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[2015] ZAGPPHC 158
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Sithebe v Road Accident Fund (7574/12) [2015] ZAGPPHC 158 (27 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:7574/12
In
the matter between:
M
SITHEBE
............................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..................................................................................................
Defendant
JUDGMENT
POTTERILL
J
[1]
The plaintiff instituted action against the Road Accident Fund for
loss on damage suffered as a result of bodily injuries pursuant
to a
collision on 8 November 2008 at Perdekop. The plaintiff was a
passenger in a motor vehicle with registration number
ND652678 driven
by Mr. N.P. Mtebele hereinafter referred to as the insured driver.
[2]
Upon amendment of its claim the plaintiff at trial was claiming the
following:
2.1
Past medical and hospital expenses in the amount of R100 000;
2.2
Future medical and hospital expenses in the amount of R150 000;
2.3 Past and future
loss of earnings and earning capacity in the amount of R408 140.00;
2.4
General damages in the amount of R400 000.
Thus
a total of R1 058 140.00.
[3]
The plaintiff would be entitled to 100 % of its proven or agreed
damages as the plaintiff conceded the merits at 100 % due to
the fact
that the plaintiff was a passenger.
[4]
At trial the plaintiff abandoned the past and medical expenses as
well as the claim for general damages. The defendant
provided
an undertaking in respect of past and future medical and hospital
expenses. The only issue in dispute thus relates
to the past
and future loss of earnings and earning capacity.
[5]
At the time of the incident the plaintiff was 24 years old and had
completed Grade 11. At the time of the collision she
was
employed at Siphulwazi Day Care as a teacher and earned a salary of
R1 500.00 per month. The plaintiff did a basic
certificate
in early childhood development level 1 in 2009. She also
acquired a further education and training certificate:
Early
Childhood Development (NQF Level 4) on 30 August 2014. She
completed a Level 1 First Aid course in 2012 and she also
completed
an art therapy group as an ECD practitioner in 2014.
[6]
The plaintiff sustained the following injuries:
6.1
A fractured distal left tibia/fibia;
6.2
Concussion;
6.3
Whiplash;
6.4
Soft tissue injury of the left elbow.
The
plaintiff was taken to the Volksrust public hospital where she was
stabilised, received treatment and was discharged the same
day.
[7]
The legal representative of the plaintiff relied on
inter
alia
the industrial psychologist’s
report. This report was not placed in dispute by the
defendant. The relevant passages
relied on to sustain the
plaintiff’s claim for future loss of earnings and earning
capacity is set out as follows:
“
The
accident under review occurred in November 2008 and Ms Sithebe only
secured the position as principal in August 2014;
almost 6
years later. It is accepted that, was it not for the accident
she could probably have secured such a position during
2010/2011,
noting her extensive experiences at day care centres.
It
is furthermore accepted that she could also have started to sell
Tupperware to earn an additional income. It is accepted
that
she would have earned more or less on par with her current income of
±R500 per month.
As
such it is then accepted that Ms Sithebe would have been able to
progress over time in a straight line to better paid salaries
in
similar type concerns and thus progress to salaries more or less on
par with the median notch of the indicated salaries for
semi-skilled
workers i.e. a combined salary of about R4000 per month by age 45.
Robert Koch
indicated the following annual salaries in his
Quantum Yearbook
2014:
Unskilled
workers: R6 800-R17 400 – R50 000 per annum
Semi-skilled
workers: R17 400-R50 000 – R127 500 per annum.
This
can be regarded as her pre-accident earning potential and only annual
inflationary increases would thereafter have applied.
She
would have been able to continue working until age 65.”
“
As
per the available information Ms Sithebe is currently employed as
principal of a day care centre and she admitted that the work
is less
physical than when she was still teaching the children. It is
however accepted justified that she could not cope
with her work as
teacher after the accident and resigned. She should then be
compensated for the loss of income suffered
in this regard”.
[8]
The industrial psychologist accepted that Ms Sithebe was still
suffering from symptoms of a Post-traumatic Stress Disorder related
to her involvement in the accident at the time of the assessment.
The conclusion the industrial psychologist drew was the
following:
“
Writer
then accept that the abovementioned difficulties also contributed to
her not seeking alternative employment immediately after
she left her
previous employment and to the fact that she only started working at
a day care centre again, almost 6 years post-accident.”
“
Deference
is given to the opinion of Ms van der Walt with regards to her
ability to continue working in her current capacity as
principal at a
day care centre, but noting the reported work tasks and the fact that
Ms Sithebe opined that she copes with this
work, writer accepts that
she would be able to continue working in this capacity for the
foreseeable future. The relevant
experts would however have to
comment on early retirement.
She
may however be less inclined to apply for similar work elsewhere as
she would not be entirely sure if that job would not require
of her
certain tasks as teacher and it is then possible that she may rather
decide to stay on in her current position where she
knows what is
expected of her and knows that she can cope with same.”
[9]
Ms. Wilma van der Walt, the occupational therapist, concluded that Ms
Sithebe will be able to meet the requirements of her work
as an
assistant to her mother who is baking cakes from home and in her
self-employed capacity as selling Tupperware. “
Her
ability to return to her work as a day care teacher would be limited
due to her low strength capacity. Her ability to
return to such
work would depend on the prognosis of her left knee and her neck.
In the presence of any pathology at the
left knee and with neck
pathology I deem the work of a day care teacher an inappropriate work
venture for her. She will not
be able to do the work without an
increase in her pain symptoms”.
[10]
Dr. Deodat Maré found as follows:
“
Ons
vind nie enige definitiewe letsels wat kan lei tot ongeskiktheid
nie.”
[11]
Leon Roper, the clinical psychologist in paragraph 17.11 summarises
his opinion as follows:
“…
the
minor head injury sustained by the plaintiff is not expected to
result in significant long-term neuropsychological difficulties.
It can however be concluded that Ms Sithebe’s involvement in
the accident under discussion has resulted in deterioration
in her
psychological functioning, which is largely considered to be a
reaction to the physical injuries she had sustained and her
reported
regular physical pain. In this regard, the plaintiff presented
with symptoms of a Posttraumatic Stress Disorder
and also mild
depressive symptoms which are expected to have an ongoing negative
impact on her interpersonal and occupational functioning,
as well as
on her quality and enjoyment of life.”
“
In
light of these symptoms discussed he recommended that the plaintiff
be rewarded funds for 25 sessions of psychotherapy, currently
of a
cost of about R850 per session. These should include family
therapy.”
On
behalf of the plaintiff it was thus argued that the plaintiff would
suffer a future loss of income. The loss of earning
capacity is
to be found in the fact that she could never work as a teacher again
and could only work as a principal.
[12]
On behalf of the defendant it was argued that one has to consider the
following facts:
12.1 In March 2009
the plaintiff returned to her pre-morbid job but after three months
resigned (June 2009) citing the reason for
the resignation as TB, as
well as the fact that she had to travel very far for a low salary.
12.2 From June 2009
to 2013 the plaintiff remained unemployed with no evidence as to why
this was the case. No evidence could
also be provided by the
plaintiff.
12.3 From 2013 she
started to sell Tupperware on a part time basis and she earned a
commission of an amount of between R400-R600
per month. She
also assisted her mother in baking cakes.
12.4 On 25 August
2013 the plaintiff secured a job as a principal at Enjabulweni Day
Care in Katlehong earning R2 400 per month
and is still
currently employed there. She had previously worked at this
same day care centre from 2003 to 2005 with earnings
of R650 per
month.
12.5
The plaintiff currently earns R2 800 to R3 000 per month
from her salary as principal as well as from selling Tupperware
on a
part time basis.
[13]
The plaintiff did not experience difficulty with executing the work
of a principal.
[14]
The defendant criticised the industrial psychologist’s report.
Firstly, no reasons are given as to why the plaintiff
was unemployed
for two years from 2000 to 2006 and post collision for four years
from June 2009 to 2013. Ms. Kotze’s
opinion or submission
that she would probably have secured such a position during 2011/2012
is based on speculation and no reasonable
grounds are set out for
this speculation. There are simply no reasons as to why the
plaintiff would have been guaranteed
the position of principal during
a specific time period, but for the accident. This is even more
strange if regard is had
as to why when the plaintiff was employed
there she did not there and then get the promotion. The
defendant also argued that
Ms. Kotze did not give a single reason for
the submission that Ms. Sithebe would have been able to progress over
time in a straight
line to the indicated salary for semi-skilled
workers of R4 000 per month by the age of 45.
[15]
It was also submitted that Ms. Kotze’s report refers to Mr.
Roper’s report and from this formed the opinion that
the
sequilae
of the accident did not only adversely affect her enjoyment of life,
but also her employability. It was argued that this
is not at
all what Mr. Roper concluded. Mr. Roper concluded that therapy
would be necessary and that would be covered by
the undertaking
provided by the defendant. Therapy will heal the plaintiff’s
psychological problems. At the age
of 36 the plaintiff had not
yet obtained her driver’s licence and the mere fact that she
was involved in a collision did
not provide proof that now she will
never obtain her licence.
[16]
The defendant thus argued that the experts were unable to offer any
link between employment and injury and explain or justify
any
resulting claim. Reliance for this was placed on the unreported
matter of
Vavuma v The Road Accident
Fund
2012 SA (GSJ)
delivered
on 14 December 2012 by Satchwell J. In this matter the court
found that the court was not provided with the essential
information
or evidence and was confronted with only speculative submissions
which did not take the case any further. There
was a total
absence of any information pertaining to promotion requirements or
redundancy possibilities. The court accordingly
refused a claim
for damages in respect of future loss of earnings and earning
capacity.
[17]
On behalf of the plaintiff much reliance was placed on
Van
Drimmelen v President Versekeringsmaatskappy Beperk
1993
(4E2) QOD 19 (T)
. In this matter
the plaintiff was subjected to amputation of the left lower leg due
to a collision. There was also
a closed fracture of the right
femur and a segmental fracture of the left femur. The plaintiff
was hospitalised for approximately
two months. Thereafter the
plaintiff in that matter had nine subsequent operations over about a
period of two years.
The plaintiff had acute pain for several
months, and spent several periods in the Intensive Care Unit.
The plaintiff had
gangrene in the stump and was also subjected to
painful manipulations and traction. The prosthesis was
uncomfortable and
irritated the plaintiff’s stump. It was
common cause that his relationships with the opposite sex was
compromised.
His previous activity in sport was drastically
curtailed. The court ordered future loss of earnings in the
amount of R450 000.
[18]
In that matter the earning capacity revolved around two aspects.
The first question was whether on a preponderance of
probabilities it
was proven that the plaintiff’s employment would be curtailed
to an early retirement age. The court
found that it was not
proven that the plaintiff would not be able to attain normal
retirement age. The court did however
take contingencies into
consideration that he would however be working with a broken body.
It was also pondered whether the
plaintiff would be entitled to find
suitable work. The court also took into consideration that the
plaintiff would have to
overcome the perception that even with his
prosthesis he would be a good worker. The court was urged to
utilise these contingencies
also in the matter at hand.
[19]
In this matter the plaintiff’s injuries cannot even be
mentioned in the same breath as that of the injuries in the
Van
Drimmelen
matter
supra
. The orthopaedic
surgeon found that there was no indication of proof that the
plaintiff’s work capacity was in any
way affected. The
industrial psychologist has opined that:
19.1 The plaintiff
could have started to sell Tupperware to earn an additional income
and therefore she would have earned more or
less on par with her
current income of R500 per month. No reasons are set out as to
why she did not sell Tupperware, or could
not sell Tupperware;
in fact it is stated that she could sell Tupperware. This R500
a month could thus have been earned
and accordingly sets up no claim
for loss of future income or loss of earning capacity.
19.2 The proposition
that the plaintiff would have obtained the position she now occupies
6 years ago, but for the accident, is
unfounded. This is so
because absolutely no reasons for this are set out. I have
never seen such an expert report with
little to no motivation for its
propositions. There is not a single fact set out to back up the
proposition that the plaintiff
would have obtained this post of
principal. In fact the facts prove it to the contrary.
She had not completed three
of the four certificates prior to 2010 or
2011. She was unemployed for the period 2009 to 2013 thus
rendering her with no
work experience in those years. On these
facts this submission by the industrial psychologist has to be
rejected.
19.3
The submission that “Ms Sithebe would have been able to
progress to better paid salaries in similar type concerns”
once
again has no foundation. What is a “similar type
concern”, and as what, a teacher or principal and on what
basis
would she have been able to progress? The facts again
contradict this submission. At the time of the collision
she
was earning R1 200, she now earns R2 400. She did in
fact progress to a better paid salary. There is
no facts set
out why she would have progressed to R4 000 over what time
period. This submission does also not sustain
a claim for loss
of income and loss of earning capacity.
[20]
It was also argued that from the occupational therapist’s
report it was clear that the plaintiff would not be able to
return to
her work as a day care teacher because her ability was limited due to
her low strength capacity. Her ability to
return to such work
would depend on the prognosis of the left knee and her neck.
The following opinion was also expressed:
“
In
the presence of any pathology at the left knee and with neck
pathology I deem the work of a day care teacher an inappropriate
work
venture for her. She will not be able to do the work without an
increase in her pain systems.”
However
in the very next paragraph the same occupational therapist sets out:
“
It
should be noted that Dr. Maré did not find objective evidence
depicting any lesions to explain the pain complaints at
the left
lower limb and he did not find pathology at the knee. With
conservative treatment her pain levels should improve.”
The
last conclusion in fact sets the expert’s submission to bed.
The finding that the plaintiff could perform only light
strength
demands was based solely on the plaintiff’s subjective feeling
of instability at the left knee and her subjective
feeling of pain.
If Dr Maré did not find any objective evidence I cannot on a
mere speculative basis grant any amount
of monetary reward.
[21]
Much was also made of the fact that the neuro-clinical psychologist
found poor concentration and an attention problem.
However in
paragraph 17.8.1 of his report he finds that her performance
pertaining to attention and concentration difficulties
is only “a
mild sustained attention difficulty”. The symptoms of
Post-traumatic Stress Disorder and mild depressive
symptoms would not
result in significant long term neuro-psychological difficulties.
The recommendation however is that the
plaintiff be awarded funds for
sessions in psychotherapy. This seems to be a correct
recommendation and the solution should
be in the undertaking given by
the fund and not in a monetary reward to the plaintiff.
[22]
In
Buthelezi v Ndaba
2013
(5) SA 437
(SCA)
page 437 in paragraph
[14] the court found as follows:
“…
Yet
that determination is bound to be informed by the opinions of experts
in the field which are often in conflict, as has happened
in this
case. In that event the court’s determination must depend
on an analysis of the cogency of the underlying reasoning
which led
the experts to their conflicting opinions.”
Although
there were no conflicting opinions
in casu
the cogency of the
underlying reasoning of the experts for the plaintiff is lacking and
unfounded.
[23]
I accordingly make the following order:
The
plaintiff’s claim is dismissed with costs.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 7574/12
HEARD
ON: 13 February 2015
FOR
THE PLAINTIFF: ADV. A. DE VRIES
INSTRUCTED
BY: Van Niekerk Attorneys
FOR
THE DEFENDANT: ADV. A. VAN DER HAER
INSTRUCTED
BY: Matsebane Attorneys
DATE
OF JUDGMENT: 27 March 2015