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[2013] ZAGPPHC 160
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Van Rooi v Road Accident Fund (60992/2011) [2013] ZAGPPHC 160 (12 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
Case
No.: 60992/2011
DATE:12/06/2013
In
the matter between:
V.E.
VAN
ROOI
............................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
..........................................................
DEFENDANT
JUDGMENT
HIEMSTRA
AJ
[1]
The plaintiff was injured in a motor collision on 10 July 2010. He
suffered the following injuries:
1.
Left ankle medial malleolus fracture, closed fracture;
2.
Lacerations to his right wrist as well as to his face;
3.
According to Dr P.R. Engelbrecht an orthopaedic surgeon, the
plaintiff further reported a lower back injury and mentions an
extensive haematoma to the right side of his back as well as the
right flank area.
[2]
His right hand was rinsed and an open reduction and internal fixation
of the left medial malleolus fracture were performed under
general
anaesthesia.
[3]
The defendant, the Road Accident Fund, admitted that it is liable to
pay 100% of the plaintiffs proven or admitted damages.
[4]
The plaintiff does not claim compensation of past medical expenses.
[5]
The defendant has tendered an undertaking to pay for all future
medical expenses incurred in respect of the plaintiffs injuries
in
terms of
s 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
.
[6]
The parties are in agreement that the plaintiff is not entitled to
damages for pain and suffering.
[7]
The only matter for me to decide is whether the plaintiff has
established a claim for loss of earning capacity.
[8]
The plaintiff is a 39-year old refrigeration technician and is
employed by an enterprise, Dalucon Refrigeration, as a
supervisor/installer
of refrigeration systems in cold rooms and
mortuaries. The plaintiff supervises two technicians, but also
performs some of the
physical tasks.
[9]
Dr Engelbrecht describes the plaintiffs present complaints (as at 16
March 2012) as follows.
“
The
patient experiences pain left ankle, especially when it is cold and
rainy. If he were to be quite active, his symptoms worsen.
In the
mornings, if he were to get out of bed, he finds it difficult to put
weight on his left leg, which improves after a short
while. He does
not experience swelling of his left
ankle
and states that his left ankle is stable. Pain is described as sharp
of nature, accompanied by paresthesias. Walking distance
is not
impaired, no stiffness to the ankle. He does not experience pain at
night in his ankie.
The
patient experiences lower back pain and has had 3 acute episodes
since the accident which lasted 3-4 days. On occasion he required
treatment via UNITAS Casualty Unit for lower back pain. Lower back
pain does not refer to his legs. On occasion he has experienced
back
pain of such a nature that his lower back was locked'.’'
[10]
Dr Engeibrecht is of the opinion that the patient does have some
impairment of work capacity, working as a refrigeration artisan.
A 3%
loss of work capacity should be allowed. This will not necessarily
lead to loss of income or early retirement.
[11]
Ms C.J. Nel, an Industrial Psychologist, contacted Mr Dirk Hatting,
the factory manager at Dalucon Refrigeration, who is the
plaintiff’s
superior. The contents of all expert reports were mutually agreed by
both parties and the opinions stated by
Mr Hatting can therefore be
admitted as evidence. They are, however, no more than opinions. His
comments were summarised by Ms
Nel as follows: •
•
He
is employed as a site supervisor. He is responsible for supervising
the installation and maintenance of cold rooms. His work
is of a
physical nature. He is sometimes required to work in the space
between ceilings and roots, crawling on his stomach and
working in
confined spaces.
•
He
is inter alia responsible for carrying panels (30kg - 100kg) with the
assistance of 1 or 2 technicians.
•
When
performing maintenance duties to cold rooms, Mr van Rooi is required
to work in low temperatures. These temperatures vary between
-25 C
and 3 C.
•
They
are provided with special suits when working in very low
temperatures.
•
Normally,
a malfunctioning item would be removed from the cold room and
repaired in a room with normal temperature.
•
Mr
van Rooi is only required to work in low temperatures ± 5% of
his work time.
•
He
confirmed that Mr van Rooi was absent from work for ± 1 month
after the accident and remunerated fully He was placed on
light duty
at that time as his sick leave was depleted. This entailed
administrative duties and light physical work.
•
In
comparison with his peers, his work performance is described as above
average.
•
He
often complains about pain in his left ankle at work. He sometimes
phones from a site, complaining about pain when he had to
work in a
confined space in a roof. He would then request a
brief
rest period to recover. Mr Hattmgh expects more problems in this
regard during the upcoming winter season.
•
His
chances for promotion are very good, depending on the growth of the
company. He could be promoted to factory manager or a similar
position within the next 4 years. Mr Hattingh himself currently earns
R35 00 p/m plus a company vehicle.
•
He
is not sympathetically employed or under any threat of retrenchment
or dismissal.
•
An
official retirement age is not determined by the company.
[12]
There are no significant disagreements between the industrial
psychologists retained by the respective parties. Both experts
are of
the opinion that the career opportunities of the plaintiff have been
diminished to a miid degree. Ms Nel estimates a 3%
reduction in his
employability.
[13]
It is trite law that damages can only be awarded if a plaintiffs loss
of earning capacity translates to a diminution of
the plaintiffs
patrimony
1
.
[14]
On a conspectus of all the expert opinions submitted, it is clear
that the plaintiff suffers moderate discomfort from time
to time in
his work environment. There is no indication that he is incapable to
perform any of the tasks required of him. He is
in stable employment
and his promotional prospects have not been affected. His employer is
of the opinion that he will be promoted
to the position of factory
manager or a similar position within 4 years. Such a position would
be less physically demanding than
the plaintiffs present position.
[15]
A diminution of the plaintiffs patrimony is speculative and unlikely.
In my view, the plaintiff has therefore not established
a claim for
future loss of earnings or earning capacity.
In
the result, I make the following order:
1.
The defendant is ordered to issue an undertaking to pay all the
plaintiff’s future medical expenses arising from the injuries
sustained in the motor
collision
in accordance with
section 7(4)(a)
of the
Road Accident Fund Act, 56
of 1996
.;
2.
The defendant is ordered to pay the costs of the action, excluding
the costs of the proceedings of 9 May 2013;
3.
The plaintiffs claim for loss of earning capacity is dismissed;
4.
The plaintiff is ordered to pay the costs of the proceedings of 9 May
2013.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard: 9 May 2013
Date
of judgment: 5 June 2013
Counsel
for then plaintiff: Adv. C. Spangenberg
Attorney
for the plaintiff: Spruyt Incorporated
Counsel
for the defendant: Adv. S.J. Myburgh
Attorney
for the Defendant: Mothle Jooma Sabida Incorporated
1
See Satan Versekeringsmaatskappy v Begleveldt
1973 (2) SA 146
(A).
Dippenaar v Shield insurance
Co
Ltd
1979 (2) SA 904
(A) and numerous other judgments.