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[2019] ZAWCHC 167
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D.B v City of Cape Town (11730/2015) [2019] ZAWCHC 167 (1 February 2019)
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No: 11730/2015
Before
the Hon. Mr Justice Bozalek
Hearing: 7, 8 &
14 November 2018
Delivered:
1 February 2019
In
the matter between:
D
B Plaintiff
and
THE
CITY OF CAPE
TOWN Defendant
JUDGMENT
BOZALEK J
[1]
The
plaintiff
claims damages from the defendant, the City of Cape Town following an
incident on 9 March 2013 when he fell into an uncovered
drain
inspection hatch whilst fleeing from attackers and as a result
suffered a severe injury to his right ankle. He now claims
general
damages in the amount of R 280 000 together with special damages
for loss of past and future income as well as past
and future medical
expenses. The merits of the claim have been settled but the parties
have, unfortunately, been unable to resolve
the quantum of damages.
[2]
In
the trial the plaintiff testified and led the evidence of Dr Theo Le
Roux, an orthopaedic surgeon; Ms Benita Crouse, an occupational
therapist; Mr Johan Benade, and industrial psychologist and Mr Edward
Theron, an actuary. The defendant presented no evidence.
[3]
Dr
Le Roux testified that the plaintiff suffered a Weber Fracture of the
right ankle with fractures of the medial and lateral malleoli
as well
as to his ribs. He was unable to work for four months and was
hospitalised for one month. Post-discharge he had to use
crutches for
four months after which he could mobilise independently. As a result
of the injury the plaintiff is no longer able
to run, limps when
walking, has to rely on a bannister when managing stairs, has added
pain in winter in the ankle, has to rely
on pain killers most days
due to the pain in the ankle and is no longer able to jump and land
on the injured leg. Further sequelae
are that he has poor balance, is
no longer able to walk a long distance and has to rely more on public
transport, has to be careful
when walking on uneven surfaces and,
whereas he once worked seven days per week, he can now only work five
days per week. The plaintiff
was 45 years old at the time of the
accident and 48 at the time of the trial. He is self-employed as a
shoe shiner working at the
Waterfront. His job entails soliciting
clients and then squatting in front of them whilst they sit on an
elevated chair in order
to clean and shine their shoes. The plaintiff
lives in Kraaifontein in Bloekombos and has a long journey by public
transport to
and from work each day.
[4]
The
surgery which the plaintiff underwent was an open reduction and
internal fixation of the fracture which was then placed in plaster
of
paris.
[5]
The
plaintiff’s case was not presented with care with the result
that there was a good deal of chopping and changing in the
amounts
being sought both under special and general damages. What is more,
the argument delivered on behalf of the plaintiff was
cursory and, as
a result, less helpful than it should have been.
[6]
As
far as earnings was concerned after a number of false starts a
document, Exhibit D, was eventually introduced into evidence
recording the monthly turnovers as submitted by the plaintiff’s
business to the Waterfront from 2012 to 2016. It was agreed
that this
document would form the basis for calculations of past and future
income. It does not, however, record the tips which
the plaintiff
earned which must therefore be separately catered for. The
plaintiff’s evidence was that as at November 2018,
working a
five day week i.e. not on Saturdays or Sundays, he would earn tips of
approximately R 500 per month. It was the plaintiff’s
undisputed evidence furthermore that for a period of four months from
the accident when he was unable to work at all his business
was
conducted by a substitute who paid him 50% of the income earned but
no tips. Thereafter the plaintiff commenced working a five
day week
and it is to be assumed will continue to do so until reaching a
retirement age of 65 years. During that period however
he will earn
monthly tips based on a five day working week i.e. R 500 per month in
November 2018 terms.
[7]
As
far as future medical costs are concerned, Dr Le Roux reported that
the plaintiff would need regular consultations to monitor
the effect
of the injuries to his ankle at a total cost of R 20 000,
regular pain medication at a cost of R 50 000 and
an adapted
heel to his shoe at R 850 for each such adaptation. As far as future
surgery was concerned the removal of the internal
fixation which
tended to cause pain would cost R 45 000 and, if that was
unsuccessful, an arthrodesis of his right ankle would
be necessary at
a cost of R 95 000 if his ankle degenerated. Dr Le Roux
effectively discounted the possibility of a left ankle
arthroplasty.
Analysis
[8]
I
propose to deal firstly with the claims for loss of income,
thereafter the future medical costs and finally the general damages.
Loss
of Income
[9]
It
was common cause that as a result of his injuries the plaintiff was
no longer able to walk certain stages of his journey to and
from work
but had to catch a taxi resulting in increased travelling expenses of
R 28 per day. It was agreed, however, that this
claim would be offset
in lieu of a reduction in the plaintiff’s monthly earnings as
recorded in Exhibit D which did not take
into account the plaintiff’s
rental, a figure of approximately R 300 per month. As a result the
claim for additional traveling
expenses can be disregarded and the
turnover/income figures in Exhibit D can be accepted as an accurate
picture of the business’
income, subject to inflationary
increases. Those income figures must be adjusted furthermore to take
account of the tips which
the plaintiff earns and which are not
reflected therein. It was common cause that as at November 2018 the
plaintiff earned monthly
tips of approximately R 500 working a five
day week. There are different methods of calculating the amount of
tips which would
have been earned by the plaintiff had he worked on a
seven day basis but in my view the most appropriate assumption is
that the
sum of R 500 reflects 5/7ths of what the plaintiff would
have earned in tips working a seven day week.
[10]
The
parties were at idem that the plaintiff will continue to work in the
same job until retiring at the age of 65 years.
[11]
I
accept the evidence that after the accident in March 2013 the
plaintiff earned 50% of the revenue of his business for four months
but earned no tips in that period. Since June 2013 the plaintiff has
worked five out of a possible seven day week i.e. not on Saturdays
and Sundays. However, he earns the value of six out of the seven days
of the weekly revenue since he arranged for a substitute
over the
weekends with whom he shares 50% of the revenue of the business over
those two days. He does not, however, earn any share
of the tips
earned over those two days. In other words the plaintiff’s loss
of income is 1/7
th
of the weekly revenue of his business plus 2/7ths of the tips earned.
As mentioned it was common cause that past and future income
must be
calculated on the basis of the turnover figures set out in Exhibit D.
Further assumptions which must be applied to such
calculations and
which were not in dispute are those as set out in para 5.2 of the
report of the actuary dated 20 June 2018 (Mr
Edward Theron). These
relate to price inflation, postulating a future rate of 5% and a nett
discount rate of 3.5%, earnings inflation
at a future rate of 6% and
a nett discount rate of 2.5%. They use an interest rate after all
fees and taxes of 8.65% and tax according
to the 2018/2019 table.
They also postulate a mortality table according to the South African
lifetables 1984 to 1986 for males.
Contingencies
[12]
Ultimately
the plaintiff’s counsel contended for a 2.5% and 7.5%
contingency deduction on past and future uninjured income
respectively, no contingency deduction on past injured income and a
30% contingency on future injured income. On behalf of the
defendant
it was contended that no contingency deductions should be made with
regard to past income i.e. not even a 2.5% contingency
on past
uninjured income. I accept the defendant’s contentions in this
regard. As for future income the defendant contended
for a
contingency deduction of 25% to be applied to both future injured and
uninjured income. The rationale for no distinction
being drawn is, as
I understand it, that the plaintiff’s career path would be
exactly the same on both scenarios, the only
difference being that on
the injured scenario the plaintiff earns on the basis of six working
days per week. In my view a distinction
should be drawn since, on the
uninjured scenario, the plaintiff would work seven out of seven days
a week for the rest of his working
life which is quite an exacting
regime for a man beyond two score years and ten whilst in the injured
scenario i.e. (five days
per week) he is also dependent on an
additional external factor, namely, engaging the services of someone
who will work over weekends
and share those takings with him (apart
from tips) and he suffers from a physical limitation which has the
potential of introducing
further obstacles into his career path.
[13]
The
defendant seeks, as I have said, contingency deductions of 25% of
future injured and future uninjured income. Provision for
contingencies is often made by the courts in awarding damages for
future loss to account for the ‘
vicissitudes
of life’
.
It has been remarked that uncertainty is a central tenet of the
concept of contingencies since they cannot be proven on a
preponderance
of probabilities and fall outside the domain of
actuaries.
[1]
The determination
of contingencies therefore falls within the discretion of the Court
which must decide what is reasonable or fair
in the specific
circumstances of the matter.
[14]
A
Court can take judicial notice of general contingencies. In this
regard Koch in a section headed
‘General
contingencies’
in his Quantum Yearbook 2018, includes guidelines which he suggests
can be helpful to the Courts. He advocates a sliding scale
of
deductions of a half percent a year to retirement age, thereby
constituting 25% for a child, 20% for a youth and 10% for a middle
aged person. By contrast the Road Accident Fund, one is told, usually
employs ‘
normal
contingencies’
of
15% for future loss. In my view a contingency deduction for future
income based roughly on the age of the claimant is appropriate
simply
because more ‘
vicissitudes
of life’
are likely to occur in a longer life span than in a shorter one.
Based on the plaintiff’s age a contingency deduction of
10%,
being roughly half a percent for each of the remaining years of his
uninjured income earning life, appears appropriate. I
do not
subscribe to the defendant’s notion that the contingency
deductions for future injured income must be the same percentage
as
that for injured income because the plaintiff’s future
scenarios are similar i.e. the only difference being that on the
injured scenario the plaintiff merely earns six sevenths of what he
would earn on the uninjured scenario. In my view a greater
contingency deduction should apply to the injured income scenario
since the plaintiff is now more vulnerable to the vicissitudes
of
life vis-à-vis his income earning capacity. He is no longer
able bodied. The burden of the distances he must travel to
his
workplace and the physical duties he must perform in his job are more
likely to exact a toll on him. Furthermore, as mentioned
previously
the plaintiff is no longer the sole master of his fate in that a
portion of his income is generated by a substitute
with whom he
shares his weekend profit. Finding such a person may not always may
not always be possible or likely be arranged on
such advantageous
terms for the plaintiff. This is simply to mention two possible
variables. Nonetheless there is no direct evidence
to suggest that
the plaintiff’s present career path or future will not follow
the course envisaged, namely, that he will
continue working until age
65. Taking all these factors into account I consider that an
appropriate contingency deduction for future
injured income would be
20%.
Future
medical costs and expenses
[15]
The
actuarial assumptions set out in para 3.2 of the Actuarial report
dated 30 June 2018 set out at page C57 of the trial bundle
should
apply, there being no disagreement between the parties on this score.
This entails a future medical inflation rate of 8.65%.
The various
heads under which these costs and/or expenses were claimed are based
on the evidence of Dr Le Roux as supplemented
by further evidence
from the plaintiff as to the medical aids and medications which he is
presently using and their costs. There
was little disagreement
between the parties on the items or heads but some differences on
their present value, in some cases on
the probability of the expense
being incurred and a contingency deduction. I shall deal with them in
turn.
[16]
The
capital value for the future costs for the following items must be
calculated as follows:
Consultations
R
20 000 spread over the plaintiff’s remaining lifetime.
Medication
Dr
Le Roux estimated a present value for pain relief medication in the
amount of R 50 000. However, this figure was something
of a
thumb suck and was undermined by Dr Le Roux’s evidence that he
estimated a cost of R 150 per month for medication over
a period of
20 years. This produces a sum, in present terms, of R 36 000 (R
150 x 12 x 20). Defendant’s counsel pointed
out that the
plaintiff is presently spending much less than R 150 per month on
pain medication. This may be so but R 150 per month
is a rounded
average, presumably taking into account that the plaintiff’s
requirement for pain medication will increase as
time goes by and
that he will be able to afford more effective pain medication once
the award is made. I consider it appropriate
to make provision for an
amount of R 40 000 spread over the plaintiff’s remaining
lifetime.
Right
ankle orthopaedic aids
There
was evidence that there was a 40% probability of the plaintiff
requiring these from the age of 68 at a cost of R 850 per aid
replacing these every one and a half years over his remaining
lifetime. I accept this evidence.
Surgery
right ankle joint
I
accept the evidence that there was a 40% chance of the plaintiff
developing degenerative arthritis and a 90% chance, in that event,
of
an operation being required at age 68 costing R 95 000.
Hot
packs
These
cost R 350 each, last three years and will be used over the
plaintiff’s remaining lifetime.
Ankle
Guards
These
cost R 350 each, last three years and will be used over his remaining
lifetime.
Knee
Guard
Similarly,
these cost R 350 and will be required every three years over his
remaining lifetime.
Occupational
therapy
The
plaintiff will require five sessions over his remaining lifetime at a
cost of
R
490 per session.
Handyman
Assistant
There
was evidence that the plaintiff in his disabled state can no longer
do the necessary major maintenance to his house and a
claim was made
for the cost of a handyman at R 350 per day, ten days per year for
the remainder of his lifetime. The plaintiff
testified that he has to
obtain assistance with work such as maintenance of the roof on his
house and repairing the toilet but
that neighbours assist him with
much lesser tasks such as changing the lightbulbs and the like. In my
view provision for employing
a handyman five days per year at R 350
per day over his remaining lifetime is fair and appropriate.
[17]
The
plaintiff contends that no contingency deduction should be applied to
these costs and expenses whereas the defendant seeks a
contingency
deduction for all items save for the right ankle orthopaedic aids and
surgery for the right ankle joint where probabilities
are already
built into the calculation. I can see no particular reason for
applying a contingency deduction to these amounts, more
particularly
to those amounts where no probability was already included. The
defendant contended for a ‘
normal’
10% contingency deduction. The plaintiff’s life expectancy has
already been factored in and on the probabilities he will
require all
the treatment. That treatment might end up being more expensive which
would call for a positive contingency deduction.
I favour the
reasoning and approach of Rogers J in
AD
and ID v MEC for Health and Social Development Western Cape
Provincial Government
(Case
No 27428/2010) delivered on 10 September 2016 where inter alia he
discounted the risks, the possibility of errors in the estimation
of
life expectancy, the possibility of illness which might have occurred
in any event, inflation or deflation and finally, ‘
other
risks of life such as accidents or even death, which would have
become a reality sooner or later in any event’
,
none of which factors he found compelling. None of these factors or
others were argued in particular in this matter. Rogers J
pointed out
also that failing to make a contingency deduction from medical
expenses is by no means novel. See
De
Jong and Dupisani NO
2005 (5) SA 457
(SCA) paras 48 – 49. Therefore I hold
that no contingency deduction need be applied.
General
Damages
[18]
That
leaves the remaining issue of general damages where the plaintiff
contended for an award of R 280 000 and the defendant
for one of
R 80 000. The plaintiff’s injuries and disabilities were
as described by Dr Le Roux in para 3 of this judgment.
The
disabilities were confirmed by the evidence of the occupational
therapist, Ms Crouse, and by the plaintiff himself. It is clear
that
the ankle injury which he sustained has had a far-reaching and
negative effect on the plaintiff’s lifestyle and also
seems to
have affected his overall outlook on life. Apart from his ability to
function as a shoe shiner at the V&A Waterfront,
the plaintiff
must now take pain medication on a daily basis and has independently
sought to alleviate his pain with knee and ankle
guards or braces. He
no longer has the mobility and functionality that he previously had
and must resort to using public transport
where he once could easily
walk. It is clear that as the years go by his disability will have an
increasing effect upon him. The
plaintiff must have suffered
considerable pain and suffering in the first few weeks post injury
when he had to wait until the swelling
subsided before he could have
the necessary surgery. He was either fully immobilised or
semi-immobilised for a period of four months.
The general effect of
his disability is that he is less active and less able to make a
contribution in his household. The plaintiff
complained that this
contributed to the breakdown in the relationship with his wife and
has rendered his sex life less enjoyable.
There can be no doubt that
the plaintiff is less able to cope with the exigencies of his work
given both his disability and the
pain which he suffers and the fact
that his job requires him to present as positive and cheerful and to
‘
market’
himself by moving around the immediate area of his shoe shine stand
soliciting clients.
[19]
The
plaintiff relied on three cases in substantiating of the award which
he sought. The first was
Alla
v Road Accident Fund
(handed down on 13 November 2012) where a 41 year old correctional
services officer had suffered a fracture of the ankle resulting
in a
displacement of the distal tibia fibula joint, with soft-tissue
injury. She underwent surgery in the form of an open reduction
and
internal fixation of the fracture and was immobilised in a cast for
six weeks and thereafter in an air-cast brace. Years later
she still
experienced pain in the ankle resulting in difficulty in walking long
distances, standing for lengthy periods of time,
ascending or
descending stairs, walking on uneven surfaces, carrying heavy objects
and getting in or out of a vehicle. She was
unable to run or walk
fast or play active sports. Prior to the accident she used to play
netball. In the future there was a risk
of degenerative arthritis in
which case an ankle fusion or ankle replacement procedure would be
necessary. After being discharged
from hospital she was in a
wheelchair for a period of six weeks and when she resumed her duty
two months after the incident she
was still walking with the aid of
crutches. She had to relocate her residence to the ground floor of
the building due to her difficulty
in climbing stairs. The plaintiff
in that matter endured acute pain for about a week to ten days
following the accident and the
operation and pain of the same
intensity following the removal of the internal fixatives. The
plaintiff was awarded an amount of
R 200 000 as general damages
in respect of injuries suffered and the sequelae thereto.
[20]
The
second case relied on was that of
Tlhakane
v The Road Accident Fund
(Case no 29632/2014, North Gauteng, Pretoria) handed down on 24
November 2015. The plaintiff sustained a tri-malleolar ankle fracture
and facial scars after being hit by a car. He was discharged from
hospital after three days but admitted a month later for sepsis
on
the right ankle wounds. The implants in the ankle, a fibula plate and
screws, were removed 18 months later. Four and a half
years later the
plaintiff limped, used a crutch to mobilise and complained of pain in
cold weather. He suffered from acute pain
in the first few weeks
following the accident. An X-ray revealed early post traumatic
osteo-arthritis of the right ankle which
might eventually necessitate
an arthrodesis (ankle fusion). The plaintiff’s psychological
functioning was found to be dominated
by a mood which was
predominantly severe depression and severe anxiety, this being a
sequela of the car accident. Further regarding
his ankle injury he
had pain when walking for longer than 30 minutes or standing for
extended periods and required a ‘
mobility
aid’
when walking. He had pain when walking longer than 30 minutes and
used pain medication on a daily basis. His balance was slightly
compromised and he complained of pain of the right ankle and lower
back. He walked with a limp using a crutch. After the operation
he
required assistance for about five months with self-management tasks.
[21]
After
considering a range of similar cases the Court found striking
similarities between that case and the
Alla
case
although there were also significant differences which made the
injuries and sequelae in the
Thlakane
case more serious. In the result it awarded general damages in the
amount of R 280 000 (the award in
Alla
has a present day value of R 280 000 whilst the award in
Thlakane
has a current value of R 333 000).
[22]
Finally,
the plaintiff relied on the arbitration decision of
Van
Dyk v The Road Accident Fund
where a 44 year old female machinist suffered an undisplaced fracture
of the left malleolus (ankle), with tearing of the surrounding
soft
tissues. Her leg was immobilised in plaster for about two and a half
months. The fractured bone united without complications
but chronic
inflammation developed in the ankle due to fibrotic scar tissue and
ultimately capsulitis of the ankle and tendonitis
in the lower leg.
The claimant experienced chronic (but low grade) pain and swelling on
a daily basis, particularly after using
the left leg and foot for any
length of time. Her ankle was usually very sore by early afternoon.
The condition was irreversible
and permanent and conservative
treatment would alleviate the symptoms but not cure the pathology
with the result that the claimant
would probably retire five years
prior to normal retirement age or possibly even sooner. The
claimant’s left leg was immobilised
in a plaster cast for more
than two months. The arbitrator awarded the claimant R 90 000 in
general damages which has a current
value of R 204 000.
[23]
By
way of general principle I note that the Constitutional Court has set
out the practical difficulty in assessing non-patrimonial
loss for
general damages inasmuch as such loss is an illiquid amount and not
susceptible to precise calculation in monetary terms.
[2]
The best that a Court can do is decide ‘
by
the broadest general considerations’
on
an amount which it considers to be ‘
fair
in all the circumstances of the case’
.
It is trite that no one case precisely matches another and there is a
limit to the value of comparing awards in similar cases.
Care must be
taken not to overcompensate claimants out of a natural sense of
sympathy. This last consideration was well put by
Holmes J (as he
then was) in
Pitt
v Economic Insurance CO Ltd
1957 (3) SA 284D
where he stated that ‘…
that
the Court must take care to see that its award is fair to both sides
- it must give just compensation to the plaintiff, but
must not pour
our largesse from the horn of plenty at the defendant's expense’.
This
considered and sober approach, bearing in mind at all times that the
award must be fair, has been endorsed by our highest courts
on a
regular basis including in
De
Jongh v Dupisani
2005 (5) SA 467
(SCA) para 60 where Brand JA warned that in
exercising its discretion in the assessment of general damages in
tragic cases concerning
bodily injury, courts should guard against
the tendency of humans to overcompensate.
[24]
In
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) para 20, referring to an exercise in which
awards and similar cases had been scrutinised, Nugent JA stated as
follows: ‘
Money
can never be more than a crude solatium for the deprivation of what,
in truth, can never be restored and there is no empirical
measure for
the loss. The awards I have referred to reflect no discernible
pattern other than that our courts are not extravagant
in
compensating the loss’
.
The Court went on to state of such an exercise ‘
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate but they have no higher value
than that’
.
[25]
In
arguing for an award of R 80 000 under this head defendant’s
counsel sought to distinguish the cases of
Alla
,
Thlakane
as being more serious and placed reliance in particular on the case
of
Adam
Richard James v City of Cape Town
where
in 2013 the 46 year old plaintiff was awarded R 200 000 in
general damages after he fell through a broken storm water
drain
cover. That award has a present value of approximately R 265 000.
The plaintiff was a professional dog walker at the
time of the
incident and was an active and physically fit individual who was
active in sport. His quality and engagement in physical
activities
had been substantially affected. He was also diagnosed with reactive
or secondary depression as a result of the incident.
His injuries
were a compound fracture to the left tibia and injuries to the left
knee, left ankle and lower back which left him
with a tendency to
fall. He was skewed to the left hand side and his left leg was 2cm
shorter than the right leg. The defendant’s
counsel contended
that the plaintiff’s injuries in James were substantially more
severe than in the present matter with the
added sequelae that he
could not perform his duties as a dog walker and could no longer
participate in physical activities as he
had done in the past.
[26]
The
defendant’s counsel also sought to distinguish
Van
Dyk v Road Accident Fund
as involving more serious injuries and sequelae to the plaintiff.
Finally, she placed reliance on the case of
Matsana
v Minister of Police
which, she submitted, involved a plaintiff whose injuries were more
severe but who was awarded on the sum of R 107 000 in
general
damages (current value). That case was determined in 2016. The
plaintiff had suffered a gunshot wound to his right foot
and had to
undergo two operations. Two further operations were recommended to
relieve painful symptoms in his right foot and the
plaintiff had
unsightly scars on his right foot and his right thigh. He continued
to suffer from the effects of bullet shrapnel
in his foot and
suffered impaired function so that he could no longer play soccer or
work in his garden. The award in this matter,
however, seems to me to
be out of sync with other awards. It indicates that there are
sometimes outliers and underlines that there
is are definite limits
to the value of comparing cases.
[27]
The
plaintiff was immobilised for some time and, according to Dr Le Roux
underwent considerable pain and suffering during the period
when the
swelling in his ankle was required to subside before surgery could
commence, a period of some ten days. It was clear from
his evidence
that life has become something a daily struggle for the plaintiff
particularly as he is someone who has to rely on
public transport in
order to make his way to and from work and does not enjoy the luxury
of travelling in a motor vehicle. The
sequelae of his injuries were
far-reaching inasmuch as where he had previously been an active
person making a full contribution
to the running and maintenance of
his home this was severely constrained after his accident. I accept
that this would have placed
some strains on his relationship with his
wife but his evidence in this regard is unsubstantiated and it is
something of a stretch
to accept that this alone led to the divorce
from his wife. Other sequelae mentioned by the plaintiff, such as a
deterioration
or discomfort in his sex life as well as change in his
personality for the worse, although not to be entirely discounted,
were
not sustained or borne out by any professional evidence.
[28]
When
regard is had to awards in similar cases it must be borne in mind
that the plaintiff was a middle aged man at the time of the
accident
and, apart from the ordinary activities of daily living, was not
active in sports or any other related sphere which was
accordingly
affected by the disability/ies from which he now suffers. Taking all
the circumstances and relevant factors into account
I consider that
an appropriate award of general damages would be one of R 220 000.
[29]
The
following order is made:
1.
The
plaintiff is awarded the sum of R 220 000 as general damages;
2.
The
plaintiff’s actuary is directed to calculate the capital value
of the past and future loss of income suffered by the plaintiff
arising from the incident which occurred on 9 March 2013 as follows:
2.1
The
actuarial assumptions as set out in paragraph 5.2 of the actuarial
report dated 20 June 2018, at C53 of the trial bundle, should
be
applied with 1 December 2018 as the date for calculation relevant to
the future loss of income;
2.2
The
actuary is to have regard to the monthly turnover of ‘Upper
Shoe Shine’ as recorded in Exhibit D before the Court;
2.3
The
actuary must include in his calculations the tips earned by plaintiff
(not reflected in Exhibit ‘D’ which on a five
day week
averaged R 500 (2018 value) per month;
Past
Loss of Income (March 2013 to 1 December 2018)
2.4
The
actuary must calculate the past loss of income by subtracting the
injured past income from the uninjured past income;
Past
Uninjured Income
2.5
The
actuary must calculate the
actual
monthly income (using exhibit D) and add the contemporaneous value of
the monthly tip average of R 500 (2018 value) to the reported
turnover; in so doing the actuary must adjust the figure of R 500
(based on a five day working week) to a seven day working week,
for
example, as at November 2018 the plaintiff earns R 500 per month in
tips i.e. for approximately 22 working days whereas on
the seven day
working week he would earn approximately R 680 per month/in that
month (30 days x R 23 per day);
Past
Injured Income
2.6
For
the four months from March 2013 the actuary must calculate the value
of 50% of the reported revenues in exhibit “D”
(i.e. no
tips earned);
2.7
Thereafter:
2.7.1
the
actuary must calculate the value of 6/7ths of the reported revenues
i.e. for six days of work; and
2.7.2
add
the appropriate value for tips earned based on an average of R 500
per month (2018 value) (for five days of work).
Future
Loss of Income (1 December 2018 onwards)
2.8
The
actuary must calculate the capital value of future loss of income as
follows:
Future
Uninjured income
2.8.1
The
actuary must calculate the value of the revenue reported in Exhibit D
as at 1 December 2018 (on a seven day working week basis)
and apply
income inflation to the value referred to in paragraph 2.8 until the
retirement age of 65 years;
2.8.2
The
actuary must add monthly tips, averaging R 500 over a five day week,
adjusted pro rata upwards for a seven day week and adjusted
for
inflation, until the retirement age of 65 years;
Future
Injured income
2.8.3
The
actuary must present the value of future income, referred to in
paragraph 2.8.1, for six days per week instead of a full week
of
seven days;
2.8.4
The
actuary must add the value of the tips, referred to in paragraph
2.8.2, for five days of the week instead of a full week of
seven
days; and
3.
A
contingency deduction of 10% and 20% must be applied to future
uninjured and future injured income respectively;
4.
The
plaintiff’s actuary is directed to calculate the plaintiff’s
future medical costs and/or medical costs and/or expenses
as follows:
4.1
The
actuarial assumptions as set out in paragraph 3.2 of the actuarial
report dated 20 June 2018, at C57 of the trial bundle, must
be
applied;
4.2
The
capital value of future costs must be calculated as follows:
4.2.1
Consultations
:
R 20 000 spread over the remaining lifetime;
4.2.2
Medication
:
R 40 000 spread over the remaining lifetime;
4.2.3
Right
ankle orthopaedic aids
:
40% probability at age 68 of R 850 every 1.5 years over the remaining
lifetime;
4.2.4
Surgery-right
ankle joint
:
40% chance of degenerative arthritis developing and thereafter a 90%
chance of an operation being required at age 68 costing R
95 000
spread over the remaining lifetime;
4.2.5
Hot
packs
:
R 350 every 3 years over the remaining lifetime;
4.2.6
Ankle
guard
:
R 350 every 3 years over the remaining lifetime;
4.2.7
Knee
guard
:
R 350 every 3 years over the remaining lifetime;
4.2.8
Handy
man
:
5 days per year at R 350 per day for the remaining lifetime; and
4.2.9
Occupational
therapy
:
Five sessions over remaining lifetime at R 490 per session.
4.3
Apart
from items 4.2.3 contingency and 4.2.4 no contingency deduction will
apply.
5.
Should
the parties require clarity on the terms of the order or to raise
issues which may have been overlooked they may approach
the Court to
that end. The Court reserves its right to clarify or supplement the
order, if needs be. The parties are also granted
leave to approach
the Court to make an appropriate order once the actuarial
calculations have been completed and, if needs be,
to seek an
appropriate costs order.
____________________
BOZALEK J
For
the Applicant
: Adv P Eia
As
Instructed by
: A
Batchelor & Associates
For
the Respondent
: Adv A Du
Toit
As
Instructed by
:
Welgemoed Attorneys
[1]
Potgieter et al, Visser and
Potgieter’s Law on Damages, on page 147.
[2]
Van Der Merwe v The Road
Accident Fund (Women’s Legal Centre Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
CC
para 39.