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[2017] ZAGPPHC 369
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J obo S v Road Accident Fund (76324/2014) [2017] ZAGPPHC 369 (11 April 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
N0:76324/2014
DATE:
11/4/2017
In
the matter between:
D.
D. J. obo L. L.
S. PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
RANCHODJ:
[1]
The plaintiff sues the defendant in her personal capacity and also in
her representative capacity as the mother and natural
guardian of Mr
L. L. S. for damages as a result of injuries sustained by Mr S. in a
motor vehicle accident on 6 February 2010 in
Parow in the Cape. Mr S.
was a passenger in the insured vehicle, a Volkswagen Cambi bearing
registration letters and numbers [C...]
which was driven at the time
by one H.L Hector who lost control of the vehicle after one or more
of its tyres became deflated.
It was alleged that the insured
driver's negligence caused the accident.
[2]
I will not deal with the issue of liability any further as I was
informed at the commencement of the trial that the defendant
conceded
100% liability and only quantum was in dispute, more specifically the
seriousness of the injuries sustained by Mr S..
[3]
The trial then proceeded on that basis. None of the defendant's
experts were called to testify. Only the relevant plaintiff's
experts, namely, the occupational therapist, a clinical psychologist,
an industrial psychologist and an actuary testified.
[4]
Joint minutes prepared by the plaintiff's and defendant's
occupational therapists and the industrial psychologists respectively
were handed up.
[5]
The issue for determination as far as quantum is concerned is
the severity of the injuries and their impact on quantum.
Plaintiffs
expert reports
[6]
The defendant conceded the expertise of all the plaintiffs expert
witnesses and did not dispute the medico-legal report
of plaintiff's
orthopaedic expert, Dr J Sagar.
[7]
Dr Sagar assessed S. on 17 July 2012 and compiled a medico
legal report dated 22 August 2012. S.'s injuries are noted
as follows
in the report:
7.1
Abrasions and lacerations of the scalp.
7.2
Severe left lower leg injury, resulting in traumatic amputation.
7.3
Grade 3B compound fracture right tibia and fibula. There was an
associated severe
de-gloving injury.
7.4
Soft tissue injuries to the upper limbs.
[8]
Dr Sagor summarises the injuries sustained by S. and their sequelae
as follows:
'In
summary the claimant suffered from polytrauma.
Soft tissue injuries were
suffered to his upper limbs, face and scalp. He needs to be
assessed by a plastic surgeon with regard
to the appearance of the
scars and possible improvement, which can be offered. Provision for
this should be made. A significant
injury was suffered to the left
lower limb resulting in an above knee amputation. The amputation
stump has healed and is healthy.
He needs to be assessed by a
prosthetist with regard to future needs. Provision for this needs to
be made. A severe compound fracture
was suffered to the right tibia
and fibula with associated soft tissue loss. The soft
tissues have healed with significant
cosmetic deformity. There is non
/ mal union of the distal half of the tibia on the right side, which
may require corrective surgery
in future. Provision for this should
be made. As mentioned in view of the injuries sustained in the past,
corrective surgery could
be risky in all avenues. Before embarking on
such a procedure, he should be investigated and monitored. There is
probably a 50%
chance that the claimant would require and accept
corrective surgical treatment. The claimant has permanently lost
numerous amenities
of life following the accident event. He is
functionally limited with regard to mobility and agility. He
may require the
use of crutches indefinitely and a wheel chair will
also be required in future. Provision of his needs should be taken
into account
when considering compensation. An occupational therapist
should assess him. The claimant has been affected psychologically by
the
injuries suffered. A psychological/psychiatric assessment should
be offered and treatment provided, if needed. With regard to
employment,
the claimant permanently cannot do any activity other
than sedentary work. He is compromised with regard to finding
employment
in the open labour market as a result of his limited
mobility and difficulty to commute to and from work. Should he obtain
reasonable/appropriate
employment, he can work until retirement age.
He should be assessed by an occupational therapist with regard to
future employment
options he could follow. Longevity will not be
affected by the injuries suffered.'
[9]
Ms M Le Roux is an occupational therapist. She testified at the trial
and referred to the joint minute prepared by her and the
defendant's
occupational therapist, Ms G. Mathala. They agreed that due to his
injuries:
•
Mr S.'s work
functioning has been significantly compromised.
•
He
is permanently restricted to sedentary to semi-sedentary type work
where prolonged standing and walking, balance, mobility and
agility
is not required of him and where lifting demands are restricted to
occasional handling of sedentary to light weights (even
with a
suitable prosthetic leg).
•
Should
the right leg also be amputated (the
possibility has been
raised by Dr Sagor) he
would be restricted to sedentary work only.
•
Any
position be obtains in the future, provisionally should be wheelchair
accessible and he would require an empathetic work environment.
•
His
future job options have been severely restricted.
•
He is
no longer competitive in the open labour market.
•
He
is compromised with regards to his ability to perform manual or
unskilled work.
•
His
ability to procure and sustain employment in the open labour market
has been significantly compromised.
Accommodation
They agreed that it is
essential that Mr S.'s accommodation should be wheelchair accessible
in order to improve quality of life
and should also provide for-
•
Electricity.
•
Hot running
water inside the house.
•
Paved/cemented
perimeter.
•
A
sheltered/covered area for vehicle transfers and paved access to an
entrance.
•
A covered entrance
to the house.
•
Wide enough
passages, doors, turning spaces.
•
Suitable
accessible kitchen to allow wheelchair manoeuvrability.
•
Wheelchair
accessible bathroom with ride in shower, hand basin and toilet.
•
Increased
rates (e.g. electricity) due to the larger house if applicable.
•
Private
bedroom for Mr S.; large enough to allow a double bed and wheelchair
manoeuvrability.
•
Adequate security
devices/measures.
•
Storage space for
wheelchairs etc.
At some point in time
placement in an old age facility may become necessary, especially
should his right leg also be amputated.
[10]
A claim for domestic assistance and garden and home maintenance was
abandoned during the course of the trial.
[11]
The only other joint minute was that of plaintiff's and defendant's
industrial psychologists. They noted that Mr S. would probably
have
attained a Grade 12, thereafter a Bachelor's degree and thereafter
have entered the open labour market earning an income in
line with
Paterson Grade B4/B5/C1. He could have thereafter progressed to an
income in line with Paterson Grade 01/02. Mr S. would
likely have
worked until normal retirement age of 65.
[12]
The occupational therapists agreed that post-accident Mr S. would
probably attain Patterson B1/B2 (median) progressing to C2
(median).
[13]
Ms Kotze (plaintiff's industrial psychologist) was of the view that a
higher post-accident contingency deduction should be
applied due to
Mr S.'s lack of competiveness and 'vulnerability in sedentary to
semi sedentary work roles'. Both Ms Kotze;
and Ms C Du Toit and
Andri van Der Westhuizen for the defendant agreed that total packages
post-morbidly will not be guaranteed
and will be dependent on
workplace terms and conditions as well as opportunities. Ms Du Toit
and Mr van Der Westhuizen opined that
'limited mobility requirements
for treatment, reduced opportunities for promotion and emotional
vulnerability are also acknowledged;
an applicable post-accident
contingency is recommended.'
[14]
There is no doubt that Mr S. has suffered severe injuries in the
accident. At the end of the day the only real issue in dispute
was
the contingencies to be applied.
[15]
The evidence of the several expert witnesses who testified for the
plaintiff remained largely, if at all, uncontested.
[16]
I was informed that the parties agreed on past hospital expenses of
R263 144 and general damages of R850 000. An undertaking
for future
medical expenses is to be provided by the defendant in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
[17]
I have considered the various medico-legal reports and the two joint
minutes. I am of the view that as far as loss of income
is concerned
the basis for the calculations made by the plaintiff's actuary are
sound and the only issue is the question of contingencies
to be
applied which is within the prerogative of the court. Having
carefully considered all the relevant factors I am of the view
that a
contingency deduction for future loss of income (there is no past
loss) pre-morbid should be 25% and for post-morbid 40%.
The result
would be as follows:
Uninjured income (future)
R11 605 200
Less 25%
contingencies
R 2 901 300______
R8 703 900
Injured income
(future)
R5 773 300
Less 40%
contingencies
R2 309 320
R3 463 980
NET Loss of future
income
R5 239 920
Add
Past hospital
expenses
R263144
General
damages
R850 000
Total
R6 353 064
(Six
million three hundred and fifty three thousand and sixty four Rands.)
[18]
In the result the draft order which was handed up - save for
the calculation of the capital amount - is marked
'X' and made
an order of court. It provides for the plaintiff's
costs of the action as well.
_________________________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
:
Adv P.C Eia
Instructed
by
: Adendorff Attorneys
Counsel
on behalf of Defendant
: Adv Mafofo
Instructed
by
: Mayat Nurick Langa Inc.
Date
heard
: 25 October 2016
Date
delivered
: 11 April 2017