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[2021] ZAGPPHC 176
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Maphosa v MEC for Health, Limpopo (29755/2011) [2021] ZAGPPHC 176 (15 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VIS
I
ON,
PRETORIA)
Case
number: 29755/2011
Heard
on: 11 March 2021
Date
of
judgment:
1
5
March
2021
In
the matter between:
EDWIN
MONATSE
MAPHOSA
Plaintiff
and
MEC
FOR HEALTH,
LIMPOPO
Defendant
JUDGMENT
SWANEPOEL
AJ:
[1]
On 16 March 2010, whilst he was a passenger in a truck, the plaintiff
was unceremoniously hauled from the vehicle by members
of the South
African Police Service. In the process he broke his right ankle. He
was taken to the Musina Hospital where he was
admitted for treatment.
He was later transferred to the Tshilindzini Hospital where he was
treated for some weeks before an open
reduction and internal fixation
was attempted.
[2]
Plaintiff's experts say that the failure to immediately operate on
the ankle was extremely negligent, as it should have been
attended to
immediately. The ankle has been left severely compromised, and
requires an arthrodesis, essentially a fusion which
would leave the
joint without movement. It is safe to say that plaintiff was ill
served by the authorities.
[3]
In a merits hearing, the defendant was held to be 100% liable for the
plaintiff's damages resulting from the negligent treatment
by the
hospital staff. This hearing is to determine the quantum of the
damages. A number of heads of damages have been agreed between
the
parties:
[3.1]
Future medical
expenses:
R 266 900.00;
[3.2]
Past loss of income:
R 1 650 000.00;
[3.3]
General damages:
R 250 000.00.
[4]
The remaining head of damages is that of future loss of earning
capacity.
[5]
Plaintiff resides in Beitbridge, on the Zimbabwean side of the
border. He is married, and his wife is a vendor. He has five
children. From the age of approximately 9 years (Grade 3) assisted
his father, a welder, in his business, and so he learnt his
trade. He
does not have a formal welding qualification. At the time of the
accident plaintiff had taken over the welding business,
was employing
his brothers, and had a steady income. He is obviously proud of the
fact that he could afford two vehicles, a car
and a delivery vehicle.
The parties have agreed that his income averaged R 12 500.00 per
month. He was able to provide a good life
for his family.
[6]
After the incident plaintiff was unable to return to work. He had to
resort to using crutches to walk, and because he physically
compensated for the injury, other joints were affected. He has
suffered pain ever since. Plaintiff's brother took over the business
after he was injured, and eventually plaintiff was able to secure
some income by doing deliveries for another one of his brothers.
He
cannot drive far, or for long, and is limited in his ability to
generate an income. The employment opportunity created by his
brother
seems to have been born more out of sympathy than anything else.
[7]
Plaintiff's expert, Ms. Bonnie Huang, is an occupational therapist.
She testified that she had prepared a report on the plaintiff.
He
currently struggles to stand and walk for extended periods of time.
He requires regular breaks and stretching, and his pain
is a
distraction when he is working. He aspires to start a construction
company. Ms. Huang testifies that the arthrodesis would
leave
plaintiff with a stiff ankle with no movement. At present she regards
him as unsafe for employment as a driver, and even
after the
arthrodesis he would still be unsafe. There was emphasis placed by
defendant on plaintiffs ability to earn an income
as a driver,
probably because there had been a misconception that he was
previously a truck driver. Pre-accident he was a welder
and
businessman, not a driver, and he has been moonlighting as a driver
since the incident, in order to secure some income.
[8]
Ms. Sagwati Sebapu is defendant's occupational therapist. She did not
testify. Her report opines that plaintiff is unsuited
for heavy work,
which would seem to exclude welding jobs. Following the arthrodesis
plaintiff would, in her view, be able to cope
with his pre-incident
occupation with better comfort. In her view, the arthrodesis would
have little impact on his functioning.
[9]
The difference between Ms. Huang's view, and that of Ms. Sebapu is
stark. However, the evidence of Ms. Huang, which was not
seriously
contested, was that plaintiff would continue to suffer severe
difficulties in whatever occupation he pursued. Plaintiff
s evidence
supports Ms. Huang's contention that he will not be able to function
as a welder. As a driver he has little scope of
finding employment
that is not sympathetic, simply because he cannot drive far or for
long distances. His options are also limited
given the small village
in which he resides.
[10]
The joint minute by the industrial psychologists, Ms. Kotze and Dr.
Malaka dated 13 January 2021 records that they agree that
pre-accident plaintiff was earning R 12 500.00 per month as a welder
in his own business. But for the accident he would have continued
to
function as an unqualified welder with inflation related earnings
until retirement at age 65. Post-accident plaintiff earned
R 2000.00
per month working for his brother, until he was retrenched in March
2020.
[11]
It did, however, emerge from Ms. Kotze's evidence that the plaintiff
is a resourceful and motivated person. She believes that
he has
entrepreneurial skills that can be put to good use, especially if he
has some capital to start a business.
[13]
Both parties produced actuarial reports. There was no evidence led in
respect of either report, and plaintiff accepted that
defendant's
report should be used as the basis for the calculation of the
plaintiffs future loss of income. Defendant's actuary
calculated plaintiffs loss of
future income at R
3 783 713.00. To
that amount a contingency deduction should be applied to make
provision for the probability that plaintiff will
generate an income
having undergone the arthrodesis, and having some capital to start a
business.
[14]
Plaintiff contended for a 20% contingency deduction, whilst defendant
argued for 50%. Plaintiffs submission is, in my view
too low, given
the probability that plaintiff will generate an income in future. On
the other hand, defendant's proposal is high,
given the fact that
plaintiff will still be left with a serious disablement, which will
no doubt affect his ability to operate
on a normal level. In my view,
a contingency deduction of 30% is appropriate. That would reduce
plaintiffs future loss of income
by R 1 135 113.00. His loss of
future income is therefore R 2 648 600.00.
[15]
I have been told that there is no contingency fee agreement in place.
The proposed order makes provision for matters which
are within the
purview of the taxing Master, and I will therefore make the customary
order.
[
16]
I make
the
following
order:
[16.
1
]
Defendant
shall
pay to
p
l
aintiff
the
sum
of
R 4
815 500.00 which
i
s made up as follows:
[16.1.1]
Future medical expenses:
R 266 900.00;
[16.1.2]
Past loss of income:
R 1 650 000.00;
[16.1.3]
General damages:
R 250 000.00;
[16.1.4]
Future loss of
income:
R 2 648 600.00.
[
1
6.2]
Defendant shall pay p
l
aintiff's costs on
the H
i
gh Court party/party scale.
The
costs shall
i
nclude
the reasonable
reservation and qualif
i
cation and other
fees
of the following experts:
[
1
6
.
2.
1
]
Dr L Berkowitz (Plastic and reconstructive surgeon);
[16.2.2]
Ms. A Rossouw (Occupational
therapist);
[16.2.3]
Ms. K Kotze (Industrial Psychologist);
[16.2.4]
Munro Forensic Actuaries.
[
1
6.3]
The
following provisions will
apply
to
the
determination of the
aforementioned
taxed
or
agreed
costs:
[
1
6.3.
1
]
Plaintiff
shall,
i
n the
event
that
costs
are
not
agreed, serve a
notice
of
taxation
on
defendant's
attorney of
record;
and
[1
6.3.2]
P
l
aintiff
shall
allow
the
defendant
1
4
(fourteen) court
days
to
make
payment
of
the
taxed
costs, whereafter
i
n
terest
shall
commence
running
at
the
applicable
mora
rate.
JJC
SWANEPOEL
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA
COUNSEL
FOR PLAINTIFF: Adv. J Swart
ATTORNEY
FOR PLAINTIFF: Dyason Inc {Ms. L Horn)
COUNSEL
FOR DEFENDANT: Adv. L Mfazi
ATTORNEY
FOR THE DEFENDANT: The State Attorney {Mr. Rabambi)
HEARD
ON: 11 March 2021
JUDGMENT
ON: 15 March 2021