n probleem na die ongeluk deurdat sy baie angstig en gespanne
is. Sy sal verkies om nie motor te bestuur nie as gevolg van
die
motor ongeluk waarin sy was. Sy sukkel ook om te slaap." (My
emphasis)
2.2.4
"p6 - KLINIESE ONDERSOEK:
1. Neurologies:
1.1 Hoer geestesfunksies:
Ek kon geen abnormaliteit
demonstreer wat haar lang- en korttermyn geheue, rekenkundige vermoe
en algemene kennis aanbetref nie."
Sy was egter erg
gespanne.
(My emphasis)
1.2 Kraniaal senuwees:
Haar eerste tot twaalfde
kraniaal senuwees wat intakt en dundoskopies en kon geen tekens van
verhoogde intrakraiale druk
waargeneem word nie".
(My emphasis)
2.2.5
"pi - Regter heup:
Met eksterne rotasie het
sy pyn ondervind en
sy
was drukteer oor die regter groter trochanter." (My emphasis)
2.2.6
"p8 - SWEEPSLA G BESERING VAN DIE NEK:
Die pasient het tipiese
simptome en tekens van 'n sweepslag besering van die nek wat insluit
kroniese herhalende
hoofpvn, nekpvn
en
nekspierspasma
geassosieerd met drukteerheid en paravertebrale spiersapsma met
kliniese ondersoek." (My emphasis)
2.2.1 "p12 - EFFEK
OP PASIeNT SE LEWENS VERWA G TING:
Hierdie ongeluk het geen
direkte effek op die pasient se lewensverwagting nie."
(My
emphasis)
2.2.8 "p14 -
ARBEIDSONGESKIKTHEID:
Volgens Kessler is die
arbeidsongeskiktheid vir 'n een vlak fermenotomie en fusie 15 percent
en vir twee of meer vlakke is dit 25
percent.
2.2.9 "p14 -
VERVROEGDE AFTREDE:
In die lig van die feit
dat daar steeds 'n kroniese degeneratiewe proses in die servikale en
limbale area is en die moontlikheid
bestaan dat sy chirurgie mag
ondergaan, stel ek 'n vervroegde aftrede van drie tot vyfjaar daar."
(My emphasis)
(2
3) Dr A.H. Van den Bout
2.4.2 -p23
"She
has pain to the right shoulder, especially to the back side of the
shoulder, but not to the left".
2.4.3
-p24
"The
patient complains of her lower back, especially on the right hand
side that radiates down to her buttock and causes a
lame feeling in
her upper leg.". (My emphasis)
2.4.4
-p26
"It is quite clear
that this patient still faces operations and that her whole perso9n
impairment and by that, disability will
increase as time goes on.".
2.4.5
~p28
"LOSS OF ENJOYMENT
OF LIFE
The
patient loved swimming, gymnastics and like to jog. At the moment she
cannot participate in any of these activities as she has
too much
discomfort of her neck and lower back. She also participated in
singing and was even busy with production of her own CD.
The
recording was done in Pretoria and the patient was not able to
continue with this because of her injuries and her fear of driving.
She had to give this up."
(My
emphasis)
2.4.6 -p28
"it
is therefore dear that the patient's situation worsened in the time
span between then and now.".
2.4.7 -p39
"The patient had
some pain and suffering physically
but
also emotionally which was also mentioned by Dr Viljoen."
(My
emphasis)
(2.4)
Abida Adroos
2.4.1 -p56
"13.4 WORK
COMPETENCE
•
Ms Munnik grasps
physical concepts easily. She is able to work independently on tasks.
•
Quality and
accuracy of work diminishes as the task progresses due to increased
pain and sensory symptoms in her upper limbs especially
when she has
to work with her arms in an overhead position."
2.4.2 -p60
"Upon her return to
work, her job description remained the same. Two months later she
became the management representative.
There was no delay in this
arrangement as a result of the accident."
(My
emphasis)
(2.5)
Christa du Toit (Counselling and Industrial Psychologist)
2.5.1 -p73
"Ms
Munnik's plan prior to the accident was to record a CD. She no longer
drives after the accident and due to the injuries
she sustained."
2.5.2
-p73
"7. SPORTING
ACTIVITIES AND HOBBIES
Ms Munnik does
gymnastics, swimming and singing; pre- and post-accident" (My
emphasis)
"Regarding her work
performance pre-accident, Mr Botha described Ms Munnik as "op en
wakker", as well as open, friendly
and helpful. He added that Ms
Munniks' work execution was "perfek" and that she was the
type of person who would climb
into a truck and accompany
Investigators on the road for roadworthiness testing. Post-accident
however, she cannot even climb into
a truck due to her hip or sit in
front of a computer for extended periods of time due to headaches,
neck- and hip pain, as well
as problems with her eyesight. In this
regard, Mr Botha mentioned that the accident had a significant impact
on Ms Munnik's work."
(My emphasis)
[3]
AD: PLAINTIFF'S CASE:
(3.1) At the outset Mr
Vermeulen (on behalf of the Plaintiff) made it clear that the case
was not conducted on the basis that the
Plaintiff is not able to
work, but on the basis that her capability and work capacity have
been impaired.
(3.2) Consequently, he
submitted that an order should be made based and as per exhibit C4
being the summary of the calculations
which reads as follows:
"A
FUTURE LOSS
UNINJURED
…..........
INJURED
R3 071
786-00.
...............................................
R1
633 202-00
-15
percent
R460 767-90
.................
-30
percent
R483 960-60
R2
611 018-10
.......................................................
R1
143 241-40
BALANCE
…
..........................
R2
611 018-10
….........................
-R1
143 241-40
Total loss:
…..........
R1
467 776-70
B. Sick
Leave
...............................................................
R11
707-00
C.
Generals
..................................................................
R190
000-00
D. Past
meds
....................................................
R1
216-00
Total
damages
..................................................
R1 670 699-70
(3.3) Mr Vermeulen refer
to various authorities as per inter alia neck injuries:
[4]
DEFENDANT'S CASE:
(4.1) The Defendant
submits that any loss of income derived (if any) from the musical
activities of the Defendant have not been
proven neither any quantum
in this regard.
(4.2) It has further been
submitted that the pain in the buttock derived from the pain in the
neck.
(4.3) Mr Westebaar then
submitted that an award should be made in terms of exhibit C5 which
inter alia reads as follows:
"DEFENDANT'S
CALCULATION:
1.
BUT FOR ACCIDENT:
R3
071 786
Less
20 percent contingency
R2
457 428-80
R2 457 428-80 Less R1 633
202-00 = R614 357-20
2. GENERAL DAMAGES:
R120 000-00 TOTAL: R734
357-20"
[5]
DISCUSSION:
(5.1)
The amount for sick leave (R11 707,00) and the amount for past
medical expenses (R1 216,00) have been agreed between the parties.
In
fact, even/thing has been agreed on except:
5.1.1
Loss of earnings, more particularly earning capacity, consisting of:
(a) income derived from
music;
(b)
work capacity / possible promotion; and 5.1.2 general damages.
(5.2)
What I find peculiar:
5.2.1
5 December 2009 - original particulars of claim:
(a)
Paragraphs 9.3 and 9.4 read as follows:
"9.3
LOSS OF
EARNINGS I EARNING CAPACITY:
At the time of the
collision, the Plaintiff worked as a NA TIS official. She is able to
continue to work in her current position,
but with certain
limitations. She will be off work from time to time in the future
when undergoing medical treatment, and will
therefore suffer a loss
of earnings/earning capacity.
She will have to adapt
her working conditions to her injuries and may have to work in a half
day position and even retire earlier.
[An estimated loss of earnings
of R200 000,00 has been claimed. ]
9.4
GENERAL DAMAGES:
General damages in
respect of pain, suffering, discomfort, loss of amenities, shock and
psychological trauma, permanent disability
and scaring.
It
is not practical to apportion specific amounts to the heads of
damages claimed." [An amount of R200, 000 has been claimed]
(b) Not a word is
mentioned pertaining to the income derived from any music activities,
in fact not even referred to as a hobby;
5.2.2
27 January 2010 - report by Dr Van den Bout
:
(a) He refers to her
music and the possible income in this regard.
5.2.3
9 September 2010
- notice to amend the particulars of
claim:
(a) It is word for word
the same as the original particulars of claim except that the loss of
earnings went up to R400 000,00 and
the general damages to R300
000,00. This is despite the reference (paragraph 5.2 above) of the
report by Dr Van den Bout as to
the music activities of the
Plaintiff.
5.2.4 Great emphasis has
been placed on the Plaintiff being incapable to drive her motor
vehicle to musical venues.
5.2.5From the r eport it
is clear that she "enjoys her work". It is difficult to
comprehend how she could enjoy her work
if she is hampered and
constantly in pain.
5.2.6 It is very strange
that if the music was such an important activity and/or hobby and
income has been derived from the music
activities that it was not
mentioned to either the attorney or mentioned to or by Dr Viljoen.
5.2.7 The fact of the
matter is that I have to accept that there were music activities from
which an income was and could be derived
in the light of the
agreement between the parties but at the end of the day the Plaintiff
still has to convince me as to the quantum
thereof.
(5.3) There is no doubt
that the Plaintiff suffered neck and some back injuries and pain and
suffering in this regard.
(5.4) As for the music
activities of the Plaintiff I have not been persuaded as to the fact
that any quantum in this regard has
been proven, neither have any
particulars or detail in this regard been supplied.
(5.5) As to the possible
loss of earning capacity there is a strong case being made out by the
Plaintiff in this regard.
(5.6) However, it is not
practical to apportioned specific amounts as to pain and suffering,
loss of amenities and loss of earning
capacity.
(5.7)In view of the
aforesaid, the following components are awarded:
5.7.1 Sick
leave:
...........................................................................
R11707(agreed)
5.7.2
Past medical
expenses:
......................................................
R1
216 (agreed)
5.73 General damages which includes pain and
suffering, discomfort,
shock,
trauma and loss of earning capacity (future loss of
earnings):
..................................................................................
R800,000
Total:
….....................................................................................
R812
913
[6]
In the result I make the following order:
"The draft order
marked "X" where the amount of R812 913 is inserted in
paragraph"
1 is made an order of Court."
Date
of hearing:12 May 2011
Date
of Judgment:30 May 2011
On
behalf of the Plaintiff: ADV P VERMEULEN
…
.....................................
SAVAGE
JOOSTE & ADAMS INC.
…
......................................
Attorneys
for Plaintiff
…
......................................
141
Boshoff Street
…
.......................................
Nieuw
Muckleneuk
…
......................................
Pretoria
…
......................................
DX
58, Pretoria
…
......................................
PO
Box 745, Pretoria, 0001
…
.....................................
Tel:
012 452 8200
…
....................................
Fax:
012 452 8250
…
....................................
Ref:
Mr Hayes/CE/RP2297
On
behalf of the Defendant ADV D WESTEBAAR
…
...........................................
AP
LEDWANA INC.
Attorneys
for Defendant
…....
867 Church
Street Arcadia Pretoria
…
...........................................
Ref:
Mr Phaleng/FS/RAF17426