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[2017] ZAGPPHC 811
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Fourie v Road Accident Fund (43405/2014) [2017] ZAGPPHC 811 (21 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 43405/2014
Date:
21/02.2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
FOURIE,
SM
PLAINTIFF
AND
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MOLEFE
J
1.
The Plaintiff, a 40 year old female typist instituted an
action for damages arising out of injuries sustained in a collision
which
occurred on 27 October 2011. The plaintiff was the driver of a
Ford Bantam light delivery vehicle with registration numbers B[...]
and collided with a motor vehicle with registration numbers W[...]
being driven by Mr J Botha ("the insured driver").
2.
As a
result of the aforesaid
collision, the plaintiff sustained bodily injuries for which she had
to receive medical treatment.
Both the plaintiff and the
defendant commissioned various expert reports dealing with the
injuries sustained by the plaintiff.
At the time of the accident the
plaintiff worked as a typist for Nedgroup Trust where she was
employed since 1997.
3.
The issue of negligence of the insured driver is not in
dispute, the defendant having agreed to pay 100% of the plaintiff's
proven
or agreed damages.
4.
The parties have agreed on the following heads of damages:
4.1
Past hospital, medical and related expenses
The defendant has agreed
to pay a total compensation of R125 049.61.
4.2
Future medical expenses
The defendant has agreed
to furnish an undertaking in terms of section 17(4)(a) of Act 56 of
1996 in respect of 100% of the future
accommodation of the plaintiff
in a hospital or nursing home or treatment of or rendering of a
service or the supplying of goods
to her after the costs have been
incurred and on proof thereof, resulting from the accident that
occurred on 27 October 2011.
5.
The only issue that remains in dispute is the plaintiff's
post-morbid loss of income and earning capacity as well as the
contingency
deductions. The parties have agreed on the pre-morbid
value of income as calculated by the plaintiff's actuary at R4 967
849.00
less 15% contingency at R745 177.00 with the total being R4
222 672.00.
6.
Conclusive proof of injuries sustained by the plaintiff and
the sequelae thereof is documented in the medico-legal reports
obtained
from various medical professionals in their respective
fields of expertise. I will only refer to the relevant reports
for
the purpose of the determination of the plaintiff's future loss
of earnings/earning capacity.
6.1
Dr D A Birrell- Plaintiff's Orthopaedic Surgeon
·
The patient's injuries will have no effect on longevity. She
reports neck and lower back pain as well as frequent headaches,
constant
nausea, occasional instability in the right knee with
decreased balance. The estimated loss of work capacity as a result of
the
accident is between 3% to 4%.
·
The patient's chances of requiring neck surgery and lumbar
surgery are not more than 2% to 3%.
·
The X-ray reports shows that the soft tissue and bony
alignment is normal. The end plates are smooth and the disc spaces
and vertebral
body heights are preserved.
6.2
Dr J du Plessis -
Plaintiff's Neurosurgeon
·
Based on the history provided by the plaintiff, the impression
gained on examination and the radiological examination, she sustained
a mild soft injury to her lumbar spine. This was not complicated by
neurological sequelae. It is unlikely that the transverse processes
of L4 and L5 were fractured in the accident under discussion but due
to previous trauma.
6.3
Dr M Mazabow - Plaintiff's Neuropsychologist
·
There is no indication of a traumatic brain injury. \
·
Plaintiff is presently experiencing a chronic severe
depressive disorder… attributed to her frustration about her
experience
of chronic pain… and associated limitations on her
physical competence. She also experiences chronic mild PTSD.
·
The severity of plaintiff’s depression, together with
distracting effects of chronic pain would leave Ms Fourie vulnerable
to concentration variability and slow performance, and these would
represent obstacles in the workplace, rendering her a more vulnerable
employee, especially in positions with high clerical/administrative
demands, high interpersonal requirements and tight time-deadlines.
This vulnerability may also affect her promotional prospects in
future.
6.4
Nicola Heyns - Plaintiff's Occupational Therapist
·
Through successful treatment and ongoing reasonable work
accommodations in an accommodating work environment, plaintiff should
be
able to meet her demands as Will Drafter with less pain and
fatigue. Residual chronic pain, fatigue and her psychological
condition
will however continue to impede on her ability to perform
at maximum levels of personal output when compared to her pre-conduct
ability. She will thus pre-accident ability. She will thus remain at
a lower level than what she would have been capable of had
she not
been injured in the accident.
6.5
Esme' Noble - Plaintiffs Industrial Psychologist
·
Based on the fact that plaintiff is working in the same since
2007, having applied unsuccessfully for promotion, it is postulated
that her current position probably is her ceiling. Her guarantee
package is expected to grow in real terms to the upper quartile
by
the age of 45 years, whereafter yearly increases based on the
consumer price index is postulated until usual retirement at the
age
of 60 (as confirmed by Nedbank).
6.6
Dr S S Mukansi - Defendant's Orthopaedic Surgeon
·
X-rays show less of cervical spine lordosis, pathology at two
levels C4, C5/C6 and normal lumber spine.
·
Patient suffered acute, subacute chronic pain as well as
emotional pains. She can continue with her job as Wills Drafter.
6.7
Hlobsile Dlamini - Defendant's Occupational Therepist
·
The plaintiff retains functional independence and capacity to
remain a productive self-sufficient individual in the open labour
market with moderate loss of life amenities as a result of the
accident in question.
·
She will benefit from Occupational Therapy and Biokinetics to
manage the experienced pain.
6.8
Elfiede Tromp - Defendant's Clinical Psychologist
·
Ms Fourie is suffering from a Depressive Disorder and Post
Traumatic Disorder symptoms. The chronic physical pain she has been
experiencing
contributed significantly to the development of
depression disorder symptoms post-accident. She will benefit from
psychotherapeutic
intervention.
7.
Plaintiff's actuarial calculations were based on three scenarios with
the value of the pre-morbid future loss
of income at R4 967 849.
Scenario 1 was calculated at 22.50% contingency deductions, Scenario
2 at 25% and scenario 3 at 27.50%
contingency deductions.
8.
Plaintiff's counsel, Advocate R Ferguson submitted that the plaintiff
remains severely depressed despite psychotherapy
and the use of
anti-depressants. Prior to the accident, the plaintiff's career goal
was to become a consultant, however the October
2011 accident
worsened her pain sequelae to such an extent that she no longer feels
that she will be able to accomplish her goal.
Counsel contends that
scenario 3 of 27.50% contingency deductions amounting to a total net
loss of R620 981.00 is fair and reasonable.
9.
Defendant's counsel, Advocate F Matika submitted that based on the
facts in this case, the Court should apply
a 20% contingency
deductions amounting to R248 392.80 on future loss of earnings.
10.
An enquiry into damages for loss of earning capacity is of its nature
speculative as it involves a prediction as to the future
without the
benefit of crystal balls. Nicholas JA at 116 - 117 in
Southern
Insurance Association v Bailey NO
1984 (1) SA 98
(A)
stated the
following:
"Where the method
of actuarial calculation is adopted, it does not mean that the trial
Judge is 'tied down by inexorable actuarial
calculations. He has
a
large discretion to award what he considers right'. (per Holmes JA
in
Legal Assurance Company Limited v Botes
1963 (1) SA 608
(A) at 614 F).
One of the elements in exercising that that
discretion is the making of
a
discount for 'contingencies' or
the 'vicissitudes of life'. These include such matters
as
the
possibility that the plaintiff may in the result have less than
a
normal expectation of life; and that he may experience periods of
unemployment by reason of incapacity due to illness or accident,
or
to labour unrest or general economic conditions. The amount of any
discount may vary' depending upon the circumstances of the
case".
11.
Our courts have alluded to the difficulties in arriving at a
proper allowance for contingencies. In
Goodall v President
Insurance Co Ltd
1978 (1) SA 389
,
Margo J remarked as
follows (at 392 H - 393 A):
"In the
assessment of
a
proper allowance for contingencies, arbitrary
considerations must inevitably play
a
part, for the art of
science of foretelling the future,
so
confidently practiced by
ancient prophets and soothsayers, and by modem authors of certain
type of almanack, is not numbered among
the qualifications for
judicial office".
12.
Mindful of these difficulties, the following factors
in casu
require consideration:
12.1
Plaintiff was involved in a
collision in 1997 and sustained injuries
to her neck; she was again involved in a collision in 2001 in which
she injured her neck;
in 2009 plaintiff was again involved in a motor
vehicle accident and similarly sustained soft tissue injuries to her
neck, back
and both knees. On 27 October 2011, plaintiff was again
involved in a motor vehicle collision and sustained soft tissue
injuries
to her neck and lower back which injuries superimposed on a
pre-existing symptomatic neck and back pathology from the
above-mentioned
accidents.
12.2
Plaintiff matriculated in 1995
and attended in-service training
during the course of her career. She obtained a diploma as a
paralegal in 2012, after the
accident in question. She also did short
programme in personal financial planning and investment management
during May 2007 for
which she obtained an NQF 6 certificate. She also
did short programmes in administration of deceased estates.
12.3
At the time of the accident
plaintiff was employed as a Wills Drafter
in the Nedbank Group where she is still employed even after the
accident. The nature
of her occupation demands prolonged sitting
whilst typing.
12.4
According to Dr Birrell, the
plaitiffs current loss of work capacity
is between 3% and 4%. She suffered moderately acute pain for 5 to 7
days after the accident
and does not qualify as a serious injury
under Narrative Test.
12.5
Although her productivity increased
during 2014, it significantly
decreased again during 2015 when she was diagnosed with PTSD and
depression which would have an impact
on her everyday functioning.
13.
Having regard to all of the above factors, in particular to the
plaintiffs pre collision vulnerability, my view is that
the
actuarial calculations in scenario 2 with 25% contingency deductions
on future earning capacity in an amount of
R496
785.00 is a fair and reasonable award.
14.
In the result, the defendant is ordered to make payment of R621
834.61, made out as follows: past future loss of earnings R496
785.00; past medical and related expenses R125 049.61.
The
draft order annexed hereto marked "X" is hereby made an
order of Court.
D
S MOLEFE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel on behalf
of the Plaintiff
:
Adv. R Ferguson
Instructed
by
:
Adams & Adams
Counsel on behalf
of the Defendant :
Adv. F Matika
Instructed
by
:
Tau Phalane Inc.
Date of
Hearing
:
17 February 2017
Date of
Judgment
:
21 February 2017