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[2018] ZAGPJHC 585
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G v Road Accident Fund (2010/29802) [2018] ZAGPJHC 585 (26 October 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2010/29802
In
the matter between:
G:
M
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
Coram:
Lagrange AJ
Heard
:
17 - 19 October 2018
Delivered
:
26 October 2018
Summary:
(Claim for damages – vehicle accident–
damages and quantum – injury relating to expected loss of
future earnings
not proven to have arisen from accident)
JUDGMENT
LAGRANGE,
J:
Introduction
[1]
In this matter, the parties are agreed that the defendant is liable
for such damages which arose from a motor vehicle accident
in which
the plaintiff was injured occurring on 26 September 2008. The only
issues for the court to determine are what damages
he suffered as a
result of the accident and the quantum thereof. In so far as there
are any general damages, the parties are agreed
that this is a matter
to be determined by the Health Professionals Council of South Africa.
Accordingly, the court is not seized
with considering those damages.
Material
evidence
[2]
It is common cause that following the accident, the plaintiff was
unable to fly for a period of three months. Although he was
paid his
ordinary salary during this period, he did not receive the
subsistence and travel allowance which he would normally have
been
paid whilst on active duty and which formed a significant part of his
income.
[3]
Apart from the plaintiff himself, a number of experts gave evidence,
even though joint minutes had been concluded by the parties’
occupational therapists, industrial psychologists and orthopaedic
surgeons. The joint minutes of the occupational therapists and
the
orthopaedic surgeons, nevertheless, reflected some fundamental points
of disagreement between them. The expert evidence
was relevant
to prove, or disprove, his claim for future loss of earnings premised
on a diminution of his promotion prospects and
possible early
retirement.
[4]
The plaintiff is a pilot, and has attained the rank of first officer,
employed by South African Airways [SAA]. He has been flying
as a
pilot since 1992, firstly for the South African Air Force, and for
SAA since 2004. He is passionate about his occupation and
is
committed to his job. He currently flies on long haul freight routes.
It is not in dispute that owing to lower back pain, he
finds it
necessary to be relieved by another pilot roughly every three hours
on such flights. It was his evidence that such pain
is intermittent.
[5]
Under cross-examination, the plaintiff was asked whether he had any
other evidence to support his claim that he suffered from
back pain,
to which he responded that he could only mention that he had
complained about it to his general practitioner. His general
practitioner had prescribed painkillers and ‘Devils Claw’
for pain relief. Although he testified that he suffered from
back
pain after the accident he did not claim that he had complained of
back pain to Professor Scheepers when he was examined by
him in June
2015.
[6]
When he was admitted to hospital, the nurse who authored the Nursing
Assessment form at the Netcare Accident and Emergency Unit,
noted
that he complained of injury to his right shoulder and ‘back
pain’. In the examining doctor’s subsequent
clinical
record of his examination of the plaintiff at the same emergency unit
he recorded the plaintiff was complaining of pain
in his right
shoulder and right upper chest. The only back injury recorded by the
doctor on examination was: ‘self maintained
cervical spine
tenderness’. It is not in dispute that the plaintiff suffered a
broken right clavicle and injury to his right
upper chest. This
evidence emerged under the plaintiff’s cross-examination of the
orthopedic surgeon, Dr A Scheepers, who
was asked to interpret the
relevant medical notes from the Accident Unit, and was not disputed.
[7]
In their joint report, the orthopaedic surgeons differed in their
findings on the injuries sustained. Doctor K. S. Bila found
that
apart from the fractured right clavicle, on which they both agreed,
the plaintiff had also sustained fractured ribs on his
right side and
a lower back injury. When Dr. Bila examined the plaintiff on 28
August 2017 the spinal injuries he noted were to
the lumbar sacral
spine evidenced by: the plaintiff’s inability to bend and touch
his toes; painful lateral motion on the
left side; tenderness of the
lumbar spine and a positive result in the straight leg raising test.
He also commented that the radiologists
noted a loss of lumbar
lordosis.
[8]
Professor A. Scheepers did not dispute the results of Dr Bila’s
examination but testified that, at the time of his own
examination of
the plaintiff on 24 June 2015, the plaintiff did not complain of back
pain and his examination revealed no clinical
evidence of such a
problem. At the time of that examination, all the plaintiff had
complained of was that he had suffered shoulder
stiffness for two
years after the accident. Professor Scheepers readily agreed that it
was possible such back pain had developed
by the time the plaintiff
was examined more than two years later by Dr Bila. However, he was
adamant that if the back pain had
been a result of the accident, the
injury would have been evident by the time he saw him in 2015. When
he examined the plaintiff
he could move freely, meaning he could move
from side to side, could rotate and bend forward. In relation to the
loss of lumbar
lordosis noted by the radiologists, Professor
Scheepers testified that this could only be established clinically
and not on the
basis of x-rays because the x-ray results may depend
on how the patient was positioned on the x-ray table at the time of
the x-ray
being taken.
[9]
Although the joint report of the orthopaedic surgeons recorded that
in respect of their physical examination and clinical studies
‘there
was not much difference between the findings of the two experts’,
it is evident from the report itself that
their findings on the
injuries sustained by the plaintiff were markedly different. It is
also apparent that Dr Bila’s prognosis,
that the plaintiff may
have to retire two years earlier on account of a progressive
deterioration of his back condition, was not
part of the joint
minute.
Evaluation
[10]
The plaintiff’s loss of his subsistence and travel allowance,
was clearly a direct consequence of him being unable to
fly as a
result of the injuries sustained in the accident. Accordingly he is
entitled to damages for that loss which I accept amounted
to
R40,264-00 based on the actuarial report of Independent Actuaries &
Consultants, which amount was not contested.
[11]
However, even though there is no dispute that he currently suffers
from lower back pain, which necessitates him being temporarily
relieved by a co-pilot approximately every three hours whilst flying,
the plaintiff has failed to prove on a balance of probabilities
that
the back pain arose from the vehicle accident. Other than his say-so
that he suffered from back pain ‘after the accident’,
the
preponderance of evidence tends to show that such pain only developed
in the period between his examination by Dr Scheepers
in June 2015
and his examination by Dr Bila more than two years later.
Accordingly, I am not satisfied that the back pain suffered
by the
plaintiff was caused by an injury sustained in the vehicle accident,
and the damages claimed for future loss of earnings
consequential
thereto must be disallowed. Those damages constitute the bulk of the
damages claimed amounting to some R 2,6 million
odd.
Costs
[12]
As the plaintiff attained only limited success in relation to a
relatively small portion of his claim it would not be appropriate
to
award him all his costs. As the expert evidence led was in support of
his claim for future loss of income, which was unsuccessful,
it would
also not be appropriate to reimburse him for the fees of such
experts.
Order.
1.
The defendant is liable for the plaintiff’s
loss of past income amounting to R40,264-00.
2.
The plaintiff’s claim for expected loss of
future earnings is dismissed.
3.
The defendant must pay 20 % of the plaintiff’s
costs excluding the fees of expert witnesses.
_______________________
Lagrange
J
Acting
Judge of the High Court
APPEARANCES
FOR THE APPLICANT:
S.
Mgiva instructed by M P Motha Attorneys
RESPONDENT:
L.
Mashilane instructed by M F Jassat Dlahamini Attorneys.