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[2015] ZAGPPHC 406
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Viljoen v Road Accident Fund (25773/2013) [2015] ZAGPPHC 406 (10 June 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 25773/2013
DATE:
10/6/2015
In
the matter between:
PIETER
EDUARD TOERIEN VILJOEN
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
POTTERILL
J
[1]
The plaintiff instituted action against the Road Accident Fund
(hereinafter referred to as “the Fund”) for personal
injuries flowing from a collision on 17 May 2008 wherein the
plaintiff was a passenger. The Fund conceded the merits of the
matter on a 100 % basis in favour of the plaintiff.
[2]
The parties settled general damages in an amount of R300 000.
The Fund gave an undertaking in terms of
section 17(4)
of the
Road
Accident Fund Act 56 of 1996
for future medical hospital and related
expenses.
[3]
The only issues in dispute were the loss of earnings and/or the loss
of earning capacity of the plaintiff. The Fund had
no expert
reports and accepted the expert reports filed on behalf of the
plaintiff.
Summary
of evidence
[4]
The plaintiff was [….] years old at the time of the accident.
He testified that after the accident the paramedics
examined him and
told him that his injuries were “
not
too bad”
and he was accordingly not taken to hospital. Dr. Pretorius,
the industrial psychologist, stated that he was in fact informed
that
the plaintiff waited for two hours after the incident for an
ambulance to arrive and later just went home. The plaintiff
did
however experience a stiff neck and his lower back was painful.
He went to his personal doctor, whose name he cannot
recall, and the
doctor prescribed a muscle relaxant.
[5]
The plaintiff gave no evidence as to what impact the accident had on
his health from the day following the accident until August
2011,
i.e. a three year, three month period. From Dr. Piet
Engelbrecht’s, the orthopaedic surgeon, report it is clear
that
the doctor also had to question the patient as to what transpired in
this period and I quote from page 3 paragraph 3 of his
report:
“
At
this stage the patient was questioned directly regarding the period
2008 until 2011. He states that his left arm started
to be
symptomatic with loss of sensation approximately one month after the
incident. Initially symptoms subsided spontaneously,
only to
recur during the period of 2008 to 2011.”
[6]
In 2011 he came to Pretoria to visit and he was suddenly immobilised
in that he experienced a loss of sensation and function
of his left
arm. He went to see a doctor and he was referred to Dr. J. du
Plessis. After consultation Dr. Du Plessis
suggested that a
neck operation must be performed immediately. This in fact
transpired and he spent two days in ICU and four
days in the unit.
He was booked off for six weeks after the operation.
[7]
It was his evidence that he still has constant pain in his neck and
lower back despite the operation. He therefore attends
sessions
at a physiotherapist when he can afford to do so. He also takes
muscle relaxants on a chronic basis. The injuries
impacted on
his life in that pre-accident he was very sporty and did archery,
fishing whenever he could, hunting and he played
cricket. He
cannot partake in these activities any longer. He cannot do
basis tasks in his everyday life for instance
he could not carry a 20
kg dog food bag or cut the lawn as the vibration of the lawnmower
caused him pain.
[8]
In his work life he is hampered because he cannot sit and stand for
long periods. Currently he is a lecturer at Sol-Tec
College
where he is a theory lecturer fitter and turner. This requires
from him to stand from 08:00 to 15:00 every day and
he finds that
difficult. He finds the stairs at Sol-Tech challenging and he
also struggles to carry his study material.
He also struggles
to sit and mark papers for lengthy periods of times.
[9]
Despite these challenges he dearly would want to become an artisan
himself and to do so he would need to obtain his “Rooi
Seël”.
To achieve this he would have to take 18 months to 2 years off work.
This would put him in a position
to also teach the practical part and
not only theory. He does however foresee that lecturing in the
practical part would
be an uphill battle as he cannot stand long
hours at the machines. He would also battle to physically
handle the machines
as it would cause him pain. The vibration
of the machines vibrates in his neck and causes him pain and
suffering. He
did however persist in attaining this goal as it
would afford him an opportunity to move up to the Head of the
Department or even
be the Head of Sol-Tech. On a question
by court he conceded that his ambition to obtain this goal is futile
and misplaced
and reliance thereon in scenario 2 (actuarial
calculation of loss of earning capacity) is thus not achievable.
This was also
confirmed by his evidence that another college had
approached him, he had obtained the job, but then had to inform the
college
that he would not be able to do the practicals and he did not
obtain this employment. Dr. Pretorius also testified that
scenario
2 is not the correct scenario to employ.
[10]
Although the witness initially testified passionately that he wanted
to move upward in an institution like Sol-Tech, he then
when
confronted with the futileness of the scenario, informed the court
that his real passion is teaching at school level.
[11]
From his employment history it was clear that he started his career
at Hoër Tegnies Tom Naudé Skool employed as
a governing
body post which he did for two years. From the report of Dr.
Pretorius it seems that he moved from Hoër
Tegniese Tom Naudé
Skool to Laerskool Pietersburg. Thereafter he worked as a shop
assistant in a bow shop and followed
that up with employment at
Hoërskool Frans du Toit for a year. He then in 2012 took
up a teaching post at Hoërskool
Overkruin followed by in 2013
teaching at Hoër Tegniese Skool John Vorster. From both
the occupational therapist’s
report as well as Dr. Pretorius’
report it was noted that he left Tom Naudé Higher Technical
School for a better salary.
On the occupational therapist’s
report he left Pietersburg Primary School and Overkruin High School
for better salaries.
According to Dr. Pretorius’ report
he left Hoërskool Frans du Toit because of the fusion and his
prolonged absence from
work. From the occupational therapist’s
report it was noted that he left the school as he was unable to coach
rugby
due to neck pain. In his evidence in chief Mr. Viljoen
persisted that the fact that as a male teacher he could not coach any
sport he would not be able to advance to a Department Head or a
Principal. He was also not competitive as the schools would
opt
for a male teacher who could coach as well.
[12]
It was strange that the witness was being appointed at schools as an
educator without him having any qualification. From
questions
from the court it became clear that they appointed him on the
subjects that he had passed doing his Civil Engineering
degree.
It later in his evidence transpired that in fact he had attained a
civil engineering degree, but he had never obtained
the degree
certificate due to having outstanding fees.
[13]
Despite this he the next year started with mechanical engineering
again at the University of Pretoria. The plaintiff
however
proceeded to study his BEd in the year 2004 at the University of
Pretoria. He did so after he had obtained his degree
as a civil
engineer. He did not complete his studies after 2006 as he had
financial limitations due to the passing of his
father. He
started studying BEd at Unisa in 2007 up to 2015. Unisa did not
recognise any of the subjects that he had
passed at the University of
Pretoria. To Dr. Pretorius he had reported that out of 40
modules he only had 15 modules to complete.
In evidence in
chief he testified that dependent thereon that he passes 3 modules
this year he would be left with 22 modules.
The witness has
thus been studying from 2004 until 2015 to obtain his BEd degree.
He acknowledged that without a degree any
upward movement in teaching
is unrealistic. According to the witness this is however not
the problem, the main career limiting
element was that he could not
coach sport. It was however n cross-examination revealed that
despite him not coaching he was
at the very least acting as a cricket
umpire which entailed that he would stand for at least 3 hours at a
time.
[14]
The plaintiff also called Dr. Pretorius to testify. He sketched
two potential career scenarios:
Scenario
1
Employment
as a teacher at a primary or secondary school. With
satisfactory work performance the plaintiff would have grown
his
career earnings with at least one notch per annum. He would
also have been able to secure a HOD position at around age
40.
His chances to secure a promotional position after the age of 40 is
unclear considering his education and work history.
The very
small possibility of promotion to a Deputy Principal at around 50 to
55 could however not be ignored.
Scenario
2
Alternatively
Mr. Viljoen could have completed his training as educator and could
then have secured employment at a FET college
like Sol-Tech. He
could have secured a lecturing position. He however in evidence
in chief conceded that scenario 1
was the better scenario.
[15]
In a nutshell Dr. Pretorius testified that but for the accident the
plaintiff’s career as an unqualified teacher would
have
followed a pattern of limited unemployment and constant renewal of
contracts and his earnings would at least be comparable
to his post
accident earnings. Put differently, the rate that he earned pre
and post accident in a teaching role postulated
no difference.
If he had qualified as an educator towards the end of 2014 then at
very best for the plaintiff there could
only be a past loss of income
for the period 2015 up to the date of the trial.
[16]
Dr. Pretorius found it strange that the plaintiff never informed him
of his engineering studies and that he had in fact obtained
a
degree. He also confirmed that if that had been revealed to him
it would have impacted on his report. Dr. Pretorius
testified
that the impact on the plaintiff’s earning capacity was only
that his growth would be slower; it would take
him four years
longer to reach a Head Department post. The sequilae of his
injuries would accordingly not affect him reaching
the pinnacle of
his career, it would just take him longer. It was also his
opinion that the plaintiff would be less competitive
because of his
inability to coach sport in that it would impact on his promotion.
It was further his opinion that the plaintiff
had a 15 % loss of work
capacity and not 30 % as opined by Dr. Engelbrecht. He
reiterated that the plaintiff did not suffer
any past loss of
income.
[17]
Mr. Viljoen did not make a good impression on the court. From
beginning to end there was a thread of inconsistencies
in his
evidence. The record shall reflect that the witness testified
that the day after the accident he went to his “
personal
doctor”
but he could not remember his name. In cross-examination he
said that it was not his personal doctor it was a GP i.e. a general
practitioner. This is relevant as to the treatment he received
and how reliable the treatment was. The only treatment
was
muscle relaxants for the period; not indicative of a serious
injury. Directly after the accident he went to work;
once
again not indicative of any serious injury. In court he
testified that the paramedic told him that his injury is not
“too
bad” yet he informed Dr. Pretorius that the paramedics took so
long to come that he just went home.
[18]
This witness is silent about any doctors’ visits, therapy or
any kind of medical treatment for the period 2008 (after
date of
accident) until the date of the operation in 2011. The
defendant’s submission is correct that if Mr. Vijoen
was in
such severe pain and agony he should have mitigated his damages by
seeking another doctor’s opinion, going to the
physiotherapist
and/or rendering his environment friendly to his situation, for
instance egonomic chairs, a briefcase on wheels,
a tilted working
station etc. By not taking these steps and not testifying to
any of these steps being taken the plaintiff
exasperated his
situation.
[19]
In court he testified that at the time of the collision he worked in
the bow shop (an archery shop) where he had to assist
clients.
This was confirmed by the occupational therapist, but the industrial
psychologist submitted that at the time of
the accident he worked at
the Laerskool Pietersburg. In cross-examination when confronted
by a letter from a Mr. Potgieter
from Laerskool Pietersburg the
witness admitted that he did work at Laerskool Pietersburg at the
time of the accident. He
also told the court that he had to
leave the bow shop because he could not actively assist the clients
anymore due to his injuries,
yet in the occupational therapist’s
report on page 6 the following is stated:
“…
He
states that he worked at The Bow Shop as a manager in Polokwane.
He had worked there for a few months before the accident
occurred.
Upon his return to work his job description remained the same.
Mr Viljoen states that he continued with his
work functions and then
subsequently went on to work as a teacher (unqualified) as described
in the table above.”
Nothing
was said to the occupational therapist that he had to leave The Bow
Shop because he could not perform his functions.
[20]
This witness obtained employment at Sol-Tech in 2014, six years after
the accident and three years after the operation.
He told the
court that he loved anything technical and loved technical teaching.
That is why after civil engineering he went
to mechanical
engineering. This was his passion and he wanted to be a Head of
Department at Sol-Tech or in fact he wanted
to be the Head of
Sol-Tech itself. In his evidence in chief he told the court
that Sol-Tech was putting pressure on him to
teach the practical but
that he could not do this due to his inability to stand and
illustrate with the machines and also physically
work with the
machines. Dr. Pretorius contradicted this and testified that
Sol-Tech would love to attain his services at
the theory level
because the students were performing brilliantly. In fact
Sol-Tech had given him two options, not only pressuring
him to do the
practical; if he did a BEd he could stay on as a lecturer of
theory. This “pressure” does
not exist and was
created and blown up to cater for a post-accident scenario wherein
his dreams have been crushed; but for
the accident he would
have attained a full time post at Sol-Tech. He simply could not
have achieved this, he did not have
a BEd and he did not have a “Rooi
Seël” pre-accident. When he was confronted with the
futileness of this
scenario he then informed the court of his real
passion.
[21]
This passion was teaching at school level. The reason was that
he could impact on the forming of a student’s life
at school
level whereas the N1 and N2 students did not want to be at Sol-Tech
and he had little impact on them as people.
The accident had
however impacted on this dream because he could not renew contracts
and compete with male counterparts who could
coach athletics, soccer,
cricket and rugby. Yet again there is a question mark about
this evidence because his own occupational
therapist reports that the
plaintiff left most of his posts teaching for better salaries.
The situation is simply the following;
he had no teaching
qualification and without any teaching qualification he would only be
appointed on contract. He did not
have a BEd before the
accident and until today he does not have such qualification.
Dr. Pretorius could not forward any reasons
as to how the accident
had impacted on the plaintiff not obtaining his degree. The
plaintiff himself testified that for 2011
he did no studying due to
the fact that he could not sit and stand for long periods. Even
if I accept that for 2011 he could
not write examinations, three
years later the plaintiff still has no qualification. In the
report of Dr. Pretorius it recorded
that Unisa did not recognise any
of the subjects that he passed at the University of Pretoria in the
years 2004 to 2006.
Yet in court he testified that the BEd is
80 modules, but that Unisa had recognised 40 so he only had to
complete 40 modules.
The plaintiff thus had from 2004 to 2015
(11 years) not obtained his BEd. The non-obtaining of the BEd
is definitely not
due to the accident.
[22]
The only question thus remaining is whether the fact that the
plaintiff cannot coach renders him a monetary award for loss
of
earnings or earning capacity. Dr. Pretorius testified that he
would obtain a job as a teacher, but the fact that he did
not coach
would impact in that it would take him four years longer to reach
Head of Department. The plaintiff himself testified
that he
could not compete because he could not coach, yet in
cross-examination he informed the court that he went on cricket and
rugby tours and on the cricket tour he umpired for three hours at a
time; i.e. standing still for three hours. The
afterthought of “
yes,
but he could move a little bit while standing”,
is rejected because he can also move a little bit while lecturing or
coaching.
[23]
The court does not readily deny a plaintiff a patrimonial claim for a
true loss of earning capacity. On the other hand
a court is
loath to grant an unjustified claim and has a duty to protect the
taxpayer’s money. In
Bvuma
v RAF
2012
SA (GSJ)
case
number 2010/17220 delivered by Satchwell J on 14 December 2012 the
following was found:
“
[10]
There is no information before the court from the Department of
Education or elsewhere:
a.
…
b.
Setting out the duties and responsibilities of South African primary
school teachers with
regard to afterhours extra-mural activities.
I do not know if there could be any adverse consequences if Mrs Bvuma
cannot
or does not coach sports.”
“
[13]
It is expected in litigation seeking compensation for loss of
earnings or earning capacity that evidence is obtained
by the
attorneys from the horse’s mouth – as opposed to hearsay
information distilled through such ‘medical experts’
who
may not seek out original sources concerning employment.
[14]
For instance, in
Fulton
v Road Accident Fund (2007/31280) [2012] ZAGPJHC 3;
2012 (3) SA
255
(GSJ) (1 February 2012)
,
claimant’s direct employer, the principal of the school at
which she was teaching, testified to what exactly was required
of her
in the classroom and on the sports field and by way of administrative
duties and he was able to comment exactly how and
to what extent she
was or was not able to carry out those responsibilities post accident
and the implications for the school and
for her career.
Similarly, in
Seconds
v RAF
[2008] JOL 22074
(EL)
,
the principal of the school where the claimant taught gave evidence
as to the activities required of a primary school educator,
the
nature and amount of mobility required of the claimant in the
classroom, the content of applicable regulations concerning both
mobility and performance of extra-mural activities and retirement
options available to teachers.”
[24]
In
casu
I
have the expert stating that the plaintiff shall be appointed as a
teacher despite the plaintiff not being in a position to coach.
The plaintiff contradicted this and stated that he will not be
appointed and his contracts were in fact not renewed. I have
no
evidence from the Principal or the Education Department to clear up
the conflicting evidence. I am in any event not convinced
that
if the plaintiff can umpire he cannot coach.
[25]
I have no evidence from the Department of Education or Principal that
if the plaintiff is an excellent teacher, which he seems
to be, he
would not be promoted to Head of Department because of his lack of
coaching. This was the only factor left to base
a decision on
as to whether there was a loss of earnings or loss of earning
capacity.
[26]
I find it disturbing that the counsel for the plaintiff would persist
with a claim for past loss of income when the plaintiff’s
own
expert testified that there was no past loss of income.
[27]
I am accordingly satisfied that the plaintiff did not prove any loss
of earnings or earning capacity.
[28]
I mark the draft order “X” and make it an order of
court. I have in paragraph 1 filled in the amount of R300 000
constituting the amount of general damages for pain and suffering.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 25773/2013
HEARD
ON: 7 May 2015
FOR
THE PLAINTIFF: ADV. R.D. DE ALCANTARA
INSTRUCTED
BY: Savage Jooste & Adams Inc.
FOR
THE DEFENDANT: ADV. T.K. MOTLOUNG
INSTRUCTED
BY: Iqbal Mahomed Attorneys
DATE
OF JUDGMENT: 10 June 2015