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[2017] ZAGPJHC 65
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M v Road Accident Fund (12780/15) [2017] ZAGPJHC 65 (21 February 2017)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
12780/15
Reportable: No
Of interest to other
judges: No
Revised.
21/2/2017
In the matter between:
M
N
M
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
MOSHIDI,
J
:
INTRODUCTION
[1] The plaintiff, a 27
year old Rope Access Technician, has instituted action against the
defendant for damages as a result of
certain personal bodily injuries
which he sustained in a motor vehicle accident on 22 February 2012.
[2] At the time of the
collision, the plaintiff was a passenger in a motor vehicle bearing
registration numbers VXZ […] GP
(“
the motor
vehicle
”), being driven by Mr Peter Lebepe (“
the
insured driver
”).
[3] The occurrence of the
accident, as well as the occupation of the plaintiff at the time of
accident, are not in dispute at all.
In addition, at the
commencement of the trial, as contained in the parties’ stated
case, (Annexure “X”), the
defendant had already conceded
liability 100% in favour of the plaintiff.
THE
STATED CASE
[4] In the stated case,
the plaintiff’s claim against the defendant in all is for
payment of the sum of R6 049 152,22 (six
million forty nine thousand
one hundred and fifty two rand and twenty two cents) which is made up
as follows:
4.1
Past hospital and medical expenses
=
R150 691,22
4.2
Future hospital and related expenses
(in terms of section
17(4) of the Road
Accident Fund Act) (“
the
Act
”)
=
(see below)
4.3
Past loss of earnings
= R 12
866,00
4.4
Future loss of earnings/earning
capacity
= R4 685 595,00
4.5
General damages
= R1 200 000,00
[5] In regard to certain
of the above heads of damages, the parties agreed as follows:
5.1 Past hospital and
medical expenses:
The parties agreed that
this issue be separated in terms of the provisions of Uniform Rule
33(4) and be postponed for later determination,
if agreement cannot
be reached between them;
5.2 Future hospital and
medical and related expenses:
The parties agreed that
an undertaking as envisaged in terms of section 17(4)(a) of the Act
be provided by the defendant to compensate
accident-related
treatment.
[6] There was no
agreement regarding both the plaintiff’s loss of
earnings/earning capacity, as well as plaintiff’s
claim for
general damages. In regard to the plaintiff’s loss of
earnings/earning capacity, the stated case noted the
following:
6.1 The parties’
respective industrial psychologist differ in their assessment of any
loss the plaintiff may have suffered
arising from the injuries
(specified below) sustained by him in the accident as well as the
sequelae
thereof. In this regard, reference is made to
the joint minute between Mr W J Wessels, industrial psychologist for
the plaintiff,
and Ms M Kheswa, industrial psychologist for
defendant, dated 17 August 2016.
6.2 The plaintiff
contends that, on the basis of the agreement reached between the
various witnesses, as well as the expert opinion
provided by the
defendant’s occupational therapist, i.e. Ms E Malan, in her
reported dated 23 March 2016 the plaintiff:
6.2.1 presents, from a
cognitive perspective, with below average memory. That his rate
of work and accuracy of work, do not
meet the demands of employment
in the open labour market regarding work that is more clerically
orientated, and requires independent
problem solving. This could
influence negatively his progress in future studies for advancement
in work;
6.2.2 with optimal
psychological intervention, the plaintiff’s decreased
attention, irritability, and fears could improve.
The plaintiff could
however, continue to have some attention and memory difficulties for
which he would require compensatory methods
and he will benefit from
a supportive structured environment;
6.2.3 mild limitations
for neck rotation to the left and right with pain in the right side
of his neck when rotating to the right,
and he also has moderate
limitation of lateral neck flexion to the left with pain reported in
the right of his neck;
6.2.4 when walking, the
plaintiff presented with some asymmetry;
6.2.5 it is possible that
his grip strength in the plaintiff’s right hand is not optimal;
6.2.6 the presence of a
moderate depression; and
6.3 the plaintiff is
compromised in an environment where sustained attention is required
to enable him to complete all safety measures
until the job is done,
and acquired information and rope work has to be recalled in order to
apply the theory correctly and properly.
[7] The plaintiff
contends that on the basis of the opinions expressed by the experts,
particularly the neurosurgeons, the orthopaedic
surgeons, Dr Versfeld
and Mr Wessels, the plaintiff’s loss of earnings be calculated
as proposed by Mr Wessels in his report
dated 15 August 2016, with
the inclusion of a higher post-accident contingency deduction.
The plaintiff relies on the actuarial
calculations of Mr G Whittaker
dated 1 September 2016, and in terms of which the plaintiff’s
loss of earnings/earning capacity
calculated on this basis, amount to
the sum of R2 462 022,00.
[8] In regard to general
damages, the plaintiff contends that, taking into account the
gravity, severity, extent, and nature of,
not only the injuries which
he sustained, but also the far-reaching consequences thereof, that he
should be awarded general damages
in the sum of R700 000,00. In
the end, it was submitted on behalf of the plaintiff that judgment be
granted in his favour
in the sum of R3 162 022,00 together with party
and party costs, including the costs of counsel and those expert
witnesses (inclusive
of preparation and attendance fees where
applicable), in respect of whom notice was been given in terms of the
provisions of Uniform
Rule 36(9).
THE
DEFENDANT’S SUBMISSIONS
[9] The defendant’s
submissions may be summarised as follows: the defendant’s
orthopaedic surgeon, Dr S S Mukansi,
found plaintiff’s back to
be clinically normal, and scored him 0% on orthopaedic injuries; the
defendant’s neurosurgeon,
Dr A B Mazwi, noted that the
plaintiff appeared to be well orientated and had no difficulties
following instructions, and that
his life expectancy is normal from a
neurological perspective; the defendant’s neuropsychologist, Dr
S Fisha, noted that
the plaintiff has no permanent neurocognitive
deficits, and enjoys above average executive functioning; the
defendant’s psychiatrist,
Dr M Matjane, noted that the
plaintiff had no effects on future occupational capacity, and that
mental status examination did not
reveal any long-term injuries
mental and behavioural disorder; the defendant’s occupational
therapist, Ms E Malan, (Ms G
V Vlok), noted that the plaintiff has
overall been meeting the physical demands of his job, albeit with
difficulties and aggravation
pain; the defendant’s industrial
psychologist, M Kheswa, noted the likelihood of the plaintiff
developing post-traumatic
epilepsy in the region of 08% as indicated
by Dr Mazwi, which might impact negatively on his work as a Rope
Access Technician,
but also noted that epilepsy is controllable.
However, the joint minute of the industrial psychologists dated 17
August 2016
conceded that Ms M Kheswa was not in possession of all
the available medico-legal reports as well as the joint minutes at
the time
of completing her report. In regard to the plaintiff’s
pre-accident retirement, the joint minute agreed at 65 years, whilst
post-accident was deferred to other expert opinion.
[10] Based on the above,
the defendant contends that the plaintiff be awarded general damages
in an amount of R500 000,00, and that
in respect of loss of income,
the plaintiff should be awarded the sum of R1 504 447,00, only based
on the defendant’s actuarial
calculations.
THE
ISSUE FOR DETERMINATION
[11] The submissions made
above by the parties are significantly divergent in certain respects
and based on the expert opinions.
The sole issue for
determination is the extent of the head injury as well as the
sequelae
thereof, in particular on plaintiff’s future
employability in the open labour market. But first, and at the
risk of
repetition, some additional common cause facts.
[12] In the joint minute,
the orthopaedic surgeons (Drs Versfeld and Mukansi) agreed that the
plaintiff has sustained a head injury
and a back injury as a result
of the accident. Dr Mukansi, however, did not score the head injury,
whereas Dr Versfeld did so including
the effects of it. Furthermore,
the joint minute of the neuropsychologists (Drs Ormond-Brown and
Fisha), agreed that the plaintiff
sustained a severe brain injury
during the accident, and made provision for him to receive
psychological treatment. The joint
minute of the occupational
therapists (Ms S Murcott and Ms E Malan) agreed that the plaintiff
will benefit from occupational therapy
in order to assist him in
achieving and maintaining optimal levels of functioning in the
various areas of his life, and in adjusting
his various activities to
accommodate his limitations from both physical and psychological
perspectives. They also agreed that
the plaintiff may require
physiotherapy and biokinetic intervention. In regard to the
plaintiff’s employment, the occupational
therapist noted that
prior to the accident, the plaintiff had been employed as a Rope
Access Technician by Height Safety Holdings,
Midrand, since 2012.
This, in the said company’s Height Safety Projects. In
this regard, the occupational therapist
agreed that the physical
demands of the plaintiff’s work are extensive. These include
good strength, mobility, and coordination
of all four limbs and of
the spine, excellent balance reactions, and good stamina and
endurance. His work environment, where
he is still employed, is
regarded as hazardous. The physical strength demands of the job
fall into the medium work category.
They accepted the plaintiff’s
assertion that he has, post-accident, overall been meeting the
physical demands of his job,
albeit with difficulty and aggravation
of pain and symptoms on occasions. More significantly, the
occupational therapists agreed
that the deterioration of the
plaintiff’s physical abilities will, from a functional
perspective, result in a reduction in
his work abilities and
increased difficulties in meeting the physical demands of his work as
a Rope Access Technician, as that
of a Sound Engineer. It was
agreed that from a physical perspective, the plaintiff should be able
to work as a Graphic Designer.
Furthermore, as stated before,
the occupational therapists noted that the plaintiff is at the risk
of developing post-traumatic
epilepsy, and agreed that should this
eventuate, he would be unsuited to work at heights and in hazardous
work environments.
It was further agreed that the plaintiff’s
loss of the sense of smell could be an obstacle in performing work in
an environment
where there are hazardous gasses or a fire risk.
[13] Indeed, there are
other significant agreed facts in favour of the plaintiff in the
joint minute of the occupational therapists.
The agreements contained
in the joint minute of the neurosurgeons (Drs G Marus and A B Mazwi)
have already been dealt with previously
above. These include that
pre-accident, the plaintiff had no neurological problems, and that
post-accident, plaintiff’s life
expectancy has not been
compromised. It was agreed that the accident-related injuries
include, moderate concussive brain
injury; bi-frontal and right
temporal lobe contusion; right parietal extradural (subdural)
haemorrhage requiring craniotomy; fractured
right parietal area going
into temporal bone and base of skull fracture; damage of first
cranial nerve; and multiple cutaneous
abrasions. The accident related
neurological disability is a severe brain injury, consisting of both
focal and diffuse injuries.
That after this type of brain
injury, it would be expected that patients would retain some
long-term cognitive impairments.
It was noted by the
neurosurgeons that the plaintiff currently complains about some
difficulty with memory functions. It was further
noted that, although
following the accident (22 February 2012), the plaintiff returned to
his work, but he reported to Dr Marus
that he experienced problems
with fatigue and memory loss. The risk of long-term epilepsy
was agreed at ± 5%.
To complete the picture, the
agreement reached in the joint minute of the industrial psychologists
(Mr Wessels and Ms Kheswa),
has already been dealt with.
[14] As stated in
paragraph [10] of this judgment above, the sole issues for
determination by this court are, the extent of the
plaintiff’s
head injury; the
sequelae
thereof; and the fair and just
compensation in respect of loss of earnings/earning capacity, and
general damages. In my view,
despite the perceived divergence
in the expert opinions, the stated case presented to me falls within
the purview of rules 33(1)
and (2) of the Uniform Rules, and as
discussed in case law such as,
Montsisi v Minister of Police
1984
(1) SA 619
(A) at 361A-F; and
Sibeko v Minister of Police
1984
(1) SA 792
(W) 795B; and more recently, in
Minister of Police v
Mboweni
(657/2013)
[2014] ZASCA 107
(5 September 2014) at
paragraphs [6] to [8]. In other words, the special case should
be “
a written statement of facts in a litigation, agreed to
by the parties, so that the court may decide these questions
according to
law
”. See also
Nedbank Ltd v Petsana
[2008] ZASCA 140
;
2009 (2) SA 189
(SCA).
COURTS’
GENERAL APPROACH TO EXPERT EVIDENCE
[15] It is also necessary
at this stage to recall the general approach of courts to the
evidence of expert witnesses. Part
of the trite approach is
that the evidence of an expert witness is required whenever his/her
skill is greater than that of the
court, and that whether the court
can receive appreciable assistance from the opinion of the witness.
See for example,
Ruto Flour Mills Ltd v Adelson
(Volume 1)
1958 (4) SA 235
(T). An expert witness is also required to lay
a foundation for his/her opinion, and support their opinions with
valid reasons.
In
Menday v Protea Assurance Co Ltd
1976
(1) SA 565
(E) at 569B, Addelson J said:
“
In
essence, the function of an expert is to assist the Court to reach a
conclusion on matters on which the Court itself does not
have the
necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy
the Court that,
because of his special skill, training or experience, the reasons for
the opinion which he expresses are acceptable
… The
expert must either himself have knowledge or experience in the
special field on which he testifies (whatever
general knowledge he
may also have in pure theory)
or
he must rely on the knowledge or experience of others who themselves
are shown to be acceptable experts in that field
.
”
(my emphasis)
(See also
Coopers
(South Africa) (Pty) Ltd v Deutshe Gesellschaft Fûr
Schâdlingbekâfung MBA
1976 (3) SA 352
(A) at 371F-H.)
APPLYING
THE LEGAL PRINCIPLES
[16] With the above legal
principles in mind, I proceed to assess and examine the opinions of
some of the pertinent and relevant
expert witnesses in the present
matter. The most notable, are the expert witnesses of the defendant,
in particular, the opinions
of defendant’s industrial
psychologist, Ms M Kheswa, and neurosurgeon, Dr A B Mazwi. The
observations made below are so made
fully cognisance that the
defendant is not necessarily bound by the opinions of its own expert
witnesses. However, in the
present matter, the defendant relies
wholly on these opinions.
[17] The opinions
expressed by the defendant’s expert witnesses either have no
foundation at all, or are not supported by
the agreed facts, or are
contrary to the contents of the various joint minutes. The
opinion of Ms Kheswa that, post-accident,
the plaintiff retains the
residual capacity to work as before within his current occupation,
and that the accident did not render
him unemployable in the open
labour market, and that “
it has only reduced his functional
capacity because of pain
”, and that the plaintiff, “
is
therefore assured to remain in his pre-accident capacity with
inflationary increases applying until retirement at age 65
”,
is not well founded, in my view. As observed above, it is
common cause that Ms M Kheswa was not in possession of
all the
available medico-legal reports as well as the joint minutes at the
time of completing her report. These were supplied
to her
subsequently. The opinion is contrary to the contents of the
joint minute between the defendant’s neurosurgeon,
Dr A B
Mazwi, and plaintiff’s Dr G Marus, as indicated above.
The last-mentioned joint minute noted the plaintiff’s
injuries
as set out in paragraph [11] of this judgment. The joint minute
also agreed on the concomitant
sequelae
on the plaintiff’s
future employability. The expert opinion of Ms M Kheswa
therefore is not helpful at all to the court.
[18] The same observation
partly applies to the opinion of Dr Mazwi. He agreed with
plaintiff’s Dr Versfeld that the
plaintiff indeed sustained a
head injury as a result of the accident. The views of the defendant’s
psychiatrist, Dr Matjane,
as opposed to those of plaintiff’s Dr
L Fine, are also contrary to those of Dr Mazwi, and the objective
overall injuries
and
sequelae
thereof suffered by the
plaintiff. Dr Fine objectively, found that the plaintiff
suffered a head injury with significant
organic brain damage, and
alteration in mental status, cognitive and highest integrative
function; accident-traffic-travel-related
anxiety disorder; and
depression secondary to the effects of his injuries. The
opinion of defendant’s neuropsychologist,
Dr Fisha, that,
although the plaintiff admittedly suffered a severe brain injury in
the accident, there could be no agreement on
the impact of such brain
injury on plaintiff’s employability, is extremely difficult to
be appreciated by the court.
After all, Dr Fisha “
found
significantly high levels of clinical depression
”. It
is therefore difficult to support the opinion of Dr Fisha to the
effect that there are no permanent neurocognitive
defects, and that
the plaintiff, “
was found having above average executive
functioning
”, post-accident. The finding is contrary
to the objective medical opinions, in my view. Dr Fisha,
correctly deferred
to the psychiatrists confirmation of a diagnosis
and treatment. The psychiatrists, as indicated above, are Drs Fine
and Matjane.
In my view, the joint minute of the occupational
therapists, Ms S Murcott and Ms E Malan, as dealt with above,
presented the most
objective and reliable scenario of the plaintiff’s
post-accident problems, his prognosis, and future prospects of
employability.
I accept, without reservations, the findings of the
joint minute.
[19] In addition, the
parties’ respective orthopaedic surgeons also noted by
agreement, the respective reports involving head
injury, neck pain
and lower back pain, which factors they concluded could have a
negative impact on the plaintiff’s efficiency.
The
orthopaedic surgeons therefore agreed that considering the
plaintiff’s neck and lower back problems, that the plaintiff’s
residual functioning capacity, from a physical perspective, would be
restricted, and that he should apply spinal hygiene and ergonomic
principal in his work environment. They also agreed that the
deterioration in the plaintiff’s physical abilities will, from
a functional perspective, result in a reduction in his work
abilities, and increasing difficulties in meeting the physical
demands
of his work. It is significant that plaintiff’s
orthopaedic surgeon, Dr Versfeld, expressed the opinion that the
plaintiff’s
work ability has been largely and adversely
affected by the injuries he sustained in the accident, and that he
will probably become
restricted to sedentary and semi-sedentary type
of work, by approximately, age 50, and may suffer a truncation of
even a sedentary
career, by approximately age 60. I accept this
opinion, as well as the opinions expressed by the occupational
therapists,
as credible, and more probable, reliable, and based on
the objective medical evidence before me. See, for example,
Buthelezi v Ndaba
2013 (5) SA 437
(SCA) at paragraph [14].
The plaintiff suffered, among others, the following consequences of
the injuries, as reported by
the various experts:
forgetfulness; loss of taste and smell; headaches; neck stiffness;
back pain; and mood swings/depression.
This is a finding I make
based on the objective medical opinions. It follows therefore that
the finding made by the defendant’s
orthopaedic surgeon, Dr
Mukansi, to the effect that the plaintiff’s back is clinically
normal, cannot be sustained.
It is clearly contrary to the
objective evidence, and more pertinently, to that of Dr Versfeld.
I deal in more detail with
the full reasons for my finding in
paragraphs [20] to [28] immediately below.
[20] I deem it necessary
to elaborate briefly on the problematic aspects of some of the
defendant’s expert witnesses. I have
already, in paragraph [15]
of this judgment dealt with what courts traditionally expect from
expert witnesses and the duty of such
witnesses. To emphasise the
legal principle, in
Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at 1201 (also
reported at
[2002] 1 All SA 384
(SCA), two essential
dicta
appear:
“
Finally, it
must be borne in mind that expert scientific witnesses do tend to
assess likelihood in terms of scientific certainty.
Some of the
witnesses in this case had to be diverted from doing so and where
invited to express the prospects of an event’s
occurrence, as
far as they possibly could, in terms of more practical assistance to
the forensic assessment of probability, for
example, as a greater or
lesser than fifty percent chance and so on. This essential
difference between the scientific and
the judicial measure of proof
was aptly highlighted by the House of Lords in the Scottish case of
Dingley v The Chief Constable,
Strathclyde Police 200 SC (HL) 77 and
the warning given at 89D-E that:
‘
One
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved –
instead of assessing, as a Judge must do, where
the balance of
probabilities lies on a review of the whole of the evidence.’
”
Earlier, at paragraph 36
of the same judgment the Court had said:
“…
, what
is required in the evaluation of such evidence is to determine
whether and to what extent their opinions advanced are founded
on
logical reasoning. That is the thrust of the decision of the
House of Lords in the medical negligence case of Bolitho
v City and
Hackney Health Authority
[1997] UKHL 46
;
(1998) AC 232
(HL) [E]
.”
[21] In the instant
matter, I have already pointed to, not only certain shortcomings in
the findings of some of the defendant’s
expert witnesses, but
also the contradictions in their respective opinions. These include
Dr Mukansi, Dr Mazwi, Dr Fisha, Dr Matjane,
and Ms Kheswa.
[22] In short, on the
objective and credible evidence of the plaintiff’s expert
witnesses, such as Mr Wessels, there was no
pre-existing orthopaedic,
functional or psychological problems that would have prevented the
plaintiff from following a career
in his chosen field of interest.
On the other hand, the defendant’s industrial psychologist, Ms
Kheswa, had limited
comment. Ms Kheswa could not comment on the
promotional prospects unless she had communicated with the
plaintiff’s
employer. This omission is rather significant, and
makes it difficult to accept her assessment and opinion as balanced
and objective.
Ms Kheswa could also not rebut the possibility
of the plaintiff having progressed along the Rope Access Technician
career ladder,
but only opined that there is not always rigid
specification of the mechanistic nature of promotion in one’s
career advancement.
Her opinion that, apart from
qualifications, there are several factors that are considered when
promotion of employees comes into
play, was not helpful at all.
[23] A further
shortcoming emerged when Ms Kheswa opined on the plaintiff’s
loss of earnings/earning capacity. She clearly
had insufficient
information on this aspect. This is so despite the fact that
sufficient and full information on the plaintiff’s
past and
current earnings was available to her before and during the trial.
On the objective evidence, there was clearly
no basis for the
approach adopted by Ms Kheswa for assessing the plaintiff’s
potential earnings on the basis of the Paterson
Scales alone, and
excluding his actual income information in the face of available and
actual earning information. It is
trite that a mathematical
approach, where readily available, to the calculation of loss of
earnings/earning capacity is preferable,
especially where there are
sufficient reliable facts on which an actuarial calculation can be
made. The omission on the part
of Ms Kheswa is, once more,
significant in casting doubt on her opinions.
[24] In regard to the
plaintiff’s post-accident earnings/earning capacity, the
plaintiff’s industrial psychologist,
Mr Wessels, is of the view
that the plaintiff has sustained a past loss of earnings as a result
of his delayed progression due
to the inability to engage in the
indicated skills development course. In this regard, Mr Wessels
opined that the plaintiff’s
career progression was delayed by
approximately 2 years as a result of the accident, and that his
remuneration progression will
therefore reflect a lag of 2 years.
[25] In addition, Mr
Wessels relies on the opinion of plaintiff’s orthopaedic
surgeon, Dr G A Versfeld, where the latter expressed
the view that:
“
Resulting from
the accident, the plaintiff has symptoms and disabilities that
significantly affect his ability to do his normal
work. He has
therefore lost productive capacity. With increasing symptoms, which
one can expect in future, the probability
is that he will become
unfit for physical components of his work by approximately 50 years
of age. At this time he is likely
to be restricted to
sedentary, or semi-sedentary type work, and it is possible that he
will become unfit for even this work by
approximately 60 years of
age. Pre-accident retirement age is 65 years
”
In addition to the afore,
the neurosurgical, occupational therapy, psychiatric and clinical
psychological opinions must be considered
when assessing the claim.
I have already dealt with the joint minute between Dr Versfeld and
his counterpart, Dr Mukansi.
At the risk of repetition, both
agreed that the plaintiff sustained a head injury as well as a back
injury as a result of the accident.
In this regard, it is once
more difficult to appreciate the basis of Ms Kheswa’s opinion.
This opinion is also plainly in
conflict with the opinion of
defendant’s own orthopaedic surgeon, Dr S S Mukansi. The
plaintiff’s calculations,
as noted elsewhere in this judgment,
are based on the credible, more probable and well-grounded opinion of
Mr Wessels.
[26] Regrettably, the
opinion of Dr Mukansi, on its own, is also contradictory, in
particular when regard is had to his agreed findings
with Dr
Versfeld, and his opinion regarding the plaintiff’s future
career. Ms Kheswa proceeded to latch on to Dr Mukansi’s
opinion, especially where the view is expressed that the plaintiff’s
life expectancy has not been affected by the accident,
and that he
had recovered well from an orthopaedic point of view. In her favour,
Ms Kheswa noted the agreement by the occupational
therapists in their
joint minute to the effect that the plaintiff entertained aspirations
at the time of leaving school, of studying
sound engineering or
graphic design. However, Ms Kheswa proceeded to express herself
as follows:
“
Should
this be the case, the physical challenges which he is currently
battling with will not have much of a detrimental effect
on him
especially if he receive training and courses that will boost her
[
sic
]
skills
in sedentary jobs like a course in Sound Engineering or Graphic. This
is quite suitable especially in absence of serious
intellectual/executive functioning deficit as noted by Dr M Matjane,
and psychiatrists and Dr Senathi Fisher
[
sic
]
clinical
psychologist.
”
To put it mildly, Ms
Kheswa’s reliance on the opinion of the defendant’s
orthopaedic surgeon, Dr Mukansi, is not well-founded.
[27] I have already dealt
with Ms Kheswa’s opinion regarding the future treatment of the
plaintiff’s common cause diagnosis
of post-traumatic epilepsy.
There is indeed more improbable in the opinion of Ms Kheswa.
[28] Finally, and again
for the sake of completeness, the parties’ respective
neuropsychologist expert witnesses (Mr Ormond-Brown
and Dr Fisha),
agreed that the plaintiff has sustained a severe brain injury in the
accident. However, they disagreed in respect
of the presence of
cognitive deficits. In particular, Mr Ormond-Brown, for the
plaintiff, expressed the opinion that the
plaintiff has been left
with serious neuropsychological deficits due to the brain injury,
notwithstanding that he has made a better
than expected recovery.
He conceded that the plaintiff’s ability to hold down a job has
been compromised. On
the other hand, the defendant’s
expert witness, Dr Fisha, expressed a contrary view, which in my
opinion, was not well-grounded,
regrettably. Mr Ormond-Brown’s
opinion ought to be accepted on a balance of probabilities based on
the totality of
the objective medical evidence. The same applies to
the plaintiff’s actuarial calculation, which is set out
elsewhere in
this judgment.
THE
DEFENDANT’S ACTUARIAL CALCULATIONS
[29] I deal briefly with
the defendant’s actuarial calculations again. These
calculations, presented on the basis of two scenarios,
namely
Scenarios A and B, are set out in a report by Deloitte dated 23
August 2016. I have had due and careful regard to
these
calculations. The calculations are flawed simply since reliance
is placed on defective medical expert opinion as discussed.
For
example, Scenario A of the calculations (plaintiff’s loss of
earnings/earning capacity) takes into account only the two
year lag
in progression referred to by plaintiff’s industrial
psychologist, Mr Wessels; and it does not take into account
any of
the extra opinions expressed, notably those of Dr Versfeld, Mr
Ormond-Brown, as well as the defendant’s very own expert
occupational therapist, Ms E Malan. The amount arrived at on
the above basis is the sum of R1 168 014,76. Scenario
B of the
defendant’s calculations is equally flawed. Not
surprising, the criticised opinion of Ms Kheswa, defendant’s
industrial psychologist, was adopted. That is that the
plaintiff retains the residual capacity to work within his current
occupation, and that he has not been rendered unemployable in the
open labour market. Indeed, the defendant’s written
heads
of argument, on the calculations, and consisting of some one and a
half typed pages only, relied on the impugned expert opinion
of Mr
Kheswa. In the end, the heads of argument were not helpful at
all to the court and clearly partisan. Scenario
B of the
defendant’s calculations is further flawed since it ignores
completely, not only the opinions of the plaintiff’s
expert
witnesses, but also those of the defendant’s own therapist, Ms
E Malan. Scenario B also does not make provision
for a probable
curtailment of the plaintiff’s working life, which will most
probably be the case regard being had to the
nature, severity and
functional impact of the common cause injuries (brain injury and
orthopaedic injuries involving his back and
neck) sustained by the
plaintiff. I conclude therefore on this aspect, that the
defendant’s actuarial calculations
omit to reflect the reality
of the plaintiff’s circumstances, and that instead, the more
credible calculations presented
by the plaintiff’s actuary, Mr
Whittaker, be preferred. As reasoned elsewhere in this
judgment, the defendant’s
expert witnesses cannot admit the
serious nature of the injuries sustained by the plaintiff in the
accident, and thereafter simply
deny or downplay, without credible
and well-grounded justification the effects thereof. It makes
no proper sense at all.
SUMMATION
[30] To sum up. The
finding is that the plaintiff has suffered a severe brain injury,
which left him with serious neuropsychological
defects due to the
brain injury. The impact of such injury is probably that the
plaintiff’s ability to retain his job
has been significantly
compromised. The head injury and damage have resulted in,
inter
alia
, mental status, cognition, and the highest integrative
function. There is also the risk of post-traumatic epilepsy, as
indicated
in the medical reports. On the evidence, he will find
it extremely difficult to remain competitive in the open labour
market
in order to retain his current job. Alternative viable
options, such as, a Sound Engineer, have been suggested. In
this regard, the first joint minute of the occupational therapists,
not only noted that the plaintiff’s aspirations when leaving
school was to study Sound Engineering or Graphic Design, but also
agreed that, post-accident, and from a physical perspective,
he
should be able to work as a Graphic Designer. The defendant formally
admitted the latter in the admissions referred to in the
next
paragraph.
[31] It is also so that,
pursuant to the plaintiff’s request for admissions, the
defendant in response thereto, admitted,
the injuries sustained by
the plaintiff as noted in the joint minute of the neurosurgeons, the
severe brain injury suffered by
the plaintiff as noted in the joint
minute of the neurosurgeon psychologists; the same applies to the
head injury noted in the
joint minute of the orthopaedic surgeons,
and the other joint minutes mentioned previously. In my view,
it appears that delictually
speaking, it makes no sense to admit the
existence of a head injury, moderate or severe, on the one hand, and
on the other hand,
attempt to refute the probable
sequelae
thereof. The defendant must take its victim as it found him.
THE
QUANTIFICATION OF PLAINTIFF’S LOSS
[32] I turn to the
quantification of the plaintiff’s loss of earnings. This
can never be an accurate determination for
well documented reasons.
The plaintiff relies on the actuarial calculations of Mr Gregory
Whittaker attached to the bundles
and dated 1 September 2016.
In terms of these calculations, the plaintiff’s total loss of
earnings/earning capacity
was assessed in the amount of R2 462 022,00
(two million four hundred sixty two thousand and twenty two rand).
[33] The plaintiff
contends that on the basis of the opinions expressed by the experts,
in particular the neurosurgeons, the orthopaedic
surgeons, Dr
Versfeld and Mr Wessels, the calculations, with the inclusion of a
higher post-accident contingency deduction, are
justified. The
pre-accident earnings at the date of the accident are taken as R35
562,00 per annum (reported earnings of
R2 963,50 per month);
increasing to R60 000,00 per month at 1 March 2013 (upon conclusion
of a Rope Access Level II Course); and
increasing uniformly to
earnings of R108 000,00 for the tax year ending 28 February 2016.
From 1 March 2016 the earnings
were valued at R180 000,00 per annum.
Earnings as at 1 September 2016 were taken as R180 000,00 per annum.
From 1 March
2018, the actuaries valued earnings of R189 000,00 per
annum, and from 1 March 2022 earnings of R228 000,00 per annum were
valued.
From 1 September 2016 provision is made for
inflationary increases per the inflation of earnings assumption until
retirement at
age 65.
[34] On the other hand,
the post-accident earnings are calculated as follows: earnings
at the date of the accident are taken
as R35 562,00 per annum,
increasing uniformly to earnings of R847 261,00 for the tax year
ending 28 February 2016. Earnings
from 1 March 2016 are taken
as R84 950,00 per annum (equal to cumulative earnings of R35 395,87
for the 5 months from March 2016
to July 2016). Earnings as at
1 September 2016 are taken as R84 950,00 per annum. From 1
March 2018 earnings of R180
000,00 per annum were valued. From
1 September 2016, provision is made for inflationary increases per
the inflation of earnings
assumption until retirement age of 50.
[35] From the above, the
following summary of results emerged:
Past loss
Value of income
uninjured:
R 361,584
Less
contingency deduction:
5.00%
R 18,079
R 343,505
Value of income
injured:
R 282,060
Less
contingency deduction:
5.00%
R 14,103
R
267,957
_______
Net
past loss:
R 75,548
Future loss
Value of income
uninjured:
R 4,105,651
Less
contingency deduction
10.00%
R 410,565
R3,695,086
Value of income
injured:
R2,617,223
Less
contingency deduction:
50.00%
R1,308,611
R1,308,612
_________
Net
future loss:
R2,386,474
_________
Total
net loss:
R2,462,022
[36] The above total loss
figure of R2 462 022,00, is countered by the defendant who proposes
instead a total loss in the sum of
R1 504 447,90, based on the
calculations of the defendant’s actuary, which applied, on
pre-accident 50% on past loss and
15% on future loss deductions, and
on post-accident 0% on past loss and 25% on future loss of earnings.
The difference between
the two contending total loss of earnings is
about R960 000,00. The average is just under R2 million.
However, in my
view, the amount contended for by the plaintiff, based
on the more probable and credible and objective information, seems to
be
just and equitable in the circumstances of the case. I was
tempted to apply further discretionary contingency deductions to
the
plaintiff’s total loss sketched above, but decided against
such.
THE
PLAINTIFF’S GENERAL DAMAGES
[37] I deal with the
plaintiff’s claim for general damages. In practice, this
head of damages, as well is incapable
of precise assessment.
This fact is mirrored in the several case law relied upon by the
contending parties. The trite
principle is that, each case must
be decided on its own peculiar circumstances, and within the
discretion of the court. Comparable
past awards serve as a mere
guide only. For example, the defendant’s counsel, for its
submissions, relied, quite correctly
so in respect of the principles,
on cases such as
Dragsund v Barker
1959 (3) SA 489
(D), where
Selke J said:
“
In estimating
the damages for pain, suffering, shock and permanent incapacity
(including plaintiff’s injuries and impairment
of movement), I
have to try to take into account a host of considerations comprising
many nebulous possibilities, and including
also my own estimate of
the plaintiff’s prospects of life and continued good health.
The result must necessarily represent
something very like a rather
badly informed guess.
”
These principles still
hold good in present times, but not the quantum of general damages
awarded in that case. I have had
due regard to all the other
case law referred to in the present matter.
[38] For present
purposes, I am satisfied that the plaintiff has sustained serious
injuries as described above (
cf
RAF v Faria
(567/13)
[2014] ZASCA 65
(19 May 2014). I have considered the gravity,
severity, extent and nature of the injuries sustained by the
plaintiff.
In addition, I have taken into account the
far-reaching
sequelae
of such injuries. For example, the
real probability of ensuing epilepsy. It was contended on
behalf of the plaintiff
that the sum of R700 000,00 would be just and
equitable. I agree. The sum of R500 000,00 offered by the
defendant bordered
on the low side, and not well motivated.
[39] For the sake of
completeness, and as stated elsewhere, the defendant has conceded
liability as to 100% in favour of the plaintiff.
The parties
agreed that the issue of the plaintiff’s claim for past
hospital and medical expenses be separated and postponed
for later
adjudication. In regard to future hospital and medical and
related expenses, the parties agreed that the defendant
shall provide
to the plaintiff an undertaking as envisaged in terms of section
17(4)(a) of the Act.
COSTS
[40] There remains the
issue of costs. These ought to follow the result. No
credible reason has been advanced to determine
otherwise in this
discretionary matter.
ORDER
[41] In the result the
following order is made:
41.1 The defendant shall
pay to the plaintiff the sum of R2 462 022,00 (two million four
hundred and sixty two thousand and twenty
two rand only) in respect
of the plaintiff’s loss of earnings/earning capacity.
41.2 The defendant shall
pay to the plaintiff the sum of R700 000,00 (seven hundred thousand
rand only) in respect of the plaintiff’s
general damages.
41.3 The total amount
payable by the defendant in respect of the above order is the sum of
R3 162 022,00 (three million one hundred
and sixty two thousand and
twenty two rand only).
41.4 The costs of the
action, including the costs of counsel and those expert witnesses
(inclusive of preparation) and attendance
fees (where applicable) and
in respect of whom notice was given in terms of the provisions of
Rule 36(9).
41.5 The plaintiff’s
claim for past hospital and medical expenses and related expenses is
postponed
sine die
for later adjudication, if necessary.
41.6 The defendant shall
furnish to the plaintiff an undertaking to compensate
accident-related treatment as envisaged in terms
of section 17(4)(a)
of the Road Accident Fund Act, as amended.
__________________________________________
D S S MOSHIDI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF
C H VAN BERGEN
INSTRUCTED
BY
MUNRO FLOWERS AND VERMAAK ATTORNEYS
COUNSEL FOR THE
DEFENDANT M MABONA
INSTRUCTED
BY
MABUNDA ATTORNEYS
DATES OF
HEARING
1 SEPTEMBER 2016 TO 6 SEPTEMBER 2016
DATE OF
JUDGMENT
21 FEBRUARY 2017