TODAY'S ALERTS

Facts: The claim is for damages involving a minor child. A truck collided with a minor boy child, Zion, who was a pedestrian. At the time Zion was seven years old. The plaintiff is his biological mother who instituted the action, on his behalf, and claimed general damages, past and future medical expenses, future loss of income and/or reduction of earning capacity. The only issue for determination is the contingency deductions to be applied on the past and future loss of earnings claimed by the plaintiff.

Contingencies: The plaintiff contended that a contingency deduction of 25% to the uninjured earnings and 40% to the injured earnings should be applied. Contrary to that contention, the defendant contended that a 30% pre-morbid and 30% post-morbid contingency should be applied. The suggested application of the sliding scale before Zion enters the labour market is not normal practice. The actuaries based their assumptions on Zion’s career and earnings as projected by industrial psychologists. The court is not persuaded that the defendant’s submission in this regard is reasonable and accordingly reject it. An occupational therapist testified that Zion would require frequent breaks and postural changes to alleviate pain in his right ankle, should he not receive successful treatment by the time he enters the open labour market. He will not be considered an equal competitor when he eventually enters the open labour market in an economic situation which already provides limited work opportunities. He will enter an open labour market a year later.

Findings: Based on the opinions of the industrial psychologists, the court will be justified in finding that Zion must be adequately compensated because, because of the injury, he will be disadvantaged on the labour market such that, were he to lose a job, it would take him longer to secure alternative employment or he would struggle to secure similarly paid employment. The contingency deductions of 25% pre-morbid and 40% post-morbid proposed by the plaintiff are reasonable and consistent with the proven facts and the risk factors relevant to the case.

Award: The defendant shall pay an amount of R915,925 (in addition to the interim payment of R350,000 made in terms of court order) in full and final settlement in respect of the plaintiff’s claim for loss of income.

Facts: The plaintiff, then a 16 year old male person, hit a pothole on the road surface whilst driving his motorcycle. The issue of merits was previously settled. The only heads of damages for determination is the issue of the plaintiff's general damages, future medical and hospital expenses and loss of earning capacity. The defendant disputed the plaintiff's claim, contending that the plaintiff sustained minor/non-serious injuries from which he had recovered and that there is no causal link between the pain the plaintiff now experiences and the accident.

Expert evidence: It was Dr Ziervogel's evidence (for the plaintiff) that there is torn cartilage in the knee. He disagreed that soft tissue injuries are not serious injuries as ligaments are serious injuries. In response to his evidence that the doctors did not look for ligament injuries, he was confronted with the stress view X-rays that were done according to Dr Heyns and no torn ligament was found. He was confronted that he is unable to provide facts, his opinion is based on assumption, to which Dr Ziervogel answered: that is how doctors in the world operate. The defendant led the evidence of Dr Agbazue (orthopaedic surgeon). Dr Agbazue consulted the plaintiff and established that he sustained minor soft tissue injuries, skin lacerations and sprains during the accident. The doctor testified that these injuries are non-serious injuries, hence the plaintiff was discharged from the hospital within five days. Dr Agbazue testified that there was consensus between himself, Dr Heyns and Dr Preddy, who are the plaintiff's orthopeadic surgeons, that the injuries sustained were non-serious.

Other factors: Dr Agbazue strongly disputed the opinion of Dr Ziervogel, which he testified was not supported by the articles that Dr Ziervogel himself relied upon, rather the second article contradict Dr Ziervogel's opinion of arthroscopic debridement of the meniscus. He also testified that the articles that Dr Ziervogel relied on are not scientific. Dr Agbazue testified there is no science or scientific basis for Dr Ziervogel to say that a Grade 1 injury can later develop serious sequelae. Credible scientific studies which were internationally researched with thousands of patients across all nations were done, which show that a grade1 injury has complete recovery. The plaintiff failed to proof on a balance of probabilities, that the soft tissue injuries he sustained caused the sequelae contended for. The plaintiff however sustained soft tissue injuries in the accident, which caused the plaintiff pain. The amount of R350,000 is a fair, just and reasonable award for general damages. The claim in respect of future medical expenses and payment for loss of earnings is dismissed.

Good expert testimony: Dr Agbazue's evidence was logical, chronological, based on facts and he made allowances for the plaintiff in his testimony, he was not stoic in his responses, every response had a logical basis, there were scientific articles which supported his opinion based on examination and experience, objective tests and even the plaintiff's expert Dr Preddy and Dr Heyns in their reports corroborate certain opinions. Dr Agbazue pointed out and explained when articles are indeed scientific articles, why those of Dr Ziervogel are not and how Dr Ziervogel's articles do not support his evidence. The court finds Dr Agbazue to be an expert, who is a reliable witness, and whose opinions are based on sound logical reasoning. The court rejects the evidence of Dr Ziervogel.

Award: The defendant is ordered to pay the plaintiff's general damages in the amount of R350,000.

Pre-accident: The appellant had obtained a BSc Electrical Engineering degree in 1994. He was the recipient of a prestigious bursary that afforded him formal and informal training and rotation thought different JCI Mining operations. He was appointed in the position of junior engineer in January 1996 and was in the process of training for purposes of obtaining his government certificate of competency when the accident intervened. He demonstrated exceptional ability in the workplace, so much so, that he was appointed to the position of fitting and turning foreman within one month, two months later to the position of acting engineer overseer, and shortly thereafter to the position of acting section engineer. Albeit that these were all temporary positions, these appointments reveal that his talents did not go unrecognised.

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Accident: In July 1996 the appellant was involved in a motor vehicle collision whilst en route to work. At the time, he was employed as a junior engineer at Western Areas Gold Mining Company Limited and was 23 years of age. He sustained a spinal injury in the collision which rendered him a quadriplegic and wheelchair bound for the remainder of his life. In the result, his budding career in mining engineering was cut abruptly short in its early stages. By virtue of his medical condition, the appellant was declared totally and permanently disabled.

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Issues: The respondent, Mutual Assurance, was (and is) the entity licensed in terms of section 30 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), for purposes of assessing and making payment of claims for compensation in relation to occupational injuries or diseases arising out of employment, inter alia, in the mining sector. A claim was made, which was later reviewed, which led to increased compensation being paid to the appellant in respect of his monthly pension (the revised award). The revised award included, amongst others, benefits such as an annual bonus and housing allowance, as envisaged in section 63 of COIDA, as well as an augmentation benefit and a constant care allowance. However, this revised award was reviewed, which led to a reduced award which led to an objection hearing before the tribunal, which delivered a judgment that forms the subject of this appeal in which it dismissed the appellant’s objection.

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Section 51: For young claimants or those still in training at the time of the accident, their earnings would generally be relatively low. Section 51 was ostensibly enacted to obviate a situation where young vulnerable employees (being under the age of 26 or those who are still undergoing training at the inception of their careers) who become permanently disabled as a result of work related accidents at a time when they have not yet had the time to reap the benefits of established careers, are left without adequate social insurance over their lifetime. Young employees are generally positioned as low-income earners on the proverbial corporate ladder, precisely because they have yet to gain experience or to benefit from opportunities to upskill in order to enhance their employment and career prospects. A proxy is used, being a person in the same trade, occupation or profession, having five more years’ experience than the disabled employee. See paras [55]-[66].

* See also paras [72]-[74] on the typical career trajectory of a mining engineer and how the appellant stood out from his peers due to his specific exceptional skills, capabilities, determination and aspirations and thus prospects for earlier career advancement. The section contemplates a generic career trajectory of the normal or average junior engineer possessing either a university degree or a diploma qualification as opposed to a subjective career trajectory of the exceptional junior engineer.

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Findings: The reduced award appears not to have included the constant care allowance and section 63 regular benefits, which ought to have been included in the computation of the reduced award and which had also previously been included in the computation of the revised award. The reduced award not only diminished the monthly augmentation benefit found to be payable to the appellant, but the recalculated augmentation benefit was withheld and set off against a debt erroneously considered by the respondent to be due to it by the appellant. In so far as the earnings of a section engineer (appellant’s deemed earnings) were employed in the computation of the revised award (being the lower of the two figures provided by the employer), the appellant indicated at the hearing of the matter that he is content to abide by the calculations employed by the respondent in the revised award, which he seeks be reinstated in order to bring finality to the proceedings between the parties. Given the long history of protracted litigation between the parties, the obvious prejudice to the appellant in receiving the reduced award, and the fact that, based on the evidence at hand, this court is in as good a position as anyone to assess the award payable to the appellant, it is in the interests of justice that finality be reached, and that the revised award be reinstated.

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Order: The appeal succeeds with costs, including the costs of two counsel. The order of the tribunal dismissing the appellant’s objection to the reduced award is set aside and is replaced with an order reinstating the revised award with retrospective effect.

MAIER-FRAWLEY J (MANOIM J and ALLEN AJ concurring)

Facts and issue: This case involves a claim for damages due to alleged medical negligence by the staff of the Member of the Executive Council for Health, Eastern Cape. The plaintiff, acting on behalf of herself and her minor child, Linamandla, claimed that the negligence of the medical staff during her labour and the birth of Linamandla at Nelson Mandela Academic Hospital (NMAH), led to Linamandla's cerebral palsy. The primary issues are whether the cerebral palsy was caused by a pre-partum or intrapartum event, and whether the negligence was causally connected to the cerebral palsy.

Discussion: It was conceded that the actions of the defendant’s employees were substandard, amounting to negligence. There existed substandard care amounting to negligence in that there was poor monitoring of the foetal heart rate (FHR) and that, as Canzibe Hospital was a district hospital, it should have been able to perform a caesarean section, but it did not. It seems that Dr. Swan further conceded that in the circumstances prevailing, that is where Canzibe could not perform such a caesarean section, more should have been done by the medical staff, including regular monitoring, to prevent foetal stress over the many ensuing hours until when Linamandla was born. On the evidence of the plaintiff, and in particular the expert evidence of Drs Murray and Kara, the plaintiff made out a strong prima facie case that the injury to Linamandla’s brain occurred intrapartum because of the extended labour due to the delay in getting the plaintiff on to the theatre table at NMAH.

Findings: The plaintiff presented evidence from four witnesses, including medical experts, who supported the claim that the injury to Linamandla's brain occurred intrapartum due to prolonged labour and delayed caesarean section, leading to hypoxic ischemic encephalopathy (HIE). The defence presented four witnesses but relied heavily on Dr. Keshave, whose theories about possible pre-existing conditions causing the HIE were not sufficiently substantiated. The negligent monitoring and delayed intervention by the defendant's medical staff were the probable causes of Linamandla's HIE and subsequent cerebral palsy.

Order: The defendant is ordered to pay the plaintiff’s agreed or proven damages both in her personal and in her representative capacities for and on behalf of her minor child, Linamandla.

Facts and issue: This is an appeal against the order of the court a quo. The appellant instituted action proceedings in the court a quo against the respondents based on unlawful arrest and detention as well as malicious prosecution. The court a quo held that the appellant was lawfully arrested in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977. The appellant disputes that the arresting officer entertained a reasonable suspicion that the appellant committed an offence referred to in Schedule 1 of the CPA when he effected the arrest of the appellant.

Discussion: According to the appellant, rape of a minor child is not an offence referred to in Schedule 1 of the CPA and the arresting officer therefore did not have the authority to arrest the appellant without a warrant in terms of in section 40(1)(b) of the CPA. The appellant’s argument is however misplaced as he was charged in terms of section 3 of Act 32 of 2007, and not Chapter 3 or 4 of Act 32 of 2007. Because the appellant was charged with rape in terms of section 3 of Act 32 of 2007 he was actually charged with an offence referred to in Schedule 1, as envisaged in section 40(1)(b) of the CPA. Sergeant Nakane was the arresting and investigating officer in this matter. At the time of the arrest Sergeant Nakane had the statement of the complainant in his possession. The statement was taken from the complainant by another police official. The appellant is related to the complainant, and they were staying in the same dwelling at the time of the incident. In her statement the complainant identified the appellant as the person who raped her and stated that she recognized his voice. According to the complainant the appellant penetrated her anus with his penis.

Findings: Sergeant Nakane had an interview with the complainant before he arrested the appellant. According to Sergeant Nakane he had to cut the interview short because the complainant became very emotional and started crying. Although the victim did not mention during the interview that she was raped she did say that she was touched by the appellant. Sergeant Nakane also interviewed the aunt of the complainant before he arrested the appellant. The court is not persuaded that Sergeant Nakane exercised his discretion to arrest the appellant in an improper manner. The appellant was lawfully arrested in accordance with the provisions of section 40(1)(b) of the CPA. The appellant therefore failed to prove that the deprivation of his liberty was wrongful. The appellant failed to prove that the respondents acted without reasonable and probable cause and with malice.

Order: The appeal is dismissed.

Facts and issue: The plaintiff instituted the action against the Minister of Police for damages in an amount of R5 million. The parties agreed for the adjudication of the merits and quantum to be separated. Hence, only the merits are the subject of the judgment. It is the plaintiff’s pleaded case that an unknown member of the SAPS, who acted within the course and scope of employment, wrongfully caused him bodily harm, by shooting him with a rubber bullet in his right eye.

Discussion: Oupa Nkosi testified, that from where he was, he initially saw a female police officer who was protruding the top of the armoured vehicle firing a shot. The female officer then descended into the vehicle. Shortly thereafter, a male police officer appeared at the top of the armoured vehicle and fired a shot towards his yard. It was at this stage, when the plaintiff came around the front corner of the house, that he was struck by a rubber bullet to his right eye. According to the contents of the medical records, the plaintiff was admitted in the Witbank Government Hospital, with a history of having been shot by the police to his right eye. The clinical findings noted in the medico-legal report form J88, is that the plaintiff’s right eye was swollen and bleeding, with a round foreign body in the socket of the eye. The diagnosis noted is that the plaintiff’s right eye globe raptured.

Findings: The plaintiff and his brother corroborated each other in material respects, with regards to the location where the shooting occurred, the events leading up to and after the plaintiff’s injury sustained. The unchallenged medical evidence proves, that a round foreign body, akin to the rubber bullet, was found to be lodged in the socket of the plaintiff’s right eye, which evidence is consistent with the evidence for the plaintiff. Considered the accepted evidence by the plaintiff, that he was shot in his brother’s yard, a plausible inference to be drawn is, that the police officer should have foreseen, that in firing rubber bullets where they were, a real risk was that innocent members of the public could be injured by the rubber bullets. The police officer’s conduct was negligent.

Order: The defendant is liable for 100% of the plaintiff’s proven or agreed damages.

Accident: The plaintiff instituted action proceedings against the defendant for damages arising from a motor vehicle accident. The plaintiff was a self-employed vendor at the time of the accident.

Claim: The plaintiff’s loss of earnings is before court for determination. General damages were settled between the parties. An ancillary relief sought by the plaintiff is that the defendant be ordered to issue a section 17(4)(a) undertaking certificate to the plaintiff.

Assessment: Dr M B Koko's evidence was that the plaintiff suffered mild neurocognitive disorder due to traumatic brain injury. As a result, she can no longer engage in work activities, it was led into evidence. She deserves compensation because it is the accident which led to her neurocognitive impairment, it was testified by Dr Koko. Mathegu, an occupational therapist's evidence, was that the injuries were serious to an extent where the conclusion was that her quality of life has been heavily compromised. She will, because of the injuries suffered remain incompetent in the open labour market and will not be able to engage in remunerative activities, so opined the occupational therapist. Langa, an industrial psychologist's evidence was to the effect that but for the accident the plaintiff would have continued to be self-employed as a vendor up to a maximum of 75 years of age.

The two scenarios: Taking counsel from the expert opinions of the occupational therapist and the industrial psychologist Tsebo Actuaries provided expert evidence on the computation of past loss of income and future loss of earnings postulating a total loss of R2,151,753 in the first scenario which was premised on the plaintiff being self-employed and a total loss of R2,348,695 in the second scenario which postulation arose from if the plaintiff had proceeded to be a security officer, one of the jobs she qualified for with a Grade C certificate and had previously done. In both scenarios the actuaries had made allowances for contingencies of 5 percent for past loss of income and 15 percent for future loss of income.

Award: The defendant is ordered to pay to the plaintiff an amount of R2,151,753 as loss of earnings.

Claim: The respondent instituted a claim against the applicant RAF for general damages because of injuries sustained in a motor vehicle collision. The RAF made an offer, and the respondent accepted the offer presented by the applicant. The settlement agreement was made an order of court. In this application the applicant, now for the first time, contends that the respondent’s claim had prescribed and is therefore seeking an order rescinding the order in terms of the provisions of Rule 42(1)(c).

Discussion: The applicant points out that it extended an offer of R800,000 for general damages to the respondent in error and is barred from making further offers on the claim as it has become prescribed. Regarding prejudice, the applicant states that it would be prejudiced should the judgment not be rescinded since the applicant is disbursing public funds. In paying compensation, the applicant needs to protect the interest of both the fiscus and the Road Accident Fund itself. On the other hand, it is the applicant’s submission that the respondent will not suffer real prejudice should the order be rescinded as the claim had prescribed when summons was issued and therefore the plaintiff was not entitled to the amount granted. According to the applicant any prejudice caused, if any, to the respondent, can be compensated by an appropriate order as to costs. The application is based on a single and unsubstantiated allegation that the order was granted because of a mistake common to the parties.

Assessment: The applicant, now for the first time during the whole proceedings, contends that the respondent’s claim had prescribed. The applicant had ample opportunity to raise prescription, which it failed to do. Furthermore, the applicant does not take the court into his confidence to explain when and how it came to his knowledge that the claim had allegedly prescribed. The applicant attempted to make allegations in this regard in the replying affidavit, which allegations should have been contained in the founding affidavit. The applicant’s contention that the prescription of the respondent’s claim is a mistake common to the parties is therefore misplaced. A unilateral mistake is not sufficient for the applicant to obtain a rescission of the order.

Award: The applicant’s application to rescind the order is dismissed.

Pre-accident: At the time of the accident, testified that he was 20 years, a learner at Brebner High School, doing grade 12. The plaintiff played for Brebner Soccer Club in Bloemfontein and received no salary and relied on sponsorships.

Accident: The plaintiff has instituted a claim against the defendant for damages he suffered from a motor vehicle collision. The plaintiff was a passenger in the motor vehicle. He sustained a fractured femur, an injury to his head and his upper lip. He was admitted at Pelonomi Hospital for a month and was operated on with insertion of steel and screws were inserted.

Post-accident: The plaintiff is currently unable to run at capacity or walk for long distances as he experiences pain if he participated in sports. Because of that, he no longer plays soccer. The plaintiff left his employment at Clicks as the operations were still fresh and it was painful to be on his feet and carrying boxes. The plaintiff then got a job at OK Furniture as a General Assistant. He earned R4,956.52. His duties entail cleaning the store, receiving and packing stock, collecting stock from the truck and lifting heavy boxes. He said the manager is sympathetic and allows him to take 15 minutes breaks when experiencing pain. The plaintiff is currently still employed at OK Furniture.

Loss of income: Even though the experts in their opinion that the plaintiff has experienced physical challenges in his current employment and that he is gradually developing osteoarthritis, the plaintiff must still go for further surgery to remove the steel plates, which will reduce the pain experienced. Despite the plaintiff’s injuries he continued to work even lifting heavy boxes. This indicates that the plaintiff’s injuries do not deter him from finding employment. Even if it is employment in a lower skilled level in the labour market. The plaintiff is put in the position which otherwise wouldn’t have been, had it not been for the accident. The removal of the steel plate would ease the pain in the leg. Thus, the plaintiff will be able to find alternative employment. There is a possibility that the plaintiff may post morbid and after removing the steel plate be able to find or do some sedentary work even though currently, is doing heavy work at testified.

Award: The defendant is to pay the plaintiff in respect of future loss of earnings, an amount of R2,552,112 within 180 days from the date of the order.

Pre-accident: The plaintiff was employed on a part-time basis as a mechanical fitter with a basic income of R9,702 per month excluding allowances. Ms. Chamisa-Maulana (Industrial Psychologist) postulated the plaintiff’s income as being above the medium earnings of semiskilled workers. Premorbid, the plaintiff would have continued his employment as a mechanical fitter, reaching his ceiling at age 45 from where he would have earned an income in the upper quartile earnings of the semi-skilled workers- with an inflationary increase to the age of 65. For Ms. Mashaba (occupational therapist), the plaintiff’s premorbid employment is classified to fall in the medium to heavy physical demands.

Accident: The plaintiff sustained injuries as a passenger in a motor vehicle accident that took place on 13 November 2020.

Post-accident: Dr. Mazwi stated that the plaintiff sustained a mild head injury with significant long-term disturbance. The clinical psychologist indicated that the mild head injury sustained by the plaintiff gave rise to permanent neurocognitive deficits within a least moderate to severe degree of severity. Dr. Sibanyoni (orthopeadic surgeon), opined that the plaintiff’s ability to compete in the labour market has been compromised, and that should the plaintiff manage to secure sedentary work, he is more likely to retire 10 years earlier. According to Dr. Mazwi (Neurosurgeon), the plaintiff’s sequela will have a direct impact on his earning capacity due to the plaintiff’s memory disturbances, difficulty with concentration, and headaches.

Assessment: Mr. Magagula submitted that Plaintiff is entitled to past loss of earnings and future loss of earnings with a higher-than-normal contingency application for Plaintiff’s future loss of income post-accident, of about 55%. This is a 40% contingency split for future loss of income. The court applies contingencies as follows. For past loss- uninjured earnings, a 5% contingency deduction should apply. For injured earnings, 50% contingency deduction should apply. Future loss of income- uninjured earnings, 20% contingency deduction should apply. For injured earnings, 50% contingency deduction should apply.

Award: The defendant is ordered to pay the plaintiff a total amount of R2,148,425.