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[2019] ZAGPPHC 186
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Bostelmann v Road Accident Fund (88979/2015) [2019] ZAGPPHC 186 (22 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO: 88979/2015
22/5/2019
In
the matter between:
AMANDA
BOSTELMANN
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
KUBUSHI
J
[1]
The plaintiff, Amanda Bostelmann, an
adult female, who was the driver of one of the motor vehicles that
were involved in a motor
vehicle collision, was seriously injured in
that collision. She is now claiming compensation for damages for such
injuries from
the Road Accident Fund. The plaintiff was 43 years old
at the time of the accident.
[2]
The merits part of the claim was settled
at 100% in favour of the plaintiff. What remains to be decided is
quantum,
that
is, damages for: past medical and hospital expenses, future medical
and hospital expenses, general damages and future loss
of
earnings/earning capacity.
[3]
The parties agreed to argue the matter
on the reports of the experts. No witnesses are to be called. Some of
the expert witnesses
have joint minutes (Exhibit "A"): the
orthopaedic surgeons, psychologists and industrial psychologists. The
defendant
admits any of the uncontested medical reports of the
plaintiff's experts (Exhibit "B"): the psychiatrist's
report, plastic
reconstructive surgeon's report and ophthalmologist's
report. The photographs depicting the plaintiff's scarring are also
admitted
(Exhibit "C").
INJURIES SUSTAINED
[4]
The parties are agreed about the
injuries the plaintiff suffered as a result of the collision and the
sequelae
thereof.
The injuries suffered by the plaintiff at the time are: injuries to
the sternum, right patella and right ankle, whiplash
injury to the
neck, injury to the left eye which required an operation and mild
concussion. She still requires .surgery in the
future for: the
removal of the internal fixation from the right ankle and a
synovectomy; synovectomy and arthroscopic debridement
of the right
knee, surgical stabilisation of the cervical spine and plastic and
reconstructive surgery.
[5]
Over and above the plaintiffs physical
injuries she also suffered psychogenic shock. In terms of the joint
minutes between the three
psychologists mandated to assess the
plaintiff, there is agreement that the plaintiff sustained a mild
concussion which resulted
in chronic severe major depressive mood
disorder due to a combination of the following factors: her grief
about the tragic loss
of her daughter (the daughter was travelling
with her at the time of the accident and the daughter suffered fatal
head injuries)
and associated guilt; her distress about her
deteriorated physical condition and chronic pain symptoms; her
requirements to give
up recreational activity and job opportunities
because of physical limitations; her self consciousness about
the cosmetic
changes and psychological vulnerability at the time of
the accident due to her father's suicide a month before.
OCCUPATION
[6]
The occupational therapists are agreed
that the plaintiff had a work history of
administrative/secretarial/supervisory work and
farming work. Her
work history included sedentary to very heavy demand, ranging from
semi-skilled to skilled work from an assistant
level to a management
level. She was a motivated high-performing individual with strong
physical capability and good managerial
qualities that could be
applied in various industries. Functional Capacity Evaluation now
indicates residual physical limitations
related to her spine and
right leg. She now meets the physical demands of work in the light
category, as well as aspects of medium
work. But, in order to
preserve the cervical spine, right knee and right ankle she must
refrain from doing work that exceeds light
physical demands and from
long static posturing. Her physical ability is said to be no longer
in keeping with the pre-accident
work history. She is no longer
suited to farm work or manual labour work. The work she can now do
must not put strain to her neck,
upper limbs or her right knee and
ankle. Even following successful interventions, she will no longer
return to her pre-accident
level of physical ability.
[7]
The plaintiff is presently employed in a
sympathetic position working for Claassen Makelaars doing general
administrative duties,
including booking of appointments, loading
claims onto the system and responding to emails and telephone calls.
She works flexi
hours - 3 to 4 hours intermittently
per
day and most of her work is computer
based/telephonic communication. She has to take frequent brakes, due
to excessive neck pain,
right shoulder pain and right leg pain. She
cannot work more than 30 to 40 minutes at a time. She did not report
anticipated changes
to her work situation and seems to be coping as
best she can in her current situation given her level of pain and
discomfort. One
of the findings of the occupational therapist is that
the plaintiff may be best suited to working flexi-time from home as
she is
currently doing.
[8]
The industrial psychologists in their joint minutes opine that the
plaintiff would
have continued working until the age of 65 years. But
for the accident she would have continued working as an assistant at
First
Potato Dynamics and by 2014 would have secured a position as a
manager, as the work was in line with her passion and experience.
[9]
The industrial psychologists are, however, not agreed as to whether,
post morbid,
the plaintiff would be able to continue work until
the age of 65 years taking her compromised situation into account. In
the opinion
of her industrial psychologist, the plaintiff will only
be able to work until the age of 60 years and that is if she
continues
working at Claassen Makelaars because the compulsory age of
retirement at this place is 60 years. The contention is that due to
her compromised situation she can only now be employed
sympathetically in order to accommodate her limited capabilities.
[10] The
defendant's industrial psychologist is, however, of the opinion that
even given her compromised
position, the plaintiff can still work
until the age of 65 years.
[11] By agreement
between the parties the following heads of damages are not in
dispute:
11.1
Past medical and hospital expenses in
the amount of R180 535, 48;
11.2
Future medical and hospital expenses: an
undertaking in terms of section 17 (4) of the Road Accident Fund Act,
is to be furnished
to the plaintiff; and
11.3
General Damages in the amount of R870
000.
What
remain in dispute are only damages for loss of earnings/earning
capacity.
[12]
In conceding that the amount of R870 000
for general damages is fair and reasonable, the defendant's counsel
referred me to a number
of judgments in support of her argument. The
said judgments are:
Siwayi v MEC of
Health
[1]
where a female claimant was awarded
R250 000 in 2018 which translates presently to R253 923;
Walter
v Minister of
Safety
and
Security
[2]
where in 2012 an amount of R185 000 which today translates to R263
269 was awarded and
Mart v Minister
of Police
[3]
where in 2013 an amount of R200 000
which translates to R269 019 in the present, was awarded.
[13]
Counsel's contention was that it is
trite that when looking at cases courts look at the totality of facts
and do not award piecemeal.
As such, the totality of the injuries and
sequelae
are
taken as a whole and a global amount awarded. Therefore, the injuries
sustained by the plaintiff, future possibility of surgery,
the
constant pain and the continued psychotherapy that she must undergo
to treat the psychogenic shock should be taken as a whole
in awarding
the damages.
LOSS OF EARNINGS
[14]
The actuary has made calculation based
on the opinion of the industrial psychologists. The calculations are
on two bases. The calculations
in Base 1 are in the event the
plaintiff retires at the age of 60 years whereas Base 2 is in case
she retires at the age of 65
years. The parties are in dispute in
this regard. The contingencies applied to the calculations both
pre-morbid and post-morbid
are uncontested and accepted as reasonable
in the circumstances.
[15]
The basis of the calculation, which is
also uncontested, is founded on the fact that but for the accident
the plaintiff should have
been appointed a farm manager and earned
more than what she is presently earning and that she is no longer
able to be employed
on a full time basis.
[16]
The argument by the plaintiff's counsel
is that Base1 is more reasonable between the two and if not the
average between the two
Bases should be applied. T e contention being
that the plaintiff is employed where the compulsory age of retirement
is 60 years
and there are no indications that she might find
employment elsewhere given her compromised status. To the contrary,
the defendant's
counsel argues that it is probable that the plaintiff
can be employed until she retires at the age of 65 years. I am more
inclined
to accept the argument that the plaintiff will work until
the age of 60 years. Like the plaintiff's counsel notes, the
plaintiff
is presently employed where she will be forced to retire at
the age of 60 years and from the available evidence, there is no
indication
that she will find alternative work somewhere where she
can be sympathetically employed and work until she retires at the age
of
65 years. The defendant's counsel, on a question from the bench,
was unable to advance any argument which could indicate the
probability
of the plaintiff being employed elsewhere other than
where she is currently sympathetically employed.
[17]
I am, therefore, satisfied that the
plaintiff is entitled to the amount stated in Base 1 of the actuarial
calculations. But, on
consideration that the calculations are broadly
speculative, it is my view that the average amount between the two
base calculations
ought to be awarded to compensate the plaintiff for
loss of earnings. The plaintiff is, thus, entitled to the following
award in
total:
General Damages
R 870 000
Past medical and hospital expenses
180 535, 48
Loss of earnings/earning capacity
4 290 782, 50
Total
5 341 317, 98
In
addition, and as offered, the defendant must furnish the plaintiff
with a section 17 (4) certificate for all future medical and
hospital
related expenses.
[18]
In the circumstances I make the
following order-
1.
The Draft Order marked 'xx' is made an
order of court.
E.M KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for Plalntiff
: Adv. M. Fourie
Instructed
by
: Jaco Roos Inc
Attorney
for Defendant
: Adv. J. Rabaji
Instructed
by
: Maluleke Mslmang & Associates
Date
heard
: 10 May 2019
Date
of judgment
: 22 May 2019
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number:
88979/2015
22
ND
OF MAY 2019
Before:
Honourable Ms. Kubushi J
In
the matter between:
AMANDA
BOSTELMANN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
ORDER
After
hearing the legal representatives of the parties, an order is hereby
granted in the following terms:
1.
The Defendant is ordered to pay the
capital amount of
R5 341 217,98
(Five Million Three Hundred
and Forty One Thousand Three Hundred and Seventeen Rand Ninety Eight
Cents)
to
the Plaintiff's Attorneys of record (Jaco Roos Inc.) on or before the
5
TH
OF JUNE 2019 the details of which are as follows :-
Account holder:
Jaco
Roos Incorporated
Bank:
ABSA Bank
Branch:
Menlyn
Pretoria
Branch
Number:
632 005
Account
Number:
[….]
VENDOR
NUMBER: 6031055
Type
of account:
Trust account
Reference
No.:
Ms
M Labuschagne/81536
2.
Should
the Defendant fail to pay the said amount to the Plaintiff as ordered
above, the Defendant will be liable to pay interest
to the Plaintiff
on the said amount at a rate of 10.00% per annum, calculated from the
date of the Order to the date of payment
thereof;
3.
The
Defendant is ordered to, on or before the 28
TH
OF JULY 2019, provide the Plaintiff with a written undertaking in
terms of section 17(4)(a) of the Road Accident Fund Act, 56 of
1996,
for 100% for the costs of the future accommodation of the Plaintiff,
in a hospital or nursing home or treatment of or rendering
of a
service to her or supplying of goods to her arising out of the
injuries sustained by her in the motor vehicle collision that
occurred on the 19th of April 2013, in terms of which undertaking the
Defendant is obliged to compensate the Plaintiff in respect
of the
said costs after the costs have been incurred and upon proof thereof;
4.
The
Defendant is ordered to pay the Plaintiff's taxed or
agreed
party and party costs on the High Court scale, which costs shall
inter alia
include
but not limited to and subjected to the discretion of the Taxing
Master: -
4.1
The
costs consequent upon obtaining all the medico legal reports and
addendum medico legal reports of the Plaintiff's experts, namely:
4.1.1
Dr T Enslin (Serious Injury
Assessor);
4.1.2
Dr HB Enslin (Orthopaedic
Surgeon);
4.1.3
Alison Crosbie (Occupational
Therapist);
4.1.4
Dr M Mazabow (Neuro
Psychologist);
4.1.5
Dr DA Shevel (Psychiatrist);
4.1.6
Dr L Berkowitz (Plastic and
Reconstructive Surgeon);
4.1.7
Anthony Townsend (Clinical
Psychologist);
4.1.8
Dr R Blumenfeld
(Ophthalmologist);
4.1.9
Louis Linde (Industrial
Psychologist);
4.1.10 Algorithm (Actuary);
4.2. The reasonable and
necessary preparation, qualifying, and reservation fees
(if any),
which will
inter alia
include:
4.2.1 fees in respect of
consultations between Plaintiff's experts and Defendant's experts in
respect of preparing joint
minutes as well as addendum joint minutes
(if any);
4.3
The
necessary costs for drafting and attending to the PAJA application(s)
inclusive of Counsel's costs relating theret o;
4.4
The
necessary costs for drafting the RAF 5 Aff idavit and compiling of
bundles and submission thereof in triplicate to the HPCSA,
irrespective of the outcome of the General damages claim;
4.5
The
Plaintiff is declared a necessary witness to the trial;
4.6
The
reasonable taxable costs of transportation, calculated at the AA
rate, of the Plaintiff to attend the consultation with Plaintiff's
attorney and Advocate for preparation of trial and for the trial
date;
4.7
The
reasonable taxable costs of transportation, calculated at the AA rat
e, and accommodation
(if any)
of
the Plaintiff to attend all medico legal examinations (Plaintiff' s
and Defendant ' s experts);
4.8
The
costs of and consequent to the holding of all pre-trial conferences,
including counsel's fees in respect t hereof;
4.9
The costs of and consequent to the Plaintiff's trial bundles (with
all annexures to Notices) and
witness bundles (with all annexures to
bundles), including the costs of FIVE (5) copies thereof;
4.10
The
costs attendant upon the obtaining of payment of the amounts and
undertaking referred to in this order;
4.11
The
fees of Senior-junior Counsel ;
5.
It
is noted that there exists no contingency fee agreement between the
Plaintiff and her Attorney of Record (Jaco Roos Inc).
BY
ORDER
REGISTRAR
ADV
FOR PLAINTIFF
:
ADV M FOURIE
- 082 5658088
ATTORNEY
FOR PLAINTIFF :
ME LABUSCHAGNE - 082 376 2545
ADV
FOR DEFENDANT
:
ADV J RABAJI - 081
222 3344
ATTORNEY
FOR DEFENDANT :
MALULEKE MSIMANG & ASS
(012) 323 3832/4
[1]
QOD 7 K3-26.
[2]
QOD 6 K3-11 .
[3]
4/2013 QOD 16 K3-24.