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[2015] ZAGPPHC 295
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Liebenberg v Road Accident Fund (56326/11) [2015] ZAGPPHC 295 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 56326/11
Date: 8 May 2015
In the matter
between:
SUNETTE
LIEBENBERG
............................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
.......................................................................................................
DEFENDANT
Coram:
HUGHES
J
JUDGMENT
Delivered on: 8 May
2015
Heard on: 19 March
2015
HUGHES J
1. The plaintiff,
Sunette Liebenberg, an adult female born on 20 November 1990 was
involved in a motor vehicle collision on 24 May
2008.
2. I do not propose
to deal with the facts of the collision save to say that the
plaintiff was a passenger and the respondent, the
Road Accident Fund
(RAF), conceded liability. The plaintiff was awarded 100% of her
proven damages.
3. The plaintiff
sustained a minor concussive head injury and soft tissue injuries to
her neck, lower back and both her knees. The
hospital records record
that she has no epilepsy, memory loss or depression because of the
head injury. After x-rays were processed,
she was fitted with a neck
collar for two weeks and provided with anti-inflammatories and
analgesics. Her injuries to her knees
remained painful for an entire
month and in 2011 Dr Tromp, an orthopaedic, performed an arthroscopic
debridement on both knees.
She attended physiotherapy in order to
decrease the pain, spasm and increase her joint mobility.
4. The parties have
settled the following heads of damages in the amounts set out below:
Past Medical
Expenses: R 11,823.23
Future Medical
Expenses: Undertaking in terms of S 17(4)(a) of the Road
Accident Act of 1996
General Damages: R
200,000.00
5. The issue left
for determination is that of future loss of earning capacity.
6. At the time of
the collision, the plaintiff was a scholar in standard nine. She
proceeded to obtain her matric and a short course
in Pastel
Accounting.
7. Dr Birrell, an
orthopaedic surgeon, instructed by the defendant examined the
plaintiff sometime in 2013 and he records the plaintiff’s
complaint as follows:
“
6
.
PRESENT
COMPLAINTS OF PATIENT
1. She cannot
wear high heels because of lower back and knee pain.
2.
Sitting for a long
time causes discomfort due to lower back pain.
3. She has pain
in her lower neck and over the scapular area, associated with
headaches. She also develops spasms when sitting for
long periods.
4. She sleeps
with a measure of discomfort and states that she has to use pillows
to position the knees, the lower back and the
neck.
5. She
experiences severe daily headaches, which do not respond to
painkillers. She is treated for this by a doctor (whose name
she
cannot recall) who uses anticonvulsant drugs.
6. She states
that her symptoms are worse in inclement weather.
7.
Sitting causes
pain in the lower back after a while.
8.
She cannot run or
lift heavy loads and bending is very uncomfortable. For this reason
she cannot bath and has to shower. ”
8. Dr Birrell also
recorded that the plaintiff has not sustained any past loss of work
capacity however, she has sustained between
5% and 6% present and
future loss of work capacity. No early retirement is anticipated.
9. Dr Birell goes on
to state that she has a 2% to 3% chance of requiring back and neck
surgery in the future. For the back surgery,
she will require 16
weeks of sick leave whilst the neck surgery will require her to be
off sick for 8 weeks.
10. The plaintiff
instructed Dr Enslin as their orthopaedic. He concluded that her
chronic non-specific neck pain was 2% whilst
her chronic non-specific
lumbar spine pain was 3%. Thus, her total whole person impairment
equated to 5%. Dr Enslin concluded that:
“
Ms
Liebenberg currently does not experience any serious impairment. She
should be able to perform her work tasks provided her back
and knee
symptoms do not become intrusive and she does not undergo failed
surgery to the various parts of the body that were injured
on
24.05.2008. The percentage probability that she will develop
intrusive symptoms in future is 10%".
11. Further, future
surgical treatment anticipated is as follows:
“
i
A
surgical stabilisation of the cervical spine and/or the insertion of
a disc prosthesis
There is a 4% to
5% contingency of occurrence.
Time off work
after this procedure will be two months.
ii A surgical
stabilisation of the lumbar spine and/or the insertion of a disc
prosthesis
There is an 8% to
9% contingency of occurrence.
Time off work
after this procedure will be three months.
iii Arthroscopic
debridement of both knees
There is a 60%
contingency of occurrence.
Time off work
after this procedure will be three weeks."
12. The occupational
therapist instructed by the plaintiff, Estelle Bester, noted the
following in her report:
“
Ms
Liebenberg has a grade 12 qualification and also completed a
three-week course in Pastel Accounting. She has worked in positions
of a cosmetic consultant, shop manager and personal assistant. She is
currently employed in her father’s hardware shop as
a shop
manager.
In her current
position, she is required to adhere to occasional handling of
sedentary weight, frequent sitting and occasional walking
climbing.
She reported increased pain with prolonged sitting and climbing
stairs. Fortunately, her position is as such that she
can alternate
regular between sitting, standing and walking.
She is unable to
squat and handle heavy weight, however, it is noted that she is a
lean, petite woman and would most likely not
have been able to handle
heavy work even since prior to the accident
Considering the
assessment results, the assessor is of the opinion that the claimant
should be able to continue working in her current
position and all
other sedentary, administrative type post. She would adapt her work
station to reflect ergonomic precision and
alternate between sitting,
standing and walking. She will additionally be able to function with
less pain and more physical comfort
provided adherence to
recommendations set out in this and other reports.
Should she seek
alternative employment, she will be limited to light weight handling,
infrequent bending and no squatting. She should
be allowed to
alternate between sitting, standing and/or walking. Given her work
history and petite frame, however, she will most
likely remain in
sedentary positions.”
13. Ms C. J. Nel, an
industrial psychologist, employed by the plaintiff conducted her
assessment of the plaintiff on 2 July 2013
and 5 November 2013. In
her report she states that the plaintiff is currently employed in her
father's business in an administrative
capacity. She was initially
placed in an office on the first floor but has been moved to the
ground floor, as the plaintiff complained
"that it was tiring to
use the stairs frequently". Immediately after this statement Ms
Nel records the following: "(Note
is taken that Ms Liebenberg
attends a gymnasium 5 times per week)".
14.
Ms Nel records the plaintiff's pre-morbid career path
"would
have entailed the execution of semi-skilled work probably of an
administrative nature.”
Past-morbid,
Ms Nel states that
"The
apparent impact of the accident and concomitant injuries on the
functioning is evaluated as trivial: Ms Liebenberg is
independently
mobile”.
15. Lastly, Ms Nel
in concluding her assessment states the following::
“
LOSS
OF EARNING
Since the
accident, she has worked as a sales assistant, shop supervisor,
personal assistant and sales representative and administrative
clerk
including for her parents' business.
At present, Ms
Liebenberg is performing the role of administrative clerk at Kanonkop
Hardware in Middelburg, her father’s
business. At present, she
earns R 6000p/m with no fringe benefits.
Future sick leave
associated with the recommended treatment could constitute a loss of
income i.e. forfeited leave.
Premature
retirement in not indicted by the appropriate expert.
Dr Enslin awarded
a WPl rating of 0.7%. She should be able to perform her work tasks
provided her back, neck and knee symptoms do
not become intrusive or
it surgery fails. She has a 10% possibility of developing intrusive
symptoms in future.
According to Ms
Bester, she should be able to continue working in her current
position and all other sedentary and administrative
roles also in the
light of her petite frame.
Mr Roper
concluded that she has developed a Posttraumatic Stress Disorder as
well as symptoms of a Major Depressive Disorder likely
aggravated by
her pending divorce.
Based on the
opinions of the experts and this assessment it appears that Ms
Liebenberg is able to continue in her current role and
other work
roles of a sedentary/administrative nature.
It would appear
that her career prospects and level of occupational functioning have
been truncated to a trivial degree by the sequelae
to the injuries
sustained in the accident. Concomitantly her competitiveness in the
open labour market has remained mainly unaffected.
In respect of her
likely post-morbid earning level the following inference is drawn:
Her likely pre
and post-morbid earning levels remain comparable.
However, the pain
and suffering portion of the claim should address any pain or
discomfort that she experiences in a work context
and additional
effort require on her part.
CONCLUSIONS
It is concluded
that her earning capacity and likely future earnings have been
curtailed to a trivial degree but resulted in no
direct loss of
income since the individual is considered to be employable much at
her pre-morbid level of functioning."
16.
For the plaintiff to succeed with her claim for loss of earning
capacity, it is trite law that the loss suffered must result
in a
diminution in her patrimony. See SANTAM VERSEKERINGSMAATSKAPPY BPK v
BYLEVELDT
1973 (2) SA 146
(A); DIPPENAAR v SHIELD INSURANCE CO LTD
1979 (2) SA 904
(A) and RUDMAN v ROAD ACCIDENT FUND
2003 (2) SA 234
(SCA) paragraph
[
8
]:
“
[8]
The trial Judge dismissed the claims for past loss of earnings and
loss of earning capacity for the following reasons:
'On the evidence
before me I must conclude that the losses suffered as a result of the
temporary decline in the income generated
by the professional hunting
and professional outfitter operations due to the incapacity of the
plaintiff are losses suffered by
the company and do not represent a
diminution in the patrimony of the plaintiff. I may pause to remark
that the fact that the plaintiff
personally is registered as the
professional outfitter does not change the situation. According to
the evidence before me it must
be held that he was employed by the
company in order to conduct that section of the business. The same
holds true of the costs
of employing a professional hunter to stand
in for the plaintiff as well as the employment of the repair and
maintenance manager.
. . . These persons are also employed by the
company to take over functions performed by the plaintiff and they
are paid by the
company. Any loss which may have occurred as a result
thereof is a loss to the company and not to the plaintiffs private
estate.
It follows that in real terms the plaintiffs private estate
was not diminished due to his incapacity.
In my judgment the
plaintiff has failed to prove that his patrimony was diminished due
to any loss of earning capacity past or future
resulting from his
injuries and consequently he has failed to prove any entitlement to
be compensated in respect of these heads
of damages.'
In
other words, the learned Judge concludes that, although Rudman has
proved physical disabilities which, potentially at any rate,
could
give rise to a reduction in his earning capacity, he has not proved
that this has resulted in patrimonial loss.
He
has
not
proved that the reduction in earning capacity translates into loss in
the sense that
his
patrimony after the delict was less than it would have been if the
delict had not been
committed.”
My emphasis.
17. Adv. Botha, for
the plaintiff argued that there was no direct loss of earnings as
reflected in the reports. However, this was
an ideal case to adopt
the mathematical approach by using Dr Birrel's total whole person
impairment of 5%, which clearly indicates
that in the future her
capacity to earn would be compromised by 5%, in order to calculate
the plaintiff’s compromised future
loss of earning capacity.
18.
Adv. Rabayan, for the defendant, argued that it’s evident from
the reports that the plaintiff’s patrimony has not
been and
will not be diminished at all. Even though the reports state that the
plaintiff has loss of capacity to work, the said
loss has not
resulted in a diminution of her patrimony. She would stiii earn what
she would have earned had the accident not occurred.
The correct
approach to factor in her 5% total while person impairment was to
factor this in under the heading of general damages.
19. I agree that it
has been proven that there is indeed a reduction in the plaintiff’s
capacity to earn, be it 5% as indicated
by Dr Birrel; however Ms Nel
was correct to conclude that it is but trivial. The result is, it is
so trivial it does not even translate
to a reduction of the
plaintiff’s patrimony having regard to the collision.
This indicates that
she would not earn less than what she would have earned had the
collision not taken place.
20. Adv. Botha's
reliance in SOUTHERN INSURANCE ASSOCIATION LTD v BAILEY NO
1984 (1)
SA 98
(A) as regards the application of a mathematical calculation
approach, rather than the application of round estimate made by a
Judge. In the circumstances of this case it is ill-conceived because
in the case of BAILEY, the injured was a young child who suffered
a
severe head injury as result of an accident, which resulted in "very
severe intellectual and emotional retardation; ...
inability to
control her bladder and bowel functions; generalised clumsiness and
spasticity of limb movements with weakness; squinting
of the right
eye outward; enlarged and unresponsive to light." (See BAILEY at
110 A-D) This resulted in the child's earning
capacity being
destroyed completely. She would never be able to earn anything.
21.
BAILEY, above, is clearly distinguishable from the case at hand. The
capacity to earn, as a result of the accident, was taken
away
completely from the child and it resulted in a diminution in the
child’s patrimony. The plaintiff in this case has no
diminution
in her patrimony at all; she will still earn what she would have
earned had the collision not taken place. See BAILEY
supra
at
paragraph 111 F-G.
22. The fact that
her total whole body is impaired by 5% does not result in her
patrimony being diminished in any way whatsoever.
23. In light of the
above and as a result of the injuries sustained by the plaintiff, she
has failed to prove that her patrimony
would be diminished due to any
loss of her earning capacity in the future. In my judgment I find
that the plaintiff has failed
to prove any entitlement in respect of
future loss of earning capacity.
24. In conclusion I
make the following order;
24.1 The defendant
is ordered to pay an amount of R 200,000.00 in respect of General
damages.
24.2 The defendant
is ordered to pay an amount of R 11,823.23 in respect of Past Medical
Expenses.
24.3 The defendant
is ordered to issue an undertaking to pay all the plaintiff’s
future medical expenses arising from the
injuries sustained in the
collision in accordance with
section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
.
24.4 The defendant
is ordered to pay, on a party and party scale, the costs of the
action excluding the costs of the proceedings
on 19 March 2015;
24.5 The plaintiff’s
claim for future loss of earning capacity is dismissed.
24.6 The plaintiff
is ordered to pay the costs of the proceedings of the 19 March 2015.
W. Hughes
Judge of the High
Court
Attorney for the
Plaintiff:
GERHARD VAN ZYL
ATTORNEYS
1235 Cobham Road
Queenswood
PRETORIA
Tel: 012 333 8290
Ref: GN5316/C
ROUX/cs
Attorney for the
Defendant:
MOTHLE JOOMA SABDIA
Ground Floor Duncan
Manor
Cnr Duncan & Brooks
Street
PRETORIA
Tel: 012
Ref: A VAN DER
MERWE/nb/JK522