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[2016] ZAGPPHC 569
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Mthembu v Road Accident Fund (70817/14, 70817 / 2014) [2016] ZAGPPHC 569 (19 May 2016)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 70817/14
DATE:
19 May 2016
E.E.
MTHEMBU
..........................................................................................................................
Plaintiff
And
THE
ROAD ACCIDENT
FUND
.............................................................................................
Defendant
JUDGMENT
MABUSE
J
:
[1]
This is a claim for payment of money.
[2]
The plaintiff in this matter is an adult
male who resides in Hlalanikahle, a section of Witbank, in the
province of Mpumalanga.
The plaintiff sues in this matter in his
personal capacity for the injuries that he sustained on 30 March 2011
when at about 06h58
the motor vehicle in which he was a passenger was
involved in an accident on the N4 near Witbank.
[3]
The defendant in this matter is a legal
person who has been constituted as such by the provisions of s. 2 of
the Road Accident Fund
Act 56 of 1996 (“The Act”). The
head office o
f the defendant is located at 3 I S, M
,
in Pretoria.
[4]
By law the defendant is obliged to
compensate people who sustain damages arising from injuries resulting
from the driving of motor
vehicles in the public roads of the
Republic. Such incident which gave rise to a person sustaining
injuries as a result of the
negligent driving of a motor vehicle
arose on 30 March 2011. The plaintiff was involved in the said
incident.
[5]
As a consequence of the said accident,
the plaintiff sustained the following injuries as set out in the RA41
form and other available
records, a communited fracture of the right
femur which was treated by way of an open reduction and internal
fixation.
[6]
At the time of the accident, the
plaintiff was employed as an assistant panel beater at The Dent
Doctor in Witbank. Three months
after the accident the plaintiff
returned to his pre-accident employment where, according to the
report that the plaintiff gave
to Dr. Geoff Read, the orthopaedic
surgeon, he continued with his pre-accident work duties which
involved running around the workshop
and carrying on heavy items.
[7]
In his combined summons, issued by the
registrar of this Court on 26 September 2014, the plaintiff claims
payment of a certain amount
of money in respect of past loss of
earning (“reeds gelede verlies aan verdienste”) and
estimated future loss of earning
capacity (“geraamde
toekomstige verlies van verdienvermoe”).
[8]
At the inception of the trial, Mr. Marx,
counsel for the plaintiff, indicated to the Court that the dispute
between the parties
was whether the plaintiff was still employable in
his pre-accident industry. In other words whether the plaintiff could
still do
his duties as an assistant panel beater as he used to do
before the accident in question when he was asked to confirm, Mrs.
Kgwale,
the defendant’s counsel, did not do so. In her turn she
told the Court that the dispute between the parties was whether the
plaintiff was, following the nature of the injury he sustained during
the aforementioned accident, still employable.
[9]
In support of the plaintiff’s
case, Mr. Marx handed the Court a bundle of experts’ reports
which the Court marked “A”.
The Court was informed that
the defendant had admitted the reports and that the said bundle was
handed in by consent. This was
subsequently confirmed by Mrs. Kgwale.
In addition Mr. Marx led the evidence of two witnesses, the plaintiff
and one, Mrs. Geraldine
Lourens.
[10]The
plaintiff told the Court in his testimony that he sustained some
injuries during a motor vehicle accident that took place
during March
2011. The date of the said motor vehicle accident was not in dispute.
Those injuries that he sustained were head injuries
and a broken
right femur. Having testified about the injuries he then testified
about the history of his work. He left school at
the age of 21 years.
After leaving school he did piece jobs. He thereafter worked at a
Woodmill where he did maintenance of Woodmill
machines which involved
having to change their chains and/or oil. From Woodmill he went into
panel beating, the job that he had
been doing. This was a job that
required a lot of work. After the motor vehicle accident in question,
he could not do it perfectly.
All this is so because of the injury on
his left femur. There is no chance of him getting another employment
if he were to lose
his current job. He was also unable to do work
that required him to sit down because the hip would become painful if
he had to
rise. Moreover he has not been trained in doing any type of
work that will require him to sit down, especially in the panel
beating
industry.
[11]Mrs.
Geraldine Lourens (“Lourens”), an occupational therapist,
was the plaintiff’s second witness. Her expertise
as such was
never called into question. In her testimony she told the Court that,
as an occupational therapist at Rita Van Biljon
Occupational
Therapist, she evaluated the plaintiff on 16 April 2015. After the
interview she prepared a report which contained
her observations
about the plaintiff. The report was part of the bundle “A”
presented to Court by Mr. Marx. The plaintiff’s
pre-accident
work was described as follows. The plaintiff’s main work tasks
related to physical labour with regards to panel
beating tasks within
the workshop. That entailed him to work in elevated positions, to
remove sections of the vehicles with two
hands, more or less 15
kilograms. He would be required to work within a standing with
forward bending position when removing the
car doors or stripping the
paint off the doors as well as repairing the dents with body filler.
He reportedly made use of a machine
known as the Dent Puller with
bilateral hand control to remove dents in the vehicle’s panels.
The plaintiff reportedly used
a grinder and welder to attach the
panels once they have been repaired which required the plaintiff to
work with bilateral hand
control. The plaintiff was required to
perform between four and six jobs per day. After he has filled the
dents the car is given
over to the spray paint department.
[12]The
plaintiff reported to have taken three months to recover from
injuries he had sustained during the accident in question.
He
returned to work in October 2011 after three weeks paid leave and two
months and one week unpaid sick leave. He reported to
have returned
in the capacity of his pre-accident title and tasks however the
following work related problems were experienced.
He continued to
have difficulties with lifting heaving items and pushing and pulling
the equipment due to his pain with his lower
right limb, especially
at the right hip and knee-joint. He had difficulty sustaining
prolonged kneeling, crouching and squatting
positions due to pain
within his right hip and right knee. No accommodation or adaptations
were put into place for the difficulties
he was experiencing. The
plaintiff told Mrs. Lourens that he would like to start his own panel
beating business. He also expressed
his wish to join his brother in
the coal making business.
[13]According
to Mrs. Lourens’s report the plaintiff retained the physical
strength to handle frequently light to occasional
medium tasks. He is
therefore restricted with regards to his pre-accident and current
working task as he is required to perform
physical demands that fall
within frequently medium to occasional heavy work demands. She opined
that the plaintiff is negatively
influenced not only by his pain
levels within the right hip region and right knee but also due to his
leg length discrepancy and
the restricted range of motion within his
right hip joint as well as the development of lumbar scoliosis. The
plaintiff is reportedly
influenced negatively by his pain and his leg
discrepancy due to the femur fracture when walking and standing for
prolonged periods.
He has increased weight bearing on the left lower
limb which increased his poor postural alignment. The plaintiff is
hindered by
his postural alignment that causes scoliosis within his
lumbar spine. He presented with a sitting tolerance of 1 hour 40
minutes
which would allow for him to apply adaptations to his working
tasks, in other words sitting on a lower chair whilst removing the
panels or sitting on a high chair whilst panel beating the panels.
Even though the plaintiff is currently performing his tasks
at work,
he does so with accompanying pain and most likely, as observed in the
evaluation, with compromised postures which could
lead to secondary
pathology.
[14]Mrs.
Lourens opined that the plaintiff has an unequal and unfair
competitor with selected chores of working in the panel beating
assistant position. According to Dr. LA Oelofse the plaintiff has
been negatively impaired with regards to his productivity and
working
abilities due to the pain and leg length discrepancy as a result of
the injuries sustained in the accident in question
and would
therefore benefit from sedentary working position. Finally, Mrs.
Lourens opined that when considering the plaintiff’s
weight
handling abilities and pathology of the right femur, the plaintiff
would be best suited to perform frequently light to rarely
medium
work up to 9 kilograms especially whilst symptomatic. The plaintiff
would therefore be appropriate for a storeroom assistant
where he
would be able to manage the stock of the company. It would also be
necessary for him to be able to interchange his work
tasks from a
seated to a standing position frequently to relief pain symptoms. The
plaintiff would also be appropriate for a position
of a mechanical
assistant that is required to assemble small parts on the vehicle
once the panels have been placed. During her
testimony Mrs. Lourens
told the Court that the plaintiff would never be able to work. Her
attention was drawn to the contents of
paragraph 14.6.2 of her
report. In her attempt to clear the question she introduced new
evidence which was not contained in her
report or any report and
which caught the other side by surprise. Nothing however turned on
this aspect.
[15]It
is clear that the defendant’s legal team has accepted that the
motor vehicle accident has disadvantaged the plaintiff
in one way or
the other and that the plaintiff should be compensated for this
disadvantage. That is clear form Mrs. Kgwale’s
attempt to
recalculate the amount that the Court should take into account in
awarding the damages to a plaintiff. It is clear furthermore
that it
never was the defendant’s intention to completely oppose
compensation to the plaintiff. The problem seemed to have
been the
application of the contingency. It is clear that the plaintiff can
still do some type of work he did before the motor
vehicle accident
but not at the same level and intensity as before. His difficulty is
aptly captured in paragraph 5.7.11 of the
Occupation Therapist’s
report in which she stated that:
“
The
plaintiff reported that he continues to have difficulties with
lifting heavy items and pushing and pulling the equipment due
to his
pain within his lower right limb, especially at the right hip and
knee joint. He also reported to have difficulties in sustaining
prolonged kneeling, crouching and squatting positions due to the pain
within the right hip and the right knee. ”
[16]The
Courts are not apt at calculations of figures for loss of income and
have in most cases to depend on the parties themselves
settling such
an issue or alternatively calculations made by actuaries. For these
reasons I requested the parties yesterday to
furnish the court with a
recalculated amount that the Court could take into account in the
determination of an award that the Court
may make to the plaintiff. I
have received one new calculation. In the premises I must therefore
find that the latest figures that
have been placed before the Court
are acceptable to both parties.
[17]Accordingly
the amended draft order marked “XPS” is made an order of
Court.
P.M
.
MABUSE
JUDGE
OF THE HIGH COUR
Appearances:
Counsel
for the plaintiff: Adv. DJ Marx
Instructed
by: Van Zyl L e Roux Inc.
Counsel
for the defendant: Adv. MM Kgwale
Instructed
by: Tau Phalane Incorporated
Date
Heard: 18 May 2015
Date
of Judgment: 19 May 2015
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
NO:
70817 / 2014
19
May 2016
Before
the Honourable Justice Mabuse J
In
the matter between:
EE
MTHEMBU
............................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
DRAFT
ORDER
BY
AGREEMENT BETWEEN THE PARTIES, IT IS ORDERED THAT:
The
Defendant is liable to pay 100% (Hundred percent) of the Plaintiffs
proven or agreed damages;
The
Defendant is to pay the Plaintiff
’
s
attorneys the sum of R500 000.00, (Five Hundred Thousand Rand) with
regards to the issue of general damages;
The
Plaintiffs Attorney's trust account details are as follows:
ACCOUNT
HOLDER: V INC
BRANCH:
A V D W S
BRANCH
CODE: 3
TYPE
OF ACCOUNT: T A
ACCOUNT
NUMBER: 0
In
the event of default on the above payment, interest shall accrue on
such outstanding amount at 10.50% (at the mora rate of 3.5%
above the
repo rate on the date on this order, as per the Prescribe Rate of
Interest Act, 55 of 1975, as amended) per annum calculated
from due
date, as per the
Road Accident Fund Act, until
the date of payment.
The
Defendant shall furnish the Plaintiff with an Undertaking, in terms
of
Section 17(4)(a)
of 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 supplying of goods to
the Plaintiff (and after the costs have been incurred and upon
submission of proof thereof)
arising out of the injuries sustained in
the collision which occurred on 30 March 2011. If the Defendant fails
to furnish the undertaking
to the Plaintiff within 30 (thirty) days
of this order, the Defendant shall be held liable for the payment of
the additional taxable
party and party costs incurred to obtain the
undertaking.
The
Defendant to pay the Plaintiffs taxed or agreed party and party cost,
in the above mentioned account, for the instructing- and
correspondent attorneys, up to and including the trial dates of 10
May 2016 and 18 May 2016, of which cost shall include, but not
be
limited to the following:
All
reserved cost to be unreserved, if any;
The
fees (preparation and day fee) of D Marx appearing as counsel, up to
and including the trial dates of 10 May 2016 and 18 May
2016;
The
cost of obtaining all expert medico legal-, actuarial, and any other
reports of an expert nature which were furnished to the
Defendant
and/or it's experts;
The
reasonable taxable qualifying, preparation, reservation and
attendance fees of all experts, including the cost of consultation
fees with the legal teams;
The
reasonable traveling- and accommodation cost, if any, incurred in
transporting the Plaintiff to all medico-legal appointments;
The
reasonable cost for an interpreter's attendance at court and at the
medico legal appointments for translation of information;
The
above-mentioned payment with regard to costs shall be subject to the
following conditions:
The
Plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the Defendant's attorney of record;
and
The
Plaintiff shall allow the Defendant 14 (fourteen) calendar days to
make payment of the taxed costs.
No
contingency fee agreement exists between the Plaintiff and
Plaintiff
’
s attorneys.
AFTER
HAVING HEARD COUNSEL FOR THE PARTIES AND EVEDINCE BEING LEAD, IT IS
ORDERED THAT:
The
Defendant is to pay the Plaintiff
’
s
attorneys the sum of with regards to the issue of loss of
income
of R1, 483 513.00, (One million four hundred and eighty three
thousand five hundred and thirteen rand) with regards to the
issue of
loss income;
In
the event of default on the above payment, interest shall accrue on
such outstanding amount at 10.50% (at the mora rate of 3.5%
above the
repo rate on the date on this order, as per the Prescribe Rate of
Interest Act, 55 of 1975, as amended) per annum calculated
from due
date, as per the
Road Accident Fund Act, until
the date of payment.
By
Order of the Court
REGISTRAR
For
the Plaintiff: VZLR Inc - 012 435 9444
D
Marx - 082 828 0629
For
the Defendant: Tau Phalane - 012 346 4309
M
Kgwale - 084 410 5388