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[2016] ZAGPPHC 949
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Mzobe v Road Accident Fund (23163/14) [2016] ZAGPPHC 949 (18 November 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GATENG DIVISION, PRETORIA)
CASE NO: 23163/14
18/11/16
Reportable: No
Of interest to other judges: No
Revised.
In the matter between:
BHEKI CHARLIE
MZOBE
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
NONYANE, AJ:
[1] This is an action for damages arising from a motor vehicle
collision which occurred on 28 October 2012 on the N17 road between
the towns of Springs, Gauteng Province and Leslie, Mpumalanga
Province.
[2] Three vehicles were involved in this collision and the plaintiff
who was the driver of one of the motor vehicles sustained
injuries to
his head, cervical spine and lumbar spine
[3] I have been informed that the defendant has conceded 90% of the
merits and the plaintiff is entitled to 90% of his proven damages.
[4] At the commencement of the trial the defendant objected to the
plaintiff's RAF 4 report and both Counsel for the plaintiff
and
defendant agreed that the issue of general damages be referred to the
Health Professions Council of South Africa.
[5] The defendant's Counsel was also not
ad idem
with the
plaintiff's Counsel interpretation of the expert reports and wanted
expert witnesses to be called. On enquiry by the Court
as to whether
the defendant does not admit the expert reports it then transpired
that the defendant does not have issues with the
expert reports
per
se,
but with how the plaintiff's Counsel interprets them. The
issue of the interpretation of the expert reports was then left to
the
Court.
[6] The following medico-legal reports procured by the plaintiff were
admitted into evidence without the need to call individual
expert
witnesses:
Dr L. F Oelofse - Orthopaedic surgeon
Dr J Scheltema - Neurosurgeon
Dr L Berkowitz - Plastic and Reconstructive surgeon
Sonet Strydom - Neuropsychologist
Ms N Doorasamy - Occupational therapist
Dr K Roux – Psychiatrist
Dr Sulman & Partners - Specialist Radiologist
Dr BK Cheyip - Neurologist
Meryll Shein - Industrial Psychologist
M S Jacobson - Actuary
[7] The defendant did not procure any medico-legal report. I am
required to determine the issue of past medical expenses, future
loss
of earnings and earning capacity.
[8] The plaintiff claims an amount of R1 213 683.00 for future loss
of income, an amount of R226 134.37 for past medical expenses
and an
undertaking in terms of the
Road Accident Fund Act 56 of 1996
as
amended (hereinafter referred to as "the Act") for future
medical expenses.
Future Loss of Earnings and Earning Capacity
[9] The plaintiff has a grade 11 level of education. His work
experience ranges from being a waiter, a cook and a call centre
agent. At the time of the accident he was working as a call centre
agent, selling cell phone contracts and telemarketing.
[10] He resumed his duties one month after the accident and in 2015
was promoted to sales support, solving problems which agents
in
branches experiences. Before the accident he was doing his job
without any problems but after the accident he experienced lower
back
pains, headaches, short memory and he is unable to sit or stand for
prolonged periods.
[11] The plaintiff's claim for future loss of income is based on the
actuarial calculations of M S Jacobson of Gerard Jacobson
Consulting
Actuaries.
[12] The actuarial calculations of the plaintiff's income were made
on the assumption that he will continue working until the age
of
retirement and calculated on two different basis, that is:-
1. Basis I:
Ceiling in line with A3 Paterson level and working a full
day
2. Basis II:
Ceiling in line with A3 Paterson level and working half day
from 2016
[13] The total amount of future loss suffered by the plaintiff on
assumption that he will continue to work for the full day is
R497
975.00 (Basis 1) and his loss if he works for half day from 2016 is
R1 213 683.00 (Basis 2).
[14] The defendant's Counsel contested the amount claimed and argued
that the plaintiff's future loss of income is as calculated
on the
first basis, that being R497 975.00.
[15] He argued that the plaintiff's future loss of earnings and
earning capacity should be dealt with in line with what is stated
in
the industrial psychologist's report, in particular the fact that the
plaintiff, post morbid, got a promotion and is now earning
more than
he was before the accident.
[16] He refuted plaintiff Counsel's contention that the promotion was
a sympathetic one to accommodate the plaintiff's post accident
physical limitations. He argued that the promotion was for a specific
purpose which was to solve problems which agents in the branches
were
experiencing. I tend to disagree with defendant's Counsel on this
point.
[17] The industrial psychologist clarified this point in his report.
He stated that although the plaintiff is regarded as having
been
promoted he has actually taken a knock in his salary as he is now not
earning any commission. The plaintiff told the industrial
psychologist that he took the position because he could not cope with
his previous position which required him to be in a seated
position
for prolonged periods and he feels more able to cope with his new
position because it requires less overtime work and
he is able to
stand and sit at will. The industrial psychologist further noted that
the plaintiff has taken a loss in real earnings
and has been
accommodated by his employer.
[18] Defendant's Counsel further argued that the recommendation by
the psychiatrist, Dr Roux, for psychiatric and psychotherapy
treatment of two - five years and the occupational therapist's,
Narischa Doorasamy, comment that the plaintiff will be reliant
on
intensive rehabilitation, surgical and conservative treatment and the
use of assistive devices to maintain and improve his level
of
functioning and alleviate pain in the axial skeleton is indicative of
the fact the plaintiff condition will improve and therefore
he is not
a candidate for a half day work. He submitted that the plaintiff is
working full day and should be compensated on Basis
1 calculation and
not Basis 2 calculation as it is not supported by facts and is based
on assumptions only.
[19] The psychotherapy that defendant's counsel refers to, will only
help in as far as the plaintiff's depression is concerned
but will
not address the plaintiff's neurosurgical issues. The
neuropsychologist's evaluation revealed that the plaintiff's
post-morbid
results showed a below expected rate of learning compared
to his estimated pre-morbid level of high average performance.
[20] Counsel for the plaintiff argued that the actual future loss of
income and earning capacity sustained by the plaintiff is
as
calculated on Basis 2. She contended that Basis 2 calculation is
based on assumption supported by the expert report.
[21] She referred me to the report of the orthopaedic surgeon who
diagnosed the plaintiff with a C4-C5 disc lesion with impingement
on
plate C5-C6 and soft tissue injury on the lumbar spine.
[22] On the functional capacity of the patient to do a normal (full)
day work, the orthopaedic surgeon opined that the back and
neck pain
that the plaintiff still complains about, despite having had a
fusion, makes it difficult for him to cope with his current
type of
employment.
[23] The neurosurge n, Dr J Scheltema, diagnosed the plaintiff with a
minor concussive head injury with a grade 4 whiplash injury
to the
cervical spine that needs further management. On his ability to work,
the neurosurgeon opined that the injuries to the cervical
spine and
the chronic pain that the plaintiff has will limit his working hours
and believes that the patient cannot currently work
more than a 5
hour shift. He is of the opinion that the plaintiff only qualifies
for half day work which will have an impact on
his salary.
[24] The neurologist diagnosed the plaintiff with neuropsychological
impairment. He is also of the opinion that the plaintiff's
employability has been markedly affected by his injuries, more so
that the nature of his job entails prolonged sitting posture.
[25] The occupational therapist's findings indicate that the
plaintiff is limited in his ability to meet his pre accident inherent
job demand of prolonged sitting in a sedentary position on a daily
basis. She is of the opinion that due to problems of the cervical
and
lumbar spine injury, the plaintiff will be limited in his ability to
maintain the seated or static postures for a full 8 hour
work day.
[26] I am not convinced by the defendant's Counsel submission that
the plaintiff should not be compensated on Basis 2 calculations
because it is not supported by the facts and is based on assumptions
only. It is clear from the above that Basis 2 calculation
is based on
assumption supported by the expert reports and the amount claimed
represents a fair value of the loss sustained by
the plaintiff.
[27] It is quite evident from the medico-legal reports that the
injuries sustained by the plaintiff and its sequelae have impaired
his cognitive functions, mood and severely affected his spine. His
future earning capacity has in no doubt been affected and has
as a
result sustained a loss of future income as calculated on Basis 2.
Past and Future Medical Expenses
[28] The plaintiff also claims an amount of R226 134.37 for past
medical expenses and an undertaking in terms of
Section 17(4)
of the
Act for future medical expenses.
[29] The plaintiff's claim for past medical expenses is supported by
vouchers and the defendant's Counsel did not raise any counter
argument to the plaintiff's past and future medical expenses.
[30] I have gone through the vouchers and I am satisfied that the
amount claimed represent the correct figure for past medical
expenses
incurred by the plaintiff.
[31] It is also evident from the medico-legal reports that the
plaintiff will require future medical treatment.
[32] The damages amount should accordingly be adjusted in terms of
the merits settlement agreement of the parties and the plaintiff
has
to be awarded 90% of his proven damages.
Costs
[33] On the issue of costs, the plaintiff's counsel, although in
agreement with the issue of general damages being referred to
the
Health Professions Council of South Africa, argued that the defendant
had a window opportunity of more than a year to reject
the
plaintiff's RAF 4 report but only waited until the eve of the trial
to reject it.
[34] Plaintiff's counsel submitted that the defendant's conduct is
prejudicial to the plaintiff and should be met with a punitive
cost
order. In this regard she referred me to the case of
J.E Meyer v
Road Accident Fund 2013
JDR 284 GNP wherein Potteril J awarded a
punitive cost order against the Road Accident Fund for their failure
to reject the RAF
4 report timeously but waited until the date of
trial to reject it.
[35] The case cited above is distinguishable from the current one in
that in the latter case the parties had reached settlement
on all
heads of damages except for general damages. The only issue that was
to be determined was whether the court had jurisdiction
to decide
whether the injury is, in terms of
section 17(1)
of the
Road Accident
Fund Act, a
serious injury.
[36] I am as a result not inclined to grant costs on a punitive
scale.
[37] Having heard arguments from both counsel for the plaintiff and
the defendant and taking all relevant factors in assessing
the
quantum of both future loss of earnings and earning capacity, I deem
the following amount as adequate compensation, in accordance
with the
merits settlement:
a. Future loss of earnings and earning capacity
R 1 092 314.70
b. Past medical
expenses
R 203 520.93
[38] In the results I make the following order:
1. Judgment is granted in favour of the plaintiff for payment of the
sum of R1 295 835.63 within 30 days from the date of this
order.
2. The defendant is ordered to pay interest on the sum of R1 295
835.63 at the rate of 10.5% from 31 days after the date of this
order
to date of payment.
3. An undertaking in terms of Section 17(4)(a) of the Road Accident
Fund Act 1996 (as amended) to be furnished by the defendant
for
payment of 90% of the plaintiff's future medical expenses.
4. The defendant is ordered to pay the plaintiff's costs of suit
including the costs of counsel and the following experts:
a. Dr L.F Oelofse - (Orthopaedic surgeon)
b. Dr J Scheltema - (Neurosurgeon)
c. Dr L Berkowitz - (Plastic and Reconstructive surgeon)
d. Sonet Strydom - (Neuropsychologist)
e. Ms N Doorasamy - (Occupational therapist)
f. Dr K Roux - (Psychiatrist)
g. Dr Sulman & Partners - (Specialist Radiologist)
h. Dr BK Cheyip - (Neurologist)
i. Meryll Shein - (Industrial Psychologist)
j. M S Jacobson - (Actuary)
_____________________
NONYANE AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH
AFRICA, GAUTENG
DIVISION, PRETORIA
Counsel for the Plaintiff
:
Adv. D Strydom
Instructed by
:
Moss & Associates Inc.
Counsel for the Defendant
:
Adv. Z S Rasekgala
Instructed by
:
Tau Phalane Incorporated
Date of trial
:
06 October 2015
Date of Judgement
:
____ November 2016