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[2023] ZAFSHC 143
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Jafta v Road Accident Fund (6016/2016) [2023] ZAFSHC 143 (11 May 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
6016/2016
In
the matter between:
JUNAID
EDWIN JAFTA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON
:
16 NOVEMBER 2022
JUDGMENT
BY
:
KHOOE, AJ
DELIVERED
ON
:
11 MAY 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 11 May 2023.
INTRODUCTION
[1]
The plaintiff, a male born on 22 January 1999, was
injured on 29 November 2015 alongside a road in Opkoms, Bloemfontein.
The plaintiff
and (5) five friends were pedestrians when two motor
vehicles collided with one another and one veered onto the pavement
where
they were walking, injuring some and killing (2) two. The
plaintiff then proceeded to institute proceedings against 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 30 January 2022, on the basis that the
defendant is liable
for 100% of the plaintiff’s proven or
agreed damages. The plaintiff’s claim was for an amount of R 2
780 639.10, made
up as follows:
2.1
Past medical and hospital expenses: R 59
689.10
2.2
Future medical expenses: R 79 000.00
2.3
Past and future loss of income: R 1 841
950.00
2.4
General damages: R 800 000.00
[3]
On 10 October 2022, by agreement between the
parties, the defendant was ordered to pay general damages to the
plaintiff of R 500
000.00. The matter was set down for 15, 16 and 18
November 2022. The parties agreed that the plaintiff’s claim
for past medical
and hospital expenses would stand over for later
adjudication.
[4]
The parties submitted at the hearing that they
settled future medical expenses, I therefore will not make an order
on it.
[5]
The plaintiff was a student at the time of the
accident and had no income, therefore, there was no past loss of
income. The only
issue for determination is the quantum of
Plaintiff’s future loss of income.
[6]
The parties further agreed to settle the general
damages in the amount of R280 000.00 after apportionment of 20% was
applied.
[7]
I have been called upon to decide the future loss
of income.
[8]
By agreement between the parties, the plaintiff
handed in the reports of the following experts; Dr JJ Schutte
(general practitioner),
Dr LF Oelofse (orthopaedic surgeon), Dr B
White (plastic surgeon), Ms Linda de Rooster (educational
psychologist), Dr DA Shevel
(practicing psychologist), Ms Liezel
Stoltz (occupational therapist), Dr EJ Jacobs (industrial
psychologist), Dr DR Bogatsu (orthopaedic
surgeon), Dr Kheswa
(industrial psychologist) and Munroe Forensic Actuaries as evidence.
[9]
As already mentioned, the accident happened in
Opkoms on 29 November 2015. The plaintiff together with his five (5)
friends were
walking on the pavement when two-vehicles collided and
veered off the road onto the pavement they were on, killing some and
injuring
the plaintiff.
[10]
The plaintiff was admitted to hospital for
approximately one week and was discharged with his arm in a sling
that he wore for three
(3) weeks. He attended three (3) physiotherapy
sessions.
[11]
According to Dr Oelofse’s report, the
plaintiff suffered head/facial injury with occasional headaches,
cognitive changes,
psychological trauma and disfigurement; a left
humerus fracture with painful shoulder, residual biceps, tendonitis
and scaring;
lower back injury resulting in scoliosis lower back,
chronic back pain, L4-5 and L5-S1 spondylosis.
[12]
The report describes that the plaintiff was
admitted and treated conservatively by means of elevation of his left
arm and pain medication.
He was taken to theatre on 30 November 2015,
where an open reduction and internal fixation of his left upper arm
was performed.
He was discharged with his arm in a sling which he had
to wear for three (3) weeks, and had to go back for a follow-up
appointment
where all sutures from the surgery and lacerations on his
head were removed.
[13]
In the report, the plaintiff is said to currently
suffer from constant pain in his left upper arm, aggravated by
prolonged period
of use like carrying light objects, working above
shoulder height, severe pain tends to radiate into his left shoulder
which decreases
his ability to use his left arm further. The
plaintiff now suffers from lower back pain which is mostly present
after being active
for long periods and struggles with muscle spasms
which increase his pain and decrease movement in his back and
radicular symptoms
in his lower limbs. Activities such as sitting for
long periods, working hunched over or carrying weight remain painful
and difficult
to perform.
[14]
Dr Oelofse concluded that if conservative
treatment for these injuries is not effective or plaintiff develops a
resistant pain in
his left shoulder, an arthroscopy must be
considered. He specifically said the plaintiff’s lower back
injury had a profound
impact on his amenities of life, productivity
and working ability and will continue to do so in the future. He said
that timely
and successful treatment of his orthopaedic injuries will
increase his productivity but as the degeneration in his lumber spine
progresses, his productivity will decrease again. He placed the
plaintiff’s chronic pain probability at 75% for the rest
of his
life, with periodic flare-ups that will necessitate treatment,
medication and sick-leave which could happen two (2) to four
(4)
times per year. His assessment was that ultimately, the plaintiff is
an unfair competitor in an open labour market and that
had the
accident not happened, the plaintiff would have been able to work
till the retirement age of sixty- five (65). If accommodated
in a
light-duty/ back-friendly position, provision must be for ten (10)
years.
[15]
As far as the head injury is concerned, Dr Oelofse
reported that the laceration on the right-frontal region of his head
had healed
well but there is visible scaring remaining. The head
injury caused occasional headaches, decreased concentration span,
loss of
short-term memory, possible cognitive impairment leading to
decreased academic performance, disfigurement and possible
psychological
trauma in the form of depressed mood and behavioural
changes. He diagnosed the plaintiff with post-traumatic stress
disorder.
[16]
Dr Shevel reported that the plaintiff must be
considered to be suffering from the chronic form of post-traumatic
stress disorder.
He reported that although the plaintiff had
behavioural and academic problems prior the accident, his IQ testing
falls in the border
line of low normal range but this could be
affected by anxiety and depression. He recommended intensive
psychotherapy for at least
four (4) to five (5) years and should
ideally be admitted into a psychiatric clinic for about four (4)
weeks. He also reported
that post-traumatic stress disorder is a
condition in which relapses and recurrences frequently occur.
[17]
The plaintiff secured a Grade 12 qualification
(NQF4). Mrs de Rooster first reported in January 2018 that the
plaintiff had
behavioural and learning problems prior the accident.
He smoked cannabis and made himself guilty of various discipline
related
issues, which almost resulted in expulsion and he failed
certain grades. She was of the opinion that due to his behavioural
difficulties,
low scholastic and cognitive functioning, further
academic qualifications will probably not be successful and that NQF4
would have
remained his highest outcome. In her last report she said
that due to the psychiatric diagnosis, orthopaedic injuries and
scarring,
the plaintiff will be rendered a vulnerable employee and
not because of his low cognitive abilities.
[18]
Ms Stoltz reported that not only does the
plaintiff have physical limitations such as decreased bilateral
grip-strength, he also
had symptoms of depression, aggression,
personality change, concentration problems. She said that these
functional difficulties
may have a negative effect on his working
life and work productivity, and he may find learning new skills
difficult due to poor
concentration and demotivation. Mrs Van Zyl
reported continued cognitive deficits with poor concentration. She
said that considering
the psychological pathology and other
orthopaedic pathology, along with recommended future surgery, the
accident and its sequelae
will likely continue to have a negative
impact on the plaintiff’s productivity and workability in
future. He will always
be an unfair competitor within an open market
and will in the future not be in a position to perform exceeding
light demands.
[19]
Dr Jacobs reported that the plaintiff’s
scholastic level can be accepted as NQF4 and he was unlikely to
achieve tertiary qualification
including business management
certificate he had registered for at CTI. He further said that the
plaintiff’s career would
be restricted by his physical
impairment, psycho-social-behavioural problems. He recommended that
the plaintiff work in a more
structured sympathetic environment as he
may be prone to conflict, absenteeism, subordination, misconduct,
ignoring company procedures
and other forms of unwanted behaviour. He
said income associated with the plaintiff’s NQF4 early career
R71 000.00, mid-career
R142 000.00 and late career R 207 000.00.
Because of his orthopaedic injuries, he has considerable restrictions
to compete for
jobs such as mining, farming, construction, SAPS,
handywork as a lot of them need physical capacity. He will be
restricted to sedentary
and light job demands; however, sedentary
work may be a challenge to secure due to his psycho-social
impairments.
[20]
The defendant accepted the plaintiff’s
actuarial calculation before contingency and made an offer to settle
past and future
loss of earning by applying a 35% pre-morbid
contingency in respect of future loss and 25% contingency in respect
of post-morbid
future loss. The plaintiff contends that the
contingency in respect of pre-morbid future loss of income should be
25% and contingency
in respect of post-morbid future loss of earning
should be 20%.
[21]
Counsel for the defendant submitted that the
plaintiff’s reports were accepted and could not take the matter
further regarding
the higher pre-morbid contingency. She submitted
that the parties were not far apart and the court could exercise its
discretion.
[22]
In
Southern
Insurance Association Limited v Bailey N.O
,
[1]
it was said;
“
Even
where method of actuarial calculations is adopted the trial Judge
still has a discretion to award what he considers right …can
make a discount for contingencies…nature of contingencies that
can be taken into account…such contingencies not always
have
to be adverse”
[23]
In
addressing the higher contingency application that the defendant
applied in the proposed agreement, Counsel for the plaintiff
referred
me to a number of authorities. In
Groning
v Road Accident Fund
[2]
Strydom J said the following;
“
With
regards to the minor in casu and his specific capabilities, I am of
the view that, a 25% pre-morbid contingency deduction would
cater for
the risk that he might not have (even if the accident had not
occurred) obtained the certificate/ diploma level. This
caters inter
alia for the eventualities that his studies may have taken longer,
financial restrictions or that he would have failed
more grades,
giving the pre-existing learning disabilities
.”
[24]
Counsel for the plaintiff further submitted that
having looked at the above authorities and others similar to the
present case,
the courts generally have not been inclined to apply a
much higher contingency (certainly not as much as 35%) where a
plaintiff
has, for instance, a record of cognitive disabilities and
other problems before the accident. He argued that the courts have
also
not been inclined to apply a much lessor post-morbid contingency
in respect of future income, because it has been said that the
injuries had no effect on the cognitive ability of the plaintiff but
the accident had negatively affected his physical abilities.
[25]
I find no reason why a higher contingency should
be applied in the present scenario. The defendant has accepted the
plaintiff’s
reports and I also could not find reasons to
disagree with the reports. Moreso when nothing to the contrary has
been placed before
me. In my view, a 25 % contingency deduction of
pre-morbid is fair and caters for risks. A post-morbid deduction of
20% is fair
as the experts did say he is an unfair competitor in the
labour market due to his psychiatric diagnosis.
[26]
In the result, I make the following order:
26.1 The defendant
is liable for payment to the plaintiff in the amount of R 1 432
285.00 (one million four hundred and twenty-three
thousand two
hundred and eight-five rand) [hereafter “capital amount”],
resulting from a motor vehicle collision that
occurred on 29 November
2015.
26.2 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:
26.2.1 The reasonable
preparation/ qualifying and reservation fees and expenses (if any) of
the following experts:
26.2.1.1 Dr LF Oelofse
(Orthopaedic surgeon);
26.2.1.2 Dr PB White
(Plastic and reconstructive surgeon);
26.2.1.3 Dr DA Shevel
(Psychiatrist);
26.2.1.4 Mrs L de Rooster
(Educational Psychologist);
26.2.1.5 Ms L Stoltz of
Rita van Biljon Occupational Therapists;
26.2.1.6 Mrs L van Zyl of
Rita van Biljon Occupational Therapists;
26.2.1.7 Dr EJ Jacobs
(Industrial Psychologist);
26.2.1.8 Munro Forensic
Actuaries.
26.3 The payment
provisions in respect of the aforegoing are ordered as follows:
26.3.1 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 - […]
Branch Code - […]
Account No. - […]
Reference - […]
(Quote the reference at
all times)
26.3.2 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.
26.4 Interest shall
accrue at the statutory rate per annum, compounded, in respect of:
26.4.1 The capital claim,
calculated from 14 (fourteen) days from the date of this order.
26.4.2 The taxed or
agreed costs, calculated from 14 (fourteen) days from date of
taxation, alternatively date of settlement of
such costs.
26.4.3 The plaintiff’s
claim for past hospital and medical expenses is hereby separated in
terms of Rule 33(4) and postponed
to the pre-trial.
N.J. KHOOE, AJ
On
behalf of the Plaintiff:
Adv.
M C Louw
Instructed
by:
Honey
Attorneys
Bloemfontein
On
behalf of the Defendant:
Ms.
K Mkwanazi
Instructed
by:
State
Attorney
Bloemfontein
[1]
1884
(1) SA 98
(A) 98E-F.
[2]
[2019]
JOL 42902
(GP).