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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

NORTH WEST DIVISION, MAHIKENG

 

CASE NUMBER: RAF204/2020

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates YES/NO

 

In the matter between:-

 

LETHEBE JOHANNES NKAU	Plaintiff
and
ROAD ACCIDENT FUND	Defendant

 

JUDGMENT

 

FMM REID, J:

 

Introduction:

 

[1]          The cause of action occurred on 20 January 2017 at 21h00 at the intersection of Thabo Mbeki drive, Rustenburg when the plaintiff, a pedestrian, crossed the intersection.  An unknown vehicle driven by an unknown person (the insured driver) disregarded the red traffic signal (robot) and hit the plaintiff with the motor vehicle (the collision).  The plaintiff sustained injuries and damages as claimed in this action.

 

[2]          Merits have been settled to the apportionment of 80/20 in favour of the plaintiff.  An order was made to such an effect on 8 March 2023.

 

[3]          The defendant also provided an undertaking for future medical expenses resultant from the collision to be paid by the defendant, limited to 80%.  This, similarly, was included in the court order dated 8 March 2023.

 

[4]          General damages were settled between the parties and the plaintiff was afforded damages in the amount of R400,000.00 (Four Hundred Thousand Rand), of which amount the 20% apportionment was already deducted.  This was also stipulated in the court order dated 8 March 2023.

 

[5]          Adv D Smit appears on behalf of the plaintiff and Adv Setati appears on behalf of the defendant.

 

Issues before court

[6]          The issues left for the court to adjudicate is the damages occurred by the plaintiff with regard to:

 

6.1.                       Past medical expenses; and

 

6.2.                       Future loss of income and earning capacity.

 

[7]          The parties agreed that the past medical expenses are postponed sine dies and will be determined after the judgment of the matter currently being dealt with in the Constitutional Court dealing with past medical expenses.  The plaintiff claims an amount of R83,731.89 (Eighty Three Thousand Seven hundred and Thirty One Rand and Eighty Nine Cents) for past medical expenses incurred by the plaintiff.

 

[8]          The only issue before court is the plaintiff’s future loss of income and earning capacity.  Under this heading, the plaintiff claims an amount of R2,205,881.00 (Two Million Two Hundred and Five Thousand Eight Hundred and Eighty One Rand).

 

[9]          The plaintiff’s actuarial report by GW Jacobson Consulting Actuaries indicate that the plaintiff was employed as a water jet operator at the Impala Platinum Mine. He commenced employment on 23 March 2007.  The plaintiff’s payslip dated 16 November 2016 indicates that he received a basic salary of R10,050.00 (Ten Thousand and Fifty Rand) per month at the time of the accident.  In addition to his salary, he received the following benefits:

 

9.1.                       Annual bonus consisting of 100% of one month’s salary;

 

9.2.                       Living out allowance of R2,150.00 (Two Thousand One Hundred Rand) per month;

 

9.3.                       Retirement funding of 10.69% of his basic salary; and

 

9.4.                       Other income consisting of 27.84% of his basic salary.

 

[10]       In terms of the report from the Industrial Psychologist, Mr Wessels, dated 9 February 2021 the plaintiff returned to work in November 2017.  He was subjected to a medical examination and was found to be incapable of returning to work.  He was medically boarded on 2 November 2018. 

 

[11]       The plaintiff has, to date, remained unemployed.

 

Future loss of income / earning capacity

[12]       The plaintiff requested that the expert affidavits as filed in terms of Rule 36(9) of the Uniform Rules of Court be accepted by virtue of affidavits of the experts in terms of Rule 38 of the Uniform Rules of Court.  The defendant has not filed any opposing expert reports and it presented no opposing expert evidence.  The expert evidence produced by the plaintiff is thus uncontested before court.  Consequently, I granted an order that the plaintiff’s experts’ evidence is accepted by means of affidavits from the experts as provided for in terms of Rule 38.

 

[13]       The plaintiff delivered expert reports from the following experts:

 

13.1.                    Dr Morule – Orthopaedic Surgeon;

 

13.2.                    L Toerien – Occupational Therapist;

 

13.3.                    Dr Berkowitz – Plastic Surgeon;

 

13.4.                    Wessel Wessels – Industrial Psychologist;

 

13.5.                    M Mazabow – Neoropsychologist; and

 

13.6.                    Jacobson Actuaries.

 

[14]       The defendant did not object to the request that an order be granted that the expert affidavits be accepted in terms of Rule 38 and an order was made accordingly.

 

[15]       The plaintiff sustained the following injuries as a result of the collision:

 

15.1.                    A closed fracture in the proximal third segment of the shaft of the right humerus;

 

15.2.                    A closed fracture of the proximal right tibia; and

 

15.3.                    Soft tissue injuries to his neck.

 

[16]       The expert evidence can be summarised as follows with reference to the content of the plaintiff’s expert reports.

 

[17]       Dr Morlule, the plaintiff’s Orthopaedic Surgeon states inter alia that:

 

“He informed me that he returned to work at the beginning of February 2018.  He worked for only a few weeks before being declared permanently incapacitated, according to him.  He left the company at the end of February 2018, on permanent incapacity for underground employment.

 

…

 

He is unable to lift heavy objects on the dominant arm due to pain he is unable to rise his arm to the shoulder level due to pain at the right shoulder.  The use of his dominant arm is severely restricted.  He is unable to walk long distances as tis causes pain on the right knee and lower leg and thigh.  He was declared incapacitated for underground work in 2018.

 

…

 

He has severe restriction of the right shoulder joint movements due to the malunion.

 

…

 

The right tibial fracture.  Although open reduction and internal fixation was undertaken, the fragments are malunited with unacceptable varus deformity at the fracture site of 14 degrees.

The patient already has severe post-traumatic chrondromalacia in the medical compartment of the right knee or very early post-traumatic arthrosis.

 

…

 

He is not fit for underground manual labour or work on the open labour market.

 

…

 

He is fit for a sedentary type in a protected environment, the exact type of which to be decided in consultation with an occupational therapist.

 

…

 

Following the above, even working in a sedentary type of employment in a protected environment, the patient’s limitation at the right shoulder, on a dominant arm will progressively diminish rendering him unable to work beyond the age of sixty years.”

 

[18]       Leazanne Toerien, the plaintiff’s Occupational Therapist, states inter alia:

 

“The client has not received optimal intervention as of yet.  It is imperative that he complies with the recommended surgical and conservative intervention recommended by Dr Morule.  The recommended, surgeries, recovery and rehabilitation period will take a long time, and there will be a long period that he will remain dependent on others for assistance in his ADL’s (Assisted Daily Living)… However, when considering the fact that there are signs of arthrosis, as well as the pathology present in the cervical spine and the nature of the surgery required in the knee and right shoulder, he will always continue to experience some restrictions and he will, therefore, need assistance with heavier activities.

 

…

 

Based on his performance on the standardised physical assessment, the client does not meet the inherent demands of his pre-accident employment as a waterjet operator.  He specifically does not meet the standing, walking and load handling requirements of the position.  It is therefore justified that the mine doctor recommends an alternative position on the surface.

 

…

 

Even if the client complies with all the recommended interventions, he will remain best suited for light demand work, with low moderate mobility and agility demands in the long-term, due to the pathology present in the right knee and cervical spine.  The client’s work options are therefore significantly limited, and he will not be able to return to his pre-accident type of employment or similar employment in future.

 

…

 

His work options are significantly limited and his limited physical ability.  When considering the extensive surgical intervention needed, long recovery periods and long-term rehabilitation needed, his return to work will even be further delayed.  Furthermore, when considering his physical limitations, age education and work experience his future work options have been significantly affected, and it is unlikely that he will be able to secure employment in the open labour market in future.

 

…

 

When comparing the previous assessment’s results, with the current results, it is evident that his functional capacity has deteriorated with time.  The strength in his right hand has deteriorated and he now walks with an antalgic gait pattern, due to the increased pain levels in the right knee.  He presents with reduced capacity for agility tasks such as crouching and elevated work, as well as reduced capacity for mobility tasks such a walking and stair-claiming.  He moreover presents with reduced capacity for handling loads, as he should handle high ranges of medium demand before, and can only handle low ranges of medium demand now.

…

 

In my opinion, the client still does not meet the inherent demand of his pre-accident employment as a waterjet operator.  As his work required high demands of upper limb function and prolonged waking over uneven terrain, he will probably not be able to work in a similar position again in future.

 

…

 

The client’s future work options have been significantly reduced by the injuries sustained in the accident under review.  He will only be suited for sedentary-light physical demand work, with low mobility and agility demands in the future.

When considering his limitations on the one side and his age, education and work history on the other hand, it is unlikely that he will be able to secure employment in the open labour market again in future.”

            (own emphasis)

 

[19]       Wessel Wessels, the plaintiff’s Industrial Psychologist states inter alia as follows:

 

“Given the available information, it is postulated that had the accident not occurred, the plaintiff would probably have continued working as a water jet operator or similar until the employer’s compulsory retirement age of 62½ years.  It is postulated that his earnings would have increased annually.

 

…

 

The plaintiff sustained a past loss of earnings since the date of the accident to date of this report.

 

…

 

It is evident that the plaintiff is incapable of returning to gainful employment.  He is currently about 55 years old, remains with debilitating orthopaedic and functional impairments, is still destined for multiple surgical interventions, has a poor educative status (reportedly Grade 7) and has poor communication skills.

It is thus evident that he will continue to sustain a total of earnings until the pre-accident retirement age.  His loss is therefore the difference between what his postulated pre-accident level of earnings were / would have been and his post-accident unemployment status.”

(own emphasis)

 

[20]       Dr Mazabow, the plaintiff’s Neuropsychologist inter alia states:

 

 “In addition to his physical pain and limitations pertaining to his right arm / shoulder, right lower leg, neck and lower back, Mr Nkau’s chronic psychological symptoms (and the associated cognitive, interpersonal and behavioral changes) would constitute additional obstacles within the open-labour market… would limit his ability to perform effectively even in more sedentary positions (for which he would, in any event be a poor candidate given his limited education).

 

[21]       In determining whether the plaintiff has a past loss of earnings and/or a future loss of earnings and/or earning capacity, I have regard to the following factors:

 

21.1.             The plaintiff is currently approximately 55 years’ old and the retirement age for his employment as a waterjet operator in the mine is 62½ years old.  The lion’s share of the plaintiff’s working years have thus passed.

 

21.2.             All the experts are ad idem that the plaintiff would not be able to return to his pre-collision position of employment.

 

21.3.             The Industrial Psychologist holds the view that the plaintiff would not be capable of returning to any gainful employment. 

 

21.4.             It is inevitable that the plaintiff require further surgical and conservative interventions as set out in the expert reports, in order to obtain optimal intervention after the collision.  The future surgeries result in less success in obtaining employment as employers would not be likely to employ an employee who would be absent from work for medical reasons.

 

21.5.             The plaintiff is unsuitable to do manual work due to the injuries sustained as he remains with debilitating orthopaedic and functional impairments.

 

21.6.             The plaintiff is not a candidate for office work due to the fact that he is not highly academically qualified, and has received education reportedly to only Grade 7 as stated by the Industrial Psychologist.  In addition, he has never worked in an office and has always done manual work.

 

21.7.              Due to his injuries as a result of the collision, and due to the low academic qualification and restrictions in sedentary work, it is thus highly unlikely that the plaintiff would be able to secure employment in the future.

 

[22]       After studying the expert reports as filed by the plaintiff, as well as the argument presented by the plaintiff and the legal position, I am satisfied that the plaintiff has suffered past and future loss of earning capacity.

 

Contingencies

[23]       In relation to the application of contingencies, Adv Smit argues on behalf of the plaintiff that the appropriate contingencies to be applied would be 5% for the past loss of the plaintiff’s income, and 10% for the plaintiff’s future income.

 

[24]       On calculated amounts, it would amount to:

 

24.1.                 Past loss of oncome in the amount of R1,273,344.00 deducted by 5% amounting to the total amount of R1,209,767.80;

 

24.2.                 Future loss of income with the application of 10% contingency to the agreed amount of R1,192,315.00 deducted by 10% (R119,131.50) brings the total amount to R1,073,083.50.

 

[25]       It is submitted by Adv Smit on behalf of the plaintiff, and agreed by Adv Setati on behalf of the defendant, that the amounts are fair and reasonable and that the percentage of contingencies applied are also fair and reasonable.

 

[26]       The discretion to determine a reasonable amount for compensation, as well as a reasonable percentage for contingency, is for the court to determine.  This discretion is to be judicially exercised and in doing so, the guiding principles provided in case law similar to the circumstances of the plaintiff is to be regarded.  In this instance the court is guided by the actuarial report and the opinions of the experts relating to the plaintiff’s individual position.  I have considered the situation of the plaintiff which includes his age, and agree that reasonable and fair contingencies to be applied would be 5% for the past loss of the plaintiff’s income, and 10% for the plaintiff’s future income.

 

Conclusion

[27]       After consideration of the expert reports, legal principles and legal argument presented, I am satisfied that the total loss of income suffered by the plaintiff is the amount of R2,282,851.30 (Two Million Two Hundred and Eighty Two Thousand, Eight Hundred and Fifty One Rand and Thirty Cents), which is the total amount prior to the application of the apportionment of damages being 80/20.

 

[28]       After application of the apportionment of damages reducing the amount with 20%, the total amount of damages suffered by the plaintiff for loss of income is the amount of R1,826,281.10 (One Million Eight Hundred Twenty Six Thousand Two Hundred and Eighty One Rand and Ten Cents).

 

[29]       I am satisfied that the award in the amount of R1,826,281.10 (One Million Eight Hundred Twenty Six Thousand Two Hundred and Eighty One Rand and Ten Cents) would be just and fair compensation to the plaintiff for loss of income suffered as a result of the collision.

 

[30]       The damages suffered by the plaintiff in relation to past and future loss of income is calculated as follows:

 

25.1	Past loss of income	R1,209,767.80
25.2	Plus Future loss of income	R1,073,083.50
25.3	(Subtotal)	R2,282,851.30
25.4	Minus 20% apportionment	R456,570.26
	TOTAL	R1,826,281.10

 

 

Order:

[31]            In the premises I make the following order:

 

i)             The evidence of the following expert witnesses of the plaintiff are to be adduced by affidavit in terms of Rule 38(2) of the Uniform Rules of Court at the hearing of the trial, namely:

 

a.    Wessel Wessels – Industrial Psychologist;

 

b.     R Immerman – Actuary.

 

ii)            The defendant shall pay to the plaintiff the amount of R1,826,281.10 (One Million Eight Hundred Twenty Six Thousand Two Hundred and Eighty One Rand and Ten Cents) for loss of income and earning capacity pursuant to a motor vehicle accident on 20 January 2017.

 

iii)           No interest shall accrue in respect of the payment of the capital amount referred to in paragraph (ii) above, provided that payment is made within 180 days from date hereof, failing which interest shall accrue on such outstanding amount at 10.5% per annum calculated from the 15^th day of each month after 180 days from the date of this order.

 

iv)           The settlement amount and taxed/agreed costs shall be paid into the trust account of the Plaintiff’s Attorneys, Van Velden-Duffey Incorporated, by direct transfer into its trust account, details of which are:

 

Account holder:                    Van Velden Duffey Attorneys

Bank:                                      ABSA Bank

Branch Code:                        6[...]

Account No:                          0[...]

Reference:                            M[...]

Link No:                                6[...]

Claim No:                              4[...]

 

v)            The defendant shall pay the plaintiff’s instructing and correspondent attorneys taxed or agreed party and party costs on the High Court scale, inclusive of reserved costs, subject to the taxing master’s discretion and thereto that:

 

a.    In the event that the costs are not agreed:

 

                                                 i.    The plaintiff shall serve a notice of taxation on the defendant’s attorney of record;

 

                                                ii.    The plaintiff shall allow the defendant 14 (fourteen) court days from date of allocator to make payment of the taxed costs;

 

                                               iii.    The defendant’s claims handler is ordered to request payment of the taxed or agreed party and party costs within a period of 7 (seven) days from the date upon which the accounts have been served on defendant and / or defendant’s claims handler and to provide the plaintiff’s attorney with written confirmation that payment has been requested.

 

                                               iv.    Should the defendant fail to make payment of the party and party costs within 180 days after service of the taxed accounts on the defendant, the defendant will be liable for interest at the prescribed interest date from date of this order until date of payment.

 

b.    Such costs shall include:

 

                                                 i.    The costs of counsel preparation fee as well as day fees as well as fees for drafting Heads of Argument.

 

                                                ii.    The costs pertaining to the preparation and attendance at trial of the following expert:

 

1.    Grethe Jordaan from Leazanne Toerien (Occupational Therapist)

 

                                               iii.    The costs of all medico-legal, radiological, actuarial, pathologist, addendums and joint reports obtained by the plaintiff, as well as such reports furnished to the defendant and/or its attorneys, as well as all reports in their possession and all reports contained in the plaintiff”s bundle, including but not limited to the reports of:

 

1.    Dr Morule – Orthopaedic Surgeon;

 

2.    Toerien – Occupational Therapist;

 

3.    Dr Berkowitz – Plastic Surgeon;

 

4.    Wessel Wessels – Industrial Psychologist;

 

5.    M Mazabow – Neuropsychologist; and

 

6.    Jacobson Actuaries.

 

c.    Any further expert reports, not specifically named herein, but appointed and whose reports were served by the plaintiff’s attorneys;

 

d.    The costs for travelling and subsistence and/or accommodation for the plaintiff to attend to the medico-legal appointments, subject to the taxing Master’s discretion.

 

e.    The costs to date of this order, which costs shall further include the plaintiff’s attorney’s preparation for trial and attendance at court which shall include all costs previously reserved, the reasonable costs of consulting with the plaintiff to consider the offer, the costs incurred to accept the offer and make the settlement an order of court;

 

f.     The reasonable and taxable preparation, qualifying and reservation fees, if any in such amount as allowed by the Taxing Master, of the plaintiff’s experts referred to above;

 

g.    The reasonable costs incurred by and on behalf of the plaintiff in, as well as the costs consequent to attending medico-legal examinations;

 

h.    The costs of holding all pre-trial conferences, as well as round table meetings and inspections in loco between the legal representatives for both the plaintiff and the defendant, including counsel’s charges in respect thereof, if any;

 

i.      The cost and consequent to compiling all minutes in respect of pre-trial conferences, if any;

 

j.      The cost of and consequent to the holding of all expert meetings between the medico-legal experts appointed by the plaintiff as well as the costs pertaining to the procurement of joint minutes, if any;

 

k.    The costs of preparing one (1) trial bundle;

 

l.      The plaintiff and attorney of record did enter into a contingency fee agreement, which agreement is in accordance with the Contingency Fees Act 66 of 1997;

 

m.  The past medical expenses of the plaintiff are postponed sine dies.

 

 

 

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

 

 

 

DATE OF HEARING:                      6 JUNE 2023

 

DATE OF JUDGMENT:                 7 SEPTEMBER 2023

 

 

 

APPEARANCES:

FOR APPELLANT:	ADV D SMIT
INSTRUCTED BY:	VAN-VELDEN-DUFFEY
	ATTORNEYS
	NORTH BLOCK 04 @ OFFICE 67
	BRINK STREET RUSTENBURG
	0133, DOCEX 1 RUSTENBURG
C/O:	VAN ROOYEN TLHAPI WESSELS
	INC. 9N PROCTOR AVENUE
	MAFIKENG.2745
TEL:	018 381 0804
REF:	(V0055/2230/SAS)
FOR RESPONDENT:	MR SETATI
	STATE ATTORNEY, MAHIKENG
	FISRT FLOOR, EAST GALLERY
	MEGA CITY COMPLEX
	CNR SEKAME ROAD AND
	DR JAMES MOROKA DRIVE
	MMABATHO
REF:	(0139/23/R2)
INSTRUCTED BY:	ROAD ACCIDENT FUND
	38 IDA STREET
	MENLO PARK, MENLYN
	PRETORIA
TEL:	012 429 5721
CLAIMS HANDLER:	KWAZIKWAKHE MNTUGWA
EMAIL:	Kwazikwakhem@raf.co.za
CLAIM NO:	560/12704706/1052/0
LINK NO:	4[...]

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