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[2023] ZAFSHC 147
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Nelson v Road Accident Fund (3742/2016) [2023] ZAFSHC 147 (5 May 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 3742/2016
In
the matter between:
LORENZO
BEVAN NELSON
PLAINTIFF
And
ROAD ACCIDENT FUND
DEFENDANT
CORAM:
NAIDOO J
HEARD
ON: 4 NOVEMBER 2022
DELIVERED ON: 5
MAY
2023
JUDGMENT
[1]
The plaintiff, Lorenzo Bevan Nelson (the plantiff), issued
summons against the defendant, the Road Accident Fund (RAF)
for
damages arising out of injuries suffered by him, in a motor
vehicle accident which occurred on 19 December 2012 at the
crossing
of the Dewetsdorp Road and the N6 motorway to East London, in the
Free State Province. The plaintiff was a passenger in
one of the two
motor vehicles involved in the collision. 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 (which were
settled on the morning of the first day of trial on 18 October 2022),
past and future medical expenses
and hospital expenses. The only
issue for this court to adjudicate was the past and future loss of
earnings and specifically the
percentage of contingency deductions to
be applied to loss of earnings. Adv (Ms) K Petersen represented the
plaintiff and Ms K
Mkhwanazi represented RAF.
[2]
The plaintiff, who lives with his parents at the premises of the
Grootvlei Prison (where his father works), sat for his matric
examination in 2012. Having failed the examination, the plaintiff
repeated matric in 2013 and obtained his Senior Certificate.
The
accident happened during the school holidays in 2012, after he wrote
his matric examination, so he had not lost any time at
school. The
plaintiff was 18 years old at the time and had never been employed
prior to the accident. The injuries he suffered
are recorded as
fracture dislocation of the right hip, multiple abrasions to both
arms and mild head injury.
[3]
As indicated, at the commencement of the hearing of this matter, and
as a result of most of the damages having been settled,
the court was
required to adjudicate the issue of past and future loss of earnings.
[4] The plaintiff
was examined and interviewed by various medical
experts, from 2013,
including a follow-up assessment in September 2021 by an industrial
psychologist. I will deal only with those
experts whose reports
and/or opinions have a bearing on the issues to be adjudicated by
this court. The following is gleaned from
the medico-legal reports
filed, and is accepted to be common cause as no issue has been taken
with same:
4.1 The plaintiff
suffered restriction on his ability to participate in vigorous
activity and sports after the accident;
4.2 He did not meet the
academic requirements to study for physiotherapy, which he intended
to; this is unrelated to the accident
4.3 It was assumed that
he may have qualified as a fitness trainer and entered the job market
as such, at age 24 years, but for
the accident;
4.4 His ability to enter
the job market was not negatively impacted by the accident although
his job opportunities would be narrower;
4.5 He suffered no
psychological or neurological deficit as a result of the accident
4.6 His cognitive
functions were not impacted by the accident;
4.7 the plaintiff
suffered multiple scarring to his forearms
[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 FP Du Plessis, asserted in 2013, that he was unable to
comment on the plaintiff’s future
employability, as that would
be determined by the healing or otherwise of the right hip. He
postulated that there was a 25% possibility
of complications
occurring which would impact on future employability. Another
Orthopaedic surgeon, Dr Ziervogel, said in April
2019, almost seven
years after the accident, that “
the patient should be able
to do the work of a salesman until normal retirement age. He is
however handicapped as far as his sporting
activities are concerned.”
[6] The neurosurgeon, Dr
Wilkinson, who assessed the plaintiff in November 2014, indicated
that the plaintiff functioned at a relatively
high cognitive and
intellectual level and diagnosed the head injury as a mild concussion
without permanent impairment, which did
not contribute to the
calculation of the whole person impairment. He further indicated that
the plaintiff has the mental and cognitive
ability to achieve the
career goal of a physiotherapist, but doubted if his injuries would
enable him to sustain such a job to
normal retirement age. Ms Milne,
the occupational therapist took account of some of the medico-legal
reports I have mentioned,
and assessed the plaintiff in April 2015.
She conducted tests to assess his upper and lower body capabilities,
and found that with
regard to the upper extremities, he could
function within a normal range, whereas he was limited with regard to
the lower extremities,
as a result of his injuries. She too made
conclusions with regard to physiotherapy as a career goal for the
plaintiff. She asserted
that the plaintiff has the physical strength
but not the endurance to perform the duties of a physiotherapist, as
it might be too
much of a physical strain. She opined that he should
rather focus on areas such as hydrotherapy or lecturing of students
[7] Ms S Van Jaarsveld,
the industrial psychologist, took account of all the medico-legal
reports filed, and quoted relevant extracts
from each report to
support her conclusions regarding the plaintiff’s capabilities
and future employability. She evaluated
the plaintiff on three
occasions, initially on 25 March 2015, and thereafter on 5 June 2019
and 29 September 2021. Ms Van Jaarsveld
gave a detailed exposition of
the plaintiff’s background, educational history, cognitive
functioning, socio-economic circumstances
and future employment
prospects. She was of the view that after he obtained his matric
qualification, one would have to assume
a probable career path that
the plaintiff would have followed, had the accident not occurred, in
order to link the qualification
to a career level. Based on the
plaintiff’s pre-accident academic performance, she estimated
that his intellectual functioning
would have been in the average
range, which is in keeping with the opinion of the neurosurgeon, Dr
Wilkinson, that the plaintiff’s
concentration, memory, insight
and reasoning are normal.
[8] Ms Van Jaarsveld was
of the opinion, that had the accident not occurred, the plaintiff
would have undergone formal training
at a tertiary institution and
would have obtained a Bachelor’s degree or equivalent
qualification. She worked on the assumption
that he would have
entered the open labour market at age 24 years as a fitness trainer
and would have been employed in the fitness
industry until he retired
at 65 years. Ms Van Jaarsveld obtained collateral information from
the manager of a local fitness centre
regarding the earning capacity
of a fitness trainer, and asserted that it is extremely difficult to
set an average salary/package
for a fitness trainer, due to a number
of variable factors which determine the earning capacity of a fitness
trainer.
[9] Ms Van Jaarsveld
opined that someone with a Grade 12 certificate and a post school
qualification would in all probability enter
the labour market on a
salary equivalent to the median of Paterson level B3, which in this
case is R275 000.00 per annum.
Progression to the next level
would probably occur every three to five years, and the plaintiff in
that situation would have reached
his plateau at the median of
Paterson level C3, being R582 000.00. With regard to the
plaintiff’s post-accident income
potential, Ms Van Jaarsveld
indicated that he started his university studies in 2015, having
registered for a Bachelor’s
degree in Humanities but
discontinued studies because of pain and discomfort. From 2016 to the
end of 2017, he worked at different
jobs on a part-time basis until
he secured permanent employment in 2019, as a salesperson. He held
this position until January
2021, when the company closed its offices
and he was retrenched. He has been unemployed since February 2021.
[10] From an industrial
psychological perspective, Ms Van Jaarsveld opines that the
plaintiff’s injuries could negatively
affect his ability to
secure and maintain employment and would also negatively affect his
work performance, and hence his career
advancement opportunities. She
points out that in calculating a monetary compensation for the
plaintiff’s claim, it should
be borne in mind that the accident
had no impact on his entry into the open labour market. Due to his
discontinuing his tertiary
studies as a result of accident-related
pain and discomfort, he would enter the labour market at a lower
income level, with earnings
equivalent to the median of a
semi-skilled worker in the non-corporate sector. She is of the
view that he should be compensated
for the difference between what he
would have earned, which I mentioned earlier, and what he would earn
as a semi-skilled worker.
[11]
The plaintiff also engaged Mr W Loots, an actuary. After receiving
instructions from the plaintiff’s attorneys and based
on Ms Van
Jaarsveld’s report, he undertook a detailed exposition of the
pre-accident and post-accident scenarios in respect
of 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. He calculated the loss of earnings, applying a
pre-accident contingency deduction of 5%/20% and
a post-accident
contingency deduction of 5%/35%, as instructed by the plaintiff’s
attorneys. His calculations yielded an
amount of Six Million Four
Hundred and Six Thousand Three Hundred and Twenty Six Rand (R6
406 326.00) in respect of loss of
earnings, adding that the
calculations are based on information, instructions and assumptions
provided to him.
[12] RAF engaged four
experts, Dr M Matjane, a Neuro-Psychiarist, Dr TS Bogatsu, an
Orthopaedic Surgeon, Ms S Moagi, an Occupational
Therapist and Mr H
Solanki, an actuary. I pause to mention that RAF accepted the expert
reports filed by the plaintiff, and consequently
those witnesses were
not called by the plaintiff. RAF indicated on the first day scheduled
for trial that they are not in agreement
with the calculations, and
particularly the contingency deductions, of Mr Loots, the plaintiff’s
actuary. Dr Matjane, interviewed
and assessed the plaintiff on 21
February 2017, just over four years after the accident. He appears to
have been provided with
only the RAF1 form and the plaintiff’s
hospital records for the purposes of his evaluation. He therefore,
had no recourse
to the reports of the plaintiff’s experts. Dr
Matjane outlined briefly the plaintiff’s injuries, the medical,
family,
educational and occupational history obtained mostly from the
plaintiff. His assessment of the plaintiff focused on impact of his
injuries from a neurological and psychiatric point of view. Dr
Matjane , in considering the plaintiff’s injuries was
of the
view that maximum medical improvement had been reached and further
deterioration or improvement in his condition was not
anticipated.
Similarly, with the cognitive assessment, the plaintiff performed
well and did not indicate any cognitive deficiencies
or challenges.
His view was that the head injury suffered by the plaintiff is a
mild, transient, traumatic brain injury, which
is without
neuropsychiatric sequelae. He was also of the view that the plaintiff
did not suffer serious permanent disfigurement,
that his injuries did
not affect his life expectancy and did not negatively impact on his
competitiveness in the open labour market.
He defers to the relevant
experts in respect of these aspects.
[13] Dr Bogatsu assessed
the plaintiff on 5 March 2018, approximately a year after Dr Matjane.
He noted the plaintiff’s
personal details, injuries and
treatment history. It seems that Dr Bogatsu only had recourse to the
RAF 4 form, which he in fact
completed. The RAF 1 form and the
plaintiff’s hospital records were not made available to him,
nor were the reports of the
plaintiff’s experts. He therefore,
obtained the details of the accident, the plaintiff’s injuries
and treatment from
the plaintiff. Dr Bogatsu’s clinical
examination of the plaintiff revealed that the eyes, ears, throat,
chest and abdomen
were normal. The head, neck and cranial nerves were
normal and full range of cervical spine movements, without pain was
observed.
The upper limbs were
normal, save for multiple scarring on both upper limbs. Full range of
painless movements were observed at both
shoulders, elbows, wrists
and hands. The examination of the back revealed that the
thoracolumbar spine movements were such that
the plaintiff was able
to painlessly touch his toes with extended arms. The extension was
assessed to be in the range 0 to +- 20
o
.
[14] With regard to Right
lateral flexion in respect of the examination of the back, Dr Bogatsu
notes that in an erect position,
the plaintiff was able to painlessly
touch his right calf with an extended right arm. A similar reach was
noted on the left, with
his pelvis being square and stable. The lower
limbs were observed to be clinically normal with full range of
movements noted at
the hips, knees, ankles and feet of both legs. His
gait was normal, and perusal of a radiology report compiled the same
day (5
March 2018) indicated that the lumbar spine and right hip were
normal. Dr Bogatsu deferred to the opinions of the relevant experts
in respect of non-orthopaedic injuries, for example a plastic surgeon
in respect of the scarring. From the information available
to him and
his examination of the plaintiff, he concluded that the plaintiff
sustained minor orthopaedic injuries in the accident
which resulted
in chronic mechanical pains. He also opined that the plaintiff was
not incapacitated by orthopaedic related injuries
nor have his
general health and longevity been adversely affected by the accident.
It was also his opinion that the plaintiff’s
injuries have not
resulted in any significant losses with regard to his mental,
employment and earning capacities, nor his amenities,
independence
and enjoyment of life.
[15] Ms Moagi, the
Occupational Therapist engaged by RAF, also assessed the plaintiff on
5 March 2018. She had recourse to the reports
of Drs Matjane, Bogatsu
and Bohme (the radiologist). She recorded a detailed personal,
medical and treatment history, the plaintiff’s
injuries and
accident details. She also subjected the plaintiff to a number of
tests to assess his physical capacity in relation
to occupational
performance. In summary, she found the neck, back and upper limbs
functioning normally. The left lower limb was
also normal, while the
right lower limb was weaker. The plaintiff also reported pain in the
right hip. The plaintiff complained
of pain and discomfort in the
right hip throughout the various tests and exercises, as a result of
which, Ms Moagi found that his
sitting endurance was functional, but
that he had a slightly reduced standing endurance and reduced walking
endurance, walking
speed and mobility. His hand function, balance and
senses were functional. She concluded that that his physical capacity
could
occasionally meet the requirements of work which called for
working below knee/hip level in a squatting or crouching position.
His physical capacity would meet the requirements for work that fell
within the category of sedentary, light to low range medium
work. He
would not be able to meet the requirements of full range medium,
heavy to very heavy type work.
[16] The occupational
therapists, Ms Milne and Ms Moagi compiled a joint minute in which
they agreed on a number of aspects, which
included:
16.1 occupational
therapy sessions to educate the plaintiff on such matters as joint
protection techniques, use of assistive
devices, correct posture
during performance of tasks, methods of task approach and task
execution, etc
16.2 interventions
by various medical and healthcare professionals to assist the
plaintiff improve his physical capacity and
quality of life, such as
a biokineticist to explore other sports activities, physiotherapist
to improve strength and stability
and an orthotist to assist with
devices to correct difference in leg length.
I pause to mention that
it was common cause that the actuary engaged by RAF, Mr Solanki,
based his calculations on certain inputs
from an Industrial
Psychologist, Ms Kheswa, seemingly also engaged by RAF. The latter,
however, failed to file Ms Kheswa’s
report. It appeared to be
common cause that no reliance can be placed on Mr Solanki’s
report, hence I make no mention of
it. Furthermore, Mr Solanki’s
report was compiled in June 2019, and is out of date. The Plaintiff
amended his summons in
the interim, so no reliance could be placed on
Mr Solanki’s report
[17] As indicated, the
issues between the parties appear to be RAF’s disagreement that
the plaintiff suffered past loss of
earnings and its disagreement
with the percentage of the contingency deductions applied to the loss
of earnings. It is trite that
the percentage of the contingency
deduction is in the discretion of the court, which discretion must be
exercised judiciously,
taking into account all relevant factors. The
parties made their submissions in respect of their respective cases,
both orally
and in their written Heads of Argument. I do not deal
with these submissions for the reasons set out below.
[18] It is
trite that the plaintiff bears the onus to prove on a balance of
probabilities that the injuries he sustained
have reduced his earning
capacity, which will result in actual loss. [
See Rudman v Road
Accident Fund 2003(2) SA 234 (SCA); Road Accident Fund v Kerridge
2019(2) SA 233 (SCA)
]. The court in Kerridge said at para 25
“
Indeed, a physical disability which
impacts on the capacity to earn an income does not, on its own,
reduce the patrimony of an injured person.
There must be proof
that the reduction in the income earning capacity will result in
actual loss of income…” Put differently,
there must be
proof that the disability gives rise to patrimonial loss. The latter
of course is dependent on the nature of the
work that the plaintiff
had done prior to the accident or would probably have done had the
accident, giving rise to the disability,
not occurred.
[19] In the present
matter, RAF accepted the reports of the experts filed by the
plaintiff. RAF itself filed expert reports. The
only report that the
court was asked to disregard was that of the actuary engaged by RAF,
Mr Solanki, for reasons I have set out
earlier. Therefore, in the
absence of other evidence, such as
viva voce
evidence, this
court must have recourse to the various expert reports and general
circumstances of this matter in order to make
an order which is just
and equitable. In reading the various reports, several concerns
arose. The first concern was the age of
the various expert reports
filed by the plaintiff. With the exception of Ms Van Jaarsveld, the
Industrial Psychologist and Mr Loots,
the actuary, who filed updated
reports in 2021, just over a year before the trial of this matter was
scheduled to commence, all
the other reports were compiled between
three and nine years prior to the hearing of this matter. RAF’s
expert reports
are dated 2017 and 2018. There was no indication of
what the current condition of the plaintiff is, whether he has
recovered fully
from his injuries, and if not, to what extent his
injuries have impacted upon his employability, and whether he is
currently employed
or not.
[20] The plaintiff’s
academic qualifications (or lack thereof) played a central role in
the information contained in Ms Van
Jaarsveld’s report, which
formed the basis of the actuarial calculations done by Mr Loots, in
respect of loss of earning
capacity and earnings. Some discrepancies
which were noted in the information relayed to different experts at
different times bear
mentioning. The plaintiff told Dr Wilkinson in
November 2014 that he spent 2013 as a recovery year, whereas he told
Ms Van Jaarsveld
in March 2015 that he failed matric and repeated
matric in 2013. With regard to his tertiary studies, he told Dr
Wilkinson that
he had registered for a Bachelor of Social Science
(B.Soc), with Sociology and English as his main subjects. He
indicated that
he was doing extremely well in his studies and
achieving very good marks. He informed Ms Van Jaarsveld in March 2015
that he was
studying Human Movement Science at university, whereas he
told Ms Milne, the Occupational Therapist a few weeks later that he
was
in his second year of study in physiotherapy.
[21] Ms Van Jaarsveld’s
comment in her report in March 2015, in response to the information
that the plaintiff had considered
studying Physiotherapy, was that it
was unlikely as he had not met the admission requirements for
Physiotherapy. There is no information
or evidence to indicate what
became of his studies in B.Soc, for example, whether he completed the
course or not. He did mention
to Ms Moagi that he has a certificate
in Sociology and English, based on which, she opined that sociology
would be more suitable
as a career path, as it fell into the category
of light work. Ms Van Jaarsveld was informed that he abandoned his
tertiary studies
because of pain and discomfort, whereas Ms Moagi was
informed in 2018 that he stopped studying because his doctor advised
him that
he should not study Physiotherapy as he was unable to lift
heavy objects.
[20] The plaintiff was
able to find employment after the accident in a variety of fields
(fibre optic installer, student liaison
officer and a salesperson in
the mobile telephone industry). Since his retrenchment in January
2021, he is alleged to be unemployed.
No reason for this is given,
and in my view, it appears doubtful that his unemployment is related
to his injuries. The medical
reports since 2013 show that there has
been an improvement in the plaintiff’s physical condition.
Compare for example, Dr
Du Plessis’s report in 2013, with that
of Dr Bogatsu in 2018 as well as that of Dr Ziervogel in 2019. The
complete lack of
information or evidence of the plaintiff’s
physical health and capacity since 2019, places this court in the
position that
it cannot properly consider whether the plaintiff’s
injuries have negatively impacted his earning capacity or earnings.
It
would have been expected of the plaintiff to give oral evidence
regarding his present health condition, employment status and earning
capacity. Many of the court’s concerns may well have been
addressed had he done so.
[21] In my view the
reports of the various 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.
Ms van Jaarsveld herself expressed the view that one
has to work on
the assumption that the plaintiff would have completed a tertiary
qualification, for the purposes of the actuarial
calculation. The
circumstances and facts as I have articulated make it difficult to
make the assumptions that Ms Van Jaarsveld
advocates as the
circumstances surrounding the plaintiff’s post-accident
academic performance and history are nebulous, to
say the least. It
is unclear what career path the plaintiff had intended to pursue and
what the real reasons were for the abandonment
of his studies. It is
trite and well established in our law that courts need 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 to which the
plaintiff would not be entitled.
The purpose of a claim such as this is to compensate the plaintiff
for loss that he has suffered
or will suffer and not to make an order
that amounts to largesse. The plaintiff, however, must first
discharge the onus on him
to prove the loss.
[22] With regard to this
claim, the plaintiff has not placed the court in a position to grant
the order he seeks. Courts are loathe
to non-suit a litigant, and
while this court has the option of dismissing the plaintiff’s
claim for loss of earnings on the
basis that the plaintiff has not
discharged the onus on him, the court is not inclined to visit that
hardship upon the plaintiff.
My view is that an order for absolution
from the instance gives the plaintiff an opportunity to return to
court with better evidence,
if same is available. RAF has furnished
the plaintiff with the statutory undertaking in respect of future
medical expenses and
has already paid to the plaintiff’s
attorneys the amount of R46 879.96 in respect of past medical
expenses. The parties
had settled the claim for general damages in
the amount of Six Hundred Thousand Rand (R600 000.00), and Ms
Petersen had indicated
in Chambers that the latter should be made an
order of court. I see no impediment in doing so. With regard to
costs, and considering
the manner in which this litigation was
conducted, I am of the view that each party should pay its own costs.
[23] In the
circumstances, I make the following orders:
23.1 The
defendant’s offer of R600 000.00, accepted by the
plaintiff, in settlement of the plaintiff’s claim
in respect of
general damages, is made an order of court;
23.2 Absolution
from the Instance is granted in respect of the plaintiff’s
claim for loss of earnings;
23.2 Each party
shall pay his/its own costs.
S
NAIDOO, J
On
behalf of Plaintiff
Adv
K Petersen
Instructed
by
Peter
Skein Attorneys
22
Captain Proctor Street
Nobel
Street
Brandwag
Bloemfontein
Ref:
PL Skein/ba/NEL429/0001)
On
behalf of Defendant
Ms
K Mkhwanazi
Instructed
by
The
Road Accident Fund
49
Charlotte Maxeke Street
Bloemfontein
Claim
No. 502/12117730/03/2. Link 3813814
(Ms
K Mkhwanazi)