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[2019] ZAGPPHC 1079
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Malaza v Road Accident Fund (92060/16) [2019] ZAGPPHC 1079 (29 May 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 NO: 92060/16
In
the matter between:
NOMPUMELELO
ULANDA MALAZA
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
NEUKIRCHER
J;
1.
On 6 January 2016 the plaintiff was a passenger in a motor vehicle.
The driver lost control and the vehicle rolled over several times and
stopped on its roof. The plaintiff had a brief period where
she
cannot remember what happened, but she recalls that people came to
turn the vehicle back on its wheels and she was then taken
out of the
vehicle. She experienced a lot of chest pain and when ambulance
arrived she was taken to Linmed Hospital.
2.
Upon examination, it appeared that she suffered a) a cervical
spine
injury
[1]
b) a chest injury
[2]
and c) a thoracic spine injury
[3]
.
She was treated conservatively and discharged with pain tablets.
3.
After approximately 4 days she returned to Linmed Hospital as
her
pain was severe. A CT scan discovered spinal fractures and so she was
admitted to Arwyp Hospital for 4-5 days and then discharged
with a
brace.
4.
In September 2017 the plaintiff sustained a gunshot injury to
the
left leg and has to use a crutch to
walk.
5.
As a result of her injuries:
5.1
she has become forgetful;
5.2
she gets headaches almost every day and pain tablets do not
always
alleviate the pain;
5.3
she has intermittent pain and the lower rib cage bilaterally;
5.4
she has daily pain on her thoracic spine - lifting weights
or bending
down gives her pain; household work is painful and when she walks for
long her pain increases.
6.
At the time of the accident the plaintiff was 27 years old (she
is
now 31) and was employed as an intern as Ekurhuleni Municipality
where she was on a 3-year contract from September 2013 - September
2016 and earned R2 500 per month. At present she is a loan consultant
at Barko Financial Services. She's been employed there since
her
previous contract ended in 2016. Her present employment entails that
she must travel to various areas and walk around to recruit
new and
potential clients for loans. If someone is interested in applying for
a loan they then accompany her back to the office
to complete the
necessary documentation and if the approval is granted, she captures
the client's information onto the system.
She also has to track down
clients who have skipped their installments which sometimes entails
her having to travel to their work
or home to collect the money. She
also markets products to clients.
7.
According to the reports, the plaintiff’s work requires
her to
walk and stand for prolonged periods and she also h s to sit for
extended periods. She complained of:
7.1
constant and chronic back pain;
7.2
problems with concentration and memory which result in
her taking
longer to complete tasks and she also makes mistakes.
8. The
plaintiff earns a basic salary of R3 500,00 plus commission and
between
October 2018 and March 2019 earned an average monthly salary
of R 7 266,12. According to the branch manager, the plaintiffs
commission
has decreased over the past few months. She noted that the
plaintiff struggles with pain which is sometimes so severe that she
battles to stand, she makes mistakes, loses focus on what she's doing
and she's off work regularly due to the back pain. She also
confirmed
that there are no lighter duty posts available for the plaintiff to
be accommodated into.
9. It
does however appear that the plaintiffs employer is sympathetic to
her
situation. On the reports that are before me, there is no
evidence that the plaintiff is in danger of losing her employment.
The
company’s age of retirement is 65 years.
10.
The two issues to be decided in this matter are:
10.1
the quantum of general damages to be awarded to plaintiff; and
10.2
the contingencies to be applied in respect of the plaintiffs loss of
earnings.
General damages
11. Mr
Leopeng (for plaintiff) submitted that at present the plaintiff is
sympathetically
employed and that If she loses her employment she may
not cope with any other occupation which requires prolonged standing,
walking,
lifting and working in a bending position as it aggravates
her symptoms. She will thus find it difficult to secure alternative
employment
[4]
.
12. Mr
Loepeng has pointed out that his experts
[5]
have diagnosed a mild traumatic head injury together with a thoracic
spine injury and that the neurosurgeon puts the possibility
of
surgery at 5%-10% whereas the orthopedic surgeon says "she has a
definite possibility for surgery (in her total lifespan)".
13.
However, as Mr Phiri (for defendant) pointed out, the plaintiff's
only restricted
activity is running and the plaintiff will be able to
undertake light work. He has submitted that the plaintiff's experts
are agreed
that the compression fractures of the thoracic spine have
healed and plaintiff is left with chronic back pain and kyphosis. The
treatment recommended is conservative.
14.
He submits that the psychologist holds the view that the plaintiff
has considerable
tension and anxiety and needs psychotherapy to
address the accident-related pain, discomfort and emotional distress.
15.
The plaintiffs industrial psychologist is of the view that she would
have reached
her career ceiling at the age of between 50 and 53
earning 1 to 2 Paterson levels lower than what she would have earned
pre-accident.
16.
Taking all the above into account, Mr Leopeng submits that a fair and
reasonable
amount for general damages is R650 000,00. He bases his
argument on two unreported decisions of
Kannenberg
v RAF
[6]
and
Mkhonta v RAF
[7]
.
17.
In
Kannenberg,
the
plaintiff sustained the following injuries: lacerations to the left
ear; a compression fracture of the L1 lumbar spine, type
II clavicle
fracture of the left side and psychological fall-out, depression,
anxiety and PTSD.
18.
As a result of his injuries:
18.1
the left L1 compression fracture measured 45% and the total loss of
anterior
body height measured 30%;
18.2
there was a concerning non-union of the left clavicle, resulting in a
distal
fragment of approximately 1.5cm in very close proximity to the
AC joint;
18.3
the plaintiff had an impairment of back movements, with tenderness
localizing
in the thoraco-lumbar junction with muscle spasms;
18.4
the plaintiffs left upper arm exhibited atrophy of 3cm;
18.5
the plaintiff had a 15% loss of work capacity but would be able to
continue
working in a light physical or administrative capacity;
18.6
the plaintiff had significant lumbar pain which may be aggravated by
his emotional
mood and psychological state;
18.7
the plaintiff suffered from PTSD, panic attacks, anxiety, depression,
over
use of alcohol and cannabis and a general state of
unhappiness and despair which had led to a loss of socialization and
significant
difficulty with sleeping.
19.
An award of R625 000 general damages was made
[8]
.
20.
In
Mkhonta,
an
award of R950 000
[9]
was made where plaintiff suffered the following injuries:
20.1
an intra-articular fracture on the left wrist;
20.2
an injury to the cervical spine, lumbar spine and left hand;
20.3
an injury to the left crista iliaca;
20.4
a minor concussive head injury.
21.
As a result of his injuries, the plaintiff:
21.1
had noticeable and unsightly scarring of the left forearm and right
dorsal hand;
21.2
had a 3cm scar over the forehead and suffered post traumatic
headaches;
21.3
suffered a post traumatic epilepsy complex partial, which was
composed of episodic
impairment of consciousness i.e. episodic memory
impairment, recurrent episodes of bizarre behavior, recurrent
episodes of speaking
irrelevantly and recurrent episodes of amnesia;
21.4
had moderately severe sensor neural hearing loss on the right and
mixed hearing on
the left;
21.5
suffered from neuro-cognitive and neuro-psychological deficits.
22.
Mr Phiri submits that, the factors of this case warranted an award of
no more
than R450 000,00. This submission is made given the awards
made in
Shongwe v RAF
[10]
and
Vukeya v RAF
[11]
.
23.
In
Shongwe v RAF
the
plaintiff sustained a compression fracture of the T8 thoracic
vertebrae and contusions and lacerations on the head with loss
of
consciousness. She had shock and psychological trauma, pain in the
spinal cord and was unable to walk or stand of lengthy periods
of
time and could not sit for long. She was awarded R300 000 (a present
day award of R434 000).
24.
In
Vukeya v RAF,
the
plaintiff sustained a mild to moderate frontal lobe head injury and
soft tissue injuries to the neck and lower back. She suffered
from
short term memory and personality impairment, chronic headaches and
depression. She had a substantial risk of losing her employment
and
not being able to find alternative employment.
25.
In the present matter, the plaintiff is able to do light to sedentary
work.
Her own experts state that with optimal intervention and pain
management, it is anticipated that she will experience improved
performance
and functioning although she will still need to be
accommodated.
26.
In my view given her injuries and loss of enjoyment of life, pain and
suffering
and given the authorities quoted to guide this award, I am
of the view that a fair and reasonable amount is the amount of R500
000,00.
Loss
of earnings (contingencies)
27.
Munro Forensic Actuaries has provided the calculation on loss of
earnings. Their
report is not in dispute. They have calculated the
plaintiffs pre-morbid loss of earnings of R4 124 900,00
28.
The parties are further agreed that a 15% contingency should be
applied to this
calculation which puts plaintiff pre-morbid loss at
R3 506 165.00.
29.
As the post-morbid contingencies: Mr Leopeng submits that this should
be 60%
which is in line with Weiner J's judgment in
De
Melin v RAF
[12]
.
30.
In
De Melin
,
the plaintiff continued to be employed in the family business despite
the fact that he'd suffered a significant head injury and
as a result
suffered on going neurocognitive and psychological sequelae. The
parties were agreed that the neurological damage
was permanent and
that the plaintiff was at the time sympathetically employed but
unemployable in the open labour market. A post
morbid
contingency of 60% was as a result of all the facts of that matter,
applied.
31.
In
Mkhonta v RAF
a
contingency of 20% was applied and in
Kannenberg,
45% .
32.
Mr Phiri submitted that given the fact that treatment is likely to
contribute
positively to plaintiffs physical and psychological
wellbeing and given the facts of Carstens v RAF
[13]
,
Tobias v RAF
[14]
and Titus v RAF
[15]
a contingency of 20% should be applied which would then put the
plaintiff's loss of earnings at R824 980.00.
33.
It is clear that the plaintiff is experiencing difficulties at work
as a result
of the
sequelae
of
the accident and that her employer is, at present, accommodating her.
She is thus undoubtedly in sympathetically employment.
There is no
indication that she will lose her employment but given her
difficulties in walking, standing or even sitting for long
that is
always a risk. I also take cognizance of the fact that with optimal
interventions and pain management, the plaintiff's
quality of life
may very well improve. I am thus of the view that a 30% contingency
should be applied which puts the plaintiffs
loss of earnings at an
amount of R1 237 470.00.
34.
Thus the quantum of damages awarded to the plaintiff is
34.1 R500 000.00 in
respect of general damages; and
34.2 R1 237 470.00 in
respect of future loss of earnings.
35.
The parties have handed me an agreed to draft order (leaving the
award open).
I have completed it and will make that an order.
ORDER
The Draft Order marked "X"
is made an order of court.
NEUKIRCHER J
Date
of hearing: 22 May 2019
Date
of judgment: 29 May 2019
“
X”
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE: 92060
/
2016
BEFORE
THE HONOURABLE JUDGE NEUKIRCHER
PRETORIA,
ON 29
th
DAY OF MAY 2019
In
the matter between:
NOMPUMELELO
ULANDA MALAZA
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
DRAFT
ORDER
HAVING
HEARD COUNSEL FOR BOTH PARTIES:
IT
IS ORDERED
THAT
:
1.
The Defendant is liable for
the Plaintiffs proven damages to the extent of 100% (one hundred
percent).
2.
2.1
The Defendant shall pay the plaintiff the sum of
R1 737 470-00
(One Million seven hundred thirty
seven thousand four hundred & seventy rand) in respect of Quantum
(General Damages and Loss
of Earnings) on or before the 11
th
June 2019.
2.2
Interest shall be charged on the Judgment amount at the current
prescribed rate per
annum calculated 14 (fourteen) days from date of
Judgment to date of payment.
2.3
The above amount shall be payable into the Attorney's Trust Account
as follows: -
Name of Bank: Standard Bank
Account Holder: Godi Attorneys
Account Number: [….]
Branch Number: 010145
Type of Account: Trust Account
Branch Name: Van Der Walt
Street (Pretoria)
2.4
The Defendant must furnish the Plaintiff with an Undertaking in terms
of Section 17
(4) (a) in respect of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home or
treatment of or rendering
of a service or supplying of goods to him
after the costs have been incurred and on proof thereof, resulting
from the accident
that occurred on the 06
th
January 2016.
2.5
The Defendant shall pay the Plaintiff taxed or agreed party and party
costs, as well
as, reasonable travelling costs incurred in
prosecution of this matter, which shall include the following: -
2.5.1
The costs of Counsel
2.5.2
The costs of obtaining medico-legal reports, which include
travelling, accommodation and substance fees
as well as for the
reservation and qualifying fees, if any, for all the experts that the
Plaintiff has attended to, including the
costs of the experts and
witnesses, if any.
2.6
The Plaintiff shall serve the notice of taxation on the Defendant's
attorneys of record.
2.7
The Plaintiff shall allow the Defendant 14 (fourteen) Court days to
make payment of
the taxed costs.
2.8
There is no contingency fee agreement signed between the Plaintiff
and his Attorney.
BY
THE COURT
REGISTRAR
COUNSEL
FOR THE PLAINTIFF:
ADVOCATE LEOPENG
-
083 665 1466
ATTORNEY
FOR THE
DEFENDANT:
ADVOCATE PHIRl-079 186 0575
[1]
Of which there are no current complaints
[2]
Of which there are no current complaints
[3]
According to the Neurosurgeon, Dr Okolf, she also suffered a head
injury,
[4]
Per the opinion of the occupational therapist
[5]
The psychologist, the orthopedic surgeon and neurosurgeon.
[6]
Case no 45549/19 (20/8/2018) GP
[7]
Case no 20703/12 (29/3/2018) GP
[8]
Based on a similar judgment of Ramolobeng v Lowveld Bus Services
case no 29836/2009 (North Gauteng High Court)
[9]
Before contingencies were applied
[10]
2015 7C4 QOD 1 GP
[11]
2014 7B4 QOD 1 GNP
[12]
Case no 2010/19802 (18/11/2013) GJ
[13]
2014 7F2 QOD 1
[14]
2011 6B4 QOD 65
[15]
5C and BE7-9 and In Makuapane v RAF case no 2012/12871 (10/4/2015)
GJ. 25% post- morbid contingency was applied