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[2015] ZAGPPHC 96
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Gija v Road Accident Fund (26808/2011) [2015] ZAGPPHC 96 (24 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER:
26808/2011
DATE: 24 FEBRUARY
2015
In the matter
between;
THELMA NWABISA
SIPHOKAZl
GIJA
.....................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
.........................................................................................................
DEFENDANT
JUDGMENT
MOSEAMO AJ
[1] This is an
action for damages resulting from bodily injuries sustained by the
Plaintiff in a motor vehicle accident on the 16'
n
March
2008.
[2] At the
commencement of the trial the issue of liability had already been
settled between the parties. The defendant, conceded
the merits 100%.
It was also agreed that the defendant would furnish the plaintiff
with an undertaking in re-spect future accomodation,
hospital and
medical expenses in terms of section 17(4)(a) of the Road Accident
Fund 56 of 1996.
[3] The following
aspects of the plaintiff s claim have also become settled:
(a) Past Medical
Expected
............
R15 009.25
(b) General
Damages
................
R 150 000.00
[4] The only issues
for determination in this trial were the plaintiff's damages for past
and future loss of earnings. The parties
agreed that no oral evidence
was to be led and that the issues in dispute were to be determined on
the contents of various experts'
reports and joint minutes based on
such reports,
[5] The Plaintiff
sustained the following injuries as a result of the collision: (a) a
head injury with loss of consciousness for
an unknown period; (b) a
soft tissue injury to her back; (c) two fractured ribs: (d) an
abrasion on her forehead.
[6] Dr Hans B
Enslin, an orthopaedic surgeon interviewed the plaintiff on the 16
1
’
1
July 2010 and filed a report on her behalf, According to his report
plaintiff was initially unconcious but woke up at the scene.
She was
transported to Muelrned Hospital where X-rays of her chest cervical
spine, thoracic spine, lumber spine and skull were
processed and she
was admitted for two days, She was fitted with a cervical collar. She
attended physiotherapy and had consulted
various doctors for her
neck, back and chest, She also consulted a Clinical Psychologist and
was referred to a Psychiatrist, Dr
Enslin also recorded that
plaintiff is depressed, anxious and tires easily.
[7] It rs common
cause that at the time of the accident plaintiff was 38 years old.
She was taking medication for depression and
had a pre-disposition to
Bipolar Mood Disorder,
[8] In a joint
minutes of a meeting between occupational therapists Mis Kgatla and
Ms Putter it was noted Plaintiffs educational
qualifications and
employment history as follows: Plaintiff's highest level of education
is grade 12. She obtained a one year Diploma
in Commercial Studies.
She worked as a fining room attendant and cashier from 1988 to 1996.
She then had her own catering business
from 1996 to 1909, She worked
as a call centre agent from 1999 until 2001. She then worked as
broker at ABSA lor three years, She
started working as a call centre
agent at the Road Accident Fund in 2003. She was reportedly dismissed
due to ill mental health
on 24
n
August 2011. She was
unemployed until May 2013 when she became a self employed mobile spa
owner in June 2013.
[9] Plaintiff is
currently self-employed as a mobile spa owner. She does Swedish
massages and Thai Reflexology for clients at their
houses, offices or
hotels.
[10] The experts
agreed with the psychiatrist, Dr Shevel, that:
(a) Plaintiff will
always be a vulnerable employee and will have a disadvantage,
compared to her healthy counterparts when seeking
employment or
maintaining current and future clients in her self-employed capacity;
(b) It is probably
not feasible for growing her business or working for someone else;
(c) Her fear of
driving, pain experiences and emotional problems will most probabfy
curb her enthusiasm to seek more clients at
her current self-employed
business^
(d) Her limited
motivation will furthermore negate her chances of securing suitable
alternative employment, should she change careers;
(e) She would
probably need a sympathetic employer seeing that she is no longer an
equal competitor.
[11] At the
beginning of the hearing . Plaintiff placed the following on record:
Plaintiff was
employed by respondent as a claims handler prior to the accident. She
was diagnosed with Bipolar Mood Disorder after
the accident. She took
several sick leave days and was subsequently dismissed as a result of
ill health. The plaintiff referred
the issue of dismissal and the
matter was settled between the parties in the sum of R44 266.05, ft
was also placed on record that
plaintiff was involved in two previous
accidents, in 2004 and 2005 respectively, It was stated by
plaintiff's counsel that although
plaintiff had a history of
depression and was pre-disposed to developing Bipolar Mood Disorders,
the accident precipitated the
Bipolar Mood Disorder as per Dr D. A.
Shevel, psychiatrist.
[12] It was
contended on behalf of the plaintiff that prior to the accident the
plaintiff functioned very well and even got a promotion
to the
position of a claims handler prior to the accident.
[13] Defendant’s
contention is that although plaintiff is entitled to loss of
earnings, it should be reasonable. The Defendant's
counsel stated
that plaintiffs pre-disposition to bipolar complicates matter.
According to the defendant the feet that plaintiff
suffered from
mental illness and was on treatment, she should have mitigated her
condition. Defendant's counsel contended that
plaintiff should have
seen to it that she got the required treatment an she could afford
the medication from the money she was
making as a masseuse.
[14]
Defendant's counsel referred the
court
to
Dí Shevel’s’s report
which
states
that Bipolar Mood Disorder was not caused by the physical trauma
suffered by the plaintiff. However it is admitted that the
accident
triggered Bipolar Mood Disorder.
[15] it is contended
on behalf of the defendant that the defendant should not be held
liable for a lifetime loss of earnings as
Bipolar Mood Disorder can
be treated,
[16] Defendant's
counsel referred the court to Dr David A Shevel's report and
emphasized or highlighted the following: (a) physical
trauma would
not cause a condition such as Bipolar Mood Disorder; (b) the Injuries
sustained in the accident in March 2DOS would
not account Plaintiffs
ongoing symptoms of Bipolar Mood Disorder; (c) a significant head
injury could be a perpetuating factor
but plaintiff appears to have
sustained only a mild con cuss ive head injury; (d) the injuries
sustained would not be considered
as a long term perpetuating factor;
(e) the injuries sustained could
1
account for the ongoing
depression for an additional period of 2-3 years to but that they are
very unlikely to be considered long
term perpetuating factor,
[17] It was
contended that although the accident triggered Bipolar Mood Disorder,
it can be treated. Defendants counsel referred
me to page 13 of Dr
David A Shsvel's report where he states that the Bipolar Mood
Disorder can be brought under control., and that
any ongoing
occupational dysfunction is unlikely to be as a result of the
accident.
[18] Defendant's
counsel submitted that the Defendant should not be held accountable
for a lifetime loss of income.
[19] He contended
that plaintiff should only be awarded past loss of earnings in the
sum of R381 853. He also provided that if the
court determines that
plaintiff should be compensated for future loss of income then
plaintiff be awarded future loss of income
for the period of 3*4
years while she is undergoing treatment for Bipolar Mood Disorder. He
stated that normal contingencies should
apply.
[20] It is clear
that the plaintiff although having a history of depression since 2000
she was employed and even got a promotion
to a position of claims
assistant by the defendant. According to the joint minute of the
Industrial psychologists, she earned a
monthly basic salary of R7
816.48 per month making her annual salary R125 169,31. Her guaranteed
income was R13-8 887 per annum
(excluding the employer's contribution
towards her Medical Aid).
[21] The
psychologists agree that she may have reached her hierarchical career
ceiling. They also agree that they cannot rule out
the possibility
that she may have progressed to call centre supervisor or team leader
at approximately age 45. The retirement age
at RAF for all employees
is 60,
[22] The
psychologists agree that the plaintiff earns an average income of R0
120 per month. They agree that plaintiff will in all
probability be
able to continue working in her current self-employed capacity,
[23] Defendant
submitted that a fair award would be to award past loss of earnings
in the sum of R381 853. The defendant offered
to pay for the Mood
Bipolar Disorder medication for the 2 years period. Defendant's
counsel conceded that the undated report referred
to 3-4 years.
[24] Defendant
submitted that the plaintiff can be compensated for the 3-4 years
that she will be receiving treatment, further that
normal
contingencies of 10% pre-mortid and 20% post-morbid should apply,
[25] It is common
cause that plaintiff suffered from depression prior to the collision
and that she had a pre-disposition to bipolar.
She had been involved
in 2 previous accident which are not relevant for purposes of Ihis
matter. The accident relating to this
matter triggered Bipolar Mood
Disorder which ultimately led to her dismissal at work. It is also
common cause that plaintiffs dysfunction
since the lime of the
accident is as a direct result of the Bipolar Mood Disorder.
[26] I have noted
that the in the joint minutes of Ms Kgatla and Ms Putter that they
agree with Dr Shevel that plaintiff will always
be a vulnerable
employee and will have a disadvantage compared to her healthy
counterparts when seeking employment or maintaining
current and
future clients in her self-employed capacity.
[27] Plaintiffs
counsel proposed a contigency deduction of 25% on pre-mo rtoid income
and 50% on post-morbid income while defendant
contended that the
plaintiff is not entitled to future loss of earnings alternatively
that plaintiff be compensated for 3 to 4
years that plaitiff will be
receiving treatment for Bipolar Mood Disorder and that normal
contigeticies should apply.
[28] Both parties
agree that (a) plaintiff had a predisposition to Bipolar Mood
Disorder; (b) the accident did not cause the Bipolar
Mood Disorder
but precipitated it; (c) plaintiff was dismissed as a result of
Bipolar Mood Disorder; (d.) th© plaintiff is
now a vulnerable
employee and will have difficulty in re-entering the open labour
market even after obtaining treatment for Bipolar
Mood Disorder.
[29] I accept that
plaintiff coped very well in her career and even got promoted despite
the fact that she was suffering from depression,
In my view the fact
that the accident precipitated the Bipolar Mood Disorder and she was
dismissed as a result of the Bipolar Mood
Disorder.
[30] The contention
made on behalf of the defendant that the plaintiff should only be
compensated for the period that he is receiving
treatment for the
Bipolar Mood Disorder does not address the fact that the plaintiff
is, as a result of the accident, now a vulnerable
employee and that
she will have difficulty in re-entering the open labour market even
after' obtaining treatment for Bipolar Mood
Disorder.
[31] In calculating
loss of income the plaintiff's counsel relied an the actuarial report
prepared by Van Der Linde Actuaries. The
method of calculation was
not disputed on behalf of the defendant.
[32] I am of the
view that plaintiff should be compensated for future loss of income
and a contigency factor of 25% should be allowed
on the pre-morbid
scenario of R2 942 030 resulting in a pre-morbid income of R2 206
522, On post-morbid income a oontigency factor
of 50% should be
allowed on the income of R1 750 220 resulting in the post morbid
income of R 875 110. The plaintiff is therefore
entitled to an award
of damages for loss of in the sum of R1 331 412,
[31]
The full award is therefore as
follows:
Past medical
expenses
...................................
R
15 909.25
Loss of
earnings
........................................
R1
331 412,00
General
damages
.......................................
R
150 000.00
Total
........................................................
R1
497 325.25
In the result I make
the following order;
1. The defendant is
ordered to pay to the plaintiff the sum of R1 49? 325.25 together
wrth interest thereon at a legal rate calculated
from 14 days of this
judgment to date af payment;
2. The defendant is
directed to furnish the plaintiff with an undertaking in terms of
Section I7(4){a) of the Road Accident Fund
Act to cover future
hospital and medical expenses which plaintiff may incur resulting
from the collision.
3. The defendant is
ordered to pay the plaintiffs costs of suit
P D MOSEAMO
ACTING JUDGE OF THE
HIGH COURT