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[2015] ZAGPPHC 97
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Swart v Road Accident Fund (35087/2012) [2015] ZAGPPHC 97 (11 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
35087/2012
Date: 11 February
2015
In the matter
between:
SWART
MARILIZE
...............................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
.................................................................................................
Defendant
JUDGMENT
PRETORIUS J.
[1] The plaintiff
claims damages from the defendant for injuries sustained in a motor
vehicle collision. This collision occurred
on 7 February 2009 whilst
the plaintiff was driving a motorcycle at the time. The merits were
conceded by the defendant and the
liability of the defendant was
agreed upon as 90% by the parties.
[2] This court has
to decide the question of quantum only. Agreement was reached between
the parties that the defendant would be
liable for payment of the
amount of R29 700.00 for past medical expenses and an amount of R950
000.00 for general damages. An undertaking
was given for future
medical treatment. The only issue still in dispute is that of past
and future loss of income.
[3] The report of Dr
Marus, the neurosurgeon for the plaintiff, was admitted as evidence,
as well as the joint minutes by Dr Marus
and Dr Maharaj, the
neurosurgeon for the defendant. They agreed that the plaintiff had
sustained a mild concussion that was complicated
by a secondary brain
injury due to a fat embolus. They deferred to the various
psychologists to assess the extent of her difficulty
in memory and
emotional instability.
[4] The plaintiff
suffered two major injuries, a head injury and a fractured left
tibia, which was complicated by sepsis. She sustained
neck and back
injuries as well. The orthopaedic surgeons had prepared a joint
minute and noted that the left tibia fracture was
knitted but
complicated by chronic osteomyelitis, which was still present after 5
years.
[5] Dr Versfeld, the
orthopaedic surgeon for the plaintiff, gave evidence and testified
that she still had the chronic infection
in her leg, which sometimes
still discharges puss and causes pain. If she had sustained only the
leg injury Drs Versfeld and Ngobeni
noted in the joint minute that:
“
her
employment will be affected greatly due to the multiple admissions
and treatment expected.
She would be better
suited to a sedentary type of occupation. In this regard they would
defer to the relevant experts.”
[6] Ms Donaldson, an
industrial psychologist, testified on behalf of the plaintiff. Joint
minutes by her and the industrial psychologist
for the defendant were
admitted. Her evidence was that due to the neurophysical,
orthopaedic, neuropsychiatric, neuropsychological
and associated
function limitations and taking into consideration these as a whole
would lead to the conclusion by her that the
plaintiff is
unemployable at any level.
[7] The plaintiff
was in the retail industry, working in several stores of the Foschini
group as a store manager. According to Ms
Donaldson the realistic
expectation was that in the normal course of her employment she would
have become an area manager, had
the collision not occurred. Ms
Donaldson erred on the conservative side when determining the salary
scales the plaintiff would
have attained by working on the
presumption that the plaintiff would only have been a store manager
and not an area manager.
[8] Mr Ormond -
Brown, who is a clinical neuropsychologist, gave evidence that the
plaintiff presented with typical features of
hypoxic brain injury,
including impairment of short-term memory and labile mood. His
evidence was that it was probable that she
would have recovered from
the concussive head injury had she not suffered a fat embolus. The
fat embolism caused the hypoxic brain
injury, where the supply of
oxygen to her brain had been interrupted. This causes her problems
with concentration and mood lability.
Treatment would not alleviate
these problems and lead to the plaintiff functioning better. His
evidence was that treatment by a
clinical psychologist would merely
be to give the plaintiff a sympathetic ear.
[9] Mr Ormond
-Brown’s conclusion was:
“
Effectively,
the combination of her orthopaedic and brain injuries has rendered
her unemployable on the open labour market.”
His evidence
concluded the evidence for the plaintiff, apart from the actuary’s
report that was admitted as evidence.
[10] The defendant
did not lead any evidence, although counsel for the defendant had
indicated to the court that the defence intended
calling two
witnesses. The court accepts the evidence of the witnesses of the
plaintiff as being honest and correct.
[11] Both the
plaintiff and defendant submitted actuarial calculations.
[12]
Mr Wessels, counsel for the plaintiff, informed the court that the
amount which according to the actuary should be awarded,
after the
Road Accident Fund Amendment Act Cap and Contingencies had been
applied, was R5
667
100, 00.
The
actuary used the
Sweatmen
v Road Accident Fund 17258/2011 WCC3/12/2013
decision
and assumed that the limit would remain level as of the date of the
accident and applied the limit to each year’s
loss (after
mortality, discount, tax and contingencies had been deducted) from
the date of the accident into the future up until
the plaintiff’s
retirement age.
[13] The uncapped
amount for loss of income is calculated at R5 809 685.00 and the
capped amount is R5 677 100.00. There is no reason
not to accept
these calculations, although counsel for the defendant argued that a
lesser amount should be granted by not using
the Sweatman decision as
authority and granting approximately R400 000.00 less. I do not agree
with this submission as no basis
for such an interpretation was laid
by the defendant. The full amount is thus R6 654 600.00 when the past
medical expenses and
the general damages are added, less 10% which
amounts to an amount of R 5 991 120.00.
It is ordered that:
1. Defendant shall
make payment to Plaintiff in the amount of R5 991 120,00 payable to
the plaintiff’s attorney’s Trust
account;
2.
Defendant shall furnish Plaintiff with an undertaking in terms of
Section 17(4)(a) of Act 56 of 1996 limited to 90% in respect
of the
costs of the future accommodation of Plaintiff in a hospital or
nursing home or treatment of or rendering of a service or
supplying
of goods as Plaintiff may require as a result of the injuries which
the Plaintiff sustained as a result of the motor
vehicle collision
which occurred on
7
February 2009;
3. Defendant shall
pay Plaintiff’s taxed or agreed party and party costs on High
Court Scale, including the cost of senior
counsel and any costs
attendant upon the obtaining of payment of the amount referred to in
paragraph 1 above, which costs are to
include:
3.1. The costs of
procuring the reports of the following experts:
•
Dr
Marus, Neurosurgeon;
•
Dr
Versfeld, Orthopaedic surgeon;
•
Dr
D Shevel, Psychiatrist;
•
Mr
Ormond-Brown, Clinical Psychologist;
•
Ms
S Murcott, Occupational Therapist;
•
Ms
B Donaldson, Industrial Psychologist;
•
Mr
A Munro, Actuary;
3.2 The preparation
and attendance fees for the compiling of the joint expert minute by:
•
Dr
Marus, Neurosurgeon;
•
Dr
Versfeld, Orthopaedic surgeon;
•
Mr
Ormond-Brown, Clinical Psychologist;
•
Ms
S Murcott, Occupational Therapist;
•
Ms
B Donaldson, Industrial Psychologist;
3.3 The preparation
and attendance fees at trial for the following experts:
•
Dr
Versfeld, Orthopaedic surgeon;
•
Ms
B Donaldson, Industrial Psychologist;
•
Ms
S Murcott, Occupational Therapist;
•
Mr
Ormond-Brown, Clinical Psychologist
Judge C Pretorius
Case number:
35087/2012
Heard on: 4 February
2015
For the Plaintiff:
Adv. JJ Wessels
Instructed by: MUNRO
FLOWERS & VERMAAK
For the Respondent:
Adv. N Pather
Instructed by : MM
INCORPORATED
Date of Judgment: 11
February 2015