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[2023] ZAFSHC 23
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Radebe v Road Accident Fund (1657/2021) [2023] ZAFSHC 23 (30 January 2023)
HEADNOTE:
LOSS
OF INCOME – CONTINGENCIES
Motor
collision – Traffic officer – Ankle injury, anxiety
and depression – Resuming employment –
Early
retirement would cause financial loss – Surgery to ankle,
medication and psychotherapy available – Injury
not
appearing to be a bar to career progression – Award not to
be a windfall – Contingency deduction of 20%
for
pre-accident earnings and 25% for post-accident earnings.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1657/2021
Reportable:
YES/ NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NOMUSA
PAULINAH
RADEBE
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
CORAM:
NAIDOO J
HEARD
ON:
5 OCTOBER 2022
DELIVERED
ON:
30 JANUARY 2023
JUDGMENT
[1]
The plaintiff, Nomusa Paulinah
Radebe (the plantiff), issued summons against the defendant,
the Road
Accident Fund (RAF) for damages arising out of injuries suffered by
her, in a motor vehicle accident on 13 October 2017
on the N3
motorway in the Free State Province. RAF had previously conceded
merits and negligence at 100%. By the time the matter
came before me
for the hearing of the trial in respect of quantum, most heads of
damages had become settled, namely, general damages,
future medical
expenses and hospital expenses. The settlement of these various
aspects was made an order of court. The only issue
for this court to
adjudicate was the loss of earnings and specifically the percentage
of contingency deductions to be applied to
loss of earnings. Adv (Ms)
D Hattingh-Boonzaier represented the plaintiff and Ms P Banda
represented RAF.
[2]
The plaintiff is a Provincial Traffic Officer, who appears to have
completed road
traffic duties on 13 October 2017, and was a passenger
in a trailer which was being pulled by a motor vehicle driven by her
colleague.
The vehicle was involved in a collision, which resulted in
the plaintiff being ejected from the trailer, and consequently
suffered
bodily injuries, namely abrasions and lacerations to her
face and scalp as well as a fracture of the talus (ankle bone) on her
right foot.
[3]
At the commencement of the hearing of this matter, the parties
indicated that they
have reached agreement in respect of the
following matters:
3.1 the
expert medical reports filed by the plaintiff and defendant, the
joint minute completed on 29 September
2022 and filed by the
plaintiff’s and defendant’s occupational therapists, all
hospital records relating to the plaintiff
as well as all other
documents filed in respect of the merits and quantum in this matter,
be admitted into evidence;
3.2 the
retirement age of the plaintiff is agreed at 57.5 years (for the
purposes of calculating loss of earnings).
[4]
The plaintiff was examined and interviewed by various medical
experts,
mainly in 2021, some four years after the accident. The following is
gleaned from the medico-legal reports filed by both
parties, and is
accepted to be common cause as no issue has been taken with same:
4.1 the
plaintiff enrolled at the University of the Free State for a BA
degree in 2006 but did not complete her
studies as she fell pregnant.
4.2 she
failed most of her course modules in 2008 and deregistered; she
re-registered in 2014 but left when she
secured employment.
4.3 she
completed a Traffic Officer’s Diploma (2014 – 2016), as
well as several short courses in firearm
safety and first aid;
4.4 she
suffered injury to the right hind foot as a result of the accident
and experienced pain in that part of
her foot;
4.5 she
returned to her employment as a traffic officer after being off work
for about three months after the accident,
and continued to perform
the same duties she did prior to the accident;
4.6 she
was diagnosed as being depressed, anxious and showing signs of post
traumatic stress; all of these conditions
can be managed with
appropriate treatment. The defendant’s occupational therapist
held a different view, which I will deal
with later.
[5]
The plaintiff engaged a number of medical experts, who each prepared
reports in respect of their findings. I will deal briefly
with
opinions and/or conclusions of these experts. The orthopaedic surgeon
engaged by the plaintiff, Dr Sher, observed that “
Clinically
the plaintiff manifests with moderate right hind foot symptomatic and
functional disability”
. He observed further that she was
somewhat overweight and that her weight would probably be considered
an aggravating factor. With
regard to her employment, Dr Sher
remarked that “
The nature of her work would probably be
considered relatively light to moderately demanding on occasion
.”
The clinical psychologist, Ms Talita Da Costa found the plaintiff to
be depressed, anxious, showing signs of post traumatic
stress and
presenting with certain cognitive difficulties, which worsen when she
is in pain. The educational psychologist, Ms Mattheus,
in performing
cognitive tests, found the plaintiff to perform within an average to
low average range.
[6]
Ms Fletcher, the occupational therapist took account of all the
medico legal reports
I have mentioned and after conducting her own
assessment, found, with regard to the right ankle, that the plaintiff
had decreased
range of motion and muscle strength in the right ankle,
decreased balance on uneven surfaces with vision occluded and
decreased
speed and coordination on the right. She concluded that the
plaintiff would be able to sit and stand frequently during the
working
day, she would only occasionally be able to crouch, squat or
perform weighted elevate work and rarely walk, climb stairs, kneel
or
bend forward. As a result, she concluded that the plaintiff’s
occupation as a provincial traffic inspector can be classified
as
light work. Ms Fletcher deferred to the medical experts for medical
intervention and agreed with Dr Sher that the plaintiff
would
probably require surgery to the ankle in the future should the
anticipated degeneration of the ankle occur, probably around
age 50
years.
[7]
Ms L Leibowitz, the industrial psychologist, similarly took account
of all the medico-legal
reports filed, and quoted relevant extracts
from each report to support her conclusions that the plaintiff has
been rendered less
competitive as a result of the injuries she
sustained in the accident and the sequelae thereof, that she will be
unlikely to function
at her pre-accident levels and will be at a
disadvantage in her occupational pursuits. Ms Leibowitz was of the
opinion that although
the plaintiff is likely to continue working for
as long as she is able to, she will do so with difficulty. She
appeared to agree
with Dr Sher and Ms Flecher that the plaintiff’s
working life will be shortened as a result of the injury, which would
impact
of her future earnings. Ms Leibowitz postulated that the
plaintiff should be compensated for all losses in earnings.
[8]
The final expert engaged by the plaintiff was Mr W Loots, an actuary.
He undertook
a detailed exposition of the plaintiff’s
pre-accident and post-accident earnings, setting out the methodology
he employed
and the various factors that he took into consideration
in arriving at the results contained in the report. After the parties
agreed
on a retirement age of 57.5 years, he recalculated the loss of
earnings, applying a pre-accident contingency deduction of 20% and
a
post-accident contingency deduction of 40%, as instructed by the
plaintiff’s attorneys. His calculations yielded an amount
of
Two Million Two Hundred and Six Thousand Five Hundred and Forty Six
Rand (R2 206 546.00) in respect of loss of earnings.
[9]
RAF engaged two experts, Ms L Maritz, an Industrial Psychologist and
Mr ML Makgato,
and Occupational Therapist. Ms Maritz compiled her
report without reference to any of the other medico- legal reports I
have mentioned,
and warned in her report that the results reflected
therein should be utilised with care. It is not in dispute that for
the purposes
of this matter, Ms Maritz’s report is not helpful.
I shall, accordingly, not refer to her report. Mr Makgato, outlined a
similar family, educational and occupational history in respect of
the plaintiff, as did the other experts. He also referred to
and
considered the medico-legal reports of the plaintiff’s experts.
Mr Makgato conducted several tests, both physical as
well as
cognitive and perceptual, on the plaintiff. He found that physically
she had good muscle tone, muscle strength and endurance,
With regard
to mobility, he found that the plaintiff could perform all functions,
save for walking on her heels, squatting and
crouching, which she
found difficult to do. Similarly, with the cognitive tests, the
plaintiff performed well and did not indicate
any cognitive
deficiencies or challenges, unlike the plaintiff’s experts
whose reports I have dealt with. He also did not
observe any overt
problems with her mood and indicated that she presented with “
an
appropriate affect”.
I note that Mr Makgato’s
assessment of the plaintiff occurred about nine months after Ms
Fletcher evaluated the plaintiff.
[10]
Mr Makgato agreed with the plaintiff’s job classification as
light work, and remarked that
the plaintiff is functional but tires
easily when engaged in activity. She indicted that she did not
actively participate in sport
prior to the accident, but if she
wished to do so now, Mr Makgato remarked that she will be
disadvantaged. The accident has affected
the recreational aspect of
her life as well as well as her general functioning in some aspects
of daily life, and this represents
loss of amenities to her.
Considering her residual physical capacity and the demands of her
current occupation, Mr Makgato is of
the view that the plaintiff is a
job match. Although his assessment indicates adequate cognitive
functioning, the plaintiff will
benefit from the intervention of the
various medical experts and other professionals, and defers to them
in respect of the further
treatment of the plaintiff.
[11]
The occupational therapists, Ms Fletcher and Mr Makgato compiled a
joint minute in which they
agreed on a number of aspects, many of
which I have outlined in their respective reports as well as the
reports of the other experts.
There were two points of departure, the
first one being Ms Fletcher’s conclusion that the plaintiff’s
impaired visual
perceptual skills would probably increase the
possibility of her making errors at work and may affect her work
speed and productivity.
Mr Makgato pointed out that the plaintiff
displayed adequate cognitive functioning when he assessed her, which
was nine months
after Ms Fletcher’s assessment of the
plaintiff. The other point of departure was the possible retirement
age of the plaintiff.
Ms Fletcher opined that the plaintiff will be
unable to work beyond 55 years of age, and Mr Makgato was of the view
that she could
continue working up to age 60 years. The difference of
5 years between each of their projections was divided in half and
added
to the projected 55 years. Hence the parties agreed on 57.5
years as the anticipated retirement date for the plaintiff.
[12]
The only issue between the parties appears to be the percentage of
the contingency deductions
to be applied to the loss of earnings,
which is in the discretion of the court, and which discretion must be
exercised judiciously,
taking into account all relevant factors. RAF
appears to be in agreement with the plaintiff that the contingency
deduction for
the pre-accident scenario should be 20%. The point of
departure is the deduction in respect of the post-accident scenario.
The
plaintiff argues for a 40% deduction but submits that this figure
can be reduced to 30%, while RAF argues for a 25% deduction in
respect of the post-accident scenario
[13]
It is common cause that the plaintiff was
remunerated during the period she was away from work, recuperating
from the accident. The plaintiff returned to work 2-3 months after
the accident, and resumed the duties which she performed
pre-accident,
albeit with a little difficulty. The industrial
psychologist, Ms Leibowitz, obtained detailed collateral information
from two senior
functionaries in the Free State Department of Police,
Roads and Transport (DPRT). Mr Thapelo Motaung, Chief Provincial
Inspector
at the DPRT confirmed the plaintiff’s position,
remuneration and the various benefits that staff, including the
plaintiff,
received. He indicated that he knows the plaintiff to be a
hardworking and committed employee. After the accident she continued
to perform her duties, without any special accommodation on account
of her injury. Although she did complain of pain sometimes,
she
continued to be a hardworking individual.
[14]
With regard to promotional opportunities, Mr
Motaung indicated that a Provincial
Inspector, such as the plaintiff
could advance to more senior roles, such as Senior Provincial
Inspector and Principal Provincial
Inspector, the former being a
supervisory role and the latter entailing greater administrative
duties. Both senior roles required
the officer to be active in the
field. The plaintiff would be eligible to apply for these positions,
in spite of her injury.
[15]
Mr Sam Motsabi, Control Provincial Inspector with DPRT, elaborated
further on career progression
for a Provincial Inspector (which is
graded salary level 6). He explained that such an inspector could
progress all the way to
salary level 10, and explained the various
ways in which this can occur. None of these ways precluded the
plaintiff from enjoying
career progression. He indicated that an
individual with a Basic Traffic Diploma (which the plaintiff holds),
needs no additional
qualifications to progress to positions such as
Senior Provincial Inspector and Principal Provincial Inspector.
However, when applying
for roles more senior to those I mentioned, a
candidate with a Degree or Diploma would enjoy an advantage. There
are instances
where such requirements are relaxed. Employees are
encouraged to improve their qualifications.
[16]
In my view, the only area that the plaintiff is likely to suffer
financial loss is if she is
forced to retire early, due to her
injury. However, if the pain in her ankle is managed through the
surgery and medication recommended
by Dr Sher, should it become
necessary, then it seems that could prolong her working life.
Similarly the depression and anxiety
she presented with prior to
seeing Mr Mokgato can also be managed with the medication and
treatment (such as psychotherapy) which
the clinical psychologist and
other experts recommended. The plaintiff must of course be
compensated for the injury she suffered
and the other sequelae of the
accident, but, as has been well settled in our law, such compensation
must not amount to largesse
or a windfall. It must be commensurate
with the damage suffered and taking all other relevant circumstances
into account. The heads
of damages which were settled prior to the
commencement of the trial will take account of future medical
expenses and the assistive
devices, recommended by the occupational
therapists, should these become necessary.
[17]
In my view the reports of the numerous experts indicate that their
findings and recommendations
are based largely on the probabilities
and an anticipation of what the plaintiff’s future condition
may be. I borrow Adv
Hattingh-Boonzaaier’s words when I say
that while we are “faced with a lot of what-ifs” in this
case, one needs
to be mindful of the current situation of the
plaintiff and exercise a measure of common sense and judicious
discretion in avoiding
an award that would amount to a windfall. The
plaintiff has continued with her pre-accident duties, without any
special accommodation
on account of her injury. While it is noted
that she has to live with a measure of pain that she previously did
not have, such
pain is manageable with the appropriate treatment. Her
injury does not appear to be a bar to her progressing in her career
and
her life in the same way as her peers. Her cognitive deficiencies
do not appear to have been caused by her injury, save that it
worsens
when she is in pain For the reasons set out above, I am in agreement
with Ms Banda’s submission that the contingency
deduction for
the post-accident earnings should be 25%.
[18]
I turn now to deal with the plaintiff’s claim for compensation
in terms of the Compensation
for Occupational Injuries and Diseases
Act 130 of 1993 (COIDA). I enquired of Ms Hattingh-Boonzaaier whether
the plaintiff had
claimed compensation, as she was injured on duty.
The parties agreed that written submissions would be made by Adv
Hattingh-Boonzaaier
in this regard. Judgment was reserved and such
written submissions were filed. The defendant did not reply thereto
or add anything
further to its oral argument in court. The plaintiff,
I am advised, did submit a claim in terms of COIDA on or about 1
November
2017, but as at the date of the hearing of this matter, she
had not received any compensation in terms of COIDA. Adv
Hattingh-Boonzaaier
referred me to section 36(2) of COIDA, which
provides that in awarding damages in an action, the court shall have
regard to compensation
paid in terms of the Act, She also referred to
case law in which it was established that in making an award for
damages a court
must have regard to any payment in terms of COIDA and
deduct such amount from the award it makes. I accept that the
plaintiff has
not yet received any payment from the Compensation
Fund, but am of the view that the order that this court makes must be
brought
to the attention of the Compensation Commissioner.
[19]
In the circumstances, I make the following orders:
19.1 The
plaintiff’s claim for loss of earnings is granted, as
calculated by the actuary, Mr Wim Loots in his report
dated 4 October
2022, subject to a contingency deduction of 20% in respect of the
pre-accident earnings, and 25% in respect of
the post-accident
earnings;
19.2 The defendant
is ordered to pay the plaintiff’s costs on a party and party
scale;
19.3 The plaintiff
is directed to bring the order of this court, in respect of the loss
of earnings, as well as the order
made by this court on 20 April 2022
in respect of the other damages claimed by the plaintiff, to the
notice of the Compensation
Commissioner, within thirty (30) days of
the date of this order, for consideration in respect of any award to
be made in terms
of the Compensation for Occupational Injuries and
Diseases Act 130 of 1993.
S
NAIDOO, J
On
behalf of Plaintiff
: Adv D Hattingh-Boonzaaier
Instructed
by
: Mokoduo Erasmus Davidson Attorneys
Office G03 Regus Business
Centre
Nobel Street
Brandwag
Bloemfontein
(Ref: ND/no/R85)
On
behalf of Defendant
: Ms P Banda
Instructed
by
: The Road Accident Fund
49 Charlotte Maxeke
Street
Bloemfontein
Claim No.
502/12650049/99/0
(Ms P Banda).