IN THE HIGH COURT OF SOUTH AFRICA BISHO CASE NO. 1709/04. In the matter between: SINDILE VUKUBI. Plaintiff. and ROAD ACCIDENT FUND.

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA BISHO CASE NO. 1709/04 In the matter between: SINDILE VUKUBI Plaintiff and ROAD ACCIDENT FUND Defendant J U D G M E N T SANGONI J: 1] It was on 5 September 1999 when a motor vehicle in which the plaintiff was a passenger, collided with a vehicle insured by the defendant. Consequent upon the collision the plaintiff suffered serious bodily injuries. In these proceedings the plaintiff is claiming damages against the defendant in its capacity as the insurer in terms of the Road Accident Fund Act 56 of 1996 (the RAF ACT). The defendant conceded the merits of the claim. The only remaining issue for adjudication is quantum.

2 2 2] The damages claimed are made up as follows: 2.1 Future Medical Expenses R Past Loss of Earnings R Future Loss of Earnings R General Damages R Total R ] The defendant has undertaken to furnish an undertaking in terms of section 17(4) of the RAF ACT in respect of the future medical expenses. 4] Following the collision the plaintiff was admitted to the High Care Unit of Cecilia Makiwane Hospital. The injuries observed at the time of admission were, broadly speaking, a severe injury of the right knee an open dislocation to his right knee joint, the patellor tendon and cruciate ligaments torn, a closed fracture to the right humerus and closed fractures of the left radius and ulna. 5] Dr P A Olivier, an orthopaedic surgeon who examined the plaintiff for the first time on 28 January 2004, gave expert evidence on the latter s behalf at the trial. In his reports Dr P A Olivier records that soon after admission to hospital, a debridement procedure was performed on the plaintiff s knee. The knee was reduced and immobilised by means of

3 3 a wire. The ruptured patella tendon was reinforced for mobility. These procedures were performed under general anaesthetic. On 14 September 1999 the plaintiff was discharged still on crutches. During the follow up visits to hospital the plaintiff complained of pain and discomfort in his right knee especially when he engages in physical activities. In Dr P A Olivier s opinion the plaintiff will experience more pain in the future due to osteoarthritis in the knee joint as well as degenerative changes in the medial compartment. Though conservative treatment might be appropriate for some period, there may be a necessity for a total knee replacement in about 20 years time after the accident. Dr P A Olivier estimates about an 80% chance that this will be necessary in future and 60% chance that a revision procedure may be necessary after the knee replacement. 6] The fracture on the right side humerus was treated by means of a slab. It mobilised fairly well and movements in the right arm were regained the fracture healed solidly. The fractures of the radius and ulna were treated, under general anaesthetic, by means of an open reduction with a plate and screws. The x rays picked up previous fractures but there has been no suggestion that those have an impact on the current claim. According to Dr P A Olivier the current fractures have healed and

4 4 there are no signs of cross union. In his report Dr Basil L Mackenzie, the orthopaedic surgeon, referred to two surgical scars measuring 130 and 110 mm on the left forearm. He also confirmed that the plaintiff has normal ranges of elbow joint movement as well as forearm rotation. It has however been observed by Dr Oliver that the injury to the left forearm resulted in degenerative changes of the left elbow joint and dislocation of the inferior radio ulna joint capable of long term implications with resultant discomfort and pain in the elbow due to such degenerative changes. This observation followed his examination of the plaintiff on 28 January Following the examination conducted on 6 April 2005, Dr Mackenzie had this to say: Clinical examination of Mr Vukubi s left forearm, besides the surgical scarring, was unremarkable. In my opinion, more than five and a half years after his accident his ranges of left elbow flexion and extension were similar to those on the right as were his ranges of forearm rotation. I have noted that, on a previous occasion, i.e. 28 January 2004, it was reported that degenerative changes were evident in Mr Vukubi s left elbow. The most recent radiographic views of Mr Vukubi s left forearm, two of which included his left elbow, demonstrated that degenerative changes, if present at all, were equivocal and do not appear to have progressed to any discernable degree during the past 15 months. 7] In assessing quantum of damages suffered I propose to start with general damages for pain and suffering, disfigurement and loss of amenities of life. Dr P A Olivier testified that due to the severity and the extent of the injuries, the plaintiff would have experienced a severe

5 5 degree of pain and discomfort for a period of sixteen (16) weeks; discomfort as well when he was dependent on crutches even when performing normal everyday hygienic activities like being on a toilet seat. After the period of 16 weeks he would have experienced a moderate degree of pain and discomfort for a period of six (6) months, to escalate again due to severe osteoarthritis in the right knee. Another 16 weeks period of severe pain and discomfort after a knee replacement, if and when performed. There is disfigurement in the form of two surgical scars over the left proximal forearm; a transverse scar present over the anterior aspect of the right knee joint with keloid formation. After the knee replacement and the expected revision procedure there would thereafter be a longitudinal scar over the anterior aspect of the right knee. 8] The medico legal report of Dr Basil L Mackenzie, who examined the plaintiff and compiled a report on behalf of the defendant, was handed in by consent. The contents of the report were admitted on behalf of the plaintiff. The following passage is an extract from his report, to illustrate if anything, the nature and extent of the injuries and the agreement between the doctors observations:

6 6 His leg lengths (ASIS MM) were 970 mm on the right and left. His thigh girths, 80 mm proximal to the superior poles of his patellae were 480 mm on the right and 490 mm on the left. His calf girths, 80 mm distal to his tibial tuberosities were 410 mm on the right and left. On inspection of the anterior aspect of his right knee, scarring was evident. There was a large curvilinear, transversely aligned scar over the anterior aspect of his knee that measured approximately 260 mm. More distally and antero laterally overlying his proximal tibial metaphysis, there was a further scar that measured 80 mm. 9] It is clear from the severe injuries mentioned above that the plaintiff would have suffered tremendous pain, and stands to in the future, if further medical procedures envisaged are performed. He has also sustained significant disfigurement and suffered loss of amenities of life. He walks with a slight antalgic gait, not able to bend his knee completely, not able to walk far distances, not able to participate in some sporting activities. He would not drive a vehicle if it has no special controls eg hand controls. 10] As a guide towards an appropriate assessment of general damages I was referred by counsel to comparable cases. Mr Ndzondo, for the defendant, having conceded the nature of the injuries and the sequalae thereof, expressed the view that anything in the order of

7 7 thousand rand would be reasonable whereas Mr Wood, for the plaintiff submitted that an award of R would be appropriate. 11] In the matter between Andrew Cunningham Roux and the Road Accident Fund, a case registered under case no 1066/02 in the Eastern Cape Division, the damages related to a compound fracture of tibia and fibia just above the ankle. In the circumstances of that case, where the court also took into account the re fracture of the fibula due to the claimant slipping while on crutches, the award made for general damages was R Leach J considered the re fracture to be a complication directly attributed to the injuries sustained by the claimant in the accident. 12] In Bouwer v A F Marais Construction (Pty) Ltd C&B 585 (SE) the claimant had sustained fractures of the left radius and ulna and as in casu, an open reduction was performed under a general anaesthetic and the fractures secured by plates and screws. There were other injuries sustained a contusion injury to the left lower chest wall as well as a laceration. There was a complication that led to a bone graft operation. Exercises to strengthen the bent arm caused further pains. The award for general damages was R2 500, currently translating to

8 8 R ] I was also referred to the unreported case of this Court, registered under case no 1336/2005. In that case, Shirley Xoto sued the Road Accident Fund for damages. The plaintiff had suffered a fracture to the left humerus. A bone grafting procedure, involving an internal fixation of the humerus was envisaged. That would lead to severe stiffness in the gleno humeral joint after the procedure. Kemp AJ in June 2006, awarded R for general damages. 14] Having paid regard to the injuries sustained, the submissions made and the comparable cases I consider an award of R as and for general damages fair and just. LOSS OF EARNINGS 15] In quantifying past and future loss of earnings I have to consider the extent the plaintiff has been precluded from earning the income or wages he would have otherwise earned were it not for the injuries or disablement. It is appropriate to set out briefly the background information pertaining to the plaintiff. He was born on

9 9 26 March He passed grade 12 in He started working in 1996 as an assistant to the panelbeater. In January 1997 he commenced studies towards mechanical engineering diploma, a five year course. He discontinued therewith in June 1999 reportedly due to financial reasons. In 1998 he did not do well in the examinations, passing three out of ten courses and in 1999, passed all three semester courses he was doing. While out of work and out of school he met with the accident on 5 September He however got employed by Lear Corporations in August 2000 as operator and since 2004 as driver and as operator again, the position he still holds. At Lear Corporation the plaintiff works eight hours a day and five days per week. It is a company that manufactures motor vehicle seats and other components. The job requires him to stand and entails frequent lifting of heavy stuff. At work he has had no accident related sick leave he can recall. 16] The manager of Lear Corporation, Luaan Sedras, testified on behalf of the plaintiff. He gave the career projection from the position the plaintiff is currently holding which is at grade 4. He would be eligible for promotion to grade 6, as quality controller, and after another promotion to production inspector and then store supervision. Promotion chances in his case are reduced by his disablement as the

10 10 job, at all levels except production manager, is physical. It requires standing for long hours and to carry heavy material. If after a medical assessment a person does not pass the test a person is dismissed. He gave a very bleak future for the plaintiff at Lear Corporation. He will not be able to progress any further than grade 4. He would not be transferred to other departments unless specifically trained for that specific department, which in some cases would require him going for formal education. 17] The claim for past loss of earnings covers the period from May 2000 and that is based on the assumption that the plaintiff would have obtained employment six months from the date of the accident, to 31 July 2007, the latter being the date the trial ended. The plaintiff obtained employment at Lear Corporation from August 2000, almost eleven months after the accident. There is no evidence in support of the view that he would have obtained employment earlier than August 2000 but for the injuries or that the remuneration he started with was less favourable than it would have been had he not been injured. The negative result highlighted, arguably as a result of the injuries, appears to be that the chances of promotion at Lear Corporation to the next level and beyond, have been hampered.

11 11 According to the manager at Lear Corporation, he would have been eligible for promotion to grade 6 by the year ] In the report compiled on 2 August 2005 Dr P A Olivier agreed with Dr Mackenzie that the plaintiff will only be able to perform duties for the foreseeable future. His opinion is that the patient will be able to continue with his normal duties for a period of 5 years from date, and that he will not be able to obtain another job that requires of him to stand for long periods of time or lift up heavy objects. The five year period referred to will expire in August The claim of R for past loss of earnings appears reasonable in the circumstances. I find contingency deductions not warranted. 19] In respect of the future loss of earnings the assumption which forms the basis of the calculations is that in 2008 the plaintiff would still be at level 6 and to assume level 7 in 2009, to enter the level of a production manager in A further assumption is that he would have been medically boarded by Beyond that he would be able to secure employment as a clerk at Paterson B 1 level see The Quantum Yearbook 2007 by R J Koch (P 105). That translates to a maximum basic salary of R and maximum total package of R per year.

12 12 20] In his report dated 28 January 2004, Dr P A Olivier stated that the plaintiff would not be able to compete in the open labour market since he was involved in the accident, due to the serious orthopaedic injuries to the right knee joint and to the left elbow joint. He would find it difficult to perform activities such as standing, walking, squatting, bending, etc. He further stated that he would not be able to perform a manual job where he would be expected to lift heavy objects. He would be able to perform a type of job in the future where it is expected of him to sit most of the time. 21] Dr Mackenzie s opinion is as follows: My best estimate is that within the next five years Mr Vukubi will prove competitive only in a job description where he is allowed to sit at least two thirds of his time on duty and is not required to frequently lift or carry weights in excess of approximately 9 kg. And that the plaintiff would be capable to work within those parameters up to the age of 45 years. But he would be capable of sedentary work up to the age of 60 years. 22] After testing the plaintiff s intellectual ability through psychometric testing Dr van Daalen, an industrial psychologist, formed the opinion

13 13 that the plaintiff selected a career in the engineering field that is congruent with his skills and that, therefore, he would be well suited for work in that line. This follows an interview with Dr P A Olivier who mentioned in his report that the plaintiff indicated that he had an interest in pursuing studies in the mechanical engineering field. He discontinued with studies because of financial studies, as he says. Dr van Daalen further said in his report he is intellectually competent person who can be put to good use in an area where direct physical labour is not required. But the reality for him is that the career where his talents and passions are concentrated require the physical capabilities that he has lost through this traumatic accident. Mr Ndzondo, appearing for the defendant, raised a legitimate point which is that because the plaintiff did not testify, there would be no basis to consider that the interest was real. No evidence led to indicate his interest in furthering his education. 23] At the current grade the plaintiff is receiving an amount of R19.15 per hour. Two actuarial reports have been presented one dated 31 May 2007 by Mr J L Oliver and another by Mr Robert Koch. The latter is dated 18 February It is in fact a certificate of value for settlement purposes. What is striking is the disparity between the

14 14 figures provided by the actuaries after calculations. Mr J L Olivier estimates the future loss of income at R whereas Mr Koch s figure is R The calculations of the value of the loss of income by Mr J L Olivier have been done as at 1 July The total income based on the above figures, had the accident not occurred, amounts to R less what would be earned post morbidity, which is R , to leave a balance of R Contingencies have not been taken into account. 24] The actuarial calculations by Mr J L Olivier are based on the report dated 21 May 2007 prepared by Dr Lourens. The primary source document for Mr Koch s calculations has not been identified. I approached counsel to address me on the apparent huge discrepancy in the figures. The response was by means of a memorandum signed by both indicating that I should give no consideration to what they termed Mr Koch s outdated certificate. It is dated the 18 th February 2005 and Mr J L Olivier s the 31 st May I do not agree that this is the best way of dealing with the matter. Their explanations as to how the discrepancy occurred would help expose what assumptions were made and what information had been supplied to the actuary on which to

15 15 make calculations. After all, the certificate by Mr Koch was only handed in by consent as recently as on the date of trial. 25] In Dr Lourens view, calculations of the loss of earnings should be informed by the fact that the working capacity of the plaintiff is significantly curtailed to an extent that if he were to remain with Lear Corporation, the plaintiff would not be able to progress to the manager level in the career path offered by Lear Corporation. There is no evidence to suggest that the plaintiff is currently not coping with his job. He has not been assessed. Whilst still with Lear Corporation nothing suggests his employability is suspect in the sense that he is not able to render quality service. When he ceases to work for Lear Corporation he may still be engaged with sedentary work. At Lear he has not been assessed as yet; he has not been on any accident related sick leave and, he was able to get employed less than a year after the accident. Had he testified he would probably have thrown some light as to the level of his current and future working capacity. In the words of Dr van Daalen he is an intellectually competent person who can be put to good use in an area where direct physical labour is not required.

16 16 26] Dr van Daalen s opinion is that in estimating compensation for loss of earnings the figure of between 20% and 30% over the estimated figures he would earn in his injured state would be reasonable. In his testimony Dr Lourens disagreed with this but his report to Mr J L Olivier did not deal with this issue raised by Dr van Daalen. 27] In accordance with the report of Dr Lourens, calculations were based on the rates payable by Lear Corporation which are the following: Grade 4 : 1 x 1.5 x R19.15 = R Grade 6 : 1 x 1.5 x R23.33 = R Grade 7 : 1 x 1.5 x R36.61 = R Manager level : 1 x 1.5 x R165.62= R The figures include payments for overtime at 1½ of the normal rate per hour on Saturdays and at 2 on Sundays and public holidays. The frequency of overtime has not been stated. He, however, mentioned in his medico legal report that at Lear Corporation the plaintiff, without having been injured, had the potential to have been promoted to grade 6 by the year 2007 and earning R23.33 per hour for forty hours a week and to grade 7 at R36.61 per hour for the same number of hours in 2009 and to be a production manager in 2012 at a wage of R per hour.

17 17 28] The position taken by the defendant is that there is no evidence placed before me to the effect that the plaintiff was not currently coping at work. The answer to that question was that he had not been assessed to check whether coping or not. The plaintiff did not testify. I expect that had he testified, he would be able to throw some light in this regard. In proceeding further into alternative occupations with Lear Corporation it became clear that there were alternative occupations but not in the production section and only on condition the plaintiff underwent further formal training. The defence also argued that the issue of 100% unemployability is not supported by evidence. In fact, if anything, Dr van Daalen s opinion is that a figure of 20% to 30% over the estimated figures he would earn in his injured state would be reasonable. That would mean 20% to 30% over R , on the plaintiff s version. According to Dr Mackenzie, on the criteria provided by America Medical Association guide (AMA), the estimate of the plaintiff s whole person s impairment level stands at 15% which would increase to 25% post knee joint replacement. 29] The defence also raised that the injury to the neck of the plaintiff mentioned in Dr Lourens report on the basis of which actuarial calculations were made was in fact not accident related. This was

18 18 conceded. 30] Notwithstanding the issues raised on behalf of the defence I understood the position to be that the defendant is of the view that an appropriate figure would be arrived at if 20% to 30% contingency deduction were to be effected. I disagree. Above everything else the factors that weigh heavily with me are the following: 30.1Dr van Daalen s opinion about 20% to 30% over the figures estimated in the plaintiff s injured state has not been effectively rebutted. The actuary was not alerted to the contents of this report, which were admitted on behalf of the plaintiff, in the sense that his report was handed in by consent with the contents thereof admitted. 30.2Dr Mackenzie s whole person impairment rating of 15% to 20% also does not form part of Dr Lourens report to the actuary The fact that the plaintiff did not testify seriously blurs the view with regard to the extent of his capacity to gain

19 19 employment on the open market, if boarded. The extent of the clinical findings cannot be reconciled with the difficulties actually experienced by plaintiff as regards the perceived sequelae generally, and his compromised capacity to work and/or to gain employment on the labour market. In C D Dove and The Road Accident Fund case no 1638/2004 Pickering J refers to an extract in the report of Dr Mackenzie which says that impairment ratings are designed to reflect functional limitations but not necessarily work disability. To me that demonstrates the importance of the plaintiff s evidence in a case of this nature The 15% to 20% whole person impairment level translates to the plaintiffs prospects of obtaining gainful employment having been reduced accordingly. This was not considered by the Mr J L Olivier. All those in my view would lead to inappropriate actuarial computation that can not likely be cured by contingency allowances.

20 20 31] Even though I take guidance from the figures provided but I am of the view that the route to take is to make an estimate of what I consider fair and reasonable. (Southern Insurance Association v Bailey NO 1984 (1) 98 (AD)) 32] In the Dove case referred to above, the award amounted to R after a foreign exchange exercise from British pounds. The plaintiff in that case was a married woman born on 30 January She matriculated in She attended a Technical College in Cape Town for a course in pathology. She worked for various employers as medical technologist, manageress etc. She was also a member in a trading partnership at some stage. At the time of the accident she was preparing to emigrate to Scotland and had just resigned from a school where she was employed as an administrative clerk. She testified she had made numerous enquiries with regard to employment. The court found that she was not employable. Her whole person impairment was 41%. This case is comparable to the case before me. The difference is the ages of the claimants and the fact that in casu the claimant is employed and employable even though with limitations. 33] Having regard to the different factors I have highlighted above I

21 21 consider that an award of R in respect of future loss of earnings would be fair and just. The following order is thus made: 1. Payment of damages by the defendant as follows: (a) General damages (b) Past loss of earnings (c) Entire loss of earnings Total R Plus interest at the legal rate from a date 14 days after the date of judgment to date of payment. 3. Defendant ordered to furnish an undertaking from date hereof in terms of section 17(4) of the Road Accident Fund Act 56 of 1996, within 14 days. 4. Defendant to pay costs of suit to include qualifying expenses, if any, of Dr J Lourens and Dr P A Olivier. 5. Plus interest on the taxed costs at the legal rate from a date 14 days after the date of allocatur.

22 22 C T SANGONI JUDGE OF THE HIGH COURT Counsel for the Plaintiff : Mr C B Wood Attorneys for the Plaintiff : Niehaus McMahon & Oosthuizen King William s Town Counsel for the Defendant : Mr M G Ndzondo Attorneys for the Defendant : Messrs Mlonyeni & Lesele Inc King William s Town Date heard : 31 July 2007 Date Judgment delivered : 18 October 2007