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[2010] ZAECPEHC 24
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Ambrose v Road Accident Fund (255/09) [2010] ZAECPEHC 24 (1 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
Not
reportable
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 255/09
Dates
Heard: 10 May 2010
11 May 2010
12 May 2010
Date
delivered: 1 June 2010
In
the matter between:
GUY
AMBROSE
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
EKSTEEN,
J:
[1] The plaintiff,
who was 58 years of age at the time, was involved in a motor vehicle
collision on 5 September 2007 in Port Elizabeth
when the vehicle
which he was driving came into collision with another vehicle (
“the
insured vehicle”). He sustained severe bodily injury, most
significantly, a compression fracture of the body of
the 12
th
thoracic vertebra, in and as result of the collision. The plaintiff
instituted action against the defendant in which he claims
damages
for past and future hospital and medical expenses, loss of earning
capacity and general damages for pain and suffering,
discomfort,
disability and loss of the enjoyment of the amenities of life.
[2] The merits were
conceded and the trial was set down in respect of the quantum of the
plaintiff’s damages. At the hearing
I was advised that the
parties had reached agreement in respect of the quantum of past
medical expenses in the sum of R31 679,22.
The defendant has
tendered to the plaintiff an undertaking in terms of the provisions
of
section 17(4)
of the
Road Accident Fund Act, 56 of 1996
in respect
of his future medical and hospital expenses. Appropriate orders in
this regard will be incorporated herein at the conclusion
of this
judgment. What remains for consideration is accordingly the
plaintiff’s claim for the loss of earning capacity and
general
damages.
[3] The plaintiff
is a qualified diesel mechanic and has worked in this capacity and
related fields for all of his working life.
At the time of the
accident he was employed by Rayven’s Auto Mechanical Services
as a working foreman. He was employed
on a freelance basis and did
not enjoy the benefits of a full time employee.
[4] On the day of
the accident the plaintiff was test driving a vehicle in the course
and scope of his employment. The vehicle
which he was driving was
struck from the side and it overturned. He immediately felt that his
back was sore and he says that he
felt a burning pain in his back.
He also had pain in his neck and shoulder. Initially he was unable
to get out of the vehicle
as the door had jammed. When he was
ultimately assisted out of the vehicle both his employer and
paramedics had arrived. He was
advised by the paramedics to go
directly to the casualty section at the hospital. Plaintiff says
that he drove himself to the
hospital in his employer’s
vehicle. At the St George’s Hospital he was sent to have
X-rays taken of his back. He
was required to lie prostrate on a
metal table and to stand rigidly upright against metal machinery for
purposes of the X-ray.
This caused considerable pain of which he
complained to the staff.
[5] After having
considered the X-ray the hospital staff advised the plaintiff that he
had a back spasm and he was given tablets
and told to rest. The
plaintiff testifies that he had never previously experienced back
problems and had been in good physical
health before the accident.
The pain in the neck and shoulder cleared over a few days, however,
the back pain improved marginally
for a brief period upon taking the
analgesic tablets given him before it again became worse.
[6]
The
plaintiff rested for a few days and then returned to work. At work
he encountered great difficulty as he experienced intrusive
pain
whilst his employer was somewhat sceptical of his complaints in view
of the earlier diagnosis that he had merely suffered
a back spasm.
[7] After some time
at work the plaintiff decided to consult a general practitioner, Dr
van Heerden. She prescribed more pain killers
which did not bring
any meaningful relief to the plaintiff. He accordingly went to see a
chiropractor, one Tait. The treatment
administered by the
chiropractor did bring temporary relief for approximately one hour,
whereafter the pain again became more intrusive.
He accordingly
returned to his general practitioner and was attended to this time by
Dr Venter. Dr Venter advised that he should
rather consult an
orthopaedic surgeon.
[8]
At
this juncture the plaintiff resolved, however, of his own accord, to
set up a consultation with Dr Greeff, a neurosurgeon. Dr
Greeff had
a series of X-rays taken, then during or about November 2007,
advised the plaintiff that he had sustained a compression
fracture of
the 12
th
thoracic vertebra in his back. He recommended that the plaintiff
wear a back brace for six weeks and then return to him. This
the
plaintiff did and he was thereafter advised by Dr Greeff that the
injury had commenced its healing process and that no further
treatment should be administered.
[9] Subsequent to
the consultation with Dr Greeff the plaintiff attended upon an
orthopaedic surgeon, Dr de Jonge who prescribed
certain exercises.
Dr de Jonge advised that if surgery were to be carried out the
plaintiff would never work again. In these
circumstances he has
accepted his condition, although he receives physiotherapy at regular
intervals. The physiotherapy alleviates
his pain temporarily and he
continues to use medication several times a day to further subdue the
pain.
[10] Throughout all
this period the plaintiff continued in his employment notwithstanding
ongoing pain and discomfort. Ultimately,
the plaintiff says, the
intensity of the pain simply became unbearable and he resigned from
his employment in March 2010.
[11] Dr Keeley, a
neurosurgeon, testified on behalf of the plaintiff. Dr Keeley
originally consulted with the plaintiff on 26 May
2009. At that time
he expressed the view that the nature of the work which the plaintiff
was required to do was indeed a significantly
aggravating factor of
his back pain which contributed to the prolongation of the symptoms.
He was of the view that by continuing
in his employment the plaintiff
was merely aggravating his condition. Dr Keeley, however, stated
that before any decisions regarding
his prognosis could be made,
adequate radiological investigation with CT scanning of the thoracic
vertebra T10, T11 and T12 and
lumbar vertebra L1 and L2 was
essential. I shall revert to this aspect below.
[12] Upon
consultation with Dr Keeley the plaintiff complained of a feeling as
if there is “something squeezing his rib cage
closed”.
This, the plaintiff says, wakes him at night and bothers him at his
work, particularly if he has to squat or stretch
his arms out over a
workbench. The pain, he complained, is bilateral and over the fourth
and fifth ribs. The plaintiff did not
experience it as an
intercostal pain but felt it more deeply under his ribs. When he sat
in a chair the plaintiff was most comfortable
in a straight backed
position, but he complained that he required arm rests to help lift
him out of the chair and straighten up
before walking off.
[13] He complained
too of low back pain. The pain which he experiences was in the
region of the thoraco lumbar junction. The plaintiff
reported that
the pain in his lower back was aggravated by the various awkward
positions that he works in, particularly when sitting
or stooping
forwards. The pressure over the thoracic lumber junction was very
uncomfortable.
[
14] Finally
the plaintiff complained of cervico-occipital muscle tension headache
which he experienced every day. Physiotherapy
gave him temporary
relief and accordingly he uses various analgesic tablets which he
takes every day.
[15] On examination
the neck showed full cervical movements and no brutes were heard in
the head or neck. There was no cervical
lymphadenopathy. The
thyroid gland was not palpable. Dr Keeley did however note that the
plaintiff was tender to pressure in
the suboccipital triangles.
[16] The
respiratory system appeared healthy on examination and the plaintiff
did not appear to be particularly tender to pressure
over the rib
cage, particularly the lower ribs. The plaintiff conveyed to Dr
Keeley that such pressure did not aggravate the pain
which is
constantly present somewhere deep beneath his ribs. Upon further
examination Dr Keeley noted that percussion along the
ribs and along
the spine was tender over the thoracic lumbar junction at the gibbus,
but this was not referred along the ribs.
Dr Keeley, in evidence,
attributed this pain to the compression fracture which plaintiff
sustained.
[17] The spinal
examination revealed an obvious gibbus at the lumbo thoracic junction
and there was some scoliosis in the lower
thoracic and upper lumbar
region, because the plaintiff tended to tilt to the right with some
minor rotation of the lower thoracic
spine. Dr Keeley noted that the
plaintiff was a tall man who tended to stoop. The range of movement
of the cervical spine was
full when measured on an Inclinometer.
When bending forward, however, the plaintiff was hesitant and reached
about three quarters
of the way between his knees and his toes.
Straightening up was obviously uncomfortable. Left and right lateral
flexion (lumbar)
and extension of the back (lumbar) all appeared
restricted to about half the normal range and obviously painful.
[1
8] Dr
Keeley had occasion to reassess the plaintiff almost a year later on
26 April 2010, a mere two weeks before the commencement
of the trial.
By this time the plaintiff had been forced to give up his work as a
motor mechanic in consequence thereof that the
pain at the thoracic
lumbar junction had become increasingly incapacitating. A CT scan of
the thoracic lumbar junction had also
been performed with significant
findings. Dr Keeley recorded that he has studied the X-rays and that
the compression fracture
of T12 is more marked in this high quality
investigation than had been considered on the plain X-ray studies.
The X-rays provide
evidence of a bilateral facet joint injury at the
T12/L1 level. Dr Keeley expressed the view that there was also
involvement of
the posterior elements of T11 and T12 which have long
since healed.
[19
] Ms
Letitia Strauss, an occupational therapist, conducted an assessment
of the plaintiff’s current condition on 13 April
2010. Her
findings accord in every material respects with the evidence of Dr
Keeley. She testified that she was advised by the
plaintiff that he
was experiencing pain, mainly in his back and in his ribs. He
reported that this pain was aggravated by physical
activities, as
well as maintaining static positions for long periods of time. The
pain was somewhat relieved when he rests, or
administers analgesics.
[
20] In
consequence of the aforegoing Ms Strauss conducted a Dallas Pain
Questionnaire which revealed that the pain experienced by
the client
is affecting his daily activities up to 82%. Ms Strauss admitted
under cross-examination that the test is necessarily
subjective and
it reflects only the plaintiff’s perception of his ability and
the extent of his pain. I do not consider
that the criticisms of the
subjectivity of the test necessarily detract from the value of her
evidence in this regard. It accords
with the views expressed by Dr
Keeley that the pain will be constant, although it may be alleviated
to some extent by posture control.
[21]
Loss
of Earning Capacity
Ms Strauss concluded as follows:
“
The client has experienced a
significant decline in participation in leisure time and recreational
activities, including sporting
activities, as well as participation
in social activities, as a result of the injuries sustained in the
accident.
He is currently independent in
personal care activities, but has some difficulties with performing
all of his activities of daily
living, especially domestic chores and
home management chores.
Mr. Ambrose made an
effort to cope with his vocational duties since returning to work
after the accident. Although he was no longer
able to perform all
the physical duties as required in his job, he still attempted them
to the best of his abilities, and acted
in an advisory capacity where
he could not perform any duties. He reported difficulties with some
core activities of his job,
which are essential in his line of work,
including getting underneath a vehicle, leaning over the engine of a
vehicle while working
on the engine, lifting and carrying of heavy
items including car batteries (typically weighing between 15 and
30kg), and assuming
and maintaining static positions, whether
underneath or above a car engine. He also has some difficulties with
bending, kneeling,
stooping and crouching, especially if required to
maintain these positions. Taking into consideration his injury, and
the sequelae
of this injury, the assessor is of the opinion Mr.
Ambrose is no longer capable of performing the above-mentioned duties
of his
job successfully, and that he would only aggravate his
condition should he continue in attempt to perform such duties.”
[
22] I
have already stated that at the time of the trial the plaintiff had
terminated his employment in consequence of the pain that
he
suffered. In respect of his current ability Ms Strauss concluded as
follows:
“
Based on
observations and reports arising from the assessment and perusal of
the available documentation, the assessor is of the
opinion that Mr.
Ambrose is only capable of sedentary work, which is defined as work
involving lifting of no more than 10 pounds
(approximately 4,5kg) at
any time, and only carrying of light items such as docket files,
ledgers and small tools. A sedentary
job is further defined as a job
that primarily requires sitting, with occasional standing and
walking. However, in the field of
automechancial work, it is not
common to find a job of sedentary nature, unless in a supervisory or
advisory capacity only, and
such positions are not usually abundantly
available. Considering Mr. Ambrose’s educational and
vocational background, it
would not be advised he sought work outside
of the automotive industry, as he is qualified in this industry, and
only has experience
(be it extensive) in this filed of work. Facts
that could further impair Mr. Ambrose’s employability, is his
age, as well
as his race (based on Employment Equity Act principles).
The assessor is cautious to state that
Mr, Ambrose is still employable in the open labour market, but it has
to be noted that he
will not be able to successfully perform the
duties of a job that he is qualified or experienced to do, and will
most probably
have to accept a sedentary job, one which he is most
likely not qualified for or has any experience in, such as an
administrative
position, and which will most definitely be at a
significantly lower wage as he would have earned in his own job.
In the light of all
of the above, the assessor wishes to conclude that Mr. Ambrose has
been severely compromised with regards to
vocational abilities and
income potential, as he is no longer considered capable of performing
the duties of his own job successfully,
and it is considered unlikely
that he will find suitable alternative employment in his field of
expertise, at his current remuneration
level.”
[2
3] These
concluding remarks of Ms Strauss accord with the opinion of Dr van
Daalen, an industrial psychologist who testified on
behalf of the
plaintiff. Dr van Daalen predicted that in his current physical
condition the plaintiff his prospects of obtaining
a suitable
sedentary position in the job market are very limited. Dr van Daalen
ventured to estimate that the plaintiff has a
5-10% prospect of
obtaining such a position which would probably attract a remuneration
of between R4 000-R5000.
[2
4] The
plaintiff in fact returned to his employment virtually immediately
after the accident, albeit with some measure of discomfort.
He makes
no claim for past loss of earnings prior to the date of his
resignation from Rayven’s Auto Mechanical Services
during March
2010.
[2
5] In
the Particulars of Claim the plaintiff avers that at the time of the
collision he was employed with Rayven’s Auto Mechanical
Services as a foreman motor mechanic on a freelance basis where he
earned R50 per hour, working 10 hours per day, five days per
week.
On the pleadings he contended that he would have continued in such
employment until the age of 70. In view of the injuries
which he
sustained the plaintiff contends that he is now unemployed and
unemployable on the open labour market. The amount of
R820 900
claimed in the Particulars of Claim is actuarially calculated on the
basis of the averments set out in the Particulars
of Claim apparently
on the assumption that he worked such hours 52 weeks per annum.
[2
6] In
evidence the plaintiff handed in two weekly payslips from Rayven’s
Auto Mechanical Services for the week commencing
15 January 2010 and
the week commencing 22 January 2010 respectively in support of his
alleged earnings. The weekly payslips reveal
that the plaintiff
worked 40 hours per week as normal time and 12 hours per week as
overtime. He earned R2 652,56 per
week. Notwithstanding
some tentative suggestion in cross-examination that the plaintiff is
currently still able to continue in
his employment as a foreman motor
mechanic, the uncontradicted evidence of Dr Keeley, Ms Strauss, the
plaintiff and Dr van Daalen
is to the contrary. In his initial
report in 2007 Dr Keeley already expressed a measure of surprise that
the plaintiff managed
to perform his duties. I am satisfied that the
evidence clearly establishes that the plaintiff is currently unable
to perform
the functions which his previous job demands.
[2
7] It
is common cause that the plaintiff is currently not employed. It is
also common cause that the plaintiff is able currently
to perform a
purely sedentary function provided he were able to find an employer
who would be prepared to permit him to move around
from time to time
and even to lie down when necessary. Dr van Daalen has predicted
that the plaintiff has no more that a 5-10%
prospect of obtaining
such employment and then at a much reduced remuneration.
[2
8] None
of the aforestated evidence was contradicted. During
cross-examination Mr
Frost
,
who
appeared on behalf of the defendant, repeatedly stated that one De
Villiers, the owner of Rayven’s Auto Mechanical Services
would
testify. Similarly references were repeatedly made to the evidence
of Ms Corrie de Witt, an occupational therapist and Mr
Hannes Swart,
an industrial psychologist who, it was suggested, would differ with
the views of Ms Strauss and Dr van Daalen. None
of these witnesses
were called. The matter accordingly falls to be decided on the
evidence of the plaintiff’s witnesses.
[2
9] The
evidence of the plaintiff himself was that he would have continued
working at Rayven’s Auto Mechanical Services, but
for the
collision, in his capacity as a foreman motor mechanic until the age
of 70. The proposed retirement age, but for the collision,
formed a
subject of much debate at the Bar during cross-examination. Dr van
Daalen conceded that the normal retirement age is
65 and that
mechanics working to the age of 70 would be the exception rather than
the rule. He testified, however, that one frequently
finds in the
case of artisans, including mechanics, that they do not have any
pension benefits or any other income post retirement
and that they
have made insufficient provision for retirement. In such case,
provided they were in good health, one would generally
find that such
persons would continue in their employment beyond the normal
retirement age. Their skills, so Dr van Daalen opines,
are sought
after and they would experience no difficulty in obtaining
employment. Dr van Daalen testified that the plaintiff was
such a
person and that he expected the plaintiff would probably have
continued in his employment until the age of 70, but for the
collision.
[
30] The
plaintiff himself testified that he had no intention of retiring at
the age of 65 and that he could not afford to do so.
The prediction
that he would have been able to continue in his employment beyond the
age of 65 is further supported by the evidence
of Dr Keeley and Ms
Strauss.
[
31] I
consider that on the overwhelmingly evidence it has been established
on a balance of probability, that but for the accident,
the plaintiff
would have continued in his employment as a foreman motor mechanic
for as long as he was able to do so and would
have continued in
employment beyond the age of 65, probably to the age of 70.
[3
2] Mr
Alex Munro, an actuary, has calculated the plaintiff’s probable
earnings, but for the accident, on an acceptance of
the aforegoing
considerations from 12 March 2010 to a retirement age of 70 in the
sum of R816 600. Save for the assumed income,
the further actuarial
assumptions utilised in the calculation are admitted.
[3
3] The
plaintiff’s earning capacity having regard to the accident was
a matter of considerable debate in evidence. I have
already recorded
the uncontested evidence of Dr van Daalen in respect of the
plaintiff’s prospects of obtaining employment
in the formal job
market. His conclusion accords with the evidence of Ms Strauss and I
have little hesitation in accepting the
correctness thereof.
[3
4] During
cross-examination, however, Mr
Frost
,
on behalf of the defendant, referred the plaintiff to a number of his
tax returns, which were discovered by plaintiff, over the
period 2006
to 2009. It is apparent from the tax return for the financial year
ending February 2008, that the plaintiff reflected
“turnover/sales”
of R208 880. This clearly far exceeds the earnings which the
plaintiff received from Rayven’s
Auto Mechanical Services and
is indicative of substantial additional income. The same tax return,
however, reflects “cost
of sales” in the amount of R122
307. No explanation is given in the document in respect of the
“cost of sales”.
These documents do not show whether the
plaintiff held stock on hand at the year end and if so, how much.
[3
5] The
tax returns for the year ending February 2009, reflect a
“turnover/sales” of R238 458. This too far exceeds
the
income which the plaintiff contends that he earned from Rayven’s
Auto Mechanical Services. These tax returns, similarly,
reflect
“cost of sales” in the amount of R140 976. Again the
document gives no explanation for these figures.
[3
6] In
evidence the plaintiff was unable to account for these figures and
testified that all the source documentation which might
indicate the
source of these earnings and the nature of these expenses were
retained in a box at his home. He did however say
that subsequent to
the collision, in desperation, his has dabbled in the sale of used
motor vehicles and sourcing used motor spares
after hours. He
testified that he has indeed purchased computer equipment and that he
has built up many contacts which have been
very worthwhile. This
evidence should be seen in the light of Dr Keeley‘s evidence in
respect of plaintiff’s future
plans. Dr Keeley testified,
inter alia, as follows:
“
His personality is such that he
cannot remain idle.
Mr Ambrose sees a
great opportunity for working though the internet sourcing and
trading in used motorcar parts. Unfortunately
he is not computer
trained but believes that he could manage what he considers would be
a very lucrative business.
His son is a software developer and
would assist him to a considerable extent.
Advancing into this realm of financial
activity which he could manage at home is significantly hampered by
the fact that he cannot
sit still for more that an hour. He has to
get up and move around.
He must take
Syndols, although only half the amount that he was taking while
working as a mechanic.
He also needs to
lie down for 30-60 minutes more than once a day when the pain in his
back gets worse. He can walk around answering
the telephone but
bobbing up and down out of a chair causes him significant pain.”
[3
7] Ms
Strauss, in her report reports as follows:
“
According to
client, he is currently investigating the possibility of starting a
business dealing with the selling and distribution
of used spare
parts.”
[38] Later in her
report she records as follows:
“
Mr. Ambrose
has led the assessor to believe that he is not able to retire
currently, as he will not be able to financially support
himself and
his family, and maintain his current lifestyle, without a steady
income. He is therefore investigating alternative
vocational
opportunities at the moment, and is hoping to secure an income again
within the next 2-3 months.”
[3
9] In
her evidence, however, Ms Strauss testifies that she again canvassed
this issue with the plaintiff on the morning of trial
and that the
plaintiff now advises that such an ambition is not viable. The
evidence of the plaintiff himself is not as clear-cut.
[
40] Dr
van Daalen conceded that the plaintiff had not confided in him in
respect of such additional endeavours at generating income.
He
expressed considerable scepticism relating to the plaintiff’s
intended business endeavours on the basis that the plaintiff
has no
experience in business and has no related qualification. He doubted
whether the plaintiff would succeed in such a business,
but conceded
that he was unable to make a meaningful assessment as he had not been
afforded the opportunity to investigate these
activities whether for
the financial years 2008 and 2009 or at all. Dr van Daalen was
however, constrained to concede that the
plaintiff was able to
continue such a business from home.
[
41] It
is accordingly clear that the plaintiff did not take Ms Strauss or Dr
van Daalen into his confidence in respect of his actual
business
activities. Mr
Frost
,
on behalf of the defendant, argued that I should accordingly find
that it is not possible to approach the plaintiff’s loss
of
earning capacity on the basis of an actuarial calculation and that I
should accordingly provide for loss of earning capacity
in a lump sum
included in the award for general damages.
[4
2] In
this regard, in the matter of
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
at 113F-114A Nicholas JA sated as follows:
“
The second attack on the
judgment of the trial Court was that
an actuarial computation
was inappropriate in the present case for the reason that it was
based on assumptions and hypotheses so
speculative, so conjectural,
that it did not afford any sound guide to the damages which should be
awarded.
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.”
[43] Later at p. 114C-E Nicholas JA
states as follows:
‘
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 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.’
[44] In the present matter I am
satisfied that the assumptions which form the basis of the
calculation of the plaintiff’s
anticipated earnings, but for
the accident, rests upon sound assumptions firmly supported in
evidence. Some allowance must, be
made, for the possibility that the
plaintiff would indeed have retired prior to reaching the age of 70
and for the probability
that the plaintiff would, in any event, have
worked lesser overtime as his age advanced. Indeed, as stated above,
the plaintiff
worked on a freelance basis and would accordingly be
remunerated only for actual hours worked. Any illness or leave taken
would
accordingly reduce his income and must be recognised in any
reduction of the calculated amount to provide for these
contingencies.
[45] Having regard to the accident and
the injuries which the plaintiff sustained, the plaintiff contends
that he is for all practical
purposes unemployable. The evidence is
strongly supportive thereof that the prospects of the plaintiff
obtaining gainful employment
in a structured job market are very
limited. This, however, does not present the full picture.
[46] Regrettably, the
plaintiff
did not take Dr van Daalen into his confidence in respect of his
other commercial activities which has served to handicap Dr van
Daalen in his endeavours to assess the prospects of future earnings
from such activity. Dr van Daalen indeed expressed the view
that he
believed that the plaintiff would attempt some activity aimed at
generating earnings but was sceptical as to the success
thereof. The
evidence further establishes that the plaintiff could conduct such
activity from home. In my view, the impediments
to such an endeavour
which are set out in the evidence of Dr Keeley and to which I have
referred above are, however, real. I am
equally persuaded that the
basis for Dr van Daalen’s scepticism, which I have also set out
above, is a factor which militates
against the plaintiff’s
prospects of conducting a lucrative business at home.
[47] Notwithstanding the aforegoing I
consider that an allowance must be made for the possibility of a
larger income post accident
from a modest business conducted at home
than could be anticipated from employment in the structured job
market. On the evidence
in this matter I do not consider that the
benefits gained from the actuarial calculation should be entirely
abandoned. On a consideration
of the actuarial calculation and the
considerations set out above I am of the view that R600 000 in
respect of loss of earning
capacity would represent fair
compensation.
[48]
General
damages
In assessing an award for general
damages the court has a broad discretion to award what it considers
to be fair and adequate compensation.
The court will generally be
guided by awards previously made in comparable cases and will be
alive to the tendency for awards
to be higher in recent years than
was previously the case.
(Compare
De
Jong v Du Pisanie NO
2005 SA 457D-E.)
In
considering previous awards it is appropriate to have regard to the
depreciating value of money due to the ravages of inflation.
It
would however be inappropriate to escalate such awards by a slavish
application of the consumer price index. (See
AA
Onderlinge Assuransie Assosiasie Bpk v Sodoms
1980 (3) SA 134.)
[49] I have set out the injuries which
the plaintiff sustained and the immediate sequelae thereof above. By
all accounts the
plaintiff
was a fit and healthy individual prior to the collision. He is now
destined to spend the remainder of his life in constant pain
and he
is being prevented from participating in several activities which he
previously enjoyed. He is no longer able to play pool,
something
which he enjoyed on a weekly basis prior to the collision. He is
unable to participate in off-road driving with his
friends, an
activity which he pursued from time to time prior to the accident.
The intrusive pain to his back has effectively
terminated his sex
life. He suffers from regular headaches and takes medication for
pain on a regular basis. He requires regular
physiotherapy to
control the pain.
[50] In seeking to guide me to an
appropriate award counsel have referred me to numerous previous
awards which they contend to be
comparable. I do not intend to
analyse each of those decisions. Suffice it to say that I have had
regard to the facts of each
of those matters, to the awards that were
made in each case, to the effect which the ravages of inflation have
had on the value
of such awards and to the recent tendency in our
courts to make more generous awards. I considered all the facts of
this matter.
I have attempted to take care so as to ensure that the
award which I make is fair to both sides, to give just compensation
to
the
plaintiff
but not to “pour out largesse out from the horn of plenty”
at the expense of the defendant. (Compare
Pitt
v Economic Insurance Co. Ltd
1957
(3) SA 284
(D) at 287E-F.) On an assessment of all these
considerations I am of the view that an award of R200 000 in respect
of general
damages for pain and suffering, discomfort, disability
and the loss of the enjoyment of the amenities of life would be fair
to
both sides.
[51] In the circumstances the
defendant is ordered:
1. To pay to the
plaintiff
the amount of R831 679,22 as and for damages together with interest
calculated at the legal rate from a date fourteen (14) days
after
judgment to the date of payment.
2. To furnish the
plaintiff
with an undertaking in terms of the provisions of
section 17(4)(a)
of the
Road Accident Fund Act No. 56 of 1996
, to pay to the
plaintiff the costs of future accommodation in a hospital or nursing
home, or the treatment of, or the rendering
of a service to, or the
supply of goods to the plaintiff, as a result of the injuries
sustained by him in the motor vehicle
collision which occurred on 5
September 2007, and the sequelae thereof, after the costs have been
incurred and upon proof thereof.
3. To pay the
plaintiff
’s
costs of suit together with interest thereon calculated at the legal
rate from a date fourteen (14) days after
allocator
to the date of payment,
such costs to include:
3.1 The costs of photographs and one
pre trial inspection
in
loco.
3.2 The reasonable preparation
fees/qualifying expenses, if any, of the following experts.
3.2.1 Dr R J Keeley
3.2.2 Ms Letitia Strauss
3.2.3 Dr H J van Daalen
3.2.4 Mr A J Munro
3.2.5 Dr D F Malherbe
3.2.6 Dr
M Els
3.2.7 Dr
J van Jaarsveld
3.2.8 Dr
F Visser
3.
2.9 Dr
E Steenkamp
________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For
the Plaintiff:
Adv
D Niekerk
instructed by Jock Walter Inc Port Elizabeth
For
the
Defendant:
Adv
A Frost
instructed by Boqwana Loon & Connellan
Port
Elizabeth