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[2010] ZAGPPHC 537
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Tobias v Road Accident Fund (4934/2009) [2010] ZAGPPHC 537 (15 April 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 4934/09
In the matter
between:
HOWARD
ROMEO QUINTON
TOBIAS
..........................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..............................................................................................................
Respondent
JUDGMENT
MURPHY J
1. The plaintiff has
instituted action against the Road Accident Fund for damages in the
sum of R4 290 000 arising out of a collision
between himself and
motor vehicle V[...] driven by the insured driver. The plaintiff was
a pedestrian at the time of the collision.
2. The plaintiff
alleged that the collision was caused solely by the negligence of the
insured driver.
3. It is common
cause that the plaintiff suffered a head injury, a fracture of the
left proximal tibia, a compound fracture of the
right proximal tibia
and anterior wedge compression fractures of the 8
lh
and
9
th
dorsal vertebrae.
4. In his
particulars of claim the plaintiff quantified his damages as follows:
Past hospital and
medical expenses: R 290 000
Estimated future
hospital and medical expenses: R 600 000
Past loss of
earnings: R 400 000
Future loss of
earnings: R 2000 000
General
damages:
R1
000 000
Total:
R4
290 000
5. The defendant
denied that the insured driver was negligent and pleaded that the
collision was caused solely by the negligence
of the plaintiff. In
the alternative it pleaded that the plaintiff was contributory
negligent and sought an apportionment of damages
in terms of Act 56
of 1956.
6.
At the commencement of the trial the issue of negligence remained in
issue between the parties. However, in respect of
quantum
it
was agreed that the reports of the experts of the plaintiff would be
admissible and that their contents were true and correct.
It was
further agreed that the loss of earnings calculated by the actuarial
expert GW Jacobson was correct, but the defendant reserved
the right
to argue the percentage contingency deduction in respect of both the
accrued and prospective loss. At a later stage the
defendant accepted
that a 5% contingency could be applied to the accrued loss.
Consequently, the parties agreed that the accrued
loss of earnings
was R206, 995. They also later agreed that past medical expenses were
R118 211, 02. With regard to the value of
the prospective loss of
income but for the accident the parties agreed that such amounted to
R1 711 248. However, the contingency
to be applied to the prospective
loss remained in dispute. Likewise the amount to be awarded for
general damages is also in issue.
And finally, the defendant agreed
to furnish the plaintiff with an undertaking in terms of section
17(4)(a) of the Act in respect
of future medical expenses.
7. The plaintiff
called one witness in respect of the merits, namely, Mr Alan Davis, a
friend of the plaintiff who was an eyewitness
to the collision. He
testified that the plaintiff was standing in the middle of the road
on a solid white line waiting to cross
when the insured driver,
driving without headlights, allowed his vehicle to move to the right
beyond the white line and he accordingly
struck the plaintiff with
the middle front part of his vehicle. The allegation of sole
negligence therefore was predicated upon
the insured driver allegedly
driving outside of his appropriate traffic lane and without
headlights. During the cross-examination
of Mr Davis it emerged that
the insured driver’s version was that he was confronted by a
sudden emergency, while driving
in his correct lane, caused by the
plaintiff running out directly in front of him. It is not clear
whether the insured driver denied
driving without headlights.
Whatever the case, it is no longer necessary to determine the issue
of negligence because on the second
day of the trial the parties
reached agreement that the defendant is liable for 80% of the
plaintiffs proven damages. Accordingly,
the only outstanding issues
for decision are: the quantum of general damages; the percentage
contingency deduction in respect of
the prospective loss of earnings;
and costs.
8. It is trite that
the nature of general damages makes it impossible to assess an
appropriate amount precisely. In the final analysis,
it is for the
judge to award an amount he or she considers fair and reasonable
having regard the nature and extent of the injuries;
the pain and
suffering inflicted, its duration and intensity; any disfigurement or
mutilation; the loss of amenities, general health
and any shortening
of life expectancy; and the overall impact on the plaintiff in his
peculiar personal context. It is permissible
for the court to take
cognizance of prior comparable awards as a guide; provided the
amounts are adjusted to reflect current value.
9. The plaintiff has
suffered both a brain injury and orthopaedic damage. Expert reports
were furnished on behalf of the plaintiff
(and admitted into evidence
as true and correct) by Dr Lewer-Allen, a neurosurgeon; Ms van Zyl, a
neuropsychologist; Dr Guy, a
speech language therapist and
audiologist; and Dr Grinker, a psychiatrist. Initially, each party
submitted individual expert reports
by an orthopaedic surgeon,
occupational therapists and industrial psychologists. The conclusions
of these experts have been combined
in three joint minutes admitted
into evidence as Exhibit D.
10. Dr Lewer-Allen
appears initially to have had some reservation about the extent of
any head injury noting that there was perhaps
some concussional
amnesia and no evident presentation of neurological sequelae. No
future neurosurgical intervention is anticipated.
However, Dr
Lewer-Allen indicated that he would defer to a neuropsychologist’s
assessment of the plaintiffs neurocognitive
and neuropsychiatric
status if they were to establish deficits with an accident related
cause.
11. Ms Bev van Zyl,
a neuropsychologist, did a full assessment of the plaintiff, produced
a comprehensive report and gave testimony
in court. She noted that
there was no prior history of brain-related pathology, disease or
infection. Nor did the plaintiff sustain
a head injury or loss of
consciousness at any time before the accident. The plaintiff scored
consistently poorly on various tests
that were applied to test
intelligence, psychomotor speed, attention and concentration,
visuoperception, cognition and memory.
Ms van Zyl assessed the
plaintiffs performance against an expectation, given his background,
of low average to average range. His
actual performance varied
between very poor to average with difficulties noted in psychomotor
speed, auditory attention; working
memory and mental tracking,
sustained concentration; double conceptual mental tracking and
cognitive flexibility (multi-tasking);
memory, including the ability
to learn and retain; and narrative memory. These deficits, even when
measured against the backdrop
of the expected domain of low average,
persuaded Ms van Zyl that they were neuropsychological deficits and
behavioural manifestations
which are compatible with a diffuse
rotational axonal shear injury, which probably occurred during the
flight of the plaintiff
upon impact, and would support a diagnosis
thereof. These difficulties are likely to be permanent and it is
unlikely that the plaintiff
will be able to undertake any further
training. On reading this report and others, Dr Lewer-Allen accepted
the suggested diagnosis
and stated that he would interpret the
neurocognitive and neuropsychological deficits as signifying that
brain damage was sustained
in the accident, and would probably be
rated as moderately severe.
12. Despite these
deficits, Ms van Zyl was of the opinion that the plaintiff would be
able to live independently, had sufficient
intellect to understand
the legal process and the awarded funds would not require protection.
In other words, the plaintiff will
remain capable of managing his own
affairs.
13. The brain damage
however has had emotional, behavioural and social consequences for
the plaintiff. The plaintiff has experienced
mood swings and an
increased propensity to anger. Dr Odette Guy, in her report and
testimony, identified specific language difficulties.
The plaintiff
has marked receptive difficulties with decontextualised instructions
and severe word-retrieval problems, which are
characterised by
fillers, long pauses, finger clicking, head shaking and vocalising.
These are likely to have a dramatic and potentially
humiliating
affect socially and in the workplace. The problem is compounded by
his problematic receptive skills and inability to
follow complex
commands. He experiences frustration and is given to bouts of
inappropriate laughter. Dr Guy concluded that these
difficulties,
which were not present before the accident, are likely to be
permanent and at best the behavioural problems might
be ameliorated
marginally by compensating therapy. Dr Guy’s conclusions are
supported by the report of Dr Larry Grinker,
a psychiatrist. He
points to a growing frustration with and depression about the
sequelae, which has resulted in the plaintiff
becoming socially
withdrawn and experiencing notable feelings of inadequacy. There has
also been a reduction in libido and an increase
in anxiety.
14. In view of the
fact that the defendant admitted the contents of the reports to be
true and correct this evidence was not subjected
to cross-examination
or rebuttal by experts called by the defendant. The basis of the
assessments, the methodology applied and
the conclusions reached have
thus been admitted without challenge and the court is accordingly
obliged to accept them.
15. The same applies
in respect of the joint minutes of the other experts.
16. The joint
minutes of Dr Heymans and Dr Volkersz record that despite appropriate
orthopaedic treatment, the plaintiff has ended
up with a nonunion of
the right proximal tibia, post-traumatic osteoarthritis in the left
knee, and signs of spondylotic changes
around the 8
lh
and
9
th
dorsal vertebrae. Both doctors agree that the
plaintiff will require an intramedullary nailing and bonegrafting for
the non-union
fracture, and that he will need a total knee
replacement on the left hand side. They conclude that his injuries
will disable him
from doing any form of strenuous work. Nor will he
be able to stand for long periods, walk long distances etc. He is
thus likely
only to be able to perform sedentary work.
17. The plaintiff’s
education and work history is outlined in detail in the report of Dr
Ralph Wortley, an industrial psychologist.
The plaintiff did his
primary schooling in Cape Town where he was required to repeat
standard 3 (Grade 5). He completed two or
three years of high school.
The highest qualification he attained was standard 7 (Grade 9). He
did two years apprenticeship as
a fitter and turner, but has not
obtained any formal qualification as a skilled artisan.
18. Dr Wortley
reported that the plaintiff was unable to furnish him with any clear
dates and was somewhat vague about his employment
history. From the
information made available to Dr Wortley it can be said that the
plaintiff has not had a model career. Between
1991 and September 2007
(the date of the accident) it is recorded that the plaintiff worked
for 15 different employers. He also
had significant periods of
unemployment or self-employment. He has no formal qualifications and
has worked in various capacities.
He is now 36 years old. In the
joint minute of Dr Wortley and Ms du Toit, they state that although
the plaintiff has a history
of many employers, the plaintiff was
almost continuously employed. What they mean by “almost
continuously employed”
is not clear. From the information
contained in Dr Wortley’s report it appears that the plaintiff
was at times unemployed
for periods between three months to one year
and quite frequently so.
19. Both industrial
psychologists expressed the opinion that given his injuries and work
experience the plaintiff is likely to remain
unemployed for the rest
of his life.
20. The actuarial
expert, Mr Jacobson, calculated the plaintiffs loss of earnings using
his last salary of R80 640 per annum with
an assumed increase over 5
years to R110 000 per annum. This would be his career ceiling and
accordingly thereafter his salary
would be adjusted only to take
account of inflation up to a retirement age of 65. Again the
defendant has accepted this without
challenge. The only issue
outstanding, as I have said, is the contingency to be applied in
respect of the prospective loss.
21. With regard to
the claim for general damages, Mr van der Walt SC emphasised the
fallout occasioned by the diffuse rotational
axonal shear injury to
the brain. Those fallouts are behavioural, cognitive, language
related and intellectual. They will undoubtedly
have social,
work-related and inter-personal consequences. However, they are not
severe to the extent that the plaintiff cannot
manage his own affairs
and live independently. The discomfort they cause though will be
exacerbated by the future medical treatment
required for his
orthopaedic injuries and the fact that he will most likely be
compelled to a sedentary existence. Although it
was already
improbable that the plaintiff would distinguish himself in his
working life, and looked set to live a hand to mouth
existence, the
fact that he is unlikely to find permanent employment will impact
negatively on his identity and sense of self-worth.
Against that,
however, the plaintiff has since the accident undertaken casual work
of a sedentary nature working on information
technology applications
and has on occasion earned up to R1000 per month. This raises a
question about whether he is indeed totally
unemployable and one can
only wonder at why the defendant was prepared to admit that he was.
22.
Mr van der Walt has submitted that an amount of R800 000 should be
awarded as general damages taking account of the pain and
suffering
and loss of amenities. He relied upon the decision of Pretorius AJ in
Smit NO v RAF
(TPD
31684/03), where an award of R600 000 as general damages was made,
with a present value of R821 000. In my view, there are
marked
differences between the injuries suffered by the plaintiff in that
case when compared with the present. In that case, unlike
the
present, there was evidence of severe brain injury resulting in
intra-central bleeding and central oedema, multiple facial
lacerations and distinct personality changes due to frontal lobe
damages. The plaintiff had also previously excelled academically,
in
cultural activities and in the sporting arena. Moreover, in
De
Jager v Du Pisani
2004
(5) CB J2
103, only R250 000, with a present day value of R397 000,
was awarded where the plaintiff was injured to the extent of being
unable
to manage his own affairs and requiring a
curator
bonis.
Even
accepting the award there as being ungenerous, I do not accept that
R800 000 would be a fair and reasonable amount. I agree
with Mr
Thabede, for the defendant, that approximately R500 000 would be
fair. I will award R450 000.
23. As for the
contingency percentage, Mr van der Walt submitted that the 15%
deducted by the actuary would be appropriate. Mr Thabede
asked for
45% pointing out that throughout his employment history the plaintiff
rarely worked a full twelve month period and that
there was evidence
that he had some residual earning capacity. I consider there to be
merit in both points. By accepting the correctness
of the expert
reports the defendant essentially conceded that the plaintiff was
unemployable in the market. However, the reports
in contradictory
fashion do indicate also that self-employment in a sedentary capacity
cannot be ruled out entirely. And while
the actuary made no
calculation of projected income having regard to the accident for
deduction from the projected income but for
the accident, on the
basis that the plaintiff was unemployable, that alone does not
exclude from consideration when determining
the percentage
contingency deduction the possibility of a residual earning capacity
through self-employment. If one were to put
that at about R500 per
month, such would be about 10% of what the plaintiff earned before
the accident. It would be a mistake however
to draw a straight line
addition to the norm of 15%, because that residual capacity could be
impacted negatively by other factors,
such as a quicker pace of age
related deterioration resulting from the ongoing orthopaedic
difficulties. Furthermore, as intimated,
I agree with Mr Thabede that
the plaintiffs unsatisfactory employment history and service record
militate strongly against the
idea that he would in the future have
been employed for a full twelve months of each year at full salary.
He rarely achieved that
in the past, and the past is the best
indicator of the future.
24. Taking account
of these two factors, as well as the other normal considerations
typically informing the contingency deduction,
I conclude that a
contingency deduction of 25% would be fair in the circumstances.
25. In the result,
the plaintiffs proven and agreed damages are the following:
Past
medical
expenses:
...........................................................................................
R
118 211
Accrued Loss of
Earnings
Value of income but
for accident
.......................
R 217
890
5%
Contingency
......................................................
10
895
…................................
R
206 995
Prospective Loss
of Earnings
Value of Income but
for accident
..................
R1 711 248
25%
Contingency
................................................
427
812
…................................
R1
283 436
General
Damages
...................................................................................................
R
450 000
Total:
.....................................................................................................................
R2
058 642
26. By agreement the
plaintiff is entitled to 80% of his proven damages. Accordingly, he
is entitled to an award of R1 646 914.
27. I turn now to
the question of costs.
28.Mr van der Walt
asked for an order including the qualifying fees (preparation fees)
of the experts as well as the attendance
fee of the two experts who
gave evidence. There can be no objection to that. He sought also an
order that the costs include the
employment of senior counsel, on the
grounds that the amount involved was substantial and quantum was a
complicated issue.
29.
Mr Thabede argued that it is not competent for the court to make an
order that costs should include the costs of senior counsel.
In this
regard he referred to rule 69(1) which confers authority on the court
to depart from the general rule that only the fees
of one counsel
will be allowed. Because the rule is silent in relation to the
employment of a senior counsel who appears without
a junior, the
matter, Mr Thabede, submitted is rightly within the jurisdiction of
the taxing master in terms of rule 69(5), which
provides that fees
will be in accordance with the tariff where applicable or in such
amount he considers reasonable. Mr Thabede
therefore has a point.
However, in determining a reasonable fee the taxing master is
required to take account of the category to
which the counsel belongs
(senior or junior); the time spent and the general standard of fees
charged -
Sebenza
Kahle Trade CC v Emalahleni Local Municipal Council
[2003]
2 All SA 340
(T). Accordingly, it has become acceptable practice for
courts to pronounce in their costs orders, having regard to the
nature
of the matter, its implications and complexity, that the costs
of senior counsel are justified.
30. In the premises,
I make the following orders:
a) The defendant is
ordered to pay the plaintiff R1 646 914 together with interest on
this amount at a rate of 15,5% from the date
of summons to the date
of payment.
b) The defendant is
directed to furnish the plaintiff with an undertaking in terms of
section 17(4)(a) of the Act.
c) The defendant is
ordered to pay the plaintiffs costs, such costs to include the
preparation fees of all the plaintiffs expert
witnesses, and the
attendance fees of the two expert witnesses who gave testimony on
behalf of the plaintiff during the trial.
For the purpose of
determining the plaintiffs costs it is declared that the employment
of senior counsel by the plaintiff was reasonable
in the
circumstances.
JR MURPHY
JUDGE OF THE HIGH
COURT
Date Heard: 17 & 18
March 2010
For the Applicant:
Adv N van der Walt SC, Johannesburg
Instructed By: N
Kelly Inc., Johannesburg
For the Respondent:
Adv Ml Thabede, Pretoria
Instructed By: Iqbal
Mahomed, Pretoria