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[2019] ZAGPPHC 330
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Magwatane v Road Accident Fund (42070/14) [2019] ZAGPPHC 330 (26 July 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: 42070/14
In
the matter between:
G.M.
MAGWATANE
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
This is an
action wherein the Plaintiff claims damages arising from injuries
sustained by her in a collision which occurred on 30
October 2009. At
the time of the collision, the plaintiff was a passenger in motor
vehicle bearing registration letters and numbers
[….].
2.
In the
particulars of claim at paragraph 6 thereof, the Plaintiff alleges to
have sustained the following injuries:
2.1
A soft tissue injury to her left knee and ankle;
2.2
A soft tissue injury to the lumbar spine and left hip and a
concussive head injury;
2.3
A laceration above her left eye.
3.
Furthermore,
at paragraph 8 of the particulars of claim, the plaintiff alleges as
follows:
“
As a result of the
aforesaid injuries Plaintiff has suffered damage and is entitled to
damages in the sum of R1 625 000, 00
made up as follows:
3.1
Past medical/ Hospital expenses R5 000, 00
3.2
Future medical expenses-Undertaking in terms of Section 17(4) (a) Act
56 of 1996
3.3
Past and future loss of earning capacity R1 100 000, 00
3.4
General Damages R 310 000, 00”
4.
At the
commencement of the proceedings and at the request of the parties,
the court was requested to record the following:
4.1
That
the issue of liability has become settled on the basis that the
Defendant shall pay 100% of the Plaintiff’s agreed or
proven
damages;
4.2
That
the Plaintiff’s claim in respect of general damages was
rejected by the Defendant and is to be referred to the Health
Professions Council of South Africa for adjudication;
4.3
That
the Defendant would provide the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Act, in settlement of the
Plaintiff’s claim in respect of her future medical expenses;
4.4
By
agreement between the parties the contents and correctness of the
medical legal reports prepared by the experts, were handed
in and
marked as exhibit B;
4.5
Furthermore,
the joint minutes prepared by the various experts were marked as
exhibit A.
4.6
The
parties by agreement also handed in the actuarial reports prepared by
the defendant’s actuary and the plaintiff agreed
with the
findings postulated in such reports. The reports were handed in as
exhibits C and D respectively.
5.
The
Plaintiff elected to testify and the parties were further in
agreement that they will merely argue the matter on the pleadings
and
the various expert reports filed of record without the need call such
experts.
DISPUTED
ISSUES
6.
This court
was called upon to determine the extent of the Plaintiff’s
future loss of earning capacity and the appropriate
percentage
contingency deductions to be applied.
EVIDENCE
7.
Ms
Magwatane testified that on the 30 October 2009, she was a passenger
travelling in a taxi when she met with an accident. At the
time of
the collision, she was asleep when the taxi rolled before it came to
a standstill. Immediately, thereafter all passengers
alighted from
the taxi through a broken window. Disorientated she decided to hike
back in the direction of Rustenburg. During the
commotion she lost
both her shoes and spectacles. As she was waiting for a lift the
police then arrived at the scene and an ambulance
was summonsed. She
was then taken to hospital, treated and discharged the same evening.
Later that evening she was unable to sleep
and still experienced some
flashbacks of the collision. She further testified that at the time
of the collision, she was attending
a Nursing Training College and
albeit that her examination was postponed by a week as a result of
the accident, she still managed
to write her examination that same
year. The following year she completed her studies although difficult
as she by now experienced
continuous headaches. Upon completing her
studies, she first took up employment at a private hospital but was
unable to meet the
strenuous demands of the job. She thereafter
resigned this position and took up employment at a public hospital a
position she
still holds today. It was also her testimony that
following the collision, she now experiences constant headaches. She
also intermittently
suffers from a swollen left ankle and knee which
gets aggravated when she stands for extended periods of time and also
suffers
from back pain from time to time. Following the
collision she has become more forgetful and finds the experience of
travelling
in a taxi very anxious. As a result of the collision she
now only work in the Children’s ward at hospital as the work in
that ward is less demanding given the constant pain which she
experiences and even in this ward her work is somewhat constrained.
By way of example she testified, that she is unable to lift up
heavier patients like older children, as she experiences severe
pain
when doing so. As a result of her forgetfulness which was
precipitated by the collision, she has received several warnings
from
her employer. As to her future career prospects she testified that
she intends taking up full time studies during 2019 as
she now wishes
to obtain a Diploma in nursing. During cross-examination, Ms
Magwatane once again confirmed that after the collision
she was
trying to hike in order to catch a lift but remained adamant that she
was still disorientated. She also confirmed that
had it not been for
the collision, that she would have been able to write her examination
as scheduled but as result of the collision,
her examination was
deferred. As to the demands of her job post collision, she
re-iterated that she had found the demands of her
job as very
challenging given the pain which she constantly experienced and as
she remains forgetful she regularly receive warnings
from her
supervisor. She testified that prior to the collision, that she
occasionally suffered from headaches but following the
collision,
that she now experiences headaches at least three times a week. She
once again confirmed that the reason that she left
the private
hospital, was not to merely seek better opportunities, but simply
that she was unable to cope with the demands made
on her within her
work environment. This then concluded her evidence.
EXPERT
EVIDENCE
8.
In
their joint minute, the Orthopaedic Surgeons recorded as
follows:
[1]
8.1
That
the Plaintiff remains symptomatic in respect of her lumbar spine,
left ankle and left knee. Dr Ngobeni was also informed by
the
plaintiff that following the collision that she intermittently
suffers from headaches.
8.2
Both
doctors were off the opinion, that the collision has not left the
plaintiff with serious musculoskeletal impairment and as
such she
does not qualify under the Narrative Test. The experts both opined
that the plaintiff sustained soft tissue injuries without
serious
complications, when she was involved in a motor vehicle collision on
30 October 2009.
8.3
In
as far as the plaintiff’s future employment is concerned, Dr
Enslin expressed as opinion, that the plaintiff will have
difficulty
in performing all the duties of an enrolled nurse until her normal
retirement age. He further expressed an opinion that
the plaintiff
would be best suited to perform light work such as working in the
Outpatient Department or in a Children’s
ward. As a result of
her symptoms in her lower back she has been left with limitations to
perform all the work tasks expected of
a nurse. The expert further
opined, that as a result of her injuries that the plaintiff has been
left unable to freely compete
in the open labour market.
8.4
Dr
Ngobeni however expressed an opinion, that the plaintiff at present
has no difficulty in performing her duties as a nurse and
is expected
to continue working as a nurse until her expected retirement age.
9.
The
Neuropsychologists in their joint minute made the following
observations:
[2]
9.1
The
experts were in agreement that prior to the collision, that the
plaintiff had not suffered from any serious illness and that
during
the collision, that she had not sustained any head injury.
9.2
They
were further of the opinion that pre-accident that the plaintiff was
not a psychological vulnerable individual.
9.3
Ms
Jonker further noted that given the plaintiff’s educational and
occupational background as well as her best test performances
conducted, that her results were expected to fall in the least
averages ranges.
[3]
9.4
They
further both agreed that post accident that the plaintiff displayed
difficulty across several domains on the neuropsychological
tests
conducted. In this regard each expert performed individual tests on
the plaintiff. As to the results of such tests conducted,
and a
discussion thereon, same appears in Exhibit B pages 25-26, 56-58 and
paragraph 66 respectively.
9.5
Both
experts were of the opinion that the plaintiff has been left with
pain to her left hip on an almost daily basis which pain
is being
aggravated by her sitting, standing or walking for long periods. The
experts also agreed that the plaintiff experiences
pain to her left
knee and left ankle on a regular basis which is aggravated whenever
she walks or stands for long periods or is
participating in physical
strenuous tasks. They further agreed that the plaintiff experiences
left-sided headaches several times
a week which is associated with
pain to her eye, blurred vision and dizziness.
9.6
The
expert further agreed that from a psychological point of view that
the plaintiff has been suffering from symptoms of Major Depressive
Disorder. Ms Jonker noted symptoms of a Posttraumatic Stress Disorder
and Ms Mabobo noted symptoms of anxiety which is exacerbated
by
ongoing physical limitations and pain.
[4]
9.7
As
far as the plaintiff’s employment prospects is concerned, the
experts agreed that the plaintiff’s performance in
her
workplace will be compromised by, amongst others her fluctuating
attention, resulting in inconsistent work output. Given her
psychological profile this is expected to result in a lack of
psychological endurance and resilience.
9.8
As
a result they were of the opinion, that the plaintiff will require
additional support at work, an understanding working environment
as
well as difficulties in progressing to more lucrative or executive
positions.
9.9
Ms
Jonker further opined that the plaintiff given her cognitive
fall-outs suggest that it will take her much longer and will require
more effort on her part to complete her current Diploma in Nursing.
She may furthermore, even abandon her studies, compromising
her
career trajectory.
9.10
The
experts further agreed that the plaintiff will benefit, from
supportive psychotherapy in order to address her psychological
difficulties. Ms Jonker further noted that the plaintiff’s
prognosis is compromised by the lack of timeous psychotherapeutic
intervention and the passage of time of eight years since date of
accident. She was as a result of the opinion that the plaintiff’s
prognosis is poor.
The Occupational
Therapists joint minute recorded the following:
[5]
The experts agree
that the plaintiff will need neurocognitive intervention to
compensate for her cognitive difficulties, cognitive
restraining and
compensation for altered cognitive abilities, working with
psychologists supporting their psychotherapeutic intervention
of her
mood disturbance. They further agree that the plaintiff will benefit
from elements of vocational rehabilitation, supporting
placement in
a situation where she can be optimally functional and avoid
discomfort to pain, due to postural and mobility difficulties.
Ms De
Vos in her report further expressed the opinion, that the
plaintiff’s tolerance and endurance level have been challenged
by the
sequelae
of the injuries sustained. The expert further recorded that
the plaintiff can no longer do her work as a nursing assistant
as
competitively as before and that she would require economic
intervention.
[6]
The experts
were importantly in agreement that the plaintiff will benefit from
supported and moderately sheltered employment as
an enrolled nurse,
to avoid her being placed in situations where she can’t meet
the mobility, posture and strength demands,
due to the injuries of
her lower back, knee and ankle. As to the impact of the injuries to
her work capacity, they were in agreement
that the plaintiff would
be able to perform a job demanding sedentary and light to moderate
medium strength work but regular
mobility. They opined that the
plaintiff will still be able to perform her work as an enrolled
nurse but that she would benefit
from reasonable accommodations
where she is placed in sympathetic and supportive placement in a
hospital environment which will
allow for rest, joint and back
protection, energy conservation and the use of special devices where
necessary. Following
the accident, they further agreed that
the plaintiff has been left vulnerable and limited as a job seeker
and employee in the
open labour market and that she will need
sympathetic management and supervision. Ms Makuya further opined
that based on the
physical assessment findings, that the plaintiff
has not regained full capacity to perform her nursing duties but as
nursing
duties at times require team work she should be able to call
for assistance from her colleagues.
The Industrial
Psychologists met on 18 November 2018 and recorded the following in
their joint minute:
[7]
The experts were in
agreement as to the biological background obtained from the
plaintiff as is reflected in their individual
expert reports. They
further agreed that the plaintiff in an uninjured state would have
been able to progressed as a Professional
Nurse Grade 1 and that she
would pre-morbid have been able to progressed to Notch 6 by age 59
until she retired at age 60. The
Industrial Psychologists further
considered the opinions expressed by the other experts regarding the
injuries sustained by the
plaintiff and her prognosis and they
concluded, post-morbidly that the plaintiff would continue working
in her current position
as a Staff Nurse. Ms Coetzee on behalf of
the plaintiff further expressed an opinion that the plaintiff
post-morbid has been
more vulnerable and is an unequal participant
in the open labour market. She further opined, that given her
sequelae
the plaintiff’s reduced productivity and overall efficiency
has left the plaintiff at risk not to qualify for the bi-annual
performance based notch increments. As a result she will be at
further risk to experience slower income progression than what
has
been postulated in her pre-morbid scenario. Mr Sechudi on behalf of
the defendant opined that the plaintiff post-morbid remains
employable in the open labour market, albeit with reasonable
accommodation. The expert further opined that the plaintiff is
expected to recover from her current discomfort and pain if she
receives the necessary support at work and will be able to continue
with her activities at work and earn an income for herself.
The actuarial reports
made reference to above, postulated the retirement age of the
plaintiff to be 60 years of age. As to the
plaintiff’s
pecuniary loss of her income, the actuary assessed the plaintiff’s
loss to be the difference between
the value of her income but for
the accident and the value of her income having regard to the
accident. In calculating her loss
the actuary took into account, her
expectation of life. In his report he further opined that in
determining the plaintiff’s
pecuniary loss of income this
Court should make a deduction for unforeseen contingencies such as
unemployment, life expectancy,
early retirement, errors in
estimation of future earnings and general hazards of life.
EVALUATION
13.
Now in
determining the plaintiff’s future loss of earning and or
earning capacity this court has to determine whether post-accident
and as a result of the
sequelae
of the collision, she would have been able to reach her full career
potential. Ms Magwatane is at present 47 years of age and is
expected
to retire at age 60 years. She as a result only have
approximately13 years left of her working life.
14.
In Bridgman
NO v Road Accident Fund
2002 (1) ALLSA 1
(CPD) the court held that
“in order to claim compensation for patrimonial loss a
Plaintiff must discharge the onus of proving
on a balance of
probabilities that such loss has indeed occurred. That does not
necessarily mean that the Plaintiff is required
to prove the loss
with mathematical precision however the Plaintiff is required to
place before the court all evidence reasonably
available to enable
the court to qualify the damages and to make an appropriate award in
his favour.”
15.
In the
decision South Insurance Association v Bailey
1984 (1) SA 98
AD it
was held that a court is not bound by actuarial calculations of the
parties. Furthermore, that a Court has a discretion to
discount
contingencies to cater for the uncertainties of life such as periods
of unemployment, incapacity due to illness or adverse
economic
conditions.
16.
As to
the plaintiff’s future loss of income but for the accident a
10% contingency deduction was proposed by the expert, which
contingency this Court finds fair and reasonable under the
circumstances. The plaintiff’s net value of income but for the
accident would therefore amount to R 3 363 634. As to the
plaintiff’s value of income having regard to the accident,
the
actuary proposed that a 45% contingency deduction should be applied.
The proposed contingency deduction having regard to the
accident
in
casu
relates to the probabilities that the plaintiff will retain her
current position as a Staff Nurse. This contingency deduction
proposed by the actuary postulates a mere 55 % chance that the
plaintiff will retain her position as a staff nurse until retirement
age. This postulation however is not supported by the conspectus of
evidence presented before this court, more so if one considers
the
evidence of the Industrial Psychologists that both expressed an
opinion that the plaintiff would remain in her current position
of
that of a Staff Nurse and receive the yearly percentages increments
until retirement age.
17.
In my
opinion, given the totality of the evidence presented before this
Court, a 20% contingency deduction should apply leaving
the plaintiff
with a 90% chance of remaining employed until retirement age. The
plaintiff’s value of income having regard
to the accident is
therefore calculated to be the following:
R 3 363 634.00
– (R 2 772 920 minus 20%) = R 1 145 928.00. This
contingency deduction this Court
considers fair and reasonable under
the circumstances and I am satisfied that the plaintiff has
discharged her
onus
of presenting reliable evidence in proving
her loss of earning capacity.
18.
Having
regard further to the decision Goodall v President Insurance
1978 (1)
SA 389
(W) and the sliding scale method laid down in this decision I
am of the opinion that the percentages contingency deductions as
alluded to above would be both fair and equitable and will serve to
balance the interest of both parties under the circumstances.
ORDER
19.
In the
result, the following order is made:
19.1
The
merits have been settled 100% in favour of the plaintiff;
19.2
The
Defendant shall pay the Plaintiff the total amount of R 1 150 928
(One Million One Hundred and Fifty Thousand Nine
Hundred and Twenty
Eight Rand) in respect of both her future loss of income and earning
capacity and Past Medical expenses.
19.3
The
said amount to be paid into the Plaintiff’s attorneys Trust
Account. Account Name: AM DELLOW t/a Dellow Attorneys No:
4[....] Absa Bank Woodlands;
19.4
Interest
on the above amount at a rate of 10,25% per annum from a date 14 days
after the date of judgment to date of payment;
19.5
The
Defendant is ordered to furnish the Plaintiff with an undertaking in
terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
in respect of future accommodation in a hospital or nursing home or
treatment of and or rendering of a service or supplying of
goods to
her arising from injuries sustained by her in a collision which
occurred on 30 October 2009 only after the costs have
been incurred.
19.6
The
Plaintiff is ordered to serve the Notice of Taxation of Plaintiff’s
party and party Bill of Costs on the Defendant’s
attorney of
record.
19.7
The
Defendant is ordered to pay the Plaintiff’s taxed or agreed
party and party costs within 14 (fourteen) days from the dates
upon
which the accounts are taxed by the Taxing Master and/or agreed
between the parties.
19.8
The
Defendant is ordered to pay the Plaintiff’s taxed or agreed
party and party costs, on a High Court scale, ( including
the costs
for 21 February 2018, 21 November 2018, 20 December 2018 and 1
February 2019), which costs will include, but will not
be limited to
the following:
1.
The costs
of reports, joint minutes and/ or addendum reports by the following
experts( including radiological reports and the RAF
4 report);
1.1
Dr HB
Enslin
1.2
Dr TJ
Enslin
1.3
Dr L Van
Wyk
1.4
Dr J
Pretorius
1.5
Dr LF
Segwapa
1.6
Ms I.
Jonker
1.7
Ms H. Roos
1.8
Mr. PC
Diedericks
1.9
Actuary
1.10 Mr M.
Mokgaladi-Interpreter
2.
The cost of
senior-junior counsel, in respect of preparation, consultations,
pre-trial conferences and a day fee for 21 February
2018, 21 November
2018, 20 December 2018 and 1 February 2019;
3.
The
reasonable travelling, subsistence and transportation costs including
e-toll fees incurred by and on behalf of the Plaintiff
for attending
the medico-legal examinations and attending court;
4.
The costs
of attending pre-trial conferences, and the costs of attending all
minutes in respect of pre-trial conferences, as well
as transport
costs to and from pre-trial conferences and court;
5.
The
reasonable taxable costs of one consultation with the Plaintiff in
order to consider the offer of the Defendant, the costs to
accept it,
have it made an order of court and to procure performance of the
Defendant of its obligations in terms hereof;
6.
The costs
incurred in obtaining payment and/or execution of the capital amount
mentioned in paragraph 18.2 above and/or delivery
of the undertaking
in terms of
Section 17(4)
(a) of Act 56 of 1996;
7.
The costs
consequent to all of the Plaintiff’s trial bundles, expert
reports, pleadings, notices, all indexes, document bundles
and
witnesses bundles, joint minutes, including the costs of 5( five)
full copies thereof.
COLLIS J
JUDGE
OF THE HIGH COURT OF
SOUTH AFRICA
Appearances
:
For the
Plaintiff
: Adv. H. De Wet
Attorney for the Plaintiff
: Dellow Attorneys
For the Defendant
: Adv. M.
Mametse
Attorney for the Defendant
: Tsebane Molaba Attorneys
Dates of Hearing
: 21 November 2018, 20 December 2018 and
01 February 2019
Date of Judgment
: 26
July 2019
[1]
Exhibit A p 1-2
[2]
Exhibit p 3-5
[3]
Exhibit B p 58 para 10.3
[4]
Exhibit B para 8.2; 10.4.1.3 & 10.4.2 pa42-45; p59-61 & 66(
para 23-24)
[5]
Exhibit A p 6-15
[6]
Exhibit B p 79
[7]
Exhibit B p 16-20