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2021
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[2021] ZANCHC 37
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Marwaneng v Road Accident Fund (1145/2013) [2021] ZANCHC 37 (13 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1145/2013
Date heard: 08-10-2020
Date delivered:
13-08-2021
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
Zephania
Wekie
Marwaneng
Plaintiff
and
The Road Accident
Fund
Defendant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
The plaintiff, Mr Zephania Wekie Marwaneng
was injured in a motor vehicle accident on 1 September 2004. He has
instituted a claim
for damages against the defendant, the Road
Accident Fund (RAF) in the amount of R 1807 282. 45. The merits
of the claim were
settled 100% in favour of the plaintiff on 16
October 2016 and in terms of a court order made on that day it was
ordered that a
preferential trial date be allocated in the second
quarter of 2017 for quantum to be adjudicated. Due to all manner of
delays occasioned
by the RAF the matter was only enrolled for hearing
on 6 October 2020.
2.
The RAF was not present at the quantum
trial, having terminated the mandate of their attorneys some months
prior to the trial date.
However with the assistance of Mr A
Rakgwala, the RAF’s judgment monitor, who acted as go-between,
the parties managed to
engage in settlement negotiations over the
first two days set down for trial. In the event, Ms Erasmus, who
appeared for the plaintiff
informed on 8 October when the trial
commenced, that the parties had reached agreement as to general
damages in the amount of R450,
000, 00. The only outstanding issue to
be determined and upon which the parties could not reach agreement,
is that of loss of income.
3.
The plaintiff was the only witness to give
vica voce
evidence.
The affidavits of the plaintiff’s experts, Ms Brink, industrial
psychologist, Ms J Raats, occupational therapist
and the plaintiff’s
actuary Ms M Barnard were accepted as evidence in the trial.
The
plaintiff’s evidence
4.
The plaintiff, who was born on 17 October
1973 (47 years old at date of trial) was a police constable when the
accident occurred.
He had joined the South African Police Service
just a year before, on 20 September 2003.
5.
After the accident he was hospitalised for
about 3 months and was off from work for about 6 months. When he
returned to work he
was placed on light duty since he was still on
crutches.
6.
He is currently a vetting investigator,
which he explained involves the checking of case dockets to determine
whether further investigation
is merited. In effect he does the
office or administrative work of an investigation.
7.
The plaintiff testified that he cannot do
normal police work as a result of the injuries sustained in the
accident. He had suffered
fractures to both legs. His left leg has
been left slightly shorter than his right leg. He has a slight limp.
He cannot walk or
drive for long distances without having to stop to
make himself comfortable. He feels pain in his legs when it is cold
or overcast.
He cannot do the physical tests consisting of exercises
required by his employer every three months. Instead he has to
produce
a medical certificate which excuses him from such exercises.
8.
The plaintiff testified that he has only
been able to be promoted to the rank of sergeant (in an
administrative position) during
December 2012 after applying for the
position numerous times. His evidence was that he would have been
promoted much earlier had
it not been for the accident. According to
the plaintiff the SAPS agreement with the relevant trade unions is
that police officials
should qualify for promotion after two years of
holding a specific rank. The plaintiff conceded that such promotion
is not automatic
and that the agreement only relates to qualification
for promotion.
9.
The plaintiff also testified that most of his colleagues with whom he
had started
training in the SAPS were now warrant officers and that
he thought that he could also be at that rank now had it not been for
the
accident.
10.
He explained that since he could no longer
do physical work or field work he can only apply for administrative
posts whereas the
able-bodied police officials were allowed to apply
for both the administrative positions and the active positions. Since
there
are fewer administrative positions in the SAPS than active
positions his prospects for promotion have been curtailed, hence him
still being a sergeant after 7 years.
The
experts
11.
Ms Brink, the plaintiff’s industrial
psychologist evaluated the plaintiff during March 2014. She had sight
of the medical
reports presented to her by the plaintiff’s
attorney which included a report by Dr L J Marais, orthopaedic
surgeon. His report
detailed the plaintiff’s injuries as a
segmental comminuted fracture of the shaft of the left femur and a
sub-trochanteric
fracture of the right femur. There is a shortening
of the plaintiff’s left leg of between 1.5 to 2 centimetres. Ms
Brink
has also noted that the orthopaedic surgeon indicated that the
plaintiff has sustained a degree of permanent damage. His whole
person impairment is 11% and he suffers from about 11% permanent
partial work disability which will not increase by more than a
few
percentile points during his occupational lifespan. I pause to
mention that although Dr L J Marias’ report is not evidence
before court, the plaintiff’s experts as well as the
defendants’ industrial psychologist, Ms M Kheswa, who had
compiled
a joint minute with plaintiff’s Ms Brink, have
referred to his report.
12.
Ms Brink was of the opinion that, but for
the accident, the plaintiff would have continued his employment in
the SAPS until the
normal retirement age of 60 years and that there
was no reason why he would not have been able to progress as per the
promotional
policy of the SAPS. With satisfactory service, the
plaintiff would have been able to progress at one notch, which equals
4% of
his basic salary, every 3 years.
13.
From a post-morbid career and earnings
perspective Ms Brink consulted with the plaintiff’s station
commander Captain Ndanda,
who reported that the plaintiff was coping
in his job albeit with occasional pain during inclement weather.
Captain Ndanda indicated
that the plaintiff will still be promotable
to a warrant officer position in future.
14.
Ms Brink is of the opinion, given the
overall body of expert opinion that the plaintiff’s work
capacity has been compromised,
that the plaintiff is at risk, despite
Captain Ndanda’s feedback, of not consistently receiving the
notch increases for satisfactory
work performance and that he may
therefore not progress to his likely pre-morbid career ceiling
earnings. The exact financial impact
of this risk cannot in her
opinion be predicted reliably and she therefore recommends that it be
dealt with by means of a higher
than normal contingency percentage.
15.
Ms Brink, as mentioned, has
compiled a joint minute with the defendant’s industrial
psychologist, Ms Kheswa on 20 March 2017.
Ms Kheswa was of the
opinion that there was no reason why the plaintiff could not progress
to the levels indicated pre-accident
and also saw no reason for any
delay in achieving it. In Ms Kheswa’s report dated 7 March
2017, a mere two weeks prior to
the joint minute, she however states
with reference to plaintiff’s experts’ reports (Dr Marais
and Ms Raats), that
“
the writer
concludes that the accident under discussion has not rendered Mr
Marwaneng unemployable. It would seem as if the accident
only reduced
his functional abilities in terms of efficiency, effectiveness and
productivity as compared to his uninjured counterparts,
but did not
stop him from working to date. He seems to be well accommodated by
his current employer.
Perhaps the
fairest way of compensating him for the injuries sustained in this
accident in question is by means of an appropriate
contingency to be
agreed upon by both legal teams involved.”
(Own
highlighting)
16.
In an addendum to her original report,
dated 23 November 2018, Ms Brink updated the available salary scales
for members of the SAPS.
She confirmed her initial view of the slower
career and earnings progression of the plaintiff, which is supported
by the fact that
he has remained in the post of sergeant since she
had evaluated him. This slow progression she states would clearly
also have a
definite impact on the pension the plaintiff would
receive once he retires.
17.
Ms Raats, the plaintiff’s
occupational therapist who evaluated the plaintiff during January
2014 was of the view with regard
to the plaintiffs work duties that;
“
The
therapist is of the opinion that Mr Marwaneng is coping well in his
current work position. He is well able to manage and participate
in
his work and he is also reporting that he has no complaints and he
manages well. He will be able to work in administrative type,
sedentary type and light work. He will need to often change his
position if he works in sedentary work so that he will not be
bothered with pain in his legs. Mr Marwaneng will not be able to work
in heavy weight jobs. He will not be able to work in medium
weight
jobs for a long period. He will be able to work in medium weight
activities for short periods at a time, but he should rather
avoid
working medium weight jobs and stick to light weight, administrative
duties.”
18.
Ms M Barnard, the plaintiff’s
actuary, from the firm Quantum Actuarial Services CC, has completed
an initial actuarial report
based on the reports of Ms Brink and
instructions received from plaintiff’s legal representatives,
as at 1 April 2019. She
updated the report based on the same
information on 6 October 2020.
General
Damages
19.
Ms Erasmus has referred me, with regard
to general damages, to comparable cases in order for me to make an
informed decision on
the appropriateness of the amount of R450, 000,
00, which the parties had reached an agreement on. These cases
include
Smit v Padongelukkefonds QOD, vd
V
at E3 -11;
Mgudlwa
V Road Accident Fund QOD; Vol VI at E 3-1; Abrahams v RAF 2014 (J2-1)
QOD 7 (ECP); Roe v RAF 2010 JDR 0445 (GSJ) and Khumalo
v The Road
Accident Fund 2006 JDR 0289 (W).
The
general damages awards in these matters range from R482 000, 00
to R1 million in current value.
20.
I do not intend to deal with each of the
cases referred to individually. In general they are distinguishable
from the present case
in that the injuries and sequelae appear to
range between somewhat more serious to much more serious than that
in
casu
. However it does serve as a
helpful guideline.
21.
In considering whether a fair settlement
has been reached I take into account that the plaintiff spent at
least 2 months in hospital
after the accident (from the experts
reports), where an open reduction and internal fixation of both
fractures were performed using
an intra-medullary nail with locking
screws on the right and a sliding hip screw on the left side.
He
suffered substantial pain and discomfort. He had to learn to walk
again, first with a walking frame and then on crutches. His
left leg
has been left shorter than the right. He currently walks unaided, but
with a slight limp. He still endures pain on occasion
and has
sustained a certain degree of permanent impairment to his body and
activities.
22.
In the circumstances I am satisfied that
the agreed amount of
R450 000, 00
for general damages is appropriate compensation for the plaintiff and
is an amount which is fair to both parties.
Loss
of income
23.
The plaintiff’s actuary Ms Barnard,
has been instructed to calculate the plaintiff’s loss of
earnings based on a contingency
of 5% in respect of past loss of
earnings and 35% in respect of future loss of earnings. Ms Erasmus
submitted that though the contingency
for future loss of earnings is
much higher than the normal deduction of 15%, it addresses the
aspects raised by the industrial
psychologists in their individual
reports i.e. the predicted slower career progression (which has now
been confirmed) and its general
impact on his future earnings. I can
find no fault with the suggested contingencies.
24.
Ms Barnard has based her calculations on
the projected pre-morbid and post-morbid career paths and potential
earnings of the plaintiff
as provided by Ms Brink, taking into
account the contingencies and has determined a past loss of income in
the amount of R283 341,
00, and a future loss of income of
R1 334 599. 00. The total loss of income thus amounting to
R1617 940, 00
.
Costs
25.
The only remaining aspect is that of the
costs of the action. Ms Erasmus indicated that she had intended to
seek costs on the attorney
client scale but that based on the fact
that the defendant had eventually engaged in settlement negotiations,
the plaintiff would
suffice with party and party costs. In a draft
order which she has attached to her heads of argument Ms Erasmus
however seeks the
cost of obtaining all expert reports furnished to
the defendant and the costs of obtaining documents etc. for
consideration by
the experts. Such costs would essentially boil down
to attorney client costs and will therefore not be allowed. Similarly
the costs
sought for the attendance at court and consultations of an
interpreter, which have not been shown to have been necessary, cannot
be allowed.
In
the event the following orders are made:
1)
The defendant shall pay to plaintiff the sum of R2 067 940
(two million
sixty seven thousand nine hundred and forty Rand);
2)
The above amount shall be paid into the plaintiff’s attorney’s
trust
account, the details thereof to be supplied to the defendant in
writing;
3)
In the event of default on the above payment, interest shall accrue
on such outstanding
amount at the current prescribed statutory rate,
calculated from the due date in accordance with the
Road Accident
Fund Act 56 of 1996
until the date of payment;
4)
Defendant shall pay the plaintiff’s taxed or agreed costs of
the instructing
and correspondent attorneys into the above mentioned
account, which costs shall include, but not be limited to the
following:
4.1
The fees of senior junior counsel for preparation and the day fees of
6, 7 and 8 October 2020;
4.2
The reasonable qualifying, preparation and reservation fees of the
experts, Dr L J Marais, Ms J Raats, Ms
M Barnard and Ms N Brink,
including the costs of consultation fees with the legal teams, if
any;
4.3
The reasonable travelling and accommodation costs, if any, incurred
in transporting the plaintiff to all medico-legal
appointments;
4.4
The above-mentioned payment with regard to costs shall be subject to
the following conditions:
4.4.1
The plaintiff shall, in the event that costs are not agreed, serve a
notice of taxation on the defendant’s
attorney of record; and
4.4.2
The plaintiff shall allow the defendant 14 (fourteen) calendar days
to make payment of the taxed costs;
4.4.3
In the event of default on the above payment, interest shall accrue
on such outstanding amount at the prescribed
statutory rate
calculated from due date until the date of payment.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv. S Erasmus
Potgieter
Inc.
c/o
Haarhoffs Inc.
For
Defendant: No appearance