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[2021] ZANCHC 41
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Van Vuuren v Road Accident Fund (1681/2014) [2021] ZANCHC 41 (17 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1681/2014
Heard
on: 08/06/2021
Delivered
on: 17/09/2021
In
the matter between:
REINIER
STEPHANES JANSEN VAN VUUREN
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
MAMOSEBO
J
[1]
This is an action for damages in respect of bodily injuries suffered
by the plaintiff
in a motor vehicle collision on 8 July 2010. The
parties agreed to a separation of the merits of the case from the
quantum. Matlapeng
AJ granted the order on 29 August 2016 in terms of
Rule 33(4) of the Uniform Rules of Court. The defendant, the Road
Accident Fund
(RAF), would also be liable for 100% of all proven
damages. The trial proceeded on the claims for past medical expenses,
estimated
future medical expenses, loss of earnings/earning capacity
and general damages.
[2]
At the commencement of the trial on 8 June 2021, there was no
appearance for the RAF
despite the matter having been set down for
trial with its full knowledge. The matter stood down until 12:00
midday in order to
hear from the RAF. Upon resumption, I ordered that
the proceedings continue in terms of Rule 39(1) of the Uniform Rules
of Court,
which stipulates:
“
(1) If, when a
trial is called, the plaintiff appears and the defendant does not
appear, the plaintiff may prove his claim so far
as the burden of
proof lies upon him and judgment shall be given accordingly, in so
far as he has discharged such burden. Provided
that where the claim
is for a debt or liquidated demand no evidence shall be necessary
unless the court otherwise orders.”
[3]
The plaintiff himself, Mr Renier Stephanes Jansen Van Vuuren and Mr
Niël du Plessis,
a Chartered Accountant testified. The latter
presented evidence on the plaintiff’s pre-accident income
potential. The following
affidavits and reports were presented: Mr du
Plessis’ report exhibit “B”; that of Ms Susan Van
Jaarsveld, an
Industrial Psychologist, exhibit “C”; the
actuarial report by Munro Forensic Actuaries, exhibit “D”;
Dr
Louis Oelofse, Orthopaedic Surgeon, exhibit “E”; Dr
Katinka Botha, Psychiatrist, exhibit “F”; Juan Raats,
the
Occupational Therapist, exhibit “G”, the Schedule of MVA
Medical Expenses exhibit “A”, supported by
an affidavit
of Ms Illizima Muller, exhibit “H”. The remaining issues
fell to be decided on the pleadings, the aforementioned
medico-legal
reports and the joint minutes in which the agreed findings and
opinions of the experts are recorded. See
Havenga
[1]
.
[4]
The following background is relevant. The plaintiff is a
self-employed 48-year old
building contractor mainly focusing on
plumbing, electrical and carpentry work as well as home renovations.
He testified that as
a result of the collision he sustained serious
bodily injuries: a fracture of the right femur, an open fracture of
the right tibia,
a right foot fracture, a hip injury and left hand
(wrist) fracture. He was hospitalised for 49 days of which the first
7 days were
spent in the Intensive Care Unit (ICU).
[5]
The plaintiff received the following treatment: underwent five
medical operations
(surgery), a pin was inserted in his femur, which
was later removed and replaced with a bottlebrush and a new pin in
the hip. He
mobilised on a wheelchair for his first few weeks and
later on crutches for a period of 18 months. Kirschner-wires commonly
known
as K wires were inserted in his right foot. He suffers from
constant pain on his lower back, neck, hips, knee and ankle. He
experiences
headaches daily as well as spasms in his neck. He depends
on sleeping tablets prescribed by Dr Elna Barnard who is treating him
for depression. In the morning, he struggles with body stiffness and
takes Tramazac 200 SR pain tablets every morning and evening
which he
was subjected to for the past eight years.
[6]
Before the collision, he was an active sportsman involved in
marathons, cycling, tenpin
bowling, squash and competed in five or
six iron man competitions. Post the accident he has not been able to
resume any of these
sporting activities or to assume his hands-on
role at the construction sites.
[7]
The plaintiff lost a lucrative contract at the Mooihawe Old Age Home
where he had
performed maintenance work since 2001 as he could not
deliver quality work. His employees had repaired the roof at Mooihawe
but
he was unable to check the quality of their work which was
sub-standard and led to the cancellation of the contract. Although he
tried to do some work after being off crutches, he was unable to
crouch or squat due to intolerable pain and stiffness to his right
hip and knee.
[8]
He now walks with an antalgic gait. The foot with K wires is
completely flat on the
ground and without a bridge. Long distance
travelling causes his legs to become numb and leads to a sore back.
The business is
not as profitable as it was before the accident. It
needs a multi-skilled supervisor familiar with the different aspects
of construction
but such employees are rare to find and unaffordable.
[9]
The amount of the damages claimed as recorded in the amended
particulars of claim
is R6 536 638.56 which is made up as
follows:
(a)
Past medical and hospital expenses
R
270 247.23
(b)
Estimated future medical expenses
R 954 691.33
(c)
Loss of earnings/earning capacity
R4 111 700.00
(d)
General damages
R1 200 000.00
R 6 536 638.56
[10]
A realistic starting point is the joint minute of the parties’
orthopaedic surgeons, Dr
L.F. Oelofse for the plaintiff and Dr F.J.D
Steyn for the RAF dated 8 May 2017 and marked exhibit “C”.
Dr Oelofse saw
the plaintiff on 2 February 2016 and Dr Steyn on 17
October 2016. Dr Oelofse qualified his report that since there were
no hospital
records available for perusal, his report is based on the
verbal account of the patient, letters from his orthopaedic surgeon
and
the medico-legal report from Dr JF Ziervogel dated 28 September
2012.
[11]
Both the orthopaedic surgeons agree that the plaintiff sustained the
following injuries: (i)
right hip injury, (ii) right femur injury,
(iii) right lower leg injury and (iv) right foot injury. Dr Oelofse
also mentioned these
additional injuries: (v) cervical spine injury,
(vi) lumbar spine injury, and (vii) psychological trauma. Dr Steyn
also mentions
(viii) fracture of the 2
nd
left metacarpal.
[12]
The initial treatment received by the plaintiff as it appears in the
joint minute and the doctors’
reports is to this effect. The
plaintiff was transported to the Colesburg Hospital by ambulance and
then transferred to the Bloemfontein
Mediclinic where he underwent an
open reduction and internal fixation of the right femur and right
open tibia fractures by intra-medullary
nails. The fracture of the
right 5th metatarsal head (right foot) was reduced by the insertion
of the K-wires. Both doctors agree
that the plaintiff suffered acute
pain, including post-surgical pain, for approximately two weeks. Dr.
Oelofse opined that the
plaintiff still suffers from chronic pain in
multiple joints. Regarding the lumber spine injury, Dr Oelofse
diagnosed an injury
of pre-existing spondylosis for which he
apportioned 50% thereof as accident related.
[13]
In respect of the right hip and femur injury, the intra-medullary
nail was inserted and later
removed and replaced with a new one which
included a hip screw. Both doctors agree that right femur fracture is
united. Dr Oelofse
also diagnosed post-traumatic osteoarthritis of
the right hip joint and urges that provision must be made for Total
Hip Replacement
(revision every 12 – 15 years).
[14]
Regarding the right lower leg injury, both doctors agree on the
diagnosis and the treatment as
follows: United right tibia/fibula
fractures with post-traumatic osteoarthritis of the knee joint, which
will require medication/physiotherapy/biokinetics.
They recommended
provision be made for a Total Knee Replacement with revision
replacement every 12 – 15 years.
[15]
Both doctors agree on the diagnoses of the right ankle and foot
injury as follows: Right ankle
joint injury with resultant
post-traumatic osteoarthritis and united foot fractures with
talo-navicular osteoarthritis. Both doctors
agree that provision be
made for an ankle replacement procedure. Dr Oelofse is of the opinion
that provision be made for a midfoot
arthrodesis. While Dr Oelofse
has further diagnosed Post-traumatic Stress Disorder (PTSD), he
defers with the opinion of a Clinical
Psychologist/Psychiatrist for
future treatment and costs.
[16]
Both doctors agree that the plaintiff’s loss of amenities of
life have been affected by
the injuries sustained in the accident.
The opinion by Dr Oelofse is that, but for the accident, the
plaintiff would have been
able to work until the normal retirement
age of 65 years. In his view the injuries have disadvantaged him in
the open labour market
and he will never be able to do manual labour
again. However, both doctors agree that he will need to be
accommodated in a light
duty or sedentary position as determined by
the Occupational Therapist. They have also agreed to defer to the
opinion of the Occupational
Therapist and Industrial Psychologist
regarding retirement.
[17]
In as far as the Whole Person Impairment (WPI) and Narrative Test are
concerned, both doctors
agree that the injuries sustained by the
plaintiff did not result in a WPI of more than 30%. They further
agree that he qualifies
for the Narrative Test under section:
5.1
Serious long-term impairment or loss of a body function.
The
injuries sustained, however, will not have any detrimental effect on
the plaintiff’s life-expectancy as agreed by both
doctors.
[18]
At the end of Dr Oelofse’s report, there is a validity clause
which states:
“
This report
will remain valid to be used in a court of law for a period of two
years from the date of first consultation. If this
matter has not
been settled within two years from date of the first consultation, an
updated Medico-Legal Report will have to be
prepared.”
The
plaintiff was examined by Dr Oelofse on 2 February 2016. Two years
from that date would have been 2 February 2018. We know that
the
trial only commenced on 8 June 2021, five years later. It remains
unknown what Dr Oelofse would have revised in the report
because
there is no supplementary report filed.
[19]
I have taken note of the report by Dr J.F Ziervogel, the orthopaedic
surgeon who examined the
plaintiff on 28 September 2012 that is
beforeDoctors Oelofse and Steyn. It is not only necessary but also
significant to highlight
some aspects noted by Dr Steyn, based on the
findings in Dr Ziervogel’s report which reads.
“
The patient
stated that he sustained an injury of his left shoulder joint.
However, he reported to Dr. Ziervogel, who examined him
in 2012 that
the pain commenced 1 year after the accident.
Onset of pain
that long after the accident cannot be causally related to the
accident.
The patient reported
to Dr Ziervogel that he sustained injuries on his neck, thoracic
spine, and lumber spine.
When examined by myself he made no
reference to spinal injury.
The patient states
that he sustained an injury of his left wrist. However, he made no
mention of having sustained an injury of his
left wrist when
evaluated by Dr Ziervogel.”
I
shall now deal with the issues each under a separate heading.
Past
medical and hospital expenses
[20]
The plaintiff claims R270 243.23 under this head, which was
supported by a schedule marked
exhibit “A” handed in
during his testimony. The breakdown of this amount comprises hospital
expenses in the amount
of R182 768.59 and other medical expenses
in the amount of R87 478-64. In her affidavit marked exhibit
“H”,
Ms Illizma Muller, Chief Operational Officer of
Batsumi Claims Management Solutions (Pty) Ltd confirmed the schedule
as the plaintiff’s
past medical expenses paid by Liberty
Medical Scheme. The Court is asked to award the full amount of
R270 243.23. In the absence
of any opposition by the RAF the
claim stands to succeed.
Future
Loss of earnings/earning capacity
[21]
Mr du Plessis, a qualified Chartered Accountant (SA) holding a BComm
and a BComm Hons degrees
as well as a Certificate in Theory of
Accounting with 24 years’ experience in practice, of which 16
years were after qualifying
as a CA in March 2002, compiled a report
dated 22 August 2019 marked exhibit “B” and gave oral
evidence. He has conducted
several forensic investigations over the
years with a diverse clientele ranging from the public and private
sector. The plaintiff
is one of his clients.
[22]
In conducting the investigation pertaining to the plaintiff he
assessed the performance of the
business pre- and post-morbid, that
is, before and after the accident to determine change in the loss of
earnings after the accident
and to assess the profitability of the
plaintiff’s business. Du Plessis used the financial statements
for the years 28 February
2007 to 28 February 2010 to determine the
financial situation before the accident. Revenue of the plaintiff’s
business is
driven by three main factors (i) sales amount, (ii)
material costs as a percentage of sales and (iii) wages as a
percentage of
sales. His findings reflected growth in sales in excess
of the average CPI inflation. He has graphically demonstrated the net
income
of the business growth preceding the year 2010. In his
compilation of financial information after the accident, from
financial
year ending 2011 to 2018, he could not split financial year
for Feb 2010 to 2011 and regarded it as part of the accident. From
Feb 2011 the period was included as post-accident.
[23]
Du Plessis’ findings for the period post-accident was that the
sales growth dropped by
27.11% from 29% to 2% for the next eight
financial years after the accident. Average Net income as a
percentage of Sales dropped
by 10.64% from 16.36% to 5.72% for the
eight financial years after the accident; Material cost average
increased by 8.22% from
32% to 40% and average wage cost as a
percentage of sales increased by 9.46% from 27.29% to 36.75%. Average
wage cost as a percentage
of Gross Profit increased by 21.90% from
40.31% to 62.21% for the eight financial years after the accident.
[24]
Du Plessis awarded the difference in performance of the business to
the plaintiff’s absence
and later lesser involvement in the
business. What is gathered is that post the accident the business was
less profitable. There
was no sales growth but material cost and
wages increased. In estimating the future loss of earnings he applied
the strategy of
adjusting the financial results from after the
accident using three scenarios for the financial years ending 28
February 2011 to
28 February 2018.
Scenario
1
- Sales grow at 15% year-on-year and the business maintains a
constant net income as a percentage of the sales ratio:
“
In
my opinion, the most likely scenario. In this scenario Mr Jansen van
Vuuren suffered a historical loss of R1 100 397 and would
have earned
R322 687 (net profit from the business) for the financial year ending
February 2018”;
Scenario
2-
(worst case scenario) Sales grow at 10% year-on-year and the
business maintains a constant net income as a percentage of the sales
ratio
“
In
my opinion the worst-case scenario for the business based on the
results achieved prior to the accident. In this scenario, Mr
Jansen
van Vuuren suffered an historical loss of R762 169 and would
have earned R226 121 (net profit from the business)
for the
financial year ending February 2018”
;
Scenario
3-
(best case scenario) Sales grow at 15% per year, but expenses
only grow at 13% leading to an increase in net income as a percentage
of sales.
“
In
my opinion the best- case scenario for the business based on the
results achieved prior to the accident. In this scenario Mr
Jansen
van Vuuren suffered an historical loss of R1 524 478 and
would have earned R446 695 (net profit from the
business) for
the financial year ending February 2018.”
[25]
Du Plessis suggested that since the business continued to be
profitable despite the challenges,
the three scenarios should be
considered in determining future loss of earnings. Regard also being
had to the plaintiff’s
possible early retirementas a result of
the accident, an aspect he deferred to the relevant experts. Du
Plessis considered 3 options:
25.1
Where the plaintiff continues with the business without appointing
a senior manager
. He recommends that the actuary calculates the
anticipated future loss of earning by deducting the R73 160 from
the calculated
R322 687 adjusted net income for the financial
year ending February 2018.
25.2
Where the plaintiff continues with the business and appoints a
senior manager.
The senior manager performs the job that the
plaintiff cannot perform. The opinion is deferred to the Industrial
Psychologist to
determine the annual cost of employing a suitably
skilled person. An actuary must be engaged to calculate the present
value of
the net cost of taxation adjusted for inflation and
contingencies as determined by the court.
25.3
Where the plaintiff cannot continue with his business as a direct
result of the accident.
This aspect was deferred to the opinion
of the Industrial Psychologist. Du Plessis opined, however, that in
this scenario, the
plaintiff’s future loss of earnings would be
calculated by deducting any possible anticipated earnings (from
alternative
employment) from the calculated R322 687, adjusted
net income for the financial year ending February 2018. The derived
answer
can be used by an actuary to calculate present value of his
future loss of earnings adjusted for inflation, taxation and
contingencies
as determined by the court.
[26]
In du Plessis’ opinion, the most likely scenario among the
three is the first scenario
at para 25.1 (above). According to him it
is also the most conservative which he recommends this court to
consider.
[27]
Ms Susan van Jaarsveld, the Industrial Psychologist, examined the
plaintiff on 31 August 2015
and filed a report dated 1 November 2019.
She referred to the report by Dr Ziervogel for the injuries sustained
by the plaintiff.
The objective of her report was to assess the
impact of the accident and subsequent medical treatment on the
plaintiff’s
present and future employability and the type of
work he will be able to perform. No psychometric assessment was
conducted because,
as explained by Ms van Jaarsveld, the plaintiff is
well established in his career and is already 43 years old. She
conducted a
structured interview with him to obtain his educational
and family background, work experience, health and hobbies.
[28]
Van Jaarsveld agrees with the opinions of the other medical experts
that due to the plaintiff’s
physical limitations as a result of
the accident, he will not be able to perform his work as a
self-employed Construction Manager
and Construction Worker. The
distinction between the two was based on the Occupational Network
Information, 2019. Van Jaarsveld
considered three possible scenarios:
(i)
Scenario 1 where
the plaintiff is self-employed as a Building Contractor continuing
with his business.
She highlighted that he will, in all
probability, have to go on early retirement. Opinion of the relevant
expert is required. Should
he ineluctably go on early retirement, he
must be compensated for his loss of income until retirement. A
contingency calculation
caused by the fact that the plaintiff will
not be able to work at the same rate as before the accident. She
suggests a higher contingency
calculation to accommodate the
possibility that the plaintiff might be forced to close his business
in future.
(ii)
Scenario 2: where the plaintiff appoints a supervisor to assist
him with the physical part of the construction
. Van Jaarsveld
raises a concern that Ms Raats, the Occupational Therapist, suggests
that the plaintiff may train his employees
to perform the physical
part of the work, but in Van Jaarsveld’s opinion, he still
requires a supervisor to perform the quality
control function before
a project is finalised. Of relevance will be a Grade II Paterson
Level 4 (basic salary) supervisor. A contingency
must be made for the
appointment of a supervisor.
(iii)
Scenario
3 considers the possibility where the plaintiff’s business will
stop to operate for whatever reason.
Should this happen, he may need to consider alternative employment of
a light to sedentary nature in the labour market. The plaintiff’s
alternative career after the accident limits him to work of a
sedentary nature, e.g clerical work in the non-corporate sector with
earnings equivalent to a semi-skilled worker. Chances of securing
this type of work is reduced because he has limited administrative
experience, is not computer literate, is already 46 years old and
will have to compete in an open labour market. Chances are, he
may,
as indicated by Dr Oelofse in his report
[2]
,
take early retirement at the age of 55 years.
[29]
It is significant to note the following remarks by Ms van Jaarsveld
at para 6.10 of her report
under the head ‘
Career
opportunities and future loss of earnings’
having referred
to Dr Ziervogel’s as well as Ms Raats’, Occupational
Therapist reports:
“
Although Mr
Jansen van Vuuren continued with his work as a self-employed Building
Contractor after the accident, he experience[s]
difficulties in
performing his work and to properly supervise his employees. Mr
Jansen van Vuuren cannot work at the same tempo
as prior to the
accident and already lost several contracts which included the
maintenance contract at the Mooihawe Old Age Centre.
As Mr Jansen van
Vuuren is self-employed as a Building Contractor it is proposed that
he appoint a supervisor to assist him with
the physical part of his
work. Although Ms Raats (Occupational Therapist) indicates that Mr
Jansen van Vuuren can train his employees
to perform the physical
part of his work, he still needs a supervisor to perform a quality
control function before a project is
finalised in order to ensure
that the work is of a high standard. According to SAFCEC a Supervisor
(Grade II) can be linked to
Paterson level B4 (basic salary of the
lower quartile). A broad conception of remuneration on Paterson level
B4 (estimated for
2015), is approximately as follows (see Appendix A,
Correlation of Major Job Evaluation Systems):
Paterson
Basic salary
Total Package
Lower
Medium
Upper
Lower
Medium
Upper
B4
145000
170000
195000
184000
223000
260000
[30]
The plaintiff’s actuaries, Munro Forensic Actuaries, compiled
an actuarial report dated
3 February 2020. The report was reviewed
and approved by Mr Willem Hendrik Boshoff, a Fellow of the Institute
of Actuaries in the
UK in 2007, who confirmed that the figures were
calculated in accordance with standard actuarial principles and
correctly reflects
his opinion in this matter.
[31]
The figures in the actuarial report were calculated as at 1 March
2020. The report estimates
the capital value of the potential loss of
earnings suffered by the plaintiff due to the accident. The
actuaries’ sources
of information were the reports of the
Industrial Psychologist, Ms Susan van Jaarsveld and the Chartered
Accountant, Mr Niël
du Plessis. Munro’s calculations
considered the four scenarios:
(i)
Scenario 1
showing loss assuming the claimant will continue as
a self-employed building contractor;
(ii)
Scenario 2
shows the loss assuming the claimant will continue
as a self-employed building contractor and will appoint a supervisor
to assist
him;
(iii)
Scenario 3
shows the loss assuming the claimant will find
alternative employment in the non-corporate sector (from the date of
calculation);
and
(iv)
Scenario 4
shows the loss assuming the claimant would have
worked as a site manager and will find alternative employment in the
non-corporate
sector (from the date of calculation).
[32]
Having assumed that the plaintiff earns a reduced income after the
accident and is not expected
to reach the suggested pre-accident
potential, and having factored in contingencies and the RAF cap, the
calculations per scenario
are the following:
Scenario 1
Scenario 2
Scenario 3
Scenario 4
Past
R1 188 000
R1 190 900
R1 188 100
R776 700
Future
R2 923 700
R2 561 400
R2 921 300
R1 775 365
Total
4 111 700
R3 752 300
R4 109 400
R2 552 065
[33]
Dr Katinka Botha, the Psychiatrist examined the plaintiff on 4 April
2017. The plaintiff has
been depressed and anxious since the accident
in 2010 with one interrupted suicide attempt. He has lost friends and
his marriage
is strained. He has lost contracts due to loss of
productivity and physical impairment and limitations on his
supervisory role.
Dr Botha recommends that the plaintiff continues
with at least 4 follow up sessions of psychiatric treatment and 24
sessions per
year with a psychologist. She has also factored in a
possible 2-week hospitalisation.
[34]
Ms Juane Raats, the occupational therapist, compiled a report dated
07 July 2015. The purpose
of the report is to review the plaintiff’s
residual abilities and the demands placed on his activities such as
recreation,
personal care, work and interpersonal relations. She
recorded the injuries as segmental fractures of right femur, open
fracture
of right tibia and dislocation of talonavicular joint of
right foot. Fracture of left second metacarpal.
[35]
Ms Raats opined that, the plaintiff should train his workers to do
the manual work so that he,
the plaintiff, can supervise the work
done. This view is countered by Ms van Jaarveld at para 29 (above).
According to Ms Raats
the plaintiff may require a future back
operation and hip and knee replacements; based on the other medical
reports for which a
recovery period will be necessary and that he
should still be able to run his business with the suggested
adaptations. She points
out he will in future need assistive devices
from the age of 60 years. Her report has specified the required
devices, replacement
periods and their estimated costs. He will also
requirephysiotherapy and a Life and Business Coach.
[36]
With regards to the plaintiff’s loss of earning capacity, the
reports diagnose that he
is disabled from earning a living as a
building contractor and his efficiency is adversely affected as he
can no longer do the
maintenance and supervisory work which he did
before the accident. In terms of the pleadings as a result of the
injuries sustained
in the collision, the plaintiff is suffering loss
of earning capacity and will have to retire early. But for the
accident, he would
have continued to perform all his construction
duties and supervised his labourers until the age of 65 years. An
amount of R4 111 700.00
(Four Million One Hundred and
Eleven Thousand and Seven Hundred Rand) is claimed under this head.
[37]
Rumpff JA articulated the following principle in
Dippenaar
[3]
:
“
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 f 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.’
See also Union
and National Insurance Co Ltd v Coetzee
1970 (1) SA 295
(A) where
damagers were claimed and allowed by reason of impairment of earning
capacity.”
[38]
I am satisfied that the plaintiff’s earning capacity has been
compromised. That earning
capacity constitutes a loss. I must,
however, emphasise that the compensation must be limited to the
extent that his patrimony
has been diminished. In
Rudman
[4]
Jones
AJA made the following enlightening remarks:
“
A physical
disability which impacts upon capacity to earn does not necessarily
reduce the estate or patrimony of the person injured.
It may in some
cases follow quite readily that it does, but not on the facts of this
case. There must be proof that the reduction
in earning capacity
indeed gives rise to pecuniary loss. Thus, in Union and National
Insurance Co Ltd v Coetzee
[1970 (1) SA 295
(A)], which is referred
to in the passage quoted above from Dippenaar’s case and which
deals with a lump sum award for loss
of earning capacity, Jansen JA
makes the point that
‘ ‘
n
(b)epaalde liggaamlike gebrek bring egter nie noodwendig ‘n
vermindering van verdienvermoë mee nie of altyd ‘n
vermindering van gelyke omvang nie – dit hang af van die sort
werk waarteen die gebrek beoordeel word’.
(Loosely translated:
However, a particular physical defect does not necessarily entail a
reduction in earning capacity or always
a reduction in equal extent -
it depends on the type of work against which the defect is assessed).
[39]
Dr Oelofse, Dr Steyn and Ms Van Jaarsveld are of the opinion that the
plaintiff will need to
be accommodated in a light/sedentary working
environment where he will not be expected to perform manual labour.
Dr Oelofse and
Ms van Jaarsveld expressed the opinion that the
plaintiff will not be able to compete in an open labour market. Ms
Jaarsveld qualified
that finding based on the facts that he was
already 43 years of age at the time of the report, now 48 years, has
mainly worked
as a contractor, has limited administrative experience,
is not computer literate and the current unemployment rate which
stood
at 25% (Statistics SA, July 2015). However, should he be
accommodated in a light/sedentary environment, he will be able to
work
until the age of 55 years.
[40]
I find that the plaintiff has lost a number of clients including the
Mooihawe Old Age Home because
of his absence from work and
insufficient or no supervision on his return. Du Plessis made the
point that the plaintiff’s
business took a turn for the worst
at the end of the financial year in which the accident occurred, 28
February 2011 in that, the
net income dropped from R105 473.00
to R43 884.00, the material cost as a percentage of sales
increased by 3.68% and
the ratio of wages to sales increased from
29.89% in the previous year to 39.27%, resulting in an increase of
9.38%. This effectively
saw the plaintiff’s business increase
in material and wage costs as a percentage of sales to 13.06%.
[41]
I have considered the four scenarios as contained in the actuarial
report. Regard being had to
the medical reports substantiating this
claim, it is clear to me that the opinions of the experts is that the
plaintiff will not
be able to function optimally. In scenario 3:
regarding the alternative employment in the non-corporate sector,
there is no evidence
to suggest that the plaintiff would resort to
recourse to the open labour market to earn a living. It is unlikely
that the plaintiff
would have resorted to deploying his labour
elsewhere. None of his experts have supported that possibility. The
reasons as articulated
by Ms Van Jaarsveld supports the view that it
would be unreasonable to require him to do so. The evidence indicates
the contrary.
Scenario 3 and 4 will therefore not be sustained.
[42]
In his testimony, the plaintiff stated that he requires the services
of a supervisor to do the
work that he did himself before the
accident so that his construction company can continue to render good
quality services but
he cannot afford one. But for the plaintiff’s
injuries, he would have continued to work until retirement age. Ms
Van Jaarsveld
has
recommended
that a supervisor be appointed at Paterson level 4. Taking cue from
Mathews
[5]
where
Smalberger JA remarked:
“
There is no
reason in principle why, in an appropriate case, the cost of
employing a substitute should not form the basis of a claim
for
damages arising from a plaintiff’s inability to carry on his
pre-collision trade or profession. See Luntz Assessment
of Damages
for Personal Injury and Death 2
nd
ed at 259.
Thus a doctor who has been temporarily incapacitated and thereby
prevented from conducting his practice could recover
the cost of
employing a locum tenens, assuming always that the cost of employing
such locum tenens would be less than the loss
of income or profits he
would otherwise have sustained. By adopting such course he is
effectively mitigating his damages, as he
is obliged to do. He would,
however, be precluded from claiming compensation for loss of profits
over the same period unless he
can prove that by reason of his
personal absence his personal profits have fallen below their proper
level.”
[43]
Regard being had to the totality of the evidence as expatiated in the
different reports, it seems
that the cost of employing a supervisor
is an eminently sensible way of measuring the decrease in the
plaintiff’s future
earning capacity. It has the effect of
restoring him to a position he would have been in had he not suffered
such injuries. The
employment of a supervisor will compensate for the
areas which are inaccessible to the plaintiff, for example, the roof.
I therefore
find it appropriate, and the facts and evidence in this
case support it, that an award for future loss arising from the
plaintiff’s
incapacity to work or earn as before can be made on
the basis of the cost of substitute labour. I also find that the
plaintiff
would in effect be mitigating his losses by employing
substitute labour. In that way, his (plaintiff’s) limited
participation
at the construction sites is likely to increase his
income or reduce the level of expenditure. There is no evidence to
the contrary
that he will not be able to visit sites and give
direction to his employees and the supervisor.
[44]
The actuarial report sought to establish capitalised value of loss of
earnings (past and future),
after contingencies. The actuary in
scenario 2 was asked to assess what the plaintiff’s loss would
be if he had to employ
a supervisor to assist him. Since the RAF did
not present countervailing evidence, there was no challenge directed
at the method
employed by the actuaries to make the calculations or
dispute correctness thereof. The report reflects a past loss of
R1 190 900
and a future loss of R2 561 400, all
to the total amount of R3 752 300. There is no basis or
cogent reason
for me not to accept these calculations or to interfere
with the amount computed.
It
therefore follows that the plaintiff stands to succeed in his claim
for past and future loss of earnings/earning capacity in
the amount
of R3 752 300.
General
Damages
[45]
What remains is the consideration of the last head of damages,
namely, General damages. In the
pleadings (amended particulars of
claim), the plaintiff claims general damages in the amount of
R1 200 000.00 in respect
of pain and suffering,
disfigurement, disability and loss of amenities of life.
[46]
Counsel relied on three cases in this regard to substantiate the
claim, namely,
Roe v Road Accident Fund, Quantum of Damages,
Volume 6 at page J2-59; Dicks v Union and National Insurance, Quantum
of Damages,
Volume 2 at page 211; Coetzee v Union and National
Insurance, Quantum of Damages, Volume 2 at page 55.
In
his written heads of argument and relying heavily on
Roe,
counsel
submitted that since the plaintiff’s injuries and residual
disability are more comparable with the case of
Roe,
the
plaintiff’s injuries and its
sequelae
being more serious
than those suffered by the plaintiff in
Roe,
an award of R1.2
million for the plaintiff’s general damages will be just and
equitable. I do not agree.
[47]
The following remarks by Navsa JA in
Marunga
[6]
are
instructive:
“
[23] This Court
has repeatedly stated that in cases in which the question of general
damages comprising pain and suffering, disfigurement,
permanent
disability and loss of amenities of life arises a trial Court in
considering all the facts and circumstances of a case
has a wide
discretion to award what it considers to be fair and adequate
compensation to the injured party. This Court will interfere
where
there is a striking disparity between what the trial Court awarded
and what this Court considers ought to have been awarded:
See Protea
Assurance Co Ltd v Lamb
1971 (1) SA 530
(A) at 535A – B and the
other cases cited there.”
See also
Wright
v Multilateral Vehicle Accident Fund
[7]
which
is very helpful in determining general damages.
[48]
The plaintiff was 37 years at the time of the accident and 48 years
when he testified. He is
married but has no children. He is a
self-employed businessman as stated. He was the driver of the motor
vehicle. His injuries
have already been elaborately dealt with by the
orthopaedic surgeons in the preceding paragraphs. The focus now
specifically falls
on pain and suffering, disfigurement, disability
and loss of amenities of life.
[49]
This is the plaintiff’s current position with regards to
pain
and suffering
. Dr Oelofse opined that the plaintiff is still
suffering chronic pain in multiple joints. The plaintiff testified
that he suffers
from constant pain on a daily basis, particularly on
his back, neck, ankle and his right side of the body, which makes him
dependant
on pain tablets. He described the pain as a “pepper
grinder”. He also experiences headaches as well as shoulder and
neck muscle spasms on a daily basis. He has undergone five surgical
procedures. The degree of pain and discomfort when undergoing
surgical procedures causes anxiety. This also happened two years
later, in 2012, when he underwent surgery to remove the pins that
were inserted in his femur and tibia. Inclement weather increases his
pain. He is also struggling to sleep and takes sleeping tablets
for
depression post the accident. The plaintiff’s mobility was
impaired for a substantial period of about 18 months. He has
had to
mobilise on crutches and was unable to continue with his operational
responsibilities of his business. He can neither sit
or stand for
long periods nor walk for long distances. He cannot travel over long
distances without suffering body aches and stiffness.
[50]
In respect of
permanent disabilities
and disfigurement
the following needs mentioning. The plaintiff walks with an antalgic
gait. K-wires were inserted in his right foot. He has signs
of
post-traumatic osteo-arthritis of the knee with a high probability of
reaching final stage arthritis which will require a knee
replacement.
At the end of each day the plaintiff’s ankles are swollen. He
could develop adjacent level osteo-arthritis that
will require
mid-foot arthrodesis. Dr Oelofse says he will never be able to do
manual labour again. He also struggles to climb
stairs and ladders.
He struggles to bend, cannot squat or climb to roof tops. He finds it
difficult to wear socks and shoes. He
has stopped taking a bath for
fear of slipping and uses a shower.
[51]
In as far as
loss of amenities of life
is concerned I
considered the following: His quality of life has been adversely
affected, he has a lowered sex drive. His wife
is considering a
divorce. He has withdrawn from friends. Pre-accident, he was an
active sportsman but has not been able to participate
in any of the
sporting activities.
[52]
Undoubtedly, one can never find a case which is on all fours with the
other. It has long been
accepted that the past awards serve as a
useful guide of what the courts considered as appropriate. Almost
eleven years have passed
since the accident. What is significant is
that whereas the plaintiff sustained severe orthopaedic injuries, his
femur and tibia
fractures have united. What remains are the possible
hip and knee future replacements, constant pain and the inability to
lift
heavy objects, squat or climb roof tops, simply put, the
inability to perform manual labour. Other than walking with a gait
with
his right foot completely flat without a bridge, the other
disabilities are not conspicuous.
[53]
The
Roe
case is in the broadest terms close to the facts of
this case. The plaintiff in
Roe
was a 44-year old male working
in a family business with extensive travelling. His injuries were :
soft tissue injuries to the
neck, facial injuries with fracture of
the cheek, some of his teeth came loose, had a comminute fracture of
the right femoral shaft,
comminute fracture of the right tibia and
fibula, a fracture of the right patella, a fracture of the left
humeral shaft, a supra-intra
fracture of the left distalhumerus, a
degloving injury over the lateral aspect of the right foot and a
fracture of the upper incisor
tooth.
[54]
The difference between the plaintiff in
Roe
and the plaintiff
in casu
is that Van Vuuren was taken by ambulance to Colesburg
Hospital, stabilised and transferred to mediclinic in Bloemfontein,
whereas
in
Roe
the plaintiffwas sedated and remained sedated
for four to five days regaining consciousness only then, in hospital.
They both underwent
several surgical procedures. The difference comes
in the period for rehabilitation. Roe spent two months in
rehabilitation, was
wheel-chair bound for the first two months was
mobilised on crutches and was off work for about six months. Whereas
Van Vuuren
was wheelchair bound for the first few weeks then
mobilised on crutches for about 18 months. While the injuries are not
identical
they are comparable.
[55]
Potgieter JA made the following illuminating remarks in
Protea
[8]
:
“
Comparable
cases, when available, should rather be used to afford some guidance,
in a general way, towards assisting the Court in
arriving at an award
which is not substantially out of general accord with previous awards
in broadly similar cases, regard being
had to all the factors which
are considered to be relevant in the assessment of general damages.
At the same time it may be permissible,
in an appropriate case, to
test any assessment arrived at upon this basis by reference to the
general pattern of previous awards
in cases where the injuries and
their sequelae may have been either more serious or less than those
in the case under consideration.”
[56]
I am, however, not persuaded by the amount of R1.2 million claimed
for general damages and am
of the view that it is too high. Having
considered all the factors and circumstances referred to earlier in
this judgment, past
awards as well as the
Wright
judgment
approach to the award of damages, I consider the amount of R800 000
to be an appropriate award of damages.
[57]
I regard the following expert witnesses as necessary for purposes of
this trial: Niël du
Plessis, Dr LF Oelofse,Susan van Jaarsveld,
Juané Raats, Charl du Plessis and Dr K Botha. No motivation or
submission was
made either orally or in the written heads for Dr
Franco Colin and FR Kleynhans. Their evidence never featured in the
trial and
their reports did not form part of the reports that were
handed in and admitted as part of the plaintiff’s case. I will
therefore
be silent in that regard.
[58]
In the result, the following order is made:
1.
The defendant shall pay the plaintiff the amount of R 4 822 547.23
which amount is arrived at as follows:
1.1
The sum of R800 000.00 in respect of general damages;
1.2
The sum of R3 752 300 for loss of income;
1.3
The sum of R270 247.23 for past medical expenses.
Payment into the
following bank account:
Bezuidenhouts Inc.
ABSA Brandwag
Branch Code 334334
Account No [....]
2.
Interest on the aforesaid amount at the prescribed rate within 14
days of this
order.
3.
The defendant is ordered to furnish the plaintiff with an undertaking
in terms
of
s 17(4)(a)
of the
Road Accident Fund Act, 1996
, for
payment of 100% of the costs for the future accommodation of the
plaintiff in a hospital or nursing home, or treatment of
or rendering
of a service services or supply of goods to him, arising from the
injuries he sustained in the motor vehicle collision
which occurred
on 08 July 2010 and the
sequelae
thereof, after such costs
have been incurred and upon proof thereof.
4.
The defendant shall pay the plaintiff’s taxed or agreed party
and party
costs on a High Court scale to date of this order, which
shall include the reasonable qualifying, preparation, reservation and
appearance fees (where applicable) of the following expert witnesses:
4.1
Niël du Plessis
Chartered Accountant
4.2
Dr LF Oelofse
Orthopaedic Surgeon
4.3
Susan van Jaarsveld
Occupational Therapist
4.4
Juané Raats
Industrial Psychologistt
4.5
Charl du Pleassis
Actuary
4.6
Dr K Botha
Psychiatrist
5.
In the event that costs are not agreed:
5.1
The plaintiff shall serve a notice of taxation on the defendant’s
attorney of record;
and
5.2
The plaintiff shall allow the defendant (14) days to make payment of
the taxed costs.
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the plaintiff:
Adv. MDJ Steenkamp
Instructed
by:
Bezuidenhout Inc
c/o Elliot, Maris Wilmans
& Hay Inc
For
the defendant:
No
appearance
[1]
Havenga
v Parker 1993 (3) SA 724 (TPA)
[2]
Page 298 at
clause
16.3
[3]
Dippenaar
v Shield Insurance Co Ltd
1979 (2) SA 904
(A) at 917B - D
[4]
Rudman v Road Accident Fund
2003 (2) SA 234
(SCA) at 241H –
242B
[5]
President
Insurance Co Ltd v Mathews
1992 (1) SA 1
(AD) at 5E - G
[6]
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA) at 169 para 23
[7]
Wright v Multilateral Vehicle Accident Fund Corbett and Honey The
Quantum of Damages in Bodily and Fatal Injury Cases vol 4 at
E3-31
(N)
[8]
Protea
Assurance Co Ltd v Lamb
1971 (1) SA 530
(A) at 536A -