FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT JONATHAN ELROY MULLER PLAINTIFF ROAD ACCIDENT FUND DEFENDANT

Transcription

1 FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT PARTIES: JONATHAN ELROY MULLER PLAINTIFF and ROAD ACCIDENT FUND DEFENDANT Case Number: 2473/05 High Court: SOUTH EASTERN CAPE LOCAL DIVISION Date Heard: 14, 15 & 20 June 2007 Date Delivered: 30 October 2007 JUDGE(S): DAMBUZA J LEGAL REPRESENTATIVES Appearances: Plaintiff(s): Adv Schubart Defendant(s): Adv Paterson Instructing attorneys: Plaintiff(s): Ungerer Struwig Hattingh Peo Defendant(s): Karsans Inc CASE INFORMATION Nature of proceedings : Claim for Damages IN THE HIGH COURT OF SOUTH AFRICA

2 2 (SOUTH EASTERN CAPE LOCAL DIVISION) CASE NO: 2473/05 In the matter between: JONATHAN ELROY MULLER PLAINTIFF and ROAD ACCIDENT FUND DEFENDANT JUDGMENT DAMBUZA J: 1. This is a claim for damages arising from injuries sustained by the plaintiff in a motor vehicle collision on 2 February When the matter came before me, the merits had been settled; the defendant having conceded liability for 70% of damages suffered by the plaintiff as a result of the accident. The defendant had also admitted the plaintiff s claim for past hospital expenses in the sum of R and had tendered to furnish an undertaking in terms of Section 17 (4) of the Road Accident Fund Act, Act 56 of 1996, in respect of plaintiff s claim for future medical expenses.

3 3 What remains to be determined are aspects relating to the quantum of general damages and loss of income suffered by the plaintiff. 2. The plaintiff, who was born on 26 July 1981, was a passenger in a motor vehicle bearing registration numbers, CRY 884 EC when that vehicle collided with the insured vehicle (motor vehicle CHW 138 EC) in Uitenhage. He sustained a severe fracture of the pelvis with dislocation of the right hemi pelvis through the symphysis pubis and sacro iliac joint. He also suffered an acute abdomen, a neck injury, bruises and abrasions on his head, an injury on the right lower leg and a contusion of the right knee. 3. He underwent a laparotomy on the same night of the accident at the Uitenhage Provincial Hospital. Two days thereafter, he was transferred to Cuyler Clinic in Uitenhage where an attempt was made to perform an open reduction on the fractured pelvis. A skeletal pin was inserted into the right lower limb to reduce and maintain reduction of the dislocated pelvis. On 19 February 2003, the plaintiff was transferred back to the Uitenhage Provincial Hospital where he remained for a further month. 4. Prior to his discharge from hospital the denham pin was removed

4 4 from his right tibia and he was mobilised using crutches. There were no subsequent visits to the Uitenhage Provincial Hospital. Instead the plaintiff attended his own general practitioner, Dr R Van Heerden on a monthly basis for analgesic tablets. His last visit was in May He remained on crutches for two months after discharge from hospital. 5. On 3 August 2004, the plaintiff consulted with Dr James Forgus, an orthopaedic surgeon. A medico legal report prepared by Dr Forgus forms part of the record. Dr Forgus also gave evidence at the trial. According to Dr Forgus the injuries sustained by the plaintiff in the collision resulted in him being left with a permanent limp on the right side; the right leg is three centimetres shorter than the left leg. Muscle wasting of the right thigh has resulted in the right thigh measuring eight centimetres smaller than the left thigh. The right hip flexes 20 less than the left hip. The plaintiff squats incompletely due to stiffness of the right hip. He presents with extensive callus formation over the sacro iliac joint. 6. According to Dr Forgus, the attempt that was made at Cuyler Clinic to reduce the dislocation in the pelvis was not successful. In his assessment the plaintiff would have been unfit to resume duties for four to six months after the collision. (In this regard the plaintiff testified that

5 5 he resumed duties earlier than this period because he had no choice). Dr Forgus opinion was that the plaintiff should not play active sports, jog and carry heavy weights (more than 10kg) in future. One and a half years after the collision the plaintiff s sacro iliac joint and symphysis had not fused and resulted in instability of the joint. Heavy weight bearing activities and excessive bending might further destabilize the joint. 7. Dr Forgus opinion was that the shortening of the right leg should, as a matter of urgency, be permanently compensated by a raised shoe involving a heel and a sole. He anticipated that within a period of eight to ten years of the consultation the plaintiff would develop pain in the sacro iliac region on the right side. This would necessitate a sacro iliac joint fusion (arthrodesis). In the end the plaintiff was only suited to sheltered work of sedentary nature for the rest of his employable life. 8. Regarding pain and suffering Dr Forgus testified that the plaintiff would have experienced severe pain for three to four weeks after the collision whereafter the pain would diminish over the next three to four weeks. He would have, through this period, been totally incapacitated and would have experienced extreme discomfort as a result of a skeletal traction on his right leg.

6 6 9. A further medico legal report prepared by Dr Basil Mackenzie, also an orthopaedic surgeon, also forms part of the record. The contents were admitted by both parties at a pre trial conference. In essence the opinions expressed by both Dr Forgus and Dr Mackenzie are similar, particularly insofar as the effects of the injuries sustained by the plaintiff on his post morbid income earning capacity. Dr Mackenzie, however was of the opinion that it will not be necessary to perform an arthrodesis on the plaintiff. 10. Dr Mackenzie s opinion was that the plaintiff is physically 18% permanently partially impaired. This reflects his compromised capacity to manage activities of daily moving, including sitting, standing, lifting, carrying and other activities. He further opined that although the plaintiff was 18% physically impaired, he could remain employable in his semi skilled job description to the age of 50 years, whereafter his capacity to compensate for his impairments will diminish so that he will need to delegate all tasks involving heavy weight bearing activities. In this way he could remain employable to about 57 years. 11. Dr Forgus assessed the extent of plaintiff s partial permanent disability at 20%. Two further medico legal reports prepared by him which form part of the record confirm the contents of his first report save that when

7 7 the plaintiff consulted with him on a second occasion (18 July 2006) the stiffness on the right hip had improved. 12. A medico legal report prepared by Dr Richard Holmes, a psychologist, is also part of the record. In the report Dr Holmes gives an opinion on the plaintiff s future prospects of employment and/or income earning capacity. He also testified at the trial confirming the contents of his report. His view was that although the plaintiff was only 22 years old at the time of the accident, it can be reasonably assumed that, but for the accident or any other unforeseen circumstances, the plaintiff would have become a competitor in the open labour market as a semi skilled worker (or work seeker), performing duties requiring extensive physical activity, including standing, walking, bending and driving. Premorbidly, he had the physical ability and the intellectual potential needed for such work. Assuming that he would have remained a committed worker, (and there being no reason to believe that this would not have been the case), he would have remained in employment until he reached retirement age. However, given his relatively poor standard of education and no special skills, his employment opportunities would always have been limited. 13. The plaintiff only passed standard nine at school. After failing matric,

8 8 he left school at the end of 2000 and secured employment at Quality Express two weeks after leaving school (at the beginning of 2001). He remained with his first employer for about a year and was working as a general labourer loading and off loading coffins and performing other odd duties. After leaving Quality Express he remained unemployed for about six months until he secured employment with Uitenhage Saw Mills Building Supplies. 14. At the time of the accident the plaintiff was employed as a general worker at Uitenhage Saw Mills, working Mondays to Fridays, 07H30 to 17H00 and Saturdays from 07H30 to midday. His salary was R a month. His duties entailed carrying building material such as cement bags, wooden branding and paint tins. As a result of the collision he was off work for about three months. He resumed duties on 3 May He was paid a total sum of R for the three months that he was off work. He resumed work in a light duty capacity until he was retrenched in December The plaintiff remained unemployed from January 2004 until the end of October In November 2005 he was employed by Vanni s Transport. He had, during the period that he was unemployed, managed to obtain a Code 10 drivers licence. At Vannis Transport

9 9 he worked as a truck driver earning R He also assisted with loading and off loading trucks when doing deliveries. 16. On 6 September 2006 the plaintiff left Vannis Transport and started working for Valeo Systems. At the time of the trial he was still employed by Valeo Systems as a machine operator, assembling motor vehicle components (the front ends of Volkswagen motor vehicles). His job entailed fitting the front ends weighing about 5 kilograms to motor vehicle bumpers. His movements whilst working involved standing, bending, lifting and balancing whilst aligning the screws onto the front ends. According to Ayanda Williams, a production team leader at Valeo Systems, the plaintiff was also employed as a spare driver. 17. Prior to the collision the plaintiff was active in sports, playing rugby, volley ball and soccer. After the collision he was not able to resume these sporting activities. From 2003 he played pool at club level and, in fact, became captain of his club team. 18. Plaintiff s evidence was that after the collision he suffered from dysnia and extreme impotence. If he stood for a long period (two to three hours), his right leg became lame. Jogging resulted in pain in his sacro iliac region and right ankle. Inclement weather aggravated these symptoms, particularly during early morning. He also could not do gardening. His social life slowed down considerably. Climbing long

10 10 staircases and driving long distances resulted in pain. 19. It is common cause that the injuries sustained by him placed further limitations on the plaintiff s future employment prospects and although he was able to obtain employment subsequent to the accident, as a truck driver, he will always be compromised in his future employment prospects and income generating capacity. Despite obtaining a code 10 driver s licence subsequent to the accident, the plaintiff remained in the semi skilled worker salary band. LOSS OF EARNINGS/INCOME EARNING CAPACITY: 20. I am satisfied, on the evidence before me that the plaintiff has been compromised in his ability to earn an income, particularly, if regard is had to the type of work that he is currently qualified for. Further, chances that the plaintiff will secure employment performing sedentary type work as recommended by the experts are limited, given his level of education and the fact that he will be competing with physically fit work seekers. I am also satisfied that the plaintiff s earning capacity has been reduced by 20% until he reaches the age of 50. Whilst I remain mindful of Dr Mackenzie s assessment of the plaintiff s physical impairment as 18% until the age of 50, I am of the view that Dr Holmes assessment of the extent of reduction of the plaintiff s earning

11 11 capacity (20%) which takes into account more than mere physical impairment is more appropriate. PAST LOSS OF EARNINGS: 21. At the time of the collision the plaintiff was earning a basic salary of R per week (R per month). According to Dr Holmes, ordinarily, a school leaver of plaintiff s education, socio economic background and lack of specific skills would earn an income of R to R per month on entering the job market. Thereafter the individual s salary would increase to R to R (in the Eastern Cape) over a period of five to seven years; and thereafter it would increase, over a five year period in accordance with the Peromnes/Paterson salary scales from R to R up to R to R (being equivalent to progression from Peromnes 17 to 13) as illustrated in the following schedule. Industry Sector: All Location: Eastern Cape Table: Job Grade/Level Basic Salary (Monthly) Total Salary (Monthly) Peromnes 17/Paterson A2 Level R3010 R4240 R4300 R Peromnes 16/Paterson A3 Level R3360 R4480 R4670 R Peromnes 15/Paterson B1 Level R3540 R4850 R5130 R Peromnes 14/Paterson B2 Level R4190 R5250 R5550 R Peromnes 13/Paterson B3 Level R4840 R6060 R6380 R During the trial my understanding was that it was not in dispute that

12 12 during the period 2 February 2003 to 3 May 2003 the plaintiff only received an income of R He therefore lost income in the amount of R over that period. Dr Holmes opinion was that further loss of income should be calculated taking into account the projections provided by him. 23. An Actuarial calculation of the plaintiff s past loss of income prepared by Arch Actuarial Consulting forms part of the record (exhibit A). The method of calculation used therein was admitted by the parties. It is the facts on which the calculation is based that are in dispute. 24. The existing Actuarial calculations are incorrectly based on the plaintiff having lost income from the date of collision until the end of October 2005 (a total of 32 instead of 22 months). 25. It was submitted on behalf of the plaintiff that the Actuarial calculation of R for past loss of earnings, after applying a 5% contingency deduction, should be awarded. 26. The defendant contends on the other hand that since the plaintiff started working at the beginning of 2001 he has, for the period of five years immediately after 2001, kept up or even exceeded his anticipated earnings as per Dr Holmes opinion. Consequently, so it was argued, there is no basis for any claim for past loss of income save for the R2

13 income lost during the three months immediately following the accident and the R for the period following the plaintiff s retrenchment. Mr Paterson, who appeared on behalf of the defendant, submitted that because there was no evidence indicating that the plaintiff, prior to the collision, had been looking for alternative employment, damages for past loss of income should be awarded on the basis that the plaintiff would have continued with his employment at USM Building Suppliers without further qualifying himself. Although I do not agree that absence of evidence indicating that the plaintiff would have changed employment is a proper basis for depriving a plaintiff of income which he could have earned, there is merit in the argument that during the first five to seven years, the plaintiff s income kept up with Dr Holmes projections. Consequently his loss of income during this period can only be properly calculated on that basis. 27. I am therefore persuaded that past lost of income should be awarded to plaintiff on the basis that: 27.1 the plaintiff lost income of R from 2 February to May 2003; 27.2 from January 2004 to October 2005 the plaintiff lost income of R ;

14 the plaintiff s earning capacity having been reduced by 20% as a result of the injuries, he suffered post morbid loss of income of earning capacity of R (20% of the amount of R per actuarial report). FUTURE LOSS OF EARNINGS: LOSS OF EARNINGS UP TO AGE The actuarial calculation assumes that the plaintiff would only start to earn at the Peromnes 17 level in Adelle van Rensburg, (the wage administrator at Valeo Systems plaintiff s employer at the time of the trial) testified that the plaintiff earned a nett salary of R Therefore his earnings are already at the Peromnes 17 level (R3010 R ) as projected by Dr Holmes. 29. The experts were in agreement that if the plaintiff could work only as a driver, he could be able to work at the reduced income earning level (20%) until the age of 50. Dr Holmes warned however, that employers prefer workers who can perform multi tasks, for example, a truck driver who will assist with loading and off loading of the cargo. Be that as it may I am satisfied that damages should be awarded on the basis that:

15 The plaintiff has suffered a loss of income earning potential of 20% until 50 years; 29.2 Had it not been for the collision a 15% contingency deduction would be applicable to the plaintiff s future income earning potential; 29.3 In view of plaintiff s injured state an additional contingency deduction of 20% is therefore applicable for loss of income until the age of Consequently the plaintiff s estimated future loss of income up to the age of 50 years falls to be calculated as follows: 85% of R (estimated earnings of a semi skilled R (15 %Pre morbid of a semi skilled worker as per plaintiff s latest contingency) actuarial report. Less 35% of R R (15% + 20%) R FROM AGE 50 TO 57:

16 Regarding future loss of income from the age of 50 onwards, Mr Paterson submitted that Dr Holmes opinion that the plaintiff would not be employable is too rigid and compartmentalized and is not based on any acceptable evidence or opinion. I also could find no medical or other acceptable evidence to support Dr Holmes opinion. It was submitted on behalf of the defendant that a contingency deduction of 50% should be applied from age 50 to 57. It would not, in my view be unreasonable to assume that the plaintiff would continue with his current occupation beyond the age of 50 albeit with some difficulty. The method of calculation proposed on behalf of the plaintiff appears to be in line with the 50% contingency deduction suggested on behalf of the defendant. It has been submitted on behalf of the defendant and I am in agreement that the amount to be awarded should be calculated on the basis of Dr Holmes projections for semi skilled employees. (R being 50% of the anticipated future income). FROM AGE 57 TO 65: 32. From 57 years to 65 years during which it is anticipated (with both parties agreeing) that the plaintiff will not be physically capable of working, the anticipated future income of a semi skilled worker is R (Having applied the usual 15% contingency deduction).

17 17 GENERAL DAMAGES: 33. The defendant has made an open offer of R for general damages suffered by the plaintiff. The plaintiff sues for a sum of R Both parties rely on previously decided cases in support of the amounts claimed and offered. The plaintiff relies on awards made in the following cases: 33.1 Peter v Road Accident Fund reported in Corbett & Honey: The Quantum of Damages in Bodily and Fatal Injury cases (Volume 5) at F3 9, wherein the plaintiff sustained an injury to the hip and it was anticipated that osteoarthritis would result, requiring a total hip replacement. An amount of R was awarded as general damages. (The present day value for that amount, as set out by Koch: The Quantum Year Book (2007) is R ) Road Accident Fund v Marunga 2003 (5) SA 164 SCA, in which the plaintiff sustained a fracture of the left femur and other minor injuries. He spent five months in hospital, and his schooling was interrupted. The injury resulted in a leg length discrepancy of about 1½cm, which could be corrected by

18 18 surgery. An amount of R was awarded as general damages. (The present day value thereof according to Koch (supra) being R ). 34. The defendant, on the other hand relies on the following cases: 34.1 Hendricks vs Road Accident Fund, (supra) Volume 5 at F 3 1 in which the plaintiff suffered a fracture dislocation of the right hip and a fracture of the symphysis pubis. As a result there were three failed total hip replacements performed during the first four years after the collision as well as a fourth one, which involved long stem prosthesis and bone grafting. It was anticipated that revision surgery would probably be required within ten years, and if that failed, a girdle stone excision arthroplasty would be required, which would shorten the leg further. In respect of his amenities, plaintiff had restricted hip movements and a severe antalgic limp, requiring the permanent use of two crutches. There were also other injuries, including: multiple fractures to the ribs, fractures of four metatarsals of the right foot, injury to the right knee joint as well as further lacerations contusions. The plaintiff was awarded a present value (as per the Quantum Yearbook, 2007; RJ Koch) of R

19 President Versekeringsmaatskappy vs Mathews, in which the plaintiff, a farmer, aged 53 at the time, sustained a fracture of his left hip, a serious fracture of his hemi pelvis injuries to his eye and certain internal injuries. There was a shortening of his left leg of about 3cm and further rheumatism in the hip joint was indicated. It was anticipated that hip replacement surgery would be required. He was awarded a current value (as per the Quantum Yearbook, 2007) in the amount of R Hartzenberg vs SA Eagle Insurance, (supra) at Volume 4 F 3 7 in which a girl, aged eight years at the time, sustained a fracture of her pelvis and hip. As a result surgery in the form of an open reduction and internal fixation was undertaken as well as traction for a period of about three weeks. She was in a hospital for six weeks and thereafter required to ambulate with crutches for about ten months. As a result, she sustained severe pain as well as disfigurement and her working life was expected to be curtailed. Further, it was indicated that hip replacement surgery was required. She was awarded a current value (calculated as per the Quantum Yearbook, 2007) of R

20 I agree with the submission on behalf of the plaintiff that although the plaintiff in this case received less treatment and will endure less medical operations than the plaintiff in the Peter and Marunga cases, he is more incapacitated as a result of the permanent 3cm leg length discrepancy. On the other hand, the plaintiffs in the Hendricks and Hartzenberg cases appear to have sustained more serious injuries than the plaintiff in this case. In Hartzenberg s case the plaintiff was much younger than the plaintiff in this case. In my view the appropriate award for general damages in this case would be R In the result it is ordered that: 1. The defendant shall pay the plaintiff s: 1.1 Past hospital R ; 1.2 Past loss of income R ; 1.3 Future loss of earnings or loss of earning capacity R ; 1.4 General damages R ; TOTAL R

21 21 2. Interest is to accrue on the said amount of R as from a date 14 days from date hereof until date of payment; 3. Defendant is to furnish plaintiff with an undertaking in terms of Section 17 (4) of the Road Accident Fund Act, Act 56 of 1996, for the cost of future accommodation of plaintiff in a Hospital or Nursing Home or treatment of or rendering of a service or supplying of goods to him arising out of the collision in which he was involved on 2 February 2003 after the costs have been incurred and upon proof thereof; 4. Defendant is to pay plaintiff s costs of suit, as taxed or agreed, on a party and party scale. Such costs are to include the qualifying expenses, if any, of the following: 4.1 Dr Forgus; 4.2 Corrie de Witt; 4.3 Dr Holmes; 4.4 Dr Mackenzie; 4.5 Arch Actuarial Consulting;

22 22 5. Defendant is to further pay the costs occasioned by the postponement of the trial on 15 June 2007, as well as the costs occasioned by the application for a postponement on 20 June N DAMBUZA JUDGE OF THE HIGH COURT Applicant s Counsel: Adv Schubart Applicant s Attorneys: Respondents Counsel: Ungerer Struwig Hattingh Peo Security Place Corner Hancock/Market Streets North End PORT ELIZABETH Adv Paterson Respondent s Attorneys: Karsans Inc c/o Ketse Nonkwelo Attorneys 522 Govan Mbeki Avenue North End PORT ELIZABETH Heard on: 14, 15 & 20 June 2007 Delivered on: 30 October 2007

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