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[2020] ZAGPJHC 40
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Mohapi v Road Accident Fund (2017/22595) [2020] ZAGPJHC 40 (10 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:2017/22595
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHERS JUDGES:
YES
/NO
(3)
REVISED
........20/2/2020.....................
..............................................
DATE
SIGNATURE
In
the matter between:
MOHAPI:
JACOB
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGEMENT
SELEKA
AJ:
Introduction
[1]
These are action proceedings in which two issues have been referred
to trial, namely;
(a) the amount to be
awarded to the Plaintiff for general damages; and
(b) the Plaintiff’s
claim for past and future loss of earnings or income earning
capacity.
[2]
I am also required to determine the issue of costs, pursued by the
Plaintiff on a punitive scale.
[3]
All other issues have become settled and the Defendant has, on the
merits, conceded full liability to
the Plaintiff for all proved
damages.
[4]
The remaining issues were, by agreement between the parties, disposed
of by way of a stated case, based
on a statement of agreed facts,
dated 18 February 2020, the date when the hearing could commence. To
the statement of agreed facts
was attached on Actuarial Report dated
7 February 2020, which both parties relied on far loss of past and
future income.
[5]
At commencement of the hearing, I was advised by Counsel for both
parties that the amount for past loss
of earnings was no longer in
dispute. That amount is R303 300, as per the actuarial report,
to which the parties are agreed
to apply a contingency deduction of
10%, resulting in the amount of R288 135.00.
[6]
Therefore, what remains for determination in regard to the second
issue above is the Plaintiff’s
claim for future loss of income
(or earning capacity). The loss is not in dispute. Only the extent
thereof, and in particular the
percentage of contingency deduction to
be applied to the capitalised value determined in the actuarial
report.
[7]
The report postulates two scenarios. In scenario 1, the Plaintiff is
presumed to be unemployable and
to remain unemployed in the future.
Scenario 2 is premised on the assumption or expectation of the
Plaintiff’s employability,
but at less than the pre-accident
career potential.
[8]
The capital value of loss of earnings in scenario 1 is R1 854 700,
and in scenario 2 is R606 400.
The latter amount is arrived at
by subtracting the amount postulated in the case of injured earnings,
i.e. R1 248 300,
from the capital value of the loss in the
case of uninjured earnings, i.e. R1 854 700. These amounts
are without contingencies.
[9]
It was contended on behalf of the Plaintiff that scenario 1 should be
applied, to which a contingency
deduction of 10% (R185 470)
should be used, resulting in the amount of R1 669 230.00
for future loss of income.
[10] For the
Defendant, scenario 2 was preferred, to which 50% (R624 150)
contingency deduction, it was argued,
should be applied to the
capital value of injured earnings, R1 248 300, resulting in
R624 150 which should be subtracted
from R1 576 495
(uninjured capital value after 15% contingency deduction) to give a
difference of R952 345.00 as the amount
to be awarded for future loss
of earnings.
[11] As
regards general damages, the Plaintiff seeks an amount of R1.2
million, whereas the Defendant contends for approximately
R735 000.
Brief Factual
Background
[12] A brief
narration of the facts giving rise to the Plaintiff’s claim
will suffice, as most of the facts are
common cause between the
parties, as per the statement of agreed facts.
[13] The
Plaintiff is a 44 year old male, born on 27 February 1976.
[14] On 20
February 2017, at approximately 18h00, the Plaintiff was involved in
motor vehicle accident. He was a passenger
in a taxi (1
st
insured taxi) with which another taxi (2
nd
insured taxi)
collided head-on.
[15] As a result of
the collision, the Plaintiff sustained a number of serious injuries
and suffers from various sequelae.
All this is confirmed in the joint
minutes of experts procured by both parties, as well as uncontested
reports of two of the Plaintiff’s
experts, where the Defendant
provided no counter-report, viz Psychiatrist and Ophthalmologist.
Plaintiff’s
Injuries
[16] Prior to the
accident, the Plaintiff was physically fit and healthy, and employed
as a motor mechanic for 15 years immediately
prior to the accident.
[17] Following the
accident, he sustained a moderate traumatic brain injury and a C7
vertebral fracture, as well as facial
injuries, lacerations to the
forehead, dislocated knee and a fracture of the right acromion (right
shoulder). His orthopaedic injuries
are rated at 40% Whole Person
Impairment (WPI), thus entitling him to a claim for general damages.
Sequelae
[18] Post the
accident, the Plaintiff is said to have residual neurocognitive
impairment and post traumatic chronic headaches.
He has 4% to 5% risk
of post traumatic epilepsy, as a result of which his occupational
therapist says he should avoid work that
requires driving, climbing
heights, working with hot or sharp substances, working along roads or
working with fast machines. The
occupational therapist concludes that
the Plaintiff would no longer be suitable for his previous job as a
motor mechanic, where
he had to use electric tools. This reduces his
employment options, quite significantly.
[19] The
neuropsychologists are agreed that the Plaintiff suffers from,
inter
alia
, learning deficiency, and has difficulties in visual
attention and memory, verbal concept formation, childish behaviour of
impulsiveness
and aggression. He scribbles, copying figures that have
no relationship with the original design, suggesting instability in
visual
motor co-ordination and personality.
[20] The
Plaintiff’s performance, in Ravens’ SPM, fell below the
5
th
percentile, suggesting a definite below average
individual intellectual capacity. He has poor attention and is unable
to conceptualise
both the common functional features of objects. He
has poor eye-hand co-ordination in relation to speed, and tremors in
both hands.
He has very poor logical thinking, poor accurate visual
perception, poor concrete reasoning, concept formation and
concentration.
[21] The experts
further agree that the Plaintiff has a mental deficiency, suggesting
extremely poor problem-solving ability,
planning ability and
visual-motor co-ordination. There is no evidence that the Plaintiff
will experience spontaneous recovery in
these areas. Based on this
assessment, the Plaintiff is in all probability unable to return to
work as a motor mechanic. It is
opined by one expert that he might
require supervision and sympathetic employment. However, on the
strength of the decision in
Santam v Byleveldt
1973 (2) SA 146
(AD)
, sympathetic compensation is irrelevant for purposes of
quantifying the Plaintiff’s future loss of income or earning
capacity.
[22] The Industrial
Psychologist secured by the Defendant acknowledges the challenges
experienced by the Plaintiff, and that
his risk of developing
epilepsy and his neuropsychological impairments in the injured
scenario (scenario 2) will exert a negative
effect on his future
employment prospects, manifesting in delayed re-entry to the labour
market and increased periods of unemployment.
However, he opines that
provided he benefits optimally from,
inter alia
, surgical and
occupational therapy treatment recommended for him, the Plaintiff
could re-enter the labour market as a motor mechanic
in a supervisory
role. Given the mental, intellectual, cognitive and psychological
challenges experienced by the Plaintiff, I find
it extremely
difficult to accept this opinion, when the agreed facts show that it
is the Plaintiff who requires supervision, and
not the other way
round.
[23] Further, the
opinion is only speculative and expressly made subject to the
Plaintiff deriving optimal benefit from the
recommended treatment.
The prospects of such benefit materialising were not presented before
me.
[24]
Accepting of the challenges and increased risks faced by the
Plaintiff in securing future employment, the
Defendant’s
Industrial Psychologist proposes that a higher post-accident
contingency deduction be applied (in scenario 2),
higher than
pre-accident, the quantification of which remains the prerogative of
the Court.
[25] The
Occupational Therapists are agreed that the Plaintiff has limited
physical competence for physical based work,
due to his cervical
spine and the ongoing problems, which preclude him from all
labour-intensive work. He presents with poor physical
competence for
work, due to poor neck agility and fatigue from constant pain. They
agree that he suffers compromise and vulnerability,
especially in his
capacity to, in the long term, sustain occupation with alternative
employers. Thus, they conclude that the Plaintiff
has become less
competitive in the open labour market and has limited employment
options.
[26] The
uncontested findings of the Plaintiff’s ophthalmologist are
that the Plaintiff has a WPI of 11%, with
an unsightly laceration on
the upper eyelid of the right eye and a permanent traumatic optic
neuropathology.
[27] The
severity and impact of the Plaintiff’s injuries on his future
earning capacity is demonstrated by the
fact that when he returned to
work post the accident, he only worked for less than a week, before
his contract was terminated.
He has since remained unemployed. In the
joint minute of the Industrial Psychologists, they agree that the
Plaintiff is no longer
suitable to perform heavy physical work, and
that since work as a mechanic is mainly heavy, the Plaintiff is no
longer suited to
perform this work.
[28] Given
all of the above, the suggestion that the Plaintiff could still be
accommodated as a motor mechanic due to
his extensive knowledge and
experience in that field, is simply unpersuasive. I am unable to
perceive of an employer who would
take the risk of employing the
Plaintiff, in any capacity, with the knowledge of challenges above.
The Plaintiff’s chances
of securing gainful employment are
almost certainly destroyed, completely.
[29] It is
plain from the above facts that the Plaintiff’s challenges are
not only physical, but also cognitive,
psychological and mental. His
mental capacity has been seriously compromised. His inability to
demonstrate logical thinking, accurate
visual perception, concrete
reasoning, concept formation and concentration has stripped him of
his ability to be employable. This
is exacerbated by what is said to
be a childish behaviour of aggression and impulsiveness.
[30] These
factors, also justify in my view, an order for the establishment of a
trust to manage, for the Plaintiff’s
benefit, whatever money
would become payable to him by the Defendant.
[31] In my
judgment, a fair and reasonable amount for both general damages and
loss of future earnings, is one that
gives sufficient weight to all
of the above factors.
[32] The
legal position in this regard is trite, as plainly apparent from the
authority referred to me by the Defendant’s
Counsel, viz.
Yimba
v RFA, Case No. 44866/2017 ZAGPPHC 485
(19 September 2019).
[33] It is
apposite to refer to paras 13 and 14 in
Yimba
, where
the Court said:
“
[13] It
is trite law that a court must consider and have regard to previous
comparable cases when seeking appropriate compensation
for general
damages. An award made will be fair if it is consistent with previous
cases of similar facts and law. However, comparable
cases offer some
guidance in assisting a court to arrive at its award and should not
be viewed as an absolute standard.
[14] When
considering general damages a court has a wide discretion to award
what it considers to be fair and adequate compensation
for the
injured party. Even though I may have to consider the cases provided
by the parties as a guide, it is, however, clear that
all the cases I
was referred to are not on all fours with the current case. I,
therefore, have to arrive at a fair and appropriate
award using my
discretion in the light of all the facts before me”.
[34]
I intend to follow this approach.
[35] In
argument, I was referred to a couple of cases by Counsel for the
Plaintiff, said to be comparable to the present.
The cases are
Zarrabi v RAF 2006 (5B4) QOD 231 (T), Suit MO v RAF 2006 (5B4)
and
Hall v RAF 2013 (6J2) QOD 126 (SGJ)
.
35.1 In
Zarrabi,
– the plaintiff was a 30 year old female practising doctor and
trainee medical specialist, who sustained severe injuries,
which
included severe diffuse axonal brain injury, with severe
neuro-physical, neuro-cognitive and neuro-psychiatric consequences,
multiple facial lacerations, fractured nose, contusions of the chest
with bilateral contusions of the lungs, rupture of the liver,
and
multiple contusions and abrasions to both legs.
As a result, she suffered
from,
inter alia
, intellectual impairment, personality change,
loss of depth perception, loss of vision of the right visual field
and lack of drive,
subtle speech, language and communication
problems. The Court awarded R800 000 for general damages and
over R9.6 million for
past and future loss of earnings (in April
2006).
35.2 In
Suit,
– the plaintiff was 12 years old schoolgirl who also sustained
severe diffuse axonal brain injury resulting in intra-cerebral
bleeding and cerebral oedema, multiple facial lacerations, fracture
of the right humorous and left ulna, bilateral ankle fractures
and
fracture of the pelvis. She was discharged after a month in hospital
with a walking frame. She had extensive scarring of the
forehead. She
suffered from intellectual impairment, coupled with personality
change and lack of personal drive. She was awarded
R600 000 for
general damages and over R4.1 million for future loss of earnings.
33.3 In
Hall,
–
the plaintiff was a 39 year old male, highly motivated sales manager
and a world class cyclist who sustained multiple injuries,
including
fractured ribs on the left side, a moderate concussive head injury.
He spent 5 days in Intensive Care Unit (ICU). As
a result, he had a
changed personality, lost confidence, suffered symptoms of organic
brain syndrome. He was not completely unemployable,
but would be
reliant on a sympathetic employer. The Court awarded him R700 000
for general damages and over R5.6 million for
future loss of income
(in May 2012).
[34] These
cases are not particularly comparable to the facts in the present
case. However, there are similarities in
regard to sequelae, and the
amounts awarded are informative. I remain guided by what was said in
Yimba
.
[35]
Defendant’s Counsel urged me to follow this authority in regard
to general damages, where the Plaintiff had
suffered a traumatic
brain injury and a fractured vertebra. The experts were not in
agreement on whether the brain injury was mild
or moderate. The
amount awarded for general damages was R700 000 (in September
2019). As sequelae of her injuries, she suffered
from chronic
headaches, neurocognitive and neuropsychological deficits.
[36] In the
present case, the sequelae are more serious and pronounced, and I
have taken this into account in determining
the fair and reasonable
amount for damages.
[37] In my
opinion the fair and reasonable amounts, in the present case, are as
follows:
37.1
For General Damages: R1.2 million;
37.2 For Future
Loss of Income: R1 576 495 (after applying 15% contingency
deduction on scenario 1).
[38] The
amount for past loss of income has already been agreed.
[39] In the
exercise of my discretion, the amount for future loss of income is to
be rounded off to R1.6 million. (cf:
Southern Insurance
Association v Bailey NO 1984(1) SA 98 (A) at 113 and 116G-117A)
.
I would have arrived at the same or similar amount on scenario 2 by
applying a higher post-accident contingency deduction, as
proposed by
the Defendant’s Industrial Psychologist. The Defendant’s
counsel urged upon to apply a 50% contingency
deduction. However, I
do not believe that his submission is consistent with the opinion of
the Defendant’s own Industrial
Psychologist, who proposes a
higher contingency deduction (higher than pre-accident), and leaves
the quantification thereof to
the Court.
[40] One
uncontroversial matter between the parties also merits attention. At
a case management conference on 17 October
2019, the Defendant
tendered an undertaking, as envisaged in s 17(4)(a) of the RAF Act 56
of 1996, to compensate the Plaintiff
for all his future medical,
hospital and ancillary expenses arising from his injuries. The
undertaking was to be issued within
14 days of it being tendered,
i.e. on or about 6 November 2019.
[41] However,
the Defendant has to date failed to issue the undertaking and has
proffered no explanation for this failure.
The Defendant has
indicated that it does not oppose an order directed it to issue the
undertaking. I am persuaded that I should
show my displeasure in this
regard by making an appropriate order of costs against the Defendant.
Order
[42] In the
result, I make the following order:
42.1 The Defendant is
directed to pay the Plaintiff a sum of R3 088 135 made up
as follows:
1.
the amount of R1.2 million for general damages;
2.
the agreed amount of R288 135, for Past Loss of Income;
3.
the amount of R1.6 million for Future Loss of Earnings.
42.2
The aforesaid sum (R3 088 135) shall be payable within 14
days of the date of this Order into a
Trust Account of the
Plaintiff’s Attorneys, M Raseala Attorneys, with the following
details:
M Raseala Attorneys Trust
Account
First National Bank
Branch code: 250805 (Bank
City Branch)
Account no: [….]
42.3
The Defendant shall pay interest on the aforesaid sum at the legal
rate prescribed from time to time, and
which currently is 10% due
from 14 days after judgment to date of payment.
42.4
The aforesaid sum R3 151 365.00 shall be kept in the trust
account of M Raseala Attorneys, in an
interest-bearing account in
terms of Section 78(2) (A) of the Attorneys Act, No.53 of 1979 for
the sole benefit of the Plaintiff
as referred to below and the
opening of a bank account of the Trust.
42.5
Plaintiff’s attorneys, M Raseala Attorneys, shall cause a Trust
to be established in accordance with
the provisions of the Trust
Property Control Act, No. 57 of 1988 in favour of the Plaintiff
within three(3) months hereto, on the
terms and provisions set out in
the draft deed, attached marked “
A
”.
42.5.1 In the event that
the Trust is not established within three(3) months as contemplated
in paragraph 6 above, the Plaintiff
is directed to approach this
Honourable Court within 30 days of the expiry of the first two(2)
month period, to obtain further
direction from this Honourable Court
with regards to the administration of the capital amount awarded
herein.
42.5.2 Pending the
formation of the Trust, the First Trustees referred to in paragraph 6
above are:
42.5.2.1 directed
to conduct within one (1) month hereof a “needs analysis”
for the Plaintiff’s maintenance;
42.5.2.2 authorised
to advance a stipend to the Patient not exceeding R4 000.00 per
month.
42.6
The Defendant is directed to, within 5 court days from date hereof,
furnish the Plaintiff with the Undertaking
it tendered in terms of
Section 17(4)(a) of RAF Act, for the costs of the future
accommodation of the Plaintiff in a hospital or
nursing home or the
treatment of or rendering of a service to him or the supplying of
goods to arising out of the injuries sustained
by him in the motor
vehicle collision which occurred on 20 February 2017 and the sequela
thereof, after such costs have been incurred
and upon proof thereof.
42.7
The
Undertaking shall include payment of:
42.7.1
The costs
of the creation and administration of the Trust and the appointment
of the Trustees as referred to in paragraph 7 above;
42.7.2
The
remuneration of and the costs incurred by the Trustees in
administering the Plaintiff’s estate and the costs of
administering
the statutory Undertaking furnished in terms of Section
17(4)(a) of the Road Accident Fund Act; and
42.7.3
The
costs of obtaining an annual security bond/s to meet the requirements
of the Master of the High Court in terms of
Section 77
of the
Administration of Estates Act, No. 66 of 1965
, as amended.
42.8
The Defendant is directed to pay the costs of the action, and only
such costs as incurred from 17 October
2019 to the last day of the
hearing, i.e. 19 February 2020 are to be payable on the scale as
between attorney and client. Further,
the costs shall include the
following:
42.8.1
The costs
attendant upon obtaining payment of the capital amount and/or the
interest thereon;
42.8.2
the costs
of counsel including but not limited to preparation, consultations,
drafting of the stated case and heads of argument,
the case
management agenda and minutes, attendance at the case management
conference on 17 October 2019 and appearances on trial
on 17, 18 and
19 February 2020 respectively;
42.8.3
the
reasonable costs of the reports, addendum reports, if any, RAF4
forms, if any, joint minutes and addendum joint minutes, if
any,
consultations and the preparation, qualifying and/or reservation
fees, if any of the following expert witnesses:
48.8.3.1
Dr Ntimbani
– neurosurgeon (including RAF 4 assessment);
48.8.3.2
Dr Kumbarai
– Orthopaedic surgeon (RAF 4 assessment);
48.8.3.3
Drs
Mkhabele & Indunah – diagnostic radiologis;
48.8.3.4
Ms M Gibson
– neuropsychologist;
48.8.3.5
Dr M
Vorster – psychiatrist;
48.8.3.6
Dr Weitz –
ophthalmologist (including RAF 4 assessment);
48.8.3.7
Ms Motake –
occupational therapist;
48.8.3.8
Mrs P
Ngoako – Industrial psychologist;
48.8.3.9
Munroe
Consulting Actuaries – 3 reports.
49.9
Payment of
costs is subject to the following conditions:
49.9.1
The
Plaintiff shall, in the event that costs are not agreed, cause the
notice of taxation to be served on the Defendant’s
attorney of
record; and
49.9.2
The
Plaintiff shall allow the Defendant 7(seven) court days after
taxation to make payment of the taxed costs.
49.9.3
The
Defendant is liable for interest on the unpaid taxed or agreed costs
or any portion thereof from 8 days after agreement or taxation
at the
legal rate prescribed from time to time and which currently is 10% to
date of payment.
49.9.4
The Order
must be served by the Plaintiff’s attorneys on the Master of
the High Court within 15 (fifteen) days from the date
hereto.
SELEKA
AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiffs : Adv F
Docrat
Instructed
by
: M Raseala Attorneys
Counsel
on behalf of Defendants : Adv V de Wit
Instructed
by
: Twala Inc
Date
heard
: 18 & 19 February 2020
Date
delivered
: 20 February 2020