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[2018] ZAWCHC 112
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D'Oliveira v Road Accident Fund (3999/10) [2018] ZAWCHC 112; [2018] 4 All SA 341 (WCC); 2019 (2) SA 247 (WCC) (5 September 2018)
IN THE HIGH
COURT OF SOUTH AFRICA
WESTERN CAPE
DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 3999/10
In the matter between:
CALIN
CRAIG
D’OLIVEIRA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Coram:
Date of
Hearing: 14, 26 and 27June 2018
Date of
Judgment: 5 September 2018
JUDGMENT
DELIVERED ON WEDNESDAY 5 SEPTEMBER 2018
GAMBLE,
J:
INTRODUCTION
[1]
The plaintiff formerly resided in Cape Town
where he was employed as a stock-control manager at a hardware store
belonging to a
large retail chain. In 2008 the plaintiff (who held a
British passport through ancestry) and his family decided to relocate
permanently
to the United Kingdom. That move was cut short when, as
the family was in the process of preparing to do so in June of that
year,
the plaintiff was involved in a serious motorcycle collision.
The plaintiff suffered extensive injuries in that collision and as
a
consequence thereof he was only able to emigrate in February 2009. He
currently resides permanently with his wife a two minor
children in
Runcorn near Liverpool in the north west of England.
[2]
The plaintiff lodged a claim with the
defendant for compensation arising from the injuries sustained in the
collision. The defendant’s
liability was not placed in issue
and the matter came before the court for the determination of certain
aspects of the quantum
of the claim. Shortly before the commencement
of the trial, the bulk of the quantum issues were resolved and the
court was presented
with a list of common cause facts so as to decide
the issues upon which the parties were unable to agree. In addition
both the
plaintiff and the defendant presented the oral testimony of
two witnesses.
[3]
The questions for determination by the
court revolve around two discrete issues. Firstly, there is the
question of the contingency
deduction to be applied to certain
statutory benefits payable to the plaintiff in the United Kingdom
under the social security
program available to residents of that
country. Secondly, this court is required to determine whether the
plaintiff is entitled
to be compensated for the cost of domestic help
in the United Kingdom as a consequence of allegedly being unable to
attend to certain
domestic chores and personal functions which he
otherwise would have been able to fulfil but for the injuries
sustained in the
collision.
[4]
At the trial the plaintiff was represented
by Advs. W.H.van Staden SC and T.I.Ferreira and the defendant by
Adv.C.Bisschoff. The
court is indebted to counsel for their detailed
heads of argument and helpful oral presentations in court which have
assisted in
the preparation of this judgment.
THE PIP CONTINGENCY
[5]
In the written formulation of the issues in
dispute the parties articulated the first question for determination
as follows:
“
1.1 The question
whether a contingency should be applied in respect of the calculated
future PIP benefit
of R 2 000 000 and the extent of such
contingency”
[6]
By way of background it must be mentioned
that as a resident of the United Kingdom the plaintiff is
automatically entitled to the
receipt of a personal independence
payment (“
PIP”
).
This is a welfare payment which the plaintiff receives from the
government of the United Kingdom solely by virtue of the fact
that he
is injured and unable to fully support himself. It is irrelevant that
the injury which rendered plaintiff incapacitated
occurred outside
the country or that he has been compensated for such injuries. The
welfare payment is not means-tested and will
accrue to the plaintiff
until he reaches the age of 64 years. He is currently 39 years old.
[7]
The
parties agree that the value of the PIP (which it is common cause is
currently worth R2m) is a collateral payment which falls
to be
deducted from the plaintiff’s damages award
[1]
.
However, there is no consensus in respect of the extent thereof.
[8]
The purpose behind applying a contingency
deduction in an award for damages is to take account of the
unpredictable “
vicissitudes of
life”.
These include “
the
possibility that the plaintiff may in the result have a less than
‘normal’ expectation of life; and that he may
experience
periods of unemployment by reason of incapacity due to illness or
accident, or to labour unrest or general economic
conditions.”
[2]
The quantification of the extent of the
contingency lies entirely within the discretion of the court and must
be determined upon
the court’s impression of the case. In
fixing the contingency deduction, a court will have regard to
objective factors present,
common logic, expert evidence and the
like.
[3]
[9]
In
Goodall
[4]
Margo J highlighted the difficulties inherent in assessing
contingencies thus:
“
In the assessment of a proper allowance
for contingencies, arbitrary considerations must inevitably play a
part, for the art or
science of foretelling the future, so
confidently practiced by ancient prophets and soothsayers, and by
modern authors of a certain
type of almanac, is not numbered among
the qualifications for judicial office.”
His Lordship went on to assess the contingencies in that matter by
relying heavily upon the age of the plaintiff at the time of
quantification of the award and considering the extent of his
anticipated future working life in relation thereto.
[10]
In the
Quantum
Yearbook
for 2018, Mr. Robert Koch,
an actuary, suggests (on the strength of this
dictum
)
that when basing the contingency assessment on the age of the
plaintiff, ½% should be calculated per year for the remainder
of the claimant’s working life and the aggregate thereof should
be applied as a contingency deduction. Following this approach,
the
point of departure would be that the plaintiff will receive PIP for
approximately 25 more years and the minimum contingency
deduction
would therefore be 12½%.
[11]
Counsel for the plaintiff however pressed
for a significantly higher amount and, noting that the parties had
agreed upon a 25% contingency
deduction in respect of the plaintiff’s
pre-morbid loss of earnings calculation, urged the court to apply a
similar contingency
in respect of the PIP deduction. Counsel for the
defendant, on the other hand, parsimoniously suggested that no more
than 10% should
be applied.
[12]
The
plaintiff employed the services of an English employment consultant,
Mr. Keith Carter, for the purposes of calculating his losses
in the
employment sector in that country. While Mr. Carter was available for
consultation with the parties in Cape Town he did
not testify before
the court. However, the parties agreed that a factual background
document prepared in consultation with Mr.
Carter be placed before
the court as constituting further agreed facts.
[13]
The
following relevant facts emerge from this document.
“
1.
In the UK there was a debate in about 2016 about the government
wanting to cut £3,6
billion, reducing (sic) the welfare bill by
reducing the number of people eligible for welfare payments. In the
popular press questions
were raised about the morality of affluent
individuals receiving state benefits, including disability relief.
2.
Since then the government’s emphasis has been on reducing
eligibility for
welfare payments by making it more difficult for
individuals to qualify for disability payments such as PIP. Currently
there are
1,6 million PIP claimants who are bringing complaints about
being removed from PIP.
3.
A specimen of the PIP claim form is annexed hereto as “C1”.
4.
When in 2016 disability allowances were converted to PIP every
receiver of such
payments had to reapply for PIP and not everyone was
successful with their applications. The requirements to receive PIP
was (sic)
more stringent than before.
5.
Early this year a point scoring system to qualify for PIP, a copy of
which is
annexed hereto as “C2”, was again attempted to
be made more stringent in the certain categories which were
considered
as qualifying for PIP, it was suggested (sic) should be
removed or given a lower weighting score. A further factor is that
everyone
receiving PIP is re-evaluated on a regular basis, usually
every five years.”
[14]
During argument it became apparent that the plaintiff
is still in
receipt of his PIP benefit having escaped the potential guillotine in
2016, and that he will probably be reassessed
in about 2021. At that
stage the plaintiff will be 43 years of age.
[15]
The principal problem in establishing a fair contingency
deduction in
respect of the PIP benefit is that, other than through the agreed
facts as per Mr. Carter, the court was not apprised
of the
socio-economic, socio-political or projected budgetary considerations
currently at play in the United Kingdom. For instance,
the issue of
the United Kingdom’s withdrawal from the European Community
(colloquially referred to Brexit) is a matter of
daily international
news reporting and debate. But just how this will impact on the
amount of money available for future public
spending and social
services in the United Kingdom is an unknown factor to this court.
[16]
The court was also informed that the inflation rate
in the United
Kingdom is much lower than that in South Africa and is currently of
the order of 2½%. What the court does
not know is what effect
the payment of the plaintiff’s award for damages will have on
his eligibility when he is reassessed
for PIP in 2021. In that
regard, one must further consider that while the award might be
substantial when measured in our currency,
the exchange rate with the
British pound is presently high (of the order of SAR 18,50 = £1)
and so the value in that country
of the plaintiff’s award will
be significantly reduced.
[17]
In the circumstances, I can do no better than to assume
that the
figure suggested the
Quantum Yearbook
(12½%) is
too low in the circumstances, given the unpredictable variables
referred to by Mr. Carter, while the amount contended
for by counsel
for the plaintiff is too high. The best I can do in the
circumstances, bearing in mind the figure agreed upon for
the
contingency deduction in respect of the plaintiff’s future loss
of earnings, is to regard 20% as a fair contingency in
respect of the
PIP issue.
DOMESTIC CARE AND ASSISTANCE
[18]
The second issue for determination by the court was
articulated thus
by the parties.
“
1.2 The question
whether Plaintiff is entitled to claim the value of the services of
his wife in respect
of domestic help and gardening and home
maintenance services as agreed between the occupational therapist
(sic) in circumstances
where no agreement existed between Plaintiff
and his wife to remunerate her for rendering the services and no
payment has in fact
been made to her for rendering the services, as
opposed to the reasonable costs of the services. It is noted that the
joint minute
of the parties’ occupational therapists provides
as follows:
1.2.1 He will require ten (10) hours domestic
help per week, should his wife not be available to assist him.
1.2.2 Should he become a
home-owner, he is likely to require gardening and home maintenance
assistance six (6) days
per annum...
3. The parties
request the Honourable Court to determine the number of hours, if
applicable, which will form the basis of calculating Plaintiff’s
alleged loss in this regard, and the remuneration rates
applicable,
as set out in Mr. Carter’s report.”
[19]
In relation to the second issue the plaintiff presented
the evidence
of his wife, Ms. Estelle D’Oliveira, while the defendant
presented the evidence of Ms. Joan Andrews, an occupational
therapist. Ms. Andrews testified that she and the occupational
therapist consulted by the plaintiff, Ms. Benita Crouse, were in
agreement in relation to the plaintiff’s condition and his
needs and had drawn up a joint minute in that regard. I shall
revert
to Ms. Andrews’ evidence later.
[20]
The evidence of Ms. D’Oliveira revealed the
severe extent of
the orthopedic injuries sustained by the plaintiff and the
sequelae
thereof. The plaintiff has suffered a level of impairment and has
been diagnosed with so-called Complex Regional Pain Syndrome
(“
CRPS
”). He has been fitted with a spinal cord
stimulator which provides approximately 40% of his pain relief
through the delivery
of measured doses of morphine directly to the
spinal area. The use of such morphine inhibits the plaintiff’s
ability to drive.
[21]
The plaintiff’s wife also testified that she has had
to assist
him with showering as he cannot reach his feet. She went on to point
out that the plaintiff can only bath with the assistance
of a seat
and that she has to help him climb in and out of the bath.
Furthermore Ms. D’Oliveira said that she generally assists
her
husband while he is dressing as he has difficulty pulling on his
socks and shoes. In the home, said Ms. D’Oliveira, she
prepares
all the meals as the plaintiff cannot stand for long - his ability to
assist in the kitchen is thus limited.
[22]
As far as his general mobility is concerned, it was said
that the
plaintiff can walk short distances with the assistance of a walking
stick. In addition he has acquired a mobility scooter.
This is a
battery-operated tricycle which folds up and can be put in the boot
of a car or even taken on an aeroplane. With this
device the
plaintiff can move around more easily and even do his shopping, but
it is said that this too has its limitations.
[23]
As far as domestic chores and odd jobs around the house
are
concerned, the plaintiff’s wife testified that she is the one
who has had to clean the gutters, mow the lawn, pave the
yard, do the
painting and wallpapering and other items of domestic maintenance.
Ms. D’Oliveira said that she spends between
two and three hours
per day in assisting the plaintiff, (that is, in addition to
childcare) and that she is thus housebound and
unable to take on any
employment herself. When they lived in South Africa, said Ms.
D’Oliveira, she and her husband were
both in full time
employment. Here they employed a domestic worker once a week and a
gardener once a month but, for the rest, domestic
duties were
attended to by the couple jointly.
[24]
When it was suggested to Ms. D’Oliveira that the opinion
of Ms.
Andrews was that she and her colleague were of the view that the
plaintiff required assistance with domestic maintenance
and gardening
and that an allocation of approximately 6 days per annum for these
tasks should be considered, Ms. D’Oliveira
responded that it
was more like once a month.
[25]
In cross examining the plaintiff’s wife, Mr. Bischoff
went
through some of the medical reports and highlighted aspects thereof
which were seemingly inconsistent with her evidence. He
pointed out,
for instance, that in 2009 the plaintiff had visited Cape Town on his
own for purposes of medico-legal assessment,
having travelled here by
aeroplane. It was also pointed out that since his arrival in the
United Kingdom the plaintiff had taken
up work at a business similar
to that in Cape Town and had worked approximately 7 hours a week. To
this Ms. D’Oliveira replied
that her husband had experienced
severe pain on arrival home after working a relatively short time.
[26]
It was also pointed out to Ms. D’Oliveira by counsel
for the
defendant that the plaintiff had voluntarily tendered his assistance
at the occupational therapy department of a local
hospital. On this
score, said his wife, he rendered the service as part of his personal
“
therapy”
and service to the community that
supported him but that if he was not coping at the hospital he left
early for home. He has not
been remunerated for this assistance at
the hospital.
[27]
In my view the evidence establishes overwhelmingly that
the plaintiff
has restricted mobility, significant pain and discomfort and is
manifestly not able to perform the domestic chores
and render the
sort of assistance which he was able to do before the injury. The
real issue is whether he requires domestic assistance
in addition to
that provided by his wife and, further, whether his wife is entitled
to be remunerated for the services which she
renders so as to be of
assistance to her husband. That issue raises a number of interesting
debates, the most predominant of which
is whether a spouse, in such
circumstances, can expect to be remunerated for providing services
which coincide with the reciprocal
duties of support which spouses
would ordinarily be expected to render to each other; as the standard
marriage vows exchanged by
parties require “
in sickness and
in health, until death us do part.”
[28]
The question traverses new ground in our law and counsel
for the
plaintiff, who were unable to adduce any comparable authority,
invited the Court extend the ambit of the law in relation
to awards
for damages. Counsel for the defendant baulked at the suggestion that
the law fell to be extended and warned of the proverbial
“
opening
of the floodgates”
if the plaintiff’s argument
carried the day.
THE DECISIONS IN CUNNINGHAM AND UIJS
[29]
The point of departure for the plaintiff was the judgment
of Lord
Denning in the Court of Appeal in England in
Cunningham
[5]
.
The matter involved a claim by a plaintiff who had been severely
injured in a motor accident and who was left a tetraplegic. As
a
consequence of his condition the plaintiff would had to spend the
rest of his life either in bed or a wheel-chair and was entirely
dependent on others for performing the most basic of his daily
functions and ablutions. Mr. Cunningham based his claim initially
on
the notional cost of his wife assisting him and providing the nursing
services and the like which he required as a consequence
of his
predicament. However, his wife died before the matter was finalized
and so the claim was brought on the basis that the plaintiff
required
full time nursing care.
[30]
In the course of the judgment the Learned Judge of
Appeal raised a
query
per curiam
as to the enforceability of the claim in its
original guise.
“
The plaintiff’s advisers, seem to
have thought that the husband could not claim for the nursing
services rendered by wife
unless the husband was legally bound to pay
for them.… We were told that such advice is often given by
counsel in such cases
as these when advising on evidence. I know the
reason why such advice is given. It is because it has been said in
some cases that
are plaintiff can only recover for services rendered
to him when he was legally liable to pay for them: see for instance
Kirkham v Boughey
[6]
and
Janney v Gentry
[7]
.
But, I think that view is much too
narrow. It seems to me that when a husband is grievously injured -
and is entitled to damages
- it is only right and just that, if his
wife renders service to him,
instead
of a nurse, he should recover compensation for the value of the
services that his wife has rendered. It should not be necessary
to
draw up a legal agreement for them. On recovering such an amount, the
husband should hold it on trust for and pay it over to
her. She
cannot herself sue the wrongdoer… But she has rendered
services necessitated by the wrongdoing, and should be compensated
for it. If she had given up paid work to look after him, he would
clearly have been entitled to recover on her behalf, because
the
family income would have dropped by so much… Even though she
had not been doing paid work but only domestic duties in
the house,
nevertheless all extra attendance on him certainly calls for
compensation.”
It is clear that this passage is an
obiter dictum.
[31]
Counsel for the plaintiff then referred the court
to the judgment of
the Appellate Division in
Uijs
[8]
where the court cited with approval the passage referred to in
Cunningham
,
and asked this court to apply that
dictum
in this matter. In
Uijs
the claimant, one van Huyssteen
[9]
,
suffered devastating injuries in a motor accident. These including a
head injury which had left van Huyssteen with a change of
personality
and rendered him completely unemployable in the open labour market.
He sought general damages, loss of earnings and
the cost of
additional accommodation from the statutory insurer under the
applicable erstwhile third party insurance regime.
[32]
The cost of van Huyssteen’s additional
accommodation was the
only component of the damages claim which was considered on appeal.
In that context the debate turned on
the fact that van Huyssteen
might on occasion require semi-structured accommodation such as a
nursing home or “
halfway house
”, while on other
occasions he might be able to live with family or friends who had
taken his interests to heart. In that
context van Heerden JA made the
following remark.
“
Dit is nie onseker of van Huyssteen se
toestand verblyf in ‘n gestruktureerde inrigting verg nie. Al
wat onseker is, is die
mate waartoe hy gebruik daarvan sal maak.
Afgesien van die moontlikheid dat hy by tye semi-gestruktureerde
huisvesting mag vind,
is hierdie onsekerheid egter nie ter sake nie.
Sy posisie is goed vergelykbaar met die van ‘n parapleeg wat
dag en nag verpleging
nodig het, maar wat moontlik mag verkies om
sover doenlik snags deur haar man versorg te word. Nietemin is die
koste van verpleging
die omvang van haar verhaalbare skade, oftewel
haar vergoedingsmaatstaf (vgl
Cunningham
v Harrison
…
op 469). En
net so is in die onderhawige geval die koste van gestruktureerde
verblyf van Huyssteen se vergoedingsmaatstaf ongeag
of hy al of nie
konstant daarvan gebruik sal maak. (‘n Toelating moet egter
gemaak word met die oog op die moontlikheid dat
van Huyssteen by tye
semi-gestruktureerde verblyf mag bekom.)
[10]
[33]
At the outset, it must be noted that reliance
on
Cunningham
is
effectively contained in the Appellate Division’s own
obiter
dictum.
But, to the extent that an
obiter dictum
from that
court has strong persuasive influence, it must be said that the facts
in the two cases relied upon by the plaintiff are
fundamentally
different from the present matter. In each of those cases the injured
party was incapable of looking after himself
and so assisted care was
not in issue: it was a given. Without assisted care, or without a
form of structured accommodation, the
injured party was incapable of
functioning normally. That is not the case here. The plaintiff in
this case can function independently,
albeit that he makes use of
additional devices and aids. As the observations of Dr.Scher, the
orthopedic surgeon who examined the
plaintiff show, he could put on
his shoes and socks after examination and he can stand in the shower
and perform his ablutions.
Similarly, the plaintiff can stand in the
kitchen and help with the cooking but he tires more easily than
before. These functions,
therefore, take longer than normal and his
wife assists to make things easier.
THE RELEVANT PROVISIONS OF THE RAF ACT
[34]
I agree with Mr. Bischoff that the point
of departure in this case is
the statutory provision upon which the plaintiff relies for his
damages,
viz
s17(1) of the Road Accident Fund Act, 56 of 1996
(“
the RAF Act
”) which is to the following effect.
“
S17(1) The fund... shall –
(a)
subject to this Act, in the case of
a claim for compensation under this section arising from the driving
of a motor vehicle…
(b)
…
be obliged to compensate
any person (the third party) for any loss or damage which the third
party
has suffered
as a result of any bodily injury to himself… caused by or
arising from the driving a motor vehicle by any person at any
place
within the Republic, if the injury or death is due to the negligence
or other wrongful act of the driver… of the motor
vehicle…”
(emphasis added)
[35]
The wording of the statute
is clear. An injured person such as the
plaintiff is entitled to be compensated for the actual loss which he
has suffered as a
consequence of bodily injury sustained in a
collision. In practice such losses are usually proved by the
submission of vouchers
which establish the extent of the expenditure
and the fact that it has actually been incurred. In my view, a claim
for compensation
for the past “
cost
” of the
plaintiff’s wife’s “
services”
in
assisting him in his plight falters at this first hurdle. There are
no vouchers and, more importantly, it is not clear how the
plaintiff
will set about establishing the number of claimable hours which his
wife put in per day? It seems to me that the case
will be based on a
thumb-suck by estimating the probable number of hours so spent by Ms.
D’Oliveira in the past.
[36]
The argument advanced
by counsel for the plaintiff that
Uijs
(through its implicit reliance on
Cunningham
)
establishes the basis for this head of damage is not correct either.
What the Appellate Division held in that matter is that where
a claim
for structured (or institutionalized) care had been established on
the evidence (in light of the severity of the injuries,
the inability
of the claimant to care for himself and the absence of spousal
assistance), the cost of such care set the level for
its potential
calculation. The uncertainty in
Uijs
related to
the frequency with which such care would be required, but that was a
factor that could be (and was) addressed through
the application of
an appropriate contingency deduction.
[37]
I must accordingly conclude
that the plaintiff is not entitled to
recover from the defendant the alleged costs of his wife’s
services rendered to him
in the past.
THE EXPERT VIEWS OF THE OCCUPATIONAL THERAPISTS
[38]
In her evidence on behalf
of the defendant, Ms. Andrews referred the
court to the joint minute which she and Ms. Crouse (the plaintiff’s
expert) had
compiled in August 2014. It is apparent therefrom that
the occupational therapists shared similar views in relation to a
number
of aspects regarding the
sequelae
of the plaintiff’s
injuries. The areas of disagreement related, in the main, to his
residual earning capacity and, in light
of the fact that this head of
damage has been settled, it is not necessary to have regard to the
points of difference in this judgment.
[39]
I record the following aspects
of agreement from the joint minute.
“
3….
Therapists
agree
·
That
the assessment indicates ongoing functional impairments of left leg
adversely affecting mobility to a severe extent.
·
He
has gait impairment, requires special shoes and demonstrates poor
agility, speed and endurance. There is deformity, disfigurement
and
weakness of the lower leg, foot and ankle, weakness (sic).
Compromised mobility of knee and ankle and toes are (sic) evident.
·
He
suffers from neural pain; it is always present and increases in
severity, with activity; medication use adversely affects his
concentration; he also has pelvic pain, further impacting negatively
on sitting and standing endurance.
·
Psychologically,
claimant is vulnerable. His mood is low and he has been referred for
psychological assistance.
·
He
is generally independent regarding every day activities; however,
adaptive methods and devices are required; he uses mobility
devices,
special shoes, crutches, mobility scooter, automatic transmission
car. He can do light maintenance and gardening.
·
He
has suffered a severe injury with permanent functional impairment and
loss of function. His quality of life has been severely
compromised.
·
He
is supported financially by the UK social and medical system. He is
still undergoing therapies.
·
He
uses assistive devices for improved foot positioning and for
mobility.
·
Despite
further orthopedic treatment recommendations, claimant is unlikely to
(sic) regarding normal functioning or normal mobility.
Both therapists noted that post-injury he has been diagnosed with
a (sic) arthritic condition, mainly affecting his hands. Weakness
is
evident and problematic hand use is reported in the earlier part of
the day…
6.
Therapists
agree
he requires various assistant devices and assistance, i.e.
·
Access to a wheelchair and/or
mobility scooter.
·
Special footwear as recommended.
·
Shoe inserts.
·
Shower seat.
·
Walking stick, crutches.
·
Pressure stocking.
·
OT treatment.
It is understood claimant (sic) that all these devices are
currently available to claimant on the NHS system.
He will require 10 hours domestic help per week, should his
wife not be available to assist him.
Should he become a home owner (sic), he is
likely to require gardening and home maintenance assistance six days
per annum….”
(Emphasis
added)
The penultimate point of agreement (which I have highlighted for
purposes of convenience) occasioned some cross examination by
Mr. van
Staden SC and was also the subject of argument at the end of the
case.
[40]
In her evidence Ms. Andrews explained what she and
her colleague had
in mind in regard to the question of domestic help. She stated that
in the event that the plaintiff were divorced
or his wife
pre-deceased him he would need 10 hours per week of domestic
assistance. Similarly, if his wife should seek full time
employment
or, for example, leave the UK to visit South Africa, he would require
such assistance.
[41]
Ms. Andrews went on to observe that, in her view,
the plaintiff’s
condition had improved over the years and, in particular, since the
conclusion of the joint minute. She pointed
out that during the
examination which she conducted on the plaintiff in June 2013 he was
able to undress and dress himself fully
without any assistance. She
also recorded that he was then able to go to work for short periods
of time.
[42]
All of this notwithstanding, Ms. Andrews stood by the
views expressed
in the joint minute. She was asked by Mr. van Staden SC whether she
agreed with the allegations made in paragraph
9.2 of the plaintiff’s
amended particulars of claim
[11]
in which damages were sought, under the rubric of past medical
expenses, for the employment of a “
care
person”.
In particular, Ms.
Andrews was asked whether the agreed need for 10 hours of domestic
assistance equated therewith. The amended
claim is formulated as
follows.
“
9.2 The
plaintiff further claims past medical costs in respect of the
rendering of services by a care person
since 18 October 2008 in the
amount of R3430067,00. The following factors was (sic) considered in
calculating the past expenses
relating to the rendering of services
by the care person:
9.2.1 The care person worked at
£16.00 per hour; nine hours per day; five days per week; 52
weeks per year.
”
[43]
Ms. Andrews was adamant that a “
care person
” such
as that contemplated in the amended particulars of claim was not the
same as the domestic help which she and Ms. Crouse
had agreed was
reasonably required by the plaintiff. She went on to point out that
the concept of a “
care person”
had a very
particular meaning in the United Kingdom and was more akin to
permanent nursing care of the kind customarily required
for an
elderly or incapacitated person. There is nothing to gainsay the
evidence of Ms. Andrews on this score and, importantly,
Ms. Crouse
was not called to testify on behalf of the plaintiff.
[44]
The attempt to elevate the domestic help which the
occupational
therapists had in mind to a “
care person
” is, in
my view, a distortion of the expert opinion. One need look no further
than the explanatory detail furnished by the
plaintiff in para 9.2.1
to see that there is no realistic comparison between the concepts. A
care person works full-time for 2340
hours per annum (9x5x52) whereas
domestic help contemplates at most 520 hours per annum (10x52), and
then only when the plaintiff’s
wife is not around to help out.
[45]
But, in any event, Ms. Andrews explained to the court
what she and
her colleague had in mind. She said domestic help involved tasks such
as cleaning the house, moving furniture, hanging
up the laundry,
making the beds, cooking and perhaps purchasing a few items at the
supermarket. A care person on the other hand
performed the kind of
time-consuming, heavy duty work such as one would expect at a nursing
home from a full-time nursing assistant
involving, inter alia,
attending to the patient’s ablutions and bathing, dressing,
providing medication, helping the person
to eat, assisting with
mobility and the like. Finally, Ms. Andrews pointed out that the
plaintiff is currently in the care of an
occupational therapist who
would be able to help him learn new coping strategies and methods and
assisting where necessary. She
noted that he currently attends
occupational therapy at the local hospital up to 3 times per week.
CONCLUDING REMARKS
[46]
In the result I am not
persuaded that the plaintiff has made out a
case for the relief sought in relation to damages to cover the cost
of a care person
as contemplated in paragraph 9.2 of the amended
particulars of claim. His physical condition simply does not bring
him within the
ambit of that level of care. At best for the
plaintiff, he is entitled to be compensated for the cost of the
domestic assistance
referred to by the occupational therapists, as
also the assistance of a handyman-cum-gardener six times per annum.
It will be noted
that the occupational therapists expressed some
reservations regarding the circumstances under which these assistants
might be
engaged (the former when the plaintiff’s wife was not
present; the latter in the event that the plaintiff became a
home-owner).
Such reservations demand that a contingency deduction be
applied to each category. However, in relation to the latter and
having
heard the evidence of Ms. D’Oliveira, I am satisfied
that the services of a handyman-cum-gardener will be warranted
notwithstanding
the fact that the plaintiff lives in rented
accommodation.
[47]
The contingency to be
applied to the claim for domestic assistance
should attract a fairly heavy contingency given that it is largely
dependent on the
non-availability of the plaintiff’s wife and,
further in view of the fact that there is a paucity of evidence to
suggest
that she is not likely to be in the home for the foreseeable
future. I consider 40% to be fair in the circumstances. As far as the
handyman-cum-gardener is concerned I consider that a much lower
contingency deduction should be applied given the likelihood that
the
employment of such a person is fairly inevitable. In that regard I
consider 10% to be fair.
[48]
As far as the hourly
rate for either of these assistants is
concerned, the opinion of Mr. Carter in 2014 was that a rate of
between £13.50 and
£16 per hour might be charged. Given
that the report is 4 years old I consider that the rate for either
category of assistant
should be £15 per hour. I should add that
counsel on both sides seemed to be fairly comfortable with that
figure.
COSTS
[49]
I consider that the
plaintiff has been substantially successful in
these proceedings and that costs should follow the result. However,
in matters such
as these, it is customary for parties to cover the
risk of an adverse costs order by making without prejudice offers to
each other.
I do not know whether that has occurred in this matter
and I shall accordingly make a provisional costs order while
reserving the
right to either party to approach this court on 14
days’ written notice to the other for a reconsideration of the
costs order.
Finally, the parties may approach this court with a
draft order as to the final damages award to be made once the
necessary actuarial
calculations have been made.
ORDER OF THE COURT
THE FOLLOWING DECLARATORY ORDERS ARE MADE:
A.
A
contingency deduction of 20% (Twenty per cent) shall be applied to
the Plaintiff’s Permanent Incapacity Payment;
B.
The
plaintiff is entitled to recover the cost of domestic assistance for
10 hours per week at the rate of £15 (Fifteen Pounds
Sterling)
per hour;
C.
A
contingency deduction of 40% (Forty percent) shall be applied to the
award for domestic assistance;
D.
The
plaintiff is entitled to recover the cost of a handyman-cum-gardener
for 6 hours per day on 6 occasions per annum at the rate
of £15
(Fifteen Pounds Sterling) per hour;
E.
A
contingency deduction of 10% shall be applied to the award for a
handyman-cum-gardener;
F.
The
defendant shall pay the plaintiff’s costs of suit herein;
G.
Either
party shall be entitled to approach this court on 14 days’
written notice to the other side for the reconsideration
of the costs
order made in para F above.
GAMBLE, J
[1]
Standard General Insurance Co Ltd n Dugmore NO
1997 (1) SA 33
(A) at 42B
[2]
Southern Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) at 116H
[3]
Fulton v Road Accident Fund
2012 (3) SA 241
(GSJ) at [93] –
[94]
[4]
Goodall v President Insurance Co Ltd
1978 (1) SA 389
(W) at
392H
[5]
Cunningham v Harrison and another
[1973]
3 All ER 463
(CA) at 469e.
[6]
[1957] 3 All ER153 at 156
[7]
(1966) 110 Sol Jo 408.
[8]
[8][8]
General Accident Versekeringsmaatskappy SA Bpk v Uijs NO
[1993] ZASCA 58
;
1993
(4) SA 228
(A) at 237A
[9]
He was represented in the litigation by Adv Uijs NO, his
curator
ad litem.
[10]
“
It is not uncertain whether van Huyssteen’s
condition demands accommodation in a structured institution. All
that is uncertain
is the extent to which he will make use thereof.
His position is comparable to that of a paraplegic requiring nursing
care day
and night, but who may rather decide, to the extent that it
is possible, to be cared for by her husband at night. Nonetheless
the cost of nursing care is the extent of her recoverable damage, or
put otherwise her measure of compensation. (Cf
Cunningham
v Harrison
…at 469
)
And
similarly in this matter the cost of structured accommodation of van
Huyssteen is his measure of compensation regardless
of whether he
makes use thereof continuously or not.(An allowance must however be
made to take account of the possibility that
van Huyssteen may, on
occasion, acquire semi-structured accommodation”
(Own
translation)
[11]
The amendment to the claim was effected in March 2015.