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[2011] ZAGPPHC 175
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Sukazi v Road Accident Fund (18928/2008) [2011] ZAGPPHC 175 (22 September 2011)
NOT
REPORTABLE
NORTH
GAUTENGHIGH COURT, PRETORIA ,
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 18928/2008
DATE:22/09/2011
In
the matter between:
SINDISWA
JUDICATE
SUKAZI
.......................................................................................
Plaintiff
and
THE
ROAD ACCIDENT
FUND
...................................................................................
Defendant
JUDGMENT
MATOJANE
J
[1]
This matter concerns only the quantum of the damages which the
plaintiff has suffered as a result of the injuries she sustained
in a
motor vehicle collision which occurred on 30 July 2006
[2]
The plaintiff, a grade 11 learner at the time of the accident was a
passenger in a minibus taxi, and was on her way home from
Ermelo
town. As the minibus taxi was crossing the intersection of
Jan
van Riebeeck and Fourie streets, a bakkie, ("the insured
vehicle") approached from the right hand side and came into
collision with the minibus taxi.
[3]
The plaintiff was attending school at the time of the accident. She
completed grade 12 the next year when she turned 18. She
failed grade
11 the year before the accident. Before the accident she was doing
average to below average. Post the accident, she
has no work
experience and her tertiary education is not complete.
[4]
I was advised at the commencement of the trial that I must make a
finding on general damages as the defendant has not made any
offer
despite conceding the merits 100% in favour of the plaintiff. In
addition the defendant has tendered to provide to the plaintiff
an
undertaking as envisaged in
section 17(4)(a)
of the
Road Accident
Fund Act, No. 56 of 1996
. This undertaking would provide for all the
plaintiff's future medical expenses.
[5]
What remains for decision is accordingly the plaintiff's loss of
future earning capacity and general damages.
[6]
There is no dispute as to the injuries, which the plaintiff sustained
in and as a result of the collision. A number of medico
legal reports
have been provided and I was advised at the commencement of the trial
that the parties are agreed that the medico
legal reports of Dr JH
Kruger, a Neuro Surgeon, Dr GGA Cappaert, an Orthopedic Surgeon, W
Van der Walt, an Occupational Therapist,
Dr Pretorius, an Industrial
Psychologist and Dr Leon Roper, a Clinical Psychologist, may be
admitted into evidence without the
necessity of calling these
witnesses. The parties are in agreement as to the correctness of both
the facts recorded therein and
the opinions set out therein.
[7]
These reports reveal that the plaintiff suffered the following
physical injuries in the collision:
1.
A soft tissue injury to her neck;
2.
A soft tissue injury to her left knee; and
3.
Post traumatic stress as well as symptoms of anxiety and mayor
depressive mood disorder.
[8]
As a result of these injuries the plaintiff continues to suffer from
the following sequelae:
1.
Attention and concentration deficits, slowed response speed
abilities, rite verbal learning deficits, forward planning and
problem solving deficits;
2.
A mild concussive head injury;
3.
Major depressive disorder;
4.
Poor cognitive work ability and coping skills; and
5.
Regular headaches and pain to her knee.
[9]
Immediately after the accident the plaintiff stated that she has been
unable to recall how she got out of the taxi, but has
been able to
recall lying on the ground next to the taxi. Her next recollection
has been of her in the casualty unit at Ermelo
hospital. Her
grandmother and uncle had been present when she came to her senses.
On examination no significant neurological findings
were made save
for a tender left knee according to the RAF medical report. She was
given analgesics and was dispatched home after
a day or two.
[10]
Dr Cappaert, an orthopedic surgeon, saw plaintiff on 21 April 2009
and reports that at the time of assessment, she presented
with a soft
tissue injury of the neck and tenderness over the patella region of
the left knee. He suggests conservative treatment
of her injuries and
does not foresee the possibility of surgery to her neck (less than
1%).
[11]
W Van Der Walt, the Occupational Therapist, reports that plaintiff
retains a painful left knee and pain upon back rotation.
Her
cognitive work ability is poor. She presents with distractibility and
poor concentration that negatively affects her memory.
Her ability to
absorb volumes of information on a given time is limited. Her
physical work ability is affected. When she had to
handle loads on a
frequent basis, she develops neck pain and becomes increasingly
reluctant to exert full effort because of ongoing
pain to her left
knee. She reports further that apart from the above, there are no
other physical [imitations that could impact
on her work ability. She
concludes that her ongoing cognitive problems and mild physical
problems would relegate her to seated
and light physical work. She
considers that plaintiff's oppositional and distractible behavior may
have been pre-existing. She
found that plaintiff has regained
sufficient ability to perform her functional tasks independently and
should be able to run a
household and maintain her living
arrangements as well as her living environment.
[12]
Plaintiff was diagnosed with a post traumatic stress disorder by Dr
Roper and he described her symptoms as follows: avoidance
behavior, a
loss of interest in debating and table tennis, flashbacks of the
accident, increased anxiety when travelling in a motor
vehicle,
especially a taxi and when she sees another vehicle approaching from
the side, concentration difficulties, increased levels
of
irritability, exaggerated startled responses as well as
hyper-vigilance when travelling in a motor vehicle since her
involvement
in the accident.
[13]
Dr Roper found that plaintiff presented with fluctuating simple
attention abilities, she experience working memory and double
tracking as well as sustained attention difficulties. In addition to
this, plaintiff has slowed psychomotor and mental response
speed
abilities. With regard to her executive functioning abilities,
forward planning and problem solving impairments were indicated.
[14]
According to Dr JH Kruger, a Neuro-Surgeon, the trigger for the post
traumatic stress disorder as well as the depression was
the
concussion that plaintiff sustained in the accident. From a
neurosurgery perspective, he agrees that the concussion could have
led to the neuro-psychological sequelae that developed after the
accident. He reports that plaintiffs complains of progressive
loss of
short-term memory as well as progressive problems with her
concentration are signs of a light concussion and the symptoms
will
improve with time. On these considerations I am asked to assess her
loss of earning capacity and general damages.
Loss
of earning capacity
[15]
I was referred to an actuarial report prepared by JHS du Plessis, an
actuary in which he has calculated the plaintiff's future
loss of
earning capacity on the basis of certain assumptions. The parties are
not in agreement as to the actuarial accuracy of
all the calculations
and the defendant submitted that there are no evidential basis
assumptions made by Mr du Plessis. Mr du Plessis
based his actuarial
calculations on the postulations by Dr Pretorius, an industrial
psychologist that plaintiff could have completed
a N6 before entering
the labour market in 2010 on Paterson B2 and over time her earnings
could have progressed in a straight line
to a median Paterson C3 at
age 48. The plaintiff failed to have her educational record
scrutinized by an educational psychologist
to ascertain her
pre-accident potential as well as her post-accident potential for
studies. There is no evidence before the court
to determine what the
impact of the accident on the plaintiff's scholastic functioning is,
save for the plaintiff's say so to the
industrial psychologist that
the accident affected her scholastic performance. The court is left
with no option but to speculate.
[16]
Nicholas JA, in Southern Insurance Association Limited v Bailey NO
1984 (1) SA 98
(A) at 113 noted that an enquiry into damages for
future loss of earning capacity is "of its nature speculative,
because it
involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augers or oracles. AN that the
court
can do is to make an estimate, which is very often a rough
estimate, of the present value of the loss."
[17]
He went on to note that two approaches to this enquiry were open to
the court. The first is to make a rounded estimate, an
approach which
he described as "entirely a matter of guess work, a blind plunge
into the unknown."
[18]
The second approach is to try to make a calculated estimate by way of
actuarial evidence as to the probable value of the loss.
In this
matter the parties do not agree on the assumptions, as there is no
evidence on the impact of the accident on the scholastic
performance
of the plaintiff. In my view, this is the case where the court has to
take a blind plunge into the unknown and make
a rounded estimate.
[19]
Given the lack of reliable evidence underpinning the assumption made
in the calculations, I am of the view that the calculation
is also
unreliable.
[20]
On the weighing of all these considerations, more particularly the
report by the neuro-surgeon that plaintiff's loss of short
term
memory and problems with concentration will improve with time, I am
of the view that a rounded figure of R200 000,00 in respect
of future
loss of earning capacity would be a fair and reasonable compensation
in the circumstances.
General
damages
[21]
There are no general rules to follow in determining the amount to be
awarded for general damages. Watermeyer JA, in Sandler
v Wholesale
Coal Supplies Limited
1941 AD 194
at 199 stated as follows:
"The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived
at must
necessarily be uncertain, depending upon the Judges view of what is
fair in all the circumstances of the case."
[22]
The injuries which the plaintiff sustained and the sequelae which she
has endured are set out and discussed above. I have given
careful
consideration thereto in endeavouring to assess a reasonable
compensation for general damages.
[23]
I have been referred to by the legal representatives of the parties,
to a number of previous decisions which they argued are
of assistance
in indicating a general trend of the value of awards in matters
comparable to the present. I have given careful consideration
to each
of these decisions, and regrettably, each of these differs on the
facts and considerations raised therein from the present
case.
[24]
I have considered the well-established principle that I should take
care to see that the award which I make is fair to both
sides so as
to give just compensation to the plaintiff, but not "to pour out
largesse from the horn of plenty at the defendant's
expense".
(Compare Pitt v Economic Insurance Company Limited
1957 (3) SA 284
(N) at 287).
[25]
On a consideration of all these factors and in particular the
injuries and sequelae sustained by the plaintiff as fully set
out
above I consider that an award of R100 000, 00 would represent a fair
compensation as general damages for shock, pain and suffering,
discomfort, disability, and loss of the enjoyment of the amenities of
life which the plaintiff has suffered.
[26]
In the result, the following order is made:
1.The
defendant is ordered to pay to the plaintiff R300 000,00 for damages.
2.
The defendant is ordered to provide to the plaintiff an undertaking
in terms of
section 17(4)(a)
of the
Road Accident Fund Act, No. 56 of
1996
within fourteen (14) days of the date hereof.
3.
The defendant is ordered to pay to the plaintiff interest on the
aforestated damages calculated at the legal rate from a date
fourteen
(14) days after the date hereof to the date of payment.
4.
The defendant is ordered to pay the plaintiff's costs of the suit as
taxed or agreed, on a party and party scale. Such costs
are to
include the costs of all reports of all experts of whom notice has
been given by the plaintiff in terms of
Rule 36(9)(a)
and (b) either
as agreed or allowed by the Taxing Master.
K
E MATOJANE
JUDGE
OF THE HIGH COURT