Nkau v Road Accident Fund
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Reid J |
| Judgment Date | 07 September 2023 |
| Citation | 2023 JDR 3433 (NWM) |
| Hearing Date | 06 June 2023 |
| Docket Number | RAF204/2020 |
| Court | North West Division, Mahikeng |
Reid J:
Introduction:
The cause of action occurred on 20 January 2017 at 21h00 at the intersection of Thabo Mbeki drive, Rustenburg when the plaintiff, a pedestrian, crossed the intersection. An unknown vehicle driven by an unknown person (the insured
2023 JDR 3433 p2
Reid J
driver) disregarded the red traffic signal (robot) and hit the plaintiff with the motor vehicle (the collision). The plaintiff sustained injuries and damages as claimed in this action.
Merits have been settled to the apportionment of 80/20 in favour of the plaintiff. An order was made to such an effect on 8 March 2023.
The defendant also provided an undertaking for future medical expenses resultant from the collision to be paid by the defendant, limited to 80%. This, similarly, was included in the court order dated 8 March 2023.
General damages were settled between the parties and the plaintiff was afforded damages in the amount of R400,000.00 (Four Hundred Thousand Rand), of which amount the 20% apportionment was already deducted. This was also stipulated in the court order dated 8 March 2023.
Adv D Smit appears on behalf of the plaintiff and Adv Setati appears on behalf of the defendant.
2023 JDR 3433 p3
Reid J
Issues before court
The issues left for the court to adjudicate is the damages occurred by the plaintiff with regard to:
Past medical expenses; and
Future loss of income and earning capacity.
The parties agreed that the past medical expenses are postponed sine dies and will be determined after the judgment of the matter currently being dealt with in the Constitutional Court dealing with past medical expenses. The plaintiff claims an amount of R83,731.89 (Eighty Three Thousand Seven hundred and Thirty One Rand and Eighty Nine Cents) for past medical expenses incurred by the plaintiff.
The only issue before court is the plaintiff’s future loss of income and earning capacity. Under this heading, the plaintiff claims an amount of R2,205,881.00 (Two Million Two Hundred and Five Thousand Eight Hundred and Eighty One Rand).
2023 JDR 3433 p4
Reid J
The plaintiff’s actuarial report by GW Jacobson Consulting Actuaries indicate that the plaintiff was employed as a water jet operator at the Impala Platinum Mine. He commenced employment on 23 March 2007. The plaintiff’s payslip dated 16 November 2016 indicates that he received a basic salary of R10,050.00 (Ten Thousand and Fifty Rand) per month at the time of the accident. In addition to his salary, he received the following benefits:
Annual bonus consisting of 100% of one month’s salary;
Living out allowance of R2,150.00 (Two Thousand One Hundred Rand) per month;
Retirement funding of 10.69% of his basic salary; and
Other income consisting of 27.84% of his basic salary.
In terms of the report from the Industrial Psychologist, Mr Wessels, dated 9 February 2021 the plaintiff returned to work in November 2017. He was subjected to a medical examination and was found to be incapable of returning to work. He was medically boarded on 2 November 2018.
2023 JDR 3433 p5
Reid J
The plaintiff has, to date, remained unemployed.
Future loss of income / earning capacity
The plaintiff requested that the expert affidavits as filed in terms of Rule 36(9) of the Uniform Rules of Court be accepted by virtue of affidavits of the experts in terms of Rule 38 of the Uniform Rules of Court. The defendant has not filed any opposing expert reports and it presented no opposing expert evidence. The expert evidence produced by the plaintiff is thus uncontested before court. Consequently, I granted an order that the plaintiff’s experts’ evidence is accepted by means of affidavits from the experts as provided for in terms of Rule 38.
The plaintiff delivered expert reports from the following experts:
Dr Morule – Orthopaedic Surgeon;
L Toerien – Occupational Therapist;
Dr Berkowitz – Plastic Surgeon;
Wessel Wessels – Industrial Psychologist;
M Mazabow – Neoropsychologist; and
2023 JDR 3433 p6
Reid J
Jacobson Actuaries.
The defendant did not object to the request that an order be granted that the expert affidavits be accepted in terms of Rule 38 and an order was made accordingly.
The plaintiff sustained the following injuries as a result of the collision:
A closed fracture in the proximal third segment of the shaft of the right humerus;
A closed fracture of the proximal right tibia; and
Soft tissue injuries to his neck.
The expert evidence can be summarised as follows with reference to the content of the plaintiff’s expert reports.
Dr Morlule, the plaintiff’s Orthopaedic Surgeon states inter alia that:
“He informed me that he returned to work at the
2023 JDR 3433 p7
Reid J
beginning of February 2018. He worked for only a few weeks before being declared permanently incapacitated, according to him. He left the company at the end of February 2018, on permanent incapacity for underground employment.
. . .
He is unable to lift heavy objects on the dominant arm due to pain he is unable to rise his arm to the shoulder level due to pain at the right shoulder. The use of his dominant arm is severely restricted. He is unable to walk long distances as tis causes pain on the right knee and lower leg and thigh. He was declared incapacitated for underground work in 2018.
. . .
He has severe restriction of the right shoulder joint movements due to the malunion.
. . .
The right tibial fracture. Although open reduction and internal fixation was undertaken, the fragments are malunited with unacceptable varus deformity at the fracture site of 14 degrees.
The patient already has severe post-traumatic chrondromalacia in the medical compartment of the right knee or very early post-traumatic arthrosis.
. . .
He is not fit for underground manual labour or work on the open labour market.
. . .
He is fit for a sedentary type in a protected
2023 JDR 3433 p8
Reid J
environment, the exact type of which to be decided in consultation with an occupational therapist.
. . .
Following the above, even working in a sedentary type of employment in a protected environment, the patient’s limitation at the right shoulder, on a dominant arm will progressively diminish rendering him unable to work beyond the age of sixty years.”
Leazanne Toerien, the plaintiff’s Occupational Therapist, states inter alia:
“The client has not received optimal intervention as of yet. It is imperative that he complies with the recommended surgical and conservative intervention recommended by Dr Morule. The recommended, surgeries, recovery and rehabilitation period will take a long time, and there will be a long period that he will remain dependent on others for assistance in his ADL’s (Assisted Daily Living). . . However, when considering the fact that there are signs of arthrosis, as well as the pathology present in the cervical spine and the nature of the surgery required in the knee and right shoulder, he will always continue to experience some restrictions and he will, therefore, need assistance with heavier activities.
. . .
Based on his performance on the standardised
2023 JDR 3433 p9
Reid J
physical assessment, the client does not meet the inherent demands of his pre-accident employment as a waterjet operator. He specifically does not meet the standing, walking and load handling requirements of the position. It is therefore justified that the mine doctor recommends an alternative position on the surface.
. . .
Even if the client complies with all the recommended interventions, he will remain best suited for light demand work, with low moderate mobility and agility demands in the long-term, due to the pathology present in the right knee and cervical spine. The client’s work options are therefore significantly limited, and he will not be able to return to his pre-accident type of employment or similar employment in future.
. . .
His work options are significantly limited and his limited physical ability. When considering the extensive surgical intervention needed, long recovery periods and long-term rehabilitation needed, his return to work will even be further delayed. Furthermore, when considering his physical limitations, age education and work experience his future work options have been significantly affected, and it is unlikely that he will be able to secure employment in the open labour market in future.
. . .
2023 JDR 3433 p10
Reid J
When comparing the previous assessment’s results, with the current results, it is evident that his functional capacity has deteriorated with time. The strength in his right hand has deteriorated and he now walks with an antalgic gait pattern, due to the increased pain levels in the right knee. He presents with reduced capacity for agility tasks such as crouching and elevated work, as well as reduced capacity for mobility tasks such a walking and stair-claiming. He moreover presents with reduced capacity for handling loads, as he should handle high ranges of medium demand before, and can only handle low ranges of medium demand now.
. . .
In my opinion, the client still does not meet the inherent demand of his pre-accident employment as a waterjet operator. As his work required high demands of upper limb function and prolonged waking over uneven terrain, he will probably not be able to work in a similar position again in future.
. . .
The client’s future work options have been significantly reduced by the injuries sustained in the accident under review. He will only be suited for sedentary-light physical demand work, with low mobility and agility demands in the future.
When considering his limitations on the one side and his age,...
To continue reading
Request your trial