Hurter v Road Accident Fund and Another (367/07) [2010] ZAECPEHC 5 (2 February 2010)

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[2010] ZAECPEHC 5
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Hurter v Road Accident Fund and Another (367/07) [2010] ZAECPEHC 5 (2 February 2010)

24
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
Case No: 367/07
Dates Heard:
11-12/2/09; 15-18/6/09;14-17/9/09
Date Delivered:
2/2/10
Not Reportable
In the matter between:
LAUREN
HURTER
PLAINTIFF
and
THE ROAD ACCIDENT FUND
FIRST DEFENDANT
ETTIENNE LOMBARD
SECOND DEFENDANT
The plaintiff, a
20 year old woman at the time, was seriously injured in a motor
vehicle injury. Apart from a range of
bodily
injuries, she also suffered a basofrontal brain injury which had the
effect of altering her personality. The merits having
been decided in
favour of the plaintiff and certain of the heads damages having been
settled, the only issues that required resolution
were the quantum of
her general damages and of her claim for loss of earning capacity.
The court found that as a result of the basofrontal
brain injury, the
plaintiff was entirely unemployable. It determined her general
damages to be R500 000.00 and her damages for loss
of earning
capacity to be R4 250 000.00. A total award of R4 687 313.00 was made
which included the agreed amount of R180 875.38
for past hospital and
medical expenses and also took into account an amount of R243 561.38
which had, during the trial, been ordered
as an interim payment.
JUDGMENT
PLASKET, J:
[1] The plaintiff
is a 25 year old woman. She was severely injured in a motor vehicle
accident on 3 January 2005. At the time, she
was a student at the
Nelson Mandela Metropolitan University (the NMMU) studying fine arts.
The accident had a devastating effect
on her: she suffered severe
head injuries as well as other injuries, her looks were affected and
her personality has undergone a
significant change. As a result, her
studies have been, and continue to be, affected as have her plans for
the future.
[2] The plaintiff
instituted this action against two defendants namely the Road
Accident Fund, which is, subject to the terms of the
Road Accident
Fund Act 56 of 1996
, liable to compensate victims of road accidents,
and Ettienne Lombard, her boyfriend at the time of the accident and
who was the
driver of the vehicle in which she was a passenger. In
what follows, I shall refer to the defendants as the Fund and
Lombard. The
issue of liability was determined by Pillay J. He
decided that while the defendants were liable jointly and severally
to pay the
plaintiff’s damages, the Fund’s share of the liability
was 30 percent and Lombard’s share was 70 percent.
[3] This judgment
concerns only the issue of quantum. Lombard took no part in these
proceedings. His counsel, Mr Strydom, withdrew
from the proceedings
after the first witness had testified in chief but he placed on
record that Lombard abided the judgment. Agreement
has been reached
on the quantum of the plaintiff’s damages for past hospital and
medical expenses in the amount of R180 875.38.
When the matter was
postponed on 18 June 2009, I granted an application made by Mr
Eksteen who, together with Mr Nepgen, appeared
for the plaintiff, for
an interim payment in the amount of R243 561.38. I also ordered the
Fund to furnish an undertaking in terms
of
s 17(4)
of the Act to
settle the claim for future medical expenses.
[4] I am, in this
judgment, only required to quantify the plaintiff’s general damages
and her damages in respect of loss of earning
capacity. A fair amount
of evidence, both lay and expert, was placed before me on behalf of
the plaintiff and the Fund on these heads
of damages. In addition a
number of expert reports were admitted by the Fund.
[A] THE EVIDENCE
[5]
As
indicated above, the plaintiff was seriously injured in the motor
vehicle accident. The vehicle in which she was a passenger collided
with a stationary motor vehicle parked on the shoulder of the
national road between Storms River and Humansdorp.
[6]
As
a result, the plaintiff sustained severe bodily injuries and was
transferred from the scene of the collision by ambulance to the
BJ
Vorster Hospital in Kareedouw. She was then transferred from that
hospital to Livingstone Hospital in Port Elizabeth and then,
at the
instance of her mother, transferred once more to St George’s
Hospital in Port Elizabeth where she was admitted to the intensive
care unit and treated until her discharge.
[7]
The
plaintiff suffered extensive facial fracturing including: fractures
of the right orbit, of the frontal bone, of the nasal bone,
of the
left orbit, of the maxilla, of the right zygoma and of the zygomatic
arch. She also suffered lacerations of the upper and
lower lip and
her maxillary gingival and mucoperiosteum were degloved from the 13
th
to the 23
rd
region, injuries to her chest, neck, abdomen, back and upper and
lower limbs; a severe diffuse axonal injury to the brain which
included
a brain contusion and a fracture of the base of the skull.
[8] She only
regained consciousness fully about ten days after the accident. She
suffered from both retrograde amnesia of about six
hours prior to the
accident and post traumatic amnesia which lasted for the entire
duration of her hospitalisation. Both conditions
are symptomatic of
brain damage and the degree of amnesia in both instances was,
according to Dr Rory Plunkett, a neuro-psychologist
called on behalf
of the plaintiff, significant and indicative of severe brain damage.
[
9]
On 7 January 2005, the plaintiff was operated on for an open
reduction and internal fixation of numerous facial bone fractures
which were united by the fixation of various screws and plates.
[10
]
During her stay in hospital she had to be restrained and had a
tendency to swear and respond with violent outbursts. She also tried
to pull out her catheter and other pipes. She was eventually
discharged on 21 January 2005 – 18 days after the accident -- and
returned to her parents’ home. Her mother took leave of absence
from the school where she teaches and nursed the plaintiff for
three
months.
[11
]
Subsequent to her hospitalisation, she was diagnosed with a left
sided visual defect. This was a direct result of trauma to the
brain
in that area of the brain which affects the cortex. During September
2005 she underwent a reconstruction of her nose and nasal
septum in
an attempt to improve the appearance of her nose.
[1
2]
The accident had a profound effect on the personality of the
plaintiff. This, according to the evidence of Dr Plunkett, is not
unusual in cases of severe basofrontal brain injuries. In order to
determine the precise severity of this personality change, it
is
necessary to consider the plaintiff’s personality and abilities
prior to the accident and then to deal with the evidence of
her
personality and functioning subsequent to the accident.
[13
]
The plaintiff showed a keen interest and an aptitude for art from an
early age. She performed exceptionally well academically throughout
her school career and obtained various merit awards for academic
achievements: in her primary school years she was always in the
top
ten percent of her class while in her secondary school years she was
consistently within the top 15 percent of her class. She
was a
prefect in junior school and throughout her school career had very
good relationships with her teachers.
[1
4]
She was a quiet, shy, dedicated, obedient, well-mannered, popular and
exemplary child. She had a very close relationship with her
twin
brother, Stanton, and with her sister, Leandre, as well as with her
parents. She also enjoyed good relationships with her female
peers
and with boys. She was a friendly and popular young girl.
[1
5]
She worked as a waitress in her spare time from about Standard 7. She
worked for a close family friend, Mrs Antoinette Nel. She
was popular
with the other members of staff who worked for Mrs Nel as well as
with her customers.
[1
6]
The plaintiff matriculated in 2003 and obtained a matriculation
exemption. In 2004 she enrolled at the NMMU for a National Diploma
in
Fine Arts. During that year she performed well academically and she
was regarded by lecturing staff as an exceptional student.
She passed
well. Her plans for the future were to obtain a B. Tech degree by
completing a fourth year of study and, in her fifth
year, to complete
a teaching qualification. She intended to work as a teacher and to
produce art in her spare time.
[1
7]
All of this changed on 3 January 2005. As a result of the severe
traumatic brain injury, the plaintiff was left with significant
cognitive, socio-emotional and socio-behavioural difficulties.
[18
]
In the first instance, the year 2005 was lost to her academically.
She only returned to the NMMU in 2006. She managed to pass second
year. She did not cope well with her third year studies in 2007 and
did not write the examinations. She repeated third year in 2008,
passing it. During 2009 she was in her fourth year.
[19] Initially she
suffered from compromised mobility and compromised balance which
caused her to continuously walk into fixed objects.
This problem
continues although it has improved. She was unable to make use of
eating utensils and unable to manage the routine activities
of daily
living. Dr R.J. Keeley, a neurosurgeon, said in his report that when
she left hospital she was ‘extremely in-coordinate’,
that she
‘wouldn’t eat and her mother had to almost force feed her’. He
said too that she was ‘so in-coordinate that she
couldn’t put a
spoon to her mouth’ and that she ‘was like a baby’. Her mother
‘taught’ her how to eat properly again.
She became withdrawn, did
not want to see any friends and people outside the family and was
very self conscious of her facial disfigurement.
She began to exhibit
symptoms of disinhibition, perhaps the most obvious and debilitating
consequence of the accident. This condition
persists to the present
and will be dealt with in more detail below.
[20
]
Since the accident, the plaintiff has continued to experience
headaches at least twice a week and also suffers from dizziness at
time. She has an increased risk of suffering from epilepsy later in
life. She often experiences discomfort in her neck and lower
back
especially when having to stand for long periods. She may require
further surgical procedures in the future to remove various
plates
and screws in her facial bones. She will require further surgery to
improve the appearance of her nose.
[2
1]
She experiences hyper-sensitivity on the right side of her face. She
also experiences difficulty in ascending or descending steps
and in
negotiating rough or uneven terrain. She experiences difficulty in
everyday activities as a consequence of her visual field
defect which
results,
inter
alia
,
in her often being placed in dangerous situations while driving. She
has suffered a reduction in her cognitive functioning and has
a
significantly impaired short term memory. She experiences slow
thought processing and word-finding difficulties at times. She has
a
reduced and variable level of motivation and drive. She suffers from
depression. She has suicidal ideations and has attempted or
threatened suicide on two occasions. She has become unhealthily
obsessed with her appearance and she dresses inappropriately. She
is
insubordinate and unreliable.
[22
]
The personality change brought about by the basofrontal brain injury
has manifested itself in a number of ways. She experiences
significantly increased irritability; she indulges in outbursts of
anger and violent tendencies in response to minimal provocation;
she
suffers from emotional lability; an ongoing loss of self confidence
and self esteem; from severe difficulties in interacting
with members
of her immediate family; and severe difficulties in interacting with
her peers, lecturers and superiors. She has become
irresponsible and
indifferent; she is unable to maintain any relationships with members
of the opposite sex; she uses inappropriate
language and swears a
great deal; she is often confrontational, aggressive and
inappropriate when interacting with others; and is
prone to fits of
temper, accompanied by rude gestures and threatening behaviour when
she is driving.
[2
3]
The effects of these personality changes have been serious. The most
obvious has been that familial relationships have become seriously
strained. Secondly, as it is unlikely that the plaintiff will be
able to sustain a meaningful relationship with a member of the
opposite sex, she is unlikely to marry or to have children. Thirdly,
it has affected her prospects of obtaining or sustaining employment.
The extent to which it has done so is one of the main issues in this
trial and will be dealt with below. Fourthly, she often comes
into
conflict with her friends to the extent that the have found
themselves reconsidering whether they want to have anything to do
with her. Fifthly, she suffers from feelings of inadequacy and low
self esteem. Finally, it is unlikely that she will ever be able
to
live independently.
[2
4]
She has insight into her impairments but appears to be powerless to
address any of these problems. Dr Plunkett, in his report,
stated:
‘
Her uncontrolled
behaviour reflects dysfunction of the mechanisms for inhibition.
These mechanisms will remain dysfunctional. It is
quite clear that
there is a degree of insight and this is partly why she is so
distressed about herself. However, she does not have
the capacity to
act on this insight. For example, she denies being fully aware of her
swearing and claims that it has become virtually
automatic and
although she wishes to appear normal, her behaviour is often quite
aberrant.’
[2
5]
Of all of the injuries that the plaintiff sustained, the basofrontal
injury to the brain has the most serious and long-lasting
consequences for her. It is this injury that was the cause of the
disinhibition syndrome from which she suffers. Dr Plunkett, in
his
report, said the following of it:
‘
Mrs Hurter’s
description of Lauren’s major impairments due to her accident is
compatible with a disinhibition syndrome – this
results mostly from
basofrontal damage to the brain, a common occurrence in significant
closed head injuries. The consequence is
a personality change. The
syndrome is manifest mainly as difficulties in self-control of
emotions and behaviour – the individual
fails to adequately inhibit
behaviour according to the demands of the situation – they tend to
be emotionally labile (anger and
tears) and to respond according to
internal impulses giving rise to inappropriate, insensitive, and
often coarse behaviour (noted
in a lack of regard for others,
self-centredness, excessive swearing, aggression, perseverative
(obsessive and inflexible) thoughts
and behaviour etc. It should be
evident that this sort of behaviour is maladaptive. To repeat, it
should be apparent that Mrs Hurter’s
description of Lauren’s
behaviour is quite consistent with this syndrome.’
[26] The
disinhibition syndrome from which the plaintiff suffers is permanent
in nature and is, Dr Plunkett testified, ‘so extreme
that she is
going to manifest it in most situations at some stage’. It will
have a major impact on her prospects of being employed
and, if she is
employed, of retaining employment. Indeed, Dr Plunkett was of the
view that, given a combination of the plaintiff’s
‘personality,
volitional and cognitive difficulties’, she is unlikely to be able
to retain work for any length of time and she
will ‘fit into the
pattern of being “hired and fired” or she may leave her position
irrationally’. This pattern is, according
to Dr Plunkett,
consistent with the experience of others who have suffered
basofrontal brain injuries and is well documented in the
neuro-psychological literature.
[27
]
Dr Plunkett’s evidence was consistent with that of Dr R. Holmes, an
industrial psychologist who had also provided clinical therapy
to the
plaintiff. Dr Holmes was of the view that ‘[s]ecuring and
maintaining employment would be most difficult, given Ms Hurter’s
cognitive, neuropsychological and socio-emotional deficiencies’. He
explained this as follows in his evidence in chief: that while
her
qualifications could get her job interviews, and she might even be
appointed, she would not last in a job. He felt however, that
it
would be unlikely that she would get through the interview process in
the first place and any checking of her medical history
would set off
warning bells for any industrial psychologist or personnel officer.
The following evidence takes this issue further:
‘…
Now you have told His Lordship
that you do not believe that she would obtain a job in the interview
situation. If she did, how long
do you anticipate she would last in
that employment? – If she were to have proceeded and obtained work
in a structured formal competitive
environment, given her syndrome,
her disorder, which has since, and that is confirmed by Dr Erlacher,
it has now stabilised, it is
not going to improve, she would not last
more than a month or two.
And would that have
an effect on her ability to obtain a next position? – It would have
a significant impact on her ability to obtain
subsequent employment,
and that is how our knowledge of the so-called chequered work record,
… and what actually happens is that
the record becomes so chequered
that she no longer or he no longer would have the opportunity of even
getting to the door of an interview,
people are not interested in
somebody who has had X number of jobs and with disciplinary actions
having occurred, or walking out
of a job, which often happens when
they become very upset and they resign from their positions, but any
personnel officer who would
do a proper check would pick that up and
she would become unemployable.’
[28] Dr Holmes was
adamant that the plaintiff would certainly not be able to work as a
teacher as a result of her condition. When
he was pressed on this in
cross-examination, he said that she ‘would not last in a school for
a week’ and that she would ‘either
resign or be suspended or she
would be taken to court’. He also held the view that she would
never be able to make a living as
an artist: she simply did not, as a
result of her condition, have the attributes that a professional
artist requires, apart from
the fact that it is extremely difficult
to break into what he termed a ‘closed shop’.
[2
9]
Both Dr Plunkett and Dr Holmes were able to re-enforce their
observations with reference to collateral sources of information.
For
instance, Dr Holmes interviewed the plaintiff’s parents, her twin
brother, two of her friends and one of her lecturers. In
addition, he
had treated her in 18 psychotherapy sessions over a period of time.
[30
]
Certain other evidence served to corroborate the findings and
conclusions of Dr Plunkett and Dr Holmes. First, Mrs Frieda Hurter’s
evidence confirmed in detail the after effects of the accident on the
plaintiff and the tremendous difficulties faced by the Hurter
family
as a result of the plaintiff’s condition. She confirmed too that
the plaintiff was a very different person prior to the
accident and
that her projected career path was, once she had completed her
degree, to qualify as a teacher, enter the teaching profession
and
produce art on a part time basis.
[31] I highlight
two further aspects of her evidence. The first concerns the way in
which she interacts with fellow employees in Mrs
Nel’s catering
firm. According to Mrs Hurter, she tells everyone how to do their
jobs – even experienced people who have worked
for Mrs Nel for 18
years or more – and she finds fault with everything that they do.
Secondly, on two occasions when she has been
present at Mrs Hurter’s
primary school, she has shouted and sworn at the school children for
no good reason. These two incidents
led Mrs Hurter to say of the
plaintiff and her proposed career as a teacher: ‘Nou moet sy eendag
gaan skoolhou. Ek wil nie my kind
in haar klas hê nie, dankie. Sy
sal in elk geval gejaag word, voel ek.’
[3
2]
Mrs Amanda Snyman is a member of the lecturing staff of the Music,
Arts and Design Faculty at the NMMU. She has known the plaintiff
since she was a schoolgirl and has, since March 2009, been the
plaintiff’s supervisor for the theoretical component of her fourth
year course. While she expected the plaintiff to meet with her weekly
to discuss her progress, the plaintiff had in fact only met
with her
twice. She often simply failed to arrive at meetings that had been
arranged. Mrs Snyman also testified that the plaintiff
lost her
temper quickly – that she was ‘geneig om gou-gou op haar perdjie
te spring’ – and used crude language to an extreme.
She said that
the plaintiff was so far behind with her work for the year that it
was likely that she would have to take two years
to complete her
fourth year.
[33] Mrs Antoinette
Nel confirmed that the plaintiff had begun to work part-time for her
as a waitress when she was still at school.
She described her as
having been a ‘baie goeie, gawe, vriendelike, hulpvaardige kind’
who always got on well with customers.
Since the accident, however,
the plaintiff’s personality had changed dramatically. She commented
specifically on her mood swings
and her swearing. She recounted a
number of incidents involving the plaintiff that impacted directly on
her employability.
[34] In the first
incident, she was approached by the liaison officer of East Cape
Racing, one of her major clients, and asked to
dismiss the plaintiff
because she had sworn at her in front of her guests. In the second
incident she swore at and displayed gross
insubordination towards Mrs
Nel in the presence of her clients. In a third incident, she
displayed aggression towards and swore at
a fellow worker and she
also swore at a barman at the Walmer Country Club in the presence of
the women’s club captain who complained
to Mrs Nel about the
plaintiff’s conduct. Finally, an incident was reported to Mrs Nel
in which the plaintiff had sworn at a customer.
Mrs Nel has not
dismissed the plaintiff only because she knows her and her family and
knows about the accident.
[35
]
The plaintiff also worked part-time as a waitress for a coffee shop
called Coffee and Company. Its proprietor, Mr Charl Foreman,
was
called as a witness by the Fund. It emerged from his evidence,
however, that he had dismissed the plaintiff because she had failed
to arrive at work and had then failed to attend a disciplinary
enquiry. He was later asked by Mrs Hurter for his views on the
plaintiff
as an employee. In a letter, he recorded that she was ‘very
stressed out in pressure situations’, that she did not listen to
instructions from superiors and often back chatted them, that she
often wanted to change her shift on the day she was meant to work,
that she was not very reliable and that she was ‘not always a team
player, especially under stressful situations’.
[36] Two of the
plaintiff’s friends, Ms Leana Nagel and Ms Janine Vermeulen, as
well as her twin brother, Stanton, testified about
the profound
personality change that the plaintiff underwent as a result of the
accident. Their evidence, when boiled down to its
basics, was to the
effect that in a social setting, the plaintiff often behaved
inappropriately – the result of the disinhibition
syndrome – and
that she displayed mood swings with aggressive behaviour.
[37] The Fund
called Mr Ian Meyer, a clinical psychologist, and Mr Lany Martiny, an
industrial psychologist. Mr Meyer was constrained
to concede in the
light of the evidence presented on behalf of the plaintiff – and
particularly the lay evidence of her family,
friends, Mrs Snyman and
Mrs Nel – that there were no realistic prospects of the plaintiff
being employed or keeping any employment
that she may be lucky enough
to obtain. Mr Martiny expressed the view that she might be able to
make something of a living producing
art if she was fortunate enough
to find, and be invited into, a Bohemian type of artists’ colony
but he was unable to suggest where
such a commune might be found.
[38] In the light
of the evidence, of the plaintiff’s witnesses, and the concessions
made by Mr Meyer and Mr Martiny, I am satisfied
that it has been
established that the plaintiff has no realistic prospect of being
employed and that the condition that precludes
her from the job
market is a permanent one. She also has no realistic prospect of
being able to support herself as an artist because
of her inability
to produce art on a sustained basis and because of the personality
disorder which will preclude her from being able
to market herself
and her art.
[39] In the light
of the above evidence, I turn first to the quantification of the
plaintiff’s general damages and then to the quantification
of her
claim for loss of earning capacity.
[B] GENERAL DAMAGES
[40] In determining quantum for
general damages, I am called upon to exercise a broad discretion to
award what I consider to be fair
and adequate compensation. In so
doing, I must: consider a broad spectrum of facts and circumstances
connected to the plaintiff and
the injuries suffered by her,
including their nature, permanence, severity and impact on her life;
take into account the tendency
for awards now to be higher than they
once were, as a result of changing values in our society,
improvements in the standard of living
and the fact that awards have
traditionally been lower in this country than in many others; and
allow myself to be guided by the
broad patterns of awards made by
courts in the past.
1
[41] The approach to be taken when
comparing awards made in similar cases has recently been restated by
Brand JA, in
De Jongh v Du
Pisanie NO
,
2
as follows:
‘
Die benadering wat van oudsher deur
hierdie hof gevolg word, is egter juis andersom … .Volgens hierdie
benadering is die beginsel
juis dat die vasstelling van
nie-patrimoniële skade in die diskresie van die hof is. By die
uitoefening van die hof se diskresie
is vergelyking met toekennings
in vorige sake ‘n nuttige hulpmiddel omdat dit darem vir die hof
die breë parameters oftewel ‘n
patroon aandui waarbinne sy
toekenning tuisgebring moet word. Dit is ook ‘n nodige riglyn omdat
konsekwentheid in toekennings ‘n
inherente vereiste van billikheid
is. Nietemin bly dit steeds ‘n riglyn. Dit vervang nie die hof se
diskresie met ‘n letterknegtige
gebondenheid aan die aangepaste
waarde van vorige toekennings nie.’
[42] After having stated that the
‘stygende tendens van toekennings in die onlangse verlede is, soos
ek alreeds gesê het, duidelik
waarneembaar’, Brand JA proceeded to
warn against attempting to ‘factor in’ the tendency with
mathematical precision. ‘Op
die ou end’, he held, ‘is die
tendens maar net nog ‘n oorweging wat die hof geregverdig is om in
ag te neem wanneer hy, by
die uitoefening van sy diskresie, na vorige
toekennings, veral in ouer sake, as riglyn verwys.’
3
[43
]
The plaintiff was 20 years old at the time of the accident. I have
set out in detail the nature of her physical injuries. Those
injuries
were undoubtedly severe: she was unconscious for ten days, suffered
from both retrograde and post traumatic amnesia, required
surgery to
tend to the many facial fractures she suffered and plastic surgery to
reconstruct her nose and nasal septum. When she
was discharged from
hospital she required constant attention from her mother and could
not so much as feed herself initially. She
suffered from a left sided
visual field defect as a result of trauma to the brain and, of
course, the basofrontal brain injury has
had a permanent and profound
impact on her personality and on her future prospects. It has
resulted in her suffering from a disinhibition
syndrome that has had
a profound effect on her employability, has led to dramatic mood
swings and aggression on her part, has prejudicially
effected
relationships with her parents, siblings and friends and has made it
impossible for her to have meaningful relationships
with men, reduced
her prospects of marrying to nil and made it unlikely that she will
ever have a family of her own. This condition
has dashed her
ambitions for the future and will remain with her for the rest of her
life.
[44] I have
considered the cases that I have been referred to respectively by Mr
Eksteen and Mr Van Der Linde (who appeared for the
Fund). In my view,
certain of the cases referred to by Mr Van Der Linde are
distinguishable because the injuries and their consequences
in those
cases were less severe than the plaintiff’s or because the personal
circumstances of the plaintiffs in those cases differed
markedly from
those of the plaintiff in this case.
4
To the extent that the case of
Combrinck
v Padongelukkefonds
5
is sufficiently similar to this matter, it appears to me that the
award made in it is on the low side, especially when compared to
the
cases referred to by Mr Eksteen, all of which involve serious brain
injuries with permanent long term impacts on the victims.
6
[45] In my view, an
appropriate award for general damages when I consider the plaintiff’s
circumstances in the light of the cases,
and take guidance from the
cases, is R500 000.00.
[C] LOSS OF
EARNING
CAPACITY
[46
]
I
n
Santam
Versekeringsmaatskappy Bpk v Byleveldt
7
Rumpff CJ held that the ‘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’.
[47] In
Southern
Insurance Association Ltd v Bailey NO
8
Nicholas JA dealt with how to approach the problem of quantifying a
claim for this type of loss. He said:
‘
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.’
[48
]
The second method referred to by Nicholas JA is a more rational way
of determining damages because ‘while the result of an actuarial
computation may be 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’.
9
Where actuarial calculations are relied upon, the judge still retains
a discretion in the quantification of damages. In
Legal
Insurance Company Ltd v Botes
10
Holmes JA stated:
‘
In assessing the compensation the
trial Judge has a large discretion to award what under the
circumstances he considers right. He
may be guided but is certainly
not tied down by inexorable actuarial calculations.’
This passage was
specifically cited with approval by Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
.
11
[4
9]
The proper method for determining a plaintiff’s loss was summarised
as follows by Chetty J in
D’Hooghe
v Road Accident Fund
:
12
‘
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.’
[50
]
The plaintiff’s proposed career path was as follows: she would
complete a three year diploma in fine arts, complete a fourth year
which would enable her to convert her diploma into a B. Tech degree,
complete a one year diploma in education, work as a teacher
and
produce art on a part-time basis. She has completed the diploma and,
in 2009 was in the process of doing her fourth year. It
will be
recalled that Mrs Snyman expressed the view that it was unlikely that
the plaintiff would complete her fourth year in 2009
and would
probably have to take two years to complete it.
[51]
But
for the accident, the plaintiff would have completed the fine arts
diploma in 2006, the B. Tech degree in 2007 and the teaching
diploma
in 2008. She would have commenced employment as a teacher on 1
January 2009 and worked until her retirement at the age of
65 years.
As a result of the accident she is unemployable on the open labour
market and has no prospect of earning income by selling
art that she
may produce.
[52]
It
is common cause that prior to the accident the plaintiff was of high
average intelligence or even of superior intelligence. Her
academic
results throughout her schooling and her first year results bear this
out. She was highly regarded by the fine arts lecturing
staff at the
NMMU. She had also always been a highly motivated person.
[53]
Her
retirement age, as a teacher employed in a public school, would have
been 65 years:
section 10(1)(a)
of the
Employment of Educators Act 76
of 1998
stipulates this, although teachers at such schools who are
employed by the governing body rather than the Department of
Education
are not subject to this retirement age and may work beyond
their 65
th
birthday.
[54]
The
calculations relied upon by the plaintiff are conservative.They do
not take into account the following: (a) that the plaintiff
could
work beyond the age of 65 years; (b) that she may be promoted to the
position of head of department or principal or moved into
another
managerial position; and (c) that she would in all likelihood earn
income from selling art that she produced in her spare
time.
[55]
There
is a dispute between the actuaries – Mr Gerard Jacobson, on behalf
of the plaintiff, and Mr Gregory Whittaker, on behalf of
the Fund –
as to the basis for the calculation of what the plaintiff would have
earned as she progressed through the ranks of the
teaching
profession. That difference amounts to less than R400 000.00.
[56]
Collective
Agreement 4 of 2009 – which concerns the pay progression of
teachers -- provides, like its immediate predecessor, Collective
Agreement 1 of 2008, for a salary progression of three percent but it
does away with accelerated pay progressions of three and six
percent
for good and outstanding performers. The saving so effected will,
according to clause 4.3.3, ‘be utilised for a three percent
pay
progression for 2009 and annual pay progression of one percent
thereafter’.
[57]
This
regime must be understood as temporary because clause 3.7 states that
‘it is important to provide for pay progression as a
measure to
acknowledge performance’ and clause 4 deals with how the parties
intend to proceed further with their research into
the development of
an ‘acceptable model for salaries within the teaching profession’.
Once the further research has been done
and translated into a
collective agreement, I am sure that accelerated pay progressions
will again be provided for in respect of
good and outstanding
performers: it is unlikely that the trade unions representing
teachers will agree to salaries of teachers decreasing
and it is
unthinkable that, in a profession such as teaching (of all
professions), excellence will not be rewarded.
[58]
On
this basis, I am satisfied that Mr Jacobson’s base figure of R5 000
000.00 is a fair and reasonable estimate of what the plaintiff
would
have earned but for the accident.
[59]
I
turn now to consider the contingencies. There are both negative and
positive contingencies. The negative contingencies are: the
possibility of errors in the estimation of the plaintiff’s age of
retirement; in calculating future pay progressions; of her taking
early retirement; of unpaid leave for limited periods due to
pregnancy and childbirth; that she may earn something in future; and
the likelihood of illness or unemployment which would have occurred
in any event. Given the plaintiff’s family history, her own
pre-accident personality and the fact that her mother, who is over 50
years of age, is still teaching, the probabilities of the plaintiff
not having worked to retirement age are not high. The other negative
contingencies are also not particularly high.
[60]
As
against these contingencies, there are a number of positive
contingencies to take into account. They are that the plaintiff’s
claim is calculated conservatively in that no provision is made for
income generated by the plaintiff’s art in her spare time,
for
promotion to higher posts in the public education system, for her
finding employment in private schools or tertiary institutions
at a
higher rate of remuneration or for her continuing to work beyond her
retirement age. In addition, she has displayed, since she
was a
standard 7 scholar, a good work ethic and a willingness to work hard
for extra income.
[61]
I
have set out in detail the evidence concerning the plaintiff’s
employability. By the end of the trial it was no longer seriously
in
issue that the plaintiff was entirely unemployable: the evidence of
Mrs Nel and Mr Foreman put the matter beyond doubt. I have
found too
that there is no realistic prospect of the plaintiff earning anything
from selling art: if she produces anything to sell,
the personality
disorder that has devastated her since the accident will make it
impossible for her to market herself and her art
to potential buyers.
[62]
I
have found above that the plaintiff’s pre-accident earning capacity
was R5 000 000.00. I consider a contingency deduction of 15
percent
to be fair and reasonable in the circumstances I have outlined. That
leaves a nett amount of R4 250 000.00. As the plaintiff
has no
prospect of employment in the future, nothing representing future,
post-accident earning capacity can be subtracted from that
figure.
Her loss in respect of loss of earning capacity is R4 250 000.00.
[D] CONCLUSION
[63]
The
plaintiff’s damages are:
R180 875.38 in respect of past
hospital and medical expenses (as agreed);
R4 250 000.00 in respect of loss of
earning capacity; and
R 500 000.00 in respect of general
damages.
This is a total of
R4 930 875.38. The amount of R 243 561.38 representing the interim
payment that I ordered must be deducted from
that amount.
[64]
Consequently,
the following order is made (which takes into account the interim
order that was made by me on 18 June 2009):
The defendants are ordered jointly
and severally:
to pay the plaintiff the amount of
R4 687 313.00 as and for damages;
to pay the
plaintiff interest on the above amount calculated at the legal rate
from a date 14 days after judgment to the date
of payment;
to pay the
plaintiff’s costs including the costs of two counsel; the
reasonable costs of all photographs; the costs of the record;
and
the costs of all medico-legal reports and the qualifying expenses
(if any) of the following expert witnesses: Dr N.E. Ranuga,
Dr J.A.
Azhar, Dr D.F. Malherbe, Dr S.C. Ritter, Dr D. Barclay, Dr H.
Slabbert, Dr C.G. Apostolis, Dr R.J. Keeley, Dr R. Plunkett,
Dr
R.G. Holmes and Mr G. Jacobsen;
to pay interest
on the above costs at the legal rate from a date 14 days after
taxation.
It is recorded
that the first defendant has furnished an undertaking in terms of
s
17(4)
of the Road Accident Fund Act 56 of 1996.
In terms of s
2(8)(a)(iii) of the Apportionment of Damages Act 34 of 1956, the
second defendant is ordered to pay to the first defendant
70 percent
of:
the damages and costs awarded to the
plaintiff on payment thereof by the first defendant to the
plaintiff; and
of all amounts paid by the first
defendant in terms of the undertaking furnished by it to the
plaintiff in terms of
s 17(4)
of the
Road Accident Fund Act 56 of
1996
, from time to time.
________________
C. PLASKET
JUDGE OF THE HIGH COURT
APPEARANCES
For the plaintiff: Mr J.W. Eksteen SC
and Mr J.J. Nepgen instructed by De Villiers and Partners, Port
Elizabeth
For the first defendant: Mr H.J. Van
Der Linde instructed by Wilke, Weiss, Van Rooyen Inc, Port Elizabeth
1
Road Accident
Fund v Marunga
2003
(5) SA 164
(SCA), paras 23-25, 27-29;
Protea
Assurance Co Ltd v Lamb
1971 (1) SA 530
(A);
Wright
v Multilateral Vehicle Accident Fund
1992 (4) C&B E3-31 (N). Cases reported in Corbett and Buchanna
or Corbett and Honey
The
Quantum of Damages in Bodily and Fatal Injury Cases
Cape Town, Juta and Co will follow the mode of citation used above.
2
2005 (5) SA 457
(SCA), para 64.
3
Para 65.
4
See
Radell
v Multilateral Motor Vehicle Accident Fund
1993 (4) C&B B3-3 (T);
Pretorius
v Mutual and Federal Insurance Company Ltd
1996 (4) C&B B4-1 (T);
Prinsloo
v MMF
1997 (4) C&B B4-16 (T);
Mautla
v Road Accident Fund
2001 (5) C&B B3-1 (T);
Botha
en ‘n ander v Santam Beperk
1997 (5) C&B B4-39 (T).
5
2001 (5)
C&B B4-81 (W).
6
Howell v
Standard General Insurance Co Ltd
1976 (2) C&B 665 (E);
Grobbelaar v Meyer
1958 (1) C&B 138 (O);
Woods
v Administrator, Transvaal and another
1960 (1) C&B 134 (T).
7
1973 (2) SA 146
(A), 150C-D. See too Boberg
The
Law of Delict
(Vol 1) Cape Town, Juta and Co: 1984, 538-541; Visser, Potgieter,
Steynberg and Floyd
Visser
and Potgieter’s Law of Damages
(2ed) Cape Town, Juta and Co: 2003, 407-409; Koch
Damages
for Lost Income
Cape Town, Juta and Co: 1984, 131-133; Boberg ‘Law of Delict’
1973
Annual
Survey of South African Law
135, 182.
8
1984 (1) SA 98
(A), 113G-114A.
9
Southern
Insurance Association Ltd v Bailey NO
(note 8), 114D-E. See too
Goldie
v City Council of Johannesburg
1948 (2) SA 913 (W), 920.
10
1963 (1) SA 608
(A), 614F-G.
11
Note 8, 116G-H.
12
SECLD 30 July 2009
(case no.572/07) unreported, para 19.