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[2016] ZAGPPHC 1131
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S.A.P v Road Accident Fund (68868/2012) [2016] ZAGPPHC 1131 (11 November 2016)
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPUBLIC
OF SOUTH AFRICA
Date of
hearing: 19 October 2016
11/11/2016
CASE
NO: 68868/2012
NOT
REPORTABLE
NOT OF
INTEREST TO OTHER JUDGES
REVISED
In the matter
between:
S A
P
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER AJ
1. The material issue for
determination before me was whether, and if so, to what extent, the
plaintiff, S A P ("P"),
enjoyed a claim against the
defendant ("the RAF"), for past and future loss of income.
At the hearing, I was informed
by the parties that I was at liberty
to examine and analyse all expert reports made available to the
Court.
2. By agreement between the
parties, P's claim to payment of the sum of R79 654.00 for past
medical expenses was to be postponed
sine die, this because of her
failure to produce the supporting vouchers to justify the claim.
3. P, born on 2 April 1970, (39
years old at the time), was involved in a motor vehicle collision on
11 February 2010, when a car
driven by her was hit by another car.
The RAF conceded 100% negligence on the part of the driver of the
other car.
4. The injuries sustained by her
are described in the report of orthopaedic surgeon Dr Hans B Enslin
("Enslin"), dated
20 August 2014. Enslin could not
recommend a claim for general damages, as these were not "serious
injuries" and no complications
had occurred or were likely to
occur. Based on P's account, documents, his physical examination, and
radiographic studies, Enslin
could describe the injuries as
4.1
an abrasion on her forehead;
4.3
a soft tissue injury to her cervical spine;
4.3
a soft tissue injury to her back.
5. P was treated at the Ermelo
Medi Clinic on the same day, on an out patient basis. She was given
an injection. Later on, she was
prescribed pain medication for the
pain in her right hip and buttock. In October 2010, she developed
pain in her back, buttock,
right hip and neck. She was absent from
work for 3 days. She was later absent from work for 6 days in
November 2010, for chest
pains.
6. At the time, P was employed
as a senior service agent by Liberty Life in Ermelo. She had started
work there in 2007.
7. According to Enslin:
"Writer (Enslin) believes that this accident can have an
effect on Ms P's ability to be promoted within her organisation, and
although she is capable of working, her work speed will decrease at
a
faster rate, had she not been injured on 11 February 2010.”
8. P filed the medico-legal
reports from the following experts, namely, orthopaedic surgeon
Enslin, occupational therapist, Wilma
van der Walt ("Van der
Walt"), clinical psychologist, Francien de Ridder ("de
Ridder"), industrial psychologist,
Dr Willie Pretorius
("Pretorius"), and actuary Johan Sauer ("Sauer").
The RAF filed medico-legal reports from
occupational therapist,
Success Moagi ("Moagi"), and orthopaedic surgeon Dr Solani
Mukansi ("Mukansi"). The
expert reports of P's clinical and
industrial psychologists stood uncontroverted.
9. The whole person employment
figure for P was rated by Enslin at 10% while it was rated at 13% by
Mukansi. The joint minutes of
the meeting on 8 October 2016, of the
orthopaedic surgeons, Enslin, and Mukansi, are inciteful concerning
P's injuries. They agreed
as follows:
"1.
Ms P sustained an abrasion on her forehead, and sustained an injury
to her neck, and her lower back, in the motor vehicle
accident that
occurred on 11 February 2010. Dr Mukansi documented that she had a
bruised right hip.
2.
Ms P remains symptomatic in respect of her neck and back, and
experienced headaches, (Ms P complained to Dr Mukansi on 29 May
2015
of sciatica).
3.
Ms P does not qualify for the Narrative Test due to his (sic)
musculoskeletal impairment. 11
10. On the subject of P's
employment capacity, Dr Enslin had the following to say:
"Work aggravated her accident related symptoms, but, she
feels better on weekends. Dr Enslin believes that this accident can
have an effect on Ms P's ability to be promoted within her
organisation, and although she is capable of working, her work speed
may decrease at a faster rate, had she not been injured on 11
February 2010. Her Joss of earnings in future should be based on
a
possible decreased work performance, which could equate to 10% over
the last two years of her working life. Her chances of remaining
symptomatic over the last three years of her working life, are more
than
a 70%
probability.
"
11. Mukansi's view is
diametrically opposed to that of Enslin:
"Or Mukansi has taken note that Mrs P works in the same
capacity
as
prior to her being injured on 11 February 2010. He
believes that her income generating capacity will not be affected by
the accident
that occurred on 11 February 2010.
"
12. Conservative treatment for P
was estimated by Mukansi at a cost of R50 000,00 and by Enslin at R30
000,00. Regarding surgery,
Enslin believed that a surgical
stabilisation of the cervical spine, and the lumbar spine may become
indicated in future. Mukansi
opined that surgery would not become
indicated in the future.
13. It is trite that future
medical treatment of P would be covered by the issue, by the RAF, of
a statutory undertaking in terms
of
section 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
.
14. A joint minute of the
parties' occupational therapists, Messrs van der Walt, (for P), and
Moagi (for the RAF), reveals consensus
on the following matters. P
had resumed her position at Liberty Life after the accident, and
remained there. Her work was sedentary,
and she met its strength
requirements. Her neck and back pain would compromise her endurance
of static postures such as sitting
and prolonged standing. Pain
management was indicated. They recommended ergonomic office
furniture, and expected that her pain
and problems with concentration
and moods would improve with a successful treatment protocol.
15. The therapists agreed that
P's performance level would fluctuate, depending on her symptoms and
orthopaedic prognosis, to which
her occupational prognosis was
directly linked. They deferred to the orthopaedic surgeons on their
prognosis. They shared the view
that P's productivity at work could
be affected by intermittent intrusive pain. Both agreed that P could
work potentially to retirement
age doing sedentary work in an
ergonomic setting.
16. P was evaluated by
industrial psychologist Dr Pretorius, on 27 January 2015. The RAF did
not engage an industrial psychologist.
Concerning her work capacity,
Dr Pretorius, no relative of the plaintiff in casu, made the
following observations, namely:
16.1
P had difficulty concentrating due to her pain, and her work speed
has reduced, affecting
the achievement of work targets;
16.2
her team leader at Liberty Life, Jennifer Mokothi, ("Mokothi")
said that P was
a "star performer" pre-accident, but post
accident, her work performance had deteriorated, owing to moodiness
and
high emotion;
16.3
in Mokothi's view, the post-accident "restrictions", as
well as P's diabetes
diagnosis, directly affected her ability to
achieve targets, which affected her income. There was a possibility
of P receiving
a warning if she became emotional and behaved
inappropriately at work;
16.4
due to P's restrictions and their impact, her performance rating may
have been lower after
the accident, than would have been the case had
she not been involved in an accident. Therefore,
"her
annual income from the time of the accident could have been higher,
and it is therefore possible that she could have suffered
an indirect
past loss of earnings as
a
result of her
involvement
in the
accident;
16.5
she may suffer loss of earnings owing to decreased competitiveness,
productivity, emotional
capacity, absence from work for treatment,
and work vulnerability.
17. Clinical psychologist De
Ridder came up with the following conclusions in her report:
"Mev P word na 'n Kliniese Sielkundige verwys vir langtermyn
psigoterapie vir die behandeling van die psigologiese versteurings
aanwesig en aanpassing voortspruitend uit die trauma van die ongeluk.
In hierdie verband word 48 sessies by 'n Kliniese Sielkundige
in die
vooruitsig gestel .... .
..
Mev P behoort oak volgens die skryfster kompensasie te ontvang vir
die pyn en lyding wat sy oar die afgelope jaar reeds verduur het
en
in die toekoms nag sat moet verduur, asook die moontlike verlies aan
inkomste en lewenskwaliteit.
"
18. I was presented with an
updated actuarial report from Sauer, dated 13 October 2016. He made
calculations for loss of income
based on two scenarios. The first
took into account inflationary increases only and, inclusive of
contingency deductions, came
to R185 664,00. The second scenario
postulated P's potential for reaching a "Paterson B5 career
ceiling", the figure
being R460 020,00 after contingency
deductions.
19. On a conspectus of the
expert evidence at hand, I am not persuaded that the injuries in casu
have prevented P from attaining
a "Paterson B5 career ceiling."
The injuries are such that they are largely manageable through
medical intervention and
treatment for which the RAF undertaking will
suffice to a meaningful extent. P was treated on an outpatient basis
on the day of
the accident, and returned to work 3 days later,
indicating an absence of severity in the injuries sustained.
20. The above notwithstanding,
P's injuries have resulted in fairly chronic pain, which has in turn
affected her earning capacity.
This much is borne out by the expert
reports of Enslin, van der Walt, De Ridder and Pretorius. I repeat
that the expert reports
of P's clinical and industrial psychologists
stood uncontroverted, as no by expert evidence from any counterparts
were engaged
by the RAF.
21. It is undisputed that P had
suffered from diabetes and hypertension since 2013, according to
Enslin's report. He stated that
her diabetes and hypertension were
not related to the accident, but that symptoms of anxiety and
depression were "partially
related" to the accident.
22. In determining that P's
injuries have compromised her earning capacity, I have taken note of
the ratio in the case of
Prinsloo
v RAF
2015 (6) SA 91
WCC
in
which a soft tissue injury resulted in Prinsloo
developing
chronic pain, causing her to
battle to maintain her
work
functioning.
I refer
to paragraph 91 at page 112 of
Prinsloo
,
in which cognisance
was taken of the following, regarding
the
claimant:
"Her vulnerability stemmed from the weakening effect which
her pre-existing psychological make-up and personality traits had
on
her ability to withstand trauma."
23. It is within the discretion
of the Court to determine the applicable scenario for loss of income,
which is taken conjunctively
with loss of earning capacity. In my
respectful view, the facts and expert evidence in casu support
scenario 1, as postulated by
Sauer.
24. I refer to the claim for
past loss of earnings. P was absent from work for three days, from 11
to 13 February 2010, amounting
to a claim of R715,00. A loss may only
occur if she was not entitled to paid sick leave and there is no
evidence to support this.
The claim for sick leave from 1 to 6
November 2010 for R1 487,00 was for chest pains for which there was
no evidence that they
were attributable to her accident related
injuries. The claim for R2 092,00 is unsustainable.
25. Sauer's calculations covered
the two year period from 2 April 2033 to 2 April 2035, at R13 022,00.
The contingency, which increased
from 10% to 20% from 17 October 2016
to 2 April 2035, has dropped from 90% to 80%, arriving at a figure of
R170 549,00.
26. Regarding future loss of
income, for R183 572,00, Sauer made the following assumptions,
namely:
a. That problems will only be
experienced in the last two years of P's working life which will
result in her earning 10% less than
she would have received had the
accident not occurred;
b. Her probability of earning
income has decreased by 10% over the period from the date of
calculation (17 October 2016) to date
of retirement.
27. The figure of 10% has been
taken for the reasons of, inter alia, factors such as increased
unemployment vulnerability, labour
incapacity, long periods of
unemployment. There is no basis for a further general contingency
deduction from this amount. In the
result, a claim for future loss of
income of R183 572,00 taking the RAF cap into account, is warranted.
28. The following order is
granted, namely:
a. The plaintiff's claim for
past medical expenses is postponed sine die;
b. the defendant is directed to
pay to the plaintiff the sum of R183 572,00 for future loss of
income;
c. the defendant shall furnish
the plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
to pay 100% of the costs for the
future accommodation of the plaintiff in a hospital or nursing home
or for the treatment of or
the rendering of a service to her or the
supply of goods to her arising from the injuries sustained by her in
the motor vehicle
collision on 11 February 2010, after such costs
have been incurred and on proof
thereof;
d. the total amount in paragraph
b above is payable on or before 30 November 2016 into the bank
account of PAS Attorneys as follows:
PAS Attorneys, FNB, Ermelo,
account [...] branch code 270344, ref 1099A;
e. the defendant will not be
liable for any interest on the payment if it is made by 30 November
2016, failing which, interest shall
accrue thereon at 10,25% per
annum from the due date to date of final payment;
f. the defendant shall pay the
plaintiffs taxed or agreed party and party costs on the High Court
scale on the premise that:
i.
failing
agreement on costs, a Notice of Taxation may be served;
ii.
the
plaintiff shall accord the defendant 14 court days within which to
make payment of taxed or agreed costs;
iii.
such
costs shall include the costs to the date of this order, the costs of
the instructing and correspondent attorney, including
travelling
costs and expenses, attendance at Court, the pretrial conferences and
pretrial minutes, attendances at pretrial conferences,
attendances at
any settlement meetings between the parties, costs previously
reserved, if any, and further, the following, namely:
iv.
the
cost of all medico-legal, radiological, actuarial addendum and joint
minutes, and consideration of all reports of the defendant;
v.
travelling costs
and expenses for the plaintiff to attend medico legal
appointments;
vi.
travelling costs
and expenses for the plaintiff to attend Court;
vii.
the
costs of preparing the trial bundles;
viii.
the
costs of the engagement of senior/junior Counsel, advocate MJ Kruger,
including the day fee on 17 October 2016 and 19 October
2016;
ix.
in
the event of failure to pay the taxed or agreed costs, interest shall
accrue thereon at 10,25% per annum from the due date to
date of final
payment.
T BRENNER
ACTING JUDGE THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
9 November 2016
Appearances
For the
Plaintiff:
Advocate MJ Kruger
Instructed:
L J Breedt Attorneys
Counsel for
Defendant: Adv
L Shai
Instructed
by:
Pule Attorneys