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[2016] ZAGPPHC 27
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Dumbisa v Road Accident Fund (41365/2008) [2016] ZAGPPHC 27 (25 January 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
25/01/2016
CASE
NO: 41365/2008
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
YVONNE
KHOLEKA
DUMBISA PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
The plaintiff's claim against the defendant is for bodily injuries
sustained when a collision occurred between two motor vehicles.
At
the time of the said collision the plaintiff was a passenger in one
of the motor vehicles. It is alleged in the plaintiff's
particulars
of claim that the collision was caused solely by the negligent
driving of the insured driver, hence the claim against
the Road
Accident Fund.
[2]
When the parties appeared before me the merits part of the claim had
already been settled 100% in favour of the plaintiff. Before
me only
damages were in issue, then, only in respect of damages for loss of
earnings. The claim for general damages which was also
at issue was
postponed
sine die.
[3]
Two witnesses gave evidence on behalf of the plaintiff, namely, the
plaintiff personally and Dr W. Pretorius, the industrial
psychologist. The defendant led no evidence and closed its case
without calling any witness.
[4]
I was at the hearing provided with two Bundles of expert witnesses,
one for the plaintiff and the other for the defendant. The
Bundle of
plaintiff's expert witnesses consisted of the reports of the
orthopaedic surgeon, the occupational therapist, the industrial
psychologist and the actuary. The Bundle of defendant's expert
witnesses consisted of the reports of the orthopaedic surgeon and
the
occupational therapist. All the reports in the Bundles were not
disputed, however, none of the defendant's reports were referred
to
during the trial.
[5]
During cross examination and in argument before me, the defendant's
counsel placed the plaintiff's experts' reports at issue
on the basis
that they were dated.
[6]
At the commencement of the hearing the plaintiff's counsel introduced
an amendment to the value of the amounts of damages claimed
in the
particulars of claim based on the actuarial report. There being no
objection from the defendant's counsel I granted the
amendment.
THE
PLAINTIFF'S EVIDENCE
[7]
According to the plaintiff when giving evidence, she suffered
injuries on her right arm from the shoulder to the elbow, the
wrist,
the right side of the face as well as the head. The arm sustained a
fracture and it was put in a plaster cast. She has not
yet completely
healed as she still feels pains around the right shoulder and
sometimes experiences dizzy spells.
[8]
At the time of the collision she was still attending school doing
Grade 12. She has since that time never worked as she is still
at
school. She attended a six months auxiliary nursing course in 2006 at
Promise Health Care. Because of her injuries she struggled
to do her
practical work which was a requirement for her to pass the course.
[9]
In May 2015 she enrolled for a twelve months auxiliary nursing
course. She is still struggling with her practical work. The
practical work requires her to lift, move and push patients who are
sometimes heavy. At times she has to move heavy equipment.
She has to
rely on her colleagues to assist her to move heavy patients and
equipment. In order to progress in her career she still
has to do an
enrolled nursing course after she completes the twelve months course.
As proof that she struggles with her practical
work, the plaintiff
cited an incident where her supervisor received a written complaint
from one of the institutions where she
was doing practical work. The
complaint was in regard to having been found sitting down during the
time she should have been working
- although in the complaint it was
alleged that she was found asleep. The plaintiff's testimony is that
she had to sit down because
her arm was tired. She also testified
that she is not certain whether she will be able to complete and pass
her practical work.
THE
EVIDENCE OF THE INDUSTRIAL PSYCHOLOGIST (DR W L PRETORIUS)
[10]
The industrial psychologist's qualifications and experience were not
in dispute. His evidence is that he evaluated the plaintiff
on 5 July
2012. At the time of the assessment the plaintiff struggled to pick
up heavy objects with her right arm due to the problem
with her arm.
According to him, the plaintiff will not easily cope as a nurse
because of the injuries to her shoulder. The industrial
psychologist
confirmed that what the plaintiff testified to about her painful arm
was in line with the findings of the occupational
therapist. His
testimony is that the plaintiff will continue to struggle with any
other employment where she has to lift heavy
objects and will require
to be assisted or be accommodated. And, she will always have to
choose carefully the type of work she
will have to do.
[11]
The industrial psychologist referred to the two employment scenarios
postulated in the actuarial report. The first scenario
is based on
the plaintiff's employment as a call centre agent where she worked
for a short period of five to six months. The second
scenario, which
the industrial psychologist recommended for my consideration, is
postulated on the plaintiff's employment as a
nurse. She has always
wanted to be a nurse. If the collision had not happened she would
have worked as a nurse. The industrial
psychologist's findings are
that, because of her injuries, the plaintiff is compromised. She will
have difficulty finding work
as a nurse and will result in her
experiencing financial difficulties. If she does find employment as a
nurse she will not be productive
or her productivity will be
negatively impacted. That is, she will struggle with her practical
work and may take longer than others
to complete it. She will as a
result end up looking for sedentary work with a reduced income. She
will, thus, not be able to earn
at the same level as a nurse.
ARGUMENT
BY THE PLAINTIFF'S COUNSEL
[12]
The submission by the plaintiff's counsel is that the plaintiff's
evidence should be accepted by the court because it was not
contested
in any way by the defendant and no version of the defendant was put
to her. Her evidence as regards her career progression
is not in
dispute and the court should therefore accept her evidence that due
to her injuries she struggles with her practical
work and can thus
not easily pick up heavy objects.
[13]
Her injuries are common cause and the court should accept that the
injury to her arm is still hindering her even now. She has
already
received warnings at work because she does not cope with her
practical work. Indications are also that she may not pass
her
practical work. It will be difficult for her to find alternative
employment, so it is argued.
[14]
Counsel's contention is that the industrial psychologist's report
should be accepted as it is because there is no evidence
before court
to show what the lifespan of a medico-legal report should be. The
argument being that the assertion of the defendant's
counsel that the
report is dated has no foundation and is unsubstantiated.
[15]
Counsel argued for the court to accept scenario 2 in the actuarial
report. The court should consider that somewhere in her
life, the
plaintiff might have to change her career and opt for lighter/easier
work. The actuary has also postulated that she will
have to retire
five years earlier than if she was not injured. This, counsel
asserts, should be covered by higher contingencies.
His suggestion is
that contingencies of 10% pre-accident and 30% post-accident, which
allows for a 20% spread, should be considered
fair and reasonable.
[16]
As regards costs, the plaintiff's counsel informed me that the matter
was on the roll a day before the hearing that is, on
30 November
2015. The parties had already negotiated a settlement but the
plaintiff was asked to provide proof of registration
at the nursing
school. The matter could not be finalised then because the defendant
reneged on a settlement proposal at the last
hour. The submission is
that the matter was delayed by the defendant and as such the
defendant should be settled with the costs
of 30 November 2015 and
1st December 2015 on a party and party scale, such costs to include
the costs of the experts' reports,
the attendance of the industrial
psychologist in court and that of the orthopaedic surgeon. According
to counsel, the orthopaedic
surgeon had been in court on 30 November
2015 to give evidence but was not available on 1 December 2015.
ARGUMENT
BY THE DEFENDANT'S COUNSEL
[17]
The main contention by the defendant's counsel is that I should not
consider the plaintiff's experts' reports because they
were compiled
in 2012, which is three years ago, and are, therefore, out dated. The
argument is that within a period of three years
a lot could have
changed in respect of the injuries sustained by the plaintiff. The
plaintiff should have provided addenda to the
reports.
[18]
The other submission is that the plaintiff failed to put up a proper
case before me and her claim should, as such, be dismissed.
The
submission is based on the plaintiff's failure to provide documentary
proof that she is enrolled for the auxiliary nursing
and that there
were complaints made against her. The submission is also based on the
fact that at the time the industrial psychologist
assessed the
plaintiff, she did not provide him with documentary proof of her
qualification. The plaintiff's evidence that she
is working is,
according to the defendant's counsel, just an assumption since there
is no documentary proof before me that she
is indeed working and the
evidence should be rejected.
[19]
As regards the costs, the defendant's counsel submits that the
plaintiff caused the postponement of 30 November 2015 because
she
failed to file proof of her registration at the nursing school. The
onus,
according to the defendant's counsel, was on the
plaintiff. Counsel further denied that the orthopaedic surgeon was at
court on
30 November 2015 as alleged by the plaintiff's counsel. His
submission is that if the orthopaedic surgeon was present in court
same could have been brought to the court at roll call.
ANALYSIS
OF EVIDENCE
[20]
It is common cause that the plaintiff was injured in a motor vehicle
collision. It is not in dispute that she suffered the
injuries as
testified in her evidence in court. The defendant, however, denies
the
sequalae
of the injuries in that according to its counsel
the plaintiff should have been assessed again to determine the extent
of her injuries
since the reports relied upon by the plaintiff were
completed three years ago. Counsel's assertion is that a lot could
have happened
in a period of three years. The industrial psychologist
also conceded in evidence that if the occupational therapist had
reassessed
the plaintiff and found changes to her condition, such
changes could have affected his findings as contained in his report
that
he presented in court.
[21]
It is my view that in order for me to reject the medico-legal reports
of the plaintiff as dated, there must be evidence that
proves that
they are indeed out dated. The submission of the defendant's counsel
in this respect is therefore unsubstantiated.
To the contrary there
is evidence of Dr Pretorius, the industrial psychologist who
testified that in his opinion the reports are
not out dated. He
further gave evidence that in his opinion, when the occupational
therapist and the orthopaedic surgeon completed
their reports the
plaintiff's injuries had stabilised. tend to agree with him in this
regard. The evidence shows that the collision
occurred on 9 September
2004 and the assessment was done in 2012, that is, eight years after
the collision. The orthopaedic surgeon
describes the injury as
serious long-term impairment with permanent serious disfigurement.
[22]
Even if it can be said that the medico-legal reports are dated, there
is still the uncontested evidence of the plaintiff which
requires my
consideration. There being no other evidence, I have to accept the
plaintiff s evidence that she struggles with her
practical work. This
evidence is in line with the findings of the occupational therapist
that 'As a nurse she will require to lift
patients and push patient
on stretchers. Task requires good muscle strength as they are
physical in nature.'
[23]
The further submission by the defendant's counsel that there is no
documentary proof that the plaintiff is registered as a
nurse, or
that there were complaints against her during her practical work or
that the industrial psychologist had no proof of
her qualification,
is, in my opinion, ousted by the oral evidence of the plaintiff. This
evidence cannot be rejected out of hand.
At the very least it should
be countenanced by applying higher than normal contingencies.
[24]
It is, therefore, my view that the plaintiff has made out a strong
case for a claim for damages for loss of earnings. The plaintiff
is
compromised by the injuries and will find it difficult to cope in the
nursing career which she chose to follow. The experts
are also agreed
that for her to work for a longer period she must look for sedentary
work which is going to pay her less than she
will earn as a nurse.
Otherwise if she persists in following nursing as a career she will
have to retire at the age of 55 years.
CALCULATIONS:
[25]
As is trite, contingencies are within the discretion of the court. As
already stated earlier on in this judgment, higher than
normal
contingencies, should find application in the circumstances of this
case. I am therefore of the view that the contingencies
suggested by
the plaintiff s counsel, 10% pre-morbid and 30% post morbid,
should be applied.
[26]
Based on the following calculations, I consider the following amount
as a fair and reasonable amount for the loss of earnings
suffered by
the plaintiff:
Item
of loss
Future Income
Contingency deduction
Total Income
Pre-morbid Income
3 044 364 - 00
10%
2 739 927 - 60
Post-Morbid Income
2 836 046 - 00
30%
1 985 232 - 20
Total Loss
754 695 - 40
COSTS
[27]
Costs are also in the discretion of the court and normally, costs
follow the successful party. Costs in this matter should
be granted
to the plaintiff as the successful party. The costs should also be
inclusive of the expenses incurred in the drafting
of the experts'
reports and for the attendance in court of the industrial
psychologist and the occupational therapist.
ORDER
[28]
In the premises I make the following order:
[1] The plaintiff's claim for loss of
earnings succeeds in the amount of R754 695, 40.
[2] The defendant is ordered to pay
the plaintiff's costs of suit which costs shall include the costs of
–
a.
Dr S. Sombili the orthopaedic surgeon (medico-legal report);
b.
Dineo Thupae the occupational therapist (medico-legal report and
attendance in court on 30 November 2015);
c.
Dr W Pretorius the industrial psychologist (medico-legal report and
attendance in court); and
d.
George Schwalb the actuary (actuarial report).
[3] The costs of suit shall include
the wasted costs occasioned by the postponement of 30 November 2015.
[4] The claim for general damages is
postponed
sine die.
_________________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES
HEARD
ON THE : 01 December 2015
DATE
OF JUDGMENT: 25 January 2016
PLAINTIFF'S
COUNSEL : Adv T. C. Maphelela
PLAINTIFF'S
ATTORNEY : A. O. Ndala Incorporated
DEFENDANT'S
COUNSEL : Adv H. Mhlongo
DEFENDANT'S
ATTORNEY: Gildenhuys Lessing Malatji Inc