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[2019] ZAGPPHC 181
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Smith v Road Accident Fund (57226/2016) [2019] ZAGPPHC 181 (16 May 2019)
IN
THE IDGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: 57226/2016
16/5/2019
In
the matter between:
M
SMITH
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
BOTHA,
AJ:
[1]
In this matter the plaintiff instituted an action against the
defendant for damages
as a result of bodily injuries suffered
following a motor vehicle collision that occurred on the 22th of June
2014.
[2]
The
defendant initially disputed liability for the accident, however, the
defendant conceded the issue of liability in favour of
the plaintiff
for the damages suffered as a result of the motor vehicle collision.
[3]
The
defendant tendered an undertaking in terms of section 17(4)(a), which
was duly accepted by the plaintiff.
[4]
Consequently,
the defendant is liable for 100% of the plaintiff's proven and / or
agreed damages.
[5]
The
disputes are mainly as follows:
5.1
quantification
of the amount in respect of past medical expenses;
5.2
quantification
of the amount in respect of general damages;
5.3
quantification
of the plaintiff's claim for loss of income / earning capacity.
[6]
Before
I deal with the separate heads of damages as outlined hereinabove, I
deem it necessary to succinctly deal with the
viva
voce
evidence
presented on behalf of the plaintiff. The defendant did not call any
witnesses.
DR.
ENGELBRECHT:
[7]
The
plaintiff was an existing patient of Dr. Engelbrecht (Neurosurgeon),
at the date of the accident. Dr. Engelbrecht testified
that he
consulted with the plaintiff as a patient on 11 March 2014.
[8]
The
plaintiff
inter
alia
complained
of moderate pain in his back when he drove a motor vehicle for long
periods, mild stiffness in the neck area which was
exacerbated when
heremained in one position for a long time and slight weakness in his
right arm.
[9]
He
further referred to the diagnostic radiologist report from Dr. Van
Rensburg & Partners (Annexure "B") to his notice
in
terms of rule 36(9)(b).
[10]
According
to this report the plaintiff had a Posterior Osteophytic and
Discogenic disease at level C5/6 and minimal at level C6/7.
There was
also a slight narrowing of both lateral foramina especially on the
right side at level C5/6 and to a lesser degree level
C6/7 especially
on the right side.
[11]
Dr.
Engelbrecht ruled out the need for surgery in the foreseeable future,
and recommended conservative treatment that included physiotherapy
and medication.
[12]
Dr.
Engelbrecht testified that the plaintiff would not have needed a
fusion of the discs referred to as a result of his condition
prior to
the motor vehicle collision for a further period of approximately
10-years. The effects of the motor vehicle collision
were the sole
cause for the need of immediate surgery and fusion after the
collision.
[13]
The
plaintiff will probably need a further fusion and/or fusions within
the next 10-years.
THE
PLAINTIFF:
[14]
The
plaintiff testified that although he was diagnosed with a
pre-existing condition as defined by Dr. Engelbrecht, that he could
not proceed with his normal day -to- day activities, including work
related activities.
[15]
The
plaintiff testified that he is a fitter and turner but that he was
employed as a pipeline inspector, who had to inspect water
pipelines
and fix any leaks he came across.
[16]
The
diameter of these pipes are 1.4 metres by 600 millimetres and it was
a physically demanding task to inspect these pipelines.
[17]
He
testified that Dr. Engelbrecht prescribed mybulen and/or mypaids
(pain medication) and that he could still continue with his
work with
the prescribed medication. It was only after 8-hours in the confined
spaces in these pipelines that he started to take
strain.
[18]
The
medication helped and he never took sick leave because of this pre
existing neck condition. He returned to work in August
2014 and was
given light duty for 6-weeks. When he proceeded with his physical
inspections of the pipelines thereafter, he could
not move like he
use to and his employer used him for office/administrative purposes
(sedentary work). His employer was sympathetic
and merely
accommodated him in this regard.
[19]
The
company that employed the plaintiff, is currently being wound-up as I
understand it and all its employees' services were terminated.
[20]
The
plaintiff further testified that he survived various previous
retrenchments and that due to his skill as a pipe inspector it
appears that he was a specialised fitter and turner that would not
have struggled to find employment.
[21]
He
also failed an induction for the first time in his career, after the
accident.
[22]
Adv.
Rossouw SC on behalf the defendant conceded in argument that both Dr.
Engelbrecht and the plaintiff were reliable witnesses.
I will further
elaborate upon this aspect hereinbelow.
[23]
Both
the plaintiff and the defendant appointed Industrial Psychologists
namely Dr. Dries Schreuder appointed by the plaintiff and
Herbert
Kanengoni appointed by the defendant.
[24]
On
19 July 2018 the said Industrial Psychologist conducted a telephonic
pre-trial meeting, and recorded in a joint minute which
inter
alia
states
the following:
24.1
The
plaintiff was a mechanical supervisor fitter and turner at the time
of the accident and would probably have worked in this capacity
until
normal retirement age;
24.2
They
agreed on the plaintiff's pre-accident total average earnings of
R346,45 l.40 per annum and that this figure should be used
to
calculate premorbid income, inflationary adjusted;
24.3
Dr.
Dries Schreuder suggested that the plaintiffs current income
(R346,451.40) be used to calculate premorbid income, inflationary
adjusted;
24.4
Dr.
Kanengoni suggested that assuming that the plaintiff would have
continued working for Viva Engineering Projects, there was a
probability of the plaintiff requiring further industry related
training in order to increase chances or being promoted. In the
event
that the plaintiff upgraded his education, there is a higher
possibility pre accident that his earnings would have moved
to
between the median and upper quartiles for grade C5 by the time he
reached his career plateau at the age of 45 in 2019;
24.5
Both
agreed on a retirement age of 65;
24.6
They
agreed that after the accident, the plaintiff could not cope with the
physical requirements of his job and had to mostly perform
administrative tasks;
24.7
They
agreed that the plaintiffs career has been significantly compromised
and that the plaintiff will be in a very disadvantaged
position
should he lose his job;
24.8
They
agreed that the plaintiff is a vulnerable employee whose productivity
is compromised by the accident.
[25]
In
a follow-up joint minute of a meeting conducted by Dr. Schreuder and
Dr. Kanengoni on 2 April 2019, it was
inter
alia
recorded
that:
25.1
The
plaintiff is restricted to sympathetic employment which is sedentary
and supervisory in nature, but sympathetic employment requires
the
prospective employer to be aware of the situation and the
understanding of it. This is uncommon in most cases;
25.2
They
recorded that securing a supervision job in his field of expertise is
unlikely and his options as a fitter and turner are restricted;
25.3
The
plaintiff may struggle to secure a stable gainful employment for the
remainder of his working life.
[26]
In
the matter of Bee v Road Accident Fund 2018(4) SA 366 SCA para. 64
the Supreme Court of Appeal endorsed Sutherland, J's approach
in
Thomas v BD Sarens (Pty) Ltd 2012 ZAGPJHC, that found that in the
absence of a timeous repudiation, the facts agreed by the
experts
enjoy the same status as facts which are common cause on the
pleadings or facts agreed in a pre-trial conference.
[27]
Neither
the plaintiff nor the defendant repudiated the facts agreed by the
experts more specifically the joint minutes of the Industrial
Psychologist. I will therefore rely on the facts agreed by the
experts, utilising my own discretion and the evidence given by Dr.
Engelbrecht and the plaintiff, which was conceded to be reliable by
the defendant's senior counsel.
[28]
The
argument presented on behalf of the defendant, can mainly be
summarized as follows.
[29]
There
is no dispute that the accident caused an acceleration of the
plaintiff's operation with 10-years or less resulting in an
early
immobility of the neck and, on the other hand, an acceleration of the
alleviation of his symptoms and an earlier revision
of the operation.
[30]
The
main difference between the plaintiff's injured and uninjured
position is that the plaintiff, now that the accident has occurred,
has to live 10-years or less longer with a fusion of two of his
vertebrae. The plaintiff did not suffer a more serious injury as
a
result of the insured drivers conduct then it would otherwise have
been the case.
[31]
It
was therefore contended that this was not a typical (eggshell case)
as the plaintiff did not suffer a more serious injury as
a result of
the insured drivers conduct.
[32]
I cannot ignore the evidence presented by Dr. Engelbrecht, the
plaintiff and the joint minutes
of the IP ' s.
[33]
Although
Adv. Rossouw SC made out a compelling argument that the plaintiff did
not suffer more severe injuries due to the accident,
this argument is
not substantiated by fact.
[34]
Considering
the joint minutes of the IP's, and the
viva
voce
evidence
presented by the witnesses, I cannot make such a finding.
[35]
According
to Dr. Engelbrecht it would not have been necessary to have operated
upon the plaintiff within the next 10-years, but
for the accident.
The plaintiff clearly testified that premorbid he was able to have
performed his daily tasks, however, after
the said accident he was
not able to work as before.
[36]
I
therefore find that the deterioration in the plaintiffs physical
impairment, is as a result of the collision. It follows that
the
plaintiff indeed suffered a monetary loss to the extent that his
earning capacity is impaired as a result of the accident and
that it
caused monetary damage to the plaintiff.
[37]
I
will therefore deal with the separate heads of damages as follows:
Past
Medical Expenses:
37.1
I
do not agree with the defendant's contention, that the damages
suffered by the plaintiff in this regard, are basically the loss
of
interest, in that but for the accident that the medical expenses
would have been incurred in any event at a later stage.
37.2
The
accident necessitated the plaintiffs medical expenses and he will in
all probability incur a further fusion or fusions in the
future which
would not have been the case, but for the accident.
37.3.
I therefore award the full amount ofR108,877.87 to the plaintiff.
General
Damages:
37.4
I
was referred to a number of comparable cases regarding general
damages. No two cases are exactly alike therefore past cases can
only
serve as a rough guide and ultimately each case must be determined on
its own facts.
37.5
Counsel
for the defendant referred me to various comparable cases referring
to whiplash including the matter of Mashaba v The Road
Accident Fund
(Transvaal Provincial Division: case number 15683/2004), where the
plaintiff was involved in rear-end collisions
on two consecutive
days. On each occasion she sustained a soft tissue flexion-extension
injury of the neck (whiplash injury). After
the first accident the
plaintiff experienced a severe headache and painful neck. She was
examined in hospital, x-rays were taken
and she was discharged with a
neck-brace, painkillers and anti- inflammatory medication. At the
time of the second accident the
plaintiff was wearing a neck-brace. A
few days after the second collision she was examined, more x-rays
were taken, and medication
was prescribed. No subsequent treatment or
visits to medical practitioners apart from one visit to a
physiotherapist. The court
granted general damages in the amount of
R40,000.00-valued at R86,000.00 in current money terms.
37.6
It
was argued on behalf of the defendant that the symptoms displayed by
Ms Mashaba are similar to that of the plaintiff.
37.7
Some
of the symptoms might be the same, however, Mr Smith was diagnosed
with a cervical spine injury according to the joint minutes
of the
respective orthopaedic surgeons.
37.8
On
24 June 2014, Dr. Engelbrecht the plaintiffs neurosurgeon diagnosed
the plaintiff with the following:
37.8.1
Severe
cervical headaches; neck pains and pins and needles in both arms;
37.8.2
plaintiff
suffered from spondylosis at disc level C5/6 and C6/7;
37.8.3
Severe
soft tissue injury to the disc level area C5/6 and C6/7.
37.9
I
reiterate that although the plaintiff suffered from spondylosis, Dr.
Engelbrecht testified that immediate surgery resulted directly
from
the motor vehicle collision.
37.10
The
plaintiff needed an immediate anterior cervical discectomy and fusion
ofC5/6 and C6/7.
37.11
Dr.
Engelbrecht conducted anterior cervical discectomy with fusion ofC5/6
and C6/7 on 26 June 2014.
37.12
Counsel
for the plaintiff referred me to the matter of NM v The Road Accident
Fund (case number: 49890/2014) were the plaintiff
sustained a neck
injury at level C2 resulting in a posterior Cl/2 fusion. No further
surgery was recommended. The court awarded
an amount of
R325,000.00-valued at R345,000.00 in current money terms.
37.13
In
my view, an award of R345,000.00 is appropriate taking all factors
into account.
Loss
of income / earning capacity:
37.14
It
is trite that contingency deduction is a prerogative of the court and
is largely a value judgment.
37.15
It
was submitted on behalf of the defendant that the plaintiff in an
uninjured state had a 70% chance of completing his career path
and in
the injured state he has a 60% chance of completing same.
37.16
This
translates into a deferential of 10% between the pre and postmorbid
career paths.
37.17
It
was submitted on behalf of the plaintiff, that I apply a 20%
premorbid contingency and a 70% postmorbid contingency.
37.18
Plaintiff's
counsel submitted further, that I can apply a higher contingency of
25% although he did not deem it as fair. Taking
everything into
consideration, I find that a 25% contingency premorbid should be
applied to the present matter.
37.19
Considering
the
viva
voce
evidence
presented, and the contents of the joint minutes of the respective
!P's, I find that a higher contingency should apply
to the injured
state. Differently stated, a 25% contingency premorbid must be
applied, and a 70% contingency postmorbid must be
applied. This
implies, that there is a 45% differential between pre and postmorbid
career paths.
37.20
I
deem it necessary to repeat some of the findings contained in the
IP's joint minutes which are as follows:
37.20.1
The
plaintiffs career has been significantly compromised;
37.20.2
Should
the plaintiff lose his job, will find himself in a very disadvantage
position;
37.20.3
He
will probably remain unemployed for a long period of time should he
lose his current job;
37.20.4
The
plaintiff remains a vulnerable employee whose productivity is
compromised by the accident.
[38]
Taking
all the evidence into account, I find that the plaintiff has a 30%
chance of completing his career path in the injured state
i.e. he has
a 30% chance of completing his career path in his present state.
[39]
The
IP's agreed that the plaintiff's pre-accident total average earnings
is R346,451.40 per annum.
[40]
The
plaintiff's IP dealt with the salary of the plaintiff as referred to
at the time of the accident and to only add inflationary
increases
until retirement. This calculation of the scenario appears from
scenario 1 in the actuary report drafted by Human &
Morris
Actuaries.
[41]
The
second scenario proposed by the defendant's IP is more favourable
towards the plaintiff and suggested that the plaintiff if
he
continued working for Viva Engineering Projects, would probably
acquire further industry related training in order to increase
the
chance of being promoted. This is the basis for scenario 2 in the
actuary report.
[42]
It
was submitted on behalf of the plaintiff that a third scenario
existed, in that the amounts contained. in scenarios 1 and 2 be
added
together and then be divided by two.
[43]
I
do not know if this submission is actuarially sound, as it was not
dealt with in the actuary report.
[44]
There
is no evidence of further training the plaintiff obtained after his
qualification as a fitter and turner.
[45]
During cross-examination, the plaintiff stated that the duties
contained on page 8 of Dr. Dries
Schreuder's report dated 22 May 2018
were mostly contained on his CV, but that he was not qualified
therein and that it was just
some experience.
[46]
From
the plaintiff's work history and his testimony, it appears unlikely
that he would have acquired further industry related training
in
order to increase his chance of being promoted. I therefore find that
the scenario provided by Dr. Dries Schreuder should be
utilised in
calculating the plaintiff's future loss.
[47]
Regarding
the plaintiff's retirement age, it appears that the IPs' agreed on a
retirement age of 65 in the joint minutes dated 19
July 2018.
[48]
No further evidence was presented regarding the contention that the
plaintiff would have retired
at the age of 60. I therefore find that
the calculation regarding the plaintiff's future loss should be based
on the retirement
age of 65.
[49]
Based
upon my finding, there is a 45% differential between the pre and
postmorbid career paths of the plaintiff. Using this differential
on
the future income calculated by the actuary based on scenario 1 in
the amount of RS,242,038.00, the plaintiff suffered a loss
of income
earning capacity in the amount ofR2,358,917.10.
[50]
I
make the following order:
1.
The
defendant is to pay the plaintiff R2,812,794.97 (two million, eight
hundred and twelve thousand, seven hundred and ninety four
rand and
ninety seven cents) (which includes future loss of income of
R2,358,917.10 (two million, three hundred and fifty eight
thousand,
nine hundred and seventeen rand and ten cents)) and past medical
expenses in the amount of R108,877.87 (one hundred and
eight rand,
eight hundred and seventy seven rand, eighty seven cents);
2.
Defendant
is to pay interest at a rate of 10.25% as from the date 14-days after
the date of this order;
3.
The
defendant is to pay the agreed or taxed party -and- party costs of
this action including cost of two counsel where employed
and
including all relevant qualifying fees of the experts.
WJ
BOTHA
Acting
Judge of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 4 April 2019
Judgment
delivered: 16 May 2019
APPEARANCES:
For
the Plaintiff:
Adv. JG
Cilliers SC
Adv. M Van Rooyen
Instructed
by:
Marais
Basson Inc., Pretoria
For
the Defendant:
Adv. AB Rossouw SC
Adv.
A Frosch
Instructed
by:
Pule Inc.,
Pretoria