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2009
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[2009] ZAGPJHC 42
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Nkosi v Road Accident Fund (07/2195) [2009] ZAGPJHC 42 (24 April 2009)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: 07/2195
In the matter between:
NKOSI, MAQHINGA SALATIEL
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
J U D G M E N T
MBHA, J
:
[1] The plaintiff sued the defendant in terms of the
Road Accident
Fund Act 56 of 1996
for damages suffered as a result of injuries
sustained in a motor accident which occurred on 27 March 2004.
[2] The defendant defended the matter and it
proceeded to trial on 24 February 2009. On the first day of the
trial, the defendant
conceded the merits in favour of the plaintiff
and agreed that it was liable for 100% of the plaintiff’s
agreed or proven
damages.
[3] The defendant also agreed to:
furnish the plaintiff with an undertaking in
terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
for the plaintiff’s future medical, hospital and associated
medical expenses;
pay the plaintiff R15 66
1,12
in respect of the plaintiff’s past, medical and hospital
expenses.
[4] The only issues that this Court is called
upon to determine relate to the following issues:
the quantum of general damages;
the past and future loss of earnings of the plaintiff.
[5] The plaintiff led the evidence of the following witnesses:
The plaintiff.
Mr Ben Moodie – industrial psychologist.
[6] The following experts also furnished reports on behalf of the
plaintiff:
Dr G O Read – orthopaedic surgeon.
Dr Shapiro – radiologist.
Mr Ben Moodie – industrial psychologist.
Algorithm Consulting – actuaries.
[7] The defendant only led the evidence of one witness, Mr Cornelius
van der Merwe, the plaintiff’s work supervisor.
General Damages
[8] It is trite that in considering general damages, the following
factors are relevant:
The nature, extent of the injuries and their
sequelae
flowing therefrom;
pain and suffering;
permanent disabilities;
disfigurement.
[9] It is common cause that the plaintiff sustained the following
injuries in the accident:
chest injuries involving fractures to five of his ribs;
fractures of the third and fifth metacarpals of the right hand;
a concussion;
a laceration of the head.
[10] The plaintiff testified about his pain and
suffering post-accident. The following evidence was of significance:
He was hospitalised post-accident for a period of seven (7) days.
His right hand was severely injured and placed
in a plaster cast for three months. His right hand thereafter
remained bandaged,
was painful and swollen for a further three
months. He continued to visit the hospital as an outpatient for
chest X-rays and
monitoring.
10.3
The plaintiff
testified that he had difficulty breathing immediately following the
accident and was placed on breathing equipment
in hospital.
10.4 H
e testified
further that for several months after the accident he was unable to
laugh, cough or sneeze as it caused pressure on
his chest resulting
in severe pain.
10.5
He said that to
date he still experiences pain in his chest when engaging in exercise
and this has caused him to desist with his
pre-morbid accident
activity of jogging.
10.6
The plaintiff
further testified that his hand was the worst pain he had ever
experienced and that he was devastated when his medical
aid benefits
were exhausted as he could not receive further treatment.
10.7
He said that his
hand was in a plaster cast for approximately three months and
thereafter bandaged. His hand was in extreme pain
and swollen for six
months and he could not use it.
10.8
The plaintiff
testified that he returned to work earlier than he should have, as he
had used up all his sick leave and could not
afford unpaid leave.
10.9
The plaintiff said
he used to enjoy playing with his children, did running and played
soccer before the accident but has been prohibited
from continuing
with such activities as a result of the accident.
[11] Dr Rea
d
(orthopaedic surgeon), in his reports, points out the following of
significance:
The right hand
11.1 The plaintiff is right-hand dominant and
therefore the plaintiff injured his primary hand.
11.2
The plaintiff
sustained fractures of the third and fifth metacarpal with shortening
on his right hand.
11.3
The plaintiff
suffered from and continues to suffer from post-fractured syndrome
following the accident.
11.4
The plaintiff has
weakness in his right hand and cannot make a fist properly.
11.5
The plaintiff can
only type for ten to fifteen minutes before experiencing severe pain
and discomfort.
11.6
The plaintiff
suffers from ongoing intermittent pain in his right hand.
11.7
The plaintiff’s
right hand will initially need to be treated by way of conservative
treatment in the form of physiotherapy,
analgesics, muscle relaxants
and anti-inflammatories.
11.8
The plaintiff
should further be submitted for surgery by way of a corrective
osteotomy to straighten the third metacarpal and plating
of the
fracture.
11.9
The plaintiff
should then be operated on again a year later to have the internal
fixatives removed. He will require two to three
months off work to
receive the necessary treatment.
11.10.
The plaintiff
remains markedly symptomatic and has experienced considerable pain
and suffering.
11.11
The plaintiff is
currently moderately disabled, mainly as a result of the function of
his right hand.
11.12
The plaintiff has
been unable to continue gardening, house maintenance or vehicle
maintenance as a result of the accident.
The chest injury
[13] Insofar as the plaintiff’s chest injury
is concerned, Dr Read stated the following:
13.1
The plaintiff
suffered fractures to five of his ribs which have solidly healed.
13.2
The plaintiff has
a post-fracture syndrome and the symptoms should be treated
conservatively with analgesics, anti-inflammatories
and muscle
relaxants.
13.3
It is not
anticipated that the plaintiff will ever require surgery for his
post-fracture chest pain.
[14] Dr Read reports that as far as the head
injury is concerned, this has resolved with no
sequelae
.
[15] Taking all the aforesaid evidence into
account, it is necessary to have a look at case law to gain guidance
as to what an appropriate
award of damages should be.
[16
] In considering the
damages to be awarded, it is important to have reference to what was
stated in the case of
Road Accident Fund
v Marunga
2003 (5) SA 164
(SCA), where
the SCA confirmed the position adopted in
Wright
v Multilateral Motor Vehicle Fund
,
where Broome DJP stated:
“
I consider that when having regard to
previous awards one must recognize that there is a tendency for
awards now to be higher than
they were in the past. I believe this
to be a natural reflection of the changes in society,
the recognition of greater
freedom and opportunity, rising standards
of living and the recognition that our awards in the past have been
significantly lower
than in those countries.
”
[17] During argument I was referred to the
arbitration forum case of
Newhouse v
Road Accident Fund
, a 2003 case where
the arbitrator awarded R180 000,00 to the plaintiff in respect of
injuries involving fractures of the metacarpals.
I am informed that
in current terms (per Robert J Koch) this award would amount to
approximately R261 000,00. In this case an
operation involving
plating an insertion of K-wires was necessary, as well as an
operation to later remove the K-wires.
[18] In my view the nature of the injuries and
the
sequelae
therefrom differ considerably from those of the plaintiff in this
case.
[
19] The plaintiff in
the
Newhouse
case sustained multiple fractures, avulsions and dislocations of
metacarpals of the right hand, as well as severe lacerations of
both
the palm, the ulnar border and the dorsum of the same hand, and
damage to muscle of hypothenar eminence (the fleshy prominence
of the
palm below the little finger) and to the neurovascular bundle of the
little finger. She then underwent a 9 hour operation
by a plastic
and reconstructive surgeon. There was insertion of K-wires and she
was hospitalised initially for 13 days but she
was re-admitted a
month later for removal of the wires and for further reconstruction,
which was followed three weeks later, by
further surgery comprising
plating and bone grafting. The little finger subsequently developed
a flexion contracture and deviation
which interfered with flexion of
the adjoining ring finger and this led to the ultimate amputation of
the little finger at the
pip joint. Future surgery, treatment and
medication followed. The subsequent loss of hand function rendered
the claimant unable
to continue her duties of being a kitchen manager
and front of house manager which she had shared with her husband in
their restaurant.
[20] As can be clearly seen the injuries and
sequalae
of the injuries sustained by the claimant in
Newhouse
were extremely severe as compared to those of the plaintiff in this
case.
[21] In my view a more comparative case is that of
Holland v Bendix
1954 (1) SA (CPD) Corbett and Buchanan. In this case the plaintiff
suffered the following injuries in a motor collision:
a
laceration and
fracture of all fingers of the right hand;
a
fracture of the left
clavicle;
b
ruising on the right
side of the chest with five fractured ribs;
l
acerations on the
forehead.
[22] The plaintiff was awarded a total of £1,025,
11 shillings and 6 pence in respect of hospital and medical expenses
and
for general damages and the remainder being for general damages.
I am informed the current value of that award is the monetary
equivalent of R148 000,00.
[23] Taking the aforesaid into account, and all
the factors pertaining to the plaintiff’s injuries, I am of the
view that
an award in the order of R250 000,00 is appropriate.
Loss of earnings
[24] Insofar as loss of earnings are concerned,
the plaintiff relies on the evidence of both himself and Mr Ben
Moodie, industrial
psychologist.
[25
] It is common cause
that the plaintiff worked for August Lapple SA (Pty) Ltd (“
August
Lapple
”), a motor vehicle
component manufacturer, at the time of the accident, as a human
resources co-ordinator.
[26] It is the plaintiff’s case that he has
suffered a past loss of earnings as a result of the accident and will
suffer a
future loss of earnings by virtue of the fact that he will
still need to undergo two operations to his hand and will only be
effectively
able to re-enter the labour market once he is fully
rehabilitated.
[27] It is further common cause that the plaintiff
will require two to three months off work to attend to future medical
treatment.
[28
] The plaintiff
testified that his job entailed training of operators in all aspects
of the company’s operation, which included
the loading of dies
and tools for the manufacture of body panels. He was also responsible
for preparing training material and facilitation
of theoretical
training.
[29] In terms of his administrative functioning,
the plaintiff testified that he was required to perform
computer-based work, which
he explained he could not carry out
properly due to the limitations associated with his right hand. He
said he experienced drastic
problems in carrying out his work
functions, as a result of the fact that he could not effectively use
his right hand and continues
to suffer pain and disability.
[30] In terms of the operational side of his job,
the plaintiff explained that he could not properly carry out the
physical aspects
of his training functions by virtue of the fact that
he could not pick up heavy objects and could not use spanners. He
said that
the aforesaid limitations resulted in him having problems
carrying out his core functions which led him to neglect his duties
and
to perform poorly.
[31
] The plaintiff
testified that prior to the accident he was promoted very quickly
during the period of his employment and in fact
achieved and exceeded
his employment targets resulted in his remuneration nearly doubling
in five years. He stated that he was
very aware of his shortcomings
and was actually approached by his immediate superiors and informed
that his performance was not
satisfactory and needed to be improved.
He stated that albeit he was not formally disciplined, he was under
the impression from
his superiors that if his performance did not
improve he could lose his job.
[32
] He informed the
court that as he could not improve his physical limitations he began
seeking alternative employment which would
be less physical in
nature.
[33
] Under
cross-examination the plaintiff explained that he did not request to
be accommodated elsewhere at August Lapple as being
in human
resources himself he knew no suitable alternative positions which
would accommodate his physical limitations, existed.
He also
explained that he did not blame the company for his plight which was
solely due to the accident and did not want to burden
the company.
[34] Under further cross-examination the plaintiff
explained that while he was never threatened with dismissal outright
but that
he knew that such threats were not outwardly made in the
human resources environment and he further knew when the time to
leave
had arrive. He explained that it was expressly to avoid the
tarnish on his reputation of a dismissal and permanent damage to his
clean 25 year work history that he resigned of his own accord. He
stated that as a result of working in human resources, he knew
companies were very reluctant to hire an employee that had been
dismissed in the past, and therefore he took steps to avoid any
possibility of dismissal.
[35] The plaintiff testified that he eventually
secured alternative work with manufacturing, engineering and related
services sector
(“
SETA
”)
in February 2005. He then resigned from August Lapple and gave them a
month’s notice and commenced work with SETA
on 1 April 2005.
[36] His salary at the SETA was between R16 000
to R17 000 per month. It must be noted that at August Lapple he
earned a basic
monthly salary of R13 169,43 and a monthly car
allowance of R3 660,00.
[37] The plaintiff testified that in his view he
took a drop in earnings of approximately R6 000,00 at the SETA as
compared to the
salary he had received at August Lapple. He
explained that the only reason he had accepted such a drop in
earnings was that he
could not afford to continue working at August
Lapple and face a possible dismissal due to poor work performance and
that such
a dismissal would ruin his excellent work track record to
date.
[38] After taking up employment at SETA, the
plaintiff learned that his function was not purely sedentary and
actually involved
inter alia
:
1. physical assessment of learners at
F.E.T. colleges;
2. significant administrative typing work, including assessment
reports.
[39] Insofar as the physical assessment of
learners was concerned, the plaintiff explained that he had to assess
the learners by
performing product valuation which his physical hand
limitations prevented him from properly doing as he could not use
spanners
or to pick up heavy objects.
[40] Regarding the administrative side the
plaintiff stated that he had to type out assessment reports which he
was unable to do
properly as he could only type for ten to fifteen
minutes at a time before experiencing excruciating pain in his right
hand and
having to rest same for nearly an hour before continuing.
[41
] The plaintiff
testified that the F.E.T. colleges began complaining to his superiors
and he was confronted by management.
[42] He said he had failed to inform management
of his physical limitations prior to taking out employment with the
company and
they were not sympathetic to his plight.
[43
] Eventually the
plaintiff received a verbal warning from the company warning him that
if he could not improve his performance he
could face disciplinary
action.
[44] Once again believing that he could not
improve his performance due to his physical limitations and in order
to avoid dismissal
on his employment record, the plaintiff said he
chose to resign giving notice on 1 September 2006 and eventually left
the employer
of SETA on 30 September 2006.
[45] The plaintiff said thereafter he was not
formally employed and that he only performed limited subcontract
work. While he
could not place an accurate figure on such earnings,
he estimated such earnings to average out to a maximum of R5 000,00
per month
from September 2006 to his last contract in June 2008.
[46] The plaintiff testified
that since June 2008 he has essentially been unemployed.
[47] The plaintiff’s witness Mr Ben Moodie,
the industrial psychologist testified to the following issues of
relevance regarding
the plaintiff’s pre-accident career:
The plaintiff had a good steady history in the
human resources field for 25 years prior to the accident.
Mr Moodie in his report regarding the
plaintiff’s pre-morbid ability states: “
The
claimant has demonstrated an upward mobility and the ingenuity to
capitalise on opportunities presented by the current equity
legislation operating in the labour market. There is no reason,
but for the accident why he would not have stayed on that
trajectory.
”
Mr Moodie stated that at the time of his resignation from August
Lapple the plaintiff was earning on the equivalent of the
Patterson
scale C5.
[
48] Regarding the
plaintiff’s post-accident career and in respect of past losses
Mr Moodie testified as follows:
The accident was a catastrophic event that essentially devastated a
promising career.
A person would not lightly
choose to abandon a high paying job for a lower paying job without
good reason.
He
postulated that as
the plaintiff had over 25 years track record of continually
improving his career the only real explanation
for a significant
step backwards in his career will be the problems he encountered as
a result of the accident.
Mr Moodie explained that in his opinion as an
industrial psychologist that
the
impairment created by physical injuries not only limits a person in
achieving their work goals but also mentally affect
employees and
makes them see themselves as worthless and unworthy individuals in
the work place.
Mr Moodie stated that the past loss of earnings suffered by the
plaintiff should be determined by calculating the difference
between the plaintiff’s earnings at the C5 level and what he
actually earned from the date of the accident to date of
trial.
[49] Regarding the plaintiff’s future loss
of earnings Mr Moodie raised the following issues of relevance:
The claimant must be afforded an opportunity to
undergo the surgical and rehabilitative treatment to his right hand
as recommended
by Dr Read.
Once the plaintiff has received the recommended treatment to his
hand a full year of rehabilitation should be provided for.
Mr Moodie provides for the fact that the plaintiff will re-enter
the labour market in March 2010.
[50] Mr Moodie confirmed that all his assessment
of the plaintiff was purely based on what plaintiff had told him when
he interviewed
him. He confirmed that he never had an opportunity to
verify what the applicant had told him with applicant’s
employer,
specifically August Lapple. Furthermore he had only got an
opportunity to speak with one Mrs Steyn at August Lapple on the day
before the trial who confirmed to him that the plaintiff had resigned
from the company of his own accord. At the time Mrs Steyn
was in
possession of the plaintiff’s letter of resignation.
[51] Mr Christopher Jakobus van der Merwe was the
defendant’s sole witness. He was the applicant’s direct
supervisor
at August Lapple.
[52] He said that the plaintiff directly reported
to him and that they would meet with each other at least twice on
each day.
[53] At some point the plaintiff went off work
after he was involved in a motor collision.
[54] To the best of his recollection the plaintiff
was given all the necessary support whilst he received medical
assistance. The
plaintiff always performed to his maximum and he was
never couched for poor performance. There were never any complaints
relating
to the plaintiff’s work performance.
[55] As far as he knew the plaintiff performed
normally and that the plaintiff fully recovered from his injuries.
At no point did
the plaintiff ever complain that he could not perform
his normal functions because of the injuries that he has sustained in
the
motor accident.
[56] The plaintiff had two warnings during the
period he was employed at August Lapple and these were not
work-related. One was
for late coming and the other was for leaving
the work place without authorisation.
[
57] Mr Van der Merwe
stressed that the plaintiff resigned from of his own accord saying
that he had found another job at the SETA.
[58] Mr Van der Merwe was not cross-examined at
all. As such his testimony is unchallenged.
[59
] It is the
plaintiff’s case that he left his work at August Lapple because
he could no longer perform his normal functions
as he felt he was
physically limited in doing so as a result of the injuries he
sustained in the motor collision. Furthermore,
management at August
Lapple were unhappy with his work performance.
[60] It is so that the plaintiff has based his claim for past and
future loss of earnings on what he earned at August Lapple.
[61] The question that has to be answered is
whether or not he left his employment at August Lapple as a result of
the injuries
which he sustained in the motor accident.
[62] On the plaintiff’s own version he was
never dismissed from his employment. Never was he ever threatened
with dismissal.
Furthermore it is clear that no one ever complained
to him about any poor work performance. In this regard Mr Van der
Merwe’s
evidence was never challenged. Mr Van der Merwe was
clear in his testimony that there was never ever any complaint
relating to
the plaintiff’s work performance. To the best of
his recollection the plaintiff performed all his work functions
normally.
The plaintiff was never counselled nor couched concerning
his work performance.
[63] Mr Ben Moodie’s opinion as to why the
plaintiff left his employment is based surely on what the plaintiff
had told him.
Mr Moodie quite mysteriously omitted to verify what
the plaintiff had told him with his employers at August Lapple. He
said he
only spoke to a Mrs Steyn at this company on the date before
the trial and this person confirmed that the plaintiff resigned from
the company of his own accord.
[64] Clearly the plaintiff never indicated to his
work superiors that the accident caused him not to perform optimally.
Furthermore
the plaintiff was never counselled because of poor
performance resulting from the accident. The two written warnings he
had received
whilst working at August
Lapple were for arriving late at work and for leaving the workplace
without
authorisation.
[65] Most importantly the plaintiff did not put
down his reason for resignation as accident related. The documented
reason for
resignation was for “
other
”
reasons, specifically that he had found work at SETA.
[66] The plaintiff’s evidence that there
were complaints about his work at the SETA was never corroborated.
No one from
this company was called to testify on the plaintiff’s
behalf. Neither did Mr Moodie do attempt to do so. In fact Mr
Moodie
said that he was under the impression that the plaintiff’s
engagement at the SETA was purely sub-contractual.
[67] What however emerges clearly, based on the
plaintiff’s own version is that he similarly resigned from the
SETA purely
of his own accord. He was never ever dismissed from the
SETA.
[68] On the facts before me, I find that the
plaintiff has failed to prove that his resignation from work,
specifically from August
Lapple was directly linked to the accident,
or that the hand injury caused his productivity to decline. In fact,
the employer was
never made aware by the plaintiff that he was
experiencing a decline in productivity due to the plaintiff. To the
contrary the
employer’s representative testified that there was
never any complaint about the plaintiff’s work performance. In
the
circumstances I find that the plaintiff’s claim for loss of
earnings as alleged cannot succeed and falls to be dismissed.
[69] The plaintiff will require a period of two
to three months off work to recuperate after he has undergone
corrective surgery
to his right hand. He is entitled to be
compensated, for loss of future earnings and his loss will be
computed on what he earned
at August Lapple:
R13 169,43 + R3 660,00 x 3 months = R50 488,29.
[70] I accordingly, make an order as follows,
that:
The defendant shall pay the plaintiff the amount of R316 149,41.
The defendant shall provide the plaintiff with an undertaking in
terms of
section 17(4)(a)
of the Road Accident Fund Act 56 of 1996,
for the plaintiff’s future medical, hospital and associated
medical expenses.
The defendant shall pay the plaintiff’s taxed party and party
costs on the High Court scale, such costs including but
not limited
to:
the cost of counsel including the preparation of the heads of
argument;
the cost of the medico-legal reports and addendum
report of Dr G O Read and Dr Shapiro (radiologist);
the cost of the medico-legal report as well as the attendance fees
and qualifying fees of Mr Ben Moodie;
the attendance fees and qualifying fees of Dr C Kahanovitz;
the cost of the actuarial reports of Messrs
Algorithm Consulting;
the perusal and preparation costs of the bundles;
_________________________
B H MBHA
JUDGE OF THE HIGH COURT
DATES OF HEARING : 24-26 FEBRUARY 2009
& 18 MARCH 2009
DATE OF JUDGMENT : 24 APRIL 2009
COUNSEL FOR THE APPLICANT :ADV M VAN DEN BARSELAAR
INSTRUCTED BY : JOE HUBBART ATTORNEYS
COUNSEL FOR THE RESPONDENT :ADV N MABENA
INSTRUCTED BY : KEKANA HLATSHWAYO
RADEBE INCORPORATED