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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION,PRETORIA

Case Number: 36448/2011

Date: 22 August 2014

In the matter between:

KARSTEN ES...................................................................................................................................PLAINTIFF

and

THE ROAD ACCIDENT FUND..................................................................................................DEFENDANT

JUDGMENT

LEPHOKO AJ

[1] The plaintiff is a 29 year old receptionist and sues the defendant for damages sustained as a result of a motor collision that occurred on 28 March 2009 in Klerksdorp.

[2] The defendant conceded liability 100% in favour of the plaintiff. On 15 February 2013 the court granted judgment against the defendant for payment of 100% of the plaintiffs proven or agreed damages resulting from the injuries she sustained in the collision.

[3] The matter proceeded to trial on the issue of quantum only. At the outset of the proceedings the parties agreed to argue the matter only on the basis of the p laintiffs expert reports and the various joint minutes filed by the experts. The parties agreed on an amount of R57 968 - 20 in respect of past medical expenses and that an amount of R2000-00 should be deducted from the past loss of earnings as noted in the actuarial report. The defendant tendered to the plaintiff an undertaking in terms of section 17(4)(a) of the Road Accident Act 56 of 1996. The defendant admitted the plaintiffs psychologist and plastic surgeon reports and the rest of the issues pertaining quantum were placed in dispute.

INJURIES AND SEQUELAE

[4] According to the plaintiffs medico-legal report by her expert orthopaedic surgeon, Dr Tony Birrel, and the joint minutes with Dr J J L Heymans for the defendant, the plaintiff suffered the following injuries: A pilon fracture of the right distal tibia, a fracture of the right fibula, a dislocation of the right ankle, soft tissue injuries of the left ankle and foot, a fracture of the lateral cuneiform and basis of metatarsals 4 and 5 of the right foot and a crack fracture of the 3^rd metatarsal.

[5] The plaintiff was hospitalized at Anncron Clinic for about 5 days where she underwent an open reduction and internal fixation of the right ankle and a closed reduction of the right foot fractures. She wore a plaster of paris cast for 6 weeks and used crutches for approximately 2 months. She received physiotherapy and pain medication.

[6] According to Dr Birrel’s report the plaintiff experiences pain in the right ankle and foot and this is increased by cold weather and it also swells up in hot weather. She has some reduction of the range of movements of the right ankle and she cannot wear shoes with high heels. Her ankle symptoms are also increased by standing. At times she has paraesthesia of both hands, of all the fingers and some paraesthesia of the right foot when she sits for a long time. She suffers from low back ache which is increased by standing for lengthy periods.

[7] The plaintiff has multiple scarring of the right ankle and foot which constitute a mild surgical disfigurement. She stands a risk of osteoarthritic deterioration of the right mid-foot area and also of the right ankle and even the talonavicular joint area as well. The right ankle has a very poor prognosis and the tibia was split wide open with dramatic dislocation of the ankle joint. She will inevitably develop marked ongoing pain and deterioration of the right ankle, eventually requiring an arthrodesis.

[8] The right mid-foot and hind foot may also deteriorate to an extent that fusions are required which will leave her with a serious loss of function i n the right foot and ankle area. The circumference of the right foot is 1 cm larger than the left. Over time she will develop a limp again which will have an adverse effect on her right knee, right hip and lumbar spine. The plaintiff has returned to all her pre-accident activities which include cycling, going for walks, helping with gardening, cooking and housework at home.

[9] Both Dr Birrel and Dr Heymans allow for conservative treatment for the plaintiff. They anticipate future surgery in respect of removal of the internal fixation from the right ankle as well as a stiffening or arthrodesis of the right ankle. Dr Birrel states that removal of the internal fixation of the right ankle will require a month’ sick leave, the arthrodesis of the right ankle will require 3 months sick leave in a sedentary position, with a 20% chance of revision surgery having to be performed, whilst there is a 10% to 20% chance of a mid-foot fusion which will require 4 months sick leave. Dr Birrel further indicates a 3% to 4% chance of lumbar surgery which would require 3 to 4 months sick leave.

[10] Ms Moleboge Setoaba and Ms Tracy Brown, occupational therapist, state in their joint minutes that the plaintiff presently requires no assistance with regards to home management, maintenance or gardening. Her work falls within the sedentary category of work with occasional light demands and she is currently able to comply with demands in the sedentary to light category of work with occasional medium strength demands. They recommend that frequent standing, walking and driving demands should be limited within her work day. They further state that should she be residing alone at the time of surgical intervention, she will require assistance with house chores at least 2 days per week during her recovery period, which will reduce as per her recovery progress. Ms Brown recommends that should the plaintiff live alone in the future, part-time domestic assistance for strenuous tasks would be required for 12 hours a week.

[11] The industrial psychologists, W J Wessels and K Prinsloo are of the view that due to her grade 12 results the plaintiff has limited opportunities with regards to tertiary studies. She will probably not find employment in the corporate sector of employment. The plaintiff indicated that she has no intention of studying further. In the light of early retirement, Wessels recommends a higher post-morbid contingency deduction whilst Prinsloo recommends a slightly higher contingency deduction.

[12] Ms Havenga, the plaintiffs clinical psychologist, states that the plaintiff informed her that she enjoys her work and finds her work environment satisfactory. Ms Havenga states that the plaintiff continues to suffer from physical pain and discomfort, as well as emotional problems, related to the accident and the sequelae thereof which have led to deterioration in her quality of life. She largely stated the same complaints mentioned in Dr Birrel’s report. She has, among others, the following symptoms and complaints:

• She is now less motivated as it now takes her longer to complete tasks that she could previously do with ease.

• She has gained more weight and retained scarring on her right foot as a result of the operation and she no longer feels attractive.

• She finds it difficult to put on her socks and shoes and has to put her feet up in order to enable her to do so.

• She does not experience significant difficulties at work as her position is mainly of a sedentary nature but does experience some pain in her right foot when she sits for extended periods and her foot becomes swollen.

GENERAL DAMAGES:

[13] Counsel for the parties referred the court to comparable awards emanating from various decided cases. The court has found the following awards the nearest comparable: Van Dyk v Road Accident Fund, QOD, Vol 5 E8-1 In this case the claimant, a 44 year old female machinist sustained an undisplaced fracture of the left malleolus, with tearing of the surrounding soft tissues. Her leg was immobilised in plaster for about 2¹/4 months. The fractured bone uniting without complications but chronic inflammation developing in the ankle due to fibrotic scar tissue, and ultimately capsulitis of the ankle and tendonitis in the lower leg. The claimant was experiencing chronic (but low-grade) pain and swelling on a daily basis, particularly after using the left leg and foot for any length of time. Ankle usually very sore by early afternoon. The condition was irreversible and permanent and conservative treatment would alleviate the symptoms but not cure the pathology, with the result that the claimant would probably retire 5 years prior to normal retirement age, or possibly even sooner. An amount of R20 000-00 was awarded for general damages. The present value of that amount is R164 000-00.

[14] In Putuma v Road Accident Fund 2008 QOD 13 (SE) the claimant, a female housekeeper at a school, was 44 years and 10 months old. She sustained a fracture and dislocation of the right ankle joint. An open reduction and internal fixation was performed. The post-operative period was complicated by development of a cauda equine syndrome which arose and caused temporary paralysis in both legs and sphincter dysfunction. The claimant was mobilised with crutches after receiving physiotherapy. She was hospitalised for eighteen days and was followed up at regular intervals as orthopaedic out-patient. Her mobility was totally and partially impaired for more than two months. Degenerative changes necessitating ankle arthrodesis in 10 years' time. Internal fixation to be removed two years after ankle arthrodesis. She had experienced a severe degree of pain and discomfort for sixteen weeks after the accident and will do so again for sixteen weeks after the arthrodesis. She was unable to participate in weight bearing activities such as hiking, jogging, dancing and related activities. The claimant will walk with a slight antalgic limp for the rest of her life. Signs of synovitis and a surgical scar causing permanent disfigurement. Further surgical scars were anticipated after ankle arthrodesis. An amount was of R105 000-00 was awarded of which the current value is R146 000- 00.

[15] Matsimela v Road Accident Fund QOD V 5 C4-31

A 48 year old owner driver of suffered damage to his lumbar spine leaving him with chronic backache and permanent disablement to the extent that he was no longer able to sit in a vehicle for long. He could not continue jogging as before. General damagesof R50 000-00 were awarded in 2003. The present value of the amount awarded is R90 000-00.

[16] The plaintiff asked for an amount of R600 000-00 in respect of general damages whilst the defendant proposed a payment of R165 000-00 as reasonable compensation for general damages. I have considered the various authorities, the injuries suffered by the plaintiff and the sequelae thereof, in particular the anticipated adverse effect it will have on her right knee, right hip and lumbar spine in the future. I have come to the conclusion that an award R250 000-00 would be appropriate compensation for general damages in the present case.

CONTINGENCIES AND LOSS OF INCOME

[17] Contingencies have been described as the normal consequences and circumstances of life, which beset every human being and which directly affect the amount that a plaintiff would have earned. See: AA Mutual Insurance v Van Jaarsveld 1974 (4) SA 729 (A).

[18] In his book The Quantum Yearbook, Koch states that when assessing damages for loss of earnings or support it is usual for a deduction to be made for general contingencies for which no explicit allowance has been made in the actuarial calculation.......... The deduction is in the prerogative of the court. General contingencies cover a wide range of considerations which may vary from case to case and may include: taxation, early death, saved travel costs, loss of employment, promotion prospects, divorce etc.

[19] Koch refers to the following as some of the guidelines as regards general contingencies:

• “Normal contingencies” as deductions of 5% for past loss and 15% for future loss.

• Sliding scale: Vz% per year to retirement age, i.e. 25% for a child, 20% for youth and 10% in middle age and relies on Goodall v President Insurance 1978 1 SA 389 (W); and on Bailey v Southern Insurance 1984 1 SA 98 (A) for child claims.

• differential contingencies are commonly applied, that is to say one percentage applied to earnings but for the accident, and a different percentage to earnings having regard to the accident. He makes reference to some decided cases: Hutchings v General Accident Insurance 1986 3 QOD 737 (C) 744 (10% and 20%); Venter v Mutual and Federal Versekeringsmpy 1988 3 QOD 749 (T) 759 (10% and 25%); Van Drimmelin v President Versekeringsmpy 1993 4 QOD E2-19 (T) (10% and 30%). See:

For the above discussion on assessment of contingencies see: The Quantum of Yearbook, Robert J Koch, 2014, p114.

LOSS OF INCOME

[20] The plaintiffs actuarial report sets out full details of the plaintiffs employment and earning history. It also takes into account the conclusions reached in the reports of the plaintiffs industrial psychologist, orthopaedic surgeon and occupational therapist.

[21] The plaintiff’s actuarial calculations make provision for five scenarios. For the purpose of her claim the plaintiff relied on scenario 2. Scenario 2 caters for past loss of earnings without any contingency deduction therefrom, a 15% contingency deduction from the value of income the plaintiff would have earned if uninjured and 45% contingency deduction from the value of income she would earn subsequent to the injury.

[22] The defendant submitted that the sliding scale was the appropriate method to be applied in determining contingency deductions, as there were no special factors indicating a deviation therefrom. It submitted that deduction from past loss of income should therefore be 5% and that the deduction for the future loss of income if the collision had not occurred should be 18% based on half a percent for the remainder of the plaintiffs working life which is 36 years. It submitted that the contingency deduction for future loss of income now that the collision has occurred should be 23%, representing a 5% differential.

[23] According to the defendant the reasons for the proposed contingency deductions is that: Allowance is already made in the actuarial report for a three year early retirement to cater for a deterioration of the plaintiffs ankle, the plaintiff is able to meet the requirements of her current position, which is mainly sedentary and that the reduction of her abilities is non to mild.

[24] In my view, when a court is called upon to exercise an arbitrary discretion that is largely based on speculated facts it must do so with necessary circumspection. In the absence of contrary evidence, the court can assume that a reasonable person in the position of the plaintiff would have thrived to minimize the adverse hazards of life rather than to indifferently accept them. Both favourable and adverse contingencies have to be taken into account in determining an appropriate contingency deduction. Bearing in mind that contingencies are not always adverse, the court should in exercising its discretion lean in favour of the plaintiff as she would not have been placed in the position where her income would have to be the subject of speculation if the accident had not occurred.

[25] I am of the of the view that in the circumstances of this case the loss of income as set out in scenario 1 of the plaintiffs actuarial report is equitable and will serve to balance the interests of both parties. An amount of R2000-00 is to be deducted from the past loss of income as agreed to between the parties. In the result the net past loss of income amounts to R17238-00. The future loss of income will remain as calculated in scenariol resulting in a total net loss of R533 460-00 after taking into account the deduction of R2000-00 agreed to between the parties.

[26] The plaintiffs claim is calculated as follows:

Past medical expenses: …...............R 57 968-20

Future loss of earnings: …............R533 460-00

General damages: …....................R250 000-00

Section 17(4) undertaking. ___________

TOTAL …...............................R841 428-20

In the circumstances the following is ordered:

1. The defendant shall pay the plaintiff the sum of R841 428-20

2. The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Act 56 of 1996 in respect of 100% of the costs of the future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to her after the costs have been incurred and on proof thereof, resulting from the accident that occurred on 28 March 2009.

3. The defendant shall pay the reasonable taxable preparation, qualification, transportation and reservation fees, if any, of the following experts of whom notice have been given, being:

3.1 Dr DA Birrel

3.2 Dr PB White

3.3 Ms K Havenga

3.4 Ms T Brown

3.5 Mr W Wissels

3.6 Mr GA Whittaker

4. The defendant shall pay the plaintiffs quantum costs of the action.

A L C M LEPHOKO

(ACTING JUDGE OF THE HIGH COURT)

Heard on: 15 April 2014.

Judgment delivered on: 22 August 2014

For the Plaintiff: Adv: F Ferguson

Instructed by: Adams & Adams Attorneys

For the Defendant: Adv R Strydom

Instructed by: Iqbal Mahomed Attorneys.

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