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[2019] ZAGPPHC 100
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Segodi v Road Accident Fund (30909/2015) [2019] ZAGPPHC 100 (27 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 30909/2015
27/3/2019
In
the matter between:
SOPHIA
GABATSHWANE SEGODI
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
POTTERILL
J
[1]
The plaintiff, S.G. Segodi (“Segodi’) was injured on 15
August 2013 in a collision along
the Mooinooi/Brits Road, North
West. Segodi was a passenger in a vehicle driven by one, Reggie
Moitsheke. The vehicle
wherein Segodi was overturned and she
was flung out of the vehicle. Her then boyfriend died in the
collision.
[2]
She is claiming patrimonial loss from the Road Accident Fund (RAF).
The only issue the Court had
to decide was whether the plaintiff will
as a result of the collision suffer a future loss of income.
Although much of the
cross-examination related to loss of earning
capacity, the plaintiff did not proceed with such claim.
[3]
As a result of the collision Segodi suffered the following injuries:
(a)
a head injury;
(b)
fractured left collarbone; and
(c)
a left pelvic fracture.
[4]
On 26 February 2019 a third and final pre-trial was held (two weeks
before the trial) wherein neither
the merits nor the quantum was
admitted by RAF. RAF stated that no assessor would be
appointed, but RAF would appoint an
orthopaedic surgeon, an
occupational therapist and an industrial psychologist. RAF had
set out no defence to the merits of
the matter. It is worthy to
note that as a passenger in the insured vehicle Segodi only had a
duty to prove 1 % negligence
on the part of the insured driver, but
despite this trite principle RAF did not try and settle the matter.
[5]
At the commencement of the trial the defendant had not appointed any
experts and chose to proceed without
any expert reports. The
Fund unsurprisingly had no defence to the merits. Between roll
call and being allocated a Judge
the merits was however settled, with
the RAF accepting 100 % liability for the claim. In this Court
this is the RAF’s
normal practice; either due to a lack
of investigation, or the RAF not giving proper instructions.
[6]
In chambers, prior to commencement of the trial, counsel for the
plaintiff submitted that the trial
was allocated to me to run for 2-3
days. Counsel for RAF was however adamant that it would take
2-3 hours. Puzzled
as to this substantial difference in opinion
I enquired what the defence of RAF is, especially since they had no
expert reports
pertaining to quantum. Counsel for RAF stayed
quiet for a long time and upon me asking him what his defence is, he
retorted
that he needed time to think. I then enquired if he
did not know their defence to the quantum claim upon which he
retorted
that he needed his file that is outside my chambers. I
afforded him the opportunity to fetch his file. He shouted at
me that I should not raise my voice and that he would walk out.
I said he was welcome to do so. He later apologised
for his
unacceptable conduct. The defence simply was the following:
the industrial psychologist stated in her report
that proof of
registration, academic results and the diploma certificate were not
received. Only upon receipt of qualification
would she be able
to positively state that the diploma is equivalent to a NQF level 5.
The matter stood down for the industrial
psychologist to be called.
[7]
The industrial psychologist took the stand and RAF accepted her
expertise and experience. She
testified that she for the first
time had sight of the matric certificate and the diploma before she
started testifying.
The National Diploma in ABET practice is in
fact a NQF 5 qualification and endorsed by SAQA. Counsel for
RAF was not collegially
informed by counsel for Segodi that the
industrial psychologist was now in possession of the certificate and
diploma. Upon
being afforded an opportunity to inspect the
diploma and certificate counsel for RAF argued that the certificates
were not discovered
and could not be used. It was ruled that it
would be provisionally accepted until Segodi confirmed the contents
thereof,
and in any event counsel for RAF had asked for these
certificates.
[8]
The industrial psychologist, Ms. Mathabela, testified that she
assessed Segodi on 28 January 2019.
At the time of the
assessment she had a copy of the orthopaedic surgeon’s report,
a copy of the neuro-surgeon’s report,
a copy of the clinical
psychologist’s report as well as a copy of the occupational
therapist’s report. She also
had a copy of the hospital
records, the RAF1 and RAF 4 forms as well as a copy of Segodi’s
identity document.
[9]
She concluded that pre-morbid Segodi was in good health. She
did however notice that the clinical
psychologist reported that
Segodi had HIV and was taking ARV treatment. Post-morbid Segodi
informed her that she experienced
pain in the left shoulder when
carrying or lifting heavy objects and she is unable to stand or walk
for long periods.
[10]
Pre-morbid Segodi completed Grade 12 after failing it twice.
She had also once failed Grade 2. At the
time of the accident
she was enrolled for a human resource diploma at Mankwe FET College
as a N4 Human Resource first year student.
Post-morbid Segodi
reported that upon her return to the College she could not stand for
prolonged periods as her left clavicle
became painful especially in
inclement weather conditions and she could not walk for long
periods. Although passing two of
the four modules she
discontinued with the course as she was no longer interested and she
had secured a learnership opportunity.
[11] In
2016 she completed a national diploma in ABET training through the
Department of Education. As expressed
previously she could now
confirm that a national diploma in ABET practice is at a NQF level
5. With this qualification Segodi
commenced employment at the
Department of Education at Ponelopele Adult Centre North West as a
facilitator employed on a part time
basis. Her duties included
teaching adult learners to read and write, marking tests and
examination papers and giving lessons.
She received training on
the job, but there were no career progression opportunities within
this line of work. This employment
in any event ceased in June
2016 when her contract expired. She received R2 800 per
month.
[12] In
July 2018 she secured alternative employment at Galaxy Bingo in the
capacity of a general worker employed
on a permanent basis. For
this she received remuneration of R4 400 per month. She
indicated that she also herein
received training on the job, but the
difference is that herein there is career progression opportunities.
Segodi stated
that she is unable to carry heavy objects and still
cannot stand for prolonged periods. From the 11
th
of
February 2019 she had been moved to a position of a chef and her
duties included cooking though her salary remained the same.
The witness contacted the employer of Segodi at Galaxy Bingo and he
informed her that Segodi never told him of the accident.
He
confirmed her salary of R4 400 per month and submitted that
Segodi’s performance was good, however, there were no
promotional opportunities within the company. He confirmed that
the retirement age is 60. Segodi had never complained
of any
pain or problems with executing her job.
[13] In
determining the employability and future earning capacity of Segodi
the witness assessed her against criteria
impacting on individual
work performance such as cognitive, emotional and physical
variables. The witness testified that
but for the accident,
Segodi would in any event likely would not have completed her N4
studies in Human Resource Management.
This was not contested by
RAF.
[14] In
terms of her National Diploma in ABET Training in 2016 she was
appointed on a contract part-time basis
as a facilitator and earned
R2 800 per month. She did so as she had acquired a
National Diploma in ABET Training which
was equivalent to NQF level
5. She did attempt to phone the Ponelopele Adult Centre but had
no response. However she
testified that in any event it would
depend from contract to contract and at what institution she was
giving adult lessons what
her income would be. The earnings in
this sector are not regulated and would be dependent on the place of
employment.
She therefore used the PE Corporate Prediction of
Entrance and Career Progression in the formal sector for individuals
with a NQF
level 5. As she would have entered the corporate
labour market with a semi-skilled capacity she would earn at
Patterson level
B3. She anticipated that she may have been
capable of dealing with job complexity at the Patterson job grade
C1/2 by career
ceiling 45-50 years. Thereafter there would only
be the annual inflationary increases until she reached the retirement
age
of 65.
[15]
Post-accident the witness took cognisance of the fact that according
to the orthopaedic surgeon Segodi suffers
discomfort and chronic pain
from the injured area. She has never been pain-free since the
accident. The occupational
therapist opined that Segodi has a 5
% whole person impairment. In fact the conclusion arrived at
was that she is unemployable
and that the injuries sustained would
make it difficult for her to compete fairly in the open labour market
in that she would have
difficulty doing jobs that requires physical
exertion. The neuro-surgeon confirmed that Segodi is suffering
from chronic
pain since the accident has occurred. According to
the clinical psychologist it was unlikely that the possible head
injury
sustained by Segodi post-accident has led to any significant
cognitive decline. Her physical injuries however had impacted
on her occupational capacity and functioning. According to the
occupational therapist Segodi is ideally suited for sedentary
to
light work where she can alternate positions for most of the time.
However, her low level of education and lack of office
administrative
work experience would make it difficult for her to secure pure
sedentary work. Segodi has difficulties participating
in
strenuous physical activities as it causes pain and discomfort to her
lower spinal cord and left upper limb. She had difficulties
to
perform heavy manual tasks due to painful upper limb and lower spinal
cord pains on repetitive movement. The occupational
therapist
concluded that Segodi’s marketability and ability to compete
fairly in the open labour market has been reduced
as a result of the
injuries she suffered in the accident. Her physical deficits
would negatively impact on her ability to
function and her presenting
pain symptoms would place her at a disadvantage when competing for
better work in the workplace.
[16] Based on
these reports the industrial psychologist then assessed the
employability and earning capacity on cognitive,
emotional and the
physical variables as set out by the experts. Pre-accident
employment would be that of teaching with her
national diploma in
ABET training. This is however adult education rendering it a
semi-skilled capacity earning at Patterson
level B3.
Post-accident she left the career path of facilitating at an Adult
Centre because her contract expired and she
obtained no further
contract. She did however secure employment at Galaxy Bingo as
a general worker and as a chef.
It would seem that there is
also no upward progression in this employment as with the ABET
training, training adults. She
concluded that due to the impact
of the collision on her physical ability she would be disadvantaged
in the open labour market.
As she is suffering from chronic
pain sustained to a pelvis fracture, a left clavicle fracture and
lumber spine soft tissue injury
it would affect her work performance.
[17]
She did not make much of the cognitive capacity of Segodi
post-collision as it was not severely affected.
Although the
occupational therapist did comment on suitability as an ABET
facilitator the industrial psychologist was of the opinion
that the
position of a facilitator and educator implicated prolonged standing
which may compromise her work productivity.
It is also mostly
done on a contract basis and in the open labour market where Segodi
would be competing for employment the official
unemployment rate is
27,5 %. Thus, a saturated highly competitive open labour market
where it could be expected that Segodi
may experience longer periods
of unemployment versus uninjured counterparts. She therefore
opined that in accounting for
post-accident injuries as well as
documented limitations Segodi would be operating in a diminished
capacity. She may continue
working as a kitchen assistant,
receiving inflationary increases until retirement age of 65.
[18] In
cross-examination it was put to her that Dr. S.K. Mafeelane, the
orthopaedic surgeon, noted that Segodi
had no gait and her shoulder
had a normal range of motion. She was confronted why this was
not reflected in her report.
She answered that she based her
information from Dr. Mafeelane as to the impact of the injury and the
pain and suffering set out
for future loss of income. She
specifically relies on any chronic pain, as chronic pain is one of
the indicators to utilise
whether employment is impaired or not.
Dr. Mafeelane noted the impact of the injury as Segodi having
difficulty in carrying
and lifting heavy objects. She has
difficulty in doing household chores and bending. She suffered
severe pain after
the accident. She continued to suffer the
inconvenience and discomfort of chronic pain from the injured areas.
She
has never been pain free since the accident. No criticism
can be levelled at the industrial psychologist for taking these
factors into account.
[19] She was
also in cross-examination criticised for not obtaining precise
salaries with an ABET diploma and easily
could have done so by
phoning around. Once again her answer was probable and
logical; she had tried to phone the Ponelopele
Adult Centre
where Segodi was employed on a part-time basis but had no luck in
obtaining the information. She did not pursue
this, but used as
indicator the PE Corporate Prediction of Entrance and Career
Progression, especially since the earnings in this
sector are not
regulated and would be dependent on the specific place of
employment. It was also put to her that the actuary
should not
have utilised the income she had received at Galaxy Bingo, but he
should have utilised the ABET qualification from which
to calculate
the figures. Her answer thereto was that he could have, but it
was her opinion that in the position of a facilitator
or educator the
prolonged standing may compromise her work productivity whereas a
kitchen assistant is a better scenario.
[20] Much was
also made of the fact that the witness’ interview with her
present employer reflected that Segodi
had not mentioned the accident
and accordingly it must be accepted that in fact there is no
impairment. I find this argument
to be nonsensical, because one
would not inform a new employer of any impairment especially in a job
market with a 27,5 % unemployment
rate, as its likely effect would be
that you would not be appointed or would be retrenched.
[21] It
was also put to her that the actuary should not have included the
furtherance to C1/C2 MED package because
this was a baseless
assumption. Her current employer noted that there was no
promotional opportunities within the current
employment.
Although the witness testified that Segodi may later perhaps become a
supervisor, I doubt that through promotion
she would be qualified as
skilled as provided for with C1/C2. Nothing in the report
indicated prospects of further educational
training as a possibility
to increase career progression. I thus agree that the actuary
should not have included a skilled
level at the Patterson job grade
C1/C2 by career ceiling 45-50 years old. The calculations
should thus stay at the Patterson
job grade B3.
[22] Much was
made of the fact that Segodi post-accident switched career and is now
utilising this new career as basis
for the calculations. Segodi
effectively lost her job as the contract for adult education with her
ABET diploma expired.
She made a plan and obtained work as a
cleaner, now a chef in a kitchen. No court is going to punish
such a plaintiff for
taking initiative, the position she now holds is
not a meteoric rise in employment; in fact from teaching to
cleaning seems
to me to be a downward trend. She has however
with this move secured permanent employment versus contract
employment with
a minimal increase to her salary of R1 600 per
month; an amount not exactly taking one’s breath away.
I
am satisfied that working on this scenario is fair and reasonable
to Segodi and no abuse of the taxpayer’s money. But
in
any event, there was simply no evidence to the contrary for the RAF.
[23] The
actuary did not adjust the values for general contingencies. On
behalf of Segodi a 5 to 15 % contingency
for the uninjured income was
argued and a 15
% contingency for the now injured income.
The counsel for RAF declined to make any argument pertaining to
contingencies.
I am satisfied that a 15 % contingency for
uninjured income as well as a 15 % contingency for now injured income
should be applied.
[24] I
accordingly make the draft order marked “X” an order of
court.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 30909/2015
HEARD
ON: 6-7 March 2019
FOR
THE PLAINTIFF: ADV. J.H.P. HATTINGH
INSTRUCTED
BY: Chueu Incorporated
FOR
THE DEFENDANT: ADV. H.J. STRAUSS
INSTRUCTED
BY: TM Chauke Attorneys
DATE
OF JUDGMENT: 27 March 2019
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no: 30909/2015
In
court ____
Before
the Honourable Judge Potterill
On
27 March 2019
In
the matter between:
SEGODI,
SOPHIA
GABATSHWANE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DRAFT ORDER
1.
The
Defendant concedes the merits and shall compensate the Plaintiff 100
% of the Plaintiff’s proven or agreed damages.
2.
The amount
pertaining to the loss of income as set out in the actuary report
dated 20 February 2019 must be adjusted as follows:
2.1
Income
uninjured must exclude any calculations on the C1/C2 Med package;
2.2
15
% contingencies must be applied to income uninjured an 15 % to income
injured.
The defendant is to pay
the plaintiff the amount taking into account paragraphs 2.1 and 2.2
above in settlement of the Plaintiff’s
claim.
3.
The
Defendant will not be liable for any interest on this payment if made
timeously. In the event of default on the above
payment,
interest shall accrue on such outstanding amount at the rate of 10,25
% per annum calculated from due date until date
of payment.
4.
The
Plaintiff nominates as the account into which the above payments must
be paid:
Name of
Accountholder CHUEU ATTORNEYS
Bank
ABSA
Branch
LEPHALALE
Branch
Code
334547
Account
Number
[….]
Type of
Account
CHEQUE ACCOUNT
5.
The
Defendant shall furnish Plaintiff with an Undertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act, No 56 of 1996,
to
compensate the Plaintiff for 100 % of the costs of the future
accommodation of the Minor in a hospital or nursing home, or
treatment of or rendering of any services or supplying of any goods,
resulting from the injuries sustained by the Minor as a result
of the
accident which occurred on 15 AUGUST 2013, after such costs have been
incurred and upon proof thereof.
6.
The
Defendant shall pay the Plaintiff’s party and party costs on
the High Court scale either as taxed or agreed to date hereof
which
costs will inter alia include, up to and including the appearance for
trial on 6 and 7 MARCH 2019, subject to the following
condition:
6.1
The
Plaintiff shall, in the event that costs are not agreed, serve the
Notice of Taxation on the Defendant’s attorney of record;
6.2
The
Plaintiff shall allow the Defendant 14 court days to make payment of
the taxed costs.
7.
Such party
and party costs will include:
7.1
The
cost of senior-junior counsel;
7.2
The
reasonable taxable costs of obtaining all expert and medico-legal
reports and follow-up reports from the Plaintiff’s experts
which were furnished to the Defendant, as well as preparation and
reservation fees, if any,, as the Taxing Master may on taxation
determine, of the following experts:
7.2.1
Dr
MAFEELANE – Orthopaedic Surgeon
7.2.2
Dr SEGWAPA
– Neuro Surgeon
7.2.3
MEC KALANE
– Clinical Psychologist
7.2.4
G MATHALA –
Occupational Therapist
7.2.5
MAGETHI –
Industrial Psychologist
7.2.6
J KOCH –
Actuary
8.
It is
recorded that no contingency agreement applies to the matter.
BY
ORDER OF COURT
THE
REGISTRAR
Counsel
for Plaintiff:
Adv JHP HATTINGH (cell: 0825755695)
Counsel
for Defendant: Adv. H
STRAUSS (cell: 0828704850)