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[2019] ZAFSHC 98
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Bethelhem DIY (EDMS) Bpk v Sentari Drie (EDMS) Bpk (A28/2019, 594/2012) [2019] ZAFSHC 98 (28 June 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3329/2017
In
the matter between:
THATO
SOLOMON HLALELE
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
CORAM:
MHLAMBI, J
HEARD
ON:
5, 6, 14, 18 & 25
March 2019
DELIVERED
ON:
24
June 2019
MHLAMBI,
J
[1]
This
matter represents a claim for compensation for damages flowing from
injuries sustained in a motor collision which occurred
on 20
September 2008.
[2]
On 7 October 2014, the trial served before my sister Ebrahim
J, and the question of liability was settled 100% in favour
of the
plaintiff. The aspect of the determination of the award of damages,
if any, was postponed for later adjudication.
[3]
At the inception of the trial, the parties made known that the
general damages were settled at R600 000.00 (six
hundred
thousand rands) and that the defendant would provide the plaintiff
with an undertaking in terms of
section 17
(4) (a) of the
Road
Accident Fund Act, 56 of 1996
. The only issue for adjudication was
the plaintiff’s claim for past and future loss of income or
earning capacity.
[4]
The plaintiff filed an actuarial report by Munro Actuaries
while the defendant did not file such a report. A direction
was
sought and granted that the actuary need not testify but that the
court would make an order on the contingencies to be applied.
The
actuaries would be directed, if needs be, to make a re-calculation of
the damages suffered by the plaintiff.
[5]
The plaintiff’s case is based on the evidence of Dr
Ziervogel (an orthopaedic surgeon), Dr JA Smuts ( a neurologist),
Ms
Melloney Smith (an occupational therapist), Mr Mallinson ( a
psychologist with a special interest in neuropsychology), Dr AC
Strydom ( an industrial psychologist), the plaintiff, Mr Willie
Coetzee ( a foreman at Lonmin mine). The defendant led the evidence
of two experts: Dr Ngqandu (a neurosurgeon) and Dr Rapapali (a
clinical psychologist).
[6]
It is appropriate, at the outset, to set out the parties’
submissions in brief before discussing the evidence as they,
in my
view, determine the parties’ approach to the testimony and the
case as a whole. On behalf of the plaintiff, it was
submitted that
the actuarial calculation of the plaintiff’s future income
potential was based on the normal retirement age
of 62.5 years and
that the experts identified the following main risks which could have
a negative impact on the plaintiff’s
future earning capacity:
6.1.
As a result of the orthopaedic injuries and the hemiparesis on the
right side, the Plaintiff’s concussive head injury
with
associated moderately severe brain injury, the plaintiff was only
able to do medium type of physical work. The severe brain
injury was
likely to affect his performance and it would have an effect on his
progression/promotional opportunities, should he
seek alternative
employment;
6.2.
The neuropsychological deficits identified and in particular the
Plaintiff’s poor auditory and visual attention;
6.5.
The plaintiff’s neuropsychological difficulties were now known
to the employer. The seriousness of his forgetfulness
was monitored
by the employer and threatened his position as an acting foreman.
6.6.
The imminent closing down of the horizontal shaft where the plaintiff
currently works, will, in the not so distant future,
make it
difficult for him to obtain alternative employment as a result of all
the risks mentioned. He is also not able to pass
the physical
examination to work in the vertical shafts. He is therefore in danger
of being retrenched and/or dismissed in the
near future.
[7]
It was submitted on behalf of the defendant that:
7.1
The plaintiff, pre-accident, worked at Lonmin as an apprentice and
has since qualified as an electrician and is currently employed
as
such;
7.2
At the time of the accident, he earned R 8 686.00 per month and
his current salary is R 33479.00 per month;
7.3
The plaintiff is HIV positive and receives treatment in that regard;
7.4
His earning capacity quadrupled after the accident. His earning
capacity improved significantly instead of decreasing and
7.5
The accident had not resulted in the loss of earning capacity;
consequently, there was no diminution of the plaintiff’s
patrimony.
[8]
Dr Ziervogel examined the Plaintiff on 28 October 2011 and on
15 October 2018. He recorded the Plaintiff’s complaints
as:
“
The
right side of his body, including the arm and leg feels weak.
He sometimes experiences a tremor in the right arm. The
right leg
feels heavy and he cannot jog anymore”
[9]
He concluded that the patient sustained a serious brain injury
with hemiparesis. Though this improved, more improvement
was
unlikely. As at 15 October 2018, the plaintiff still had weakness
(4/5) on the right side. No further improvement could be
expected. A
report by a Neurosurgeon would be of value as he complained about a
loss in memory. Reports by a Neurologist and a
Clinical Psychologist
would be of value. His diagnosis and evidence were not disputed
during cross-examination.
[10]
Dr Smuts testified that the Plaintiff had a Glasgow Coma Scale
(“GCS”) of 3/15 and 7/15 before being intubated.
He
endorsed the findings of Dr Ziervogel and opined that the plaintiff
sustained a significant concussive head injury with an associated
moderately severe brain injury.
[11]
On the neurological and other sequelae, he reported as follows:
“
Right hemiparesis-right arm
:
His
arm was very weak after the accident. He could not even hold a glass
of water. He says he does not use the hand a lot. He cannot
pick up
objects with both hands as the object will fall out of the right
hand. He explains the whole of the right side of his body
feeling
different from the left side.
Right
leg
He
was paralyzed on the right side after the accident. He became better
but he is still hampered with a very heavy right leg, that
is slow
unable to run, kick a ball, walk fast and walking on uneven terrains
are difficult. A significant part of the leg weakness
is however of
upper motor neuron origin.”
[12]
With regards to the plaintiff’s memory, he recorded the
following in his expert report:
“
He
forgets quickly and he needs someone to remind him, even when he has
a job card in his hand, he will feel uncertain about what
he needs to
do. He has a supervisor who has to check his work and also sign it
off with him
.”
The report goes on to state that memory impairment and personality
change are well-known problems in patients with closed
head injury
and often very disabling. Insofar as the Plaintiff’s memory and
personality problems were concerned, he deferred
to the opinions of a
psychologist and/or a psychiatrist.
[13]
His evidence was largely uncontested. He was cross-examined about the
impact of the Plaintiff’s HIV status on his neurological
status
and the doctor was of the view that there was no specific
neurological dysfunction of the Plaintiff as a result of his being
HIV positive. He testified that a patient who regularly took his
anti-retroviral drugs and who is likely to continue doing so,
is
expected to live well beyond the normal retirement age. The HIV did
not have an effect on the plaintiff and he agreed with the
opinion
expressed by Dr Ngqandu in his report
[1]
on life expectancy that the plaintiff’s longevity was not
affected.
[14]
Having assessed the Plaintiff and ascertained his work history, Ms
Smith reported that the physical demands of the Plaintiff’s
work as an electrician fell into the category of light to heavy work
depending on the task he was busy with. She recorded that
the
Plaintiff worked in a team with one electrical aid and two
assistants. He therefore had assistance with load handling if
required.
His work was supervised by another supervisor and a
foreman. When questioned about his work-related problems, the
plaintiff informed
Ms Smith that the right side of his body continued
to tire more easily and he remained forgetful. He also experienced
headaches.
[15]
When considering the plaintiff’s physical abilities, he
displayed the abilities to do medium physical work. He presented
some
features suggesting mild right sided
hemi paresis,
affecting
the strength and endurance on the right side. His work-related
physical complaints were therefore justified. The plaintiff
was
therefore likely to be slower than his peers and would be required to
put in more effort when assisting with heavy tasks. He
was reliant on
assistance with heavy tasks in the work environment. From a physical
point of view, Ms Smith opined that the plaintiff
was best suited to
do light to medium type of physical work and accordingly, there has
been a loss in physical capacity that affected
his job choices and
opportunities.
[16]
Ms Smith opined that the neuro-cognitive deficits identified by Mr
Mallinson and Dr Rapapali and Dr Smuts’ diagnosis
of a moderate
to severe brain injury, are likely to affect the plaintiff’s
performance and require some form of supervision
at work. She agreed
with Mr Mallinson that the said deficits will have an effect on the
plaintiff’s career progression/promotional
opportunities and
would be a liability were he to seek alternative employment.
[17]
Save for some questions on the impact of HIV and Aids on a patient’s
longevity, Ms Smith was not cross-examined on her
evidence in court
and/or the findings in her expert report. Ms Smith conceded that HIV
is a disease that progresses with time,
but she was of the view that
a specialist physician should comment on the likelihood when the HIV
virus would turn into the Aids
syndrome, having regard to the fact
that the patient takes the ARV medication.
[18]
The plaintiff gave evidence about his physical limitations
i.e.
the weakness of the right side of his body and cognitive limitations.
He explained the requirements to obtain a “red ticket”
(which he described as a heat tolerant fitness medical certificate)
and the fact that he, as a result of his physical limitations,
did
not qualify to obtain a “red ticket” to work in vertical
shafts. He obtained his “red ticket” to work
in the
horizontal shafts. He pointed out that Lonmin is the only mine in the
Rustenburg area that mines horizontal shafts. All
the other mines
only have vertical shafts. Insofar as his physical limitations are
concerned, he explained that he worked in teams
and, as an
electrician, he had the assistance of electrical aids to help him
with the physical components of his work which he
was not able to
execute, especially when he had to do certain emergency work
involving a physical element.
[19]
His work was predominantly repetitive in nature. He serviced
underground locomotives for which he has to complete a checklist.
Insofar as his cognitive limitations are concerned, he
testified that he is very forgetful. He would forget his tools on
a
locomotive having serviced it. He would forget to inform his superior
when he completed certain tasks, and on more than one occasion
forgot
to switch off the electricity before working on certain equipment.
There is a lockdown procedure that one has to follow
in order to
switch the electricity off before working on certain components
underground. He knew the procedure very well, but at
times he forgot
to follow it. Fortunately, the electrical aids who worked with him,
would normally check whether he had indeed
followed the lockdown
procedure. If he had not done so, they would remind him to first
follow the lockdown procedure before working
on a certain electrical
component.
[20]
He testified that his superiors reprimanded him about being
forgetful. He started to act as the electrical foreman in the past
two weeks. This acting job entails that he has to meet daily with the
engineers from whom he receives instructions relating to
certain
tasks which are to be performed by electricians and electrical aids.
It is the Plaintiff’s duty to ensure that those
tasks are
executed by the electrical teams. The tasks involve, amongst others,
maintenance of mini-substations, random electrical
repair work in the
mine, repair and/or maintenance of the ventilation system within the
mine shaft. He is also responsible to take
delivery of various
electrical components from suppliers and ensure that those components
reach the electrical teams within the
mineshaft in order for them to
be able to execute the work. He must ensure that the legal documents
and paperwork relating to the
maintenance and repairs executed in the
mine are up to date.
[21]
To overcome his forgetfulness, he testified that he regularly made
notes in order to remind him of tasks to be executed. He
requested
the mine to provide him with assistance to do the paperwork and Olga
Phahlane was allocated to him for such assistance.
[22]
According to the Plaintiff, the risks involved with his new acting
position are very high. Should he forget to execute an instruction,
a
mini-substation could explode if it were not maintained; the
ventilation system in the shaft could shut down endangering the
lives
of the workers and if maintenance in the mine is not executed on
time, it could cause a shutdown of mine production. He expressed
concerns about his job security as the mine superiors indicated in
management meetings that the particular shaft would be shut
down
soon. The shaft at which he works is the only horizontal shaft left
at Lonmin, with a life span of only 18 months to 2 years.
[23]
He conceded during cross-examination that he noticed that he had
contracted the HIV virus while he was at the Pelonomi hospital
following the accident. He conceded that he might have contracted the
virus prior to the accident even though he tested HIV negative
in
2008. He started then to take the ARV medication to date. He
confirmed that at the time of the accident he was busy with training
to become a stope serviceman. He started training as an electrician
during 2010 which qualification he obtained during 2013. He
acknowledged that he progressed after the accident and earned more
thereafter than before as indicated on the various pay slips.
[24]
Mr Mallinson testified that he is a member of Headway, an
organization that deals with the rehabilitation of brain injured
individuals and he is also a member of the South African Clinical
Neuropsychological Association (SACNA). He testified that SANCA
is
not a statutory body registered with the Health Professionals Council
of South Africa, but it is the only way of claiming accreditation
in
the field of Neuropsychology because it involves writing exams,
submitting papers and a constant peer review of one’s
colleagues to ensure that one’s work complied with the high
standard expected of a Neuropsychologist.
[25]
The neuropsychological testing of the plaintiff revealed the
following difficulties:
25.1
Difficulty with working memory;
25.2
Poor auditory attention, particularly on complex tasks;
25.3
Mild visual attention difficulties;
25.4
Psychomotor slowing;
25.5
Subtle planning difficulty on unstructured tasks.
[26]
He was of the opinion that the difficulties were consistent with a
moderate to moderately severe concussive brain injury and
they would
be considered permanent. Although the Plaintiff was able to return to
work, he opined that he still demonstrated neuropsychological
difficulties, which would make him less effective and efficient in
the workplace as he could be more error prone. This would probably
have a negative effect on his career path in terms of receiving
promotion and may well be an impediment if he were to seek employment
outside of the mining industry. His neuropsychological difficulties
should be taken into account by the Industrial Psychologist
when
determining his post-accident level of employability and earning
potential.
[27]
Dr Mallinson testified that it was understandable that the plaintiff
was able to cope as an electrician, although with limitation,
because
there were other persons on whom he could rely on to mask his
neuropsychological difficulties. An example is when he forgets
to
turn off the electricity before working on a certain electrical
component, the electrical aides would remind him to follow the
electrical shut down procedure. However, now that he was responsible
for the execution of the instructions from the engineers,
he had to
ensure that the electricians executed those tasks. He would not be
able to hide his neuropsychological difficulties as
he would not be
supervised. Accordingly, his neuropsychological difficulties,
especially his poor auditory and visual attention,
would be exposed.
He agreed that the difficulties identified by Dr Rapapali would be
consistent with the presence of the neuropsychological
deficits and
were in keeping with his finding as summarized in his report.
However, he did not agree with Dr Rapapali’s conclusion
that:
“
from the neuropsychological point of view, the
neuropsychological injuries suffered in this accident are not
associated with the
reduction in competitiveness in the open labour
market.”
He testified that once the neuropsychological
deficits, as identified by him, are present, it automatically has an
effect on an
individual’s competitiveness in the open labour
market.
[28]
Dr Strydom was of the view, having regard to the Plaintiff’s
work history, both pre- and post-accident and the opinions
of the
experts, Dr Ziervogel, Dr Mallinson, M Smith and Dr Smuts that:
28.1
The plaintiff suffered a loss of employability, and subsequent
earning capacity;
28.2
He is regarded as less competitive and a vulnerable employee;
28.3
He had probably reached his career ceiling and no further promotional
opportunities are envisaged;
28.4
The employer rated his post-accident performance lower compared to
before the accident and should he lose his current position
for any
reason, he is not sure whether the Plaintiff would be able to secure
the same employment at another mine where they are
not aware of his
pre-accident performance levels.
28.5
The plaintiff is at a high risk of losing his job because he is error
prone.
28.6
The plaintiff should be compensated for the likelihood of not being
promoted to the position of foreman, being a less competitive
job
seeker and vulnerable employee who would not be able to study
further. His current earnings plus normal inflationary increases
should thus be considered as his career ceiling.
[29]
Dr Strydom commented that the plaintiff was recently moved to an
office position. She agreed with Dr Mallinson that the Plaintiff’s
neuropsychological difficulties would now be exposed and he faced a
greater risk of losing his work. If he were to be dismissed
or
retrenched, he would find it very difficult to obtain work in another
mine as a result of his neuropsychological difficulties,
physical
impairments and inability to obtain a “red ticket” to
work in the vertical shafts. These risks should be addressed
by way
of applying an appropriate high contingency to the Plaintiff’s
future earning capacity.
[30]
Mr Coetzee is the plaintiff’s direct supervisor at Lonmin Mine.
Until approximately two weeks ago, the plaintiff was
his charge hand
or direct assistant. He testified that the plaintiff is a very proud
and hardworking individual. The plaintiff
worked slowly. He had
attributed that to the plaintiff’s being diligent. The
plaintiff was at times forgetful as he would
forget to report to him
after completing a task or would forget to inform him of important
aspects.
[31]
To compensate for his forgetfulness, the plaintiff constantly made
notes but, despite the notes, he remained forgetful. He
testified
that there were various quarrels between him and the Plaintiff as a
result of his forgetfulness. On Wednesday, 6 March
2019, he became
aware that the plaintiff had, in the past, forgotten to follow the
lockdown procedure and he immediately scheduled
a meeting with the
mine engineer to address the issue. According to him, the seriousness
of the Plaintiff’s forgetfulness
cannot be overlooked because
it endangers the lives of not only the Plaintiff, but also other
workers and he does not foresee that
the Plaintiff will be able to
work in that capacity any longer.
[32]
He confirmed that there is a serious risk that the Karee Belt 4 Shaft
of Lonmin mine will be closed down in the foreseeable
future. In this
regard the mine management had already taken active steps to inform
the workers of the fact that there is a real
possibility of closure
of the shaft. The shaft operated below its expected production. The
Plaintiff was appointed as acting foreman
because he, Mr Coetzee, was
instructed to spearhead a new division. Even in the acting position,
he had serious reservations whether
the Plaintiff would continue to
act in that capacity due to his forgetfulness and the serious risks
involved in the event that
the plaintiff should forget to execute an
instruction.
[33]
Dr Ngqandu confirmed that the Plaintiff suffered a severe head injury
in the accident. He confirmed that the claimant’s
post-accident
impairments included difficulty in running and forgetfulness which
affected his work. In his evidence in chief, he
did not testify that
the Plaintiff suffered a right-sided hemiparesis. He confirmed during
cross-examination that the claimant
was at risk of developing
seizures as a result of the accident and the risk is 4 to 8 times
higher than that of the general population.
[34]
Dr Ngqandu accepted that the Plaintiff’s memory problem is a
cognitive deficit which one expects in the event of a severe
head
injury, but he, as a neurosurgeon, was not equipped to test the
extent of the neurocognitive deficits and accordingly, he
deferred to
a Neuropsychologist for a detailed assessment. He conceded that he
could have missed the diagnosis especially as all
the other medical
experts diagnosed the Plaintiff with a right sided hemiparesis. Dr
Ngqandu also conceded that it was not unusual
for brain injury
patients to suffer a hemiparesis following a severe traumatic brain
injury and that the head injury could cause
memory difficulties.
[35]
Dr Rapapali testified that HIV has a degenerative effect and that the
plaintiff’s neuropsychological difficulties were
not as a
result of the accident but as a result of the plaintiff’s HIV
status. Consequently, the injuries had no impact on
the plaintiff’s
future earning capacity. However, he was unable to explain why he
left out the HIV assessment in his report
on which he based his
conclusions. He could also not explain why he equated chronic
medication to HIV.
[36]
He differed with Mr Mallinson on the psychosomatic symptoms and
maintained that the plaintiff’s slowing down with executive
functions was as a result of the HIV. He never observed any serious
head injuries on the plaintiff but could not oppose the neurologist’s
report that the plaintiff sustained a significant concussive head
injury with an associated moderately severe brain-injury. He
did not
speak to the neurologist, Dr Smuts, at all and took note that the
latter’s evidence in court remained unchallenged.
He confirmed
that Dr Ziervogel was correct in his diagnosis on
hemi
paresis
which was a direct result of brain-injury. He agreed with Mr
Mallinson’s findings
[2]
as
to the difficulties revealed by the neuropsychological testing. This
assessment was conducted seven years following the injury
and,
according to Mr Mallinson, would be considered permanent and no
further improvement could reasonably be expected. Dr Rapapali
agreed
fully with Dr Smuts, Mr Mallinson and the other experts but differed
with them on the effect that HIV had on the plaintiff.
[37]
The legal position relating to a claim for diminished earning
capacity is trite. The mere fact of a physical disability does
not
necessarily reduce the estate or patrimony of the person injured
[3]
.
In
Benjamin Petrus
Malan v Road Accident Fund
[4]
,
Makgoka
J (as he then was) expressed the position as follows:
“
[12]
It is trite that the plaintiff bears the onus of proving on a balance
of probabilities that any pathology emanating from the
accident
explains his current complaints which disables him from continuing
with his job as a car sales representative, as he was
able to do
pre-morbidly.
The
court must determine first, whether the injury has translated into
diminution in earning capacity, and second, the extent of
such
diminution. In the process of such determination. It must be
established with some certainty, among others, what impact the
accident had on the Plaintiff in carrying out his duties as a car
sales representative; the future opportunities the plaintiff
was
likely to be presented with, but for the accident; if plaintiff,
post-accident, was employed sympathetically; and whether the
plaintiff received any warnings for lack of application or
performance.
[13]
These are all very important and pertinent considerations in
determining whether, in fact, the plaintiff has suffered
diminution
in his earning capacity as a result of the accident. It is important
to emphasise that the mere fact of physical disability
does not
necessarily reduce the estate or patrimony of the person injured.
Put
differently, it does not follow from proof of a physical injury which
impaired the ability to earn an income that was in fact
a diminution
in earning capacity.
See Union and National Insurance Co. Ltd v
Coetzee
1970 (1) SA 295
(A) at 300A; Sanlam Versekering Maatskappy
Bpk v Beyleveldt
1973 (2) SA 146
(A); Dippenaar v Shield Insurance Co
Ltd
1979 (2) SA 904
(A)”. (Underlining my emphasis)
[38]
Both counsel referred me to various pertinent authorities, some of
which I have referred to above. Mr Mopeli referred me to,
inter
alia,
two decisions of this Division on which I comment briefly:
Sechogo
Josias Mooki v The Road Accident Fund
[5]
and
BC
Van Rooyen N.O obo SC Hlatjawo vs. The Road Accident fund
[6]
.
[39]
The reference to
Mooki
vs. Road Accident Fund
is distinguishable from the present case (Mr Mopeli acted as counsel
in this matter). The claimant in that matter was a school
principal
and the core functions as detailed in the industrial psychologist
report did not demand of him to engage in extensive
physical
activities. The extramural activities he engaged in were part of
extra work to enhance his score on his employer’s
integrated
quality management assessment. The evidence of the experts showed
that the plaintiff’s injuries did not affect
his ability to
perform his core duties as a principal
[7]
.
The court was of the opinion that the pain and suffering (pain on his
ankle and wrist) he continued to endure, could be dealt
with under
the heading dealing with general damages. The loss in work capacity
did not directly translate into the diminution his
estate.
[40]
In
Van
Rooyen
,
supra
,
the actuary’s calculation was based on the evidence that the
patient was, at a very young age, already diagnosed as being
HIV
positive and most probably born as such
[8]
.
The actuary conceded that the patient’s HIV status posed a high
risk of her falling ill and becoming unemployable, at least
intermittently. The court was of the view that that called for a
higher contingency to be applied
[9]
.
I agree with Mr Zietsman’s argument that this case is
distinguishable from the present one especially viewed in the light
of Dr Rapapali’s evidence as shown below.
[41]
In
Thobega
Botshelo Mercy vs. The Road Accident fund,
[10]
one of the issues for determination was the future loss of income.
The industrial psychologists agreed about the plaintiff’s
pre-accident education and her career path and income up to the date
of the accident. The plaintiff’s industrial psychologist,
after
considering her pre and post- accident work history, was of the view
that, based on the plaintiff’s positive work feedback,
her
career progress and subsequent salary increments since her employment
and even after the accident it seemed that her career
and earnings
have not been significantly negatively impacted upon. Post-accident
she was promoted to a training officer and earned
about three times
her pre-accident salary as per the industrial psychologist joint
minute. Prior thereto, she had completed an
education training and
development practitioner certificate course on a part-time basis in
July 2016 having enrolled for it in
February 2014 at the same
institution. During 2018, she was enrolled in a ten-month leadership
training course.
[42]
In dismissing the claim for the future loss of income, the court took
into account that the plaintiff currently earned almost
three times
her pre-accident salary; she had done very well even post-accident in
terms of educational advancement and that she
should be able to
progress further. Her salary would be further increased upon
completion of her ten-month leadership course. The
psychological
disorder seemed mostly due to her facial disfigurement which could be
alleviated by psychological counselling as
well as other treatment
suggested by the relevant experts. Consequently, on the evidence
presented, the disabilities from which
the plaintiff suffered or
would suffer in future would not, in the court’s view, impair
her capacity to do her work. The
plaintiff was, prior to the
accident, employed as a junior process controller at an iron ore mine
at Kuruman.
[43]
It was submitted on behalf of the plaintiff that the court should
consider a direction to the actuary to do a recalculation
which
should apply the following contingencies:
5%
for uninjured past earnings, 15% for uninjured future earnings, 5%
for injured past earnings and 47.5% for injured future earnings.
The
actuaries’ report calculated the capital value of loss of
earnings as follows:
Capital
Value of Loss Earnings (Excluding the RAF cap)
Uninjured
Injured
Loss of
Earnings
Earnings Earnings
Past
R 4 529 400
R 4058 100
Less
Contingencies
5%
5%
______________________________
R
4 302 930 R 3 855 195
R 447 735
Future
R 10 125 300
R 10 125 300
Less Contingencies
15%
45%
__________________________________
R
8 606 505 R 5 568 915
R 3 037590
TOTAL LOSS OF EARNINGS
R 3 485 325
[44]
As stated earlier, the defendant did not consult an actuary and there
was no rebuttal of the actuarial methods adopted by the
actuary nor
were the correctness of the calculations challenged in any way. There
is no reason therefore, why the calculations
of the actuary cannot be
taken into account in order to determine a just, reasonable and
realistic amount to represent an amount
for those damages in the
event of a finding that the applicant did suffer a loss of income or
loss of earning capacity as a result
of the
sequelae
of the
injuries sustained in the collusion.
[45]
In
Kleinhans
vs. Road Accident fund,
[11]
the court held on appeal that the court below had committed a
misdirection in finding that the appellant had failed to prove a
loss
of earnings/earning capacity following his inability to continue
working as a bus driver. “
The
capacity which the appellant had to earn money as a bus driver is now
no longer available to him, and this lost capacity, considered
in law
to be part of the appellant’s estate, must be seen as a loss
diminishing his estate in view of the authorities quoted”
[12]
.
The
court had therefore erred in not allowing an award in respect of loss
of earnings or loss of earning capacity flowing from the
truncation
of the appellant’s career as a bus driver.
[46]
In casu,
it is clear that the evidence tendered by the
plaintiff’s employer stood unchallenged. Mr Coetzee’s
testimony clearly
set out in an objective manner the plaintiff’s
work performance after the accident and disclosed the employer’s
views
of the plaintiff. All the expert reports are before the court
from which it can be deduced that the accident had resulted in a
number of psychological and cognitive
sequelae
. The
plaintiff’s assertions of memory and concentration
difficulties, are supported by the evidence of the employer and the
industrial psychologist, Dr AC Strydom.
[47]
The evidence presented by the defendant, instead of opposing or
neutralising the plaintiff’s, strengthened it.
As pointed
out by Mr Zietsman, the cross-examination by the defendant’s
counsel, focused largely on the fact that the plaintiff
was HIV
positive. The evidence not only suggested that the plaintiff was a
healthy individual and that he regularly took his ARV
medication,
there is absolutely no evidence whatsoever to the effect that the
plaintiff had contracted the AIDS syndrome or that
his HIV status had
progressed to that level. The HIV positive status would not have a
negative effect on the plaintiff’s
life expectancy and future
loss of earning.
[13]
[48]
It is clear from the evidence that the defendant’s counsel was
influenced by Dr Rapapali’s report on the plaintiff’s
HIV
status. Dr Rapapali’s opinion is not founded on logical
reasoning or based on any evidence, whether of his own or the
other
competent witnesses.
[14]
His
evidence was unsatisfactory and stood to be rejected in so far as it
differed with the evidence of the other expert witnesses.
I accept
the evidence and findings of Mr Mallinson and deem him a credible
expert witness with specialised skill.
[49]
It is also evident from the testimony of the plaintiff, Mr Coetzee
and the industrial psychologist that the plaintiff was afforded
the
services of an assistant to perform some of his administrative tasks
because of his failing memory. Having considered the evidence,
I am
of the view that the disabilities from which the plaintiff suffers or
will suffer in the future, will impair his capacity
to work. The
plaintiff has succeeded to prove that his patrimony has been
diminished due to loss of earning capacity. The capacity
which the
appellant had to earn money as mine worker, is no longer available to
him and this lost capacity, considered in law to
be part of the
appellant’s estate, must be seen as a loss diminishing his
estate.
[15]
Furthermore, being
error-prone, the plaintiff runs the risk of losing his employment.
The industrial psychologist was of the opinion
that it was not
certain whether the plaintiff would be able to secure employment at
another mine where his pre-morbid performance
levels were
unknown
[16]
. Besides, the
employer had indicated the closure of the only horizontal shaft at
Lonmin where the plaintiff works.
[49]
In conclusion, I am satisfied that the plaintiff has succeeded to
prove that he has suffered loss of earning capacity as claimed.
Despite being urged to direct the actuaries to do a recalculation as
suggested, I am satisfied with the actuaries’ computation
of
the plaintiff’s loss of earning capacity and that, all the
circumstances taken into account, the plaintiff would be properly
and
adequately compensated if an award is made accordingly. I therefore
exercise my discretion in favour of the plaintiff in the
amount as
set out in the actuaries’ report.
[50]
In the circumstances, I see no reason why the costs should not follow
the result. On 08 March 2019 the matter was postponed
to 14 March
2019 for purposes of leading the defendant’s second expert
witness. The matter was postponed on that day to another
date as the
said expert witness was unavailable and the costs stood over. It is
appropriate to grant the wasted costs of that day
in favour of the
plaintiff and it is so ordered.
[51]
I make the following order, having taken into account the draft
submitted by the appellant’s counsel during the proceedings
containing the provisions generally found in orders of this nature.
Order
1.
The defendant is liable for payment to the plaintiff in the amount of
R 4 085 325.00
(four million, eighty-five thousand, three
hundred and twenty-five rands only in full and final settlement, as
set out hereunder:
1.1
R 447 735.00
in respect of past loss of income;
1.2
R3 037 590.00
in respect of future loss of income;
1.3
R600 000.00
in respect of general damages resulting from a motor vehicle
collision that occurred on
20 September 2008
.
2. The
defendant is ordered to furnish to the Plaintiff an undertaking in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
,
for 100% of the costs of the 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
mentioned
above, 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.
3. The
defendant to pay the plaintiff's taxed or agreed party and party
costs on the High Court scale which shall
include the costs mentioned
in paragraph 50 above, until date of this order, including but not
limited to the costs set out hereunder:
3.1 The costs
attendant upon the obtaining of payment of the amounts referred to in
this order;
3.2 The reasonable
preparation / qualifying / accommodation / travelling and full
reservation fees and expenses (if any) of
the following experts, and
the costs relating to the plaintiff attending their medico legal
examinations:
3.2.1 Dr JJ
Schutte (General Practitioner);
3.2.2 Dr RS
Kahn (General Practioner);
3.2.3 Dr JF
Ziervogel (Orthopaedic Surgeon);
3.2.4 Dr J
Smuts (Neurologist);
3.2.5
Melloney Smit (Occupational Therapist);
3.2.6 Brian
Mallinson (Psychologist);
3.2.7 Dr AC
Strydom (Industrial Psychologist);
3.2.8 Munro
Actuaries (Actuaries).
3.3 The counsels’
costs of preparing for, and attending to pre-trials, and costs
associated with necessary consultations
with the plaintiff, the
plaintiff’s attorneys, the plaintiff’s witnesses and the
plaintiff’s experts;
3.4 The attorneys’
costs of preparing for, and attending to pre-trials, and costs
associated with necessary consultations
with the plaintiff, the
plaintiff’s witnesses and the plaintiff’s experts;
3.5 The travelling
costs occasioned by the plaintiff and the plaintiff’s witnesses
to attend to necessary consultation
with his attorney and expert
witnesses.
3.6 The reasonable
travelling and accommodation fee of the witness, Mr Willie Coetzee,
who is declared a necessary witness.
4. The
payment provisions in respect of the aforegoing are ordered as
follows:
4.1
Payment of the capital amount shall be made without set-off or
deduction, within 30 (thirty) calendar days
from date of the granting
of this order, directly into the trust account of the plaintiff's
attorneys of record by means of electronic
transfer, the details of
which are the following:
Honey Attorneys
-
Trust Account
Bank
- Nedbank, Maitland Street, Bfn
Branch Code
- 11023400
Account No.
- [….]
Reference
-
HL Buchner/J03083
4.2
Payment of the taxed or agreed costs shall be made within 14
(fourteen) days of taxation, and shall likewise
be effected into the
trust account of the plaintiff’s attorney;
4.3 No
interest will accrue in respect of any of the aforesaid amounts if
payment is made on or before the stipulated
dates;
4.4
Should payment not be made in respect of any of the aforesaid amounts
on or before the stipulated date(s),
interest will accrue at 10.25 %
(the statutory rate per annum), compounded.
5. In
the event that costs are not agreed, the plaintiff agrees as follows:
5.1 The
plaintiff shall serve a notice of taxation on the defendant's
attorney of record; and
5.2 The
plaintiff shall allow the defendant fourteen (14) court days to make
payment of the taxed costs.
____________
MHLAMBI,
J
Counsel
for the Plaintiff: Adv.
PJJ Zietsman
Instructed
by:
Honey
Attorneys
Noordstad
Kenneth Kaundaweg
Bloemfontein
Counsel
for the Defendant: Adv M Mopeli
Instructed
by:
Maduba Attorneys
Unit
1, Ground Floor
Canterbury Park
Westdene
Bloemfontein
[1]
Para 8.6 on page 325 of the expert notices bundle
[2]
These are set out in paragraph 6.7 and 6.8 on pages 205 to 206 of
the report; See para 25 above.
[3]
Union & National Insurance Co. Ltd vs. Coetzee
1970
(1) SA 295
(A) at 300A; Santam Versekering Maatskappy v Bylevedt
1973 (2) SA 146
(A); Dippenaaar v Shield Insurance Co. Ltd
1979 (2)
SA 904
(A); Krugell vs. Shield Ins. Co. Ltd
1982 (4) SA 95
(T) at
99E; Rudman v RAF 2003 (@) SA 234 (SCA); Prinsloo v RAF
2009 (5) SA
406
(SE)
[4]
Case No: 66248/2012 Delivered on 06 December 2016
[5]
Case No: 5978/2015 Delivered on 03 December 2018, unreported
[6]
Case No: 216/2016 Delivered on 28 February 2019, unreported
[7]
Paragraphs 18 and 19
[8]
Paragraph 12
[9]
Paragraph 13
[10]
74547/2015 Delivered on 30 July 2018 GSJ
[11]
supra
[12]
Kleinhans, supra, para 45.
[13]
LN v Minister of Safety and Security and another
2011 (5) SA 512
(KZP)
[14]
Coopers (South Africa) (Pty) Ltd
v Deutsche Gesellschaft Für Schädlingsbekämpfung MBH
1976 (3) SA 352
(A); Michael and another v Linksfield Park Clinic
(Pty) Ltd and another 2001 (3) SA 1188 (SCA)
[15]
Bailey (spura)
[16]
Report: Dr AC Strydom, para 16:Post-morbid
potential.