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[2010] ZAGPJHC 162
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Hamaty v Road Accident Fund (03/8026) [2010] ZAGPJHC 162 (5 February 2010)
SOUTH GAUTENG HIGH COURT, JOHANNEBURG
Case No: 03/8026
DATE:05/02/2010
In the matter between:
ERNEST CHARLES
HAMATY
............................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
...................................................................................
Defendant
JUDGMENT
MEYER, J
[1] The plaintiff who is 31 years of
age at present claims the payment of compensation for his damages as
a result of bodily injuries
sustained by him due to a collision that
occurred on 18 January 2001 between a motor cycle ridden by him and
an unidentified motor
vehicle and trailer.
The
issue of liability has already been resolved. The plaintiff will be
entitled to 100 percent of his proven damages.
[2] It is common
cause that the plaintiff sustained injuries to the head, chest, upper
limbs, abdomen and pelvis, notably a head
injury with temporary loss
of consciousness, possibly a fracture at the base of the skull, a
fractured left collar bone, a fractured
right wrist (right radius), a
fractured left pelvis, a ruptured spleen, damage to the left kidney,
contusion to the tail of the
pancreas and a fistula. The plaintiff
was put into a life-threatening position at the time of the
collision, he sustained shock
that rendered him haemodynamically
unstable, and he developed certain secondary complications. He was
admitted to the Helen Joseph
Hospital after the accident on 18
January 2001, and transferred to the Milpark Hospital on the same
day. He underwent emergency
surgery for his chest and abdominal
injuries on the day of the accident and orthopaedic surgery later on.
He spent about two and
a half weeks in hospital of which most of the
time in an intensive care unit. He returned for further treatment
and surgery after
being discharged. He was bedridden for about six
months following the accident.
[3] The plaintiff
testified. Ms. Michelle Hollis, who is the country manager or
managing director of the plaintiff’s employer,
Psion Teklogix
(‘Psion’), was also called as a witness for the
plaintiff. The following expert witnesses, who each
prepared a
medico-legal report following their assessments of the plaintiff,
also testified for the plaintiff: Dr. C.M. Lewer-Allan,
a
neurosurgeon (exhibits A.32 – 50, A.80 – 86, and A.223 –
237); Ms. Marilyn Adan, a neuropsychologist (exhibits
A.51 –
80 and A.256 – 279); Dr. David Shevel, a psychiatrist (exhibit
A.13 -29); Dr. Geoffrey Read, an orthopaedic
surgeon (exhibits A.1 –
12 and A.191 – 200); Ms. Sonet Vos, an industrial psychologist
(exhibits A.123 – 148
and A.280 – 291; Ms. Anneke
Greeff, an occupational therapist (exhibits A.149 – 187 and
A.238 – 255; and Mr.
Ivan Kramer (exhibits A.292 – 299
and A.300 – 306). The plaintiff also relies on the
medico-legal reports of Dr. Irving
Lissoos, a urologist (exhibit A.30
– 31 and exhibit A.219 - 222); of Dr. I Abramowitz, a
specialist surgeon and vascular
surgeon (exhibit A90 – 117);
of Dr. Leslie Berkowitz, a plastic and reconstructive surgeon
(exhibit A.118 – 122 and
exhibit A.189 - 190); of Dr. Eugene
Baskind, a specialist physician (exhibit A.202 – 218); and of
Dr. Deon Rossouw, an
ear, nose and throat surgeon (exhibits A.87 –
89 and A.188. The contents of these medico-legal reports were
admitted and
they were handed in by consent between the parties. The
neuropsychologists for both parties, Ms. Marilyn Adan and Mr Jeromy
Mostert,
agreed on certain issues and a joint minute was prepared by
them. Joint minutes were also prepared by the orthopaedic surgeons
for both parties, Drs. G Read and SM Sara, the industrial
psychologists for both parties, Ms. Sonet Vos and Ms. Gulshan
Sugreen,
and the occupational therapists for both parties, Ms. Anneke
Greeff and Ms. Megan Spavins (exhibit B). Only Ms. Sugreen, who
prepared
a medico-legal report and an addendum thereto (exhibits C.75
- 99 and C.100 – 110) testified for the defendant.
[4] Prior to the
commencement and during the course of the trial the parties reached
agreement in respect of most matters relating
to the quantum of
damages. It was agreed that the defendant is to: (a) pay to the
plaintiff the amount of R287, 581.60 for
his past hospital and
medical expenses; (b) provide to the plaintiff an undertaking in
terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
to pay
for his future medical treatment in respect of the injuries sustained
by him in the accident on 18 January 2001; (c)
pay to the
plaintiff the amount of R600, 000.00 in respect of his general
damages; and (d) pay to the plaintiff the amount
of R57, 011.00
in respect of his future loss of earnings due to his expected time
off work to attend to medical treatment.
[5] By the end of
the trial only the plaintiff’s claim for future loss of
earnings or earning capacity remained in issue.
It is the
plaintiff’s case that the cognitive, physical and psychological
sequelae
of
the injuries that he sustained in the accident have caused such loss.
In paragraph 11.3 of his particulars of claim, which were
amended
during the course of the trial without objection from the defendant,
the plaintiff avers:
’
In
consequence of the injuries sustained in the collision, the Plaintiff
will be severely prejudiced within his future employability
and
should he remain in his current industry he will be forced to retire
at the age of 55. The plaintiff should rather be constrained
to
purely sedentary work which will limit his future employment
prospects and income earning capacity.’
[6] The plaintiff was born on 13
November 1978. He achieved standard 8 at school in 1995. He then
enrolled at the Newcastle Technical
College to study Electrical
Engineering. He completed N1, repeated N2 once, and he did not
obtain N3, although he also repeated
it. He thereafter enrolled for
a 1 year course in computer science through CTI College. He spent
about 3 years altogether in
obtaining that diploma. It was during
his final year that the accident occurred on 18 January 2001. He
returned to CTI College
about six months after the accident and he
obtained the diploma at the end of 2001.
[7] It was only
after the accident that the plaintiff started with permanent formal
employment. The plaintiff and Ms. Hollis, who
I have mentioned is
the country manager of Psion, testified that the plaintiff has been
employed at Psion since January or February
2002. Psion installs
radio frequency equipment in places, such as distribution houses,
warehouses, and factories, which equipment
is utilised to track
containers, products, parts, and the like for its clients. Psion’s
clients include large companies
such as BMW, Nissan, Spar, Toyota,
and Woolworths. Locally Psion employs sixteen people. They are
employed in sales, administrative,
and technical functions. The
plaintiff commenced his employment at Psion as a technician. He
inter
alia
attended
an in-house training course during 2004 or 2005 in France. He was
sent to Madagascar during 2006 to install the wireless
network
equipment. He was promoted to the position of field support
engineer and transferred to Cape Town during 2006 or 2007
and he, his
wife whom he married about three months after the accident on 19
April 2001, and their son accordingly moved to Cape
Town. In August
2009, the plaintiff was promoted to the position of technical
supervisor for all the coastal regions in South
Africa. The next
level to which the plaintiff could be promoted is that of technical
manager, which promotion the plaintiff testified
was offered to him a
few months ago, but he declined the promotion.
[8] The plaintiff’s
present occupation at Psion comprises pre-sales and post-sales
functions. The pre-sales function includes
the development of sales
leads, setting up equipment to determine whether it is suitable for a
particular client, demonstrating
it to the client, and the
negotiation of the sale. The plaintiff has recently received a
handsome payment from Psion as a sales
commission for his assistance
in sales. Existing clients may approach the plaintiff directly for
new equipment since he builds
up relationships with them and he is
the only ‘face of the company’ in the Western Cape; or a
client or potential
client may contact the sales division of Psion
and the plaintiff will then render assistance to the sales personnel.
The plaintiff’s
post-sales function includes the project
management of site installations, the on-site installation of the
equipment, the on-site
maintenance thereof, the rendering of support
to clients, problem solving for clients, and the repairs of
equipment. The plaintiff
testified that he has gained special
experience and knowledge to do the work he is doing and that there
are only five persons in
this country who are able to do such work.
The plaintiff’s duties involve
inter
alia
a lot of driving, climbing large and high structures, and using his
hands. His occupation is undoubtedly on the evidence before
me of a
physical nature and physically demanding.
[
9] The
evidence and the opinions of Ms Adan and of Dr Lewer-Allen establish
that the plaintiff probably suffered a moderate traumatic
diffuse
brain injury. The neuropsychological
sequelae
of
this brain injury are, in the opinion of Ms Adan, so-called ‘subtle’
difficulties ‘affecting higher-level cognitive
activities that
require integration of functions from various areas of the brain.’
The plaintiff’s high-level neuropsychological
difficulties
will, in the opinion of Ms Adan, adversely affect his cognitive
efficiency in the work place, especially during tasks
that require
intense concentration and simultaneous processing. Ms Adan explained
when she testified that the interference with
the plaintiff’s
higher-level cognitive functioning manifests in ‘cognitive
overload’, which means that the brain’s
capacity to
process information overloads and it then rejects more information
while it processes other information. From the
plaintiff’s
evidence and that of the various relevant medico-legal reports it
appear that the plaintiff experiences difficulties
with concentration
(his concentration is reduced) and with his short-term memory. The
plaintiff’s evidence is to the effect
that he never needed to
consciously learn material before the accident whereas his recall and
working memory are now delayed and
impaired. He now has to reread
study material before it sinks in and he also experiences
difficulties in retrieving what he has
learned. In other words he
has to apply himself more when learning in order to get new facts
into his memory unlike his aptitude
before the accident.
[10] Dr. Lewer-Allan is of the opinion
that if there are neurological
sequelae
seven years after the trauma there is a sufficient severity of injury
to the brain as to account for it.
In
their joint minute, Ms. Adan and the defendant’s
neuropsycologist, Mr. Jeromy Mostert, agreed that the plaintiff
‘showed
neuropsychological difficulties on assessment’
and ‘that he has developed significant psychological
difficulties since
the accident that are directly and indirectly
related to his injuries.’ Ms. Adan is also of the opinion that
the plaintiff’s
cognitive deficit should be regarded as
permanent.
Dr.
Lewer-Allen’s opinion is that
‘
[i]t is the nature of Diffuse
Axonal Sheer Injury (DAI) to become expressive straight after the
injury, and to remain static for
the rest of the patient’s
life. Supportive therapy may be applied to ameliorate his symptoms,
but after four years the damage
would be generally accepted as being
entrenched.’
[11
] Dr.
Shevel, in his 2003 medico-legal report, states that the plaintiff
presented ‘with some ongoing mild psychological adjustment
difficulties secondary to the injuries he sustained’, he ‘still
experiences mild depressive phases and tends to be
a little
irritable’, his ‘concentration tends to fluctuate’,
he ‘tends to tire during the day’, and
he suffers from
‘some mild situational anxiety.’ The plaintiff would, in
the opinion of Dr. Shevel, benefit from psychotherapy
and did not
require the use of anti-depressant medication. When he testified,
Dr. Shevel expressed the opinion that memory and
concentration are
intertwined and if the plaintiff suffers from subtle organic brain
dysfunction his fluctuations in concentration
can be attributed to
that.
[12
] The
orthopaedic surgeons for both parties, Dr. Read and Dr Sara, in terms
of their joint minute, are
ad
idem
that
the plaintiff at the time of the accident sustained a fracture of his
distal right radius involving the right wrist and a fracture
of his
pelvis (the left iliac blade). Both fractures were treated by means
of an open reduction and internal fixation. The orthopaedic
surgeons
agreed
that
the plaintiff has degenerative changes in his wrist. Dr. Read, who
performed an arthroscopy on the plaintiff’s wrist
during 2003
and who accordingly had the benefit of seeing the degree of damage,
is of the opinion that the degenerative changes
to his wrist are
significant and he also observed a tear of the plaintiff’s
triangular cartilage. He testified that the
plaintiff’s wrist
is visibly significantly damaged. The plaintiff complains of pain
and stiffness of his wrist and of pain
emanating from his pelvis.
Dr. Read is of the opinion that it is ‘highly likely’ and
Dr. Sara that ‘the percentage
chance is less’ that the
plaintiff will require reconstructive surgery to his wrist probably
in his mid fifties. I accept
Dr. Read’s opinion in this regard
since he, as I have mentioned, had the benefit of seeing the degree
of damage to the plaintiff’s
wrist and the defendant elected
not to call Dr. Sara to testify.
[13
] Pursuant
to his clinical examination of the plaintiff on 15 November 2007, as
well as a radiological examination that was done
the same day, Dr.
Read is of the opinion that the plaintiff has developed progressive
post-traumatic osteoarthritis of his wrist,
that his symptoms were
deteriorating, and that his prognosis poor. Dr. Read is of the
opinion that the plaintiff will require
surgery in his mid fifties,
either by way of a wrist replacement, a wrist fusion, or a proximal
rocarpectomy. The choice of surgery
will depend on his age at the
time, the functional demands on his wrist, and the preference of the
attending doctor. Dr. Read
explained that the wrist is different to
some other joints, such as the pelvis, where their functionality
could be restored to
almost normality through surgery. A wrist
fusion places a severe limitation on the functionality of the hand.
A wrist replacement
gives the best functionality, but it remains
limited. Dr. Read, in his 2007 medico-legal report, notes that the
plaintiff still
had ‘considerable symptoms emanating from his
left hemipelvis’, ‘weakness of his left lower limb’,
wasting
of his quadriceps’, and ‘weakness of dorsiflexion
and invertors of his left foot.’ The plaintiff, in his view
requires conservative treatment, physiotherapy and the internal
fixative removed. The recommended treatment will, in his view,
improve the plaintiff’s disability ‘somewhat’, but
he ‘will still have residual weakness in his right wrist,
left
lower limb and pelvis.’ The plaintiff has pain and weakness
and loss of fine motor control in his right hand, which,
in the
opinion of Dr. Read, considerably diminishes the function in his
right hand and interferes with his work.
[14
] Dr.
Read and Dr. Sara are
ad
idem
that
the plaintiff’s present occupation with its physical component
is not suitable for him in terms of the injuries to his
pelvis and to
his wrist and that he requires a mainly sedentary type of occupation.
Dr. Read is of the opinion that the pain in
the plaintiff’s
wrist is objective and that the plaintiff’s present occupation
is simply not a satisfactory one in
terms of his orthopaedic injuries
and that he will be best suited to a mainly sedentary job. Should he
not be able to get one,
Dr. Read’s opinion is that he will have
a loss of productivity in the region of 20 percent , which percentage
is based on
what the plaintiff informed Dr. Read of how much longer
it takes him to perform activities than before the accident. The
loss
of productivity, in the opinion of Dr. Read, will deteriorate
further with the passage of time until the plaintiff will find it
impossible to perform his present occupational duties at the same
level in about 10 – 15 years’ time (the plaintiff’s
mid fifties). The plaintiff works with his hands and his loss of
function is severe in terms of his job description. His work
requires a lot of hand movements.
[15] The plaintiff
testifies that he works on average between 8 – 15 hours per
day, because of his volume of work and because
he works more slowly.
He is always on call to attend to customer problems. He compensates
for his cognitive difficulties by making
notes. Dr. Lewer-Allen’s
opinion in both his 2003 and 2008 medico-legal reports is that even
if the plaintiff suffers from
cognitive impairment, by trying harder
and in spite of the various pains ‘he does appear to be able to
do his duties in the
work place, his restrictions there being more
related to the orthopaedic injuries.’ Dr. Shevel is also of
the opinion that
if the plaintiff’s occupational functioning
and potential has been adversely affected in any way, such is
‘primarily
as a result of the physical injuries which he
sustained.’ Ms. Adan’s opinion is that the plaintiff is
not a complainer,
he makes the best of his position, and he is the
type of person that ensures that he gets everything done. He works
at his own
pace and completes his work.
[16
] The
occupational therapists for both parties, Ms. Greeff and Ms. Spavins
agreed that the plaintiff is suited for work of a light
physical
nature, that he is not suited for work of a moderate or heavy
physical nature, and that his current employment requires
exertion of
a moderate or heavy physical nature. They agreed that the plaintiff
would be best suited for work of a sedentary nature.
They agreed
that his efficiency and productivity in the execution of technical
and administrative tasks continue to be negatively
affected by
fatigue and impaired dexterity of the right dominant hand, and they
therefore agreed that he is better suited for work
of a supervisory
nature where the physical demands and the technical aspects of the
work are performed by his subordinates. They
also agreed that the
plaintiff’s overall productivity will continue to be negatively
affected by his physical deficits, which
will have an effect on his
ability to work until his normal retirement age. Ms. Greeff is of
the opinion that the plaintiff will
be unable to work in his present
position until normal retirement, unless he is accommodated.
[17
] On
the evidence it must be accepted that the plaintiff was in general
good health prior to the accident. The plaintiff had not
yet entered
formal employment at the time of the accident and was still a student
studying towards a computer science diploma after
he had obtained the
N1 and N2 certificates, the latter being a qualification in
electrical trade theory. Once he had completed
and obtained his
computer science diploma, he entered formal employment as a
technician in the field of radio frequency equipment.
The plaintiff
testified that he was employed by Psion because of his experience in
the field of radio frequency. His experience
in this field was
gained by him when he was a child assisting his father, whose trade
was in a technical field including the field
of radio frequency.
[18] Ms. Vos
postulates the plaintiff’s pre-accident employment potential to
be similar to the technical trade that he has
pursued post-accident.
Ms Vos accordingly postulates that but for the accident the plaintiff
would most probably have achieved
a D1 level on the Paterson Scale by
the approximate age of 35 years old and he was likely to move up the
Paterson Scale to a D3
level at the approximate age of 40 years old,
where he would have received inflationary increases until retirement
age of 65 years
old. The opinion of Ms Sugreen also supports this
‘but for the accident’ postulation. She is of the
opinion that
the plaintiff’s pre-accident employment potential
‘would have been restricted to the unskilled to semi-skilled
employment
domain given that his highest schooling was N2 (on par
grade 11).’ Her opinion does not take account of the diploma
in computer
science that the plaintiff was studying towards at the
time of the accident. There is, however, not a significant
difference
in the opinions of Ms. Vos and that of Ms. Sugreen on the
plaintiff’s pre-accident earning potential. The position of
technical
manager at Psion represents, in the opinion of both
industrial psychologists, his career ceiling ‘but for the
accident’.
[19] A trade
involving electronic equipment and radio frequency similar to the one
that the plaintiff pursued at Psion post accident
is, in my view, an
appropriate yardstick in the determination of any loss of future loss
of earnings or earning capacity. Although
the plaintiff insisted
that Psion utilises a ‘specific band of frequency’ and
that there are only five persons including
him in this country who
have the necessary knowledge and expertise about that specific
frequency, he conceded that the radio frequency
trade is wide.
[20
] On
the evidence and opinions presented it seems that there are two
avenues open for the plaintiff in the light of his orthopaedic
disabilities. The one is to attempt to find a more sedentary
position as soon as possible and the other is that he will probably
be able to work for Psion until age 55 whereafter he will have to
attempt to find a sedentary position until his retirement age
of 65.
[21] The first
avenue will accommodate the plaintiff’s disabilities best. He
is, on the evidence and accepted medico-legal
opinions best suited to
a mainly sedentary occupation and the continuation of his present
employment does not mitigate the injury
to his wrist and is likely to
accelerate its deterioration in the opinion of Dr. Read. The
physical demands of the plaintiff’s
present occupation
aggravate his physical disabilities. The plaintiff and Ms. Hollis
testified that the plaintiff’s employment
will remain physical
in nature even if he is promoted to the next level, which is that of
technical manager. Ms. Hollis testified
that the plaintiff cannot be
accommodated in Psion if he is unable to do physical work. He will,
in the opinion of Dr. Read, probably
only be able to continue with
his present employment until his mid fifties. Ms. Greeff also
expressed the opinion that the plaintiff
will be unable to work in
his present position until normal retirement, unless he is
accommodated.
[22] The second
avenue seems to be the preferred one by the plaintiff. He has been
employed by Psion for the past eight years and
has considerable
experience and he is a specialist in his particular technical field.
He is known by clients who insist on his
services. His promotional
prospects within Psion have not been affected in any way as a result
of his disabilities. He has enjoyed
career progression and a few
promotions over the past seven years. His natural progression at
Psion will on the undisputed evidence
probably be to succeed into
management. The plaintiff testified that he enjoys what he is doing,
he gets work satisfaction, and
to go and study something else will be
difficult. Ms Vos testified that the plaintiff’s first choice
is to remain in his
present occupation until age 55 and then to try
and find alternative employment. He has not explored alternative
employment positions
since 2001 where he could be accommodated
better. His present career is what he always wants to do and to do
office work is unthinkable
for him. The evidence of Ms. Vos in this
regard essentially accords with that of the plaintiff. She is of the
opinion that although
the plaintiff ‘…will need to make
a total career change to accommodate his physical disabilities
shortly’, the
reality is that he ‘will strive to continue
working as a Field Support Supervisor/Technical Manager, albeit with
added effort
and in pain and discomfort, until such time as he simply
can no longer cope with his work demands, or alternatively he is
requested
by his employers to accept sedentary employment.’
[23
] Ms.
Vos, in her 2005 medico-legal report, concludes that the plaintiff’s
‘chances of future employment are greatly
impaired.’ In
her view that post-accident he ‘is not suited anymore for his
line of expertise.’ Ms. Vos is of
the opinion that the
plaintiff is restricted in suitable alternative positions. His
present position is specialized and he will
have to learn a new field
of expertise. He accordingly has to divert to a totally new career
for him to be able to do sedentary
work. Going into a new career
will mean that he has to again start studying towards such new career
and his short term memory
may present a problem. In the 2009
addendum to her 2005 medico-legal report, she expressed the opinion
that the plaintiff ‘will
have considerable difficulty in
securing alternative sedentary work’. Likely further obstacles
in his way are that he has
no administrative experience, although she
testified that he is able to perform basic administrative tasks, and
he is only in possession
of a Grade 10 academic school qualification
whereas sedentary employment, in her opinion, involves a certain
amount of administrative
work and a Grade 12 school qualification is
generally a pre-requisite to enter such occupation.
[24
] Ms.
Vos is further of the opinion that taking up a more sedentary
alternative employment position would require a considerable
amount
of new learning for the plaintiff and taking his cognitive
difficulties into consideration, her opinion is that he may have
difficulty in grasping the new concepts. She therefore is of the
opinion that he at best would be capable of performing lower
levelled
work which does not require mental agility and flexibility. Such
employment, in her view, generally falls within the
ambit of a
semi-skiled worker on a B1 – B5 Paterson Scale. Her opinion is
that the plaintiff will probably start at the
Paterson Scale B1 in a
new position, receive in-house training, and progress to a ceiling of
B5 on the Paterson Scale between 5
– 7 years.
[25
] I
am unable to accept all aspects of the reasoning of Ms. Vos. The
results of the psychometric tests performed by Ms. Adan lead
her to
conclude that the plaintiff is an intelligent person. Her opinion is
that it seems unlikely that there is depletion in
the plaintiff’s
intellect. The plaintiff’s neuropsychological difficulties, in
her view, affect his cognitive efficiency.
The plaintiff, in her
opinion, needs to put in more effort than before since his brain is
not absorbing and processing as it did
before the accident. Ms.
Sugreen conducted selected psychometric tests to assess the
plaintiff’s general level of functioning
and to evaluate his
employment prospects in the open labour market and his career
options. Based on the plaintiff’s results
in these tests, her
opinion is that his cognitive ability is in the average range when
compared to the general South African population
and his learning
potential is such that he is able to be trained at an advanced
diploma or even degree level. Dr. Lewer-Allen’s
opinion is
also that, even if the plaintiff suffers from cognitive impairment,
by trying harder the plaintiff appears to be able
to do his duties in
the work place, his restrictions there being more related to the
orthopaedic injuries.
The
opinions advanced by Ms. Adan, Dr. Lewer-Allen and Ms. Sugreen in
this regard are, in my view, founded on logical reasoning
and accord
with the undisputed evidence presented in this case. Post-accident
the plaintiff completed and obtained an IT Diploma
and entered formal
employment. He mastered a specialised technical field and is
presently one of only five persons who is able
to perform the
technical work he does. He became a key employee, has enjoyed
several promotions, is valued by Psion to the extent
that he is the
face of the company in the Western Cape and solely responsible for
the technical servicing by Psion of the coastal
areas, and he is
earmarked for promotion into management.
The
plaintiff conceded under cross-examination that the in-house training
and courses that he had undertaken at Psion required mental
ability.
Ms Vos also conceded that the plaintiff has demonstrated by getting a
diploma post-accident and by excelling occupationally
that he has the
capacity to learn and to obtain skills and qualifications. But more
importantly, Ms. Vos did not investigate and
explore what alternative
sedentary positions are available in the market place for a person
with the plaintiff’s limitations,
aptitude, qualifications and
experience.
[26
] With
reference to the plaintiff’s background, his educational level,
qualifications, post accident employment, aptitude,
personality,
strengths, abilities, knowledge, experience, and the various skills
that he has acquired over the years, such as in
wireless networks,
mobile solutions, voice recognition, and sales, Ms. Sugreen is of the
opinion that, although employment options
for the plaintiff are
restricted from a physical exertion perspective due to his
disabilities, there are nevertheless various other
suitable and more
sedentary employment options presently available to him on par with
or even on a better level than his present
employment. Ms Sugreen is
also of the opinion that if the plaintiff retires from his present
employment in his mid fifties he
is likely to make a lateral movement
into employment of a sedentary nature without stepping down in terms
of the Patterson Scale
levels.
[27
] What
remains to be considered is whether a globular amount should be
awarded to compensate the plaintiff for his general handicap
in the
open labour market. See:
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA), paras [15] – [17]. It is a matter of
probability and not mere speculation that the plaintiff will be
forced to have
recourse to the open labour market, whether now or in
his mid fifties. Ms. Greeff is of the opinion that the plaintiff has
been
placed at a disadvantage for competitiveness in the open labour
market due to his injuries. Ms. Adan’s opinion is that the
plaintiff is less efficient and less productive. He is at risk of
‘burn out’, and other psychological problems, such
as
anxiety and depression. His ability to handle stress is reduced.
Ms. Adan is also of the view that whilst the plaintiff may
cope
better in a sedentary position, he may also struggle with increased
responsibility and cognitive demands if this is associated
with
promotion. I should mention that some of the alternative positions
suggested or speculated about by Ms. Sugreen are those
of project
manager, technical manager, IT manager, network manager, call centre
manager, or system architect. Dr. Shevel’s
opinion is that
subtle neurological cognitive deficits adversely affect a person’s
coping and adaptation skills. The plaintiff’s
trade is
technical and requires a lot of hand movements and reconstructive
surgery to his wrist will, in the opinion of Dr. Read,
not restore
its full functionality. The recommended treatment will, in the
opinion of Dr. Read, improve the plaintiff’s
orthopaedic
disabilities ‘somewhat’, but ‘he will still have
residual weakness in his right wrist, left lower
limb and pelvis.’
The removal of the plaintiff’s spleen is, in the opinion of
Dr. Abramawitz, to be regarded as a
serious disability since it
interferes with the body’s immune system. That the plaintiff’s
computer science diploma
is outdated is undisputed. Ms. Sugreen’s
opinion is that the plaintiff’s employment options, although
restricted from
a physical exertion perspective, can be ‘explored’
in the skilled formal domain, provided he furthers his education.’
Ms. Greeff’s opinion that any sedentary position will have to
be one where the plaintiff works with his hands in a neutral
position. Her opinion is also that the inherent requirements of the
position will determine whether or not the plaintiff will
be able to
cope in such position
[28] I conclude
that the plaintiff’s physical disabilities may and probably
will give rise to some future loss of earnings
or earning capacity.
It is very difficult to value the loss in terms of money, but a Court
must nevertheless do its best to assess
the amount on the available
material. See:
Turkstra
Ltd v Richards
1926 TPD 276
, at p 283;
Sandler
v Wholesale Coal Suppliers, Ltd
1941
AD 194
, at p 198;
Anthony
and Another v. Cape Town Municipality
1967
(4) SA 445
(A), at p 451 B – D;
Union
and National Insurance Co. Ltd. v Coetzee
1970
(1) SA 295
(A), at p 301 D – E. A reasonable way of
undertaking the assessment in this case, in my view, is to accept
that the plaintiff
will be able to continue working without suffering
any loss of income until age 55. Dr. Read’s uncontested
evidence that
the plaintiff is likely to retire early at age
fifty-five as a result of his injuries and the decreased
functionality of his wrist
post accident is accepted. The
plaintiff’s normal retirement age is taken at age 65. Mr.
Kramer assessed the plaintiff’s
future income for the ten year
period from 55 until his anticipated retirement age at 65 in an
amount of R2, 025, 062. The defendant
does not take issue with this
calculation. I agree with the opinion of Ms. Vos that the fairest
way of compensating the plaintiff
is by means of a contingency
deduction. Such will compensate him for the possibilities of him not
gaining similar employment but
of a more sedentary nature, of having
to step down in terms of the Paterson Scale levels, and for the
various other contingencies
that may result in future loss of
earnings to him or in a reduced earning capacity. To award the
plaintiff an amount equivalent
to 40 percent of his assessed future
income for that ten year period, in my view, constitutes appropriate
and reasonable compensation
for his future loss of income or earning
capacity. This amounts to a sum of R820, 824.80.
[29
] In
the result the following order is made:
The defendant is
ordered to pay to the plaintiff the amount of R1, 765, 417.40 within
fourteen days from the date of this order,
failing which interest
will start accruing on the aforesaid sum at the rate of 15,5 percent
per annum until date of final payment.
The defendant is
ordered to provide to the plaintiff an undertaking as envisaged in
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for the
costs of the plaintiff’s future accommodation in a hospital or
nursing home or medical treatment of the plaintiff
or the rendering
of a service or supplying of goods to him arising out of the
injuries sustained by him in the accident which
occurred on 18
January 2001, after the costs have been incurred and on proof
thereof.
The defendant is
ordered to
pay the plaintiff’s taxed or agreed party and party costs of
the action, which costs shall include the plaintiff’s
reasonable travelling expenses from Cape Town to Johannesburg and
back in order for the plaintiff to have attended the trial
as well
as the qualifying fees in respect of the plaintiff’s experts
who testified at the trial, namely Dr. C.M. Lewer-Allan
(neurosurgeon), Ms. Marilyn Adan (neuropsychologist), Dr. David
Shevel (pasychiatrist), Dr. Geoffrey Read (orthopaedic surgeon),
Ms.
Sonet Vos (industrial psychologist), Ms. Anneke Greeff (occupational
therapist), Mr. Ivan Kramer (actuary), and the costs
of the experts’
reports of Dr. Irving Lissoos (urologist), Dr. I Abramowitz
(specialist surgeon and vascular surgeon),
Dr. Leslie Berkowitz
(plastic and reconstructive surgeon), Dr. Eugene Baskind (specialist
physician), and of Dr. Deon Rossouw
(ear, nose and throat surgeon).
P.A. MEYER
JUDGE OF THE HIGH COURT
5
February
2010