H v Road Accident Fund (19585/2013) [2016] ZAGPPHC 584 (15 June 2016)

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[2016] ZAGPPHC 584
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S.N.H v Road Accident Fund (19585/2013) [2016] ZAGPPHC 584 (15 June 2016)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 19585/2013
15/6/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In the
matter between:
S.
N.
H.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MOLOPA-SETHOSA
J
[1] The
Plaintiff has instituted an action against the defendant for damages
as a result of bodily injuries he sustained due to
an accident that
occurred on 16 June 2012, when he, as a pedestrian, was hit by an
unknown motor vehicle.
[2] It
is common cause that the plaintiff sustained the following injuries:
[2.1.]
Soft
tissue injury to his right shoulder;
[2.2.]
Left
ankle fracture.
And as
a result of the sequelae thereof he received medical and hospital
treatment, and will in future still require medical and
hospital
treatment for his injuries.
[3] The
issue of liability has been resolved. The parties have agreed that
the defendant will pay 90% of the plaintiff s proven
damages. The
liability of the defendant for past hospital and medical expenses has
also been agreed to be 90% of what plaintiff
will prove.
[4] It
was agreed that the defendant is to pay the plaintiff a sum of R300
000.00 in respect of general damages, and would furnish
to the
plaintiff an undertaking in respect of future accommodation and
hospital and medical expenses in terms of section l 7(4)(a)
of the
Road Accident Fund Act 56 of 1996
. Consequently, the only issue for
determination in this trial was the plaintiff s damages for past and
future loss of earnings
and earning capacity.
[5] It
was common cause that at the time of the collision the plaintiff, who
possessed no significant or specific skills, was unemployed.
He was
about 50 years old.
[6] The
plaintiff called three expert witnesses and the defendant called one.
The plaintiff himself did not testify.
[7] The
plaintiff led the evidence of Ramaisela Adelaide Phasha. She
testified that she is an Occupational therapist, and that she

practices at Constantia Park, Pretoria East. Her qualifications and
expertise are not in dispute.
[8] She
confirmed the contents of her medico legal report. She testified that
the purpose of compiling a report was to assess the
functional
capacity of the plaintiff in relation to the injuries he sustained as
a result of the accident under discussion.
[9] She
testified that she consulted with the plaintiff on 02 October 2013.
That she used various tests that are age and injury
related to assess
the plaintiff. Further that she looked at the plaintiff s previous
work history. That she had regard to the plaintiff
s injuries as
noted in the medico legal report of Dr Khan, an orthopaedic surgeon,
which injuries are: - the left ankle fracture
which has developed
osteoarthritis; and that there is a So/o chance that the plaintiff
will develop the full right shoulder impingement
syndrome, as well as
that the left talo-navicular joint is also developing osteoarthritis.
[10]
She testified that other information made available to her when she
consulted with the plaintiff was the RAF 1 form compiled
by Dr
Ephraim Appal dated 2 November 2012, as well as medical records from
Mamelodi Hospital.
[11]
After interviewing the plaintiff and doing certain tests set out in
her medico legal report Ms Phasha concluded:
"From a physical point of view though he
demonstrated the capacity to perform work within the medium category,
he
is
best suited for
sedentary and light occupations given the unfavourable prognosis as
indicated by Dr Khan. It
is
noted
that the client has already developed osteoarthritis of the left
ankle due to the fracture sustained and it will reportedly
get worse
in future. The left talo-navicular joint
is
also developing osteoarthritis. He will thus
be advised to refrain from performing medium, heavy and very heavy
work so as to facilitate
joint hygiene and preserve the affected
joints. Furthermore he is expected to experience limitations with
tasks requiring working
at level above head, prolonged walking,
maintaining a crouching and squatting positions as this aggravated
pain to his left ankle
and right
shoulder.
Though he was employed at the time of the accident,
note
is
taken that the
client has always relied on his physical capacity to work. With this
compromised and with disease progression, he
will not be suited for
most work that his skills qualifies him for, that
is
work
requiring
manual labour /physical demanding as well as good mobility and
agility skills including his previous jobs as a general
assistant and
petrol attendant. Furthermore that he undergoes recommended surgery;
his physical capacity will further be reduced.
Even with recommended
procedure and rehabilitation, he
is
not
expected to regain his pre-morbid status: His employment options have
thus been significantly reduced and given his previous
work
experience he would most probably remain unemployed for most of his
life. This can be attributed to the accident under
discussion.
"
[12]
Her evidence is to the effect that the plaintiff, who worked most of
his working period as a petrol attendant, is more suited
for light to
sedentary category of work. That although petrol attendant can be
regarded as light category it requires prolonged
standing and it
requires strong positional tolerance and mobility skills and her
opinion is that the plaintiff is unsuited for
this work as it will be
contrary to joint savings principles given that the plaintiff has
already developed osteoarthritis.
[13]
She testified that due to the injuries sustained by the plaintiff
during the accident, the plaintiff cannot /is no longer suited
to
perform the work as a shelf packer nor as a dry clean general
assistant. That she and the defendant's occupational therapist
both
agree in this regard as these jobs are regarded as medium to heavy
category of work. Further that both occupational therapists
agree
that the plaintiff is unsuited for medium, heavy and very heavy
category of work.
[14]
She further testified that the plaintiff does not have an experience
in sedentary jobs such as office work, where one works
in seated
position; and that plaintiff does not have the experience to can run
a spaza shop, and that if he were to decide to run
a spaza shop he
would encounter problems as he would be required to buy stock and
pack same. That running a spaza shop is actually
not a light
category, but is medium to heavy category.
[15]
She testified that the plaintiff can neither be a general worker in
construction industry, that that cannot even be considered
because it
falls under heavy category.
[16]
Under cross-examination, she stated that she did not verify any
collateral information with the plaintiff's previous employers

because, as an occupational therapist, her main role is to determine
the functional capacity of the plaintiff, which she did, without

having to obtain or confirm plaintiff s employment history.
[17]
Further that at the time of accident plaintiff was not employed,
therefore, she did not verify to check his collateral information.

That the reason she would call the employer for collateral
information is to determine the functional capacity of a client prior

to the accident and post the accident, and how did the accident
actually impact on client's (plaintiff’s) functioning. She

stated that as the plaintiff was unemployed at the time of the
accident there would be nothing to compare to post accident because

he has not obtained any employment subsequent to the accident.
[18]
She further stated that she does not need an employer's certificate
to determine the client's physical capacity. She stated
that it was
the role of an industrial psychologist to verify that the plaintiff
was indeed a petrol attendant, not that of an occupational
therapist.
[19]
She stated that during evaluation, the plaintiff mentioned that he
had discomfort to both his knees and that he/plaintiff mentioned
that
that was from a previous injury. That she could not comment on what
the plaintiff had told other experts, e.g. Dr Khan, Dr
Pretorius, Ms
Zondo.
[20]
She stated that notwithstanding the previous knee injury, overall
that knee injury did not have any impact on plaintiff's functioning;

that Dr Pretorius, the industrial psychologist, has to do with
earning capacity and not with functional implications of the knee

injury, which, she stated, is purely the role of an occupational
therapist.
[21]
She stated that both she and the defendant's occupational therapist
have agreed that the plaintiff's functional capacity is
reduced
purely due to the injuries he sustained in the accident under
discussion. That the previous knee injury does not have any
effect on
plaintiff's functional capacity. That the knee did not impede on
plaintiff's mobility.
[22]
She confirmed that there were discrepancies in the employment history
that plaintiff gave to the various experts, including
herself.
Further that the plaintiff was not forthcoming with information why
he was dismissed at two previous employments at Engen
and Sasol
respectively. That however, regardless of the dismissal at Engen, the
plaintiff was still able to obtain an alternative
job somewhere else,
as a petrol attendant.
[23]
She reiterated that the main reason of conducting a medico legal is
to determine the functional capacity of an individual and
in doing
that one needs to obtain a work history to determine what job
category was the person doing previously, and that she was
able to do
that successfully. She stated that despite the plaintiff having
informed Dr Pretorius (industrial psychologist) of previous
injury at
Zenex in 2000 where after he was allegedly accommodated by the
employer and worked as a cashier, that most probably his
knee injury
had healed. That both she and Ms Zondo did an evaluation on both
plaintiff s lower limbs and it was found that he has
got normal
range/motion, with no pain whatsoever except discomfort that he
reported on during crawling.
[24]
She stated that to work as a cashier at a petrol station is regarded
as light category of work, not sedentary because at the
petrol
station normally they do not have chairs, and counters are high up;
that the plaintiff would be required to stand for long
periods, and
to frequently move between the tills and to attend to customers in
the petrol station shop as well as petrol attendants
on the window.
That in that regard he is still unsuited for that because he will be
required to stand for prolonged period of time
and actually walk for
prolonged period of time.
[25]
Under re-examination she reiterated that she would normally conduct
collateral information to compare pre and past work performance
of a
client/plaintiff, that in this case the plaintiff was not employed,
therefore she did not get collateral information as there
was nothing
to compare work performance pre and post the accident, i.e. to check
whether the injuries sustained during the accident
have an impact on
the client's functioning. She stated that it is not the role of the
occupational therapist to prove whether a
client/plaintiff was indeed
employed at a specific place at a particular time.
[26]
She stated that the discomfort on the knee mentioned pertains to
crawling, which, she says, is not required as petrol attendant;
that
on both occupational therapist's assessments the impending factor was
the left ankle and the right shoulder injuries.
[27]
That also on reading the defendant's orthopaedic surgeon's report it
is indicated, and she confirms, that both plaintiff's
knees do not
have any impact on plaintiff's current and future functional
capacity. That the defendant's orthopaedic surgeon and
the
plaintiff's orthopaedic surgeon, as well as both occupational
therapists did not pick up any problems/impediment with plaintiff's

knees.
[28]
She confirmed that from Dr Khan's report it is stated that Dr Khan,
despite having stated in his report that "Future treatment
can
improve his condition and he has 70% possibility to continue working
in his previous job" he (Dr Khan) deferred to the
occupational
therapist's opinion to assess plaintiff s work ability.
[29] It
will be noted that I dealt with the evidence of Ms Phasha
comprehensively, and this is because, of all the witnesses that

testified she is the one that was mostly taken to task by defendant's
counsel, and as an occupational therapist it is within her

competence, of all the experts that testified on behalf of the
plaintiff, to assess plaintiff s functional capacity. Also, of all

the experts, it is the occupational therapists that have some
differences/disagreement on whether the plaintiff in his injured

state, is still suited for the position of petrol attendant; with Ms
Phasha saying no plaintiff is no longer suited, and Ms Zondo,
the
defendant's occupational therapist, saying yes with recommended
intervention and appropriate treatment plaintiff is still suited,

that the plaintiff will have do weight shifting and would have to
carry a foot stool to work, so that he can frequently/occasionally

rest his ankle during rest breaks, to preserve ankle hygiene. The
other experts, as shall appear on the extract of the joint minutes

below, are almost l00% in agreement with each other on the prognosis,
effect and sequelae of plaintiff's ankle injury.
[30]
The next witness to testify for the plaintiff is Dr Willem Lamprecht
Pretorius, an Industrial psychologist. His expertise and

qualifications were not in dispute. He confirmed the contents of his
medico legal report which he compiled together with his associate,
Ms
L Coetzer.
[31] He
testified that he assessed the plaintiff who was 52 years old at the
time. That the purpose of his report was to assess
the claimant and
to assess the imputs of the experts in relation to work/tasks that
the plaintiff performed, as well as the as
well as capacity and
assess plaintiff s loss of earnings and if possible promotional
positions available.
[32] He
testified that from reading DR Khan's report, it shows that Dr Khan
did not pick up any abnormalities on plaintiff s knees;
and that he
can confirm that both knees (left and right) do not have an impact on
plaintiff s current and future functional capacity.p58/59
[33] He
testified that he interviewed the plaintiff, and that when he
interviewed the plaintiff, the expert opinions and reports
that were
available to him were Dr Khan, the orthopaedic surgeon, and Ms
Phasha, the occupational therapist's reports.
[34] He
testified that when they were finalising his report they (him and Ms
Coetzer) could not confirm collateral information because
they tried
to contact previous employers of the plaintiff, but initially they
could not reach or were not able to get hold of any
employers.
[35]
That at the stage they compiled the joint minutes together with his
counterpart/the defendant's industrial psychologist, Ms
Grove, his
counterpart/ Ms Grove had managed to get collateral information from
the plaintiff s last employer and that he/Dr Pretorius
also took the
telephone no. from Ms Grove and he phoned the plaintiff s last
employer in the presence of Ms Grove. That they (the
industrial
psychologists) spoke to one Ms Wessels, an accountant/supervisor at
Sasol Service Station, Kilnerpark ("Sasol"),
the last
employee of the plaintiff. That Ms Wessels confirmed that the
plaintiff was previously employed at Sasol and was dismissed
due to
intoxication at work, in April 2012 (two months prior to the accident
in question herein.
[36] He
further testified that he and Ms Grove, defendant's industrial
psychologist compiled joint minutes. He confirmed the contents
of the
joint minutes dated 07 August 2015. That they both agree that
plaintiff is likely to work as an accommodated cashier or
even
sympathetically employed. That the plaintiff if he were to work as a
petrol attendant, he will need a sympathetic employer
who will
accommodate him because he will struggle with other activities like
standing, walking, crouching; so the employer will
have to allow him
to sit, i.e. the employer will need to accommodate him/allow him
lee-away, because Ms Wessels informed them [the
industrial
psychologist] that normally petrol attendants are not allowed to sit
during their shift.
[37] He
testified that Wessels was not able to give him the exact date when
the plaintiff started working at Sasol. That she informed
him that
although plaintiff s performance as a petrol attendant was
satisfactory, he/plaintiff had a problem with alcohol so he
was
dismissed on 12 April 2012, about two (2) months before the accident.
[38]
That she further informed him that plaintiff worked a minimum of 45
hours per week, and that if he worked more than 45 hours
he'd be paid
overtime. Further that Wessels was not sure how much they earned at
the time (2012) but guessed that it could have
been around R2000 bi­
weekly/per fortnight. Wessels was not sure if petrol attendants
received tips.
[39] He
testified that Wessels informed him that the current (2015) rate paid
to petrol attendants was R20. 87 per hour for a petrol
attendant, and
R22. 90 per hour for a cashier. That monthly the salary was R3 756
per month and R4 465.16 per month respectively.
That he and Ms Grove
agree that plaintiff s likely earnings would have been somewhere
between these annual earnings of R45 079.20
and R53 581.92 (2015
values). That these figures were also contained in the defendant's
industrial psychologist/Ms Grove's report.
[40] He
testified that he totally agrees with what is stated by defendant's
expert, the Industrial psychologist Ms Grove's, and
that that was
confirmed by the employer.
[41] He
testified that according to the information given to him by the
plaintiff, the last employment would have been petrol attendant
at
SASOL, and that since 1978 plaintiff was employed as a petrol
attendant. That the only factual information that they could confirm

was his plaintiff s last employment as petrol attendant at SASOL from
2010 to April 2012.
[42] He
testified that pre-accident the plaintiff worked most of his life as
a petrol attendant; that because of age and work background
he cannot
do certain sedentary jobs. That plaintiff has reached career ceiling,
and that mostly they (industrial psychologists)
agree that 45 years
is one's ceiling. That looking at plaintiff s age and career path it
is unlikely that there would be carrier
any growth due also to the
question of competition and levels of qualification. That according
to information from the plaintiff
his highest standard is grade 11
and nothing further/no tertiary qualification.
[45] He
testified that he and Ms Grove both agree that plaintiff would retire
at 65 years, that plaintiff s was 53 years old when
they compiled the
report.
[46] He
testified that post-accident capacity, according to Ms Phasha,
plaintiff will struggle to get employment save for informal
trading
as vendor, e.g. running a spaza shop, but that he will need an
assistant. That the plaintiff can now only work in an informal

sector, with an assistant that he'll have to pay, unless he gets a
highly sympathetic employer. Further that according to Koch's
quantum
year book, 2014, self-employed persons in an informal sector is about
Rl 7 400 p.a.
[47] He
further testified that with a maximum income of Rl 7400 p.a., taking
into consideration that he still need to pay assistant,
and that he
never worked in informal sector, it would be a new venture therefore
typically he'd start at lower quartile of scale.
He would therefore
struggle, his personal earnings would be low therefore his risk would
be high. He has no exposure in terms of
business as he worked mostly
as a petrol attendant; therefore he has no experience to run informal
business therefore limited.
[48] He
testified that the plaintiff was unemployed during the time of the
accident and that at the time of interview plaintiff
informed him
that he was still unemployed. That both industrial psychologists
agree that at the time of assessment on 19 February
the plaintiff was
unemployed. Further they (industrial psychologists) agree that the
plaintiff's ability to search for work is
curtailed after the
accident due to his injuries.
[49] He
stated that by the concept of contingencies mentioned in his report
he meant that it was quite difficult for him to indicate
what will be
the extent of the potential loss due to the decrease in work capacity
attributable to previous injury to the knee;
i.e. that it was
difficult for him to say what extent the previous injury had on
plaintiff's future work capacity, and deferred
to legal parties to
determine what should be the contingencies.
[50]
Under cross examination he stated that he does not have proof that
plaintiff has grade 11, nor does he have plaintiff's salary
advice.
Further that based on information furnished by the plaintiff, the
only validated information he and Ms Grove have is that
the plaintiff
worked at Sasol as a petrol attendant.
[51] He
conceded that due to plaintiff s history of being dismissed plaintiff
will have difficulty to compete in the work market
for employment,
that however despite having been dismissed previously he seems to be
able to again find employment as a petrol
attendant.
[52] He
conceded that the plaintiff lied to him by saying that he was
dismissed because his mother was sick, that that differs from
what he
was informed by employer. Further that the information given to him
by the plaintiff differs with what he told other experts,
e.g. Dr
Khan.
[53] He
stated that seeing that the plaintiff has been dismissed 3 times, his
chances of getting employment at petrol station were
very slim. That
in applying contingency, the court should take into account that the
plaintiff would struggle to get another employment.
[53] He
stated that his pre-existing condition/previous knee injury could
also preclude him from doing the same job, that it has
most likely
pre-accident reduced his physical working capacity; that appropriate
apportionment and contingencies be applied.
[54]
Pertaining to informal sector he stated that with the development of
informal sector/ running spaza shops there are various
ways of
sourcing out products and working together with other entrepreneurs.
That there are various ways of doing business.
[55]
Under re-examination he confirmed that based on information he
received from the employer the plaintiff s last dismissal in
April
2012 was due to intoxication.
[56] He
stated that he got information from the plaintiff, and from other
experts as well as from plaintiff s last employer.
[57]
The next witness to testify was Dr Imran Ahmad Khan, the Orthopaedic
surgeon. His expertise and qualifications were not disputed.
[58] He
confirmed the contents of his medico legal report. He testified that
he examined the plaintiff on 22 August 2013, that the
plaintiff s age
at the time was 51 years old.
[59] He
testified that there is a 5% chance of plaintiff developing a
complete impingement syndrome on the right shoulder. Further
that the
plaintiff has develop post trauma osteoarthritis on the left ankle,
which is joint arthritis caused by trauma.
[60] He
testified that plaintiff s ankle joints were swollen both inside and
outside. That after examination of the plaintiff he
found that the
chronic pain on the right shoulder was due to impingement syndrome,
and on the left ankle it was due to an old fractures
and previous
surgery, and development of osteoarthritis of the left ankle; i.e.
the pain was due to the right shoulder pathology
and the left ankle
pathology.
[61] He
testified that prior to compiling his report; he had the RAF 1 form
as well as the hospital records at his disposal. He
testified that
the plaintiff informed him during the assessment that he used to work
as petrol station attendant, and that he was
not working at the time
of the accident; further that he was not working at the time of the
assessment due to painful left ankle
and right shoulder.
[62]
Further that the plaintiff informed him that he was unable to stand
for more than an hour and cannot walk for more than 500
metres. That
in capacity is due to a left ankle post trauma osteoarthritis.
[63] He
testified that at the time of the assessment of the plaintiff his
feeling was that if further treatment can be provided
to the
plaintiff there is a possibility that he may continue his work as
petrol attendant; but that looking at plaintiff s pathology
and the
condition that should have been the job of the occupational therapist
because his examination was for short period of time.
That he cannot
tell 100% until the occupational therapist has assessed the patient.
He testified that his opinion in this regard
was not conclusive, that
it was merely his personal feeling at the time.
[64] He
testified that during the assessment the plaintiff presented with
residual pain in his right shoulder and left ankle. That
the left
ankle pain is associated with inability to walk and stand for
pro-longed period. That clinical and radiological examination

indicates that he has mild impingement syndrome of the right shoulder
and post-trauma osteoarthritis of the left ankle with swelling
and
pain. Further that the left talo-navicular joint has some changes on
ex-rays but the injury is not confirmed in hospital records.
[65]
That on information furnished by the plaintiff, at the time of the
accident, plaintiff was not employed, although he used to
do piece
jobs; that he was unable to perform his work at the time due to
present incapacity. He testified that the occupational
therapist
should assess the plaintiff s work ability. He testified that the
plaintiff will need surgery/arthrodesis for the left
ankle in the
near future to improve his painful condition. Further that he will
need consecutive treatment for a pro-longed period.
[66] He
testified that he did not concern himself with small little trivial
injuries that plaintiff may previously have had.
[67] He
confirmed the contents of the joint minutes between himself and the
defendant's orthopaedic surgeon, Dr Gantz. He confirmed
that he and
Dr Gantz agree on all aspects regarding the history, the accident,
injuries sustained, treatment received and past
medical history.
Further that they agree that plaintiff is presenting with painful
right shoulder and left ankle and that he is
unable to stand for a
pro-longed period.
[68] He
testified that they agree that plaintiff is suffering from a painful
right shoulder with reduced function; that according
to him (Dr Khan)
this is due to the right shoulder impeachment syndrome. And that
their opinion (orthopaedic surges) is that the
plaintiff is also
suffering from post­ traumatic osteoarthritis of the left ankle.
They both agree that he has almost 9% whole
person impairment due to
his current problems.
[69] He
testified that they both agree that plaintiff will not be able to
carry out heavy physical work in future that requires
long hours
standing or walking. That they both agree that plaintiff will need
both medical and surgical treatment in future to
improve his
condition as suggested in their respective report. He confirmed that
he and the defendant's orthopaedic surgeon did
not differ anywhere.
[70]
Under cross examination, he stated that the RAF 1 form did not
indicate an injury to the shoulder; that most lightly this
information was presented to him by the patient/plaintiff. He
confirmed that there is no documented nexus between the motor
accident
in question and the shoulder injury. He further stated that
the hospital records and/or RAF 1 form did not make a note of the old

fracture of the side of the foot- left talo-navicular joint; that
this fracture (of the side of the foot- left talo-navicular joint)

might have been pre-accident.
[71] He
stated that the plaintiff did not mention any previous knee injury to
him. He testified that if the plaintiff had a pre-existing
condition
(e.g. knee injury) and then had a super impost second condition
(ankle injury) this would have made him more disabled.
[72] He
stated that during the assessment the plaintiff had informed him that
he was doing piece jobs, that plaintiff did not elaborate
on that. He
stated that due to ankle the left pain, swelling the osteoarthritis
was intense enough; there is a possibility that
the plaintiff may not
be able to perform heavy physical work in future that requires long
hours of standing and walking. He stated
that the arthrodesis of the
ankle will improve the plaintiff s pain.
[73]
Under re-examination he stated that he is sure that when he examined
the plaintiff he must have gone through the knee examination,
and
that he could not find any pathology, that his colleague as well i.e.
the defendant's orthopaedic surgeon could not find any
knee pathology
on examination. He further stated that plaintiff s ankle and injuries
and the pain must have been contributing to
the plaintiff s
incapacity, that in the event the plaintiff does not secure
employment within the petrol filling industry he might
find himself
prejudiced in occupations falling within the medium to heavy physical
work that for that reason he does not agree
with the defendant's
occupational therapist, Mrs Zondo but the plaintiff s age could most
lightly have negatively contributed to
the plaintiff not securing
employment within the petrol filing industry.
[74] On
questions by the court; he stated that on examining the plaintiff
independently, leaving out all other pathologists and
just
concentrating on the left ankle fracture, the plaintiff has got
significant pain and pathology. He stated that the procedure
that the
plaintiff will be undergoing is not the removal of screws; that the
plaintiff has to undergo what is called arthrodesis
of the joints to
alleviate his ankle pain.
[75]
That concluded the evidence for the plaintiff. The defendant made an
application for absolution from the instance, and such
application
was refused.
[76]
The defendant led the evidence of Mabongi Zondo, the occupational
therapist. Her expertise and qualifications were not in dispute.
She
confirmed the contents of her medico legal report.
[77]
She testified that the purpose of her report is to determine the
functional capacity of the claimant/plaintiff in terms of
his
occupational functioning, activities of daily living, leisure, work
or play. She testified that in preparing her report she
insight to Dr
Khan's and Ms Phasha's reports as well as to the RAF 1 form.
[78]
She testified that in assessing the plaintiff, the assessment tools
she used were valpar 201which is a dynamic strength evaluation
as
well as mobility evaluation. That she also conducted subjective
questionnaires; that these are pain questionnaires in which
a
claimant is expected to indicate his pain level and to descript the
type of pain that he experiences at the side of the injury.
[79]
She confirmed the medical history of the plaintiff as contained in
the medical records.
[80]
She testified that the plaintiff was asked to indicate the problems
or limitations which he is currently experiencing and which
he could
relate to the accident, and that the only limitation or concern that
he indicated to her is that he was unable to secure
employment
because of difficulties with extensive standing. That the plaintiff
did not indicate if he had applied or actually looked
for other
employment post the accident.
[81]
She stated that the plaintiff resides in a one room Zink house in
Mamelodi, and stays with his wife, who is a domestic worker
in
Pretoria. That the plaintiff s wife comes home over the weekends and
that during the week the plaintiff is all by himself, he
does his
domestic household and his wife helps over the weekend.
[82]
She stated that when the plaintiff came for assessment he was
mobilising on his own, that he was not assisted by a walking
stick or
a walking frame, that he displayed functional range of motion of both
the upper and lower limbs and neck and back, that
he could stand and
walk by himself without assistance. Further that he could kneel bend
crouch and squat.
[83]
She testified that the plaintiff was polite and co-operative
throughout the assessment and he did not appear to have or shown
any
signs of symptom magnification. She testified that the plaintiff wore
a bandage on the right hand and that when she asked him
what had
happened to his right hand, plaintiff indicated that he had been
attacked by thugs just as he got off a taxi that the
thugs had slit
the palm of his hand and he wore a bandage around it. She further
testified that the plaintiff never mentioned anything
to her about
the left knee injury due to an attack by thugs.
[84]
She testified that on her physical observations of the plaintiff,
plaintiff had a seven centimetre rail track scar on the left
ankle;
and that he had an 11 centimetre rail track scar on the lateral
aspect of the left ankle, indicating that he had an open
reduction
and internal fixation on the left ankle. She testified that the
plaintiff presented with full range motion of both upper
limbs, he
had an active range of motion further that plaintiff had an active
range of motion of the lower limbs/legs i.e. he could
move the hip,
the knees, the ankle and foot. That he was found to have functional
range of motion and that means that he can move
his limbs in any
direction that he wished. That however when she compared the left
ankle to the right ankle she noted that the
left ankle joint had
slight limitation when compared to the right. That there were no
indications of pain and discomfort on the
neck, back and pelvis.
[85]
She testified that the plaintiff was able to sit with no complaints
of pain or discomfort for approximately 3 hours and was
able to stand
in an upright position with no asymmetry of the shoulder, hips or
knees. That the plaintiff reported poor walking
endurance of 1
kilometre, i.e. that the plaintiff informed her that he could walk
for approximately 1 kilometre. She testified
that the plaintiff walks
without the assistance of crushes or a limp; that he walks with ease
and he is able to squad lift and
carry weights from the floor with
ease. He is able to assume a kneeling position without difficulty.
[86]
She explained that a valpar test entails the claimant lifting weights
in a pulling movement using both upper limbs; that the
plaintiff was
found to can manage to handle the light to medium loads when required
to push pull
[87]
She testified that she also conducted the mobility aspects of
evaluation that this entails the claimant balancing with each
leg
alternatively he is expected to walk forward and backwards to walk
with his hills and toes, maintain squatting position 20
times, climb
stair cases, kneel, crawl, stoop, bend and crouch for 20 seconds.
That the plaintiff performed well in the dynamic
posture position and
that his only minor concern was with his left leg balance which was
unstable when he was performing the task.
[88] On
pain modality she testified that the test measures the general level
of pain and that the plaintiff indicated level 2 pain
on the left
ankle and that he was not taking any pain medication for the ankle
pain, that to her (Zondo) this indicates that the
pain is not that
severe i.e. the plaintiff is not experiencing excruciating severe
pain that is functionally limiting. She stated
that due to the
limitation in the left ankle joint, the plaintiff would benefit from
occupational therapy intervention for joint
hygiene principles to
enhance participation in everyday activities and to prevent future
deterioration of the ankle joint, also
with the use of exertive
devices. Further that plaintiff would benefit from an orthopaedic
intervention, someone who could look
at possible padding of his shoes
because he complained of extensive pain due to extensive standing.
[89]
She testified that with orthopaedic and surgical intervention
plaintiff symptoms and pain can be managed, and that if his shoes

could be padded it could improve on his endurance in terms of
standing. She testified that the medical records did not indicate
a
shoulder injury. She further testified that when she considered the
plaintiff s pain level at the time of her evaluation and
Dr Khan's
recommendations, she thought that plaintiff can manage his pain with
pain killers or anti-inflammatory should he develop
osteoarthritis.
[90]
She testified that on her findings the plaintiff will still be
managing his position as a petrol attendant or light physical
job if
he uses medication. That there are a lot of people who have
osteoarthritis who are still working and who are using pain

medication/anti-inflammatory to manage osteoarthritis. And that to
some extend they might need to go for occupational therapy to
teach
them of methods on how to participate in tasks without aggravating
pain on the joints. She testified that in terms of the
mobility and
strength the plaintiff will be able to participate in an occupation
of a petrol attendant until his retirement age.
[91]
She testified that with general mobility the plaintiff was found to
be able to walk without assistance and at ease but he reported

difficulties with walking endurance, if he was walking for
approximately 1 hour, he reported pain and fatigue on the left ankle

and required to rest.
[92]
Further that the plaintiff complained of occasional discomfort when
carrying heavy loads.
[93]
She testified that when accident occurred, the plaintiff was
unemployed; that during the evaluation he was still unemployed.
That
the plaintiff never indicated to her that he was dismissed due to
drinking habits. She further testified that plaintiff never
provided
her with any educational qualifications. She further testified that
the plaintiff informed that he was previously dismissed
at his place
of employment because his mother was sick and he had to go look after
his mother; and that he informed her that he
resigned at his last
employment at SASOL because his mother was ill.
[94]
She confirmed that there are discrepancies in the employment history
that the plaintiff gave to the various experts including
her.
[95]
She stated that she considers the plaintiff to retain the
capabilities to participate in his previous occupation or any
occupation
falling within light physical work demands until normal
retirement age. That however, due to his age, his chances of securing
occupation
as a petrol attendant may have been compromised by his age
and as a consequence of the motor vehicle accident; the plaintiff
might
find himself prejudiced from occupation falling within medium
to heavy physical demands. That therefore the plaintiff is considered

an unequal competitor in the open labour market.
[96]
She testified that she does not agree with Ms Phasha, the plaintiff s
occupational therapist's opinion that the plaintiff should
refrain
from doing light physical work as a petrol attendant. That based on
her (Zondo) evaluation, the plaintiff is able to walk
without
assistance and that with recommended intervention and appropriate
treatment, and he can participate in petrol attendant
work. She
testified that plaintiff could be taught that when he is seated, that
he had a foot stool to elevate his ankle so that
it dies not bare
weight; and that when standing, plaintiff should be cautious if
standing for pro-longed period to shift his body
weight from left to
right.
[97]
Under cross-examination, she stated that she defers to an industrial
psychologist pertaining to plaintiff s earning capacity
because the
industrial psychologist comments on financial scope and levels; i.e.
the industrial psychologist is better qualified
to comment on loss of
earnings.
[98]
She reiterated that the plaintiff must be taught ankle hygiene, which
requires that when sitting down he should always have
a foot stool to
elevate his ankle.
[99]
She stated that, she is satisfied that at some point in his life the
plaintiff did work as petrol attendant. That in her opinion
the
plaintiff can still do the job of a petrol attendant. She stated that
the employer does not provide assistive devices like
a foot stool to
petrol attendance; further that an employee is required to request an
accommodation by his employer should he feel
that it would enhance
his participation in the work place.
[100]
She stated that should the plaintiff be employed as a petrol
attendant and he feel that the hygiene principled that he has
been
taught are not helping, he should request his employer to allow him
to bring a foot stool to work so that he could use that
during the
lunch breaks. She stated that should the plaintiff not have the foot
stool, he would have to apply the hygiene principles
that he would
have been taught during the therapy sessions. She stated that as a
petrol attendant the plaintiff could shift his
body weight during /in
between rest breaks.
[101]
She confirmed the contends of the joined minutes between herself and
Ms Phasha. She stated that though prove was not provided
to her that
plaintiff had achieved grade 11, she was satisfied that he had
achieved grade 11. She stated that pertaining to obtaining
collateral
information, they usually request clients to come to the assessments
to bring along their CV's, but that in 98% of the
cases they never
do; that notwithstanding, they still do proceed with the assessments
even without the CV's.
[102]
She confirmed that the plaintiff is best suited for sedentary and
light occupations. She stated that she disagrees with Dr
Khan's
opinion that the plaintiff is not fit for jobs requiring pro-longed
walking and standing. That in her opinion the plaintiff
can is fit
for such jobs taking into consideration the recommended intervention.
[103]
She confirmed that the job of a petrol attendant requires pro-longed
walking and standing. She stated that to some extent
she disagrees
with Dr Khan that due the prognosis of the left ankle and its effects
on plaintiff’s work capacity, he (Khan)
considers his ankle
injury as causing serious long term impairment or loss of body
functioning. She stated that without occupational
therapy
intervention, without removal of the internal fixation, without
conservative management of the orthopaedic surgeon it would
cause
serious long term impairment but however with conservative management
and pain medication and padding or cautioning of his
shoe to maintain
alignment it would not cause long term impairment. She stated that
she accepts Dr Khan's opinion to that to alleviate
plaintiff s ankle
pain; he/plaintiff would have to undergo arthrodesis.
[104]
She stated that the plaintiff is an unequal competitor in the labour
market having regard to his age, the injury sustained
and the limited
work experience. And that if he was to secure an occupation it would
have to be limited to sedentary to light.
That the plaintiff is
unequal competitor to occupations falling within medium to heavy
category. She stated that if the plaintiff
were not lucky to have an
employer that would accommodate him, his chances in the labour market
were minimal. She stated that considering
the rate of unemployment
currently in the country, there are chances that the plaintiff can be
unemployed until his retirement
age.
[l05]
Under re-examination, she stated that she took what the plaintiff
told her that he had grade 11 qualification. Further that
there were
discrepancies in the evidence the plaintiff gave to experts.
[106]
She stated that there is no duty on an employer to assist an employee
to apply principles to help him cope with his work.
That it is the
employee's responsibility to make the employer aware of how he could
be accommodated at work.
[107]
That concluded the evidence of the defendant.
[108]
The defendant did not to call its other experts, the orthopaedic
surgeon, Dr Gantz and the industrial psychologist Ms Grove,
despite
their reports having been provided to the court at the commencement
of the proceedings.
[109]
It is significant to note, from the extract of the joint minutes of
the parties' respective experts, set out below, that the
defendant's
own experts, especially the orthopaedic surgeon and the industrial
psychologist, agree to a great extent, if not completely,
with the
plaintiff s expert witnesses.
[110]
What follows are the extracts from the respective joint minutes:
Joint
minutes of the
orthopaedic surgeons
Dr DE Gantz and Dr I A
Khan, dated 11 August 2015:-
"1. Both doctors agree regarding history if
accident, injuries sustained, treatment received, social history,
occupational
history and past medical history.
2. Both doctors agree that he
is
presenting with painful right shoulder and
left ankle and he
is
unable
to stand for prolonged period.
3. Both doctors agree that he
is
suffering from painful right hand shoulder
with reduced function. Dr Khan suggests that it
is
due to right shoulder impingement syndrome. He
is
also suffering from
post-trauma osteoarthritis of ankle according to both doctors'
opinion.
4. Both doctors agree that he has almost 9% whole
person impairment due to his current problems.
5. Both doctors agree that
he
will not be able to carry out heavy physical work in future that
requires long hours standing or walking
[my underlining]
6. Both doctors agree that he will need both medical
and surgical treatments in future to improve his condition as
suggested in
respective reports.
"
Joint
minutes of the
occupational therapists
Ms A Phasha and Ms M
Zondo, dated 07 August 2015
“ ………
..
4 WORK ABILITY
We note
his age and
that he achieved grade 11 as his highest level of education. He
previously worked as a General assistant and Petrol
attendant from
1986 to 20I 0. At the time of accident under discussion, he
reportedly was unemployed and this was the case at the
time of both
consultants.
We further note
from
the report of Dr Khan that the client has already developed
osteoarthritis of the left ankle due to the fracture sustained
and it
will reportedly get worse in future. The left talo-navicular joint is
also developing osteoarthritis. It must be noted that
osteoarthritis
is a progressive disease and that prolonged/constant use of body
structure that has arthritis exacerbates pain in
the joints and also
exacerbates degeneration of the joints. He thus needs to preserve the
affected joints. On the basis, Ms
Phasha
advises that he should refrain from
performing medium, heavy and very heavy work so as to facilitate
joint hygiene and preserve
the affected joints. Furthermore, he
should refrain from performing tasks requiring working at levels
above head, prolonged walking
and walking on uneven terrain,
maintaining crouching and squatting positions as this aggravates pain
to his left ankle and right
shoulder.
It is agreed that
he
is best suited (Or sedentary and light occupations
with restrictions indicated above by Ms Phasha.
[my
underlining]
Ms Phasha
notes
that although he was unemployed at the time of accident, he has
always relied on his physical capacity to generate income.
With this
compromised and with disease progression, he will not be suited for
most work that his skill qualifies him for, that
is work requiring
manual labour /physical demanding as well as good mobility and
agility skills including his previous jobs as
General assistant and
Petrol Attendant. Furthermore, at the time that he undergoes surgery,
his physical capacity will farther
be reduced. Even with recommended
procedure and rehabilitation, he is not expected to regain his
premorbid status. His employment
options have thus been significantly
reduced and given his previous work experience, he would most
probably remain unemployment
for most of his life.
Ms Zondo
takes note
that he is 52 years unemployed at the time of accident, and holds a
significant work history as a petrol attendant.
The
accident has limited his vocational potential  to sedentary to
light physical work demands
.
Occupation as a petrol attendant fall under light physical work
demand. His occupational prospects of securing an occupation in
the
open market are further compromised by his age. Ms Zondo considers
him an unequal competitor in the open labour market or occupations

falling within medium to heavy physical demands. He however, if
lucky, could secure an occupation falling within light to sedentary

work
demands in the open labour market
with a sympathetic employer who would allow him an opportunity to
alternate between sitting and
standing alternatively within the
workplace.
Ms Phasha
agree
that a job of a Petrol Attendant falls within light category of work
however requires prolonged positional tolerance and mobility
skills
making him unsuited for this job.
We defer
to
Industrial Psychological opinion with regard to the impact of the
accident on his realistic employment prospects and his earning

capacity.
"
Joint minutes of the
industrial psychologists
Dr
W Pretorius/Ms L Coetzer (WP/LC) and M Grove (MG), dated 07 August
2015:
" ……………
2.
Pre-Accident: "But for the accident"
2.1.
We
agree to defer
to his personal
background, education and work history as per our respective reports.
We agree that
considering
his work history that he worked as a petrol attendant for most of his
working life. He for periods also worked as a
petrol station cashier.
2.2.
We
note
that he was dismissed in April
2012 due to being intoxicated on duty at the SASOL Petrol Station in
Kilner Park. He was thus unemployed
at the time of the accident.
2.3.
We
agree
that it be accepted that he had
reached his career ceiling in his job as petrol attendant. Further
progression is not foreseen and
he would probably have continued
working as a petrol attendant (cashier at the petrol station) for the
remainder of his working
life. Mr S. could not present proof of
income for his earnings at the time of the accident. It reported to
both parties that he
earned a basic salary of R2000 plus +-R300 in
tips fortnightly at the time. Ms Lee Wessels (Manager/Accountant) at
the SASOL Service
Station Kilner Park reported that the current rate
per hour for a petrol attendant is R20.87 and as a cashier at a rate
of R22.90
per hour. Accepting that a petrol attendant and cashier
must work a minimum of 45 hours per week. His minimum earnings as
petrol
attendant would equate to basic earnings of R939.45 per week.
Manually calculated this equals about R3756 per month (4.33 weeks
per
month) and about R45 079.20 p.a and as a cashier equating to about Rl
030.50 per week or R4465.16 per month (R53 581.92 p.a).
We
agree
to defer to the legal teams in
respect of quantification of possible overtime and gratuities
earnings.
We agree
that
his likely earnings would have been somewhere between these annual
earnings of R45 079.20 and R53 581. 92 per annum (2015 values).
2.4.
We
agree
to the application of
inflationary increases to retirement age of 65 years.
2.5.
We
agree
that considering his work
history some periods of unemployment was likely during his career.
We
also take note
of possible
pre-existing pathology and its potential impact on
his pre-accident earnings.
3. POST-ACCIDENT:
3.1.
We
note
that Mr S. was unemployed at the
time of the accident and he is still unemployed.
3.2.
We
take note
of the opinions of the
medical experts as discussed in our respective reports.
We
note
specifically from the expert
reports:
3.2.1.
Dr
Khan (Orthopaedic Surgeon): "This patient has almost
7%
of whole person incapacity due to right
shoulder impingement syndrome and left ankle post trauma
osteoarthritis with limited movements.
He is unable to perform this
work at present due to present incapacities. Future treatment can
improve his condition and he has
70% possibility to continue working
in his previous job.
"
"With
his current problem he will be able to function as petrol attendant.
His condition can improve with future treatment
and can be able to
continue his work or at least light duties until age of retirement.
"
3.2.2.
Dr
Gantz (Orthopaedic surgeon) stated that the combined WPI is 9%. In
view of the guarded prognosis of the left ankle and its effect
on his
work capacity Dr Gantz considers his ankle injury as causing serious
long term impairment or loss of body function. "From
an
orthopaedic perspective he is not fit for jobs requiring prolonged
walking and standing.
"
3.2.3.
Ms
A Pasha (Occupational therapist) indicated (as reported by WP/LC):
"Though he was unemployed at the time of the accident,
note is
taken that the claimant has always relied on his physical capacity
for work. With this compromised and with disease progression,
he will
not be suited for most work that his skill qualifies for him for,
that is work
...
requiring
manual labour/physically demanding as well as good mobility agility
skill including his previous jobs as a General assistant
and Petrol
Attendant, Furthermore, at the time that he undergoes recommended
surgery, his physical capacity will further be reduced.
Even with
recommended procedure and rehabilitation, he is not expected to
regain his premorbid status. His employment options have
thus been
significantly reduced and given his previous work experience, he
would most probably remain unemployed for most of his
life. This can
be attributed to the accident under discussion".
3.2.4.
Ms
Zondo (Occupational therapist) indicated (as per reported by MG): "Mr
S. has a long history of working as a petrol attendant.
Occupation
due to difficulties with extensive standing following the motor
vehicle accident. It is my opinion that in spite of
the injuries
sustained, with the recommended interventions. Mr S. retains the
capacity to participate in his previous occupation
as a petrol
attendant till normal retirement age.
"
3.3.
We
agree
that
he will likely be able to work as an accommodated cashier or even
sympathetically employed petrol attendant in future. [with
earnings
as agreed in paragraph 2.3 of this minute or less].
Mr
S. is now suited for light capacity work and as a result, he suffers
from curtailed career choices and his job freedom has been
affected.
He is a vulnerable employee who is at risk of being negatively
affected in his
employment
situation, probably being dependent on an understanding employer and
adaptations/accommodations in the work place. He
is
less competitive in the open labour
market when compared to his uninjured peers and its follows that he
is
at a
high risk of continuing to suffered extended periods of unemployment.
His work performance will be negatively
impacted, influencing his risk for loss of earnings due to not
working overtime (or even
normal working hours), risk for not
receiving increases or bonuses, disciplinary actions or dismissals.
He faces an increased risk
for unemployment and accepting employment
at an earnings level lower than expected. We agree his ability to
compete for employment,
retain employment and grow in earnings as
expected has been curtailed.
[My underlining]
3.4.
We
agree
from a past loss of earnings
perspective that Mr S. was unemployed at the time of the accident and
his ability to search for work was curtailed
after the accident until present, apparently due to his injuries.
This implies a past
loss of earnings.
We
defer to the view of the medical experts regarding a reasonable time
allowed for recuperation in light of the injuries sustained.
His
earnings at the time may be used as base to calculate the loss.
We
agree
unemployed periods from the date may
also be partly related to (a) his pre-existing left knee pathology
and (b) the general labour
market conditions (high unemployment).
3.5.
We
agree
from a future loss of earnings
perspective that:
3.5.1.
Appropriate
(WP/LC: significant) higher contingencies be applied considering the
increased risk for loss of future earnings due
to accident related
factors.
3.5.2.
The risk
for earlier than expected retirement be deferred to the appropriate
medical experts.
3.5.3.
Future
sick leave associated with the recommended treatment could constitute
a loss of income i.e. forfeited income when his sick
leave
exhausted/forfeiting overtime and allowances (if applicable).
3.5.4.
We
defer
to the appropriate experts regarding
appointment, if any, considering the impact of possible pre-existing
pathology in his left
knee and the pathology resulting from the
accident under review.
4.
Undertaking
(Conduct,
inclusive of psycho-legal activities, pertaining to Psychologists as
set by the Professional Board of Psychology of the
HPSSA - January
2004)
4.1.
We
declare
that we were not influenced by any
external sources by whatever means (telephonic consultations, written
instructions, comments
to or approval of the joint minute) other than
the relevant expert opinions, collateral information and labour
market analysis
in compiling the joint minutes.
4.2.
We
hereby declare that the aforementioned minute
represents our professional opinion with regard to Mr S.'s pre- and
post­ morbid
earnings capacity.
[111]
With regard to the plaintiff s future employability, it is
significant that the experts agree, as appears from the joint minutes

of the orthopaedic surgeons, the occupational therapists and the
industrial psychologists, extract of which are set out here above,

that the plaintiff will not be able to carry out heavy physical work
in future that required long hours standing or walking; he
is best
suited for sedentary and light occupations.
[112]
The industrial psychologists, as appears from the joint minutes,
significantly agreed that as a result of the accident
"Mr S. is now suited for light capacity work, as
a result, he suffers from curtailed career choices and his job
freedom has
been affected. He is a vulnerable employee who is at risk
of being negatively affected in his employment situation, probably
being
dependent on an understanding employer and
adaptations/accommodations in the work place. He is less competitive
in the open labour
market when compared to his uninjured peers and
its follows that he is at a high risk of continuing to suffered
extended periods
of unemployment. His work performance will be
negatively impacted, influencing his risk for loss of earnings due to
not working
overtime (or even normal working hours), risk for not
receiving increases or bonuses, disciplinary actions or dismissals.
He faces
an increased risk for unemployment and accepting employment
at an earnings level lower than expected. We agree his ability to
compete
for employment, retain employment and grow in earnings as
expected has been curtailed.
"
[113]
Based on facts, as well as the views expressed by the experts, which
were largely common cause, the pertinent question, arose
as to what
award would be fair and adequate compensation for the plaintiff in
respect of his loss of earnings and earning capacity.
Counsel for the
defendant submitted that the court should not find that the plaintiff
has suffered any loss of earnings because
the plaintiff did not
testify; that hence all that the experts stated in their report was
hearsay and should thus be disregarded.
[114] I
may state that it happens many a times that plaintiffs do not testify
and that parties agree that reports filed by the experts
in terms of
Rule 36(9)(a)
will be accepted as evidence before court. At the
commencement of the proceedings defendant's counsel informed the
court that the
plaintiff had objected to the late filing of Dr Gantz,
defendant's orthopaedic surgeon's medico-legal report, and Ms Grove,
the
defendant's industrial psychologist's medico-legal report.
[115]
On the court enquiring from the plaintiff s counsel what the position
was, the court was informed that the plaintiff no longer
objected to
the said reports and they were handed u by agreement between the
parties. This matter took three (3) days in court,
and obviously I
had the opportunity to read all the expert reports, I even questioned
the respective counsel on some or other aspects
of the respective
reports. After making an effort to have the reports mentioned above
admitted into court defendant's counsel realising
that these reports
are in fact favourable to the plaintiff s case now says the court
should simply ignore these reports as the
authors thereof had not
testified. Obviously Dr Gantz and Ms Grove (defendant's experts) were
not called to testify because their
reports are favourable to the
plaintiff s case. The question is why the defendant went through all
the trouble of having the reports
admitted only to later want the
court to ignore/disregard same?
[116]
It is clear that the plaintiff does not dispute the contents of the
reports of the defendant's orthopaedic surgeon and industrial

psychologist, hence at the commencement of the proceedings as already
mentioned, it was indicated by plaintiff s counsel that plaintiff
no
longer objected to defendant's late filing of these experts'
reports..
[117]
In their joint minutes, as mentioned above, the respective experts,
the defendant's orthopaedic surgeon and industrial psychologist

completely agree with the plaintiff s orthopaedic surgeon and
industrial psychologist on, for example, plaintiff employable
compromise.
[118]
From the medico legal report it appears that the defendant's
industrial psychologist, Ms M Grove checked and/or followed
up/confirmed on collateral information with Ms Wessels, an
accountant/supervisor at SASOL Service Station, Kilnerpark, plaintiff

s last place of employment that the plaintiff was indeed once in the
employment as a petrol attendant at SASOL. Plaintiff s industrial

psychologist, Dr Pretorius confirmed employment of plaintiff at Sasol
with Wessels in the presence of the defendant's industrial

psychologist.
[119] I
find it very opportunistic for the defendant to say that since the
plaintiff did not testify, the court should not accept
that he was at
any stage employed.  Surprisingly, there was much emphasis on
the cross examination of all the plaintiff's
witnesses (industrial
psychologist, occupational therapist and orthopaedic surgeon); as
well as defendant's occupational therapist,
that the plaintiff was
dismissed at SASOL because of intoxication at work. Surely the fact
that he was dismissed clearly shows
that he was at some stage
employed at SASOL [as a petrol attendant]. Basically the defendant in
anyway accepts this fact [that
the plaintiff was employed at Sasol]
for as long as it shows a negative aspect, i.e. dismissal of the
plaintiff; but otherwise
it/defendant wants the court not to accept
that plaintiff was never employed as long as it suits the defendant.
I need to mention
that the defendant went to the extent of refuting
the plaintiff's salary advices and actuarial calculations based on
these, which
would have shown that at some stage the plaintiff was
indeed employed. It is not clear to this court why the plaintiff's
legal
team did not pursue these. I will thus not delve into those
salary advices and actuarial calculations.
[120]
It may be so that plaintiff did not testify to confirm, amongst
others, that he was once employed as a petrol attendant at
SASOL, but
on probabilities, this court finds that at some stage, in fact about
two (2) months prior to the accident he was employed
at SASOL service
station, Kilnerpark as a petrol attendant. The two industrial
psychologists confirmed this collateral information
with Ms Wessels
who is part of the management at SASOL. I have no reason not to
believe Dr Pretorius in this regard. The fact that
Ms Wessels was not
called as witness does not detract from the fact that she did confirm
to both plaintiff and defendant's industrial
psychologists that the
plaintiff was indeed employed at SASOL until he was dismissed in
April 2012, about two months prior to the
accident in question
herein, and they had no reason not to believe her. The defendant was
overly difficult and technical, and unreasonably
so in my view. It is
very unfortunate that defendant's counsel seemed to personalise this
matter, which is not expected of an officer
of the court who is
supposed to assist the court in coming to a fair and just decision.
On more than one occasion I had to ask
counsel to calm down because
he would be so worked up and/or livid while cross examining plaintiff
s witnesses; hence I say he
seemed to have personalised the matter,
because otherwise there was no reason why he had to be so livid
during the proceedings.
[121]
The fact that the plaintiff was dismissed, may be twice or thrice, is
not a foregone conclusion that he would never be employed
again; as
clearly stated by Dr Pretorius in his evidence, that despite
plaintiff s previous dismissal he seems to have been able
to again
find employment as a petrol attendant. On facts that the defendant
wanted to rely on that, from the record it shows that
the plaintiff
was dismissed at least thrice this clearly indicates that even after
such dismissal somehow he managed to find himself
another job
somewhere else. Uninjured he on a balance of probabilities stood a
better chance to find another employment be it as
a petrol attendant
or some or other unskilled labour.
[122]
As much as there are inconsistencies in the various reports of the
experts on when, where or why he was dismissed; these are
factors
that the court would take into consideration in applying
contingencies. Interestingly he did disclose to the defendant's

industrial psychologist, Ms Grove that he was dismissed at Sasol for
intoxication.
[123]
As to whether plaintiff passed grade 11 or grade 12, this has no
impact on the kind of work he did. In fact the report of
Marlize
Grove, the defendant's industrial psychologist clears this up, so his
highest standard passed would be grade 11 since he
attempted but did
not pass grade 12. Surely as a petrol attendant one does not
necessarily need specific qualifications and one
really does not need
an expert to confirm what standard of education is required to work
as a petrol attendant. This is one of
those jobs that fall under
'labourer' in my view, and I do not think that there are specific
qualifications required to work as
a petrol attendant. As already
stated, surely even a person who did not go very far at school can be
employed as a petrol attendant,
as long as he or she can read and
write.
[124]
It is so that all the experts agree that the plaintiff is suited for
light work category. It maybe so that the work of a petrol
attendant
falls under light work however, one has to examine it further, on
what the job really entails. Surely court can take
judicial notice. A
petrol attendant stands walks from one point to the other for most
part of his/her duties. I have never ever
seen a petrol attendant
sitting down around the foyer at filling stations.
[125]
This brings to Ms Zondo's evidence that with recommended intervention
and appropriate treatment plaintiff is still suited
for the work of a
petrol attendant. That the plaintiff will have to get occupational
therapy training to learn to do body weight
shifting to alleviate
pressure on his left foot while on duty, and would also have to get
permission from his employer, who'll
have to accommodate him by
allowing him to bring a foot stool to work, so that he can
frequently/occasionally rest his left ankle/foot
during rest breaks,
to preserve ankle hygiene. Further that plaintiff should get
orthopaedic intervention by having his left shoe
padded so that he
can endure standing for a long period of time as a petrol attendant.
[126]
By merely suggesting what's set out in her evidence shows that she
appreciates the difficult position the plaintiff finds
himself in due
to the injury to his left ankle, which is undisputedly an injury he
sustained during the accident in question herein.
Clearly what she
suggests is very cumbersome. The plaintiff would first have to
undergo occupational training, then have his shoe
padded, then get a
sympathetic employer who will allow him to bring a foot stool to
work; this she/Zondo, who mentions in her report
that the plaintiff's
mode of transport are taxis, expects that a person like the plaintiff
who uses a taxi for transport, would
be expected to carry a foot
stool every day to work. This, in my view is not only cumbersome but
also unrealistic. Surely that
foot stool would in any event be used
only during lunch break, which can't be more than l hour [it is a
norm that lunch break is
l hour, even in terms of the Basic
Conditions of Employment ("BCOE")]. If one were to take
into account the working hours
of employees per BCOE, 8 hours less 1
hour [for lunch], it is 7 hours, at best 6 hours standing. This in my
view is a long period
for standing, going from petrol pump to the
window to pay, which is what happens all the time all day long with
petrol attendants;
it entails walking around a lot. Ms Zondo's
opinion/suggestion in this regard is unrealistic. Her approach to me
does not seem
to have been objective.
[127]
As already mentioned, the defendant, strategically did not call two
(2) of its experts (Dr Gantz-orthopaedic surgeon and Ms
Grove-the
industrial psychologist), whose opinions are favourable to the
position/condition of the plaintiff, to come and testify,
despite
their reports having already been handed up to court by agreement
between the parties. Their reports were not disputed
by the
plaintiff, and as appears from the joint minutes, they agree wholly
with the plaintiff's experts on the disposition of the
plaintiff
pertaining to employment.
[128]
It is also significant to mention Ms Phasha's evidence to the effect
that both she and the defendant's occupational therapist
have agreed
that the plaintiff's functional capacity is reduced purely due to the
injuries he sustained in the accident under discussion.
That the
previous knee injury does not have any effect on the plaintiff's
functional capacity. Dr Khan also testified that during
his
examination of the plaintiff, had there been any significant
pathology on his knee he would have picked it up. From Ms Zondo'
s
evidence and suggestions on how plaintiff should handle his ankle/leg
problem shows that the effect and sequelae of injury/fracture
to the
plaintiff's left ankle is significant and has direct impact on his
inability to can endure standing/walking for extended
period of time.
[129]
Dr Khan clarified to the court that his mentioning that after
surgical intervention plaintiff stood a 70% chance that he could
go
back to being a petrol attendant without any problems, was merely his
personal opinion at the time, but that that was not within
his
expertise to comment on, and that it falls within the expertise of
the occupational therapists to assess functional ability/capacity
of
a patient as they would conduct extensive tests to evaluate such. It
is important to mention that in fact in his report he did
mention
that he deferred to an occupational therapist in this regard, rightly
so.
[130]
As stated in AA
Mutual Insurance Association Ltd v Maqula
1978
(1) SA 805
(A)
"It is settled law that a trial Court has a wide
discretion to award what it in the particular circumstances considers
to be
a fair and adequate compensation to the injured party for his
bodily injuries and their sequelae.
"
[131]
The legal principles applicable to the assessment of damages for loss
of earnings and earning capacity have been set out on
numerous
occasions in the past in various case law. See
Gwaxula v Road
Accident Fund
2013 JDR 2291 (GSJ) where Moshidi J, stated that
"It is by now accepted that in the assessment of
these kinds of damages, which cannot be assessed with any amount of
mathematical
accuracy the court has a wide discretion. See for
example, A A Mutual Insurance Association Ltd v Maqula I 978 (!) SA
805 (A).
"
[132]
Having regard to all the facts before this court I am satisfied that
it has been shown, on a balance of probabilities that
the plaintiff
was employed as a petrol attendant for most part of his working
career, more specifically at least two (two) months
prior to the
accident, and that he has suffered a loss of earnings and of earning
capacity. It is so that there was little, factual
evidence placed
before me as to the plaintiff s employment history. I accept that he
was dismissed at at least one former work
place. The plaintiff did
not testify to tell the court about his employment history. However,
the fact that he was unemployed at
the time of the accident should
not be held against him; see
Gwaxula v Road Accident Fund
2013
JDR 2291 (GSJ) where Moshidi J stated the following:
"....each case must be assessed on its own
circumstances. In my view,
in the
present matter, the established facts of the plaintiff’s
unimpressive work history. and the tact that he was unemployed
at
the time o( the collision, must not overly be held against him.
[my underlining]
It is
indeed trite that the rate of unemployment in our country, especially
among unskilled and uneducated and previously disadvantaged
members
of the population, was unacceptably high. The current rate of
unemployed people in South Africa is at 25.6 percent. The

circumstances of the plaintiff were no different. Even without the
collision, he would still have found it difficult to secure

employment with a Grade 11 level of education only. These factors
were indeed difficult to ignore completely. See Burger v Union

National South British Insurance Company
[1975] 3 All SA 647
(W) at p
650:
"A related aspect of the technique of assessing
damages is this one; it is recognised as proper in an appropriate
case, to
have regard to relevant events which may occur, or relevant
conditions which may arise in the future. Even when it cannot be said

to have been proved, on a preponderance of probability, that they
will occur or arise, justice  may require that what is called
a
contingency
allowance be made for a
possibility of that kind. If, for example, there is acceptable
evidence that there is a 30 per cent chance
that an injury to a leg
will lead to an amputation, that possibility is not ignored because
30 per cent is less than 50 percent
and there is therefore no proved
preponderance of probability that there will be an amputation. The
contingency is allowed for
by building in the damages a figure
representing a percentage of that which would
have been included if amputation had been a
certainty. That is not
a
very satisfactory way of dealing with such difficulties, but no
better way exists under our procedure.
"
[133]
Issues to do with the plaintiff s unimpressive work history, the rate
of employment in the country, are issues to be addressed
on
contingencies. It is so that the rate of unemployment in our country,
especially among unskilled and uneducated and previously

disadvantaged members of the population, is unacceptably high.
According to statistics the current rate of unemployed people in

South Africa is at about 26.7%. The circumstances of the plaintiff
are no different. Even without the collision, he would still
have
found it difficult to secure employment with a Grade 11 level of
education only. These factors are indeed difficult to ignore

completely. See
Burger v Union National South British Insurance
Company
[1975] 3 All SA 647
(W) at p 650:
''A related aspect of the technique of assessing
damages is this one; it is recognised as proper in an appropriate
case, to have
regard to relevant events which may occur, or relevant
conditions which may arise in the future. Even when it cannot be said
to
have been proved, on a preponderance of probability, that they
will occur or arise, justice may
require
that what is called a contingency allowance be made for a possibility
of that kind. If, for example, there is acceptable
evidence that
there is a 30 per cent chance that an injury to a leg will lead to an
amputation, that possibility is not ignored
because 30 per cent is
less than 50 percent and there is therefore no proved preponderance
of probability that there will be an
amputation. The contingency is
allowed for by building in the damages a figure representing a
percentage of that
which
would have been included if amputation had been a certainty. That
is not a very satisfactory way of dealing with
such difficulties, but no better way exists under our procedure."
[134]
It is now well-settled that contingencies, whether negative or
positive, are an important control mechanism to adjust the
loss
suffered to the circumstances of the individual case in order to
achieve equity and fairness to the parties. Therefore, as
stated in
Nicholson v Road Accident Fund
(07/11453) [2012] ZAGP JHC 137
(30 March 2012), both favourable and adverse contingencies must be
taken into account, as stated
also in
Southern Insurance
Association v Bailey N.O.
1984 (1) SA 98
(A) at 117C-D:
"The generalisation that there must be a
'scaling down' for contingencies seems mistaken. All 'contingencies
'
are not adverse and all 'vicissitudes are not
harmful. A particular plaintiff might have had prospects or chances
of advancement
and increasingly remunerative employment. Why count
the possible buffets, and ignore the rewards of fortune. "
[135]
There is no hard and fast rule regarding contingency allowances. See
Koch,
The Quantum Yearbook
(2011) at 104 where the following
is stated:
"General contingencies cover a wide range of
considerations which may vary from case to case and may include:
taxation, early
death, saved travel costs, loss of employment,
promotion prospects, divorce, etc. There are no fixed rules as
regards general contingencies."
[136]
Having due regard to all factors in the light of the particular
circumstances of the matter I am of a considered view that
it would
be fair, just and equitable to provide for a contingency of 50 per
cent in respect of past loss of income as well as future
loss of
income. There is in principle, in my view, no reason for
distinguishing between the two categories of income for purposes
of
contingencies.
[137] I
the result I make the following order:
A
1.
The defendant
shall subject to a 10% apportionment in favour of the defendant, pay
to the plaintiff R300 000.00 in respects of general
damages.
2.
Interest on
the amount in paragraph 1 above at the applicable
mora
rate, presently 10.25o/o
per
annum,
calculated fourteen (14) days of the
date of this judgement until date of payment.
3.
The defendant
is ordered to furnish to the plaintiff an undertaking in terms of
section 17
(4) (a) of the
Road Accident Fund Act 56 of 1996
in
respect of 90% of the future accommodation of the plaintiff in a
hospital or nursing home or treatment of or rendering of a
service or
supplying of goods to him, arising from the injuries sustained by him
in a motor vehicle accident which occurred on
16 June 2012, after
such costs have been incurred and upon proof thereof.
4.
The defendant
is ordered to pay the plaintiff s taxed or agreed costs on the High
Court scale, as well as plaintiff s costs as far
as the experts are
concerned, including the costs of obtaining reports and the
reasonable preparation, reservation and qualifying
fees of the
following experts:
4.1.Dr
Imran Khan (Orthopaedic surgeon)
4.2.Adelaide
Phasha (Occupational therapist
4.3.Dr
Willie Pretorius (Industrial psychologist)
B
1.
It is
declared that the defendant shall, subject to apportionment of 10% in
its favour, pay to the plaintiff a sum for the past
and future loss
of earnings to be calculated as follows:
1.1.The
plaintiff s past loss of earnings to be calculated based on actual
hourly rate for petrol attendants [in accordance with
Bargaining
Council wage agreement Retail Motor Industry Organisation (RMI)], as
at 16 June 2012
1.2.The
plaintiff s future loss of earnings as a result of the accident to be
calculated at R45 079. 20 per annum, with inflationary
increases to
retirement age 65years
1.3.a
contingency deduction of 50o/o is to be applied to B1.1 above
1.4.a
contingency deduction of 50% is to be applied to B 1.2 above
1.5.The
actuaries are to apply the usual assumptions to the calculations
based on 1.1 to 1.4 above.
2.
In the event
of the parties not being able to agree on the amount to be calculated
as a result of this declaration, the matter may
be set down before me
on a date to be arranged with my registrar. If the sum is agreed, and
the plaintiff wishes to obtain judgment
for the said sum, the matter
may be similarly set down.
_____________________________
L M
MOLOPA - SETHOSA J
JUDGE
OF THE HIGH COURT