Petrus v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cronjé AJ
• Judgment Date: 18 August 2023
• Citation: 2023 JDR 3199 (FB)
• Hearing Date: 25 July 2023
• Docket Number: 3901/2021
• Court: Free State Division, Bloemfontein

Cronjé AJ:

2023 JDR 3199 p2

INTRODUCTION

[1]

Plaintiff is a major male who instituted action against the Road Accident Fund (“the Fund”) pursuant to a motor vehicle accident that took place on 13 December 2018 along a road at Senekal, Free State Province. Plaintiff was a passenger in one of the vehicles at the time of the accident.

[2]

The Fund accepted liability for 100% for the Plaintiff’s agreed or proven damages. The Plaintiff received an undertaking in respect of future medical expenses as provided for in s 17(4)(a) of the Road Accident Fund Act, 56 of 1996.

[3]

The only issues to be determined is the past and future loss of earnings, and general damages.

[4]

The parties agreed that it was not necessary for any experts to testify under oath and that affidavits of the experts will be admitted under Rule 38 of the Uniform Rules of Court. I requested original affidavits of the experts and same was filed with the Registrar of the High Court on 28 July 2023. I am satisfied that the affidavits comply with the requirements and same is admitted as evidence as read with their reports.

[5]

Ms Greyling-Boonzaaier (for the Plaintiff) and Ms Banda (for the Fund) referred to the various comments and findings of the respective experts and case law in support of their submissions. I am indebted to both for their considered and able arguments.

REPORT OF DR AUBREY MAKUA

[6]

He assessed the Plaintiff on 23 May 2022. The Plaintiff complained of a painful left knee and ankle. Plaintiff walks with a limb and the left knee joint had limited

2023 JDR 3199 p3

flexion. The leg itself has a diminished power ratio of 2/5 (two out of five). The Plaintiff reached maximum medical improvement (MMI) and in respect of the restricted knee flexion he found a 12% whole person impairment (WPI). In respect of post-traumatic mood (stress) disorder (PTSD), he found a 5% WPI. The Plaintiff’s total WPI is therefore 17%. In the serious injury assessment report (RAF.4), he found that Plaintiff suffered a serious long-term impairment or loss of bodily function on the narrative test.

REPORT OF DR MICHAEL A SHER

[7]

He assessed the Plaintiff on 26 May 2022 and reviewed the Itemohen hospital notes, Dihlabeng hospital notes, biographical notes, the RAF.1 clinical notes and the RAF.1 third party claim form. The left knee’s lateral tibia plateau has a fracture, which can be considered to be a severe injury. The complaints/symptoms of left knee pain is aggravated by weight bearing (the Plaintiff was markedly overweight (reported weight to be 220 kg)) leaving a walking time of 10 minutes. The Plaintiff’s excessive weight would probably be considered as a compounding factor. The left knee does not bend freely. He walks with a marked left leg antalgic limp. Taking into consideration the Plaintiff’s age, the knee status and his weight, the knee will probably regress in the short-term with increasing symptomatic and functional disability. A knee fusion would probably result in a measure of shortening. Conversion of the fused knee to an arthroplasty when he reaches 60 years of age would be a consideration. Due to the fact that he has limited qualifications and marketable skills, it is unlikely that he will find a full-time position.

REPORT OF MS TALITA DA COSTA

[8]

She is a clinical psychologist with a special interest in neuropsychology. A psychometric test and interview was conducted on 23 May 2022. The psychological results revealed that he suffers from mild depression, severe

2023 JDR 3199 p4

anxiety, and PTSD. He had no pre-accident medical and/or psychological impairments. His quality of life has been impacted by the accident. The extent of the post-accident impairment is found in para 12.1 – 12.4 of her report. She notes that he worked as a general worker and is presently unemployed.

REPORT OF MS SHARI-LEE FLETCHER

[9]

She is an occupational therapist who conducted tests on 24 May 2022. The Plaintiff had pain in the lower left limb, was unable to bear full weight on the limb and had a significant limp. He will only be able to perform some tasks occasionally during a working day, which include standing, walking, climbing of stairs, half-kneeling and weight elevated work. He has limited education and a lack of marketable skills. Combined with his significant mobility restrictions, he would be unemployable in the open labour market. He would therefore not be able to compete with his peers. It is noted that allowance should be made for a loss of earnings in future for any recommended management procedures and rehabilitation.

REPORT OF MS LEE LEIBOWITZ

[10]

She is an industrial psychologist who assessed the Plaintiff on 23 May 2022. She took the pre-accident profile of the Plaintiff into consideration and states that anticipating the level to which an individual may have advanced in his occupation, several aspects play a role. These include familial background, developmental- and medical history, the individual’s socio-economic circumstances, overall functioning, cognitive-, psychological-, physical- and vocational history, job performance and career aspirations, as well as various external factors such as labour market conditions, the availability of promotional opportunities, employment policies, etc.

2023 JDR 3199 p5

[11]

His father had a Grade 8 qualification and was employed as a farmworker. His mother’s highest level of education is unknown and she too was a farmworker. His sister had a Grade 10 qualification and was unemployed. He repeated Grade 2 and 3, completed Grade 11 but failed Grade 12.

[12]

He has no formal training, nor does he hold a driver’s licence. When he was still able to work, it would be for 3 to 4 days per week as needed. Whilst working, his duties included general farm work and planting of seeds. He earned R100.00 per day for each day worked, and commencing on 1 December 2018 until date of accident. Taking his background into consideration as well as his level of education and pre-accidental employment history, he would have had to rely on his physical ability and psychological well-being to remain competitive.

[13]

With the history of his employment, she opines that he may have earned between R15 600.00 – R20 800.00 per annum if he worked 3 to 4 days per week. His earnings would have depended on various factors such as work context, hours worked, etc. If he worked on the national minimum wage scale, his earnings would have been around R54 264.60 per annum. [1] His earnings may have progressed to around R72 208.00 per annum by age 45 – 50. He would have received an annual inflated regulatory increase until retirement age of 65. She accepts that disregarding the accident, the Plaintiff would have experienced periods of unemployment and fluctuations in earnings during his career. The Plaintiff represents as an individual who has been rendered uncompetitive and vulnerable. His ability to compete for and sustain employment, has been significantly compromised and he would remain largely unemployed.

2023 JDR 3199 p6

REPORT OF MR WIM LOOTS

[14]

He is an actuary and took the report of Ms Leibowitz into consideration. He applied a 5% contingency deduction in respect of pre-accident loss, and a 20% deduction for future loss. It was not necessary to cap the loss.

[15]

He calculates the value of the loss of earnings as of 1 September 2022, had the loss not occurred, in an amount of R1 391 387.00 and if contingencies of 5% and 20% are applied, the loss amounts to R1 124 058.00.

SUBMISSIONS ON BEHALF OF PLAINTIFF

[16]

Mrs Greyling-Boonzaaier argues that if one considers the decisions of the SCA, a contingency amount of 0.5% per annum until date of retirement is applied. Based thereon, a contingency of 19.5% and the normal contingency of 5% should be applied. The contingency in the actuary’s report of 20% is therefore in line with the SCA decisions. He had no high level of education, was relatively young and it was uncertain what may have happened in future.

[17]

If he was able to obtain employment he would probably not have sustained it. From the hospital records it appears that he sustained an injury to the same knee after the accident which exacerbates his challenge to walk. She refers to the report of Dr Sher who was of the view that future treatment would not necessarily improve his condition. The fact that he struggles with his weight was a problem before he sustained the injury and he now has challenges in losing weight. She argues for an alternative contingency of 25% (from 20%). The calculation would then be R329 598.75 for past loss and at a contingency of 25% for future loss, he should be granted R988 796.25. His total loss would then be R1 058 138.65.

2023 JDR 3199 p7

[18]

She submits that the second injury is due to the primary accident that influenced his balance and made him unsteady on his feet. The lateral tib-fib injury amounts to a break into the knee. She submits that a 50% contingency would be extremely high. She submits that an amount of R600 000.00 for general damages would be appropriate.

SUBMISSIONS ON BEHALF OF THE FUND

[19]

Ms Banda, for the Fund, refers to a handwritten note of Dr Rantai, apparently dated 12 March 2020...