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[2017] ZAGPPHC 79
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M v Road Accident Fund (29906/2014) [2017] ZAGPPHC 79 (7 March 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)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 6 February 2017
Date of judgment: 7 March 2017
In
the matter
between:
Case number 29906/2014
Not
reportable
Not
of interest to other judges
Revised.
M
P
M
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER,
AJ:
1.
The material issue for adjudication in this personaI injury case is
the claim by the plaintiff, M. P. M. ("M."), for
past and
future loss of income and general damages.
2.
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 14 June 2011, in which M. was
injured as a passenger.
3.
The parties agreed to the introduction into evidence of the expert
reports exchanged between them, and the experts' joint minutes,
and
dispensed with the need to call vive voce evidence.
4.
The RAF agreed to tender an undertaking for 100% of future medical
expenses under section 17(4)(a) of the Road Accident Fund
Act, 56 of
1996 ("the RAF Act"), and to pay M.'s legal costs. He did
not qualify for an assessment on whole person impairment.
5
He suffered segmental proximal fractures to the right femur. He was
hospitalized at Bongani Hospital in Welkom. A week afterwards,
an
open reduction internal fixation was performed on the femur. On
transfer to Westvaal Hospital, he underwent physiotherapy. His
treatment was completed in about July 2012.
6.
In February 2012, after a delayed union became apparent, M. developed
sepsis and osteomyelitis and a debridement was performed.
He
continues to experience pain and compromised mobility in his right
hip and leg, and walks with a limp. He is unable to walk
for any
extended length of time. His right thigh muscles have started to
atrophy. Future treatment is contemplated in the removal
of the
internal fixation of the right femur and a bone graft, with an
indication for the use of antibiotics, analgesics and physiotherapy,
with a 10% chance of a hip replacement.
7.
M. was born on [...] April 1964, and was 52 at the date of trial. He
was an underground rock drill operator employed at AngloGold
Ashanti
Limited, having commenced employment on 2 November 1993. He spent
most of his time in the mine stops. He continues to reside
in a
hostel in Orkney and is married with two children.
8.
He was off from work until 2 August 2012. Although he returned to the
same position, he experiences pain in his right Ieg and
negotiates
confined spaces underground with difficulty.
9.
Post accident, his supervisors have allowed him to drill in the
galley section of the mine where he can work in an upright position.
He intends to retire at the official retirement age of 60.
10.
On 1 August 2016, the orthopaedic surgeons appointed by the parties
compiled a joint minute, Dr VM Close for the F and Dr PR
Engelbrecht
for M.. They did not agree on any probability of a hip replacement
operation in the future. They agreed on the following:
a. Taking into account that M.
remained functionally impaired, both doctors agreed that he suffered
from a 15% loss of work capacity,
and that his injuries qualified as
serious via the standard narrative test;
b. Osteitis might flare up many years
post-accident, and future surgical and conservative treatment was
indicated;
c. Notwithstanding loss of work
capacity, M. should be able to work until normal retirement age.
11.
Per the minutes compiled on 7 September 2016 between occupational
therapists Ms A Greeff for M. and Ms Annandale for the RAF,
they
agreed to the following on work ability:
a. His work history revealed primary
focus on unskilled work requiring heavy physical exertion; he now
suffered from pain and discomfort
in his work as a drill rig operator
post accident;
b. They agreed that he was compromised
in the use of his right leg and this affected his capacity to perform
moderate and heavy
physical work such as underground mining and drill
rig operation;
c. He was better suited for work tasks
that fell in the sedentary light ranges and allowed for pacing
cycles;
d. His employer had made reasonable
accident; should he lose this position, would no longer be suited to
work environment; the same
principle would became necessary;
adaptations for him post would be vulnerable and an underground
mining apply if a hip replacement
became necessary;
e. They deferred to the industrial
psychologists concerning quantification of loss of earnings.
12.
On about 1 August 2016, the industrial psychologists met, namely WJ
Wessels for M. and Dr MC Kgosana for the RAF. They agreed
that:
a. Noting M.'s limited scholastic
education, that is, Grade 9, and his advanced age at the date of the
accident, being 47, he had
reached the pinnacle of his career at the
time;
b. M. should be compensated for his
past loss of income with deference to the actuarial calculations;
c. If his physical pain impacted on
his productivity, his stope team bonus would be affected, resulting
in a loss of earnings; should
the future interventions prove
unsuccessfuI, or his osteitis flare up, he may exhaust his seek leave
entitlement, resulting in
unpaid leave;
d. No early retirement age was
indicated;
e. He was not in possession of a
saleable skill outside of the mining environment, and would probably
have to rely on informal activities
13.
Based on the totality of the evidence I am satisfied that M.'s
effectiveness in the workplace has been directly compromised
by his
injury. His prospects for securing alternative work in underground
mining are problematic. This given the complicated fracture
of his
right femur and his resultant immobility in an occupation with
demands on physical bodily movement.
14.
The conventional approach to calculating future loss of income is to
quantify the capitalized value of income had the claimant
not been
injured, and compare this with the capitalized value of income which
will be received in the future now that the claimant
has been
injured. The difference between the two values, after adjustments for
general contingencies, equates to the loss of future
come suffered.
The same formula applies to past loss of income.
15.
The actuary for M. GA Whittaker ("Whittaker") and the
actuary for the RAF, Robert Oketch ("Oketch"), arrived
at
different calculations for the income generated by M..
16.
This is attributable in the main to Whittaker taking cognizance of
the annual salary increments under wage agreements in the
mining
industry, increases being commensurate with headline inflation,
additional benefits at 40.80% of basic salary and employer
pens on
fund contributions. I am satisfied that the higher figure arrived at
by Whittaker for past loss, namely R645 588,00 (value
of income
uninjured), is justifiable. The same rationale applies to the value
of future loss of R953 674,00.
17.
I disagree with Oketch that the loss can probably be mitigated by the
assumption that the claimant will operate a spaza shop
for at least
five years post retirement at 60. This was not established on the
probabilities.
18.
Whittaker, in his general deductions, has taken note of loss of
income due to illness, savings in regard to travel to and from
work,
and the risk of future retrenchment and resultant unemployment.
19.
Whittaker applied a 5% deduction on past income uninjured, and a 5%
deduction on past income as injured. This is in line with
M.'s past
work history for some four years, after returning to work post
accident. The higher deduction of 10% on future income
uninjured is
normal and in line with realities, taking note of the fact that M. is
more mature and the job would be more physically
demanding on him, as
also increased job vulnerability with prevalent retrenchments in the
mining industry.
20
The deduction of 40% on income injured accommodates vulnerability in
the market place now that M. has suffered an injury which
directly
affects his physical productivity and takes account of his 15% loss
of work capacity. He returned to work, but mainly
in the galley, and
with decreased mobility, and the resultant sequelae of pain and
fatigue. See
Van Drimmelin v President Versekeringsmaatskappy
1993 4 OOD E2-19T.
21.
The losses fall below the loss limit in the RAF cap in terms of
section 17(4A)(b) of the RAF Act. Past loss of income mounts
to R98
879,00 and future loss of income amounts to R363 335,00, bringing the
total to R462 214,00 in the aggregate. This constitutes
adequate
compensation for past and future loss of income.
22.
Regarding general damages, this is squarely a matter of judicial
discretion. It is an inexact science which is contingent on
an
overall assessment of the particular facts. There is no hard and fast
rule of general application which compels the Court to
consider past
awards since no two cases can ever be the same. See
RAF v
Marunga 2003 (5) 165 SCA 169G-H.
23.
I was referred by the RAF's Counsel to a miscellany of case
authorities in which general damages were awarded for similar
injuries,
namely femur fractures. While comparative analysis is often
used by Courts as a useful guide, our Courts remain mindful of the
fact that every case comes with a different set of facts. M. claimed
payment of R550 000,00 in general damages. Taking all of the
above
facts into consideration, an award of R350 000,00 is adequate and
commensurate with the nature of his injury, his pain and
suffering,
his inability to work for one year, his fortitude in returning to
work despite his physical limitations, having to endure
them while
working, the consequent fatigue, the injury's impact on his loss of
income, loss of amenities of Iife, and the day to
day inconveniences
affected by compromised mobility. Despite the fact that he is of a
mature age, 52 at present, his probable discomfiture
in retirement is
another factor which exacerbates his position.
24.
It is recorded that M. attorneys confirmed that they had concluded a
contingency fee agreement with him
25.
In the result, the following order is made:
a.
The defendant is directed to pay to the plaintiff's attorneys
the sum of R350 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 past and 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:
Adams and Adams Trust Account, Nedbank Pretoria account number
1604 318 902 branch code 198765 reference NK/SKS/P1277VZLR Inc Trust
account at Absa Bank Limited van der Walt Street, account number […],
branch code 323345 ("the designated account");
d.
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 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 14 June 2011;
e.
the defendant shall pay the plaintiff's taxed or
agreed party and party costs to the designated account, on the High
Court scale,
which costs shall include but not be Iimited to the
following:
i.
the fees of senior Junior Counsel on the High Court scale
inclusive of the reasonable day fee for 6 February 2017, and costs of
preparation of heads of argument
ii.
the reasonable taxable costs of obtaining all expert, medico
legal reports, including addendum reports and joint minutes, and
RAF
4 serious injury assessment reports from the plaintiff's experts
which were furnished to the defendant;
iii.
the reasonable taxable preparation, qualification, travelling
and reservation fees, if any, of the following experts of whom notice
has been given, being:
1.
Dr P Engelbrecht, orthopaedic surgeon;
2.
Ms A Greeff, occupational therapist;
3.
Ms W Wessels, industrial psychologist;
4.
Mr Greg Whittaker, actuary;
iv.
the reasonable taxable transportation costs, including toll
and e-toll charges, incurred by or on behalf of the plaintiff in
attending
all medico-legal consultations with the experts,
consultations with the legal representatives and the court
f.
the following provisions will apply with regard to the
determination of the aforementioned taxed or agreed costs:
i.
the plaintiff shall serve a notice of taxation on the
defendant's attorneys of record
ii.
the plaintiff shall afford the defendant 79seven)
court days within which to make payment of the taxed costs from the
date of taxation
or settlement thereof
iii.
should payment not be made to the designated account
timeously, the defendant shall be liable for interest on the taxed or
agreed
amount at the rate of 9% per annum from the date of the
stamped allocator to date of final payment.
g.
It is noted that a contingency fee agreement is applicable to
this case.
------------------------------------
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
2
March 2017
Appearances
Counsel
for the Plaintiff:
Advocate R Ferguson
Instructed
by:
Adams and Adams Attorneys
Counsel
for the First to Third Respondents: Advocate
B Sibiya
Instructed
by:
Tsebane Molabalnc Attorneys