Hlungwana v Road Accident Fund (28514/2014) [2017] ZAGPPHC 410 (13 June 2017)

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

CASE NUMBER: 28514/2014

DATE: 13 June 2017

STELLAN

RHUMELANI

HLUNGWANA

Plaintiff

V

ROAD

ACCIDENT

FUND

Defendant

JUDGMENT

MAKAMU AJ:

[1] This is an action where Plaintiff instituted a claim against Road Accident Fund arising from motor vehicle accident /collision that happened on the 21 November 2012. She was the driver of the vehicle that was bumped from behind and collided with another on-coming vehicle due to the bump from the back.

[2] The merits of this matter are not dispute and the parties agreed that an amount of R450 000 towards damages could be awarded to the Plaintiff, an issue here is loss of future earnings, (post-morbid).

[3] The Plaintiff is a social worker who admitted that in her rank there are more than hundred other social workers. She believes that she could have been promoted to the rank of Supervisor or manager, had it not been for the accident.

[4] The injuries she sustained had nothing to do with her head, as she never lost consciousness or any medical evidence of injury lead. She sustained a wound on her abdomen (stomach), a dislocation of the left femur and undisplaced fracture of the sacrum, that is around her pelvis.

[5] The Plaintiff was assessed by Dr M de Graad specialist and she also relied on various specialists to confirm her injuries.

Dr de Graad said her impairment rating is whole person impairment as a result of the orthopaedic injuries is 14%WPI. According to Dr de Graad's report on page 21 which was used to motivate that the Defendant consider her claim, said on paragraph 13 that she says she cannot drive.

[6] The Plaintiff relied on various experts in support of her claim namely:

(1) Dr M de Graad ( Orthopaedic surgeon)

(2) Dr F A Booyse (Orthopaedic surgeon)

(3) Dr H L Moloto (Orthopaedic surgeon)

(4) Dr Bingle (Neurosurgeon)

(5) Dr Hartley ( Physician)

(6) Dr J D Nel ( Gynaechologist & Obstetrician)

(7) Dr D de Vlaming (Industrial Psychologist)

(8) E Theron (Occupational therapist)

(9) 8 Kekana ( Oc upational therapist)

(10) R Nel (clinical Psychologist)

(11) GRS Consulting ( Actuary)

[7] The Plaintiff did sustain injuries that to a certain extent brought some limitations to her ability to perform work but she can still work until her normal retirement age.

[8] The Plaintiff suggested that she could have been promoted to a level of senior Social worker and even to manager had it not been for the accident.

[9] There is normal progression that one expect whilst working for the government in particular but promotion is something that is not certain and in as far as Industrial psychologist and actuary report will depend more on what the client claim was going to happen.

[10] The Plaintiff claims that due to an accident she is forgetful but that would be expected from somebody who sustained head injuries and she did not suffer from the same.

She contracted chronic condition ([....]) which is also very serious and could cause one to be depressed, however she chose to blame it on the accident, which sound a little bit more exaggerated.

[11] She claims that she cannot drive but on careful look at her situation and the cross examination it is not that she cannot drive but she says she gets tired and it is something that one may adapt to it and does not interfere with her working ability.

[12] I mentioned on paragraph 8 that she could have been promoted, under normal circumstances she could have been but there are other factors that one should consider to verify if that could have indeed happened, like how many incumbents within the same rank who could be promoted? She is competing with over 100 colleagues where a manger is only one and supervisors not exceeding 5, and there is nothing to support that indeed she could have been promoted save for the report by the clinical psychologist who made some inquiries from her senior who mentioned that she was a good social worker and that does not in itself guarantee promotion to the next level.

[13] The Plaintiff claims general damages of R450 000 which I believe is reasonable when one consider the kind of injuries she sustained and there is no doubt that she should be awarded those damages. The amount of R16 986.50 for past medical expenses may also be acceptable as it is proven. The amount of R3 671 891.00 for loss of future earnings comprising of promotion to two other levels of Supervisor and Manager sounds more exaggerated than actual position. The actuary and the Industrial Psychologist also considered the pension that she could have earned had she attained those levels.

[14] It is highly speculative and I don't believe that it is realistic, as such the Defendant suggest that she should be awarded an amount of R715 279.60.

The Defendant applied the calculations based on her present rank, which I also believe it is not realistic that she could have achieve higher rankings in the future although I am not persuaded that it is automatic that she could have achieved the levels she claims and if she could she may still achieve it although she is working with pain which may diminish as she receive necessary treatment and therapy.

[15] I therefore make the following order The Plaintiff is awarded an amount of R900 000 based on her present impairment for future loss of earnings. R450 000 for general damages and R16 986.50 for past medical expenses, and the costs.

____

M.S

MAKAMU

ACTING

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the applicant

: Adv GD Lubbe

Instructed by

: Schutte De Jong Inc

Counsel for the Defendant

: Adv. CH Badenhorst

Instructed by

: Brian Ramaboa Inc

Date Heard

: 29May 2017

Date of Judgment

: 13 June2017