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[2024] ZANCHC 77
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Boughan v Road Accident Fund (2955/2018) [2024] ZANCHC 77 (16 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
Number:
2955/2018
Heard: 22 May 2024
Delivered: 16 August 2024
Reportable: YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to Magistrates:
YES /
NO
In
the matter between:
DOLORES
DAPHE BOUGHAN
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
Coram:
Tyuthuza AJ
JUDGMENT
Tyuthuza
AJ
INTRODUCTION
1.
The plaintiff,
Ms Boughan, instituted an action against the defendant, the Road
Accident Fund, claiming damages arising from the
injuries she
sustained as a result of a motor vehicle collision that took place on
22 January 2014.
2.
The defendant
conceded 100% liability for the plaintiff’s proven damages in
the action.
The
matter served before me in respect of the quantum of Plaintiff’s
claim, there
was
no appearance at the hearing of this matter by or on behalf of the
Defendant.
3.
I granted the Plaintiff her
application in terms of Rule 38(2) for her expert witnesses to give
evidence on affidavit, to wit, Dr
P Olivier (orthopaedic surgeon), Ms
S Maree (occupational therapist), Dr E Jacobs (industrial
psychologist) and Mr W Loots
(actuary).
Dr
Piet Olivier: Orthopaedic Surgeon
4.
Dr Olivier
examined the plaintiff on 29 June 2017, three (3) years after the
accident. He reported that the plaintiff previously
underwent a
laminectomy procedure in 2005, and that the plaintiff advised that
she was virtually asymptomatic after the procedure
and was able to
perform normal physical activities.
He recorded that the
accident resulted in an acute fracture involving the pedicle of L2
necessitating an instrumented posterior
spinal fusion. The plaintiff
presented with significant mechanical backache as a result of
segmental instability at the L2/L3 motion
segment. Her ability to
perform physical activities is compromised which has a negative
impact on her future employability and
her ability to perform the
normal activities of daily living. She is unable to continue with her
own occupation, the injuries are
serious in nature as they have
resulted in significant and long-term functional restrictions.
5.
Dr Olivier
further noted that the plaintiff will be due for surgery in the near
future, as she experiences significant mechanical
backache, and that
she is expected to experience mild to moderate backache on a
permanent basis. According to Dr Olivier, the plaintiff
is severely
impaired in regard to her ability to perform the basic activities of
daily living on a permanent basis. He further
reported that the
plaintiff would not be able to continue her duties as a nursing
sister, as she is unable to perform the strenuous
physical activities
required by the job. He further reports that the plaintiff is able to
perform a job which entails sedentary
duties only and that future
surgical intervention would not improve her current degree of
disability significantly.
Ms
Maree: Occupational Therapist
6.
Ms Maree, an
occupational therapist, who evaluated the plaintiff on 25 August
2020, and had been instructed to comment on the effect
of any
injuries on the functional ability and to discuss additional
assistance, special and adapted equipment and adaptations required.
7.
She reported
that the plaintiff presented with diminished ability for continuous
sitting. She was unable to assume squatting and
was able to perform
activities only from the waist to shoulder level, but not below the
waist or above shoulder levels. She is
not suited to sedentary work
demands and that her current work demands exceed her physical
capacity. According to Ms Maree, the
plaintiff is unable to lift any
objects from floor level or to work beyond waist level due to
diminished back movements and would
not be able to perform continuous
driving. After having conducted tests, she found that the plaintiff
is unable to do any work
as a ward sister and it is conceivable that
she is tolerating persisting pain and discomfort while performing her
daily tasks.
The injuries sustained by the
plaintiff resulted in significant functional limitations and the
vocational capacity is compromised.
Her functional limitations are
impacting on activities of daily living like personal care, home
management and participation in
leisure activities. Regarding
interventional measures, she reported that the plaintiff would
benefit from occupational therapy,
assistive devices and equipment.
Mr
Everd J Jacobs:
Industrial
Psychologist
8.
Mr Jacobs was
instructed to consider the plaintiff’s most probable career
paths; he conducted three interviews with the plaintiff.
9.
In regard to
the plaintiff’s uninjured career path, he reported as follows;
the plaintiff’s career is at risk, that
further career
progressions were highly unlikely, and that the plaintiff probably
has reached here plateau considering her age
at the time of the
accident (57 years old). The plaintiff would have been able to work
on contract employment after retirement,
as she is well qualified
with extensive nursing experience. In regard to the plaintiff’s
injured career, he reported as follows:
the plaintiff would not be
able to moonlight after retirement, that she is not suitable to work
as a professional nurse after the
accident.
Mr
Wim Loots: Actuary
10.
Mr Wim Loots, an actuary, was
retained to provide actuary calculations regarding the plaintiff’s
potential loss of earnings
as a result of the accident. He was
provided with the industrial psychologist report of Mr Jacobs and has
based his calculations
on the earnings as per Mr Jacobs report. He
was advised that the plaintiff was unemployable from June 2021.
11.
Mr Loots provided the following
calculations to determine the value of the loss of earnings as at 1
October 2023.
11.1
Past earnings:
had
the accident not occurred:
R2 181 266 (past loss of
earnings)
-
R 109 063 (less 5% contingency
deduction)
=
R2 072 203 (total loss of earnings)
now that the accident has
happened:
R1 686 918 (past loss of
earnings)
- R 168 692 (less
10% contingency deduction)
= R1 518 226.00
R2 072 203 – R1 518
226.00 = R553,977 (total loss of
past earnings).
11.2.
Future earnings:
had
the accident not occurred:
R
437 202
- R 21 860 (less 5%
contingency deduction)
= R415 342.00 (total loss
of future earnings)
Plaintiff:
12.
The Plaintiff was 56 years old at
the time of the accident and was employed as a theatre assistant. She
states that
as a
result of the injuries she sustained,
she was accommodated in administrative work and subsequently retired
in November 2022. She complains that she has back pain, and
as a
result, is not in a position to do moonlighting. She complains that
as a result of the back pain, she has to make use of cushions
to
support her in the vehicle and when she is sitting, she complains
that she has to be assisted to put on her socks.
EVALUATION
OF EVIDENCE:
13.
In
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA),
the court emphasised that:
“…
where
a person’s earning capacity was compromised that incapacity
constitutes a loss, if such loss diminishes his estate and
that he
was entitled to be compensated to the extent that his patrimony was
diminished.
”
14.
In
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 113G-114A, Nicholas JA stated as follows: “
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss. It has open to
it two possible approaches. One is for the Judge
to make a round
estimate of an amount which seems to him to be fair and reasonable.
That is entirely a matter of guesswork, a blind
plunge into the
unknown. The other is to try to make an assessment, by way of
mathematical calculations, on the basis of assumptions
resting on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions, and these may vary
from the strongly
probable to the speculative. It is manifest that either approach
involves guesswork to a greater or lesser extent.
But the Court
cannot for this reason
adopt
a non-possumus attitude and make no award. See Hersman v Shapiro &
Co
1926
TPD 367
at
379 per Stratford J)”.
[1]
15.
The
legal principle in respect of a claim for diminished earning capacity
is trite in that the plaintiff must be placed in the position
he
would have been in had the injuries not occurred. To succeed in
the claim for loss of income or earning capacity, the
plaintiff has
to establish on a balance of probability that as a result of the
accident, she has lost future earning capacity.
[2]
16.
It is common
cause that at the time of the accident the plaintiff was employed
as
a theatre assistant, and as a result of the injuries she sustained
she was accommodated in
administrative work and later retired in 2022, before she turned 65.
As a result of her injuries, she is
unable to continue to work.
17.
I am satisfied that the plaintiff
has shown that the injuries she sustained in the collision have
caused a loss of earning capacity
.
I find no reason to reject the version of the plaintiff as supported
by the various experts. In my view, it would be justified
in the
circumstances of this case to award an amount for loss of earnings in
the amount of R926 929.00.
18.
In
Legodi
v Road Accident Fund
[3]
the court stated the following:
“
[50]
General damages include a person's physical integrity, pain and
suffering,
emotional shock, disfigurement, a reduced life expectancy,
and loss of life amenities
.”
19.
An
award
for general damages “
must
be fair to both sides - it must give just compensation to the
plaintiff, but must not pour out largesse from the horn of plenty
at
the defendant’s expense
”.
[4]
20.
The
injuries sustained by the plaintiff in the accident has rendered her
not able to perform any other work other than that of a
sedentary
nature. The injuries sustained by the plaintiff have caused
significant functional limitations and compromised her vocational
capacity.
21.
Considering
the injuries sustained by the plaintiff and the relevant case law, an
amount of R 500, 000.00 in respect of general
damages is fair and
reasonable.
In
the premise, the following order is made:
1.
The Defendant shall pay to the Plaintiff the sum of R 1 426 929.00
(“the
capital sum”), being the Plaintiff’s damages,
in the manner and on the date set out in paragraph 5 hereunder by way
of electronic transfer into the Trust account of the Plaintiff’s
Attorneys of record, details of which are set out in paragraph
6
hereunder.
2.
The Defendant shall provide an undertaking in terms of Section
17(4)(a) of the
Road Accident Fund Act 56 of 1996 (“the
Undertaking”), to compensate the Plaintiff for 100% of the
costs arising from
the collision which occurred on the 22
nd
day
of January 2014 relating to the future accommodation of the Plaintiff
in a hospital or nursing home, or treatment of, or rendering
of a
service, or supplying of goods to Plaintiff, after the costs have
been incurred and on proof thereof.
3.
The Defendant shall pay the Plaintiff’s taxed or agreed costs
on
the High Court scale as between party-and-party, including for the
sake of clarity but not limited to, the costs as further set
out
hereunder:
3.1.
Plaintiff’s taxed or agreed costs incurred after the date
hereof attendant upon obtaining
payment of the capital amount
referred to in paragraph 1 above and/or any costs incurred in
finalising the matter after the date
hereof;
3.2.
The reasonable costs of obtaining all medico-legal reports compiled
by the experts listed
hereinbelow (“the experts”), as
taxed or agreed, including the costs attached to the procurement of
such medico-legal
reports, the costs of X rays, if applicable
and on proof thereof and subject to the taxing master’s
discretion.
The reasonable costs also include the costs to the
Plaintiff of attending all medico legal examinations,
travelling, accommodation,
and food, subject to the taxing master’s
discretion:
3.2.1.
Dr Olivier, Orthopaedic Surgeon;
3.2.2.
Susan Maree, Occupational Therapist;
3.2.3.
Everd Jacobs, Industrial Psychologist;
3.2.4.
Munro Actuaries;
3.3.
The taxed or agreed fees of Plaintiff’s Counsel in accordance
with the High Court
tariff;
3.4.
The Taxing Master shall allow and/or determine within his/her
discretion the reasonable travelling costs
incurred by the Plaintiff
in respect of his attendance at the medical-legal examinations.
4.
In the event that costs are not agreed upon, the Plaintiff will be
entitled to have
the costs provided for in this Order taxed by the
Taxing Master of the Northern Cape Division of the High Court and the
Plaintiff
shall serve a Notice of Taxation on the Defendant’s
attorneys of record. The Plaintiff shall allow the Defendant (one
hundred
and eighty) 180 days to make payment of the taxed costs.
5.
The payment provisions in respect of the foregoing are as follows:
5.1
Payment of the full capital sum set out in paragraph 1 above,
shall
be paid by electronic transfer directly into the Plaintiff’s
attorneys’ Trust account, listed hereinbelow, within
one
hundred and eighty(180) calendar days from the date of this
Order.
5.2
Payment of the taxed or agreed costs shall be paid within (one
hundred
and eighty) 180 calendar days of agreement or taxation (“the
due date”) and shall likewise be effected by electronic
transfer to the Plaintiff’s attorneys’ Trust account,
listed hereinbelow.
6.
Plaintiff’s attorneys’ Trust account banking details are
as follows:
Bank:
ABSA
Account Name
: P JOUBERT
INCORPORATED
Branch Name:
S[...] B[...]
Branch
Code:
6[...]
Account number:
4[...]
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the Plaintiff:
Adv
D Jankowitz
On
the instruction of:
DSC
Attorneys
On
behalf of the Defendant:
No
appearance
[1]
See also
Road
Accident
Fund v Guedes
2006 (5) SA 583
(SCA) at para 8.
[2]
Rudman
v
Road
Accident Fund
2003
(2) SA 234
(SCA)
.
[3]
(50948/17) [2021] ZAGPPHC 566 (2 September 2021).
[4]
Pitt
v Economic Insurance Company Ltd
1957
(3) SA 284
(D) at 287E-F.