About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 27
|
|
Gwebu v Road Accident Fund (2465/2019) [2024] ZAMPMBHC 27 (11 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 2465/2019
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
DATE: 11/04/2024
SIGNATURE
In the matter between:
MFANUYASHA
ACKEN
GWEBU
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 11 April 2024 at 10:00.
JUDGMENT
MASHILE J:
[1]
The Plaintiff, a mine machine operator,
instituted this delictual damages action against the Defendant for
personal injuries that
he sustained during a motor vehicle accident
on 3 August 2017 at about 13
:30 on the road between Hendrina
and Carolina, Mpumalanga Province. The Plaintiff was the driver of
motor vehicle with registration
letters and number H[...] 2[...]
F[...], which was forced to swerve off the road to avoid a collision
with an unknown motor vehicle
that had entered its path of travel.
The Plaintiff believes that the manner in which
the accident occurred renders the Defendant vulnerable to liability
for the damages
claimed by him.
[2]
The matter served before this Court on 13 March 2023 with liability
having been resolved
on the understanding that the Defendant would
compensate the Plaintiff for all damages that he may in the future
prove against
it. Additionally, and in line with that agreement, the
parties resolved that the Plaintiff would:
2.1
Pay to the Plaintiff an amount of
R1 120 000.00
, which amount
represented
80%
of the total under general
damages;
2.2
Furnish the Plaintiff with a Certificate in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, as amended for future
medical treatment.
[3]
Notwithstanding that the Defendant was represented by the State
Attorney during the
hearing, the matter was effectively not defended.
There were no opposing papers, the reports of the Plaintiff’s
experts were
admitted into evidence without any contestation from the
Defendant and there was no meaningful cross-examination of the
Plaintiff’s
witnesses. Moreover, the Defendant did not lead any
witnesses in opposition. That said and with regard to past medical
expenses,
the Defendant pleaded with the Court to hold back on its
decision until the Supreme Court of Appeal pronounces on the issue
whether
the Defendant is under any obligation to compensate
Plaintiffs for such damages in circumstances where medical aid has
settled
them.
[4]
Merits, general damages and future medical treatment having been
settled by agreement,
this matter now concerns the determination of
future loss of earnings only. In his endeavour to prove his case, the
Plaintiff called
four expert witnesses before he could take the stand
himself. These expert witnesses were:
4.1
Dr AJ Troskie, an Orthopaedic Surgeon;
4.2
Tryhou, an occupational therapist;
4.3
Ms HT Kraehmer, an Industrial Psychologist; and
4.4
Mr J Potgieter, an actuary of GRS Actuarial Consulting.
[5]
The summary of the evidence of Dr Trotskie is that:
5.1
the Plaintiff sustained severe injuries in the accident, which
radically changed his ability
to enjoy life and pursue his previous
occupation. He suffered a
traumatic amputation of his right
dominant arm
and has consequently lost the ability to do any
bimanual activities. He also sustained a
spinal dislocation
at the level of L2 and L3, which was stabilised with a L1 to L4
fusion which, he said, basically renders his lumbar spine immobile
(section 6)
;
1.2
7cm; margin-bottom: 0cm; line-height: 150%">
5.2
Regarding pain and suffering Dr Troskie’s evidence is that the
Plaintiff experienced
severe acute pain after the accident. He had
numerous surgical procedures which would also have causes additional
acute pain episodes.
Amputations are prone to cause phantom limb pain
in the post- operative period which is frequently
difficult to control.
He testified that it is fair to say that he
probably experienced significant acute pain after the accident for a
period of about
2 months. Regarding chronic pain, Dr.Troskie stated
that the Plaintiff experiences pain in his spine in cold and wet
weather as
well as when he is sitting for long periods. He
experiences pain in the amputation stump (phantom pains);
5.3
On prognosis, Dr Troskie said that no short-term changes are
expected. In the long-term,
he has permanent functional impairment of
his right dominant arm, which gives him
100%
Upper Extremity
Impairment and
60%
Whole Person Impairment (WPI)
for this injury alone. He has a L1-L4 fusion which will put increased
strain on the T12
- L1 high mobility segment as well as L4 - LS
joint, which can lead to degenerative changes at these levels and
might ultimately
require further surgical intervention/fusion in
future. This will add another
7%
WPI for a Total Whole Person
Impairment of
67%
(section 7
– a);
5.4
Insofar as future conservative treatment is concerned, Dr Troskie
indicated that the Plaintiff
can use analgesics for pain as needed.
He might require the use of Lyrica for the neurogenic
pain that he experiences
in the amputation stump. He may benefit from
physiotherapy and exercises to strengthen the muscles of his right
shoulder girdle
for him to qualify for a myoelectric prosthesis.
Regarding future surgery Dr Troskie indicates that there is a
5%
chance that he will develop spondylosis of the spinal levels adjacent
to the fusion and might therefore require future spinal surgery
of
these levels;
5.5
Concerning incapacity, Dr Troskie indicates that the Plaintiff has
lost the use of his right
dominant arm and can therefore not do any
bimanual activities leading to major functional impairment. He cannot
sit for long periods
due to the spinal fusion and he cannot bend over
to pick things up. He is only able to do light administrative tasks.
[6]
The summary of the findings of Ms Tryhou, the Occupational Therapist
is that:
6.1
The Plaintiff’s role as an Operator at Sasol Mine at the time
of the accident falls
in the light to medium category of work.
Assessment results indicate that the Plaintiff will meet the physical
requirements of
a sedentary occupation at present. He will never be
able to perform any light, medium or heavy duty work in the future.
His current
position as a Clerk falls in the sedentary category of
work. He should be able to continue working in a sedentary position
until
normal retirement age;
6.2
The accident most definitely affected the Plaintiff’s options
of work in the open
labour market. If the Plaintiff loses his current
position he might struggle to perform any tasks that require
bilateral lifting
or carrying of objects. He will most probably need
a sympathetic employer who will be willing to accommodate him
(section 8.4
, page 26);
6.3
On future treatment, Ms Tryhou emphasised the need for occupational
therapy, which she thought
17 hours should suffice. The Plaintiff
should consult with an orthotist to assess for a myoelectric
prosthesis. She also indicated
the need for certain special and
adapted equipment.
[7]
The evidence of Mr Kraehmer in relevant
part is that:
7.1
Insofar as cognitive functioning, the Plaintiff reported that he
never failed
any years in school. The Plaintiff
told her that he passed Standard 9 in 1997. He subsequently left
school due to financial
reasons. He claimed to have completed
training as Security Officer albeit that the Plaintiff did not
furnish her with
proof of his qualifications. Ms Kraehmer said that
based on this, as well as his career history, it would seem that his
cognitive
ability was in all probability average. No further
formal education was envisaged, but in-house / on-the-job training
relevant
to his role and potential promotion remained likely;
7.2
On personality and behavioural functioning, she testified that there
were no reported difficulties.
Based on the very positive collateral
feedback from his three direct supervisors, Messrs Mathebula, Namo
and Khambule, she said,
he was capable of building and maintaining
effective relationships with other people in a work situation. His
drive and motivation
to work was clearly also in place;
7.3
Mr Namo who is the Miner / Team Leader to whom the Plaintiff reported
directly, described
the Plaintiff as a “nice person”, who
“was never fighting with anybody”. He was
considered as a hard
worker. The Plaintiff was always willing to work
overtime and he had a very good attendance record (“he was
always there”);
7.4
Physically, the Plaintiff informed her that he did not suffer from
any serious illness or
any impairment and was in good general health
at the time of the accident. He was capable of doing his normal work
as a Machine
Operator, roof bolt machine, or whatever work that his
education and experience would have allowed for. She said that she
noted
that in this regard, Ms. Tryhou, the occupational therapist,
indicated that the Plaintiff’s role as an Operator at
Sasol Mine falls in the light to medium category of work;
7.5
Ms Kraehmer’s evidence on the Plaintiff’s career and
earnings was that there
was nothing that would have prevented or
restricted his ability to earn an income within the scope of his
education and experience
and the type of work for which this made him
suitable. She said that the Plaintiff’s career history, as
reported to this
writer indicates that between 1998 and 2011 (period
of 13 years) Mr. Gwebu worked for five different security companies
(Tornado
Security, Capricorn Security, Die Hard Security, Funulnwazi
Security, as well as Phoenix Security) in / around Nelspruit as a
Security
Officer. He informed her that in each case he resigned to
pursue a better opportunity;
7.6
In 2012, he was employed by a sub-contractor to Sasol Mine Limited as
a General Worker
and placed at Sasol Mine. In this regard, Ms
Kraehmer noted that according to Mr. Namo, the Plaintiff was
initially employed by
a sub-contractor to the mine. When the mine
realised that he was extremely good, a decision to absorb him into
the mine was taken.
Sasol Mine Limited appointed and placed him as a
roof bolt machine operator. The Plaintiff worked in this capacity for
about one
year before he was appointed permanently by Sasol
Mine Limited on 1 March 2013. She said that the Plaintiff was still
working
in this capacity when the accident occurred on 3 August 2017;
7.7
The Plaintiff’s available salary advices for the period August
2016 to July 2017 (12
months prior to the accident on 3 August 2017)
indicate that the
guaranteed
portion of his income (control
amount / basic salary, housing allowance, living out allowance, fixed
bonus and fringe benefits,
as well as a rotating shift allowance –
10%
of his basic salary, as per Mr Khambule) amounted
to
R 15 544.80
per month (
R 186 537.60
per
annum). She testified that this amount would have been equivalent to
a level between the lower quartile and median on Paterson
B2 (annual
guaranteed package), as per the General Staff Remuneration Survey
(April 2017), conducted by P-E Corporate Services
(now Willis Tower
Watson);
7.8
Additionally, she said, the fluctuating portion of his income
(overtime, travel to work,
travel time, work on a public holiday and
miscellaneous allowances, but excluding leave encashment and
Illima
bonus) amounted to an average of
R 5 972.02
per month
(
38.42%
of his guaranteed income). She said that in addition,
he also received an average of
R 1 262.01
per month from
Illima
Bonus, which, in her experience refers to a general
mine / production bonus, usually not related to individual
performance;
7.9
The General Staff Remuneration Survey (April 2017) indicates the
following remuneration
on Paterson B2 (all areas, rounded off):
Lower quartile
Median
Upper quartile
Annual Basic Salary
R134 230
R154 530
R175 750
Annual Guaranteed
Package
R173 560
R198 730
R230 360
7.10
The Plaintiff was 42 years old when the accident occurred on 3 August
2017. His experience was restricted
to the role of Security Officer
(13 years), General Worker (±1 year) and Machine Operator (4
years and 4 months). She testified
that if it is accepted that he
would, based on his age alone, have remained a Machine Operator
(working underground) for the rest
of his career, his income would
probably have increased based on annual increases as negotiated with
organised labour (considering
that his salary increased at an average
of
6%
per annum between December 2016 and December 2020);
7.11 It
is noted that according to Messrs Mathebula and Khambula, all
underground workers continued to work despite
COVID-19 restrictions.
They even worked overtime. Thus, in an uninjured state, Mr. Gwebu
would also have continued working despite
COVID-19 restrictions and
he would have continued to earn an income from overtime
and work on public holidays (average
of
R 614.27
per month
prior to the accident, which would probably have increased based on
inflation from 2016/2017). Ms Kraehmer obtained collateral
feedback
from three separate sources, higher than the Plaintiff in the
hierarchy. These were Messrs Mathebula, Namo and Khambule
who
indicated that he had the potential of advancing to the position of
Miner / Team Leader responsible for other Machine Operators;
7.12
When asked regarding the quality of the Plaintiff’s performance
and potential, Mr Mathebula indicated
that his performance was
“
100%”
. He said that the Plaintiff could easily
have progressed to the position of Miner. In addition, Mr Khambule
indicated that he could
have progressed to the position of Miner, or
even to Shift Supervisor. He then concluded by stating that: “he
was so good
– a high performing individual”. It is noted
that (according to Mr. Mathebula and Mr. Khambule) he would have had
to
complete a period of on-the-job training (“learnership”)
of about 18 to 24 months prior to promotion;
7.13
Thus, given the available collateral feedback, Ms Kraehmer was of
the opinion
that it would be
equitable to postulate that the Plaintiff would, but for the
accident, have been in a favourable position to advance
to the
position of Miner / Team Leader (Paterson B4) as his
hierarchical
career ceiling,
at approximately age 48 – 50. She said that
at that point the guaranteed portion of his income would probably
have increased
to ±
R 34 158.67
per month (
R
409 904.04
per annum in current value), which would be
equivalent to a level above the upper quartile of Paterson B4 (annual
guaranteed package),
as per the General Staff Remuneration Survey
(April 2020), conducted by Willis Tower Watson. In addition, the
fluctuating portion
of his income would probably have amounted to ±
R 7 123.29
per month (
R 85 479.48
per annum);
7.14
She testified further that from this point forwards the guaranteed
portion of his income would probably have
increased based on annual
increases as negotiated with organised labour,
considering that his salary increased at an
average of
6%
per annum between December 2016 and December 2020. The fluctuating
portion of his income would probably also have increased based
on
inflationary pressure only.
[8]
The next witness to take the stand was Mr J Potgieter, an actuary. He
compiled a
report with information largely
obtained from the opinion of the Industrial Psychologist, Ms
kreahmer, whose report I have discussed
in the preceding paragraph.
Mr Potgieter applied a
5%
contingency deduction in respect of past income and a
15%
in respect of future income. This brought him to a past loss of
R109
865.00
and a future loss of
R3
960 532.00
with a total loss of
R4
070 397.00
. The figures in respect of
both past and future loss of income represent outcome following the
application of the cap. A deduction
of
20%
pertaining to the merits apportionment leaves a final total loss of
R3 256 317.60
.
[9]
The issue for this Court to adjudicate is whether the Plaintiff’s
injuries,
which have rendered him
67%
disabled has diminished
his patrimony or estate. If not, no future loss of earnings can be
anticipated. Another ancillary matter
for consideration is whether
his current position has been specifically created to accommodate him
and that fundamentally, it exists
solely because the employer is
sympathetic to his situation.
[10]
Prior to delving into the issues raised by this matter, it will be
prudent to first set out the
legal principles that govern this area
of the law. I have already stated that all the other heads of damages
but loss of earnings
have been settled. Insofar as loss of earning
capacity is concerned it should be common cause that the Court can
adopt one of two
approaches. Whether the Court adopt the one or the
other will depend on what information is placed before it. These two
ways are
firstly, that the Court may ascertain a practical and
realistic amount of loss based on the verified facts and the existing
circumstances
of the case; or secondly, the court may, with reference
to mathematical computation, determine an amount made on the
demonstrated
facts of the case using such calculation as a foundation
for its award. See in this regard the case of
Southern
Insurance Association v Bailey N.O.
[1]
.
[11]
In those instances where there is dearth of information, the Court
may find the “gut feel”
approach normally ideal. In that
case, however, the Plaintiff must put at the court’s disposal
adequate evidence to enable
it to assess such financial loss. The
basis upon which Mr Potgieter founded his calculation of the
Plaintiff’s loss of earning
capacity is not firm. He
relied, as he was expected to do though, exclusively on the
assumptions made by Ms Kreahmer. Such
reliance where there is no
tangible reason to persuade the Court to believe that the Plaintiff
would have summitted around ages
48 to 50 instead of the normal 45
must be rejected. Against that background the calculations by Mr
Potgieter stand to be approached
with greater caution.
[12]
The information supplied to this Court is ideal for the adoption of
the actuarial calculations
made by Mr Potgieter. To the contingencies
applied by Mr Potgieter, the Court will, with the figures suggested
by him on past and
future income in mind, apply the usual
contingencies such as:
12.1
the possibility of mistakes having been made in the determination of
the life expectancy of the Plaintiff;
12.2
Accidents which may affect his earning capacity and life expectancy;
12.3
Circumstances which would increase or decrease his cost of living;
12.4
the likelihood of illness, inflation and adjustment for costs of
living allowance;
12.5
the fact that the Plaintiff lives in a violent and lawless
neighborhood which increases the risk of him being
killed or
assaulted; and
12.6
the likelihood of the Plaintiff being fired or retrenched.
[13]
The list above of possible contingencies is not exhaustive but it is
merely intended to serve
as guidance. However, it is also true
that one cannot always assume that the worst will happen to a
Plaintiff. In this
regard see
Southern
Insurance Association Ltd v Bailey
[2]
where Nicholas JA expressed
it in the following terms:
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial Judge
is "tied down by inexorable actuarial calculations". He has
"a large discretion to award what he considers
right". One
of the elements in exercising that discretion is the making of a
discount for "contingencies" or the
"vicissitudes of
life". These include such matters as the possibility that the
plaintiff may in the result have less
than
F
a "normal"
expectation of life; and that he may experience periods of
unemployment by reason of incapacity due to
illness or accident, or
to labour unrest or general economic conditions. The amount of any
discount may vary, depending upon the
circumstances of the case. The
rate of discount cannot, of course, be assessed on any logical basis:
the assessment must be largely
arbitrary and must depend upon the
trial Judge's impression of the case. In making such a discount for
G
"contingencies"
or the "vicissitudes of life", it is, however, erroneous to
regard the fortunes of life
as being always adverse: they may be
favourable.”
[14]
Turning to the award that this Court will regard as appropriate in
the circumstances of this
case. I agree that the Plaintiff is not in
any position to earn an income if he is
67%
disabled, which has been brought about as a result of his amputated
right dominant arm. He
has now lost the
ability to do any manual activities. He also sustained a
spinal
dislocation
at the level of L2 and L3,
which was stabilised with a L1 to L4 fusion. According to Dr Troskie,
this essentially renders his lumbar
spine immobile.
[15]
Although the Plaintiff remains in employment, it can hardly be
contended that the employer is
obtaining as much financial gain from
an employee who is
67%
physically challenged as it would had
he been fit. Even with sedentary work, which is the area in which he
is currently involved,
he remains ineffective because of the lumber
spine pain and the fact that he utilises one arm to pick up paper for
filing purposes.
The evidence of Ms Kreahmer that the employer has
indicated that the plan is to discontinue the position of the
Plaintiff stands
uncontested.
[16]
This means that as soon as the Plaintiff has a meaningful financial
security such as the award
that this case will make, there will be no
need to keep him as he will have financial security for the rest of
his life. For all
practical purposes, the Plaintiff is unemployable.
In the matter of
Santam
v Beyleveldt
[3]
,
it was held that when an employee was employed purely on
compassionate grounds, his salary should not be considered when
dealing
with the claim for loss of earnings.
[17]
Having
considered all the above I have
concluded that the contingency deductions on the value of income but
for the accident should remain
at
5%
.
However, the value of income having regard to the accident is raised
from 1
5%
to
25%
.
Additionally, this Court was not furnished with reasons why his
salary is expected to only stabilize at age 48 to 50 instead of
45.
For that reason, the increase in the contingency will take care of
any inflation of the loss that could be brought about as
a result of
the
6%
extending up to age 50 instead of age 45.
[18]
In the result, I make the following order:
1.
The Defendant is liable for payment of the
sum of
R4 096 366.00
to the Plaintiff being
R2 976 366.00
for loss of earnings and
R1 120 000.00
for general damages;
2.
Interest at the aforesaid sum at the legal
prescribed rate of interest a
tempora
morae
calculated, if the amount is not
settled within 14 days, from date of judgment;
3.
The Defendant is liable for payment of the
costs of the Plaintiff to date.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Plaintiff:
Adv
G Lubbe
Instructed
by:
Du
Toit-Smuts Attorneys
Counsel
for the Defendant:
Adv
M Tsebane
Instructed
by:
The
State Attorney
Date
of Judgment:
11
April 2024
[1]
1984
(1) SA 98 (A)
[2]
1984
(1) SA 98 (A)
[3]
1973
(2) SA 146
(A)