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[2015] ZAGPPHC 285
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Roux v Road Accident Fund (50133/2012) [2015] ZAGPPHC 285 (5 May 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
50133/2012
Date: 5 May 2015
Not reportable
Not of interest
to other judges
In the matter
between:
PC
ROUX
.......................................................................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
.......................................................................................................
DEFENDANT
JUDGMENT
PRETORIUS J.
[1] In this matter
the court has to decide the loss of income of the plaintiff. This
claim arises from an action against the respondent
where the
respondent conceded 100% liability for the plaintiff’s damages
as a result of a motor vehicle accident.
[2] It is common
cause that the plaintiff is currently 39 years old and self-employed
in the building and construction industry.
The plaintiff suffered
serious injuries in a vehicle collision which occurred on 8 August
2009. At the time of the collision the
plaintiff was employed as a
sales representative.
[3] The plaintiff
suffered a minor head injury with concussion, a chest injury, a
fairly severe upper limb injury, a fracture of
the right clavicle, a
superficial injury of the abdomen, lower back and pelvis as well as
soft tissue contusions of the abdominal
wall, contusion and
tenderness of the costochondral junctions of the second and third
ribs, torn muscles in the right shoulder
and soft tissue injuries to
the neck and back.
[4] All the expert
reports of the applicant and the veracity of the contents of the
expert reports were admitted the day before
the trial commenced. This
late admission by the respondent resulted in huge costs as all the
experts had to be on standby and reserved
to testify at the trial.
Once more the tardiness of the respondent to give timeous
instructions to its legal representatives resulted
in unnecessary
wasted costs which are ultimately for the taxpayer’s pocket.
[5] The
neuropsychologist, Dr Mazabow, found that the plaintiff suffers from
severe depressive mood disorder and chronic post-traumatic
anxiety.
According to Dr Mazabow these together with the direct effects of his
chronic pain symptoms, impact on his cognitive functioning,
interpersonal functioning, energy/stamina and motivation. These
factors represent significant obstacles to his effective functioning
in the workplace. Dr Mazabow further comes to the conclusion:
“
Further
,
treatment of the
depression will be long-term, and the prognosis for that treatment is
guarded, as discussed in the accompanying
medico-legal report”
[6] Plaintiff was an
active member of society prior to the accident and had no medical
conditions prior to the accident. Dr JJ du
Plessis, the neurosurgeon,
found that the plaintiff had suffered a minor concussion in the
collision. His expert opinion is that
the plaintiff suffered a loss
of earning capacity of approximately 10% due to the injury to his
cervical and lumbar spine. The
further result of this, according to
Dr du Plessis, is that the plaintiff may have to retire at the age of
63 years.
[7] Ms Heyns, the
occupational therapist, came to the conclusion that:
“
Mr
Roux has occupational dysfunction. He demonstrates performance
component impairments related to pain, mobility/agility, balance,
postural tolerances; endurance and mood. Mr Roux does not meet all
the physical demands of his pre-accident job as salesman, or
the
heavy physically demanding work demands of his post-accident jobs as
self-employed patio roof builder and currently as self-employed
renovator/landscaper due to neck, back and right shoulder and upper
and lower limbs symptoms. This justifies reasonable work
accommodations
(i.e. assistance with heave and physically strenuous
work) already implemented to reduce risk of re-injury. In addition
his chronic
pain and fatigue and physical limitations results in
frustration and a low mood. He experiences variable concentration and
reported
word finding difficulty due to the distracting effect of
pain and fatigue on his concentration, which requires him to apply
additional
mental effort and he had to adapt his work routine in an
attempt to compensate for his proneness to errors.”
[8] Her further
finding is:
“
The
writer gained the impression that Mr Roux’s high work ethic and
diligent approach to tasks drives him to exceed himself,
which takes
its toll in terms of pain, fatigue and effort and he might in the
process neglect his needs. His high level of drive
and motivation
(reportedly due to financial reasons) helps him to persist his
chronic pain and physical deficits, but he could
probably become a
candidate for so-called “burnout” in due course."
[9] Dr Birrel
amended his report in an addendum dated 17 April 2015 after he had
considered the opinions of Dr du Plessis and Ms
Heyns. He agreed with
Dr du Plessis that 10% loss of work capacity should be allocated and
found that the plaintiff would retire
six months earlier than would
have been the case had the collision, with resultant injuries, not
have occurred.
[10] Dr Pearl, the
neurologist, found:
“
It
is my impression that the claimant suffered a mild concussive head
injury with no significant neurological fallout. He does however
suffer from blackouts following the accident and is currently
receiving treatment for epilepsy. He has neck pain and cervical
radiculopathy due to cervical spondylosis which may have been
triggered and or aggravated by the accident.”
[11] The plaintiff
returned to work six weeks post-accident. He only received a basic
salary during his absence, with no commission.
The same applied
during his time off after his shoulder surgery.
[12] The industrial
psychologist, Ms Schoombee, had all the relevant expert reports
available when she interviewed the plaintiff.
She reports on his
change of career as follows:
“
It
does seem to writer, noting Client’s reports of no alternative
plans at the time, expert reports available, and a 6-month
period of
being unemployed before starting up an own business, that the
accident indeed had a direct impact on Pieter in terms
of making a
career change as drastic as he did (moving out of the sales and sales
management areas of work in which he
was
settled and
experienced, to a self-employment situation in unknown areas of
work).
Considering all
the information at hand, Writer has to acknowledge and support Mr
Roux’s direct reports of resigning from
his previous job due to
accident related physical problems - the accident indeed seems to
have had a significant contribution to
his decision to exit the
formal sector."
[13] The court finds
that due to the collision the plaintiff made the drastic change to
his career path.
[14] Ms Schoombee is
of the opinion that the plaintiff’s physical and psychological
functioning has decreased resulting in
decreased productivity and
work capacity. According to her he is not likely to function at
pre-accident levels and it is unlikely
that he would generate the
same income as pre-accident. I find that, having regard to all the
expert opinions, that the plaintiff
has suffered a loss of earnings
and that his future income has been diminished as a result of his
injuries sustained in the collision.
[15] The defendant
had no experts, but chose to argue on the admitted expert reports of
the applicant.
[16] The defendant
urged the court to find no loss of income, but could not provide any
expert’s opinion on which to base
the allegation that the
plaintiff had not suffered any loss of income.
[17]
In
Southern
Insurance Association Ltd v Bailey NO 1984(1) SA 98 AD
at
113F- 114A the following is stated:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future
without the benefit of crystal balls, soothsayers, augers or oracles.
All that the court can do is to make an estimate, which is
often a
very rough estimate, of the present value of a loss.
It has open to it
two possible approaches.
One is for the
Judge to make a round estimate on an amount which seems to him to be
fair and reasonable. That is entirely a matter
of guesswork, a blind
plunge into the unknown.
The other is to
try and make an assessment, by way of mathematical calculations on
the basis of assumptions resting on the evidence.
The validity of
this approach depends of course upon the soundness of the assumptions
and these may vary from the strongly probable
to the speculative.
It is manifest
that either approach involves guesswork to a greater or lesser
extent. But the court cannot for this reason adopt
a non possumus
attitude and make no award."
[18] In the present
case there are actuarial calculations on the plaintiff’s
behalf. The defendant has no actuarial report
to rely on.
[19]
In
RAF v Guedes
2006(5) SCA 583
the
court held:
“
In
essence the trial court exercises a discretion, and attempts to
achieve the best estimate of a plaintiff’s loss: Southern
Insurance Association v Bailey NO. It is trite that a person is
entitled to be compensated to the extent that the person’s
patrimony has been diminished in consequence of another’s
negligence. Such damage include loss of future earning capacity
(see
for example President Insurance Co Ltd v Mathews).
The
calculation of the quantum of a future amount, such as loss of
earning capacity, is not, as I have already indicated a matter
of
exact mathematical calculation. By its nature such an enquiry is
speculative and a court can therefore only make an estimate
of the
present value of the loss which is often a very rough estimate
(see
for example Southern Insurance Association v Bailey NO). The court
necessarily exercises a wide discretion when it assesses
the quantum
of damages due to loss of earning capacity and has a large discretion
to award what it considers right.
Courts have
adopted the approach that in order to assist in such a calculation,
an actuarial computation is a useful basis for establishing
the
quantum of damages. Even then, the trial court has a wide discretion
to award what it believes is just."
(Court’s
emphasis)
[20] I have
considered all the arguments, expert reports and decisions. It is
clear that the plaintiff suffered injuries which had
and has an
impact on his earning capacity. All the experts, but specially the
actuary, erred on the conservative side when making
conclusions and
calculations. Ms Schoombee, the industrial psychologist, expressed an
opinion that future loss of earnings should
be addressed by means of
a higher contingency deduction post-accident.
[21] The actuary, Mr
Whittaker, calculated the 10% loss of income on a conservative basis.
He, throughout his calculations, applied
higher contingency
deductions. I agree with his calculations, having regard to all the
facts placed before court and bearing in
mind that the defendant had
no expert witnesses to counter the evidence of the actuary.
[22] At the start of
the hearing the past medical expenses were still a bone of
contention, but after going through the items in
dispute, counsel for
the defendant conceded that the amount of R55 171.18 to be the
correct amount. This amount will be added to
the amount of R1 438
813.00, which is the calculated 10% loss of income.
[23] The plaintiff
requested the court to grant costs on an attorney and client scale to
show the court’s displeasure at the
actions of the defendant,
by waiting until the last minute to admit the contents of the
experts’ reports. However, the fund
will be mulcted with the
costs of the experts, due to the defendant’s negligence or
wilfulness in not making decisions timeously.
The excuse that the
matter had been transferred to the present attorneys in December 2014
is not entertained as an excuse. It was
5 months before this trial
and more than enough time for the attorneys to get instructions from
the client.
[24] I therefore
grant judgment as follows:
1. The defendant
shall pay the sum of R1 493 984.18 (One million four hundred and
ninety three thousand nine hundred and eighty
four rand and eighteen
cents) to the plaintiff’s attorneys, Adams and Adams, in
settlement of the plaintiff’s claim,
which amount shall be
payable by direct transfer into their trust account, details of which
are as follows:
Nedbank
Account number:
[...]
Branch number:
198765 Pretoria
Ref: DBSA/WV/S825/09
2. The defendant
shall furnish the plaintiff with an undertaking in terms of section
17(4)(a) in respect of 100% of the costs of
the future accommodation
of the plaintiff in a hospital or nursing home or treatment of or
rendering of a service or supplying
of goods to him, after the costs
have been incurred and on proof thereof, resulting from the accident
that occurred on 8 August
2009.
3. The defendant
shall make payment of the plaintiff’s taxed or agreed party and
party costs on the High Court scale, which
costs shall include, but
not be limited to the following:
3.1 The fees of
senior-junior counsel on the High Court scale, inclusive of counsel’s
full reasonable day fee for 23 April
2015 and the reasonable costs of
preparation of the Heads of Argument, if any;
3.2 The reasonable
taxable costs of obtaining all expert, medico-legal, addendum
medico-legal and actuarial reports from the plaintiff’s
experts
which were furnished to the defendant;
3.3 The reasonable
taxable preparation, qualification, travelling and reservation fees,
if any, of the following experts to whom
notice has been given,
being:
3.3.1 Dr DA Birrell
(Orthopaedic surgeon);
3.3.2 Dr JJ du
Plessis (Neurosurgeon);
3.3.3 Ms N Heyns
(Occupational Therapist);
3.3.4 Dr M Mazabow
(Neuropsychologist);
3.3.5 Dr M Lebos
(Specialist Surgeon);
3.3.6 Dr JC Pearl
(Specialist Cardiologist);
3.3.7 Dr C Schamroth
(Specialist Cardiologist);
3.3.8 Mr CJ
Schoombee (Industrial Psychologist);
3.3.9 Mr GA
Whittaker (Actuary).
3.4 The reasonable
costs of all consultations between the plaintiff’s counsel, the
plaintiff, and the plaintiff’s attorney
in preparation for the
hearing of this action;
3.5 The reasonable,
taxable accommodation and transportation costs (including return
flight costs, Toll and E-Toll charges on each
occasion) incurred by
or on behalf of the plaintiff in attending medico-legal consultations
scheduled for him with all experts,
consultations with the legal
representatives and the court proceedings, subject to the discretion
of the Taxing Master.
3.6 The reasonable
costs of all consultations between the plaintiff’s experts,
counsel and attorney in preparation for the
hearing of the action;
3.7 The defendant is
liable for all costs pertaining to the hearing of the action on 23
April 2015 and the preparation for same
after the pre-trial
conference held on 20 April 2015.
3.8 The above costs
will also be paid into the aforementioned trust account.
3.9 It is recorded
that the plaintiff’s attorneys of record do not act in terms of
a contingency fee agreement for services
rendered.
4. The following
provisions will apply with regards to the determination of the
aforementioned taxed or agreed costs:
4.1 The plaintiff
shall serve the notice of taxation on the Defendant’s attorney
of record;
4.2 The plaintiff
shall allow the defendant 7 (seven) court days to make payment of the
taxed costs from date of settlement or taxation
thereof;
4.3 Should payment
not be effected timeously, plaintiff will be entitled to recover
interest at the rate of 9% per annum on the
taxed or agreed costs
from date of allocator/settlement to date of final payment.
Judge C Pretorius
Case number:
50133/2012
Matter heard on: 23
April 2015
For the Plaintiff:
Adv. JP van den Berg
Instructed by: Adams
& Adams
For the Defendant:
Adv.
Instructed by:
Mothle Jooma Sabdia Inc.
Date of Judgment:
2015