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[2015] ZAGPJHC 93
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Kunene v Road Accident Fund (23049/2013) [2015] ZAGPJHC 93 (28 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 23049/2013
DATE: 28 MAY 2015
In the matter between:
KUNENE
NANDOS
…................................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
J U D G M E N T
MAKUME, J:
[1] The plaintiff in this matter
sustained injuries on the 30th January 2012 when he was involved in
an accident involving a motor
vehicle insured by the defendant in
terms of the Road Accident Fund Act No 56 of 1966 and claimed damages
under various headings.
He was a pedestrian at the time of the
accident.
[2] At the commencement of the trial I
was informed that the parties have settled the issue of liability in
that the defendant has
to pay the plaintiff 80% of the plaintiff’s
proven damages. The only outstanding heads of damages requiring a
decision by
this Court are the following:
2.1 General damages.
2.2 Loss of earning capacity.
As far as the claim for loss of earning
capacity is concerned the defendant does not dispute the actuarial
calculation by the plaintiff’s
experts. What is placed in issue
is the basis on which the calculations were made.
[3] The plaintiff presented evidence
by various medico-legal experts and laypersons in support of his
claim. The defendant closed
its case without presenting any evidence
save for the joint minutes of the experts.
FACTUAL BACKGROUND
[4] Evidence gleaned from the various
medico-legal reports demonstrates that the plaintiff was born on the
28th February 1986.
He was 26 years old at the time of the accident.
He is a Mozambican national and attended school up to Standard 8 in
the year
2004 in Mozambique.
[5] During the year 2004 he moved to
South Africa an started doing odd jobs including gardening and
tiling. At the time of the
accident he worked as a tiler and also
did gardening. When he was discharged from hospital he went back to
do the tiling job but
complains that doing gardening work causes him
severe back pain. He now works only three days in a week and also
complains of being
forgetful.
MEDICO-LEGAL EVIDENCE
[6] Dr Yusuf Osborne a specialist
neurosurgeon reports that the hospital records from Baragwanath
Hospital indicate that after the
accident the plaintiff lost
consciousness and was disorientated. His Glasgow Coma Scale on
admission was 12/15 and improved to
15/15 later. He sustained an
abrasion of the left hip and the elbow. There was an 8 cm laceration
of the left thigh which was
3 cm deep. It is further recorded that
the plaintiff had a base of the skull fracture. A horizontal
fracture of the left temporal
bone. The CT scan of the brain showed
multiple small contusions on the left parietal lobe, right frontal
lobe and the temporal
lobe on the left gyrus rectus. On being
discharged after seven days he was treated with Phenytoin.
.
[7] On examination by Dr Osman he
complained of poor memory as well as lower back pain. He reported
that the pain was aggravated
by movement as well as by any heavy duty
type of work.
[8] Based on his examination and
assessment Dr Osman concluded that the plaintiff sustained at least a
moderately severe to severe
brain injury. He says that because of
the severity of the brain injury long-term neuropsychological
neurobehavioral and cognitive
problems can arise. There is also a
risk of him developing epilepsy later in his life.
[9] The plaintiff was also examined by
Dr Digby S Ormond Brown a clinical psychologist who found that he
sustained severe head injury
in the accident. In his report Dr Brown
notes that according to Dr Osman the plaintiff sustained a moderately
severe brain injury.
[10] In his evidence Dr Brown pointed
out that the CT brain scan demonstrates tiny little bleeds caused by
diffuse axonal injury
and says that this happens quite often in motor
vehicle accidents. He says what happens is that the brain tissues
are literally
torn apart. There was severe injury to many areas of
the brain evidenced by the swelling and the bleeding. This according
to him
results in long-term neuropsychological outcomes.
[11] Dr Brown found that the
plaintiff’s attention and concentration was marketly slow and
that auditory multitasking was
well below average, visual
multitasking was abnormal even though taking into account his low
level of education.
[12] His verbal and visual memory was
tested and it was found that his short-term visual memory was
erratic. The rate at which he
was able to acquire new information was
significantly below the normal. His performance on a measure of
short-term visual memory
was seriously compromised. His learning
curve was extremely shallow and he exhibited minimal benefit from
repeating information.
Dr Osman concludes that these conditions were
not there prior to the accident.
[13] The doctor also looked at his
visuo-spatial perception and construction praxis. This is a process
by which an examination
is carried out to see how a person with brain
injury is able to fit loose items together in a pattern like fitting
tiles or blocks.
It was found that he had difficulty in accurately
processing spartial information related to line orientation. He
incorrectly
rotated figures that he was required to copy through 90
degrees and through everything lying on his side. It was found that
his
capacity to reproduce geometric patterns uses small coloured
blocks was abnormal. The witness concluded that these results imply
the presence of constructional apraxia .
[14] According to Dr Brown the
plaintiff will have difficulty in carrying out his work as a tiler
where patterns are essential.
The plaintiff will do wrong patterns
even with guidance and supervision. He says that the plaintiff will
not be able to do proper
work and since it is not practical to always
supervise such work it will disadvantage him in the open labour
Marcet.
[15] He testified further that the
plaintiff has a serious impairment of executive brain function. His
planning was grossly abnormal.
The plaintiff’s loss of mental
flexibility implies that he will make many errors in the workplace.
In a nutshell Dr Brown
concludes that the plaintiff’s frontal
lobe malfunctions and all this is related to the accident in which he
was involved.
[16] In dealing with the plaintiff’s
capacity for employment Dr Brown said that the presence of
constructional apraxia implies
that it is impossible for the
plaintiff to work efficiently and accurately as a tiler. The brain
damage prevents him from effectively
engaging in his previous line of
work. Dr Brown concedes that the fact that the plaintiff has
continued to work as a tiler does
not mean that he is competent to do
so. He defers to the opinion of an industrial psychologist to
comment further.
[17] Dr Ormond-Brown in commenting on
the report by Dr June Calde Rossi an educational psychologist
appointed by the defendant noted
that Dr Rossi asked the plaintiff
the following questions:
“My father’s brother is the
same person as my brother’s father.”
The plaintiff was unable to work out
the difference. He concludes that the plaintiff has difficulty in
processing spartal information
and this has to do with
conceptualising ideas related to his work. His parietal lobe was
impaired. He further noted that Dr Rossi
also found that because of
his poor attention and memory the plaintiff would need to be
supervised and would not be able to work
independently. The
plaintiff is inflexible as a result of the brain damage and needs to
be supervised. The plaintiff could not
follow the blocks and is
accordingly not capable of running a business by himself unless his
is watched all the time. He comments
that it will be impossible for
a supervisor to be standing all the time watching him do his work.
[18] Finally in his evidence-in-chief
Dr Brown was asked to comment on the following statement that appears
on page 53 of the report
by Dr Rossi where he says the following:
“Unfortunately no school reports
were provided to establish his cognitive ability before the accident.
He worked as a tiler
after he arrived in South Africa may live with
his uncle. Some of his neuropsychological difficulties could have
pre-rated the
accident and were compounded by it or could have been
caused by it. Primarily school reports, collateral information from
his teachers
would need to be collated to make the decision.”
On this observation Dr Brown says that
even though there were no school reports the examination carried out
indicate that his pre-morbid
cognitive condition and intelligence was
slightly below average. His mental retardedness was 70%. He
concludes that post the
accident the plaintiff is now mentally
retarded. His verbal and non-verbal scales are below average at ±
85%.
[19] In cross-examination Dr Brown
stuck to his conclusion and conceded that the plaintiff will be able
to do work as a tiler but
under constant supervision in order to
minimise errors. He continues that the plaintiff is still able to
understand when given
instructions but the problem lies with his
being unable to execute those instructions because of the brain
injury that he sustained.
[20] Dr David Shevel a psychiatrist
confirmed the contents of his medico-legal report as it appears on
pages 113 to 139 of the paginated
papers. He noted the following
neuropsychiatric signs in respect of the plaintiff namely:
20.1 That the plaintiff came across as
being said and withdrawn.
20.2 He was hesitant when answering
questions.
20.3 He lacked initiative and insight
into his problem.
[21] His examination and assessment
diagnosed the plaintiff to be suffering from post-traumatic organic
brain syndrome which includes
changes in cognitive functioning, mood
and personality.
[22] He testified further that this
condition will limit the plaintiff’s insight in whatever he is
doing as a result he will
not realise the extent of his problems and
he will have problems with understanding instructions.
[23] He says further that the CT brain
scan showed contusions of the right frontal lobe. Many of the
neuropsychological symptoms
for example tendency to hyper insomnia,
daytime fatigue, decreased socialisation, decreased energy and drive
as well as the neuropsychiatric
signs like possible dysphasia, lack
of initiative, idiomatic, limited insight are all consistent of
frontal lobe dysfunction.
[24] Dr Shevel urged further that the
plaintiff’s personality changes related to the head injury
sustained will have a negative
impact on his interpersonal skills and
relationships with co-workers within any work environment.
Furthermore, his occupational
functionary has been adversely affected
because of the injury to his lower back. This is exacerbated by his
limited educational
level. Dr Shevel concludes that taking a
holistic view the plaintiff may well be functionally unemployable in
the open labour
Marcet.
[25] In cross-examination Dr Shevel
told the court that the back injury will slow down the plaintiff’s
work rate as a tiler.
He describes that dysphasia relates to
disorder of the language as a result of brain injury.
[26] Mr Mphikeleli Klaas Mzangwa
testified that he knows the plaintiff since the year 2010. They met
at a construction company
in Ennerdale Johannesburg. He and the
plaintiff still work together. He does plastering whilst plaintiff
does tiling. He earned
R500,00 per week whilst the plaintiff earned
R1 000,00 a week as a tiler. Since the plaintiff came back to work
after he had an
accident his work rate has slowed down. He works two
to three times a week. There have been complaints about the quality
of his
work. He gets tired and complains of headaches and gets angry.
He also does forget to come to work.
[27] In answering questions under
cross-examination it turns out that the plaintiff taught the witness
how to do tiling. The witness
says that he now works for the
plaintiff and that the plaintiff pays him. The plaintiff is
self-employed and has his own customers.
[28] He confirms that the plaintiff is
no longer able to differentiate between right and wrong work as
regards tiling. He the witness
now tells the plaintiff what is right
or wrong. He says the plaintiff is no longer as perfect as before.
He does not place tiles
straight like before. He confirms that the
plaintiff does gardening during the week.
[29] In answering questions by the
court he said that he and the plaintiff live in the same township and
that plaintiff is self-employed.
Socially he says that the plaintiff
is not a talkative person.
[30] He confirmed that he and the
plaintiff are friends but do not often socialise together. The
plaintiff takes part in running
(athletics) but does not play soccer.
Since the accident the plaintiff no longer runs as fast as he used
to before. He does not
know if the plaintiff holds any qualifications
concerning tiling. He does not know if the plaintiff can do any
painting.
[31] Mr Cornelius Baloyi testified
that he is the uncle to the plaintiff. The plaintiff lived with him
for 7 years. When the
plaintiff got injured in the car accident he
was at that time living with his girlfriend.
[32] The plaintiff was a gardener and
he the witness taught the plaintiff how to do tiling. The plaintiff
became a good and proficient
tiler and needed no supervision after
some time. There were no complaints about his work.
[33] Since the plaintiff had been
involved in the accident he no longer gets work for tiling like
before and when he does get the
work he just not finish it. The
plaintiff works part-time between two to three days per week. The
witness has decided to no longer
give him subcontract work because he
says that the plaintiff complains a lot and cuts the tiles wrongly.
[34] The plaintiff’s girlfriend
told him that the plaintiff is moody and short-tempered. He always
complains of being tired
and does not finish work allocated to him.
He is forgetful and even forgets to come to work.
[35] Mr Baloyi confirms that besides
tiling work the plaintiff does gardening but always complains of
headache because he works
outside in the sun.
[36] Since the accident he has worked
about four to five times with the plaintiff. He confirmed that
plaintiff can mix the grout
for tiling as well as to pack the tiles
for him to do the tiling. Whenever he did tiling he also noticed
that he did wrong skirting.
He does not know what standard or level
of education the plaintiff achieved whilst in Mozambique. According
to him the plaintiff
is presently unemployed and survives on piece
jobs.
[37] Mr Marc Peverett an industrial
psychologist testified that he consulted with the plaintiff on the
4th November 2014. The purpose
of his assessment is to evaluate his
work and earning potential having regard to the consequences of the
accident.
[38] Mr Peverett concludes in his
report that the plaintiff demonstrates below average intellectual
ability to solve problems of
an abstract nature compared to others
who have had nine years of schooling.
[39] In considering the plaintiff’s
employment prospects since the accident Mr Peverett says that in view
of his young age
at the time of the accident his psychometric
profile, educational level, work experience as well as the reported
income level of
approximately R36 000 per annum in 2010 it is
probable that his earning would have advanced significantly beyond
R50 000 per annum
prior to age 40. However because of the accident
his future earnings optimistically would probably remain limited
between March
to R5 500 per annum at least when considering
applicable wage tables for the informal sector.
[40] He says that the plaintiff’s
knowledge of tiling falls within the semi-skilled category because he
received no formal
training.
[41] He testified further that the R36
000 yearly income is based on a salary of R150 per day.
[42] The plaintiff thereafter closed
his case. The defendant also closed his case without calling any
witnesses except to rely on
the joint minutes of the experts. Both
counsels argued and made submissions without any heads of argument.
GENERAL DAMAGES
[43] The plaintiff is seeking
compensation of R1 million general damages. The defendant referred
this Court to the unreported decision
of this Court namely the matter
of Makgetha Thabang v Road Accident Fund Case Number 2010/17218
Gauteng Local Division, Johannesburg
a judgment by Francis J
delivered on the 8th September 2014 without indicating what a
reasonable amount would be.
[44] Dr L Berkowitz a plastic and
reconstructive surgeon appointed by the defendant notes that the
plaintiff sustained extensive
scarring on the right thigh, the right
knee, the right leg, the left thigh below the buttock fold and the
lower back and concludes
that the plaintiff must have suffered severe
pain for 48 to 72 hours following the scar revision. That he will
thereafter experience
moderate pain and discomfort for a further 7 to
10 days. Professor Chait concludes that although the plaintiff’s
scars could
be improved surgically he will left with deforming scars.
He says that the scars on the right knee could be subject to trauma
and
breakdown.
[45] The joint report of Dr Carl van
Heerden and Dr F Reyneke both neurosurgeons knows that the plaintiff
sustained a soft tissue
injury to his lumbar spine that will require
future treatment with physiotherapy. The neurosurgeons also agreed
that the plaintiff
sustained a head injury. They only differ to the
severity thereof. Plaintiff’s counsel referred me to the
decision of Myhill
NO v Road Accident Fund 2008 (5) B4 QOD 292 T.
[46] The injuries sustained by the
plaintiff and the sequelae thereof are fully documented in the
medical reports. In determining
quantum for general damages I am
required to exercise a broad discretion to award what I consider to
be fair and adequate compensation.
In so doing I have to consider a
wide spectrum of facts and circumstances connected to the plaintiff
and the injuries sustained
by him including the nature, permanence,
severity and impact on his life.
[47] The plaintiff was hospitalised for
close to two weeks during which he experienced pain. According to his
work colleague the
plaintiff complains of back pain whilst working.
His girlfriend says he is moody and gets angry and is irritable. He
no longer
runs or jogs as he used to before because of the back
injury.
[48] In the Myhill NO matter (supra)
the plaintiff who was a Mozambican national employed as a tailor and
machinist sustained severe
head injuries and an injury to his lower
limbs. He was earning R350 per week. Evidence presented to court
demonstrated that prior
to the accident he was a hard working person
but that after the accident he was a totally different person. He
could not work
not even look after himself. The court awarded him an
amount of R750 000 for general damages. In the present matter the
plaintiff
although having sustained moderately severe head injuries
he is still able to work for two to three days per week and still
looks
after himself. He is not in the same position as the plaintiff
in the Myhill case.
[49] In Dlamini v RAF 2010 (6A4) QOD 68
GSJ the plaintiff a 37 year old male sustained brain injury, fracture
of the mandible, loss
of teeth and soft tissue injury to the cervical
and lumbar spine. He was hospitalised for three months after the
accident and
was left with neuropsychological sequelae because of the
brain injury. He was no longer suitable for employment in the open
labour
Marcet. He was awarded general damages of R850 000 in the
year 2012.
[50] The plaintiff in the present
matter did not sustain injuries as severe as in the Dlamini matter.
It has also not been proved
that the plaintiff is completely
unemployable. He may have restrictions but only limited to the type
of work he does. I am of
the view that an amount of R750 000 is fair
and reasonable compensation for the plaintiff under this heading.
FUTURE LOSS OF EARNINGS
[51] Concerning this head of damages
Alex Munro based his calculation on information drawn from the report
of Marc Peverett industrial
psychologist dated the 22nd January 2011.
The defendant’s counsel in argument informed the court that
what is in dispute
is the basis of the calculation and not the
correctness of the amount. I expected the defendant to then present
evidence in this
regard however none has been forthcoming and I am
therefore bound to consider the evidence before me.
[52] I have also taken note that in the
joint minutes of the two occupational therapists namely Anne Reynolds
and Kathy Wandram,
the two experts in dealing with this head of
damages agree that the plaintiff would be able to work as a tiler
with appropriate
rehabilitative and maintenance intervention, when
considering his physical capabilities in isolation of his
neuropsychological
capacity. Further it was agreed that the
plaintiff presents with difficulty in learning new skills with more
than two steps.
He will need extensive supervision due to
limitation, he is limited to performing known tasks which are simple
and repetitive.
[53] I am not persuaded that the
plaintiff is totally unemployable. There is evidence that besides
tiling the plaintiff is a gardener.
Mr Baloyi says that the plaintiff
has his own contract and employs him which means that if the
plaintiff cannot physically do the
tiling he has his employees to do
the work. In calculating plaintiff’s future loss of income
Munro has followed the argument
presented by Marc Peverett the
industrial psychologist however Munro does not elaborate why he was
asked to apply a higher contingency
deduction of 45% to the injured
income. All he says is that he was asked to do so. He does not say
by whom and on what basis.
In the absence of such explanation I am
not persuaded that the 45% contingency deduction is justifiable. I
will in exercising
my discretion need the necessary assessment.
[54] Marc Peverett says the following
at paragraph 6.24 of his report:
“In terms of future earnings
considering Mr Kunene’s skills base, educational level and
pre-accident employment record
future earnings at best would probably
only ever remain confined to the informal sector involving variable
labouring work as a
gardener or vulnerable hawker.”
[55] The usual contingencies applicable
to past and future losses of earning is 5% and 15% respectively. I am
of the view that a
20% deduction instead of 45% would be appropriate
in respect of future income in an injured condition. Accordingly his
future
injured income will translate to a sum of R10 780,00 thus
reducing his total loss of income to the sum of R1 022 645,00. It is
worth noting that the defendant fails to tender any evidence to rebut
plaintiff’s case hence I have no reason to reject Mr
Munro’s
calculation save for what I have indicated as regards contingencies.
[56] All the awards should be reduced
by a further 20% in terms of the settlement reliability.
[57] In the result I hereby make the
following order:
1. The defendant is ordered to pay the
plaintiff an amount of R1 872 645,00 which is made up as follows:
1.1 R850 000,00 for general damages.
1.2 R120 800,00 for accrued loss.
1.3 R901 845,00 for future loss of
income.
2. The defendant is ordered to furnish
the plaintiff with a certificate in terms of section 17(4)(a) Act 56
of 1996 to cover plaintiff’s
future medical expenses.
3. The defendant is ordered to pay the
costs of suit on a party and party basis on the High Court scale
including the costs of the
experts as well as the qualifying fees of
the experts whose expert notices were served on the defendant.
DATED at JOHANNESBURG on this 28th
day of MAY 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF ADV I
SMITH
INSTRUCTED BY MESSRS RAPHAEL &
DAVID SMITH INC
35 Cradock Avenue
Rosebank
Johannesburg
Ref: KR/KH621
COUNSEL FOR THE DEFENDANT ADV
LLEWELYN
INSTRUCTED BY MESSRS SISHI INC
Third Floor
Marble Towers
208/212 Jeppe Street
Johannesburg
Ref:Mr Sishi /nc/SAS3866
Tel: 011 421 0504
DATE OF HEARING 17 FEBRUARY 2015
DATE OF JUDGMENT 28 MAY 2015