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[2010] ZAGPJHC 19
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Roe v Road Accident Fund (2009/16157) [2010] ZAGPJHC 19 (1 April 2010)
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO 2009/16157
In
the matter between
MARK
ALAN ROE PLAINTIFF
and
ROAD
ACCIDENT FUND DEFENDANT
______________________________________________________________
J
U D G M E N T
______________________________________________________________
VAN
OOSTEN J:
[1] This is an action in which the
plaintiff claims damages from the defendant, as statutory insurer in
terms of Act 56 of 1996,
arising from the bodily injuries she
sustained in a motor vehicle collision that occurred on 20 July 2008.
The defendant has conceded
liability to compensate the plaintiff in
full for his proven damages.
[2] The matter proceeded before me on
the issue of
quantum
only. The parties have settled the plaintiff’s past hospital
and medical expenses in an amount of R629 102.71, and the
defendant has undertaken to furnish the plaintiff with an undertaking
under the provisions of s 17(4)(a) of Act 56 of 1996.
The only
remaining heads of damages requiring determination are firstly, the
plaintiff’s past loss of income and loss of
earning capacity
and, secondly, the plaintiff’s general damages.
[3] The body of evidence before me
consists of, firstly, the medico-legal reports of all the experts on
behalf of both parties,
as well as the joint minutes of the pre-trial
meetings held by the orthopaedic surgeons, occupational therapists
and industrial
psychologists (all of which, by agreement between the
parties, were admitted as evidence) and, secondly, the evidence of
the plaintiff.
No further witnesses were called to testify by either
party.
[4] The plaintiff was 44 years old at
the time the collision occurred. He was driving his motorcycle during
the early hours of the
afternoon on the day of the incident, when the
collision with the insured vehicle in the vicinity of Dainfern/Kaya
Sands, occurred.
He was rendered unconscious and has no memory of the
collision at all. Immediately after the collision he was taken by
ambulance
to the Olivedale Clinic for emergency treatment in the
casualty department. He sustained a soft-tissue injury to the neck as
well
as facial injuries, with a fracture of the cheek, and some of
his teeth had come loose. The X-rays that were taken confirmed that
he had sustained the following orthopaedic injuries:
‘
1
.
A
comminuted fracture of the right femoral shaft.
2. Comminuted
fractures of the right tibia and fibula.
3. A
fracture of the right patella.
4. A
fracture of the left humeral shaft.
5. A
supra-intra fracture of the left distal humerus.
6. A
degloving injury over the lateral aspect of the right foot.
7. Fracture
of his upper incisor teeth.’
The plaintiff remained under sedation
and regained full consciousness four to five days after the
collision, while still in hospital.
[5] The plaintiff’s subsequent
treatment can be summarised as follows: from Olivedale Clinic he was
immediately transferred
to Milpark Hospital under the care of an
orthopaedic surgeon. There, he was subjected to a surgical procedure
for the application
of an external fixator to the right leg, which
extended from the hip to the ankle, and to perform further
fasciectomies to the
lateral aspect of the right thigh and the
postermedial aspect of the right calf. Two days later, a further
surgical procedure followed
for the internal fixation of a locking
nail and screws to the right femur; the internal fixation of a
tension band to the right
patella; the application of an external
fixator to the right tibia and the plating of the left humeral shaft
fracture, and the
internal fixation of two plates and screws to the
left supra-intracondylar humeral fracture.
[6] The plaintiff was thereafter
transferred to the Netcare Rehabilitation Hospital, where he remained
for some two months. Approximately
a week after his transfer, he
underwent a split skin graft to the degloved area over the lateral
aspect of his right foot. The
surgery was performed at Milpark
Hospital and he was sent back to the Netcare Rehabilitation Hospital
the following day. He subsequently
developed a left dropped wrist
with paresthesia of the left thumb and forefinger, necessitating a
neurolysis of the left radial
nerve, which again was performed at
Milpark Hospital.
[7] Postoperatively, a drop wrist
brace was applied which he was required to wear intermittently for
four or five months. He was
wheelchair-bound for the first two months
and thereafter started walking with the aid of crutches. He used two
crutches for a period
of two months and then one crutch in the left
arm for a month thereafter. He was readmitted to the Milpark Hospital
in December
2008 for removal under general anaesthetic of the
external fixator on his right tibia. Under the same anaesthetic, a
right above-knee
cast was applied. Some six weeks later the cast was
replaced with a moon boot, which he wore constantly for some two
weeks and
intermittently for a further four weeks. Some four months
after the accident he developed infections in the distal two-pin
track
sites. He was readmitted and underwent curettage of the two
sinuses. He was discharged the following day. Fifteen months after
the accident he was informed by the orthopaedic surgeon that all the
fractures had united but that the femoral nail and the tension
bands
in the right patella and right elbow still had to be removed.
LOSS OF EARNING CAPACITY
[8] In 1990 the plaintiff who by then
had gained some experience in foreign exchange banking as well as
sales and marketing of sail
boards, joined his father on a full time
basis as manager of, and 25% shareholder in the company known as
Saraband (Pty) Ltd (the
company). The company conducts a family
business with a staff of twelve in its employ which has been in
operation for some 22 years
in selling new ink and laser cartridges
and ribbons, re-filling and selling used ink and laser cartridges and
re-spooling and selling
of ribbons used for printers. The plaintiff’s
father, who is the majority shareholder in the company, now wants to
retire
and the plaintiff intends to purchase his shareholding. Prior
to the accident the plaintiff was actively involved in sales and
marketing of the company’s products and for this purpose he was
required to do extensive travelling. According to the plaintiff
he,
prior to the accident, spent 70 – 80 % of his work time “on
the road” in order to call on existing customers,
to make
selected deliveries and to source new customers. Post accident, he
says, as a result of the disabilities he still suffers
from, his time
on the road, much to his dismay, has decreased to 40%.
[9] The plaintiff is paid a monthly
salary package by the company. The profits made by the company are
ploughed back to maintain
its steady growth. The company is
financially well off: its turnover for 2009 was R5,5m, with the
latest financial statements reflecting
a substantial increase in net
profits. It is common cause that the plaintiff’s monthly nett
salary package amounts to R24
563.07. He was off work after the
accident for a period of approximately six months but continued to
receive his full salary package.
His patrimony concerning post
accident income has accordingly not been diminished in any way (see
Union Government (Minister
of Railways and Harbours) v Warneke
1911 AD 657
, 665).
[10] Next, I turn to consider the real
issue in this matter, which is the plaintiff’s claim in respect
of loss of earning
capacity. Counsel for the plaintiff in argument
proceeded from the premise that the plaintiff has physically been
compromised resulting
from the injuries sustained in the collision
and that he therefore has a claim for loss of earning capacity which
he submitted
must be assessed in accordance with the guidelines and
principles set forth in the oft quoted judgment of Nicholas JA in
Southern Insurance
Association Ltd v Bailey NO
1984
(1) SA 98
(A) 111C-114F. But counsel readily and, in my view,
correctly conceded that the imponderables in the assessment of an
award on
this assumption are innumerable. He therefore disavowed
reliance on an actuarial report obtained on plaintiff’s behalf
placing
a monetary value on the plaintiff’s loss of earning
capacity and, instead, contended for a lump sum award under this head
of R300 000.
[11] The general principles applicable
to the assessment of damages under this head were summarised by Van
Heerden J (as she then
was) in
Bridgman
NO v Road Accident Fund
(C)
Corbett & Honey
The
Quantum of Damages in Bodily and Fatal Injury Cases
Volume V at B4-1, B4-5
.
Before there can be a
quantification of a claim for loss of earning capacity a plaintiff
must, as a first requirement, prove that
“the reduction in
earning capacity gives rise to pecuniary loss” (
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA) 241H-242B). The general principle applicable in this
regard has been succinctly stated by Chetty J in
Prinsloo
v Road Accident Fund
2009
(5) SA 406
(SE) with reference to the leading cases of
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1973
(2) SA 146
(A) 150B-D and
Dippenaar
v Shield Insurance Co Ltd
1979
(2) SA 904
(A) 917B-D, as follows:
‘
A
person's all-round capacity to earn money consists,
inter
alia
,
of an individual's talents, skill, including his/her present position
and plans for the future, and, of course, external factors
over which
a person has no control, for instance,
in
casu
,
considerations of equity. A court has to construct and compare two
hypothetical models of the plaintiff's earnings after the date
on
which he/she sustained the injury.
In
casu,
the court must calculate, on the one hand, the total present monetary
value of all that the plaintiff would have been capable of
bringing
into her patrimony had she not been injured, and, on the other, the
total present monetary value of all that the plaintiff
would be able
to bring into her patrimony whilst handicapped by her injury. When
the two hypothetical totals have been compared,
the shortfall in
value (if any) is the extent of the patrimonial loss. … At the
same time the evidence may establish that
an injury may in fact have
no appreciable effect on earning capacity, in which event the damage
under this head would be nil.’
(
See
also
Griffiths
v Mutual & Federal Insurance Co Ltd
[1993] ZASCA 121
;
1994
(1) SA 535
(A) 546F-G).
The
reasoning of, as well as the finding by Chetty J in
Prinsloo
that
the claimant had failed to discharge the
onus
of proving that she suffered a loss or reduction of earning capacity
was approved and confirmed on appeal (see
Prinsloo
v The Road Accident Fund
(unreported)
Case no 139/2009 delivered on 25 February 2010 by the Full Court of
the Eastern Cape High Court (Jones J with Pillay
J and Makaula AJ
concurring)).
[1
2]
As for the
plaintiff it must undoubtedly be accepted that the
sequelae
of the injuries he suffers from results in a diminution of his
ability to optimally perform in the work place. But, the enquiry,
as
I have shown, does not end there. The question remains whether as a
result of the disability he will suffer any pecuniary loss.
In the
particulars of claim it is alleged that “it is anticipated that
the plaintiff will continue suffering ongoing and
severe problems
arising from the injuries sustained in the collision which will
severely interfere with his future employment and
employability”.
Nothing in support hereof has been put before this Court. The
plaintiff’s evidence on this score was
less than satisfactory.
He clearly left no stone unturned to show that he suffers pecuniary
loss from his disabilities. The high
water mark thereof was the
spearheaded determination in the expectation he expressed to be
elevated (by way of compensation, of
course) to such a financial
position as would enable him to afford luxuries such as “bigger
cars and bigger houses”.
Upon proper consideration of all
relevant factors I am driven to conclude that the plaintiff’s
disabilities have no real
or any effect on his present or future
earning capacity. On his version the sourcing of new customers was
nothing out of the ordinary.
He testified that prior to the accident
he did not call “on a million people a day” but rather on
nothing more than
two to three prospective customers in any one day.
Having regard to his present physical condition there is nothing to
suggest
why this cannot be maintained. It is true that the plaintiff
will have to endure some measure of pain and discomfort in performing
his duties but neither he nor any of the expert witnesses suggested
that this is beyond his abilities. On the contrary, the plaintiff
seems to me to be as positively motivated as always (he says he
“loves to be on the road”) to excel in performing his
duties. In any event, he conceded that he thus far has never once
lost one single prospective customer due to his diminished physical
abilities. The plaintiff, likewise to what he had done prior to the
accident, still delivers the company’s products to existing
customers and, where necessary, personally attends to any problems
they might have. In this regard he is assisted by a driver employed
by the company for that very purpose. Added hereto is the possibility
of
targeting new
customers in closer proximity to the company’s business
premises, thereby obviating stressful driving sessions.
Taking over
his father’s shareholding in the near future world inevitably
in any event require him to take control of certain
aspects of the
business which in turn would require him to spend more time in house
at the business premises. Finally, it is common
cause that the
plaintiff would, despite the seriousness of his injuries, with
adequate treatment, be able to continue running the
business, until
retirement age
[1
3]
The sole source of the plaintiff’s income is derived from the
business operated by the company. It is undisputed on the
evidence,
as I have already alluded to, that the
business
of the company has expanded over the past years with an ever
increasing profitability. This, so the plaintiff testified,
is mainly
due to the fact that the company recently opened a retail shop from
where sales of its products are conducted. The successful
sales of
products at the retail shop, I should add, is obviously not at all
dependant on the plaintiff’s personal contact
with customers or
customer sourcing requiring long tiring sessions of driving. There is
no suggestion that the company at any stage
will not be able to meet
its financial commitments. Counsel for the plaintiff vaguely raised
such possibility arising at some future
date in support of the
plaintiff’s claim for loss of earning capacity, but the
contention does not transcend speculation.
[14] This brings me to the income the
plaintiff has earned to date as well as his expected future income. I
have already referred
to the salary package paid to him by the
company. The possibility of any change thereto, to the detriment of
the plaintiff, can
safely be ruled out. The plaintiff has not at any
stage suffered any actual loss of income. Nor has it been shown that
such loss
is likely to occur in future. The experts are unanimous in
their view that the plaintiff will, notwithstanding his physical
impairment,
well be able to continue his work in running the business
until retirement age.
[15] Finally, I turn to one last
aspect under this head of damage requiring determination. The expert
witnesses are in agreement
that the plaintiff will require future
medical treatment (
ie
a knee replacement and a remote possibility of an elbow replacement)
which will lead to a future absence from work for a period
of six
months. Counsel for the plaintiff has handed up an actuarial
calculation in respect of plaintiff’s assumed loss of
earning
for a six- month period, which comes to the sum of R110 601.00. I do
not consider it necessary to comment on the correctness
or otherwise
of the actuarial calculations which in any event have not been
challenged. The calculations, however, are based on
a wrong
assumption: as I have dealt with, the plaintiff has failed to prove a
future loss of earning capacity. He will in future,
as I have alluded
to, be paid his salary package in full. Counsel for the plaintiff
sought to label the income that will thus be
paid to the plaintiff as
a kind of annuity, gratuitously paid by the company, which counsel
submitted would not disentitle the
plaintiff to compensation for loss
of income. Except that there was no evidence in support the
contention, it is flawed in its
premise and therefore cannot be
sustained.
[16] I accordingly conclude that the
plaintiff has failed to prove that impairment of his capacity to earn
an income will result
in the production of a lesser income in the
future and therefore pecuniary loss. His claim for loss of earning
capacity therefore
fails and no award is made.
GENERAL DAMAGES
[17] The plaintiff, in his particulars
of claim, initially claimed R600 000 in respect of general damages.
At the end of the hearing
the amount claimed was amended, firstly, to
R900 000 and later, during the course of argument, to R1m. Counsel
for the defendant
contended for an award of R300 000. The award in
respect of general damages falls within the broad discretion of the
Court of what
it considers to be fair and adequate compensation in
the circumstances of the case. Not only must the nature, extent and
effect
of the injuries sustained be considered but also the
escalation of the
quantum
of awards for general damages of late by our courts, always of course
within the confines of moderation.
[18] The plaintiff sustained severe
orthopaedic injuries and experienced considerable pain, suffering and
discomfort for a substantial
period of time following the collision.
Even though almost two years have passed since the accident he still
suffers from pain
in his right lower leg, left arm and lumber spine.
He experiences discomfort in performing normal every day tasks. Prior
to the
accident the plaintiff was healthy, active and vigorously
participated in a number of sport activities. All those he has now
forfeited.
Although he is able to and fortunately does remain active,
his condition, as I have alluded to, has and in future will, impact
on his career. On the upside, the injuries have all healed well,
although he still bears testimony of the injuries and their treatment
in unsightly scarring all over his body.
[19] Multiple operative procedures
were performed on the plaintiff. Complications such as infection
arose. He underwent rehabilitative
treatment for two months. Both his
knees, because of weight gain, are now compromised. The plaintiff is
frustrated resulting from
his physical limitations. Therapy is
prescribed to encourage insight into the impact of his behaviour and
to help him modify his
actions. He still suffers constant pain and is
on daily medication, including anti-depressants. Added hereto is the
prospect of
ongoing medical interventions, not only to remove the
nails from his right tibia as well as the tension band from the left
elbow
and patella, but also a definite knee replacement as well as
the “small chance” of an elbow replacement after the age
of 60.
[20] The defendant referred me to the
awards made for general damages in respect of multiple injuries in
the following three cases:
Dladla
v President Insurance Company and Another
(T) 1991,
Corbett and Honey
Vol IV J2-17, R22 000 (updated value R86 000);
Mansos
v Santam Insurance Ltd
(C)
1992
Corbett
and Honey
Vol IV J2-39, R80
000 (updated value R274 000) and finally,
Muller
v Mutual and Federal Insurance Company Ltd
(C)
1993,
Corbett and Honey
Vol
IV J2-56, R75 000 (updated value R234 000). As rightly pointed out by
counsel for the plaintiff, in the time that has elapsed
since these
cases were decided, the approach to the determination of awards have
undergone not only adjustment but also restatement
(see
Road
Accident Fund v Marunga
2003 (5) 164 (SCA) ([2003]
2 All SA 148
(SCA));
De
Jongh v Du Pisanie NO
2005
(5) SA 457
(SCA) ([2004]
2 All SA 565
(SCA)) para [55]
et
seq
). Although providing
useful guidelines and parameters of a proper award, none of these
cases was sufficiently closely comparable
with the facts and
circumstances of this matter. It remains to add the inevitable
caveat
:
each case has to be decided upon its own facts.
[21] The plaintiff heavily relied upon
the award I made in respect of general damages in the sum of R600 000
(updated value R821
000) in
Bernell
Schmidt v The Road Accident Fund
(W)
2006, Corbett and Honey Vol
V J2-168. Obviously encouraged by the generosity of this award,
counsel (who also appeared for the plaintiff
in that matter) sought
the amendment I have referred to, to further increase the amount
claimed for general damages to R1m. Counsel’s
optimism,
however, withers somewhat if due regard is had to the factors that I
considered as justification for the award in
Schmidt
:
‘
Weighing
heavily with me in determining the
quantum
of general damages is the severity of the plaintiff’s injuries,
their
sequelae
including prolonged severe pain and suffering; past and future
surgical interventions; the risk of MRSA infection recurring with
the
knee replacement and the treatment associated therewith; she has
permanent psychological problems and finally, the severe and
unsightly scarring, all of which has not only affected but also
materially changed every facet of the plaintiff’s life for
the
remainder of her lifetime.’
It is immediately apparent that the
injuries and their
sequelae
in
Schmidt
were
significantly more severe than in the present matter. I am
accordingly of the view that the amount claimed for general damages
in the present matter is too high. An appropriate, fair and
reasonable all-inclusive amount, having considered all the
circumstances
of this matter, in my view, is R650 000.00.
ORDER
[22] To sum up, the full award to be
made to the plaintiff is therefore calculated as follows:
Past hospital and medical expenses
R629 102.71 General damages
R650
000.00
Total R1 279 102.71
[23]
In the result I grant judgment in favour of the plaintiff as follows:
Payment of the amount of R1 279
102.71.
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 him or supplying
of goods to him, arising out of the injuries sustained by him in a
motor vehicle collision which occurred
on 20 July 2008, 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: Dr
Barlin, Dr Ullyatt, Ms
Reynolds and Ms Maloon.
_______________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE
PLAINTIFF ADV IJ ZIDEL SC
PLAINTIFF’S
ATTORNEYS DEON S GOLDSCHMIDT
COUNSEL
FOR THE
DEFENDANT
ADV M COETZER
DEFENDANT’S
ATTORNEYS MF JASSAT DHLAMINI INC
DATE
OF HEARING 23 & 24 MARCH 2010
DATE OF JUDGMENT 1 APRIL 2010