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[2010] ZAGPJHC 4
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Van Der Mescht v Road Accident Fund (2008/12182) [2010] ZAGPJHC 4 (12 March 2010)
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO
2008/12182
REPORTABLE:
Yes: Quantum of Damages
INTEREST
TO OTHER JUDGES: NO
REVISED.
12
March 2010 ………………………...
SIGNATURE
In
the matter between
KARIN
VAN DER MESCHT PLAINTIFF
and
ROAD
ACCIDENT FUND DEFENDANT
______________________________________________________________
J
U D G M E N T
______________________________________________________________
VAN
OOSTEN J:
[1] In this action the plaintiff
claims damages from the defendant arising from bodily injuries she
sustained in a motor vehicle
collision on 8 January 2005. The
plaintiff was a cyclist on the Kliprivier Road in the direction
towards Alrode when the insured
vehicle, travelling in the same
direction, collided with her from the rear. The collision caused her
to fall from the bicycle and
she sustained a head injury as well as
orthopaedic injuries.
[2] Both the merits and certain heads
of
quantum
are in dispute.
MERITS
[3] The plaintiff was rendered
unconscious as a result of the collision and she has no recollection
of the incident. The driver
of the insured vehicle has since passed
away. Two witnesses testified for the plaintiff concerning the
merits. The first was the
plaintiff’s brother, Mr Gerber,
who, as they have often had done in the past, cycled together with
the plaintiff, and
the second, Mr Grobbelaar, an accident
reconstruction expert. Their evidence was neither disputed nor
controverted as the defendant
did not lead any evidence on the
merits. Gerber testified that he and the plaintiff were on a morning
cycling training session
when the collision occurred. He was riding
in front and she followed him at a distance of approximately 30
meters. Their mode of
travel prior to the collision was to keep to
the left of the yellow line demarcating an emergency lane on the left
side of the
road in the direction they were riding. There was no
oncoming traffic. The route passed over a bridge. Next to the bridge
were
large willow trees with branches hanging down to the ground and
thus encroaching onto the emergency lane. They were therefore
required,
in order to pass the encroaching branches, to gradually
swerve to the right with a margin of 300 – 500mm. He had just
passed
the branches when he heard a loud crash from the rear. He
looked back and saw the plaintiff rolling on the tar surface of the
road
on the bridge. He also observed the insured vehicle, a bakkie
with a canopy on, having come to a standstill on the other side of
the bridge and realised that it had just collided with the plaintiff.
[4] Grobbelaar, having analysed the
available evidence, reconstructed certain aspects of the collision.
He came to the conclusion
that the impact from the collision on the
plaintiff’s bicycle was from the rear and that it was probable
that the bicycle
was either travelling parallel to the road at impact
or at a slight angle to the left. The inference is that the plaintiff
was
riding parallel to the left of the lane or turning to the left
after having avoided the branches. Grobbelaar was of the view that
the insured driver should have been able to avoid the collision had
he kept a proper lookout and that he should have given the
plaintiff
a sufficient berth to pass. It is clear from the photographs that
were handed in, as was also confirmed by Grobbelaar,
that there
certainly was sufficient width in the road without the need for the
insured driver, in the absence of approaching traffic,
to have
encroached into the lane on his right, for him to have safely passed
the plaintiff. But, of course, nothing prevented him
from swerving
into the other lane, had it been necessary to avoid colliding with
the plaintiff.
[5] It was faintly argued by counsel
for the defendant that the plaintiff was partly to blame for the
collision as she had failed
to look over her shoulder prior to taking
the avoiding action. The argument does not transcend speculation.
Counsel for the defendant
readily, and correctly in my view, conceded
that the insured driver was negligent. The only possibility he raised
was that of plaintiff’s
contributory negligence. In my view the
evidence before me does not allow for an inference that the plaintiff
was negligent in
any way. It is common cause that the collision
occurred in the insured vehicle’s lane and direction of travel;
the plaintiff
was an experienced cyclist who had often travelled this
road before; the tree branch would on the probabilities not have
caused
her to suddenly swerve in the lane of travel of the insured
vehicle as she had ample time to observe and realise the nature of
the obstruction she was required to avoid and there was no need for
her to swerve any more than what her brother moments before
had done.
[6] The evidence as a whole and the
probabilities arising, in my view, overwhelmingly show that the
insured driver’s sole
negligence was the cause of the
collision.
QUANTUM
[7] The head of damages in respect of
plaintiff’s past hospital and medical expenses has become
settled. In regard to future
medical expenses the defendant has
agreed to provide a certificate in terms of
s 17(4)(a)
of the
Road
Accident Fund Act of 1996
. It accordingly remains to assess the
plaintiff’s loss of earning capacity and general damages.
[8] The plaintiff led the evidence of
four expert witnesses on
quantum
:
Dr Edeling, a neurosurgeon, Dr Angus, a clinical psychologist, Dr
Shevel, a psychiatrist and Mr Linde, an industrial psychologist.
Their evidence was not seriously disputed. The defendant called one
expert witness only, Ms Mayayise, who is an industrial psychologist.
[9] It is common cause that the
plaintiff suffered a head injury resulting in a brain injury of a
moderate degree as well as a compression
fracture of the 10
th
and 12
th
thoracic vertebrae, fractures of the pelvis, left ankle and left
scapula as well as soft-tissue injuries. The physical injuries
have
all healed. What remains to be considered are the psychological
sequelae
of the brain injury. Dr Edeling testified that the head and resultant
brain injury has resulted in a subtle but significant post-traumatic
neuropsychological disorder, as well as a mild residual spinal soft
tissue syndrome resulting in psychological reactions to the
injuries
of which depression is the most significant.
[10] The crucial issue in quantifying
the plaintiff’s damages for loss of income is to consider the
effects of the psychological
deficits on her employability and
therefore earning capacity. The plaintiff’s pre-accident
performance in the workplace was
described in the evidence of a
former co-employee of the plaintiff, Ms Henriques, as well as the
plaintiff’s husband; the
plaintiff herself; the general manager
of her present employer, Mr Jansen, and Dr Angus. From the
evidence it appears that
the plaintiff was a capable, energetic (or,
as some witnesses would have it, a “go-getter”),
motivated and conscientious
employee prior to the accident. She was
employed pre-accident at Alberante Auto Respray Centre in public
relations and marketing,
in particular the sourcing of new business
for her employer or, as she aptly described it, selling panelbeating
and spray painting
business to prospective customers. In summary, she
excelled in the workplace and moreover fostered excellent
relationships. Outside
the workplace the plaintiff proved her
organisational capabilities in organising on her own two cycling
events known as the Alberante
Cycling Classic, each attracting some
2500 participants.
[11] Post-collision the plaintiff
remained in the employ of Alberante Autospray. After the accident she
was on sick leave for three
months. In August 2008 the directors of
Alberante Autospray separated and a new business (in the same field)
known as Alberante
Auto Repair Centre was established, of which Mr
Jansen is the general manager. The plaintiff after much anguish
decided to join
the new firm, once again in marketing public
relations, which is where she is presently still employed.
Post-collision the plaintiff’s
capabilities dwindled resulting
from her neuropsychological profile. Briefly stated, she lacks
motivation and drive and often becomes
emotional and irritable,
resulting in a decline in performance and resultant loss of income to
her employer. Dr Angus was
of the opinion that the plaintiff’s
neuropsychological profile indicates that she probably experiences
significant problems
in coping with the demands of her work and
recommended a less demanding and stressful work environment in which
she would cope
better cognitively and emotionally.
[12] A contentious issue arising
concerns the plaintiff’s present psychological functioning and
in particular the occurrence
of depression. It is common cause that
depression (the exact nature of which is open to some doubt if regard
is had to the different
interpretations and descriptions thereof by
the various witnesses) manifested itself once only prior to the
collision after all
had been said and done in regard to one of the
cycling events she had arranged. In addition a family history of
depression has
been identified. Since the collision she often suffers
from bouts of depression. In this regard Dr Shevel testified that the
plaintiff,
prior to the collision, was pre-disposed to developing
depression which could be treated and, in any event, did not cause
any level
of dysfunction. In contradistinction hereto, the depression
the plaintiff now suffers, Dr Shevel further explained, is as a
result
of organic injury to the brain cells. The patient, in this
case the plaintiff, is aware of and even perplexed by the secondary
effects of the brain damage, but finds herself unable to do anything
about it or at least to bring a change about. The feeling of
hopelessness and frustration then leads to a state of depression,
which is reactionary in nature. The depression the plaintiff
now has
to endure affects her coping and adaptation skills which, taking a
holistic approach, can best be improved by so manipulating
the
circumstances relating to her occupational functioning that stress in
her environment is minimised. Depression can be treated,
in this case
by psycho-education, but it cannot be cured. She will remain
functional, but at a lower level.
[13] Apart from depression, the
plaintiff suffers from cognitive deficits manifesting in memory loss;
loss of concentration; problems
with new and incidental learning,
poor memory, difficulties with abstract thought; slowed information
processing for verbal information,
visual spatial information, double
tracking, conceptual tracking, visual scanning and difficulty to
identify essential detail in
visual material.
[14] In order to practically assess
the plaintiff’s performance in the workplace a comparison
between the plaintiff’s
performance and that of her rival
co-employee, Val Galego (who is slightly older and more
experienced than she is), has been
undertaken. It reveals significant
changes in the plaintiff’s post-collision performance.
Pre-collision, the plaintiff out-performed
Galego but this changed
significantly post-collision: for the last six months the plaintiff
brought in less than half the business
Galego has sourced.
[15] It is quite apparent from the
evidence that the plaintiff’s future tenure in her present
employment is precarious. The
plaintiff testified that she is unable
to cope in her present work environment and she has often considered
resigning. Mr Jansen
testified that a new system of compensation
at the plaintiff’s present employer is under consideration and
will be implemented
on the basis that sales personnel, like the
plaintiff, will be remunerated in a sum equal to 5% of cost to the
company in regard
to business sourced. He set the sales target for a
sales person in the plaintiff’s position, between R1m and R1.5m
per month,
which would generate an income of R50 000 to R75 000
per month.
[16] As for the employability of the
plaintiff now that the accident has occurred two possibilities have
been advanced: either that
she remains employed at her present place
of employment earning 5% of approximately R400 000 per month
turnover business,
equating to R20 000 per month, or employment
in a less stressful and demanding work environment as suggested by
the expert
witnesses. In this regard, Mr Linde was of the opinion
that the plaintiff would in a secretarial environment, likely be
remunerated
at the B3/4 Paterson grading. She thus is capable of
earning a cost to company package of R13 600 per month which,
until
retirement age, equates to R2 082 663, before
allowance has been made for contingencies.
[17] This brings me to the evidence of
Ms Mayayise. She disagreed with the view expressed by Linde. She was
of the view that the
plaintiff in fact for the past five years had
managed and even improved her earnings and that she therefore will
not suffer any
future loss of earnings. She further testified that
the plaintiff’s future employment opportunities should not be
limited
to the administrative environment as the plaintiff was able
to continue functioning in her current employ where she could earn
commission on internal car sales. For the last mentioned proposition
she relied on what, according to her, Jansen had informed her.
As
this aspect had not been dealt with in the cross examination of
Jansen, I ordered that he be re-called. From his further evidence
it
became quite apparent that Ms Mayayise had probably misunderstood
him. Earning commission on internal car sales (which was in
operation
on a very limited scale more or less in an experimental stage),
Jansen testified, was plainly not an available option
to the
plaintiff for the reasons, firstly, that there was no guarantee of
income and, secondly, that it would simply again expose
the plaintiff
to the same kind of stress she is now trying to avoid. I am inclined
to accept the evidence of Mr Linde in preference
to that of Ms
Mayayise, as it is in all respects in accordance with the evidence
and views of the other expert witnesses.
[18] An actuarial report was handed in
by agreement between the parties. The actuary’s method of
calculations as well as the
assumptions, on which the calculations
were based, has not been disputed. Counsel for the defendant in
argument has advanced his
own calculation of the plaintiff’s
future loss of earnings which he based on Linde’s report,
bringing the plaintiff’s
total net loss of earning capacity to
an amount of income to R2 252 000. The proposition was not put to the
witnesses and therefore
need not be considered any further. I accept
the basis for calculations set out in the actuary’s report. In
respect of the
uninjured earnings the actuary accepted that the
plaintiff’s cost to company salary package in the position she
held pre-collision
(as on 1 March 2010) would have been R50 000 per
month, which would have increased, in line with inflation, until
retirement age
of 65. As for the injured earnings the actuary
accepted that the plaintiff is presently capable of earning a cost to
company package
of R13 600 per month which, in line with inflation,
would presently amount to R168 308
per
annum.
Having accounted for
certain assumptions the final figures he arrived at are R6 126 430
(‘but for the collision’) and
R2 082 663 (‘having
regard to the collision’) resulting in a total gross loss of R4
043 767.
[19] Next, I turn to deal with the
contingency allowance to be made in respect of both scenarios. In the
‘but for’ scenario
counsel for the plaintiff suggested an
allowance of 10%, and 20% now that the accident has occurred,
resulting in a total net loss
of earning capacity in the sum of R3
847 657. Counsel for the defendant contended for a contingency
allowance of 50%.
[20]
The
allowance to be made in respect of contingencies falls within this
Court’s discretion. That the Court has a wide discretion
is
clear from the often quoted judgment in
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) 116G-117A. In
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA) a 20% contingency deduction was substituted for the
deduction of 10% allowed by the Court
a
quo
in the ‘but for
scenario’ based on
inter
alia
the plaintiff’s
age of 26 and her positive prospects promotion in her work situation.
In the assessment of a proper allowance
for contingencies I have
taken into account plaintiff’s age of 46 years, her consistent
and stable employment history in
public relations/marketing, the
absence of any indications that she would not have further excelled
in her work environment and
the positive attitude she had displayed
towards her work prior to the accident. Taking all these
considerations into account I
am of the view that the contingency
deduction of 15% is appropriate.
[21] As for the second scenario, I
have in the assessment of a contingency allowance considered the
following factors: the plaintiff’s
current employer although
aware of her condition since 2005, has kept her on and increased her
salary from time to time; the plaintiff
has no formal qualification;
the plaintiff’s husband’s evidence that she was steadily
improving; she, as I have mentioned,
remains employable at least on a
grade B3/4 Paterson grading; the absence of conclusive proof that she
will downgrade to a B3 grading;
the limited prospects of
finding
suitable employment; the negative effects a lower category employment
is likely to have on her mood and therefore functioning
and, lastly,
the 5% cost to company principle which is under consideration and has
not been implemented as yet. Having regard to
all of the relevant
factors, a contingency deduction of 10%, in my view, is appropriate.
[22] Finally, it remains to consider
the award in respect of the plaintiff’s general damages.
Counsel for the plaintiff contended
for the sum of R550 000 and
defendant’s counsel more conservatively for R300 000. The
plaintiff suffered a severe head injury
resulting in a prolonged
period of amnesia. I have already dealt with the resultant post
traumatic neuropsychological problems.
The plaintiff, moreover,
suffers significantly of depression of a permanent nature. This has
resulted in a changed personality
as well as diminished functioning
in the work environment. She experiences difficulty sustaining
concentration and her short term
memory often fails her. The
erstwhile “go-getter” type of personality has changed
into placidness, passiveness, emotional
insecurity and loss of
self-esteem, which has taken its toll on relationships, including her
marriage. She requires ongoing long
term therapy including
anti-depressant medication. Counsel on both sides have referred me to
past awards but as readily conceded
by them, those are either
outdated or clearly distinguishable. Other awards by way of
comparison in any event are useful but never
decisive and it finally
remains within the discretion of this Court, having regard to all the
circumstances of this case, to make
an appropriate award. I have
derived useful guidance from the judgment of the Supreme Court of
Appeal in
De Jongh v Du
Pisani NO
[2004] All SA 565
(SCA) where an award of R400 000 made by the court
a
quo
was reduced to R250 000
in respect of a severe brain injury, with more serious
sequelae
than in the present matter. The award if translated into present day
monetary value must of course account for inflationary erosion.
[23] Having considered all relevant
circumstances I am of the view that the sum of R400 000 would
constitute fair and adequate compensation
in respect of the
plaintiff’s general damages.
CONCLUSION
[24] To sum up, the full award to be
made to the plaintiff is therefore calculated as follows:
Past hospital and medical expenses
R 101 949.25
Loss of earning capacity
‘But
for’ scenario
Value of
income R6 126 430
Less
15% contingency R 918 965
Net
R5 207 465
‘Having
regard to’ scenario
Value
of income R2 082 663
Less
10% contingency R 208 266
Net
R1 874 397
Total (R5 207
465 – R1 874 397) R3 333 068.00
General damages R 400 000.00
Total R3 835
017.25
[25]
In the result I grant judgment in favour of the plaintiff as follows:
Payment of the amount of R3 835
017.25.
Interest on the amount in paragraph 1
above at the applicable
mora
rate of interest presently 15,5%
pa
calculated from 14 days of the date of this judgment to date of
payment.
The defendant
is
ordered to furnish the plaintiff with an undertaking in terms of
s
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for 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 a
motor vehicle collision which occurred
on 8 January 2005, after
such costs have been incurred and upon proper proof thereof.
Costs of suit, such costs to include:
the costs consequent upon the
employment of senior counsel; and
the qualifying expenses including
costs of appearance of the following expert witnesses: Mr
Grobbelaar, Drs Edeling, Angus
and Shevel, as well as Mr Linde and
Ms Crosbie.
________________________
FHD
VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE
PLAINTIFF ADV JJ
WESSELS SC
COUNSEL
FOR THE
DEFENDANT
ADV M KGOMONGWE
PLAINTIFF’S
ATTORNEYS ERASMUS DE KLERK INC
DEFENDANT’S
ATTORNEYS MABUNDA INC
DATE
OF HEARING 05 MARCH 2010
DATE OF JUDGMENT 12 MARCH 2010