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[2019] ZAFSHC 44
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Khoza v Road Accident Fund (2582/2015) [2019] ZAFSHC 44 (9 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case number:
2582/2015
In
the matter between:
SAMSON
DANIEL KHOZA
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
20
MARCH 2019
DELIVERED
ON:
9
MAY 2019
[1]
On 10 July 2012 on the N1 near Kroonstad the Plaintiff was a
passenger in a motor vehicle
which was involved in a collision (“the
accident”). He was seriously injured and instituted action
against the Defendant
wherein various damages are claimed.
[2]
The merits were conceded by the Defendant and on 2 February 2016 and
an order by agreement
confirmed the Defendant’s liability for
payment of 100% of the Plaintiff’s proven or agreed damages.
[3]
At the commencement of the trial I was informed that Plaintiff’s
claim for general
damages had to stand over for later adjudication as
Defendant rejected the same with a resultant referral to the Health
Professions
Council of South Africa (HPCSA). I was requested to order
a separation of issues in terms of Uniform Rule 33(4) and adjudicate
only on the Plaintiff’s past and future loss of income, and I
so ordered. Mr Els, appearing on behalf of the Plaintiff, informed
me
that Defendant furnished the Plaintiff with an undertaking in terms
of
Sec 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
. It was so
confirmed by Mr Mopeli who represented the Defendant.
[4]
Plaintiff’s bundle containing reports of both Plaintiff and
Defendant’s expert
witnesses, was handed in as Exhibit “A”
with the parties in agreement that reference can be made to the
expert reports
in the said bundle. Joint minutes in respect of
the occupational therapists (Ms L Olivier and Ms S Moagi, dated 14
March
2019) and orthopaedic surgeons (Drs HL Moloto and LF Oelofse,
dated 14 March 2019) were handed in by agreement as respectively
Exhibits “B” and “C”. The parties agreed to
rely on the mutually agreed conclusions of the experts as contained
in the aforementioned joint minutes. An actuarial report by Munro
Actuaries was included in Exhibit “A” (p 169-172).
In
the course of the trial both parties referred to the expert reports
as it appear in Exhibit “A”.
[5]
To prove his damages Plaintiff testified and called Ms Stroebel and
Dr Jacobs as witnesses.
Defendant did not lead any viva voce
evidence. I do not intend to repeat the evidence tendered by either
Dr Jacobs or Ms Stroebel,
safe where applicable to adjudicate the
matter. The Defendant led no expert evidence to counter the testimony
of either Dr Jacobs
or Ms Stroebel. I have been satisfied that they
are both qualified and experienced experts in their respective
fields. They were
good witnesses and I do not have any reason not to
accept their testimonies.
[6]
The extent of the injuries that the Plaintiff suffered are set out in
his particulars of
claim (and confirmed by expert witnesses) as a
fracture of his right femur and a chest injury. According to the
orthopaedic surgeons
an internal fixation of the left femur was done
on 12 July 2012, and the femur pin was removed during 2014. This
left him
with a shortened left leg. The sequelae of these injuries
was not disputed and entails acute pain for 10 days, moderate pain
for
another four weeks and continuation of pain (especially in his
hip area) with an impact on the Plaintiff’s amenities of life.
Dr Oelofse also diagnosed a knee injury with a possible medial
meniscus tear and scarring and makes provision for arthroscopy of
the
knee joint. The experts agreed in para [6] that the patient
will
do well with successful treatment
, and deferred to the opinion of
an occupational therapist and industrial psychologist. (my emphasis)
[7]
The upshot of Plaintiff’s testimony is that he was working as a
street vendor selling
fruit and vegetables at the time of the
accident. His work entailed him to buy the fresh produce in bulk
prepare packets of the
aforementioned, delegating it to someone to
sell. He earned an average of R 1 200 weekly. Due to the accident he
only returned
to vending after a lengthy time in 2014, and upon his
return he found that the competition had become stiff. In October
2017 he
obtained a job as a driver, but ventured on his own during
December 2017 when he was contracted to transport employees from
Romans
Pizza. This he did until December 2018 when his vehicle broke
down and he could not afford to have it fixed. During the aforesaid
period he made an income of R 2 000,00 monthly. In 2011 he had
successfully completed a welding course certificate which equipped
him to be a boiler maker. He applied for employment as such but was
unsuccessful. He still suffers from pain (which worsens during
inclement weather), is unable to climb ladders or stairs, cannot bend
forward, crouch or kneel or lift heavy objects. As a result
he would
now not be able to do the work of a boiler maker. During cross
examination Plaintiff was adamant that the R 1 200-00
income as
a vendor was his net income, and as it was his target, he always
reached it. Due to his injuries he did not return to
this employ for
3 years, but his brother sustained the vending business on his
behalf. Although he did not perform well at school
his interest to
obtain his welding certificate was kindled by a welder in his street
and he had firm aspirations to be a boiler
maker, sending out his
curriculum vitae to mines without success.
[8]
Ms Stroebel confirmed her report and explained how her assessment of
Plaintiff was done,
using the so called WorkWell functional capacity
standardised test and the Valpar standardised samples. There were no
disagreements
between Ms Stroebel and Ms Moagi (as occupational
therapists) in their joint minute. They agreed on the Plaintiff’s
loss
of amenities, the necessity of occupational therapy, that the
physical limitations experienced by Plaintiff due to his injuries
(struggling to bend forward, crouching, kneeling and climbing
obstacles) would have negatively impacted on his employ and that
he
would be an unequal competitor in the open labour market. The
aforementioned physical constraints agreed upon by the occupational
therapists corroborated the Plaintiff’s oral testimony in this
regard. The occupational therapists agreed that Plaintiff’s
pre-accident employment as a vendor can be categorised within the
parameters of sedentary to light work (with medium or heavy work
depending on the weight of fresh produce that must be packed), whilst
his post-accident employ as a driver amounts to light work.
The
postulation that the Plaintiff might have succeeded in securing
employment as a boiler maker, was common cause in the reports
of both
these experts. Ms Stroebel has experience in evaluating boiler makers
within the mining industry, categorising same as
medium to heavy
work. Ms Moagi agreed and stated that it is indeed categorised as
such in the Dictionary of Occupational Titles.
Although not rendered
unemployable due to his injuries, Plaintiff would not be able to cope
with the demands of a boilermaker should
he be able to procure
employment in this occupation.
[9]
During cross-examination Ms Stroebel was confronted by Mr Mopeli with
Dr Oelofse’s report as it
appears from p 47-63 in Annexure “A”,
with specific reference to para 11.2 where Dr Oelofse stated that he
believes
that “with successful treatment, he (plaintiff) would
be able to continue with his current part-time employment”, and
“with successful treatment, the patient’s productivity
will increase”. Dr Oelofse deferred to the opinion of
“an
Occupational Therapist and an Industrial Psychologist with regards to
the patient’s future productivity, working
ability and
retirement.” Ms Stroebel testified that the conclusions reached
by her (with which Ms Kheswa agreed) were based
on the
well-recognised tests and after having had sight of Dr Oelofse’s
report. These were her findings at the time when
her report (and the
joint minute) had been concluded, and she stands by it.
[10]
Dr Jacobs confirmed his reports and the conclusions arrived at
therein. In his view Plaintiff
would struggle to find suitable
employment in future due to the severe pain experienced and physical
constraints after the accident
which left him vulnerable in the open
labour market. He opined that it is not impossible that Plaintiff
could have obtained a job
in the mining sector as his intention was.
It is highly unlikely that Plaintiff would have remained unskilled
and stagnant in his
career. Plaintiff was only 22 years at the time
of the accident, and one cannot depart from the point of view that
Plaintiff would
have stayed in the same position as an unskilled
vendor. Although it is not disputed that Plaintiff still has an
earning
capacity, he does not have any skills for sedentary jobs and
is unable to do medium to heavy labour. Dr Jacobs explained that in
his estimation of the Plaintiff’s past and future loss of
income, he was guided by the well-recognised and accepted Koch’s
Quantum Yearbook. The income earned as a vendor as testified by the
Plaintiff is in line with the figures of Koch’s Annual
Income
Tables for the time of the accident and his past loss of earnings.
Koch’
s 2019
table was annexed as Annexure “A” to
his “Addendum Report”. According hereto the suggested
earnings assumptions
for unskilled workers in all sectors are R
20 700 – R 36 300 – R 82 000 per year. A
semi-skilled worker’s
income assumptions in all sectors are R
36 300 – R 82 000 – R 178 000 per year. He
concluded that Plaintiff
indeed suffered a loss of past and future
income.
[11]
Dr Jacobs was likewise confronted with the report of Dr Oelofse and
the aforementioned opinion as set
out in para [9] herein before. He
alluded to the fact that, despite Dr Oelofse’s finding that
“with successful treatment,
the patient’s productivity
will increase”, Dr Oelofse still opined that “the patient
MUST
be accommodated in a light duty/sedentary working
environment as determined by an Occupational Therapist.”
(emphasis that
of Dr Oelofse)
[12] As
mentioned, Dr Oelofse deferred to the expert opinions of an
occupational therapist and industrial psychologist
regarding
functionality and past and present employment of the Plaintiff.
Although Ms Kheswa did not testify and there were no
joint minutes
filed from these experts, it would in any event appear on face value
that the following would have been confirmed
by her had she
testified: (Report by Ms Kheswa on p 207-226 of Annexure “A”)
[12.1] Ms Kheswa reported
that she was provided with the reports of Ms Moagi and Dr Moloto. On
p12 of her report she opined that
the Plaintiff’s earnings
could probably have escalated to the upper quartile earnings of
self-employed persons in the non-corporate
sector (R 73 000.00
per annum) when he reached 45 years. Alternatively, writer notes that
considering his age (21 years,06
months), level of education
(Grade09) and his 08 weeks Boiler Making Certificate, had he decided
to secure work elsewhere, he would
have remained working in the
unskilled semi-skilled employment category. His earnings might have
escalated equivalent to the median
of semi-skilled employees in the
non-corporate sector when he reached 45 years. According to Koch
2018, semi-skilled employees
earn between R 25 500 – R
73 000 –R 160 000 per year.
[12.2]
At p 15 of her report Ms Kheswa opines as follows:
“
One wonders
whether his pain symptoms will increase in future and to what extent.
The intensity of his pain will directly correlate
with the percentage
of impairment on his work capacity, meaning the greater the pain, the
greater negative influence on his work
output.
Writer acknowledges that
Mr Khoza’s employment opportunities have been curtailed and
that he may be disadvantaged in terms
of effectiveness, efficiency
and productivity when compared to his uninjured counterparts…The
writer hereby opines that
he will struggle to compete fairly as he
used to before the accident in question. The writer is also of the
opinion that even in
sedentary work he may find it very difficult to
secure jobs due to low level of education, lack of experience in such
jobs and
undesirable skills repertoire… Therefore this
accident in question has severely compromised his employability and
ability
to compete for jobs in the open labour market.”
[12.3]
At p 16 of her report she states:
“
Due to the
sequelae of the accident, his competitiveness, efficiency and
productivity have been limited. A higher than normal contingency
percentage should therefore be negotiated by the legal teams or
determined by the Court.”
[13]
In my view it is clear that Ms Kheswa reached the same conclusions as
Dr Jacobs in respect to Plaintiff’s
vulnerability in the open
labour market and his resultant loss of past and future earnings. She
did not deny that the Plaintiff
would have difficulty in finding
employ post-morbid, nor did she differ from Dr Jacobs that the
Plaintiff could have obtained employment
as a boiler maker had it not
been for the sequelae of the injuries sustained by him. These
conclusions were reached by her with
the knowledge of the expert
opinion of Dr Moloto.
[14] In his
closing arguments Mr Mopeli pressed hard that I should find the knee
injury sustained by the Plaintiff as
evidenced by Dr Oelofse, can
heal with proper administration of treatment. He argued that any
impact of injuries that Plaintiff
sustained can be addressed by the
Defendant’s undertaking for payment of future medical expenses.
I do not agree with him.
The experts’ agreement was not that
the Plaintiff did not and would not suffer any past or future loss of
income. What they
agreed upon under the heading: “Productivity
and Retirement”, is that the Plaintiff “will do well with
successful
treatment”. This to me does not translate to the
Plaintiff after intervention of medical treatment (with the rider
that such
treatment be successful) not having any physical
constraints and/or pain at all. They (quite correctly in my view)
deferred to
the opinion of an occupational therapist and industrial
psychologist.
[15]
Mr Mopeli further contended that, even if I should find that
Plaintiff did suffer a loss of income,
the Plaintiff did not prove
that the reduction of his earning capacity has resulted in his
diminished patrimony or estate. In support
of his contention, he
relied
inter
alia
on
Rudman
v Road Accident Fund 2003(2) SA 234
(at
241 H). I was also referred to the unreported judgment of
SJ
Mooki v The Road Accident Fund
(case number 5978/2015, delivered in this Divison on 3 December
2018). In the latter case my sister Mbhele, J held that the
plaintiff,
a school principal, did not succeed in proving that the
physical impairments suffered by him due to injuries sustained in a
motor
vehicle accident, resulted in his patrimonial loss. The
plaintiff’s claim for future loss of earnings was consequently
dismissed.
In view of all the aforementioned Mr Mopeli submitted that
Plaintiff’s claim for past and future loss of income, be
dismissed.
[16] In my
view the Mooki-matter is distinguishable from the facts
in
casu
.
In that matter the core functions of a school principal were set out
by the industrial psychologist of the plaintiff. She opined
that,
despite his physical limitations, the plaintiff could still continue
with his work as a principal. The learned judge concluded
that the
experts’ evidence showed that the plaintiff’s injuries
did not affect his ability to perform his core duties
as a principal,
and accordingly he did not succeed in proving a loss or reduction in
his earning capacity.
[17]
In the facts of this matter the occupational therapists agreed on the
inherent physical demands of both
a vendor and the postulation of the
plaintiff becoming a boilermaker. The injuries sustained and the
resulting adverse impact on
Plaintiff (as set out in para [6] above),
are common cause and thoroughly documented in the joint minutes of
the experts (Exhibits
“B” and “C”). It cannot
be gainsaid that Plaintiff experienced pain and suffering as a result
of the accident.
He was hospitalised and underwent surgery twice. It
is furthermore confirmed by all the experts that he still experiences
pain
on a daily basis and has physical constraints. His loss of
income was uncontested. Mr Els submitted that it is clear from the
evidence
that Plaintiff’s loss of income would result in the
diminishing of his patrimony. I agree with him.
[18] I have
already indicated that I was impressed by the (uncontested) evidence
of both Ms Stroebel and Dr Jacobs,
supported by their respective
counterparts in their expert reports. Accordingly I have no
hesitation in finding that the Plaintiff
succeeded in proving on a
balance of probabilities that he had suffered a past and future loss
of income.
[19] In
determining the quantum of Plaintiff’s past and future loss of
income, I have a discretion to award what
I consider to be right
depending on the circumstances of the case. As such I am not bound by
actuarial calculations, although same
is of assistance to court.
See:
Legal
Assurance Co Ltd v Botha
1963 (1) SA 608
(A)
This discretion also
pertains to the application of contingencies, in view of my
impression of the matter at hand.
[20] The
amended particulars of claim seeks compensation in respect of past
and future loss of income in the amount
of R 458 035.00 and R
1 940 315-00 respectively. Included in Exhibit “A”
is the actuarial calculations done
by Munro Actuaries. The Defendant
did not file an actuarial report, nor did it challenge the
assumptions on which the actuarial
calculations were done. I have
already indicated that I accept the uncontested evidence of Dr
Jacobs, and subsequently the basis
and actuarial calculation (based
on Plaintiff’s loss according to Dr Jacobs) as set out on p 169
of annexure “A”,
is accepted by me. In my discretion I am
satisfied that the contingency deductions of 15% in the uninjured
state for past and future
earnings are reasonable. I have also been
satisfied that in view of my impression of the matter at hand a 40%
contingency deduction
on future earnings in the injured state, is
likewise reasonable.
[21] I accept the
calculations done by the actuary as aforementioned and conclude that
Plaintiff has proven a past loss of
income in the amount of R
458 035.00 and a future loss of income in the amount of R 1 940
315-00. The Plaintiff is also
entitled to his costs.
[22]
The following orders will therefore issue:
1.
The Defendant shall pay the Plaintiff the amount of
R
2 398 350.00 as set out hereunder:
1.1
R
458 035.00 in respect of past loss of income;
1.2
R
1 940 315.00 in respect of future loss of income resulting
from a motor vehicle collision that occurred on 10 July 2012.
2.
Payment of the total capital amount as set out in prayer 1 above
shall be made on or before the
1
st
of July 2019 failure whereof interest will accrue calculated as per
the statutory rate
a
tempora
morae
.
3.
The Defendant is ordered to furnish to the Plaintiff an undertaking
in terms of
Section 17(4)(a)
of the Road Accident Fund 56 of 1996,
for 100% of the costs of future accommodation of the Plaintiff in a
hospital or nursing home
or the treatment of or the rendering of a
service or the supplying of goods to the Plaintiff arising out of
injuries sustained
by him in the motor vehicle collision as
aforementioned, in terms of which undertaking the Defendant will be
obliged to compensate
him in respect of the said costs after the
costs have been incurred and on proof thereof.
4.
Defendant is ordered to pay Plaintiff’s taxed or agreed costs,
such costs to include (but not
limited to) the costs set out
hereunder:
4.1
The
reasonable preparation/qualifying/accommodation/ travelling and full
reservation fees and expenses (if any) of the following
experts:
4.1.1 Munro Actuaries
(actuaries);
4.1.2 Dr LF Oelofse
(orthopaedic surgeon);
4.1.3 Dr Everd Jacobs
(industrial psychologist);
4.1.4 Ms Alana Stroebel
(occupational therapist);
4.1.4 Dr JJ Schutte
(general practitioner)
4.2 The
costs relating to the Plaintiff attending the above medico legal
examinations.
5.
In the event that costs are not agreed the Plaintiff shall:
5.1
Serve
a notice of taxation on the Defendant’s attorney of record; and
5.2
allow
the Defendant fourteen (14) court days to make payment after taxation
and allocation.
6.
The Plaintiff’s claim for general damages is postponed to the
pre-trial roll of 18 November
2019 for continuation of the matter.
C
REINDERS, J
On
behalf of Plaintiff:
Adv J Els
Instructed by:
Honey
Attorneys
Bloemfontein
On
behalf of Defendant : Adv M
Mopeli
Instructed by:
Maduba Attorneys
Bloemfontein