Aeschliman v Road Accident Fund (1378/07) [2009] ZAECPEHC 7 (7 April 2009)

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[2009] ZAECPEHC 7
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Aeschliman v Road Accident Fund (1378/07) [2009] ZAECPEHC 7 (7 April 2009)

FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, GRAHAMSTOWN JUDGMENT
PARTIES
:
TAMARA
LYNN AESCHLIMAN
Plaintiff
THE
ROAD ACCIDENT FUND
Defendant
Registrar:
Case
No.: 1378/07
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, PORT ELIZABETH
DATE
HEARD:
27
March 2009
DATE DELIVERED:
7
April 2009
JUDGE(S):
Kroon
J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s)/ Plaintiff:
Adv
P Eia
for
the Respondent(s) Defendant:
Adv
H J van der Linde
Instructing
attorneys:
Appellant(s):
Greyvenstein
Nortier Attorneys
Respondent(s):
Wilke
Weiss van Rooyen Inc.
CASE
INFORMATION -
Nature
of proceedings
:
Damages
claim
IN THE HIGH COURT OF SOUTH
AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No.: 1378/07
Date heard:
27 March 2009
Date
delivered:
7
April 2009
In the matter between:
TAMARA LYNN AESCHLIMAN
Plaintiff
and
THE ROAD ACCIDENT FUND
Defendant
J U D G M E N T
KROON,
J:
Introduction
This
action arises out of an incident that occurred on 20 March 2005
outside Port Elizabeth on the N2 road to Cape Town. The
plaintiff
alleges that she was in the driver’s seat of her vehicle while it
was being towed by another vehicle. As will appear
below, it is
implicit in the plaintiff’s evidence that her vehicle was involved
in some or other collision while it was being
towed. That is also
the allegation made in her particulars of claim. The plaintiff
sustained bodily injuries in the incident.
She instituted action
against the Road Accident Fund (“the Fund”) in terms of the Road
Accident Fund Act 56 of 1996 (“the
Act”), for the recovery of
damages arising from the aforesaid injuries.
The
plaintiff’s
evidence on the merits
The
plaintiff’s evidence proceeded as follows: She had acquired her
motor vehicle, an Opel Corsa, approximately one month
prior to the
incident. Before the vehicle was registered in her name it
underwent a roadworthy check by the dealership which
sold the
vehicle to her. On the day preceding the incident she travelled
from Cape Town to Port Elizabeth and spent the night
with a friend
of hers, Mandy, in Kwazak
hele.
The following day she left Port Elizabeth at approximately 08h30
to return to Cape Town.
She had
travelled along the N2 national road for but a few kilometres when
the vehicle started to “
steam
up
”
inside the cabin, the steam coming through the vents. A check of
the temperature gauge revealed that the engine was overheating.

She pulled over onto the shoulder of the road, in the vicinity of
the Cotswold off-ramp. When no other vehicle stopped
to render
assistance she decided to turn round and drive the vehicle along the
off-ramp to Cotswold. The vehicle, however,
started to steam up
again and she pulled over once more, this time facing Port
Elizabeth.
Another vehicle, a Ford,
came past and stopped in front of her vehicle. Three or four men
alighted and approached her. She
told them that the temperature
gauge showed that the engine had overheated. The men opened the
bonnet and wanted to put water
into the radiator. The radiator,
however, was full. The men then offered to tow her into town.
They
produced a rope made of synthetic material and some 5 or 6 metres
long. They tied the rope onto the tow bar in the centre
of the
rear of the Ford and to the tow eye of the Corsa in the centre of
its front. The plaintiff satisfied herself that the
rope was
securely tied to both vehicles.
She expressly stipulated to
the men the conditions under which she should be towed: the speed
was not to exceed 30 kph and one
of the men was to sit in the rear
of the Ford and keep a continuous eye on her and her vehicle. She
added that she expected
that the vehicles would travel on the
shoulder of the road.
While being towed her
vehicle had all four of its wheels on the road surface; the
ignition of the vehicle was on (but the engine
was not switched on);
the dashboard gauges were working and the brakes and gear shift
were operational; the hazard lights of
the vehicle were on; she
was able to, and did, steer the vehicle.
After the Ford pulled off,
the driver did not keep to a maximum of 30 kph. Instead, it
accelerated and according to the Corsa’s
speedometer reached a
speed in excess of 90 kph. When it accelerated it left the shoulder
of the road and proceeded to travel
on the road itself.
The plaintiff hooted and
indicated with downward movements of her hand, with the palm facing
downwards, to the occupants of the
Ford that they should slow down.
The Ford, however, failed to do so.
Under cross-examination the
plaintiff stated that she did change down her gears in order to
retard the convoy, but to no avail.
She did not, however, resort to
applying her brakes, either the footbrake or the handbrake. She
explained, in effect, that
had she done so a more dangerous
situation would have arisen as a result of both vehicles being
brought suddenly to a stop, which
could have precipitated an
accident involving both vehicles. This evidence was not
controverted nor even challenged. The plaintiff
further testified
that she could not recollect whether she sought to apply her brakes
when her vehicle veered to the right (as
to which, see below).
All of a sudden, after the
convoy had proceeded a kilometre or two, the Corsa veered violently
to the right: the plaintiff, who
hails from the United States of
America, testified that her vehicle was “
slingshotted
”
to the right. She attributed this to the manner in which the Ford
was driven, and postulated that the driver of the Ford
must have
changed the direction of travel of the Ford and so affected the
direction of travel of the Corsa, but she was unable
to say that she
actually observed something specific other than the speed of the
towing vehicle.
The plaintiff had no memory
of what occurred next, and, apart from a very vague recollection of
being in an ambulance, her next
recollection was being in Greenacres
Hospital and being taken for emergency care.
Condition
of the tyres on the plaintiff’s vehicle
The
plaintiff
testified that the tyres of her vehicle were in “
perfect
”
condition. However, when she subsequently went to look at her
vehicle at the premises to which it had been towed after the

accident she observed that it had other tyres which were smooth (she
described them as “
bald
”).
Her tyres as well as her personal belongings which had been in her
vehicle had been stolen. The vehicle’s battery had
also been
substituted with another. This evidence, too, was not challenged.
The
plaintiff’s recollection of the incident
A number of documents were
canvassed with the plaintiff under cross-examination which referred
to her recollection of the incident.
The first document, exh B, was
the hospital accident report form. It contained the
following
entry
: “
HOW
DID THE ACCIDENT HAPPEN? Patient has no recollection of the
accident.”
The plaintiff’s counter was
that she was rendered unconscious in the incident and that maybe for
a brief moment in the emergency
room at the hospital she was unable
in her traumatised state to remember what had happened.
I find that evidence to be
acceptable. It is supported by exh C, a further report by the
hospital’s accident and emergency unit,
which recorded that the
plaintiff was disorientated for time and place.
Counsel next referred to a
report compiled by Ms Bell, an occupational therapist from Cape
Town, who consulted with the plaintiff
during November 2007. It
recorded that the plaintiff had no recollection of the events of the
accident. The plaintiff denied
that she made such a statement to Ms
Bell and suggested that the latter might have based the comment on
what she had read in
the hospital records. It may also be noted
that the comment was preceded by a recordal of the fact that the
plaintiff reported
that she was in her vehicle while it was being
towed when the accident occurred.
Ms Melnick, a clinical
psychologist of Cape Town, assessed the plaintiff on 14 January
2009. In her report dated 5 February 2009
she recorded that the
plaintiff reported that her vehicle experienced mechanical
difficulties, that she stopped her vehicle,
that another vehicle
offered to tow her, that the latter vehicle started speeding causing
her to lose control of her vehicle,
that the last thing she recalled
was them speeding, her hooting and then waking up in the ambulance
with no further recollection
of the accident. The plaintiff
confirmed that the comments were in accordance with her evidence in
court save that she affirmed
that the last thing she remembers is
that her vehicle was “
slingshotted
”.
The plaintiff was also
assessed by another clinical psychologist, Ms Burke, on 18 February
2009. The report of the latter recorded
that the plaintiff reported
that she had stopped at the side of the road due to a mechanical
fault in her vehicle, that she took
the offer of a tow by a passing
vehicle, that the latter drove too fast and she had no control over
her vehicle, that her only
memory was of her waving her hand in an
attempt to indicate to the other vehicle that it should reduce
speed. The plaintiff’s
testimony was that she told Ms Burke what
had happened and she again affirmed that her last recollection was
of the “
slingshot
”.
In further response to the
above cross-examination the plaintiff confirmed under re-examination
that she had made an affidavit
dated 27 October 2006 which was
submitted to the Fund. The contents thereof were substantially in
accordance with her evidence
in court save that it contained the
further averments that the towing vehicle veered slightly to the
left, that her car was propelled
to the right and alongside the
towing vehicle and then went into a spin and hit a concrete side
wall. In the light of the plaintiff’s
evidence in court it would
seem that there are a number of possible explanations for these
further averments. The first is that
they were remembered by her at
the time of making the affidavit but she is now no longer able to
recall same. The second is
that the averments were based on what
the plaintiff had heard from other persons. The third is that the
averments are to be
attributed to reconstruction on her part.
Be that as it may. The
circumstance that the affidavit was made and submitted to the Fund
well before the plaintiff was assessed
by any of the expert
witnesses referred to above (to which the plaintiff’s evidence on
the contents of the reports should be
added) effectively precluded
the Fund from relying on the reports as supporting a contention that
the plaintiff in fact did not
recall how the incident occurred.
Two further aspects were
canvassed with the plaintiff. They arose from the contents of the
police accident report, exh A. It
recorded that the original report
had been misplaced and a duplicate report was accordingly completed
on 26 October 2005. The
description of the accident contained in
the report may be restated as follows: the plaintiff’s vehicle
broke down due to
mechanical failure, assistance was given by the
Ford which towed the Corsa, the plaintiff lost control of her
vehicle and overtook
the Ford and then collided with it. The source
of the information on which the description was based was not
disclosed. The
plaintiff was unable to confirm whether or not a
collision between the two vehicles occurred. In my judgment it is
unnecessary
to resolve this issue.
The second aspect arising
out of the exhibit is that it reflects that Mandy was an eye witness
to the incident. It was also put
to the plaintiff by Mr
van
der Linde
, for
the Fund, that his instructing attorney had been in telephonic
contact with Mandy and had been advised by her that she had

travelled with the plaintiff in her vehicle until it broke down and
that when the towing exercise was undertaken Mandy was a
passenger
in the Ford. The plaintiff’s response was that it was not her
recollection that Mandy had accompanied her that morning
and she was
initially quite adamant on the point. However, she eventually
conceded that if Mandy stated that she was present,
then that must
be so. Again, the issue does not require resolution. It was not
argued that any adverse inference should be
drawn against the
plaintiff for failing to call Mandy as a witness.
The defendant’s plea
In its original plea the
Fund pleaded that it had no knowledge of the incident and
accordingly denied that the collision occurred
and further denied
that the collision in question was caused by the negligence of the
driver of the Ford. It therefore denied
liability to the plaintiff.
In an amended plea filed
subsequent to the completion of argument (but which Mr
van
der Linde
foreshadowed during argument) the Fund raised two further issues:
(a) It pleaded (in the
alternative) that in the event of it being found that a collision
occurred, and that the Fund is liable to
the plaintiff for damages,
the plaintiff’s claim is limited to the sum of R25 000,00 by virtue
of the provisions of s 18(1)(b)
of the Act in that the plaintiff was
being conveyed in or on the motor vehicle concerned.
(b) The Fund further pleaded
(as an alternative to the defences referred to in paragraphs 22 and
23(a) above) that in the event
of it being found that a collision
occurred and that the plaintiff was the driver of the Corsa, the
collision was caused in part
by the negligence of the plaintiff who
failed to exercise proper control over her vehicle.
It may be mentioned that in
written submissions on the amendments Mr
Eia
,
for the plaintiff, indicated that the additional defences raised
were unexpected, but he did not formally object to the amendments.

In fact, the cases of
Mkhize
and
September
,
referred to below, were debated during the oral arguments and again
in the further written submissions lodged by both counsel.
The
contentions of the parties
In argument of Mr
van
der Linde
appeared to suggest that there may be a question mark on the
reliability of the plaintiff’s memory. In the light of the

evidence discussed earlier counsel acted responsibly in not pressing
the point. Counsel’s argument then proceeded on the basis
that
the plaintiff’s factual averments were to be accepted, including
the averment that a collision occurred. That, too, was
a
responsible attitude. The same comment applies to counsel’s
concession that on an acceptance of the plaintiff’s factual

averments the causal negligence of the driver of the Ford in
relation to the collision was established. He, however, contended

that contributory negligence on the part of the plaintiff had also
been established.
However, before this
last-mentioned issue is addressed it is logical to consider first
the issue raised in the Fund’s amended
plea referred to in
paragraph
23 (a) above:
whether the plaintiff was being conveyed as a passenger in or on
the vehicle concerned at the time of the collision,
and therefore
whether her claim is limited to the sum of R25 000,00 (in respect of
the items of damage referred to in s 18(1)(b)
of the Act)..
The relevant part of the
section provides as follows:
“
The liability
of the Fund ….. to compensate a third party for any loss or damage
contemplated in section 17 which is the result
of any bodily injury
to or the death of any person who, at the time of the occurrence
which caused that injury or death, was being
conveyed in or on the
motor vehicle concerned, shall in connection with any one occurrence,
be limited, excluding the cost of recovering
such compensation …..
(a) (inapplicable);
(b) in the case
of a person who was being conveyed in or on the motor vehicle
concerned under circumstances other than those referred
to in
paragraph (a), to the sum of R25 000,00 in respect of loss of income
or of support and the costs of accommodation in a hospital
or nursing
home, treatment or the rendering of a service and the supplying of
goods resulting from bodily injury to or the death
of any one such
person, excluding the payment of compensation in respect of any other
loss or damage.”
S 20(1) of the Act reads as
follows:
“
For the
purposes of this Act a motor vehicle which is being propelled by any
mechanical, animal or human power or by gravity or
momentum shall be
deemed to be driven by the person in control of the vehicle.”
Mr
van
der Linde
invoked
the decision in
Road
Accident Fund v
Mkhize
2005 (3)
SA 20
(SCA). In that case a break-down truck (driven by one
Lehmkuhl) with a disabled tanker in tow (in which the plaintiff was
seated
in the passenger seat of the cabin) was involved in a
collision due to the sole negligence of Lehmkuhl, resulting in
bodily injury
to the plaintiff. The question that arose for
decision was whether the tanker (as well as the tow truck) was being
driven by
Lehmkuhl.
Paragraphs 4, 5 and 7 of the
judgment read as follows:
“
[4] A driver
obviously drives a vehicle when he or she propels it by manipulating
its controls. A
AAAA
person
who
is
not, within the ordinary meaning of the term, 'driving' a vehicle,
but is nevertheless in control of a vehicle being propelled
by
mechanical, animal or human power, or by gravity or momentum, is by s
20(1) of the Act deemed to be the driver of that vehicle.
Section
20(1) reads as follows: 'For the purposes of this Act a motor vehicle
which is being propelled by any mechanical, animal
or human power or
by gravity or momentum shall be deemed to be driven by the person in
control of the vehicle.
A
person who is in control of a vehicle is the one who 'can make it
move or not as he pleases'.
[1896]
AC 57
(HC) at 67. The expression was used by Lord Herschell in
attributing fault to a railway employee who had improperly scotched
the
wheels of a railway truck causing it to run away.
Since
the tanker was at the time of the occurrence a vehicle being
propelled by the mechanical power of the tow truck and W J Lehmkuhl,

the driver of the tow truck, was the one who could make it move or
not as he pleased, Lehmkuhl is deemed to have been its driver.
[5] Someone
who is deemed to be the driver of a vehicle is in law, although
perhaps not in fact, the driver of that vehicle and
must be treated
as though he or she were manipulating the controls and making it
move. Lehmkuhl, the driver of the tow truck, was
also the (deemed)
driver of the tanker because he was in control of it. He was the
driver of two vehicles at the same time. There
is nothing unusual
about that. We often speak of the driver of a horse and trailer or
the driver of a car and caravan.
……..
[7] Where a
driver drives two vehicles at once, the expression 'conveyed in or on
the motor vehicle concerned' refers either to
the vehicle that he
actually drives or to the one he is deemed to drive, or perhaps even
to both of them ……..”
In
September
v
Road
Accident Fund
2007 (1) SA 159
(SECLD)
Jones
J had occasion to consider the applicability of the decision in
Mkhize
to the facts of the case before him. The plaintiff’s husband
sustained fatal injuries when the vehicle in which he was travelling

overturned while it was being towed by another vehicle driven by one
Constable. The competing contentions were: on behalf of
the Fund,
that the deceased was being conveyed in or on the vehicle concerned:
on behalf of the plaintiff, that the deceased
was the driver of the
vehicle being towed.
In
paragraph
6 of the
judgment it was accepted that in terms of
Mkhize
Constable was the driver of the towed vehicle and he was also deemed
to be the driver of the vehicle being towed. It was nevertheless

held that the Fund’s argument was unsound on the following
approach. Its argument incorrectly failed to appreciate that on
a
given set of facts the vehicle being towed may be driven by the
combined actions of the persons behind the steering wheels
of both
vehicles. The test laid down in s 20 is control: the person in
control is deemed to be the driver. Applying that test
to the facts
the Supreme Court of Appeal in
Mkhize
had concluded that the driver of the tow vehicle was the person in
control of the vehicle being towed, and hence he was its driver
as
well. On the facts the person behind the steering wheel of the
latter vehicle was a passenger.
It was pointed out by
Jones
J however, that the facts of the case before him differed entirely
from the facts obtaining in
Mkhize
.
In both cases a decision on a stated case was involved. The
judgment of the Supreme Court of Appeal did not fully set out
the
facts in the stated case. However, the stated case was reproduced
in the judgment of the Provincial Division. They were
as follows:
An articulated tanker broke down. The tanker was attached to the
tow vehicle by means of a rigid metal bar. For
it to be towed by the
tow truck the drive shaft of the tanker was disconnected and the
front wheels were raised from the ground.
Although the driver’s
seat of the tanker was occupied by the plaintiff’s co-driver he
had no control whatsoever of the driving
of the tanker. Hence, the
plaintiff and his co-driver were passengers in the tanker which was
also being driven by the driver
of the tow truck.
The judgment in
September
continued as follows in
paragraphs
8 and 10:
“
[8] The facts
of this case are entirely different. The drive shaft of the vehicle
being towed was not disconnected, its steering
mechanism was fully
operational, and all four wheels remained on the road surface at all
times. It was not attached to the tow
vehicle by a rigid metal bar.
It was connected to the tow vehicle by means of a tow-rope or chain.
Forward propulsion was provided
by the tow vehicle. The deceased was
not a passive passenger. He was in the driver's seat of the towed
vehicle for a purpose. He
was obliged to steer the towed vehicle, he
was able to apply its brakes, if necessary, to slow it down or stop
it, and he was able
to operate its gears. In these circumstances it
seems to me that the combined actions of the driver of the tow
vehicle and the
towed vehicle were jointly necessary for the exercise
of proper control over the towed vehicle. The driver of the tow
vehicle provided
forward propulsion and manipulated the speed and
overall direction of the two vehicles. The driver of the towed
vehicle steered
it to ensure that it followed a safe course behind
the tow vehicle and to prevent it from drifting out of control.
Furthermore,
he performed the essential function of braking
(a)
to
prevent the towed vehicle from overtaking or driving into the rear of
the tow vehicle when it reduced speed and
(b)
to
keep the tow-rope taut while the tow vehicle free-wheeled downhill
(in which event he alone controlled the downhill speed of
both
vehicles). I am of the view that when he performed these functions he
was in control of the vehicle being towed within the
meaning of s
20(1), and he is deemed to have been the driver thereof. I do not
believe that it makes any difference to this conclusion
that the
driver of the tow vehicle was also a driver of the vehicle being
towed. I would merely add that as a general proposition
it would be
quite unthinkable for a person to attempt to tow a vehicle on a
public road using a slack rope or chain without somebody
occupying
the driver's seat of the vehicle in tow to keep it under proper
control.
……
..
[10] It
follows from what I have said that the deceased's vehicle was being
driven under tow by both Constable and the deceased,
who both
performed functions which were essential to maintaining proper
control over it. It seems to me that just as it is possible
for one
person to be deemed to be the driver of two vehicles at the same
time, so also is it possible for two persons to be deemed
to be the
driver of one vehicle at the same time. I think that this is properly
accepted for a number of purposes in the law. An
example is the
provisions of reg 330 of the National Road Traffic Regulations, 2000,
promulgated under the National Road Traffic
Act 93 of 1996.
Regulation 330
(c)
prohibits
a vehicle from being towed unless its steering gear is controlled by
the holder of a driver's licence in circumstances
where its steerable
wheels are not being carried clear of the ground and it is not
connected to the towing vehicle in such a way
that its steerable
wheels are controlled by the towing vehicle. This implies that it is
being driven not only by the driver of
the tow vehicle but also by
the person behind the wheel of the vehicle being towed. Why require a
valid driver's licence if the
person in the vehicle being towed is
not a driver? Also, a person could not be convicted of driving a
vehicle under tow without
a valid licence or while under the
influence of intoxicating liquor if the vehicle is regarded as being
driven solely by the driver
of the tow vehicle. See
R
v Kaperi
1960
(1) SA 216 (SR)
(
1960
(2) SA 163 (FC)
); and
S
v Ekstraal
1981
(4) SA 406
(C)
.”
In
paragraph
4 of the
judgment the learned judge referred to the acceptance by the parties
that if the deceased were a driver he was not being
conveyed in or
on the vehicle within the meaning of s 18(1)(b). This was
done on the basis of the definitions of ‘
convey’
and ‘
driver’
in s1 of the Act and the wording of ss 17 and 18 drawing a clear
distinction between a driver of a vehicle and a person being

conveyed.
In
paragraph
11 this
approach was endorsed by the learned judge.
Mr
van
der Linde
sought
to persuade me that in the light of the judgment in
Mkhize
the approach adopted in
September
was incorrect in law. I am, however, bound by the decision in the
latter case unless I am persuaded that it is clearly wrong.
I am
not so persuaded; on the contrary, I align myself with the reasoning
of
Jones
J in drawing a distinction between the case before him and
Mkhize
and in the approach he adopted.
The facts of the present
case are substantially on a par with those that obtained in
September
.
Following the approach in the latter case the plaintiff was a
driver of her vehicle (even if at the same time the driver of
the
Ford was also a driver of her vehicle) and she was accordingly not
being conveyed as a passenger in or on her vehicle.
The provisions of s 18(1)(b)
of the Act are therefore not of application to the plaintiff’s
claim and it is not limited as
contended for by the Fund.
I turn now to consider the
partial defence raised by the Fund that there was contributory
negligence on the part of the plaintiff
in relation to the
collision.
It requires immediately to
be stated that the onus of establishing such contributory negligence
rested on the Fund.
In his written submissions
Mr
van der Linde
relied on a single contention: the plaintiff admitted that she
failed to take what counsel stamped as the most basic precaution

available to her – the application of her footbrake, a failure
that was all the more surprising in the light of her evidence
that
the towing vehicle was accelerating all the time, and it must
therefore have been clear to her that the driver of the Ford
was not
going to heed her instructions. It was submitted that the
plaintiff’s evidence that braking would cause a more dangerous

scenario was without foundation, amounting to no more than the
opinion of a lay person.
Mr
Eia
countered with a reliance on the fact that the plaintiff’s
evidence was neither challenged nor controverted.
However, I perceive the
position to be that even in the absence of a challenge or
controversion it nevertheless remains incumbent
on me to consider
what weight, if any, is to be attached to the plaintiff’s
evidence. That is not to say that the absence
of a challenge or
controversion has no importance. Fairness required the plaintiff to
be apprised of the fact that the Fund
intended to argue that her
explanation would be contested and that it would be contended that
she had been negligent in not applying
her brakes.
One can only speculate what
further considerations would have been raised by the plaintiff had
she been required to do so. Eg,
she might have dealt with the
extent to which the synthetic rope’s length was reduced by the
fact that portion of the rope
had to be utilised on both ends for
the purposes of tying it securely to both vehicles, with a
concomitant reduction of the distance
between the two vehicle while
the towing exercise was undertaken, and how that would have impacted
on the safety of an application
of her brakes.
In the absence of anything
more I am unable to hold that the Fund has discharged the onus of
showing that the attitude of the
plaintiff in respect of the
application of her brakes was unreasonable and that she was
accordingly negligent in not applying
her brakes.
I hold accordingly that the
Fund is liable to the plaintiff for the full amount of the damage
proven by her.
The quantum of the
plaintiff’s damage
Past medical expenses
The quantum of this claim
was agreed in the sum of R94 540,72.
Future medical expenses
The Fund has indicated that
it will furnish the plaintiff with an undertaking as envisaged in s
17(4)(a) of the Act. Provision
will be made therefor in the order
set out at the end of this judgment.
Past loss of earnings
The claim under this head
was abandoned by the plaintiff.
General damages
The
parties agreed that a number of reports by experts who had consulted
with/examined the plaintiff and made a
n
assessment of her history, present condition and her future
prognosis, could be admitted in evidence. The comments that follow

are based on the contents of those reports.
Relevant previous history
The plaintiff was born on 28
February 1985 and was accordingly 20 years old when she was involved
in the collision. Prior to
the accident she enjoyed good health.
She participated in a variety of sport and recreational activities,
such as volleyball,
basketball, tennis, squash, track and field
events, hiking, swimming, and daily workouts in a gymnasium.
She
completed high school in June 2003 at a school in Philadelphia,
United States of America, having distinguished herself as
an
outstanding academic, so much so that she was allowed by her
teachers to devise and undertake projects on her own, separate
from
others in the class.
She enrolled at the
University of Cape Town at the beginning of the academic year in
2005 to read for a degree in Politics, Economics
and Economics.
The collision, however, occurred a few weeks later and put an end to
those studies.
She had
also undertaken employment with a non-governmental organization
which aimed at assisting young unmarried mothers who had
contracted
HIV. It was for the purposes of this programme that she had
travelled to Port
Elizabeth
on the day preceding the accident.
The injuries sustained by
the plaintiff and the sequelae thereof
The plaintiff sustained the
following injuries:
a 1 cm laceration of the
upper lip, associated with short-lived mild concussion;
blunt trauma to the right
shoulder;
a compound injury to the
right knee consisting of:
a fracture of the medial
tibial plateau;
a rupture of the posterior
cruciate ligament;
a rupture of the
posterolateral corner ligaments.
Following
her admission to, and assessment at, Greenacres Hospital in Port
Elizabeth the lip and shoulder injuries were treated

symptomatically. Later the same day the fracture of the
tibial
plateau was stabilised operatively and the right leg was encased in
a plaster cast. She remained in the hospital for a
number of days
whereafter she was discharged to return to Cape Town. She was there
assessed by another orthopaedic surgeon.
He performed a further
operation on her for the reconstruction of the posterior cruciate
ligament and the posterolateral corner
ligaments. Bracing and
rehabilitative physiotherapy, including hydrotherapy, were provided.
Severe symptoms in the knee persisted,
however, and repeat
surgical procedures had to be undertaken. By early 2007 she had
undergone some six operations to the knee.
She was suffering
repeated dislocations of the knee joint and was required to use
supportive bracing to stabilize the joint.
Towards the end of 2007
the plaintiff consulted a third orthopaedic surgeon. Various
repeat investigations were done. In
January 2008 a double osteotomy
of the tibial plateau was done, with a bone graft being required.
She was then mobilised in
a brace, which she was still using when Mr
Sagor, an orthopaedic surgeon, assessed her during June 2008. The
plaintiff had
also been, and was still, undergoing rehabilitative
treatments with biokinetisists and a physiotherapist, which included
hydrotherapy,
cycling and resistance cycling.
Later in
2008, according to Mr Sagor’s report, the plaintiff consulted
another colleague who diagnosed a thoracic outlet syndrome
as the
cause of discomfort experienced in the right shoulder and arm.
Physiotherapy provided no relief and surgical exploration
of
the
area to release the thoracic outlet was suggested. Other reports
reflect that the plaintiff was, however, not keen to undergo
such
further operation. I return to this aspect below.
The laceration of the upper
lip has healed without leaving a scar.
At Mr
Sagor’s assessment of the plaintiff he recorded the
following
in respect of the right knee: The knee and the whole limb are in
normal alignment. There is a 14 cm lateral longitudinal
and a 6,5
cm medial longitudinal surgical scar on the knee. There are various
other smaller surgical and arthroscopy scars.
All the scars are
cosmetically obvious. There was 4 cm wasting of the girth of the
right thigh and 1 cm wasting of the right
calf, when compared with
the left leg. Clinically, the knee joint had normal flexion and
extension, there was no effusion, but
there was laxity of the
posterior cruciate and medical collateral ligaments. The plaintiff
walked with a right-sided limp despite
the use of a brace. Dr
Close, another orthopaedic surgeon who assessed the plaintiff
towards the end of 2007, but had regard
to additional information
that subsequently came to hand, and compiled her report towards the
middle of 2008, found, however,
that the plaintiff’s limp was
associated with a limitation of full extension of the knee. The
range of active movement of
the knee is from 0˚ to 125˚ compared
to a range of – 5˚ to 140˚ on the left side. Another expert
described the plaintiff’s
gait, favouring the right leg, as
bizarre.
In the
opinion of the orthopaedic surgeons who submitted reports on the
plaintiff she suffered a significant and devastating injury
to the
right knee. Further surgery to the cruciate ligaments may be
required. In the interim ongoing rehabilitative treatment
and
bracing will be required. In the long term the plaintiff will
probably require major surgery to the right knee once incapacitating

osteoarthritic changes had developed. The status of the knee was
that of a painful, unstable and weak joint with loss of articular

congruity, which will predispose the knee to further injury and
early post-traumatic osteoarthritis. This was likely, considering

the injury suffered, the numerous operative procedures already done
and the ongoing symptoms still being experienced. The surgery
would
consist in the first place of a joint replacement. In the second
place, in view of the plaintiff’s young age, at least
one revision
operation would be required thereafter and possibly more.
All the
reports dealing with the plaintiff’s physical condition consequent
upon the knee injury, and the prognosis in respect
thereof, both the
orthopaedic reports and the occupational therapy reports, reflect
that the plaintiff has been left, and will
continue to be left, with
significant sequelae. These include the inability to stand for long
periods or walking long distances.
Even sitting is uncomfortable.
She has constant pain in the knee, especially with prolonged
standing. The knee tends to give
way causing the plaintiff to fall.
The knee tends to swell. These aspects will limit her in the
future to sedentary/managerial/administrative
work. (This is in
addition to the extent that the injuries sustained by her have
affected what her work career would have been
to date and what it
will be in the future, aspects dealt with more fully below). She
has permanently lost, either completely
or substantially, the
ability to participate in the various sporting and recreational
activities referred to earlier, as also
such everyday activities
that require a knee the use of which has not been substantially
compromised. The plaintiff’s loss
of amenities is not to be
understated.
Dr Close
dealt more fully with the plaintiff’s symptomology relating to the
right shoulder. Since the accident the plaintiff
has complained on
and off of shoulder pain within an arc of 15˚ to 120˚, which is
indicative of an impingement syndrome. It
previously responded to
steroid infiltration. On clinical examination the findings were a
diffuse distribution of tenderness
– in the acromio-clavicular
joint, the anterior/posterior shoulder joint, the greater
tuberosity, etc. It was recommended
that the plaintiff consult an
orthopaedic surgeon with “
super-specialist
interest in shoulder surgery
”
for further management, probably a shoulder arthroscopy and further
surgical procedures identified thereby. An arthroscopic
debridement
of the acromio-clavicular joint may be undertaken at the same time.
As
regards pain and suffering, this would have been moderately severe
in the initial period following on the injuries sustained
in the
accident. All the operative procedures referred to above will have
brought cognizable pain and suffering in their train,
and the same
applies to future procedures that the plaintiff will have to
undergo. In addition, as revealed by the discussion
set out above,
pain and suffering has been and will continue to be a daily
companion of the plaintiff’s life.
The
plaintiff has, however, not only suffered
the physical sequelae referred to above in consequence of her
injuries. A neurologist, Dr Reid, also assessed the plaintiff
and
submitted a report, dated 16 February 2009. He recorded a litany of
further complaints: depression, neckache, interscapular
pain,
intense chronic daily headache associated with dizzy spells, panic
attacks, paresthesia of the arms, pseudotetany cramps
of the hands,
mood swings, irritability, general malaise, forgetfulness, inability
to concentrate, day time hypersomnolence,
interrupted nocturnal
sleep, loss of interest in pleasurable pursuits, loss of confidence
in driving a motor vehicle. These
complaints, together with the
pain in the plaintiff’s knee “
bedevil
”
her life. Complaints of a similar ilk were recorded by Ms Burke,
the clinical psychologist who assessed the plaintiff in
February
2009, and the other psychologists who submitted reports.
Dr Reid
further recorded that the plaintiff had since the collision
being
taking numerous compound analgesics such as Synap Forte and
Stilpane, up to eight per day. A neurologist had recently suggested

the commencement of Toplep as prophylaxis for the plaintiff’s
chronic pain syndrome. St John’s Wort had earlier been prescribed

for her mild depression.
Dr Reid
concluded that post traumatic stress precipitated the tension type
headache, neckache and bodily pains associated with
panic,
hyperventilation, pseudotetany and a major depressive episode. The
head, neck and bodily pains have been perpetuated
by incorrect
management. The frequent use of common analgesics precipitated a
drug rebound effect and tolerance to analgesics.
The complex
interplay between chronic pain, depression, the rebound effect of
analgesics resulted in melancholy and misery rendering
the plaintiff
unable to function effectively in her chosen social, professional
and domestic environment. The correct management
is discontinuation
of all common analgesics, continuation of Topiramate and the
addition of low dose Fluoxetine (Prosac). Physical
activity is to
be encouraged. Vitamin B12 should be supplemented parenteraly (the
plaintiff’s deficiency therein being probably
due to her
vegetarian diet). The above correct management should enable her to
resume her normal activities within a period
of two to three months.
Approach to assessment of
general damages
In
Sandler
v Wholesale Coal Supplies Ltd
1941
AD at 199
Watermeyer
JA is reported as follows:
“………
it
must be recognised that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in
an accident
by compensating him in money, yet there are no scales by which pain
and suffering can be measured, and there is no
relationship between
pain and money which makes it possible to express the one in terms of
the other with any approach to certainty.
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 judge's view of what is fair in all the
circumstances of the case
.”
In
determining what would constitute fair compensation in the matter
before it the court has regard to the circumstances of the
case,
previous awards made in cases which may be said to be broadly
comparable and the decrease in the value of money since those
awards
were made (as to which, see the tables prepared by
Robert
Koch
).
Awards in previous cases can, however, only offer broad and general
guidelines in view of the differences that inevitably
arise in each
case. (C.f.,eg,
Protea
Assurance Co Ltd v Lamb
1971
(1) SA 530
(A) at 535). In addition, regard should be had to the
following comments in
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA) at paragraphs 27 and 28.
“
[27] In the
Wright
case
(Corbett
and Honey
vol
4 E3-36) Broome DJP stated:
'I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher than

they were in the past. I believe this to be a natural reflection of
the changes in society, the recognition of greater individual
freedom
and opportunity, rising standards of living and the recognition that
our awards in the past have been significantly lower
than those in
most other countries.'
[28] The
Wright
case
at E3-34 - E3-37 is instructive. The learned trial Judge considered
all the relevant circumstances and
set
out in detail the reasoning that motivated the award.”
These
comments were tempered in the later case of
De
Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA) at 476 where, after noting that the tendency
towards increased awards in respect of general damages in recent
times was readily
discernible, the court stated that the principle
still remains that the award should be fair to both sides – it must
give just
compensation to the plaintiff, but it must not pour out
largesse from the horn of plenty at the defendant’s expense.
During
argument I was referred by counsel to a number of earlier cases
which were contended to be broadly comparable to the present
matter.
These included the following:
Witham
v Marshall and Jackson
(1957,
Corbett
and Buchanan
,
vol 1, 493);
De
Bruyn v Road Accident Fund
(2003,
Corbett
and Buchanan
,
vol 5, J2-69);
Pitt
v Pitt
(1971,
Corbett
and Buchanan
,
vol 2, 268);
Marungu
supra
;
Wright
v Multilateral Motor Vehicle Accidents Fund supra
;
Mance
v Road Accident Fund
(2001,
Corbett and Buchanan,
vol
5, J2-10);
Fortuin v Road Accident Fund
(2007,
Corbett and Buchanan,
vol
5, E5-1). I do not consider it necessary to burden this judgment
with an analysis of those cases and a comparison between
them and
the present matter. It is clear from the analysis and discussion
set out earlier regarding the nature and extent of
the injuries
sustained by the plaintiff and the sequelae thereof, (both past and
anticipated in the future) that she has sustained
extremely serious
loss as regards pain and suffering, disability, disfigurement and
enjoyment of the amenities of life. She
is entitled to fair
compensation in respect thereof. As indicated earlier the amount
thereof should, however, also be fair to
the Fund and I should guard
against sympathy for the plaintiff in this distressing case to
influence my assessment.
Counsel for the plaintiff
submitted that an award of R450 000,00 would meet the exigencies of
the matter. His opponent suggested
that a figure in the vicinity of
R200 000,00 would be more appropriate. In the result I fix the
amount in the sum of R300 000,00.
Future loss of earning
capacity
I have
earlier set out certain details of the plaintiff’s pre- accident
history. It may be added that, while still at school
she was
involved in NGO work. After completing school in America and coming
to South Africa in August 2003 to live with her
father she continued
with active community work tutoring at a school in Khayelitsha,
working as a doctor’s assistant in the
township and being involved
in the HIV clinic previously referred to. She was a sought after
speaker at many international conferences
where she was paid to
speak on topics regarding women and childcare issues and social
action.
Ms Burke records the
following comment on the effect of the accident on the working life
of the plaintiff:
“
The
effect on Tamara’s career pathway has been life changing. She was
unable to continue fulltime studies at UCT but is currently
enrolled
with UNISA. She is now financially dependent on her father and
physically dependant on her boyfriend including driving
as she is now
unable to drive. In an attempt to doing
sedentary work she has set up a “
high
end
”
bakery business and supplies several companies and restaurants with
confectionary. Her input to this business is erratic because
of her
orthopaedic problems”.
The
plaintiff’s father obtained a BA degree in Sociology. He is
a
director of NGO programmes, based in South Africa, for international
students. His skill level is “
Skilled/Managerial
”.
Her mother has a PhD, is a professor and Head of Department at
Phoenix University in Philadelphia. Her skill level is
“
Skilled/Professional/Academic
”.
(She has been diagnosed as schizophrenic). Her sister is reading
for an MA in education. Her skill level is “
Skilled
”.
(She has been emotionally unstable since the plaintiff’s parents
divorced some years ago). Her brother has a school leaving

certificate, moves from job to job and does semi-skilled work. (He
has had a mental breakdown).
At the
request of the parties the two industrial psychologists engaged by
them, Messrs Shaw and Crous, drew up a joint report
on the
plaintiff’s probable career path and probable range of earnings
had she not been injured in the collision and her probable
career
path and probable range of earnings post injury. By agreement
between the parties the data jointly presented by the psychologists

was adapted and an actuarial report on the basis of the adapted data
was commissioned by the parties.
As regards the plaintiff’s
income had she not been injured the actuarial report reflected the
agreement between the parties
in the following paragraph.
“
UNINJURED
INCOME
I have been
instructed to assume that the claimant’s career and income would
have progressed as follows had the accident not occurred
(in current
terms):
Dec
2011 Complete post graduate studies
Jan 2012 80% of
R250 000 per year (Paterson C1/C2)
Jan 2015 80% of
R361 750 per year (Paterson C3/C4)
Jan 2019 80% of
R573 000 per year (Paterson D1/D2)
Jan 2023 80% of
R710 500 per year (Paterson D3)
Thereafter
I have assumed that the claimant’s income
would
have increased in line with inflation until her retirement at age
65.”
As
regards the plaintiff’s
income
post injury the report canvassed two scenarios. It is only
necessary to refer to the first scenario as it was on that
basis
that both counsel presented their arguments.
The relevant paragraph in the
report reads as follows:
“
INJURED
INCOME – SCENARIO 1
I have been
instructed to assume that the claimant’s career and income will
progress as follows now that the accident has occurred
(in current
terms):
Dec
2016 Complete post graduate studies
Jan 2017 80% of
R250 000 per year (Paterson C1/C2)
Jan 2021 80% of
R361 750 per year (Paterson C3/C4)
Jan 2026 80% of
R573 000 per year (Paterson D1/D2)
Thereafter I
have assumed that the claimant’s income will increase in line with
inflation until her retirement at age 65.”
Para 3.2 of the report reads
as follows:
“
Actuarial
assumptions used in determining the capital value of future incomes
Date of
calculation: 1 April 2009
Mortality table:
South African Life Tables 1985 – 94 (White females)
Net discount
rate: 2.5% per annum.
Interest rate:
8% per annum after all taxes.
Future earnings
inflation rate: 5.4% per annum.
………
..
Income Tax:
2009/2010 tables”
Neither
party challenged the validity of these assumptions for the purpose of
the calculations
or the calculations themselves (subject to appropriate
allowances being made for applicable contingencies).
The result of the actuarial
calculations is reflected as follows:
“
CAPITAL
VALUE OF LOSS OF INCOME – SCENARIO 1
Uninjured
Income
Injured
Income
Loss of
Income
Future
R7 665 700
R5 180 700
R2 475 000
TOTAL LOSS
OF INCOME
R2
475 000”
The
remaining dispute between the parties related to the contingency
factor that should be applied to the two income figures.
The contingency factor to be
applied must be assessed in the light of the facts of each
particular case.
Positive
factors in favour of the plaintiff in respect of her career and
income had she not been injured are the following: She
comes from a
family which (apart from her brother) has demonstrated a good work
ethic. She herself prior to the collision showed
that she was cast
in the same mould. She comes across as a presentable young lady
(notwithstanding the
emotional aftermath she has experienced as a result of the
sequelae of the injuries sustained by her). She engendered her

school teachers’ trust in her. She had acquired her driver’s
licence. Her intelligence appears to be cognizably above the

average range and she is a motivated and dedicated person. Her
history and make up indicate that she would have made a concerted

effort to qualify herself and secure employment. She might have
earned more than the figures assumed in the actuarial calculations.
Negative
factors arise out of the vicissitudes of life and include a variety
of possible events that could have made an inroad
into her earnings,
eg delay in completing her academic course; delay in securing
employment; supervening loss or suspension of
employment occasioned
by dismissal, retrenchment, marriage and motherhood, illness,
accident, and retirement or earlier death,
etc; the possibility that
her advancement in her career would not have been in accordance
with the bases utilised in the actuarial
calculation. Sight should
also not be lost of the fact that the period over which her loss of
earnings has been calculated is
the not insubstantial one of some 40
years.
Mr
Eia
pressed for a contingency allowance of 15%, adding that that was the
going rate for the scenario of application. It is so that
15% has
been accepted in many cases, but I am not persuaded that it is
acceptable to talk of a going rate. In many other cases
different
contingency factors were applied. As already stated each case must
be decided on its own facts. Mr
van
der Linde
submitted that a contingency factor of 20% would be more
appropriate
.
On an
assessment of the relevant circumstances I am persuaded that the
figure of 20% suggested by Mr
van
der Linde
would be fair to both parties. The actuarially calculated figure of
R7 665 700,00 in respect of “
uninjured
income
”
accordingly falls to be reduced to R6 132 560,00.
In
respect of the “
injured
income
”
Mr
Eia
placed reliance on the concluding paragraphs of the joint report of
the two industrial psychologists, which read thus:
“
Post
mva, recommendations are that contingencies are higher considering
her difficulties and the anticipated negative impact on
her gaining
and sustaining employment
.”
In
supporting this stance, and inviting me to fix the contingency factor
at between 30-35%, counsel referred
inter
alia
to the fact that the plaintiff still has to overcome psychological
problems, that she sustained devastating orthopaedic injuries,
will
have to undergo three knee replacement operations in the future and
will have to endure pain and other sequelae for the remainder
of her
life.
Mr
van
der Linde
argued that the contingency factor should be no higher than 5% more
than that allowed in respect of the “
uninjured
income
”.
He pointed, firstly, to the fact that the joint report and the
actuarial calculation retard the commencement of the plaintiff’s

working career by a period of five years. I am not persuaded that
the point is well taken. That is the accepted probable period
that
the plaintiff will now take to acquire the envisaged qualifications.
Secondly, counsel noted that the joint report and
the actuarial
calculations proceed on the assumption that the Paterson levels the
plaintiff will now achieve are already somewhat
lower than the
levels that it was assumed she would have received had she not been
injured. Again, the point is not persuasive.
As with the
“
uninjured
income
”
the levels postulated represent the realistic assessment of the
probable levels that the plaintiff will now achieve. And
on the
other hand it cannot, in my view, be gainsaid that with the sequelae
that the plaintiff has been left with there is in
the nature of
things a cognizably greater risk that the plaintiff will not achieve
what has been postulated than the risk applicable
to the postulated
“
uninjured
income
”.
The
positive and negative factors referred to earlier in a sense now
play reverse roles in the assessment of the contingency allowance
to
be applied. In pressing for a lower allowance to be fixed by reason
of the positive factors Mr
van
der Linde
stressed that the plaintiff has a proven track record, she is a
remarkable person who has shown remarkable resilience in the
face of
what she has had to face. It may also be mentioned that the period
in question is some five years less than that applicable
to the
“
uninjured
income
”.
On the other
hand, to the negative facts must be added the greater risk adverted
to in the preceding paragraph.
I am
persuaded that an allowance of 30% would be fair to both parties:
The actuarially calculated figure of R5 180 700,00 in
respect of
“
injured
income
”
accordingly falls to be reduced to R3 626 490,00.
The difference in the two
resultant figures is R2 506 070,00, and the plaintiff’s
entitlement to compensation for loss of earning
capacity is fixed in
that sum.
Conclusion
In the result I fix the
plaintiff’s entitlement to damages (in addition to her entitlement
to an undertaking in terms of s 17(4)(a)
of the Act) in the sum of
R2 900 610,72, made up as follows:
Past medical expenses
R94 540,00
Loss of earning
capacity R2 506 070,00
General
damages
R300
000,00
Order
Judgment is accordingly
given in the plaintiff’s favour against the defendant as follows:
(1) Payment of the sum of R2
900 610,72.
Interest on the said sum
at the legal rate calculated from a date 14 days after today’s
date until date of payment.
The
defendant shall furnish the plaintiff with an undertaking in terms
of s 17(4)(a) of Act 56 of 1996 to pay the cost of
future
accommodation of the plaintiff in a hospital or nursing home and
of future treatment of, or the future rendering of
a service or
the future supply of goods, to her arising out of the injuries
sustained by her in the motor collision in which
she was involved
on 20 March 2005, after such costs have been incurred and upon
proof thereof.
Costs of suit, such costs
to include:
the costs attendant on the
declaration of the plaintiff as a necessary witness;
the qualifying expenses of
the following: Dr V Close, Dr J Reid, Mr P Crous, Ms C Bell, Ms E
Burke, Ms L Durra, Ms M Melnick
and Mr A Munro.
__________________________
F KROON
JUDGE OF THE HIGH COURT
Appearances
:
For the
plaintiff: Adv P Eia
Instructed
by: Greyvenstein Nortier Attorneys
St George’s
House
140 Park
Lane
Port
Elizabeth (Ref: T Labuschagne/dvs/G08323)
For the
defendant: Adv H J van der Linde
Instructed
by: Wilke Weiss van Rooyen Inc.
Cavendish
House
2 Cuyler
Street, Central
Port
Elizabeth (Ref: R2244)