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[2023] ZAFSHC 72
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Oosthuizen v Road Accident Fund (3801/2017) [2023] ZAFSHC 72 (17 March 2023)
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personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3801/2017
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NM
OOSTHUIZEN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON
:
06 SEPTEMBER 2022
JUDGMENT
BY
:
KHOOE, AJ
DELIVERED
ON
:
17 MARCH 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
the
hand-down are deemed to be 10:00 on 17 March 2023.
[1]
On 5 May 2015, the plaintiff a male born 7
February 1989, was injured in a motor vehicle accident that occurred
at the intersection
of First Street and Stateway, Welkom, Free State
Province. The plaintiff then proceeded to sue the defendant for the
injuries he
suffered as a result of the accident.
[2]
The merits of the claim were settled by
agreement between the parties on 14 August 2018, on the basis that
the defendant is liable
for 80% of the plaintiff’s proven or
agreed damages. The plaintiff’s claim was for an amount of R 6
933 334.04, made
up as follows:
2.1
Past medical and hospital
expenses:00.0. R 26 569.04
2.2
Future medical expenses:
R
540 000.00
2.3
Past and future loss of income:
R
5 766 765.00
2.4
General damages:
R 600 000.00
[3]
The matter served before me on 6 September
2022 with the parties agreeing that the plaintiff’s claim for
past medical and
hospital expenses would stand over for later
adjudication.
[4]
The parties further agreed to settle the
general damages in the amount of R280 000.00 after apportionment of
20% was applied.
[5]
The defendant agreed to furnish an
undertaking in terms of
section 17(4)
of the
Road Accident Fund Act
56 of 1996
for payment of the plaintiff’s future medical
expenses.
[6]
I have been called upon to decide the past
and future loss of income.
[7]
By agreement between the parties, the
plaintiff handed in the reports of the following experts; Dr Khan, Dr
Oelofse, Ms Liebenberg,
Dr Jacobs and Munroe Forensic Actuaries.
[8]
Joint minutes signed by the orthopaedic
surgeons Dr Oelofse and Dr Moloto, joint minute signed by
occupational therapists Ms Liebenberg
and Ms Moagi and joint minutes
signed by industrial psychologists Dr Jacobs and Ms Kheswa were also
handed in.
[9]
At the commencement of the trial, the
plaintiff was called to testify. He testified that prior the
accident, he was employed as
an artisan rigger working at a mine
underground. The only qualification he had was that of an artisan
rigger. He testified that
because of the accident, he had sustained
abrasions to his left knee and ankle and had swelling on his left
knee. He was taken
to theatre where an arthroscopy of his left knee
was performed. Thereafter, he was discharged from hospital with a
prescription
of pain medication.
[10]
The plaintiff testified that he remained on
crutches with a knee-ranger brace for at least two months. During
this period, he attended
physiotherapy and attended several follow-up
appointments with an orthopaedic surgeon. He returned to work after
six weeks. He
testified that he received his basic monthly salary but
did not receive additional income in the form of overtime, bonuses or
standing
time.
[11]
The plaintiff further testified that since
the accident, he experiences pain daily in his left knee when walking
or standing for
long periods of time, when walking up and down
stairs/inclines, while kneeling and squatting. He continues to have
swelling in
his left knee.
[12]
The defendant did not put any version to
the plaintiff. During cross-examination, it was established that the
plaintiff had been
accommodated above the ground for the past six to
seven years. He had been moved to the surface of the mine because he
could no
longer walk long distances. His supervisor has never
complained about his inability to work. He has two assistants that
work with
him every day and he usually asks them for assistance if
there is a task that he is unable to do. He further said that he had
a
red ticket, which means that he had passed his health test which
includes a heat tolerance test for which he must climb stairs.
He did
however explain that he took painkillers to enable him to go through
the test. He further explained that he has not applied
for other work
at the mine or elsewhere as he only has one qualification.
[13]
In their joint minute, the orthopaedic
surgeons Dr Oelofse and Dr Moloto agreed that the plaintiff suffered
a medial meniscus and
anterior cruciate ligament tear, he suffers
from chronic painful knee and post-traumatic osteoarthritis. They
further agreed that
the injury he sustained had a profound impact on
the plaintiff’s amenities of life and will continue to do so in
the future.
They agreed that the plaintiff is now an unfair
competitor in the open labour market. They said that in their opinion
the plaintiff
must be accommodated in a light-duty and sedentary
working environment and must never be allowed to do physical labour.
If he is
to be accommodated, provision must be made for five years
earlier retirement. Both experts agreed that the patient has reached
maximum medical improvement as defined in the AMA guidelines and the
Road Accident Fund Act 56 of 1996
. They agreed that provision for the
following treatment should be made; consultations, x-rays,
physiotherapy, medication, biokinetics,
arthroscopy of the knee and a
total knee replacement.
[14]
In their joint minute, Ms Liebenberg and Ms
Moagi, the occupational therapists noted the left knee injury and
agreed that the plaintiff
will benefit from occupational therapy
intervention. They agreed to defer the possibility for a future
surgery to the orthopaedic
surgeons. They agreed that pre- and
post-operatively the plaintiff will benefit from physiotherapy. They
also agreed that he will
benefit from biokinetic intervention to
improve biochemical alignment and from recommendations regarding
participation in exercise.
[15]
In the joint minute, Dr Jacobs and Ms
Kheswa agreed that the plaintiff was a qualified artisan at the time
of the accident and was
working as a rigger for Sibanye Gold Mine.
They agreed that his career progression as a foreman was likely but
it was difficult
to substantiate. They agreed on his gross income
which included his salary, his overtime and standby income. They
agreed on the
likely early retirement age and noted the expert
medical reports regarding his injuries. Dr Jacobs noted that after
the joint minutes
of the orthopaedic surgeons dated 5 May 2020, a
further assessment of the plaintiff was conducted on 4 April 2022.
Following that
assessment and a consultation with the plaintiff’s
foreman Mr Viljoen on 22 June 2022, it was confirmed that the
plaintiff
was still performing the job of an artisan even though
mostly working on the surface. Because this is still considered heavy
physical
work his retirement age would likely be forty to forty- five
years according to Ms Liebenberg.
[16]
Dr Jacobs and Ms Kheswa then agreed on the
following calculation:
·
R 809 751.00 per annum in 2020 (December
2021 - August 2031 age 42 ½ years)
·
R 239 000.00 per annum in 2020 (September
2031- February 2044)
·
Early retirement at age 55.
PAST LOSS OF INCOME
Overtime: R 12 036 + R 7
868+ R 15 288 (average R 11730 p/m).
Loss for 2 months R 23
460 – R 1 798 = R 21 662
Standby: R 2 629; R 2 442
and R 1 503 (average R 2192)
Loss for 2 months R4382.
[17]
The defendant closed its case without
presenting any evidence. At the end of the re-examination, I gave the
parties an opportunity
to file heads of argument. The plaintiff would
file his heads of argument on 12 September 2022, the defendant would
file on 16
September 2022 and the plaintiff would file his response
thereto on 19 September 2022. Both parties filed on the set timelines
and my gratitude goes to both of them for their extensive heads of
argument.
[18]
From the heads of argument a new issue
arose. The plaintiff understood the agreement by the defendant to
allow their handing in
of expert reports to mean that the reports
would serve as evidence without the need to call in the experts to
testify. Counsel
for the plaintiff submitted that the plaintiff’s
evidence was left unchallenged as the defendant failed to lead any
evidence
to rebut the evidence presented by the plaintiff and failed
to present any expert evidence. Counsel further submitted that even
in cross-examination there was hardly any challenge to the
plaintiff’s evidence.
[19]
The defendant on the other hand contends
that the consent was merely to facilitate the tendering of evidence
and to shorten the
proceedings. Counsel for the defendant submitted
that if the defendant admitted the evidence, it would mean that
everything is
common cause and later argument would be nonsensical.
She submitted that the defendant is,
inter
alia
, to highlight issues arising out
of the evidence, to refer to contradictions between witnesses, and to
deal with improbabilities.
[20]
Before dealing with the quantum claim, I
need to clarify the new issue arising from the heads of argument.
Indeed, the parties agreed
to the plaintiffs’ handing in of the
reports without the need for calling the experts to testify. In this
case it makes it
challenging as the defendant had appointed experts
and the defendant chose not to allow those expert reports to be
tendered in
as evidence. Why this was done is unknown. It is
therefore assumed that the defendant accepts the contents of the
plaintiff’s
reports as correct, otherwise the defendant would
have insisted that all the experts be called in so they could be
challenged with
contradicting opinions or views and for them to
clarify or qualify and/or change views if confronted with a different
view they
had not considered.
[21]
The above should not be construed to mean
that in the absence or failure by the defendant to produce expert
evidence, the court
will blindly accept the evidence of the experts
without in depth analysis. The future loss of income claim before me
is for a significant
amount. The court as the ultimate arbiter has
the responsibility to guard against abuse and to jealously protect
its powers while
at the same time ensuring that justice is served.
[22]
Counsel for the defendant submitted that
because the plaintiff is currently employed by the same employer and
in the same position,
with the employer accommodating him by moving
him above ground at the mine, he no longer performs strenuous
underground work as
done prior the accident.
[23]
Counsel further submitted that in the
plaintiff’s own evidence seven years post the accident, he has
not looked for other
employment opportunities nor has he undergone
any training or studies to equip himself to do other work and the
fact that he has
not been attending any physiotherapy sessions or
other treatment for his leg that he alleges gives him daily pain and
discomfort,
does not correlate with the picture that he is portraying
to the court.
[24]
Counsel for the defendant also submitted
that the joint minutes of the experts do not address or consider the
fact that the plaintiff
is no longer working underground and that
although he is still classified as an artisan rigger, his duties are
not the same as
prior the accident. She further submitted that the
experts did not consider that the plaintiff has two assistants that
help him
with his daily tasks.
[25]
As already mentioned above the defendant
agreed to the handing in of the expert reports without the need to
call the experts to
testify. There was a further joint minute which
was handed in by agreement by Dr Jacobs and Ms Kheswa which was
handed in by agreement
after all evidence had been tendered. In that
joint minute, Dr Jacobs confirmed that the plaintiff was examined
again in April
2021 by Dr Oelofse after the joint minute of 5 May
2020. In Dr Oelofse’s opinion, if the plaintiff is still
performing heavy
physical demands his likely retirement age would be
40 to 45 years. Mr Viljoen, the plaintiff’s foreman, confirmed
that he
is still performing heavy duty work.
[26]
With the above in mind, the defendant’s
averment that the plaintiff is not doing the same work he was doing
prior the accident
is incorrect. The only difference is that he now
works above ground. The work he currently does is still considered to
be heavy-duty
work even though he now has two assistants assisting
him. He testified in re-examination that every rigger has an
assistant anyway.
[27]
The plaintiff in cross-examination
explained that he has not gone for physiotherapy because when he is
off-sick he loses money,
he works 8 ½ hours per day during the
week from 5:30 am to 13:45pm and 12 hours in the weekend. He
confirmed that he still
needs to take painkillers to alleviate the
pain and undertook to attend physiotherapy sessions should the
defendant give him an
undertaking for medical expenses.
[28]
The plaintiff admitted to not applying for
any other jobs but explained that he is only qualified as a rigger.
He admitted that
it would be better to be a crane driver but he
explained that he does not have a license. He stressed that it would
be a lower
pay and that the current mine he works at procures crane
drivers from outside. He further admitted that he has not applied for
a supervisory job but explained that it is because his foreman has
not approved that.
[29]
The experts agree that the plaintiff’s
earning capacity has been hampered by the accident. In as much as
Counsel for the defendant
argued that the work the plaintiff is
currently doing is light, the argument is not supported by any
evidence and I cannot do anything
but reject it. It is true that the
plaintiff could get a crane driving license which would be work that
is considered to be lighter,
however, It would be at a lower pay than
what he is currently getting and there is also no guarantee that he
will even secure a
job after getting a license.
[30]
I
have no reason to question the joint minutes submitted by the various
experts regarding the injuries, the recommendations regarding
the
type of work the plaintiff should undertake going forward and the
provided calculations. Counsel for the defendant referred
me to
Glenn
Marc Bee v Road Accident Fund
[1]
where it was said;
“
The
court can only make a proper determination of appropriate
compensation to award if it takes into account all the relevant
evidential
material and not to be restricted to the joint minute of
experts, which joint minute is based on erroneous assumptions and
incorrect
facts. If the court ignores reliable and credible evidence
placed before it, that would undermine
the purpose of the Road Accident Fund
.”
[31]
However, in the present case before me, the
defendant did not call any witnesses and agreed to the handing in of
expert reports
and joint minutes. I therefore have nothing before me
that advances the defendant’s contentions. The above paragraph
is not
applicable to this case as there is no evidence or joint
minutes based on erroneous assumptions or incorrect facts.
[32]
Munro actuaries calculated the plaintiff’s
past and future loss of earnings on the assumptions and opinions
contained in Dr
Jacobs’s report. They applied a contingency
deduction of 5% in respect of past loss of income, 15 % in respect of
the plaintiff’s
future earnings in an uninjured scenario and
25% in respect of the plaintiff’s future earnings in the
injured scenario. The
RAF Amendment Cap was applied after the
apportionment. The amount for past and future loss of earnings as R 4
564 860.00.
[33]
I find no reason to reject the version of
the plaintiff as supported by the various experts. I am satisfied
that the plaintiff has
suffered injuries that have affected his
future earning capacity. In my view it would be justified in the
circumstances of this
case to award an amount for past and future
earnings as calculated by Munroe actuaries.
[34]
In the result, I make the following order:
34.1
The defendant is liable for payment to the
plaintiff in the amount of R 4 844 860.00 (Four Million Eight Hundred
and Forty-Four
Thousand, Eight Hundred and Sixty) [hereafter “capital
amount”], resulting from a motor vehicle collision that
occurred
on 5 May 2015, as set out hereunder:
34.1.1
R 280 000.00 in respect of general damages;
34.1.2
R 4 564 860.00 in respect of past and
future loss of income.
34.2
The defendant is ordered to furnish the
Plaintiff with an undertaking in terms of
section 17(4)
of the
Road
Accident Fund Act 56 of 1996
, for 100% of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home or the
treatment of or rendering
of a service or supplying of goods to the
Plaintiff arising out of injuries sustained by him in the motor
vehicle collision mentioned
above, in terms of which undertaking the
defendant will be obliged to compensate him in respect of the said
costs after the costs
have been incurred and on proof thereof.
34.3
The defendant to pay the plaintiff’s
taxed or agreed party and party costs on High Court scale, until date
of this court order,
including but not limited to the costs set out
hereunder:
34.3.1
The reasonable qualifying fees of the
following experts:
34.3.1.1
Dr LF Oelofse (Orthopaedic surgeon)
34.3.1.2
Dr RS Khan(Independent medical examiner)
34.3.1.3
Drs van Dyk And Partners (Radiologists)
34.3.1.4
Ms L Liebenberg (Occupational therapist)
34.3.1.5
Dr EJ Jacobs (Industrial psychologist)
34.3.1.6
Munro Forensic Actuaries.
35
The payment provisions in respect of the
aforegoing are ordered as follows:
35.1.1
Payment of the capital amounts shall be
made without set-off or deduction, within 180 (hundred and eighty)
calendar days from the
date of granting of this order, directly into
the trust account of the plaintiff’s attorneys of record by
means of electronic
transfer, the details of which are the following:
Honey Attorneys - Trust
Account
Bank - Nedbank, Maitland
Street Bfn
Branch Code - 11023400
Account No. - [....]
Reference - HL
Buchner/YV/J03743
(Quote the reference at
all times)
35.1.2
Payment of the taxed or agreed costs shall
be made within 180 (hundred and eighty) days of taxation, and shall
likewise be effected
into the trust account of the plaintiff’s
attorney.
N.J.
KHOOE, AJ
Appearance:
On
behalf of the Plaintiff: Adv.
J C Coetzer
Instructed
by:
Honey
Attorneys
Bloemfontein
On
behalf of the Defendant: Ms. C. Bornman
Instructed
by:
State
Attorney
Bloemfontein
[1]
(093/2017)
[2018] ZASCA 52
(29 March 2018) at para [31].