Collier v Road Accident Fund (3708/06) [2009] ZAECPEHC 21 (7 April 2009)

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[2009] ZAECPEHC 21
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Collier v Road Accident Fund (3708/06) [2009] ZAECPEHC 21 (7 April 2009)

FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, POR ELIZABETH JUDGMENT
PARTIES
:
ROGER
THOMAS OLIVIER COLLIER
plaintiff
and
ROAD
ACCIDENT FUND defendant
Registrar:
CASE
NO 3708/06
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, PORT ELIZABTH
DATE
HEARD:
5
and 6 February 2009
DATE
DELIVERED:
07 April 2009
JUDGE(S):
SANGONI
J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s)/Applicant(s)/ Appellant(s):
Adv Nepgen
for
the Defendant(s)/Respondent(s):
Adv Pillay
Instructing
attorneys:
Plaintiff(s)/
Applicant(s)/
Appellant(s):
Ungerer
Struwig Hattingh
Defendant(s)/Respondent(s):
Ketse Nonkwelo Inc
CASE
INFORMATION -
Nature
of proceedings
:
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE, PORT ELIZABETH
CASE NO 3708/06
In
the matter between:
ROGER
THOMAS OLIVIER COLLIER
plaintiff
and
ROAD
ACCIDENT FUND
defendant
JUDGMENT
SANGONI
J:
INTRODUCTION
This is a claim for recovery of
damages against the Road Accident Fund (“the Fund”) in terms of
Act 56 of 1996 (“the Act”).
On
1 January 2003 the plaintiff was involved in a motor vehicle
accident where two vehicles collided. He sustained serious

injuries. The plaintiff was the driver of one of the vehicles
involved in the collision. The other vehicle was the insured

vehicle driven by one Mr Pause.
The current proceedings relate to
the assessment of damages only. In a judgment of this Court on 16
January 2008 the defendant
was ordered to pay the plaintiff such
damages as he may prove but such damages be reduced by 25%, having
regard to the plaintiff’s
degree of fault in relation to the
collision.
As set out in the amended
particulars of claim, the plaintiff’s total claim stands at R10
718 530,10, apart from interest and
costs. It is made up as
follows:
3.1 Past Hospital Expenses R
48,037.00
3.2 Past Medical Expenses R 60,493.10
3.3 Future Medical Expenses R 130,000.00
3.4 Past loss of income R 240,000.00
3.5 Future loss of income and/or loss of
earning capacity R9,840,000.00
3.6 General Damages R 400,000.00
What
remains
for determination is the issue of damages relating to the past and
future loss of income and/or loss of earning capacity.
The defendant
has conceded all the other claims. As shown above, the amount
claimed for past loss of income is R240,000.00 and
it is
R9,840,000.00 for future loss of income and/or loss of earning
capacity. For the future medical expenses the plaintiff
has
accepted an offer by the defendant to furnish an undertaking in
terms of section 17(4) of the Act to cover the claim.
The plaintiff was born on 3
September 1982. When he got involved in this accident
,
on 1 January 2003, he was about 20 years and 3 months old. He
matriculated from St Andrews College in Grahamstown in the year

2000. According to Doctor Meyer, a clinical psychologist, his record
shows inadequate diligence and self-discipline. He matriculated
even
though he obtained what is referred to as a ‘weak matriculation
exemption’. During the year 2002 he registered with
the
University of Port Elizabeth to study for B.Comm. in accounting.
According to the medico-legal psychological report of Dr
Holmes the
plaintiff’s academic “difficulties persisted with obvious poor
results” for the years 2001-2002. In his report
Dr Meyer records
that during this period the plaintiff did not manage to pass any
subjects. In 2004 he commenced study at Damelin
College. The
results were not made available for purposes of this exercise. In
2005 he enrolled for B.Comm. Degree at the University
of South
Africa, passing six of the nine subjects offered. He was generally
described as an underachiever, given the high IQ
assessment results
in 1999.
The
extent of injuries sustained by the plaintiff and the
sequelae
thereof as well as prognosis thereto are described in the
medico-legal reports of various experts in various fields. All the

experts’ reports are not challenged. In summary the plaintiff
sustained severe bodily injuries, including a severe head injury,

extensive fracturing of the facial bones and facial lacerations.
I will refer to some of the remarks
made by the experts which throw some clarity on the extent of
injuries
suffered and
therefore loss sustained by plaintiff as regards the claims in
issue.
Dr Keeley, a neurosurgeon, records
in his report that the plaintiff suffered a significant loss of
function in the right hand.
He considers that a 70% impairment of
the right hand function is fair. His
brain
injury was complicated by him having a stroke which is an
infrequent complication of head trauma. Dr Keeley records in
his
report that:
“
There is an aura of apathy and depression about
him. He is obviously not a happy or confident young man. It is
obvious that he
mourns the loss of his sharp agile intellect, of
which he was obviously very proud.
”
Dr Meyer observed that the
plaintiff experienced deterioration in his pride, lost confidence
and self-esteem. L
evel
of frustration went up and that results in anger and
aggressiveness. He would shout and use foul language. The
plethora
of jobs post-trauma is attributable to low frustration
tolerance, excessive inter-personal sensitivity, amongst others.
Dr Holmes remarks as follows:
“
More than five years post-accident, it would
have to be accepted that Mr Collier’s demonstrated impairments,
deficits and markedly
altered personality characteristics would
persist and that the same would remain core components of his
post-accident psyche
.”
In his report he also records that:
“
As previously indicated, a worst scenario would
imply that Mr Collier would not have completed tertiary studies and
that he would
have been restricted to job opportunities available to
the holders of a school leaving certificate. However, even at this
level
of employment, Mr Collier should have enjoyed some growth in
the workplace by way of the successful completion of in-house
training
programmes (Mr Collier’s measured high average/superior
intellect being a positive factor in this regard).
”
When one looks at the
plaintiff’s scholastic achievements as gleaned from the history
set out above, it becomes difficult to conclude, with any measure
of
confidence that, were it not for the accident, he would have
academically progressed beyond grade 12 plus one year of post

schooling training. Without understating the injuries and the
effect thereof, it appears it was his own decision and/or conduct

that caused him not to further his education beyond where he
stopped. It looks fair and reasonable to make the assessment of

damages on the assumption that it is not a resultant effect of the
accident that he did not proceed to obtain tertiary education.
The
pre-accident scenario depicts him as a person who did not apply his
mind to his studies and thus achieving not as expected
in the sphere
of education, given his reported high intellect. What further
strengthens this view is that even during the post-accident
period
it was within his reach to get reasonable academic results.
According to Dr Holmes he “remains
very confused and undecided regarding his future
career development”. In his report he records the following
“
An evaluation of Mr Collier’s scholastic
record suggested that he was an underachiever – given his measured
high average/superior
intellect. Non-academically, however, he
excelled in various sporting disciplines. Mr Collier was also
reportedly a socially
well adjusted learner.
”
He further states
:
“
Mr Collier had only turned twenty years at the
time of his involvement in the aforementioned incident and although
he had not been
successful in his pre-morbid tertiary studies,
cognizance is taken of the fact that he possessed the intellect to
proceed beyond
the university graduate level. All that was required
of him was to apply himself appropriately to his study programme.
”
During the pre-accident period the
plaintiff would mostly be employed
as
a waiter, barman and cashier in food/liquor supply stores or
restaurants. During the post-accident period and specifically
as
from September 2003 he continued with that trend. As from
September 2003 up until the current period he served no less

than 22 different employers in jobs ranging from waiter, barman,
sales assistant, assistant manager, driver merchandiser etc,
which
all appears to be within the grade 12 academic bracket. The
movement from one job to the next, within short periods, is

reportedly attributable to the change of personality
characteristics, that being an after effect of the accident. He
became
verbose with underlying aggression, suffered from lack of
patience and frustration that negatively affected his mood and
interperson
interactions. Dr Meyer predicted that the plaintiff’s
potential for any consistent employment was jeopardized and in the
future
he would be relegated to low level jobs with intermittent
terminations of contract. Dr Meyer further anticipated that the
plaintiff
would eventually become unemployable on the open labour
market.
The Court’s attention has been
drawn to act
uarial
calculations by Algorithm Consultants and Actuaries CC which have
been worked out on the basis of the medico-legal reports
of various
experts, particularly those of Dr Keeley, the neurosurgeon, Dr
Meyer, the clinical psychologist and Dr Holmes, the
industrial
psychologist. The actuary has produced three alternative career
scenarios informed by the educational levels assumed,
that is, level
of grade 12, grade 12 plus or grade 12 plus three year National
Diploma or B. Degree.
The sce
nario
which is not contested by the defendant is the one that evaluates
the plaintiff with the educational achievement of grade
12 plus one
year post-school training. In support of its claim for past loss of
income the plaintiff has testified himself and
also called two other
witnesses whose evidence touched on his employment at different
times. He has been described as an impulsive
and impatient
employee, a person who would question authority often. The value of
income the plaintiff actually earned while
injured from the various
jobs he got from 2003 up to January 2009, is R147,991.11. That is
the amount given to the actuary for
his calculations. In his
evidence he gave the amount at R143,405.00. Mr Pillay, representing
the defendant, raised some concerns
as to how the figure was arrived
at. Even though it has been submitted on behalf of the defendant
that the evidence in this
regard was not original, but came before
court
via
a document drawn up not by the plaintiff, the figures themselves
appear to be quite reasonable considering the nature of the
jobs at
the time. Some of the jobs were carried out abroad. It is my view
that the amounts for the travelling should have been
counted in as
part of the income he received. An amount of R160,000.00 would be
reasonable.
The amount of R304,598.00 as and for
the value of income
while
injured is also reasonable in the circumstances. I thus find that
an amount of R144,598.00 is fair for the net past loss.
As regards the future loss the
relevant scenario assumes that the plaintiff will be unemployable as
from the age of 35 years.
The value of income while uninjured is
given as R4,044,735 and after deducting R606,710 being 15%
contingency, it remains at
R3,438,025. Up to the age of thirty five
years the defendant has conceded the value of income less the
contingency deduction
of 30% is reasonable at R344,282.00.
Similarly the amount of R1,055,987 from thirty five up to the
retirement age of 65 years.
It has been further conceded on behalf
of the defendant that on the latter amount a 75% contingency would
be reasonable leaving
the net loss on the amount of R2,829,746 in
terms of this scenario.
This
scenario
fits in with what I have already decided above, placing the
plaintiff’s educational level for purposes of assessing
damages
herein of grade 12 plus one year of post schooling training. I also
find no fault with the report of Dr Holmes which
is the basis of the
actual calculations. This report has been accepted by the defendant
and the
viva voce
evidence of Dr Holmes has not been challenged.
The other scenarios based and
calculated on assumption
s
other than the level of education I have referred to are rejected.
I thus assess the total damage to be
R2,685,148.00 for the past and future loss of earnings plus
R508,510.00
for the
other claims as agreed on by the parties, excluding the claim for
future medical expenses. The total amount is thus
R3,639,461.00 to
be reduced by 25%. 75% of the total sum is R2,729,595.70.
In the result I make the following order:
T
he
defendant is ordered to pay a sum of R2,279,595.70.
The defendant is ordered to furnish
the plaintiff with an
undertaking
in terms of
section 17(4)
of the
Road Accident Fund Act 56 of 1996
,
to compensate the plaintiff in respect of 75% of future medical
expenses.
The defendant is further ordered to
pay the costs of suit with interest thereon at the legal rate per
annum from 14 days after
taxation to date of payment. Such costs to
include the qualifying expenses, if any, of Dr
Holmes.
C
T SANGONI
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff : Adv Nepgen
Attorneys for the Plaintiff : Ungerer Struwig Hattingh
PEO
Security Place,
Cnr Hancock/Market Street,
Port Elizabeth
Counsel for the Defendant : Adv Pillay
Attorneys for the Defendant : Ketse Nonkwelo Inc
522 Govan Mbeki Avenue
Port Elizabeth
Date heard : 5 and 6 February 2009
Date Judgment delivered : 07 April 2009
Roger
Thomas Oliver Collier and RAF Case no 3708/06