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[2010] ZAGPPHC 131
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Vand der Hoeck and Another v Road Accident Fund (17884/07) [2010] ZAGPPHC 131 (1 October 2010)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NUMBER: 17884/07
DATE: 01/10/2010
In
the matter between:
VAND
DER HOECK,
A
..................................................................
FIRST
PLAINTIFF
N,
EA
.............................................................................................
SECOND PLAINTIFF
And
ROAD
ACCIDENT
FUND
...............................................................
DEFENDANT
JUDGMENT
MAVUNDLA,
J.
[1]
This case is a sequel to a motor vehicle collision that occurred on
11 March 2006 at an intersection of Gordon and Harris Streets
in
Colbyn, Pretoria, between motor vehicle with registration number DHZ
445 GP, then and there driven by one D B, and motor vehicle
with
registration number RKH 330 GP, then and there driven by one S
Haggard, herein after referred to as the insured driver.
[2]
The first plaintiff sues in her capacity as the mother and natural
guardian of a then minor E A N who was born on 18 December
1987 and a
passenger in the motor vehicle with registration number DHZ 445 GP.
The second plaintiff is now a major over 22 years
old. The claim is
in respect of damages sustained by the plaintiffs as the result of
the injuries sustained by the second plaintiff
consequent to the
collision.
[3]
The defendant has since conceded that the insured driver was
negligent and that it is therefore 100% liable to the plaintiff's
proven damages. This concession, is in my view, wisely made, having
regard to the fact that the second plaintiff was a passenger
in the
insured motor vehicle, the plaintiffs needed to prove only 1%
negligence on the part of the insured driver.
[4]
The second plaintiff, according to the particulars of claim sustained
the following injuries as the result of the aforesaid
collision:
4.1
shattered teeth and displaced jaw;
4.2
lacerations to the forehead;
4.3
soft tissue injury of the neck and back; and
4.4
fracture of the left wrist and hand.
[5]
As the result of the aforesaid injuries, the first plaintiff claims
for payment of an amount of R21 674, 02 being the amount
spent at the
private hospitals together with doctors and medical costs incurred as
the result of the collision. In this regard
the plaintiff has
attached annexure "A" which is allegedly the index to the
medical accounts (paginated page 11). This
amount of R21 674, 02 has
since been agreed upon by both parties to be the damages suffered by
the first plaintiff in respect of
past medical expenses she suffered.
[6]
The amount claimed in respect of alleged damages as the result of
injuries sustained by the second plaintiff is an amount of
R900 000,
00 computed as follows:
6.1
future medical expenses R100 000. 00
6.2
future loss of earnings, alternatively loss of earning capacity R550
000. 00
[7]
The parties have settled the general damages in the amount of R150
000. 00. In respect of past future medical expenses the parties
have
agreed that the defendant will issue a certificate in Section
17(4)(a) undertaking in terms of the Road Accident Act, Act
56 of
1996. The outstanding issue is in respect of future loss of earning
capacity.
[8]
The parties have agreed that the medical reports of the expert
witnesses of the respective parties be handed in without calling
the
respective doctors, and that the contents of these reports are
accepted for what they purport to be. The same attaints with
regard
to the joint reports of the respective experts. Neither of the
parties called any witness. The matter had to be decided
on the
documents presented at Court.
[9]
The second plaintiff was on the day of the accident the 11 March 2007
admitted at Eugene Marais Hospital. X-rays were taken
but he was not
admitted.
1
After receiving treatment, the second plaintiff, according to Dr.
Birrel's report, was subsequently admitted to Unitas Hospital
on 4
May 2007 until 5 May 2007 as a result of his scaphoid surgery. He
would have experienced acute pain after the accident for
2 or 3 days
and after his wrist surgery also for a further 2 or 3 days. He also
experienced moderate pain for 3 to 4 days as the
result of the
accident. The plaintiff has a 5% chance for neck surgery. His neck
problems have since abated. His wrist scaphoid
fracture has healed
well although excessive strain on the wrist when lifting heavy
objects might result in some pain.
[10]
The plaintiff has not as yet approached this Court for leave to have
what the parties have agreed upon made an order of the
Court. That
being the position, I am of the view that this Court is at liberty to
determine what is a just and fair amount for
general damages, vide
Griffiths v Mutual & Federal Insurance Co Ltd.
2
[11]
In De Jongh v Du Pisane NO
3
the Supreme Court of Appeal cited Holmes J in Pitt v Economic
Insurance Co Ltd
1957 (3) SA 284
(D) at 287E-F as saying:
'(T)he
Court must take care to see that its award is fair to both sides―it
must give just consideration to the plaintiff,
but it must not pour
out largesse from the horn of plenty at the defendant's expense.'
Conservatism in awards for general damages
has its origin in a need
that there should also be fairness towards the defendant and not in
miserliness of society towards the
plaintiff."
[12]
There is no doubt that the plaintiff suffered serious facial injuries
resulting at the loss of one of his incisors as well
as fractured
right wrists. Indeed he suffered pain. He had a previous fracture of
his right wrist sustained during roller blading
prior to the
accident.
4
It must be noted that the very right wrist is the one that he
complains of subsequent to the accident, and is the basis for his
alleged future loss of earning capacity. The plaintiff was not
wearing a seat belt at the time of the accident. A compensation
for
general damages is in essence a compensation for an intangible, the
pain endured and disfigurement, inter alia, that cannot
with
mathematical precision be measured and quantified in monetary terms
but a pure uneducated guess. The Courts must guard against
being over
excessive with the defendant's funds which are in essence public
funds.
[13]
The second plaintiff was not hospitalized for any significant period.
The duration of pain endured and also about to be endured
is not for
a prolonged period. In the circumstances I am of the view that the
agreed amount of R150 000. 00 in respect of general
damages is rather
excessive. Awarding damages in respect of moneys that are essentially
from public funds is a prerogative of the
Court. Such awards must be
proportionate to the injuries, as the Court deems meet. In the
exercise of my discretion, I am of the
view that in casu a fair and
reasonable amount for general damages should be an amount of R90 000.
00.
[14]
The reports of plaintiff's experts witnesses, whose reports have been
handed with the court bundle of joint reports. It needs
recorded that
neither party called any witness. The matter is therefore to be
decided on the material that has been placed before
the Court by
agreement.
[15]
The Minutes of joint meeting of the orthopaedic surgeons, Dr. VM
Close and DR DA Birrel reflect that the doctors are ad idem
that the
second plaintiff has a loss of work capacity as the result of the
accident in his present type of work of 7%. This does
not, however,
equal to a 7% gross straight-off loss of income, but certainly
represents an inconvenience at work, and at times,
pain, possibly
sick leave, etc, and the doctors agree that some form of compensation
is due to the second plaintiff in this regard
which should be
assessed, for example, by a consultation with an industrial
psychologist. The doctors are further agreed that the
second
plaintiff has a chance of requiring wrist surgery, particular a wrist
fusion (15% chance), which will increase his loss
of work capacity to
between 12% (Dr. Birrell) and 15% (Dr. Close). The doctors have
further opined that was the second plaintiff
to have a more sedentary
or supervisory work of a lighter nature his loss of work capacity
will not increase beyond the percentage
already given.
[16]
In her report Nortje opines as follows: "On personal perusal of
the X-rays, the scaphoid has been fixed in a good position
and there
is no evidence of degenerative change in the carpus or in the distal
radius....The prognosis therefore is good and future
surgery to the
wrist such as radial styioidectomy or wrist fusion is considered
unlikely; (15% chance)
5
.
[17]
According to the plaintiffs neurosurgeon Dr. Jacques J Du Plessis,
although the second plaintiff sustained head injury it is
unlikely
that this would result in neurocognitive impairment. The fact that
the second plaintiff has not resumed his studies, the
doctor is
reluctant to blame this to the accident, vide par 6.3.
[18]
According to the second plaintiffs industrial psychologist Cecil J
Nel, the second plaintiff has a poor motivation and would
probably
continue with his lackadaisical approach to his studies. "At the
time of neither the accident he was employed nor
a student. Further
career progress with a Grade 10 (Std 08) education would have been
minimal and, as indicated, confined to job
content at the level of
Paterson Grade B1 (at best) likely in the semi-formal sector. It is
highly improbable that he would have
been able to enter the formal,
corporate sector with a Grade 10 (Std) 08) education." The entry
level with grade 10 is A1
and ultimate level B1, vide page 64-65 of
Nel's report.
[19]
The joint report of the industrial psychologists, E Noble and C Nell,
is dated 11 March 2006. These industrial psychologists
are agreed
that the second plaintiff with his present academic qualifications
his work progress will lead him to a post Paterson
B2 (according to
Noble) and B1/B2 (according to Nel). They are both agreed that the
second plaintiff has the intellectual ability
to pass grade 12 in
which event if he ever obtains such qualification he will progress to
Paterson B4 level.
[20]
Both industrial psychologists point that the second applicant was as
from 7 January 2008 employed at Rob's Discount Tyres as
a counter
salesperson with a basic salary of R6 480 per month, plus a
commission and a 13th cheque. They are further agreed that
he is
physically handicapped as the result of the fact that he could not do
medium to heavy tasks. They are not certain that his
work would not
in the future require of him to do more physical tasks. It needs
however be pointed out that the second plaintiff
is currently a sales
assistant and storerman and has undergone computerized storekeeping
and ordering system and largely based
at the counter as a cashier/
salesperson
6
.
This in my view negates any possibility of the plaintiff having to do
in the future any job that would require of him to lift
heavy objects
that might affect his injured wrist. The probabilities are very high
that he would retain his current work and progress
there within, thus
discounting the views of Dr. Birrell on the 12% he has referred to,
vide herein below.
[21]
According to the joint report of the orthopedic surgeons Dr. V. M.
Close and Dr. D.A Birrell the second defendant sustained
bruising of
the face and also, according to the second plaintiff, lost one lower
incisor, and also injured his cervical spine.
The fracture of the
scaphoid did not initially heal and required surgery. It is further
recorded in this joint report that the
second plaintiff works for Rob
Tyres as a salesman, but has to carry tyres to and fro the storeroom
and at times helps with arriving
stock.
[22]
It is agreed by both orthopedic surgeons that the second plaintiff
has a loss of work capacity as a result of the accident
in his
present type of work of 7%. This does not, however equal to a 7%
gross straight-off loss income, but certainly represents
an
inconvenience at work, and at times, pain, possibly sick leave etc.
In respect of the assessment of the compensation the two
doctors,
wisely deferred to an industrial psychologist. The doctors are also
agreed that the second plaintiff has a chance of requiring
wrist
surgery, particularly wrists fusion (15% chance) which will increase
his loss of work capacity to between 12% (Dr. Birell
and 15% (Dr
Close). They further opine that if his work became more physical in
future, the second plaintiff's percentage loss
of work capacity could
increase, although he could engage in more physical activity if
forced to by circumstances, but he should
choose to follow a less
physical work. If his work becomes more sedentary or supervisory and
was of a light duty nature, his loss
of work capacity will not
increase beyond the given percentages.
[23]
In their joint report the occupational therapists Ms Lee Randall and
Ms Lowinda Jaquire, agree that the capacity of the second
plaintiff
to perform light work with occasional medium work tasks matches the
broad requirements of his present job description
as a salesperson in
tyre company. They are also agreed that he is constrained in relation
to heavy work tasks (e.g. handling of
tyres for heavy vehicles and
even for medium work tasks he will need to follow precaution in
relation to his right wrists.
It
is further anticipated by these occupational therapists that the
condition of the second appellant will deteriorate over some
time and
that he will become less able to perform medium work tasks, depending
on whether he would need the wrists surgery. They
however hope that
his natural progression at work will move him to into a more purely
sales oriented or supervisory tasks. They
are agreed that he would
have difficulty with highly physical-oriented tasks, like being an
exhaust fitter.
The
occupational therapists have recommended that the second plaintiff
should be provided to cover the costs of 'assistive' devices
in the
work place. These would enhance his comfort and productivity. The
specific devices needed, will be determined by his treating
occupational therapists on the basis of his work duties at the time,
and could include devices like a raised computer keyboard
with wrists
supporting, a rolling workshop box or multi-purpose trolley on which
to transport objects around the workplace. A life
time allowance in
the amount of R4 000 is recommended.
[24]
Dr. Birrel, the plaintiffs orthopedic allocated 7 to 8% loss of
earning capacity as the result of the accident. He further
opined
that in the event the plaintiff were to have a fusion of his wrists
his loss of work capacity would increase to 12% while
Dr. Cost places
this possibility at 15%.
[25]
The plaintiff's future loss of income, on plaintiff's version has
been calculated at the Paterson B4. It has further been submitted
that there is a need for a bigger contingency because in 10 years
time the second plaintiff might need a wrist surgery. The net
loss of
the plaintiff was calculated at an amount of R260, 436. 00.
[26]
It must be accepted that the second plaintiff at the time of the
collision was 18 years old. He began grade 11/12 in 2005 via
home-schooling and managed to write only 2 of 6 subjects at the end
of the year, and attributed this slow progress to "laziness".
7
"At the time of the accident Mr. Nortje was busy with his
education through home schooling, but he has not resumed these
studies post-accident (not entirely due to the accident-related
reasons, as he evidently had pre-accident difficulties with
self-discipline
required of home-based learners."
8
[27]
The evidence placed at my disposal reveals that the second plaintiff
is not a highly motivated person. In my opinion the view
expressed by
Noble and Nel that the second plaintiff may progress to a post
Paterson B2 or B1/B2 is rather too optimistic and does
not accord
with what his past reveals of him. He is not a motivated person, so
his past reveals. I am not persuaded that the second
plaintiff will
progress beyond grade 10 and qualify to be at Paterson B4. I am of
the view that the quantification of his loss
of earning must be
perked at Paterson B2.
[28]
The defendant calculated the second plaintiff's future loss of
earning capacity on plateau Paterson B2 and applied a 20% contingency
deduction and a 24% contingency deduction the value of the income
premobid for the first 10 years averaging a difference of R38
361.
36. Thereafter the defendant applied a contingency deduction of 20%
and 25% on the projected income of R2204, 433 and R2195,
779.00
respectively to get an average difference of an amount of R116,
712.15. The respective average net losses were combined
to arrive at
a total loss of R155, 073.
[29]
The parties have also furnished me with an alternative joint
calculation based on career plateau Paterson as submitted by the
defendant and by applying the contingency submitted by the plaintiff.
On this calculation the total loss of the plaintiff is R260,
436.00.
[30]
However, the evidence placed before me shows that the wrist of the
plaintiff has mended very well. Besides, the second plaintiff
had a
previous fracture of the said wrist resulting in him stopping his
sports activity. The accident, in my view merely aggravated
a
pre-existing injury. The plaintiff had to stop his sporting activity
before the accident. I am of the view that the defendant
should not
be burdened with any factor which arises outside the accident that
would have adversely affected the plaintiffs future
work capacity. It
does not seem that in calculating his future loss of income the
aspect of his pre-accident injury was factored
in. For this reason, I
am of the view that the contingency submitted by the plaintiff are
exaggerated and there is a need to work
on a higher contingency,
particularly, as the defendant has done, vide Krugel v Shield
Versekkeringsmpy Bpk
1982 (4) SA 95
at 104H-105F.
[31]
It must be borne in mind that there is no mathematical process of
determining what is an appropriate contingency percentage
to be
employed at any given instant and this depends on the individual
circumstances of a case, vide De Jongh v Du Pisane NO
9
.
Even the mathematical computed figures, are an educated guess
without a crystal ball to peer into the future. But because
I do have
figures presented to me, I am of the view that I am at liberty in the
exercise of my discretion to accept, as in this
instance, the figures
of the defendant, rather than bring my own global guess figure. I am
of the view that the alternative calculation
is flawed because it has
not taken into account the pre-accident injuries of the plaintiff,
besides the contingencies employed
by the plaintiff are inaccurate.
The contingencies that I would have employed, so as to cater for the
pre-accident injury of the
plaintiff and his lackadaisical or lack of
motivation, would have been more or less the same with those employed
by the defendant.
In the premises I am of the view that it is prudent
and fair to accept the calculations of the defendant. In the event I
was to
venture a global figure, it certainly would not have exceeded
the amount calculated by the defendant. In the premises I am of the
view that an amount of R150 000. 00 as compensation for the second
plaintiff's future loss of earning capacity is fair and reasonable.
[32]
In the result I am of the view that the amount of R155, 073.51 as
calculated by the defendant is fair and reasonable to compensate
the
plaintiff for his future loss capacity.
[33]
Consequently I make the following order: 1. That the Defendant is
ordered to pay:
1.1
to the First Plaintiff the sum of R21678. 32 (twenty one thousand
six hundred and seventy four rand and thirty two cents)
in respect of
past medical expenses; 1.2. to the Second Plaintiff:
1.2.1
In respect of general damages, the sum of R90 000 (ninety thousand
rand);
1.2.2
In respect of future loss of earnings/ earning capacity, the sum of
R150 000 (hundred and fifty thousand rand);
2.
That the aforesaid capital amount will not bear interest unless the
Defendant fails to effect payment on the specified date in
which
event the capital amount will bear interest at the rate of 15,5% per
annum calculated from and including the fifteenth calendar
day after
the date of this Order to and including the date of payment thereof;
3.
The Defendant will furnish the Second plaintiff with an undertaking
in terms Section 17 (4)(a) of Act 56 of 1996 in respect of
the future
accommodation of the Second Plaintiff in a hospital or nursing home
or treatment of or rendering of service or supplying
of goods to
her/him resulting from a motor accident on 11 March 2006, to
compensate the Second Plaintiff in respect of the said
costs after
the costs have been incurred and upon proof thereof;
4.
The Defendant will pay the Plaintiffs' party and party costs, on the
High Court scale, up to and including 24 August 2009 and
the 1
October 2010 as taxed or agreed, which costs will include;
4.1
Costs of counsel on senior-junior scale,
4.2
Costs of all medico- legal, actuarial and accident reconstruction
reports furnished to the Defendant.
4.3
The costs associated with joint meetings and minutes of the parties'
experts.
4.4
The full qualifying, preparation and reservation costs, if any, in
such amounts as the Taxing Master may allow, of the following
experts:
4.4.1
Dr J.J. du Plessis;
4.4.2
Dr D.A. Birrell;
4.4.3
Dr M. Mazabow
4.4.4
Dr D. Shevei
4.4.5
Dr B.White
4.4.6
Dr E.D. Fischer
4.4.7
Mr. KTruter;
4.4.8
Ms L Randall
4.4.9
Mrs E Noble;
4.4.10
Mr. G. Whittaker;
4.4.11
Prof G. Lemmer.
4.5
The reasonable traveling costs incurred by the Plaintiff in attending
the medico-legal examinations by both parties' experts,
in such
amounts as the Taxing Mater may determine.
5.
The amounts referred to in paragraphs 1.2 and 4 shall be paid to the
Plaintiffs' attorneys, Adams & Adams, by direct transfer
into
their trust account, details of which are the following:
Bank:
Nedbank, Pretoria
Branch
Code:
Account
Number:
Reference:
N
M MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGEMENT: 01 October 2010
PLAINTIFF'S
ATT : ADAMS & ADAMS
PALINTIFF'S
ADV : ADV J.F. GROBLER
DEFENDANTS' ATT :
MOTHLE JOOMA & SABDIA
RESPONDETS'
ADV : ADV R. STRYDOM
1
1
Paginated
page I37of Esme Noble's report.
2
1994
(!) SA 535 at 549A-C
3
2005 (5) SA 457
(SCA) at 476C-D
para [60].
4
Paginated
page 5 of report of Cecile Nel (Industrial Psychologist).
5
Paginated
page 10-15 of Dr. Close's report.
6
aginated
page 85 of the plaintiffs expert Lee Randall.
7
Vide
Report of Dr. M. Mazabow (clinical neuropsychologist) paginated page
21 and 23.
8
Paginated
page 109 of Lee Randall (occupational therapist) of the plaintiff.
9
supra)
at 472 paragraph [47].