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[2018] ZAECPEHC 32
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C v Road Accident fund (306/2016) [2018] ZAECPEHC 32 (28 June 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between: Case
No: 306/2016
C
C
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
Coram:
Chetty J
Heard:
11 – 15 & 20 June 2018
Delivered:
28 June 2018
JUDGMENT
Chetty
J:
[1]
Consequent upon a multi-vehicle pile-up during March 2010, the
plaintiff instituted a delictual action against the defendant
in
which he claimed damages under various heads, of relevance extant the
pleadings, and the only remaining justiciable claim, loss
of past and
future income, formulated in the amended particulars as follows: -
“
12. 12.1 From the
date of the accident until the end of November 2016 Plaintiff
lost earnings in the sum of R5, 645.00;
12.2
Plaintiff
was retrenched at the end of November 2016
;
12.3 In the uninjured
state Plaintiff would have worked from mid-2017 and earned R619,
037.00 per annum;
12.4
In
the injured state Plaintiff has become unemployable on the
open labour market, and has not worked since
his
retrenchment;
12.5 Plaintiff’s
claim for further past loss of earnings, after applying the CAP, is
in the sum of R250, 091.00;
12.6 Plaintiff’s
total claim for past loss of earnings and/or loss of earning capacity
is accordingly in the sum of R255,
736.00.
13. 13.1
Plaintiff
became retrenched in November 2016
;
13.2 In the uninjured
state Plaintiff would have been able to work from about mid-2017 and
he would have been capable of earning
R619, 037.00 per annum;
13.3 Plaintiff’s
income would thereafter have increased with CPI plus 1½% per
annum until a retirement age 65;
13.4
In the injured
state Plaintiff has become unemployable on the open labour market;
13.5 Plaintiff’s
claim for future loss of earnings and/or loss of earning capacity has
been calculated by Mr Loots, Actuary,
to be in the sum of R1,
225 556.00, after applying the CAP.”
(Emphasis
supplied)
[2]
It will be gleaned from the aforegoing that the plaintiff’s
alleged retrenchment is integral to the claim for loss of
earning
capacity. Furthermore, in his trial particulars, the plaintiff,
responding to the pertinent question –
“
on
what basis it is (
sic
)
alleged the plaintiff will suffer loss of earning and which of the
injuries gave rise thereto,”
averred –
“
6(9) Plaintiff suffers impairment due
to the pain and discomfort in his cervical spine, lumbar spine and
both knees. Plaintiff also
experiences a feeling of numbness in both
his hands and down his legs.”
It is
apposite therefore to emphasize that the claim for past and future
loss is predicated upon the plaintiff’s incapacity
to work.
[3]
Under the
lex Aquilia
, a plaintiff in an action for damages
based on negligence is entitled to be compensated to the extent that
his patrimony has been
diminished in consequence of such negligence.
The loss or impairment of the capacity to earn money is an element of
Aquilian
damages provided it has, as a matter of fact, led to
a diminution of such earning capacity. The defendant disputes the
validity
of this head of damages and the resolution of the impasse
perforce compels an analysis and evaluation of the testimony adduced.
As a precursor thereto, it is apposite to commence with an exposition
of the collision itself.
[4]
The multi-vehicle pile-up occurred on 13 March 2010 on the verge
abutting the shoulder of the M19 betwixt Port Elizabeth and
Uitenhage. The plaintiff had proceeded thence to render assistance to
his sister whose car had broken down. He parked his vehicle
behind
that of his sibling on the verge adjacent to the trafficable surface
of the road, alighted and proceeded to the front of
her vehicle.
Whilst standing there, presumably peering into its engine
compartment, he was flung backwards by the sudden forward
motion of
the vehicle and landed some distance away on the trafficable surface
of the road. It is common cause that another vehicle
had careered
into the rear of his own vehicle, propelled it forwards into that of
his sister which in turn then crashed into him.
He was ferried
to the Greenacres hospital by ambulance and, on admission to the
emergency unit, examined and treated by Dr
Wickens
(Wickens)
. Clinical examination revealed that
he had sustained a fractured nose, lacerations to the nose bridge and
right eye, lateral aspect
and facial abrasions. The treatment plan
administered, according to the hospital notes, comprised the
following –
“
- Tramal 75mg
intravenous injection given for analgesia. Antitetanus
injection given
-
Xrays taken: Nasal bone fracture noted.
-
Lacerations to face sutured under local
anaesthetic.
-
Referral to Dr Schemmer (ENT Specialist) for
follow up care of nasal injury
-
Prescription given for analgesics.”
[5]
The plaintiff was discharged the same day, and after a three week
convalescence at home returned to work at the General Motors
assembly
plant (GMSA). He had commenced employment there in 2002 initially as
a maintenance electrician and had progressed to the
position of
artisan/artisan foreman. On resumption, the plaintiff was delegated
to perform sedentary work for the first month and
thereafter returned
to the factory floor where he continued working in his erstwhile
capacity.
[6]
It is common cause that during 2016, policy considerations,
precipitated by the economic meltdown and the end of the production
life of the Chevy Spark range, engendered GMSA to offer voluntary
severance packages (VSP) and voluntary retirement packages (VRP),
to
its entire workforce. I interpolate to state that the distinction
between the two packages is purely age related, the VRP applicable
only to persons over the age of 55. It is not in issue that the
plaintiff, then aged 56, completed and submitted a written
application
for a VRP, approximately six years post collision.
The
pro forma
application explicitly obligated GMSA to provide the plaintiff with
details of the proposed benefits and one must assume, given
the
plaintiff’s voluntary acquiescence to be considered for the
VRP, that it’s sweep appealed to him.
[7]
In his testimony before me however, the plaintiff sought to underplay
the attractiveness of the VRP, ascribed his request for
the VRP to
the imminent complete closure of GMSA’s South African
operations and steadfastly maintained that eshewment of
the package
was not in his best interests. His evidence hereanent is, upon a
conspectus of the pertinent testimony adduced, clearly
contrived. It
is not in issue that the public announcement that GMSA would cease
its South African operations first surfaced in
2017. The evidence
firmly established that, given the longevity of his employment and
his track record, the plaintiff could not,
in 2016, have laboured
under any misapprehension that the factory would close and
retrenchment, an inevitable consequence. The
plaintiff was in fact
constrained under cross-examination to concede that his application
to be considered for a VRP was unrelated
to GMSA’s subsequent
disinvestment from the Republic of South Africa and, cognisant of
this dilemma, sought refuge in his
bodily, mental and psychological
incapacitation which he alleged deleteriously impacted on his work
capacity. As corroborative
witnesses, Dr
Stigant
(Stigant)
, Dr
Nobre
(Nobre)
and his immediate superior at GMSA,
Mr
Mac (Mac)
, were
called to vouchsafe the plaintiff’s alleged work related
regression and future unemployability. The fundamental difficulty
in
accepting this evidence is it’s omission from the plaintiff’s
narrative. Whilst he alluded to certain difficulties
in aspects of
his daily work related chores, it was never his case that the
decision to solicit the VRP was actuated by his inability
to perform
optimally. I have no doubt that during the initial period of his
reintegration into the work environment he may have
struggled, but
the weight of the evidence establishes its transience.
[8]
Mac’s
account of
the plaintiff’s retrogression is in direct conflict not only
with the testimony of his own higher ranking colleagues,
Mr
Theodorus
Ignatius Vermaak
(
Vermaak
)
and Mr
Angus
Clark
(
Clark
), but with the
plaintiff’s verbal accounts to both occupational therapists,
Messrs
Ansie Van Zyl
(
Van Zyl
) and
Nicolette Hugo
(
Hugo
).
Whilst I accept that in the chain of command,
Mac
was the plaintiff’s immediate superior, remissiveness of the
magnitude as alluded to by him would, on the probabilities,
not have
remained undetected in the six years the plaintiff continued in his
employment given the precision related nature of work
on the robotic
production line.
[9]
Hugo
interviewed the
plaintiff on 25 October 2017 and in her testimony alluded to appendix
3 of her report where, under the rubric,
“
Job
description and difficulties experienced”
,
she recorded the plaintiff’s response as: -
“
He reports that
this however did not affect his productivity. He reports that whilst
he was slightly slower with typing he was able
to submit his reports
of (sic) time. He reports that he implemented reasonable postural
breaks as required.”
[10]
V
an Zyl
had consulted
with the plaintiff whilst he was still employed at GMSA and, whilst
she alluded to the plaintiff’s physical
deficits in her
reports, she nonetheless concluded that
“
Mr
C. is suited to his current position with some improvement in
symptoms expected with the suggested treatment.”
[11]
Both
Vermaak
and
Clark
expounded upon the range and scope of the plaintiff’s tasks and
lavished praise not only on his work ethic but the exemplary
manner
in which he executed them.
Vermaak
described him as a
“
robot boffin”
,
one indispensible to the smooth running of the production line.
Whilst both he and
Clark
adverted to a regressive period post-accident, it is clear that it
was of short duration and that the plaintiff thereafter continued
to
perform his tasks optimally. The standard of his work was such that,
upon being appraised that the plaintiff had opted to avail
himself of
the VRP,
Clark
had an
audience with him and implored him to reconsider, but to no avail.
Although the plaintiff denied having met with
Clark
hereanent, I accept
Clark’s
evidence that notwithstanding his exhortation, the plaintiff remained
steadfast in his resolve to retire.
[12]
It is apparent from the reports of
Stigant
,
Nobre
and
Pretorius
that they were in fact inveigled into believing that the plaintiff
had been retrenched.
Clark’s
evidence however dispels any notion that the VRP was tantamount to a
retrenchment. He emphasized that at the time the plaintiff
availed
himself of the VRP, there was no inkling whatsoever of GMSA’s
proposed disinvestment and the announcement in 2017
took all and
sundry by surprise. He iterated that notwithstanding the company’s
subsequent departure, its workforce, save
for those who had solicited
either of the packages, would have been absorbed into the new Isuzu
Motors fold and, had the plaintiff
not taken the VRP, he would have
remained in employment until his retirement at age 65. Under those
circumstances, can it properly
be contended that the plaintiff’s
impairment led to a diminution of his earning capacity? The answer is
self-evident –
the plaintiff elected to cease his employment
and it scarcely behoves him to now, given the economic realities, to
complain about
the difficulty in securing alternative work.
[13]
The notion that the injuries sustained in the collision resulted in
an impairment of his work ability and, concomitantly, a
diminution of
his earning capacity, first surfaced in 2018 in the report of the
clinical psychologist,
Stigant.
When he interviewed the plaintiff almost eight (8) years had elapsed
from the time of the collision. By then the plaintiff had,
as he
correctly noted in his report, been on pension for almost fifteen
months. Following upon his consultation with the plaintiff,
and,
armed with the reports of
inter alia
Oelofse
,
Aslam
,
Wickens
,
Hugo
and the radiological records, he made the diagnosis that –
“
At this point it
is necessary to mention that the above syndrome of symptoms, negative
behaviours, changeable moods and emotional
lability, social
isolation, slowness of performance, lack of drive and ambition,
concentration and memory dysfunctions, flashbacks
and ruminating
thoughts about the incident are typical sequelae of a TBI and/or a
PTSD.”
And
concluded,
“
From the Clinical
Interviews and Observations, Psychometric Assessment and Notes in the
Documentation it is clear that the MVA resulted,
inter
alia
, in a traumatic brain injury (TBI) and
PTSD that has compromised the claimant’s cognitive functioning
and quality of life,
as indicated. The sequelae of pathology with
regard to cognitive and personality functioning, including the PTSD
symptoms, as set
out in 1-9 above and the assessment results, as
recorded, all are clear evidence thereof. The markers, as mentioned
above, that
indicate a TBI and PTSD are present in varying degrees in
all of claimant’s cognitive and personality dysfunctions.”
[14]
Fortified by the plaintiff’s narrative concerning his
functionality he opined that –
“
Accordingly,
claimant’s quality of life negatively has been compromised,
especially with regard to his employment prospects,
due to the TBI
sequelae. In my opinion it is certain that claimant will not be able
to continue to perform at his premorbid levels,
given his mentioned
slowed responses and other cognitive dysfunctions. It is clear that
claimant now is a vulnerable employee,
with regard to attempting a
new form of employment where he needs to learn new procedures and
routines.”
[15]
Stigant’s
opinion was assiduously lapped up by Dr
Nobre
,
who concluded her report with the congruous deduction that –
“
. . . the injuries
which Mr C. sustained in the accident had a significant impact on his
career. Had it not been for the accident
he would ultimately have
been able to continue working as Foreman or return to working as
Self-employed Electrician until normal
retirement age of 65 years. As
a result of his injuries, he is now limited in the work he is able to
perform. Since being retrenched
at the end of 2016 he has remained
unemployed. It is probable that he will remain unemployable until
retirement age.”
[16]
Stigant’s
conclusion that the plaintiff suffered a traumatic brain injury is,
notwithstanding his protestation to the contrary, derived entirely
from
Oelofse’s
RAF4 assessment report where, under the rubric,
“
Head
Injury”
he recorded that –
“
This patient sustained a traumatic
brain injury (TBI)”
In his
testimony before me however,
Oelofse
neither alluded thereto nor was he questioned thereanent. Dr
Aslam
disputed that the plaintiff had suffered a TBI and provided a
compelling explanation in refutation. The factual scenario conveyed
to
Stigant
and which
indubitably impacted upon both his and
Nobre’s
opinions is in direct conflict with the testimony of
Vermaak
,
Clark
and
Hugo
concerning the plaintiff’s functionality on the factory floor.
I accept their evidence that save for the initial period after
his
return to work, the plaintiff performed his tasks with such aplomb
that he was prevailed upon by
Clark
to reconsider his decision to apply for the VRP. Their testimony
dispels any notion that the injuries sustained in the collision
deleteriously impacted upon the plaintiff’s employment. The
plaintiff has, in my view, failed to discharge the onus that
he has
suffered a diminution in the value of his patrimony and the claim for
loss of earning capacity thus falls to be dismissed.
Consequently,
the quantification of his loss is rendered wholly unnecessary.
[17]
The dismissal of the plaintiff’s claim for loss of earning
capacity has costs ramifications. As adumbrated hereinbefore
the
trial was confined to the issue pertaining to the plaintiff’s
loss of earning capacity. During the Rule 37 conference
held on 9 May
2018 the defendant was requested to indicate whether it intended
furnishing the plaintiff with an undertaking as
envisaged in s
17(4)(A) of the Road Accident Fund Act
[1]
.
The minute records that the defendant undertook to revert thereanent.
On 21 May 2018 it served a notice of offer of settlement
in terms of
Rule 34(1) and 34(5) on the plaintiff’s attorney in respect of
the plaintiff’s claim for future medical
expenses in which it
provided the relevant undertaking. Although the plaintiff’s
claim for past medical expenses remained
unresolved no evidence was
however adduced thereanent during the trial. Prior to argument on 20
June 2018, a document, incorporating
inter
alia
,
an agreement on the quantum of this head of damage in the sum of
R4 578.09, was handed up from the bar. The settlement of
this
claim can have no effect whatsoever on the plaintiff’s
liability for costs given the defendant’s substantial success
in warding off the claim for loss of earning capacity.
[18]
In the result therefore, the following orders will issue-
1.
The plaintiff’s claim for loss of
earning capacity is dismissed.
2.
The plaintiff is liable for the
defendant’s costs of trial during the period 11 to 15 June 2018
and 20 June 2018.
3.
The defendant is liable for the
plaintiff’s pre-trial costs up until 21 May 2018.
4.
The defendant is ordered to provide the
plaintiff with an undertaking in terms of sec 17(4)(a) of the
Road
Accident Fund Act
, 56 of 1996, for the
costs of the future accommodation of the plaintiff in a hospital or
nursing home or treatment of or rendering
of a service to the
plaintiff or supplying of goods to the plaintiff arising out of the
injuries sustained by the plaintiff in
the motor vehicle collision on
13 March 2010, after such costs have been incurred and upon proof
thereof.
5.
The defendant is ordered to pay the
plaintiff the sum of R4 578.09 in respect of past medical
expenses.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Plaintiff: Adv L.A. Schubart SC
Instructed
by: Johan Cronjé Attorneys
c/o
Heine Ungerer Attorney, 25 Cape Road, Central, Port Elizabeth
Ref:
Mr Ungerer
Tel:
(041) 374 3773
Obo
the Defendant: Adv M. Veldsman
Instructed
by: Joubert Galpin & Searle
173
Cape Road, Mill Park, Port Elizabeth
Ref:
N Boshoff
Tel:
(041) 396 9261
[1]
Act No, 56 of 1996