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[2016] ZAGPPHC 797
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Swart v Road Accident Fund (69898/2016) [2016] ZAGPPHC 797 (6 September 2016)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 69898/14
DATE:
6/9/2016
In
the matter between
RIAN
..
SWART
......................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
…...............................................................
DEFENDANT
J
U D G M E N T
MOOSA
AJ:
INTRODUCTION:
[1]
The Plaintiff was involved in an accident on the 1st March 2012, he
lodged his claim with the defendant on the 5th December
2013 and
summons was served on the defendant on the 25th September 2014.
[2]
The matter was set down for trial on the 19
th
August 2016
and on the trial date both merits and quantum remained in dispute.
[3]
In chambers counsel indicated that on the morning of the trial the
following issues were resolved:
[3.1]
Merits conceded 100% in favour of the plaintiff.
[3.2]
Defendant tendered an undertaking to pay plaintiffs future medical
expenses.
[3.3]
Plaintiff's claim for general damages was rejected and referred to
the Health Professions Council for adjudication.
[3.4]
Later during the hearing it was confirmed that the plaintiff would
not be pursuing a claim for past medical/hospital expenses.
[4]
The only issue requiring adjudication being the question of the
plaintiff's loss of earnings and earning capacity.
[5]
Defendants counsel indicated that defendant would seek a postponement
of the matter in order to afford the defendant an opportunity
to file
expert reports.
[6]
In opposition, plaintiff's counsel confirmed that the defendant had
notified the plaintiff of its intention to call experts
at a
pre-trial held two days before the trial date. On enquiry defendants
counsel and legal representative were unable to provide
any reason as
to why the defendant had not been able to procure expert reports
timeously in terms of the court rules.
[7]
The speculative supposition by defendants counsel that if defendant
were given the opportunity to file expert reports, this
would
possibly assist the plaintiff in his claim for general damages,
simply had no factual merit. The defendant had knowledge
of the
plaintiffs claim for almost two years before the matter was set down
for trial to obtain expert opinion to test this supposition
and to
consider plaintiffs loss of earnings and earning capacity. No
explanation was tendered
why
this was not done.
[8]
The Road Accident Fund (RAF) provides a social security net to the
country and economy by making available compulsory social
insurance
cover to all users of South African Roads. It follows therefore that
in ensuring that a complainant is fairly compensated
the RAF and its
representatives are legally and morally bound (my emphasis) to not
waste public funds in tardy litigation.
[9]
I accordingly found no reason to entertain the defendant's
application for a postponement and further prejudice the plaintiff.
The hearing of the matter to proceed on the basis of the plaintiff's
expert reports.
LOSS
OF EARNINGS / LOSS OF EARNING CAPACITY
The
claim:
[10]
The plaintiff's amended particulars of claim seek compensation of
R1500
000.00
in respect of loss of earnings and earning capacity. An actuarial
report dated 8
th
August 2016 assessed the
capitalised value of the plaintiffs earnings/ capacity in the sum of
R1 407 026.00 without the application
of contingencies. Common cause
facts:
[11]
It is common cause that in the accident the plaintiff sustained soft
tissue injuries to his cervical spine, lumbar spine, an
injury to his
left scapula and a laceration to the left acromioclavicular joint.
Plaintiffs evidence that the soft tissue injury
was in fact a
"hanging arm" and that the brachia! plexus is the same as
an amputated arm was not disputed by the defendant
[12]
Pre morbidly the plaintiff was a fully qualified firefighter and
paramedic with no physical impediments. That pre -morbidly
plaintiff
suffered personal problems viz; the suicide of his child, divorce,
frustration at work having to do paper work
,
depression resulting in plaintiff resigning from his employment as a
fireman and accepted employment at ER24 as a paramedic at
a decreased
remuneration.
[13]
Post morbidly the plaintiffs experts confirm that he is compromised
physically to do the job as a firefighter/ paramedic and
plaintiff is
emotionally and psychologically affected and that his Post traumatic
stress disorder (PTSD)has contributed to his
inability to do the job
that he was trained to do rendering him compromised and vulnerable.
[14]
Between the periods March 2012 to May 2013 plaintiff was employed at
ER24 as a basic ambulance assistant earning a basic salary
of
R6609.00p/m pre-accident and earning an average of R10 930.73 p/m.
[15]
From June 2013 to date (post-accident) plaintiff has been employed as
a First Aid instructor at Safety Training Academy earning
R4200p/m
with no benefits.
Evidence:
[16]
Plaintiff and Dr Pretorius {Industrial psychologist) gave testimony
and the following,evidence was led:
[16.1]
That Plaintiff accepted employment at ER24 as a paramedic at a
decreased remuneration level on the basis that the anticipate
overtime that plaintiff would realistically be able to earn would
yield an expected earnings of between R12000 to R15000 p/m. This
was
undisputed by the defendant.
[16.2]
That the accident occurred on the first day that Plaintiff started
employment with ER24.
[16.3]
The plaintiff testified that due to the injuries sustained in the
collision he struggled to lift patients, to stand and travel
for
prolonged periods of time and that he experienced concentration
problems as he has pain
in
his back and neck every day. He further testified that he is very
anxious when driving and due to these complaints he is no longer
able
to attend to duties as a paramedic/ ambulance man or firefighter
[16.4]
As a result plaintiff was tasked with a more administrative type
position resulting in him resigning due to frustration of
not being
able to do the type of work that he testified he was born for. In
this regard plaintiff tendered as evidence 39 certificates
bearing
testimony to his abilities and predisposition as a firefighter/
paramedic.
[16.5]
Plaintiff testified that post morbidly he is now only suited to
participate in an academic and not a practical way as a firefighter
and that in his residual capacity he is severely vulnerable and
compromised. This was corroborated by Dr Pretorius
[16.6]
Under cross examination the plaintiff's testimony was not dented in
any way, defendant made a dismal attempt to suggest that
the
plaintiffs psychological sequelae are as a result of the suicide of
the plaintiffs son. Plaintiff confirmed that he was indeed
traumatized by the death of his son but it his major depression and
psychological sequelae arise from his accident related physical
limitations, the Post traumatic stress disorder (PTSD) and his
impecunious financial position.
[16.7]
Plaintiff was cross examined on the issue of approximate overtime
shifts that a paramedic may attend to. Plaintiff responded
that he
was used to working under pressure and that with one patient in
accident a paramedic could spend up to 13 hours. He further
testified
that there could be between 250 -350 calls per month. The defendant
presented no alternative.
[16.8]
It was further suggested to the plaintiff that the reason why
plaintiff's earnings had dropped at his current employment
was
because the company had financial problems. This issue was corrected
by Dr Pretorius who testified that the financial difficulties
of the
plaintiff's employer would only further exacerbate the plaintiff's
vulnerability in the open labour market.
[16.9]
Dr Pretorius testified that because of the plaintiffs limitations as
a result of the sequelae of the accident plaintiff is
very
vulnerable, that he cannot find alternative employment at a better
level . The academy where plaintiff is employed is located
in
Stilfontein where all their clients are miners and that the mines
have cut down.
[16.1O]
That the plaintiffs position at the academy is that he is
accommodated , that he currently instructs on theoretical issues
whilst other trainers come in to do the practical's. In these
economic times companies have a lot of people to choose from and
thus
with the plaintiffs limitations he would be severely compromised and
vulnerable.
[16.11]
Under cross examination Dr Pretorius testified that having regard to
the objective facts and the extracts of all the other
supporting
experts that a significantly high post morbid contingency should be
applied to the calculations of the plaintiffs loss
of earnings.
Defendant did not dispute this.
Contingencies:
[17]
It is instructive that the defendant made no submission on
contingencies to be applied. Under cross examination of the plaintiff
the defendant alluded to the fact that the postulated earnings of the
plaintiff could have been reduced. The defendant had no basis
upon
which to speculate and peg such reduced earnings. Defendant was
directed to address this issue in its argument on contingencies,
however the defendant simply did nothing.
[18]
Plaintiffs counsel pointed out that in formulating their calculations
actuaries Human and Morris had used the sum of R7500
as the
plaintiffs current earnings whilst plaintiff was in fact only earning
R4500. This calculation therefore was to the detriment
of the
plaintiff. In so doing, fortifying the recommendation by Dr Pretorius
that substantially higher contingencies should be
applied in
calculating loss of earnings.
[18]
The defendants earning capacity being uncontested, the plaintiffs
contention that the applicable contingencies of 10% in respect
of
past loss of earnings and 35% in respect of future loss of earnings
being completely uncontested
provides
no room for intervention.
[19]
The Appeal court in the matter of
Van Der Plaats v South African
Mutual
Fire and General Insurance Co Ltd
93) SA
105
(A)
found as follows:
"In
an action for damages for bodily injuries caused by the negligence of
the defendant or the driver of a motor vehicle insured
by the
defendant, in assessing damages, the amount allowed by way of
deduction for contingencies
is variable and is very closely
connected with the circumstances of
the particular case
in which the trial Judge has to exercise his discretion.
"
[20]
There is no evidence before me to justify a deviation from the claim
and calculation presented by the plaintiff.
In
the result I make the following order:
1.
The defendant is ordered to pay the Plaintiff the sum of R1 307
134.00 in full and final settlement of the plaintiff's claim
in
respect of past and future loss of earnings/capacity.
2.
The Plaintiffs claim in respect of general damages is formally
rejected by the defendant and is separated from the remainder
of the
plaintiffs claim and is postponed
sine die
for referral and
adjudication by the HPCSA.
3.
The Defendant is ordered to furnish the Plaintiff with an undertaking
in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of
1996
, to compensate plaintiff for 100% of the cost of future
accommodation in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to the plaintiff
resulting from injuries sustained by the plaintiff as a result of the
accident
that occurred on the 1st March 2012.
4.
The defendant is ordered to pay the plaintiffs taxed or agreed party
and party costs including the costs of the examinations
and obtaining
the plaintiffs medico-legal reports, as well as the qualifying and
reservation fees of Dr Pretorius ( Industrial
psychologist) on the
High Court scale up until and including the 191 August 2016.
5.
There is no Contingency Fee Agreement applicable.
DATED
AT JOHANNESBURG ON THIS THE 30
th
DAY OF AUGUST 2016
__________________________
MOOSA
AJ
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Plaintiff:
....................................
Adv
P J Vermeulen
…
.............................................
Instructed
by Savage Jooste and Adams
Defendant:
...............................
Adv
M Pienaar
…
.............................................
Instructed
by T M Chauke Inc
DATE/S
OF HEARING:
19 August 2016
DATE
OF JUDGMENT: