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[2014] ZAGPJHC 146
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Mokwena v South African Rail Commuter Corporation and Another (14465/2010) [2014] ZAGPJHC 146 (26 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(SOUTH
GAUTENG, JOHANNESBURG)
CASE
NO: 14465/2010
DATE:26
FEBRUARY 2014
In
the matter between:
MOKWENA
PHETOLE
PETER
...........................................................................................
PLAINTIFF
And
SOUTH
AFRICAN RAIL COMMUTER
CORPORATION
.................................................................................................
FIRST
DEFENDANT
METRORAIL
..................................................................................................
SECOND
DEFENDANT
J
U D G M E N T
KUBUSHI,
J
[1] The factual
matrix of this case is that on 5 February 2008 the plaintiff
sustained bodily injuries at Elandsfontein train station
when he fell
from a passenger train owned by the defendants and there and then
operated by the employees of the defendants. The
plaintiff boarded
the train at Elandsfontein station
en route
to Limindlela
station in Tembisa. When the train started moving people rushed
into the train and because of the pressure
exerted on the plaintiff
by these people he was pushed to the opposite door of the train which
was open and he fell off the train
onto the rail tracks. The
plaintiff, a forty two year old man at the time of the incident,
sustained serious bodily injuries as
a result of the fall. He
injured his right knee and lower back. He is therefore claiming
damages for the injuries.
[2] I am informed
that the merits have been settled. The defendants conceded 100%
liability in respect of the proven or agreed damages.
The matter is
therefore before me for the determination of
quantum
of the
alleged injuries.
[3] At the beginning
of the trial the parties presented a bundle of documents, Bundle “E”,
which contained the reports
of their respective expert witnesses. The
reports in respect of each party contained in the said bundle pertain
to:
a.
the Industrial Psychologists;
b.
the orthopaedic surgeons;
c.
the occupational therapists; and
d.
the actuaries.
[4]
In addition to the said reports they also handed in Bundle “G”
which contained the joint minutes in respect of the
reports of:
a.
the industrial psychologists;
b.
the occupational therapists; and
c.
the orthopaedic surgeons.
During
the trial an addendum to the joint minutes of the industrial
psychologists was handed in as exhibit “H”. The
actuaries
for both parties did actuarial re-calculations based on this
addendum. These re-calculations were handed in as exhibit
“I”
and “J” respectively. Due to the objections raised by the
defendants’ counsel at the trial the
joint minutes presented
lengthy debates between the two counsel. The defendant’s
counsel is of the opinion that the joint
minutes should not be
accepted by the court without the calling of evidence to confirm the
factual basis thereof. This is an issue
which I shall deal with later
in this judgment.
[5]
At the pre-trial conference the parties agreed that the discovered
documents are what they purport to be without admitting the
truthfulness of the contents thereof. It was therefore the intention
of the parties at the commencement of the trial to call all
the
expert witnesses to testify. However, during the trial and pursuant
to the addendum to the joint minutes of the industrial
psychologists
and the actuarial re-calculations and as
per
agreement, the
parties decided not to call any further witnesses. At the time of the
actuarial re-calculations, the plaintiff had
already given evidence
and had led the evidence of the occupational therapist, the actuary
and the industrial psychologist but
did not call the orthopaedic
surgeon to give evidence. The defendants closed their case
without leading any evidence.
THE
ISSUES
[6]
The parties’ counsel informed me at the start of the trial that
the injuries suffered by the plaintiff and their
sequelae
were
common cause. What required to be determined by this court was only
the amount of
quantum
in respect of the various heads of
damages claimed by the plaintiff. In particular, the defendants’
counsel put the following
in dispute:
a.
The past medical expenses. This head of
damages was subsequently abandoned by the plaintiff due to lack of
documentary proof of
such damages.
b.
In regard to the loss of earnings –
i.
whether the plaintiff would have ended
his career as an unskilled labourer or a semi-skilled labourer:
This dispute was however resolved by the
industrial psychologists in their addendum to their joint minute
where eventually they
agreed that the plaintiff worked in an
unskilled occupational group. I agree. Taking all the
plaintiff’s circumstances,
he will, in my view, have ended his
career as an unskilled labourer. There is nothing factually presented
before me which indicates
that he would have progressed to a level in
the semi-skilled occupation. I accept the experts’
opinion that his educational
level, experience and age would not have
enabled him to progress to an occupation in the semi-skilled level.
ii.
the retirement age of the plaintiff:
This dispute was also resolved by the industrial
psychologists in the addendum to their joint minute where it was
agreed that the
plaintiff’s retirement age should be 62 ½
years. I accept the opinion. My view is that if it is accepted that
the
plaintiff would not have progressed to the occupation level of
the semi-skilled he would have in most probabilities opted for the
government pension which becomes available at the age of 60 years;
and if he would have continued perhaps with his carpentry work,
probabilities are that he would have retired at the age of 65 years.
The pensionable age of 62 ½ is thus a compromise
between the
two ages and I am prepared to accept it.
iii.
whether the plaintiff still retains the
residual capacity to work:
According
to the industrial psychologists of both parties, the plaintiff does
not retain any residual capacity to work. In
the addendum to
their joint minute, they agree that the plaintiff would not be able
to return to his pre-accident work and that
even though he is suited
for sedentary work, but due to his age, level of education and
experience he stands no chance in securing
employment of a sedentary
nature. Due to the injuries suffered by the plaintiff it is my
view that the experts are correct
that the possibility of the
plaintiff being employable in the open market has been completely
ruled out.
The
industrial psychologists in the addendum of their joint minute
support the assertion by the defendants’ counsel that the
plaintiff is still employable. They express a view that the plaintiff
will be able to continue to assist his wife on a voluntary
basis in
her vegetable vendor business. I however, disagree with this
assertion as well as with the opinion by the industrial psychologists
on this issue. The evidence proffered is that the plaintiff is
unable to sit and/or stand for long hours without experiencing
any
pain. There is no evidence to show that with the intended
occupational therapy (rehabilitation interventions) and surgical
procedures (for the knee and the hip) he will be able to sit and/or
stand for long hours. To my mind, the effect of the injuries
is
such that the plaintiff would not be able to perform this kind of
work. The contention by the defendants’ counsel during
argument
that the plaintiff can also be able to carry on with the carpentry
business is in my view unfortunate and misplaced. It
is quite evident
that the plaintiff cannot do this type of work. He has been
rendered incapable to perform any heavy physical
work which requires
the shifting of heavy furniture or heavy household repairs. Any tasks
requiring extensive standing, walking,
good balance, lifting or
carrying heavy objects and low work postures such as kneeling,
stooping and crouching are not possible
for the plaintiff. These are
all postures that are required of a person doing carpentry work.
The opinion of the defendants’
occupational therapist that the
plaintiff should open a carpentry business and employ staff to do the
physically demanding work
and that he operate the business at a
supervisory and/or office based role, does not take into account that
the plaintiff has not
been trained for such a job and that he does
not have the required capital to start the business. With his
level of education
chances of having him so trained are non-existent.
iv.
the contingency calculations
:
In the light of the addendum to the joint minute, of the industrial
psychologists the disputes in regard to the loss of earnings
claim
ultimately became narrowed to contingencies.
THE
INJURIES AND THE
SEQUELAE
[7]
The nature and extent of the injuries sustained by the plaintiff as
well as the
sequelae
thereof are common cause between the
parties. The plaintiff’s testimony is that he injured his
right knee and the right
side of his lower back when he fell.
According to the report of the orthopaedic surgeon who consulted him,
he sustained injuries
to his person being the proximal tibial
fracture, fractured hip (right hip), fractured right knee and
fracture of the right tibial
plateau.
[8]
He is no longer able to walk a distance of about 500m without getting
pain. He also has a limp which is very pronounced
when he
walks. When he sits for a long time he suffers pain. He
must change posture after every 20 to 30 minutes.
Before the
incident he was able to walk for distances, sit for a long time and
play soccer. He is no longer able to do so.
The injuries have
also affected his marriage life. He experiences severe pain in
the back whenever he has sexual intercourse.
It takes him two
to three days to recover from such pain before he can engage in
sexual intercourse again. Previously he
used to have sexual
intercourse with his wife two to three times in one night.
[9]
He experienced severe pains when he fell from the train and hit the
rail tracks. The pain was on the knee and the right
side of the
lower back due to the fracture he sustained on the knee and the lower
back. He experienced excruciating pain
when he was picked up
from the rails and placed on the platform. He was carried into
the train where he was made to lie on
the train seat. At the
Limindlela train station he was helped to walk from the train to a
motor vehicle which took him to
the hospital. He could not be
carried because of the excruciating pain he felt and had to be
supported on both sides by the
armpit.
[10]
He was admitted at the Tembisa Hospital where he spent three weeks.
At the hospital he was attended to immediately by the doctors.
His right foot was put in traction. After a week the traction
was taken off and the knee was operated on. A week after
the
operation he went for another operation of the lower back and was
discharged from hospital a few days after the second operation.
During the operation metal plates were inserted in his lower legs. As
a result of the operation he has a 28cm scar on the right
outside
part of the thigh which runs up to his lower back. He also has
scars on his right leg which are made by six deep
holes two on the
knee and four on the lower part of the leg. After he was
discharged he went to the hospital for check-ups
as an out-patient.
He does not remember the number of times he went for such check-ups
but he says it was many times. He
was given tablets for
the pain and medicine to clean the wounds. He used the hospital
treatment for about five months after
he was discharged from
hospital.
[11]
He married his wife in 1987. They have five children three of
which are still dependent on them. The youngest is
nine years
old. His wife is presently unemployed and was not employed at
the time of the incident. She was once employed
at a restaurant
at the airport – he does not remember when. The wife
started selling fruits and vegetables when he
was still in hospital.
He normally sits with her outside where she sells whenever he is
bored of being in the house. He
can however not do this
regularly because of the pain he experiences when he sits for a long
time.
EMPLOYMENT
[12]
The plaintiff gave evidence of the history of his employment prior to
the incident. He was initially employed as a carpenter
assistant at Rail Wood Furniture where he worked for three years and
was trained to do carpentry work. He is able to make
furniture. He earned a salary of R27
per
week. He
was retrenched from this job. Immediately before the incident
he used to do carpentry work for a fee during
the weekend when asked
to do so by customers. He was employed in other various jobs
but at the time of the injuries, he was
employed in Boksburg by a
company known as Oil Works Management. He had been employed for
only three weeks prior to the incident.
He earned a weekly wage
of R400. His duties entailed stripping broken motor vehicle
engines. The company he worked for collected
used oil, oil filters
and broken engines from garages like Hundai. The engines were
brought to the company on a truck and
offloaded next to the table
where he worked. With the help of someone, he would then hoist the
engine and place it on the table
where he will be able to work on
it. His job entailed stripping the engine and taking out the
sump from where he will drain
the oil. The oil was drained into
5 litre containers and then poured into 200 litre drums. The drums
were taken by cranes
and loaded on trucks for delivery to other
companies where it was refined for re-use. Since the incident
he has not been
able to work at all. He cannot lift heavy
objects and as such he cannot lift the engine or the equipment
required to make
furniture. When he carries heavy objects he feels
pain in the right side of his back.
THE
JOINT MINUTE OF THE ORTHOPAEDIC SURGEONS (DR G READ FOR THE PLAINTIFF
AND DR E D GANTZ FOR THE DEFENDANTS)
[13]
Both doctors agree:
a.
on the injuries sustained and treatment
received;
b.
that there has been progression of symptoms
and clinical findings since the examination by Dr Read – the
plaintiff’s
right hip and knee symptoms has worsened and early
post-traumatic osteoarthritis ensued in both joints;
c.
that he requires conservative treatment as
outlined in their respective reports and will require surgical
treatment in the form
of total hip replacement, arthroscopic
debridement of the knee joint and total knee replacement. The
internal fixation may
be removed from the right acetabulum.
Provision should be made for revision surgery of the hip and knee
should such need
arise.
d.
that the patient is only fit to work that
does not require prolonged walking and standing or strenuous physical
effort;
e.
that his injuries caused long term serious
impairment or loss of body function;
f.
that his life amenities were affected; and
g.
that his life expectancy was not affected,
significantly by the accident.
JOINT
MINUTE BETWEEN THE OCCUPATIONAL THERAPISTS (T M R NAPE FOR THE
PLAINTIFF AND I H SHIBAMBO FOR THE DEFENDANTS)
[14]
Both occupational therapists in their joint minute deferred to the
orthopaedic surgeons in regard to the
sequelae
of the injuries
and the recommended treatment.
The
experts were also agreed in respect of the following:
a.
OCCUPATIONAL THERAPY: that the
plaintiff would benefit from 8 to 10 hours of occupational therapy
inclusive of home visits;
b.
that the plaintiff would benefit from other
rehabilitation intervention such as physiotherapy and biokinetics for
pain management
and physical rehabilitation;
c.
SPECIAL AND ADAPTED EQUIPMENT: that
plaintiff would benefit from making use of the assistive devices in
order to optimise his level
of functioning when performing his daily
activities.
d.
ASSISTANCE: that the plaintiff will remain
permanently incapable of heavy physical chores such as shifting heavy
furniture or heavy
household repairs and that he should as a result
be compensated for his physical limitations and pain experience.
His occupational
therapist went further to recommend that he will
require the assistance of: a handyman/gardener for four hours a
month, a domestic
worker for one hour
per
day for seven days
per
week should he live without his family support, additional personal
care and domestic assistance for eight hours
per
day six days
per
week after undergoing any further surgical procedures relating to the
injuries sustained. The defendants’ occupational
therapists recommended the assistance of a handyman for one half day
per
fortnight and about 2 – 4 hours
per
day of care/support post hospital-discharge.
e.
ACCOMMODATION: that as regards
accommodation, no structural adjustments are required at present.
However, in future, his accommodation
should consist of a single
storey house with limited steps, floor covering to be continuous and
non-slip without loose rugs to
ensure safety in mobility around the
house. He should also have access to running hot and cold
water to a bath/shower
in his permanent home.
f.
TRANSPORT: that the cost of transport to
and from all past, present and future appointments related to the
incident be allowed at
taxi fares or AA rates. The
experts recommended the use of an automatic motor vehicle with a left
hand side accelerator
conversion.
g.
EMPLOYMENT: that the plaintiff is no longer
a candidate for medium, heavy or very heavy work due to his impaired
mobility.
Any tasks requiring extensive standing or walking,
good balance, lifting or carrying heavy objects and low work postures
such as
kneeling, stooping and crouching are no longer possible.
He should also avoid working at heights, uneven surfaces, cluttered
or slippery/oily floors. He is no longer suited to employment
as a carpenter, general worker or truck driver. The plaintiff’s
occupational therapist is of the opinion that due to the plaintiff’s
limitations, age, work history and level of education
he will not
successfully compete in the open labour market for any sedentary type
of work. The defendants’ occupational
therapist is of the
opinion that if the plaintiff were to open a carpentry business, he
will have to employ staff for physically
demanding work and have a
supervisory/workshop/office based role. He may also be able to carry
on helping his wife with her vegetable
vending business, but the
income will be limited unless the business is expanded.
THE
JOINT MINUTE OF THE INDUSTRIAL PSYCHOLOGISTS (DR M MALAKA FOR THE
PLAINTIFF AND DR L MARAIS FOR THE DEFENDANTS)
[15]
a. Pre-accident Prospects:
The
industrial psychologists are both agreed that with his background,
the actual level of education of Grade 9, the plaintiff could
have
been eligible for employment in the unskilled job level through to
the low semi-skilled level. His record indicates
that he
functioned at that level. He has had spells of unemployment and
at the time of the incident he was a casual/temporary
worker.
It is likely that over time he could have worked until he reached
normal retirement, at the age of 60 to 65 years.
According to
the defendants’ industrial psychologist if he was unemployed or
worked in the informal sector at the time of
retirement he would opt
for a government pension when he qualified at the age of 60 years.
b.
Post-accident Employment Prospects:
The
experts deferred to the opinion of the occupational therapists with
regard to the plaintiff’s physical ability following
the
collision. They are however agreed that he is no longer suited
for physically demanding work. Although in theory
he retains
some capacity for sedentary to light work, however, his relatively
poor educational background precludes him from such
employment.
According to his industrial psychologist at best, he is a candidate
for sympathetic employment. Thus he
has sustained a total and
permanent loss of capacity to earn. The defendants’
industrial psychologist is of the opinion
that since he is assisting
his wife in the business venture and works as a vendor, he should be
able to continue working in this
capacity for as long as his health
permits.
ADDENDUM
TO THE JOINT MINUTE OF THE INDUSTRIAL PSYCHOLOGISTS (DR M MALAKA FOR
THE PLAINTIFF AND DR L MARAIS FOR THE DEFENDANTS)
[16]
a. The doctors are agreed that pre-accident:
i.
the plaintiff worked in an unskilled
occupational group;
ii.
he experienced period of unemployment;
iii.
his earning at the time of the collision
was R20 800
per annum
and the amount should be used for calculation purposes;
iv.
he will receive inflationary increases
until retirement age;
v.
retirement age should be 62 ½ years.
c.
The doctors were agreed that post-accident:
i.
the plaintiff would not return to his
pre-accident work that was of a physical demanding nature;
ii.
he is suited for sedentary work but due to
his age, level of education and experience he would not be able to
secure employment
of a sedentary nature;
iii.
he will continue to assist his wife on a
voluntary basis; and
iv.
contingencies remain the prerogative of the
court.
ANALYSIS
OF EVIDENCE
[17]
In his particulars of claim, the plaintiff sued the defendants for:
future medical expenses; past loss of earnings; future
loss of
earning/earning capacity; general damages and costs of a personal
attendant including a driver. However, at the end of
the trial only
awards for the heads of damages for loss of earnings, future medical
expenses and general damages stood to be determined.
LOSS
OF EARNINGS
[18]
It became apparent during the course of the trial that, though the
expert witnesses had entered into joint minutes, there were
still
pertinent issues on which they were not agreed. This resulted
in different actuarial calculations. In trying to bring
the parties
closer in their calculations the industrial psychologists compiled an
addendum to their joint minute which occasioned
a re-calculation by
the actuaries. Despite the re-calculation the actuaries could
still not come with a common amount.
The actuaries’
calculation is based on the amount of R20 800
per annum
,
as agreed to between the industrial psychologists. This is the
amount on which they did their calculations. The actuaries’
final calculations differ because the defendants’ actuary did
not allow for any salary progression. I am however of
the view
that the increment in line with the Consumer Price Index, as allowed
by Jacobson, should have been allowed and must be
allowed. The
appropriate amount for calculation should therefore be that provided
by Jacobson in his report (Exhibit “I”).
In
the light of the addendum to the joint minute of the industrial
psychologists (Exhibit “H”) this head of damages
ultimately became narrowed to contingencies.
[19]
As is trite, the contingency deductions are within the discretion of
the court and depend upon the judge’s impression
of the case.
The industrial psychologists have, correctly so, accepted as much.
Normal contingencies are 5% for past loss
and 15% for future loss.
Southern Insurance Association v Bailey
NO
1984(1)
SA 98 (AD) at 116H.
[20]
Jacobson in his report (Exhibit “I”) and in evidence
allowed for a 5% contingency deduction for pre-accident loss
and a
15% post-accident loss. His contention is that the amount of
the deductions is essentially subjective and should be
a decision of
the court. In applying the said deductions he took into account
the unforeseen contingencies such as sickness,
unemployment, errors
in the estimation of future earnings and life expectancy, earlier
retirement and general hazards of life.
The plaintiff’s
counsel applying the approach in
Venter v Federated Employers
Association Maatskappy
BPK 1978 (2) QOD 756 (T)
argues for the retention of the contingencies suggested by
Jacobson or that no contingencies be applied by the court or at least
that 5% be deducted in respect of both pre- and post-accident loss.
The court in that judgment taking into account that the
plaintiff’s
life expectancy had been reduced applied a 10% deduction. In
this instance, it is common cause that the
plaintiff’s life
expectancy has not been reduced.
[21]
The defendants’ actuary in his report (Exhibit “J”)
did not allow for
any contingency deductions. This is so
because according to the opinion of the experts, the plaintiff
experienced periods
of unemployment. The defendants’
counsel suggests two approaches that may be taken to come to an
appropriate award
in respect of the pre-accident loss.
The first approach is to take the median of the two amounts for the
plaintiff
and the defendant. The second is to take the
amount in exhibit “I” and apply a higher contingency.
She suggested a contingency deduction of 10% instead of 5%.
[22]
As regards the post-accident loss, the defendants’ counsel
submits that an appropriate
deduction is 20%. She bases her
submission on the ground that since the plaintiff has been cleared to
be capable to perform
sedentary work with an improved financial
situation he might be able to return to the carpentry business.
I
have already ruled out the possibility of the plaintiff ever going
back to work.
[23]
I am in alignment with the view expressed in
Venter
v Federated Employers Association Maatskappy
BPK
above whereat the court took the
reduced life expectancy of the plaintiff into consideration.
S
ince in this instance the plaintiff’s life expectancy
is not affected, there should in my view be no contingency deductions
in respect of both pre- and post-accident loss.
[24]
The calculations will thus be as follows:
Earnings
pre morbid R 140 467
Earnings
post morbid R
298 190
TOTAL
NET LOSS R 438657
GENERAL DAMAGES
[25]
The plaintiff in his particulars of claim claimed a global amount for
general damages in respect of pain and suffering, loss
of amenities
of life and disfigurement in the amount of R400 000.
[26]
The plaintiff’s counsel contends that the R400 000 claimed
by the plaintiff is fair and reasonable. He based
his argument
on the judgment in
RAF v Marunga
[2003] 2 All SA 148
(SCA) at para [27] wherein the court adopted a
liberal approach to the awarding of damages. He compared the
current case
to various other judgments where according to him the
plaintiffs therein had suffered similar injuries to that of the
plaintiff
in this instance. He referred in particular to the
judgments in
Vukubi v RAF
2007 (5) J2 QOD 188 (E) and
Boshoff v
Motor Insurers Association of Southern Africa
1969 (2) QOD 105 (AD).
[27]
The plaintiff in the
Vukubi
– judgment suffered
severe injuries to the knee comprising open dislocation of the knee
joint and tears to the patellar tendon
and cruciate ligaments, closed
fracture of the
humerus
and closed fractures of the
radius
and
ulna
. He received treatment to the knee comprising
debridement reduction of the knee joint and an internal fixation.
He
experienced pain and discomfort in the knee when engaged in
physical activities and it was expected that future osteoarthritis
would develop requiring conservative treatment with an 80% chance of
knee replacement surgery and 60% chance of revision procedure.
He experienced degenerative changes to the elbow joint and radio-ulna
joint with possibility of pain and discomfort in the future.
The
plaintiff walked with a slight antalgic gait, was unable to bend the
knee or walk long distances and could thus not participate
in some
sporting activities. The court awarded him general damages in
the amount of R300 000 with current value of R437 000.
[28]
In the
Boshoff
– judgment, the plaintiff, a 26
year old accountant sustained a dislocation and fracture of the left
hip joint, concussion,
a fractured rib and various cuts and bruises.
The hip was reduced and placed in a plaster cast, where after he was
taken
from hospital to friends where he remained in bed for six
weeks. After the splints were removed he used crutches to walk.
After 18 months he still had pain in the hip and was continually
taking pills for it. He had an early onset of osteo-arthritis
and advised to have arthrodesis of the hip joint as soon as
possible. He was awarded general damages in the amount of
R9 000
for pain, suffering and loss of amenities with a current
value of R509 000.
[29]
The defendants’ counsel is also in agreement with the approach
adopted in
Marunga
but contends that an amount of R250 000
should be awarded to the plaintiff. She based her contention on
the fact that
the amount of R400 000 is not commensurate to the
damages proven by the plaintiff. According to her, the
plaintiff in
his particulars of claim claimed an amount of R400 000
which included other injuries which he was not able to prove at the
trial and as such the amount should be reduced.
[30]
There is no hard and fast rule of general application requiring a
trial court or a court of appeal to consider past awards.
This
is so because it would be difficult to find a case on all fours with
the one being heard. Awards in decided cases might
be of some
use only for guidance. A court may also derive assistance from
the general pattern of awards. See
RAF v Marunga
above at paras [24] and [25].
[31]
As is the case in this instance, the judgments I have been referred
to are not on all fours with the case before me. The injuries
sustained by the plaintiffs in those judgments, the treatment
administered and the consequences of such injuries are not similar
to
those in the present case and as such the amount of compensation
would not necessarily be the same. I am also mindful
of
the fact that the injuries sustained by the plaintiffs in those cases
are more severe than in the current case.
I am however
satisfied that the general patterns in those cases are indicative of
what courts would normally award in such circumstances.
[32]
As it has been said the award of general damages is by no means an
easy task. There is no basic formula for the assessment
of this kind
of damages. To arrive at a fair and just amount all relevant
factors and circumstances should be taken into
account. I am in
respectful agreement with the approach adopted in the
Marunga
– judgment. The courts should endeavour to determine
compensation that reflects the changes in society, the prevailing
money values, the state of economic development and should be fair in
the eyes of a society.
[33]
The Supreme Court of Appeal has repeatedly stated that in cases in
which the question of general damages comprising pain and
suffering,
disfigurement, permanent disability and loss of amenities of life
arises a trial court in considering all the facts
and circumstances
of a case has a wide discretion to award what it considers to be fair
and adequate compensation to the injured
party. See
Protea
Insurance Company v Lamb
1971 (1) SA 530
(A) at 534H 535A.
[34]
It is common cause in this instance that the plaintiff sustained
serious injuries to his right knee and the right side of his
lower
back when he fell. He spent three weeks in hospital where he
underwent three operations to his right knee and lower
back. It
is thus not in dispute that he suffered pain at the time he fell.
In his own words he testified that he experienced
excruciating pains
when he hit the rail tracks. The pain was on the knee and the
right side of the lower back. He experienced
the pain when he
was picked up from the rails and placed onto the platform. He
was carried into the train where he was made
to lie on the train
seat. At the Limindlela train station he was helped to walk
from the train to a motor vehicle which took
him to the hospital.
And all this time he experienced excruciating pain. He
continued to suffer pain during and after
the operations he
underwent. His leg was in traction for the whole week and he
was on crutches for eight months after being
discharged from
hospital. He continues to suffer pain even today. He is
no longer able to walk a distance of about
500m without getting pain.
He can no longer sit for an extended period of time without suffering
pain and has to change his sitting
posture many times to alleviate
the pain. He cannot even stand for a long time. This was
evident even in court whilst he
was in the witness box. He
could not sit down and had to give evidence standing. Because
he cannot stand for a long
time, he had to be given time to walk
around the court room to alleviate the pain. He walked slowly
and negotiated the steps
in the court room with great difficulty.
At times he had to support himself by holding onto the court benches
whilst walking.
It is also not in dispute that he has as a
result of the injuries been disfigured. He has a 28cm scar on
the right outside
part of the thigh which moves up to his lower
back. He also has scars on his right leg which are made of six
deep holes two
on the knee and four on the lower part of the leg.
He also has a pronounced limp when he walks.
[35]
It is common cause that he suffered and continues to suffer loss of
amenities of life. He is a person who used to enjoy
sexual
intercourse with his wife. According to his undisputed evidence
he would have sexual intercourse three or four times
in one night.
He is no longer able to do so. He experiences pain during
sexual intercourse which requires him to rest
for a day or two before
he can have sex again. He is a person who also liked to play
soccer and to exercise but he can no
longer do that. He can
hardly walk for a distance of 500m without experiencing pain.
[36]
My view is that, when considering the injuries sustained by the
plaintiff and the general trend followed by courts in awarding
damages, the amount of R400 000 claimed by the plaintiff for
general damages is not excessive and should be granted.
FUTURE MEDICAL
EXPENSES
[37]
The expenses claimed in respect of this head of damages are:
allowance for handyman/gardener; domestic assistance; additional
domestic assistance; post-surgery assistance; allowance for automatic
motor vehicle; allowance for future adjustment of permanent
residence
and other future medical expenses.
[38]
In proving this head of damages the plaintiff proffered his evidence
and that of his three witnesses. The other evidence
which is
available to enable me to adjudicate this issue is the joint minutes
of: the occupational therapists; the industrial psychologists;
orthopaedic surgeons and the addendum to the joint minute of the
industrial psychologists as well as the actuarial re-calculations
of
the actuaries for both parties. As such the only available evidence
at the end of the case was that of the plaintiff and his
three
witnesses together with the reports as stated in this paragraph.
[39]
It was argued on behalf of the defendants that on the evidence that
is before me, I cannot make a finding of fact that the
plaintiff
suffered future medical expenses and that his claim should be
rejected due to his failure to prove on a balance of probabilities
that he suffered such loss. The argument is based on the
following grounds:
a.
the reliance by the plaintiff on the joint
minutes done by the various experts without calling the said expert
witnesses to testify.
b.
the reliance by the plaintiff on the
actuarial report that was compiled by Mr Pretorius who is not a
qualified actuary.
c.
the plaintiff’s failure to call a
mobility expert in respect of the requirement of an automated
vehicle.
d.
the failure by the plaintiff to adduce the
evidence of an orthopaedic surgeon in respect of the requirement for
future surgery.
[40]
The crisp question in respect of this head of damages is whether the
plaintiff on the basis of the evidence before me succeeded
on a
balance of probabilities to prove the damages claimed. Such
onus
can ordinarily only be discharged by adducing credible
evidence to support the plaintiff’s case.
[41]
I shall therefore address the issues raised by the defendants’
counsel as follows:
a.
Reliance
on the Joint Minutes
[42]
The parties’ counsel were at odds as to whether or not the
joint minutes of their respective expert witnesses and the
agreements
entered into by the parties were binding between the parties.
Secondly, the counsel having agreed not to lead
any further evidence
after the addendum and the actuarial re-calculations were handed in
wanted to argue that I should make a negative
inference against the
party who has not tendered the evidence that was not led. For
instance, the plaintiff did not lead
the evidence of the orthopaedic
surgeon and on the other hand, the defendants did not lead any
evidence. After a lengthy
debate by counsel I gave instruction
that the issue be addressed by counsel in their respective heads of
argument.
[43]
On this point, the argument by the defendants’ counsel is that
the objective of the joint minutes and the agreements
between the
parties is to curtail the issues in order to limit the duration of
the trial and that the opinion contained in such
reports should not
be elevated into evidence. The duty is ultimately upon the
court to decide whether such opinion is to
be relied on or not and to
determine the weight if any, that has to be afforded that opinion.
The contention by the plaintiff’s
counsel is that even though
such minutes and agreements are intended to curtail the issues and
limit the duration of the trial,
the joint minutes and agreements are
binding on the parties.
[44]
The principles which pertains to the weight and/or value to be placed
on the joint minutes of the expert witnesses or agreements
entered
into by the parties are enunciated as follows in
Thomas
v BD Sarens (Pty) Ltd
(2007/6636)
[2012] ZAGPJHC 161 (12 September 2012 para [10] – [15]:
i.
Where the experts called by opposing litigants meet and reach
agreements about facts or about opinions, those agreements bind
both
litigants to the extent of such agreements. No litigant may repudiate
an agreement to which its expert is a party, unless
it does so
clearly and, at the very latest, at the outset of the trial. It is
self-evident that to do so at so late a stage is
undesirable because
it may provoke delay, but that is a practical aspect not touching on
any principle. It is conceivable that
very exceptional circumstances
might exist that allow a litigant to repudiate an opinion later than
this moment, such as fraudulent
collusion, or some other act of gross
misconduct by the expert.
ii.
Where experts are asked or are required to supply facts, either from
their own investigations, or from their own researches,
and an
agreement is reached with the other party’s experts about such
facts, such an agreement on the facts enjoys the same
de facto
status as facts that are expressly common cause on the pleadings or
facts agreed in a pre-trial conference or in an exchange of
admissions.
iii.
Where two or more experts meet and agree on an opinion, although the
parties are not at liberty to repudiate such an agreement
placed
before the court, it does not follow that a court is bound to defer
to the agreed opinion. In practice, doubtlessly rare,
a court may
reject an agreed opinion on any of a number of grounds all amounting
to the same thing; ie the proffered opinion was
unconvincing. (Menday
v Protea Assurance Co Ltd
1976
(1) SA 565
(E)
at 669B-E.) The rationale for not affording a litigant the same free
hand derives purely from the imperative of orderly litigation
and the
fairness due to every litigant to know, from the beginning of a
trial, what the case is that has to be met.
iv.
The upshot of these principles is that it is illegitimate to
cross-examine an opponent’s witness to undermine an agreed
position on fact or on opinion unless, before the trial begins, the
opinion of a party’s own expert has been formally repudiated.
No litigant shall be required to endure the risk of preparing for
trial on a premise that an issue is resolved only to find it
is
challenged.
v.
Furthermore,
an opinion may only be admitted into evidence on two bases. The first
is that there is an agreement that it may be
so admitted. The second
is that the rules of court, especially Rule 35, have been complied
with or compliance therewith has been
excused by the adversary. It is
therefore not permissible to refer to a letter or a report of a
medical practitioner for the purpose
of invoking and relying on an
opinion expressed therein, if it was not the subject of proper notice
in terms of the Rules. However,
it may sometimes be permissible to
refer to a fact recorded in such a document and any controversy about
so doing falls to be decided
in accordance with the rules of evidence
as to the reliability of such evidence to establish the particular
fact.
[45]
I am in respectful alignment with the abovementioned principles and I
find them apposite in this instance. To my mind
the parties
were common cause as to the agreement entered into by their expert
witnesses in respect of the opinions expressed in
the joint minutes.
The defendants’ counsel did not at the outset of the
proceedings repudiate the joint minutes to
which the defendants’
expert witnesses were party to. In fact she at the beginning of
the trial confirmed that the
joint minutes were not contested and
should be handed in as part of the record. The reports
were challenged only during
cross examination and/or when addressing
me at the end of the trial without raising any exceptional or any
circumstances at all
for doing so. And as already stated no litigant
should endure the risk of preparing for trial on a premise that an
issue is resolved
only to find it is challenged. Similarly in
this instance it is wrong for the defendants’ counsel to
challenge issues
which were at the outset of the trial common cause
between the parties.
Even though, as
suggested by the defendants’ counsel, it remains the duty of
the court not merely to accept the opinion of
an expert witness
without satisfying itself that such witness is correct, the joint
minutes and the agreements remain binding between
the parties. The
court must weigh the opinion, along with all the other evidence in
deciding the case but should as well take into
account the facts
and/or data which is common cause between the parties and the expert
witnesses.
Such
facts and any agreement on the facts enjoys the same
de
facto
status as facts that are expressly common cause on the pleadings or
facts agreed in a pre-trial conference or in an exchange of
admissions. My view is that this challenge by the defendants’
counsel is misplaced and should be rejected.
My
above ruling covers the issue raised on the failure by the plaintiff
to call the orthopaedic surgeon to give evidence on the
requirement
for future surgery by the plaintiff. The two orthopaedic
surgeons are agreed in their joint minute that the provision
should
be made for revision surgery of the hip and knee should such need
arise. There was thus no reason for the plaintiff
call the
orthopaedic surgeon to come and regurgitate this evidence.
It
is also per agreement between the occupational therapists in their
joint minute to allow the use of a motor vehicle. The
calculations by Jacobson are sufficient for this purpose. The
undisputed evidence before me is that Jacobson is experienced
in such
things. I am thus satisfied that this expense should be
allowed.
b.
Reliance
on the Actuarial Report
[46] The actuarial
report on which the plaintiff relied on for his calculations is from
a firm of consulting actuaries Gerard Jacobson.
When tendering
evidence on the calculation of
quantum
in respect of loss of
income and future medical expenses the plaintiff called two
witnesses, namely, Mr Maon Saul Jacobson (Jacobson)
and Mr Morne
Pretorius (Pretorius) to testify in support of the actuarial report.
Jacobson, a qualified actuary and a fellow
of the Institute of
Actuaries, is a partner in that firm and Pretorius is a professional
assistant. Jacobson is in partnership
with his father Gerard
Jacobson. The report in question is compiled by Pretorius under
the supervision of Jacobson and on
behalf of Gerard Jacobson
Consulting Actuaries..
[47] The defendants’
counsel objected to the admission of the evidence of Jacobson on the
basis that firstly the plaintiff’s
uniform rule 36 (9) notice
in respect of the actuarial report referred to Gerard Jacobson as the
person who will give evidence
on behalf of the plaintiff and
therefore Jacobson was not legible to testify in regard to that
report; and secondly, the report
was made by a person who is not a
qualified actuary.
[48] The uniform
rule 36 (9) (a) notice filed by the plaintiff in respect of the
evidence of an actuary reads as follows:
“
BE
PLEASED TAKE
[sic!]
NOTICE
THAT
the Plaintiff intends calling the
following person to give expert evidence on his behalf at the trial
of this matter:- m
GERARD JACOBSON
(Consulting Actuaries)”
[49] The contention
by the defendants’ counsel is that she expected Gerard
Jacobson, who is a partner in the firm to testify
and not Jacobson.
The defendants’ counsel is clearly wrong, there is nowhere in
the notice where it is indicated that
Gerard Jacobson will give
evidence on behalf of the plaintiff. The name Gerard Jacobson
Consulting Actuaries as appears in
the notice is not a name of a
particular person but that of a firm of consulting actuaries.
Jacobson is thus in my view professionally
qualified to give evidence
on behalf of the plaintiff. It is indeed so that the report was
compiled by Pretorius who is not
a qualified actuary but a
professional assistant. The evidence, which is
uncontroverted, is that Pretorius compiled
the report under the
supervision of Jacobson. My ruling therefore is that the report
and the evidence of Jacobson are admissible.
DAMAGES
[50] It is not in
dispute, the experts are agreed, that the plaintiff requires future
medical treatment, including surgical operations
for total hip
replacement, arthroscopic debridement of the knee joint and total
knee joint replacement. He will also require
occupational
therapy and other rehabilitation intervention such as physiotherapy
and biokinetics for pain management and physical
rehabilitation as
well as special and adapted equipment and domestic assistance.
All these issues were agreed to by the various
experts.
However, it was argued on behalf of the defendant that the court
should not be bound by the joint minutes of the
experts and should
exercise its discretion whether to allow the damages or not. I
have already ruled on this issue raised
by the defendant’s
counsel and made a finding that the parties are bound by what was
agreed. I am prepared thus to
make a ruling based on what has
already been agreed. There are no special circumstances which
were presented to me in order
to persuade me to rule otherwise.
[51] It should be
remembered that the elementary principle is that the purpose of
awarding damages is to place an injured party
in the same position,
perhaps as nearly as possible, as he or she was before the incident
which caused the injuries. The
plaintiff in this instance
should therefore be placed in that position.
[52] It was argued
on behalf of the defendants that by awarding damages for the
automatic motor vehicle would not be putting the
plaintiff in the
same position since he did not own a motor vehicle before he was
injured. Logic dictates that now that the
plaintiff is unable
to walk for a long distance he can no longer walk himself to the bus
stop or taxi rank where he will catch
either a bus or a taxi which
will take him to wherever he wants to go. This means he will
have to depend on hiring either
someone else’s motor vehicle or
calling a taxi to transport him around. If he does not have the
money to do so he will
end up being at the mercy of other people, or
he will be home bound and this was not the situation before.
[53] I state also
that the damages for accommodation should be awarded now even though
the experts are of the view that they will
be required in future when
he has a permanent home. This may be his last home. He
requires assistance now not in the
future. The submission that
at the moment he does not stay in a permanent home does not detract
from the fact that he should
now as we speak stay in a single storey
house with limited steps, floor covering to be continuous and
non-slip without loose rugs
to ensure safety in mobility around the
house. He also is in need of running hot and cold water to a
bath/shower now not
in the future when he has a permanent home.
[54] I have weighed
the opinions of the various experts and I am satisfied that, except
for a gardener – the plaintiff does
not have a garden - and the
additional personal care giver the plaintiff is entitled to all the
future medical damages agreed to
and recommended by the various
experts.
[55] To the extent
that no figures were provided by the experts in respect of the
expenses they recommended and also taking into
account the
possibility of some of the aspects not being a certainty, I still
have the discretion to include a contingency in the
damages as a
figure representing a percentage of that which would have been
included if the possibility had been a certainty. Jacobson
calculated
the amounts which should be granted in respect of each of the
expenses. The calculations and/or amounts are unchallenged
and I have
no reason whatsoever not to award them to the plaintiff. I am thus
satisfied that these are the amounts which should
be awarded.
[56] All the future
medical expenses, excluding those I stated in paragraph [51] above
and which were agreed to between the parties’
experts should
therefore be granted as
per
the calculations done by
Jacobson. In my view the following damages should be granted:
a.
contingency allowance for any structural adjustment to the
plaintiff’s house to ensure safety in mobility around his
house,
as well as the installation of mechanisms to bring about
access to running cold and hot water to a bath or shower in the
plaintiff’s
home in the amount of R500 000;
b.
domestic assistance in the amount of R42641;
c.
post-surgery assistance in the amount of R7893;
d.
handyman in the amount of R7873;
e.
provision for an automatic motor vehicle including a contingency
amount for the running costs thereof in the amount of R500 000;
and
f.
other future medical expenses in the amount of R649148.
COSTS
[57] The plaintiff’s
counsel argued for a costs order on an attorney and client scale in
case the matter is decided in the
plaintiff’s favour. The
plaintiff is the successful party and is therefore entitled to his
costs of suit which shall include
the costs of all the plaintiff’s
expert witnesses and fees of the plaintiff’s expert witnesses
who testified in the
trial. There are no special circumstances in
this instance which call for a punitive cost order as argued by the
plaintiff’s
counsel.
[58] Consequently I
make the following order:
a.
General damages are awarded to the plaintiff in the amount of
R400 000;
b.
Loss of income damages are awarded to the plaintiff in the amount of
R438 657;
c.
Future medical expenses are awarded to the plaintiff in the amount of
R1 707 555;
e.
The defendant is ordered to pay
interest on the amounts awarded at the prescribed interest rate, from
a date fourteen days after
the date of this judgment to date of
payment;
f.
The defendant is ordered to pay the
plaintiff the costs of this suit, including the costs of all of the
plaintiff’s expert
fees and of the plaintiff’s experts
who testified in the trial, namely:
(i)
Ms Thandi Nape (occupational therapist);
(ii)
Dr M Malaka (industrial psychologist);
(iii)
Mr Maon Saul Jacobson (actuary); and
(iv)
Mr Morne Pretorius (professional assistant
to Jacobson)
KUBUSHI
J
JUDGE
OF THE SOUTH GAUTENG HIGH COURT
APPEARANCES
HEARD
ON THE : 14 OCTOBER 2013
DATE
OF JUDGMENT : 26 FEBRUARY 2014
PLAINTIFF’S
COUNSEL : ADV G. SHAKOANE
PLAINTIFF’S
ATTORNEY : DENGA INCORPORATED
RESPONDENT’S
COUNSEL : ADV N. MAKOPO
ESPONDENT’S
ATTORNEY : JERRY NKELI & ASSOCIATES INC