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[2018] ZAGPJHC 572
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MB v Road Accident Fund (2015/26884) [2018] ZAGPJHC 572 (21 September 2018)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2015/26884
In
the matter between:
M
,
B
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
ADAMS
AJ
:
[1].
The plaintiff claims
delictual damages from the defendant in terms of the provisions of
the Road Accident Fund Act number: 56 of
1996, as amended (‘the
Act’). Her damages arise as a result of personal injuries
sustained by her in a motor vehicle
collision which occurred on the
5
th
November 2011 in Mayfair (‘the collision’).
[2].
The plaintiff, whose
date of birth is the […] May 1985, was 26 years old at the
time of the accident, and she sustained in
essence abdominal injuries
and soft tissue injuries to the lower back and neck. Her age at
present is 33 years old.
[3].
The issue of the
merits / negligence was resolved between the parties on the basis of
a full concession of liability by the defendant
in favour of the
plaintiff. This means that the defendant has accepted liability for
100% of the damages suffered by the plaintiff
as a result of the
injuries sustained by her in the collision.
[4].
The plaintiff has no claim for past
hospital and medical expenses. The reason for this is that on the day
of the collision and immediately
thereafter the plaintiff was
admitted to and received treatment from a Government Hospital and she
was not required to pay for
the medical treatment received by her
from the Government Hospital. As far as the plaintiff’s general
damages are concerned,
the defendant disputes that the plaintiff’s
injuries were of a serious nature and that she qualifies for general
damages
as provided for in the Act and the regulations promulgated
thereunder. The parties have accordingly agreed that the plaintiff’s
general damages would be referred to the Appeals Tribunal of the
Health Professions Council of South Africa (‘the HPCSA’).
[5].
As far as future
hospital and medical expenses are concerned, the parties agreed that
the defendant would furnish the plaintiff
with an unlimited statutory
Undertaking in terms of the provisions of section 17 (4) (a) of the
Road Accident Fund Act number 56
of 1996 (as amended) (‘the
Act’). The said Undertaking would therefore cover the plaintiff
in respect of 100% of future
hospital and medical expenses incurred
by the plaintiff. I am required to make an order to that effect by
agreement between the
parties.
[6].
This means that the only issue which remain
unresolved between the parties is that of the plaintiff’s
future loss of earnings
/ loss of income earning capacity / loss of
employability. The plaintiff’s case is that she should be
awarded an amount of
R2 604 409 for her alleged past and
future loss of earnings, whereas the defendant is of the view that
the plaintiff
has not suffered any such loss.
[7].
After the accident on
the 5
th
of November 2011, the plaintiff was transported by ambulance from the
scene of the collision to the Helen Joseph Hospital in Johannesburg.
She was nine months pregnant when she was involved in the accident,
and she suffered an injury to the back and neck, abdominal
injuries,
an injury to the groin area and an injury to the leg.
[8].
The plaintiff was
admitted and hospitalised for a period of four days at the Helen
Joseph Hospital and thereafter for a period of
six days at the
Coronationville Hospital. She reportedly had abdominal bleeding, and
a laparotomy and a caesarean section were
performed. .
[9].
At the time of
the collision the plaintiff was working at Abdille Discount Curtains
as a sales lady and cashier. She had been working
there since the
beginning of 2009. The plaintiff had taken maternity leave prior to
the accident on the 15
th
of October 2011 for a period of three months. By the time she had
gone on maternity leave she had been employed at this store for
approximately three years. At the time she went on maternity leave,
the plaintiff was earning R7500 per month. It is the case of
the
plaintiff that, but for the collision and her resultant injuries, she
would have continued working in that capacity or in a
simirlar
position until normal retirement age.
[10].
But for the
accident, the plaintiff, who was earning R7500 per month as a sales
lady and cashier, would have continued in the same
or simirlar
employment for the same remuneration, which, by all accounts was in
excess of what this position normally pays, until
retirement at age
65.
[11].
Now that the
accident has occurred, it is the plaintiff’s case that, as a
result of the injuries sustained by her in the accident
and the
sequelae thereof, she has now been rendered incapable of gainful
employment at any level in the open labour market. The
plaintiff
therefore contends that she has been rendered completely unemployable
as a result of the accident and the injuries she
sustained and it is
therefore projected that post – morbid she would not be earning
any income. The phraseology used on behalf
of the plaintiff is that
she has been rendered ‘functionally permanently unemployable’.
In other words, it is the plaintiff’s
contention that in
consequence of the injuries she sustained in the collision and the
sequelae thereof she has no residual earning
capacity.
[12].
The
defendant's contention is that the sequelae of the injuries suffered
by the plaintiff in the collision, if any, have not interfered
in any
way with her earning capacity or potential. It is therefore the
plaintiff’s case that there has been no impairment
of
plaintiff’s income earning capacity.
[13].
The
plaintiff’s case was supported by the evidence of three expert
witnesses, namely an orthopaedic surgeon, an occupational
therapist
and an industrial psychologist, as well as the evidence of two lay
witnesses, namely the plaintiff herself and a business
manager of
Abdille Discount Curtains, one Hassan.
[14].
The
plaintiff’s Orthopaedic Surgeon, Dr Versfeld, testified that,
in his expert opinion, the soft tissue injuries suffered
by the
plaintiff were of a serious nature. The reason for this opinion he
explained to be the persistence of the symptoms over
a period of five
years from the time of the accident until the time he examined the
plaintiff on the 14
th
of July 2016, coupled with his clinical findings based on his
clinical examination of the plaintiff as supported by the x-ray
plates and reports.
[15].
On a clinical
examination of the plaintiff's left hip injury, Dr Versfeld found
that the plaintiff had a positive Trendelenburg
gait and a positive
Trendelenburg sign. He explained that this indicated that there was
something wrong with the workings of the
hip.
[16].
Surprisingly
Dr Versfeld expressed a view, quite forcefully, on the severity of
the plaintiff's head injury. In that regard he placed
emphasis on the
plaintiff’s complaints. He remained adamant, in the face of
evidence to the contrary by psychologists, that
the head injury was
of a serious nature and has an effect on the plaintiff’s claim.
This unreasonable stance by Dr Versfeld,
in my view, detracts from
the reliability of the expert opinion of Dr Versfeld, who was
singular unimpressive.
[17].
The
plaintiff’s occupational therapist, Ms Suzette Murcott,
testified that the plaintiff’s tolerances for standing and
for
working in stooped postures are limited. Her right hand grip strength
was substantially decreased and that her safe load handling
was less
than 10 kg. In her report she had noted that the plaintiff’s
abilities to perform her pre – accident work
‘are
restricted’ as a result of the consequences of the accident and
her chances to secure suitable work matching her
residual functional
capacity ‘are compromised’.
[18].
The
plaintiff’s industrial psychologist, Ms Anne Jamotte, testified
that in the collision the plaintiff sustained polytrauma,
which
rendered her unemployable for the type of work she was doing in the
past. She had been unemployed for some time and it is
unlikely that
she would resume employment and it is perceived that effectively the
accident has rendered her ‘functionally
unemployable’,
whatever that term means. Her evidence was furthermore that the
nature of the plaintiff's employment prior
to the collision was of a
semi – skilled or unskilled nature and that, having regard to
the sequelae of the injuries she
sustained in the collision and her
basic education and the problems that refugees experience in
obtaining work in South Africa
(which was confirmed by the
plaintiff), would render the plaintiff ‘functionally
unemployable’ in any capacity in the
labour market.
[19].
Importantly,
Ms Jamotte conceded that, from a physical point of view, the
plaintiff had retained a residual capacity to be employed
and to earn
an income. What that residual capacity is she was not able to say as
she had clearly not applied her mind to the issue.
Additionally, she
attached considerable weight to this concept of ‘functional
employability’, which she described as
a term used by
industrial psychologists with reference to a situation in which the
circumstances of a claimant dictates the future
projected career and
income. I have a difficulty with applying this concept as it is not
in accordance with the legal principles
applicable to claims based in
delict. The effect of the application of this concept is to award
damages against a defendant on
the basis of factors not attributable
to a defendant.
[20].
The plaintiff
herself also gave evidence in support of her claim. She
testified that she was bleeding internally following
the collision
until she underwent a laparotomy and a caesarean section to deliver
her baby.
[21].
Thereafter,
Hassan, the plaintiff’s manager, testified about the
plaintiff's pre – morbid occupation and how he as the
shop
manager (who also appointed her) depended on her assistance and
support. He spoke of her performance prior to the accident
and
confirmed that she was a hard worker, who valued her employment and
her position. However, when the plaintiff returned to work,
after the
accident, the standard of her work was not up to scratch. She could
no longer cut material. She was unable to handle
money and she was
not as active and as energetic as she was before the accident. She
was no longer able to remove from the shelves
and carry the rolls of
material as she was required to do on a daily basis in her job and
which she was well able to do pre –
morbid.
[22].
Hassan
confirmed that, according to him, the plaintiff was unable to resume
her work normally as required because of the injuries
she has
sustained in the accident. Because she was not able to work, they
decided to terminate her employment on the 20
th
of January 2012 due to health concerns. He also confirms that the
plaintiff was earning R7500 per month at the time when she went
on
maternity leave.
[23].
On behalf of
the defendant, the following witnesses gave evidence: an occupational
therapist, an orthopaedic surgeon and an industrial
psychologist.
[24].
The
defendant’s occupational therapist, Ms Mamotshabo Magoele,
testified that the plaintiff complained to her of back pain
in all
the activities affecting standing, walking, sitting, bending and
carrying. Ms Magoele expressed the view that post –
morbid the
plaintiff is able to perform her pre – morbid occupation, that
being that of a cashier. It was submitted by the
plaintiff that this
opinion is wrong because the plaintiff was not a cashier before the
accident, but a sales lady, who was required
to remove rolls of
material from the shelves and carry same, which, so the argument
went, was not the same functions as those of
cashier who would be
required to stand or sit for most of the day. The importance of this
piece of evidence will become clear later
on in my judgment.
[25].
The second
witness for the defendant was its orthopaedic surgeon, Dr D E Gantz,
who testified that the plaintiff suffered a cervical
spine injury as
well as a thoracolumbar injury / pain and furthermore confirmed that
soft tissue injuries would not show on an
x-ray. Dr Gantz deferred to
the occupational therapist regarding the plaintiff's employment. He
did not see the injury to the left
leg of the plaintiff as reported
on by Dr Versfeld and he accordingly did not report thereon.
[26].
The
defendant’s industrial psychologist, Mr Tshepo Tsiu, testified
that, in his opinion, the plaintiff was overpaid by her
employer at
the time of the accident and that a market – related salary for
her would be in the region of R26 000 per
annum in current
monetary terms. He expressed the view that there was no future loss
of earnings suffered by the plaintiff.
[27].
I am not persuaded that the plaintiff has
made out a case for the award contended for by her. Objectively
speaking it is, in my
judgment, highly improbable that the plaintiff
has been rendered completely unemployable as a result of the injuries
sustained
by her in the collision. The injuries consisted in the main
of soft tissue injuries to the plaintiff’s neck and lower back.
All of the experts on behalf of the plaintiff confirm, in as many
words, that the plaintiff has retained a residual income earning
capacity
[28].
Dr Botha, in his report, confirms that the
plaintiff has recovered fully from the abdominal trauma that
precipitated the labour
process and that there would be no long –
term consequences. Ms Anne Jamotte, the plaintiff’s industrial
psychologist,
testified that the plaintiff has been rendered
unemployable for the type of work she was doing in the past. She did
however concede
during her evidence that the plaintiff has retained a
residual income earning capacity, but she was not in a position to
give an
indication of what the residual income earning capacity is.
The obvious possibility which comes to mind is the position of
cashier,
as testified to by the defendant’s industrial
psychologist. However, as I indicated, the plaintiff’s
industrial psychologist
did not consider this possibility as she had
clearly made up her mind that the plaintiff has been rendered
completely unemployable
on the basis that her injuries has rendered
her ‘functionally unemployable’ in the open labour
market.
[29].
Since the accident, the plaintiff, who, on
her version, has been completely incapacitated, gave birth to three
children. The import
of the aforegoing relates to issues of
contingencies.
Loss
of Income
[30].
The pre – morbid projected career and
income path of the plaintiff is common cause between the parties.
[31].
The dispute relates to the residual income
capacity of the plaintiff after the accident. As I have already
indicated, I do not accept
that the plaintiff has been rendered
completely unemployable. In my judgment, it would be reasonable and
just, in the absence of
an opinion by the plaintiff’s
industrial psychologist in that regard, to allocate a percentage to
such residual. In that
regard, I believe that, having regard to the
injuries of the plaintiff, she had been compromised to the tune of
10%.
[32].
The employability of the plaintiff at any
given point in time is a matter for this court to decide, based on
the facts and the considerations
which went into the opinions of the
expert witnesses.
[33].
In
Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another,
2001 (3) SA 1188
(SCA) at paras 36 and 37 the following is said:
‘
[36]
That being so, what is required in the evaluation of such evidence
is to determine whether and to what extent their opinions
advanced
are founded on logical reasoning. That is the thrust of the decision
of the House of Lords in the medical negligence case
of
Bolitho
v City and Hackney Health Authority,
[1997] UKHL 46
;
[1998]
AC 232
(HL (E)). With the relevant dicta in the speech of Lord
Browne-Wilkinson we respectfully agree. Summarised, they are to the
following
effect.
[37]
The Court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical practice.
The Court must be satisfied that such opinion has logical basis, in
other words that the expert has considered comparative risks
and
benefits and has reached ‘a defensible conclusion’.’
[34].
In making an assessment of the weight to be
attached to the conclusion of plaintiff’s experts relative to
the employability
of the plaintiff, and applying the above principles
in casu,
I
have had regard to the objective and undisputed facts in this matter.
[35].
A fact which weighs heavily on my mind is
that the plaintiff has suffered soft tissue injuries, and it is
difficult to perceive
on what basis she had been rendered completely
unemployable. It is not as if the plaintiff on any version has become
completely
disabled from a physical point of view. Her difficulty is
the pain which she has to endure. However, she has been subjected to
this pain for more than six and was seemingly able to live a normal
life outside of the workplace.
[36].
Accordingly, I am of the view that the
evidence suggesting that the plaintiff has been rendered completely
unemployable is unconvincing
and in contrast with the objective facts
in this matter.
[37].
In the premises, I find that post –
accident, the plaintiff’s projected career path and income
would have been the same,
but for the fact that the plaintiff would
have been compromised and would have suffered a loss of income
earning capacity equivalent
to 10% of her pre – morbid
projected income.
[38].
According to the actuarial report by the
plaintiff’s actuary, which calculations I accept, plaintiff’s
gross pre –
morbid income, before the application of
contingencies, would have amounted to the total sum of R2 990 029.
[39].
Applying my aforesaid findings to this
amount results in the following net amount: R2 990 029 X
10% (the percentage by
which the plaintiff’s capacity has been
reduced) = R299 003. Therefore, in my judgment, the plaintiff’s
past and
future loss of income amounts to R299 003.
[40].
Therefore, under this head of damages I
intend awarding the plaintiff the total amount of R299 003
Order
In
the result, I make the following order.
1.
The
defendant shall pay to the plaintiff delictual damages in respect of
her loss of earnings in the sum of R299 003 (Two Hundred
and
ninety nine thousand, and three rand).
2.
The
plaintiffs claim for general damages is referred to the Appeals
Tribunal of the Health Professions Council of SA (‘the
HPCSA’)
for a finding.
3.
The
aforesaid capital amount and High Court party and party costs shall
be paid to the Plaintiff's attorneys' trust account, the
particulars
of which are: Joseph's Incorporated Trust Account, RMB Private Bank,
Account Number: […], Branch Code 261 251
4.
The
defendant shall furnish the plaintiff with an undertaking in terms of
the provisions of
section 17(4)(a)
of the
Road Accident Fund Act, No
56 of 1996
, to pay 100% of the costs 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, arising out of
the injuries she sustained in the motor vehicle collision on 5
November
2011, and the sequelae thereof, after such costs have been
incurred and upon proof thereof.
5.
The
defendant shall pay plaintiff's taxed party and party costs on the
High Court scale, such costs to include:
5.1
the
costs attendant upon the obtaining of payment of the full amount
referred to in paragraph 1 above; and
5.2
the
costs of the medico-legal reports and qualifying fees (if any) of the
following medical legal experts: Dr G Versfeld (Orthopaedic
Surgeon),
Dr M P Ligege (Radiologist), Dr G Versfeld (Orthopaedic Surgeon)
with respect to the RAF4 Serious Injury Assessment
Report, Dr A P J
Botha (Specialist Physician), Dr A P J Botha (Specialist Physician)
in respect of the RAF4 Serious Injury Assessment
Report, Ms S Murcott
(Occupational Therapist) and Ms A Jamotte (Industrial Psychologist).
5.3
The
costs of the attendance at Court of Mr G. Whittaker (Consulting
Actuary).
5.4
Counsel’s
charges.
6.
The
defendant shall pay Interest to the plaintiff on the aforesaid amount
of R299 003 at the rate of 10.25% as from 14 days
from date of
this order until date of payment.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
23
rd
,
24
th
, 25
th
, 28
th
and 29
th
May 2018
JUDGMENT
DATE:
FOR
THE PLAINTIFF:
21
st
September 2018
Advocate
M Chaitowitz SC, together with Advocate D J Combrinck
INSTRUCTED
BY:
Joseph’s
Incorporated
FOR
THE DEFENDANT:
Adv
H R Liphosa
INSTRUCTED
BY:
Kekana
Hlatswayo Radebe Attorneys