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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

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

SOUTH GAUTENG DIVISION, JOHANNESBURG

 

CASE NUMBER: 31083/2015

 

REPORTABLE: YES / NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED.

20/10/2021

 

CARMEN DU PREEZ                                                                               PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                                         DEFENDANT

 

JUDGMENT

 

KEKANA AJ

 

INTRODUCTION

 

[1] This is a claim for the recovery of damages by the plaintiff as a result of the injuries she sustained in a motor vehicle collision. At the hearing I was informed that the issue of liability was settled, with the defendant conceding 30% liability for the plaintiff’s proven damages. Further that the parties also reached settlement on the issue of past hospital and medical expenses in the sum of R22 508.67. The issues remaining for determination are future medical expenses and loss of past and future income.

[2] At the trial, it was submitted that the matter could be dealt with on the papers. I stood the matter down to consider the affidavits filed and the reports. The plaintiff’s affidavit only dealt with her employment history and did not address her injuries and sequelae thereof which is necessary for her claim for future medical expenses and loss of future income. I therefore called for oral evidence to be led. In the calculation for future loss of earnings the actuary calculated it on the basis that from 2025 the plaintiff will not earn any income. I thus called on the expert witnesses to testify to substantiate on their reports, in particular the opinion that the plaintiff would be unemployable in the future.

INJURIES AND TREATMENT RECEIVED

[3] According to the hospital records plaintiff sustained the following injuries: (a) fracture L1, L2, L3, L4 fractures; (b) abrasions on the forehead; (c) neck injury and (d) knee injury. She was taken to Medi-Clinic by an ambulance. She spent 3 days in the hospital and was given a back brace which she wore for 3 to 4 months. She was treated by a physiotherapist twice a week for 1 month.

EVIDENCE

Summary of the plaintiff’s evidence is as follows:

[4] She was involved in a motor vehicle collision on the 13^th January 2014 where she sustained injuries to on the right knee, lower back and on the head. She lost consciousness in the vehicle shortly after the collision and was taken to the hospital by an ambulance. She spent 3 days in the hospital and had to wear a back brace for 3 to 4 months. Her present complaints include (a) intermittent neck pain; (b) chronic back pain; (c) needles and pins in both legs; (d) memory problems. The back pain gets worse if she sits or stands for a long period or if she lies on the left or right side. She indicated that she previously suffered from epilepsy but confirmed that it was under control as she does not get fits anymore.

[5] Dr G.A Versveld, the orthopaedic surgeon, testified and confirmed the contents of his report. Regarding his opinion that the plaintiff would be unemployable, he stated that it was related to the sequelae of the head injury. He could not confirm that the migraines and the seizures were accident related. He agreed that if we were not to consider the head injury, the plaintiff could still perform sedentary work. He however deferred to the opinion of the occupational therapist in this regard.

[6] Industrial Psychologist, Dr W. Pretorius and occupational therapist, Ms A Le Roux testified and confirmed the contents of the reports filed: they further confirmed that they relied on the report from Dr Versveld (orthopaedic surgeon) on the issue of whether the plaintiff would be unemployable in the nearest future.

SUMMARY OF PLAINTIFF’S MEDICO-LEGAL REPORTS

REPORT OF THE ORTHOPAEDIC SURGEON (Dr G A VERSVELD)

[7] Dr Versveld recorded in his report that the plaintiff suffered a lower back injury, a head injury with period of loss of consciousness, a right knee and neck injury. He stated that the plaintiff indicated to him that: (a) she started having seizures; and was diagnosed with chronic migraines and epilepsy two years before the assessment; (b) She was investigated in the neurology department at the Johannesburg Hospital for epilepsy; (c) She gets pins and needles in both her foot and toes and her leg shakes when she is standing and sometimes when she is sitting; (d) If she stands for long, she has back pain; (e) She gets a backache if she sits on a hard surface for about 10 minutes and when she is driving; (f) She also gets back pain when she lies on her side, lifts heavy stuff or bend forward; (g) Her back gets stiff sometimes; (h) Her right knee makes a grinding sound and it hurts at times especially when it is cold; (i) She has trouble with her memory since the accident.

[8] He recorded his observations of the x-rays as follows:

“7.1 There is evidence of narrowing of the C4/C5 &C5/C6 disc spaces, with straightening out of the normal lordosis of the cervical spine.

 7.2 There is evidence of early osteophytosis of the lower pole of her right patella.”

[9] He stated that radiologically there was evidence of healed fractures of the L1, L2, L3 & L4 traverse spinous processes and that there was spondylolisthesis at L5/S1 level.

[10] Dr Versveld concluded as follows regarding the plaintiff’s prognosis: “the above features suggests that she sustained a serious lumbar spine injury as a result of the accident. Further that this injury coupled with narrowing of the C4/C5 & C5/C6 disc spaces, the plaintiffs’ ongoing symptoms, clinical finding, features of radiculopathy and radiological changes suggests a poor long term prognosis.

REPORT OF THE OCCUPATIONAL THERAPIST (MS LE ROUX)

[11] Ms Le Roux reported that: The plaintiff completed grade 9 in 2007. She was studying at Benoni College to complete her matric but dropped out when she fell pregnant. She has no other qualification or informal training.

[12] The plaintiff’s employment history is recorded as follows: During 2007 she was employed part-time clerk by Girl Friday and reason for leaving was because it was holiday work. Between 2009 and 2010 she was employed by Platinum work wear as a part-time secretary she left because she fell pregnant. She worked as a bar lady at Howicks Pub and Grill from February to July 2013 and left when she relocated to Johannesburg. She later worked for Magic tavern for 2 to 3 weeks as a bar lady and left because of the accident. During March to June 2015 she was employed by Touch of Eden as a bar lady, server and cook, the reason she left was because she did not get along with the new owner. She then worked for Hoofkantoor Pub and Grill from May 2016 until the end of that year when she relocated. She started working for Eagles’ Nest Pub and Grill as a part-time bar lady, server and manager at the end of 2016 and left early 2017 because she did not get along with the new owner. She worked for Renew as a secretary or administrative assistant during July 2017 and left during February 2018 because she did not get along with her employer. At the time of the assessment she had been unemployed since February 2018.

[13] Regarding the plaintiff’s work capacity Ms Le Roux stated as follows: “Based on the poor orthopaedic prognosis, she would be expected to remain poorly suited to work as a bar lady/server into the future, when considering the physical nature of the work as well as the long working hours which are generally required. Working in a position with light to medium physical demands as per her pre-accident and post-accident employment would be expected to aggravate her symptoms and likely hasten progression of pathology in her spine and right knee.

[14] She concluded that the plaintiff was better suited to work in an administrative/ clerical position, but will be dependent on accommodation and assistive devices in the workplace in order to manage her symptoms and perform optimally.

REPORT OF THE INDUSTRIAL PSYCHOLOGIST (Dr W. PRETORIUS)

[15] Dr Pretorius agreed with the occupational therapist that the plaintiff’s vocational prospects have been negatively affected by the accident and would continue to remain limited into the future. In determining post-morbid impact and work capacity of the plaintiff, the industrial psychologist considered the head injury and the report of the orthopaedic surgeon that the plaintiff suffered WPI of 37% and his opinion that the plaintiff qualified for the narrative test, serious long term impairment or loss of a body function. He concluded that the combined impact of the head injury, seizures, psychological and cognitive difficulties will have a detrimental effect on the plaintiff’s future work capacity.

[16] He stated that:

“ f) … Pain, degeneration of her physical limitations, decreased work choices, need for accommodations and close supervision, in combination with her background, education and training and expected compromised work performance will leave her a very poor competitor who will struggles to compete for employment and retain employment. Her risk for extended periods of unemployment is high, when employed (likely employment of a part-time basis or short contract nature) remuneration will be low and limited. Her risk for decrease in earnings is significant and she will probably in 5 years’ time, when further surgery becomes required, become for all practical reasons uncompetitive and unemployable.

g) As it stands, she would rely on a sympathetic employer in a supported and supervised work environment. Her choice of work will inevitably, also be affected by the neurological and psychological sequelae as she is advised to avoid certain types of workplaces, environments and demands. This together with her physical limitations, renders Ms Du Toit an extremely vulnerable individual and compromised job seeker for the type of work she is currently suited for; ie. sedentary work.

h) The writer defers to the opinion of a Neurologist and Clinical Psychologist to comment on the matters as discussed above.”

[17] He opined that but for the accident plaintiff would have continued working in semi-skilled position such as bar lady or admin clerk. He also concluded that she does not meet the full requirements of a clerk, without accommodations in place “and given her psychological and cognitive sequelae as well as the intermittent occurrence of seizures. She is rendered practically unemployable in light to medium types of work and should she be fortunate to secure sedentary type of work, she will depend on a sympathetic and accommodating employer with supervision in order to sustain productive work. … Considering her reported head injury and complaints of memory problems, making mistakes and interpersonal relationship problems (note deference to appropriate experts in terms of extent this accident related) her ability to secure and maintain employment in this type of positions are questionable”.

[18] He opined that the accident has left the plaintiff with physical, psychological, cognitive and possibly neurological restrictions that have curtailed her from engaging in her pre-accident work. She is no longer suited for the physical demands of a bar lady. He stated further that: “She is better suited for sedentary work but will rely on a sympathetic employer, assistive devices and accommodations. Her intermittent seizures will also have an adverse effect on her choice of work in any future occupations and may truncate any future occupations where seizures may be induced”.

Having regard to the accident

[19] Plaintiff is expected to continue to be mainly unemployed with only short periods of employment further that she would best be employed on a part-time or short-term contract nature. He stated further that he accepted that at best the plaintiff would earn around R3000 per month.

“Earnings will be unstable and sporadic with periods of unemployment. Given Ms Du Preez’s orthopaedic prognosis, together with her psychological and cognitive difficulties as well as the intermittent seizures she experiences, the postulation may be considered as optimistic.

…

[20] He stated that further decrease in her work and earning capacity was expected once her spinal symptoms increase and spinal surgery become indicated. He accepted that she will remain mainly unemployed with no income in future (in 5 years’ time).

 [21] He further stated that plaintiff informed him that ‘but for the accident’ she would have stayed with her employment at Magic Pub and Grill while searching for an administrative job. At the time the report was compiled plaintiff was employed part time at a pub where she earned between R2 500 and R3 000. He postulated that ‘but for the accident’ the plaintiff would have eventually secured an administrative type of position as that was her ideal career.

I will deal with the earnings at later stage.

FUTURE MEDICAL EXPENSES

Neck injury

[22] In his report Dr Versveld made provision for future treatment in the form of anti-inflammatory agents, physiotherapy, the wearing of a cervical collar, facet blocks and visits to an orthopaedic surgeon at the costs of R 8 200 per annum on an ongoing basis. He also made provision for a probable surgical intervention in the form of an anterior cervical fusion which would require approximately 6 days hospitalisation at the cost of R175 000 and a period of 3months of disability. He also made provision for the likelihood of conservative treatment following the abovementioned procedure in the sum of approximately R7 200 per annum on an ongoing basis.

Right Knee

[23] Dr Vesrveld made provision for future treatment of the right knee in the form of anti-inflammatory agents, physiotherapy, wearing of a knee support and visits to an orthopaedic surgeon in the sum R4 800 on an ongoing basis. Further that there was a probability that the plaintiff would in the longer term (approximately 15 years) require surgery in the form of a total knee replacement which was likely to entail 10 days of hospitalisation at the costs of approximately R210 000 and a 3 month period of disability. He made further provision for conservative treatment following the procedure in the sum of approximately R4000 per annum on an ongoing basis. He added that there was a likelihood that the plaintiff would require a redo procedure of the knee replacement during her lifetime because of the young age at which the knee replacement surgery was likely to be done and indicated that approximately 20% increase to the costs was necessary.

Back injury

[24] He also made provision for future treatment of her low back symptoms in the sum of R8 800 per annum on an ongoing basis for anti-inflammatory agents, physiotherapy, the wearing of a lumbar support, facet blocks and visits to an orthopaedic surgeon. He further made provision for surgical intervention in the form of a posterior spinal fusion which was said to be a probability in 5 years from the date of the assessment. The procedure was said to likely to entail hospitalization for a period of approximately 10 days at the cost of approximately R172 000 and a period of disability of approximately 3 months. Further that following such procedure she was likely to require a conservative treatment at the cost of approximately R7 200 per annum on an ongoing basis.

[25] The plaintiff has provided sufficient evidence to prove that she will require medical intervention in the future.

LOSS OF EARNINGS

[26] Dr Pretorius reported that the plaintiff was earning R3 000 per month at the time of the accident as well as tips amounting to approximately R2 000 to R3000 per month making her annual earnings to be between R60 000 and R72 000, earning right above the median quartile of Robert Koch 2014 scale. Regarding her post-accident earnings he reported that plaintiff did not cope with her pre-morbid employment and was unemployed for a over year. She secured employment in 2015 as a bar lady with reported earnings of R3 500 to R4 500 per month she resigned the same year and was unemployed for another year. She reportedly secured another employment as a bar lady earning approximately R5 000 per month. Subsequent thereto she secured an administrative job, earning R7 200 per month but resigned the following year and has been unemployed since 2019. At the time of the hearing plaintiff stated that she was assisting part time at a pub earning between R2 500 R3000 per month.

[27] Dr Pretorius made the following postulation in the “But for the Accident” scenario: Earnings at the time of accident on 13 January 2014: R66 000.00 per annum (2014 terms); increasing to R86 400.00 per annum in July 2018; increasing to R111 000.00 per annum in July 2036 at the age 45 year (2020 terms); thereafter only with annual inflationary increases to her retirement age of 65 years.

[28] He reported the plaintiff’s injured scenario as follows: The plaintiff had no earnings from the time of the accident on 13 January 2014 until 28 February 2015; From 1 March 2015 until 30 June 2015: earnings of R4 000.00 per month (average of R3 500.00 to R4 500.00 per month) (2015 terms); from 1 July 2015 until 31 December 2016 no earnings; 1 January 2017 until 30 November 2017: earnings of R5 000.00 per month (2017 terms); 1 December 2017 until 30 April 2018: earnings of R4 500.00 per month plus assumed tips (of R500.00 per month) (2018 terms); from 1 May 2018 until 30 June 2018: no earnings; from 1 July 2018 until 28 February 2019: earnings of R7 200.00 per month (2019 terms); from1 March 2019 until 30 November 2019: no earnings; from December 2019 until 31 March 2020: earnings of R2 750.00 per month (average of R2 500.00 and R3 000.00 per month); From 1 April 2020 until 31 March 2025: earnings of R3 000.00 per month; From 1 April 2025: no further earnings.

PAST LOSS OF EARNINGS

[29] Regarding the plaintiff’s past uninjured earnings, Dr Pretorius recommended that a higher contingency should be applied to make provision for non-accident related factors.

[30] The plaintiff’s gross past uninjured earnings was calculated by Munro actuaries to be R597 100.They applied a contingency deduction of 10% to the plaintiff’s gross past uninjured earnings to make provision for non-accident related factors. Resulting in the net past injured earnings of R537 390.

[31] The plaintiff’s injured earnings were calculated at R204 800. It was submitted that no contingency deduction should be applied as this amount represents the plaintiff’s actual earnings from date of accident to present. The calculation results in a net past loss of earnings of R332 590 before apportionment. I accept the actuarial calculation in this regard.

FUTURE LOSS OF EARNINGS

[32] The opinion of Dr Pretorius is that (a) the accident has left the plaintiff with physical, psychological, cognitive and possibly neurological restrictions that have curtailed from engaging in her pre-accident work; (b) she is no longer suited for physical demands of her pre-morbid work as a bar lady or serve; (c) she is suited for sedentary work with restrictions; (d) even sedentary work would rely on a sympathetic employer as well as assistive devices and accommodations in the workplace; (e) her intermittent seizures will have adverse effect on her choice of work;(f) her cognitive and psychological difficulties may have a hampering effect on sedentary employment; (g) she is a vulnerable and compromised job seeker; and (g) should she be fortunate enough to secure accommodated and sympathetic sedentary employment, she will not be able to retain this employment and may only work for short periods at end.

[33] He further opined that without accommodations in place the plaintiff does not meet the full requirements of a clerk, given her psychological and cognitive sequelae as well as intermittent occurrence of seizures. He stated that “Considering her head injury and complaints of memory problems, making mistakes and interpersonal relationships problems (note deference to appropriate experts in terms of extent this accident related) her ability to secure and maintain employment in this type of positions are questionable.”

[34] Dr Pretorius concluded, based on the report by Dr Versveld, that the plaintiff would probably be unemployable within 5 year from the date of the report. This was supported by Ms Le Roux in her evidence. In concluding that the plaintiff would be unfit for work Ms Le Roux also took cognisance of the chronic headaches, migraines and seizures that the plaintiff was experiencing at the time. She however gave deference to the neuro experts to comment on the manageability of the headaches, migraines and the seizures. She concluded that the plaintiff “may well face extended periods of employment as a result of the aforementioned symptomology…”.

[35] A further factor that was considered in order to conclude on the plaintiff’s disability was the RAF 4 completed by Dr Versveld where he indicated that the plaintiff suffered WPI of 37% and therefore qualified for general damages under the narrative test. It was however submitted in the heads of argument that the HPCSA found that the plaintiff does not qualify for general damages and thus no claim for general damages.

[36] Any enquiry into damages for earning capacity is of its nature speculative involving a prediction as to the future. It was stated that all that could be done was to provide rough estimate of the current value of the loss. The fact that there is insufficient evidence does not absolve the court from making an award once it is established that there is a loss of earning potential. The court has a discretion to award what it considers to be just and fair under the circumstances and may be guided by the actuarial calculations but it is not tied down by them. (see Bailey v Southern Insurance Co Ltd 1984 (1) SA 98 (A)

[37] The plaintiff’s claim was calculated on a total loss of income from 2025. Since the matter was undefended there is no evidence from the defendant to controvert the allegation that the plaintiff will suffer total loss of income from 2025 to retirement age. This however, does not necessarily mean that the plaintiff’s version in this regard ought to be accepted. The court has to consider all the evidence to determine whether the plaintiff has provided prima facie evidence of the postulated total loss of income.

[38] Dr Versveld, Dr Pretorius and Ms Le Roux deferred to the neuro experts on the issue of the head injury. They could not confirm whether the migraines and the seizures were accident related both in their reports and during their evidence. Answering a question from the court Dr Pretorius confirmed that if the headaches and the seizures were to be disregarded, the plaintiff would still be suited for work of a sedentary nature. This confirms his opinion regarding the impact of the accident on plaintiff’s competitiveness, that the plaintiff was best suited for work in an administrative or clerical capacity with accommodations and assistive devices in place. He stated that her spinal symptoms were expected to increase within 5 years from the time of the report, which would lead to a further decrease in her functional capacity. He however noted that although the plaintiff would become restricted to work in even sedentary capacity she would, post-surgery, remain best suited for sedentary employment.

[39] The plaintiff was able to secure an administrative position post-accident and left the position because she fought with her employer which is unrelated to the sequelae accident. There were also other employments which she secured post-accident and left for reasons unrelated to the accident. There is no evidence before me to support the postulation that the plaintiff’s cognitive difficulties were accident related. Dr Pretorius confirmed that the plaintiff would remain best suited for sedentary employment post-accident. Therefore, the postulation that plaintiff will have zero income from 2025 until she retires which is based on the sequelae of the head injury cannot be sustained.

[40] The evidence shows that the plaintiff suffered a severe back injury and that she would require back surgery and further treatment for the neck, knee and back in the future. I accept the opinion of the experts that the plaintiff has been rendered a vulnerable jobseeker in the open labour market and further that she is no longer suited for her pre-accident job of bar lady and server.

[41] Plaintiff has established on a balance of probabilities that she will suffer future loss of earnings. However, what the court does not accept is the postulation on which the actual calculation was based that she will receive no income from 2025. The actuaries make their calculation based on the information provided to them. Therefore adequate care must be taken ‘to ensure that the assumptions and the facts on which an actuarial assessment is based, can withstand the test of cross-examination and critical scrutiny of a court’. (see Law of the third party compensation by HB Klopper page 177).

[42] The assessment of contingencies is largely arbitrary and depends on the court’s impression of the case. The contingencies allow for general hazards of life such as periods of unemployment, possible loss of earnings due to illness and risk of future retrenchments. Plaintiff submitted that according to the widely accepted sliding-scale of Dr Robert Koch, of applying 0,5% per annum for the remainder of the plaintiff’s working life, the contingency deduction will be 18%. Further that this contingency should be increased as per Dr Pretorius’ recommendation by 5% to make a final contingency deduction of 23%.

[43] The plaintiff further submitted that the court should accept the pre-morbid contingency deduction of 23%. In my view the additional 5% is not enough considering the fact that the calculation was made on the unsubstantiated postulation that plaintiff will not be able to earn an income for approximately 10 years to the year of retirement. Therefore, having found that the facts do not support the conclusion that the plaintiff will earn zero income from 2025, I have decided to apply a much higher contingency deduction. In my opinion a contingency deduction of 35 % will be fair and just.

[44] The calculation will therefore be as follows:

Future Uninjured earnings                                           R2 408 200

Less 35 % contingency                                               R842 870

___________

Sub Total                                                                     R1 565 330

[45] Regarding the plaintiff’s injured income, Dr Pretorius recommended that a higher contingency be applied to future injured earnings to compensate for increased risk of future loss of earnings. The courts accept the contingency deduction of 33% in this regard. The calculation will therefore be as follows:

 

Future injured earnings                                                R 136 100

Less: 33% contingency                                                R44 913

_________

Sub Total                                                                       R91 187

This results in a net loss of future earnings in the sum of R1 474 143 before apportionment

CONCLUSION

[46] In my view the plaintiff has successfully proved that the defendant is liable to pay her an amount of R 548 772. 50 calculated as follows:

Past hospital and medical expenses                           R 22 508.67

Past Loss of earning                                                    R 332 590

Future loss of earning                                                  R1 474 143

____________

Sub Total                                                                       R1 829 241.67

Less 70% merits apportionment                                   R1 280 469.10

____________

Total                                                                              R548 772.50

 

In the result I make the following order:

1. The defendant shall pay the plaintiff the sum of R 548 772. 50 (Five Hundred and Forty-Eight Thousand, Seven Hundred and Seventy Two Rand and Fifty Cents) in full and final settlement of the plaintiff’s claim;

2. Defendant shall pay interest on the aforesaid amount at the rate of 7% per annum, from 14 days after the date of this order to the date of payment;

3. The capital amount plus interest, if any, shall be paid into the trust bank account of the plaintiff’s attorneys, the details of which are as follows:

Mills and Groenewald Trust Cheque Account

ABSA Bank

Account number: [....]

Vereniging

Branch Code: 630 137

Reference: A Van Zyl / DK / P7909

4. The defendant is ordered to furnish the plaintiff with an undertaking as contemplated by section 17(4)(a) of the Road Accident Fund Act 56 of 1996 limited to 30% of costs of accommodation of the plaintiff in a hospital or nursing home or for the treatment of or the rendering of a service or a supply of goods to her arising out of the injuries sustained by him in the motor vehicle collision of the 13 January 2014 after such costs have been incurred and upon proof thereof;

5. The defendant is ordered to pay agreed or taxed party and party costs of action which costs shall include:

5.1 The reasonable and necessary consultation, preparation, qualifying and attendance fees of the following experts Dr G A Versveld, Ms A Le Roux, Dr W Pretorius who attended court on the 8^th June 2021;

5.2 The reasonable costs in respect of the preparation of the actuarial report by Munro actuaries, radiology report by Sunninghill Radiology and medico-legal reports by Ms A Le Roux ( C Rice), Dr G A Versveld and Dr W Pretorius;

5.3 Reasonable travelling costs of the plaintiff from all medico-legal appointments and consultations;

5.4 Costs of counsel to date hereof including the preparation for trial attendances on 2 June 2021, 3 June 2021, 7 June 2021 and 8 June 2021 as well as costs of drafting heads of argument and preparation and attendance fees regarding the Judicial Case Management Conference;

5.5 Any costs attendant upon obtaining payments of the capital amount and any costs attendant upon obtaining payment of the taxed costs

 

 

P D KEKANA

ACTING JUDGE OF THE HIGH COURT

 

APPEARANCES

On behalf of the plaintiff: D Grobbelaar

Instructed by: Mills and Groenewald

No appearance on behalf of the defendant

 

Date of Hearing: 8 June 2021

Date of Judgment: 20 October 2021

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