M.K v Road Accident Fund (3063/2015) [2020] ZAFSHC 70 (26 March 2020)

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,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 3063/2015

In the matter between:

M K

Plaintiff

and

ROAD ACCIDENT FUND

Defendant

JUDGMENT

CORAM: NAIDOO J

HEARD ON: 19 and 20 NOVEMBER 2019

Heads of Argument filed on 29 November 2019, and 6 December 2019

DELIVERED ON: 26 MARCH 2020

INTRODUCTION

[1] On 7 August 2012, the plaintiff, N K, was driving a motor vehicle on the N1 Freeway between Gariep Dam and Springfontein in the Free State, when he was involved in a motor vehicle accident, as a result of which he sustained injuries to his neck, shoulder and chest, as well as multiple abrasions and contusions.

[2] The plaintiff issued summons against the defendant, in which he claimed damages under various heads, namely past hospital and medical expenses, estimated future hospital, medical and other related expenses, future loss of earnings/earning capacity and general

damages.

The merits of the matter were settled on the basis of 80/20% in favour of the plaintiff, and an order to this effect was previously granted by the court. The parties appear to have settled the other heads of damages claimed by the plaintiff but were unable to agree on the plaintiff’s future loss of earnings/earning capacity. The matter accordingly proceeded only in this respect. Adv MH Van Heerden represented the plaintiff, and Adv SE Motloung represented the defendant.

BACKGROUND

[3] The plaintiff is a Congolese national who, at the time of the accident, had refugee status in South Africa. He moved to South

Africa in 2005 as a result of strife in the Democratic Republic of Congo (DRC). Prior to coming to South Africa, he held various jobs, from teaching at a school to long distance driving in Ruanda for Caltex and Shell, the latter position included driving with hazardous materials, such as petroleum. He then moved back to his home in the DRC where he farmed with animals and coffee.

[4] He has worked in various jobs in South Africa, ranging from gardener, cleaner, labourer and security officer to long distance driver. He obtained his heavy duty driver’s licence in South Africa in February 2012. A month before the accident on 7 August 2012 he secured employment with Lionel’s Veterinary Services (Lionel’s) as a long distance driver, delivering veterinary supplies across South Africa. He returned to work for Lionel’s after the accident, and remained with them until December 2012.

[5] The parties could not agree on the plaintiff’s entitlement to general damages and referred the matter for determination to the Health Professionals Council of South Africa. The latter found that the plaintiff suffered soft tissue injuries which do not qualify as a serious injury and that the plaintiff was not entitled to general damages. The plaintiff amended his Particulars of Claim thereafter, claiming an amount of R483 400.00 in respect of future loss of earnings and earning capacity, which amount was calculated by the actuarial firm engaged by the plaintiff. Thereafter the plaintiff’s legal representatives discovered an error in the calculation of this amount, and served a notice of intention to amend his Particulars Claim. The defendant did not oppose such an amendment which then took effect. The plaintiff now claims an amount of R1 009 700.00 in respect of past and future loss of earnings. At the end of the trial, Mr Motloung indicated that the defendant will furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996. At the time he testified the plaintiff still held refugee status in South Africa, valid until 2023, although it appears that he no longer lives in South Africa

EVIDENCE FOR THE PLAINTIFF

[6] The plaintiff testified in support of his claim and also called three witnesses. They are Dr T Le Roux, an Orthopaedic Surgeon, Ms Elsabet Bester, an Occupational Therapist and Mr Johan Benade, an Industrial Psychologist. The plaintiff also engaged Munro Actuaries to prepare an actuarial calculation of the plaintiff’s past and future loss of income. This report was admitted into evidence with the consent of the defendant, who indicated to the plaintiff that he need not call the evidence of the actuary. Dr Le Roux testified about the mechanics of how the plaintiff’s injury affects his ability to continue as a long distance driver. In his view it would be very difficult for the plaintiff to effectively and adequately perform in that capacity. He would be able to work better as a short distance driver, as he would be able to stop and walk around to relieve the pain in his neck, shoulder and back. Dr Le Roux was of the opinion that the plaintiff suffered a serious long term injury, which would not improve. In relation to the Whole Person Injury (WPI), he assessed the plaintiff’s injury to be 8%. The defendant’s threshold for qualification as serious injury in respect of loss of amenities is a WPI of 30%.

[7] Ms Bester’s view regarding the impact of the plaintiff’s injuries is similar to that of Dr Le Roux. She concurs that the plaintiff will not be able to continue working maximally as a long distance driver, and considers that he would be able to drive short distances, preferably driving newer trucks which have many technical features to improve driver safety and comfort. Short distance driving would, however, result in a reduction of the plaintiff’s income.

[8] Mr Benade prepared his report in May 2019, and provided detailed information regarding the plaintiff’s employment history, the plaintiff’s injuries sustained in the accident, as well as a summary of the reports & opinions of the other experts engaged by the plaintiff, with regard to the impact of the accident on the plaintiff’s ability to perform his pre-morbid job requirements, and hence reach his pre-morbid career potential. Mr Benade concluded that as a result of his injuries, the plaintiff’s

competitiveness in the open labour market was compromised on a permanent basis as a driver and a Security Officer Grade C. Should he lose his employment, he will have difficulty competing with individuals who do not suffer any impairment and who hold the same or higher level of education as the plaintiff. Mr Benade set out, in his report, his calculations of the plaintiff’s loss of income, under the headings of Pre-Morbid Remuneration and Post-Morbid Remuneration, based on employment history, information and payslips furnished to him by the plaintiff. This was used as the basis for commissioning the actuarial calculations and report done by Munro Actuaries.

[9] The plaintiff in his testimony confirmed the injuries he sustained in the accident, as well as his employment history, as recorded by Mr Benade. At the time of the accident, he was employed by Lionel Veterinary Supplies. He resumed duties with them a month after the accident, but resigned shortly after that, due to an argument with the manager. He was asked to leave immediately but was paid until the end of that year (2012). The argument was not related to his injuries. He detailed his subsequent employment, as set out by Mr Benade. He worked for four different companies, post-accident, after which he left South Africa and went to Zimbabwe. He continues to work in Zimbabwe, where he buys livestock in the rural areas and sells them in the towns. From questions by the court and questions by the defendant arising therefrom, it seems that some physical labour is involved at times, in loading these animals onto the truck.

The plaintiff alleges that he makes USD 150 per month from this business.

[10] The defendant closed its case without calling any witnesses, in spite of having engaged experts who prepared reports and even participated in the compilation of Joint Minutes with the plaintiff’s experts. These witnesses are Dr TS Bogatsu, an Orthopaedic Surgeon, Ms Success Moagi, an Occupational Therapist and. Ms Moipone Kheswa, an Industrial Psychologist. At the commencement of the trial, Mr Motloung advised that the defendant accepts the methodology employed by the plaintiff’s actuaries in the new actuarial report that was handed up, but disagrees with the figures arrived at. The new report was compiled as a result of an error in the calculation of the plaintiff’s loss of earnings, which I alluded to earlier in this judgment. Very little of the defendant’s version was put to the plaintiff’s witnesses. Save for indicating to Dr Le Roux and Ms Bester that the defendant’s case would be that the plaintiff resigned from his second job, no other aspect of the defendant’s version was specifically put to the witnesses.

[11] I turn to deal now with the Joint Minutes by the various experts for the plaintiff and the defendant. The Orthopaedic Surgeons, Drs Le Roux and Bogatsu, who examined the plaintiff on 26 March 2015 and 18 July 2016 respectively, were in agreement on most aspects, including the nature of the plaintiff’s injuries, the treatment he received, his present complaints and the physical examination undertaken by each of them. They also agreed that the plaintiff’s injuries have stabilised and that there will be no deterioration or improvement. Although both of them agreed that the plaintiff was employed in the open labour as a driver and that he will be able to continue as such until retirement age, Dr Le Roux was of the view that he was restricted as he would be unable to drive very long distances and carry or load heavy articles.

[12] With regard to the Occupational Therapists (OT’s), it is noted that Ms Bester assessed the plaintiff on 26 March 2015 (some 19 months after the accident) and Ms Moagi assessed him on 18 July 2016, approximately four years after the accident. It is also noted that there were differences in what the plaintiff reported to Ms Bester and Ms Moagi, concerning the pain he experiences, his post-accident employment history and employment circumstances. I take note that the respective assessments were approximately one year apart, so such differences may well be expected. The OT’s agree overall that the plaintiff has suffered some impairment in the motion of his upper limbs, that his sitting, standing and walking endurances were functional, except Ms Bester was of the view that long periods of sitting reportedly exacerbate his neck and back pain.

[13] With regard to his occupational capacity, the OT’s agree that the plaintiff is a licensed heavy duty truck driver and continues to drive. He reported to Ms Bester, in 2015, that he preferred local routes rather than long-haul driving, as the former allows him to saty at home with his family and to sleep in a bed as opposed to sleeping in the truck, which is less comfortable than a bed. He also complained of the negative impact of the pain on his ability to focus when driving long-haul routes. This in turn could impact on his and the public’s safety. To Ms Moagi, the plaintiff reported (approximately three years after the accident) that he was able to return to his pre-accident occupation a month after the accident and continued with his pre-accident duties. He also indicated that he secured employment with Lieben Logistics, as a driver, still driving long distances.

[14] The OT’s however agree that the plaintiff’s physical capacity is currently suited to sedentary, light and medium work provided that above-shoulder work is not required. They also agree that a heavy duty truck driver requires optimal motor and mental functioning for his protection and that of others, and that in the case of the plaintiff, the range of motion of his extremities, which is required for safe driving, has been reduced. The OT’s also agree that the plaintiff will benefit from intervention and rehabilitation, for example physiotherapy and biokinetics. Assessment by a clinical psychologist to address the plaintiff’s feelings of sadness, the provision of assistive devices to alleviate his pain and the provision of assistance with household duties, such as gardening and maintenance, are also recommended.

[15] The Industrial Psychologists (IP’s), Mr Benade and Ms Kheswa assessed the plaintiff on 26 June 2018 (report dated 27 May 2019) and 18 July 2016 (report dated 31 July 2019), respectively. They agreed on the plaintiff’s biographic details, employment history and the injuries he sustained in the accident. The IP’s agree that –

· The plaintiff’s competitiveness in the open labour market was compromised;

· As a result of the plaintiff’s long distance driving being impacted, this resulted in a loss of income;

· Should he lose employment (as at dates of assessment), he will have to compete with unimpaired individuals who hold the same or higher levels of qualification than the plaintiff;

· The plaintiff may be unable to convince prospective employers to employ him rather than able-bodied job seekers, and may therefore experience longer periods of unemployment;

· Even though the plaintiff has a qualification as a security officer, he is unable to undertake heavy physical work, and will have difficulty in finding security work which is sedentary or medium type of work;

· The plaintiff was not rendered unemployable by the accident, and although he will have restricted functionality, he would still be able to work as a driver. This is evidenced by the fact that, after the accident, he was able to secure employment as a (long distance) driver.

ISSUES

[16] This court is called upon to decide if the plaintiff:

16.1 has established a causal link between his injuries and the loss he claims to have suffered;

16.2 has proved that he is entitled to payment of the amount he has claimed

[17] As indicated the defendant failed to call any of its witnesses, although in the cross-examination of the plaintiff’s witnesses, it was clear that reliance was placed on the Joint Minutes. Mr Motloung accepted the actuarial report of the Munro Actuaries,

indicating that he only had a problem with the figures. This was never explained nor was any further mention made of this during the trial or even in his Heads of Argument. It is therefore unknown what his “problem” was with the figures in the actuarial report. The evidence of the plaintiff’s witnesses was not seriously challenged on material aspects, and the cross-examination

of them was perfunctory. In his Heads of Argument, Mr Motloung submitted on behalf of the defendant, that its “position and

submission” are based on the fact that the plaintiff was never dismissed from his employment, but resigned for reasons not related to his injury.

[18] Dr Le Roux and Ms Bester were asked if they knew that the plaintiff resigned from the jobs he had prior to their respective assessments and the reasons therefor. Both indicated that they did not ask the reason but would not be surprised if it was due to pain. Mr Benade was asked similar questions, and he indicated that the plaintiff’s resignation from Lionel’s Veterinary Supplies was not related to his injuries and his resignation from Liaison Logistics was due to his finding the work difficult, and also because he wanted to follow his wife to the United States of America, where she had gone. His resignation from Downing Marquees was due to his being required offload and erect the tents he had transported to the respective sites. This resulted in an argument, causing him to leave. The plaintiff confirmed in cross-examination what Mr Benade said about his leaving Lionel’s Veterinary Services. He also confirmed that in the subsequent jobs from which he resigned, he did not inform the employers of his physical injury and challenges.

[19] Mr Motloung further submitted that the plaintiff is not entitled to compensation merely because he was injured. He had to prove his patrimonial loss, which he failed to do. As alluded to earlier, the defendant’s version regarding the patrimonial loss suffered by the plaintiff was not specifically put to him or the other witnesses who testified in this matter. The furthest that Mr Motloung went in the cross-examination of the experts was to enquire whether they would encourage the plaintiff to sit at home because he was injured. Their answer was an emphatic “no”. That aspect was not explored any further, nor were the experts asked to comment on the negligible effect of the plaintiff’s injuries on his entitlement to claim any compensation. The defendant accepted the actuarial calculations by the expert engaged by the plaintiff’s and did not pursue the objection or disagreement with the figures presented by the actuaries.

[20] Mr Motloung relied on the case of Rudman v RAF 2003 (2) SA 234 (SCA) in support of his contention that the injuries of the plaintiff did not impair his ability to perform his duties as a driver, and that his disability did not give rise to loss. In that matter, Mr Rudman was the Chief Executive Officer (CEO) of a large farming enterprise, but also performed a number of other functions related to the farming operations. The court held that Mr Rudman’s earning capacity is made up of a combination of his various abilities and did not agree with his counsel’s argument which isolated the individual elements of Mr Rudman’s ability to earn a living, which were compromised and for which compensation was sought, without considering whether they result in a diminution of his earning capacity as a whole The court held that although he can no longer perform those functions, his real function was that of CEO of the farming enterprise, which he was still able to perform. Although he suffered a serious disability, his capacity to perform as a CEO was not impaired. The functions he previously performed, which he no longer can, would be able to be done by his sons and employees, under his supervision.

[21] Rudman’s case can be distinguished from this case, as the plaintiff’s occupation was that of long distance driver. His ability to perform as a long distance driver was compromised, although he could still be employed as a short distance driver. The experts were of the opinion that this would lead to a loss of income, as a long distance driver earns more than a short distance driver. The defendant argued for a dismissal of the plaintiff’s claim on the basis that he had failed to prove a causal link between his injury and actual patrimonial loss.

22] Mr Motloung also referred to the case of Malema v Road Accident Fund [2017] ZAGPJHC 275 to support his submission that the plaintiff resigned and was not dismissed from various jobs post-accident. Therefore the patrimonial loss he suffered could not be causally linked to his injuries. The facts in Malema are different from this case and can be distinguished from this matter. The plaintiff in Malema’s case returned to work, as a welder, a few days after the accident, but did not inform his employer of the accident. He continued to work as a welder for more than a year after the accident and then resigned. The court found that the opinions of the experts who testified for the plaintiff could not be reconciled with objective evidence such as hospital records, x-rays, etc. There was also evidence that the plaintiff had resigned for a better paying job. The court therefore found that the plaintiff had failed to establish patrimonial loss as a result of his injuries.

[23] Mr Motloung’s assertion that Malema was cited with approval in Bee v Road Accident Fund 2018(4) SA 366 (SCA) for the determination of future loss of earning is incorrect. Bee (in the majority judgment) did indeed deal with the calculation of the plaintiff’s loss of earnings and the various factors that were taken into account for such calculation. Both parties engaged various experts, amongst whom were forensic accountants. The various experts were in agreement about most aspects. The most important differences were those between the forensic accountants, Mr Edwards for the appellant and Mr Van der Elst for the respondent. They had each considered a large number of documents relating to the financial affairs of the appellant’s company in considering whether the accident had an impact on the performance of the company, and in turn impacted on the appellant’s loss of income.

[24] These experts eventually met and signed a joint minute where they were in agreement on nine aspects and differed on three aspects, all of which was recorded in the joint minute and signed by both experts. It later transpired that additional information became available and Mr Van der Elst, during his testimony in court, indicated that this would affect his agreement on certain matters in the joint minute. The court then went on to deal with the effect of the agreement between experts in a joint minute and referred to the case of Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161 and discussed the approach adopted by the court in that matter (per Sutherland J) with regard to the effect of the agreement between

experts. The court then commented that Sutherland J’s exposition has been approved in several subsequent cases, including in a decision of the full court of the Gauteng Division, Pretoria, in Malema v Road Accident Fund [2017] ZAGPJHC 275 para 92. It was in this context that Malema’s case was merely referred to by the court in Bee, and not cited with approval for the determination of future loss of earnings, as submitted by Mr Motloung.

[25] As indicated, the plaintiff and his witnesses were questioned about the plaintiff having resigned from three jobs post-accident. The plaintiff conceded that such resignations were not due to his injuries, although it seems he advised Mr Benade that this was partly the reason for his resigning. I have set out earlier the agreement between the experts from the different disciplines regarding the plaintiff’s injuries and the impairment of his ability to be a long distance driver. Dr Bogatsu, in his report indicated that with proper pain management, the plaintiff could continue working as a long distance driver. He was, however, not called, so this aspect could not be explored further. The general consensus amongst the experts is that the plaintiff was injured, suffered soft tissue injury with resultant pain and discomfort, which negatively affected his ability to continue working as a long distance driver. The further consequence was that he suffered a loss of income as he was then obliged to work as a short distance driver at a lower salary.

[26] The defendant did not engage an actuary to calculate the past and future loss of income suffered by the plaintiff, and specifically

indicated that they accept the report prepared by the actuary engaged by the plaintiff. The court had no insight whatsoever into the alleged problem that the defendant had with the actuarial calculations, and in the absence thereof, the court must accept that

the defendant ultimately agreed with the calculations of the actuary engaged by the plaintiff.

[27] One matter which arose during Mr Benade’s testimony and confirmed by the plaintiff, is that the plaintiff no longer lives in South Africa, but in fact conducts business in Zimbabwe as a livestock trader. This was not pursued by the defendant at all, nor did the plaintiff’s representative take that into account in the calculation of his future loss of earnings. From the evidence, it is clear that the plaintiff was gainfully employed continuously after the accident, bar the few months in between jobs that he was unemployed. I note that such periods of unemployment were not due to his inability to work but his inability to obtain work. In the one instance the vehicle he was driving was impounded, and in other instances, the agency he was registered with secured a few short term driving contracts for him, resulting in some periods of unemployment in between contracts.

[28] The plaintiff’s employment history indicates that he has various skills which he has used over the years to earn an income.

The impression one gains from his personal biography and employment history is that he is quite the entrepreneur. He alleges that he earns USD150 per month from his business endeavours in Zimbabwe, which is considerably less than what he could have earned, even as a short distance driver. It would have been expected of the parties to interrogate this aspect further. The failure, especially by the defendant to do so, must be accepted as an indication that the parties did not consider it significant.

[29] Mr Motloung’s submissions, on behalf of the defendant, in his Heads of Argument that the plaintiff’s resignations from his various jobs indicates that he there is no causal link between his injuries and the patrimonial loss he claims, is an argument that is raised rather late. This was not fully explored with either the relevant experts or with the plaintiff himself. The Joint Minutes by the various experts in which they record their agreement on the issues I have outlined above is binding on both parties. Mr Motloung clearly relied on these agreements during the course of his cross-examination of the plaintiff and his witnesses. In the absence of any meaningful challenge by the defendant to the case presented by the plaintiff, the latter is entitled to proceed on the basis that the evidence he presented has been accepted by the defendant. The court must also accept that the defendant has no answer to the plaintiff’s case. The court finds therefore that the plaintiff established a causal link between his injuries and his loss of income, as well as his entitlement to payment of the amount he claims.

[30] In the circumstances, the following order is made:

30.1 The defendant is ordered to pay to the plaintiff the amount of One Million Nine Thousand and Seven Hundred Rand (R1 009 700.00), within sixty (60) days from the date of this order;

30.2 The defendant shall provide the plaintiff with an Undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996, limited to 80% of the costs for the future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service to him or supplying of goods to him, arising out of the injuries sustained by him in the accident on 7 August 2012;

30.3 The defendant shall pay the plaintiff’s costs of the action, such costs to include:

30.3.1 all costs attendant upon obtaining payment of the capital amount and obtaining the undertaking referred to in 30.2;

30.3.2 the taxed or agreed fees of the plaintiff’s experts listed below, including their qualifying fees and all reasonable and necessary costs relating to the procuring of the expert reports and all reasonable costs attendant thereupon, including travel costs and preparation for trial.

Experts:

Dr Theo Le Roux (orthopaedic surgeon)

Elsabet Bester (occupational therapist)

Johan Benade (industrial psychologist)

Munro Forensic Actuaries (did not testify)

30.3.3 all reasonable costs attendant upon the employment of senior counsel;

30.4 The defendant shall pay interest on the capital amount reflected in 30.1 above, at the prescribed rate of interest Sixty (60) days from the date of this order to date of payment;

30.5 In the event that costs are not agreed, the plaintiff shall be entitled to serve a notice of taxation on the defendant’s attorneys of record

30.6 The payment of legal costs shall be due and payable Fourteen (14) days from the date that such costs are agreed or of the affixing of the Taxing Master’s allocatur on the Bill od Costs, whichever is applicable;

30.7 Should the legal costs referred to in 30.6 not be paid on the due date, then the defendant shall pay interest thereon at the prescribed rate from due date to date of final payment,

__________________

S. NAIDOO, J

On behalf of Plaintiff: Adv. MH Van Heerden

Instructed by: Sohn and Wood Attorneys

Cape Town

C/O Honey Attorneys

Honey Chambers

Northridge Mall

Bloemfontein

(Ref:HLB/nvr/J03394)

On behalf of Defendant: Adv. SE Motloung

Instructed by: Maduba Attorneys

2nd Floor, 77 Kellner Street

Westdene

(Ref: MA/RAF/1089)