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[2014] ZAGPJHC 351
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Adams v Road Accident Fund (31049/2011) [2014] ZAGPJHC 351 (21 November 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 31049/2011
DATE:
21 NOVEMBER 2014
In
the matter between:
ASHRAF
ADAMS
.......................................................
PLAINTIFF
And
ROAD
ACCIDENT FUND
.......................................
DEFENDANT
JUDGMENT
COLLIS
AJ:
INTRODUCTION
[1]
The plaintiff, an adult male, has instituted a damages action against
the defendant for certain bodily injuries he sustained
in a motor
vehicle collision on 7 June 2008. At the time of the accident the
plaintiff was the driver of a motor vehicle bearing
registration
letters and numbers 3..... A... GP which collided with an Opel Corsa
motor vehicle, bearing registration letters and
numbers E.... 6.....
GP, there and then being driven by Steven Pretorius, referred to as
the insured driver.
[2]
In the particulars of claim at paragraphs 5 and 6 thereof the
plaintiff alleged as follows:
“
5
The sole cause of the collision aforesaid was the negligent driving
of the said Steven Pretorius; he having been negligent in
one or more
or all of the following respects:
5.1
He failed to keep a lookout,
alternatively
, any proper
lookout; and /or
5.2
He failed to keep the truck of which he was the driver under any,
alternatively
, any proper control; and/or
5.3
He failed to avoid the collision when, by the exercise of reasonable
care, she could or should have done so; and/or
5.4
He failed to apply the brakes of the truck of which he was the driver
timeously or at all; and/or
5.5
He failed to allow the Plaintiff a safe berth at a stage where he
could and should have done so; and/or
5.6
He failed to pay due regard to the rights of other users of the road
and in particular the rights of the Plaintiff aforesaid;
and/or
5.7
He turned right suddenly and without warning directly across the path
of travel of oncoming traffic and more specifically the
Plaintiff’s
vehicle and collided with the Plaintiff’s vehicle; and/or
5.8
He turned right directly across the path of travel of oncoming
traffic more specifically the Plaintiff’s vehicle and collided
with the Plaintiff’s vehicle; and/or
5.9
He failed to exhibit the requisite degree of skill expected from a
reasonable driver in the circumstances.
6
The impact of the aforementioned collision was severe and as a result
of which the Plaintiff sustained the following severe bodily
injuries:
6.1
Head injury
-multiple
lacerations head
-multiple
lacerations face
-loss
of consciousness
6.2
neck injury;
6.3
injury to right shoulder-acromioclavicular joint sub-dislocation of
Type II;
6.4
fracture right ulna;
6.5
laceration of right knee.”
[3]
In its plea the defendant denied the allegations and placed the
plaintiff to proof thereof.
THE
DISPUTE
[4]
The matter comes before me for the determination of the
quantum
of damages suffered by the plaintiff as the issue of
liability
had already been settled between the parties. The defendant accepted
liability for 80% of the plaintiff’s proven damages.
[5]
In respect of the
quantum
, the following of the plaintiff’s
heads of damages have been agreed:
5.1
Past hospital and medical expenses in the amount of R 19 590.36;
5.2
General damages in the amount of R 600 000;
5.3
Future hospital and medical expenses shall be covered by an
undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, limited to 80%.
[6]
In respect of the
quantum
the court was as a result called upon to decide what the plaintiff’s
pre-morbid career path would have been had it not been
for the
collision and further what the plaintiff’s post-morbid career
and coupled to that his earning capacity would entail,
now that the
collision did occur.
[7]
It was common cause that at the time of the collision the plaintiff,
post school had obtained a N1 qualification and was employed
at a
pharmacy as a front shop assistant.
THE
EVIDENCE
Factual
Evidence
[8]
Two factual witnesses testified on behalf of the plaintiff, namely
his employer at the time of the collision and his wife. Ms
Nazeema
Fredericks evidence can be summarised as follows: She was the owner
of Nazeema’s Pharmacy and the employer of the
plaintiff since
2007. At the time of the collision, the plaintiff was employed at her
pharmacy as a front shop assistant with his
general duties entailing
ordering stock, unpacking stock upon delivering, pricing of stock and
placing it onto the shelves. At
the time of the collision he was
earning a salary of R 7000 per month and she regarded him as a
trustworthy and excellent worker.
She gave evidence that
approximately a month after the collision, the plaintiff returned to
work, but was a different person. He
suffered from memory loss, was
irritable and had constant headaches. He also made a lot of mistakes
resulting in her having to
check on his work all the time. It is for
this reason that she decided, it would be best that the plaintiff
should rather stay
at home in order to recover from his injuries. For
the next six months, she kept his position open for him, but as his
memory loss
persisted, she decided it would be best to terminate his
services. During cross-examination the witness conceded that she was
married
to the father of the plaintiff’s wife. Further that
prior to employing the plaintiff she never enquired about his past
employment
history, but was aware that the plaintiff only obtained a
Grade 10 passing at school level.
Ms
Y Adams gave evidence as follows: She married the plaintiff during
2006 and they are the proud parents of two children. Prior
to the
collision she described the plaintiff as a sporty, hands-on, and a
very active individual. The day following the collision,
when she
first saw the plaintiff at the hospital, he did not recognise her. He
was discharged three days thereafter. Since the
collision the
plaintiff has become a more forgetful, moody and irritable person. A
month following the collision, he returned to
work but found the
environment very stressful and he suffered from memory loss. He
struggled to do his work efficiently and after
a discussion they
decided it would be best for him to stay at home. During
cross-examination, the witness conceded, that post the
collision, the
plaintiff has never looked for other employment, as he would not be
able to attend an interview and work in a new
environment. She also
testified that on a daily basis he would take the children to school
and collect them from school. Most days
he would tidy the house for
her and would spend the better part of his day on the internet. Since
the collision she however has
become the breadwinner in the household
and has had to shoulder much of the responsibilities as a parent.
Evidence
of the Psychiatrist
[9]
Dr Jacobus Prinsloo, a psychiatrist, interviewed the plaintiff on 6
May 2013 and filed a report
[1]
on behalf of the plaintiff. His clinical findings were that the
plaintiff suffered from a cognitive disorder, a mild to moderate
depressive mood disorder and a mild to moderate anxiety disorder
which he testified were all due to a traumatic brain injury sustained
on 7 June 2008. It was his assessment; that the plaintiff did not
suffer from dementia but that stress levels brought about unremitting
loss of his functional capacity since 7 June 2008. During
cross-examination the witness conceded, that memory loss suffered by
the plaintiff, did not show as clearly during his assessment as the
plaintiff was able to recall adequately; but was adamant that
one
must be careful not to minimise the plaintiff’s degree of
suffering and that his condition is impaired.
Evidence
of the Clinical Psychiologists
[10]
Mr Robert Macfarlane, a Clinical Psychologist, conducted his
assessment of the plaintiff on 1 May 2013, and compiled a report
[2]
in respect of such assessment. In his report and on the basis of the
available information at his disposal he was of the opinion,
that the
plaintiff seems likely to have sustained a traumatic brain injury,
resulting in permanent difficulties which are believed
to constitute
a mild to moderate neuropsychological impairment. He testified that
the plaintiff post collision would be an unattractive
employee, where
such employment would require a high degree of mental concentration
and attention. Furthermore, he testified that
post collision the
plaintiff would have difficulty to return to the same work
environment as that he was in before the collision,
but that he might
still be able to have some working capacity left if such working
environment would be structured, routine, simple
and supervised.
[11]
Ms Maria Genis, the Clinical Psychologist called by the defendant
testified that she examined the plaintiff on 24 June 2014
and
compiled her report
[3]
pursuant
thereto. She gave evidence in compiling her assessment that she
administered a number of tests on the plaintiff as outlined
in her
report. Post collision, she concluded from a neuropsychological
perspective that the plaintiff could struggle with attention
and
concentration and that this was confirmed by his scoring of varied
results on complex mental tracking tasks. She confirmed
that on all
memory tests performed, he scored average performances and that he
struggled with a proactive interference, in that
previously learned
material interfered with his ability of learning new material. She
was further of the opinion that the plaintiff
would be able to return
to work from a physical and neurocognitive perspective, but from a
neurobehavioral perspective, behaviour
such as irritability,
short-temperedness, feeling guilty and worthless would impact
negatively on his ability to manage stress.
During cross-examination
she reiterated that she did not think that the plaintiff was
unemployable.
[12]
Both experts in their joint minute
[4]
of 11 August 2014 agreed that the plaintiff sustained a traumatic
brain injury as a result of the accident. The severity thereof,
they
deferred to the joint neurosurgical opinion. They further agreed that
upon assessment of the plaintiff, there was no evidence
of
depression, but only mild anxiety symptoms. They also agreed that
funds should be allocated for psychotherapy sessions, but
disagreed
as to the number of sessions needed.
Evidence
of the Industrial Psychologists
[13]
I now turn to deal with the evidence of the industrial psychologists.
Ms Christa Du Toit, the industrial psychologist for the
plaintiff
assessed the plaintiff on 23 April 2012 in order to evaluate the
plaintiff’s earning capacity and employability,
disregarding
and having regard to the accident and injuries sustained. Pursuant
thereto, she complied a report
[5]
on her findings. She testified that at the time of the collision,
albeit that the plaintiff was employed at Nazeema’s Pharmacy
he
had plans to complete his N2 Motor Mechanic qualification. Prior to
the accident, the plaintiff had ambition to start his own
technical
company for panel beating, painting and car accessories. He also
considered doing his trade and to qualify as a panel
beater. During
cross-examination the witness testified, that the fact the plaintiff
did not complete school had no impact on his
working ability
pre-accident. She was also of the opinion, the fact that the
plaintiff discontinued his motor mechanic studies,
should not be
viewed as an absolute negative. It was her view, that the plaintiff
would still be able to secure work but could
offer no opinion as to
why he had been unable to do so for a period of six years post
collision.
[14]
Dr Pieter Harmse, an industrial psychologist for the defendant
assessed him on 25 April 2012. It was his evidence the purpose
of the
report
[6]
that he compiled
pursuant to his assessment of the plaintiff was to focus on the
plaintiff’s loss of earnings between his
pre-earning capacity
and his post-accident potential. He testified, pre-accident the
plaintiff obtained a Grade 10 education and
having completed his N1
was in the process of completing his N2 in motor mechanics. At the
time of the collision, he was working
for Nazeema’s Pharmacy as
a general worker/cashier earning a total salary of R 7000.
Disregarding the accident he testified,
that the plaintiff would have
continued to work in a similar capacity earning at the above earnings
plus inflationary increases
until normal retirement age of 65 years.
Furthermore, that the plaintiff is currently unemployed as he
resigned from Nazeema’s
Pharmacy due to the fact that he was
relocating. During cross-examination the witness conceded that at the
time when he assessed
the plaintiff he had at his disposal, the
report of the plaintiff’s neurosurgeon, but did not have the
joint minute prepared
by both neurosurgeons. He further conceded that
he had failed to ascertain from Nazeema’s pharmacy, how the
plaintiff performed
post collision and confirmed that if the
plaintiff was to be employed post collision, he would have to work
for a sympathetic employer.
[15]
In the joint minute
[7]
prepared
by the industrial psychologists, they agreed pre-collision, that the
plaintiff in all likelihood would have retired at
age 60-65 years
depending on his preferences and circumstances. Ms Du Toit was of the
opinion, in the event that the plaintiff
was self-employed, the
probability existed that he might even work beyond the age of 65
years. The experts further agreed that
the plaintiff has been left
somewhat less competitive in the open labour market due to
neuropsychological
sequelae
in that as per the neuropsychologists a routine, structure
environment might be ideal. This will have a negative impact on his
income which will although difficult to quantify, probably be at a
lower level than his projected pre-accident earning potential.
Evidence
Occupational Therapists
[16]
Ms Rose Leshika conducted her assessment of the plaintiff on behalf
of the defendant on 28 February 2012. The witness testified
that the
purpose of her report
[8]
was to
ascertain the impact of the injuries sustained by the plaintiff in
the accident on his activities of daily living, leisure/recreation
and work (earning capacity). She gave evidence that amongst the
assessments conducted was the ‘Whole Body Range of Motion’,
which depicted tasks that the plaintiff was required to perform above
his head was associated with pain in his right shoulder.
She further
testified that the plaintiff would be able to return to his work,
pre-accident as he sustained no cognitive impairments
as a result of
the accident. During cross-examination the witness conceded she was
not aware that the plaintiff had sustained a
brain injury as a result
of the collision. She also conceded that if the plaintiff was to
return to his pre-accident employment
and in the event of him being
required to perform activities above his head, it might present him
with a challenge.
[17]
Ms Mpho Zwane, conducted her assessment of the plaintiff 26 April
2013 and pursuant thereto compiled a report.
[9]
In essence it was her testimony that based on her assessment the
plaintiff would be suited to light physical work and albeit that
he
meets the physical demands of his previous employment as that of a
pharmacy assistant, he does not meet the cognitive demands
of this
occupation. He will as a result find it difficult to compete in the
open labour market. During cross-examination the witness
disagreed
with her counterpart that the plaintiff would be able to lift weighty
objects as she testified that when she conducted
her assessment, the
plaintiff complained of pain in the shoulder and as a result she had
to discontinue this test.
[18]
The joint minute
[10]
prepared
by the occupational therapists, the experts deferred the final
diagnosis, outcome and prognosis of the injuries sustained
by the
plaintiff to the other experts. They agreed that the plaintiff would
benefit from sessions with an occupational therapist
and suggested
four (4) sessions in this regard. They also agreed that the plaintiff
would benefit from physiotherapy sessions albeit
that they could not
reach consensus as to the relevant expert to determine the total
number of sessions.
[19]
In addition to the
viva voce
evidence presented before the
court, the parties by agreement requested the court to mark as
exhibits the following reports:
19.1
The report by the plaintiff’s orthopaedic surgeon Dr Colin
Barlin, marked as exhibit A.
19.2
The joint minute prepared by the neurosurgeons Drs Snykers and Earle,
marked as exhibit B.
19.3
The medico-legal report prepared by Dr Naidoo, marked as exhibit C.
19.4
The report compiled by Dr Leslie Berkowitz, the Plastic and
Reconstructive surgeon, marked as exhibit F.
19.5
Exhibit F, the Revised Actuarial Calculations by Gerard Jacobson
Consulting Actuaries, dated 2 September 2014.
19.6
Exhibit L, the initial actuarial report compiled by Gerard Jacobson
.
[20]
At the outset it should be mentioned that the plaintiff elected not
to testify during these proceedings. The rationale thereof
was not
explained to the court. The failure on the part of the plaintiff to
take the stand deprived the court of an opportunity
to observe the
plaintiff and his disposition as at date of commencement of the
proceedings.
[21]
However, based on the factual disposition as well as the views
expressed by the experts during their testimony, the pertinent
question arose what award would be fair and adequate compensation for
the plaintiff in respect of his loss of earnings and earning
capacity.
[22]
It is by now accepted that in the assessment of these kinds of
damages, which cannot be assessed with any amount of mathematical
accuracy the court has a wide discretion.
[11]
[23]
Furthermore, with regard to expert evidence, it is trite as was
stated in Louwrens v Olwage
2006 (2) SA
161
(SCA)
that in applying a scientific
criteria or reasoning the expert witness must satisfy the Court that
the conclusions drawn by the
expert in question are founded on
logical reasoning and that these conclusions are based on facts
proved by admissible evidence.
[24]
The legal representative on behalf of the defendant quite
appropriately referred the Court to the decision of S v Gouws
1967
(4) SA 527
(EC)
at 528D, where Kotze J (as he then was) said:
‘
The
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specialised
field. His
own decision should not, however, displace that of the tribunal which
has to determine the issue to be tried. The tendency
to lead expert
witnesses to attempt to influence a court with their “opinions”
of the very issue which is to be determined,
makes it difficult to
distinguish facts from inferences and opinions. However, difficult it
may be, I am called upon to sift through
all the evidence and to
place all admissible evidence on the scales and consider them.
Inadmissible evidence, transgressing the
rules regarding the
admissibility of evidence of experts, will be disregarded.”
[25]
In the decision Southern Insurance Association v Bailey NO
1984 (1)
SA 98
(A) at 114C-D, Nicholas JA said:
‘
In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no more
than an
“informed guess” it has the advantage of an attempt to
ascertain the value of what was lost on a logical basis;
whereas the
trial Judge’s “gut feeling” (to use the words of
appellant’s counsel) as to what is fair and
reasonable is
nothing more than a blind guess. (cf Goldie v City Council of
Johannesburg
1948 (2) SA 913
(W) at 920.)
[12]
PRE-MORBID
CAREER PATH
[26]
The undisputed evidence in this regard is the following:
26.1
Prior to the collision, the plaintiff’s highest level of
education was a Grade 10 qualification passed at school and
an N1
qualification as an artisan, which he obtained since leaving school.
Sometime thereafter, he enrolled for an N2 course in
motor mechanics,
which he failed to complete.
26.2
During 2000-2006 he did his internship as a mechanic during which
time he earned an income of R 1600 per month. He thus had
the desire
to qualify as a mechanic and to one day pursue a career as one.
26.3
In 2006 he got married and as a result resigned his employment as a
mechanic as the demands of having a family took its toll.
26.4
He then thereafter took up employment at MTN as a call centre
operator and at the time was earning a salary of R 7000 per month.
26.5
The hectic working hours resulted in him changing employment once
again during 2007 and it was then that he took up employment
at
Nazeema’s Pharmacy as an assistant, where he continued working
there until the date of the collision.
26.6
It is also common cause that the plaintiff returned to this last
employment for approximately a month following his recovery,
but that
he could not work satisfactory as he was very forgetful and his
employer needed to check on his work constantly.
[27]
On behalf of the plaintiff it was argued, that as the plaintiff was
described as an excellent worker and regarded as an asset
by his last
employer and further that as his income as at date of collision was
not placed in dispute, that the plaintiff pre-morbid
would have
received such income coupled with the yearly inflationary increases,
which as per the evidence of Ms Du Toit, would
have escalated with
inflation to median Patterson B3, basic salary (being R 117 600 p/a).
[28]
In addition, counsel submitted with reference to the evidence of Ms
Du Toit, that in all likelihood the plaintiff would have
reached his
pre-morbid career ceiling of the median of Patterson B4/B5, basic
salary (being R 150 000 p/a). This was premised on
the fact that as
at the time of the accident, the plaintiff was already earning the
upper notch of semi-skilled of Patterson B3
and at that stage he was
in his late twenties. Ms Du Toit was of the opinion that for the
plaintiff to have moved from his pre-morbid
income of median B3 to
median B4/B5 would only translate to one and a half higher notches
over a long period of time.
[29]
On behalf of the defendant it was argued, that the plaintiff had a
fairly low level of education, and had a poor track record
of failed
attempts at his studies. In just over a period of nine (9) years,
from 1998 to 2007 he failed to complete his technical
training and
education. Furthermore, given the fact that the plaintiff as at date
of the accident was employed by a relative, he
was earning higher
than expected salary than others with his level of education and as
such had reached his ceiling at a much younger
age. Dr Harmse, who
testified on behalf of the defendant, confirmed this position and was
of the opinion that what the plaintiff
was earning prior to the
collisio, was unusual given his age and in all likelihood after the
collision he would not have projected
much higher.
[30]
To the latter argument, there are some merits and demerits. Firstly
the plaintiff as at date of the accident was earning R
7000 per
month. This fact, quite simply, not only was undisputed, but it is
how this particular plaintiff is to be categorised
as. Even if this
court is to accept that his earnings at the time of R7000 per month,
was considered to be a high income bracket
for someone of his ilk, it
was a salary that he was earning before even taking up employment at
Nazeema’s Pharmacy. This
is the position he found himself in as
at date of collision. That having been the position; in all
likelihood or probability would
have translated in this being his
likely earnings or probable earnings.
[31]
The income bracket that the plaintiff found himself earning as at
date of collision, (even without any improved educational
qualifications),the probabilities dictate would have increased with
time rather than decreased resulting in his ceiling pre-morbid,
increasing from median B3 to median B4/B5.
[32]
In the result I do not accept the argument presented on behalf of the
defendant that indeed pre-morbid, the plaintiff had reached
his
career ceiling and to suggest otherwise would be wholly unrealistic.
A progression to have reached a career ceiling of median
of Patterson
B4/B5, as basic salary, I am of the opinion is a conservative
approach and in all likelihood more probable.
POST-MORBID
CAREER PATH
[33]
It was common cause between the parties, that the plaintiff sustained
the following injuries in the collision:-
33.1
A fracture of his right ulna.
33.2
A fracture dislocation of his right shoulder.
33.3.
A knee laceration.
33.4
A head injury, which resulted in a traumatic brain injury, which was
likely in the mild to moderate severity category.
[34]
The evidence presented in respect of the plaintiff’s
post-morbid career path was that the plaintiff post collision has
been left completely unemployable. In substantiation of this
contention the plaintiff proceeded to not only present factual
evidence
by his spouse and previous employer, but also presented
evidence of an expert nature. As to the factual evidence presented,
his
spouse testified that post collision the plaintiff is a different
person. He has become very irritable; he is very forgetful and
has to
be reminded all the time about things left for him to do. The same
sentiments was also expressed by his previous employer
i.e. that post
collision when the plaintiff returned to work, all of a sudden he was
very irritable; he could not remember where
he had placed new stock
upon receipt thereof, and as a result she constantly had to check on
his work. Prior to the collision however
the plaintiff was an
excellent worker. Having regard to the expert evidence presented on
the plaintiff’s post-morbid condition:
-the
occupational therapists both confirmed restrictions to the
plaintiff’s physical work ability albeit that they differ
as to
what classification of work the plaintiff can do. Ms Leshika, the
occupational therapist who testified on behalf of the defendant,
confirmed that the plaintiff experienced pain and struggled when
called upon to do work above his head.
-The
joint minute of the orthopaedic surgeons confirmed the fracture
dislocation to the shoulder and that the plaintiff would require
permanent treatment to the shoulder due to permanent
sequelae
.
-The
joint minute of the neuropsychologists confirmed a traumatic brain
injury with the result that the plaintiff cannot return
to his
pre-morbid employment.
-Evidence
of the psychiatrist, that the plaintiff suffered a traumatic brain
injury and that his condition is impaired.
-The
joint minute of the neuro surgeons confirming that the plaintiff’s
brain injury was moderate to severe.
[35]
The defendant in turn was of the view, that post-collision, that the
plaintiff has retained a significant residual income capacity
and at
the very least he should be employable in an environment as was
proposed to by his neuropsychologist, Mr Macfarlane, as
“routine,
simple, structured and supervised. Albeit, that the defendant
conceded that post collision the plaintiff presented
with certain
deficits and or fall outs; certain neurobehavioral problems and
attention deficits, the defendant did not believe
such deficits
completely incapacitated the plaintiff to enable him to secure work
in the future.
[36]
Where the defendant was of the opinion that the plaintiff still
possessed a residual earning capacity, the defendant carried
the
onus
to prove such residual earning capacity before the Court on a balance
of probability. In this respect the defendant ought
to have
identified the work, which on its own expert opinion was routine,
simple, structured and supervised. In addition thereto,
the defendant
ought to have proven what income the plaintiff will earn whilst doing
such work, when most likely the plaintiff would
have secured such
work and lastly for how long the plaintiff would have maintained such
work.
[37]
In this regard the most crucial evidence presented in this regard,
was the evidence of the defendant’s industrial psychologist.
As was mentioned in paragraph 14
supra
,
Dr Harmse conceded during cross-examination, that the plaintiff if he
is able to obtain future employment, he would have to perform
work
for a very sympathetic employer. The doctor further conceded that in
his endeavours to obtain employment that the plaintiff
with his
limitations would have to compete with other job seekers and in all
likelihood would find this challenging. The witness
also conceded
that when he prepared his report he did not have the benefit of all
the expert reports of the plaintiff at his disposal
and as such his
opinion might not have been very objective.
[38]
On the evidence presented by the defendant; I cannot find that the
defendant succeeded in proving that the plaintiff post-morbid
maintained a residual earning capacity and as a result I must find
that such earnings are zero.
[39]
In the decision Burger v Union National South British Insurance
Company
[1975] 3 ALL SA 647
(W) at p 650 the following passage I find
to be appropriate:
‘
A
related aspect of the technique of assessing damages is this one; it
is recognised as proper in an appropriate case, to have regard
to
relevant events which may occur, or relevant conditions which may
arise in future. Even when it cannot be said to have been
proved, on
a preponderance of probability, that they will occur or arise,
justice may require that what is called a contingency
allowance be
made for a possibility of that kind. If, for example, there is
acceptable evidence that there is a 30 per cent chance
that an injury
to a leg will lead to an amputation, that possibility is not ignored
because 30 per cent is less than 50 percent
and there is therefore no
proved preponderance of probability that there will be an amputation.
The contingency is allowed for
by building in the damages a figure
representing a percentage of that which would have been included if
amputation had been a certainty.
That is not a very satisfactory way
of dealing with such difficulties, but no better way exists under our
procedure.’
[40]
For all the above reasons, that in regard to the plaintiff’s
loss of earnings, taking into account all the circumstances
of the
matter, including the medical evidence, it would be fair and just
that a 5% (percent) contingency deduction be made in respect
of past
loss of earnings of R 554 84. For the same reasons a 15% (percent)
contingency deduction in respect of future loss of earning
capacity
of R 2 687 070 would be equitable. As previously mentioned from these
amounts in addition to the already agreed amounts
between the
parties, the defendant accepted liability for 80% of the plaintiff’s
proven damages and as a result a 20% deduction
is to follow.
ORDER
[41]
In the result the following order is made:
41.1
The defendant shall pay the plaintiff the amount of R2 744 564,29
(Two Million Seven Hundred and Forty Four Thousand Five Hundred
and
Sixty Four Rand and Twenty Nine Cents only).
41.2
Interest on the above amount at a rate of 15.5% (percent) per annum
from a date fourteen (14) days after the judgment to date
of final
payment.
41.3
Payment of the amount referred to in paragraph 41.1
supra
be
made directly into the trust account of Levin Van Zyl Inc. Nedbank,
Business Northrand, Account No 146 904 1340, Branch Code
146 905.
41.4
The defendant shall furnish the plaintiff an undertaking in terms of
section 17(4)(a) of the Road Accident Fund Act 56 of 1956,
for 80%
(percent) of the costs of the future accommodation in a hospital or
nursing or treatment of or rendering of services or
supplying of
goods to the patient as a result of the injuries that he sustained as
a result of the collision on 7 June 2008, after
such cots have been
incurred and on proof thereof.
41.5
The defendant shall pay to the plaintiff’s attorneys the
plaintiff’s costs to date hereof to be agreed upon or
taxed, as
between party and party, which costs shall include:
41.5.1
The costs of counsel as well of cost of preparing written heads of
argument;
41.5.2
The costs attendant upon the obtaining of the payment of the capital
amount referred to in paragraph 41.1 and the undertaking
referred to
supra
;
41.5.3
The costs of the appointment of the curator ad litem herein, and the
reasonable costs of the curator ad litem;
41.5.4
The reasonable travelling costs incurred by the plaintiff in
attending the plaintiff’s and defendant’s medico-legal
appointments and in respect of the trial herein, including the
necessary consultations in preparations for trial as allowed by
the
Taxing Master;
41.5.5
The costs of the medico-legal reports, follow-up reports and addendum
reports and the reasonable preparation, reservation
and full day
fees, for any, of the experts in respect of whom notice was given,
including the following:
41.4.5.1
Prof Wisniewski/Dr C Barlin (orthopaedic surgeon);
41.4.5.2
Dr J Earle (neuro-surgeon);
41.4.5.3
R Macfarlane (neuro-psychologist);
41.4.5.4
K Kaveberg (occupational therapist);
41.4.5.5
Ms C Du Toit (industrial therapist);
41.4.5.6
Dr Naidoo (neurologist);
41.4.5.7
Dr Prinsloo (psychiatrist);
41.4.5.8
Dr L Berkowitz (plastic and reconstructive surgeon);
41.4.5.9
G Mitchell (clinical psychologist);
41.4.5.10
I Kramer (actuary).
41.6
The relief sought for the appointment of a curator bonis to
administer the property of the plaintiff was not canvassed during
the
trial and as such same must be applied for on motion.
C
COLLIS
ACTING
JUDGE OF THE HIGH COURT
Counsel
for plaintiff: A Lubbe
Attorney for
plaintiff: Levin Van Zyl Inc
Attorney for
defendant:L Adams
Attorney for
defendant:Lindsay Keller
Date matter
heard: 3 September 2014
Judgment
date: 21
November 2014
[1]
See
in this regard Exhibit E
[2]
See
in this regard Exhibit G
[3]
See
in this regard Exhibit H
[4]
See
in this regard Exhibit D
[5]
See
in this regard Exhibit K
[6]
See
in this regard Exhibit M
[7]
See
in this regard Exhibit N
[8]
See
in this regard Exhibit O
[9]
See
in this regard Exhibit J
[10]
See
in this regard Exhibit P
[11]
See
for example A A Mutual Insurance Association Ltd v Maqula 1978 (1)
SA 805 (A).
[12]
See
also Road Accident Fund v Guedes
2006 (5) SA 583
(SCA) at para[8]