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[2021] ZAGPPHC 351
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Phakathi v Road Accident Fund (14783/2017) [2021] ZAGPPHC 351 (31 May 2021)
IN
THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO:
14783/2017
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:YES/NO
REVISED
DATE:31/05/2021
In the matter between:
LW
PHAKATHI
Plaintiff
and
THE 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 31
MAY 2021 AT 12H00
Introduction:
1
The subject case arises from a claim against the Road Accident
fund.
The Court was addressed
by the Plaintiff’s legal representative and was called upon to
adjudicate on the claim for loss of
income, as the Plaintiff rejected
the Defendant’s offer in settlement at trial. Merits were
settled between the parties on
a 80/20 basis in favour of the
Plaintiff. The matter was to be decided by way of papers. The
Defendant was unrepresented. The evidence
before this Court for the
purposes of adjudicating on quantum are the expert witness reports
and salary advises.
The Plaintiff’s
case:
2
The Plaintiff was found next to the road. He was run over by a motor
vehicle at about 01h00 on the N2 Piet Retief Road, Ermelo district,
Mpumalanga when coming back from a funeral. The last thing
he
remembers is crossing the road before he woke up in hospital. The
Plaintiff states that the driver of the motor vehicle who
ran him
over did not stop at the scene of the accident.
3
The Plaintiff was taken to hospital by an ambulance. The Court
was
not placed in possession of ambulance records. The hospital records
indicate the Plaintiff was intoxicated at the time of admission.
4
At the time of the accident the Plaintiff was employed by Transnet
as
a general worker. His scope of employment entailed maintenance on the
rail tracks which required heavy lifting on occasion.
The Plaintiff
claims to have earned R 7000, 00 per month at the time of the
accident. Four salary advises were made available to
Court,
5
The Plaintiff claims to have been off work convalescing for 3 or 4
months after the accident. He utilised a wheelchair and spent some
time on crutches. He could mobilise independently at the time
of his
returning back to work in June 2015. The Plaintiff claims he was not
compensated for the time he spent off work.
6
The Plaintiff lost his employment when his contract terminated at the
end of April 2017, more than two years after his return to work
following the motor vehicle accident. Plaintiff claims his contract
was not renewed as a result of the physical disadvantages he suffered
after the accident.
7
It is not clear what Plaintiff’s highest level of education is.
He reported grades varying between a grade 7 and a grade 10
qualification. According to the industrial psychologists’
reports,
the Plaintiff qualifies as being between unskilled and
semi-skilled labour.
8
This Court is not prepared to accept the 5th and final amended
Particulars
of Claim dated 21/02/2017 with the Filing Notice dated
17/02/2021 (18 days before trial) in the amount of R 3 300 000, 00. I
could
not find proof of same having been served on the Defendant or
filed with the Registrar. The matter was certified trial ready on
06
October 2020 with the claim amount of R 2 650 000,00.
9
The Plaintiff’s final claim is for the purposes hereof
therefore
is considered to have been served on 03/09/2019 and filed
on 04/09/2019 in an amount of R 2 650 000, 00. The claim is compiled
as follow:
“
8.1
Past
medical expenses
R
25 000, 00
8.2
Future Medical
Expenses
R
125 000, 00
8.3
Loss of Income
R
2 200 000, 00
8.4
General Damages
R
300 000, 00”
The Expert Evidence:
10
No less than 11 expert witness reports were placed before of this
Court. For the purposes of this judgement all 11 of these reports
need to be addressed.
11
The Plaintiff fractured his left tibia and fibular and
his left
humerus. As per the hospital records, the fractures were treated by
open reduction and internal fixation.
Dr Ziervogel
(the
orthopaedic surgeon) examines the Plaintiff on
07 June 2017
.
He tells Dr Ziervogel
he did not return to work after
the
accident. Dr Ziervogel rates Plaintiff’s whole body impairment
(WPI) at 6%. He reports the discomfort Plaintiff is still
complaining
about is in the area of a protruding nail. This is confirmed by the
hospital records which read as follow: “
X-rays 25/05117
Protruding nail irritating
a
muscle”.
12
Dr Ziervogel, after consideration of the x-rays concludes the
fractures have healed
well and that the instrumentation can be removed. In time the
pain Plaintiff experiences when trying to lift heavy things will
probably subside. Once the instrumentation is removed the pain should
disappear.
13
The Plaintiff consults with
Ms L Toerien
, the
occupational
therapist
on the
16th
of
November
2017
. He reports to have
a grade 10 qualification
.
He tells Ms Toerien he
continued in the same capacity (of work)
after the accident until his contract ended.
He experienced some
difficulties though. Ms Toerien concludes as follow: “
Client
meets the inherent demands
of his pre-accident
employment, although the instrumentation might continue to cause
discomfort.”
14
The Plaintiff reports no psychological difficulties and
expresses
only travel related anxiety to her. She advises he would benefit from
clinical psychological intervention as he might
be experiencing “
an
emotional overlay
related to his pain”.
15
The Plaintiff presents with the following scars when examined
by
Dr
Patel
on
20 March 2018:
lacerations at the lateral comer
of his left eye and behind his head, abrasions at the back of his
neck, his left shoulder and
his chest. He has a 5 cm hypopigmented
scar where his neck and the left shoulder get together. He presents
with a 3 cm visible
scar on the left shoulder, a 23 cm scar on the
left upper arm, various scars between 2 and 6 cm long on the left
lower leg and
a 4 cm transpatellar scar over the anterior knee.
16
Dr Patel remarks these scars present “
severe deconfiguration
and are permanent in nature’.
She suggests surgical scar
revision and fractionated laser therapy. Dr Ziervogel remarks
apart
from the patellar scar, none of the other scars are still painful or
sensitive.
17
In
February 2018
the Plaintiff consults with
Ms F de
Ritter
, a
clinical psychologist.
He reports to have a
grade 9 qualification
. He tells her
he was employed with
Transnet until April 2017 when the contract ended
. He experienced
dizziness when it was hot and pain when lifting heavy objects and had
to take frequent breaks.
She is unable to contact his former
supervisor with Transnet, as he is
unable to
recall his surname
or
his
contact details.
18
The Plaintiff reports he suffers behavioural disturbances, he
is
angry and irritable. He tells her his mobility is impaired and he
needs assistance with household chores. His sister states
that she
doubts he will be able to work again.
19
She finds he represents with mild neurocognitive disorder,
major
depressive disorder on a mild level and chronic post traumatic stress
disorder. She recommends clinical psychological treatment
for
individual psychotherapy and psychiatrist intervention. She assesses
the Plaintiffs whole person mental and behavioural disorder
impairment rating at 12%.
20
Ms de Ritter concludes Plaintiff
should receive compensation for
pain and suffering experienced over the years following the accident,
any future pain
and suffering as well as possible loss
of income and loss of quality of life.
21
On
21 May 2018
Plaintiff consults with
Ms Tromp
, a
clinical psychologist.
He tells her he has a
grade 9
qualification.
He tells her
he returned to his post as a
general worker until he was retrenched in April 2017
. He
complains since the accident he
inter alia
suffers episodes of
dizziness, pain in his left shoulder, left arm, leg and back. He
suffers from a depressed mood, loss motivation
and feels hopeless and
helpless.
22
He reports he suffers from travel anxiety. He has also
become highly
irritable, short tempered, and socially withdrawn. He experiences low
self esteem and self-image. He struggles
to remember and
concentrate and is suffering of sleeping disorders. He eats less
since the accident and has anger outbursts. He
has nightmares at
least once a week.
23
Ms Tromp diagnoses him with depressive disorder symptoms and anxiety
which
impacts on his interpersonal
relationships
and day to day functioning.
She advises he should consult
a clinical psychologist for psychotherapeutic intervention for at
least 25 sessions. She further suggests
he should consult a
psychiatrist for psychotropic medication and undergo physiotherapy.
24
The Plaintiff tells
Ms Mathabela,
an
industrial
psychologists
on
21 May 2018
his highest
scholastic qualification is
grade 8,
which he obtained in
2006. He tells her
upon returning
to work after the
accident,
he was put on light duty for two months and
thereafter resumed his
former
position until April 2017, when
his contract ended.
25
He tells her his work performance however was slow due
to “
the
challenges”
he faced after he returned. if it was not for
the accident his contract would have been renewed. Before the
accident he could be
promoted to driver earning R13 000, 00 per month
and was in the process of obtaining his driver’s licence at the
time of
the accident. He reports he did eventually obtain a code 10
driver's licence in 2017 and is actively seeking employment as a
driver.
26
After she
could not reach Transnet to
confirm
his employment
prior to the accident.
She manages
to contact one Happy, a
former colleague
of the Plaintiff
who informs her
Plaintiff was employed on
a
year-to-year
contract basis. After the accident Plaintiff’s job
performance was slow as he complained of pain in his legs. He was
placed
on light duty with the same salary until his contract ended.
He was
a
good worker and had
a
prospect of being
promoted to driver or supervisor. The prerequisites to such promotion
were work experience in the company and
job availability. He cannot
recall when the Plaintiff’s contract ended.
27
During the consultation, Plaintiff reports
inter alia
he
suffers pain in his left knee and shoulder, experiences discomfort
when he sleeps on his left side and when lifting heavy objects.
He
reports he is short tempered, irritable, quiet and chooses to stay at
home. She opines that Plaintiff suffers from depressive
disorder
symptoms.
28
In her report, she recommends that he should seek alternative
employment as a driver or general worker with less physical demands
than his employment prior to the accident. Ms Mathabla concludes
that
he is
operating at
diminished capacity due to his
impaired state which will most likely result in decreased employment
opportunities
and
a
lower earning capacity.
29
On
22 May 2018
the Plaintiff consults
Dr Okoli, a
neurosurgeon
. He tells Dr Okoli that he has a
grade 8
qualification
. During the consultation he reports
inter alia
that he has pain in his left leg, his left shoulder and when he
sleeps on his left side. He reports that he has no friends, and this
is the way it has always been. He remarks “
friends are no
good”.
He reports no sleeping disturbances, he does not
suffer any memory problems, he is not short-tempered or violent and
has no anxiety
disorders. Dr Okoli reports that Plaintiff suffers no
neurophysical disorders and has no neuropsychoiogical complaints. Dr
Okoli
concludes that Plaintiff
is able to secure employment in the
open labour market
without reduction in his retirement
age.
30
On
23 May 2018
the Plaintiff consults with
Ms Elouise du
Plooy
from
Reintegrate.
She is an
occupational
therapist.
He reports his highest scholastic qualification to be
a
grade 8.
He tells her
he was placed on light duty
for
2 months
after the accident.
After
this period
he could not
resume
his
normal duties and was given
lighter physical work.
31
He does not report any cognitive, psychological or emotional
difficulties to her during the interview. She remarks that
Plaintiff’s cognition, psychosocial and emotional
functioning
displayed on the day of the evaluation is not expected to
inhibit his occupational performance. His employment skills are
classified
as unskilled to semi-skilled.
32
Ms du Plooy concludes “
...
given
his
present
physical
limitations
and
low level
of education.
Mr Phakathi is no longer as competitive in
the open labour market as his counterparts
...
Note is made
however that even with the
intervention it is not
expected to return to his pre-accident level of functioning.”
33
The Plaintiff consults
Dr Pretorius Industrial Psychologists
on the
26th of September 2018.
He reports his highest
scholastic qualification is
grade 7
which he passed in 2007.
He tells them he was
placed on light duty until April 2017. His
contract was not renewed, whilst all his co-workers’
contracts were renewed.
He gives no reason why his contract
was not
renewed.
They manage to speak to his former
supervisor,
one Happy, whose version of the Plaintiff’s
work performance pre- and post-accident is set out and discussed
hereinunder.
34
It is observed that the Plaintiff’s employment profile
falls
into the unskilled category. His salary at Transnet was higher than
the Upper Quartile of R 82 000, 00 per annum as set out
in Koch’s
guide for Unskilled Workers (2019). He would most likely not be able
to earn this salary in the open labour market
again.
35
Apart from feeling saddened by the accident, he reports no other
psychological- or cognitive related complaints. He reports he is
actively seeking employment as a gardener, cleaner or general
worker.
It is concluded that the
psychological and neuropsychological
impact of the accident disadvantaged him.
The impact of the
accident would now render him a “
disadvantaged job-seeker
in
a
higher competition environment”.
36
It is further concluded that his physical impairment could likely
be dealt with by removal of the internal fixtures. Four weeks’
recuperation time is needed to be provided for after each removal. I
quote: “
Based on the expert opinions, Mr Phakathi remains
suited to the work of general labourer, but with some discomfort I
pains due to
internal fixtures still being in place. However,
following removal of the fixtures, he is not foreseen to present with
any significant
limitations and the expectation is then created that
he would be able to engage
in physical work (such as
pre-accident) without curtailment”.
37
On
06 December 2018
the Plaintiff consults with
Dr
Mokabane
, a
neurologist.
He reports to have a
grade 7
qualification
. He reports
he was initially
on
light duty when he went back to work
but
returned
to
his
normal
position after some time. His contract ended in 2017 and he
has been unemployed since then.
38
He denies any emotional disturbances and a history of headaches.
He
reports
inter alia
forgetfulness but does not perceive same as
a problem. Dr Mokabane concludes that no mention or suggestion is
made of head injuries
in the hospital records. The Plaintiff
suffered
pain and continue to suffer pain since
the accident and
should be fairly compensated for the injuries he suffered in the
accident.
39
The
Joint Minute
of the industrial psychologists, Ms Mathabela
and Mr Jooste was compiled on
13 August 2019.
They agree the
Plaintiff has a
grade 7
qualification.
They
agree he
lost his employment when his contract was not
renewed at the end of April 2017, most likely as a result of
his physical drawbacks. This information was derived from
collateral
sources.
40
They resolve he is
operating at
a
diminished capacity.
As
a result of the disagreement between the occupational therapists,
they advise two scenarios for the calculation of future loss
of
income, namely, that a national minimum wage of R 42 000, 00 per
annum be used as the basis for calculation of future loss of
income
as opposed to the highest quartile for unskilled workers, being R 82
000,00 per annum at the time.
41
They advise he
should be compensated for the recuperation period
(past
loss
income)
of
4 months
in the amount
of R
7
500, 00 per month.
They also advise he should be
compensated for risk of future loss of earnings
as his
earning potential has been restricted and he is more vulnerable.
Issues to be decided
by the Court:
42
This Court was requested by the Plaintiff’s legal
representative
to adjudicate on the loss of earnings only. I will
address past- and future loss of earnings and past- and future
medical expenses
as well, as they form part of the claim before Court
as set out in the Plaintiff's Particulars of Claim.
43
The merits have already been settled between the parties on
80/20%
basis in favour of the Plaintiff. The Parties already settled the
general damages in the amount of R 450 000, 00. Is the
settlement
justified in the circumstances? The Court is not merely a “rubber
stamp” and has a wide discretion in ensuring
a justified
outcome for all the Parties concerned.
44
How much weight should be attributed to the expert witness reports in
the
Court’s reaching its final conclusion herein?
Case Law applicable to
the evidence:
45
It was held
in Coopers (South Africa) ltd v Deutsche Gesellschaft
fur Schadelingsbekampfung MBH
1976 (3) SA 352
(A) 371G-H:
“
As I see it, an
expert's opinion represents his reasoned conclusion based on certain
facts
or data,
which
are
either
common
cause
or
established
by his own
evidence
or that of some
other
competent
witness
....”
(my
emphasis)
46
In
Rudman
v
Road
Accident
Fund (370/01)
[2002] ZASCA
129
;
[2002] 4 All
SCA 422 (SCA) 26
the Court
stated at 16:
“
....
it must be
remembered that in the final analysis an award cannot be based on
speculation. It must have an evidential foundation.
It was further held that
“
earning capacity is a complex of abilities which together
make up an asset in a claimant’s estate”
and
the abilities must therefore be considered as a whole.
One should
guard against isolating the individually compromised elements of the
ability to earn a living and place a monetary value
on them.
Instead it was held, one should consider whether the individually
compromised element brings about a “
diminution in the
claimant’s earning capacity as
a
whole”.
47
Judge Fisher in
MS v Road Accident Fund (10133/2018)
[2019]
ZAGPJHC 84;
[2019] 3 All SA 626
(GJ) (25 March 2019)
held that the
Judiciary should not be blind to the manner in which the Road
Accident Fund is being exploited. She held that too
often the
plaintiff seeks to proof the motor vehicle accident as the causation
of his injuries by filing an array of expert witness
reports (at
great costs),
which reports are compiled by way of facts related
by the plaintiff to the expert and some clinical findings. This is
especially
prevalent in cases where injuries are less obvious.
48
The judgement further sets out a
four tier enquiry
by which
Road Accident Fund matters should be evaluated.
Firstly
and in
order to justify the merits, it should be established whether the
accident was caused by the negligence of the insured driver.
The
second and third legs
of the investigation involve establishing
whether the plaintiff sustained the alleged injuries in the accident
and how the
proven injuries
have affected the Plaintiff? Only
once this has been established can quantum be addressed. The
fourth
leg
of the investigation entails determining how the plaintiff
should be remunerated for the effects of such injuries.
49
At 36
it was held that the quantum for the loss of future
income to
be awarded to the
plaintiff is a matter of estimation to be dealt with by the Court in
its wide discretion, as it is based on uncertain
future events. The
learned Judge remarks
at
37:
“
The parties routinely
seek to assist the court in this assessment of the amount payable by
resort to the expertise of an actuary.
This is not an obligatory
approach
to the quantification of damages and
a
court
should be careful not to treat these reports as if they are
scientific data and the approach directive.”
50
At 41
the Judge remarks on the actuarial manner of calculation
of quantum and the application of contingencies as follow:
“
...
This
mechanism
should
not be understood
as
being
prescriptive
or 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.”
51
I must align myself with Judge Fisher who
at 78
cautions
that the funds in the Road Accident Fund are “
precious
public monies”.
I also take heed of Judge Fishers warning
that “
Court should be alert to a lack of circumspection in
the briefing of experts and the employment of other resources in the
conduct
of a case, on the basis that it is assumed that RAF will
absorb all the costs as
a
matter of course.”
Applicability of case
law to the Evidence:
52
A well rounded, reasoned and rationally acceptable judgement is the
result
of sifting through all the evidence which was placed before
the Court and weighing the probabilities against the improbabilities
after having distinguished the reliability of the evidence.
53
It is reasonable to accept the Plaintiff was injured in a motor
vehicle
accident. The Plaintiff provides the contact details of the
ER24 member who transported him to the hospital on his statement to
the Police. The hospital record reads as follow:
“
A
26 year old male brought forward with the history of being found on
the
road. Looks like being hit by the car and ran away.
Patient is intoxicated with alcohol consuming
...
-
28/02/2015”.
54
At this point I pause to point out that the Plaintiff would have
benefited
from discovering the ambulance records as well. The value
thereof is evidentiary and could have provided information such as
whether
the Plaintiff was conscious or unconscious, the circumstances
in which he was found as well as the Plaintiff’s glascow index.
55
The Plaintiff reported the motor vehicle accident to the Police who
investigated
the matter and resolved that the motor vehicle which
drove the Plaintiff over could not be tracked down. In his affidavit
the investigating
officer indicated there were no eyewitness to the
incident. The case was consequently closed on 20 August 2015
56
It follows that the Defendant would be liable to compensate the
Plaintiff
for injuries he so suffered and can proof in terms of
section 17(1)(b) of the Act, “....
provided that the
obligation of the Fund to compensate
a
third party for non
pecuniary loss shall be limited for compensation of serious
injury as contemplated in subsection (1A) and shall be paid by
a
lump sum.”
Ad
General
Damages:
57
I was notified general damages were settled in an amount of R 450
000, 00. The
Particulars of Claim served and filed on 03/09/2019 and
04/09/2019 respectively makes provision for a claim in the amount of
R300
000, 00 only. The claim for general damages is curbed at the
amount of R300 000,00 and the settlement therefore rejected. General
damages now become a matter to be decided in the Court's discretion.
58
Serious injuries are defined in regulation 3 of the Road Accident
Fund
Regulations, 2008 and requires the completion of a Serious
Injury Assessment Report (RAF 4 form). Dr Patel completed two RAF 4
forms dated 2018/03/20 and 2021/02/25 (14 days before trial)
respectively. The RAF 4’s so completed mentions the severeness
of the scarring and shortly refers to the other injuries.
59
The aforementioned RAF4 reports read as follow:
4.2. Medical treatment
rendered from date of accident to present:
2018/03/20 “
Ermelo
Provincial Hospital: RIF of left humerus and left leg”
2021/02/25: “
Ermelo Provincial Hospital- emergency and
surgical care for left humerus and
left tibia fracture.”
60.1
The heading to the RAF4 form reads as follow:
(a)
A
claim for non-pecuniary loss (“general damages” or “pain
and suffering”)
will not be considered unless this
report is duly completed and submitted”
……
(e)
If
any section
of this form is not applicable,
mark
that section “N/A”.
60.2
Dr Patel drew a line through Annexures A, Band C of the 2018 RAF4,
writing N/A over the Annexures.
The Annexures A, B and C forms were
omitted from the 2021 RAF4 completed by Dr Patel.
61
This Court could draw no conclusion on the seriousness of the
remainder
of the injuries from the RAF4’s. Dr Ziervogel rates
the Plaintiff’s whole body impairment (“WPI”) at
6%.
He concedes in his report the Plaintiff has- and is still
suffering pain. This takes us to the narrative test for the
determination
of general damages.
62
The narrative test involves an enquiry into whether the injuries
sustained
(a)
Resulted in serious long term impairment or loss of bodily
function;
(b)
constitutes permanent serious disfigurement;
(c)
resulted in severe long term mental or severe long term
behavioural
disturbance or disorder; and
(d)
resulted in the loss of a foetus.
(Regulation
3(1)(b)(iii) of the Road Accident Fund Regulations, 2008).
63
Dr Patel’s RAF4’s however does deal with the scarring,
which
might qualify in terms of the narrative test as “
serious
injuries”
for the purposes of Regulation 3, provided such
scarring constitutes “
serious permanent disfigurement”.
Dr Ziervogel and Dr Patel provide photos of the scarring. These
photos are attached to their reports dated 07 June 2017 and 20 March
2018 respectively. The latest (2021) RAF4 completed by Dr Patel
indicates “
scarring
of a severely disfiguring
nature, amenable to a certain improvement with some
management”.
She further indicates that MMI (maximal
medical improvement) has been reached and indicates “
however
the scarring will change with future treatment”.
64
I find myself in the peculiar position that I have been placed in
possession
of an expert report, two RAF4 reports and photos some 3
years old. I am no expert and therefor resolve to the case law for
guidance
on the meaning of “
serious permanent
disfigurement”.
In this regard I have perused the judgement
of Davis, J in
Mashigo v Road Accident Fund (2120/2014) [2018]
ZAGPPHC 539 (13 June 2018.
The magnitude of precedents referred
to in this Judgement was of great assistance in this regard.
65
I am not convinced that the Plaintiff’s scarring in itself
warrants
an award of R 300 000, 00 in general damages. In order to
complete the narrative test we now turn to the evaluation of the
remainder
of the evidence in this matter.
Ad evaluation of the
evidence on the Plaintiffs injuries:
66
At this juncture it would be prudent to start interrogating the
expert witness
evidence reports in order
to test the value derived
therefrom for the purposes of adjudicating on this matter as far as
both the narrative test and the loss
of earning capacity and
consequential possible loss of future earnings
are concerned. It
is noteworthy that the Plaintiff reported contradictory evidence to
the different experts.
67
Fisher, J in
MS v Road Accident
Fund (citation above)
at
20
stated:
“
Loss
of
earning capacity is generally the largest head of damages in
monetary terms and generally runs into millions of Rands. A Court is
called upon in this enquiry to determine how the injury will be
likely to affect the long term functioning of the plaintiff. In
the
field of neurology and psychology, diagnosis and prognosis is often
difficult to establish with any certainty. In cases such
as
this,
opinion evidence should ordinarily be looked at together with
reference to the plaintiff’s evidence and other relevant
fact.
In this background evidence is not
presented, which is
regrettably is common practice in these cases, the matter
can
be difficult of determination.”
68
At 21
Judge Fisher quoted S v
Mthethwa
[2017] ZAWCHC 28
at
98
“
The weight attached
to the testimony of the psychiatric expert witness is inextricably
linked to the reliability of the subject
in question. Where the
subject is discredited the evidence of the expert witness who had
relied on what he was told by the subject
would be of no value.”
(my emphasis)
69
The Plaintiff reported his highest scholastic qualifications to the
experts
as being between grades 7 and 10. He reported a
grade 10
qualification to Ms Toerien (occupational therapist) - the
second
expert
he sees. He consulted the orthopedic surgeon first. His
report is silent on the Plaintiff’s level of education. He
reports
a
grade 9 qualification
to Ms de Ritter (clinical
Psychologist), Ms Tromp (clinical psychologist), the
third
and
fourth
experts
he sees. He
reports a grade 8 qualification to Ms Mathabela (industrial
psychologist), Ms du Plooy from Reintegrate (occupational
therapist)
and Dr Okoli (neurologist), the
fifth and sixth
experts and a
grade 7 qualification to Dr. Mokabane (neurologist), Dr Pretorius
Industrial Psychologists - the
last two experts
he consults.
70
The
Plaintiff
reported different versions
on
his
emotional
well-being
at will. His
cognitive-, emotional- and psychological
abilities
were tested and evaluated against the information he provided
. It
follows that the outcomes of the reports dealing with these abilities
were substantially influenced by the information volunteered
by the
Plaintiff.
In turn the experts relied on each other’s
reports for collateral information in compiling their own reports.
71
The
Plaintiff’ statements
to the experts are
contradictory in itself.
He purports to be suffering from
travel related anxiety,
yet is actively seeking
employment as a
driver.
He informs Ms de Ritter that he
is
immobilised, complains of pain when bending, kneeling,
standing or walking for extended periods of time, dizziness when it
is warm
and yet is seeking employment as a
gardener.
72
He complains of
nightmares
and yet tells Dr Okoli that
he
suffers of no sleeping disorder.
He complains of
various psychological problems
,
such as
being
moody, short tempered and having outburst of anger,
but tells Dr
Okoli, Dr. Mokabane and Ms du Plooy from Reintegrate that he has
no
emotional disturbances.
After having complained of
anxiety
and regular
heada
ches,
he tells Dr Okoli he
does not suffer from anxiety
and Dr Mokabane that he has
no history of headaches
.
73
The Plaintiff purports to have become
socially withdrawn
and
exclaims that his
social life has deteriorated,
yet he tells
Dr Okoli that he
does not have friends.
That is the way
it
has always been. Friends are no good.
74
The Plaintiff complains to Ms de Ritter and Dr Mokabane that he
is
forgetful.
He tells Dr Mokabane that he does not
consider the forgetfulness as being a problem. Yet he tells Dr Okoli
that he has
no memory
problems.
75
Notwithstanding the contradictory
versions
put
forward by the Plaintiff, the overall findings in six of the reports,
inclusive of the joint minutes by the industrial psychologists
that
the Plaintiff will not be able to lead a normal life post-accident.
The
general finding
is also that
his quality
of
life and employability was negatively affected by the
psychological after-effects
of
the accident.
All these experts advised that the Plaintiff would benefit from
psychological intervention as
he is suffering from post-traumatic-
stress and depressive mood disorder.
76
Both Neurosurgeons
, Drs Okoli and Dr. Mokabane found no proof
of neuro-psychological disorders or brain injuries and find that the
Plaintiff’s
functioning is within the normal scope. Dr Okoli
goes as far as saying that there is
nothing keeping the Plaintiff
from
resuming employment in
the
open labour
market.
Dr Mathabane was silent on
the matter.
77
The above represents but a few of Plaintiff’s contradictory
statements
found in the expert reports.
The immediate question
arises as to how reliable the results of such clinical testing and
the subsequent evaluations can be when the experts rely on adaptation
by the Plaintiff, who is hardly “a
reliable subject”
and the experts rely on each other’s reports as collateral
information to comply their own reports. I am of the opinion that
the
only independent and noteworthy reports are those of the
orthopaedic surgeon and the two neurologists.
Ms Toerien also did
not have access to any of the other expert reports to refer to as
collateral information.
78
It was held
by Fisher, J 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)
at 38
“
Of particular
pre-eminence in the expert coterie is the industrial psychologist.
The task of the industrial psychologist is to work
closely with the
other experts in order to set up probable scenarios as to how the
injuries as identified and reported on by the
other experts are
likely to affect the plaintiff in the workplace. By far the largest
claims are those for loss of earning capacity.
It
is in
this realm of suppositions, projections and contingencies that there
should be assessment of the court of how the individual
plaintiff
should be compensated
for his or her loss, accepting
the opinions of the experts who are qualified in the particular field
such as orthopaedic surgeons
and neurologists. These experts are of
importance in the enquiry as by far the most common injuries are
broken bones and brain
injuries
...”
Was the accident the
cause of the Plaintiff’s loss of his employment?
79
Here also the Plaintiff had
different versions
which he
expressed to the experts at will. In respect of his
employment
post-accident
the Plaintiff initially held to Ms Toerien and Ms
de Ritter (occupational therapist and clinical psychologist)
he
was employed in the same capacity immediately
on
his
return
to
work until his contract
terminated
in
April
2017.
He told one neurologist, Dr. Okoli he
was
retrenched
in April 2017.
80
Then he says to the other neurologist, Dr Mokobane and the clinical
psychologist
Ms Tromp he
was
initially placed on light
duty for two months and thereafter
returned
to his
original
position as a general
worker
until his
contract
terminated in April 2017.
Then there is yet another version
which surfaces in
May
2018
and is
“substantiated” by one Happy - first portrayed as a
former
colleague
and then as a
former
supervisor
of the Plaintiff.
81
Happy tells the industrial psychologists that
the Plaintiff
never
returned
to
his
original
position
but was placed
on
light duty, with the same salary, until his contract was
terminated
in
April
2017. Happy takes the story even further therein that but for the
Plaintiff’s, all the other workers' contracts were
renewed.
Happy says the employer
would not renew
the Plaintiff’s contract as he was
no
longer
physically fit for the purposes of the position
he
was employed at pre-accident.
82
Happy goes on to say
was it not for the accident the
Plaintiff could have been promoted to supervisor of driver, earning
between R15 000,00
and R19 000,00 per
month.
83
At this point it is prudent to annunciate Happy’s version was
never
volunteered by the Plaintiff until Happy entered the scene in
May 2018,
this after Ms de Ritter was unable to contact the
Plaintiff's supervisor in February 2018, as the Plaintiff could
neither recall
his supervisor’s surname nor his contact
details.
84
The question arises which version is the to be accepted and whether
the
Plaintiff’s employment was jeopardised following the
accident?
Happy’s
version cannot be accepted.
In amplification of the above it is
held that on the same date as the Plaintiff told the one industrial
psychologist Happy’s
version, he told the clinical psychologist
that he returned to his post as general worker after the accident. He
held the same
to the one neurologist, Dr Mokobane, in December 2018,
albeit
after a period of lighter duties. I am not convinced
that there is any evidence, other than the corroboration by Happy,
that the
Plaintiff lost his employment due to physical constraints.
85
The Plaintiff placed the Court in possession of four salary advises
dated
27/05/2013, 24/04/2015, 26/06/2015 and 26/06/2016. The salary
advices show two dates of employment, namely
16/07/2012
and
07/04/2015.
The salaries reflected on
these payslips are the following:
27/05/2013
R
7 314,97
24/04/2015
R 100,
30
26/06/2015
R 7 135, 52
26/06/2016
R
10 587,86
The earnings above are
indicated before deductions and include some overtime and allowances.
All the payslips indicate that the
Plaintiff was employed as a
general worker at the track coal line.
86
The
salary advices dated 2015
fall within the period of the
accident. It is clear the Plaintiff
went back to work
in June
2015,
3 months after the accident.
Dr Pretorius Industrial
Psychologist filed an addendum to their report, indicating they were
placed in possession of a payslip
dated June 2015, in the amount of
R3 306, 26. It is not clear whether the Plaintiff was renumerated for
March, April and May 2015.
The Plaintiff was re-employed by Transnet
on 07 April 2015, following the accident. No salary advise was
supplied for the period
of April 2017. However, the payslip dated a
year after the accident indicated that the Plaintiff earned R 3 452,
34 MORE per month
than he did pre-accident.
87
In the circumstances and having considered the evidence on this
aspect
as a whole, a scenario where the Plaintiff after the accident
returned to his former employer in a lesser capacity on the same
salary, and the employer then, as a result of his diminished physical
ability deciding not to renew his contract after him having
been so
employed for a period of two years post-accident is simply not
plausible. Plaintiff earned almost R 3500,00 more per month
a year
post-accident which in itself speaks to the improbability of such a
scenario. I am not convinced that there is any evidence,
other than
the corroboration by Happy, that the Plaintiff lost his employment
due to physical constraints.
This version of
events
only surfaced in May 2018 and was only held to three of the eight
experts whose reports reflect on this matter.
88
Neither Happy’s- nor the Plaintiff’s version that he
could
have been promoted to a driver or supervisor holds water. The
Plaintiff was at the date of the accident only 3 years in the service
of his employer and not even in possession of a valid driver’s
licence. He obtained a code 10 driver’s licence in 2017
only-
two years post accident.
89
For the reasons as set out herein, this Court cannot align
itself
with the industrial psychologists’ joint minutes which I was
referred to by the Plaintiffs legal representative during
his
address, insofar as it singles out the accident as having been the
sole cause of the Plaintiffs loss of employment.
90
It was held in
Bee v Road Accident Fund (093/2017)
[2018] ZASCA
52
;
2018 (4) SA 366
(SCA) (29 March 2018)
at 30 that joint
minutes must be treated as expert opinion.
“
The principles
applicable to expert evidence
or reports
are
also applicable
to
a
joint report. The joint
report before the Court in consequently part of the evidential
material which the court must consider to
arrive at
a
just
decision. The
court, in such instance, shall be
entitled to test the reliability of the joint report, and if the
court finds the joint opinion
to be unreliable, the court will be
entitled to reject the joint opinion
. The court is entitled
to reiect the joint report or agreed opinion if the court is of the
view that the
joint report or opinion is
based on incorrect facts. incorrect assumptions
or is
unconvincing.”
(my emphasis)
Ad the Plaintiff’s
future earning capacity and loss of future income:
91
It is common cause that the Plaintiff complains of physical pain in
his
left lower leg, his left knee, left shoulder and when sleeping on
his left side to almost all the experts. It is not in dispute
that
the Plaintiff suffered physical injuries, the most serious thereof
being the fractures to the tibia, fibula and humerus. Dr
Ziervogel
reports that
once the instrumentation has been removed
the
pain should disappear and the Plaintiff should be able resume similar
kind of employment as he had before the accident.
Ms L Toerien,
the occupational therapist, Dr Pretorius' Mr Jooste and Dr Okoli, the
neurologist concurs.
92
Ms Tromp, the clinical psychologist remarks that Plaintiff’s
depression
is due to diminished physical capabilities, pain and lack
of employment. This opinion is supported by a couple of the experts.
Once the instrumentation has been removed, the Plaintiff will be able
to able to return to a pre-accident scenario. Should Plaintiff
need
psychological services going forward, an undertaking by the Defendant
to pay Plaintiff’s psychological expenses should
suffice.
93
In
Dippenaar v Shield Insurance Co Ltd
1979
(2) SA 904
(A)
it was held that:
“
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 had 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. This was the approach in
Union
Government (Minister of Railways and Harbours) v Warneke
1911 AD 657
at 665
where the following appears:
“
In
later Roman law property came to mean the universitas of the
plaintiff’s rights
and duties, and the object of the
action was to recover the difference between the universitas as it
was after the act of damage
and as it would have been if the
act had not been committed (Greuber at 269). Any element of
attachment or affection for the thing damaged was rigorously
excluded.
And this principle was fully recognised by the law of
Holland.”
Conclusion:
94
Merits was settled 80% in favour of the Plaintiff who was an
intoxicated
pedestrian and should not have been on the road, not even
speaking of crossing the road. Pedestrians should publicly and openly
be seen to be discouraged from travelling whilst intoxicated. It was
reported by the South African Automobile Association on 7
December
2020 that 33% of road fatalities are pedestrians. Drunken pedestrians
should not be seen to be rewarded for their irresponsibility.
95
Settlement on General damages are not merely for the taking and the
court
is not a rubber stamp. Although I cannot reconcile myself with
the amount of R 300 000, 00 in general damages being awarded for
the
Plaintiff’s scarring which will improve in time, I am however
conscious of the fact that justice must be served to both
Parties.
96
The Plaintiff has been suffering pain and discomfort since the
accident, which pain and discomfort is still persistent as a result
of the instrumentation not having been removed as yet. It is
noted
that the constant pain might affect his quality of life, his
emotional- and psychological wellbeing. It is accepted that
the
Plaintiff suffered post-traumatic stress disorder after the accident.
97
The Court is not convinced of the motor vehicle accident having been
the
cause of the Plaintiff’s loss of employment. The Court is
however mindful of the motor vehicle accident and the delay in the
adjudication of this matter having negatively impacted on the
Plaintiff’s physical and emotional wellbeing to such an extent
that he might have found himself not as competitive as his
counterparts in the open labour market. This matter came before Court
six years post-accident. Any allocation off past loss income will be
calculated at R7500,00 per month which is higher than the
national
minimum wage and the salary of unskilled labour, but lower than the
Plaintiff’s Transnet salary in 2016.
98
Once the instrumentation has been removed, it is expected that
the
Plaintiff would most possibly be able to resume something similar to
pre-accident employment. Taken from the experts, his emotional
state
would improve. I therefore conclude that Plaintiff’s future
earning capacity has not been impaired. An undertaking
from the
Defendant to assume responsibility for payment of all future medical
expenses (inclusive of psychological expenses) would
suffice.
99
The Court also recognises that the Plaintiff would need some
financial
assistance in this time of convalescence. Four weeks was
foreseen for each of the operations removing the internal fixtures.
Having
perused and considered the evidence before Court, the Court is
convinced once the Plaintiff's health needs have been so attended,
the effects of the motor vehicle accident will no longer diminish the
prospects of his being successfully employed.
100
No past medical expenses were included in the Plaintiff’s trial
bundle or discovery.
101
The Plaintiff needs to be compensated for the 3 months he spent off
work, convalescing after
the motor vehicle accident which he was not
remunerated for.
Order:
1
80/20% apportionment
of merits in favour of the Plaintiff;
2
General damages
are awarded in the amount of R 300 000, 00;
3
The Defendant is ordered
to pay the Plaintiff an amount of R 22 500,
00 in past loss income for the months of March, April and May 2015 he
spent convalescing
after the motor vehicle accident;
4
The Defendant
is ordered to pay the Plaintiff loss of pass income in
the amount of R 360 000, 00 for the years of May 2017 to date of
Order;
5
The Plaintiff
is awarded loss of future income in an amount of R45
000,00 for the period he will spend off work convalescing after
having the
internal fixtures removed;
6
The Defendant
is ordered to furnish the Plaintiff with an undertaking
in terms of
Section 17(4)(a)
of the
Road Accident Fund, Act 56 of
1996
, which shall include the reasonable costs associated with
treatment of the Plaintiff’s psychological health;
7
The Defendant
is ordered to pay the Plaintiff’s taxed party and
party costs inclusive of the costs of advocate / Mr Lardo Eloff for
preparation
and appearance, and the expert witnesses' reports but
exclusive of the costs of their reservation for trial.
D PICK
ACTING JUDGE OF THE HIGH
COURT
PRETORIA
Heard
on:
08 March 2021
Judgement
on:
31 May 2021
FOR THE PLAINTIFF:
Lardo Eloff- 082 588 3386
lardoeloff@gmail.com
FOR
THE DEFENDANT: Marcia Muriel Botha
MarciaM@raf.co.za
(012)
429 8365