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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)           REPORTABLE:       NO

(2)           OF INTEREST TO OTHER JUDGES:    NO

(3)           REVISED

 

CASE NO: 22625/15

 

In the matter between:

KIRSTEN NICOLE NEUSHAFER                                                                  PLAINTIFF   

 

and

 

THE ROAD ACCIDENT FUND                                                                        DEFENDANT

 

JUDGMENT

 

BHOOLA AJ:

 

Introduction

[1]        This matter proceeded before me by way of videoconference as agreed by the parties (the defendant being represented at that stage by its attorneys) in a joint practice note of 17 June 2020 in compliance with the Judge President's Consolidated Directive of 11 May 2020. The parties further agreed that no evidence needs to be led and that the matter can be argued on the expert reports and pleadings. The joint practice note also confirms that general damages have been referred to the HPCSA, and that the merits were conceded 80% in favour of the plaintiff. This was made an order of court 24 August 2016 in front of the honourable Deputy Judge President Ledwaba. When the matter was heard by me on 23 June 2020 only Mr Bouwer, counsel for the plaintiff appeared. He informed me that the defendant's attorneys were still on record but had indicated to him that they had no instructions in the matter. As a result, plaintiff's attorneys had been in direct communication with a claims handler from the defendant, who was at all times aware that the matter was enrolled for trial on 22 June 2020 and that it had been stood down to 23 June 2020 to enable them to consider their approach to the matter. The claims handler had, on the morning of 23 June 2020 on behalf of the defendant tendered a certificate in respect of future medical expenses, which has been accepted by plaintiff's attorneys. Counsel informed me that he had also personally informed the claims handler and the defendant's attorneys of record that the plaintiff intended to proceed as the matter was ready for trial. Copies of the written correspondence between the parties to this effect was also made available. It is clear to me from such correspondence that the defendant was indeed aware that the matter would proceed and elected not to participate. I was disinclined to postpone the matter to ensure their participation and accordingly proceeded to hear submissions from plaintiff's counsel. In doing so I had regard to the judgment of Neukircher J handed down on 15 June 2020 in this Division, K D Dichabeobo GN  v RAF (CASE NO: 18770/16) in which the court expounded on the denial of access to justice that can ensue in such circumstances.

 

[2]        At the commencement of the matter I granted leave to amend the pleadings in terms of rule 28(10)[1] in order to align the particulars of claim with the expert reports. The amendment does not raise new issues but makes technical amendments to align the amounts claimed. The parties had been in consultation regarding the issue and the defendant's attorneys had not raised any objection to the amendment. Counsel further informed me that the notice of intention to amend had been discussed with Leveshni Pillay, the claims handler, directly as she contacted the defendant's attorneys and liaised directly with them regarding the amendment.

 

Merits and background

 

[3]        The plaintiff was 28 years old when she was involved in an accident on 6 March 2011. She was cycling at the time and a collision occurred with a motor vehicle that drove in front of her. She was taken to the Constantiaberg Medi-Clinic where she was hospitalised for nine days. She presented with a closed head injury with concussion, right radial head fracture, right clavicle fracture and left radial neck fracture. She underwent surgery for the right clavicle fracture after the wounds on her shoulder had settled. At the time of the accident the plaintiff was a marine biology student at the University of Cape Town and also worked part time as a crew member on sailing vessels.

 

Issues to be determined

[4]        The parties agreed as per the practice note that the following issues are to be determined: (a) Past and future loss of income of the plaintiff; and (b) Contingency deduction to be applied on the past and future loss of income of the plaintiff.

The expert evidence

[5]        The Plaintiff filed the following expert reports:

a) Dr. JDC Heymans (Orthopaedic Surgeon).

b)Eloise Du Plooy (Occupational Therapist).

c) Caro Cilliers (Industrial Psychologist).

d) Johan Sauer (Actuary).

 

[6]            The Defendant filed the following expert reports:

a) Dr. M Maku (Orthopaedic Surgeon).

b)Dr K Motseto (Occupational Therapist).

c) Dr O Sechudi (Industrial Psychologist).

d) GW Jacobson (Actuary).

[7]     Joint minutes were filed by the Occupational Therapists and Industrial Psychologists

[8]        The orthopedic surgeon, Dr Heymans, records that the plaintiff complains about pain and discomfort in both her elbows with the right being more painful than the left. She also complains of pain in both her forearms and pain in her right clavicle especially when it is cold.

 

Joint minute of Occupational Therapists

 

[10]      In their joint minute the occupational therapists state that :

 

10.1    The plaintiff was unable to return to university after her recovery period of four to five months as she had missed too many academic contact hours and practical sessions for her course. She was informed that she would not be able to complete her studies in 2011. She was in her second year of study for a degree in Physical Oceanology and Marine Biology, which is a three year degree. Due to her leave of absence post-accident she also lost the bursary the university had awarded her. She was unable to afford to continue her studies and relocated to Port Elizabeth to stay with her parents. They agree that her academic prospects were curtailed as as a result of the accident, which led to her losing her bursary and that additional allowance should be made for her to complete her studies.

 

10.2    In the post-accident period she worked on a contract basis as a general crew member on sailboats and yachts. While her work demands varied depending on the type of vessel, they agree that it fell within the light to medium categories of work.

 

10.3    They agree that the plaintiff has reduced physical capacity post-accident and that she retains adequate physical capacity to perform light work demands. She has difficulty working in elevated positions with decreased fine motor coordination.

 

10.4    They note and agree that as she is not fully suited to her occupational demands, she may be at risk of over exertion and self-inflicted secondary injury. Ideally she should seek alternative employment, which is not as physically demanding.

 

10.5    They agree that she has a reduced physical capacity post-accident with a tendency to over-exert herself in physical activities due to high levels of motivation and poor inisght into the nature of her injuries.

 

10.6    They agree that a full job match no longer exists between her residual physical capacity and the physical job demands of a general crewmember on vessels. They conclude that the plaintiff's reduction of physical work capacity due to the accident limits her occupational options and that her inability to complete her studies post-accident further limited her employment opportunities. They agree that she is thus is less competitive in the open labour market as a result of her inability to complete her studies and this has had an effect on her earning capacity.

 

[11]      The experts disagreed on whether the plaintiff could continue in her current occupation as crew member. Ms du Plooy is of the opinion that she could no longer be considered to be a suitable candidate for her current employment. Her continued participation in this work may place undue strain on her affected joint resulting in accelerated degenerative changes and exacerbation of pain symptoms, all of which would affect her work performance and ability to remain safe while performing physically taxing activities. She recommends that the plaintiff seeks alternative employment.  Ms Motseto is of the opinion that with pain medication and teaching of joint care principles her pain flare-ups would be managed and she would thus be able to continue with her current occupation.

 

Joint minute of Industrial Psychologists

[12]        The Industrial Psychologists agree that the plaintiff was unemployed at the time of the accident, but was previously employed as a Freelance Sailboat Crew Member. They agree that if the plaintiff could overcome her financial challenges, it was likely that she would have been able to complete her degree in Physical Oceanology and Marine Biology. They anticipate that she would have been able to secure employment in a Patterson B5/C1 earning approximately R 266 000/R 272 000 basic per annum. She would have reached her career plateau at 45 and received straight line increases until this time. Considering the plaintiff's age she could have progressed to Patterson Level D1 earning a R 559 000 total package per annum. After the career plateau she would receive inflationary increases until retirement between 60 to 65 years.

 

[13]        In relation to future loss of income they agree that the plaintiff was negatively affected by the accident and that she is encouraged to seek alternative employment as a job match only partially exists between herself and her current employment. Furthermore, they agree that as a result of the accident the plaintiff is only suited to perform occupations of a sedentary and light nature. They agree that if the plaintiff secures alternative employment at Patterson A3, which is suited to her current level of education, she will likely experience a partial loss of income as she would have received more income had it not been for the accident.

 

[14]        They suggest a contingency deduction be considered to address her vulnerability in her current occupation as well as being an unequal competitor in the open labour market.

 

Actuarial Report of Johan Sauer

[15] The actuary appointed by the plaintiff worked out two scenarios and provided two certificates

Certificate 1: This is based on the scenario provided by the Industrial Psychologists in the joint minute that had the plaintiff finished her studies she would have secured employment as a marine biologist. In this scenario her loss of income amounts to R 6 272 820. The statutory cap must be applied to this leaving the loss after the cap was applied at R 5 326 887 (five million three hundred and twenty six thousand eight hundred and eighty seven). There has to be a further deduction of 20% given the apportionment of 20:80 in the plaintiff's favour. Certificate 2 :The actuary worked on the scenario of the plaintiff not finishing her studies and continuing to work as a crew member, but applying contingencies for the accident impeding her work and promotion. The loss amounts to R 1 932 544 (one million nine hundred and thirty two thousand five hundred and forty four rand).

[16]        In certificate 1 the following calculation is applied :

	Had the accident not happened	Now that the accident has happened	Difference : Loss
Past earnings Less contingency deductions (5%/5%)	1452 877 72 644	648 167 32 408
Total loss of past earnings	1 380 233	615 759	764 474
Future earnings Less contingency deductions (10%/30%)	7 519 366 751 937	2 862 360 858 708
Total loss of future earnings	6 767 429	2 003 652	4 763 777
Total loss of earnings			5 258 252

 

[17]        I am in agreement with the submission by counsel that the first certificate is more in line with the evidence and joint reports and is the one that should be applied in this case.

Order:

[18]        In the circumstances, I make the following order:

1.1       Defendant is to pay Plaintiff the sum of R 4 261 509 (four million two hundred and sixty one thousand five hundred and nine rand) (after apportionment) in delictual damages in one interest free instalment within 14 days of date of this order for:

            a)         Past and future loss of income                              R 4 261 509

1.2       General damages be postponed sine die.

1.3       Payment to be made in the following bank account:

            Name of account holder:    TAUTE, BOUWER & CILLIERS INC

            Bank name:                           STANDARD BANK

Branch name and code:      PRETORIA (010045)

Account number:                 [….]

            Type of account:                  Trust Account

2.         The Defendant is further ordered to furnish the Plaintiff with an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act, Act 56 of 1996, wherein the Defendant undertakes to pay the costs of future accommodation of the Plaintiff in a hospital or a nursing home or treatment of or rendering of a service or supplying of goods to the Plaintiff to compensate the Plaintiff in respect of 80% of the said costs after the costs have been incurred and on proof thereof, pursuant to injuries sustained by the Plaintiff in a motor vehicle collision which occurred on 6 March 2011.

3.1       The Defendant pays the Plaintiff’s taxed or agreed party and party costs on the High Court scale up to the date hereof.

3.2       Plaintiff will serve Notice of Taxation on Defendant’s attorneys of record.

3.3       Defendant will be allowed 14 (fourteen) days after date of taxation for payment of taxed amount.

3.4       If no payment has been made within 14 (fourteen) days as mentioned above, the agreed amount of costs or allocator will bear interest at the statutory rate of 9.75% per annum from the date of agreement or date of allocator as the case may be up to the date of final payment.

4.         The aforementioned costs, as far as experts and counsel are concerned, shall further include and be limited to the following:

4.1       The reasonable taxed or agreed fees, and cost of:

4.1.1               JDC HEYMANS (Orthopaedic Surgeon);

4.1.2               Janka Swanepoel (Occupational Therapist);

4.1.3               Caro Cilliers (Industrial Psychologist);

4.1.4               Johan Sauer (Actuary)

4.2       The reasonable taxed or agreed fees of counsel.

 

 

                                                                                               

U BHOOLA

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

APPEARANCE

 

For the plaintiff : JJ BOUWER 079 520 1418

For the defendant: No appearance

 

Date of hearing via videoconference: 24 June 2020

Date of judgment handed down electronically and emailed to the parties: 26 June 2020

 

 

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