Semela v Road Accident Fund (2584/2019) [2021] ZAFSHC 209 (8 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case number: 2584/2019

In the matter between:

KENOSI

ROWINA SEMELA Plaintiff

and

ROAD

ACCIDENT FUND Defendant

HEARD ON: 11 & 12 MAY 2021

JUDGMENT BY: MATHEBULA, J

DELIVERED ON: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 08 September 2021. The date and time for hand-down is deemed to be 08 September 2021 at 09:00

Introduction

[1] In this matter the plaintiff instituted an action for damages in respect of bodily injuries she sustained in a motor vehicle accident which occurred on 10 May 2017. Negligence is no longer an issue because the parties have settled that aspect.[1] The defendant rejected the serious injury assessment and as such the claim for general damages had to be postponed. The only issues referred to me for determination is past and future loss of income.

Evidence

[2] The plaintiff testified in person and also led evidence of the following expert witnesses namely Dr L.F. Oelofse an Orthopaedic Surgeon, Mr A. Lamprecht an Industrial Phycologist and Mr G.J. Mellet an Actuary. No evidence gainsaying that of the plaintiff was adduced. I hasten to add that for all intents and purposes the matter was heard on an undefended basis.

[3] The plaintiff then 37 years old, was injured in a motor vehicle collision. She sustained a mild cervical spine with chronic headaches as well as the left knee injury. She was booked off work for a period of two (2) weeks. No surgical procedures were performed on her for any of her injuries. It appears that she does not suffer from headaches anymore. The plaintiff was able to resume duties at the Municipality where she is employed on a permanent basis as an Assistant Sports Officer and as a part-time Gym Instructor at Virgin Active.

[4] The only complaint is that she is experiencing pain on the knee and cannot walk for long distances. She also cannot perform some of the exercises she used to do. This discomfort is treated conservatively by taking pain killers and occasional visits to the Physiotherapist. Her injuries have had minimal impact on her employment at the Municipality. Her job there is substantially administrative in nature. Even when she has to perform exercises, it is on rare of occasions. It is her part-time job as a Gym Instructor that is affected by the injury. That too, the impact is not huge because she has made adaptations to that effect. She has resorted to modifying training methods to more verbal instructions with less demonstrations. Although there has been a decline of income from her private job, that is substantially attributed to the Covid-19 pandemic. It must also be borne in mind that she operates in an area of high income fluctuation.

[5] The plaintiff was examined by Dr Oelofse who also compiled a medico-legal report. According to him there is evidence of osteoarthritis of the left knee joint which cannot be treated by conservative treatment. He recommended treatment which includes arthroscopy and debridement of the knee joint with a possible medial meniscus repair, total knee replacement, physiotherapy and rehabilitation.

[6] Turning to her employability he is of the opinion that she must be accommodated in permanent light duty environment. Accordingly, her injuries have negatively affected her as a personal trainer and transformed her into an unfair competitor in the labour market. Although she would have been employed at the Municipality until sixty-five (65) years, this has been reduced to sixty (60) years because of the injury.

[7] Mr Lamprecht also assessed the plaintiff and compiled a medico-legal report. The key summary is that the plaintiff has been compromised in her employment. She will continue to work as personal trainer using adaptive methods. Equally she will also continue to serve the Municipality as it seems that she will cope with it. Although deferring to other experts, it was his opinion that early retirement could be expected.

[8] The actuary, Mr Mellet also compiled an actuarial report based on the information from other experts. Clearly acting on instructions, he calculated the loss of income taking into consideration that the plaintiff will retire from the Municipality at age sixty (60) not sixty-five (65). The difficulty arose concerning the income earned as a personal trainer. This is due to the fluctuating nature of the number of classes allocated to the plaintiff.

Discussion

[9] It is a long established principle that the primary purpose of experts is to assist the court in matters that the court does not possess the necessary knowledge to decide the issue. These are people who possesses above average skill and experience. I have no issue with the expertise of the experts who testified in this matter. The reasons for the opinion of the expert must be acceptable and the court is not bound by the expert testimony. Such expert evidence is one of the many to be considered in order to determine probabilities.

[10] The plaintiff relies on the evidence of Dr Oelofse an Orthopaedic Surgeon. According to him the radiological examination detected early degenerative change femoral patella joint space with small superior osteophytes on the patella. In addition, osteophytes associated with the medical joint space and slightly narrow medical joint space. Therefore, he concluded the conservative treatment which will not be effective in the treatment of the injury sustained by the plaintiff. He determined the probability for the degeneration in her knee joint to progress to end stage osteoarthritis within her lifespan at above fifty percent.

[11] He went on to conclude that the left knee injury will have a negative impact on her amenities of life, productivity and working ability in the future. The important part of his many conclusions is that given her injuries, the plaintiff must be accommodated in a “light duty/neck-friendly environment, the patient (plaintiff) will be able to work until the retirement age of sixty (60) years”.[2]

[12] The evidence tendered is that the injury to the neck has completely healed and does not present any problems. As such there is no need for a neck-friendly environment. Obviously that cannot be the basis for early retirement. This brings us to the reasoning of Dr Oelofse on her early retirement based on the left knee injury. In his report he stated that the injuries had a direct impact on her expertise as a Trainer and Instructor in the gym. Further that the injury is serious. However, on her productivity and working ability, he deferred to the opinion of the Occupational Therapist. None was called. What is apparent is that it was out of his depth to express an opinion on matter of this nature.

[13] I encounter problems with his conclusion that the plaintiff will retire at sixty (60) which is not supported by any cogent reasoning. In fact, it will appear that such conclusion was made on the back of a neck injury which has since healed. The plaintiff is not employed in an environment which requires her to perform physical labour. Even when it is demanded of her to demonstrate some of the exercises, it is only on few occasions. It is unclear on what basis did he conclude that the left knee injury will affect her chances and promotion in her current work at the Municipality.

[14] As far as her work as a Trainer is concerned, she testified that she has adapted a number of exercises to accommodate her situation. It does not seem to be the case that she suffered any loss on this front. On the basis of the evidence before me, she will be able to retire in this capacity at the age of sixty (60) years.

[15] There may well be a need for early retirement but there is no logical reasoning why it is perched at sixty (60) or not earlier or even later. This court is told that the possibility of that happening is high without supporting such statement. Typical of evidence of an expert, his is nothing but suppositions. Apart from that, the very Orthopaedic Surgeon defers on critical aspect pertaining to this issue to other experts. Assessing this evidence in totality, I am not satisfied that the plaintiff has proved any case that such early retirement will take place at sixty (60) years. I am willing to accept that it may take place but possibly later at sixty-two (62) years.

[16] It must be borne in my mind, as counsel for the plaintiff correctly pointed out that the issue of early retirement was brought to the fore by Dr Oelofse. We part ways on his submission that he is an expert in his field therefore his conclusion is correct. The purpose of an expert is well documented and his role in the overall determination of a matter. The court is not bound to follow the evidence of an expert where it does not measure up to the set criteria. In this matter there is no logical reasons for this court to follow the expert opinion of Dr Oelofse as stated in his report and oral evidence. That does not mean I reject it in toto. It is the calculation of such period that I found to be lacking in substance. The ultimate responsibility rests with the court to make a just and fair decision on the matter.

[17] The approach which I will follow was set out by the Supreme Court of Appeal in Road Accident Fund v Guedes[3] in the following terms: -

“It is trite that a person is entitled to be compensated to the extent that the person’s patrimony has been diminished in consequence of another’s negligence. Such damages include loss of future earning capacity (see for example President Insurance Co Ltd v Mathews 1992 (1) SA 1 (A) at 5C-E). The calculation of the quantum of a future amount, such as loss of earning capacity, is not, as I have already indicated, a matter of exact mathematical calculation. By its nature such an enquiry is speculative and a court can therefore only make an estimate of the present value of the loss which is often a very rough estimate (see for example Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A). The court necessarily exercises a wide discretion when it assesses the quantum of damages due to loss of earning capacity and has a large discretion to award what it considers right. Courts have adopted the approach that in order to assist in such a calculation, an actuarial computation is a useful basis for establishing the quantum of damages.

[18] Given the totality of evidence, counsel for the plaintiff submitted that a higher contingency percentage of thirty-five (35%) percent should be applied. I have already made a determination that the plaintiff has a greater chance of performing her duties much longer and without hindrance than as stated by Dr Oelofse. In the manner the actuarial calculations are made, I deem it appropriate that the fair contingency percentage be revised downwards to twenty (20%) percent. She has about eighty (80%) percent chances of performing her duties in an injured scenario.

[19] In this result, I make the following order: -

19.1. Adjudication of General damages is postponed sine die.

19.2. The Defendant is ordered to file their Notice of Rejection of Serious injury (if any) within the following ten (10) business days, from date of this order.

19.3. The Defendant is liable for payment to the plaintiff in the amount of R723,777.00 in respect of past and future loss of income;

19.4. The defendant is ordered to furnish to the plaintiff an undertaking in terms of Section 17(4)(a)of the Road Accident Fund Act 56 of 1996, for 100% of the cost of the future accommodation to the Plaintiff in a hospital or nursing home or the treatment of or the rendering of a service or the supplying of goods to the Plaintiff arising out of injuries sustained by him in the motor vehicle collision mentioned above, in terms of which undertaking the defendant will be obliged to compensate him in respect of the said cost after the cost have been incurred and on proof thereof.

19.5. The defendant to pay the plaintiff’s taxed or agreed party and party costs on the High Court scale until date of this order which costs shall include: -

19.5.1. The reasonable preparation/ qualifying/ accommodation/ travelling and full reservation fees and expenses (if any) of the following experts, namely: -

19.5.1.1. Dr. L.F. Oelofse (orthopaedic surgeon);

19.5.1.2. Mr. G.J. Mellet - SNG Argen Actuarial Solutions (Actuary);

19.5.1.3. Dr. A. Lamprecht (Industrial Psychologist);

19.6. The payment provisions in respect of the aforegoing are ordered as follows;

19.6.1. Payment of the capital amount shall be made without set-off or deduction, within 180 (hundred and eighty) calendar days from date of the granting of this order, directly in the trust account of the plaintiff’s attorney of record by means of electronic transfer, the details of which are the following:

PEYPER AUSTEN INC. t/a

PEYPER LESSING

ATTORNEYS

TRUST ACCOUNT

BANK:

FIRST NATIONAL BANK

BRANCH CODE: 241 138

ACCOUNT NO: 627 9907 0752

REFERENCE: PEYPER / SP0067

19.6.2. Payment of the taxed or agreed costs shall be made within 180 (hundred and eighty) days of taxation and shall likewise be affected into the trust account of the plaintiff’s attorney.

19.7. Interest shall accrue at the rate of 7% per annum calculated from date of this order.

19.8. Taxed or agreed costs, in the event that costs are not agreed: -

19.8.1. The Plaintiff shall serve a notice of taxation on the defendant’s attorney of record and;

19.8.2. The Plaintiff shall allow the defendant 180 (hundred and eighty) calendar days to make payment of the taxed costs.

M.A. MATHEBULA, J

On behalf of Plaintiff: Adv. H De La Rey

Instructed by: Peyper Lessing Attorneys

Bloemfontein

On behalf of Defendant: No appearance

[1] Page 61 of the Pleadings Bundle.

[2] Page 33 of the Index: Notices.

[3] 2006 (5) SA 583 (SCA) at para [8].