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[2010] ZAECPEHC 19
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De Bruin v Road Accident Fund (2056/2008) [2010] ZAECPEHC 19 (11 May 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
Case
No.: 2056/2008
Date
heard: 2 February 2010
Date
delivered: 11 May 2010
In the matter between:
JACOBUS
FREDERICK DE BRUIN
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
J U D G M E N T O N Q U A N
T U M
DAMBUZA,
J
:
On 2 May 2005 the
plaintiff was the dri
ver
of the insured vehicle when the insured vehicle, whilst stationary,
was struck from behind by another vehicle in Uitenhage.
As a result
of that collision the plaintiff sustained neck and back injuries. He
now claims damages from the Road Accident Fund
(“the Fund”),
in terms of the Road Accident Fund Act, Act 56 of 1996 (“the
Act”) for the injuries he
sustained in the collision. The
matter comes before me only for determination of quantum, the
defendant having conceded liability
for the damages sustained by the
plaintiff in the collision. At the start of the proceedings counsel
brought to my attention
that the parties had agreed on the quantum
for the plaintiff’s past medical expenses and that the Fund
has undertaken to
furnish to the plaintiff a certificate, in terms
of section 17(4) of the Act, in respect of future expenses relating
to the injuries
sustained by the him in the collision. The issues
before me therefore are the plaintiff’s loss of earnings (past
and future)
and general damages suffered by the plaintiff as a
result of the accident.
The record reveals
that
on
the day following that of the collision, the plaintiff visited his
General Practitioner, Dr Steenkamp who compiled a statutory
medical
report relating to the injuries sustained by the plaintiff as
required by the Act. According to Dr Steenkamp, the plaintiff
had
sustained “minor” neck and back injuries, more
particularly, a “whiplash injury to cervical spine with
no
nerve involvement and soft tissue injury to his back and lumbar
region”. The plaintiff received “conservative”
medical management. A radiographic examination of the cervical spine
was “unremarkable”. He was referred for physiotherapy
which he attended for three to four months.
Dr Basil
Mackenzie, an Orthopaedic Surgeon consulted with the plaintiff on 18
April 2008
(almost three years after the accident) and prepared a medico-legal
report on the injuries sustained by him in the accident.
Both
parties consented to this report being handed to me. In the
medico-legal report Dr Mackenzie states that as a result of
the
accident the plaintiff sustained moderately severe lower back and
neck soft tissue injuries. He opines that the plaintiff
probably did
not sustain any direct trauma to his cervical and lumbar discs,
facet joints or vertebrae and that he will not develop
degenerative
changes in his cervical and/or lumbo-sacral discs any more rapidly
than he would have, had he not met with the accident.
Therefore the
likelihood that the plaintiff will require surgery as treatment for
the accident related injuries is remote (less
than 3%).
Because the pain
had persisted beyond two years at the time of the consultation,
Dr
Mackenzie deemed it unlikely that the symptoms experienced by the
plaintiff will resolve spontaneously. On the other hand they
are not
likely to become significantly more intrusive. The result is that
the plaintiff will require long term, predominantly
non-operative
treatment, including analgesics, physiotherapy and counselling on
self care of his neck and lower back.
Dr Mack
enzie
confirms Dr Steenkamp’s diagnosis of the neck injury as a
“whiplash” and remarks that the association
of the
cervical soft tissue injury with lower back pain is typical. He
notes however, that the plaintiff’s complaints and
clinical
signs at the time of the consultation were entirely subjective and
that no measurable clinical abnormalities (e.g. limitation
of
movement or deformities) were found on examination.
When the plaintiff
consulted with Dr Ma
ckenzie
he was working for Bowman Cranes having left Continental Tyre where
he had worked as a tyre builder at the time of the
accident. Dr
Mackenzie views as reasonable, that the plaintiff sought an
alternative job involving less physically demanding
activity. He
concludes that the plaintiff is 5% impaired; that being the extent
to which his capacity to manage common activities
of daily living
have been compromised. According to Dr Mackenzie, generally people
with 5% impairment due to a spinal problem
are capable of “medium
work” (according to the guidelines proposed by the United
States Department of Labour) which
he compared to exerting 9kg to
22kg of force occasionally or 4.5kg to 11kg more frequently or
greater than negligible forces
up to 4.5kg constantly (two thirds or
more of time on duty) to move objects. Dr Mackenzie is of the view
that the plaintiff’s
duties at Bowman Cranes entailed “medium
work” which he could do to normal retirement age. It would not
be in the
plaintiff’s interests, however, according to Dr
Mackenzie, to resume “heavy work” (which he compared to
exerting
22kg to 45kg of force
occasionally
or 9kg to 22kg of force frequently or 4.5 to 9kg of force
constantly
).
The plaintiff is further precluded from taking part in heavy weight
leisure activities and impact sports such as rugby.
The
26
year old plaintiff testified that at the time of the accident he was
employed as a tyre builder at Continental Tyre. His specific
duties
involved assembling of tyre components onto a tyre manufacturing
machine and removal of a complete or whole tyre from
the machine and
placing thereof on a skid. The weight of the tyres ranged from 19 to
21kg each. He would repeat the process about
200 or 300 times a day.
The plaintiff testified that he went
up to matric at school. Prior to the accident he was healthy and
fit. He played rugby and
cricket at club level. He would train
during the week and play matches over week-ends. After the accident
he never resumed his
sporting activities.
Following the
accident the plaintiff was
off
from work for a week. Thereafter he returned to work and continued
with his duties as before. His evidence was that because
of
problems resulting from his back injuries he had difficulties in
coping with his job and ultimately resigned from Continental
Tyre in
February 2008. A schedule of instances of sick leave taken by the
plaintiff whilst still in the employ of Continental
Tyre is part of
the record. The schedule reveals that on 3 May 2005, 4 April 2006,
24 April 2007, 31 May 2007, 1 June 2007, 27,
September 2007, 30 to
31 January 2008 and
1 February 2008 on 3 May 2005, 4 April 2006,
24 April 2007, 31 May 2007,
1 June 2007, 27, September 2007, 30
to 31 January 2008 and 1 February 2008 the plaintiff was absent from
work as a result of
“backache and/or MVA-back injury”.
After
leaving Continental Tyre the plaintiff secured employment as a sales
representative with Bowman Cranes, a company selling truck
mounted
cranes. His duties at Bowman Cranes were less demanding on him
physically than the work he did at Continental Tyre, but
entailed
relatively long hours of driving. His evidence was that his back
continued to give him problems as he would experience
pain and
stiffness of his lower back after long hours of driving.
Loss of Income
During the trial
i
t
is common cause that the salary which the plaintiff earned at Bowman
Cranes (a basic salary of R5,500.00
per
month
plus cell phone allowance) was lower than what he received at
Continental Tyre (R1,684.00
per
week
,
annual bonus, contributions to a provident fund and medical aid). It
was also not in dispute that had the plaintiff remained
at
Continental Tyre, his salary would have, on 1 July 2008, increased
by 8%.
Mr Da
la
who appeared on behalf of the fund submitted that the plaintiff had
failed to prove that he had suffered loss of income as a
result of
the injuries sustained by him in the accident. This submission is
based on the comment by Dr Mackenzie that “no
objectively
measurable clinical abnormalities were noted, for example,
limitation of movements, deformities, etc.”. The
plaintiff had
complained to Dr Mackenzie of lower back pain which was most
intrusive when he rose from bed in the early mornings
and when he
was obliged to sit for long periods. These were still the
plaintiff’s main complaints at the time of the trial.
I do not
think
that objectively measurable clinical abnormalities are the only
proof
that
the plaintiff sustained injuries which resulted in loss of income.
Nothing in Dr Mackenzie’s report suggests that he
doubted the
veracity of the plaintiff’s complaints. On the contrary, and
as I have stated Dr Mackenzie’s view is
that the plaintiff
should not revert to doing heavy work. I am satisfied that as a
result of the injuries sustained in the accident
the plaintiff had
to downscale the strength of physical activities that he engaged in.
The issue then becomes whether he should
have done something or more
than he says he did to persuade his employer to place him on other
duties.
Brian Brokenshaw
who was
a
Product Manager in charge of the department in which the plaintiff
worked at Continental Tyre at the time of the accident testified
on
behalf of the Fund. His description of the plaintiff’s duties
was that they involved repeated moving and/or lifting
weights of, at
least 12kg at a time for two thirds of the plaintiff’s working
time. He testified further that he had explained
to his team at
Continental Tyre that if anyone had difficulties in coping with his
duties, arrangements could be made that his
duties be altered in
line with his or her capabilities. Consequently, had the plaintiff
reported that he was experiencing difficulties
as a result of the
injuries he had sustained in the accident, arrangements would
probably have been made for him to be placed
on different duties. He
would therefore not have lost any income. Further, according to
Brokenshaw when the plaintiff resigned
from Continental Tyre, he
(Brokenshaw) inquired from him as to the reason for his resignation
and the plaintiff told him that
he sought employment where, unlike
Continental Tyre, he would only work day shift. This point is also
alluded to by Erica Pretorius,
a managing member at Bowman Cranes,
who also testified that when the plaintiff applied for employment at
Bowman Cranes, he gave,
as his reason for leaving Continental Tyre,
the fact that he only wanted to work day shift.
But I do not think
the fact that the plaintiff told Brokenshaw and Pretorius that he
wanted to avoid working night shift negates
the fact that he had
sustained injuries which rendered it undesirable for him to do heavy
work. The plaintiff admitted that he
never told Brokenshaw the true
reason for his resignation as he did not want to “burn his
bridges”. As to whether
the plaintiff would have been placed
on alternative duties at Continental Tyre, it was the plaintiff’s
undisputed evidence
that he had alerted his immediate supervisor to
his plight and the response was that because the injuries were not
sustained
in the course of his duties with Continental Tyre, no
assistance could be afforded to him. It is evident that the
plaintiff never
hid the fact that he had been involved in an
accident and that he was suffering from recurrent backache as a
result thereof.
It was common cause during the trial that the
schedule which I referred to earlier as setting out instances of his
absence from
work was part of records at Continental Tyre pertaining
to the plaintiff. It seems to me that his immediate supervisors must
have had access thereto as they would have had to inquire as to why
he was not at work on a particular day. Incidentally, on his
own
evidence, until shortly before giving evidence, Brokenshaw had not
even been aware that the plaintiff had been involved in
the accident
under consideration. At the time of trial he was also not aware that
the plaintiff had had to take time off from
work as a result of the
injuries relating to the collision.
It is, in my view
improbable that the plaintiff would have chosen to work for Bowman
Crane where he earned less than he did at
Continental Tyre, if he
could have stayed on at Continental Tyre. Further, Brokenshaw was
evasive on the issue of whether the
plaintiff’s income would
have remained the same if his duties at Continental Tyre had
changed. In response to a question
on this issue he explained at
length the procedure that an employee has to go through after the
exhaustion of the 10 day annual
sick leave which includes a
counselling session and an incapacity inquiry to determine whether
an employee is temporarily or
permanently disabled. And he could
only support his assertions by quoting an example of an employee who
was injured on duty and
was still employed at Continental Tyre in a
different capacity.
I am satisfied
that
it was not unreasonable for the plaintiff to seek alternative
employment in the circumstances.
At the time of
the trial the plaintiff had left Bowman Cranes, had worked for
Planet Fitness for three months, and thereafter took up employment
with Security Management Solutions as a sales representative. The
evidence was that he was dismissed at Bowman Cranes following
a
disciplinary enquiry in which he had pleaded guilty to the charges.
I agree that he was the cause of his own misfortune of
not earning
an income during January and February 2009. Even if, but for the
accident, he would not have left Continental Tyre
and therefore
would not have been the subject of a disciplinary inquiry, as
submitted on his behalf, the cause for his loss of
income during
these months was a fact which was not linked to the accident. I am
not persuaded that the Fund is liable in this
regard.
Further
evidence was that although the plaintiff still earned less at
Security Management Solutions than he would have earned at
Continental
Tyre, there were good prospects of promotion and it was
anticipated that in about three years his salary would catch up with
what it would have been at Continental Tyre. At the time of the
trial the plaintiff earned a basic salary of R5,700.00 at Risk
Management Solutions, that being about R3,100.00 per month less than
he would have earned at Continental Tyre.
In
summary,
the plaintiff’s claim for loss of income relates to the period
from when he left Continental Tyre up to 2013 (three
years from the
time of the trial). The claim is calculated as follows:
During the
period that the plaintiff was
employed at Bowman Cranes (calculated as a portion of his annual
package of R25 000,00)
R20
,833.00
January
– February 2009 (unemployed)
R
17,636.00
March
– December 2009 (Planet Fitness)
R40
,000.00
January – March 2010
(Security
Management Solutions
)
R9
,300.00
Past
loss of earnings
R87
,769.00
On my finding that
the Fund is not liable to compensate the plaintiff for the period of
January and February 2009, the amount
of R17
,636.00
falls to be deducted from the plaintiff’s claim, bringing the
total to R70,133.00. Both parties were in agreement
that a
contingency factor of 5% be applied to the plaintiff’s past
loss of income, thus bringing the plaintiff’s
claim to
R66,626.35.
The plaintiff’s
claim for future loss of income (April 2010 – March 2013 with
Security Management Solutions) is
R111
,600.00.
Although no evidence was led as to the rate or stages at which this
deficit in the plaintiff’s salary will decrease
in the next
three years to ultimately match what it would have been at
Continental Tyre, the amount claimed by the plaintiff
as future loss
of earnings was not disputed.
Mr
Schubart
submitted that a 10% contingency deduction be applied to this
amount. I can find no reason why the usual contingency factor of
15%
should not apply to the so called ‘normal contingencies’.
1
This brings the plaintiff’s claim for future loss of
earnings to R94,860.00.
General Damages
I
have already referred to the injuries sustained by the plaintiff and
the
sequelae
thereto.
Counsel referred me to a number of decisions wherein awards were
made for general damages relating to whiplash injuries.
2
I have considered these cases and do not deem it necessary to set
out the details of each matter. In comparison with some of
them (see
for example;
Smit
v Road Accident Fund
[2006] ZASCA 15
;
2006
(4) SA 590
SCA; C&H at C3-193) the plaintiff in this matter does
not experience constant or recurrent headaches, neck or backaches.
3
As I have already stated, he only experiences pain after long hours
of maintaining the same position (e.g. driving). On the
other hand
he, at 22 years old at the time of the accident, was younger than
the plaintiffs in the cases to which I have been
referred. His
participation in sports was curtailed at an early age. My view is
that an award of R70,000.00 as general damages
is reasonable.
Medical Expenses
The
plaintiff claims an amount of R
1,619.35
as past medical expenses. I did not understand this amount to be
disputed by the Fund.
In
view of the undertaking made by the Fund in terms of section 17 of
the Act, the plaintiff’s claim of R239
,500.00
for future medical expenses falls away.
Damages to be awarded to
the plaintiff are therefore calculated as follows:
Past
Medical expenses
R1
,619.35
Loss
of earnings (R66
,626.35
+ R94,860.00)
R161
,486.35
General
Damages
R70
,000.00
R233
,105.70
Consequently the defendant is ordered
to :
(a) Pay to the
plaintiff an amount of R233,105.70 as and for damages;
(b) Pay interest on
the said amount at the legal rate as from 14 days from the date of
this judgment until the date of payment;
(c)
Furnish
the plaintiff with an Undertaking in terms of Section 17 of the Road
Accident Fund Act, Act 56 of 1996;
(d)
Pay
the plaintiff’s costs of suit with interest thereon at the
legal rate as from 14 days from the date of taxation; such
costs
shall include the qualifying costs of Dr Basil Mackenzie.
___________________
______
N DAMBUZA
JUDGE OF THE HIGH COURT
Plaintiff’s
Counsel: Adv L. Schubart
Plaintiff’s
Attorneys: Roelofse Meyer
29 Bird Street
Central
PORT ELIZABETH
Defendant’s Counsel: Adv I.
Dala
Defendant’s Attorneys: Boqwana
Loon & Connellan
4 Cape Road
PORT ELIZBETH
Heard on: 2 February 2010
Delivered on: 11 May 2010
1
The
Qantum Yearbook 2010
;
Robert Koch
;
at
102
2
Norman v
Santam Insurance Limited
reported
in Volume 4 of
Corbett
and Honey
,
The Quantum of Damages in Bodily And Fatal Injury Cases, C3-74;
Griffiths
v Mutual and Federal Insurance Company Limited
;
Corbett
and Honey
Vol
4 at
C3-33;
Jacobs
v Padongellukefonds
;
Corbett
and Honey
Vol 5 at C3-131;
Road
Accident Fund v Tooley
,
Corbett
and Honey
;
Vol 5 at C3-164.
3
See also
Barton
v Road Accident Fund
2002
(5) C&H; at C4-19C;