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[2021] ZAGPPHC 438
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Engelbrecht v Road Accident Fund (52899/2017) [2021] ZAGPPHC 438 (10 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 52899/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
21/06/2021
In
the matter between:
BECKER
ENGELBRECHT
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
THIS
JUDGMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE CIRCULATED TO THE
PARTIES BY WAY OF EMAIL ITS DATE AND TIME OF HAND DOWN
SHALL BE
DEEMED TO BE 21 JUNE 2021 AT 12H00.
Introduction:
1 The
Plaintiff is Becker Engelbrecht and the Defendant is the Road
Accident Fund. The Plaintiff initiated
action against the Defendant
for general damages, past medical expenses and loss of income and/or
loss of earning capacity.
2 On
07 August 2020 merits were settled 100% in favour of the Plaintiff
and the Court granted general damages
in the amount of R 800 000, 00.
The Defendant was also ordered to provide the Plaintiff with an
undertaking in terms of Section
17(4)(a) of Act 56 of 1996 (as
amended) in respect of future medical expenses.
3 The
Defendant filed no Expert Witness Reports. The Plaintiff therefore
deem their Expert Reports to be
admitted.
4 This
Court was requested to adjudicate on past medical expenses, loss of
income and
I
or
earning capacity. The Defendant was unrepresented. The Court decided
to adjudicate on the papers and neither Party addressed
the Court.
Judgement was reserved.
Evidence
before this Court
The
Plaintiff's case:
5 The
Plaintiff was involved in a motor vehicle accident on the N1 North
between Gariepdam and Bloemfontein
on 05th of December 2015. He was
24 years old at the time. He did not suffer any past loss of income
and was remunerated for the
time he spent off work recuperating after
the accident.
6 Plaintiff
has a BCom (General) Degree and was busy with his CIMA Qualification
in 2017. At the time of
the accident he was employed with Advanced
Works International (Pty) Ltd, a family business, as a financial
clerk, earning R 264
000 per annum. in 2017 or 2018 Plaintiff left
the family business to pursue a more lucrative position with GIS SA.
Dr Engelbrecht
and the occupational therapist report Plaintiff
started with GIS in 2017 and is a supply chain manager. The
industrial psychologist
reports he joined GIS in 2018 as a sourcing
manager, earning R450 000,00 per annum.
7 Plaintiff
incurred the following injuries in the motor vehicle accident:
- Fracture
of sacrum (S1/S2)
- Fractures
of pelvis
- injury
to lumbo-sacral spine L5/S1) with resultant fusion
- A
coccyx injury. His coccyx was consequently removed in 2016.
8 Plaintiff's
present complaints include pain in the pelvis, lower back and sacral
area. Removal of the internal
fixation screw from the Si joint is
foreseen in 15 years from now, 8 weeks sick leave will be required.
He is faced with a 20%
possibility of further lumbar spine surgery in
20 years from now, in which event 3 months sick leave is foreseen.
The
Expert Reports:
9 Plaintiffs
legal team instructs two
Orthopaedic
Surgeons
,
namely Dr Peters and Dr Engelbrecht. Dr Peters rates Plaintiff's
whole body impairment at 15% in January 2017 and Dr Engelbrecht
rates
same at 20% in January 2020. Dr Peters diagnoses severe tenderness in
the lumbar, sacral spine. He also finds a decreased
power and
sensation at S1. Dr Engelbrecht expects Plaintiff's physical
abilities to deteriorate even with further medical treatment.
Lifelong conservative treatment is foreseen.
10 The
Occupational Therapist reports that Plaintiff's pain was far worse
before he underwent the fusion
to his back in 2018. He struggles to
sit, stand or walk for prolonged periods of time. During assessment
Plaintiff's back movements
are limited and painful and she reports
spasms over his lower back. Plaintiff's work speed is observed to be
below open market
norm on
physical
work samples. Plaintiff is best suited in a corporate environment.
His present occupation is best suited, taken his abilities and
aptitudes into consideration.
11 She
reports that Plaintiff experiences discomfort after sitting for 40
minutes and has to mobilize frequently.
This might affect his
productivity going forward. Plaintiff's supervisor however has no
complaints regarding his work performance.
She remarks that Plaintiff
would benefit from occupational therapy after each surgical
procedure. Plaintiff is coping, and will
most likely continue to
cope.
12 The
Industrial
Psychologist
,
files a first report on 24 March 2017 and an Addendum thereto on 13
August 2020. In his first report he says that Plaintiff is
best
suited to his present form of employment, being that of a financial
clerk or -manager. He remarks that the Plaintiff is employed
in a
well owned and well established family business and his father,
being his employer at the time remarks "..
Mr
Engelbrecht (Plaintiff)
is
employed
at Advanced Works International with the intention that he will take
over the business one day ..."
13 In
his Addendum he remarks that Plaintiff left the family business and
has taken up a more lucrative position
with GSi SA in 2018. He
remarks that Plaintiff reports discomfort with prolonged static
postures, which discomfort is understandable.
He reports Plaintiff is
an unequal competitor in the open labour market as a result of his
having to take frequent breaks. Having
regard to the reports of the
other experts, he foresees the Plaintiff retiring two years before
the time and taking 5 months unpaid
sick leave in future. Mention was
made that he was studying towards his CIMA qualification in March
2017. No further mention is
made in the Addendum to the report as to
whether he completed his studies.
14
The
Actuary
files two reports, marked "A" and "B"
respectively. In Report "A", dated 14 June 2020 based on
the
Plaintiff's higher salary with GSI, a loss of earnings in amounts
far higher than the first report is foreseen.
15 In
Report "B" (the earlier of the two reports, dated 06 July
2017), the loss of earnings are
projected at Plaintiff's salary at
the date of the motor vehicle accident in 2015. Two scenarios are
made out, being Plaintiff
staying a financial clerk with his family's
business or Plaintiff becoming a Financial Manager or Managing
Director in future.
16 The
difference in calculation is explained by way of using the salary
that the Plaintiff was earning at
date of the motor vehicle accident
as opposed to the salary he earns at GIS in 2018. It is also to be
noted that the actuary based
his calculations in June 2020 on a
salary of R540 000, 00 per annum opposed to the salary of R 450
000,00 per annum stated by the
Industrial Psychologist in September
2019.
Past
medical expenses:
17 The
Court was placed in possession of an affidavit by Discovery Health's
Third Party Recoveries. In terms
thereof the past medical expenses,
covered by Discovery Health amounted to R 144 396, 62.
Issues
to be decided by Court
18.1 Has
the Plaintiff suffered loss of earnings and / or earning capacity as
a result of the motor vehicle
accident?
18.2 And
if so, in what amount?
18.3 Has
past medical expenses been proved to the satisfaction of the Court?
The
applicable Law:
19 In
Dippenaar
v Shield Insurance Company Co Ltd
1979 (2) SA 904
(A) at 917 B –
D
Rumpff
JA stated:
"In
our law, under the lex Aquilia, the defendant must make good the
difference between the value of the Plaintiff's estate
after the
commission of the delict and the value it would have had if the
delict has not been committed. The capacity to earn money
is
considered to be part of
a
person's
estate and the loss or impairment of that capacity constitutes a loss
if such loss diminishes the estate ...".
20
At
paragraph
26
in
MT v
Road Accident Fund; HM v Road Accident Fund (37986/2018) [2020]
ZAGPJHC 286;
[2021] 1 All SA 285
(GJ);
2021 (2) SA 618
(GJ) (16
November 2020)
Fisher J explained loss of income as follow:
"The
loss faffs in two types. The first is known as special damages. This
is actual patrimonial loss and generally takes the
form of loss
suffered by having to pay for medical treatment; loss suffered due to
the fact that the claimant is not able to carry
out his employment
obligations (past loss of earnings) and loss that is suffered as
a
result
of the fact that the plaintiff has suffered an incapacitation which
is likely to affect his ability to earn an income in
the future (loss
of earning capacity) ..."
21
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA);
[2018] ZASCA 52
the learned Judge held that evidence must be carefully analyzed by a
Judge in order to come to an appropriate factual finding in
the
ordinary way. All the evidence must be considered and carefully
sifted, to establish what evidence is reliable, having considered
the
probabilities.
22
At
22
it is stated that:
"It
is trite that an expert witness is required to assist the Court and
not usurp the function of the Court. Expert witnesses
are required to
lay a factual basis for their conclusions and explain their reasoning
to Court. The Court must satisfy itself as
to the correctness of the
expert's reasoning....ln
Road
Accident Appeal Tribunal & Others v Gouws & Another
[2017]
ZASCA 188
;
[2018] 1 ALL SA 701
(SCA)
para 33,
this Court said '[C]ourts are not bound by the view of any expert.
They make the ultimate decision on issues on which experts
provide an
opinion.' (See also
Michael
& Another v Linksfield Park Clinic (Pty) Ltd & Another
[2002]
1 All SA 384
(A)
para
34)".
23
At
23
,
Rogers AJA held:
"The
facts on which the expert witness expresses an opinion must be
capable of being reconciled with all other evidence in
the case. For
an opinion to be underpinned by proper reasoning, it must be based on
correct facts. Incorrect facts militates against
proper reasoning and
the correct analysis of the facts is paramount for proper reasoning,
failing which the Court will not be able
to properly assess the
cogency of that opinion. An expert opinion which lacks proper
reasoning is not helpful to the Court. (See
also
Jacobs
v Transnet Ltd t/a Metrorail
[2014] ZASCA 113
;
2015 (1) SA 139
(SCA)
paras 15
and 16; see
also
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Fur
Schadlingsbekampfung mbH
1976 (3) SA 352
(A)
at
371F".
24
Judge
Fisher held at
40
in
MS v
Road Accident Fund (10133/2018) [2019] ZAGPJHC 84;
[2019] 3 All SA
626
(GJ) (25 March 2019)
''The
general approach is to position the plaintiff, as he is proven to
have been in his uninjured state and then to apply assumptions
to his
state with the proven injuries and their sequela. The deficit which
arises between these scenarios (if any) are then translated
with
reference to the various baseline means and norms used. These
exercises are designed with the aim of suggesting the various
types
of employment which would hypothetically be available to the
plaintiff in both states. The loss would then be calculated
as the
difference in earnings derived between the pre-accident (or
pre-morbid states it is often called) and post accident
or
post-morbid state.
25
In
41
the status and use of contingencies are explained. The paragraph ends
as follow:
"....
This
mechanism should not be understood as being prescriptive and
confining of the assessment that the Court is called on to make.
The
Court has
a
wide
discretion as to the assessment of loss. This task is judicial and is
founded to a large extent on experience, intuition and
general
right-thinking."
26
Van
Oosten J, held in
Roe
v Road Accident Fund (16157/2009) [2010] ZAGPJHC 19 (1 April 2010)
at
11:
"The
general principles applicable to the assessment of damages under this
head were summarised by Van Heerden J (as she then
was) in Bridgman
NO v Road Accident Fund (C) Corbett
&
Honey
The Quantum of Damages in Bodily and Fatal Injury Cases Volume Vat
B4-1, B4-5.
Before
there can be
a
quantification
of
a
claim
for loss of earning capacity
a
plaintiff
must, as a first requirement, prove that "the reduction in
earning capacity gives rise to pecuniary loss"
(Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA) 241H-242B). The general
principle applicable in this regard has been succinctly stated by
Chetty J in
Prinsloo
v Road Accident Fund 2009(5) SA 406 (SE)
with
reference to the leading cases of
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1973 (2) SA 146
(A) 150B-D
and
Dippenaar
v Shield Insurance Co Ltd (supra) at 917B-D
as
follow: "A person's all-round capacity to earn money consists,
inter alia, of an individual's talents, skill, including
his/her
present position and plans for the future, and, of course, external
factors over which
a
person
has no control, for instance, in casu, considerations of equity.
A
Court has to construct and compare two hypothetical models of the
plaintiff's earnings after the date on which he/she sustained
the
injury
.
In casu, the Court must calculate, on the one hand, the total present
monetary value of all that the plaintiff would have been
capable of
bringing into her patrimony had she not been injured, and, on the
other, the total present monetary value of all that
the plaintiff
would be able to bring into her patrimony whilst handicapped by her
injury. When the two hypothetical totals have
been compared, the
shortfall in value (if any) is the extent of the patrimonial loss.
….
At
the same time the evidence might establish that an iniurv may in fact
have no appreciable effect on earning capacity, in which
event the
damages under this head would be nill."
The
Law applied to the evidence:
27
At
the date of the accident the Plaintiff was employed as a financial
clerk in a
"well
owned, well established family business",
earning
R 264 000, 00 per annum. Virtually within a year to two years of his
having been so seriously injured that
"his
employability will always be negatively affected by his injuries",
as
stated by the experts, Plaintiff manages to obtain a more lucrative
job opportunity, earning R 450 000, 00 per annum.
28 Had
Plaintiff stayed on in the family business, he might have most likely
taken over the business from
his father at age 40, as stated to the
industrial psychologist. He would have then become the managing
director of the business.
Now that he has left, the possibility of
his becoming a managing director at the age 40 or 45 is slimmer.
Logically and especially
in his circumstances, it makes no sense that
Plaintiff leaves a family business with a sympathetic employer, in
lieu of a better
opportunity.
29
Based
on the Plaintiff's higher income of R450 000,00 per annum, the
actuary gets instructed to do new calculations in support of
the
Plaintiff's loss of future income and earning capacity. The
difference in projected loss of income is millions of rands. The
calculations show that Plaintiff will be earning a yearly salary of R
1 322 612, 00 per annum in 2036, when he is 45 years old
and on a
D4/5 Medium Package, which represents middle management level, with a
B Degree.
30
Having
considered
Dippenaar
(supra);
MS v
Road Accident Fund
(supra)
and
Roe
v Road Accident Fund
(supra),
the
Defendant is only to make good the actual damages suffered by the
Plaintiff. The point of commissioning of the delict is the
point of
inception of damages. Plaintiff suffered no past loss of income as he
was remunerated throughout and even earned a higher
income than at
date of the motor vehicle accident before judgement.
31
Did
the Plaintiff suffer loss of future earning capacity?
The
answer lies in the decided cases of
Roe
v Road Accident Fund
(supra),
and the
magnitude of supporting case law stated therein. Future loss of
earning capacity and future loss of income can only be calculated
once proven. In this matter the Plaintiff managed to find a more
lucrative job opportunity in one to two years after the accident,
earning almost 75% more than he had as financial clerk in his
family's business. The Plaintiff has not discharged the onus of
convincing this Court that he has suffered any present or future loss
of earning capacity as a result of the injuries he sustained
in the
motor vehicle accident.
32
The
Court however must be mindful of the future surgery for removal of
the internal fixation screw in his SI joint, followed by
formal
anthrodesis of the SI joints, 15 years from now. Dr Engelbrecht
further held that there was a 20% possibility of adjacent
segment
deterioration of the lumbar spine, which might necessitate further
lumbar spine surgery, decompression, fusion and the
insertion of
instrumentation in 20 years from now. Sick leave of 8 weeks and 3
months are foreseen after each of the procedures
respectively. Two
years early retirement is foreseen by Dr Engelbrecht.
33
In
the circumstances, the interest of justice dictates that an amount be
allocated for future loss of earnings. The Court has a
wide
discretion to decide damages (of which loss of income forms but one
category). What would be fair in the circumstances is
making
provision for loss of income for the period the Plaintiff would spend
off work after each foreseen medical procedure in
future, should they
occur. Thus, I revert to the actuarial report, and the Plaintiff's
projected yearly income 15 years from now.
Proof of Plaintiff's
present income was also requested and a present average nett salary
of R 56 000, 00 per month was established.
34
The
possibility of 2 years early retirement was not considered by this
Court. Plaintiff's injuries are not to be left unattended
and the
Defendant already furnished Plaintiff with an undertaking in respect
of future medical expenses in 2020. Lifelong conservative
treatment
was foreseen for the Plaintiff and general damages in an amount of R
800 000, 00 was most generous.
Conclusion:
35
The
Court have perused the medical receipts and vouchers and is satisfied
that all the expenses were incurred from date of accident
and were
accident related. It follows that the claim for past medical expenses
has been proven.
36
No
past loss of income was suffered by the Plaintiff.
37
Having
considered all the evidence and the evidence on the expert witness
reports in this matter, this Court has not been convinced
the
Plaintiff have suffered any loss of earning capacity.
38 An
amount needs to be allocated for loss of future income for the
periods that the Defendant would spend
off work following each of the
two surgeries, should they take place. It will be fair and reasonable
if loss of earnings are allocated
for a period of 5 months. Based on
the Actuary's projected salary of R 1 322 612, 00 per annum in 2036,
15 years from now, the
Court deduced that the Plaintiff's monthly
salary would be an amount of R 110 217, 67. I applied a 10%
contingency to the figure,
considering that surgery in 15 years' time
is a given and there is only a 20% chance of lower back surgery 20
years from now. The
Industrial Psychologist states that Plaintiff is
expected to reach his career ceiling at age 45 in 2036. Should the
Plaintiff take
this amount and invest it until he undergoes the
surgery, the amount should be sufficient to cover his foreseen loss
of income.
39
Costs
for expert witness reports and addendums thereto were already
addressed by the Order dated 07 August 2020. Apart from a further
actuary reports dated 17 July 2021, no further reports were filed by
the Plaintiff. The Plaintiff also did not file Affidavits
(in
pursuance of the Practice Directives) confirming the experts were
reserved for the day of trial. Accordingly no costs for reservation
of the experts will be allocated.
Order:
1
The
claim for past medical expenses in the amount of R 144 396,62 is
granted, payable by the Defendant to Discovery Health's Third
Parties
Recovery Department within 120 days from date hereof;
2
Plaintiff's
claim for past loss of income is dismissed;
3 Plaintiff's
claim for loss of earning capacity is dismissed;
4
Future
loss of income is awarded to the Plaintiff in the amount of R 495
980, 00;
5
The
Defendant is ordered to pay the Plaintiff's taxed party and party
High Court costs from 08/08/2020 to date of judgement. The
costs so
allocated shall be inclusive of the costs of advocate's preparation
and the last actuary report, dated 17 July 2021. The
Order shall
exclude costs of the expert witnesses' reports and addendums thereto
and the costs of their reservation for trial.
D
PICK
ACTING
JUDGE OF THE HIGH COURT
Heard
on: 10
March 2021
Judgement
on: 21
June
2021
FOR
THE PLAINTIFF: Advocate JF van
der Merwe
082 375 4628
francois@clubadvocates.co.za
FOR
THE DEFENDANT: Ms Tsholofelo Cathrine Ramatlapeng
(012) 429 8365
tsholofelor@raf.co.za