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[2015] ZAFSHC 130
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Putsane v Road Accident Fund (1811/2009) [2015] ZAFSHC 130 (25 June 2015)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 1811/2009
In
the matter:
LEHLOHONOLO
EMMANUAEL PUTSANE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM
:
MIA,
AJ
JUDGMENT
:
MIA,
AJ
HEARD ON
:
20
MAY 2015
DELIVERED
ON
:
25
JUNE 2015
[1] On 1 March 2007 at approximately
06h50, a collision occurred near Dewetsdorp Road, Bloemfontein, Free
State, between a motor
vehicle bearing registration number [……]
and a motor vehicle bearing registration [……..]. The
plaintiff
was conveyed in the latter vehicle. Both drivers were
insured. As a result of the collision the plaintiff suffered injuries
including a fracture of his right distal tibia-fibula and a swollen
and bruised left eye and cheek.
[2] The plaintiff was taken to
Pelonomi Hospital where his injuries were assessed and x-rays taken.
He was administered medication
for pain, namely analgesics. The
following day, 2 March 2007, he underwent an open reduction and
internal fixation to repair the
right tibia-fibula fracture.
Initially, he had a plaster cast applied to his right leg and used
crutches to walk. He underwent
physiotherapy and received follow up
treatment. He still experiences pain and discomfort as a result of
the injuries he sustained.
The pain and discomfort affects his
mobility and his ability to work. As a result the plaintiff avers
that he suffered a loss of
past earnings and will in the future
suffer a loss of earnings. The plaintiff claims an amount of R1 369
350 from the Road Accident
Fund.
[3] At the commencement of the trial,
counsel for both parties indicated that certain aspects of the claim
were resolved, namely,
general damages had been agreed upon at R250
000; the claim for future medical expenses was resolved in that the
defendant, the
Road Accident Fund (RAF) had furnished an undertaking
to pay future medical expenses in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
; it was agreed that the costs of
past medical expenses would not be paid to the plaintiff as he had
received treatment at State
hospitals and there were no receipts to
prove payment of monies. The only issue the parties wished the court
to determine was the
loss of earning capacity and future loss of
earnings. The plaintiff called three witnesses, the plaintiff; an
occupational therapist
and an industrial psychologist. The parties
agreed that the findings of the orthopaedic surgeon’s reports
dated 24 March
2011 and 12 November 2014 were not in dispute and were
to be accepted. The defendant called no witnesses.
[4] The plaintiff was in grade 9 when
the accident occurred in 2007. He commenced grade 10 in 2008 and
repeated grade 10 in 2009
and 2010. In 2010 he left school as his
father could not cover the cost of schooling for another year. He
obtained temporary employment
at Victor Logistics in 2010 where his
father was employed. This work was erratic as he was called in on
short notice when permanent
employees did not arrive. He received a
cash payment of R100 per day and worked approximately five days per
month. He was
employed for approximately three to eight
months. He then found employment at a company called Supergroup in
2012 where he packed
goods per clients’ instructions. He was
required to climb stairs to reach goods on higher shelves and often
worked through
his lunch time to catch up with his work as he could
not keep the same pace as his colleagues. Due to the injuries he had
sustained,
he experienced difficulty climbing stairs as his knee was
not stable with the full weight of his body on one leg in mid- air
whilst
climbing up ladders. He still experiences pain in the knee
during cold weather and cannot stand for long hours.
[5] The occupational therapist Ms.
Letitia Delport (Ms Delport) qualified with a Bachelor of
Occupational Therapy degree from the
University of the Free State in
1995. She worked at Pelonomi Hospital after her graduation. She
attended to rehabilitation and
vocational evaluation of clients from
1995 to 2007. She commenced a private practice in 2007 and has been
compiling medico-legal
reports since then. She sees on average 50
cases per year. Her evaluation sessions last approximately three
hours long and the
tests are repetitive in nature in some instances.
She is then able to determine how an injury impacts on a client’s
normal
functioning.
[6] According to Ms Delport the
plaintiff could perform most tasks once. He could not however perform
physically demanding tasks.
She testified that it meant that tasks
like general labour, gardening work and any work with high physical
demands were not suitable.
She also explained that the plaintiff
would not be in a position to perform work where he would have to
climb ladders. He would
not feel comfortable on a ladder as it
required him to shift all the weight to one leg and the right leg in
particular would not
feel secure whilst climbing on a ladder. She
expressed the view that the plaintiff would struggle to find
employment in the open
labour market and mentioned that he would be
excluded from more than 50 % of positions in the open labour market.
She further expressed
the view that the plaintiff’s
unemployment was not due to malingering but due to his inability to
do a range of work that
he would previously have been able to do had
he not been injured in the accident.
[7] Mr. Larny Martiny (Mr Martiny) is
an industrial and organisational psychologist who completed a
Master’s degree at the
University of Cape Town in 1990. He
currently does forensic work and specialises in medico-legal work
since 1980. He undertakes
work for many litigants, including the Road
Accident Fund and legal practioners who specialise in delictual
claims. He has completed
4000 reports to date. He interviewed the
plaintiff for the purposes of furnishing his opinion. Whilst he
believed that the complainant
completed grade 11, he deferred to the
plaintiff’s evidence in court that he only completed grade 10.
[8] He referred the court to the
premorbid scenario and explained that as a rule of thumb it was
accepted that children generally
advance further than their parents
in life. He pointed out that this particular scenario was further
influenced by the plaintiff’s
parents’ circumstances,
during apartheid. The opportunities available then were limited for
African persons who were not
expected to progress or achieve much.
Positions characterised by unskilled and semi- skilled were available
to the plaintiff’s
father. The present environment post the
liberation of Nelson Mandela afforded a lot more opportunities to
African persons.
[9]
Mr Martiny referred the court to the Paterson Peromnes Remuneration
Scale (PPR scale) which is widely used in South Africa.
The bands
move from unskilled to semi-skilled to skilled, middle management and
senior management levels. The work in each level
by way of example
increases in complexity and skills required. A1- level includes
work such as gardening, general labour
and a junior checking clerk.
A- 2 includes work such as a filing clerk, stores assistant or
general worker. A- 3 includes work
as a junior clerk, copy typist,
machine operator or a senior unskilled worker. B- 1 includes work
such as a driver of bakkie or
car, clerk or supervisor of unskilled
workers. B-2 included work as a receptionist or operator. B-3
includes work as a shorthand
secretary, artisan aide or driver of
heavy duty vehicle. B-4 includes work as a typing pool supervisor or
section leader. B-5 includes
work as a senior section leader.
[10] Mr. Martiny explained how this
scale could assist in understanding the plaintiff’s earning
capacity. The plaintiff’s
father had primary schooling and
advanced to level B-1, a semi-skilled position. The plaintiff has
secondary education, albeit
incomplete which enables his to access a
higher level on the PPR Scale. The plaintiff could thus move to level
B-3 which includes
driving heavy duty vehicles. He expressed
the view that there are further opportunities created under a new
dispensation
post- apartheid. It was thus not unrealistic to project
that the plaintiff could move to a higher level. By way of
illustration
he highlighted that the plaintiff’s brother was
employed in a higher position than his father. The plaintiff’s
earning
capacity and career mobility was enhanced further as he
secured a Code 10 driver’s license to drive light trucks. In
his
view it was quite conceivable that the plaintiff would have moved
to level B-3 as a heavy duty truck driver had he not sustained
injuries which now impacted on his ability to work in certain
positions.
[11] He indicated that although the allocation of
contingencies was within the discretion of the court, a 50%
contingency was suggested
as a reasonable figure which impacted on
his premorbid capacity. This meant there was a 50% chance of the
plaintiff not achieving
certain levels in his employment. In view of
the injury sustained Dr Martiny indicated that the plaintiff now had
fewer opportunities
available as a general labourer. He determined
the loss at 70% and indicated that the plaintiff had a 30% chance of
realising his
premorbid career path from level A-1 to B-3. He
could not secure certain positions because of his incomplete
schooling and
in the unskilled labour market he would experience
great difficulty in securing positions due to his injuries rendering
him unable
to secure work as a general labourer. Had his leg not been
injured there would have been many more opportunities for work
available.
[12] There are two scenarios which
apply in calculating the plaintiff’s future loss. The first
scenario proposed by Mr. Martiny
is that the plaintiff would
definitely reach level B-3 having regard to the rule of thumb
principle. Having regard to his incomplete
education the plaintiff is
at present only able to secure work at level A-1. This is compromised
by his injury as he is no longer
suited to this work. Mr
Martiny did not reject the possibility that the plaintiff could
secure work eventually at level B-3
despite his injury and indicated
that the plaintiff may be more suited to work in this band in view of
his injury. The defendant
did not challenge this evidence
successfully and Mr Martiny’s opinion regarding the plaintiff’s
future loss of work
opportunities and his career trajectory is
unrefuted.
[13] In calculating the past and
future loss of earnings, I have had regard to the plaintiff’s
past income when he worked
at Victor Logistics for 5 days per month
and earned R100 per day. Over a period of eight months, the plaintiff
earned R4000. Further
accepting his basic salary of R4092 at
Supergroup over a period of 12 months he earned R49104, yielding a
total of R53 104.00.
According to the actuarial report
which was submitted and accepted by counsel for the defendant
projecting a progression to level
A-3, the plaintiff’s past
loss of earning was R133 600. In respect of future loss of earnings
the actuarial determination
is R1 815 900 000. The two amounts add up
to R1 949 500 without factoring in any contingencies. When a 50%
contingency is applied
the amount applicable is R1 041 550, the past
loss of earning of R133 600 is added to this amount yielding a total
of R1 175 150.
The amount of the plaintiff’s income
received to date namely R53 104.00 is deducted from this amount and
yields an amount
of R 1 122 046. The plaintiff’s past and
future loss of earnings is thus R 1 122 046.
[14]
Having regarded to the issues in dispute and the aspects raised in
cross examination the defendant was not able to discredit
any of the
witnesses or offer a reasonable alternative to the expert evidence
before this court. In fact no evidence was placed
before the court on
behalf of the defendant. There was no dispute or real challenge to
the experts’ evidence.
[15]
In so far as costs are concerned, counsel for the plaintiff requested
that Mr. Martiny be declared a necessary witness and
his traveling
costs be added to the costs that will follow the cause. There was no
resistance or submissions to counter this view
on behalf of the
defendant.
[16]
Having regard to the evidence above, I am satisfied that the
plaintiff has proved his case on a preponderance of probabilities
in
respect of the claim past and future loss of earnings.
[17]
In the result, the following order is made.
ORDER
[18]
The plaintiff is awarded:
a.
General
damages in the amount of R250 000.00.
b.
The
Road Accident Fund is to cover all future medical expenses in terms
of an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund act 56 of 1996.
c.
The
plaintiff is awarded R 1 112 046.00 in respect of past and future
loss of earnings.
d.
Interest
on the above amounts at the prevailing prescribed rate of interest
from date of demand to date of final payment.
e.
Costs
of suit including the travel costs, expenses and
qualifying fees of Mr Martiny
______________
S.
C. MIA, AJ
On behalf of the plaintiff:
Adv. L Nortier
Instructed by:
Rosendorf Reitz Barry
BLOEMFONTEIN
On behalf of the defendant:
Adv. M F Mopeli
Instructed by:
Maduba Attorneys
BLOEMFONTEIN