About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 119
|
|
Brink v Road Accident Fund (61614/2016) [2021] ZAGPPHC 119 (25 February 2021)
SAFLII
Note: Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the
law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 61614/2016
In the matter between:
BRINK
,
FRANCOIS
JOHANNES
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
This judgment
was
handed down electronically by circulation to
the plaintiff’s legal representatives and to the Defendant and
also by uploading
on caseline and is deemed to be handed down by such
circulation.
MABUNDA,
AJ
[1]
The Plaintiff herein, Francois Johannes Brink, an adult male who was
born on the 05 July
1980, is claiming damages from the Road Accident
Fund, the Defendant, in terms of the Road Accident Fund Act, Act No
56 of 1996,
as amended (“the Act”), as a result
of
injuries
sustained in
a
motor vehicle accident which occurred on 07 April
2014. The Defendant conceded merits and agreed to pay 100% of the
plaintiffs proven, alternatively, agreed damages.
[2]
The parties further agreed that
in
respect
of
future
medical, hospital
and
related
expenses,
the defendant shall furnish plaintiff with an undertaking in terms of
section 17(4)(a) of the Act. The parties have also
settled the claim
for general damages in the sum of R450 000.00. The issues outstanding
issues which this
court has
to adjudicate relates to the plaintiff’s claim for past medical
and hospital expenses and plaintiffs claim for past
and future loss
of income.
[3] The
matter was set down for trial on the 02 February 2021, but was stood
down for the 04 February
2021. On the 04 February 2021 Mr B Boot
appeared for the plaintiff and there was no appearance for the
Defendant. It appears from
the documents filed, that the Defendant’s
attorneys withdrew as attorneys of records in June 2020. It also
appears from the
correspondence between plaintiff’s attorneys
of records and Defendant, that the Defendant was well aware of the
trial date.
[4] This
judgment was reserved after hearing oral submissions by Mr Boot, on
behalf of the plaintiff.
The plaintiff’s counsel had filed
written heads of argument for which I am greatful. Plaintiff was
allowed to adduce evidence
of the expert witnesses he retained by way
of affidavits or written evidence (on the basis of the reports fired)
before the commencement
of the proceedings.
[5] I shall
briefly refer to the background of the matter. Plaintiff was a
passenger in a cash in transit
truck when the driver, who was
travelling at high speed, hit a speed bump which caused the plaintiff
to be thrown out of the seat
and then crash on top of the floor. He
was taken to Life Flora Clinic where he was admitted and treated for
five days. He sustained
the following injuries,
inter alia,
vertebral compression fracture of T12-L1 and instrument posterior
fusion of T9-L3.
[6] Plaintiff
presently complains of constant backache, severe back pain with
lifting of heavy objects.
He experiences pain with driving a car,
especially if longer than one hour. He cannot bend his back or sit
for a long period of
time. He struggles to lift his three (3) year
old child, something he enjoyed doing to prior to the accident. He
uses pain medications
such as stilpayne, tramazac and paracetamol and
anti-inflammatory on a regular basis.
[7] Prior
to the accident plaintiff used to jog to stay fit and played pool. He
could swim and walk
quite far and did so on a regular basis. He could
interact and play with his daughter. Since the accident he is unable
to participate
in any sport or hobbies.
[8] Plaintiff
appointed a number of medico-legal experts who submitted their
respective reports which form
the evidence before this court. No
evidence was presented by the defendant and no expert report have
been submitted by the defendant.
[9] I do
not intend to refer in detail to the expert reports submitted on
behalf of plaintiff and shall
merely refer to certain salient
features of certain thereof. Dr Shaun East (orthopaedic surgeon)
described the injuries sustained
by plaintiff, as follows: vertebral
compression fracture T12-L1 and instrument posterior fusion T9-L3.
Following the accident,
plaintiff was medically boarded after his
spinal fusion and has never returned to any form of work. Plaintiff
has constant back
pain, unable to lift anything heavy, cannot sit for
a period of time or spend more than one hour driving a car. The
orthopaedic
surgeon recorded that there is a 22% chance that he will
require revision procedure within 10 years. He will also, in all
likelihood,
require two to three surgeries in his lifetime.
[10]
The orthopaedic surgeon recorded that after some few months after the
accident plaintiff picked up
a 25kg money box, herniated a disc and
had an instrumented thoracolumbar fusion. The fusion happened 19
months after the accident
but directly contributed to the surgery he
required and the position he
currently
finds
himself
in. It is further recorded that
the pre-existing
compression
fractures placed more
stress
on the underlying
discs,
causing it to herniate and requiring a long-term segment fusion
transitioning from
the rigid
thoracic region
to
the mobile lumbar region. According to Park et al, transpedicular
fixation leads to a 13% 5-year and
22%
10-year chance of reoperation. There is a 20%
chance that plaintiff will end up with a flat
back. The orthopaedic surgeon expects that plaintiff, when taking
into consideration
his injuries and sequelae, will retire at the age
of 55 due to intractable pain, immobility of the lumbar and thoracic
spine and
a “flat back”.
[11] Dr
Truter’s (clinical psychologist) report records that since the
accident and the consequent
treatment plaintiff was never pain-free
and was compelled to apply back hygiene. It is further stated in the
report that plaintiff
is restricted, fears of re-injuring himself and
finds it difficult to share in some activities. Dr Truter opines that
plaintiff
suffers from chronic adjustment difficulties, sprouting
from his medical condition, and will benefit from a multidisciplinary
rehabilitation
program.
[12] He
further opines that plaintiff’s competitiveness in the open
labour market has been compromised
as a result of the followings: his
restrictions, his adjustment difficulties, his limited working
experience, his constant fear
to re-injure himself, the fact that he
has already been declared medically unfit and that he will have to
compete with healthy,
young individuals for manual labour positions.
[13] Dr
David A Shavel (psychiatrist) recorded in her report that plaintiff
suffers from on-going
psychological adjustment difficulties. He
diagnosed plaintiff with mild chronic adjustment difficulties with
predominantly depressive
features secondary to general medical
condition. Dr Shavel opines that plaintiff’s psychiatric
condition has impacted negatively
on his interpersonal skills and
relationships and his general enjoyment of life have very markedly
diminished and that plaintiff
requires psychiatric treatment.
[14]
Nicola Heyns (occupational therapist) opines that plaintiff’s
functioning has been adversely
affected and this is largely due to
his physical injuries sustained in the accident in question. The
assessment results and observation
indicate that plaintiff does not
meet the inherent physical demands of his previous job as
cash-in-transit-officer, which justifies
that he was medically
boarded.
[15]
Plaintiff remains unsuited for any physically demanding or manual
type of work due to back pain
and risk of re-injury. He also does not
meet all the inherent work demands of his present self-employed,
part-time job as fruit/vegetable
salesman, which justifies reasonable
work accommodations to reduce risk of re-injury.
[16]
Plaintiff’s reduced work capacity has a direct impact on his
productivity, occupational
potential and subsequently his earning
capacity when compared to his pre-accident potential. He is regarded
as a vulnerable employee
in the open labour market. The occupational
therapist opines that plaintiff is a suitable candidate for
re-skilling or re-training
to better his chance of finding
alternative employment in suitable semi-sedentary or light category
of work in an accommodating
work environment.
[17]
Plaintiff is regarded as a vulnerable worker in the open labour
market when compared to his healthy
peers. Considering his
deteriorating back condition and expected revision surgery and even
more accommodation maybe required in
future. Plaintiffs job options,
occupational potential and subsequently his earning potential appear
to have been curtailed by
injuries sustained in the accident.
[18]
Plaintiff’s residual accident-related sequelae will however
continue to impede on his ability
to work at maximum levels of
personal output when compared to his pre-accident ability. He will
remain at the lower level than
what he would have been capable of had
he not been injured in the accident.
[19] Ms
Noble (industrial psychologist) opines that considering his age,
being medically boarded in
2016, with training and most of his
experience in the security industry, plaintiff should be provided
with an opportunity to complete
security grade B and A training to
improve his chances to at least be considered for a position in a
control room. Security grades
B and A will improve his chances for
appointment in the permanent control room position, but there is no
guarantee for such appointment.
It was postulated that plaintiff will
be able to obtain a position as a control room operator on a Paterson
B4-level around April
2020, earning a total guaranteed package of
approximately R 226 900.00 per year as per P-E Corporate Services’
September
2018 general surveys for West Rand-area.
[20] In
her addendum report, Ms Noble, record that she considers the control
room operator ship to
have sailed and accepts that plaintiff will
have to continue working in self-employment, selling vegetable and
fruit in order to
generate income. She proposes that an average of
plaintiff’s earnings from self employment to be calculated
by an actuary,
yearly increased with the consumer price index until
early retirement at 55. She again recommended high contingency
deduction.
She concluded that should the plaintiff for whatever
reason stops working in his self-employment, he is expected to remain
unemployed.
[20]
Based on the expert evidence it is clear that plaintiff has suffered
past loss of income and
will suffer a future loss of income.
Plaintiff has developed hunchback after the accident and his lumbar
spine movement is restricted
due to thoracic-lumbar fusion, stiffness
and pain. It is clear from expert evidence that plaintiff’s
occupational functioning
has been adversely affected. He is and
remains unsuited for any physically demanding/ manual type of work
due to his back injury
and risk of his Injury. He does not
sustainably meet all the inherent work demand of his present
self-employed, part-time job as
fruit/vegetable salesman.
[21] The
general approach of assessing damages for loss of earnings has been
restated in the matters
of
Goldie v City Council of
Johannesburg
1948 (2) SA
913
(W)
and
Southern Insurance Association
Limited v Bailey NO
1984 SA 98
(A) at
112E
-
114F.
Nicholas JA in
Sothern
Insurance Association v
Bailie
(supra) at
113F - 114A stated as follows : “
Any
enquiry
into
damages for loss of earning capacity is in its
nature speculative, because it involves a prediction as to the
future, without the
benefit of crystal balls, soothsayers, augurs or
oracles. All that the court can do is to make an estimate, which is
often a very
rough estimate, of present value of the loss. It has
open to it two possibilities approaches. One is for the Judge to make
a round
estimate of an amount which seem to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind plunge
into
the unknown. The other is to try to make an assessment, by way
of mathematical calculations, on
the basis of
assumptions resting on the evidence. The validity of this
approach depends of
course upon the soundness of the
assumptions, and these may
vary from the
strongly probable to the speculative. It is manifest that
either approach involves guesswork to a greater or lesser extent. But
the court cannot for this
reason adopt a non possumus
attitude and make no award…
”
[22] In
the aforementioned matter, the court held that where it has before it
material on which an
actuarial calculation can be made, the actuarial
approach is preferable, because the actuarial approach has the
advantage of an
attempt to ascertain the value of a loss of earnings
on a logical and informed basis as opposed to a robust approach or an
educated
guess.
[23] In
the unreported case of
Mashaba v Road Accident Fund
2006 JOL
16926
(T),
Prinsloo J, referring to
Bailie
case above
held that amongst others that where career and income details are
available, the actuarial calculation approach is more
appropriate and
the court must primarily be guided by the actuarial approach, which
deals with the loss of income or earnings before
applying the robust
approach, which caters for loss of earning capacity. This, so said
the learned judge, would help the court
to ensure that the
compensation assessed and awarded to the plaintiff is as close as
possible to the actual facts relied upon.
[24] For
the plaintiff to succeed in a claim for loss of earnings, he is
required to provide a factual
basis that allows for an actuarial
calculation. This is a process designed to assess actuarial or
mathematical calculations on
the basis of the evidence as well as
over-all assumptions vesting or depending on such evidence. The
approach is known as the actuarial
approach.
[25]
The actuarial approach seeks to determine the
loss of earnings as realistically as possible to what may be the
plaintiff’s
actual losses. This approach compromises of
providing a factual basis upon which the loss of earnings is to
be calculated
and,
only then, by applying appropriate
contingency
deductions.
[26] As a rule of
practice plaintiff need not be burdened with an undue load of
providing such a basis strictly.
Plaintiff merely needs to
demonstrate that his preferred and given scenario is more probable
than another. A fifty percent plus
one likelihood constitutes a
probability.
[27] On behalf of the
plaintiff Algorithm Consulting and Actuaries calculated the
plaintiff's past and future loss
of earnings, alternatively earning
capacity. Regarding contingency deductions it was stated that that
given the uncertainties discussed
in paragraph 4.1 of the report, the
actuary had allowed for a slightly higher contingencies than normal.
For the scenario if the
accident had not occurred, a contingency
deduction of 5% was applied for past loss and 15% in respect of
future income. Having
regard the accident, a contingency deduction of
5% for past loss and 35% for future income were applied.
[33] The
actuary calculated the present value of the loss of income as follows
as at 15/01/2021: without
applying the legislative limitation, the
value of income (uninjured) on past loss of earnings (with 5%
contingency deduction) was
R 1 333 701,00 and the value of income
(injured) on past loss of earnings (with 5% contingency deduction)
was R 293 573,00 with
the net past loss of R 1 040 128,00.
[34] On
future loss of income, the actuary calculated the future loss of
income as follow: without
applying the legislative limitation, the
value of income (uninjured) on future loss of earnings (with 15%
contingency deduction)
was R 5 024 521,00 and the value of income
(injured) on past loss of earnings (with 35% contingency deduction)
was R 272 330,00.
The net total loss of earnings before the
application of the limit was calculated at R 5 792 319,00 and, with
the application of
the limit, the net total was reduced to R 5 432
827.00.
[35]
Contingency deductions allow for the possibility that plaintiff may
have less than normal
expectations of life and that he may experience
periods of unemployment by reason of incapacity due to illness,
accident or labour
unrest or even general economic conditions. See
Van der Plaats v Southern African Mutual Fire
&
General
Insurance
Co.
1980 (3) SA 105
(A) 114
-
114.
[36] The
underlying rationale is that contingencies allow for general hazards
of life such as periods
of general unemployment, possible loss of
earnings due to illness, savings in relation to travel to and from
work now that the
accident has somewhat incapacitated or impaired him
as well as the risk of future retrenchment. The general vicissitudes
of life
are taken into consideration when contingencies are
considered. The exact financial impact of these risks cannot be
predicted reliably,
and plaintiff's industrial psychologist
recommended that these risks be dealt with by means of a
higher-than-normal post-accident
contingency deduction, which views I
agree.
[33]
Both favourable
and
adverse
contingencies
must
be
taken
into
account. Nicholas
JA
held among others in the Bailie case
(supra)
at
117
C - D, that: “
The
generalisation that there must be
a
'scaling
down' for contingencies seems
mistake
n
.
All ‘contingencie
s
’
are not
adverse
and all ‘vicissitudes’ are not
harmful. A particular plaintiff might have had prospects or chances
of advancement and
increasingly remunerative employment. Why count
the buffets and ignore the rewards of fortune?”
[34] The
assessment of contingencies is largely arbitrary and will depend on
the trial judge’s
impression of the case. I have considered the
matter as a whole and am of the view that an appropriate
pre-collision deduction
is 7,5% on past loss and 20% on future loss
and post-collision deduction is 5% on past loss and 35% on future
loss. A revised actuarial
calculations/report was requested by this
court where the actuary was further instructed to apply the aforesaid
contingencies based
upon my findings.
[35]
Upon a perusal of the revised calculations/report received by this
court it is clear that Algorithm
Consultants have given credence to
the instructions of this court in its calculations. In the
circumstances, I am inclined to accept
the revised actuarial report
as the correct contingencies, in my view, have been applied as per
the instructions of this court.
[36]
On the revised calculations, the actuary has calculated the net past
loss of earnings after the application
of the limit
to R 911
104.00
and
the net future loss
of earnings after the application of the limit to R 4
325 066 .00 with the net total loss of R 5 236 170.00. Consequently,
I find
that the total loss suffered by the plaintiff in respect of
past and future loss of income, amount to R 5 236 170.00
[37]
Plaintiff submitted the schedule and vouchers in support of his claim
on past hospital, medical and
related expenses which amount to R 18
298.00. Having considered the vouchers submitted, I am satisfied that
the amount claim is
proven, reasonable and appropriate.
[38]
As far as the costs are concerned, there is no reason why costs
should not
follow the event.
There was no submission to the contrary.
[39] On
behalf of the plaintiff a draft order was submitted to me which
contains the order in the
usual format. I am satisfied that the draft
order handed to me be made an order of court.
[40] In
the result, the following order is made:
1.
The draft order marked “X” and attached to this judgment
is made an order of court.
MB MABUNDA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
Counsel for
Plaintiff:
Mr B Boot
Instructed
by:
Adams & Adams
Pretoria
Tel: 0124326000
Ref: DBS/KW/P1470
Dates of
hearing
02 February 2021
04
February 2021
Date of Judgement
25 February 2021
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Before Honourable
Acting Judge Mabunda.
ORDER GRANTED
ELECTRONICALLY IN TERMS OF DIRECTIVES REGARDING SPECIAL ARRANGEMENTS
TO ADDRESS COVID-19 IMPLICATIONS FOR ALL LITIGATION
AND MANAGEMENT OF
COURTS DURING THE NATIONAL STATE OF DISASTER.
CASE NO: 61614/16
In the matter between
BRINK,
FJ
Plaintiff
And
ROAD ACCIDENT
FUND
Defendant
DRAFT ORDER
HAVING HEARD COUNSEL
and considered the evidence
submitted:
THE COURT GRANTS
JUDGMENT
in favour of the Plaintiff against
the Defendant in
the
following terms: -
1.
The evidence of the following experts, more specifically the facts,
assumptions and
opinions contained and expressed in their reports,
notice of which was furnished in terms of Rule 36(9)(b) of the
Uniform Rules
of Court, as well as the factual evidence of the
Plaintiff, are admitted into evidence at the hearing on affidavit in
terms of
Rule 38(2):
1.1 Dr East (Orthopaedic
Surgeon), reports dated 9 November 2016 and 27 July 2020;
1.2 Dr DA Shevel
(Psychiatrist), reports dated 8 March 2017 and 3 August 2020;
1.3 Dr Truter (Clinical
Psychologist), dated 9 May 2017;
1.4 Ms N Heyns
(Occupational Therapist), dated 30 July 2017;
1.5 Ms E Noble (Industrial
Psychologist),dated 3.June and 13 January 2021;
1.6 Mr G Whittaker
(Actuary), actuarial calculations dated 29 June 2018.15 January 2021
; and
1.7 Mr FJ Brink, dated 20
January 2021
2.
The Defendant shall, over and above the furnishing of the section 17
(4) (a) undertaking
as well as any previous payments made and /or
awarded to the Plaintiff, pay the additional total sum of
R 5 254
468.00 (Five Million Two Hundred and Fifty-Four Thousand and Four
Hundred and Sixty-Eight Rands)
to the Plaintiffs attorneys, Adams
& Adams , in settlement of the Plaintiffs action, which amount is
calculated as follows:
Past
and future loss of earnings and/or earning capacity R 5 236 170.00
Past medical expenses
R
18 298.00
TOTAL
R 5 254 468.00
The aforementioned total
sum of
R 5 254 468.00 (Five Million Two Hundred and Fifty-Four
Thousand and
Four Hundred and Sixty-Eight Rands)
shall
be payable by direct transfer into the trust account of Adams &
Adams, details of which are as follows:
Account holder
: […]
Bank
:[…]
Branch
:[…]
Branch code
:[…]
Account
number
: […]
Reference
:[…]
3.
The Defendant shall, over and above any previous
cost orders granted in the Plaintiffs favour, also make payment of
the Plaintiffs
additional taxed or agreed party and party costs of
the action on the High Court scale, which costs shall include but not
be limited
to the following: -
3.1. The
fees of Senior Counsel on the High Court Scale, inclusive of but not
limited to Counsel's
full day fees for 2 February 2021 and 4 February
2021 and his fees for the preparation of Heads of Argument, if any;
3.2. The
reasonable, taxable costs of obtaining all expert, medico-legal RAF4
Serious Injury Assessment,
addendum and actuarial reports from the
Plaintiff’s experts which were either furnished to the
Defendant and/or included
in the trial bundles and/or uploaded onto
Caselines;
3.3.
The reasonable taxable preparation, qualification, travelling and
reservation fees, if any, of the following expert of whom notice
has
been given.
3.3.1
Dr S East (orthopaedic Surgeon)
3.3.2
Dr Shelve (Psychiatrist)
3.3.3
Dr K Truter (Clinical Psychologist)
3.3.4
Ms Nicola Heyns (Occupational Therapist)
3.3.5
Ms E Noble (Industrial Psychologist)
3.3.6
Mr GA Whittaker (Actuary).
3.4. The
reasonable costs of all consultations between the Plaintiffs
attorneys, and/or Counsel and/or
the experts and/or the Plaintiff in
preparation for the hearing;
3.5. The
reasonable, taxable accommodation and transportation costs (including
Toll and E-Toll charges)
incurred by or on behalf of the Plaintiff in
attending all medico-legal consultations with the parties' experts
and all consultations
with his legal representatives, the quantum of
which is subject to the discretion of the Taxing Master;
3.6. The
reasonable taxable costs associated with preparing the Application in
terms of Rule 38, and
obtaining the affidavits attached thereto, as
well as the experts' charges pertaining to their time and attendances
spent
inter alia
in commissioning thereof;
3.7. The
above costs shall also be paid into the aforementioned trust account
3.8. It
is recorded that the Plaintiff's attorneys do not act herein in terms
of a contingency fee
agreement.
4. The following
provisions shall apply with regards to the determination of the
aforementioned taxed or agreed
costs: -
4.1. The Plaintiff shall
serve the notice of taxation on the Defendant and/or the Defendant's
attorney of record;
4.2. The Plaintiff shall
allow the Defendant 7 (SEVEN) court days to make payment of the taxed
or agreed costs from
date of settlement or taxation thereof,
whichever occurs first;
4.3. Should payment not be
effected timeously, the Plaintiff shall be entitled to recover
interest at the rate of 7.00%
per annum on the taxed or agreed costs
from date of allocator settlement (whichever occurs first) to date
final payment.
BY ORDER OF THE COURT
COUNSEL FOR
PLAINTIFF:ADVC B BOOT
COUNSEL FOR DEFENDANT: