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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, (PRETORIA)

 

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED.

CASE NO: 77104/16

4/3/2020

 

In the matter between

 

BLOSS K                                                                                                                PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                                                    DEFENDANT

JUDGMENT

Mdalana-Mayisela J,

1.          This is an action for delictual damages in terms of the Road Accident Fund Act 56 of 1996, as amended ("the Act"), arising from a motor vehicle collision ("the collision") which occurred on the 16^th of May 2015 in consequence of which the plaintiff sustained bodily injuries.

2.          The defendant has conceded 100% liability for the plaintiffs proven damages arising from the collision. The parties have also agreed that the defendant will furnish the plaintiff with an undertaking in terms of section 17(4) (a) of the Act for future medical and related expenses. The plaintiff has abandoned his claim for past hospital, medical and related expenses, and past loss of income.

3.         The only outstanding issues for determination are general damages and future loss of earnings or earning capacity. The parties filed several medico -legal reports of various experts inclusive of joint minutes. The content of the reports is not in dispute and was received as evidence by the court. Subsequently the outstanding issues of quantum were argued without leading evidence.

4.          As a result of the collision, the plaintiff sustained a fracture of the mid shaft of the right humerus; a puncture wound to the right arm; trauma to the right shoulder and lower back; an abrasion wound of the left forearm; and a wedge compression fracture to the L2. The nature and seriousness of the injuries sustained by the plaintiff are common cause between the parties.

5.         As a result of the aforesaid injuries the plaintiff suffers from chronic headaches; ongoing pain of the lower back and the right shoulder; has reduced range of motion and muscle strength for the right shoulder; reduced hand grip strength and right hand coordination postural asymmetry; reduced stamina; skin disorders and permanent scars on the left and right arms; cannot play soccer; and has 25% anterior loss of the vertebral body height. The sequelae of the injuries sustained by the plaintiff is not in dispute.

6.         I turn now to deal with the loss of earnings or earning capacity. The parties agreed to the finding of the overlapping experts as outlined in their respective joint minutes. They agreed to the plaintiff's pre-morbid and post-morbid postulation as per joint minute between industrial psychologists. The parties further agreed on a 20% contingency deduction to be applied pre-morbid.

7.         The issue in dispute between the parties is the contingency percentage to be applied post-morbid. The plaintiff submitted that 30% contingency deduction post-morbid is appropriate based on the estimation by Dr Birrell that the plaintiff has a 5% to 6% future loss of earning capacity plus one (1) year of early retirement, assuming the retirement of 65 years. The defendant submitted that a 25% contingency deduction post-morbid should be applied.

8.         The plaintiff currently 23 years of age, is a full time student at the North West University studying a four year course of Human Resource Management (Bachelor of Administration). Pre-morbid the industrial psychologists in their joint minute, taking into consideration the educational psychologists' opinion, agreed that the plaintiff would have obtained a grade 12 (NQF4) level of education. Thereafter he would have obtained NQF7 qualification. He would probably have been unemployed for six months or one to three years. Thereafter he would have secured a permanent position in a non-corporate sector for one year before progressing towards corporate sector entering on a Peterson 84 job complexity level, with ultimate progression towards a Paterson 01/02 job complexity level at age 45 years with annual inflationary increases until the age of 45.

9.          Post-morbid the industrial psychologists agree that the plaintiffs post-morbid scenario mirrored his pre-morbid scenario and his work and earning predictions will still emerge correspondingly to what was advanced in his pre-accident earning situation. The Plaintiff's industrial psychologist recommended a higher than pre-morbid contingency deduction to be applied on the post-morbid occupational functioning to compensate for loss of earning capacity and one (1) early retirement.

10.        An inquiry into the damages for loss of earning capacity is of its nature speculative, as it involves a prediction as to the future. All that a court can do is to make an estimate which is often a very rough estimate, of the present value of the loss. 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 actuarial calculations. The court has a large discretion to award what the court considers right. One of the elements in exercising that discretion is the making of discount for contingencies or vicissitudes of life. These include such matters as the possibility that the plaintiff may in the result have less than a normal expectation of life, and that he may experience periods of unemployment by reason of incapacity or to labour unrest or general economic conditions .The amount of any discount may vary, depending upon the circumstances of each case. The rate of discount cannot be largely arbitrary and must depend upon the trial judge's impression of the case and may be favourable (Southern Insurance Association Ltd vs Bailey N.O 1984 (1) SA 98 (A) from 99).

11.        In determining the contingency deduction to be applied post-morbid, I take into account that the plaintiff is compromised due to his injuries and the sequelae thereof. Dr Birrell concluded that the plaintiff sustained a fracture of L2 with narrowing of L1/L2 disc space and he opined that the plaintiff's main problem is his lumber spine injury. He continues to suffer from chronic headaches which affect him in his studies. Dr Birrell opined that a lumbar spine symptoms could be troublesome in years to come necessitating a surgery. When the plaintiff attends lumbar spine surgery he will be required to take up to four months sick leave. He also has to attend a surgery for removal of intramedullary pin. Dr Birrell is of the opinion that post-morbid the plaintiff is not suitable for occupations of a fairly physical nature and he will be suitable for sedentary type of work. The plastic and reconstructive surgeon, Dr White in his report concluded that the gross insight scarring of the plaintiffs right arm is not amenable to surgery and will a detrimental effect on his employability. His career options are limited.

12.        Dr Birrell concluded that in all likelihood the plaintiff will perform a sedentary or semi-sedentary type of work and this will exacerbate his backache. He assessed the plaintiffs loss of earning capacity, taking into account the plaintiff's young age of 23, to be 5% to 6% plus one year early retirement.

13.        The actuarial calculation report has been prepared on the basis of the joint minute of the industrial psychologists and has been admitted as evidence in the court by agreement between the parties. On the basis of the circumstances above, it is my assessment that it is fair and reasonable to impose a 30% contingency deduction to the agreed future loss of earnings and earning capacity.

14.        With regard to general damages the plaintiff has submitted to the defendant two RAF4 assessment reports completed by Dr White and Dr Birrell. Dr White in the in the RAF4 report dated 6 April 2017 qualified the plaintiff for general damages under narrative test for permanent serious disfigurement. Dr Birrell in RAF4 report dated 21 August 2017 gave plaintiff 15% WPI and qualified him for general damages under narrative test for serious long term impairment or loss of body function, and permanent serious disfigurement.

15.        The defendant has not formally rejected the findings contained in the aforesaid RAF4 reports. The plaintiff on 19 March 2019 brought an application in terms of Promotion of Administrative Justice Act 3 of 2000 compelling the defendant to indicate in writing whether it is satisfied that the plaintiff has been correctly assessed as set out in the RAF4 serious injury assessment reports and ratings in terms of Regulation 3(3)c)of the Regulations promulgated in terms of the provisions of the Act ; or if the defendant is not satisfied that the plaintiff has been correctly assessed as aforementioned, to within ten days from the date of the order, and in writing reject the plaintiff's RAF4 reports completed by Dr Birrel and Dr White and to furnish full reasons for the rejection. The order was granted by Meyer J and the defendant was served with the order but failed to comply with it.

16.        On 19 September 2019 the parties held a pre-trial conference wherein the issue of RAF4 reports was discussed and the following note was entered in the pre-trial minute signed by the attorney of the defendant:

"8.1 Does the defendant admit the factual a/legations or findings or opinions and basis of evidence in support of same as contained in the aforementioned expert notices and RAF4 reports of the plaintiff filed in terms of Rule 36(9)(b) to date? Defendant's answer: This is admitted to the extent that same is confirmed by the hospital records or the defendant's report or the joint minutes. To the extent that the defendant does not have counterparts for the plaintiff's expert reports, the defendant will revert in writing by close of business on 11 November 2019 failing which this is deemed to be admitted.

 

17.        Counsel for the plaintiff submitted during the argument that the defendant's attorney failed to revert in writing by close of business on 11 November 2019 and that the findings or factual allegations or opinions contained in the RAF4 reports were deemed to be admitted.

18.        Counsel for the defendant made a submission from the bar during the closing argument that the claim for general damages should be referred to Health Professional Council of South Africa without laying any basis for such referral. He conceded that there was no formal rejection served on the plaintiff's attorneys at the time he was making this submission. This submission could not be sustained in the light of non-compliance by the defendant with the 2008 Regulations as amended.

19.        Counsel for the defendant further argued that the aforementioned admission is not binding on the defendant because it was an admission of law. I disagree with this submission. The aforementioned admission expressly referred to factual allegations or findings or opinions and basis or evidence in support of same. It is not an admission of law. The purpose of the pre-trial conference is for the parties to attempt to narrow issues in dispute. The plaintiff prepared for trial on the basis that RAF4 assessment reports had been admitted by the defendant. There is no reason why this court should not hold the parties to the admissions they made in the pre-trial conference as recorded in the pre-trial minute. In my view the parties are bound by the factual admissions they made in the pre-trial conference.

20.        Counsel for the defendant submitted that if I find that the plaintiff is entitled to be awarded general damages, the amount in the region of R300 000.00 to R330 000.00 would be appropriate. He did not refer me to previous comparable cases. Counsel for the plaintiff submitted that the amount of R450 000.00 would be fair and just for general damages. He referred me to previous awards of which he conceded that the injuries and sequelae thereof were more severe than in the present case. I am aware that no two cases ever presented with the same facts and each case must be assessed on its own peculiar facts.

21.        Dr White opined that the plaintiff presents with two unsightly surgical scars of the right arm which can be improved by surgery. Even after surgery the plaintiff will remain permanently scarred. The gross unsightly scaring of the left arm is not amenable to surgery and this will have a detrimental effect on his social life. He has itchiness of the scars on his left forearm and right shoulder. Dr White qualified the plaintiff for general damages award under a narrative test for a permanent serious disfigurement.

22.      I have set out the injuries which the plaintiff sustained and the sequelae thereof above. The plaintiff was a fit and healthy young man prior to the collision. He is now destined to spend the remainder of his life in constant pain and is being prevented from playing soccer and participating in other activities. He has to undergo a lumbar spine surgery, revision of scars surgery and a surgery to remove intramedullary pin. I have considered the case law referred to by Counsel for the plaintiff and the submissions made on behalf of both parties. In my assessment of all these considerations I am of the view that an amount of R320 000.00 in respect of general damages for pain and suffering, discomfort, disability and the loss of enjoyment of the amenities of life, would be fair to both sides.

23.      Accordingly the following order is made:

(1)         The defendant shall pay the total sum of R1, 480,149.00 to the plaintiffs Attorneys, Adams & Adams in settlement of the plaintiffs action, which amount is calculated as follows:

Future loss of earnings or earning capacity                     R1,160,149.00

General damages                                                              R320,000.00

together with interest calculated at the legal rate from a date fourteen (14) days after the date of judgment to the date of payment;

 

(2)         The defendant shall furnish the plaintiff with an undertaking in terms of the provisions of section 17(4) (a) of the Road Accident Fund Act 56 of 1996, to pay to the plaintiff the costs of future accommodation in a hospital or nursing home or the treatment of or rendering of a service to or the supply of goods to the plaintiff, as a result of the injuries sustained by him in the motor vehicle which occurred on 16 May 2015, and the sequelae thereof, after such costs have been incurred and upon proof thereof.

(3)          The defendant shall pay the plaintiffs costs of suit together with interest thereon calculated at the legal rate from a date fourteen (14) days after allocator to the date of payment, such costs to include but not limited to the following experts :

3.1.1     Dr D.A Birrell

3.1.2     Dr B White

3.1.3     Ms T Holshausen

3.1.4     Ms E Prinsloo

3.1.5     Ms K Prinsloo

3.1.6     Mr G.A Whittaker

 

 

 

MMP MDALANA-MAYISELA

JUDGE OF THE HIGH

COURT OF SOUTH AFRICA

GAUTENG DIVISION

 

 

 

For the Applicant

Adv S Maritz

 

Instructed by

Adams& Adams

Lynnwood Bridge Office Park

4 Daventry Street

Lynnwood Manor

Pretoria

Tel: 012 432 6000

Ref: DBS/KW/krm/P1873

 

 

For the Defendant

Adv Kanyane

 

Instructed by

Mac Ndhlovu Inc.

1109 Justice Mahomed Street

Brooklyn

Tel: 012 7558984

Ref: RAF: 3862697

Email:reception@macndhlovu.com

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