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[2009] ZAECPEHC 36
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D'Hooghe v Road Accident Fund (572/2007) [2009] ZAECPEHC 36 (30 July 2009)
FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case Number:
572/2007
High Court:
Port Elizabeth
DATES HEARD:
16 March
2009; 18 – 19 March 2009; 1 – 4 June 2009; 8 June 2009
DATE DELIVERED:
30 July 2009
JUDGE(S):
D.
Chetty
LEGAL REPRESENTATIVES –
Appearances:
for the Applicant(s):
Adv J W Eksteen SC / Adv J J Nepgen
for the Respondent(s):
Adv B Pretorius SC/ Adv R K Pillay
Instructing attorneys:
Applicant(s):
Mr E De Villiers (De Villiers & Partners)
Respondent(s):
Ms K Nonkwelo (Ketse Nonwelo &
Ass)
CASE INFORMATION -
Nature of proceedings
:
Action for Damages
Topic:
Key Words:
Damages – Proof of – Claim for personal
injuries – General damages – Loss of future earning capacity –
Evidence that plaintiff would have commenced employment in Belgium –
Foreign employment prospect no longer viable as a consequence
of collision
– Moderate to severe head injury – Future employment prospects
– General damages.
REPORTABLE
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
In the matter between: Case No: 572/2007
STEVEN CLEMENTINE WILLY D’
HOOGHE Plaintiff
and
ROAD ACCIDENT FUND
Defendant
Coram: Chetty, J
Date Heard: 16 March
2009; 18 – 19 March 2009; 1 – 4 June 2009; 8 June
2009
Date Delivered: 30 July 2009
Summary:
Damages – Proof of – Claim for personal
injuries – General damages – Loss of future earning capacity –
Evidence that plaintiff would have commenced employment in Belgium –
Foreign employment prospect no longer viable as a consequence
of collision
– Moderate to severe head injury – Future employment prospects
– General damages.
______________________________________________________________
JUDGMENT
______________________________________________________________
CHETTY, J
[1] This is an action for damages for personal
injury suffered by the plaintiff in a horrific motor vehicle collision in the
early
hours of 10 November 2003 in Alistair Miller drive in Port Elizabeth. The
merits have been conceded and what remains is an assessment
of the amount of
damages to which the plaintiff is entitled. The globular amount claimed, R17 222
637, 98 comprises past hospital
expenses – R522 456, 59; past medical
expenses – R138 242, 39; estimated future medical expenses – R582
000, 00;
loss of earning capacity – R15 279 959, 00 and general damages
– R700 000, 00. The plaintiff’s claims in respect
of past hospital
and medical expenses have been admitted and an undertaking pursuant to the
provisions of s 17 (4) (a) of the
Road Accident Fund
Act
[1]
(the Act) has been
furnished to the plaintiff. Consequently, the only remaining issues which fall
for adjudication relate to the
claims for loss of earning capacity and general
damages. The trial endured for many days, expert witness testimony was tendered
and,
as in cases of similar ilk, all that remains is for the court to make an
award which, given the circumstances of the case, would
be fair in the
circumstances.
[2] It would be apposite to firstly determine the general
damages to which the plaintiff is entitled for that exercise requires a
thorough
exposition of the injuries suffered by the plaintiff which in turn has a
decisive bearing upon the claim for future loss
of earning capacity.
General Damages
[3] As adumbrated
hereinbefore the collision occurred in Alistair Miller drive in the early hours
of 10 November 2003. The plaintiff
who was then 21 years of age was driving his
vehicle en route to his residence when the vehicle was struck with such force
that the
plaintiff was rendered unconscious and had to be extricated from his
vehicle by means of the “jaws of life”. Prior to
being transported
to the Livingstone hospital in Port Elizabeth, the ambulance medics applied a
splint to the plaintiff’s right
leg. Save for radiographic examinations
and sutures for his lacerations, the plaintiff received no further treatment at
the Livingstone
hospital. Mrs
D’Hooghe’s
evidence concerning
the plaintiff’s treatment at Livingstone hospital is a sad indictment of
the state of our public hospitals.
The plaintiff’s condition was, from her
own observation, quite serious for he did not even acknowledge her presence and
started
screaming when a doctor eventually treated him. Fearing that the
plaintiff’s future well being would be severely compromised
at the
Livingstone hospital, the plaintiff’s father went to the Greenacres
hospital where he telephoned Mrs
D’Hooghe
to advise her that an
ambulance had been dispatched to Livingstone hospital to transport the plaintiff
there. Mrs
D’Hooghe
accompanied the plaintiff in the ambulance and
his condition remained unaltered upon admission to Greenacres.
[4] The
plaintiff was treated and stabilised in the casualty unit and in the early
afternoon transferred to the intensive care unit
(I.C.U) pending surgical
intervention for his orthopaedic injuries that evening. It is clear from Mrs
D’Hooghe’s
evidence that from the time she saw him at
Livingstone hospital until him being sedated immediately prior to surgery that
evening,
the plaintiff was barely conscious. By all accounts, given the
intensity and frequency of his screaming, the plaintiff must have
experienced
severe pain during this period.
[5] During the course of that evening,
Dr
de Jonge
, an orthopaedic surgeon, performed a closed reduction of the
right tibia fracture, an open reduction and internal fixation of the
left
humerus by means of 3 interfragmentary screws and plate and screw fixation. The
left arm was furthermore immobilised. During
the course of the operation
however, the plaintiff developed adult respiratory distress syndrome (ARDS)
which resulted in the operative
procedures being curtailed and the plaintiff
returned to the I.C.U. Dr
Krige
a physician-pulmonologist, saw the
plaintiff thereafter. He testified that the latter was barely conscious and
thrashing about to
such an extent that he deduced that the plaintiff was
experiencing severe pain. Communication with the latter was well nigh
impossible.
Dr
Krige
was referred to a report compiled by Dr T.J.
van
Aarde
, a neurosurgeon, who saw the plaintiff in the I.C.U. In his report he
described the plaintiff was being “wakker en bewus, maar
‘n bietjie
onderdruk as gevolg van pynsedasie”. Capitalising on this apparent
conflict between Dr
Krige’s
testimony and Dr
van Aarde’s
observation counsel for the defendant sought to establish that the plaintiff
was in fact conscious and able to communicate. What precisely
Dr
van
Aarde
meant is difficult to discern from the report. Dr
Krige
saw
the plaintiff, treated him and has given a first hand account of the
plaintiff’s condition. Those observations accord with
the evidence of the
other witnesses and I accept Dr
Krige’s
evidence as to the
condition the plaintiff was in.
[6] Dr
Krige
described ARDS as a
severe decrease in the ability of the lungs to oxygenate the blood flowing
through them and as a result he intubated
and ventilated the plaintiff with high
pressure ventilation as well as high oxygen concentrations. To facilitate the
ventilation
he later performed a tracheostomy. It is common cause that the
plaintiff was on the ventilator for approximately 2 months which Dr
Krige
described as indicative of the severity of the trauma to the chest and
underlying lungs. The plaintiff’s condition during his
hospitalisation was
fully documented by his girlfriend in a diary account (the diary), received in
evidence as exhibit “D”.
That narrative was corroborated by Mrs
D’Hooghe
. The observations recorded in the diary, compiled as they
were on a day to day basis, finds support in the various medical reports
compiled and the evidence adduced from the medical experts. There is no reason
to doubt the accuracy of the observations or the veracity
of Ms
Haywood
or Mrs
D’Hooghe
. I am satisfied that I may safely rely on the diary
account as an accurate portrayal of not only the plaintiff’s condition
but
moreover his progress throughout the period of his
hospitalisation.
[7] The undisputed evidence reveals that post
operatively the plaintiff was not only unable to speak but moreover experienced
sporadic
bouts of consciousness. In the early hours of 12 November 2003, he
suffered an embolism, the family summonsed because the medical
personal feared
the worst. A decision was then taken to turn the plaintiff onto his stomach in
an attempt to alleviate his plight
but this in turn caused excessive swelling to
the plaintiff’s face. Two days later the plaintiff was turned onto his
back once
more, but retrogressed with the result that the family was once again
summonsed to the hospital, the medical personnel once more
fearing the worst.
His condition fluctuated over the next few weeks during the course of which he
developed bedsores on his face
and body but could not be moved as his saturation
dropped drastically whenever this was attempted.
[8] On 21 November
2003 when the swelling appeared to diminish the plaintiff was turned onto his
back and on 23 November 2003 a tracheostomy
was performed to assist his
ventilation. He however developed an infection of the lungs and was moved to an
isolation room in the
I.C.U to prevent further infections. His condition
fluctuated but on 3 December 2003 he suffered a further setback and the
ventilator
settings were altered. The plaintiff’s condition seemed to
improve and on 4 December 2003 the nursing staff started to wean
the plaintiff
off medication, which initially caused him to convulse and suffer high
temperatures. To alleviate this, ice packs and
fans were used to afford him some
relief. On 5 December 2003 the plaintiff opened his eyes for the first time but
failed to respond
to any of the nursing staff’s questioning. The next day,
still unable to talk, his only response was to seize his mother and
girlfriend’s hands ostensibly to answer their questions. The nursing staff
thereafter commenced weaning him off the ventilator.
[9] Gradually his
condition improved but he still could not speak and attempted to communicate
with small gestures. Because of his
inability to properly communicate his
frustration increased. Intravenous feeding was stopped. On 9 December 2003 his
levels of frustration
increased in intensity and manifested itself in a manner
which Ms Haywood described as follows in the diary –
“Steven became quite restless at times, throwing tantrums because he
wanted to get out of the bed and he was not allowed to;
obviously he was not in
any state of mind to comprehend what he was going through. Steven began pulling
the sheets off and trying
to get out of bed on many occasions, he also attempted
to pull the ventilator pipes out of his throat; they seemed to be causing
a lot
of discomfort. This eventually forced the nurses to resort to tying his arm to
the railing of the bed. Steven had lost a substantial
amount of weight, his
skeletal frame looked frail and his heart rate increased substantially. It was
very unpleasant and frightening
to see. The nurses explained that this was a
combination of his muscles regaining feeling and a very high temperature. Nurses
placed
ice packs under Steven’s armpits, groin and forehead to try and
bring down his temperature, which reached over 40° at
times. Nurses started
to wean Steven off the Dormicum and Morphine.”
[10] On 11
December 2003 the ventilator was replaced by an oxygen T-piece to assist his
breathing. During the period 15 to 17 December
2003 and at the request of Dr
Krige
, a neurologist, Dr
P.J.J Swartz
, attended on the plaintiff
specifically for the purpose of expressing an opinion why the plaintiff remained
obtunded. Although the
plaintiff was conscious, Dr Swartz found his thought
processes to be slow. An EEG examination showed non-specific bilateral slowing
of the background activity and a MRI scan performed on 15 December 2003 revealed
features which Dr Swartz opined was in conformity
“with a history of
previous severe head trauma, with residual changes suggestive of underlying
diffuse axonal injury”.
The importance of this evidence cannot be
understated. Dr
de Jonge
and Ms
Haywood
both testified about the
profound changes in the plaintiff’s personality and behaviour post
accident. The import of the medical
evidence indicates quite unequivocally that
such changes were directly attributable to the trauma suffered in the
collision.
[11] On 16 December 2003, Dr
de Jonge
performed an
arthroscopy of the right knee, an open reduction and internal fixation of the
tibia plateau fracture and an open reduction
and internal fixation of the mid
⅓ tibia fracture together with bone grafting. On 17 December 2003 during
the family visit
the plaintiff sat upright in a chair for the first time.
Although he appeared to be in a jovial frame of mind he expressed the wish
that
he was not yet ready to meet his friends. He greeted his family with a speech
aid which Ms
Haywood
described as a metal device which had been inserted
into his trachea. The plaintiff was highly emotional during their visit and
consumed
food (jelly) for the first time since the collision. The next day,
after 36 days in intensive care, he was transferred to the high
care ward.
[12] Finally, on 24 December, after more than 42 days of
hospitalisation, the plaintiff was discharged from hospital and conveyed
home by
ambulance. His trials and tribulations thereafter as recounted by his mother
stand uncontroverted. He remained bedridden,
was incontinent and had to be
assisted by her. She attended to his most intimate needs, bathed him and fed
him. Mrs
D’Hooghe
described a drastic change in the
plaintiff’s personality. His behaviour changed dramatically. He became
demanding, moody,
irritable and at times extremely difficult that it drove her
to distraction to such an extent that at times she cried out in exasperation
and
was forced to go into the garden to compose herself. This condition persisted
until mid January whereafter she was advised by
Dr
de Jonge
to have the
plaintiff admitted to Aurora hospital. His hospitalisation at Aurora caused the
plaintiff untold misery. According to
Mrs
D’Hooghe
, the plaintiff
remonstrated with them charging that they considered him a retard, had discarded
him and no longer cared for him.
This painful episode, for both the plaintiff
and his family, ended when Mr
D’Hooghe
could no longer endure the
pain felt by the plaintiff and decided that his recuperation would better be
served by him being at home.
The plaintiff was taken home in a wheelchair and
Mrs
D’Hooghe
transported him on a daily basis to Aurora where
gradually he was taught to walk. She adverted to the fact that although he made
steady progress he had undergone a complete personality change. Ms
Haywood
attested to this and there can be no question that the plaintiff
has since the collision become withdrawn and antisocial.
[13] The
evidence establishes that currently the plaintiff presents with the following
permanent disabilities – an extremely
unattractive gait; no movement of
the right ankle, foot or toes and experiences hyper-sensitivity of the skin of
the whole of the
right foot; his feet are permanently severely discoloured due
to problems with circulation and fungal infections; a clawed right
foot which is
severely deformed, an inability to exert any pressure on the sole of the right
foot; he experiences pain and restricted
movement of the right hip and sudden
unexpected movements of the joint produces severe pain; he is unable to
straighten his right
knee or right elbow fully; he experiences discomfort in his
lower back when walking or standing for long periods; his right leg and
left arm
ache in cold weather; he experiences restricted movement of the left shoulder
and is unable to elevate it as far as the
right; he feels unsteady on his legs
when walking and frequently loses his balance causing him on occasion to fall;
he has diminished
sensation of the little finger and of the ring finger of the
right hand; he experiences severe swelling of his right ankle and foot
on a
daily basis which is exacerbated by lengthy periods of standing or walking; he
is unable to walk fast or run at all; he is unable
to bend to reach lower
cupboards as a result of stiffness in the joint hip, ankle and foot, both elbows
and left shoulder which restricts
him in tasks at home; he has constant pain in
his right hip, leg, ankle and foot, lower back, left shoulder and arm, right
elbow
and hand; he experiences headaches; he is unable to sit for longer than 1
hour and if he does so experiences discomfort which necessitates
him having to
stand; when he does however stand for periods in excess of 30 minutes he
experiences severe discomfort and pain; he
has difficulty in negotiating uneven
surfaces safely; he has great discomfort in climbing up and down stairs and is
required to hold
onto the railing with a non-reciprocal gait and this causes him
grave discomfort and pain; he is unable to jump or squat; he cannot
walk for
longer than a kilometre as a result of pain; he has a disturbed sleeping
pattern; apart from the discolouration on his lower
limbs plaintiff has
significant unsightly scarring on his right cheek due to the pressure sore,
scarring in his throat area due to
the tracheotomy as well as scarring on his
right limb due to the operations performed.
[14] In addition to the aforegoing physical
impediments his socio-emotional, cognitive and executive functioning are
impaired. The
import of the evidence is that these impairments are manifested by
excessive fatigue; episodes of frustration; irritability and short
temperedness;
short term memory problems; attention and concentration lapses; asocial
behaviour, bouts of despondency and depression
and episodes of inappropriate
behaviour.
[15] With that prelude I proceed to determine the amount to
be awarded to the plaintiff in respect of general damages. It was submitted
on
behalf of the plaintiff that R700 000, 00 would be a fair award whilst Mr
Pretorius
has argued for an award of R500 000, 00. It is apposite to
commence this exercise by acknowledging that whilst past awards constitute
a
useful guide for comparative purposes a court must be cognisant of the fact, as
Broome DJP remarked in
Wright v Multilateral Vehicle Accident
Fund
, reported in
Corbett and Honey
vol 4 at E3-31 and in
particular to the passage at E3-36 where the learned judge 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.”
[16] In support of his submission Mr
Pretorius
referred me to the matter of
Adlem v Road Accident
Fund
,
Corbett and Buchannan
vol 6 p J2-41.
Plaintiff’s counsel referred me to a host of cases, in particular two
unreported judgments by Jansen J in this
division viz.
Allen Klein v Road
Accident Fund
, case number 3050/06 and
Johnston Currie v Road
Accident Fund
, case number 1471/95 (both judgments were delivered in
2008) where general damages were assessed at R600 000, 00 and R550 000, 00
respectively. It is unnecessary to refer to the other comparative cases referred
to by Mr
Eksteen
which I have considered. I conclude that a fair award to
be an amount of R650 000, 00.
Loss of earning capacity
[17] The legal position relating to a claim for diminished
earning capacity is trite. In
Sanlam Versekerings Maatskappy v
Byleveldt
[2]
Rumpff JA, stated
the principle as
follows:
[3]
“In 'n saak soos die onderhawige word daar namens die benadeelde
skadevergoeding geëis en skade beteken die verskil tussen
die
vermoënsposisie van die benadeelde vóór die onregmatige daad
en daarna. Kyk, bv.,
Union Government v Warneke
,
1911 AD 657
op bl. 665, en die bekende omskrywing deur
Mommsen,
Beiträge zum Obligationenrecht
, band 2, bl. 3. Skade is
die ongunstige verskil wat deur die onregmatige daad ontstaan het. Die
vermoënsvermindering moet wees
ten opsigte van iets wat op geld
waardeerbaar is en sou insluit die vermindering veroorsaak deur 'n besering as
gevolg waarvan die
benadeelde nie meer enige inkomste kan verdien nie of alleen
maar 'n laer inkomste verdien. Die verlies van geskiktheid om inkomste
te
verdien, hoewel gewoonlik gemeet aan die standaard van verwagte inkomste, is 'n
verlies van geskiktheid en nie 'n verlies van
inkomste nie.”
In similar
vein, in
Dippenaar v Shield Insurance Co
Ltd
[4]
, the same learned judge
articulated the principle in the following
terms:
[5]
“In our law, under the
lex Aquilia,
the defendant must make good
the difference between the value of the plaintiff's estate after the commission
of the delict and the
value it would have had if the delict had not been
committed. The capacity to earn money is considered to be part of a person's
estate
and the loss or impairment of that capacity constitutes a loss, if such
loss diminishes the estate. This was the approach in
Union Government
(Minister of Railways and Harbours) v Warneke
1911 AD 657
at 665 where the following appears:
"In later Roman law property came to mean the
universitas
of the plaintiff's rights and duties, and the object of the
action was to recover the difference between the
universitas
as it was
after the act of damage, and as it would have been if the act had not been
committed (
Greuber
at 269). Any element of attachment or affection for
the thing damaged was rigourously excluded. And this principle was fully
recognised
by the law of Holland."
See also
Union and National Insurance
Co Ltd v Coetzee
1970 (1) SA 295
(A)
where damages were claimed and allowed
by reason of impairment of earning capacity.”
[18] Thus in determining an award for future loss of earning capacity it
is incumbent upon me to adopt the approach articulated in
Southern
Insurance Association Limited v Bailey
N.O
[6]
as
follows
[7]
“Any enquiry into damages for 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, augurs or oracles. All that the Court can
do is to make an estimate,
which is often a very rough estimate, of the present
value of the loss.
It has open to it two possible approaches.
One is for the Judge to
make a round estimate of an amount which seems to him to be fair and reasonable.
That is entirely a matter
of guesswork, a blind plunge into the unknown.
The
other is to try to make an assessment, by way of mathematical calculations, on
the basis of assumptions resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these may vary from
the strongly probable
to the speculative.
It is manifest that either approach involves guesswork to a greater or lesser
extent. But the Court cannot for this reason adopt a
non possumus
attitude and make no award. See
Hersman
v Shapiro & Co
1926 TPD
367
at 379
per
STRATFORD J:
"Monetary damage having been suffered, it is necessary for
the Court to assess the amount and make the best use
it can of the evidence
before it. There are cases where the assessment by the Court is little more than
an estimate; but even so,
if it is certain that pecuniary damage has been
suffered, the Court is bound to award damages."
And in
Anthony and
Another v Cape Town Municipality
1967 (4) SA 445
(A)
HOLMES JA is
reported as saying at 451B - C:
"I therefore turn to the assessment of damages. When it
comes to scanning the uncertain future, the Court is virtually
pondering the
imponderable, but must do the best it can on the material available, even if the
result may not inappropriately be
described as an informed guess, for no better
system has yet been devised for assessing general damages for future loss; see C
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284
(N) at 287 and
Turkstra Ltd
v Richards
1926 TPD at 282
in fin
- 283."
In a case where the
Court has before it material on which an actuarial calculation can usefully be
made, I do not think that the first
approach offers any advantage over the
second. On the contrary, while the result of an actuarial computation may be D
no more than
an "informed guess", it has the advantage of an attempt to
ascertain the value of what was lost on a logical basis; whereas the trial
Judge's "gut feeling" (to use the words of appellant's counsel) as to what is
fair and reasonable is nothing more than a blind guess.
(Cf
Goldie v City
Council of Johannesburg
1948 (2) SA 913
(W) at 920.)”
[19] It follows from the aforegoing authorities that where, as in casu, a
plaintiff suffers a permanent impairment of earning capacity
the proper method
of determining such loss is – (i) to calculate the present value of income
which the plaintiff would have
earned but for the injuries and the consequent
disability; (ii) adjust that figure having regard to all relevant factors and
contingencies;
(iii) calculate the present value of the plaintiff’s
estimated future income having regard to the injuries sustained and the
consequent disability; (iv) adjust the latter figure with due regard to all
relevant factors and contingencies; and (v) subtract
the latter from the
former.
[20] The parties adduced expert evidence from a range of
witnesses who all filed reports, some of which were quite prolix. Certain
of
them testified whilst the other’s reports were admitted. These witnesses
are all undoubted experts in their respective fields
and before I turn to
consider the plaintiff’s claim under this head of damages, it is apposite
to refer to the correct approach
to expert testimony, formulated in
Michael and Another v Linksfield Park Clinic (Pty) Ltd and
Another
[8]
as
follows
[9]
-
“[36] That being so, what is required in the evaluation of such
evidence is to determine whether and to what extent their opinions
advanced are
founded on logical reasoning. That is the thrust of the I decision of the House
of Lords in the medical negligence case
of
Bolitho v City and Hackney Health
Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)). With the relevant
dicta
in the
speech of Lord Browne-Wilkinson we respectfully agree...
[40] Finally,
it must be borne in mind that expert scientific witnesses do tend to assess
likelihood in terms of scientific certainty.
Some of the witnesses in this case
had to be diverted from doing so and were invited to express the prospects of an
event's occurrence,
as far as they possibly could, in terms of more practical
assistance to the forensic assessment of probability, for example, as a
greater
or lesser than fifty per cent chance and so on. This essential difference
between the scientific and the judicial measure
of proof was aptly highlighted
by the House of Lords in the Scottish case of
Dingley v The Chief Constable,
Strathclyde Police
200 SC (HL) 77 and the warning given at 89D - E that
'
(o)
ne cannot entirely discount the risk that by
immersing himself in every detail and by looking deeply into the minds of the
experts,
a Judge may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the question
whether a particular thesis has been proved or disproved -
instead of
assessing, as a Judge must do, where the balance of probabilities lies on a
review of the whole of the evidence'
.” (emphasis
supplied).
The plaintiff’s pre-accident earning
capacity
[21] In conformity with the recognised approach
articulated in the authorities referred to hereinbefore, I will
seriatim
consider the plaintiff’s pre-accident earning capacity and his post morbid
earning capacity.
[22] The evidence adduced conclusively established that
but for the accident the plaintiff would have returned to Belgium and resumed
employment with Maas International. Hence the stance adopted by the defendant
during argument was not that the plaintiff would not
have followed a career
path at Maas International but whether he had proved the quantum of his damages
in that eventuality. Relying
principally on the decision in
D’Ambrosi v Bane and
Others
[10]
and
Minister van Veiligheid en Sekuriteit v Japmoco Bk h/a Status
Motors
[11]
in support of
that submission Mr
Pretorius
argued that whilst the defendant admitted Mr
Jacobson’s
actuarial calculations it did not admit the assumptions
upon which it was based. Consequently, so the argument unfolded, the defendant
never admitted the tax deductible in Belgium nor did he adduce any expert
testimony to prove what deductions had to be made from
the earnings the
plaintiff would have earned in Belgium. Ergo, so it was submitted, the plaintiff
failed to prove the quantum of
his damages.
[23] Reliance on the
aforementioned cases as authority for the proposition that the plaintiff had not
proved the measure of his damages
is entirely misplaced. In
D’Ambrosi
(
supra
) the court was asked to consider, on
the basis of a stated case, two issues, viz., “the first whether the cost
of living differential
between Johannesburg, where the plaintiff now resides,
and London, where he intended to reside from the beginning of 2001, should
be
taken into account in assessing his claim for past and future loss of earnings
or earning capacity. The second is whether medical
aid scheme benefits should
play a role in determining his claim for past and future hospital and medical
expenses.”
[24] Those issues were determined with reference to a
number of authorities but that decision is entirely irrelevant to the issues
which fall for determination in this matter. The correct approach to the
assessment of damages for loss of future earning capacity
is as set out in
Bailey
(
supra
). Reliance furthermore on the decision in
Japmoco
(
supra
) is, once more, entirely misplaced. In
Japmoco
the court held that in as much as it could not establish
to what extent the quantum of the respondent’s damages had been reduced
by
payments already made to him, it is impossible, given the paucity of the
evidence, to determine what the balance of his claim
against the appellant was.
On that basis the court held that the respondent had not proved the quantum of
his damages. This case
is not concerned with past loss of earnings or earning
capacity.
[25] Various calculations were made by the actuaries Messrs
Jacobson and Koch in an attempt to assess the amount of compensation which
should be awarded to the plaintiff. Mr Koch’s calculations were based upon
assumptions which are completely at variance with
the evidence. Dr Van Dalen was
quite emphatic when he said the plaintiff would not be profitably employed as a
care salesman 5 years
hence. In the light of the evidence adduced the
assumptions made by Mr Jacobson are to be preferred.
[26] After the
adduction of evidence Mr
Jacobson
recalculated the plaintiff’s
pre-morbid earning capacity with Maas International on the assumption that he
would only have
progressed to the level of an accounts manager. He calculated
the value of the plaintiff’s loss of income but for the accident
at R12
200 868, 00. In arguing for a 40% contingency deduction Mr
Eksteen
submitted that the calculations made by Mr
Jacobson
appeared to be overly
conservative. In support of this submission counsel submitted that the approach
is manifested by (i) the assumption
that the plaintiff would have taken up
employment with Maas International on 1 March 2009; (ii) the calculation
ignored the annual
bonus equivalent of three months salary being 9000 euros per
annum; (iii) the calculation for an accounts manager is made on the
basis of a
monthly salary of 3750 euros which was the salary at the time the expert summary
was filed in contradistinction to the
current monthly salary of 4000 euros; and
(iv) it ignored the plaintiff’s possible promotion to a key manager or
sales manager.
He submitted further that the proposed contingency deduction took
into account the material costs of savings of the plaintiff living
in the
Republic of South Africa and not in Europe. I am unable to detect any flaw in
counsel’s reasoning and am satisfied that
a 40% deduction for
contingencies seems meet.
Post morbid earning
capacity
[27] At the inception of the hearing I directed that the
orthopaedic surgeons, Drs
B.L Mackenzie
and
D.B Mackenzie
meet and
attempt to reach consensus and to prepare a joint report. The minute of their
meeting, which encapsulates the agreement
reached by them, has a decisive
bearing on the plaintiff’s post morbid earning capacity. It reads as
follows –
“1. Both doctors agree on the nature and extent of the orthopaedic
injuries. Dr Donald Mackenzie agrees with Dr Basil Mackenzie’s
comment
regarding a possible compartment syndrome involving his right lower
extremity.
There is consensus regarding the future treatment
of his injuries. Dr Donald Mackenzie emphasized the point that the
sequelae
of his injuries will become more intrusive with the passing of
time until a point will be reached between age 50 and 55 where an
expectation of
his continuing in his current capacity or something similar, will be
unrealistic. Implicit in Dr B L Mackenzie’s
opinion that Mr D’Hooghe
will no longer be physically capable of his job description/capacity beyond age
50 years is that his
condition will progressively deteriorate until he reached
that age.
If he is to remain employed beyond age 50 to 55 years, he will need to be
accommodated to the extent that his job description will
be sedentary and that
he will further need to be accommodated in respect of access to his work site
and transport.
4. The doctors agree that in light of their opinions, as outlined above,
that Mr D’Hooghe’s competitiveness in the
job market will be
impaired. Dr Donald Mackenzie pointed out that he has reservations about Mr
D’Hooghe being capable of working
profitably as a motor car salesman after
5 years. Dr Basil Mackenzie adheres to his opinion as reflected in his
medico-legal report.”
[28] The import of
the evidence of the industrial psychologist, Dr
Holmes
, was that the
possibility of the plaintiff obtaining sedentary employment at the age of 50 was
so remote that it could, at best,
be described as notional. He concluded that
–
“
1. Plaintiff suffered a significant head injury with associated
underlying brain pathology and multiple orthopaedic injuries.
2. Five years post accident Plaintiff remains severely physically
handicapped and compromised by the sequelae and core components
of his markedly
altered cognitive functioning and demonstrated socio-emotional
impairments.
3. He continues to work as a motorcar salesman and it is anticipated that
significant difficulties would arise in the medium to
long term, that would have
a profoundly negative impact upon his ability to obtain and sustain work as a
sales representative.
4. Plaintiff will never be in a position to function on an optimal level in
such a very competitive market
segment.
5. It is anticipated that his condition will deteriorate.
6. The Plaintiff is easily fatigued, prone to moods of depression, not
always motivated, forgetful, easily distracted and increasingly
irritable.
7. The expectation is that he will not be considered for advancement to a
supervisory level, rather that he would do well to continue
working and
functioning as a sales representative being largely dependent upon a commission
based salary or remuneration
package”
[29] He further
testified that as regards his future income potential, the plaintiff would for
the foreseeable future continue to
work as a sales representative although
future meaningful growth was negligible; the plaintiff should not be doing the
kind of work
he is presently engaged in and expressed the view that the
plaintiff was probably employed by someone who is sympathetic towards
him; the
plaintiff was likely to experience significant and increasing difficulty in
maintaining his current earnings and that having
regard only to the orthopaedic
injuries, the plaintiff’s earnings would decrease.
[30] The
general import of the evidence of all the experts was that the plaintiff should
not be performing the type of work he is
currently engaged in and that should he
continue to do so, he would in all probability not be profitably employed five
years hence.
Although Dr
Van Dalen
suggested, somewhat tentatively, that
the plaintiff could obtain alternative employment, he was constrained to concede
that the plaintiff’s
envisaged occupation as an insurance salesperson was
a notional one at best. He was unable to suggest any other form of alternative
employment. Although there was some divergence of opinion between Mr
Meyer
and Dr
Plunkett
concerning the neuropsychological
sequelae
, the fact of the matter is that the plaintiff suffered a
moderate to severe head injury which has significantly compromised his future
earning capacity.
[31] Mr
Meyer’s
report was commissioned
for an assessment of how the accident and its
sequelae
may have affected
the plaintiff’s mental state. After an exhaustive analysis of the medical
reports, interviews conducted with
the plaintiff and various tests administered
by him, Mr
Meyer
concluded –
“Currently, in the examiner’s opinion, the Plaintiff does not
meet the requirement for a chronic Postconcussional Disorder
and as a result
directly of cognitive, socio-emotional or executive deficits, his ability to
cope in social or occupational functioning
is not impaired to a significant
level. Due to his own tenacity and personality style the Plaintiff has applied
himself with admirable
determination to a job where he continues to be
successful albeit at times probably less efficient than he would have been were
it
not for the accident.”
This conclusion was to an appreciable
extent based upon the fact that notwithstanding the severe limitations
occasioned by the collision
the plaintiff continues to be successful in his work
environment, a fact amply demonstrated by him being one of the top salespersons
at Reed Motors. This conclusion that the plaintiff’s cognitive,
socio-emotional and executive functioning has not been significantly
impaired as
a result of the collision is at variance with the opinions expressed by Dr
Holmes
and Mr
Plunkett
that the plaintiff has a severe and
permanent co-morbid disability and handicap, both physical and mental, which
significantly impacted
upon his ability to work and function in the competitive
job market.
[32] The mere fact that the plaintiff has excelled in his
work environment cannot safely be used to gauge his cognitive, socio-emotional
and executive functions. The weight of the evidence is that this concerted
effort on the part of the plaintiff to excel is in the
long term detrimental to
his future physical and mental well-being. Mr
Meyer’s
test result
that the plaintiff has a low ⅓ clinical profile which he testified
suggested that the plaintiff lacks insight into
his condition is all the more
reason to treat his (Mr
Meyer’s
) conclusion with circumspection.
[33] On a conspectus of the evidence Mr
Meyer’s
opinion
that the plaintiff’s “ability to cope in social or occupational
functioning is not impaired to a significant
level” is completely at
variance with the opinions expressed by other experts. The overwhelming weight
of the evidence shows
the contrary. Dr
Holmes
and Mr
Plunkett
adverted hereto and I prefer their evidence to that of Mr
Meyer
.
[34] Mr
Jacobson
calculated the value of the plaintiff’s income
having regard to the accident as being R3 093 247, 00. The calculation was
premised
on the plaintiff retiring at age 50 and his future earnings consisting
of a basic salary of R48 000, 00 per annum, commission of
R169 703, 00, a car
allowance of R31 080, 00 and a pension contribution from his employer in the
amount of R9 690, 00.
[35] Mr
Eksteen
thus urged me, in seeking
to place a value on the plaintiff’s earning capacity post accident, to
accept his current earnings,
a consistent decline for the next five years to the
level of Peromnes 11 -10/ Patterson C1-C2 and sustained earnings at that level
to the age of retirement, i.e. 50 years of age. The approach proposed finds
support in the evidence adduced and commends itself to
me. I accordingly accept
Mr
Jacobson’s
calculations of the plaintiff’s value of income
having regard to the accident and the assumptions upon which these are premised.
[36] The plaintiff’s post morbid earning capacity has however to
be adjusted to make allowance for his absence from work for
further surgical
procedures. Making due allowance therefore Mr
Jacobson
adjusted the
calculation to R2 974 216, 00. As regards the contingency factor, Mr
Eksteen
suggested that a deduction of 25% be made on the basis that the
plaintiff will, for the foreseeable future, remain in motor vehicle
sales.
Although, as adumbrated hereinbefore, Mr
Van Dalen
opined that the
plaintiff could obtain employment in the insurance industry, he was constrained
to accept that his suggestion was
speculative in the extreme. In my view and on
consideration of the evidence adduced, the contingency deduction proposed by Mr
Eksteen
seems meet.
[37] Apropos the aforegoing and applying a
40% deduction for contingencies, the plaintiff’s pre-accident earning
capacity amounts
to R7 320 520, 80. His post accident earning capacity amounts
to R2 974 216, 00. Applying a 25% contingency deduction the amount
is reduced to
R2 230 662, 00. The amount of compensation for loss of earning capacity
accordingly amounts to R5 089 858, 00.
[38] In the result the defendant
is ordered:
1.1 To pay the plaintiff the sum of R5 089 858, 00 as and for damages for loss
of earning capacity together with interest thereon
at the legal rate from the
date of judgment to date of payment.
1.2 To pay the plaintiff the sum of R522 456, 59 in respect of past hospital
expenses.
1.3 To pay the plaintiff the sum of R138
242, 39 for past medical expenses.
1.4 To pay the plaintiff the sum of R650 000, 00 as and for general
damages.
1.5 To furnish the plaintiff with an
undertaking in terms of
s 17
(4) (a) of the
Road Accident Fund Act
56 of
1996
in respect of future expenses as referred to therein.
1.6 To pay the
plaintiff’s costs of suit, including the costs of 2 (two) counsel together
with interest thereon at the legal
rate from 14 (fourteen) days after allocatur
to date of payment, such costs to include –
1.6.1 The costs of the Medico-legal reports, as
well as the qualifying fees (if any) of all experts of whom notice has been
given
by the Plaintiff, in terms of
Rule 36(9)(a)
&(b), either agreed or as
taxed by the Taxing Master.
1.6.2 The costs of consultations between Plaintiff’s attorneys,
Plaintiff’s Counsel and Plaintiff’s Experts in
preparation for the
trial as agreed or as taxed by the Taxing Master.
1.6.3 The reasonable costs of photographs.
1.6.4 The costs of the
record of the hearing during March 2009.
1.6.5 The Plaintiff is declared a necessary
witness.
1.6.6 That the Plaintiff’s taxed Party-and-Party costs to bear
interest at the legal rate if not paid within 14 (fourteen)
days of the Taxing
Master’s allocatur.
_______________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo the Plaintiff: Adv J.W Eksteen SC / Adv J.J
Nepgen
Instructed by De Villiers & Partners
32 Erasmus Drive
Summerstrand
Port Elizabeth
(Ref: Mr E De
Villiers)
Obo the Defendant: Adv B Pretorius / Adv R.K Pillay
Instructed by Ketse Nonkwelo Incorporated
522 Govan Mbeki Avenue
North End
Port Elizabeth
(Ref: Ms Nonkwelo)
[1]
Act No 56 of
1996
[2]
1973 (2) SA 146
(A)
[3]
at p.
150B-D
[4]
1979 (2) SA 904
(A)
[5]
at p
917B-D
[6]
1984 (1) SA 98
(AD)
[7]
At pp
113F-114E
[8]
2001 (3) SA 1188
(SCA)
[9]
At p 1200 para [36] and
[40]
[10]
2006 (5) SA
121(C)
[11]
2002 (5) 649
(SCA)