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[2016] ZAGPPHC 718
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Bates v Road Accident Fund (75878/2013) [2016] ZAGPPHC 718 (1 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
D
I
VISION,
PRETORIA)
Case
No: 75878/2013
Date:
1/42016
In
the matter
between:
L
A
BATES
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
D
S FOURIE, J:
[1]
This is a claim for payment of damages for personal injuries suffered
by the plaintiff in a motor vehicle accident which occurred
on 8 July
2012. The merits have been conceded and itis common cause between the
parties that the defendant is liable to pay 100%
of the plaintiffs
proven damages.
[2]
Certain heads of damages have been agreed upon by the parties. Past
hospital and medical expenses have been agreed upon in the
amount of
R14 491.14. For estimated future hospital and medical expenses the
defendant will furnish the plaintiff with an undertaking
in terms of
section 17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
. For
general damages the amount agreed upon is R1 000 000.00 (one million
Rand).
[3]
The only remaining heads of damages which are in dispute between the
parties relate to the claim for past loss of earnings and
estimated
future loss of earnings and/or earning capacity. The percentage
contingency deduction to be applied to the
"but for"
and
"having regard to"
scenario is also in
dispute.
MATTERS
WHICH ARE COMMON
CAUSE:
[4]
The following facts are common cause between the parties:
•
the
plaintiff's date of birth, i.e. [...] 1981;
•
the
plaintiff had no neurological disorders prior to the collision;
•
prior to the
collision the plaintiff's health was generally good;
•
the bodily
injuries sustained by the plaintiff as well as their nature and
extent which are:
o
a chest injury with fractured ribs;
o
pelvis fractures;
o
a torn diaphragm and liver tear;
o
a left hip injury;
o
a head injury with concussion and left-sided stroke;
o
a right index finger fracture;
o
generalised cuts and grazes;
o
injuries to both knees;
o
a neck injury;
o
a low back injury;
o
a fractured nose;
o
soft tissue injuries to the left
shoulder with
possible brachial plexus injury; and
o
a haematoma-seroma right thigh requiring aspiration.
•
as a result
of the injuries sustained, the plaintiff has suffered a significant
loss of productivity;
•
the
plaintiff is likely to have difficulty obtaining employment in the
open labour market, were she to lose her job;
•
the problems
that the plaintiff experiences are likely to worsen and she will
probably become unfit for work by approximately 55
years of age;
•
in terms of
the plaintiffs future occupational prospects, these could be
compromised due to a combination of factors, including
ongoing
symptoms associated with orthopaedic injuries and residual left-sided
hemiparesis;
•
the
plaintiff sustained a significant brain injury consisting of a
probable concussive brain injury complicated by focal injuries
to the
brain involving the right hemisphere;
•
the
plaintiff reports a mood disorder secondary to the tragic
consequences of the collision, namely the death of her fiance;
•
the
plaintiffs industrial psychologist, Mr Mallison applied a battery of
neuropsychological tests and noted the plaintiff to have
mild
difficulty with auditory and visual attention, psycho motor
slowing on clerical tasks and a high level of impulsivity;
•
the
neurocognitive, emotional and communication difficulties experienced
by the plaintiff would have a negative impact on her work
performance, efficiencies and productivity;
•
the
plaintiff is a vulnerable employee and her chances of securing
suitable work are compromised;
•
she will
always need a sympathetic employer that allows for reasonable
accommodations in the workplace;
•
the
plaintiffs employment career path both prior to and subsequent to the
collision;
•
the
actuarial assumptions and calculations of the actuary (his
calculations are correct based on what information was given); and
•
the
information supplied by the plaintiffs previous employers to Ms
Donaldson is correctly reflected in her report.
[5]
The parties have also agreed to admit as evidence the medico- legal
reports of the following expert witnesses:
•
Dr G
Versfeld (orthopaedic surgeon);
•
Mr L Grinker
(psychiatrist); and
•
Dr A Botha
(specialist physician).
[6]
The parties have also agreed to put before me as evidence the
following joint minutes:
•
Dr G Marus
and Dr A Maharaj (neurosurgeons);
•
Professor V
Fritz and Dr M Pillay (neurologists);
•
Mr B
Mallison and Dr A G Pistorius (neuropsychologists);
•
Dr P Peirce
and Dr J J Nhlapo (ophthalmologists);
•
Ms I
Hattingh and Ms V Sewersad (speech pathologists);
•
Ms S Murcott
and Ms D van Wyk (occupational therapists).
[7]
Ms Donaldson gave evidence for the plaintiff and the plaintiff also
testified. The defendant closed its case without calling
any
witnesses.
DONALDSON
[8]
Ms Donaldson is an industrial and counselling psychologist whose
expertise is not in dispute. She prepared a medico-legal assessment
of employability dated 29 June 2015 with regard to the plaintiff. She
confirmed the contents of her report. The aim was to evaluate
the
plaintiff's work potential both prior to and having regard to the
consequences of the accident. According to her report the
plaintiff's
employment history can be summarised as follows: In May 2006 she took
up employment with Vector Logistics in Bedfordview
where she worked
her way up from the level of call centre operator to senior call
centre operator and also acted as a customer
care consultant on
occasion. She worked until the end of February 2010 where she earned
R6 000.00 per month. She then moved to
Linvar where she was based in
Linbro Park and began as a receptionist in May 2010. During the time
she was employed by Linvar,
she received three promotions, first to
the level of customer care agent and then to the position of
expediter in which position
she was still working at the time the
accident in question had occurred. After the accident she was
appointed to the level of senior
expeditor but, given her injuries
and their
sequelae
this promotion was cancelled after
her first week as a senior expeditor. According to the plaintiff she
also had prospects to eventually
move to the level of warehouse
manager.
[9]
When the plaintiff was appointed to the position of expeditor she
received a letter of appointment indicating that with effect
from 1
April 2011 she would be employed at a total cost to company of R1O
273. 11. Her particular job description as an expeditor,
salary
structure as well as contributions, are also set out in annexures to
her letter of appointment.
[10]
According to the witness the plaintiffs employment after the accident
can be summarised as follows: she could only return to
work at the
beginning of October 2012. On her return to work the plaintiff was
office bound and could no longer handle the mobility
demands of an
expeditor. Notwithstanding her physical condition, she was promoted
to the position of senior expeditor in February
2013 where she had to
do her own work as well as to supervise a subordinate. Shortly
thereafter the promotion was withdrawn as
it had been reported to the
managing director that the plaintiff was forgetting things and was
not doing her work properly. As
a result of this, the plaintiff was
told that she was to be demoted to her original position of
receptionist. This was not acceptable
to her whereafter she resigned
with effect from the end of October 2013.
[11]
In July 2013 the plaintiff was offered the position of branch manager
of the new branch on the South Coast of Extreme Industrial
Suppliers
& Hygiene with effect from December 2013. Her net salary would be
R10 000.00 per month with a three month probationary
period. The
witness pointed out in her report that according to the plaintiff she
ordered stock, received and delivered it and
had to canvas for new
customers. The witness observed that, although she was the branch
manager, this appears to be something of
a misnomer since she was the
only employee. However, by letter dated 26 May 2015 the plaintiff had
been retrenched
"due to retrenchment
and
the
closing
of the Durban
Branch".
[12]
The witness also pointed out that the plaintiff was offered an
alternative position as Durban sales representative commencing
on 1
June 2015 with the first three months thereof being probationary.
According to the witness (as stated in her report) the plaintiff
did
not accept this alternative position and was with effect from the end
of June 2015 without employment.
[13]
Having regard to the injuries sustained by the plaintiff and her test
results, the witness concluded, in summary, that it seems
reasonable
to accept that the plaintiff is demonstrating neurological,
orthopaedic, neuropsychiatric and cognitive communication
functional
difficulties which are likely to have a significantly negative impact
on her ability to apply her residual intellectual
potential in a
sustained, consistent and efficient manner. The witness further
observed that, given the cumulative effect of all
the deficits which
had been measured, it is improbable that the plaintiff would ever be
able to succeed in any further training
of significance in order to
enhance her marketability.
[14]
With regard to the plaintiffs employment prospects but for the
accident, the witness was of the view that the plaintiff
would
probably have continued to work within the logistics chain
environment, working her way up from the level of expeditor to
that
of senior expeditor which is a position with a job complexity and
levels of accountability graded at a Paterson Job Grade
83 level.
According to the witness the further indications are that she would
probably have continued to progress to a position
as a logistics
coordinator, graded at a Paterson Job Grade C1 level. She could also
have been expected to continue to reach her
earnings ceiling at the
upper quartile levels of remuneration characteristic of the annual
guaranteed package of a logistics coordinator
position by the time
she was 45 years of age, with only inflationary increases being
relevant thereafter. She also pointed out
that, in her view, the
plaintiff would have continued working until the normal retirement
age of 65 years.
[15]
With regard to the plaintiff s employment prospects, having regard to
her injuries and the
sequelae
thereof, the witness was
of the view that it would not be unreasonable to accept that she has
been rendered unemployable on the
open labour market and that she
will probably be dependent on the offices of a sympathetic and
accommodating employer in order
to maintain employment. In this
regard the results of the current assessment suggested that she would
probably be best deployed
in one of her previous positions (i.e. that
of a receptionist), always providing that the work involved allows
her to work with
little work and/or time pressure and under
circumstances where her limitations will be understood and tolerated.
Having regard
to the opinion of Dr Versfeld as expressed in his
report dated 5 October 2013, the witness was of the view that the
plaintiff would
be unable to continue to work beyond the age of about
55 years. In the event that the plaintiff would be able to secure
such a
position, she would be entitled to a salary equal to a
Paterson Job Grade B1.
[16]
The actuarial calculation prepared by Mr Whittaker dated 7 July 2015
was then put to the witness. She confirmed that the contents
thereof
(pre-accident earnings at p 2 and post-accident earnings at p 3 of
the report) accords substantially with her views. She
also pointed
out that, according to her view, the assumptions with regard the
post-accident earning potential actually favours
the defendant.
THE
PLAINTIFF:
[17]
When the plaintiff approached the witness stand she was walking
slowly and was also limping. She testified that she still has
pain in
her left shoulder where her movements are restricted. She still
experiences pain in her left leg and this negatively affects
her
ability to drive a motor vehicle. After the accident she returned
during October 2012 to where she was previously employed.
At that
stage she was still recovering from her injuries and was only
supposed to return during January 2013. Since February
2013 she
realised that she was unable to perform her duties as she did prior
to the accident. She was unable to remember what she
had to do and
her relationship with other staff members deteriorated. She was
desirous to work until the age of 65 had the accident
not occurred.
Presently she is unemployed.
DISCUSSION:
[18]
Before considering the issues, it is not only appropriate, but also
necessary to say something about the credibility and reliability
of
the witnesses. I have had the opportunity to observe the demeanour of
the witnesses and to listen carefully to their evidence.
I have no
reason to conclude that any one of them was in any way biased or
untruthful. There is, in my view, no reason to make
any finding
against them with regard to their reliability or credibility.
[19]
It is trite that a plaintiff bears the burden
("onus
probandi"
or the overall onus) to prove the quantum
of his or her claim. However, if a plaintiff has, in an attempt to do
so, established
a
prima
facie
case an
evidentiary burden will come into existence in terms whereof the
defendant will have the duty to adduce evidence in rebuttal.
If the
defendant fails to do so, it runs the risk that the evidence for the
plaintiff may become conclusive. When considering the
issues I have
to take into account not only the common cause facts agreed upon by
the parties, but also the fact that no witness
was called by the
defendant. In my view it is clear, from a conspectus of the
evidence and the facts which are common cause
between the parties
(including the medico-legal reports and joint minutes referred to
above) that the plaintiff has established
a
prima facie
case
with regard to the pre- and post-career path scenarios as well as the
figures which the actuary had to take into account in
calculating the
plaintiff's loss of earnings. Also taking into account the fact that
the defendant has failed to adduce any evidence
in rebuttal, I have
to conclude that the
prima
facie
case
established by the plaintiff has become conclusive.
[20]
The actuarial calculation (scenario 1 which is the more
conservative one of the two) performed by Mr Whittaker
(7 July 2015)
indicates the plaintiff's past loss of earnings (before taking into
account any contingencies) to be as follows:
•
Value of
income uninjured R
468 738.00
•
Value of
income injured R
405 237.00
•
Past
loss R
63 501.00
[21]
The plaintiff's future loss of earnings (before taking into account
any
contingencies) have been calculated to be as follows:
•
Value of
income uninjured R5
200 951.00
•
Value of
income injured R1
535 186.00
•
Future
loss R3
665 765.00
[22]
When performing these calculations the actuary took into account,
inter alia,
the following: The plaintiff's date of birth; the
date of accident; the plaintiff's pre-accident earnings as an
expeditor by Linvar;
the plaintiff's post accident earnings as
well as the period(s) when the plaintiff had no income; the Paterson
job grade levels
as proposed by Ms Donaldson; the career path of the
plaintiff, both having regard to the accident and had the accident
not occurred
as discussed by Ms Donaldson; the retirement age of the
plaintiff having regard to the accident and had the accident not
occurred.
The total loss, before taking into account any
contingencies, has therefore been calculated to be R3 729 266.00
(past loss of R63
510.00 plus future loss of R3 665 765.00). Having
regard to the evidence and the common cause facts, I have no reason
not to accept
this figure.
[23]
The final issue to be decided is what percentage contingency
deduction should be applied to both the plaintiff's past
loss and
future loss of earnings. Contingencies are the hazards of life that
normally beset the lives and circumstances of ordinary
people
(AA
Mutual
Ins
Co
v
Van Jaarsveld
reported in Corbett & Buchanan,
The Quantum of Damages, Vol II 360 at 367) and should
therefore, by its very nature,
be a process of subjective impression
or estimation rather than objective calculation
(
Shield
Ins Co Ltd v
Booysen
1979 (3) SA 953
(A) at
965G-H). Contingencies for which allowance should be made, would
usually include the following:
•
The
possibility of errors in the estimation of life expectation;
•
The
possibility of illness which would have occurred in any event;
•
Inflation or
deflation of the value of money in future; and
•
other risks
of life, such as accidents or even death, which would have become a
reality, sooner or later, in any event. (Corbett,
The
Quantum of
Damages,
Vol I, 51.)
[24]
In the present matter it is common cause that the plaintiff was born
on [...] 1981 and, that she is therefore presently 35
years old. She
was injured during July 2012 when she was 31 years old. She suffered
serious injuries which included,
inter
alia,
a significant brain injury consisting of a probable concussive
brain injury complicated by focal injuries to the brain involving
the
right hemisphere; a chest injury with fractured ribs; pelvis
fractures; a torn diaphragm and liver tear; injuries to both knees
and a soft tissue injury to the left shoulder with possible brachial
plexus injury.
[25]
It is also common cause that: prior to the collision the plaintiffs
health was generally good; the neurocognitive, emotional
and
communication difficulties experienced by the plaintiff would have a
negative impact on her work performance, efficiencies
and
productivity; the plaintiffs employment career path both prior to and
subsequent to the collision; and the plaintiff is a vulnerable
employee and her chances of securing suitable work are compromised.
Furthermore, Ms Donaldson was of the view that it would
not be
unreasonable to accept that the plaintiff has been rendered
unemployable on the open labour market and that she will probably
be
dependent on the offices of a sympathetic and accommodating employer
in order to maintain employment.
[26]
Having regard to the common cause facts and the evidence, I am of the
view that with regard to past loss of earnings (injured
as well as
uninjured) a contingency deduction of 5% should be applied. With
regard to future loss of earnings, one should distinguish
between the
uninjured (had the accident not occurred) and injured scenario
(having regard to the accident). With regard to the
uninjured
scenario I am of the view that a 15% contingency deduction should be
applied and with regard to the injured scenario
a 40% deduction. The
plaintiff's total net loss of earnings will therefore be the amount
of R3 560 023.00 calculated as follows:
Past
Loss
Value
of income
uninjured R468
738.00
Less
5% contingency
deduction
R
23 437.00
R445310.00
Value
of income
injured R405
237.00
Less
5% contingency
deduction
R
20 262.00
R384
975.00
Net
past
loss
R
60 326.00
Future
Loss
Value
of income
uninjured
R5 200 951.00
Less
15% contingency
deduction
R
780 143.00
R4
420 808.00
Value
of income
injured
R1 535 186.00
Less
40% contingency
deduction
R614 074.00
R921
111.00
Net
future
loss
R3
499 697.00
[27]
To this amount of R3 560 023.00 should be added the agreed amounts of
R14 491.14 for past hospital and medical
expenses
and R1 000 000.00 (one million Rand) for general damages. The
total amount to be awarded to the plaintiff
therefore amounts to R4
574 514.14 as well as an order for an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act.
ORDER
:
In the result I grant the following order: The draft order
attached hereto and marked "X" is made an order of Court.
__________________
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
1
/4
/
1
6
ANNEXURE
"X"
INTHE
HIGHCOURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Case
No: 75878/2013
ON
THIS THE 1
st
DAY OF APRIL 2016 BEFORE THE
HONOURABLE JUDGE D S FOURIE
In
the matter between:
BATES,
L
U
CI
N
DA
ANGE
Plaintiff
and
ROAD
ACCIDENT
F
U
ND
Defendant
DRAFT
ORDER
It
is ordered that:
1.
Defendant shall pay plaintiff delictual damages in the sum of R4 574
514.14;
2.
The aforesaid capital amount and High Court party and party costs
shall be payable to the plaintiff s attorney's trust account,
the
particulars of which are:
Joseph's
Incorporated Trust Account
RMB
Private Bank
Account
Number: [5……]
Branch
Code: 261 251
3.
Defendant shall furnish plaintiff with an
undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
, to pay 100% of
the costs of the future accommodation of plaintiff in a hospital or
nursing home, or treatment of or rendering
of a service or supplying
of goods to her, arising out of the injuries she sustained in the
motor vehicle collision on 8 July 2012,
and the
sequelae
thereof,
after such costs have been incurred and upon proof thereof.
4.
Defendant shall pay plaintiff s taxed or agreed party and party costs
on the High
Court
scale, such costs to include:
4.1.
the costs attendant upon the obtaining of payment of the full amount
referred to in paragraph 1 above; and
4.2.
the costs of the medico-legal reports, the compilation of joint
minutes and
preparation fees if any of the following medical legal
experts:-
4.2.1.
05.10.2013 Dr G A Versfeld (Orthopaedic Surgeon)
4.2.2.
29.10.2014 Dr G Marus (Neurosurgeon)
4.2.3.
05.02.2015 Professor U V Fritz (Neurologist)
4.2.4.
14.10.2014 Mr L Grinker (Psychiatrist)
4.2.5.
21.10.2014 Dr A P J Botha (Specialist Physician)
4.2.6.
04.11.2014 Dr Phil Pierce (Ophthalmologist)
4.2.7.
01.03.2015 Mr B Mallinson (Neuropsychologist)
4.2.8.
17.05.2012 Ms I M Hattingh (Speech/Language Pathologist and
Audiologist)
4.2.9.
15.10.2014 Ms S Murcott (Occupational Therapist)
4.2.1
0. 29.06.2015 Ms B Donaldson (Industrial Psychologist)
4.2.11.
07.07.2015 Mr G Whittaker (Consulting Actuary)
4.3.
the appearance fees of Ms Barbara Donaldson;
4.4.
the taxed or agreed costs of senior counsel including counsel's fees
in respect of
the preparation of heads of argument;
4.5.
the wasted costs occasioned by the postponement of the matter
on Monday, 3
August 2015 such costs to
include the costs of senior
counsel;
4.6.
the costs of the RAF4 Serious Injury Assessment Form completed by Dr
G A Versfeld
(Orthopaedic Surgeon), dated 5th October 2013; and
4.7.
the reasonable and necessary travelling expenses of the plaintiff
from Durban to
Pretoria and back;
5.
Interest on the aforesaid amount referred to in paragraph 1 above at
the rate of 9.0% as from 1 4 days from date of this order
until date
of payment.
6.
Plaintiff shall, in the event that costs are not agreed upon, serve
the Notice of Taxation on Defendant's attorneys of record.
7.
Plaintiff shall allow defendant fourteen (14) days to make payment of
the taxed costs.
BY
THE COURT
__________________
REGISTRAR