About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 292
|
|
Shongwe v Road Accident Fund (A466/2013) [2015] ZAGPPHC 292 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: A466/2013
DATE:
8/5/2013
IN
THE MATTER BETWEEN
POPI
IRENE
SHONGWE
................................................................................................
APPELLANT
AND
ROAD
ACCIDENT
FUND
............................................................................................
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1] This
is an appeal flowing from a typical action for damages arising from
personal injuries sustained in a motor collision, and
the claim was
launched in terms of the provisions of the Road Accident Fund Act,
Act no 56 of 1996 ("the Act").
[2] The
appellant is a 50 year old female teacher.
On 3
October 2005 she was involved in a motor collision and seriously
injured.
[3] The
main injury sustained was a compression fracture of the T8 thoracic
vertebra with 40% height loss over the anterior aspect.
She
also sustained contusions, abrasions and lacerations and there was a
head injury with loss of consciousness. The injuries
were
accompanied by shock and psychological trauma.
[4] In a
medico legal report dated July 2010, the occupational therapist,
Ms Jacobs, describes the condition of the plaintiff
as follows,
with particular reference to her ability to compete on the open
labour market:
"Considering
the assessment results, it is clear that the client is currently
coping with her job, however with pain and discomfort,
especially
with regard to the prolonged standing requirements, as she is
required to stand for a full 50 minute period for
up to 6
periods a day. It is recommended that the client be allowed to
sit while teaching as this will greatly improve her
pain levels and
subsequent feelings of fatigue. In addition the client will
benefit from a bag on wheels in order to carry
her required
stationery and books between classes. Given the implementation
of this and all the other suggested recommendations
in this and other
reports, the client will most probably experience less pain and
discomfort.
The
assessor is of the opinion that the client will be able to continue
her occupation as a teacher. However, the accident
in question
has had a negative effect on her function due to pain and discomfort
over her thoracic spine. Should she seek
alternative
employment, she would be limited to work of a sedentary to light
classification and may find working in a physically
demanding job
challenging. However, given her career history and level of
education, it is highly unlikely that Ms Shongwe
will return to
a physical demanding job. Additionally, she will continue to be
reliant on a sympathetic employer and will
remain a vulnerable
employee."
[5] A
specialist neurosurgeon, Prof Lekgwara, postulates that the plaintiff
has a 20% to 30% chance of developing thoracic spine
degenerative
disease. In this event, she may require surgical treatment in
the form of a thoracic discectomy and fusion with
instrumentation.
[6] With
regard to the appellant's earning capacity, an orthopaedic surgeon,
Dr J J L Heymans, says the following
in a
medico-legal report dated July 2010:
"
Invloed
op werkvermoë:
Die pasiënt
is 'n onderwyseres. Na die ongeluk was sy vir drie maande met
siekteverlof waarna sy haar werk hervat
het. Volgens die
pasiënt ervaar sy tans pyn en ongemak in haar rug wanneer sy
haar werk verrig, veral wanneer sy lank
staan en klas gee. Sy
het ook 'n probleem met die sport afrigting wat sy tot en met die
ongeluk gedoen het. Met die
voorgestelde behandeling behoort
die pasiënt se simptome tot so 'n mate te verbeter dat sy geskik
behoort te wees om ligte
werk te kan verrig. Die pasiënt
is nie geskik om swaar voorwerpe te hanteer en vir lang periodes te
staan nie.
Indien sy met hierdie beperkinge in diens gehou kan
word, behoort sy 'n normale arbeidslewensspan te hê."
[7] In a
medico-legal report of August 2010, an industrial psychologist,
Dr Henk Steyn, postulated that, but for the injuries,
the
appellant would have been promoted to the position of head of
department at least ten years before retirement age of 65 years.
With her present disabilities and curtailed capacity in the work
place, such a promotion is no longer likely.
[8]
Against this background, the actuary, Dr Robert Koch, was instructed
to calculate the estimated future loss of earnings or loss
of earning
capacity of the appellant. I will revert shortly to the
contents of Dr Koch's actuarial report.
Procedural
history of this case
[9] The
collision occurred on 3 October 2005.
[10] The
action was instituted in June 2008.
[11] On
15 June 2012, the defendant's defence was struck out by this court
during interlocutory proceedings, for lack of compliance
with the
rules by the defendant.
[12] On
22 August 2012 the trial came before this court. The defendant
was in default, but the defendant's counsel announced
his appearance
and applied for a postponement which was refused.
The
trial proceeded on the question of
quantum
.
The negligence issue fell by the way side, when the defence was
struck out. Counsel for the defendant was also allowed
to take
part in the proceedings and to cross-examine the appellant when she
gave evidence as plaintiff. The learned Judge
summarised part
of the appellant's evidence as follows:
"After
seven years she still experiences pain in her spinal cord, and it is
getting worse. She is unable to walk or stand
for lengthy
periods of time, neither can she sit for long. She is now 48
years of age. She is employed as a teacher
and is experiencing
trouble performing her duties. As a result of the injury to her
back she is not anymore able to coach
sport at school. She also
experiences problems having sexual intercourse with her husband,
resulting in marital problems.
During cross-examination by Mr
Monyane she stated that she has not heard of any complaints from her
employer."
[13] In his
judgment, the learned Judge analysed the medico-legal evidence, and
the evidence of the plaintiff, and found that no
case had been made
out for compensation for loss of future earnings or loss of earning
capacity. The learned Judge made the
following award:
Past
medical expenses
R
16 849,05
General
damages
R300 000,00
An
undertaking in terms of section 17(4)(a) of the Act in respect of
future medical and related expenses
Costs
The
monetary award therefore came to R316 849,05.
[14] An
application for leave to appeal was dismissed by this court, but
granted by the Supreme Court of Appeal, on petition, on
6 March
2013. The costs order of the court
a quo
in dismissing the application for leave to appeal was set aside and
it was declared that the costs of the application for leave
to appeal
in the Supreme Court of Appeal and in the court
a quo
are costs in the appeal.
The
leave to appeal was limited to that part of the judgment of this
court dismissing the appellant's claim for loss of earnings
and
earning capacity.
[15] On
this narrow issue, the appeal came before us. Mr Nel appeared
for the appellant. There was, not surprisingly,
no appearance
for the respondent.
[16]
Returning to the actuarial report of Dr Koch, he based his
calculations and assumptions on the medico-legal evidence and,
particularly, on the postulation by the industrial psychologist that
the appellant would have been promoted to head of department
at age
55 (pre-morbid) but, as a result of the injury sustained, this
promotion would no longer take place.
The
future income calculated pre-morbid came to R4 519 351,00 and in the
injured scenario to R3 272 594,00.
We
debated with counsel what a realistic deduction in respect of general
contingencies would be. We came to the conclusion
that a 20%
deduction in respect of the pre-morbid earnings and a 10% deduction
in respect of the post-morbid earnings would be
appropriate.
This translates to an award of R670 146,00 in respect of future
loss of earnings or loss of earning capacity.
[17] In
the result, the appeal falls to be upheld and the award made by the
learned Judge set aside and replaced with the higher
award which will
include the amount calculated in respect of the loss of future
earnings or loss of earning capacity.
[18] The
order of this court of 4 September 2012, in paragraphs 2 and 3
thereof, already makes provision for the furnishing of the
undertaking in terms of section 17(4)(a) of the Act and for payment
of the appellant's taxed or agreed party and party costs including
the costs of senior counsel and the preparation and reservation fees,
if any, of the relevant medical experts and the actuary.
Consequently,
it is only paragraph 1 of the order of the court
a quo
providing for the award of R316 849,05, which falls to be set aside
and replaced with the higher award of R986 995,00.
The order
[19] I make
the following order:
1.
The appeal is upheld with costs.
2. Paragraph 1 of the order of this court of 4 September
2012 is set aside and replaced with the following:
"The defendant is ordered to pay the plaintiff the
sum of R986 995,00 directly into the trust account of the plaintiff's
attorney,
G P Venter Attorneys, Standard Bank, Hatfield
branch, (Branch code: 011545), account no: 012543519 together with
interest
thereon at the rate of 15,5% per annum alternatively 9% per
annum, calculated from 14 days after this award to date of payment."
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
A466/2013
I
agree
N
M MAVUNDLA
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
I
agree
A
A LOUW
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 25 FEBRUARY 2015
FOR
THE APPELLANT: P NEL
INSTRUCTED
BY: G P VENTER ATTORNEYS
FOR
THE RESPONDENT: NO APPEARANCE