About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 850
|
|
Ramakgop v Road Accident Fund (69859/2014) [2016] ZAGPPHC 850 (15 September 2016)
OFFICE
OF THE CHIEF JUSTICE
(GAUTENG
DIVISION. PRETORIA)
CASE
NO: 69859/2014
DATE:
15 SEPTEMBER 2016
In
the matter between
MODJADJI
ELIZABETH
RAMAKGOP
..............................................................................
APlaintiff
And
THE
ROAD ACCIDENT
FUND
.............................................................................................
Defendant
JUDGMENT
Fourie
AJ
1.
This is a claim for damages arising from
a motor vehicle collision that occurred on 6 August 2010 between two
motor vehicles, one
of which was driven by the plaintiff.
2.
At the outset I was informed by counsel
that the issue of liability had been settled and that the defendant
had agreed to pay 100%
of the plaintiff’s proven or agreed
damages.
3.
I was further informed that agreement
had been reached in respect of the following heads of damages:
3.1.The defendant had accepted
liability for the plaintiffs past medical expenses in the amount of R
9 767.00.
3.2.The defendant had agreed to
pay an amount of R 300 000.00 in respect of the plaintiffs claim for
general damages.
3.3.The defendant had given an
undertaking to cover her claim for future hospital, medical and
related expenses.
4.
The plaintiff did not suffer a past loss
of income and no past loss of income is claimed. The issue that
remains in dispute is accordingly
the plaintiffs loss of future
earnings and/or loss of earning capacity.
5.
The parties agreed to the submission of
a number of expert reports as the only evidence to be adduced for
purposes of quantification
of the plaintiffs damages. Argument before
me was directed at the contingency deductions that should be made
from the calculations
of the actuary, G London of Human & Morris
Consulting Actuaries.
6.
In addition to the actuary, the
plaintiff gave notice of her intention to adduce the evidence of the
following experts:
6.1.
Dr Theo Enslin, an independant medical
examiner;
6.2.
Dr Hans Enslin, an orthopaedic surgeon;
6.3.
Dr Willie Pretorius, an industrial
psychologist;
6.4.
Ms Anneke Greeff, an occupational
therapist; and
6.5.
Dr Kobus Truter, a clinical
psychologist.
7.
During the pre-triai conference the
defendant accepted the facts contained in the medical legal reports
filed by the plaintiff,
and the opinions therein contained are
accordingly common cause. The defendant subsequently delivered a
report by an orthopaedic
surgeon, Dr MM Maine, to which the plaintiff
did not object.
8.
The plaintiff is a 59 year old woman who
was 53 years old when the collision occurred in 2010. At the time of
the collision, she
was employed as a Chief Professional Nurse at the
Modimolle Clinic, and in January 2011 she was promoted to the
position of an
Acting Assistant Manager.
9.
The injuries sustained by the plaintiff
include soft tissue injury to the neck, to the back, to both
shoulders and to both knees.
As a result of the injuries sustained,
the plaintiffs diagnosis is cervical spondylosis with chronic pain,
lumbar spondylosis with
chronic pain, left shoulder acromioclavicular
osteoarthritis with chronic pain and reduced range of motion and left
knee osteoarthritis.
10.
At the time of the collision, the
plaintiff suffered from a pre-existing condition, due in part to her
age and in part to injuries
suffered in a prior motor vehicle
collision during May 2010. It was submitted by the plaintiffs counsel
that the pre-existing condition
was either aggravated or rendered
symptomatic by the collision in question.
11.
I was referred to the main findings of
the orthopaedic surgeon appointed by the defendant, namely the
following:
11.1.
The plaintiff will continue to suffer
worsening pain with the passage of time and may well be a candidate
for surgery in the future.
11.2.
It is envisaged that she will start to
experience pain related activity limitations and participation
restrictions in the medium
to long term.
11.3.
Based on the injuries sustained and her
current state, the plaintiff will not be able to cope with the
demands of her work for much
longer.
11.4.
It is highly unlikely that the plaintiff
will be able to continue with her
employment
in its present form.
12.
The plaintiffs orthopaedic surgeon
assessed the plaintiffs disability for work, considering the pain in
her back, neck, shoulders
and knees, to be 15%. He apportioned 50% of
this disability, as well as her early retirement, to her preexisting
condition,
and 50% to the relevant collision.
13.
I was also referred to the main findings
in the report of the occupational therapist, which are the following:
13.1.
The demands of the plaintiff’s
work, both pre- and post accident, were found to be similar, falling
into the sedentary-light
ranges.
13.2.
The plaintiff requires a work
environment that allows for regular change of posture between
sitting, standing and walking.
13.3.
Should she require surgery prior to her
retirement age, she will have difficulty in returning to her place of
employment and coping
with sustaining the required levels of
efficacy.
13.4
This is not only due to her physical
disposition, but also due to her psychological and emotional
disposition. (According to the
report of the clinical psychologist,
the plaintiff has symptoms of post-traumatic stress disorder and
depression.)
14.
Plaintiffs counsel emphasised the
possibility of early retirement from age 60, mentioned in the report
of the industrial psychologist.
It in fact appears from the report
that it is more than a possibility, as according to Dr Pretorius, the
plaintiff has already
taken the decision to take early retirement in
2017, which retirement, I assume, will coincide with her 60
th
birthday in April 2017. It is undisputed that the normal retirement
age for the plaintiff would otherwise have been the age of
65.
15.
The actuary calculated the capitalised
value of the plaintiffs pre-morbid future earning capacity to be the
amount of R 5 331 302.00.
Taking into account the early retirement at
age 60, the capitalised value of the post-morbid earning capacity is
R 4 234 078.00,
a difference of R 1 097 224.00.
16.
The aforesaid calculations have taken
into account that she will receive a pension from age 60, which will
contribute to her monthly
income. Her counsel, Mr Botha, submitted
that the pension that the plaintiff will receive from age 60 will be
calculated with reference
to the salary that she earned in the two
years prior to that date, whereas had she retired at age 65, her
pension would have been
calculated with reference to a higher amount,
accepting that her salary would have increased with the passage of
time as it has
been doing. On the other hand, Dr Pretorius noted in
his report that the plaintiff has reached the maximum notch for an
operational
manager, and can expect only inflationary related
increases until the time of her retirement.
17.
The starting point of Mr Botha’s
argument was to deduct 50% from the calculated loss of income, the
reason being the opinion
expressed by Dr H Enslin that 50% of her
disability should be apportioned to this particular collision, and
the other 50% to her
pre-existing condition. Dr Maine did not express
an opinion on this issue.
18.
Mr Botha then submitted that with
regards to the plaintiff’s future earning capacity, a 10%
contingency be deducted from her
income but for the accident, and
that a 20% contingency should be deducted from the income having
regard to the accident. The latter
contingency was based on the view
of Dr H Enslin that the plaintiff had suffered a 15% reduction in her
abilities to perform her
work. This provided for a “spread”
of 10%.
19.
Mr Westebaar, who appeared for the
defendant, emphasised the plaintiffs preexisting conditions. He
criticised the report of
Dr H Enslin for failing to discuss the
impact of the injuries sustained by the plaintiff in the prior
collision, and for failing
to specify the percentage that should be
apportioned to the age of the plaintiff, which percentage to the
prior collision and which
to the relevant collision. The impact of
the prior collision had not been properly investigated, or so he
argued, and in his submission
those injuries had a significant impact
on the loss suffered by the plaintiff. He also submitted that, for
these reasons, the assessment
of a 15% reduction in work capacity,
could have been much lower.
20.
In my view, Mr Westebaar’s
submissions cannot be upheld. Apart from the fact that it is apparent
from the report as a whole,
that all factors, including the previous
collision, were considered and taken into account, the defendant did
not dispute the content
of Dr Enslin's report. The defendant had
sufficient opportunity to interrogate the extent and impact of the
plaintiff’s injuries
sustained in the collision during May
2010. It did not do so. The defendant did not undertake its own
investigation into the impact
of the previous collision, and in fact,
its own expert did not express any opinion in this regard.
21.
Defendant’s counsel further
submitted that there had been no decrease in the patrimony of the
plaintiff’s estate. She
had still progressed in her career, she
had returned to the same job and even assumed additional
responsibility. The collision
had evidently not impacted on her
earning capacity.
22.
However, not only the plaintiff’s
experts, but also the expert appointed by the defendant, accepted
that some loss of productivity
would be experienced and that an early
retirement is anticipated, and that a contingency should be allowed
in this regard.
23.
Mr Westebaar proposed a 15% deduction on
both pre- and post-morbid contingencies, due to the lack of insight
into the impact of
the prior collision on the plaintiffs claim. I
have already stated that this approach cannot be upheld.
24.
Although there are several factors
mentioned by the parties’ respective experts, which may well
have impacted on the plaintiffs
earning capacity, the eventuality of
any of the factors materialising is significantly reduced by the
short period remaining in
the plaintiffs career, whether she takes an
early retirement or not.
25.
In determining the contingency to be
applied to the income, but for the collision, the short period
remaining until the plaintiff
would have been required to retire in
any event, being six and a half years, is decisive. A fair deduction,
in my view, is 5%.
26.
I am led to believe by the report of Dr
Pretorius, that the plaintiff intends retiring in 2017, and if this
coincides with her 60
th
birthday, is a date just 7 months from now (and 8 months after date
of the calculation of the actuary). I will accept, in favour
of the
plaintiff, and only because her retirement in 2017 was not submitted
as a fact by either counsel, that her retirement in
2017 is a
probability and not a certainty. For this reason only I am inclined
to provide for a small contingency, it otherwise
being difficult to
conceive on what basis, given the time from now until her retirement,
provision should be made for contingencies.
The actuary has already
calculated the plaintiffs income to retirement age 65 and the actuary
has also calculated the plaintiffs
income to retirement age 60. The
difference is R 1 097 227.
27.
The plaintiffs claim for loss of earning
capacity, taking into account a 5% deduction in respect of pre morbid
earnings and a 2.5%
deduction in respect ol post morbid earnings, is
an amount of R 936 510. From this amount, 50% musl be deducted.
28.
Accordingly, the following order is
made:
28.1.
The defendant is ordered to pay to the
plaintiff an amount of R 468 255,
in
respect of future loss of earning capacity.
28.2.
The defendant is ordered to pay interest
on the amount set out in paragraph 28.1 at 10.5% per annum, from 14
days after the date
of this judgment to date of payment.
28.3.
It is recorded that the defendant has
agreed to pay an amount of R 9 767.00 in respect of the plaintiff’s
past medical expenses.
28.4.
It is recorded that the defendant has
undertaken 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 the plaintiff for 100% of the cost of future accommodation
in a hospital or nursing home or treatment of or rendering
of a
service for supplying of goods to the plaintiff, due to injuries
sustained by her in the collision and the sequelae thereof,
after
such costs have been incurred and upon proof thereof.
22.2
It is recorded that the defendant has
agreed to pay an amount of R 300 000.00 in respect of general
damages.
22.3
The defendant is ordered to pay the
plaintiffs costs of suit, including the qualifying expenses of the
following experts:
22.3.1
Dr TJ Enslin;
22.3.2
Dr HB Enslin, orthopaedic surgeon;
22.3.3
Dr Willie Pretorius, industrial
psychologist;
22.3.4
Ms Anneke Greeff, occupational
therapist; and
22.3.5
Dr Kobus Truter, clinical psychologist;
22.3.6
Human & Morris, actuaries.
H
R FOUR1E
ACTING
JUDGE OF THE HIGH COURT
FOR
THE PLAINTIFF ADVOCATE; E BOTHA
ATTORNEYS:
SAVAGE JOOSTE & ADAMS INC, PRETORIA
FOR
THE DEFENDANT ADVOCATE: DE WESTEBAAR ATTORNEYS: TAU PHALANE INC,
PRETORIA