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[2010] ZAECPEHC 70
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Piet v Road Accident Fund (941/08) [2010] ZAECPEHC 70 (25 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO. 941/08
DATE HEARD: 22/11/10
DATE DELIVERED: 25/11/10
In
the matter between
GLADWIN
VUYOLWETHU PIET PLAINTIFF
and
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
ROBERSON J:-
[1] On 4 April 2006 the plaintiff, a
57 year old school principal, was injured when a refuse truck
collided with the vehicle he
was driving. He instituted this action
for damages, alleging that the negligence of the driver of the truck
was the sole cause
of the collision. The defendant conceded the
merits of the claim, and quantum in respect of general damages and
past medical expenses
was agreed. The defendant also gave an
undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56
of 1996
, but initially limited the undertaking to 30% of the
plaintiff’s expenses, because the plaintiff had a pre-existing
condition.
However it was conceded on behalf of the defendant that
such a limited undertaking was not permissible. The remaining issue
was
the contingency rate to be applied to future loss of earnings.
[2] Medico-legal reports by Dr. R.
Keeley, Dr. G. Greeff, and Dr. G. Read, were handed in by agreement,
as well as a joint minute
prepared by these three doctors. Drs.
Keeley and Greeff are neuro-surgeons and Dr. Read is an orthopaedic
surgeon.
[3] As a result of the collision the
plaintiff suffered injuries to his right loin, his right shoulder and
his lumbar spine. The
latter two injuries were the most significant.
The shoulder injury has resulted in an impingement syndrome, causing
intermittent
pain. He cannot lie comfortably on his right side and
the pain is most significant when he attempts to lift his hand higher
than
his head. The lumbar spine injury aggravated a pre-existing
condition of spinal stenosis, precipitating surgery which would only
have been necessary in one or two years’ time. He has
persistent low back pain, and pain and numbness in his right leg.
He
cannot sit, stand, walk, or drive a vehicle for very long. He
struggles to carry out his work satisfactorily.
[4] The joint minute reflects that but
for the accident “there was every likelihood” that the
plaintiff would not have
to retire before reaching 65 years. Dr.
Keeley was of the opinion that as a result of the back injury the
plaintiff would have
little option but to “hang in there”
until he reaches 60 years, when he can take early retirement. Dr.
Greeff was
of the opinion that following the back injury and with the
motivation of compensation, the plaintiff will retire earlier than
age
65. Dr. Read was of the opinion that the combination of the
shoulder injury and the aggravation of the spinal stenosis, may
require
the plaintiff to take early retirement.
[5] An actuarial calculation of future
loss of earnings was handed in by agreement. The basis of the
calculation was the difference
between what the plaintiff would have
earned had he continued to work until age 65, and what he will earn
until he reaches age
60. He has been a teacher for thirty years and
a school principal for the last ten years. The resulting amount is
R578 774.00.
[6] Mr. Frost for the plaintiff
suggested a contingency rate of 20% and Mr. Paterson for the
defendant, 50%. Mr. Frost submitted
that 20% was already a high rate
given the particular circumstances and the so-called norm of 15%, but
referred to the possibility
that the plaintiff might work beyond the
age of 60, and submitted that 20% was appropriate.
[7] Mr. Paterson submitted that it was
not definite that pre-morbidly the plaintiff would have worked until
65, and may have retired
earlier, given his pre-existing condition.
With regard to post-morbid retirement, he submitted that the joint
minute did not indicate
how much earlier than age 65 the plaintiff
would retire. Whereas Keeley said the plaintiff would work until age
60, Greeff and
Read did not specify a particular age. In support of
his argument, Mr. Paterson referred to the fact that in spite of his
injuries
the plaintiff had continued to work since the collision,
which was more than four years ago. Given all these uncertainties,
so
it was submitted, a higher than usual contingency rate was called
for.
[8] I am of the view that the
uncertainties are not as extensive as contended for. All three
experts were of the view that pre-morbidly
the plaintiff would not
have retired earlier than age 65. Regarding post-morbid retirement,
Mr. Frost pointed out that in his
July 2009 report, Keeley had been
of the same opinion, and that Read, in his earlier report, had agreed
with Keeley’s July
2009 report. Greeff said in an earlier
report that early retirement would be the plaintiff’s choice
and not a result of
his medical condition.
[9] The weight of opinion seems to be
that the plaintiff will retire at age 60, or at least not much later.
It should also be born
in mind that Greeff’s opinion related
to the lumbar spine condition. He and Keeley specifically noted in
the joint minute
that they were unable to comment on the shoulder
injury because they are not orthopaedic surgeons, whereas Read’s
opinion
involved both injuries. Keeley said in his July 2009 report
that the plaintiff told him he would like to have worked until age
65
but now had no option but to “hang in there” until age
60. Keeley was of the view that whatever the plaintiff’s
intention, he would not be able to work much longer after reaching
age 60. In his September 2010 report Keeley said that the plaintiff
now had a persistent fear that he might not manage to work until age
60. The plaintiff reported that the pain in his back and
leg was
worsening and that he had difficulty climbing stairs and walking on
uneven ground. Keeley was of the view that the plaintiff
“may
just be able to struggle through to age 60”. From the reports,
it appears the plaintiff is a stoical and determined
person, who
returned to work the day after the collision and only after suffering
significant pain, underwent surgery during July
2006. His fears of
not being able to carry on working until age 60 are therefore
significant in relation to his retirement age.
The fact that he has
continued to work after the collision does not diminish these fears
or the accompanying reality of retirement
well before age 65.
[10] What uncertainties there remain
about the date of retirement are in my view more than adequately met
by a contingency rate
of 20%.
Order
[11] The following order is made:
[11.1]The defendant is
ordered to pay to the plaintiff the following amounts:
General damages R110
000.00
Past medical expenses R
4 284.40
Loss of earnings R463 019.20
[11.2] The above amounts
will bear interest at the rate of 15,5% per annum
from a date 14 days
after judgment to date of payment.
[11.3] The defendant is ordered to
furnish the plaintiff with an undertaking in terms of
s 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
, for the costs of future
accommodation of the plaintiff in a hospital or nursing home, or
treatment of or rendering of a service
to him or supplying of goods
to him arising out of the injuries sustained by him in the motor
vehicle collision on 4 April 2006,
after such costs have been
incurred and upon proof thereof.
[11.4] The defendant is ordered to pay
the plaintiff’s costs of suit, as taxed or agreed, on a party
and party scale together
with interest thereon at the legal rate of
15,5% per annum as from a date fourteen days after taxation or
agreement. Such costs
are to include:
[11.4.1] Attending in respect of the
merits on a necessary inspection
in loco
at the scene of the
collision with Attorney, Plaintiff and Counsel;
[11.4.2]The reasonable qualifying
expenses, if any, of the following expert witnesses:
Dr. R.J. Keeley
Dr. A. Morkel
Dr. G. Read
Dr. S.M. Ngapi
Dr. D. Malherbe
Mr. J. Olivier
Ms A. van Zyl
_______________
J.M.
ROBERSON
JUDGE OF THE HIGH COURT
Appearances:
Adv A Frost,
instructed by
Roelofse Meyer Attorneys, Port Elizabeth
Adv N Paterson, instructed by Friedman
Scheckter Incorporated, Port Elizabeth