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[2011] ZAECPEHC 5
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Raupert v Road Accident Fund (2153/2008) [2011] ZAECPEHC 5 (1 February 2011)
1
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Cases No: 2153/2008
In the
matter between:
MONIA
RAUPERT
…................................................................................................
Plaintiff
and
THE
ROAD ACCIDENT FUND
….......................................................................
Defendant
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
NEPGEN,
J
[1] During the evening of 9 June 2006 the plaintiff, who was a
pedestrian at the time, was knocked down by a motor vehicle in the
parking area of the Boardwalk Casino, Port Elizabeth. In this
collision she sustained a serious head injury. As a consequence the
plaintiff instituted action against the defendant for the recovery of
damages allegedly suffered by her. Although initially denying
liability, it is no longer in dispute that the defendant is liable
for all damages the plaintiff can prove she has suffered.
[2] The trial commenced before me during March 2010. I was then
informed that, insofar as the plaintiff’s claim for future
medical and hospital expenses is concerned, the defendant had decided
to furnish the plaintiff with an undertaking in terms of
section 14
(4) (a) of Act no 56 of 1996 and that it was also anticipated that
agreement would be reached on the plaintiff’s
past medical and
hospital expenses. What I was required to determine was the quantum
of the plaintiff’s past and future loss
of earnings and her
general damages. After evidence had been led for a number of days,
the matter was postponed and resumed during
October 2010. By the time
the evidence was completed the parties had indeed reached agreement
on the quantum of the plaintiff’s
past medical and hospital
expenses.
[3] The head injury sustained by the plaintiff was described by Mr
Keely, a neurosurgeon, as “very significant”. Mr
Keely
elaborated on this by stating that there was extensive fracturing of
the plaintiff’s skull with bifrontal lobe contusions
involving
the left frontal region. There was also bifrontal traumatic
subarachnoid haemorrhage. There was generalised brain oedema,
with
some compression of the right lateral ventricle caused by a
developing right intratemporal haematoma. It is probable that
the
head injury included diffuse axonal injury.
[4] With regard to the plaintiff’s injuries, the treatment she
received, and the extent of her recovery, there is very little
in
dispute. A number of medico-legal reports prepared by medical
practitioners, who either treated or examined the plaintiff, were
placed before me by agreement. These are to be found in exhibit A.
The only expert witnesses who testified were Mr Keely; Dr Plunkett,
a
clinical psychologist; Ms Van Zyl, an occupational therapist; and two
industrial psychologists, namely Mr Martiny on behalf of
the
plaintiff and Mr Swart on behalf of the defendant. A number of lay
witnesses also gave evidence, with the focus of their testimony
being
on the changes that had occurred in the plaintiff after the accident.
As the trial progressed it became clear that there
was also very
little dispute in this regard. The only significant difference of
opinion was between the two industrial psychologists,
and then only
in respect of the manner in which to determine the plaintiff’s
most probable future earning capacity had she
not been injured (her
pre-morbid earnings) and, to a much lesser extent, the approach with
regard to calculating the probable earnings
consequent upon the
accident (her post-morbid earnings). This latter aspect has now been
resolved, as dealt with more fully in
paragraph [22] hereunder. In
all the circumstances it is my view that it is unnecessary to set out
in detail the evidence given
by all the witnesses. I consider it
sufficient to provide a summary of such evidence. The evidence of the
industrial psychologists,
will, however, have to be dealt with more
fully.
[5] The plaintiff was born on 22 July 1985. Up until the time of the
accident the plaintiff excelled in virtually everything she
put her
hand to. Her scholastic record was impressive; she exhibited
leadership qualities; she did well at sport; she got on well
with
other people; and her intelligence was in the superior to very
superior range.
[6] At the time of the accident the plaintiff was a second year
student at the Nelson Mandela Metropolitan University. She was
studying for a diploma in photography and she also studied
architectural draughting on a part time basis. In addition to this
she was in casual employment as a shop assistant at a photographic
outlet known as Photo-Exellence. She had thought of studying
for a
degree in microbiology, but for financial reasons did not do so. Be
that as it may, the plaintiff was doing very well in
her studies. It
is clear from the evidence, not only from the plaintiff herself but
also from some of the other lay witnesses,
that the plaintiff had
intended pursuing a career in photography. The ultimate goal she had
set for herself, or perhaps more appropriately
referred to as an
ideal, was to become a photographer for National Geographic Magazine.
[7] After the accident the plaintiff was taken to St George’s
Hospital. Initial treatment was conservative in nature. On
15 June
2006 a craniotomy was performed to drain a right temporal lobe
haematoma. On 24 June 2006 the plaintiff was discharged
from
hospital.
[8] Up until the time of the plaintiff’s discharge from
hospital she behaved strangely. At times she appeared to become
violent, she also appeared to be irritable, and was extremely
confused. After returning home she continued to display behavioural
differences when compared to what she was like before the accident.
As time passed she improved, but the plaintiff is not what
she was
like before the accident.
[9] A major problem the plaintiff experiences is that her memory, and
in particular her short-term memory, has been affected. From
being
someone who is able to remember things the plaintiff now has to make
notes in order to remember. The problem is exacerbated
by the
plaintiff at times forgetting what she wishes to write down. She is
unable to deal simultaneously with as many things as
she could before
the accident.
[10] It appears that the plaintiff was somewhat of a perfectionist
prior to the accident. She now finds that she is unable to do
things
as well or as quickly as she could before the accident. This causes
her considerable frustration. The plaintiff has lost
the
self-confidence she previously had. She feels at times that she is
not coping, something which never occurred before the accident.
She
also doubts her judgment.
[11] It is apparent that the plaintiff experiences some pain, but I
do not consider this to be significant when compared to her
other
problems. The only exception in this regard is her headaches, which
at times are very severe. A further problem is that the
plaintiff has
lost her sense of smell and her sense of taste is limited.
[12] The aforegoing is a brief summary of the after effects of the
plaintiff’s head injury. . A concise description of the
plaintiff’s situation is to be found in the summary at the
commencement of the report of Dr. Plunkett, where he states:
“
She demonstrates the direct effects of
brain injury mainly in terms of executive difficulties which prevent
the effective use of
her measured intellect. She also shows
significant emotional reactions to the effects of her injuries in the
form of anxiety, depression,
with a marked reduction in
self-confidence. (The plaintiff) is likely to have difficulties with
higher education and more so in
the application of her knowledge in
the work setting. She is unlikely to achieve anything near her
pre-morbid potential in the
work place. In addition she is likely to
have problems in the interpersonal domain and perhaps in independent
functioning.”
[13] Of considerable significance, in my view, is that the fact that
the plaintiff is fully aware that she is a different person
to what
she was previously; and is also aware of what she has lost. I have
mentioned that she becomes frustrated at times, and
I also detected a
hint of sadness when she testified regarded her changed situation
[14] In determining the quantum of the plaintiff’s general
damages I have considered the cases to which counsel referred
me. I
do not propose to discuss those cases as they provide very little
assistance other than to enable the awards made in them
to be
considered for general comparative purposes. Plaintiff’s
counsel suggested that an appropriate award for general damages
would
be R1 million. Defendant’s counsel suggested that an award of
R450 000,00 would adequately compensate the plaintiff.
It is my view,
as I have already mentioned, that a very significant factor in the
present matter is the plaintiff’s awareness
of what she has
lost and the unrelenting mental anguish associated therewith. I have
come to the conclusion that an appropriate
award for general damages
would be an amount of R750 000,00.
[15] I turn now to consider the claims for loss of income. As I have
mentioned, the plaintiff was interested in becoming a microbiologist,
but she did not proceed with this due to financial constraints. She
commenced a correspondence course towards obtaining a diploma
in
interior decorating and architectural draughting in 2004. The
interior decorating course was completed during 2005. During that
same year she commenced a fine art course at the Nelson Mandela
Metropolitan University with a view to obtaining a National Diploma
in photography. She continued with this after the accident and
obtained the diploma during October 2007. She also completed the
architectural draughting course during that year. When she returned
to university after the accident she found things far more
difficult
than before, and the evidence indicates that she required assistance
and a sympathetic lecturer to enable her to complete
the courses.
[16] During 2005 the plaintiff obtained her part time employment,
which has been referred to above, with Photo-Excellence. She
commenced full time employment at Photo-Excellence during October
2007. She terminated this employment during November 2008 because
of
what can be described as emotional problems. Thereafter she took up
employment with her mother, doing design and data processing
work.
She also does photography and has a website where she refers to
herself as Monia Raupert Photographer. However, it would
seem that
she does more work editing photographs of other photographers than
doing her own photography, and appears not to have
sufficient
confidence in her abilities to do certain photographic shoots, for
example weddings.
[17] It is not in dispute, and correctly so, that the after-effects
of the plaintiff’s head injury are such that she will
be unable
to achieve what she would have been capable of had she not been
injured. It is clear that prior to the accident the plaintiff
was
functioning at a high level in regard to her studies and that her
future career outlook was very positive when regard has had
to her
personality, interests, and intelligence. Although she is obviously
still an intelligent person, her intelligence has been
adversely
affected. Her changed personality, forgetfulness, lack of confidence,
impatience and mood swings will prevent her from
achieving anything
close to what she would have been capable of had she not been
injured.
[18] The two industrial psychologists were requested to project the
plaintiff’s probable career path and earnings had she
not been
injured and her present probable career path and earnings (as already
indicated, her pre-morbid and post-morbid earnings).
Before Martiny
testified he and Swart got together to see to what extent they could
reach agreement. They prepared a joint minute,
which was handed in as
Exhibit “X”. They were unable to reach agreement with
regard to the plaintiff’s probable
career and earnings had she
not been injured. In this regard Martiny projected the plaintiff’s
future earnings on the basis
of a system referred to as the Paterson
system, which he explained was a rating system. He stated that he
used this system because
he was dealing with a plaintiff with many
capabilities; that he was not sure what the plaintiff would have done
in future and that
he did not want to limit her; that she probably
would have been able to succeed in many different things; and that
people change
according to their wishes and according to
opportunities presented by life. According to this rating system,
jobs are graded in
increasing complexity in terms of decision making
and responsibility. Swart, on the other hand, was of the view that
because of
the plaintiff’s expressed interest in photography
and the fact that she had enrolled for a national diploma, her future
career
path should be based on this. However, because there are no
details available as to what a photographer could earn, he projected
the career path of the plaintiff on the basis that she would have
entered the film industry. Both agreed that the plaintiff would
have
progressed until the end of the year 2035. The figures provided by
Martiny and Swart differ because of the different approaches
adopted.
In addition, Martiny considered that the plaintiff’s promotion
to the Paterson D3 level in the year 2036 should
be considered as
having a 50% chance of occurring, whereas Mr Swart was of the view
that no allowance should be made therefore
as it was merely a
possibility and not a probability.
[19] In projecting the plaintiff‘s career path as a
photographer in the film industry, Swart referred to the fact that he
had previously been involved in a similar matter involving a
cameraman in the film industry who had been injured on a movie set.
This person, one Schmitt, had given Swart a lot of information with
regard to the film industry. He also consulted other persons,
who are
referred to in his report, Exhibit “MM”. It was on the
basis of the information he obtained that he provided
the figures set
out in his report.
[20] Counsel were in agreement that the plaintiff’s pre-morbid
earnings should be determined according to the projected career
paths
as set out by the industrial psychologists, with it being contended
on behalf of the plaintiff that Martiny’s approach
was the one
that I should accept, while the defendant contended that I should
accept the approach adopted by Swart. During his
testimony Swart
confirmed that he had used the Paterson scales in similar cases and
that this would have been the easiest approach
in the present matter.
He said that he would, in fact, have had no problem in adopting an
approach based on that rating system
had it not been for the fact
that what he had been told by the plaintiff indicated to him that she
would have followed a career
in photography; and that he would have
been more than comfortable using a general career path, as Martiny
had done, if the rating
system took into account salaries which
applied to photographers, but that this system was not based on any
surveys conducted relating
to photography. Martiny conceded this,
but, as I have stated, he said that he did not want to limit the
plaintiff because she might
have changed her mind and that the rating
system gave an indication of what a person of her capabilities could
earn. Swart did
not dispute that the plaintiff had exceptional
capabilities prior to the accident. While conceding that the
plaintiff had the potential
to become a top photographer, he stated
that at the age of 20 years she would not have known that she was
going into film making.
He confirmed that his career path was
premised on film making all the way through.
[21] I have no little difficulty in concluding that the approach
adopted by Swart should be rejected. It is to be noted that he
never
discussed with the plaintiff the possibility of her entering the film
industry. When the plaintiff testified, it was never
suggested to her
that she might have done so. I find it difficult to understand how it
can now be said that her probable future
income should be determined
according to a specific career path which the plaintiff herself had
never considered following and
which she was never even asked about.
The impression I gained was that Swart, having previously plotted a
career path in the film
industry in the matter involving Schmitt,
seized upon this and used it in this matter without there being any
real basis therefor,
other than that as a photographer the plaintiff
would have used a camera. Furthermore, and although this is not
conclusive in deciding
which of the opinions of the industrial
psychologists should be accepted, I found Swart to be an unimpressive
witness. He became
aggressive at times. He was also extremely
sarcastic on occasions. He appeared to become irritated when his
views were questioned.
He certainly did not create the impression of
an unbiased witness. Martiny, on the other hand, was a most
impressive witness. He
gave his evidence in a calm manner and
explained why he adopted the approach he had. In the circumstances I
consider it appropriate
to determine the plaintiff’s probable
pre-morbid earnings on the basis of the figures provided by Martiny.
The fact that
the rating system is not based on salaries earned by
photographers is something that I believe should be taken into
account when
it comes to considering contingencies.
[22] In the course of preparing my judgment in this matter I
experienced certain difficulty concerning the approaches adopted by
the industrial psychologists relating to the plaintiff’s
post-morbid earnings. As a result I contacted counsel and discussed
these difficulties with them. This resulted in a further rule 37
conference being held on 26 January 2011. The minute of that
conference has been furnished to me and I have marked it Exhibit
“NN”. What occurred at this conference was that the
parties in fact reached agreement on the amount of the plaintiff’s
past and future post–morbid earnings, inclusive
of the
allowance to be made for contingencies, in a total amount of R 1 240
979.00. As a result it is not necessary for me to decide
which of the
different approaches adopted by the two industrial psychologists
should be accepted. Obviously, this has made my task
considerably
easier and I am grateful to the parties’ legal representatives
for their assistance in this regard. What I must
now determine is the
amount to be allowed in respect of the plaintiff’s past and
future pre-morbid earnings, and to deduct
from that amount the agreed
amount of R 1 240 979.00.
[23] As I have mentioned, it is my view that the plaintiff’s
pre-morbid earnings should be calculated with reference to the
approach adopted and figures provided by Martiny. An actuarial
certificate of value, based on those figures, was handed in as
Exhibit “Z”. The parties are in agreement that if the
plaintiff’s pre-morbid earnings are to be determined on
the
basis of figures furnished by Martiny, the calculations set out in
Exhibit “Z” must be excepted. The date of calculation
was
30 September 2010. Based on these figures the plaintiff’s
earnings, had the accident not occurred, until the date of
calculation, would amount to R 327 292 and the plaintiff’s loss
thereafter, until retirement age of 65 years, would amount
to R 9 084
915.00. The latter figure includes provision for a 50% chance of
promotion from 2036 until the plaintiff reaches 65
years of age in
the year 2050.
[24] In the present instance there can be no doubt that there is a
considerable amount of speculation involved in trying to quantify
the
plaintiff’s future loss of income, particularly as the approach
adopted by Martiny has not been based on salaries earned
by
photographers. Insofar as the past losses are concerned, I propose to
deduct 5% for contingencies. This was the deduction suggested
by
plaintiff’s counsel, which was referred to by defendant’s
counsel as being appropriate. Insofar as the future pre-morbid
earnings are concerned, plaintiff’s counsel suggested that an
amount of 15% would be appropriate, having regard in particular
to
the fact that there was a very real probability, so it was submitted,
that the plaintiff would have progressed further in her
career than
Martiny had actually allowed for. Defendant’s counsel, on the
other hand, contended that because of the uncertainty
and the absence
of specific figures relating to a photographic career, a deduction of
between 25% and 30% should be made if the
plaintiff’s loss is
to be calculated on the basis of the approach adopted by Martiny. It
is my view, because the plaintiff’s
loss is to be determined
without specific reference to what she could have earned had she
followed a photographic career and the
further uncertainty as to the
precise nature of the career she would have followed, that a
deduction of 20% for contingencies would
be appropriate. Making these
deductions, a total amount of R 7 578 859.00 is arrived at. From this
amount must be deducted the
amount of R 1 240 979.00. The plaintiff’s
past and future loss of income is accordingly R 6 337 880.00.
[25] The amount of damages the plaintiff is accordingly entitled to
be awarded is R 7 193 132.51, made up as follows:
a) Past medical and hospital expenses R 105 252.51
b) Past and future loss of income R 6 337 880.00
c) General damages
R 750 000.00
R 7 193 132.51
The parties were in agreement as to what the appropriate costs order
would be in this matter, save that there was no agreement
in respect
of the qualifying expenses of the clinical psychologist, Mr. Meyer.
Mr. Meyer was not called as a witness by the plaintiff,
but it was
not for this reason that the defendant objected to his qualifying
expenses being allowed. The objection related to what
defendant’s
counsel referred to as “doubling”, which, as I understood
it, was that the plaintiff had employed
the services of both Mr.
Meyer and Dr. Plunkett, and that the employment of two expert
witnesses with the same qualifications amounted
to “luxurious
litigation”, which should not be for the expense of the
defendant. Relying on the cases of
Stauffer Chemical Co and
Another vs Safsan Marketing and Distribution Co(Pty) Ltd and Others
,
1987 (2) SA 331
(AD) at 355 E – H and
Cassel and Benedick
NNO vs Rheeder and Cohen NNO
[1991] ZASCA 25
; ,
1991 (2) SA 846
(AD) at 853 E –
I, it was contended on behalf of the plaintiff that the failure to
have called Mr. Meyer as a witness did
not prevent me from awarding
qualifying expenses. However, as I have indicated, the basis of the
defendant’s objection was
not that Mr. Meyer had not been
called as a witness but that there had been a duplication of expert
witnesses, which was unnecessary.
[26] It is my view that no hard and fast rule can be laid down as to
whether or not it would be permissible for a party to employ
two
experts with similar qualifications. That would depend on the
circumstances of each case. In the present instance, on a mere
reading of their reports, there appears to be a difference of opinion
between Mr. Meyer and the clinical psychologist employed
by the
defendant, Ms. Gibson. Cases involving severe head injuries very
frequently give rise to considerable difficulties, with
various
experts giving conflicting opinions. It seems that this was initially
the case insofar as the clinical psychologists were
concerned, and in
the circumstances I do not consider that it was unnecessary for the
plaintiff to have obtained the opinion of
another clinical
psychologist. It was only when Dr. Plunkett testified and pointed out
what were, in his view, similarities between
the conclusions reached
by the clinical psychologists that such similarities became apparent.
Dr. Plunkett’s views in regard
to what appeared to be in
dispute, was that while there may have been a difference in the
approaches the conclusions were essentially
the same. Although, as I
have been at pains to point out, the defendant did not object to Mr.
Meyer’s qualifying expenses
because he had not been called as a
witness, it was presumably because of Dr. Plunkett’s evidence
that the defendant also
did not call Ms. Gibson to testify.
[27] In my view there is a further relevant factor in regard to this
issue. Mr. Meyer was the clinical psychologist who was first
employed
by the plaintiff. He was in court throughout and it was quite clear
that plaintiff’s counsel relied on him in connection
with the
evidence that had to be elicited from lay witnesses and even from Mr.
Keely. In these circumstances it seems to me that
it might have been
more appropriate for the defendant to have objected to the qualifying
expenses of Dr. Plunkett as it was the
plaintiff’s employment
of the latter that gave rise to the so-called “doubling”.
But be that as it may, it is
my view that in the circumstances of
this case there was very good reason for the plaintiff to have
employed the services of two
clinical psychologists. In the
circumstances I consider that it would be proper to allow the
plaintiff the qualifying expenses
of both clinical psychologists.
[28] I make the following order:
The defendant is ordered to pay to the plaintiff the sum of R 7 193
132.51.
The defendant is ordered to pay interest on the aforesaid amount at
the rate of 15.5% per annum from a date 14 days after judgment
to
date of payment.
The defendant is ordered to furnish the plaintiff with an
undertaking in terms of section 17 (4) (a) of Act No 56 of 1996 to
pay 100% of the costs of future accommodation of the plaintiff in a
hospital or nursing home or the treatment of or rendering
of a
service or the supplying of goods to the plaintiff arising from the
injuries sustained by him in the motor collision which
occurred on 9
June 2006, after such costs have been incurred and upon proof
thereof.
The defendant is ordered to pay the plaintiff’s costs of suit,
such costs to include:
The costs attendant upon the employment of two counsel;
The reasonable qualifying expenses, if any of
Dr L Le Roux, Radiologist;
Dr S Basson, Radiologist;
Dr R Gowar, Medical Practitioner;
Dr W Smith, Ophthalmologist;
Dr D Malherbe, Radiologist;
Dr R Schemmer, Ear,Nose and Throat specialist;
Dr R J Keely, Neurosurgeon;
Dr A Morkel, Neurosurgeon;
Mr L Martiny, Industiral Psychologist;
Mr I Meyer, Clinical Psychologist;
Dr R Plunkett, Clinical Psychologist;
Mrs A Van Zyl, Occupational Therapist;
Ms Desiree Cornell, IRIS Practioner; and
Arch Actuarial Consultants.
The costs involved in attending an inspection
in loco
with
counsel;
4.4 The costs of the photographs;
4.5 The costs involved in attending to a joint inspect
in loco
with attorney and counsel together with defendant’s attorney
and counsel;
and
4.6 The costs involved in preparing the plan and key of the scene of
the collision;
The defendant is ordered to pay interest on the taxed costs at the
rate of 15.5% per annum from a date 14 days after allocatur
or
agreement to date of payment.
J J NEPGEN
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff: Adv Frost and Adv Price instructed by Roelofse
Meyer Inc
For the defendant: Adv Van der Linde and Adv Dala instructed by
Boqwana Loon & Connellan