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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

LUVUYO KENNETH MSUTHU APPLICANT

and

ROAD ACCIDENT FUND RESPONDENT

• Case Number: 253/04

• High Court: EAST LONDON CIRCUIT LOCAL DIVISION

DATES HEARD: 14 August 2007

DATE DELIVERED: 02 October 2007

JUDGE(S): DAMBUZA J

LEGAL REPRESENTATIVES -

Appearances:

• for the plaintiff(s): Mr Louw

• for the defendant(s): Mr Smith

Instructing attorneys:

• for the plaintiff(s): Niehaus McMahon & Oosthuizen

• for the defendant(s): Hart & Beyers

CASE INFORMATION -

• Nature of proceedings : Trial

IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

CASE NO: EL 53/04

ECD 253/04

In the matter between:

LUVUYO KENNETH MSUTHU APPLICANT

and

ROAD ACCIDENT FUND RESPONDENT

______________________________________________________________

JUDGMENT

______________________________________________________________

DAMBUZA J:

1. In this case the plaintiff claims damages suffered by him as a result of injuries sustained by him in a motor vehicle collision on 8 October 1999. When the collision occurred the plaintiff was a pedestrian. He collided with the insured vehicle.

2. The merits of the case were settled prior to the matter coming before me on the basis that the defendant will be liable for 50% of the damages suffered by the applicant as a result of the collision. An order of court was granted in these terms.

3. Certain aspects of the quantum have also been settled; the defendant having undertaken to issue a certificate in terms of Section 17 (4) of the Road Accident Fund Act, Act No 56 of 1996 (the Act) in respect of the plaintiff’s future medical expenses and having undertaken to pay general damages in the amount of R140 000.00. What now falls to be determined is the plaintiff’s loss of income. In this regard the parties require that I make findings of fact regarding factors to be taken into account by an actuary in calculating the loss of income. Such factors include contingencies, the plaintiff’s pre and post-morbid income, his life expectancy and whether the plaintiff’s working life has been shortened as a result of the injuries.

4. The plaintiff was born on 8 August 1978. He was doing standard eight when the accident occurred. After the collision he went back to school and completed Standard 9. He left school in 2003, having failed Standard 10. He then started looking for employment but could only secure employment in May 2006. He worked as a messenger and a general labourer at a business referred to in evidence as “JMJ Sales” in East London. His duties included doing deliveries on a bicycle, cleaning shelves, weighing nails and assembling certain pieces of machinery. His employment contract was renewable every three months. At the expiry of the first three month period his was renewed and thereafter it was renewed on two further occasions, for three months on each occasion. At the end of the fourth term, the contract was not renewed and the plaintiff therefore lost employment. He testified that he did not know the reason for the non-renewal. His evidence was that he still felt pain on his injured ankle, particularly after a strenuous exercise or a long walk. He had experienced pain whilst at work, particularly when he had to crouch to pick up items. He was not taking any medication for the pain. None had been prescribed for him. He has not taken further employment subsequent to working for “JMJ Sales”; his reason being that most jobs for which he qualifies are in the construction industry and he considered himself unfit for such jobs. Prior to the accident he was a keen boxer and played soccer.

5. As a result of the accident the plaintiff sustained a fracture of the right ankle. He received treatment at Frere Hospital, East London where his injured ankle was placed in plaster of paris. At a later stage he underwent operative procedures for placement of an internal fixative. Within 18 months of the collision the tissues on and around the injured ankle developed degenerative changes.

6. The two Orthopaedic surgeons who gave evidence were in agreement that when they examined the plaintiff at the beginning of 2007, he walked with a right sided limp and experienced pain and swelling in his right ankle, particularly when performing weight bearing activities. His ability to stand for long periods and walk long distances was restricted because of pain. He also experienced pain in inclement weather. There was waisting of the right calf (which measured 2cm less in circumference than the left calf) and the area around his right ankle was septic. X-rays of the injured ankle showed signs of established secondary post-traumatic osteoarthritis. Both medical experts anticipated that the plaintiff will, in the present state, experience, progressively, more pain and discomfort as a result of the injury, such that in about seven to ten years he will require an ankle arthrodesis. In this process the ankle joint, will be fused into a solid block of bone to stabilize the ankle, thereby reducing the pain felt by the plaintiff. There is however, a 20 to 25% chance, that the athrodesis might heal in an abnormal position or that it might not heal at all, necessitating a further operation.

7. During the trial, I had opportunity to observe the injury. At the time it presented with severe scarring of the skin on and around the ankle and there was a septic portion just above the ankle.

8. The issue before me results from differing opinions of the medical experts and Industrial Psychologists regarding the plaintiff future earning capacity subsequent to the accident.

9. Dr Pieter Olivier, the orthopaedic surgeon who testified on behalf of the plaintiff opined that, even after the arthrodesis has been performed, the plaintiff will not be able to resume his pre-morbid weight bearing activities as this will reactivate and/or accelerate degeneration of the tissues of injured ankle. The result will be that in about three to four years, the pain will return, although the degeneration might only become visible sometime thereafter. Consequently, so Dr Olivier concluded, the plaintiff will not be able to compete in the open labour market despite the envisaged medical and surgical intervention. He will only be comfortable in a sedentary job where he will sit or stand only for a limited period.

9. Dr Olivier was of the opinion that Mr Theo Berkowitz, the orthopaedic who testified on behalf of the defendant, had not addressed the issue of complications that would result from the arthrodesis.

10. According to Mr Berkowitz after the arthrodesis the plaintiff should be able to walk and run with a minimal or no limp, he should also be able to accommodate most footwear and be able to function normally and resume his pre-morbid weight bearing activities. His opinion was that Dr Olivier’s evidence that resumption of weight bearing activities after arthrodesis would accelerate the return of pain and osteoarthritis was pessimistic although this was possible.

11. It would seem to me that there is, in reality, very little or no difference in the opinion of the medical experts. Although at the start of the trial it appeared that Mr Berkowitz was certain that the arthrodesis would be a solution to plaintiff’s anticipated incapacitation as a result of the accident, during cross-examination the possibility of pain cannot be ruled out of the plaintiff engaged in weight-bearing activities subsequent to the arthrodesis.

12. Dr Olivier’s opinion that resumption of weight bearing activities would accelerate the complications arising from the arthrodesis was based, partly, on an article in the medical journal, the journal of Bone and Joint Surgery (Volume 83A, No 2). The article relates to a research done on patients on whom arthrodesis had been performed. According to the article, after a period of 22 years the majority of the patients were found to have developed accelerated arthritic changes. The conclusion drawn from the research was that, although an ankle arthrodesis may provide relief or alleviation of pain, it also results in premature deterioration of other foot joints, eventually resulting in arthritis, pain and dysfunction. If the results of the research are applied to this case, the plaintiff, who was 21 years when he sustained the injury and will be 31 years when the arthrodesis is performed, will develop the side effects in the next 22 years following the procedure, such that by the age of 51 years the complications would be at an advanced stage. If the plaintiff resumes the weight bearing activities after the arthrodesis, the pain will return when he is 35 years old. This, in my view, is the correct interpretation of the article, rather than the defendant’s interpretation, that the side effects will take effect only when the plaintiff is about 52 years (as put to the plaintiff by Mr Smith who appeared for the defendant).

13. Dr Berkowitz admitted that the plaintiff’s sporting days were over and this would be the case even after the arthrodesis. He also admitted that the more active a patient is after an arthrodesis, the more strain is exerted on the adjoining foot joints resulting in deterioration of the tissues therein. Against this background, and the evidence that the plaintiff is an unskilled labourer, my view is that Dr Olivier’s opinion that the plaintiff would not be able to compete in an open labour market, even after the arthrodesis, was not merely a pessimistic guess but rather a real probability, founded on proven facts.

14. I am satisfied that even after the arthrodesis is performed the plaintiff will not be able to engage in the pre-morbid weight-bearing activities in which he used to participate without a risk of degeneration of his ankle tissues. His medical history will still be an impediment to his chances of securing employment. Even if he secures employment, the fact that he will be at greater risk of suffering further injuries than his colleagues will at all material times be a relevant factor affecting his performance at work.

15. Dr Johannes Lourens an Industrial Psychologist testified, on behalf of the plaintiff. A medico-legal report prepared by him, subsequent to consulting the plaintiff, forms part of the record. In his evidence he expressed his views on the contents of a medico-legal report prepared by Dr Richard Holmes, another Industrial Psychologist who consulted the plaintiff. Dr Holmes however, had only consulted with the plaintiff in 2004 prior to the plaintiff’s employment with JMJ sales and his assessment of the plaintiff’s loss of income was based on assumption that the plaintiff would only enter the employment market as a “piece-meal” or an informal employee.

16. Both experts (Industrial Psychologists) were of the opinion that the plaintiff only qualified to work as an unskilled labourer. They also accepted that pre-morbidly the plaintiff had been practically orientated rather than academically inclined and that as a result of the injury to his ankle, his chances of securing employment are very limited. They were of the opinion that the plaintiff currently has a 50% maximum chance of securing employment as an unskilled labourer, and that if he were to secure such employment, his chances of retaining it would be about 30 to 35%.

17. In his medico-legal report Dr Lourens states that he was advised by Mr Hattingh, a manager or supervisor at “JMJ Sales” that the reason for non renewal of plaintiff’s contract by the business was the plaintiff’s failure to impress in his performance of his duties. This, Dr Lourens attributed to the limitations on the plaintiff due to the ankle injury. According to Dr Lourens, had it not been for the injury, the plaintiff would have worked at JMJ Sales for a longer period, given his determination, his above average intelligence (as borne out by the results of the tests conducted by Dr Holmes) and the fact that he would have been more motivated. He would then have progressed to other employment and, with the programmes presently in place in most businesses (through the Skills Development Programmes), he would, in about four years, attain his wish of becoming a bricklayer or an electrician. He would, at this stage be a lower or semi-skilled worker. In his injured state, however, he will not be able to reach the level of a lower or semi-skilled employee.

18. Dr Holmes’ opinion was that even if the plaintiff might have passed matric in his uninjured state, he probably would not have realised his potential (as a person of above average intelligence) because of various factors, such as lack of role models, relatively low standard of education, poverty and the high unemployment rate in the country particularly in the Eastern Cape. He would therefore have remained either an unskilled, lower or semi-skilled worker. On the assumption that the plaintiff would have entered the employment as a “piece-meal” employee in the informal employment market, Dr Holmes anticipated that in the uninjured state, the plaintiff would have earned a maximum income of about R80.00 a day (and as a lower-skilled worker in the non-structured business sector, he would have earned a maximum income of R2 300.00 per month). He would have worked on a “piece-meal” basis for about three to five years, after which he would enter the non-structured business sector where he would remain for about five to eight years. As a lower skilled worker in the formal sector in the Eastern Cape, the plaintiff would, earn an income of about R3 560.00 per month. In his medico legal report Dr Holmes stated that any chance that the plaintiff, in the injured state, might secure employment in the formal sector should be excluded. Consequently he recommended that a post accident contingency deduction of 15 to 20% should be applied.

19. I did not gain the impression that there was a fundamental difference in the manner in which the experts expected the plaintiff’s career path to progress. I agree that in his uninjured state the plaintiff would have remained an unskilled or a lower or semi-skilled worker. I am also satisfied on the evidence before me that his chances of progressing to being a lower or semi-skilled labourer have been reduced by the injury. The fact that he might get temporary relief as a result of the arthrodesis is cold comfort when one considers that resumption of his normal activities will lead to accelerated arthritis. I am also satisfied that even if he were to secure employment, either in the formal or informal sector, the chances that he would retain such employment for any considerable period, in his injured state, are minimal.

20. Mr Louw’s who appeared on behalf of the plaintiff submitted, correctly in my view, that as the plaintiff had, in his injured state, been able to secure employment in the formal sector from May 2006 at a salary of

R390.00 per week (R1 688.70 per month and R20 280.00 per annum), his loss of income should be calculated on the basis that he would have been employed in the structured business and would have progressed to an income of R50 218.00 by January 2011 (after five years of having commenced work). This proposition finds support in Dr Lourens’ undisputed evidence. The contention that if the plaintiff had not sustained the injury in question he would have been able to retain his employment at JMJ Sales for a longer period and progressed to the level of lower or semi-skilled worker is supported by evidence. The plaintiff’s pre-morbid life was very active and outdoor oriented. Mr Lourens anticipated that the income of R50 218.00 would be followed by compound increases until the plaintiff reached the level of lower or unskilled worker (the Paterson B 3 level) at a salary of R120 404.00. That the plaintiff would have reached this level was not in dispute. The period within which he would have reached it, however, still remains to be determined. Mr Louw submitted that the plaintiff would reach this level at 12 years. The only other suggestion is a period of eight years contained in a certificate issued by an actuary Dr Robert Koch (the certificate also forms part of the record). I accept the period estimated by Dr Koch as the best estimate. Although Dr Holmes doubted this estimate, he offered no concrete reason for his disagreement; he also did not say what period would be more reasonable.

Consequently, the following order will issue:

1. The Defendant shall furnish an Undertaking in terms of Section 17 of the Road Accident Fund Act, Act No 56 of 1996 for all future medical expenses suffered by the plaintiff, to the extent of the defendant’s liability in terms of the Order of this Court dated 7 August 2006;

2. The Defendant shall pay an amount of R140 000.00 in respect of general damages suffered by the plaintiff as a result of the motor vehicle collision that occurred on 8 October 1999;

3. Loss of income suffered by the plaintiff as a result of the motor vehicle collision shall be calculated by an actuary, taking into account the following factors:

1. that the plaintiff left school in 2003, having passed standard 9;

2. from May 2006 to May 2007 the plaintiff was employed at JMJ Sales, earning an income of R390.00 per week (R20 080.00 per month);

3. from 1 June 2007 the plaintiff became unemployed;

4. that the plaintiff will no longer be able to engage in weight bearing tasks, long periods of continuous standing and running;

5. that the plaintiff stands a maximum chance of 50% of securing employment in his injured state;

6. various factors will influence the plaintiff’s chances of securing employment in the future, such as:

1. limited employment opportunities available to him;

2. employer prejudice;

3. the fact that he will not be able to perform the full spectrum of duties in most employment opportunities that might be available to him;

4. that he will be at a greater risk of suffering further injuries than his counterparts;

5. that his productivity will be variable;

6. periods of absenteeism;

7. the high unemployment rate prevailing in the Eastern Cape and in the country (estimated at 51%);

4. That the plaintiff has a maximum 30% chance of retaining any employment he might secure in his injured state;

5. That, in his uninjured state, the plaintiff’s levels of earnings would have progressed from R20 080.00 in 2006 to R50 218.00 by January 2011; he would have acquired some skills in the course of his employment and would have become a lower or semi-skilled employee (referred to in evidence as Peromnes 17 to 13/ Level B3); after January 2011 his salary would have increased as a result of compound real increases over a period of eight years until it reached R120 404.00;

6. That the plaintiff will retire at the age of 65 years;

7. The increases in the plaintiff’s salary will be subject to inflation, interest and taxation until he reached 65 years;

8. Allowance shall be made for contingencies at 15%;

9. The defendant shall pay the costs of the trial.

_________________________

N DAMBUZA

JUDGE OF THE HIGH COURT

Plaintiff’s Counsel: Mr Louw

Plaintiff’s Attorneys: Niehaus McMahon & Oosthuizen

12 Belgravia Crescent

Southernwood

EAST LONDON

Defendant’s Counsel: Mr Smith

Defendant’s Attorneys: Hart & Beyers

6A Sansom Road

Vincent

EAST LONDON

Heard on: 14 August 2007

Delivered on: 02 October 2007

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