REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 7415/2018
|
(1) REPORTABLE: YES / NO. (2) OF INTEREST TO OTHER JUDGES: YES / NO. (3) REVISED YES/NO
SIGNATURE 21 NOVEMBER 2022 |
In the matter between:
ADV MM TROMP OBO E M[...] Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
J U D G M E N T
RAULINGA, J
1. This matter pertains to a third party action for a claim for damages emenating from an accident that occurred on 27 November 2016, in which the plaintiff sustained multiple injuries.
2. The matter was enrolled for hearing on 21 February 2022 follwong a roll-over from an earlier date.
3. On the day of hearing , the plaintiff was legally represented whereas theere was no appearance on behalf of the defendant. Adv M M Tromp was appointed as curator ad litem for the plaintiff.
4. The merits were settled at a pre-trial. The defendant admits that the injuries were serious. A hundred percent undertaking was also agreed upon between the parties.
5. The issue of general damages was settled in the middle of the proceedings in the amount of one million rands. The only issue remaining for consideration would be loss of earnings.
6. During the hearing of this matter , the plaintiff was thirty-two years old. Regarding the loss of earnings, loss has been calculated in terms of two senarios and senario 1 was agreed between the parties as reasonable and correct. The parties agree that the contigency deductions are correct. This, despite the fact that there was no offer forth…. from the claims-handler on loss of earnings. This was an agreement in principle .
7. After [……….] and winding submissions, the following order was made:
“Raulinga J - Unfortunately, I cannot interfere with the general damages because there is settlement, but I believe I can use my discretion in as far as the loss of earnings is concerned. And the total amount including the past loss is R2 330 500, I repeat R 2 330 500. That is the total, so you will have to deduct to find out how much the future losses are”
8. In his submissions, counsel for the plaintiff referred to eleven expert reports, including that of the actuary. There were no expert reports by the defendant.
9. The neurologist graded the injury as moderate defused head injury, whereas the neuropsychologist and the psychiatrist graded the injury as severe head injury.
10. The plaintiff also sustained lacerations to his scalp and the left ear – extensive permanent scarring. He has burns to approximately 25% of his upper limb and right leg. Burns to a further 16% of his back and 9% of his leg and upper arm. There were also soft tissue injuries to the plaintiff’s limbs, spine and right knee.
11. As the stated elsewhere above in this Judgement (revise), the collision occurred on the 27th of November 2016. The plaintiff was taken by ambulance from the scene of the accident to the Tshepong Hospital and on 30 November 2016 was transferred to the West Vaal Hospital in Orkey.
12. The plaintiff’s treatment included interalia a skin transplant on his right buttock and his right thigh was the donor side. The plaintiff also underwent a blood transfussion, intravenous infusions, x-rays and a CAT scan. He was seen by a psychologist and was eventually discharged form hospital on 23 December 2016 after spending almost a month in hospital.
13. The plaintiff was empoyed in a mine and was working as an undeground assistant at the time of the accident.
14. Since general damages have been settled, there is no need to deal with that heading. Suffice to say that the plaintiff sustained extensive burn / abrasion wounds involving his right and keft upper limb, back and right leg which resulted in a slightly permanent scarring. He lost consciousness apparently as a result of a defused head injury. He has a period of retrograde amnesia of atleast two years proceeding the accident and he woke up approximately three days after the accident. A CAT brain scan confirmed an intra-cerebral haemorrage bleeding on the brain. His GCS on admission to Tshepong was originally indicated to be ten out of fifteen and then it decreased to eight out of fifteen. The plaintiff required incubation and ventilation to assist him to breathe. However, his head injury was treated conservatively. He now complains of lack of sense of smell, post traumatic head pains, cognitive impairmen. He suffers from depression and the MRI brain scan confirmed a defused axonal injury and as such the neurologists opinion is that he suffered at least a moderate head injury. The plaintiff has significant difficulty with his long term memory.
15. Conerning loss of earnings, the plaintiff completed grade twelve in 2009. He has a PTV , Pipes Trouks and Ventilation certificates. He was working as an underground assistant at the time of the accident. He was assisting with respect to pipe trouks and ventilation. He was laying pipes underground and tracks for loco operation and ventilation. According to the occupational therapist, the plaintiff is best suited to demands in a sedentary to light category. As such he has received extensive accomodation from his supervisor regarding rest periods, taking into account his cognitive mood and behavioural challenges. He requires high levels of structure and routine in his environment, as well as quieting and guidance from his superiors.
16. The Occupational Therapist is of the opinion, that he is likely to gain any promotioanl opportunities due to his current cognitive and behavioural difficulties. The plaintiff is an unequal competitor in an open labour marketin similar positions. Further, his future employment prospects have been restricted to low level.
17. The Industrial Psychologist has complied a report and an addendum thereto. After the accident in November 2016, he was in Jnauary 2019 promoted to the position of loco operator and received a salary increase. If afforded the opportunity, he may have qualified as a miner and means that he would have obtained his blasting certificate.
18. The occupational therapist expects to reach his career ceiling at aproximately fourty years old and then after that he can only get inflamatory increases until the normal retirement age of sixty years. Although the usual age of retirement is sixty-five years, the mining industry is different in that the retirement age is sixty years.
19. The plaintiff currently performs his duties ia seated position which is physically less demanding. Due to his head injury, there is no way he is capable of working as a supervisor and he would not be able to qualify now with the blasting certificate and work as a miner.
20. The occupational herapist performed a higher post-accident contingency due to the injuries that the plaintiff sustained in the accident. This she did agfter considering all the doctors reports.
21. Since the defendant is absent from these proceedings, the plaintiff considered two senarios. The first senario is based on the retirement of sixty-two and a half years. Senario two according to the plaintiff is less than senario two which is three point eight million rands.
22. The past loss after contingencies on the post morbid scenario is five percent and the post morbid senario is also five percent mita, a loss of earnings of four thousand, four hundred and eighteen rand. With respect to future loss, if he works as a miner, the plaintiff has calculated the senario on the post morbid at fifteen percent contingency deductions. On post morbid, the plaintiff calculated the contingency at twenty-five percent if he continues as a loco operator. The figure for future loss according to the plaintiff is three million rands.
23. One is mindful of the fact that pre morbid, the plainff was earning roughly thirteen thousand, three hundred and sixty two rand per month inclusive of n allowane of two thousand, four hundred and ten thousand per month. In January 2022, the plaintiff’s basic salary was ten thousand, six hundred and seventy four. He also receives a thirteenth cheque.
24. Advocate Tromp who acts as curator ad litem, confirmed that a trustee should be appointed to act on behalf of the plaintiff.
25. One has observed that the plaintiff is still gainfully employed. He is still mobile and can even run, he also walks without any aid. There is a possibiliy that he may recover from his injuries since he is still at a young age at thirty-three years old.
26. One also accepts that the plaintiff sustained multiple injuries icluding a moderate defussed head injury. However there re certain discrepancies in the evidence of the plaintiff. The neuropsychologist and the psychiatrist graded the head injuries as severe head injuries, whereas the neurologist graded the plaintiff’s head injuries as moderate defused brain injuries. Such discrepencies may even be contradictory considering the seriousness of the discrepencies. There is also a discrepency in as far as the loss of earnings is concerned. At one stage it is said that at the time of the accident, the plaintiff was earning an average income of thirteen thousand, five hundred and fifty thousand rands. However, the payslips produced at the hearing reflect an amount of ten thousand, six hundred and seventy three thousand and seventy four cents.
27. In as far as the evidence of the occupational therapist is concerned, I am of the view that most of her calculations are based on speculation. This is born out of her opinion that there is a good chance that because of the organic brain syndrome that the plaintiff will [……]. In my view, if the plaintiff does that, it will be at his own peril.
28. In my view, the actuary calculation could have been done in a manner that would have the loss of earnings lower. Unfortunately, due to the time constraints, the contingency [..] was not referred back to the actuary for the recalculation.
29. I am of the view that while the court was an unfelted discretion, the issue of general damages , it has not prevented from exercising discretion on the issue of loss of earnings. Therefore in the circumstances of the case, the order granted on the 21st of February 2022 stands.
30. The order granted on the 21st of February 2022 is confirmed.
_________________________
Raulinga J
Judge of the High of South Africa
Gauteng Division, Pretoria.