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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: YES/NO

(2)      OF INTEREST TO OTHER JUDGES: YES/NO

(3)      REVISED

Case number: 66132/2016

Heard on: 1 August 2019

Date of judgment: 19 August 2019

 

In the matter between:

 

BLUNDELL, PETER ALEXANDER CATHCART                                         Plaintiff

 

and

 
ROAD ACCIDENT FUND                                                                                  Defendant

JUDGMENT

SWANEPOEL AJ:

[1]          Plaintiff issued summons against respondent for damages resulting from a motor vehicle accident which occurred on 7 January 2016. Defendant has conceded that it is 100% liable for the damages suffered by plaintiff as a consequence of the accident. The only issues remaining are:

1.1         Past medical expenses;

1.2         Future loss of earnings;

1.3         Future medical expenses.

 

[2]          Plaintiff is a 58-year old male information technology specialist who has been employed by Standard Bank since December 2012. His work is therefore of a sedentary nature. Plaintiff called an industrial psychologist, Ms. Rene Pretorius to testify. In compiling her report, she had had regard to the reports of the occupational therapist, a psychiatric report, and an orthopaedic surgeon's report. Ms. Pretorius reports that plaintiff suffered the following injuries:

2.1         A fracture of the 3^rd metacarpal of the left hand;

2.2         A fracture of the 2^nd and 3^rd metatarsals of the left foot;

2.3         A left hip greater trochanter fracture;

2.4         Abrasions to both knees.

 

[3]          The result of the aforesaid injuries is that plaintiff suffers from reduced mobility in his left hand with certain stiffness, is uncomfortable sitting for long periods of time, and he cannot kneel comfortably without pain. Plaintiff's left hand is markedly weaker than his right. As a result of the pain and discomfort that plaintiff experiences, he may well experience a decreased tolerance for standing and walking, may require frequent rest breaks, and may have to make frequent postural changes.

 

LOSS OF EARNING CAPACITY

[4]          Plaintiff will be able to continue in his occupation and it is apparent that he is a valuable member of his employer's staff. He is expected to be able to work until normal retirement age. However, he will be required to make adjustments within his work environment. His productivity has been affected and he is less able to work overtime, which was an important source of his income pre­ accident. Plaintiff is of the view that the injuries are an impediment to his future advancement in his job. Plaintiff may be required to undergo a hip replacement operation, resulting in him having to take extended sick leave.

[5]          Ms. Pretorius is of the view that plaintiff has suffered both physically and psychologically and she assumes that his earnings capacity has been affected by the accident. His work performance may be impacted by residual pain and psychological issues. Plaintiff will continue to earn according to his actual earnings pre-accident, but his promotional or lateral earnings progression might have been diminished. Ms. Pretorius' evidence was not gainsaid by any defence expert, and I must accept it as uncontested.

[6]          Plaintiff also relied upon an actuarial report of Mr. Ivan Kramer who based his findings upon the Pretorius report. He assumed that plaintiff's retirement age has remained unchanged. He has accepted that plaintiff has suffered a decrease in productivity, is more vulnerable, and is an unequal competitor in the open labour market. Based upon those assumptions, Kramer has calculated that, but for the accident, plaintiffs gross income would have been R 3 156 088.00, with a contingency of 7.5 % being applied, resulting in a total value of R 2 919 381.00. Having regard to the accident, he has applied a contingency of 27.5% to the gross income (a spread of 20%), resulting in a total income of R 2 288 164.00. The difference between the two amounts is R 631 217.00, which plaintiff's counsel has submitted is an appropriate award for loss of earning capacity.

[7]          Defendant's counsel submitted that a 5% spread was more appropriate, in other words, that a contingency of 12.5% should be applied to the value of plaintiffs income having regard to the accident. This would result in damages for loss of earning capacity in the sum of R 157 804.00. The difficulty is that defendant chose not to deliver any expert reports to dispute the plaintiffs experts, and I am bound to make my finding based on the plaintiffs evidence.

[8]          In view of the fact that plaintiff is capable of adjusting his working environment to reduce his loss of income, for instance by working from home, and by adjusting his routine to accommodate the fact that he needs to take more regular breaks, I do not believe that plaintiffs claim justifies a spread of more than 15%. Applying that contingency percentage results in damages of R 473 412.80 for loss of earning capacity, which I deem to be appropriate.

 

PAST MEDICAL EXPENSES

[9]          Plaintiff claims R 171 336.85 for past medical expenses. Plaintiff testified in support of his claim, and handed in a schedule of expenses which show that R 98 274.15 was paid to the Sunninghill Hospital, and R 73 062.70 was paid to various other medical service providers. The schedule was supported by the accounts of the various providers.

[10]      Defendant made the submission that there is no evidence that the amounts claimed are fair and reasonable and in accordance with the applicable tariffs. It was put to plaintiff that he had not calculated the amounts claimed. My difficulty is that the defendant made no effort to dispute any of the accounts. It has had since August 2016 (when the summons was served) to determine whether the amounts being claimed are correct or not. It cannot come at the last minute and dispute the claim simply for the sake of doing so, without its opposition having some substance to it. Plaintiffs evidence in this regard is uncontested, the invoices are before Court and speak for themselves, and I see no reason not to accept plaintiffs evidence. I accept that the amounts claimed are correct.

 

FUTURE MEDICAL EXPENSES

[11]     There is no basis in law why defendant should escape liability for future medical expenses, and one is left wondering why the section 17 (4) (a) undertaking was not given earlier.

[12]     In the circumstances I make the following order:

12.1      Defendant shall pay plaintiff's damages in the sum of R 644 749.65, being R 473 412.80 in respect of loss of earning capacity, and R 171 336.85 in respect of past medical expenses.

12.2     Defendant shall pay interest on the aforesaid sum, a tempore morae, calculated in accordance with the Prescribed Rate of Interest Act, 55 of 1975, read with section 17 (3) (a) of the Road Accident Fund Act, 1996.

12.3     Payment shall be made to the trust account of the plaintiff's attorney:

 

De Broglio Inc. Nedbank account number [….], code 198 765, Ref: 8732.

 

12.4      Defendant is ordered to reimburse plaintiff for 100% of the costs of any future accommodation of plaintiff in a hospital or nursing home, treatment or rendering of service to him or supplying goods to him arising out of injuries sustained by plaintiff in the motor vehicle accident, after such costs have been incurred and upon proof thereof, in accordance with the provisions of section 17 (4) (a) of the Road Accident Fund Act, 1996.

12.5     Defendant shall pay plaintiffs agreed or taxed High Court costs as between party and party, such costs to include the costs of counsel, the qualifying costs of the experts consequent upon obtaining plaintiff's expert reports as well as plaintiff's reasonable travel and accommodation costs to attend the defendant and plaintiff's own experts' examinations.

12.6      Plaintiff shall, in the event that costs are not agreed, serve the notice of taxation on defendant's attorney of record, and shall allow defendant 14 (fourteen) days to make payment of the taxed costs.

12.7      Plaintiff is declared to be a necessary witness.

12.8      There is no contingency fee agreement in place.

 

 

 

J.J.C. Swanepoel

Acting Judge of the High Court,

Gauteng Division, Pretoria

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