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[2019] ZAFSHC 168
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PM v Road Accident Fund (5881/2017) [2019] ZAFSHC 168 (19 September 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 5881/2017
In
the matter between:
P
M
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT:
MOENG, AJ
HEARD
ON:
13,
14 AND 16 AUGUST 2019
DELIVERED ON:
19 SEPTEMBER 2019
[1]
The
plaintiff claims damages from the Fund for bodily injuries she
sustained on
31
January 2016
in
a motor collision which occurred
at
or near Witsieshoek within the jurisdiction of this court.
[2]
Shortly before the start of the trial the liability of the Fund was
conceded and the defendant accepted its duty to compensate
the
plaintiff for her future medical expenses by way of an undertaking in
terms of section 17(4)(a) of the Road Accident Fund Act.
The
parties are however at odds with the plaintiff’s past medical
expenses,
past
and future loss of earnings and earning capacity as well as general
damages.
[3]
The plaintiff testified in support of her claim and led the evidence
of
Dr
LF.
Oelofse(Spine Surgeon) and
Mr
Ben
Moodie(Industrial Psychologist). The plaintiff was involved in a
motor vehicle accident on 31 January 2016. She was a passenger
in the
vehicle when it lost control and overturned.
[4]
She was taken to hospital by ambulance and was discharged on the same
day. She returned to hospital with complaints of pain
and she was
readmitted and
hospitalised
for
88 days. She suffered an injury to her neck (C1 and C2 vertebrae) and
to her knee. Her knee has however completely recovered.
[5]
She was on sick leave for three months after being discharged. She
soon resigned after her return to work as she could not cope
due to
severe pain. She experienced pain whenever she wanted to lift
anything heavy and whenever she lifted her arms above shoulder
height. She further suffered from severe headaches at least twice per
week. This incapacitated her from continuing to work.
[6]
She was employed at a crèche as a child minder. Her main
responsibility was to manage the crèche. The crèche
was
a nonprofit
organisation
started
by her mother. She took the management thereof over from her. The
crèche was financially sustained by funding from
the
Department of Social Services. She, and all other employees, earned
an income of R1750 per month.
[7]
Dr
Oelofse
examined the plaintiff on 31 January 2018. He was placed in
possession of her medical records. The history he obtained from
her
was in line with what was contained in the medical records. He noted
in the records that she was booked for surgery to her
neck but it was
never done. Cone calipers were applied to
immobilise
her spine injury
.
The calipers were removed shortly before her discharge. A cervical
collar was applied to her neck and she had to wear same for
three
months after her discharge.
[8]
She sustained a cervical spine injury (C1-C2 vertebrae). She had
severe limited neck movement and almost no rotation of the
neck. She
was still experiencing pain, two years after the accident. She
suffers from chronic headaches and pain. She will experience
chronic
pain for the rest of her life.
[9]
According to
Dr
Oelofse,
she will not be able to do physical
labour
again
and must be accommodated in a light duty/neck friendly environment as
determined by an occupational therapist. The joint minutes
by the
occupational therapists, Anthea Jansen and Success Moagi, however,
indicate that the plaintiff lacks the physical capacity
to meet the
full range physical demands of light, medium, heavy and very heavy
category of work.
[10]
Mr
Ben
Moodie based his evidence on the reports of
Dr
Oelofse
and the joint minutes of the occupational therapists. The plaintiff
completed grade 11 and failed grade 12. She worked as
a cleaner from
2004 until 2005 when she fell pregnant. She enrolled for an auxiliary
nursing course in 2006 but had to take over
the crèche when
her mother passed away in 2006. From January 2007 until January 2017
she worked at the crèche where
she earned R1750 per month.
[11]
According to
Mr
Moodie,
the plaintiff would have earned the minimum wage of R3500 per month
from August 2018 until the normal retirement age of
65 years had it
not been for the accident.
Mr
Moodie
says that the plaintiff has been rendered unemployable, having regard
to the joint minute of the occupational therapists
that she lacks the
physical capacity to meet the full range physical demands of light
and medium, heavy and very heavy category
of work. Sedentary work is
in his view in the category of light duty work.
[12]
He says the plaintiff’s lack of proficiency in English and her
lack of computer literacy will make her unsuitable for
sedentary work
and will thus render her unemployable. Her limitations, taking the
high levels of unemployment into account, will
make her an unfair
competitor against candidates who do not suffer from the same
limitations.
[13]
Counsel for the defendant,
Mr
Grewar,
argued in the main that the plaintiff did not prove that she is
totally unable to work. He submitted in his heads of argument
that
her whole person incapacity is 12%, that her mental capacity has not
been affected and that the possibility of finding employment
has not
been excluded. He further contended that her physical condition will
improve with the intervention of medical treatment.
[14]
It is common cause that the defendant did not lead any evidence in
rebuttal of the plaintiff’s evidence. I am however
mindful that
the plaintiff’s evidence and that of her experts should not be
accepted as a matter of course, simply because
the defendant did not
lead any evidence in rebuttal.
[15]
I am similarly alive to the fact that,
if
the court is unable to decide an issue without the assistance of
someone qualified to do so, it may not replace the opinion of
such an
expert with its own view without proper justification. There are
certain fields of expertise where courts cannot form independent
opinions in the absence of cogent expert evidence.
[16]
No evidence was tendered regarding the plaintiff’s past medical
expenses. This aspect may therefore be regarded as not
having been
proven. I need not deal with it any further.
[17]
The
submission by counsel that plaintiff did not prove that she is
totally unable to work is in my view without merit. The undisputed
evidence tendered by
Dr
Oelofse
and the contents of his report is that the plaintiff sustained major
trauma to her neck resulting in C1 and C2 fractures.
She is still
experiencing pain two years after the accident and she will
experience chronic pain for the rest of her life.
[18]
Dr
Oelofse
opined that she will not be able to do physical
labour
and
that she should be accommodated in a light duty/neck friendly
environment as determined by an occupational therapist. The joint
minutes by the occupational therapists, in turn, indicate that based
on her condition, she lacks the physical capacity to meet
the full
range physical demands of light category of work.
[19]
It
goes without saying that the purpose of a joint
minute
is to limit
the
issues to be tried and which expert evidence has to be presented.
In
the absence of a timeous indication from the defendant that it did
not wish to be bound by the agreement entered into by its
expert, the
plaintiff was entitled to assume that the matters agreed to between
the experts were not in dispute.
[20]
Where experts in a joint minute reach an agreement on an issue, they
signify that such an issue need not be adjudicated upon
as the
initial dispute simply does not exist. They in essence simply agree
that a fact or opinion is not in dispute and it will
in the normal
course of events not be open for a court to cut the veil of such an
agreement and question the veracity of the facts
or opinion contained
therein. By having reached an agreement, they put the dispute beyond
the need for adjudication. See
Jacobs v The Road Accident Fund
(4558/2012)
[2019] ZAFSHC 42
(2 May 2019).
[21]
Sutherland J
succinctly sets out the position regarding the effect of such
agreements between experts in
Thomas
v BD Sarens (Pty) Ltd
(2007/6636) [2012] ZAGPJHC 161 (12 September 2012) at para 11 and 12:
‘
Where the experts
called by opposing litigants meet and reach agreements about facts or
about opinions, those agreements bind both
litigants to the extent of
such agreements. No litigant may repudiate an agreement to which its
expert is a party, unless it does
so clearly and, at the very latest,
at the outset of the trial. In the absence of a timeous repudiation,
the facts agreed by the
experts enjoy the same status as facts which
are common cause on the pleadings or facts agreed in a pre-trial
conference’.
[22] The majority in
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA)
held that ‘effective case management would be undermined if
there were an unconstrained liberty to depart from agreements
reached
by the litigants' respective experts. There would be no incentive for
parties and experts to agree on matters because,
despite such
agreement, a litigant would have to prepare as if all matters were
in issue’. An approach, similar to the
one taken up by the
defendant in this case, goes against the grain and spirit of
efficient case flow management. With the known
pressures our courts
face with case management, precious court time is occupied with
non-existent disputes.
[23]
The majority in
Bee v RAF
further held that ‘the
position where experts in the same field reach an agreement differs
from the position where experts
differ on their respective opinions.
In cases where they differ in opinion, a court must determine whether
the factual basis
of a particular opinion, if in dispute, has been
proved and must have regard to the cogency of the expert's process of
reasoning’.
[24]
Logic dictates that where they agree, a court will in exceptional
circumstances reject the cogency of their opinion and agreement.
It
is only where their agreement goes against the grain of the evidence
in totality that it may be rejected. There is in my view
no factual
basis upon which I may reject the agreement reached by the
occupational therapists in their joint minute.
[25]
There
is no factual basis to doubt the evidence of Dr Oelofse and the joint
minute. The undisputed evidence led by Mr Moodie is
that
the
plaintiff has been rendered unemployable, having regard to the joint
minute of the occupational therapists. Sedentary work is
in his view
in the category of light duty work. The plaintiff’s lack of
proficiency in English and her lack of computer literacy
will make
her unsuitable for sedentary work and will thus render her
unemployable.
[26]
Her limitations, taking the high levels of unemployment into account,
will make her an unfair competitor against candidates
who do not
suffer from the same limitations. Her previous work history is
indicative of her experience in a physical light duty
environment
which she is now not suited to perform. I have no reason to doubt
that the accident has rendered the plaintiff unemployable.
[27]
There is no reason to doubt the plaintiff’s evidence that she
was employed at the crèche. This version runs through
her
evidence like a golden thread and was related by the plaintiff to all
the experts who testified. The bank statements that were
supplied to
Mr
Moodie
corroborate the version that she was in control of the finances at
this particular crèche and that grants were paid
into the
particular bank account.
[28]
The finances of the crèche were clearly run in an
unconventional way. No salary advices were prepared and no record
of
salary payments was kept. The plaintiff is not a sophisticated
business woman who would have been expected to know of business
records.
[29]
The veracity of her evidence is shown by the fact that she did not
attempt to inflate her income above that of her employees.
I am
satisfied that her pre accident income amounted to R1750. The
conclusion by Mr Moodie that the plaintiff would have earned
the
minimum wage of R3500 per month from August 2018 until the normal
retirement age of 65 years had it not been for the accident,
cannot
be faulted. The minimum wage is statutorily regulated and is a fair
determination of her future earning capacity.
[30]
The parties agreed to present the actuarial reports of their
respective witnesses without the need to lead their evidence.
Three
different scenarios were depicted in the reports. Having concluded
that the accident has rendered the plaintiff unemployable,
I will
ignore the two other scenarios. I have no reason to reject the
actuarial calculations and contingencies applied by the plaintiff’s
actuary. The calculations are in line with the findings I made above.
[31]
I was referred to a number of comparable cases regarding general
damages. No two cases are exactly the same, therefore past
cases can
only serve as a rough guide and ultimately each case must be
determined on its own merits. I will deal with the facts
in this case
and compare them to previous similar cases.
[32]
I will take the following circumstances into account regarding the
case at hand: the plaintiff was hospitalised for 88 days.
While in
hospital,
cone
calipers were applied to
immobilise
her
until shortly before her discharge. She had to wear
a cervical collar for three months after her discharge.
She was
booked for surgery to her neck but it was never done. She has severe
limited neck movement and almost no rotation of the
neck. She was
still experiencing pain, two years after the accident. She suffers
from chronic headaches and pain. She will experience
chronic pain for
the rest of her life. She finds it difficult to do her home chores.
This is exacerbated by the fact that she experiences
pain when
lifting her hands above her shoulders and she cannot carry heavy
objects. I was referred to the following cases.
[33]
Van
Der Spuy v Rondalia Versekeringskorporasie van SA Bpk
1964
(1C2) QOD 324 (C)
.
A
29 year old housewife suffered fractures of the two top vertebrae,
healing was out of alignment, headaches and dizziness were
likely to
grow more in the future. There would be serious bone-grafting
operation necessary to bind the vertebrae to the skull.
She in
addition suffered facial disfigurement and had
a
knee injury which required future operation to remove
cartilage
.
An
award of R3 500, 00 was made for general damages for the neck injury
which translates to R288 000, 00 in 2017 per Koch.
[34]
Jones
v AA Mutual Insurance Association Ltd
1976
(2C2) QOD 793 (W)
.
A violinist aged 30 at the time suffered neck and lower back injuries
necessitating a posterior fusion of the 4th and 5th
cervical
vertebrae
.
A further fusion was recommended in the near future due to further
injury extending beyond these two
vertebrae
.
There was a possibility of a future operation in the lower back also
becoming necessary. An award of R9 000, 00 (current value
per Koch
R349 000, 00) was made for general damages for pain and suffering,
disability and loss of amenities.
[35]
Moagi
v Senator Insurance Co Ltd1981 (3J2) QOD 236 (W).
A male passenger was
thrown out of a motor vehicle in a head-on collision and sustained a
spine injury. He experienced headaches
about three days a week. He
left hospital on the same day. R3750 was awarded which equates to R89
040.00 in current monetary terms
[36]
Van
Niekerk v Constantia Insurance Co
Ltd
1983
(3C2) QOD 386 (E). The plaintiff sustained neck injuries with
compression fractures of the articular pillars on right
of the fourth
and sixth
cervical
vertebrae
. Plaintiff also had
comparatively minor injuries to the face, neck and chest. He received
extensive treatment. Pain killers for
over three years did not really
help. His headaches and pain increasing. Immediate
cervical
spine fusion operation
advised. He had serious loss of amenities and his relationship with
friends was affected.
General
damages for pain and suffering, disability and loss of amenities, was
awarded in the sum of R9000
(current
value per Koch R349 000, 00)
.
[37]
I
am satisfied that considering the above facts and the comparable
cases that I have been provided with, an amount of R300 000.00
will
be reasonable under the circumstances.
[38]
In
the result the following order is made:
1.
The
defendant is liable for payment to the plaintiff in the amount of:
a.
R929 749.
00 (nine hundred twenty nine thousand seven hundred and forty nine
rand) for loss of past income and future loss of earning
capacity and
an amount of:
b.
R300
000.00(three hundred thousand rand) for general damages, resulting
from the motor vehicle collision as indicated above.
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 or the rendering
of a
service or the supplying of goods to the plaintiff arising out of
injuries sustained by her in the motor vehicle collision
mentioned
above. In terms of this undertaking the defendant will be obliged to
compensate her in respect of these costs after the
costs have been
incurred and on proof of these costs being provided.
3.
The
defendant is to pay the plaintiff's taxed or agreed costs on the
scale as between party and party until date of this order,
including
but not limited to the costs set out below:
a.
The costs
attendant upon obtaining payment of the amounts referred to in this
order;
b.
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:
1.
Dr LF
Oelofse;
2.
Mr Ben
Moodie.
4.
No interest
will accrue in respect of any of the amounts stipulated above if
payment is made on or before the stipulated dates;
5.
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;
6.
In the
event that costs are not agreed, the plaintiff shall serve a notice
of taxation on the defendant's attorney of record; and
shall allow
the defendant fourteen (14) court days to make payment of the taxed
costs.
_______________
L.
B.J MOENG, AJ
On
behalf of the plaintiff: Adv. E. Bisschoff
Instructed
by: Du Plooy Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. D.M Grewar
Instructed
by: Maduba Attorneys
BLOEMFONTEIN