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[2010] ZAWCHC 191
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Savage v Nieeuwoudt (3266/2008) [2010] ZAWCHC 191 (19 August 2010)
In
the Western Cape High Court of South Africa
(Cape
of Good Hope Provincial Division)
In
the matter between:
Case
No: 3266/2008
Ellen
Savage
Plaintiff
Versus
Derick
Nieuwoudt
Defendant
Judgment
delivered: 19
th
August 2010
Louw
J
[1]
The plaintiff who was born on 1 February 1962 and who is presently 48
years old suffered severe injuries in a motor vehicle
accident on 6
December 2007. She was a backseat passenger in the vehicle driven by
the defendant, Derick Nieuwoudt.
[2]
The plaintiff's claim against the RAF was settled at the statutory
maximum of R25 000.00 and she claims the balance of her damages
arising from the accident from the defendant.
[3]
The defendant who was represented by an attorney pleaded to the
Particulars of Claim, denying liability. The trial was set down
for
Wednesday
11
August 2010. Shortly before that date the defendant's attorneys
withdrew. The defendant told the plaintiff's attorney, Mr Batchelor,
who testified, that he had no money and that he would not appear at
the trial to oppose the relief sought.
[4]
Since there was no appearance by or on behalf of the defendant at the
commencement of the trial on 11 August 2010, the matter
proceeded on
an unopposed basis and Mr. McDougall, who appeared on behalf of the
plaintiff, first moved an amendment (which had
been served by
Registered post on the defendant), and later during argument for a
further amendment (the particulars of which had
likewise been served
on the defendant) to the plaintiff's claim. These amendments were
granted.
[5]
I heard the evidence of Dr Allison Madden a clinical psychologist on
the nature and extent of the plaintiff's injuries and some
of the
sequelae to the plaintiff's injuries. The plaintiff testified as to
the defendant's causal negligence, her past income,
pain and
suffering and her loss of amenities of life as well as her past
medical costs.
[6]
I thereafter received evidence in the form of affidavits by the
following medical experts.
Dr
Zayne Domingo, Neurosurgeon; Dr RD Shrosbree, Orthopaedic Surgeon;
Lyall Mari Brink, Physiotherapist; Melissa Melnick, Clinical
Psychologist; Dr Andrew Perrott, Ophthalmologist; Dr Dale Ogilvy,
Speech
and Language Pathologist; Elke Carey, Occupational Therapist; Liza
Hofmeyr, Industrial Psychologist. Mr. Munro, the actuary
also
testified by way of affidavit. The experts all confirmed the contents
of their various reports which had earlier been delivered
in terms of
Rule 36.
[7]
On the evidence it is abundantly clear that the defendant's
recklessly negligent conduct caused the accident and the plaintiff's
injuries.
[8]
The plaintiff suffered a closed head injury and a C4/5 fracture
dislocation with spinal cord injury. She also suffered an injury
to
her shoulder. The plaintiff was hospitalised immediately after the
accident. She remained in hospital for 5 months after spinal
surgery
and was discharged in a wheel chair as a C5 tetraplegic. Due to
financial constraints, her rehabilitation was not completed.
She will
endure the future complications associated with her condition and she
will in future require the various medical procedures
and treatment,
all of which are described in the reports of the medical experts. The
plaintiff' is severely disabled and will not
be able to work again.
Her loss is total and permanent.
[9]
Mr. Munro has calculated the plaintiff's future medical costs on the
basis of the evidence of the expert witnesses in the amount
of R6 353
850.00. In doing so, he had regard to the plaintiff's reduced life
expectancy.
[10]
At the time of the accident the plaintiff lived on a small holding
near Hopefield with her husband and two children, an adult
daughter
and young son who is now in grade 12. They had chosen to leave Cape
Town as they wanted to live in the country. They kept
4 horses and
several dogs. Up to the accident the plaintiff was an active biker
and horse-woman. She ran a Beading business with
24 beaders and
supplied retail outlets with beaded garments. As a result of the
accident the plaintiff lost her business and they
were not able to
continue servicing the mortgage bond and, as a result, the property
was sold. They moved to rented accommodation
in Kuilsriver but at the
time of the trial they had been ejected for their inability to pay
the rental and were living in a caravan
and tent in a caravan park.
[11]
The plaintiff's pre-accident working career and income are
established by the evidence. On the basis of this evidence Mr Munro
calculated her past and future loss of income in the amount of R2 628
900. This amount must be reduced for general contingencies
as
follows:
Past
Loss
R
440 800.00 Future Loss
R2
188 100.00
Less
5%
R
22 040.00
Less 10%
R
218 810.00
R
418 760.00
R1
969 290.00
The
Plaintiff's total loss of income consequently amounts to R2 388
050.00.
[12]
As a result of the accident, the plaintiff is tetraplegic and is
wheel chair bound. She is incontinent with a permanent indwelling
catheter. She is on a strict bowel regime to control her bowel
function. She has minimal movement in her limbs, including some
scapula movement and although both hands are severely contracted, she
is able to use her left thumb for her phone. She requires
100%
assistance with all activities of daily living. Although Dr. Madden
found her to be a highly motivated person, she is depressed
and
suffers from chronic neurogenic pain and fatigue all of which impact
negatively on her reduced cognitive abilities. She struggles
to
retain and control her attention and has problems with her memory
which has affected her verbal skills. She has lost her earlier
active
lifestyle. The plaintiff will in future continue to suffer chronic
pain and severe disability and a catastrophic loss of
amenities of
life.
[13]
In argument Mr. McDougall referred to the following awards for
general damages made in cases reported in
Corbett
& Honey
:
Quantum of Damages, Vols V and VI ; 1.
Delport
NO v RAF
A4-1 19 November 2003: R1,25m; 2.
Geldenhuys
NO v RAF
A2-11 3 July 2002: R125 000.00; 3.
Cunningham
v RAF
A2-17 19 November 2002: R700 000; 4.
Mehlo
+ Anor v RAF
10 December 2002 A2-30: R800 000; 5.
Ndaba
v RAF
8 November 2002 A3-1: R600 000; 6.
Sqatva
v RAF
4 July 2001 A2-1: R800 000.
[14]
The facts underlying the plaintiff's claim for general damages are
broadly comparable to the facts in the
Sqatva
and
Delport
cases. The plaintiff in Delport was at 36 years slightly younger than
the plaintiff in this case, who was 45 years old at the time
of the
accident. In Delport, also, the plaintiff was, unlike the plaintiff
in this case, completely unable to move or speak. The
plaintiff in
Sgatya was considerably younger, at 29 years, than the plaintiff in
this case. When upgraded to the present value
of money, the award in
Delport of R 1,25m amounts to R1,876m and the award in Sgatya, to
R1,38m.
[15]
In all the circumstances and having regard to the awards made in the
cases I was referred to, I conclude that an amount of
R1,4m should be
awarded for general damages to the plaintiff.
[16]
I am satisfied on the evidence before me that the following damages
have been proven:
Past
medical expenses
R
304 979.36
Future
medical costs
R
6 353 850.00
2.
Past & Future Loss of earnings R 2 388 050.00
3.
General Damages
R
1 400 000.00
Total
R10
446 879.36
The
amount of R25 000,00 paid to the plaintiff by the RAF must be
subtracted from this amount, leaving a balance of R10 421 879.36
[17]
The following order is consequently made:
The
defendant Derick Nieuwoudt is ordered to pay to the plaintiff:
1.
Damages in the sum of R10 421 879.36;
2.
Interest on the above sum at the prevailing rate of interest
calculated from date of demand to date of final payment;
3.
Costs of suit, including the qualifying expenses of the following
experts:
Dr
Allison Madden, Clinical Psychologist;
Dr
Zayne Domingo, Neurosurgeon;
Dr
RD Shrosbree, Orthopaedic Surgeon;
Lyall
Mari Brink, Physiotherapist;
Melissa
Melnick, Clinical Psychologist;
Dr
Andrew Perrott, Ophthalmologist;
Dr
Dale Ogilvy, Speech and Language Pathologist;
Elke
Carey, Occupational Therapist;
Liza
Hofmeyr, Industrial Psychologist.
Mr.
Munro, the Actuary;
4.
The plaintiff is declared to be a necessary witness.
W.J.
Louw
Judge
of the High Court