About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 68
|
|
Snyman v Road Accident Fund (3515/2009) [2012] ZAECPEHC 68 (12 September 2012)
13
REPORTABLE/NOT REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case no:
3515/2009
Date
heard: 31/08/2012, 12/09/2012
Date
delivered:
In the
matter between
FRENCH
SNYMAN
........................................................................................
Plaintiff
vs
ROAD ACCIDENT FUND
.
.........................................................................
Defendant
JUDGMENT
PICKERING
J
:
This is an action instituted by plaintiff for damages arising out of
a collision on 9 January 2006 between a motor vehicle being
driven at
the time by one Van Heerden and a fire engine in which plaintiff was
a passenger. The defendant has conceded the merits
of plaintiff’s
claim and the matter therefore proceeded before me on the issue of
quantum only.
The defendant has admitted plaintiff’s past medical expenses in
the sum of R289 823,29 as well as his past loss of basic
income in
the sum of R65 878,60. Those amounts, however, have been paid by
plaintiff’s employer, the Nelson Mandela
Bay Municipality, in
terms of the Compensation for Occupational Injuries and Diseases Act
103 of 1993. It is therefore not necessary
to have any further regard
thereto. Defendant has also agreed to provide plaintiff with an
undertaking in terms of
section 17(4)
of the
Road Accident Fund Act
56 of 1996
in respect of future medical, hospital and various other
expenses.
The only outstanding issues for decision are therefore the quantum of
plaintiff’s claim for general damages in respect of
which
plaintiff claims R300 000,00 and for future loss of earning
capacity in respect of which he claims R1 787 800,00.
A number of medico-legal reports compiled by various experts as well
as a joint report compiled by plaintiff’s and defendant’s
respective industrial psychologists have been admitted in evidence by
consent. Apart from these plaintiff himself testified.
Plaintiff, a married man with two children, was born on 24 February
1967. He attended a Technical School at Brits where he obtained
a
grade 11 qualification. In 1989 he commenced employment with the then
Uitenhage Municipality as a junior firefighter. In 1991
he was
promoted to the position of a firefighter. During 1993 he was
promoted to the position of leading firefighter at the Port
Elizabeth
Municipality. The Port Elizabeth and Uitenhage Municipalities have
since been combined to form the Nelson Mandela Bay
Metropole. In June
1998 he obtained the National Diploma in Fire Technology at the Port
Elizabeth Technicon.
At the time of the collision he was an acting shift commander. As
such he was responsible for supervising the operations of the
entire
shift, organising personnel and resources on the shift, and attending
to accidents, fires and rescue operations. In his
capacity as acting
shift commander he was the officer in charge of a fire engine on the
way to the scene of an incident when the
collision occurred. At the
time he was a passenger in the left front seat of the fire engine. In
consequence of the collision he
was thrown against the left door
pillar of the fire engine and thereby sustained soft tissue injuries
to his left shoulder and
neck as well as a soft tissue injury to his
lower back. He experienced immediate pain in his lower back. He was
stabilised at the
scene and transported by ambulance to St. George’s
Hospital where he was hospitalised for two days. He was treated
conservatively
after the accident but his pain did not improve.
After his discharge from hospital he was treated by his general
practitioner with anti-inflammatories but his pain increased. In
August 2008 he was hospitalised for four days. He was then referred
to an orthopaedic surgeon, Dr. Burger. After receiving various
treatments including injections from Dr. Burger as well as undergoing
physiotherapy, he was referred to another orthopaedic surgeon,
Dr. De
Jong, as well as to a neurosurgeon, Dr. Van Aarde in December 2009.
Surgical intervention was recommended by Dr. Van Aarde.
A rhizotomy
was performed during January 2010, a rhizotomy being the surgical
division of a sensory nerve root in order to relieve
pain. In
consequence of this operation plaintiff experienced significant pain
relief but, during July 2010, the pain had returned.
A second
rhizotomy was performed on 7 January 2011, after which plaintiff was
on sick leave for a few days. The pain then again
returned. In March
2011 plaintiff was put off work for two days as a result of the pain.
Further consultations with Dr. Van Aarde followed. According to Dr.
Van Aarde plaintiff presented with mechanical backache which
was
associated with radicular pain involving his left leg. X-rays
demonstrated the presence of osteophytes in the lower lumbar
region
as well as the lower thoracic region. Disc narrowing was present at
the level of L5 and
S1.
A MRI investigation of plaintiff’s lower back was performed,
followed by a discogram. On the basis of these findings Dr.
Van Aarde
decided to perform a posterior lumbar fusion. Plaintiff accordingly
underwent a decompression at the level of L4/5 and
L5/S1. The
posterior spinal fusion was performed on 4 May 2011, the fusion being
augmented with interbody cages and pendicular
screws. There were no
complications following upon this operation. Thereafter plaintiff’s
backache and the radicular pain
in his left leg improved to some
extent.
According to the report of Dr. Olivier dated 1 June 2012, the
plaintiff was asymptomatic prior to the collision. The presence of
annular tears at the L4/L5 and L5/S1 levels were suggestive of a
traumatic event and it can therefore be accepted that the lower
back
injury sustained in the collision was the cause of plaintiff’s
lower back problems. Dr. Olivier stated further that
the accident
resulted in plaintiff suffering a moderate to severe degree of pain
and discomfort for a period of approximately six
months thereafter.
Following upon the decompression and lumbar fusion plaintiff would
have experienced a severe degree of pain
and discomfort for a period
of sixteen weeks. A moderate degree of intermittent discomfort is
expected in the future. As a result
of his injuries plaintiff cannot
perform any strenuous physical activities. He cannot climb ladders,
carry heavy objects, perform
manual labour, work with his arms in an
overhead position for a long period of time or perform any other
physical activities which
will aggravate his lower backache. He will
be able to perform only sedentary and semi-sedentary duties until the
age of retirement.
According to the admitted report of Ms. Strauss, an occupational
therapist, plaintiff suffers daily pain and discomfort in his
lower
back, left hip and knee. His physical impairments and the resultant
impairment of his functional capacity have occasioned
him
considerable frustration. He has experienced impairments in his
ability to partake in his pre-accident leisure time pursuits
such as
exercising and fishing and has become less socially active since the
accident. This reduction in his constructive leisure
time and his
meaningful social activities has had an indirect adverse influence
upon other aspects of his life including his emotional
well-being. He
is teased at work by colleagues who call him “
the bitch
”
because he can no longer perform heavy duties. He experiences high
stress levels with a concomitant inability to cope therewith.
He
suffers from severe depression.
In his testimony plaintiff confirmed what is set out above in the
various medico-legal reports. He stated that prior to the first
rhizotomy his lower back pain was of so severe a nature that he was
obliged to take extremely strong painkillers eight times a
day. The
first rhizotomy, which was a day procedure performed under general
anaesthetic, relieved his pain for approximately two
months. The pain
then returned with a vengeance in consequence whereof the second
rhizotomy was performed. This relieved the pain
for a period of only
one month.
After the lumbar fusion in May 2011 plaintiff was hospitalised for a
period of twelve days. He then spent six months at home recuperating.
He stated that he no longer has constant pain but suffers from hip
pain from time to time as his hip joints become inflamed. He
has to
exercise care when sitting, standing or even when lying down in case
he aggravates the injuries. He can no longer enter
a motor vehicle
with his legs first but has first to sit and then pull his legs in
after him. He was a keen gardener which he can
no longer do.
He stated that prior to the accident he was extremely fit. He
obtained Springbok colours in tug-of-war in 1987. He participated
in
gym work and road running. He stated that he was required to be
operationally fit as a fireman. One of the training exercises
entailed running up six flights of stairs carrying fifty kilogram in
weights. Since the accident he can no longer do any gym work
nor can
he run. He is no longer able to partake in rock fishing from the
beach as he cannot walk on sand. If he walks long distances
he
experience pain. He used to enjoy camping but can no longer pitch a
tent by himself.
He stated that his injuries have had a devastating emotional effect
upon him and his family. He was an extremely competent handyman
who
performed any requisite tasks around the house. He is no longer able
to do so. He has become short tempered, aggressive and
stressed. He
stated that at times the pain was so severe that he did not want to
live. He experienced feelings of bitterness and
revenge in
consequence of the collision and stated that he hated the person who
had caused the accident. In consequence of this
he was referred to a
psychologist in Uitenhage during June 2012. At present he is on daily
medication for stress. He stated that
he had been involved in church
activities as a deacon but for the last two to three years had
stopped attending church because
he had found himself unable to
forgive the person who had caused the accident.
With regard to his work he stated that fire fighting was his life.
His plan for the future was to become a station commander after
five
years as a shift commander. There are at present three station
commander posts vacant. From station commander he could be
promoted
to Divisional Officer in control of a number of stations. He
testified that there are seven Divisional Officers positions
in Port
Elizabeth. On 1 August 2006, despite his injuries, he was promoted to
shift commander. He stated that as a shift commander
he was entitled
to shift allowances and overtime. As a station commander he would
have been entitled to a standby allowance. The
station commander was
only entitled to overtime on being called out whereas a shift
commander had many opportunities for overtime.
As a consequence of his back injury, however, he could no longer cope
with operational duties. He was accordingly moved to the
control room
where he worked twelve hour shifts as an operator. Because he was
overqualified for that level of post his employer
sympathetically
created a post for him as an administration clerk at the training
centre at Markman. In this position he will no
longer receive shift
allowances and overtime as he did prior to his classification as an
administrative employee.
Plaintiff testified further that his father ran a tracing and debt
collection agency and that he assisted his father in this business
on
a part-time basis. He stated that his earnings per month varied to a
considerable extent. He estimated these earnings as being
between R1
500,00 to R3 000,00 per month but in good months he could earn
as much as R8 000,00.
Loss of earning capacity
In
Prinsloo v Road Accident Fund
2009 (5) SA 406
(SE) Chetty
J, with reference to the cases of
Santam Versekerings Maatskappy
Bpk v Beyleveldt
1973 (2) SA 146
(A) at 150 B – D and
Dippenaar v Shield Insurance Co Ltd
1979 (20 SA 904
(A) 917 B
– D, set out the general principles applicable to a claim such
as the present as follows:
“
A person’s all-round capacity to
earn money consists, inter alia, of an individual’s talents,
skill, including his/her
present position and plans for the future,
and, of course, external factors over which a person has no control,
for instance,
in casu,
considerations
of equity. A court has to construct and compare two hypothetical
models of the plaintiff’s earnings after the
date of which
he/she sustained the injury.
In casu
,
the court must calculate, on the one hand, the total present monetary
value of all that the plaintiff would have been capable
of bringing
into her patrimony had she not been injured, and, on the other, the
total present monetary value of all that the plaintiff
would be able
to bring into her patrimony whilst handicapped by her injury. When
the two hypothetical totals have been compared,
the shortfall in
value (if any) is the extent of the patrimonial loss... At the same
time the evidence may establish that an injury
may in fact have no
appreciable effect on earning capacity, in which event the damage
under this head would be nil.
It is not in dispute in the present matter that plaintiff has indeed
suffered a substantial loss of earning capacity in consequence
of his
injuries. This is detailed in the joint report compiled by the
parties’ respective industrial psychologists namely
Mr. Benade
and Mr. Whitehead where the following is stated:
“
With regard to his pre-morbid career
scenario we agree on the following:
Mr. Snyman was employed as Shift Commander on Task level 11 in
the Fire Services at the time of the accident.
He would have continued working in the Fire Services until
retirement age of 65.
But for the accident, he would have received a promotion to
Divisional Head (Station Commander) at the age of 55. This position
is on the TASK level 13.
His career would have plateaued on TASK level 13, where he would
have remained until retirement age.
On task level 11 Mr. Snyman was eligible for a monthly salary, a
shift allowance of 6%, a night shift allowance of 3%, a professional
allowance (R161,00 per month), as well as employer contributions to
his Provident Fund (18%) and Medical Aid (60%), as well as
a
thirteenth cheque as bonus annually.
Mr. Snyman was also working part-time in a tracing business,
where he earned between R1500,00 and R3000,00 per month.
He would have continued with this business for a maximum period
of 10 years from the end of 2009.
With regards to his post-morbid career scenario, we agree on the
following:
Mr. Snyman has been transferred to the position of Administrative
Officer from 1 August 2012.
This position is on a TASK level 11. The position was created for
him by his employer to accommodate him in his current medical
condition.
In this position he does not qualify for shift allowance or night
shift allowance, as he now works normal office hours.
It is not foreseen that he will receive any further promotion
until retirement age.
It is unlikely that he will continue with his part-time temporary
business into the future given his medical condition.
Mr. Snyman’s current salary is indicated in the report of
Johan Benade, as per his payslip dated 25/08/2012.
With regards to loss of income we agree as follows:
Mr. Snyman has suffered no loss of income until the end of July
2012.
He will lose his shift allowance (6% of basic salary) and his
nightshift allowance (3% of basic salary) from now until the age of
55. He will also lose overtime of between 12 and 20 hours per month
at R109,00 per hour.
From the age of 55 he will lose the difference between his
current salary on the TAK level 11 and TASK level 13 Salaries (we
suggest
to use an average R274 836) of the scale 2011/2012), as
well as a Motor Vehicle Allowance of R3 500,00 and a Standby
Allowance of R1 200,00 per month. Other benefits will remain
the same (for details in this regard please refer to the original
report of Johan Benade).
He will also lose an amount of between R1 500,00 and
R3 000,00 per month for 10 years from the end of 2009.
Loss will continue until retirement age of 65.
”
An actuarial report (Exhibit B) compiled by Mr. Munro was also handed
into Court by consent. In making his calculations Mr. Munro
postulated two scenarios, the first being that a station commander
did not work overtime and the second being that he did. Plaintiff’s
evidence was to the effect that a station commander did indeed work
overtime and that he was paid for such work. Mr. Gajjar, who
appeared
for defendant, fairly conceded that he could not argue to the
contrary and that it was therefore appropriate to use the
second
scenario in calculating plaintiff’s gross loss of earning
capacity.
In his report Mr. Munro calculated plaintiff’s past loss of
earnings derived from the tracing agent business as being R78
200,00
and his future loss of earnings derived therefrom as being
R325 000,00. These calculations were based on the assumption
of
earnings of R4 000,00 per month. Mr. Gajjar submitted that this
assumption was contrary to the figures contained in the
joint report
of the industrial psychologists and that, based on those figures,
plaintiff’s average monthly income was in
fact R2 250,00. In my
view, however, this submission overlooks plaintiff’s evidence
as to his income in “
good months
” being as much as
R8 000,00.
I agree, with Mr. Niekerk, who appeared for plaintiff, that the
fairest approach to the income derived from the tracing agent
business would be to apply a 40% deduction to the loss calculated by
Mr. Munro, resulting in a past loss of
R46 920,00 and a future loss of R195 540,00.
Mr. Munro further calculated plaintiff’s past loss of income as
a firefighter to be R45 700,00 and his future loss of income
as a
firefighter to be
R838 300,00. These calculations were accepted as correct by Mr.
Gajjar, the only point of dispute between himself and Mr. Niekerk
being the appropriate contingency deductions, if any, to be applied
thereto.
In the well known case of
Southern Insurance Association Ltd v
Bailey N.O.
1984 (1) SA 98
(A) Nicholas JA stated, at 113 F that
“
any enquiry into damages for loss of earning capacity is of
its nature speculative because it involves a prediction as to the
future,
without the benefit of crystal balls, soothsayers augurs or
oracles. All that the court can do is to make an estimate, which is
often a very rough estimate, of the present value of the loss.
”
At 116G – H, the learned Judge stated as follows:
“
Where the method of actuarial
computation is adopted, it does not mean that the trial Judge is
‘tied down by inexorable
actuarial calculations’
. He has
‘a
large discretion to award what he considers right’
(per
Holmes JA in
Legal Assurance Co
Ltd v Botes
1963
(1) SA 608
(A) at 614F). One of the elements in exercising that
discretion is the making of a discount for
‘contingencies’
or the
‘vicissitudes
of life’
. These include such
matters as the possibility that the plaintiff may in the result have
less than a
‘normal’
expectation of life; and that he may
experience periods of unemployment by reason of incapacity due to
illness or accident or to
labour unrest or general economic
conditions. The amount of any discount may vary, depending upon the
circumstances of the case.
”
With regard to plaintiff’s past loss of earnings in respect of
his employment as a firefighter Mr. Niekerk submitted that
it would
not be appropriate to apply any deduction in respect of contingencies
whereas Mr. Gajjar contended for a deduction of
5% in this regard. It
is so, as was submitted by Mr. Niekerk, that few of what may be
termed the usual factors to be taken into
account in determining the
deduction to be made for contingencies are of application. As was
submitted by Mr. Gajjar, however,
plaintiff’s occupation as a
firefighter involved a higher degree of risk than that to which an
office bound employee would
be exposed and the possibility that
plaintiff might have been injured on duty in the period of seven
years which has elapsed since
the accident occurred must be afforded
some degree of recognition in the award of damages. In my view
therefore it would be fair
and appropriate to allow a deduction of 5%
from plaintiff’s past loss of income.
As regards future loss of income Mr. Niekerk pointed to the fact that
plaintiff was and still is employed by a sympathetic employer,
to the
extent that a post had been especially created for him, and submitted
that the risk of plaintiff losing his employment was
accordingly
negligible. He submitted further that although there might be some
uncertainty regarding plaintiff’s promotion
to the level of
station commander the evidence was that there are at present three
posts which are vacant. It had been plaintiff’s
intention to
eventually achieve a promotion to the post of divisional officer,
which defendant’s industrial psychologist,
Mr. Benade, regarded
as having been quite possible. Furthermore, so Mr. Niekerk submitted,
plaintiff is already 45 years old and
his future loss would occur
over a maximum period of only 20 years. In all the circumstances he
submitted that a 5% contingency
deduction in respect of future loss
of income would be appropriate.
Mr. Gajjar again emphasised the fact that plaintiff would have been
exposed to potential dangers and certain levels of risk associated
with an operationally active shift commander and station commander of
a fire station. He submitted that those risks must be reflected
by
the application of a higher contingency deduction of 20%.
Whilst there is indeed a higher degree of risk attached to
plaintiff’s duties as shift commander as I have stated above,
the fact is that once plaintiff had obtained a promotion to the level
of station commander he would no longer be operationally
active in
the actual fighting of fires and would therefore not be exposed to
the same levels of risk to which an ordinary firefighter
or shift
commander would be exposed.
In my view, taking into account all the circumstances it would be
fair and reasonable to apply a deduction of 10% to plaintiff’s
future loss of income.
In the circumstances plaintiff is entitled to:
Past loss of income in respect of
the tracing agent business R 46 920,00
Future loss of income in respect of
the tracing agent business R 195 540,00
Past loss in income in respect of plaintiff’s
firefighting employment R 43 415,00
Future loss in income in respect of plaintiff’s
firefighting employment
R 754 470,00
TOTAL R1 040 345,00
General damages
It is trite that in determining an appropriate amount for general
damages the Court is called upon to exercise a broad discretion
to
award what it considers to be fair and adequate compensation. In so
doing the Court must consider a broad spectrum of facts
and
circumstances connected to the plaintiff and the injuries suffered by
him. In the assessment of general damages I have taken
into account
the remarks of Navsa JA in
Road Accident Fund v Marunga
2003
(5) SA 164
(SCA) as well as the supplementary comments of Brand JA in
De Jongh v Du Pisani
N.O.
2005 (5) SA 457
(SCA).
I have been referred by counsel to a number of cases including
Road
Accident Fund v Maasdorp
2003 QOD 37 (NCD);
Lawson v Road
Accident Fund
2010 QOD 1 (ECP);
Howard v Road Accident Fund
2011 QOD 31 (GNP) and
Ambrose v Road Accident Fund
2010 (6)
QOD (ECP).
Having regard to the above matters Mr. Niekerk submitted that an
award of R250 000,00 would be appropriate whereas Mr. Gajjar
submitted that an award of between R200 000,00 to R225 000,00
would be appropriate.
I do not intend to repeat what is set out above concerning the nature
of plaintiff’s injuries. It cannot be disputed that
they were
indeed of a serious nature and that plaintiff experienced severe pain
and discomfort for an extended period as well as
having to undergo
painful surgical interventions. He will continue to suffer a moderate
degree of intermittent discomfort in future.
He has also suffered a
serious loss of amenities of life.
In my view, taking into account all the circumstances of the matter
an award of R240 000,00 would be appropriate in respect
of
general damages.
The total award of damages is therefore R1 280 345,00.
The following order will accordingly issue:
Defendant is ordered to pay plaintiff damages in the sum of
R1 280 345,00.
2. Defendant is ordered to pay interest on the aforesaid amount at
the legal rate of 15,5% per annum, payable as from 14 days after
date
of judgment until date of payment.
3. Defendant is ordered to furnish the plaintiff with an undertaking
in terms of
section 17(4)(a)
of the
Road Accident Fund Act, no 56 of
1996
, to pay to the plaintiff the costs of future accommodation in a
hospital or nursing home, or the treatment of, or the rendering
of a
service to, or the supplying of goods to the plaintiff, as a result
of the injuries sustained by him in the motor vehicle
collision which
occurred on 9 January 2006 in Port Elizabeth, and the
sequelae
thereof, after the costs have been incurred and upon proof thereof.
4. Defendant is ordered to pay plaintiff the taxed party and party
costs, such costs to include the reasonable and necessary qualifying,
preparation, reservation and travelling expenses of the following
expert witnesses:
4.1 Dr. R.J. Keeley;
4.2 Dr. P.A. Olivier;
4.3 Letitia Strauss;
4.4 Dr. P. Whitehead; and
4.5 Mr. A. Munro.
5. Defendant is ordered to pay interest on the taxed costs at the
legal rate of 15,5% per annum from 14 days after allocator to
date of
payment.
___________________
J.D. PICKERING
JUDGE OF THE HIGH COURT
Appearing on behalf of Plaintiff: Adv. Niekerk
Instructed by: Jock Walter Inc, Mr. Walter
Appearing on behalf of Defendant: Adv. Gajjar
Instructed by: Wilke Weiss van Rooyen Inc, Mr. Jordaan