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[2018] ZAGPPHC 376
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Scheepers v RAF (81703/2015) [2018] ZAGPPHC 376 (2 March 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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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: 81703/2015
2/3/2018
In
the matter between
Scheepers,
JA
Plaintiff
And
Road
Accident
Fund
Defendant
Judgment
Van
der Linde, J
:
Introduction
[1]
This
is a claim against the Road Accident Fund for damages arising from
injuries sustained in a motor vehicle collision that occurred
on 13
April 2012. The merits have been settled on a 50% apportionment
basis, leaving quantum in dispute. After the trial commenced
further
settlements were reached. These further settlements were recorded in
a draft order handed up at the end of the trial on
1 March 2018, and
included (after apportionment) general damages in the amount of R600
000, and past medical and hospital expenses
in the amount of
R97,154.09.
[2]
After
these settlements the only dispute that remained was in respect of
future loss of income, and here the only issue was whether
the
contingency allowance in the having regard to scenario should be 50%
as the plaintiff contends , or 40% as the defendant contends.
This
difference comes to as little as R144 994, since on the plaintiffs
argument the loss is R2,917,601, and on the defendant's
argument it
is R2, 772,607.
[3]
The
parties called no
viva voce
witnesses
and having placed three bundles in front of me by agreement, both
closed their cases. The bundles, which included the
medico-legal
reports, were admitted for truth of contents. The plaintiffs position
was that where any difference of OJ:)inion might
remain on any issue
between the experts, he would defer to the more conservative of the
opposing opinions e!(pressed. In argument
, plaintiffs counsel took
me to the passages in the expert s reports on which the plaintiff
relied, and similarly, the RAF's counsel.
The
appropriate contingency provision
[4]
The
plaintiff's injuries include a head injury - said to be a moderate
concussive head injury, a chest injury, cervical spine fracture,
lumbar spine fracture, right shoulder girdle injury, a T12/L2
compression fracture, and a central spinal cord injury. The opinion
of Dr Birrell for the plaintiff that this left him with a 40% los.5
of work capacity, meaning that he is 40% less productive than
before,
is uncontested. It is also uncontested, as appears from the joint
minute of the orthopaedic surgeons, that he is a very
vulnerable
individual in the open labour market, and that he is absolutely
reliant on a sympathetic employer.
[5]
Before the collision and the injuries he had been employed with the
South African
Police Services for some 20 years. After the accident
he tried out a private investigative business, but this failed. SAPS
then
re-employed him after a probation period of one year, and that
is his current employment disposition. He Is involved in an
anti-hijacking
unit, and half of his time is spent in sedentary
surrounds and the other half on the road.
[6]
Although
many reports summarise his sequelae, perhaps the commendably succinct
summary of Dr Odette Guy on 31January 2017 is best
suited for current
purposes:
"He
stated that he suffers from pain on a constant basis, every day. He
stated that this makes him feel irritable and frustrated.
He also has
days when he feels depressed with the constant pain that he suffers
from. His ability to sit, stand, or lie down, for
periods of time, is
negatively affected as he experiences pain. His hands are no longer
functional and he has difficulties performing
tasks that he used to
be able to do before the accident. He is no longer able to
participate in social activities, such as karaoke
or sports. He also
indicated that he is angry and shouts at people, particularly his
family. With regard to communication, he stated
that he has become
more direct, and he has been described as being rude”.
[7]
Do
these sequelae mean that the prospects of the plaintiff being forced
to give up his work before his anticipated retirement age
are evenly
balanced? Or is it more likely than not that he will not be forced to
give up his work before his anticipated early
retirement age? The
plaintiff relied mostly on the agreements between the orthopaedic
surgeons, that between the industrial psychologists,
and the opinion
of Dr Guy quoted above, whereas the defendant relied mostly on Dr
Birrell's assessment to which I have referred.
[8]
In
Van Vuren v Road Accident Fund (16295/2013) [2014] ZAGPPHC 1039 (28
November 2014) Legodi J (as he then was) had occasion to
reflect on
the issue that arises in this case. The learned judge underscored the
wisdom that cases differ and also that contingencies
are difficult to
fix because they are based on uncertainties. I would, with respect,
share those reflections.
[9]
For
me, in this case the parameters have been mapped out by counsel. They
are so close, that I believe there is no principled basis
for saying
that the truth lies in between, and that it should be 45%. It seems
rather that I must make a call between the two opposing
submissions,
and that is the approach I follow be!ow.
[10]
To start off, I should say that I do not believe that Birrell's view
that the plaintiff ' s work capacity
has been reduced by 40% has; any
bearing on what I have to decide. It is one thing to say that the
plaintiff can now longer do
everything he used to do, and by 40%; it
is quite another to say that even that which he can still do, will
likely (by 40%) cease
earlier that the already reduced retirement age
of 54 for which provision is made; see Algorithm dated 27 February
2018, p344.4,
para 2.2.2.
[12]
By the same token, I am not persuaded that merely because the
plaintiff
"may be at risk"
of being boarded,
therefore the chances of him being boarded early are 50%, as the two
industrial psychologists agree. The first
goes to whether there is a
chance at all; the second goes to rating that chance.
[12]
What ultimately weighed with me are two features. The one is that the
plaintiff's disposition is said
by Dr Mazabow to be
"stoic"
,
and the other is that his employer reported to Ms Noble (for
the plaintiff ) that in the plaintiff's current employment
disposition,
his
sequelae
have the potential of disqualifying
his prospects of advancement. This is not language that speaks to a
person who is likely to
be boarded early for his psychological
problems, not his orthopaedic problems, which is what his counsel
submitted.
[13]
My overall impression, having been
referred to extracts of the plaintiff's expert reports but not having
had the advantage of seeing
the plaintiff in the witness box, is that
he is tough and resilient (compare his remark about being depressed
at times but would
not consider suicide) and intelligent, and that he
will resist being boarded if he can. His current employer speaks very
highly
of him, as reported to Ms Noble. Ms Noble herself applauds him
for his motivation and commitment to work. His head, Lt Col Kruger,
says as an investigator he is top class ("puik") , and that
he has substantial knowledge and experience.
Conclusion
[14]
It seems to me then that the probabilities are that the plaintiff
will hang on, for so long as he can,
to his employment, because he
realises that it gives him a raison d'etre . This leads me to the
conclusion, not that in fact the
plaintiff will keep working until he
is 54 years old, but rather that it is more likely than not that he
will. The defendant's
submission is accordingly in my
view
to
be preferred, and the contingency that he won' t work until 54 is
less, and the deduction should be 40% and not 50%; the plaintiff's
future loss of earnings then comes to R2,772,607.
[15]
In the result I make an order concomitantly in terms of the draft
annexed hereto, initialled, dated,
and marked "X".
WHG van der Linde
Judge, High Court
Pretoria
Dates
trial: 26 February 2018-1March 2018
Date
judgment: 2 March 2018
Appearances
For the Applicant:
Adv. G.W. Alberts
SC
Instructed
by:
Adams & Adams
Lynwood Bridge
4
Daventry Street
Lynwood
MANOR
Pretoria
Tel: 012 432 6000
Ref: DBS/ SVD/ ilm/ P710
For
the Respondent:
Adv.
T.G Ramatsekisa
Instructed
by:
Iqbal
Mohomed Attorneys
Suite 786, 7
th
Floor
Karl King Building
262 Vermeulen Street Pretoria
Tel: 012 324 2203
Ref: s23489/P . Moonsamie/RAF
IN THE HIGH COURT OF SOUTH
AFRICA,
(GAUTENG DIVISION, PRETORIA)
ON THIS THE 28
th
DAY
OF FEBRUARY 2018 AT COURT 8F BEFORE THE HONOURABLE JUDGE VAN DER
LINDE (J)
CASE NO: 81703/15
In
the matter between:
SCHEEPERS,
JA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
DRAFT
ORDER OF COURT
AFTER
HAVING HEARD COUNSEL
for the
Plaintiff and the Defendant:
THE COURT GRANTS JUDGEMENT
in favour of the Plaintiff against the
Defendant in the following terms:-
1.
The
Defendant shall pay the total sum of R
3,
469, 761 (Three million four hundred and sixty nine thousand, seven
hundred and sixty one rand)
to
Adams & Adams
Attorneys
in settlement of the Plaintiff's action, which amount is calculated
as follows:
Past Medical, Hospital and related
expenses: R97 154.09
Past and Future Loss of Earnings:
R
2, 772, 607
General damages: R600 000.00
The aforementioned total sum of
R3, 469. 761 shall be payable by direct transfer into the trust
account of Adams & Adams, details
of which are as follows:
Nedbank
Account number
: [….]
Branch number
:
198765
Pretoria
Ref: DBS/SVN/P710
2.
The
Defendant shall furnish the Plaintiff with an Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
, to
compensate the Plaintiff for 50% of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home or
treatment of or rendering of any services or supplying of any goods
to him resulting from the injuries sustained by the Plaintiff
as a
result of the accident which occurred on 13 April 2012.
3.
The
Defendant shall make payment of the Plaintiff’s taxed or agreed
party and party costs of the action on the High Court
scale, which
costs shall include, but not be limited to the following:-
3.1
The
fees of Senior Counsel, inclusive of, but not limited to Counsel's
full day fees for 26, 27 and 28 February 2018;
3.2
The
reasonable, taxable costs of obtaining all expert, medico-legal and
RAF4 Serious Injury Assessment Reports from the Plaintiffs
experts
which were furnished to the Defendant;
3.3
The
reasonable, taxable preparation, qualification, travelling and
reservation fees, if any, of the following experts of whom notice
have been given, being:-
3.3.1
Dr DA Birrell, Orthopaedic Surgeon;
3.3.2
Dr M Mazabow, Clinical
Neuropsychologist;
3.3.3
Dr K Truter, Clinical Psychologist;
3.3.4
Ms O Guy, Speech and language
pathologist;
3.3.5
Dr DA Shevel, Psychiatrist;
3.3.6
Dr JC Pearl, Neurologist;
3.3.7
Ms C Pretorius, Occupational Therapist;
3.3.8
Ms E Noble, Industrial Psychologist;
3.3.9
Mr G Whittaker, Actuary;
3.3
The
reasonable costs of all consultations between the Plaintiff's
attorneys, and/or counsel and/or the witnesses, and/or the experts
and/or the Plaintiff in preparation for the hearing and to discuss
the terms of this order;
3.4
The
reasonable, taxable accommodation and transportation costs (including
Toll and E-Toll charges) incurred by or on behalf of the
Plaintiff in
attending all medico-legal consultations with the parties' experts,
all consultations with his legal representatives
and the court
proceedings, subject to the discretion of the Taxing Master;
3.5
It
is recorded that the Plaintiff's Klerksdorp attorneys act in terms of
a contingency fee agreement in this matter;
3.6
The
above costs also be paid into the abovementioned trust account of
Adams & Adams Attorneys.
4.
The
following provisions shall apply with regards to the determination of
the aforementioned taxed or agreed costs:-
4.1
The
Plaintiff shall serve the notice(s) of taxation on the Defendant’s
attorneys of record;
4.2
The
Plaintiff shall allow the Defendant 7 (SEVEN) court days to make
payment of the taxed costs from date of settlement or taxation
thereof:
4.3
Should
payment not be effected timeously, Plaintiff shall be entitled to
recover interest at the rate of 10.50% per annum on the
taxed or
agreed costs from date of allocator or settlement thereof to date of
final payment.
BY
ORDER OF THE COURT
Counsel for Plaintiff: Adv GW
Alberts SC- 082 499 2000
Counsel for Defendant: Adv
Ramatsikis 082 222 8427