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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case no: 23369/2014

In the matter between:

Olckers, Arnoldus Mauritius                                                                                        Plaintiff

and

Road Accident Fund                                                                                                        Defendant

JUDGMENT

KATHREE-SETILOANE J:

[1] The plaintiff claims damages from the defendant arising out of bodily injuries sustained in a motor vehicle collision which occurred on 10 September 2013 at about 15h15 at Cowles Road, Springs.

[2] The issue of liability has been settled on the basis that the defendant admits 100% liability for the proven damages that the plaintiff has suffered as a result of the collision. The parties  have furthermore settled the issue of general damages in the amount of R350 000.00 in favour of the plaintiff, and the defendant has undertaken to provide the plaintiff with an undertaking in terms of section 17 (4) (a) of the Road Accident Fund Act No. 56 of 1996.

[3] The matter comes before me for the determination of past and future loss of earnings and earning capacity as it relates to early retirement, in particular, as well as past medical expenses.

[4] The defendant has admitted all the medico-legal reports of the plaintiff’s experts into evidence. The contents of these medico-legal reports are admitted as well. The following witnesses including himself testified for the plaintiff: Dr Read (Orthopaedic Surgeon), Ms Helen Du Preez and Mr Masemule (plaintiff’s supervisor at Impala Platinum). The defendant did not produce any expert reports.  Nor did it call any witnesses to testify on its behalf.

[5] The plaintiff, has inter alia, sustained the following injuries: tibial plateau fracture; Injury to the knee ligaments. As a result of the injuries sustained, the plaintiff had to undergo medical treatment and will in future have to undergo medical treatment.

[6] The plaintiff is employed as a process controller at Impala Platinum in Springs. He has been employed at Impala Platinum for 26 years. The plaintiff returned to his pre-accident employment four months after the accident.

[7] The Plaintiff’s expected standards of performance are the following: daily production figures compilation and distribution; SAP capturing of all leave/overtime; booking employees on courses/outstanding and expired courses; dayshift employees supervision; check chemicals and coal levels; log-sheets; time book; contractors sign in; reporting to superiors; checking general stock/storeroom; send coal used and received to site supervisor every Friday morning and attend necessary filing;month end; 100 club vouchers; general ordering; special orders; and general filing.

[8] The plaintiff testified that although his job description appears to be office based, it entails 90% physical walking around the plant and 10% office based work. His main duties in the morning involve capturing the previous day’s figures of the coal, water, and gas use at the plant. He is required to send this data to his supervisors before 7 am every morning. He collects some of this data from the control room which is 300 metres from his office. On completion of this task he walks to the plant which is about 300 metres away to allocate work to the three people that work directly under him. This involves walking around the whole plant to assess where work has to be carried out. He is required, in this regard, to carry out regular plant inspections (inspect dustbins and drains and look out for spillages of chemicals). This takes him about an hour each day, and involves a lot of walking up ramps and stairs as well as on flat and uneven surfaces. He thereafter goes to the chemical store, which is between 60 and 80 metres away, to assess whether the required chemicals are in stock. He then goes to the coal yard, which is about 210 metres from his office to check on the availability of coal supplies (to heat up the boilers) for the next morning. If there is insufficient coal, he has to walk back to his office to order more coal. He is required to walk to the control room, which is about 300 m away from his office, to accept the various deliveries of coal throughout the day. When back at the office, he does the daily filing. This requires walking from his desk to the filing shelves numerous times. He is also required to check the stock of staff uniforms on a daily basis. This requires crouching and stretching to reach the shelves. He uses a step ladder to reach the highest shelves. When new staff uniforms are delivered, he is required to walk to the control room to pick them up. When contractors come on site, he has to again walk to the control room to receive them. 

[9] The plaintiff said that since his return to work after the accident he has been struggling to cope with the physical part of his duties which, inter alia, entail walking around the plant to carry out inspections and allocate duties to his staff, as well as visiting the coal and chemical store-rooms and the control room. He gets extremely tired and has to take regular breaks. As a result, he is finding it difficult to comply with his duties at the plant, and his superiors are constantly on his back. The plaintiff also complained about experiencing constant pain during the day, which he says slows his work down even further. For instance, he notes that doing a plant inspection takes him longer than prior to the accident. Sometimes, he is only able to do a plant inspection once a week. He said that the pain is debilitating and it affects his concentration. Even when he sits down for too long he experiences pain.

[10] For the first time ever in his 26 years of working at Impala Platinum, he was subjected to an incapacity assessment in mid-2015. He said that he was given a warning that if he failed to improve his performance, then he will be subjected to a disciplinary hearing. The plaintiff said that he is unable to cope with the demands of his job, and would like to retire but cannot do so because he needs the money. He said that if he is unable to retire, and is required to stay in the same post until 62 years, which is the retirement age at Impala Platinum, he will simply not  be able to cope. When asked if he had requested his employer to accommodate him in a sedentary job, he said he has not. He said that as a white male, he does not think that his employer will be prepared to accommodate him in a sedentary position. He informed the court that his employer has already trained a black woman to do his job. He said that if he is retrenched, he will find it very difficult to get another job at his advanced age of 56. When asked if he had discussed retirement with his employer, he said that after his incapacity assessment in mid-2015, Mr C Modise, his immediate supervisor, had suggested that he consider early retirement.             

[11] Mr Masemule, who has worked with the plaintiff for 25 years, testified that he is a supervisor at Impala Platinum and is directly responsible for supervising the plaintiff. He described the plaintiff’s duties as involving walking around the plant for most of the day. He said that since the accident, the plaintiff spends most of the day in his office due to the injuries to his leg, and is therefore unable to complete his daily tasks. Mr Masemule confirmed that the plaintiff will not be able to continue in his current position and that it was unlikely that his employer will accommodate him in a more sedentary job.

DR READ – ORTHOPEADIC SURGEON

[12] Dr Read examined the plaintiff on 17 February 2015, one year and 5 months after the accident in question. Referring to the medical records and RAF1 form Dr Read indicated that the plaintiff sustained the following injuries: left knee proximal tibia fracture and ligamentous injury for which he underwent a debridement and arthroscopy. The fracture was treated by way of open reduction and internal fixation. The internal fixatives remain in situ. The plaintiff initially wore an anterior cruciate ligament brace which ligamentous injury was repaired in August 2014.

[13] Dr Read’s clinical assessment of the plaintiff confirms pain and tenderness over the left knee as well as instability of the knee. He indicated that the plaintiff walks with an antalgic aspect to his gait with wasting of the thigh and calf muscles on the left. He said that the possibility of a fall and further injury, considering that the plaintiff has to walk around on uneven ground and climb stairs on a daily basis, cannot be excluded.

[14] Dr Read testified that even if the plaintiff is to have a knee replacement, a complete recovery is unlikely as the plaintiff has sustained a ligamentous injury. He testified that the injury will not be improved by further physiotherapy (the plaintiff has already had 10 sessions and cannot afford more) and that the plaintiff’s axial skeleton will in general be subjected to further stress and, in particular, his back and right knee, which would need to carry most of his weight due to his uneven gait. Dr Read further confirmed that excessive walking would compromise the plaintiff’s left knee further and bring on a knee replacement at an earlier stage. Dr Read concluded that the plaintiff should only do work of a sedentary nature.  

[15] As is apparent from Dr Reads testimony, the plaintiff remains symptomatic in regards to his left elbow (intermittent aches and pains over the nodule of the elbow), knee (instability and locking of the left knee, difficulty standing long, walking far, kneeling, crouching, picking up heavy items and going up and down stairs), right leg (symptoms suggestive of a soft tissue injury) and hand (occasional pain on the base of the right palm if plaintiff presses hard on something). Dr Read indicated, from reports received from the plaintiff, that he has some difficulty with his mobility at work and needs to take regular rest breaks, sometimes as long as half an hour with his leg elevated. He pointed out that even sitting at his desk causes the plaintiff difficulties with associated pain and stiffness.

[16] Dr Read’s final diagnosis (X-Ray report taken on 17 February 2015 by Dr Tobias) indicate that the left tibia and fibula (and associated joints) show a healed fracture of the lateral tibial metaphysis with an internal fixation present, and the left knee further indicates slight disuse osteoporosis. Dr Read confirmed, under cross-examination, that despite the fracture healing it was not the main reason for the plaintiff’s current symptoms but rather the ligamentous injury which would not recover and would remain symptomatic.

[17] Dr Read recommends the removal of the internal fixatives from the left tibia and a repeat left knee arthroscopy at which time the under surface of the patella can be more closely inspected and debrided. He states that the development of post traumatic osteoarthritis would further compromise the plaintiff’s recovery and ability to do his work. Dr Read testified that the plaintiff is still presently moderately to considerably dis-abled as a result of the injuries emanating from his left knee, right leg, left elbow and right hand and a full recovery is not expected. Importantly, in this regard, Dr Read testified that as the plaintiff would remain symptomatic, one cannot rule out early retirement basing this on the overall clinical picture of the injuries sustained and the working environment of the plaintiff. The plaintiff had, however, never discussed the possibility of early retirement with Dr Read.

OCCUPATIONAL THERAPIST – HANIEN DU PREEZ

[18] Ms du Preez assessed the plaintiff on 10 November 2014 but completed her report after receipt of Dr Read’s report on 5 June 2015. Her general observations were that the plaintiff walked with a limp (consistent with that of Dr Read) and that there was no evidence of symptom exaggeration or deliberate suboptimal performance.

[19] The plaintiff had informed Ms Du Preez that he suffers from intense headaches that he attributes to the stress that he experiences on a daily basis − further exacerbating his physical difficulties.  Ms du Preez said that one can expect constant pain and the stress, frustration and anger that the plaintiff experiences on a daily basis would contribute to a cognitive fall out which would compromise his working environment leading to memory loss and suboptimal performance in his administrative duties.

[20] The plaintiff informed Ms Du Preez that his left knee/leg pain is continuously present for the whole of the working day, and is aggravated by general movements such as walking up stairs, sitting at a desk, climbing a hill, and walking on uneven ground. Ms du Preez confirmed that this kind of pain would compromise the plaintiff’s daily work. The plaintiff’s complaints to Ms Du Preez are consistent with those discussed with Dr Read. Both Ms du Preez and Dr Read confirmed that it is impossible to measure pain experienced and that every individual is different. They are, however, both in agreement that there was no malingering on the part of the plaintiff.  Thus, in the absence of evidence to the contrary, I accept the plaintiff’s testimony as to daily pain and suffering, which he experienced in his working environment.

[21] Ms Du Preez testified that plaintiff reported pain in his left leg after the walking test, and his stair climbing was affected due to his walking limitation. She said that his standing tolerance may also be affected (if he walks around on uneven ground, climbs stairs and does site visits), and this would impact directly on his working day.

[22] Ms du Preez indicated in her report that the plaintiff’s daily duties comprise of 90% administrative work, and that his work is of a sedentary nature. She accordingly found that the plaintiff would be able to continue in his current position due to it being of a sedentary nature. During a further consultation/discussion with the plaintiff and after having heard the plaintiff testify in court, it became clear to Ms du Preez that she misinterpreted the plaintiff’s working environment and conceded that her report was not factually correct on this aspect, and that it should be disregarded by the court. The plaintiff confirmed this by testifying that his most important work takes him only 10% of the day (capturing data) albeit being 90% of his responsibilities due to the nature and importance of this work. In the absence of evidence to the contrary, I have no reason to disbelieve the plaintiff or Mr Masemule that 90% of the plaintiff’s duties involve the physical component of walking around the plant in relation to one or other duty as contemplated in his job description. So although walking is not stated in his job description, it is an inherent requirement of his job.

[23] Ms Du Preez was, however, at pains to point out that her objective assessments, based on sound scientific principles and accepted by courts and subjected to peer reviews worldwide, do in actual fact support the plaintiff’s contention that he is unable to perform his day to day duties currently due to his working environment comprising duties of a physical nature, whereas he is suited to duties of a sedentary nature (confirmed by Dr Read). Ms du Preez, however, stressed that this finding must be viewed holistically taking into consideration the cognitive difficulties that continuous pain would have on the plaintiff’s ability to carry out his sedentary administrative duties. It turns out that the plaintiff had also not discussed the question of early retirement with Ms Du Preez until a day or two before the trial.  

[24] Ms du Preez indicated that the plaintiff’s knee will continue to deteriorate, and will be at its worst 1-2 years before the point at which a total knee replacement is required and that, thereafter, although functioning would improve, limitations would be placed on the use of the knee. Dr Read testified, in this regard, that the plaintiff’s ligamentous injury cannot be cured by a knee replacement and that even if a knee replacement is successful, the plaintiff would be a candidate for a further knee replacement at a later stage. Significantly, on this score, the plaintiff testified that it is his most urgent desire to have his knee operated on as soon as possible. This, in my view, is a clear indication that the plaintiff has reached his fall out date and that from here onwards he would only be able to do work of a sedentary nature. Ms du Preez indicated that the plaintiff would require a multidisciplinary intervention programme to help him cope before and after his surgery and that time off work should be taken into consideration when applying the relevant contingencies, as the plaintiff has exhausted his sick leave to date.

INDUSTRIAL PSYCHOLOGIST – DR RIAAN BOTHMA

[25] Dr Bothma (Industrial Psychologist) assessed the plaintiff on 20 January 2015. In addition to being in receipt of all the medico-legal reports at the time of compiling his report, Dr Bothma also interviewed Mr Modise, the plaintiff’s direct supervisor to get workplace feedback. Mr Modise is the day supervisor overseeing the plaintiff’s day to day functioning and Mr Masimule the night supervisor, who assists when Mr Modise is on leave - as was the case during the trial.

[26] Mr Bothma’s states in his report that the plaintiff was on paid sick leave for a period of 113 days depleting his sick leave benefits and losing his quarterly bonus. Upon the plaintiff’s return to work after four months, he could continue with his basic work demands as the workplace was accommodating. He does, however, find it difficult to do site inspections as it requires a lot of stair climbing on a daily basis and he now conducts them only once a week. He said that this concerns the plaintiff as his non-compliance with his duties could pose a danger to fellow workers, because due to a lack of adequate staff control on his part, he may not become aware of staff who fail to perform their duties.

[27] The plaintiff reported that he cannot walk very far and that he experiences a lot of pain on a daily basis. The plaintiff further indicated that he feels the need to retire early (at 57 years) and this was confirmed by his immediate supervisor, Mr Modise, who has indicated that the plaintiff may need to retire early as he is not meeting his targets, is forgetful, and seems pre occupied. It is common cause that the plaintiff’s lack of participation in his daily duties has caused him to be subjected to an incapacity assessment, the details of which were canvassed in full with the plaintiff and Mr Masimule, his other supervisor.

[28] Taking into consideration the plaintiff’s consistent work history of some 26 years at Impala Platinum Mine, the plaintiff would have had to experience a life changing situation to render him incapable of performing his duties to fullest of his abilities, and to furthermore consider early retirement. As indicated above, the plaintiff testified that he cannot afford to retire but simply cannot carry on with his employment due to his inability to perform his work at the standards he had maintained for 26 years. Consistent with his testimony during the trial, the plaintiff reported the following workplace difficulties to Dr Bothma;

(a)    Knee and hip pain when walking long distances. As confirmed by the witnesses this comprised more than 50% of his day and as measured by Mr Masimule, comprises of several trips of around 200m to 300m back and forth daily with the shortest distance from his office requiring a 67m walk.

(b)    Muscle cramps and spasms when he stretches his calf muscles and the plaintiff reiterated that this is the case even when he is seated.

(c)    Heightened levels of stress, anxiety, frustration and anger due to his situation which Ms du Preez indicated would have a negative impact on his concentration and ability to perform his administrative duties which he himself ascribed as his most important duties, but which he was in trouble for in the first place as set out in full in the capacity assessment.

(d)    Altered processing speed which is due to a slower processing speed directly relating to his cognitive fall out as a result of the accident in question.

[29] In light of the expert findings and the feedback received from the plaintiff and his supervisor, Mr Bothma concludes that the plaintiff’s functional capacity has been altered as a result of the injuries sustained in the accident and that it affects his position as a process controller negatively. Dr Bothma recommends the application of the relevant post-accident contingencies to make provision for these exigencies. The plaintiff noted on the day of the assessment with Mr Bothma’s assistant, Ms Ruiters, that he intended to retire at age 57 years. Ms Ruiters had a telephonic discussion with Mr Modise, who is of the view that the plaintiff would need to retire at age 57, as he is not meeting his targets, seems forgetful and is pre-occupied. Mr Modise’s view  is consistent with the expert evidence of  Ms Du Preez, which confirms the cognitive fall out that is to be expected, taking into consideration the plaintiff’s physical limitations.

[30] The plaintiff further confirmed during examination that he had the discussion regarding early retirement with Mr Modise subsequent to the incapacity assessment and that prior to that, even though he had not yet voiced it with his supervisors or the experts, he had considered that he would have to take early retirement, but would have to consider his financial position. This consideration may very well be rendered irrelevant, should the employer find him unfit to do his job. There is every likelihood of this happening since the plaintiff was told by his supervisors (Modise and Masemule) after the assessment that, they will follow up with another assessment later in the year, and if there is still no improvement in his work, they will have to take further steps against him.

[31] Mr Masimule was examined at length on the aspect of the incapacity assessment. The defendant’s counsel was adamant that the duties which the plaintiff was unable to perform, as listed in this assessment and in particular in the summary, was of such a nature that it did not require any physical aspects. It is clear though, from the testimony of both the plaintiff and Mr Masimule that the duties may be of a sedentary nature when viewed without knowledge and understanding of what the performance of such duties actually require.

[32] It is clear from the testimony of both the plaintiff and Masimule that in order to comply with his primary duties, which involve the capturing of the previous days figures of coal, water, and gas use at the plant, and which must be sent to his supervisors by 7 am every morning, the plaintiff is required to walk to, and from the control room as well as other locations at the plant which are situated at least 300 metres from his office.  In addition he is required to carry out plant inspections, allocate duties to the staff that work under him, inspect coal reserves; order and receive coal etc.  – all of which require  walking to various areas in the plant.  

[33] As revealed by the evidence, the plaintiff is cognitively compromised due to constant pain, frustration and anger about his situation. His sedentary administrative work/duties have as a result become compromised as demonstrated by Mr Modise and Mr Masimule. This much is also evident from his incapacity assessment. I, therefore, see no reason on the evidence not to accept that as a result of the injuries which the plaintiff sustained in the accident, he is unable to perform his duties adequately and in line with employer expectations, which as testified to by both Mr Masimule and the plaintiff has in 26 years never been the case. Having had regard the overall clinical picture of the injuries sustained by the plaintiff in the accident and the working environment of the plaintiff, it is significant that Dr Read is of the opinion  that early retirement cannot be ruled out. A clear nexus as such exist between the plaintiff’s possible retirement due to incapacity before age 62, and the accident in question. It comes as no surprise, therefore, that Mr Masimule also confirmed that the plaintiff would not be able to continue in his current position.

[34] Mr Masimule was cross-examined at length by the defendant’s counsel about the disciplinary procedures that are generally followed by the employer. Although he could not give a definitive answer as to the processes involved, I am not inclined to make an adverse finding against him as he had only recently been appointed to the position of supervisor, and this was the very first time that the plaintiff was subjected to an incapacity assessment. This was not disputed by the defendant.

[35] The defendant’s counsel argued that because the plaintiff would have to go through a disciplinary process as stipulated by the head of the department in question, he or she should have been present to testify to the plaintiff’s future prospects with Impala Platinum. I disagree. The evidence reveals that it would be the plaintiff’s immediate supervisors (Messrs Modise and Masimule) and the personnel present at the incapacity hearing who would be called upon to make recommendations to management about the plaintiff’s future prospects in the company, as members of the executive/management at Impala Platinum are unlikely to know what each and every employee is up to on a daily basis.

[36] The defendants counsel further put it to Mr Masimule that his 15 minute presence at the incapacity meeting can hardly be seen as being present during this evaluation. Mr Masimula confirmed that he discussed the outcome of this assessment with the plaintiff after the meeting. Likewise, the plaintiff testified that he had discussed the outcome of the incapacity assessment with Mr Modise and Mr Masemule. Importantly, Mr Modise’s view that that the plaintiff would need to consider early retirement as “he is not meeting his targets, is forgetful and seems preoccupied” stands uncontested and admitted (all the medico-legal reports of the plaintiff’s experts  including that of Dr Bothma, were admitted into evidence by the and their contents were also admitted by the defendant).

[37] In addition, both the plaintiff and Mr Masimule were questioned on the possibility of the plaintiff remaining with his current employer, and both testified that it is highly unlikely since the employer had already trained a black female to do the plaintiff’s work and, in light of the affirmative action requirements in this country, it seems highly unlikely that a special position would be created for the plaintiff when a more suitable candidate was already waiting in the wings. This has to be viewed in light of the plaintiff’s current age as well. Early retirement would, therefore, be a far more attractive option for both the plaintiff and the employer.

[38] In any event, having regard to the plaintiff’s physical condition and his cognitive fall out, it is more than likely that the plaintiff would not be able  to continue in his current position.  In light of these difficulties, and his own testimony that “he simply cannot carry on” and Mr Modise’s suggestion  that he consider early retirement – early retirement or retrenchment is a possibility, and cannot be ruled out.  

[39] On a conspectus of the evidence, it is clear that the plaintiff is as a result of the injuries sustained in the accident experiencing great difficulty in his current position and cannot at this late stage in his life change what he has been doing for 26 years by finding employment elsewhere. The plaintiff is currently 56 years old, and struggling to cope with the demands of his job (as is apparent from the employer’s incapacity assessment). The retirement age at Impala Platinum is 62 years. Taking into consideration the injuries sustained by the plaintiff in the collision and that the retirement age is 62 at Impala Platinum, it is not likely that the plaintiff would he be able to sustain a further 6 years of working under the same conditions and in the same work environment. There is in my view at least a 50% chance of the plaintiff having to retire early based on the evidence before this court.  

[40] I am satisfied that the plaintiff has demonstrated that he stands at least a 50%  chance if not more, of being released from his position in the near future or of being forced into taking early retirement. That this possibility exists has not been refuted by the defendant. Thus, having regard to the actuarial calculation of the plaintiff’s actuary[1], which is not disputed  and applying a general contingency of 50% to the value of the plaintiff’s income having regard to the accident and a contingency of 7.5%  to the plaintiff’s income but for the accident (to allow for savings in travelling to and from work and the possibility of loss of income due to illness or unemployment due to early retirement[2] or being released from work), the plaintiff is entitled to an award of R1 138 153.00 for past and future loss of earnings and earning capacity.[3]

[41] Accordingly, I am satisfied that the plaintiff has succeeded in proving his claim for damages in the following amounts: R350 000,00 for general damages and R1 138 153.00 for past and future loss of earnings.

[42] In the result, I make the following order:

(1)       The defendant is ordered to pay the plaintiff the amount of R1 488 153.00.

(2)       Interest on the said amount of R1 488 153,00 at the rate of 15.5% per annum, calculated 14 days from date of payment.

(3)       Costs of suit including the qualifying and preparation costs of all plaintiff’s medico-legal experts.

(4)       The defendant shall provide the plaintiff with an undertaking in terms of s 17(4)(a) of the Road Accident Fund Act, 56 of 1996, for the cost of the future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him arising out of the injuries sustained in the motor vehicle accident of 10 September 2013, after such costs have been incurred and upon proof thereof;

(5)      The determination of past hospital and medical expenses is postponed sine die.

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                            F KATHREE-SETILOANE

                         JUDGE OF THE HIGH COURT OF SOUTH AFRICA

                      GAUTENG LOCAL DIVISION, JOHANNESBURG

Appearances:

For the plaintiff:            Maud Letzler

Instructed by:               De Broglio Inc

For the defendant:       L Mboweni

Instructed by                Mohlala Attorneys

Date of Judgement:     12 February 2016

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