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[2018] ZAGPPHC 454
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Cornelius v Road Accident Fund (68974/13) [2018] ZAGPPHC 454 (16 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO.: 68974/13
16/2/2018
In
the matter between:
HEIDI
CORNELIUS
Plaintiff
versus
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MPHAHLELE
J
[1]
The Plaintiff was injured in a
motor-vehicle accident that took place on 22 February 2012. At the
time of the accident the plaintiff
was the driver of the
motor-vehicle bearing the registration numbers and letters [….].
[2]
The plaintiff was born on 14 April 1977.
The plaintiff was 34 years old at the time of the accident.
[3]
According to the available
documentation, she sustained the following injuries:
Right subclavian artery injury with aneurism
formation and resultant stent surgery with residual symptoms
Head injury (the neurologist diagnosed a severe
brain injury with damage in both frontal lobes
Pelvis fracture
Nasal fracture
Lung contusion
[4]
The plaintiff has a grade 12
qualification as well as a National Tourism and Travel Diploma. At
the time of the accident, the plaintiff
was an owner and manager of a
creche / nursery school.
[5]
Regarding the post-accident employment, the plaintiff informed Ms.
Meyer (the occupational
therapist) that she did not return to the
creche, although still owned by her, reportedly until May 2012.
During this time, she
hired additional helpers to continue with the
classes and management of the creche and had no additional income
(due to hiring
additional help). She then returned to the creche,
however only for one week - emotionally and physically this was too
much for
her to handle and she decided not to continue with the
creche. She gave away the creche at the end of 2012.
[6]
In 2013 she started working at her
husband's company,
viz
Stone
Library Flooring (Pty) Ltd. She reported to Ms. Meyer in the capacity
of internet marketing and to Ms. van Wyk she reported
that she worked
in telephone sales.
[7]
In 2013, she was sympathetically
employed by Stone Library Flooring (Pty) Ltd, in which her spouse is
a General Manager. Her spouse
shares the profit in the company with
one Mr de Beer.
[8]
The parties have agreed that the
defendant would be liable for 100°/o of the plaintiff's proven
damages.
[9]
The parties have further agreed that the
defendant is liable for:-
•
General
damages in the sum of R900 000-00;
•
Past
medical expenses (to be separated); and
•
An
undertaking in terms of section 17(4)(a) of Act 56 of 1996 for
payment of the future accommodation of the plaintiff in a hospital
or
nursing home or treatment of or rendering of a service or supplying
of goods to her in relation to the injuries sustained by
the
plaintiff in the motor vehicle accident that occurred on 22 February
2012, to compensate the plaintiff in respect of the said
costs after
the costs have been incurred and upon proof thereof.
[10]
The only outstanding issue is the past
and future loss of income. The main issue is whether or not the
income earned by the plaintiff
from the company where her husband is
employed and shares profit should be regarded as sympathetic
employment and is to be disregarded
for purposes of calculating the
loss.
[11]
The defendant admits the contents of the
reports of the following expert reports of the plaintiff:
•
Dr
Callaghan, an ear nose and throat specialist;
•
Dr
Cremer, a vascular surgeon;
•
Dr
K D Rosman, a neurologist;
•
C
Hearns, a clinical psychologist; and
•
P
de Bruyn, an industrial psychologist (including the correctness of
the collateral information save for the correctness of the
income of
R10 000-00 per month generated from the nursery school).
[12]
The parties agree to the facts and
opinions set out in the joint minute of the occupational therapists
Ms H Meyer and Ms D van Wyk
dated 12 January 2017.
[13]
According to Ms van Wyk the plaintiff,
is suited for sedentary, light and occasional medium work demands.
she further notes that
her general mobility and physical endurance
will remain affected towards static postures, or activities below
waist level.
[14]
According to her assessment findings, Ms
Meyer is of the opinion that the plaintiff presents with the physical
capacity for sedentary
to light work. Note is however taken of her
decreased tolerance for sitting. During the evaluation she shifted in
her seat frequently
and requested a standing break aft r 40 minutes
of sitting - due to lower back symptoms. Therefore, sitting is
restricted to occasional
performance and within a work environment
rest breaks to alternate postures should be allowed. She would
further also benefit from
ergonomic implementations. Ms van Wyk
agrees with these findings.
[15]
Ms Meyer and Ms van Wyk further agree
that:-
•
The
plaintiff will not be able to compete fairly in the open labour
market.
•
The
plaintiff's current work demands are mostly sedentary of nature and
that she is accommodated and sympathetically employed by
her husband.
She can take regular breaks and determine her own work speed. She
also does not work in a full day capacity. Therefore,
she can cope
with her current work demands.
[16]
Jan Benjamin Cornelius, the husband to
the plaintiff, testified that after the accident the plaintiff could
not cope with the running
of the creche. She used to derive an income
of R10 000-00 from the creche. Plaintiff is now employed in his
company in a marketing
position. She is earning R28 000-00 which is
ultimately deducted from his share of the profit . He shares profit
in that company
with one Mr de Beer. Any person holding such a
position in marketing would be paid RS 000-00. Nevertheless, she does
not possess
the required skill for the position held. She cannot even
prepare quotations on her own. She is doing very little for the
company
which is not even worth the R8 000-00. The value of the work
she is performing can be estimated R2 000-00.
[17]
Ms Karen Kotze, the industrial
psychologist opines that the plaintiff's career prospects and
associated likely earnings have been
truncated to a profound degree
by the
sequelae
of
the injuries sustained in the accident. In future, should she forfeit
her current sympathetic employment, her career prospects
would be
nullified by the
sequelae
of
the injuries sustained in the accident. In this case, a total loss of
earnings is foreseen.
[18]
In Santam Versekeringsmaatskappy Bpk v
Byleveldt
1973 (2) SA 146
(A) it was held that when an employee was
paid purely on compassionate grounds at a time when he could
contribute nothing to the
business, such salary is not taken into
account when dealing with the plaintiff's claim for loss of earnings.
[19]
Accordingly, and on what is before me, I
must conclude that the plaintiff is paid purely on the basis of
sympathetic employment
and the income earned by the plaintiff from
the company where her husband is employed and shares profit is to be
disregarded for
purposes of calculating the loss.
[20]
The defendant's second point was the
failure by the plaintiff to produce any evidence of past earnings.
This is brought about by
the unavailability of any records pertaining
to plaintiff's earnings. According to the industrial psychologist,
for purposes of
quantification of the claim, the plaintiff's likely
pre-accident earnings potential should be used as a baseline. At the
time of
the accident, the plaintiff reportedly derived an income of
R10 000-00 per month from the creche. The plaintiff and her husband
(Cornelius) are the only source of information in this regard. Under
the circumstances, the industrial psychologist opined that
the most
practical approach to project the plaintiff 's potential earning
capacity would be to follow a generic model, such as
the Patterson
Job Evaluation System. I agree with the approach adopted by the
industrial psychologist moreover the plaintiff 's
qualifications are
not placed in dispute. Given the plaintiff's age, the industrial
psychologist opines that the plaintiff could
probably have earned an
income in line with Patterson Grade C1 / C2 (median, basic salary)
and then advanced to Patterson Grade
C3 / C4 (median, basic salary)
upon reaching her career ceiling at 45. According to the industrial
psychologist, in the absence
of obvious and/or significant medical
conditions, it can be reasonably accepted that the plaintiff would
likely have worked until
the normal retirement age of 65, depending
on her employment conditions, state of health and personal
circumstances. The industrial
psychologist further opined that in
this scenario, since a direct future loss of earnings cannot be
expressed in monetary term
s, for purposes of quantification of the
claim, a significantly higher contingency deduction should be applied
in respect of the
truncation of the plaintiff's future career
prospects and likely earnings.
[21]
In my view, the contingency that must be
applied in the first instance should be in the sum of 5%. In relation
to the income, having
regard to the accident, I agree with the
industrial psychologist that a significantly higher contingency
deduct ion should be applied.
I intend applying a 30°/o
contingency in this regard. In arriving at this conclusion I have
taken into consideration mainly
the speculative aspect of these
calculations.
[22]
Accordingly, an order is made in terms
of the draft marked " X" .
S S MPHAHLELE
JUDGE OF THE HIGH COURT,
PRETORIA
FOR
THE APPLICANT: Adv. G J Scheepers
INSTRUCTED
BY: VZLR Inc.
FOR
THE RESPONDENTS: Adv H J Strauss
INSTRUCTED BY: TM Chauke Attorneys
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case
num: 68974 / 2013
Before
the Honourable Justice
In
the matter between:
H
CORNELIUS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
ORDER
BY
AGREEMENT BETWEEN THE PARTIES, IT IS ORDERED THAT:
1.
1.1
The
Defendant is liable to pay 100% (Hundred percent) of the Plaintiff's
proven or agreed damages;
1.2
The
Defendant is to pay the Plaintiff's attorneys the sum of
R.
5 757 589, (Five Seven Five Seven Five Eight Nine)
made
up as follow:
General damages: R900 000.00
Past
Loss of income/ earning potential:
R1 209 548
Future
Loss of income / earning potential:
R3 648 041;
The
Plaintiff s Attorney's trust account details are as follows:
ACCOUNT HOLDER:
VZLR
INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH CODE:
632005
TYPE
OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT
NUMBER:
[….]
1.3
In
the event of default on the above payment, interest shall accrue on
such outstanding amount at 10.25% (at the mora rate of 3.5%
above the
repo rate on the date on this order, as per the Prescribe Rate of
Interest Act, 55 of 1975, as amended) per annum calculated
from due
date, as per the Road Accident Fund Act, until the date of payment.
2.
2.1
The
Defendant shall furnish the Plaintiff with an Undertaking, in terms
of Section 17(4)(a) of Act 56 of 1996, in respect of future
accommodation of the Plaintiff in a hospital or nursing home or
treatment of or the rendering of a service or supplying of goods
of a
medical and non-medical nature to the Plaintiff (and after the costs
have been incurred and upon submission of proof thereof)
arising out
of the injuries sustained in the collision which occurred on
22
February 2012.
2.2
If
the Defendant fails to furnish the undertaking to the Plaintiff
within 30 (thirty) days of this order, the Defendant shall be
held
liable for the payment of the additional taxable party and party
costs incurred to obtain the undertaking.
3.
The Defendant to pay the Plaintiff's taxed or
agreed party and party cost, up to and including the trial dates of
30 January 2017
and 03 February 2017, in the above mentioned account,
for the attorneys, which cost shall include, but not be limited to
the following:
3.1
All
reserved cost to be unreserved, if any;
3.2
The
fees of Senior Junior Counsel;
3.3
The
cost of obtaining all expert medico legal-, actuarial, and any other
reports of an expert nature which were furnished to the
Defendant
and/or it's experts;
3.4
The
reasonable taxable qualifying, preparation, reservation and
attendance fees of all experts, including the cost of consultaiton
fees with the legal teams, if any;
3.5
The
reasonable traveling- and accommodation cost, if any, incurred in
transporting the Plaintiff to all medico-legal appointments;
3.6
The
reasonable cost for an interpreter's attendance at court and at the
medico legal appointments for translation of information,
if any.