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[2012] ZAGPJHC 13
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Dlamine v Road Accident Fund (10/39907) [2012] ZAGPJHC 13 (21 February 2012)
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NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 10/39907
DATE:21/02/2012
In
the matter between:
DLAMINE
DUNSTON
................................
Plaintiff
and
ROAD
ACCIDENT FUND
.........................
Defendant
JUDGMENT
FRANCIS
J
Introduction
1.
The plaintiff was involved in a motor collision accident on 23 May
2007 as a result of which he sustained severe injuries. He
instituted
an action for damages against the Road Accident Fund (the defendant),
for the following:
1.1General
damages for pain and suffering, discomfort, loss of amenities of
life, disfigurement and emotional shock and trauma.
R2 000 000.00
1.2
Special damages for R9 447 984.52 made up as follows:
1.2.1
Past medical expenses R 123 184.52
1.2.2
Future medical expenses R 574 800.00
1.2.3
Past of loss of earnings R 250 000.00
1.2.4
Future loss of earnings R8 500 000.00
2.
The defendant has conceded the merits. The defendant is therefore 100
percent liable for any proven damages by the plaintiff.
It did not
dispute the injuries sustained by the plaintiff.
3.
The plaintiff has abandoned his claim for past loss of earnings since
he has not incurred such losses. The defendant has in terms
of
section 17(4)(a) of the Road Accident Fund (the Act) given an
undertaking for future medical expenses that the plaintiff might
have
to incur. The parties have agreed that the plaintiff has incurred
past medical expenses amounting to R123 184.52. The defendant
has
admitted that the plaintiff is entitled to be compensated for general
damages but the amount is in dispute. The defendant disputes
the
plaintiffs entitlement to future loss of earnings and interference
with earning capacity. The defendant avers that the plaintiffs
earning capacity may be affected but does not render him
unemployable.
4.
A curator ad litem was appointed for the plaintiff.
The
evidence led
5.
The plaintiff did not testify. He was examined by a number of experts
who provided reports about his condition. Some information
was
provided to them by his mother. The plaintiff is married with three
children but is separated from his wife because of the
accident. It
appears from the reports that were not opposed or contested by the
defendant that he was born on 17 January 1970.
He was a premature
baby. He did his Sub A in 1976 which he passed but had to repeat it
again in 1977 after he had changed schools.
In 1986 he passed
standard 8. In 1987 he passed his Nl but could not complete the N2 in
1988 due to financial constraints. In 1989
he joined MK (the ANC
military wing) until 1994 but was not trained. He was integrated into
the South African National Defence
Force (SANDF) in 1994. He received
his basic training from January 1995 to June 1995 and was based at
the 3 SA1 Military Base in
Kimberley. After the basic training, he
was placed at the Lenz military base where he was appointed a private
and was trained as
a carpenter. From July 1995 to 2002 he was a
private soldier at the SANDF Lenz military base. During the training,
he would attend
roll call, and spend the day working in the carpentry
workshop. All types of tradesmen worked at the technical maintenance
centre.
He specialised in carpentry - at the maintenance centre
everything made of wood was fixed in the carpentry workshop,
including
the handles of rifles, tables, door frames, ceilings etc.
The SANDF sent him to three colleges in Centurion, Durban and
Attridgeville
where he completed 26 modules. The courses were both
theory and practically orientated with a focus on more practical
matters.
He received full training in carpentry whilst employed in
the SANDF. He has done some short courses in computers and first aid.
In terms of his ideal career aspirations, he would have liked to have
become an architect, in 2002 he was promoted to corporal
in the
technical department of the SANDF. He completed a course for non
commissioned officers and then was transferred to Heidelberg
in 2006.
His duties there were receiving and releasing military vehicles that
required servicing. He was also responsible for guard
duties and
carried a firearm..
6.
On 23 May 2007, he was involved in a motor accident collision which
resulted in him being
admitted
to the Union Hospital for a week and because he is an employee of the
SANDF was transferred to One Military Hospital in
Pretoria where he
remained for approximately three months. He recuperated at home and
in November 2007 he returned to the Lenz
military base which was
closer to his home and was in the technical department. In August
2009 there was a planned march to the
Union Buildings by soldiers
about salaries. The plaintiff did not participate in the march, but
did not go to work. As a result
he was suspended for not reporting to
work. He was put on special leave. He is still on special leave from
the SANDF. A trade union
in the military won a court case against the
Minister of Defence which she has taken on appeal. The plaintiff was
hoping that he
would return to work by the end of January 2012. He is
earning a gross salary of R12 490.00 per month (basic plus housing
allowance).
Whilst he was reporting for duties from 2007 to May 2009,
he did no work at ail. He would attend parade and after parade was
given
no tasks to complete. At some stage he would be given
instructions but could not understand those instructions and was
unable to
carry them out. His immediate superior had initially
threatened to take disciplinary action against him but after the
matter was
referred to a colonel Mbatha, a decision was taken not to
take any disciplinary action against him on the basis that he was
sick.
Some of his colleagues mocked him and he felt isolated.
7.
The plaintiff was examined on 28 July 2009 by Dr Wiebo van der Meulen
who confirmed that he had sustained a head injury. He reported
that
the plaintiff has made good recovery but was still symptomatic with
neuropsychological sequela consistent with a head injury
of that
nature. The psychometric testing confirmed that his neuro-cognitive
function has been seriously impaired by the accident.
According to
the American Medical Association guides to the evaluation of
permanent impairment a whole person's impairment of 31
percent is
calculated. No meaningful improvement can reasonably be expected of
the plaintiff. A joint minute was compiled by Dr
L F Segwapa and Dr W
A van der Meulen. They are neurosurgeons. They agreed that the
plaintiff was involved in an accident in which
he sustained a severe
head injury and a fracture of the maxilla and teeth. He is left with
neuropsychological sequelae because
of his head injury. They agreed
that although the plaintiff has not developed post-traumatic
seizures, he now has an increased
risk of developing seizures. He is
symptomatic with post-traumatic headaches, and there is a 20 percent
chance that he will remain
symptomatically lifelong. They agreed that
the plaintiff has lost some teeth because of the injuries received in
the accident and
that this should be evaluated by a maxillofacial
surgeon with a view of dental implants. They recommended that his
work capacity
should be evaluated by an occupational therapist and an
industrial, psychologist.
8.
The plaintiff was examined twice by Nellie Prinsloo, a clinical
psychologist, who issued a medico legal report. She testified
about
the psychometric test that she used. It is not necessary to deal with
her report in any great detail since her evidence was
largely
uncontested. It suffices to deal only with her summary. She said that
the plaintiffs tests results showed that his neuro-cognilive
functioning has been seriously impaired by the accident. Although he
experienced some problems at school, he obtained his Nl and
only
stopped his studies due to financial reasons. He also obtained a
qualification as a carpenter. His neuro-cognitive functioning
is
currently so impaired that he would have been unable to obtain that.
The various tests results show a person with signs of brain
injury
and a lack of differentiating between obvious facts presented by his
environment. He is experiencing much inner stress and
finds it
difficult to control his impulses especially aggression and
irritation. He was not aware of where he was and could not
sign to
undergo an operation. He isolates himself to be emotionally
independent and this is in stark contrast to someone that
participated in competitive sports, opposed his mother and could fend
for his family. His personality has changed from a team-player
lo an
irritable loner and this will make him virtually unemployable. He is
unable to cope well with stressful situations and the
manner in which
he deals with it, will increase his stress. He believes in abilities
that he no longer has because he despises
being so reliant on others.
He still relies very much on his mother, i le focusses on the
negative and not on positives. He has
difficulty in expressing
himself and finding the right words. He is slow in completing tasks
and is unable to grasp the different
parts of his experiences. Test
results show signs of brain injur}' and defective functioning.
Although there is evidence that he
was intellectually not very strong
before the accident, she said that she thought that his
intellectually and emotional functioning
is much worse after the
accident. He could previously attend different courses but he will
now be unable to learn new material.
The tests result and her
clinical impressions show that the plaintiff will be unable to
function independently in a work environment
and is actually
permanently disabled to function in a work environment. He can
function in a sheltered environment with much structure
and guidance
but an industrial psychologist should determine the area of placing
if indeed he will ever be able to work again.
He will need some
occupational therapy to help him with his organizing of free-time and
to look into a sheltered work-environment.
She said that there was no
doubt in her mind that the plaintiff should be compensated for his
loss of emotional well-being and
cognitive abilities, independence
and probably permanent inability to work and be financial
independent. He must receive some psychological
therapy to help him
adapt to his new realities. The cost of psychological therapy is
currently anything between R560.00 and R.900.00
per session. He will
need supportive therapy for an undetermined amount of time. He cannot
manage his money and is not capable
of planning and signing
contracts.
9.
The plaintiff was also examined by Susan Badenhorst, an occupational
therapist who has filed her report. Her colleague Aadilah
Hassim an
occupational therapist filed a report and testified. Again it is not
necessary to set out her report in any great detail.
Her conclusions
would suffice. Hassim confirmed that by reading the medical reports
of the plaintiff and the occupational therapy
assessment shows that
he has areas of injury to his brain. The indication that the medial
structures of the brain moved over to
the right side shows the severe
oedema the plaintff s brain developed. Multiple bleeding areas were
identified over the frontal,
temporal and parietal lobes of the left
cerebral hemisphere. The injuries to those three lobes mentioned were
severe and the impact
of the injuries was noted within the functional
and formal assessment situations. He has lost interpersonal
relationship with his
wife because of the changes in his personality
and uncontrollable behavioural outbursts. His personality has
undergone changes
and becomes agitated, frustrated and angry very
quickly. Those emotions are typical of a frontal lobe injury. He will
not be able
to continue working in his current environment in the
future. His prognosis for the injury to the lumbar and
cervical
spine is poor. He is left with neuropsychological sequela consistent
with a head injury and that it has been more than
two years since the
accident, any further meaningful improvement is not expected. His
intellectual and emotional functioning is
much worse after the
accident. Thus, his learning abilities are compromised. Hassim said
that she believed that the plaintiff cannot
continue with his current
employment. He is not a candidate to work in the open labour market;
however he may be able to find employment
in a sheltered employment
facility doing work that he is familiar with, i.e. carpentry, with
increased structure and supervision
to assist him. However it is very
unlikely that he would be able to find employment in this type of
structure which will cater
to his needs. She said that allowances
should be made for loss of earnings in the future. Deference to an
industrial psychologist
regarding this matter was required. She said
that it was highly recommended that he attend a 4Return-to-Work'
programme. Within
this programme he will receive therapy that focuses
on skills and abilities influenced by the injuries he sustained. He
could also
learn new skills within a structured environment.
10.
A report was also compiled by Henry van Blerk an industrial
psychologist after he had examined the plaintiff. It is not necessary
to set out the report in any great detail. In his view he said that
had the accident not occurred, it is likely and possible that
the
plaintiff could have seen further increases in earnings at his
workplace. At the time of the accident, he held the rank of
corporal
and it is possible that had the accident not happened that he might
have seen a promotion by the age of about 38 to Sergeant
and by the
age of about 43/44 to Staff Sergeant which is seen as a possible
career ceiling for the plaintiff where it is possible
that he might
have stayed until reaching retirement age. The 2032 earnings for a
Sergeant are R161 139 per annum and for a Staff
Sergeant R181 470 per
annum. The outcome of the psychometric tests reveals that his
intellectual capacity is in the slightly below
average range, but
that he works extremely slowly and tires rather quickly. As a result
he is not likely to cope with even relatively
easy practical tasks
which is not familiar to him and where he needs to act swiftly and
complete work according to strict time
lines and deadlines. Workplace
collateral information was obtained from his supervisor, the section
commander captain Fortunate
Selelo. She said that after the accident
they had serious difficulties in placing him somewhere where he could
be productive. He
was not even able to do simple administrative tasks
and even when shown precisely what to do, he would often to do the
precise
opposite. In addition to that, he tended always to forget
what he was supposed to do, and when he did not follow instructions
he
said that could not remember receiving such instructions or
directions. He is currently on special leave after being absent from
work on the day certain army personnel marched unto the Union
Buildings regarding their dissatisfaction about their salaries (which
was widely reported in the media - press and television) and he was
subsequently placed on special leave. Captain Selelo agreed
that it
was quite likely that the plaintiff did not realise that he had to
report for duty (at work) on that day due to his impairments,
and did
not voluntary take part in the strike action. When he asked her when
his special leave was likely to end and whether he
could see a
discharge from the army, she said that such a decision laid in higher
authority such as with the Minister of Defence,
and she therefore did
not know the answer to the question.
11.
Van Blerk said that from an orthopaedic and neurological perspective,
due to the injuries from the accident it was clear that
the
plaintiffs cognitive function has been impaired. Both experts
concurred that bis head injury has negatively affected his
employability
levels, and that the brain injury was permanent and
there was little if any room for improvement. The neurosurgeon
calculated his
whole person's impairment at 31 percent.
Occupationally, it was also concluded that the brain injury has
negatively affected his
daily activities. It takes precedence in his
area of work. From a psychologist's point of view, the trauma of the
accident and
injuries sustained has left him intellectually and
emotionally weaker than he was before the accident had occurred. He
finds it
difficult coping with stressful situations and his learning
and thinking abilities have been hugely negatively affected.
Psychological
expert opinion also agrees with the other three
perspectives which conclude that he is not able to function
independently in a
working environment. It was reported that he was
not able to cope with his work and being sympathetically employed. He
was 37 years
at the time of the accident and he was 42 years old when
he examined him. Based on the available information, expert opinion
and
collateral information, it appears that the accident and its
sequelae had a major and significant negative impact on his career
and earning potential. Before the accident it was reported that the
plaintiff completed carpentry courses in the military service
and
managed quite well with carpentry work and later with other duties
assigned to him relating to booking of military vehicles
requiring
technical service, repairs and maintenance. After the accident he was
no longer able to manage with his work tasks, and
he could not write
properly so that his superiors decided that somebody else, a
sergeant, should take over his work, leaving him
nothing meaningful
to do in a workday. Due to this and his neuro-cognitive impairment,
he no longer seemed suitable for employment
in the open labour
market. Although he is still employed by the military, it is not
clear how long he would be so employed. He
is currently on special
leave and he showed that he did not know when this situation was
likely to end, but after this, his continued
employment seemed likely
to be highly doubtful. After his discharge from the military, he
would not likely be able to find work
in the open labour market again
and could then be seen as unemployable. Finding employment in a
sheltered environment was not likely
to happen in view of such
facilities being highly scarce in South Africa, and taking his
relative advanced age and background into
account.
12.
Van Blerk said that it could therefore be concluded that the
plaintiffs post accident career and earning potential was
considerably
lower than what was the case before the accident. He is
sympathetically employed and is likely to eventually see a discharge
from
the SANDF which would result in him not finding any other work
in the open South African labour market suggesting him retiring
earlier than expected. Whilst the plaintiff was employed, it seemed
that he had the work capacity and motivation to continue with
his
duties with possible expansion with promotional possibilities until
retirement age. After the accident, his employability levels
are
highly affected. The conclusion is that his brain injury is permanent
and that he may not be able to work again after the end
of his
current special leave in the army, also mainly due to his loss of
coping skills and logical reasoning abilities. He also
seemed to have
retained psychological scars (mood, temper) which was likely to
seriously interfere with his day to day interactions.
A loss of
reasoning ability may have influenced the plaintiff not to report to
work on the day of the planned march to the Union
Buildings. Due to
this, he was placed on special leave and may lose his job as a
result, but mostly due to him not being capable
of doing any
productive work any more as indicated by expert opinion and
collateral information. Upon discharge from the army he
was not
likely to find work again in the South African open labour market,
and could as such be viewed as unemployable which is
viewed directly
as a result of the accident and its sequelae. He is a subject for
future loss of earnings. As he does not seem
able to function in any
work situation any more due to the accident and its sequelae, after
his discharge from the army he would
be considered unemployable. Van
Blerk recommended that he be compensated with his total loss of
earnings.
13.
The defendant called sergeant major Baloyi as its witness. He said
that the, status of the officials who were suspended was
unclear
since the Minister of Defence had appealed a court ruling. The
officials including the plaintiff are still receiving a
salary and
are on special leave. He was not sure whether the plaintiff was
medically assessed since he arrived at the base in March
2011. He
testified about the process that will be followed before a person is
medically boarded off and said that there was no
such an application
for the plaintiff. A letter would be written by a doctor to the
officer commander for a full report of his
work and this would be
taken back to the hospital. A panel of three would decide if the
person could be boarded off. He said that
he did not know the
plaintiff. Once a person gets boarded off, the person concerned would
receive a lump sum payment and half his
salary.
14.
Warrant officer Theophilis Mtshali. He is based at the Lenz military
base. His duties are both military and administrative.
He is a motor
mechanic in the workshop and is in charge of it He knows the
plaintiff for about 15 years before the accident. He
was told by
captain Seielo to come and testify on her behalf. He did not see the
personnel file. In May 2007, he was working with
the plaintiff in
Heidelberg who was under his supervision. He used to receive and
dispatch cars. He did administrative work. The
plaintiff was
responsible and did his work well. The plaintiff was employed as a
carpenter but did not do carpentry at the workshop
after the
carpentry department was closed down. He was put under technical
services. He was a good worker and played sports. He
also did many
courses and was known and liked. He heard about the plaintiffs
accident and later met him at the Lenz military base
after he was
transferred from Heiidelberg to Lenz. He saw the plaintiff there but
he was always going to the One Military Hospital.
The plaintiff was
causing trouble at the army. When he gave him an order, he would
refuse to take it and the matter was reported
to colonel Mbatha. He
knew that the plaintiff was good and he tried to calm him down. He
was a different person after the accident.
He was not working but was
sitting doing nothing. When something was sent to him, he did not do
it. He would go home without telling
anyone. The other soldiers
understood him and left him. They would sometimes mock him and say
thai he was mad and he should be
left alone. The plaintiff did not
visit him in the workshop. The plaintiff did not go with them to the
shooting range and he became
isolated. He was not laughing like he
used to do before the accident and did not take part in sports on
Wednesdays. He did not
do any work. The colonel knew that he was
involved in an accident and once when the warrant officer had given
him work, he told
him that the plaintiff was sick and should be left
alone. He never reported the plaintiff to captain Selelo and they
knew that
he was struggling. He said that there is a medical boarding
off procedure. They would have to take a decision and they could not
just dismiss him.
Analysis
of the evidence and arguments raised
15.
It is common cause that the plaintiff was involved in a motor
collision accident. He was admitted to the Union Hospital and
was
later transferred to the One Militaiy Hospital in Pretoria. After he
had spent some time in hospital, he was discharged and
returned to
work in November 2007. He used to report for work but did not do any
work at all This went on until 2009 when he was
suspended on full pay
with a group of soldiers who had marched to the Union Buildings in
Pretoria. He is still suspended on full
pay and no decision has been
taken yet about the outcome of his suspension. It is clear from the
evidence led before this Court
that the plaintiff did not take part
in the march to the Union Building and had remained at home on the
day in question. This was
also confirmed by captain Selelo who told
van Blerk that it was possible that he did not understand the
instruction that he had
to report to work. It is also clear from the
evidence led that the plaintiff would not have taken part in the
march due to the
nature of his injuries. He is in any event not able
to walk long distances. Why he was suspended is beyond me.
16.
After the accident, the plaintiff was left with a brain injury. The
defendant admitted that the accident occurred and did not
dispute the
injuries sustained by him. It disputed his entitlement to future loss
of earnings and interference with earning capacity.
It admitted that
he
is entitled to medical expenses with an undertaking in terms of
section 17(4)(a) of the Act and general damages regarding pain
and
suffering and other sequelae because of the accident. It averred that
the plaintiffs earning capacity may be affected but did
not render
him unemployable. In support of this contention it relied on page 19
of the occupational therapist report of Susan Badenhorst
where she
said the following:
"//
is highly recommended that Mr Dlamini attends a 'Return-to- Work'
Programme. Within this programme he will receive therapy
that focuses
on skills and abilities that have been influenced by the injuries he
sustained. He can also learn new skills with
a structured
environment".
The
defendant contended further that it was of the view that the
plaintiff still has opportunities and means to remain employable.
Considering that he is passionate about his work, it believes that
with the necessary interventions and assistant programmes, he
will be
able to remain employed.
17.
The first issue to be determined is the amount of compensation to be
awarded to the plaintiff for general damages. The second
issue that
needs to be determined is whether despite the plaintiffs brain
injuries and despite what all of the experts have agreed
upon, he is
still employable in the open market.
18.
It is common cause that the plaintiff has suffered the following
injuries as stated in various medical reports: poly trauma;
head
injury - facial abrasions and lacerations; chipped teeth frontal
lower jaw, fractured to a mandible: four missing teeth in
central
anterior maxillary area as well as three anterior mandibular region;
intercerebral bleeding/nasal breeding; soft tissue
injury to cervical
spine; soft tissue injury to lumber spine and lacerations to the
right hand. The medico legal report of Susan
Badenhorst an
occupational therapist, records the injuries as follows: cervical
spine disturbance in alignment; right hand soft
swelling; fracture of
both nasal bones; fractured maxilla; loose teeth; brain bleeds on the
left temporal and parietal lobes; subarachnoidal
bleeding in the
brain; oedematous changes on the left cerebral hemisphere; and the
middle structures of the brain are displaced
towards the right.
19.
All the experts agree that the predominant injuries sustained by the
plaintiff is a head injur)' and. lumbar spine and cervical
injuries
and that there is serious sequelae to the injuries. The damage to the
brain, lumbar and cervical spines is permanent.
20.
The plaintiff is claiming R2 000 000.00 for general damages in
respect of pain and suffering, discomfort, loss of amenities
of life,
disfigurement and emotional shock and trauma. The defendant contended
that the plaintiff should be awarded R600 000.00.
I was referred to
cases dealing with similar injuries and amounts for damages awarded.
For example in Matthysen vs POF 1999 (4)
C & B B4 - 23, the
plaintiff had suffered a head injury: moderate concussive head injury
and focal right parietal cerebral
contusion. The plaintiff was
awarded R90 000 which in 2012 is R188 000. In Adlem vs RAF 2003 (5) C
& B J2 -41, the plaintiff
suffered a head injury causing focal
and diffuse brain damage to temporal and frontal lobes. The original
award was R400 000 which
in 2012 would have been R649 000.00. The
plaintiff has besides the brain injury also suffered other injuries
which are set out
in paragraph 18 above. If those injuries are taken
into account with the brain injury an appropriate amount for damages
under this
head should be R850 000.00.
21.
This brings me to the second issue about whether the plaintiff is
still employable. It must be pointed out from the onset that
the
defendant did not lead any expert evidence to contradict the reports
filed on behalf of the plaintiff. It relied on paragraph
19 of Susan
Badenhorsf s report which deals with "the Return to Work"
programme but tended to disregard the expert's
views that the
plaintiff was no longer employable in the open market. It has also
disregarded the direct evidence led by the plaintiffs
colleague about
what he was doing when he returned to work after the accident. It is
the plaintiffs case that he is no longer employable
and this is
supported by all of the experts who consulted him and testified on
his behalf. A joint report was filed by the neurosurgeons
which
confirmed that he has suffered a severe brain injury. The brain
disability was caused by trauma. They recommended that his
work
capacity should be evaluated by an occupational therapist and an
industrial psychologist. The plaintiff was evaluated by a
clinical
psychologist namely Nellie Prinsloo and her report is uncontested.
The report by Susan Badenhorst an occupational therapist
is not
opposed. She has updated her report which was done by Hassim. The
occupational therapist and clinical psychologist are both
of the view
that the plaintiff cannot return to work and indicated that an
industrial psychologist's report should be obtained.
Van Blerk an
industrial psychologist produced a report which is also uncontested.
22.
The evidence led by the plaintiff shows that the plaintiff once he is
discharged from the
SANDF
he will no longer be employed in an open employment environment. The
SANDF when he returned to work after the accident, did
not know what
to do with him. He was left alone. All that he would be able to do in
the future, is to work in a sheltered environment
which from the
evidence led before this count is non existing. The defendant
conceded that the plaintiff will not be able to work
in an open work
environment but contended that if he attends the "Return to
Work1' programme he would be able to work. Hassim
testified about the
"Return to Work" programme. She said that this would entail
much commitment and buy in from a prospective
employer. He can
probably work in a sheltered environment but not in the open market.
She said that sheltered employment is structured
better but there are
very few and far between and employees there do not get paid. In her
report she recommended that the plaintiff
attend a "Return to
Work" programme. Within this programme he will receive therapy
that focusses on skills and abilities
that have been influenced by
the injuries sustained. He can also learn new skills within a
structured environment and the costs
of this would be about R30
000.00. She said that the "Return to Work" programme is run
by an occupational therapist on
vocational rehabilitation. Either
work in a sheltered or open environment but constant therapy would
have to be given to help him.
A specialist would do an assessment on
this and place him in a place and assess and assist him in that
structure. She said that
there are therapists who could assist him if
that programme was applicable to him and to run with him. This would
take constant
therapy with support from his work, family and the
therapist and they would have to be patient with him. If all the
factors were
in place, the programme would be beneficial to him. She
said that it was better if he participated in it. She said that he
was
unable to work in the open labour market and his cognitive
difficulties would be a hindering factor to learning a new skill as
his learning abilities are poor. With all the interventions he will
be functioning in a sheltered environment with structure and
supervision for some work. He will have to be evaluated in a "Return
to Work" programme.
23.
It would appear that the plaintiffs claim for future of loss of
income was opposed on the basis that because the plaintiff
is still
employed by the SANDF and he is receiving a salary, his claim for
damages should be dismissed. Whilst it is true that
the plaintiff is
still employed by the SANDF because he was placed on suspension on
the basis that he had taken part in a march
to the Union Buildings,
he had for a period from November 2007 until his suspension in 2009
been reporting for work but was unable
to do any of the work. The
senior officials of the SANDF knew about his plight and it would
appear that he was not medically boarded
off due to his suspension. I
got the distinct impression from warrant officer Mtshali that it was
only going to be a question of
time that he was going to be boarded
off.
24.
It is clear from the evidence led that the plaintiff is not a
candidate for a "Return to Work" programme. The defendant
did not lead any evidence to prove that he will be a successful
candidate for this. All of the experts agree that he is not. It
is
clear from the evidence that his current employer does not provide
for sheltered employment. He is unable to learn any new skills.
He
was unable to carry out instructions and where he attempted to do
work did not do what he was told to do. The neurosurgeons
recommended
that an industrial psychologist should consider the question of his
capacity to work. The industrial psychologist assessed
him and found
that he is unable to work in the open market. Despite what was said
about the "Return to Work" programme,
the plaintiff is not
a candidate for that programme. He is unable to manage his affairs
and this is one of the reasons why a curator
was appointed for him.
25.
All that needs to be determined is what amount should be awarded for
future loss of income. The plaintiff was born prematurely
at seven
months. He was initially a slow learner who later managed to pass
standard eight. He completed an Nl course but did not
complete an N2
due to financial constraints. He joined the SANDF in 1994. In
addition to that he did some 26 courses in the army.
Unfortunately
for him the carpentry department was closed down and he was
transferred to Heidelberg in the maintenance department.
He was than
involved in a motor car accident collision. He was assessed by
various experts. It is clear from van Blerk's testimony
and expert
report that the plaintiff would have proceeded to the rank of a staff
sergeant. He considered the plaintiffs family
background, the fact
that he was a premature baby, the fact that he had a drive and had
done 26 courses and that he would have
progressed despite all of his
initial setbacks. I do not believe that he would have become a
warrant officer if one considers the
evidence that was led about his
background. Allowance should be made for his slow progress. But for
the accident he would have
become a staff sergeant.
26.
I have no doubt that the SANDF will fail to dismiss the plaintiff for
having taken part in the march to the Union Buildings.
He was not
part of the march and was incapable to do so. 1 have no doubt that
once this judgement is placed before the relevant
authorities that he
will be boarded off medically. Since the plaintiff is still employed
by the SANDF and no steps have been taken
to board him off medically,
he is receiving a salary and an assumption should be made that he
will be boarded off in a year's time.
27.
Mr Jacobson, an actuary, has set out what the plaintiffs claim for
future loss of income should have been but for the accident.
He has
taken into account the necessary contingencies. His calculations are
based on an assumption that he will be discharged on
1 March 2012. It
is clear that his discharge will not take place on 29 February 2012.
The plaintiff and other officials were suspended
in 2009 and one can
safely assumed that it might take another year before the plaintiff
is discharged. His salary as at 1 March
2012 for a staff sergeant
would have been R146 400 per annum. His claim for future loss of
income should therefore be Rl 696 927.00.
The amount is arrived at by
deducting R146 400 from the amount that Jacobson gave in his
actuarial report. The defendant filed
an actuarial report but did not
take into account any contingencies. I am not prepared to accept that
report since no provisions
have been made for any contingencies.
28.
The plaintiffs claim for past medical expenses which is R123 184.52
was not disputed by the defendant. The plaintiff had initially
claimed R574 800.00 for future medical expenses. The defendant has
given an undertaking for future medical expenses so no damages
can be
given under this head. The plaintiff has abandoned his claim for past
loss of earnings since he has incurred no such losses.
29.There
is no reason why costs should not follow the result.
30.
In the circumstances I make the following order:
30.1
The defendant is to pay to the plaintiff the sum of R2 670 111.52 and
interest a tempore morae on the above sum at 15.5 percent
per annum,
within fourteen days of date of this order.
30.2
The amount referred to in paragraph 30.1 above, shall be paid into
the plaintiffs attorneys trust account, details of which
are as
follows:
McMillan
Attorneys ABSA OAKDENE ….. Trust Account
30.3
The plaintiffs attorneys of record, McMillan Attorneys Inc, shall
retain the aforesaid amount in an interest bearing trust
account
pending the creation of a Trust for the benefit of the plaintiff.
30.4
The defendant shall furnish the plaintiff with an Undertaking in
terms of Section 17(4)(a) of the Road Accident Fund Act 56
of 1996
("the Undertaking") for the costs of the plaintiff s future
accommodation in a hospital or nursing home or treatment
of, or
rendering of a service, or supplying of goods to the plaintiff
arising out of the injuries sustained by the plaintiff in
the motor
vehicle collision that occurred on 23 May 2007, after such costs have
been incurred and upon proof thereof.
30.5
The defendant is to pay the plaintiffs taxed or agreed parly and
party High Court costs including the following:
(a)
the costs of Senior/Junior Counsel;
(b)
the costs of obtaining medico-legal reports in terms of Rule 36(9)(a)
& (b); (c) the costs of attending to the preparation
of joint
Minutes, if any;
(d)
the preparation fees to the preparation of the plaintiffs experts,
being:
1.
Dr Schnaid (Orthopaedic Surgeon);
2.
Dr Van Der Meulen (Neurosurgeon);
3.
Ms Prinsloo (Clinical Psychologist);
4.
Ms Badenhorst (Occupational Therapist);
5.
Ms Hassim (Occupational Therapist);
6.
Mr Van Blerk (Industrial Psychologist); and
7.
Mr Jacobson (Actuary).
30.6
The plaintiffs attorneys, McMillan Attorneys Inc. is ordered to:
(a)
cause a trust (''the Trust") to be established in accordance
with the Trust and Property Control Act 57 of 1998 to administer
the
funds awarded to the plaintiff: and
(b)
to pay monies held in Trust by the said attorney for the benefit of
the plaintiff to the Trust (and as and when approved by
a Curator).
30.7
The Trust instrument contemplated above shall make provision for the
following:
(a)
that the plaintiff shall be the sole beneficiary of the Trust;
(b)
the powers of the Trustee(s) shall specially include the power to
make payment from the capital and income for the reasonable
maintenance of the plaintiff, or for any other purpose which the
Trustee(s) may decide to be in the plaintiffs interest;
(c)
if the income is not sufficient for the aforesaid purpose, the
Trustee(s) may utilize capital for such purpose;
(d)
that the Trustee(s) are to provide security to the satisfaction of
the Master;
(e)
that the cost to obtain such Trustee are to be covered by the
Undertaking;
(f)
that the ownership of the Trust Property vest in the Trustee(s) of
the Trust in their capacity as Trustees.
(g)
that the procedures to resolve any potential disputes are subject to
the review of any decision made in accordance therewith
by this
Court.
(h)
that the Trustee(s) be authorised to recover the remuneration of, and
costs incurred, by the Trustee(s) in administering the
Undertaking,
in accordance with the certificate of Undertaking to be provided by
the defendant;
(i)
that the suspension of the plaintiffs contingent rights in the event
of cession, attachment or insolvency prior to the distribution
or
payment thereof by the Trustee(s) to the plaintiff;
(j)
that the amendment of the Trust instrument be subject to the leave of
this Court;
(k)
that the determination of the Trust upon the death of the plaintiff,
in which event the Trust assets shall pass to the Estate
of the
plaintiff; and (1) that the Trust Property and administration thereof
be subject to an annual audit.
30.7
The costs of the establishment of the Trust and the administration of
the Trust Property be paid by the defendant.
FRANCIS
J
JUDGE
OF THE SOUTH GAUTENG HIGH COURT
FOR
PLAINTIFF : D A LOUW INSTRUCTED BY MCMILLAN ATTORNEYS
FOR
DEFENDANT :FF OPPERMAN INSTRUCTED BY MOHLALA ATTORNEYS
DATE
OF HEARING : 8, 9, 10 and 13 FEBRUARY 2012
DATE
OF JUDGMENT : 21 FEBRUARY 2012