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[2017] ZAGPPHC 61
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M v Ratjuli (19931/2006) [2017] ZAGPPHC 61 (24 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
24/2/2017
CASE
NO: 19931/2006
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
O
M
Plaintiff
and
VUYTSILE
MOSES
RA.JUTILI
Defendant
DATE
OF HEARING: 22 NOVEMBER 2016
DATE
OF HEADS OF ARGUMENT12 DECEMBER 2016
DATE
OF .JUDGMENT 24 FEBRUARY 2017
JUDGMENT
MANAMELA,
A.J
Introduction
[1]
The plaintiff sued the defendant for damages relating to injuries
sustained from a motor vehicle accident which took place on
or about
13 November 2005 in Centurion. Pretoria. The plaintiff sued for, and
has already been paid an amount of R25 000.00 for
her damages by the
Road Accident Fund in terms of the provisions of the
Road Accident
Fund Act 56 of 1996
. She is now proceeding against the defendant for
her damages in an amount of R3 295 579.53 together with interest and
costs of
suit.
[1]
[2]
A separation of issues relating to merits from those relating to
quantum was ordered by this Court on 4 February 2009 in terms
of
Uniform
Rule 33(4).
In terms of the same order the defendant was held
liable to the plaintiff in respect of proven or agreed damages less
the amount
paid by Road Accident Fund. The current determination of
the issues relating to
quantum
was postponed
sine
die
.
[3]
The plaintiff was a minor and passenger in a motor vehicle driven by
the defendant at the time of the accident. The summons
was initially
issued on her behalf of her mother Ms Cornelia Ntebo Makama and she
replaced her as the plaintiff herein after attaining
majority age.
[4]
When the matter came up before me on trial, there was no appearance
on behalf of the defendant. Mr .JA Sanders appeared for
the plaintiff
and submitted that the matter was
properly
set down by a notice served through the sheriff at the defendant's
work address.
[2]
The notice was
served on another person after failed several attempts by the sheriff
including leaving messages for the attention
of the defendant.
[3]
However, there has been
previous service of documents on the same address including
summons.
[4]
Attorneys previously
on record for
the
defendant withdrew as far back as 18
June
2009.
[5]
Therefore this matter is to be decided almost like a request for
default judgment. However I have the benefit of written and
oral
submissions by counsel for the plaintiff, and medico-legal reports
filed by the plaintiff. There are no expert reports filed
on behalf
of the defendant and the defendant's plea does not shed much light if
anything regarding the version of the defendant.
I reserved judgment
at the end of a very brief hearing and requested counsel to file
detailed heads of argument by 12 December
2016.I am grateful to
counsel for the written heads of argument.
Injuries
and their sequelae (medico-legal opinions)
Orthopaedic
Surgeon
[6]
According to the report of Dr DA Birrell, an orthopaedic surgeon
which in fact is based on opinions expressed in the medical
form by
Dr Fitzgerald the plaintiff sustained the following injuries:
bilateral
central
disc
dislocations
of
both
hips:
the
right pubic
ram
us
fracture with opening of
the sacroiliac joint (which was undisplaced): a sacroiliac joint
fracture on the left: a left acetabulum
fracture superior and
inferior: bilateral femur fractures, mid shaft left and distal on the
right; a right malleolus fracture lateral
(fibula) undisplaced; a
right foot, third fourth and fifth metatarsal fractures with
degloving of the right foot and the left foot
lateral and medial side
of foot wounds, plus-minus I0
cm.
[5]
[7]
It is no doubt that the above-mentioned injuries are of a series
nature and are concentrated or located on the lower limbs inclusive
of the pelvis. From an orthopaedic point view the plaintiff would
require further medical attention, including an arthrodesis.
Occupational
Therapist
[8]
Ms Leazanne Toerien furnished a medicolegal report as an occupational
therapist, after assessing the plaintiff on 30 .January
2013.
[6]
According to Ms Toerien, the plaintiff would benefit from
occupational therapy intervention in order to, among others, aimed at
measures to reduce fatigue and enhance participation: protect
affected joints (right ankle) and reduce deterioration: reduce
discomfort
and inputs on vocational rehabilitation for appropriate
career options.
[7]
Plastic
Reconstructive Surgeon
[9]
Mr P Bruce White furnished a report as plastic reconstructive surgeon
dated 28 March 2013.
[8]
According to Mr White, his examination of the plaintiff revealed,
among others, the presence of the following: an extremely abnormal
gait: slow-walking movement: inability
to
place the right heel on the ground: bilateral unsightly
hyperpigmented indented surgical scars overlying both trochanteric
regions
with a noticeable drain site scar just below each of these
areas: bilateral hyperpigmented raised surgical punctate scars
overlying
both lateral femoral regions: diminished movement of the
toes of the right foot and diminished sensation of the dorsum of the
right
foot.
[9]
Mr White
recommends further conservative and operative intervention, but
opines that even after such intervention the plaintiff
would remain
with unsightly permanent scars and gross unsightly scarring on the
right foot which cannot be revised.
[10]
Educational
Psychologist
[10]
There is an educational psychologist’s report prepared by Miss
Madelien Mills,
[11]
after
assessment of the plaintiff on 15 October 2013. Ms Mills states that
the plaintiff or her mother reported that before the
accident she did
not repeat a grade, but repeated grade 9 as she was unable to
write her examinations
due to hospitalisation.
She
thereafter also
failed
grade 11
and
passed grade 12 in 2010 when she was about 19/20 years of age.
[12]
[11]
It is also reported by Ms Mills that the plaintiff wanted to pursue
legal studies at the University of Pretoria, but despite
qualifying
matric grades or marks and favourable financial policy of this
institution, the plaintiff decided to take a gap year.
During the gap
year, she "suddenly” took up a position of
trainee fitter at a
mining company and did not even apply for admission for the
subsequent years. Her mother says the plaintiff
lacks the courage to
leave a familiar environment in
order
to
go to
university.
[13]
She has been
working at Anglo-American Platinum since 2011 and obtained an N2
Certificate in engineering drawing and science, and
fitting and
machining theory on a part-time basis in 2012. She was aspiring to
obtain a trade certificate or
artisan
qualification at
the
end
of
20
1
3.
[14]
[12]
Ms Mills reported that during the assessment the plaintiff did not
show any obvious signs of
distractibility
and seemed to
do her best in given
tasks but stated that the results of
the
assessment should provide
adequate
estimation of
her
current
level
of
functioning.
[15]
She
further reported that the
results of assessment indicate that the plaintiff is currently
struggling with symptoms in keeping with
severe depression, anxiety
and stress, and that anxiety and stress result in a state of nervous
tension, irritability, impatience
and overreaction to situations.
[16]
According to Mills the plaintiff’s emotional problems will have
a negative effect on social relationships
and
ability
to
function
adequately in
the
work
place.
[17]
.
[13]
Ms Mills recommends psychiatric assessment to determine whether the
plaintiff will benefit from medication for depression and
anxiety.
She also recommends psychotherapy sessions to help the plaintiff cope
with her problems and address her low self-image.
[18]
Industrial
Psychologist
[14]
Miss Cecile J Nel prepared a report as an industrial psychologist for
the plaintiff.
[19]
She
evaluated the plaintiff on 3 December 2015. She stated in her report
that the plaintiff was still in the employ of Anglo-American
Platinum
as at the date of evaluation and was earning a monthly salary of R20
265.00 plus benefits like standby allowance, rental
subsidy, market
allowance, provident fund, medical aid,13
th
cheque and 6 monthly
production bonus etc.
[20]
[15]
Ms Nel is of the view that the plaintiff does not qualify for past
loss of income as she was a learner at the time of the accident
save
for the delays occasioned by the accident..
[21]
She reported that the workplace feedback regarding the plaintiff’s
performance states her performance as below average: struggling
with
her legs: unable to carry or lift heavy objects and requiring
intermittent use of other people's assistance.
[22]
However,
her memory is good and there are no complaints or disciplinary
actions against her although the plaintiff is accommodated
by being
placed in a section with fewer stairs and receives assistance much of
the time.
[23]
[16]
The industrial psychologist concluded that the plaintiff’s
chances have been curbed in respect of her continued and future
employment prospects: "her earning capacity and likely future
earnings have been curtailed to a moderate to significant degree,
depending on the job content, and resulted in a partial loss of
income, since the plaintiff is considered to be employable albeit
not
at her pre-morbid level
of
functioning
in
the
open labour market.”
[24]
She recommended, among others,
that
the plaintiff’s loss of earnings he based on premature
retirement: consideration that a moderate to
significant truncation of
a range of
job
choices
level of occupational functioning and competitiveness in the open
labour market has occurred.
[25]
Some
joint experts’ opinions
[17]
The industrial psychologists and other experts postulate three
possible scenarios regarding qualifications for the plaintiff:
her
acquiring recognised certificate (NQF level 05 in terms of the South
African Qualifications Authority (SAQA) higher than her
current trade
qualification (NQF level 05) or recognise diploma (NQF level 06
i.t.o. SAQA) or university degree (NQF level 07 i.t.o.
SAQA).
[26]
26 This. if attained.
would result in different job or career and
salary
prospects
for
the
plaintiff.
[18]
However, the following
are stated as limitations to the plaintiff’s qualification or
career prospects due to the accident:
physically demanding work
(should rather opt for sedentary to occasionally light physical
work). and financial constraints on her
ambitions of becoming
a lawyer, although this
is
an
option with better
employment prospects
as
lawyers
mostly work in a sedentary position.
[27]
I hasten to point out that l find the latter limitation arguable, as
it
was
indicated above that the plaintiff had obtained qualifying marks for
admission to legal
studies and the University of Pretoria has favourable financial
policy for
students,
but it
was
only the plaintiff who
opted to obtain her current employment in the mining
sector.
[28]
Appropriate
damages award (a discussion)
[19]
The issue to be determined in this matter is whether the plaintiff’s
job prospects have been limited or curtailed by
the injuries
sustained in the accident resulting in a reduced earning capacity.
This is further from any issue of general damages
which l will deal
towards the end.
[20]
The expert opinions, some of which are discussed above, state that
the Plaintiff cannot do heavy work due to her injuries or
their
sequelae
but only sedentary to moderately light work. The
experts conclude that her future earning capacity is curtailed by
this limitation.
I agree.
[21]
However, I am also hearing in mind the fact that the plaintiff has
been employed by one employer since 2011, even though the
employer's
feedback indicates below average performance with some level of
accommodation of the plaintiff’s limitations.
She has
nevertheless escaped disciplinary action by the employer and no
complaints were lodged against her.
[22]
As hinted above, I hold the view that there is a possibility that the
plaintiff could still pursue a job or career which does
not require
the lifting of heavy objects, like qualifying as a lawyer, given the
fact that she reportedly obtained the relevant
grades to gain
admission to tertiary institution in this regard. I have already
stated my doubts regarding the views on financial
limitation.
Besides, the plaintiff may opt to study on a part-time or distance
basis; use her current employment status to obtain
financing for her
studies or even save money for this objective. But I accept other
limitations or complaints, like depression
and stress, may have a
hearing on her career or academic qualification prospects.
Actuarial
Calculations
[23]
Gerard Jacobson Consulting Actuaries prepared a report dated 26
January 2016.
[29]
The actuary
suggested various scenarios and bases obviously influenced by expert
opinions, particularly the industrial psychologist's.
I do not intend
crisscrossing every aspect of the actuarial report. Also, I am
mindful of the fact that actuarial reports and other
expert reports
for
that
matter, although based
on
expertise
and being
of
immense
benefit
to
the
Court,
are
only
a
guide
and part
of
a11
of
the
other
evidence before
the
Court.
[30]
[24]
In my view, despite what I said above regarding the plaintiff
pursuing legal studies, it is reasonable to conclude that the
plaintiff would have obtained a diploma qualification by 2018, but
for the
accident:
would have worked until retirement age of 65, but for the accident,
and is now to retire slightly early at the age 63,
having regard to
the accident.
[31]
Therefore, I
prefer "Basis 11A" of actuarial calculations. Therefore, I
will apply contingency
deductions I consider appropriate under the circumstances to arrive
at the damages award befitting the damages
suffered by the plaintiff.
Conclusion
Loss
of earning capacity
[25]
However, instead of applying 40% contingency deduction to the
plaintiff’s value of income having regard to the accident,
I
will only apply a 30% contingency deduction in this regard. This
would result in a contingency deduction in an amount R2 026
822.20
from R6 756 074.00 (income having regard to accident) and a balance
of R4 729 251.80 (net value of income having regard
to accident). The
result is a net future loss of R1 454 045.20. Therefore, I will award
to the plaintiff an amount of R1 692 732.20
(i.e. R238 687.00 for
past loss and R1 454 045.20 for future loss) as past and future loss
of income.
General
Damages
[26]
The plaintiff had claimed an amount of R500 000.00 with regard to
this head of the damages claim. Plaintiff’s counsel
referred me
to various comparable cases for which I am grateful. I have also
considered other available authorities and opinions
of experts herein
but do not deem it necessary to detail aspects thereof for a
determination to be made here.
[27]
However prominent in my mind is the conclusion by the plastic and
reconstructive surgeon that even with intervention the plaintiff
will
not be fully relieved of
"unsightly
scarring""
or
disfigurement to
her bod,
which is
permanent.
[32]
This, in my view, also has a bearing on the plaintiff’s
emotional and psychological status apart from the consequential pain
and suffering. Therefore, based on all the above, I consider an
amount of R450 000.00 as appropriate award to the plaintiff in
respect of general damages.
[28]
Therefore, the total amount of loss awarded to the plaintiff in
respect of the damages suffered is in the amount of R2 117
732.20
(i.e. R1 692 732.20. in respect of loss of earning capacity plus R
450 000.00. in respect of general damages. less R25 000.00
already
paid by the Road Accident Fund).
Order
[29]
I therefore make the following order:
1.
The Defendant shall pay to the Plaintiff the amount of
R2 117
732.20 (two million one hundred and seventeen thousand seven hundred
and thirty-two rand twenty cents
):
2.
Interest on the amount of
R2
117
732.20
(two
million
one
hundred and
seventeen thousand
seven hundred and thirty-two rand twenty cents
) at the rate of
10.5% per annum from date of this order to date of payment:
3.
Costs of suit.
K.
La M. Manamela
Acting
.Judge of the High Court
24
FEBRUARY 2017
Appearances:
For
the Plaintiff
Adv
.JA Sanders
Instructed
by
Van
Velden Duffey Attorneys
c/o
Weavind and Weavind, Pretoria
For
the Defendant
In
person (hut no appearance at trial)
[1]
See the pleadings bundle on index pp 4 - 10.
[2]
See the notice bundle on index p 90.
[3]
Ibid.
[4]
See the pleadings bundle on index p 11.
[5]
See the expert bundle on index p 2.
[6]
See experts bundle on indexed pp 30-68.
[7]
See experts bundle on indexed pp 54-55.
[8]
See experts bundle on indexed pp 69-81.
[9]
See experts bundle on indexed pp 73-74.
[10]
See experts bundle on indexed p 77.
[11]
See experts bundle on indexed pp 89-115.
[12]
See experts bundle on indexed pp 97-98.
[13]
See experts bundle on indexed pp 98-90.
[14]
Ibid
.
[15]
See experts bundle on indexed p100.
[16]
See experts bundle on indexed p112.
[17]
Ibid.
[18]
See experts bundle on indexed p115.
[19]
See experts bundle on indexed pp116-140.
[20]
See experts bundle on indexed p 123.
[21]
See experts bundle on indexed p 124.
[22]
See experts bundle on indexed p 125.
[23]
See experts bundle on indexed p 125-126.
[24]
See experts bundle on indexed p 138.
[25]
Ibid
[26]
See experts bundle on indexed p 134-135.
[27]
See experts bundle on indexed p 134-135
[28]
See par 11 above.
[29]
See
the actuarial report on indexed pp 141-152.
[30]
See Potgieter et al Visser & Potgieter Law of damages 3rd ed
(Juta Cape Town 2012) at p 467: See Klopper HB
Law
of Third-party Compensation 3rd ed ( I.exisNexis Durban 20I2) at p
177.
[31]
See the actuarial report on indexed p 147.
[32]
See par 9 above.