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2022
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[2022] ZAFSHC 319
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Mabaleka v Road Accident Fund (3423/2019) [2022] ZAFSHC 319 (17 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3423/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
REFILWE
DIBUSENG MABALEKA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
25
& 26 OCTOBER 2022
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
17
NOVEMBER 2022
[1]
In the late afternoon of 16 March 2018 the Plaintiff was travelling
as a fare paying
passenger in a vehicle which collided with another
vehicle in the vicinity of Kroonstad. She sustained injuries to her
neck, left
hip and lower back in the collision, and she was
transported to hospital in Kroonstad, where she received treatment
for a week.
Since her discharge from hospital, and up to the present
day, she is unable to walk without the assistance of crutches. On the
day of the collision, the Plaintiff was only 20 years old.
[2]
In the summons, an amount of
R6 519 139.10 is claimed by the Plaintiff, which amount
is
calculated as follows: R 5000.00 for past medical and hospital
expenses, R45 000.00 for future medical treatment, R183
573.00
for past loss of income, R5 535 566.00 for future loss of income
and R750 000.00 for general damages. At a Rule
37 pre-trial
conference held between the parties on 7 April 2022, the Defendant
conceded the merits of the Plaintiffs claim, and
it was agreed that
the only issue in dispute was the extent of the damages suffered by
the Plaintiff.
[3]
At the commencement of the trial proceedings the Court was informed
that the Defendant
had rejected the claim for general damages on the
ground that the Plaintiff did not suffer serious injuries, but that
this decision
will be taken on review to the relevant Council. In
addition, the Court was informed that the Defendant had agreed to
furnish the
Plaintiff with an undertaking in terms of Section
17(4)(a) of Act 56 of 1996 in respect of future medical costs. The
only issues
to be determined by the Court are the past and future
loss of income and the contingencies to be applied.
[4]
In the course of the trial proceedings, the Plaintiff presented the
evidence of three
expert witnesses in support of her claims. The
Defendant called no witnesses to testify, and choose to rely only on
the cross-examination
and closing submissions made by its counsel. It
soon transpired during cross-examination of the Plaintiff's witnesses
that the
Defendant’s case turned on the diagnosis recorded in
the Plaintiff's hospital records that she only had a soft tissue
injury
and that no obvious fractures were found.
[5]
The first witness who testified for the Plaintiff, was ms Luna
Stehle, an occupational
therapist. Before her marriage and at the
time she compiled her report, her surname was Greyling. She testified
that she qualified
at the Stellenbosch University, and that she
thereafter worked in hospitals for a period of 6 years. During this
time she worked
in spinal units as well.
[6]
Ms Stehle saw the Plaintiff on 23 March 2020 for an evaluation. She
reported that
the Plaintiff was a student for a diploma in human
resources management at the time of the accident. Since the accident,
she remained
unemployed with highest level of education grade 12. She
further reported that the Plaintiff is suffering from chronic pain in
her lower back and left hip since the accident. This pain resulted in
her becoming physically deconditioned with general muscle
weakness,
reduced standing balance, restricted mobility, reliant on mobility
aids for walking, poor physical endurance and exercise
tolerance. In
summary, ms. Stehle reported that the Plaintiff’s postural
abilities, mobility and weight handling abilities
does meet the
downwards requirement to perform sedentary work with work
modifications (no load handling) in the open labour market.
However,
the Plaintiff will find it difficult to go out and seek employment.
On a question by the Court, ms. Stehle responded that
the chances of
the Plaintiff finding any suitable employment are not good without
treatment. But even with treatment, she will
still suffer from the
chronic pain. Treatment will only have a limited effect on her pain.
[7]
Dr. Louis Oelofse, a spinal surgeon, testified next. He examined the
Plaintiff on
10 June 2020, and found a C1-C2 disc injury, and
probable C2 and C3 fractures which resulted in C1-C2 ligamentous
instability,
chronic pain and spasms, residual headaches and a high
probability of developing higher neck spondylosis. He also diagnosed
a thoracolumbar
spine injury resulting in mechanical back pain. He is
of the opinion that the Plaintiff can only be accommodated in a
permanent
light duty and spine friendly working environment. That
being said, she will most probably have chronic pain for the rest of
her
life, regardless of treatment she receives. This makes her an
unfair competitor in the open labour market, dr. Oelofse testified.
[8]
He further testified that the
Plaintiff’s upper neck injury qualifies as a serious
injury,
because the ligaments in that area are torn. She will most probably
need a vertebrae fusion, and will probably find herself
in a much
worse situation in 10 to 20 years time. Surgery may again be needed
then. She will also not work until age 65, and will
have to retire 5
to 10 years earlier. He testified that the hospital missed the damage
to the C2 and C3 vertebrae and the neck.
The Plaintiff should not
have been discharged from hospital on crutches, he testified.
[9]
In cross-examination, dr. Oelofse opined that the hospital missed the
C2 and C3 fracture
because an MRI and CT scan was not done. He was
able to detect injury to the ligaments in the neck and probable C2
and C3 fractures
from a normal X-ray he had done. A fusion of the C1
to C2 vertebrae will stop the abnormal movement between the levels,
he testified.
[10]
Mr Ben Moodie, an industrial psychologist of some 30 years
experience, was the last witness called
by the Plaintiff. He
testified with reference to the testimony of the other expert
witnesses that if the condition of the Plaintiff
does not improve by
means of treatment, then she would not be able to enter the open
labour market. Presently she is suffering
from post-traumatic stress,
depression and chronic pain. Therefore the chances are not good that
she will be able to complete her
studies, and in turn that will
impede her chances of finding employment. In her present condition,
there is no possibility that
the Plaintiff will find employment. It
may be possible if she improves, but that does not sound very likely
he testified. In cross-examination,
mr. Moodie reiterated that even
with treatment, the chances are not good that the Plaintiff will
improve significantly to work.
[11]
With this the case for the Plaintiff was closed. As mentioned
earlier, the Defendant did not
call any witnesses to testify. Now all
the witnesses called by the Plaintiff made a good impression on the
Court, and there is
no reason why their testimony should not be
accepted as reliable and trustworthy. I find that there is no
substance in the defense
of the Defendant that the Plaintiff only
suffered from a soft tissue injury and that no obvious fractures were
found.
[12]
The Court accepts without reservation that the Plaintiff is a young
woman who sustained a serious
injury in the accident. The ligaments
in her neck are torn, causing instability of movement. A fusion of
the C1 and C2 vertebrae
is needed for stability, and there is a
possibility that the C2 and C3 vertebrae are fractured. She needs
crutches to walk, and
she will suffer from chronic pain for the rest
of her life. Although she will be able to do sedentary work, her
chances of finding
employment are not good, even if her condition
improves with treatment. On top of it all, she will need to undergo
surgery in the
future, and she will not be able to work until age 65.
[13]
This brings me to the issue of contingencies. Ms Mkhwanazi appearing
for the Defendant, suggested
that a pre-accident contingency of 25%
should be applied, because the Plaintiff was unemployed at the time
of the accident. A contingency
of 35% should be applied for the
post-accident scenario, she suggested. According to her, the
Defendant would then be liable to
pay the amount of R986 871.00
to the Plaintiff for past and future loss of earnings.
[14]
On the other hand, Mr Marx, appearing for the
Plaintiff, stated that he is not asking that the Plaintiff
be found
totally unemployable, because of the probable scenario that her
condition will improve with treatment. He suggested a
pre-accident
contingency of 20% and a post-accident contingency deduction of 70%.
This would leave a 50% differential, reflecting
the probability that
she will be unemployed for 50% of the time, the argument went.
[15]
As far as the assessment of contingencies is
concerned, a court has a wide discretion
[1]
.
The Court nevertheless requested on 26 October 2022 that the actuary
re-calculate the loss of earnings by applying the contingencies
proposed by mr. Marx, and allowed him time until 28 October 2022 to
do so. The Court also requested mr. Marx to submit a draft
order on
that date.
[16]
On 28 October 2022 the required re-calculation and
the draft order were duly submitted by e-mail. In the
re-calculation
the actuary applied a 5% contingency deduction for past losses (pre-
and post-morbid) and a 20% deduction for future
losses (pre-morbid)
and a 70% total deduction for post-morbid future losses. He then
arrived at a total loss of earnings of R8 190
693.00, having
taken into account the effect of the RAF cap. At the same time, the
Plaintiff served a notice to amend her particulars
of claim to bring
it in line with the re-calculations of the actuary. This notice
intimated that the application for such amendment
would be made on 28
October 2022 at the hearing, but the application was never made
because the trial did not proceed to 28 October
2022. The initial
summons therefore still stands.
[17]
In any event, in his initial calculation the actuary applied a 20% /
40% contingency deduction
for the Plaintiff's future earnings, and he
then arrived at a total loss of earnings in the amount of R5 719
139.00. In doing
so, he worked on the basis of a 5 years early
retirement. In my view, nothing much has changed from the initial
calculation to
the re-calculation submitted on 28 October 2022. The
same reports that formed the basis for the initial particulars of
claim served
before this Court during the trial proceedings. There is
nothing in the evidence tendered in Court that could justify the
increase
in contingencies from 40% to 70%, as mr. Marx had suggested.
I am therefore satisfied that the initial calculation of the actuary
should prevail. Having regard to the fact that the condition of the
Plaintiff may improve with treatment and that she will then
be able
to complete her studies and find employment, however slim the chances
are, the initial approach of the actuary in respect
of contingencies
was probably correct. Even if her condition improves with treatment,
the chronic pain will remain to have a negative
effect on her
prospects of finding work and to retain such employment.
[18]
In the premises, the following order is made:
1.
The Draft Order, as amended, is made an order of Court.
P.
J. LOUBSER, J
For
the Plaintiff:
Adv. D. Marx
Instructed
by:
VZLR
Incorporated, Pretoria
c/o
Du Plooy Attorneys, Bloemfontein
For
the Defendant:
Adv. K. Mkwanazi
Instructed
by: The
Road Accident Fund
Bloemfontein
[1]
Southern
Insurance Association v Baily NO 1984 (1) 98 SA at 116 G