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[2019] ZAGPJHC 47
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N M v Road Accident Fund (49332/2017) [2019] ZAGPJHC 47 (21 February 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 49332/2017
In the matter
between:
M,
N
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
J U D G M E N T
MODIBA,
J
:
[1] The plaintiff sues the defendant
for damages as a result of injuries sustained on 10 August 2014, when
a motor vehicle in which
the plaintiff was a passenger overturned.
[2] The merits were previously settled
amicably between the parties when the defendant accepted liability
for 100% of the plaintiff’s
agreed or proved damages.
[3] The defendant also undertook to
provide the plaintiff with an undertaking in respect of future
medical treatment in terms of
section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
.
[4] Only two issues remain for
adjudication:
4.1 The quantum for general damages.
4.2 The contingency deduction to be
applied to the plaintiff’s post-morbid loss of income.
[5] By agreement between the parties
and with leave of the court, these issues are determined on the basis
of the filed expert reports
without hearing oral evidence. The court
allowed this approach because the opinion of experts posited in the
relevant expert reports
is not contentious. They stand to be admitted
unless the court find the experts’ findings to be irrational.
Therefore, in
that event, after hearing counsel for the parties and
considering authorities relied upon, the issues to be determine are
primarily
discretionary. The following experts of the parties
recently assessed the plaintiff in October and November 2018, and
filed expert
reports and joint minutes:
5.1 Orthopaedic Surgeons Dr J J van
Niekerk (plaintiff’s) and Dr D R van der Jagt (defendant’s).
5.2 Occupational Therapists Ms J
Morland (plaintiff’s) and Ms P Ndlhalane (defendant’s).
5.3 Clinical Psychologists Dr A D
Watts (plaintiff’s) and Ms T Jaca (defendant’s).
[6] The occupational therapists
largely agree on the plaintiff’s suitability for work,
post-morbid. Ms Morland located
her in the light work category
while Ms Ndlhalane found her suitable for medium work.
Pre-morbid she worked as Teacher’s
Assistant for sports, acts
and culture subjects. This work falls in the light work
category with aspects of medium work.
Post-morbid, she worked
as a packer temporarily, then she worked as a sales consultant. This
work also falls within the light work
category with aspects of medium
work.
[7] The occupational therapists also
agree that successful medical and therapeutic treatment including
physiotherapy and biokinetics
should restore the plaintiff’s
physical ability to resume the light with medium aspects work
categories she undertook both
pre- and post-morbid. They also agree
that, while she has retained work capacity, it is compromised by the
combination of orthopaedic
and a mild concussive brain injury with
its attendant neurocognitive deficits. As a result she is less
likely to be productive
and more likely to require supervision.
It is on this finding that the plaintiff bases her loss of support
claim.
[8] Both orthopaedic surgeons agree
that the plaintiff sustained a laceration to her lip and injuries to
her cervical spine and
to the right groin area. Dr Van der Jagt
noted current complaints in respect of headaches and occasional pain
in her groin.
He also noted that she has problems reaching
toenails on her right foot, significant loss of movement in her right
hip and signs
of soft injury to her cervical spine. In addition
Dr Van Niekerk noted a thoracic injury, neck head and lumbar spine
pain.
They indicate future thoracic surgery. Both doctors
qualified her for general damages under the narrative test as a
result
of her long-term impairment. They also attest to her ability
to resume her pre-morbid work.
[9] The clinical psychologists agree
that the plaintiff had no pre-existing conditions. Dr Watts
noted the brain injury diagnosis
by the plaintiff’s
neurosurgeon Dr Lewer-Allen. Ms Jaca had not seen the
neurosurgeon’s report when she assessed
the plaintiff.
[10] In addition to the plaintiff’s
physical deficits as enumerated above, the clinical psychologists
noted that she experiences
nightmares or distressing dreams,
neuropsychological deficits such as memory problems and emotional
deficits in the form of self-regulation
difficulties – she is
easily agitated and irritable and has mood fluctuations.
[11] Further, Dr Watts indicated that
the plaintiff’s neuropsychological assessment revealed mild to
moderate neurocognitive
impairments in speed of motor performance,
immediate attention span and mental tracking, visual scanning and
attention to detail,
verbal learning and memory when dealing with
meaningful and non-meaningful material, as well as features of a
Posttraumatic Stress
Disorder, features of a Somatic Disorder with
Predominant Pain, and a Mood Disorder (depression) and moderate
post-morbid anxiety.
Ms Jaca indicated that her
neuropsychological assessment revealed borderline to very superior
performance in the cognitive domains
evaluated, with difficulties
evident within the spheres of working memory and processing speed, as
well as a Posttraumatic Stress
Disorder, severe depressive
symptomatology and psychological distress, and severe symptoms of
anxiety when travelling.
[12] These experts conclude that their
neuropsychological assessment profiles are consistent with the mild
traumatic brain injury
identified by Dr Lewer-Allen, the Plaintiff’s
Neurosurgeon. They also agree that given the time which has
passed since
the motor vehicle collision, Maximum Medical Improvement
has been reached. Whilst her condition may be subject to some
amelioration
with treatment, her core deficits as revealed in their
respective assessment are deemed permanent. They also agree that her
post-accident
neurocognitive, emotional/psychological and physical
problems will have a negative impact on her vocational performance.
They defer
to the opinions of the Occupational Therapists and
Industrial Psychologists regarding Ms M’s post-accident
vocational functioning.
[13] The plaintiff was also assessed
by the following experts appointed at her instance. They
compiled reports which were
filed. Because the defendant did
not have the plaintiff assessed by its counterpart experts, joint
minutes for the relevant
expert areas were not filed. The
defendant did not oppose the admission of these reports and were
admitted on that basis.
[14] When diagnosing the plaintiff of
brain injury, Dr Lewer-Allen draws the distinction between the
severity of the injury (injury
or accident/casualty) diagnosis and
the severity of the outcome (outcome diagnosis). He opines that
the former may ignore
subsequent deterioration of a patient in
subsequent days due to the delayed effects of the chemical cascade of
Diffuse Axonal Shear
Injury (“
DIA
”) brain injury.
Therefore a GCS conducted in casualty while the patient is being
ventilated and sedated and the DAI process
is in delay is fallacious.
Therefore, the pertinent question is not whether the plaintiff had a
mild, moderate or severe head injury
but whether or not the patient
has
sequelae
therefrom and how it has affected her functioning
post-accident. These issues fall within the competency of the
neuropsychologist
and industrial psychologists. The opinion of these
experts, coupled with the hospital records and collateral witnesses
would inform
his findings in respect of the outcome diagnosis. He
noted that these experts did not find neurocognitive,
neuropsychological and
physical deficits that did not exist
pre-morbid and were not caused by any non-accident related factor.
Therefore, he concluded
that the deficits were correctly attributed
to the accident.
[15] Having regard to the findings of
these experts, Dr Lewer-Allen concluded that in terms of the outcome
diagnosis, the plaintiff
sustained a mildly severe traumatic brain
injury as assessed at casualty level, with a mildly severe outcome
diagnosis brain injury
with the majority of any intellectual
challenges being accounted for on psychiatric grounds rather than by
organic brain injury.
The psychological challenges, which are due to
the accident, may remain entrenched despite treatment. Given
that both brain
injury and psychogenic brain injury have a negative
long-term effect on behaviour, memory and the ability to sustain
employment,
the difference between these two conditions is academic.
See note on page 116 para 8.2.3 re:
plaintiff’s disqualification under the narrative test and Judge
Tsoka’s judgment
and order re: plaintiff’s
qualification for general damages.
[16] Having regard to the findings of
the other experts as set out above, the Planitiff’s Industrial
Psychologist, Ms Roets,
concludes that the plaintiff may have been
compromised by the accident and that her ongoing pain, may lead to
discomfort in the
workplace and have a negative effect on her
productivity. While Ms Morland and Ms Ndhlalane are of the view
that the plaintiff
should be taught how to implement joint and energy
saving techniques and ergonomic principles in her work environment,
they also
acknowledge that her neuropsychological and psychological
difficulties as found by Dr Watts will prove to be restrictive in the
workplace. The combination of her difficulties will therefore
probably culminate in an employee who is less productive, less
efficient, more absent and have poorer than expected interpersonal
relationships, rendering her a more vulnerable and less competitive
individual in the open labour market. For quantification purposes,
she recommends that a higher than usual post-morbid contingency
deduction be applied.
[17] She also found that the plaintiff
has suffered a loss of her amenities and life enjoyment.
LOSS OF INCOME
[18]
Only the plaintiff appointed an actuary who furnished a report with
actuarial calculations of the plaintiff’s estimated
pre and
post-morbid loss of income. The parties agree that an 18% contingency
deduction, consistent with the authority of the seminal
Road Accident
Fund v Guedes
[1]
,
that ½% for each year post-morbid to retirement should be
applied to determine the plaintiff’s pre-morbid loss of
income,
is applicable.
[19] The plaintiff contents that as
recommended by her Industrial Psychologist, a higher contingency
deduction should be applied
to her post-morbid loss of income. Her
counsel submitted that a contingency deduction of 33% would be
appropriate in the circumstances.
The defendant contends that a 28%
post-morbid deduction ought to be applied.
[20]
It is trite that contingency deductions are at the discretion of the
court. To arrive at the post-morbid contingency deduction
to be
applied to the plaintiff’s post-morbid loss of income, I was
guided by the following remarks in Baily
[2]
regarding contingency deductions or what the court also referred to
as a discount for the vicissitudes of life:
“
They
include such matters as the possibility the plaintiff may in the
result have less than a normal expectation of life; …and
that
he may experience periods of unemployment by reason of incapacity due
to illness or accident, or to labour unrest or general
economic
conditions. The amount of any discount may vary, depending on the
circumstances of each case… The rate of discount
account of
course be assessed on any logical basis: The assessment must be
largely arbitrary and must depend upon the trial judge’s
impression of the case.”
[21] When determining the post-morbid
contingency deduction, I took into account that the defendant did not
have the plaintiff assessed
by her Industrial Psychologist. Therefore
the defendant’s aversion to the post-morbid contingency
deduction sought by the
plaintiff is not supported by any contrary
expert opinion. Further, the defendant’s Orthopaedic Surgeon
found that the plaintiff
sustained a thoracic injury, for which he
indicated future surgery. This injury was not diagnosed by the
plaintiff’s Orthopaedic
Surgeon. However both experts agreed to
the need for future thoracic surgery.
[22] Although pre-and post-morbid, she
worked on a term contract or temporary capacity, the Plaintiff was a
fit netball player who
worked as a sport, art and culture Teacher’s
Assistant. She was on the way to compete in a netball championship
tournament
when the collision occurred. Post-morbid she tried to play
netball but discontinued due to pain. The plaintiff’s
Industrial
Psychologist found that the plaintiff’s physical and
neurocognitive and neuropsychological sequelae have compromised her
ability to compete in the open labour market. It is probable that her
compromised status now and in the future, negatively impacts
her
placement prospects. Once placed, it is also probable that her
compromised position will negatively impact her ability to sustain
work.
[23] I therefore find that a
post-morbid contingency deduction as contended for by the plaintiff’s
counsel is appropriate
in the circumstances. In the premises, based
on the actuarial calculations provided by the plaintiff’s
actuary, after applying
an 18% pre-morbid contingency deduction and a
33% post-morbid contingency deduction, I find that the amount to be
awarded the plaintiff
for past and future loss of earnings is: R1,
031, 236.
GENERAL DAMAGES
[24] Dr Kaplan assessed the plaintiff
to determine whether her injuries are serious in terms of the
Regulations made under section
26 (1A) of the RAF Act and found that
under the narrative test, the plaintiff’s injuries are serious.
However, the defendant
rejected that finding. The plaintiff
challenged that rejection as a separated issue before Tsoka J. On 15
February 2019, Tsoka
J ruled that there was no valid rejection of the
plaintiff’s assessment for general damages. Therefore this
court determines
general damages on the basis of Dr Kaplan’s
findings.
[25]
It is trite that the award for general damages lies at the discretion
of the court and that previous awards only serve as a
guideline.
Counsel for the parties relied on authorities that fall within what
the Supreme Court of Appeal in
De
Jongh V Du Pisanie
[3]
referred
to as the perceptible tendency towards higher awards in general
damages and conservatism in awards for general damages.
The court
provided guidance on how to ameliorate the effect of the tendency
towards higher awards in general damages when such
awards are relied
upon in subsequent cases. I am guided by the following remarks the
court made in my approach to the authorities
relied on by the
parties:
“
The
effect of the aforementioned perceptible tendency towards higher
awards for general damages is again, however, not capable of
being
determined with mathematical precision. It is not certain precisely
when the tendency began and when it will end. It has
quite possibly
span class come to an end already. An award from the past to which a
court refers could therefore have been made
after taking the tendency
into account.
If
the earlier decision which serves as a standard
had
been made after having regard to the tendency towards higher awards,
the allowance of a further increase in awards can hardly
be justified
on the grounds of the same considerations without any additional
reason. In addition, then said tendency clearly does
not require the
multiplication of earlier awards by a predetermined or determinable
factor. In the end the tendency is only one
of the considerations
that the court is justified in taking into account when it, in the
exercise of its discretion, refers to
awards, especially in older
cases, as a guideline.”
[26]
Relying on
Hurter
v Road Accident Fund and Another
[4]
,
the plaintiff seeks general damages in the amount of R500,000.
Hurter, a 20 year old with a brain injury more severe to the
plaintiff’s
as well as lacerations to the lower lip and facial
fracturing was awarded R500,000 in 2010. Plaintiff’s counsel
argued that
given that the amount would be higher in the 2019 rand
value R500,000 is a reasonable award for the plaintiff.
[27]
Counsel for the defendant contended that R350, 000 is a reasonable
amount to award the plaintiff. He relied on
Naude
v Road Accident Fund
[5]
.
[28]
In the unreported judgment in
van
der Linde v Road Accident Fund
[6]
,
R380, 000 was awarded to the plaintiff in respect of general damages
for a permanent spine injury at C5/6 and for psychological
trauma
after taking into account several comparable authorities at paragraph
44 of the judgment where awards ranging between R310,000
and R331,000
were made in the 2018 rand value, hence the higher award. Unlike the
plaintiffs in the compared authorities, van der
Linde had
psychological sequelae. Although in this case, the plaintiff like van
der Linde has psychological sequelae, van der Linde’s
orthopaedic injuries were more severe as he had no residual work
capacity whereas this plaintiff has.
[27]
Hurter
is clearly an
outlier when regard is had to the authorities referred to above. It
can never be regarded to have set the standard
for cohort of persons
with the comparable injuries that the plaintiff suffered. In the
premises, I consider R370,000 to be an appropriate
award for general
damages.
CONTINENCY FEE AGREEMENT
[28] The plaintiff and her attorney
entered into a contingency fee agreement in terms of section 4 of the
Contingency Fees Act (“the
CFA”) 66 of 1997 on 14 January
2015. The plaintiff’s attorney deposed to an affidavit
confirming the existence of the
agreement, the date it was concluded,
its validity as well as the fact that he has complied with his duties
in terms of the CFA.
The plaintiff deposed to an affidavit confirming
that her attorney has explained to her the remedy at her disposal in
the event
that she is not satisfied with the fees charged by him.
Counsel for the plaintiff handed these documents up in court with no
objection
of the part of counsel for the defendant. I am satisfied
that the contingency fee agreement complies with the applicable
statutory
provisions.
[29] Counsel for the plaintiff handed
in a draft order, leaving out the amounts the parties required me to
rule on. Save for the
amounts which I have determined based on the
reasons set out above, as well as details of the expert’s fees
as set out in
paragraph 3.1, the order I grant below is based on that
draft order.
[30] In the premises, I make the
following order:
ORDER
1. The defendant shall pay damages to
the plaintiff in an amount of
R 1 401, 236. 12 (one million,
four hundred thousand, one thousand, two hundred and thirty six rand
(“the award”), in respect of the plaintiff’s claim.
2. The defendant shall furnish the
plaintiff with an undertaking as envisaged in Section 17(4)(a) of the
Act in respect of
the costs of the future accommodation of the
plaintiff in a hospital or nursing home or treatment of or rendering
of a service
to her or supplying of goods to her arising out of the
injuries sustained by her in the motor vehicle collision which
occurred
on the 10th of August 2014, after such costs have been
incurred and on proof thereof.
3. The defendant shall pay the
plaintiff’s costs of the suit, as taxed or agreed, on a scale
as between party and party, such
costs to include:
3.1 the costs of expert reports,
preparation, qualifying and reservation fees of the following experts
where applicable:
3.1.1 Dr. B.A. Longano (Psychiatrist);
3.1.2 Dr. C.M. Lewer – Allen
(Neurosurgeon);
3.1.3 Ms. J. Morland (Occupational
Therapist);
3.1.4 Ms. L. Roets (Industrial
Psychologist);
3.1.5 Dr. A. Watts (Clinical
Psychologist);
3.1.6 Ms. M. Gaspar (Speech
Therapist); and
3.1.7 Mr. G.W. Jacobson (Consulting
Actuary).
3.2 the costs of counsel employed on
behalf of the plaintiff.
4. In the event of these costs not
being agreed, then:
4.1 the plaintiff’s bill of
costs will be served on the defendant’s attorneys; and
4.2 the taxed bill of costs will be
payable within 14 (fourteen) days after taxation.
________________________________________
MS.
L.T. MODIBA
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARENCES
Plaintiff’s Counsel: Adv. N.
Makopo
Instructed By: A.F. Van Wyk Attorneys,
Johannesburg
Defendant’s Counsel: Adv. T.
Mashishi
Instructed By: Twala Attorneys,
Johannesburg
Date heard: 18 February 2019
Judgment delivered: 21 February 2019
[1]
2006
(5) SA 583 (SCA).
[2]
1984 (1) SA 94
AD.
[3]
No
2005 (5) SA 457
(SCA) at
Paragraph
[65] at 477D – G.
[4]
(367/07)
[2010] ZAECPEHC 5 (2 February 2010).
[5]
An unreported judgment of Weiner J, handed down on 19 February 2013,
Case number 35083/2009.
[6]
An unreported judgment of Modiba J, handed down on 29 June 2018,
Case number 19860/2016.