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[2010] ZAECPEHC 43
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Van Rooyen v Road Accident Fund (1615/2008) [2010] ZAECPEHC 43 (6 July 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
Case
No.: 1615/2008
Date
heard:
25 March 2010
Date
delivered: 06 July 2010
In the matter between:
HEINRICH
OTTO VAN ROOYEN
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
:
The plaintiff in this case claims
damages against the defendant (“the Road Accident Fund”
or “the Fund”)
for injuries sustained by him in a motor
vehicle collision in Uitenhage on 7 July 2005. The Fund has
conceded liability for
all the damages suffered by the plaintiff.
The matter only came before me for determination of quantum.
The plaintiff is a 42 year old man
who was, at the time of the collision, employed by Telkom in
Uitenhage as a technician. He
had been employed by Telkom for 20
years, since he finished school. His duties involved installation
and programming of telephone
systems in big businesses and entailed
carrying heavy toolboxes, cables, batteries and other equipment.
He often had to climb
onto roofs of the buildings wherein he would
be installing or programming the telephone systems.
On the day of the accident he was
driving a light delivery vehicle belonging to Eskom. Whilst
stationary at a stop street, another
vehicle (the insured vehicle)
collided with his vehicle from the back and thereafter sped off.
The plaintiff sustained a
“musculo-ligamentous” sprain injury to his lower back.
This injury eventually rendered him
incapable of performing his
duties at Telkom and he was medically boarded in December 2006. In
February 2009 he again secured
employment as a Sheriff in Uitenhage.
In the summons he claims for damages suffered by him for past
medical expenses, future
medical expenses, loss of earnings (past
and future) and general damages.
Past medical expenses
When the matter came before me the
parties had already agreed on past medical expenses of R3,318.17
which had already been paid
by the Compensation Commissioner.
Future Medical expenses and
treatment.
The defendant gave an undertaking
that it will furnish an Undertaking in terms of the Provisions of
Section 17(4) of the Road
Accident Fund Act, Act 56 of 1996 (“the
Act”).
Past loss of earnings
At the time of the collision the
plaintiff earned an income of R13,097.53 per month together with an
annual bonus equivalent to
one month’s salary and a
contribution of 7.5% of his basic salary towards a retirement fund.
After he was medically boarded,
he received a nett lump sum payment
of R317,789.00 and from January 2007 he received pension payment of
R4,195.62 per month which,
by the time of the trial, had increased
to R5,280.00 per month. Presently he earns an average monthly income
of R4,732.70 from
his employment at the office of the Sheriff.
The position occupied by the
plaintiff at Telkom at the time of the collision is/was known as
level C-2 position. He was 37 years
at the time of the collision. He
testified that he had hoped that at about 42 years he would be
promoted to a C-3 level job which
would have meant that his duties
would be more supervisory. His salary, once promoted, would have
been about R295,000.00 per
annum. He had, prior to the collision,
acted as a supervisor for about seven to nine months. According to a
Joint Minute prepared
by Industrial Psychologists Drs Heinrich Otto
Van Daalen and Richard Holmes and handed in by agreement, the
promotion anticipated
by the plaintiff would have been reasonable.
The plaintiff started working for Telkom as a trainee. Thereafter he
was promoted
to B3 Grade, later to B5 Grade, then to C-1 Grade and
lastly to the C-2 Grade position that he still occupied at the time
of
the collision.
A medico-legal Report prepared by Dr
Basil Mackenzie, an Orthopaedic Surgeon was also handed in by
agreement. In his report Dr
Mackenzie states that due to a
pre-existing back injury, the plaintiff would, in any event, only
have been able to able to work
at Telkom until the age of 50 years.
The plaintiff testified that he sustained the pre-existing back
injury whilst playing rugby
and that surgery had to be performed to
treat the injury.
The plaintiff’s contention is
that in view of the prospect of promotion to a more sedentiary
(supervisory) position at Telkom,
he would have been able to work
until the age of 55 years. In his injured state however, he will not
be able to perform the work
he does as a sheriff beyond the age of
50 years.
Although there is no evidence as to
why the plaintiff was not promoted by Telkom, particularly when it
became evident that he
would have to be medically boarded and in
view of the evidence by Dr Holmes on scarcity of persons with
technical skills or qualifications
in the country, I do agree that
the assumption that the plaintiff would have, in due course, been
promoted to the level of a
supervisor, is not unreasonable, given
the plaintiff’s history with Telkom.
An Actuarial calculation of the
plaintiff’s loss of income was handed in by agreement. The
calculation is based on the above
history. According to the
calculation the plaintiff, in his uninjured state, would have earned
an amount of R716,524.00 from
the date of the collision to the date
of trial. But the salary he earned until he was medically boarded
together with the lump
sum payment and his earnings as a sheriff
amount to R729,354.00. Consequently, he has earned R48,656.20 more
in the injured state
than he would have earned in his uninjured
state.
It was submitted and I agree that
there ought not to be a contingency deduction to the income that the
plaintiff has earned.
Future Loss of earnings.
The plaintiff claims R3,585,718.00 as
future loss of earnings and/or earning capacity. According to the
Actuarial calculations
the plaintiff’s future pre-morbid
earnings from Telkom (excluding future pension benefits of
R1,217,114.00) would have
been R2,368,604.00. The Industrial
Psychologists recommended that a much higher contingency deduction
of 35% should be applied
to the plaintiff’s income in his
injured state (R1,266,987.00) than the 15% contingency recommended
for the earnings in
the uninjured state. I do agree. The plaintiff,
in his injured state, is generally more vulnerable than in his
uninjured state.
No contingency deduction is applicable to his
pension as this income is certain. The plaintiff’s future
earnings in the
injured state is therefore R1,153,263.00.
It was submitted on behalf of the
plaintiff that because the claim is for a relatively short period of
time (13 years, being the
difference between his age of 42 years at
the time of the trial and the retirement age of 55 years), a
contingency deduction
of 15% should be applied to the amount awarded
as pre-morbid future loss of earnings.
Mr
Paterson
who appeared on
behalf of the defendant submitted that, in view of the lack of
evidence on why the plaintiff was not promoted
and/or on factors
considered by Telkom as relevant for promotion, together with lack
of evidence on deductions that would have
been applicable to the
plaintiff’s salary as a supervisor, a higher contingency
deduction of 25% (R896,429.50) should be
applied to the plaintiff’s
future pre-morbid earnings. In my view the submission that a higher
than the recommended contingency
deduction is not justified.
Firstly I can only assume, and there is no evidence that the
Industrial Psychologists did not apply
their mind to the relevant
factors prior to making the recommendation. Further, it appears
that promotion aspects are generally
included in the normal
contingencies applied in claims for loss of earnings. Robert Kock
in
The Quantum Year Book
(2010)
at 102 comments
that:
“
General
contingencies cover a wide range of considerations which vary from
case to case and may include: taxation, early death,
saved travel
costs, loss of employment,
promotion
prospects
,
divorce, etc.”
(My
emphasis)
According to the Actuarial calculation
the plaintiff will receive future earnings of R1,266,987.00 from
pension benefits (R942,063.00)
and earnings as a sheriff
(R324,924.00, calculated up to the age of 50 years).
The difference between the
plaintiff’s future pre-morbid earning capacity
(R3,585,718.00), less 15% contingency deduction
(R537,858.00), and
the injured future earning capacity (R1,153,262.00), less a 35%
contingency deduction is the sum of R1,894,597.00.
From this amount
must be deducted the R48,656.20 surplus compensation. The balance
is R1,845,941.00.
General Damages
It is evident from the record that
there are no realistic chances that surgical or any other treatment
would improve the plaintiff’s
condition significantly and that
in particular, his back will not attain its pre-accident state. It
would seem that even the
potential improvement of 1 to 2% which
could, according to Dr Mackenzie, be achieved through rehabilitation
would not translate
into real improvement that would enable the
plaintiff to fully resume his pre-morbid life. According to Dr
Mackenzie’s
report the plaintiff suffered moderately severe
pain which stabilized at moderate levels. When giving evidence the
plaintiff
described the pain on the lower back as constant, with
varying degrees of intensity and worse in the mornings, with
improvement
as the day progresses. He testified that he experiences
constant numbness of the hamstring and a painful left hip, with pain
aggravated by mobility and inclement weather. He also experiences
extreme pain in his feet for periods of about 15 minutes at about
two week intervals. As a result of the injury, the plaintiff is
unable to run or maintain one position for a considerable length
of
time and/or to climb stairs or walk on uneven surfaces. The pain
does respond to medication. Prior to the collision, the
extent of
the plaintiff’s pre-existing lower back condition was assessed
at 14% “whole person impairment”.
As a result of the
collision there has been a further 3% deterioration, to impairment
of 17%.
The plaintiff experiences difficulty
in maintaining balance, taking a bath, tying shoes, gardening and
enjoying recreational activities
which he used to enjoy, such as
paintball, hunting, fishing and rubber ducking. Prior to the
collision he was a relatively active
person. He is now unable to
share these activities with his children. However, Dr Mackenzie
opines that he would have only been
able to enjoy these activities
up to the age of 50 years. The plaintiff has also suffered from
depression, feelings of inadequacy,
lack of motivation, irritability
and anger outbursts. These feelings have improved since the
plaintiff obtained employment as
Sheriff. They, however, contributed
to the breakdown of his marriage.
Criticism has been levelled at the
plaintiff for having complained to Ms Ansie Van Zyl, an Occupational
Therapist, who also testified
on his behalf, that he also
experienced pain on his feet, spells of dizziness and intermittent
discomfort on his neck, complaints
which he had not expressed to Dr
Mackenzie. It seems to me that even if one accepts that the
plaintiff did not mention complaints
to the other experts with whom
he consulted, and even if one accepts that there is no evidence that
these
sequelae
are related to the collision, these complaints do not, either
singularly or collectively, significantly contribute to the
plaintiff’s
claim, to the extent that the quantum of his
general damages would be affected by the exclusion thereof. On the
whole I am satisfied
that the plaintiff’s present condition is
largely attributable to the collision.
Counsel for the parties referred me
to a number of decisions in which damages were awarded for whiplash
injuries.
1
Without necessarily setting out the facts and the comparative
aspects in each of these cases in this judgment, I have considered
them as guidelines in determining appropriate damages in this case.
In my view an amount of R120,000.00 would be reasonable as
general
damages in this case.
The award I shall make is calculated
as follows:
Past
Medical Expenses
R3,318.17
Loss
of Earnings
(Having
deducted the surplus compensation of R48,656.20 from
R1,894,597.00)
R1,845,941.00
General
Damages
R120,000.00
Less
(As
the Compensation Commissioner made an award of R7,299.55,
R3,318.17 of which went to Past Medical Expenses)
R1,969,259.17
R3,981.38
R1,965,277.79
Consequently, my order is as follows
:
[20.1] That the defendant is to pay to
plaintiff the sum of
R1,965,277.79
.
[20.2] Interest is to accrue on the
said amount at the legal rate of 15.5% per annum payable as from 14
days from the date of judgment
to date of payment;
[20.3] Defendant is to furnish
plaintiff with an Undertaking in terms of Section 17(4)(a) of the
Road Accident Fund Act, Act 56
of 1996, for payment of the cost 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 collision in which he was involved on 7 July
2005, after such costs
have been incurred and upon proof thereof;
[20.4] Defendant is to pay plaintiff’s
cost of suit, as taxed or agreed, on the party and party scale. Such
costs are to
include:
The qualifying expenses, if any of
the following:
Dr Mackenzie;
Dr Crafford;
Ansie van Zyl;
Dr Holmes;
Arch Acturial Consulting.
(ii) The costs of a pre-trial
inspection
in loco
attended by plaintiff’s attorney.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the
plaintiff: Adv. L A Schubart instructed by Heine Ungerer Attorneys
of Port Elizabeth.
For the
defendant: Adv. N M Paterson instructed by Ketse Nonkwelo Inc
Attorneys of Port Elizabeth.
1
Road Accident Fund v
Maasdorp
; Corbett and
Buchanan Vol V, C4-37, a decision of the Northen Cape Division
handed down on 21 November 2003;
Mary
Le Roux v The Road Accident Fund
C&H Vol V, at C4-88;
Nxele
v President Insurance Company Limited
,
a decision of the WLD Case No 8652/92, handed down on 1 July 2003;
Scull v Santam Limited
C&H,
Vol V, C4-9, a decision of the cape Provincial Division Case No
971/95, handed down on 12 November 1996.