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[2019] ZAGPPHC 346
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Wate v Road Accident Fund (10597/2015) [2019] ZAGPPHC 346 (17 July 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case Number: 10597/2015
17/7/2019
In
the matter between:
ANTONIO
GABRIEL WATE
Plaintiff
and
THE ROAD ACCIDENT FUND
Defendant
JUDGMENT
DU
PREEZ, AJ:
INTRODUCTION:
1.
The
plaintiff, Mr. Antonio Gabriel Wate, and the defendant, the Road
Accident Fund, both duly presented by attorneys and counsel,
agreed
that this
quantum
trial
[1]
should proceed on the evidence contained in the discovered
documentation and the expert reports, without adducing oral evidence.
2.
The
parties' respective counsel referred the court to the relevant
excerpts from these documentation and reports and presented argument
In respect thereof.
BACKGROUND:
3.
On
29 November 2012 and on the R30 Road between Klerksdorp and
Bothaville, the plaintiff, who was a passenger in a motor vehicle
with registration letters and number [….]
(“the
tax”)
driven by Mr J Bomdzela,
was injured when the taxi collided with a motor vehicle with
registration letters and number [….].
[2]
4.
In
the plea,
[3]
the defendant denied that the plaintiff suffered the following
injuries during the collision:
[4]
4.1
Fractured ribs and contused chest on the
right side with pulmonary contusion;
4.2
Right femur fracture;
4.3
Aneamia due to blood loss;
4.4
Deep laceration of lower lip;
4.5
Knee injury.
5.
Eventually,
the only dispute in this regard was whether the plaintiff had in fact
sustained the knee injury as alleged and whether
the plaintiff had
suffered a loss of earnings as a result thereof
6.
The
matter was enrolled for trial on 30 April 2019, but postponed to 3
July 2019 and the cost were reserved.
7.
The
parties differ as to the reasons why the matter was postponed, which
aspect is addressed more fully
infra.
THE
ASPECTS THAT THE COURT HAS TO ADJUDICATE UPON:
8.
The aspects that the Court has to
adjudicate upon, are the following:
8.1
Whether the plaintiff had indeed
sustained the knee injury;
8.2
If the plaintiff had sustained the knee
injury, whether he had suffered a loss of earnings as a result
thereof;
8.3
If the plaintiff had suffered damages as
a result of the knee injury, the
quantum
of such loss of earnings; and
Who has to 'pay the costs of suit, including the costs
occasioned by the postponement on 30 April 2019?
DID
THE PLAINTIFF SUSTAIN A KNEE INJURY AS ALLEGED?
9.
The
defendant's counsel relied on the following evidence in support of
the defendant's denial that the plaintiff had sustained a
knee
injury:
9.1
The operational notes of the surgeon, Dr
Redelinghuys, who operated on the plaintiff after the accident and
which refer to the femur
fracture, but not to any knee injury.
9.2
The report of Or OF Malherbe, a
diagnostic radiologist at Drs Verster & Partners Inc, dated 12
June 2012, which mentions the
femur injury, but not any knee injury.
In fact, the report describes the knee as within normal parameters.
9.3
The medico legal report by the
defendant's expert orthopaedic surgeon, Dr BE Ramasuvha, which was
compiled after an examination
the plaintiff on 27 May 2016. This
report states that the plaintiff had sustained injuries to the right
distal femur and chest.
Although there is an entry under the heading
"PRESENT COMPLAINTS" that the plaintiff experiences pain in
the right knee
when "waking up from bed", there is no
diagnosis of any knee injury as such.
9.4
The report of the defendant's diagnostic
radiologist, Dr F Ismael of Drs Mkhabele & lndunah Diagnostic
Radiologists Inc, who
examined the plaintiff on 27 May 2016, and
according to which the right knee x-rays show no fractures and that
the medial and lateral
compartments of the knee joint are normal.
9.5
A clinical neuropsychological report of
a clinical psychologist, Dr HJ Swanepoel, dated 9 November 2016, that
does not mention any
knee injury;
9.6
The report of the orthopaedic surgeon,
Dr JF Ziervogel, dated 12 June 2014, which states that the x-rays of
the right knee, do not
show any clear indication of an injury;
9.7
The report of a specialist Physician, Dr
G. Promnitz, dated 14 July 2016, who opined that the accident would
not have interfered
with the plaintiff's ability to perform his
occupation, as evidenced by his subsequent return to work in the same
line of employment.
10. The
defendant’s denial that the plaintiff had suffered a knee
injury, is refuted by the
following uncontested evidence:
10.1
Dr. Promnitz's report which;
10.1.1
Pertinently states that the plaintiff
had sustained a fracture to his right femur and
injured
his right knee;
10.1.2
Opines that as a result of
the
knee injury,
the plaintiff will be
prone to the development of osteoarthritis in the knee;
10.1.3
Defers the above to that of an
orthopaedic surgeon.
10.2
The diagnosis by an orthopaedic surgeon,
Dr JF Ziervogel, in his said report that until proven otherwise, the
plaintiff suffers
from an injury to the meniscus (which diagnosis has
not been disproved);
10.3
The diagnostic outcome that the flexion
of the plaintiff's right knee is significantly restrained, as it
appears from, among others,
the reports of Drs JF Ziervogel and BE
Ramasuvha.
11.
The Court therefore finds that the
plaintiff did sustain an injury to his right knee.
DID THE PLAINTIFF SUSTAIN A LOSS OF
EARNINGS AS A RESULT OF THE KNEE INJURY?
12.
The
defendant contended that even if the plaintiff's right knee was
injured in the accident, it did not cause the plaintiff's incapacity
to do certain work, because the plaintiff had previous injuries, to
wit a fracture of his left forearm in 2001 and a back injury
(L1 - 2
fractures) during 2008, which caused his inability, among others, to
lift heavy objects.
13.·
Although the plaintiff's occupational therapist was aware of these
previous injuries,
[5]
she still concluded that:
[6]
13.1
The accident caused a reduction in the
plaintiff's physical capacity;
13.2
The plaintiff Should be advised to limit
tasks which put stain on his knee and not to be crawling on such a
frequent basis as he
is currently doing in the mine;
13.3
The plaintiff is at
risk
of losing his job due to the
pathology in the knee;
13.4
Following the proposed
knee--replacement, the plaintiff will no longer be suitable for any
work in the mine and that he will most
probably not pass his medical
examination to obtain his red ticket to work on the mine;
13.5
The plaintiff is best suited for work of
a light physical nature which does not require the handling of medium
or heavy weights
or high mobility demands;
13.6
It appears as if the accident had ended
his mining career prematurely;
13.7
It is unlikely that the plaintiff will
be accommodated in a surface job, as he does not have the necessary
skills;
13.8
The plaintiff will most likely need to
retire early;
13.9
The plaintiff has become an unequal
participant in the open labour market compared to his uninjured
peers.
14.
The defendant's occupational therapist's
report indicated that the plaintiff had no previous fractures, which
information was obtained
from the plaintiff, but deferred the full
and comprehensive information regarding the plaintiffs medical
history, to the relevant
experts.
[7]
15.
This expert further deduced, among
others, that:
[8]
15.1
The plaintiff
"has
a
decreased
weight bearing tolerance on
his
right knee
"
(own
emphasis);
15.2
The plaintiff is a compromised employee
as an underground miner;
15.3
The pain in the plaintiff's
"right
lower limb
is
a
barrier with regards
to
efficiency, effectiveness and job
enjoyment
(own emphasis).
16.
It follows that the knee injury that the
plaintiff sustained, decreased his capacity to work and he suffered
damage as a result
thereof.
THE
QUANTUM
OF THE PLAINTIFF'S LOSS OF EARNINGS:
17.
It
is unnecessary to cite to the relevant case law and legal principles
pertaining to the quantification of the plaintiffs claim,
save to
state that:
17.1
In computing general damage, a number of
factors play a role, among others, the extent of the harm (which is
usually a function
of the nature, intensity and duration of the
harm), the specific purpose of the award, general considerations of
equity and parity
with previous awards.
[9]
17.2
Whether contingencies should be applied,
and in what percentage, is directly linked with the amount the Court
considers just in
respect of compensation.
[10]
17.3
The amount to be awarded as
compensation, can only be determined by the broadest general
considerations and the figure arrived at
must necessarily be
uncertain, depending upon the judge's view of what is fair in all the
circumstances of the case.
[11]
17.4
The Court has a large discretion to
award what the Court considers right.
[12]
17.5
The rate of the discount cannot be
assessed on any logical basis and is largely arbitrary and depends
upon the trial judge's impression
of the case.
[13]
18.
The plaintiff's actuaries calculated the
capital value of the plaintiffs loss of earnings (without any
contingencies having been
applied) as R2,160,100.00, comprised as
follows:
Uninjured
Injured
Loss of
Earnings:
Earnings:
Earnings:
Past
(until 28/2/2014)
R
223 ,500
R210,300
=
R
13,200
Future
R2,146,900
R
=
R2,146,900
TOTAL:
R2,160,100
19.
The plaintiff's counsel proposed that
the following contingencies should be applied:
19.1
5% in respect of the past loss of
earnings;
19.2
7,5% in respect of the future uninjured
earnings;
19.3
60% in respect of the future injured
earnings.
20.
The plaintiffs counsel motivated the 60%
contingency in respect of the future injured earnings, among others,
as follows:
21.
The plaintiff is already not suited for
his current position and should only do light
work;
22.
He will most probably have to retire
prematurely;
23.
He is unable to earn any other income;
24.
He is effectively unemployed;
25.
He is still working, whilst he does not
have the capacity to do so.
26.
The defendant's counsel did not make any
submissions regarding contingencies.
27.
After
having read the papers, listened to the submissions of both parties'
counsel, considered the relevant facts of the case (such
as the
plaintiffs age, his qualifications, employment history, the injuries
sustained and the prognosis in respect thereof, his
past and future
earning capacity and the opinions of the expert witnesses) and the
applicable legal principles and case law, this
Court opines that:
27.1
The plaintiffs actuaries' undisputed
calculation of the capital value of the plaintiff's toss of earnings
(without contingencies
having been applied) in the amount of
R2,160,100 should be accepted as the basis of the plaintiffs loss in
this regard;
27.2
The contingencies proposed by the
plaintiff's counsel of 5% and 7,5% in respect of past loss and
uninjured income respectively,
seem reasonable;
27.3
A contingency of 60% in respect of the
future injured earnings is, however, too high, especially having
regard to the fact that
the plaintiffs own occupational therapist
reported that the plaintiff displayed self-limiting behaviour (which
means that the plaintiff
stopped the task before a maximum effort was
reached) during testing.
27.4
Under the circumstances, a contingency
of 50% in respect of future injured earnings, is more appropriate;
27.5
Such a contingency takes into account
the fact that the plaintiff is still employed and may remain in that
position, but also allows
for the possibility that he may be rendered
unemployable if he should lose his employment.
[14]
28.
If these contingencies are applied, the
plaintiff has suffered a total loss of earnings in the amount of
R924,972.50, comprised
as follows:
Past loss of earnings:
R
13,200- 0,5%= R 12,540.00
Plus: Future uninjured loss of earnings:
R2,146,900- 7,5% = R1,985,882.50
Less: Future injured loss of earnings:
R2,146,900 - 50% = R1,073,450.00
TOTAL
=
R
924,972.50
COSTS:
29.
The
reserved costs of the previous set down on 15 May 2019 remain in
dispute.
30.
The
parties' legal representatives have two irreconcilable versions as to
what transpired and what caused the postponement and each
party
submitted that the other party had to pay such costs.
31.
The
Court has a wide discretion as to costs, and having considered all
relevant factors, it is just that the costs occasioned by
the said
postponement, should follow the event.
ORDER:
32.
The Court consequently grants an order
in terms of the draft order (as amended to include the said damage
amount of R924,972.50)
marked
"X".
DB
DU PREEZ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
12 JULY2019
Counsel
for the plaintiff:
ADV A NELL
Instructed by: KRITZINGER ATTORNEYS
(Correspondent
of PODBIELSKI MHLAMBI INC)
Counsel
for the defendant:
ADV
D MASHAU
Instructed
by:
MKHONTO & NGWENYA
[1]
The merits having been settled as per draft order dated 21 November
2016.
[2]
Particulars of Claim, paras 3 & 4.
[3]
Plea, para 5.
[4]
Particulars of Claim, para 6.
[5]
Gail Vlok's Medico-Legal Report of 21 June 2019, paras 19 20, p 412.
[6]
Id, paras 117 - 120, p 436.
[7]
NE Thembo's report, para 4, p 255.
[8]
Id, para 12, p 262.
[9]
Du Bois (et al),
Wille's Principles of South African Law,
9
th
E d, p 1164; Neethting (et al),
Delict ,
5
th
Ed,
pp 230 - 232.
[10]
Van Ghent v Road Accident Fund
[2017 ZAFSHC 187
[11]
Sandler v Wholesale Goal Suppliers Ltd
1941 AD 194
199 .
[12]
Legal Assurance
Co
Ltd v Botes
1963 (1) SA 608 (A)
614F
[13]
Van der Plaats v
SA
Mutual Fire
&
General
Assurance
Co
Ltd
1980 (3) SA 105
(A) 114 - 115.
[14]
Advocates Syaed N.O. (Curator ad /Item of RR Rigney)
v
RAF[2016] ZAGPPHC 1112 [16].