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[2019] ZAFSHC 79
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McEwan v Road Accident Fund (5181/2014) [2019] ZAFSHC 79 (20 June 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Case number:
5181/2014
In
the matter between:
LOUISA
MCEWAN
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
CORAM:
DAFFUE, J
HEARD
ON:
16 APRIL 2019 & 10
MAY 2019
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
20
JUNE 2019
I
INTRODUCTION
[1]
On 5 March 2019, the first trial date allocated for adjudication of
the merits, the Road Accident Fund
(“RAF”) threw in the
proverbial towel as it does more often than not. It conceded
the merits fully and by agreement
appropriate orders were made,
including that the matter be postponed to 16 and 17 May 2019 for
adjudication of the
quantum
of plaintiff’s claim.
[2]
The matter went on trial and it is now my task to write a judgment,
incorporating appropriate orders.
II
THE PLAINTIFF
[3]
The plaintiff is Me Louisa Mcewan, a 58 year old, a female Warrant
Officer (“W/O”), Class
I, in the employ of the South
African National Defence Force (SANDF”). She was 51 years
old when she was injured in
a motor vehicle collision which occurred
on 23 November 2012 on the N8 road between Petrusburg and Kimberley,
Free State Province.
At that stage she was a W/O Class II.
She was represented during the trial by Adv M Combrink, duly
instructed by Kruger &
Co, c/o Pieter Skein Attorneys,
Bloemfontein.
III
THE DISPUTES
[4]
During argument Mr P G Chaka for the RAF conceded that the usual
undertaking in terms of s 17(4)(a)
of the Road Accident Fund Act, 56
of 1996 (“the Act”) should be provided and tendered it on
behalf of his client.
He also confirmed that the claim in
respect of past medical and hospital costs was not in issue. This
concession and
undertaking meant that the only outstanding disputes
were the plaintiff’s claims for past and future loss of income
as well
as general damages.
IV
WASTE OF PUBLIC MONEY
[5]
There is one aspect that I must deal with now and that is the RAF and
its attorneys’ apparent preference
to waste money. I have
expressed myself in this regard in no uncertain terms on numerous
occasions, but nothing is done about
this unacceptable state of
affairs that continues unabatedly. I mentioned above that the
RAF had thrown in the towel in respect
of the merits. This
happens on a weekly basis in the majority of cases. The RAF is
seldom ready to tackle the merits
head on insofar as no pre-trial
preparations are undertaken. No proper investigations are
undertaken and witnesses are seldom
consulted and/or subpoenaed.
If it were otherwise, cases will be settled long before the trial
dates. It and its attorneys
have no understanding of the
enormous and unnecessary amounts of legal costs being wasted in the
process. They drag out litigation
as long as possible, only to
concede the merits at the trial. I should not be understood to
say that all cases should be
settled. Fraudulent claims are
filed from time to time and the RAF must be cautious. When two
vehicles are involved
in a collision, both drivers are often to be
blamed and an apportionment of damages should be applied in
accordance with the degree
of negligence to be found. However,
the so-called 1% cases – the claims of passengers and
dependents to whom no negligence
can be attributed – are on a
different footing.
[6]
In
casu
,
plaintiff averred in her particulars of claim that the RAF had
conceded liability on the merits as long ago as 14 August 2014.
In its plea the RAF not only denied that plaintiff was a passenger in
the vehicle which left the road and overturned, but also
that it had
accepted liability as alleged. Five years later concessions were made
without the matter proceeding on trial.
[7]
More pertinent to the present dispute is the attitude of the RAF and
its attorneys pertaining to the reports
of the experts that plaintiff
intended to call. A week before the start of the
quantum
trial
plaintiff’s attorneys requested the RAF’s attorneys in
writing to admit the reports of Drs Sagor and Cronwright,
orthopaedic
surgeon and plastic and reconstruction surgeon respectively.
They did not want to do that notwithstanding the
fact that Dr Sagor
and the RAF’s expert agreed fully with each other and the RAF
did not file a report of a plastic and reconstruction
surgeon at
all. After filing of the orthopaedic surgeons’ joint
minutes, the plaintiff’s request was repeated,
but to no
avail. The RAF and its attorneys were well aware that these
experts had to fly in from Cape Town and that thousands
of Rands of
public funds could be saved if that could be prevented.
Eventually, not a single question was put to these two
experts in
cross-examination when they confirmed their reports under oath and
explained pertinent aspects.
V
THE EVIDENCE
[8] I
prefer to first deal with the experts’ evidence first, where
after I shall consider plaintiff and
Lt Col Meintjies’
evidence.
The
injuries of an orthopaedic nature
[9]
Dr JS Sagor, an orthopaedic surgeon with thirty years’
experience, testified for the plaintiff.
He confirmed his two
medico-legal reports dated 22 September 2014 and 2 April 2019
respectively. As was the case with Dr
Cronwright, the RAF
insisted on updated reports which had to be prepared at the
proverbial last minute. I can do no better
than to quote the
most relevant parts of the reports emphasised by the expert during
his testimony. The following appears
from his first report.
He found the following upon his clinical examination of plaintiff on
26 August 2014:
“
7.4
Left Lower Limb
There is a gross loss of
soft tissue circumferentially with associated skin graft applied to
the areas, at and above the distal
third of the femur.
There is scarring of the
greater trochanter region.
The left hip joint
appears to have adequate and normal movement.
The left knee has limited
mobility, which ranges from 0-60°. It is clinically stable.
There is lymphodema over
the left ankle and lower limb. There is a 10° equinous
deformity of the left ankle, which flexes
further to 20° of
plantar flexion.
The subtalar joint is
stiff.
7.4
Right lower limb
Scars are present on the
thigh where skin graft had been removed.
There is an area of soft
tissue loss over the lateral right knee region.
The right knee joint
appears to be clinically stable with normal movement.
The right ankle also has
a 10° equinous deformity, but plantar flexion is possible to 30°.
The subtalar joint is
stiff.
Minor scars are present
over the right ankle, where the previous operative fixation had been
applied.
There is adequate
protective sensation in both lower limbs and feet.
Leg lengths are equal.
7.5
Gait
The claimant walks slowly
using a three point walking stick to aid ambulation.”
The expert commented as
follows on the plaintiff’s disability:
“
10.1
The claimant suffered from polytrauma.
10.2 A
crush injury was suffered to the cervical spine and subsequently a
fusion was done. This appears to have
healed satisfactorily.
There is limited mobility of the cervical spine as a result of the
fusion. However, she has
reasonable movement for her needs.
No further treatment for this injury is indicated.
10.3 A
fracture was suffered to the left femur. It was a compound
fracture with associated severe degloving injuries.
The
fracture has united anteriorly and laterally. The
intramedullary nail and screws are still in situ and need to be left
as is. There is associated soft tissue trauma with scarring.
There is secondary lymphedema of the left ankle and foot
region.
This is secondary to the soft tissue trauma suffered.
10.4
The left knee joint has limited mobility, which may improve slightly
in time and with further physiotherapy treatment.
There is also
a 10° equinous deformity of the left ankle. Further
rehabilitative treatment will be required for these
areas.
10.5
Ligament injuries were suffered to the right knee. The lateral
collateral ligament has been repaired.
There was also concern
regarding the right anterior cruciate ligament, but the right knee
joint is stable. Normal movement
is present.
10.6
Fractures were suffered to the right ankle which have been stabilised
operatively. There is also a 10°
equinous deformity of the
right ankle and this may improve functionally with proposed
physiotherapy treatment.
10.7
The claimant mobilises slowly, using a walking stick. She may
improve functionally with time. It is
unclear as to whether
normal function will ever be regained. This is probably
unlikely.
10.8
The claimant has lost various amenities of life following the
accident event. She was hospitalised for a
long period of time
and still uses a walking stick to mobilise. She is still
functionally limited and needs assistance with
certain domestic
chores. She may improve in time and more physiotherapy
treatment, but normal function is unlikely to be
regained.
10.9
The claimant has been disabled and functionally impaired by the
injuries suffered. There may be some improvement
with proposed
treatment, but it appears unlikely that normal function will be
regained. There will always be some physical
limitations with
regard to mobility and function.
10.10 Regarding
employment, the claimant worked in the navy as a caterer. I do
not envisage that she will be able to return
to this format of work.
In my opinion, she is permanently unemployable as a result of the
injuries sustained in the accident.”
Dr Sagor again examined
the plaintiff clinically on 28 March 2019 and noted his findings in
the followings terms:
“
General
assessment:
Unchanged.
Cervical spine:
Loss of flexion and
extension, as well as rotation.
The loss of mobility is
slightly less than originally recorded in my report, dated 22.9.2014.
The axial compression
test is equivocal.
Left lower limb:
Scars noted as previously
described.
Left Knee joint movement
ranges from 0-80°. The joint is stable.
The left ankle has 10°
of dorsiflexion and 25° of planter flexion.
The sub-talar joint is
mobile.
Right lower limb:
Scars noted as previously
described.
The right knee joint is
stable.
Movement ranges from
0-100°.
There is improvement
mobility of the ankle joint, compared to my initial assessment in
2014.
The sub-talar joint is
mobile.
The claimant walks with
difficulty and requires a walking stick to aid ambulation.
The expert made the
following comments pertaining to the plaintiff’s injuries in
paragraph 7:
“
I confirm that the
following injuries sustained as noted in my original report.
1.
Compound
fracture left femur junction middle and lower thirds.
2.
Severe
degloving injury left lower limb with soft tissue loss in the region
of the left knee.
3.
Degloving
injury to right lower limb with anterior cruciate and lateral
collateral ligament injuries to the right knee and possible
lateral
tibial plateau fracture.
4.
Bi-malleolar
fracture right ankle.
5.
Degloving
injury to left lower limb.
6.
Crush
injury to C5 vertebra.”
He concluded as follows
in paragraph 8:
“
The injuries
sustained are listed above and I refer to my original clinical
findings, now confirmed with re-assessment on 29.3.2019.
The claimant remains
significantly disabled and functionally impaired due to the injuries
sustained to her lower limbs.
No further treatment is
likely to improve her functionally. Treatment options have been
listed on page 11 of my original report
and theses are still valid.”
Dr Sagor explained in
summary in paragraph 9 that:
“
There is no
discrepancy relating to the injuries sustained as listed in my
original report.
My only omission is a
possible lateral tibial plateau fracture of the right knee joint.
She remains physically
disabled and functionally impaired due to the lower limb injuries
sustained.”
Injuries relating to
disfigurement
[10] Dr K
Cronwright, a plastic & reconstructive surgeon with vast
experience, confirmed his two medico-legal reports.
The
following are extracts from the first report:
“
3.2
Lower
Limbs
3.4
Severe disfigurement.
3.8
Chronic lymphoedema left leg (permanently swollen).
3.9
Exuberant ridge of scar tissue left popliteal fossa (behind knee) –
obstructs / restricts
flexion of left knee (bending).
3.10
Neck
3.11
Moderate disfigurement.
3.12
Scalp
Scar
3.13
Alopecia (hair loss) in all probability secondary to claimant
developing pressure sore due to her prolonged period
of
immobilisation in ICU.”
Dr Cronwright emphasised
that it would take five years to try and reconstruct the tissue, but
made it quite clear that plaintiff’s
legs cannot be fixed and
that anyone daring to operate would do it at his/her own peril.
The photographs taken by Dr Cronwright
which form part of his first
report, especially those showing the degloving injuries to both legs
of the plaintiff, are objective
evidence of a severely disfigured
person.
Evidence of the
occupational therapist
[11] After
lunch on the first day of the hearing, defendant admitted the three
reports by Ms Marion Fourie, an occupational
therapist, dated 22 June
2015, 27 February 2019 and 29 March 2019 respectively. It is
necessary to point out that the expert
concluded as follows in her
report of 27 February 2019:
“
5.
Conclusions
5.1
I confirm my earlier finding that her
physical capacity
is
reduced in respect of:
·
General
tolerance for physical activity.
·
Weight-bearing
tolerance.
·
Agility.
·
Agility to
perform activities with heavier physical demands.
5.2
Employability
5.2.1 I
confirm my conclusions in this regard – detailed in 5.4 of my
earlier report.
5.2.2 The
additional demands to which the claimant is now subjected travelling
to and from work are considered to be
burdensome – and add to
her levels of fatigue and pain.
5.2.3 It is
considered highly unlikely that the claimant will join the Reserve
Force once she formally retires at the
end of 2020.
5.3
I confirm the recommendations detailed in my earlier report.
I
wish to stress that, in my opinion, provision should be made for
point-to-point transport to and from work.”
In Ms Fourie’s last
report she states the following:
“
3.
She
(the
plaintiff)
informs
that not only does she not feel sufficiently secure / confident to
travel to and from work using public transport but having
her son
with her at work is useful should she need anything from other parts
of the naval base or on the Main Road during the course
of the work
day.
6.
I highlight again my opinion that provision should be made for
point-to-point
transport to and from work.”
Evidence of the
industrial psychologist
[12] Ms J J
(Anneke) Strauss, an industrial psychologist, testified and confirmed
her report. She relied in her
report and
viva voce
evidence on Lt Col Meintjies’ version relating to plaintiff’s
loss of earnings due to late promotion and her inability
to be
deployed externally. The loss of earnings relating to the
external deployment adds up to R612 000 according to
the
witness, (R608 268 according to my calculations) as calculated
on pages 106 to 109 of exhibit C. I shall return
to the
evidence of Lt Col Meintjies. She also referred to annexure C
of her report, p 85 of exhibit A, to wit the table consisting
of the
differences between the salaries of a W/O I and II during the period
1 April 2014 to 31 March 2019. The witness accepted
that
plaintiff could have been promoted to W/O I earlier, were it not for
her injuries, and that she was only promoted on 1 October
2018.
The witness also dealt with plaintiff’s evidence that she had
lost the opportunity to cater for private functions
after
retirement. She indicated that plaintiff was over-optimistic to
work on profit margins as testified to by her.
According to the
witness – based on information obtained from a collateral
source after plaintiff had testified - a profit
margin of between 50
and 70% might be achieved in rural areas such as Saldana Bay. Fact
of the matter is that this information
is still not sufficient for
the reasons explained when dealing with plaintiff’s evidence.
The
admitted evidence contained in the joint minutes
[13]
The following joint minutes were handed in by agreement:
(a)
orthopaedic surgeons, Drs Sagor and Dr Moloto;
(b)
occupational therapists, Ms Marion Fourie and Ms Success Moagi;
(c)
industrial psychologists, Ms Anneke Strauss and Ms Pat Matla.
[14]
Save for the fact that it was recorded by the orthopaedic surgeons
that plaintiff was still employed
by the SANDF, the experts agreed
with regard to the injuries sustained, the clinical findings,
disablement and functional impairment.
[15]
The occupational therapists agreed that plaintiff was no longer
deployable and that she has a sympathetic
employer that accommodated
her medical condition. They also agreed that provision should
be made for point-to-point transport
to and from work and for
personal business. Full-time domestic help and the services of
a gardener were regarded as reasonable.
[16]
The industrial psychologists did not agree on several issues, but
they were in agreement that plaintiff was
regularly deployed
internally and externally, inter alia to countries such as DRC and
Nigeria. In respect of other issues,
Me Matla deferred to
factual information and was not prepared to make any concessions.
The viva voce evidence
of plaintiff and Lt Col Meintjies and an evaluation thereof
[17]
Plaintiff, a single mother of four major sons, some of whom are still
dependent on her, joined the
South African Navy in 1996.
Initially she was based in Saldana Bay, but later transferred to
Simon’s Town. She progressed
through the ranks from seaman to
W/O II as time went by. She was always one of the fittest
females in her unit and during
basic training she received an award
as being the fittest female. She started catering in the Navy
in 1998 as an able seaman.
[18]
She was involved in the aforesaid collision on 23 November 2012,
about two weeks before her 52
nd
birthday. She testified about the trauma and pain experienced
immediately after the collision. She was admitted at
Pelonomi
hospital in Bloemfontein where she received surgery as more fully
explained in Dr Sagor’s first report. She does
not remember
much about her hospitalisation as she was experiencing severe pain
and painkillers were regularly administered to
her. She was at
a stage transferred to Universitas hospital in Bloemfontein and on 23
January 2013 to 2 Military (“2
Mil”) hospital in Wynberg,
Cape Town. She was hospitalised at 2 Mil for a further three
months. After her discharge
she recuperated at home for about a
year and returned to work during March 2014. Although she
returned to the Military as
a caterer, she was not
“
hands
on”
anymore,
but allocated an administrative job and became office bound.
She had to rely on her second in command and juniors
to take over
some of the functions. Initially she ambulated by making use of
a wheelchair, but later she used a walking frame
and tripod crutch.
She used the tripod crutch during 2014 and 2015. In 2016 she
started using two crutches, but is
able to ambulate with the use one
crutch at the moment. She identified the photographs of herself
taken by Dr Cronwright
and handed in as exhibits A1 – A6 and
confirmed that her legs are still in the same condition as depicted
on the photographs.
[19]
In her capacity as W/O II plaintiff was in charge of the mess at
Simon’s Town. In 2012
she acted as caterer when
internally deployed to De Brug in the Free State. She was
injured during her deployment at De Brug.
Her medical status
changed from G1K1N1 – healthy and fit – to G4K3, which
she stated to be equal to “
a
cabbage.”
She
socialised regularly before the accident, but thereafter she did not
enjoy any social life at all. She does not want to
wear swim
suits or shorts as she needs to cover her scars all the time.
[20]
During 2007 to 2009 and whilst stationed at Saldana Bay plaintiff
earned extra income in the form of profits
deriving from certain
semi-formal functions – as she called them - that she catered
for. These were held with the approval
and assistance of her
employer and properly explained during her evidence with reference to
some vouchers she managed to locate
after all these years.
Vouchers and other relevant documents were handed in as exhibit D.
This evidence was clearly
tendered to show that plaintiff always had
the capacity – pre-morbid - to act as a private caterer.
Much of her evidence
was spent on this issue. This, together
with her experience as caterer for the SANDF in official capacity,
will be considered
when her future loss of earnings are adjudicated.
More will be said about this later.
[21]
Plaintiff cannot make use of public transport such as buses.
Initially her employer arranged transport
by means of a Dial-and-Ride
system to and from work for which she paid, but that service was
terminated in 2017. He one son
is now responsible to transport
her to and from work and to see to her private commitments.
[22]
Plaintiff testified that she had been deployed externally to Nigeria
in 2004 and to the DRC in 2010. She
was the only female W/O
that was deployed externally at the time. According to her she
would have applied for and be accepted
to do a further two or three
external deployments before retirement, were it not for her
injuries. She applied for deployment
in the past as she, being
a single mother who cared for her children and an extended family,
was always in need of extra income.
Due to her physical
handicap it was impossible to apply for deployment, but in any event,
only members with a G1K1 medical status
may be deployed.
External deployment in particular is financially well worth the
effort as explained by Lt Col Meintjies
to which evidence I shall
return.
[23]
According to her testimony SANDF members usually get promoted after
having been five years in a particular
rank on condition that they
pass the applicable courses. She was promoted to the rank of
W/O II in 2008 (she initially incorrectly
said 2007) and expected to
be promoted to W/O I in 2013. However she was only so promoted
in 2018 after she had filed a grievance
for the failure to promote
her. Plaintiff’s income as W/O II and as W/O I is not in
dispute. The same applies to the
extra income she would have received
if she was deployed externally for another two years during July 2014
to June 2015 and July
2016 to June 2017.
[24]
Plaintiff testified if it were not for the injuries she sustained,
she would have returned to Saldana Bay upon
retirement – the
age of 60 – and start up a catering business. According
to her she is
“
more
popular”
there
and there are more opportunities on the West Coast. She knows a
lot of people and have already received a phone call
to establish her
availability. She made certain guestimates and stated that if
she could do
“
two
very strong functions in a month”
she
could earn R70 000 per month gross. She also mentioned a
net figure of R31 000 per month.
[25] Plaintiff’s
evidence was not seriously challenged in cross-examination and no
evidence was adduced to contradict
her version. However, I need
to point out that uncontested evidence does not have to be accepted
as correct. This is
particularly relevant where a party
testifies about future projections which are often highly
speculative. Plaintiff did
not rely on any market analysis.
No fieldwork and/or proper market research have been undertaken.
No study of consumer
behaviour and consumerism has been undertaken.
By the time plaintiff retires, she would have been away from Saldana
Bay for
more than a decade. We do not know anything about
competitors, opportunities and threats in the market environment.
There may be young, energetic, qualified, experienced and established
chefs and caterers conducting viable businesses in the area.
The slow-down in the economy and the chances of an upswing have not
been considered. It must also be understood that it takes
time
to grow a business and entrepreneurs very seldom make money from the
start. If plaintiff is so well-known and
there is such a
huge opportunity in the market as she tried to portray, she may still
open a business, but employ a chef/manager
to do the actual work,
which will obviously impact on her net income. In conclusion,
there is a dearth of information pertaining
to the number of
residents in the target area, their social and economic standing, the
number and nature of functions held in a
financial year, the
strengths and/or weaknesses of competitors and the opportunity to
penetrate the particular market.
[26] Lt Col
Meintjies is an independent witness who presented valuable insight
into the SANDF policies pertaining to
deployment and promotion.
She is an experienced member of the SANDF and a Human Resource
Planner. She confirmed plaintiff’s
salary advices to be
correct. She also explained external deployment by the SANDF in
particular with reference to the medical
and fitness requirements,
remuneration and the obligation on the SANDF to provide personnel on
a regular basis in order to execute
duties in several African
countries from time to time.
[27] Lt Col
Meintjies confirmed the calculation of income on pages 106 to 109 of
exhibit C for plaintiff if she qualified
and would have been deployed
externally during the two years, 2014/5 and 2016/7. These are
the figures relied upon by Ms
Anneke Strauss referred to above.
Lt Col Meintjies testified in cross-examination that plaintiff might
have been deployed
externally on three occasions from 2012 until
retirement, were it not for her injuries. The witness stated
that plaintiff
did not qualify for deployment due to her medical
status, but also made it clear, after having observed plaintiff at
court, that
she would not be able to cope at all as a consequence of
her physical disabilities.
[28] Lt Col
Meintjies testified that catering is a scarce skill in the SANDF
insofar as catering internally has been
outsourced to an extent.
These outsourced personnel do not qualify for external deployment.
Based on plaintiff’s
previous experience, there would be no
reason disqualifying her for external deployment, was it not for her
medical condition.
The witness accepted that plaintiff would be
able to be deployed externally on at least two occasions, were it not
for her injuries.
She testified about promotion as well.
A member cannot do courses when deployed and therefore plaintiff
would probably only
be in a position to attend the required course
during the middle of 2012 or in 2013. In this regard she again
emphasised
the scarcity of senior catering personnel in the SANDF and
the policy to fast-track women and especially members of the
previously
disadvantaged communities. The witness confirmed the
table depicting the differences in salary between a W/O II and W/O I
as shown in exhibit A, p 85. The document was drafted on the
basis of plaintiff’s possible promotion on 1 April 2014.
The
information contained therein is not in dispute.
VI
PAST AND FUTURE LOSS OF INCOME
[29]
There is no doubt that plaintiff suffers from a physical disability,
but that does not mean, on its
own, that she is suffering a reduction
of her patrimony. Proof of actual loss must be established.
Dr Sagor submitted
in paragraph 10.10 of his first report that
plaintiff was
“
permanently
unemployable”
and
he did not foresee that she would be able to return to her pre-morbid
format of work. The evidence has proved him wrong,
although I
must immediately concede that plaintiff struck me as a dedicated
person prepared to carry on with life notwithstanding
her disability.
[30]
In order to assess plaintiff’s past and future loss of earnings
a comparison should be made between
what she would have earned
pre-morbid and what she was (and is) likely to earn post-morbid.
In casu
,
the plaintiff was injured more than six years ago and her past loss
could not, as is generally the case with the adjudication
of future
losses, be determined with mathematical precision because of unknown
and to an extent speculative evidence. Having
said this, I am
satisfied that plaintiff has produced the best available evidence to
prove her monetary damage in respect of past
loss of earnings and
although it is still not of a conclusive character, it will be
possible to make a finding in her favour.
[1]
[31]
The application of contingencies must be considered. General
contingencies, also referred to
as normal contingencies, have
generally become accepted at 5% and 15% in respect of past and future
loss of earnings respectively.
In a recent judgment of the Supreme
Court of Appeal,
[2]
Willis, JA
referred to the normal range of contingencies in respect of future
loss of earnings as between 15 and 20%. However,
the
‘
sliding
scale’
approach
in terms whereof ½% is allowed for each year to retirement is
also applied by our courts.
[3]
In
Kerridge
[4]
the majority held that
“
(C)ontingencies
are arbitrary and also highly subjective”
and
“
(I)t
is for this reason that a trial court has a wide discretion when it
comes to determining contingencies.”
[32] The
plaintiff is entitled to loss of earnings in respect of the late
promotion. The figures on page 85 of
exhibit A have been
considered in order to arrive at a just amount. Plaintiff was
promoted on 1 October 2018 and thus during
the 2018/2019 financial
year. W/O II’s received an extra increase during the
2014/2015 financial year. Having
considered this, the total
loss based on late promotion is R237 616.00. A contingency
deduction of 20% shall be applied
and therefore plaintiff is entitled
to R190 093.00. This is more than the customary 5 to 10%
for past losses, the reason
being that we do not rely on loss of
income of a fixed and proven income such as a salary. It is
common cause that Government
put in place several austerity measures
over the past few years. Even judges felt it in their pockets
insofar as they have
not received incremental increases in line with
inflation. The SANDF‘s budget has been cut and this must
have had an
effect on promotion of staff. There is no certainty
that plaintiff would have been promoted on 1 April 2014, if
uninjured,
notwithstanding the evidence tendered.
[33] I accept
that there is no reason why plaintiff would not have been deployed
externally for at least two stints
of one year each as testified.
Again, uncertainty about such deployment and the loss of earnings
allegedly suffered cannot
be disregarded. Plaintiff, uninjured
at the time, might have found the love of her life and decided not to
apply for external
deployment in order to enjoy life with her loved
one. She might have suffered from illnesses such as malaria or
other injuries
which prevented her from being deployed or caused an
earlier return to the country. She is a single mother who cares
for
an extended family and although the extra income would always be
needed, family and/or personal circumstances might have resulted
in
her rather staying at home instead of being an absent mother in
excess of a year at a time. Consequently, I am satisfied
that
also in this case a 20% contingency should be applied to the loss of
earnings, which according to my calculations amounts
to R608 268.00.
The amount to which plaintiff is entitled in this regard
is R486 614.00.
[34] Plaintiff
relies on loss of income on the basis of expenses incurred relating
to her transport to and
from work. I believe that she has made
out a proper case. The amounts due to her for private transport
(less what she
would have spent on public transport) in order to
allow her to continue working have been calculated to be R25 920
in respect
of past expenses and R29 160 in respect of future
expenses from now until her retirement end of next year. These
amounts
are so small that it is not necessary to allow for any
contingencies and/or to remit them to an actuary for an actuarial
calculation.
I am satisfied that the amounts should be awarded
as claimed.
[35] Finally
under this heading is the alleged loss of earnings for plaintiff’s
private catering business
which she intended to run after
retirement. Mr Combrink submitted that plaintiff would be able
to carry on doing private
catering for ten years after retirement,
were it not for her injuries, alternatively for a period of at least
five years.
I have made some remarks in this regard above, and
merely wish to reiterate the following. It is one thing to do
semi-formal
functions as plaintiff has done a decade ago with the
support of her employer and having the advantage of its
infrastructure and
financial backup, but a totally different kettle
of fish to embark on your own new business. It is not too
difficult to invent
menus and invitation cards and to use your
employer’s money to buy stock and pay for personnel, but it is
much more onerous
to run your own business. Functions are
arranged months or even a year in advance and residents in a rural
area such as Saldana
Bay do not hold big functions every week.
In between functions overheads must be paid, even if temporary staff
is used.
Advertising must be done. Stock must be bought
from one’s own resources and the best entrepreneurs often find
themselves
cash-stripped. Although plaintiff intended to remain
in the same business environment she is used to – she does not
for example intend to start a fast food franchise – I have not
been persuaded that she would be able to run a viable business
after
retirement. There is no rational connection between plaintiff’s
experiences as Navy caterer in a sheltered environment
more than a
decade ago and a successful private business after retirement.
I do not have to repeat my concerns mentioned
above.
[5]
VII
GENERAL DAMAGES
[36]
Mr Chaka referred to three judgments, to wit
Grobbelaar
[6]
,
Alla
[7]
and
Tlhakane
[8]
.
In
Grobbelaar
the plaintiff sustained a fractured left femur and patella.
Pins and screws had to be inserted in his leg. R300 000.00
was
awarded which equals R367 500 today. The injuries
sustained in
Grobbelaar
are not closely as severe as in the present matter. In
Alla
the plaintiff sustained a fracture of her ankle which resulted in
displacement of the distal tibio-fibula joint. Surgery
in the
form of open reduction and internal fixation was required. Save
for a risk of degenerative arthritis which might lead
to a fusion of
the ankle and the normal consequences related to these injuries, the
position of the plaintiff was uneventful. R200 000
was awarded
which equals R290 200 in today’s terms. In
Thlakane
R280 000 was awarded which is equal to a present value of R343
000. The plaintiff suffered from a right tri-malleolar
ankle
fracture which necessitated implants in the form of a plate and
screws. The plaintiff presented with a right antalgic
gait and
had to use a crutch to mobilise.
[37]
Awards in similar cases should be used as guidance in the exercise of
a judge’s discretion in
order to prevent a situation that one
judge awards R100 000 for a fractured ankle and the next judge
awards R1m for exactly
the same injury. It would not be
possible to exercise one’s discretion judicially by ignoring
comparative awards, although
it must always be kept in mind that no
two cases can be on all fours. Willis, JA
[9]
held that
“
where
the
sequelae
of an accident are substantially similar,
(awards)
should be
consonant with one another, across the land. Consistency,
predictability and reliability are intrinsic to the rule
of law.”
I considered the injuries
suffered by the plaintiffs in the judgments referred to by Mr Chaka,
but am of the opinion that none of
the cases can be compared with the
matter at hand.
[38]
Mr Combrink referred to several judgments in order to persuade the
court that an award of R750 000
would be appropriate. In
Aeschliman
[10]
R300 000 was awarded which translates to R510 600 in 2019.
The plaintiff suffered a compound injury to her right
knee, a
fracture of the medial tibial plateau and a rupture of her posterior
lateral crucial ligaments. She was left with
an unstable weak
joint. In
Rieder
[11]
R300 000 was awarded which is equal to R457 000 in 2019.
The plaintiff suffered a right-sided tibial plateau fracture,
fracture of the right ankle, an injury to the peroneal nerve and
damage to the muscle groups of the lower leg. The injuries
in
these two cases are not comparable with the injuries of the plaintiff
in
casu
.
[39]
Mr Combrink referred to two further cases.
Van
Rensburg
[12]
v AA Mutual Insurance Co Ltd
was decided in 1969, fifty years. The award of R12 000 is
equivalent to R949 548 in today’s money.
Bearing in
mind more recent comparative judgments, it is really unnecessary to
go back so far in history and consider this judgment.
The
next judgment,
Nel
[13]
is more relevant. Mr Nel’s injuries bear some resemblance
to the injuries of plaintiff in the instant matter.
He suffered
fractures of his right tibia and fibula and degloving injuries to his
right foot. His right leg was shortened
which resultant in a
marked limp, whilst his right big toe had to be amputated following
the degloving injury to the foot.
This caused loss of balance
which compelled the plaintiff to use a crutch to ambulate. He
also suffered traumatic amputation
of his right fifth metacarpal and
little finger. The award of R750 000 is equal to
R826 500.
[40] In
E
M Litseo v RAF
[14]
I referred to several other judgments in paragraphs [25] – [31]
and eventually awarded R700 000 to the plaintiff.
Ms
Litseo suffered three distinct injuries, to wit to her right upper
leg and knee, the right lower leg and ankle and also the
left knee
and lower leg. It was found that there was a mal-united right
femur shaft fracture and a severe leg length discrepancy
of more than
6 cm, that the bi-malleolar fracture of the right ankle united, but
osteo-arthritis was diagnosed. Finally,
a depressed malunited
lateral plateau fracture was diagnosed on the left leg with
osteo-arthritis to that knee. It was accepted
that the
plaintiff would require multiple surgeries in future.
VIII
CONCLUSIONS
[41]
I am satisfied that plaintiff’s orthopaedic injuries are
substantially similar to that in
Litseo
supra,
but
the nature of plaintiff’s degloving injuries and her serious
permanent disfigurement as depicted in the various photographs
put
this matter in a different category. I conclude that plaintiff
has made out a case for payment of general damages in
the amount of
R750 000. There is no doubt that she has sustained serious
injuries which have changed her life for ever.
An energetic,
fit and outgoing woman has been transformed into a physically
disabled, shy and anti-social character who has been
trying her best
to cope with her disabilities by continue working for a sympathetic
employer. This award is fair and reasonable
and not
inordinately high to place an unnecessary burden on the public purse.
[42]
I indicated that plaintiff should be awarded compensation in respect
of loss of income due to the fact
that she missed two vital
opportunities, firstly to be promoted when promotion was due and
secondly, from earning extra income
during two sessions of external
deployment. It is not necessary to defer these aspects to an
actuary as the amounts are not
in dispute. I indicated why and
at percentage contingencies should be applied. Plaintiff is
entitled to past loss of
earnings in the amount of R702 627.00
calculated as follows:
Loss
pertaining to late promotion
less
20% contingencies R
190 093.00
Loss
pertaining to external deployment
less
20% contingencies R
486 614.00
Past
expenses in respect of private transport R
25 920.00
Plaintiff’s
evidence as to her prospective income after retirement, if uninjured,
has not persuaded me to make any award in
that regard for the reasons
explained.
Plaintiff should be
awarded R10 000.00 for past medical and
hospital
expenses as agreed.
Therefore, the total
amount to be awarded is R1 491 787.00, calculated as
follows;
Past
medical and hospital expenses
R10 000.00
General
damages
R750 000.00
Past
loss of earnings
R702 627.00
Future
loss of earnings
R29 160.00
[43]
I already expressed serious criticism pertaining to the manner in
which the RAF and its attorneys have
litigated. Unnecessary
costs have been incurred. It would be appropriate to consider
costs orders
de
bonis propriis
[15]
,
but no
such request was forthcoming. Instead a punitive costs order on
the scale as between attorney and client is sought.
Such order
will have a negative effect on the public purse to the detriment of
taxpayers whilst the real scapegoats are not punished.
In the
exercise of my discretion and having considered all aspects, I
decided to grant the customary costs orders.
IX
ORDERS
[44]
Consequently the following orders are made:
1.
The defendant shall pay to plaintiff the sum of
R1 491 787.00
,
(One million four hundred and ninety one thousand seven hundred and
eighty seven Rand);
1.1 In
the event of default on the above payment, interest shall accrue on
such outstanding amount at 10.25%
per annum
(the
mora
rate of 3.5% above the repo rate on the date on this order, as per
the Prescribed Rate of Interest Act, 55 of 1975, as amended),
calculated from due date as per the
Road Accident Fund Act until
the
date of payment;
2.
Defendant shall pay the plaintiff’s taxed or agreed party and
party costs which costs
shall include, but not be limited to the
following:
2.1 The
fees of senior junior counsel, such costs to include his
travelling and accommodation
costs and of preparing heads of
argument;
2.2 The
costs of obtaining all expert medico-legal, actuarial, and any other
reports of an expert nature, including
the supplementary reports,
which were furnished to the defendant and/or it’s experts as
well as in respect of the joint minutes;
2.3 The
costs of obtaining documentation / evidence, scans, considered by the
experts(s) to finalise their reports;
2.4 The
reasonable taxable qualifying, preparation, reservation and
attendance fees of all experts, including
the costs of consultation
fees with the legal teams, if any, and with specific reference to Dr
J Sagor, Dr K Cronwright, Ms M Fourie,
Ms A Strauss and Ms M
Cartwright;
2.5 The
reasonable travelling and accommodation costs, if any, incurred by
all or any of the above experts as
well as the costs in transporting
the plaintiff to all medico-legal appointments;
2.6 The
reasonable travelling and accommodation costs of plaintiff and her
son, Marlon Mcewan, in relation to
transport from Cape Town to
Bloemfontein and the travelling and accommodation costs of Lt Col
Meintjies;
2.7 The
above-mentioned payment with regard to costs shall be subject to the
following conditions:
2.7.1 The plaintiff
shall, in the event that costs are not agreed, serve the notice of
taxation on the defendant’s attorney
of record; and
2.7.2 The plaintiff shall
allow the defendant 14 (fourteen) calendar days to make payment of
the taxed costs;
2.7.3 In the event of
default on the above payment, interest shall accrue on such
outstanding amount at the prescribed
mora
rate on the date of
taxation / settlement of the bill of costs, as per the
Prescribed
Rate of Interest Act, 55 of 1975
, as amended calculated from due date
until the date of payment.
3. The RAF is
ordered, by agreement, to provide the required and customary
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act to
plaintiff.
J P DAFFUE, J
On
behalf of plaintiff
: Adv M Combrink
Instructed
by
: Kruger & Co
c/o Pieter Skein
Attorneys
BLOEMFONTEIN
On
behalf of defendant
: Adv P G Chaka
Instructed
by
: Maduba Attorneys
BLOEMFONTEIN
[1]
Esso Standard South Africa (Pty) Ltd v Katz 1981
(1) South Africa 964 (A) at 970D-H.
[2]
NK v MEC for Health, Gauteng
2018 (4) SA 454
(SCA) at par [16].
[3]
See the discussion in RAF v Guedes
2006 (5) SA
583
(SCA) at par [9] and also the eventual 20% contingency
percentage applied at paras [17] & [18] in the ‘but for
scenario’.
[4]
RAF v Kerridge
2019 (2) SA 233
(SCA) at paras [41] – [44]
.
[5]
Para [25].
[6]
Grobbelaar v RAF 2015 (7E3) QOD 1 (GNP).
[7]
Alla v RAF 2013 (6E8) QOD 1 (ECP).
[8]
Thlakane v RAF 299632/2014 [2015] ZAGPPHC 853.
[9]
“
NK v MEC for Health, vide footnote 2, at
par [13].
[10]
Aeschliman v RAF 1378/07 [2009] ZAECEHC 7 (7
April 2009).
[11]
Rieder v RAF 2011 (6E6) QOD 1 ECG.
[12]
Van Rensburg v AA Mutual Insurance Co Ltd.
[13]
Nel v RAF 2017 (7E4) QOD 26 (GP).
[14]
Free State Division case number 5637/2016, a judgment delivered on 2
May 2019.
[15]
L v MEC for Health, Gauteng
2015 (3) SA 616
(GJ),
quoting with approval Mlatsheni v RAF.