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[2019] ZAFSHC 262
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M M v Road Accident Fund (5639/2017) [2019] ZAFSHC 262 (5 December 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5639/2017
In
the matter between:
M
M PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
CORAM
:
CHESIWE, J
HEARD
ON:
16 & 18 OCTOBER 2019
DELIVERED
ON:
05 DECEMBER
2019
JUDGEMENT
BY:
CHESIWE, J
[1]
This is an action for damages against the defendant in terms of the
Road Accident Fund Act 56 of 1996
as amended (the Act), pursuant to a
motor vehicle accident that occurred on the 26 October 2016, in which
the plaintiff was a passenger
in a taxi with registration numbers FND
[…] FS that was involved with another vehicle with
registration number BNT […]
FS. The plaintiff sustained
injuries arising out of the said accident; namely a minor head injury
with hemiplegia on the left side
of the body.
[2]
The matter was set down for trial on the 16 and 18 October 2019.
In the opening address Counsel on behalf of the plaintiff
informed
court that the parties have settled the merits of her claim at 100%
in favour of the plaintiff; that the Road Accident
Fund (RAF) had
agreed on past medical hospital expenses and that RAF would furnish
the required undertaking in terms of
s 17(4)
of the
Road Accident
Fund Act 56 of 1996
. The plaintiff’s averment that she
had suffered serious injuries has been rejected by the Health
Professionals Council
of South Africa (HPCSA) and that the plaintiff
has not lodged an appeal against the decision.
[3]
Before the matter could proceed, Counsels for both parties confirmed
that by agreement they accepted all the expert reports,
including the
joint minutes reports of the experts.
[4]
Therefore the court was called upon adjudicate the plaintiff’s
claim in respect of past and future loss of earnings.
However,
the plaintiff testified that she was remunerated her full salary
during her absence from work. It was therefore
evident that the
claim for past loss of income was not in dispute.
PLAINTIFF’S
EVIDENCE
[5]
The plaintiff testified that on the 26 October 2016, she was in a
taxi on her way to Welkom when the accident occurred between
Bloemfontein and Brandfort. She was admitted at Mediclinic in
Bloemfontein for three to four weeks, in that period of her
hospital
admission, she was in an Intensive Care Unit (ICU) for three days.
She said she sustained injuries on her
head and on the
left side of her body including injuries on her left arm and leg.
When she was discharged from Mediclinic
she was unable to remember
the date on which she was discharged. However, she recalled
that she went back to work on the
12
th
December 2016.
The plaintiff said after the accident she struggled with calculations
as she works in the salaries department.
She has become slower
in doing her work, as a result thereof, some of the colleagues
assisted her with her work. She gets
sharp pains on the left
elbow and left leg and has frequent headaches. She can no longer play
netball, nor further her studies
as she is unable to remember what
she reads or studies.
[6]
Under cross-examination, the plaintiff confirmed that she received
her full salary. She mentioned that since the accident
happened
the headaches have become worse and more severe. She could not
continue with her studies as she also could not remember
what she
studied. She said before the accident she earned R10 000
per month and after the accident she earned R15 000,
which after
deduction she received R11 400 per month.
SUBMISSIONS
[7]
Adv. Bahlekazi, Counsel on behalf of the plaintiff submitted in the
written Heads of Argument that the plaintiff has qualifications
that
could put her in a good position to be promoted at work, but due to
her injuries the prospects of such opportunities have
diminished. He
said the plaintiff has submitted an Actuarial Report and the
defendant did not submit such a report as a result
of that the
plaintiff’s actuarial report stands unchallenged. Thus
the plaintiff is to be awarded the amount as calculated
by its
Actuary in the amount of R1 035 874.
[8]
Adv. Grewar, Counsel on behalf of the defendant submitted that the
injuries of the plaintiff are not severe as the majority
of the
injuries related to the general damages. He mentioned that the
plaintiff’s injuries were so minor that the plaintiff
was back
at work within months’ time and that the plaintiff had
headaches even before the accident. He submitted that
the
plaintiff is not likely to be dismissed at work and that she is not a
vulnerable employee, nor is her life expectancy affected.
He
submitted that the plaintiff’s claim in the amount of
R934 374.00 is highly inflated. He submitted that an
amount of R100 000.00 would be an appropriate amount for loss of
earning capacity.
EXPERT
EVIDENCE
[9]
Several expert reports and joint minutes have
been filed by both parties by agreement and accepted by the court.
These include
reports from Orthopaedic Surgeons, Occupational
Therapists, Industrial Psychologists and an Actuarial Report for the
plaintiff.
[10]
Dr. Watt, Orthopaedic Surgeon, stated in the report as follows:
“
The hemiplegia is
improving over time and she really has a normal function in the left
arm and it appears the left leg is also improving
over time but
function in the left leg can also get back to normal again. It
is possible that she is going to regain normal
function in her legs
and she will have to be reassessed again in 3 months’ time to
see whether she has recovered fully again.”
Paragraph 5
of the report stated that: “the injuries have not affected the
patients’ life expectancy.”
Dr
Watt concludes that:
“
The patient is now
recovering from the Hemiplegia. Her left arm has recovered and
leg is partially recovered to the extent
where she can now walk
normally, squat down fully and has reasonable power and sensation in
this leg.”
[11]
Ms Juliet Shehab, Occupational Therapist, in her report on page 47 of
the trial bundle, mentioned that the plaintiff had frequent
headaches
before the accident. In respect of residual capacity to work, Ms.
Shehab stated that:
“
Ms M returned to
her same work and said the plaintiff informed her she is coping with
all the work tasks. That the employer
accommodated her and the
colleagues are supportive. Ms M is employable in the open
labour market to perform jobs which require
sedentary to light
physical demands. She will not be employable in the open labour
market to perform jobs requiring medium
to heavy physical demands.”
[12]
Ms Kheswa, Industrial Psychologist, in her report is of the view
that:
“
While the accident
has curtailed the plaintiff’s functional capacity and
therefore compromised her in terms of efficiency,
effectiveness and
productivity as compared to her uninjured counterparts, it did not
render her unemployable. Should she
adhere to the appointed
experts recommendations, she will be able to continue working within
her residual capacity.”
Joint
Minutes of the Occupational Therapists
[13]
Ms. Juliet and Ms Moagi both agreed in their joint minute that the
plaintiff will meet the physical demands of sedentary to
low level
light types of work, but would not meet the full range of light,
medium, heavy to very heavy. They both agreed
that the
plaintiff need to continue with physiotherapy intervention to improve
physical endurance.
Joint
Minute of Dr P Miller and Dr MD Ngqandu
[14]
Dr Ngqandu said he found no neurophysical or cranial nerve
abnormalities, nor found any problems in relation to the head or
neck
specifically. Dr Miller made the same findings as Dr Ngqandu,
except for the significant weakness in relation to the
lower limb.
Both Doctors noted the headaches that the plaintiff experiences.
Dr Ngqandu suggested that the headaches be controlled
with
anti-inflammatories, and ordinary analgesics, where Dr miller noted
that the headaches occur mostly when the plaintiff is
trying to
calculate or concentrate, which he thinks might be due related stress
and tension phenomena.
Joint
Minutes of Mrs SJ Van Jaarsveld and Mrs Kheswa
[15]
They agree that post-accident the plaintiff was able to return
to work and received her full salary. They
further agreed that
the plaintiff was left with a sequelae of physical injuries and as a
result of the injuries the plaintiff’s
career options are
narrowed down, as she will be restricted to work of a light physical
nature. They both agreed that the plaintiff
is employable in the open
labour market, but she will not be a fair competitor in the open
labour market due to the injuries sustained
in the accident.
[16]
Mr Johan Sauer, an Actuarial on behalf of the plaintiff indicated
that the post-morbid was calculated according to the report
of Mrs
Van Jaarsveld, that no income was projected till 1 January 2016 to
allow for full loss of sick leave. He mentioned
that a higher
future post-morbid contingency deduction be allowed for the increase,
taking the following into consideration:
“
Employment
vulnerability, labour incapacity, uncertainty, possible long periods
of unemployment and early retirement.”
[17]
As already indicate above that the plaintiff cannot claim for past
loss of income as she testified that she was paid her full
salary
while in hospital and on sick leave. The plaintiff furthermore
testified that the accident occurred on 26 October
2016 and she was
back on duty on 1 December 2016. The actuarial
calculation indicated the amount claimed for past loss
of income was
R15 957, 00. However, the plaintiff informed the two
Occupational Therapists that at the time of the accident
she earned
R10 000 and after deduction she received R8 000 and
received a bonus of R3500. This indicates that the
plaintiff
did not suffer any loss of income as she received her full
remuneration from the employer.
[18]
Counsel on behalf of the plaintiff submitted that the plaintiff’s
qualifications would have placed her in a good position
for
promotion, but because of her injuries the prospects of such
promotion have diminishedRepeated. He submitted that based
on
the first scenario of Ms Jaarsveld, it is the appropriated scenario
as the plaintiff would have been appointed to a senior position
had
she not sustained the mentioned injuries in the accident. Counsel
mentioned that the contingencies to be applied in this instance
for
future loss of income should be between 10 % and 30 %.
[19]
Counsel on behalf of the defendant in the written heads of argument
submitted that the plaintiff’s claim is highly inflated
as the
plaintiff’s injuries were minor. He mentioned that within a
month of the motor vehicle accident, the plaintiff was
back at work.
Counsel mentioned that the headaches the plaintiff complained about
were already there before the accident.
He submitted that the
contingency in this instance is grossly exaggerated and that the
court should apply an appropriate contingency,
as all the factors put
together in respect of the plaintiff’s loss of earning capacity
should be calculated at a contingency
10% - 12 %.
[20]
An enquiry into damages for earning capacity is of its nature
speculative, because it involves a prediction as to the future.
All that the court can do very often is to make a rough estimate of
the present value of loss
[1]
.
[21]
It is now accepted that in the assessment of these kinds of damages,
which cannot be assessed with any amount of mathematical
accuracy the
court has a wide discretion
[2]
.
[22]
In
Bailey
supra
Nicolas JA said:
“
In a case where
the court has before it material on which an actuarial calculations
can usefully be made, the first approach offer
any advantage over the
second. On the contrary, while the result of an actuarial
computation may be no more than an “informed
guess”, it
has the advantage of an attempt to ascertain the value of what was
lost on a logical basis; whereas the trial
Judge’s ‘gut
feeling’ as to what is fair and reasonable is nothing more than
a blind guess”.
[3]
[23]
Both Neuro-surgeons agreed that the plaintiff’s post-accident
complaints of on-going headaches can be manage by consulting
a
general practitioner as well as consultations by way of
neuropsychological and occupational therapy. However, Dr Miller
mentioned that the headaches mostly relate to the stress and tension
phenomena, especially when the plaintiff is busy with calculations
or
concentrate on any matter. Bearing in mind that the plaintiff
informed the Industrial Psychologist that the headaches
were there
before the accident. The plaintiff testified that the headaches
were pre-existing, though after the accident she
said the headaches
are more severe. The doctors in respect of the forgetfulness and
concentration difficulties recommended that
the plaintiff must go for
a neuropsychological evaluation. They do not anticipate any future
neuro-surgical intervention with regard
to the head injury the
plaintiff sustained, and that the plaintiff’s life expectancy
will not be affected as a result of
the accident.
[25]
The plaintiff is currently employed as an Accounting Clerk in the
Department of Education. She has been in this job since
she
started as an intern from 2010. The employer has not indicted
to her that she will be dismissed or placed in another
position due
to lack of her coping with the work. Indeed she may be slow as
she told this court during her testimony, but
the work gets
completed. The nature of her work is sedentary. She
mentioned that since the accident, she was moved
closer to the copy
machine and the registry office. The colleagues assisted her
with the calculations as she was a bit slower.
She said she can make
phone calls; she can lift a file; work on the computer and do the
usual jobs she did before the accident.
The employer has shown
to be sympathetic and accommodative towards the plaintiff.
[26]
The plaintiff during her evidence in court appeared well conversant,
clear and logical. She was honest and even informed
this court
that she was paid her full salary after the accident, including when
she was on sick leave. The plaintiff coped
well post the
accident, to the extent that she had a notch increase in her salary.
In respect of the headaches, Dr Ngqaunda
recommended that it be
manage by a general practitioner, as well as consultation with an
Occupational Therapists.
[27]
Dr Bogatsu in his report concluded that the plaintiff’s
sequelae of her orthopaedic injuries have not resulted in significant
losses of earning capacity, employment capacity, amenities,
independence and enjoyment of life.
[28]
Ms Kheswa is of the view that with the treatment of the headache and
proper management, the plaintiff should be able to continue
to work
as an Accounting Clerk.
[29]
DR Watt is of the view that the plaintiff has recovered, to the
extent that she can walk normally with her left leg, she can
squad
and has reasonable power and sensation in the left leg.
[30]
The plaintiff’s circumstances are not one of those severe
cases, where she is totally unemployable. There are worst cases
where
a person is totally disabled and unemployable. The majority of
injuries listed by the plaintiff relate to the general
damages which
was declined by the HPCSA. The plaintiff mentioned the headache
and numbness as the damages that affected her
in her working
environment. The Industrial Psychologists agreed that the plaintiff
is a government employee working for the Department
of Education with
the application of the Occupational Specific Dispensation
[4]
(OSD) which is the earning scale used for government employees. The
plaintiff with the recommended therapy by the different expert
will
be able to perform her duties, taking into consideration that the
defendant has already made an undertaking with regard to
future
medical expenses for the plaintiff. Post-accident the plaintiff has
been in her current work for the past two years. A job
she has
performed well thus far though she testified that she was slower. The
plaintiff is best suited to safely perform sedentary
duties in
respect of less mobility demands as she is currently performing in
her current employment.
[31]
It is trite that no two cases are always the same, since it is
difficult to find a comparable case that will focus in respect
of all
the facts. Past decided comparable cases although useful,
merely serve as a guideline. The need to adjudicate
each case
on its particular merits is always present.
[32]
Based on the experts’ opinions as well as the views expressed
by them which is largely common cause, the pertinent question
is what
award would be fair and adequate compensation for the plaintiff in
respect of loss of earning capacity.
[33]
It is now settled that contingencies whether negative or positive are
an important control mechanism to adjust loss suffered
to the
circumstances of an individual case in order to achieve equity and
fairness to both parties. There is no hard and
fast rule
regarding contingency allowance. Kock is the Quantum Yearbook
2011 at 104 said:
“
Generally
contingencies cover wide range considerations which may vary from
case to case and may include taxation, early death,
travel costs,
loss of employment promotion prospects, divorce etc. These are
no listed rules as regarding general contingencies.”
[34]
The plaintiff is entitled to be awarded damages for future loss.
But the parties could not agree on the percentages.
Counsel for
the plaintiff was of the view that the applicable percentage should
be 10% - 30% for future loss of income. Counsel
for defendant
submitted that a 10% - 12 % contingency be applied, as the 30% is
grossly inflated. The defendant submitted
that the plaintiff’s
injuries were not major, that the general damages were not
applicable, furthermore the plaintiff returned
to work within a
month’s time after the accident.
[35]
The actuarial report of Mr Sauer indicated that the calculations are
based on a higher future post-morbid contingency of 30%
to allow for
employment vulnerability, labour incapacity, uncertainty, possible
long periods of unemployment and early retirement.
The amounts are
calculated on two scenarios; scenario one, if the plaintiff will be
promoted to senior accounting clerk the loss
will be R1 035 874.
And if she remains in the position of accounting clerk the loss will
be R934 374. The defendant
disputed these amounts as highly
inflated. The defendant submitted that if the plaintiff received
R934 374 and remains in
the labour market for the next twenty
eight years, she will be receiving R2781, 00 more per month. The
defendant is of the view
that an amount of R100 000 will be an
appropriate amount in this matter. Taking into account both amounts
the parties are
extremely far apart.
[36]
The plaintiff is only 33 years old. She has a better chance of
recovery as a young person. The plaintiff was able
to return to
work within a month after the accident. As correctly stated by
Counsel on behalf of the defendant that the plaintiff’s
injuries were not severe; the headaches the plaintiff complaint
about, were pre-existing; the plaintiff has no apparent risk of
epilepsy attacks and the accident has not affected her life
expectancy.
[37]
The inherent difficulty and uncertainty in these calculations is
generally accepted that it is preferred that an assessment
be made
based on actuarial calculations rather than take a blind plunge into
the unknown mathematical calculations. Having
considered the
different expert reports and the actuarial report submitted and also
having regard to what was expressed in the
matter of
Pitt
v Economic Insurance Co (Ltd)
[5]
1957(3) SA 284 (N) at 287 E-F:
“…
the
Court must take care to see that its award is fair to both sides - it
must give just compensation to the plaintiff, but must
not to
pour largesse from the horn of plenty at the defendant’s
expense.”
[38]
As already mentioned above the plaintiff is not one of the worst
cases. She has a sympathetic accommodative employer
and the
unlikelihood is that the plaintiff will not retire earlier than at
the age of 60 years. Therefore there is need to
‘pour
largesse from the horn of plenty’. The injuries are
indeed of a minor nature and it will be grossly unfair
towards the
defendant to award such a huge amount for the mentioned minor
injuries. The amount offered by the defendant is reasonable
and fair.
For all of the above mentioned reasons and having concluded that the
plaintiff still has some residual working capacity,
a fair and just
award would be an amount of R200 000.
[40]
In the circumstances I make the following order:
1. The plaintiff is
awarded an amount of R200 000 in respect of loss of earning capacity.
2. The defendant to pay
the costs, which costs shall include costs of the experts and Counsel
of the plaintiff.
_________________
S. CHESIWE, J
Appearances
For Plaintiff:
Adv. NM Bahlekazi
Instructed by:
Booysen & Fourie
BLOEMFONTEIN
For Defendant:
Adv DM Grewar
Instructed by:
Maduba Attorneys
BLOEMFONTEIN
[1]
Southern
Insurance Association Ltd v Bailey 1984(1) SA 98 AD at 116H
[2]
AA
Mutual Insurance Association Ltd v Maqula 1978(1) SA 805 (A)
[3]
See footnote 1
at
99C-D
[4]
Public
Services And Administration (DPSA) – the purpose of OSD was to
improve government’s ability to attract and
retain skilled
employees through increased remuneration.
[5]
Pitt v
Economic Insurance Co (Ltd)
1957 (3) SA 284
(N) at 287 E-F: