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[2022] ZAMPMBHC 34
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Ripinga v Road Accident Fund (1183/2019) [2022] ZAMPMBHC 34 (12 May 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 1183/2019
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
12/05/2022
In
the matter between:
CYRIL
PRINCE RIPINGA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J
U D G M E N T
MASHILE
J:
INTRODUCTION
[1]
This is a delictual claim brought in terms of the provisions of the
Road Accident Fund Act No 56 of 1996
, as amended. On 28 November 2016
at approximately 15:15, the Plaintiff was cruising along the N4 motor
highway
, near golden frontiers farm, when
an unknown motor vehicle driven by an unidentified driver collided
with his motor bike from behind.
In consequence of the collision as
aforesaid, the Plaintiff was diagnosed with injuries to his left
shoulder, multiple rib fractures
on the left-hand side, head
(subdural haematoma) and myocardial and lung contusion. Following
this collision, the Plaintiff was
admitted and detained at the Medi
Clinic at Mbombela where he was treated until discharged.
[2]
Believing that the manner in which the collision happened exposes the
Defendant to
delictual liability, the Plaintiff instituted the
current claim. The Defendant is not defending the claim and no one
represented
it at the proceedings on the day of the hearing. When the
matter served before this Court, I was advised that they had on an
earlier
date settled the merits on the understanding that the
Defendant would compensate the Plaintiff for 90% of his proven
damages. The
agreement of the parties on liability leaves the
causation and patrimonial loss for determination by this Court. Under
the heading
of patrimonial loss the head of damages pertains to
general damages and loss of earnings.
EVIDENCE
[3]
To prove the above, the Plaintiff testified on his own behalf
followed by various
experts who had examined him and compiled
medico-legal reports subsequently. He stated that he works for the
Inkomazi Municipality
as head of communications and community liaison
officer. He went on to confirmed the injuries outline above and that
he was detained
for a while at Medi Clinic in Mbombela for purposes
of receiving treatment. He has since the collision been experiencing
headaches
as a result of which he has been consulting with
neurosurgeons.
[4]
His work requires him to be available and accessible at all times but
due to his medical
condition following the collision, it is not
always possible. His superiors do not understand this and have on a
number of occasions
reprimanded him complaining that his work
performance was of poor quality and that it had reached unendurable
levels. The amnesia,
which he said was brought about by the head
injury, is largely responsible for his poor performance. His position
needs a person
with efficient memory. There are days when he cannot
drive because of dizziness and it would be on these days that he
would be
unable to report at work.
[5]
The first expert witness who took the stand was Dr K S C Malefahlo, a
cardio thoracic surgeon.
He testified that Medi Clinic conducted an
electro cardiogram on the Plaintiff, which he had to interpret.
Through his interpretation
of the report he established that the
Plaintiff had a ‘left’ bundle branch block’ or
heart block). He also found
that the Plaintiff’s heart rate was
lower than normal. Whereas the normal ranges between 60 to 80 beats
per minute, his registered
less than 60 beats per minute. He
explained that the left bundle branch block can be caused by various
problems, amongst them,
congenital or trauma or lifestyle diseases.
[6]
The after effect of having a blocked branch bundle is low heart rate,
which cannot
respond to increased body activity. The ultimate result
could be that a person would feel dizzy and probably collapse because
the
one remaining bundle branch may not be adequate for the
demand brought to bear on the heart. Dr Malefahlo testified further
that the slow heart rate is caused by the heart contusion. To improve
the heart rate, he continued, might require the insertion
of a
pacemaker, which will firstly, assist avoid a total blockage of the
branch and secondly, will improve the Plaintiff’s
heart rate.
[7]
As a person involved in community liaison and media communications,
the Plaintiff
will occasionally be required to drive to various areas
under the control and administration of his employer. The risk is
always
there that whilst driving, he might be expected to respond to
sudden emergency on the road. That will place enormous stress on his
heart because his heart might not step up to the challenge brought
about by the unfolding sudden emergency events on the road.
Dr
Malefahlo stated that a pacemaker is critical for the Plaintiff. That
said, he testified that prior to inserting it the Plaintiff’s
heart rate must first be mornitored for approximately 24 hours to
ascertain that it is indispensable.
[8]
Dr Malefahlo also interpreted the results of a lung function test –
FEV 1, which
had to be conducted in light of the lung contution
suffered by the Plaintiff. He said that in consequence of the
contusion, his
lungs are unable to diffuse sufficient oxygen
properly. The effect of this is that the Plaintiff gasps or
experiences shallow breathing,
which is a problem for a person
employed in the position of the Plaintiff who has to drive to various
areas under the control of
his employer, Inkomazi Municipality often
to quell unrests, which are on their own stressful.
[9]
Dr Malefahlo confirmed that the Plaintiff cannot play any sporting
activity that would
place demands on his lungs and/or heart. This is
also worsened by the cronic thorasic pain syndrome caused by the
blunt trauma
to the chest. He testified that he expected this to
persists up to 10 years but that it differs from one patient to the
next. With
regard to longevity, he believed that the Plaintiff’s
life expectancy has been reduced or if not, his quality of life will
continue to be poor. Significantly, he stated that if the left bundle
branch block resulted from trauma, it will be irreversible
whereas
one can try to improve the block if it is caused by lifestyle
diseases such as, hypertension.
[10]
Despite the court seeking clarity on whether or not the Plaintiff
would be in a position to work
until retirement age given his poor
prognosis, Dr Malefahlo was not only somewhat loath to categorically
specify the year on which
the Plaintiff could be expected to retire
but he would not even venture to say that he is a candidate for early
retirement. That
said, he was emphatic that the sequelae will persist
to be a lifetime impediment.
[11]
Dr R S Ngobeni is an orthopaedic surgeon. She examined the Plaintiff
and compiled a medico-legal
report thereafter. She stated that she
observed that he had sustained injuries to the left shoulder, head
and ribs on the left
hand side. She diagnosed him with post traumatic
osteoarthritis of the shoulder and acromion clavicular joints, cronic
post traumatic
thoracic pains resulting from the rib fractures and
residual cronic headaches due to the head injury. She testified that
the degeneration
in the joints is progressional and is irreversible.
[12]
The Plaintiff complained of left shoulder pain that makes it
difficult for him to lift objects.
He told her further that he
experienced chronic headaches with associated amnesia, pains on the
left side of his chest, wrist that
is exacerbated by inclement
weather and numbness of the right leg and hand. She testified that
all these complaints are consistent
with the injuries that the
Plaintiff has sustained. She recommends a non-surgical intervention
for the shoulder joint treatment,
with monthly analgesics (pain
medication), left shoulder infiltration consisting in giving
medication directly to the shoulder
with the objective of minimising
the pain, rehabilitation by a physiotherapist to ease the pain and
shoulder compression to enable
the shoulder joint to move
effortlessly.
[13]
Mr K S S Selloane is an occupational therapist who has also examined
the Plaintiff and subsequently
prepared a report. He conducted
physical assessment and cognitive tests of the Plaintiff. His
physical examination of the Plaintiff
revealed that the Plaintiff
experiences difficulties with prolonged standing as well as assuming
other physical positions such
as, squatting, climbing staircases and
walking for long distances. Insofar as his cognitive tests are
concerned, the Plaintiff
had challenges with concentration on one
activity for extended periods and was easily distracted by external
stimulae. He has poor
memory and could not demonstrate abstract
problem solving.
[14]
Prior to the collision, the Plaintiff’s employment consisted in
attending interviews with
the media, community and municipality
meetings, service Protest meetings within the area of Inkomazi
Municipality. He also drove
for long distances to attend meetings at
other municipality representing his employer, organised various
campaigns, speak to various
mayors on behalf of his own, wrote and
delivered press releases, liaised with communities, build good
external relations with funders
and partners in the communities and
answered media queries.
[15]
Mr Selloane testified that he noted that the Plaintiff has returned
to work and that he continues
to do what he did before the collision.
He said that he expects the Plaintiff to manage doing his work albeit
with continued cognitive
problems. Mr Selloane also testified that
the Plaintiff cannot be an equal competitor in open labour market.
The Plaintiff, said
Mr Selloane, is now working at less 30%. Although
Mr Selloane does not specify the Plaintiff’s likely age of
retirement,
when asked by the court if he was a candidate for early
retirement, He said that he expected him to work until age 55 at
which
point he will be suited for retirement.
[16]
Dr A B Mazwi is the neurosurgeon for the Plaintiff. He also assessed
the Plaintiff and compiled
a report of his findings. He notes from
the hospital medical records that the Plaintiff sustained the
following injuries: head,
scalp lacerations, right hemiparesis,
subdural haemorrhage, multiple rib fractures, left shoulder and neck.
Dr Mazwi testified
that the right sidedness numbness is caused by the
subdural haemorrhage.
[17]
Dr Mazwi testified that the Plaintiff has two visible surgical scars
on the head, right hemiparesis
power that registered 4 out of 5 and
right leg numbness. The hemiparesis is measured on a scale of 0 to 5
with 5 being normal.
He concluded that 4 out of 5 is therefore very
close to normal. Neurologically, Dr Mazwi found that the Plaintiff
has difficulty
with concentration and significant memory
disturbances. He also presented with poor attention, mathematical
ability, abstract thinking,
general knowledge and ability to recall.
Dr Mazwi also testified that the Plaintiff told him that he did not
present with all these
difficulties prior to the collision. In
consequence of absence of any previous trauma before the collision,
he attributed all the
difficulties with which the Plaintiff now
presents to the subdural haemorrhage.
[18]
Dr Mazwi stated that the Plaintiff has a subdural haematoma meaning a
collection of blood overlying
the brain. Depending on its
seriousness, a surgical procedure may be required to evacuate the
blood. As proof that the head injury
was severe, Dr Mazwi pointed out
to the fact that the Plaintiff needed an operation to clear the blood
overlying his brain. The
whole person impairment test that he
conducted revealed that the plaintiff was 33% disabled, which
entitles him to compensation
for general damages.
[19]
Chances of any person experiencing an epileptic seizure is around 1%
but in someone who has had
a massive head injury, the risk increases
to between 8% and 10%. However, where no seizure occurs the risk
level drops to approximately
5% and after 10 years, it decreases to
approximately 3%, which is very close to the general population. He
pointed out that currently
the Plaintiff would be around 5% in view
of the fact that he has to date not experienced any seizures since
the collision. In other
words, the more years without any seizure
incidents, the less the chances of it happening. Dr Mazwi too could
not state when the
Plaintiff was likely to retire.
[20]
Ms A M Kheswa is the Plaintiff’s industrial psychologist who
also examined the Plaintiff
and prepared a report wherein she
describes her findings and recommendations. She testified that she
collected collateral information
from a human resource manager of the
Plaintiff’s employer. The human resources manager reported to
her that pre collision,
the Plaintiff had no work performance issues.
He reported to work punctually. Insofar as promotion was concerned,
she was told
by the manager that the Plaintiff had reached his career
ceiling at the time of the occurrence of the collision. Early
retirement
is 50 years while mandatory retirement age is 65.
[21]
The human resources manager further advised her that the Plaintiff is
still employed as the spokesperson
and head of communications for his
employer. He is now more absent from work attending doctors’
appointments. His intermittent
time off from work has affected his
work performance. The Plaintiff is forever complaining of headaches
leaving him susceptible
to agitation. This interferes with his
interpersonal relations with his colleagues and supervisors.
[22]
Based on the information that she has extracted from the other
experts, her opinion is that but
for the collision, the Plaintiff
would not have had these difficulties with which he is now presenting
and that he would have worked
until age 65. His decline In his
physical and cognitive abilities makes him a liability more than an
asset to his employer. She
states further that she does not regard
him as an equal competitor in the open labour market. The cognitive
deficits will present
a severe challenge to the demands of the type
of work performed by the Plaintiff. Should he, for any reason, resign
or be expelled,
he will find it hard to obtain another employment. Ms
Kheswa was also unable to suggest that the Plaintiff would retire
earlier
than anticipated.
[23]
Mr S G Du Plessis is an actuary who calculated the Plaintiff’s
loss of earnings based on
the report of the industrial psychologist.
The Plaintiff did not suffer any past loss of earnings because he was
paid while off
recuperating from his injuries. This is as per the
report of the industrial psychologist. The essence of his
calculations is that
the earnings of the Plaintiff both pre and post
collision are exactly similar. This is because the Plaintiff returned
to his pre-collision
occupation, performing the same duties and
earning the same amount.
[24]
The actuary’s calculations did not factor in the possible early
retirement mentioned by
Mr Selloane under cross examination. His
report is no exception to the generally accepted rule that actuaries
give significant
weight to contents of reports of industrial
psychologists. Accordingly, there being no reference to the
Plaintiff’ likelihood
of early retirement in the experts’
report save during evidence by one of them, he utilised contingencies
of the Plaintiff
retiring early as a result of his physical and
cognitive challenges that distress him.
[25]
Applying contingencies to the amounts calculated by him, he came to
the net loss of R1 392 080.00.
In response to the court’s
concern that the Plaintiff might in fact retire earlier due to his
injuries, he agreed to furnish
the parties with a report that assumes
that the Plaintiff would retire at age 55 so that the court can
compare and decide which
of the two was more justifiable given the
facts in this matter. He has done so and the amount of loss as per
his second scenario
is R2 998 800.00.
ISSUES
[26]
The issues for determination by this Court are quite straight
forward. Firstly, the court must
consider whether or not the injuries
sustained have given rise to the sequelae as described by the
Plaintiff. Secondly, once that
is out of the way, to determine the
amount of loss of earning capacity, if any. Thirdly, to have regard
to different case law and
to set the amount of the award to the
Plaintiff.
LEGAL
FRAMEWORK AND APPLICATION
[27]
It is often assumed that where parties have settled merits,
automatically the question of causation
would become resolved. This
is not necessarily correct because while it could be obvious that a
collision caused harm suffered
by a Plaintiff, absence of causal link
between the injuries and the sequelae will entail absolving the
insured from liability.
This issue did not arise in this matter but
it is worth bearing in mind that agreement of the parties on merits
does not inescapably
cover this connection to which I refer. See
para
7 of
J
M
Grove v The Road Accident Fund
[1]
Other
than as aforesaid, I regard the subject of causation as closed for
purposes of this judgment.
GENERAL DAMAGES
[28]
All the experts having confirmed that the sequelae outlined in their
respective reports are due
to the injuries sustained by the
Plaintiff, the next issue for consideration is quantum. Starting
first with general damages. This
is often determined by comparing
cases under scrutany and those previously decided. That said, it is
generally accepted that previously
decided cases are never similar
and that their purpose stops at comparing them to the current. I note
that Counsel for the Plaintiff
has furnished this Court with three
cases which he submitted are analogous albeit not totally but
nonetheless helpful.
[29]
I have perused all three cases and have come to the conclusion that
one that comes close to the
current is
NH
v Road Accident Fund
[2]
the
other two being far more severe.
The
Plaintiff sustained the following injuries: severe head injury;
occipital lacerations; bilateral femur fractures; lung and cardiac
contusion; left intertrochantericfemur fracture; abdominal injuries
with mesenteric tear and avulsion of splenic blood supply;
right
hemiplegia; multiple abrasions and lacerations.
[30]
He spent about two months in the ICU and a month and three weeks in a
general ward. During that
period he had numerous surgeries,
laparotomies for spleen removal and bowel resection. He also had
orthopaedic surgery to repair
the fractures of the femurs. For the
most of his hospitalisation he was in a critical condition. His
condition was exacerbated
by respiratory and heart complications. He
underwent blood transfusions. He was placed on mechanical ventilation
by way of endotracheal
tube and later tracheostomy on several
occasions.
[31]
He experienced and still suffers from pain in the stomach area, back,
right upper arm, shoulder,
as well as, occasional headaches. The
pains will persist in invariable degrees and for a long time in the
future. The brain injury
is so severe that it has rendered the
plaintiff both physically and mentally disabled. As a consequence of
the brain injury, he
can no longer manage his personal, financial and
legal affairs and he is also at risk of developing epilepsy. Prior to
the accident,
he enjoyed hunting with his dogs and doing some
gardening.
[32]
The orthopaedic injuries have curtailed the enjoyment of his
amenities in that, he has constant
weakness of the limbs. He walks
with difficulty and very slowly. He also can no longer stand on one
leg and has a right-sided limping
gait. He has been left with
permanent scars on the occipital area, the diaphragm down to the
pubic area, the belly button and operation
scars from the hips down
to the knees on both legs and the right upper arm. He also has bed
sore scars on the head and right buttock.
The court awarded him an
amount of R1 199 000.00 for general damages (2020 value).
[33]
Considering the injuries sustained by the Plaintiff and their
sequelae, it is manifest that in
comparison to
NH v Road Accident
Fund
, the injuries and sequelae in the current matter pale into
insignificance. It must be borne in mind that although the Plaintiff
lives with pains emanating from some of his injuries, a heart
condition, hemiparesis and amnesia, he remains employed. The
industrial
psychologist mentioned that his manager complained that
the Plaintiff is no longer the person the Municipality had employed a
few
years ago.
[34]
That said, no threat of medical boarding has been suggested by any
expert nor has it ever become
a subject of consideration by his
employer. On the contrary, to date he remains in employment
suggesting that his shortcomings
are not as grave posing a danger to
the discharge of his duties as he would have this court believe. In
short, he can proceed until
normal age of retirement but because he
is vulnerable it will be proper to make a provision for that
contingency. Against this
background, I have come to the conclusion
that an appropriate amount for general damages is R950 000.00.
POSSIBLE LOSS OF
EARNING CAPACITY
[35]
Initially, I had given undue weight to the statement of Mr Selloane,
the occupational therapist,
that he might retire at age 55. On that
basis, I directed the actuary to provide a second report for a
scenario of the Plaintiff
retiring at age 55 instead of the normal
65. I am not persuaded that there is a cause for concern especially
considering that the
Plaintiff’s examination by the experts
happened prior to administration of further medical treatment. For
example, the insertion
of a pacemaker is anticipated to improve his
heart condition.
[36]
The hemiparesis is measured at 4/5 meaning that it is not as grave as
it could have been and
that he can still move with relative ease. The
fact that the Plaintiff continues to work even before the
intervention of proposed
medical treatment, which it is anticipated,
will relieve him of some pains, fortifies my approach that he can
endure for a few
more years until normal retirement age. If he does
not, the contingencies are sufficient to cover that eventuality.
[37]
The first report of the actuary therefore appears more accurate and
realistic to this Court.
For that reason, I would not tamper with the
calculations and the contingencies that he has applied. Loss of
earning capacity is
therefore allowed at the amount of R1 392 080.00.
ORDER
[37]
I make the following order:
1.
The Defendant is liable to the Plaintiff in
the amount of R2 342 080.00 made up as follows:
1.1
General damages
R950 000.00; and
1.2
Loss of earning capacity
R1 392 080.00
1.3
TOTAL
R2 342 080.00
2.
The Defendant is to pay the costs of the
Plaintiff.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 12 May 2022 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff:
Adv D Thumbathi
Instructed
by:
Mphahlele Attorneys
C/O
Nkosi Attorneys
Counsel
for the Defendant:
No Appearance
Instructed
by:
Date
of Judgment: 12
May 2022
[1]
(74/10)
[2011] ZASC 55 (31 March 2011).
[2]
2019
(7A4) QOD 109 (FB)