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[2017] ZAGPPHC 77
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W.J.M v Road Accident Fund (26435/2013) [2017] ZAGPPHC 77 (7 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC
OF SOUTH AFRICA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Date
of hearing: 30 January 2017
Date judgment: 7 March 2017
In
the matter
between:
Case number 26435/2013
W
J
M
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER,
AJ:
1.
The only question for adjudication in this per onal injury case is
the claim by the plaintiff, W. J. M. ("M."), for
future
loss of income. The defendant, the Road Accident Fund ("the
RAF"), conceded full liability on the merits, for
the negligence
of its insured driver, in a motor vehicle collision on 24 January
2010, in which M. was injured. He suffered a fracture
of his C2
vertebra.
2.
The RAF agreed to pay general damages of R450 000,00, and tendered an
undertaking for future medical expenses under section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996 ("the RAF Act"), and
M.'s legal costs. The HPCSA tribunal had found that M.
suffered from
a 30% whole person impairment, and this had justified the claim for
general damages.
3.
The RAF conceded that M. would probably retire at the earlier age of
55. In the result, this meant that the actuarial calculations
would
have to take account of this agreement. The conclusions drawn in the
report of M.'s expert, orthopaedic surgeon Dr LF Oelofse
("Oelofse"),
dated 13 July 2015, were conceded by the RAF as correct.
4.
M. was born on […] September 1977. M. testified, together with
his experts, occupational therapist Geraldine Lourens ("Lourens")
and industrial psychologist Karen Kotze ("Kotze") .
Industrial psychologist Caro Cilliers ("Cilliers")
testified
for the RAF. No further vive voce evidence was tendered.
5.
The following facts pertaining to M. were gleaned from the expert
reports handed up to Court by agreement, and from his vive
voce
evidence.
6.
M. was born on 18 September 1977 and was an electrical technician
employed at Assmang Chrome Works in Machadadorp, Mpumalanga,
("Assmang"), at the date of the accident, having worked
there for almost eighteen years, from 8 February 1999, by the
date of
trial. Assmang is a chrome smelting works with five furnaces. He
maintained heavy current overhead lines. He fixed lights
and contact
points and inspected the electrical components of the furnaces.
7.
Post accident, he had resumed work at Assmang and had been working
there for another seven years. He had a Grade 12 education
and
thereafter, obtained an N4 electrical trade test certificate in 2002.
In 2007 he underwent technician training in Middelburg.
He obtained a
high voltage tension certificate in 2014. His position entailed the
repair of electrical faults for overhead cranes
for which purpose he
had access to a specially designed circular ladder at a height of
about 110 feet. About five to seven hours
of a nine hour work day
were devoted to time spent on the ladder. In October 2010, post
accident, he was promoted to the position
of electrical technician
teamleader at an increased salary. He had both extensive experience
and competence in his fieId of work.
8.
Although he was knocked unconscious, no serious sequelae arose from
this. He sustained a fracture of his C2 vertebra, and underwent
an
operation for a posterior fusion of his C1 and C3 vertebrae. The
first vertebra, C1, joins with the base of the skull and supports
the
head, while the C2 vertebra is the axis, because the head and C1
swivel around it. The two vertebrae facilitate neck movement.
9.
M. was discharged from Midmed Hospital, Middelburg, hospital on 3
February 2010. He returned to work after thirty six days, on
23 March
2010, and was still working at Assmang at the date of trial. He made
no claim for past loss of earnings.
10.
M. testified that he still encountered problems with turning his neck
while working. He continued to suffer from chronic headaches,
for
which he took over the counter pain tablets. He had general pain
while trying to sleep at night, and spasms in his neck. He
found it
difficult to lift his right hand. His powers of concentration had
been compromised. If he made a mistake with an electrical
fault, it
could potentially cause an explosion at the works. On his return to
work, his employer allocated an assistant to him,
so was cognizant of
his physical challenges. Some of his colleagues had come also to his
assistance from time to time. He did not
want this to become known to
his employer as he felt insecure in his position. His insecurity was
compounded by the fact that he
was the main breadwinner in his
household, had a mortgage bond to repay, a wife and children and an
extended family to support.
11.
He confirmed, however, that, since his return to work, his
disability had not caused any dangerous incidents and that he had not
been subjected to any disciplinary proceedings for incompetence in
performing his job. He had no record of absenteeism. If he had
to
re-align his work to that of a sedentary nature, he did not know what
else he could do. His immediate supervisor had described
him as a
good worker with prospects for further promotion.
12.
According to Oelofse, as a consequence of his C2 fracture, M. began
to suffer from severe headaches, chronic pain and spasms,
severe
restriction of range of movement and a high probability of adjacent
level disc disease. In his view, Oelofse had a higher
than 50%
probability of undergoing secondary surgery, and showed early
radiological signs of disc space narrowing at the level
C3 and C4.
This surgery would entail adjacent level cervical fusion.
13.
With the probability of a second fusion in the future, M. would
"probably only work until the age of 55 years, in a sedentary
non-manual labour-type occupation." Oelofse deferred to the
occupational therapists and industrial psychologists "regarding
retirement and suitable employment options".
14.
On 17 January 2017, the occupational therapists appointed by the
parties compiled a joint minute, Lourens for M. and Kgomotso
Montwedi
("Montwedi") for the RAF. Montwedi did not testify. They
agreed on the following:
a. M. was best suited to sedentary to
light work and should not exceed light weight handling categories due
to his cervical spine
pathology;
b. He was unsuited to his pre and post
accident work and was restricted by the ability to work at an
elevated level, which would
make him unsuited to job demands;
c. M. will be an unequal competitor
amongst his peers, even with physical adaptations, as a result of
physical and cognitive limitations;
d. Even with treatment from a
multi-disciplinary team, his limitations would make him an
unattractive employee to prospective employers;
e. The therapists deferred to the
psychologists to comment on post accident loss of income, his future
career options and job prospects
taking his age, level of education
and prognosis into account.
15.
On about 23 January 2017, the industrial psychologists met, Kotze for
M. and Cilliers for the RAF. They agreed that:
a. M. was unsuited to his current or
similar occupations; should he forfeit his current employment for
reasons beyond his control,
he would probably face formidable odds in
securing employment in
his field of
expertise, given his physicaI restrictions;
b. M. retains the residual physical
capacity for sedentary work; theoretically, to re-align his career to
match this, he would have
to revert to his Grade 12 level of
edication to secure sedentary employment, Kotze commenting that,
noting his age, lack of experience
in general administrative work as
well as computer and administrative skills, it was unlikely that he
would secure employment of
a sedentary nature when competing with
younger and more recently qualified counterparts;
c. M.'s career prospects had been
truncated to a moderate to significant degree by the sequelae of his
injuries.
16.
In evidence, Lourens suggested that M. should re-align to work
involving computers. The movements associated with electrical
work,
in her view, were not compatible with his disability, particularly
work at an elevation. This would exacerbate his already
vulnerable
spine. She had not contacted M.'s employer as he had asked her not
to.
17.
Kotze expressed the view that M. should re-align to sedentary work as
a data capturer or receptionist, or other administrative
categories,
but may have difficulty finding such work with other younger
competitors. To carry on with electrical work, he would
need a
diploma or degree. His experience, in her expert view, counted for
nothing. Yet she conceded that it might be viable for
M. to supervise
other electrical technicians at Assmang or elsewhere. Kotze opined
that there might be many obstacles in the way
of M. running his own
business as an electrical technician, considering the small
population of Machadadorp amongst other factors.
Despite there being
no dangerous incident for the past seven years, Kotze still
maintained, without substantiation, and in the
face of a seven year
unblemished record of no incidents post accident, that it was "a
matter of time before something went
wrong”.
18.
Cilliers for the RAF testified that M. could continue in current
employment, his health and motivation permitting. Re-alignment
with
his electrical expertise might make him attractive to a potential
employer in the electrical industry, or he could work in
sales for a
building supplies enterprise, for example. This may be required if
his spine deteriorated.
19.
The industrial psychologists were of minimal help in their proposals
for realistic alternatives for M.'s re-alignment to sedentary
employment, a fortiori in the light of the patent fact that his only
expertise related to the functions of an electrical technician.
It is
hardly likely that he had any potential to perform the administrative
or sales functions suggested by them. On the inherent
probabilities,
is re-alignment would entail supervision of electricians and the
transfer of his undisputed skills. Cognisance should
also be taken of
his competence and ability to work hard, even under strained
circumstances. M. accepted that he had the potential
to generate
income until age 55 at a lesser salary, whatever form this
re-alignment took. To this end, provision was made for a
lesser
quantum for future income generation.
20.
Based on the totality of the evidence satisfied that M.'s
effectiveness in the workplace which is specifically dedicated to
electrical technician work in chrome smelting has been compromised by
his injury, and by the undisputed orthopaedic that his prospects
for
securing alternative work in a field in which he has specialized for
eighteen years have been deleteriously affected. Complications
would
probably emanate from the first fusion operation which he underwent
when the accident occurred.
21.
The conventional approach to calculating future loss of income is to
quantify the capitalized value had the claimant not been
injured, and
compare this with the capitalized value of income to be received now
that the claimant has been injured. The difference
between the two
values, after adjustments for general contingencies, equates to the
loss of future income suffered.
22.
The actuary for M., Johan Sauer ("Sauer") and the actuary
for the RAF, Gerard Jacobson ("Jacobson") agree
on the
value of pre morbid income to retirement age 55 as R10 598 256,00.
Post morbid income was calculated at R8 032 950,00 by
Jacobson and at
R7 827 386,00 by Sauer. Applying a contingency deduction of 7,5% on
income but for the accident, Sauer arrived
at R9 803 387,00.
23.
With a contingency deduction of 40% income having regard to the
accident, Sauer arrived at R4 696 432,00. Both such deductions
are
fair and were conceded as such by Counsel for the RAF.
24.
The deduction of 40% accommodates reduced mobility in the market
place now that M. has been injured, taken cumulatively with
the
agreements reached by the occupational therapists and the industrial
psychologists. See
Van Drimmelin v President
Versekeringsmaatskappy 1993 4 OOD E2-19T.
25.
Applying the RAF cap in terms of section 17(4A)(b) of the RAF Act,
the future loss of income amounts to R3 995 411,00, and constitutes
adequate compensation for future loss of income
26.
It is recorded that M.'s attorneys confirmed that they had not
concluded a contingency fee agreement with him.
27.
In the result, the following order is made:
a. The defendant is directed to pay to
the plaintiff's attorneys the sum of R450 000,00 for general damages;
b. The defendant is directed to pay to
the plaintiff's attorneys the sum of R3 995 411,00 for future
loss of income;
c. The defendant is directed to effect
the payments mentioned above to the credit of the plaintiff's
attorneys' account being: VZLR
Inc Trust account at Absa Bank Limited
van der Walt Street, account number […], branch code 323345
("the designated
account");
d. In the event of default on the
above payments, interest shall accrue thereon at the rate of 10,5%
per annum calculated from the
due date to date of final payment;
e. The defendant shall furnish the
plaintiff with an undertaking in terms of section 17(4)(a) of the RAF
Act, 56 of 1996, in respect
of 100% of the costs of future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or the rendering of
a service or supply of goods to the
plaintiff, and after the costs have been incurred and upon the
submission of proof thereof,
arising out of the injuries sustained in
the collision which occurred on 29 January 2010;
f. If the defendant fails to furnish
the undertaking to the plaintiff within 30 (thirty) days of the date
of this order, the defendant
shall be held liable for the payment of
the taxable party and party costs incurred in compelling the delivery
of the undertaking;
g. the defendant shall pay the
plaintiff's taxed or agreed party and party costs to the designated
account, for instructing and,
if applicable, correspondent attorneys,
which costs shall include but not be limited to:
i.
all reserved costs, if any;
ii.
the fees of senior Junior Counsel advocate D Marx for 30 and
31 January 2017;
iii.
the cost of obtaining all expert medico-legal and other
reports of an expert nature which were furnished to the defendant
and/or
its experts;
iv.
the reasonable taxable qualifying, preparation and reservation
fees of all experts, including consultation fees with legal teams,
if
any;
v.
the reasonable attendance fees for the plaintiff's
occupational therapist G Lourens and industriaI psychologist K Kotze
for 30 January
2017;
vi.
the reasonable travelling and accommodation costs, if any,
incurred in transporting the plaintiff to all medico-legal
appointments;
vii.
the reasonable cost for the interpreter's attendance at court
and at the medico-legal appointments for translation of information,
if any;
h. if costs are not agreed, the
plaintiff shaII be entitled to serve a notice of taxation on the
defendant's attorneys of record,
and shall allow the defendant 14
(fourteen) days within which to pay taxed costs, failing which,
interest shall accrue on the outstanding
amount at the rate of 10,5%
per annum calculated from the due date to date of final payment.
--------------------------------
T BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
2
March 2017
Appearances
Counsel
for the Plaintiff:
Advocate D Marx
Instructed
by:
VZLRI Inc Attorneys
Counsel
for the First to Third Respondents:
Advocate J Liebel
Instructed
by:
Tsebane Molaba Attorneys