About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 15
|
|
Wright v Road Accident Fund (3425/09) [2011] ZAECPEHC 15 (5 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 3425/09
Date
Heard: 23-28 March 2011
Date
Delivered: 5 May 2011
In
the matter between:
DEVON
SHAW WRIGHT
….............................................................................
Plaintiff
and
THE
ROAD ACCIDENT FUND
…................................................................
Defendant
JUDGMENT
EKSTEEN
J:
On 7 December 2007 the plaintiff,
then 21 years of age, was involved in a motor vehicle collision in
Buffelsfontein Road, Port
Elizabeth. He was the driver of a
motorcycle which came into collision with a motor vehicle. He
sustained very severe bodily
injuries in as a result of the
collision.
The plaintiff claims damages herein
from the defendant in the total amount of R9 087 136,77 which is
made up as follows:
1. Past Hospital Expenses R 127 555,95
2. Past Medical Expenses R 33 809,82
3. Future Medical Expenses R 780
000,00
4. Costs of a handyman and
domestic assistant R 800 000,00
5. The costs of modification to
the home environment R 20 000,00
6. The cost of an automatic
motor vehicle R 50 000,00
7. Loss of earning capacity R6 275
771,00
8. General damages R1 000 000,00
[3] On 1 September 2010 and at a
pre-trial conference in terms of the provisions of Rule 37 of the
Uniform Rules of Court the defendant
conceded the merits of the
plaintiff’s claim. In addition, the plaintiff’s claim for
past hospital expenses in the
amount of R127 555,95 was admitted as
was the past medical expenses in the amount of R33 809,82. At the
pre-trial conference the
defendant agreed that it would furnish the
plaintiff with an undertaking in terms of section 17(4)(a) of the
Road Accident Fund
Act, 56 of 1996 (the Act) “in respect of
future medical and hospital expenses” arising out of the
injuries sustained
by the plaintiff in the accident.
[4] Pursuant to the agreements reached
I made an order on 16 September 2010 that the defendant pay to the
plaintiff an amount of
R1 500 000,00 as an interim payment and that
the defendant is to furnish to the plaintiff an undertaking in terms
of section 17(4)(a)
of the Act. I am advised that the defendant has
complied with this order. I pause to mention that notwithstanding the
formulation
of the agreement contained in the Rule 37 conference as
set out above, when the matter came before on 23 March 2011 Mr
Spruyt
, who appeared on behalf of the defendant
confirmed the defendant’s agreement that the claims in respect
of a handyman and
domestic assistant, the costs of modifications to
the home environment of the plaintiff and the additional cost of the
provision
of an automatic motor vehicle were all to be considered to
be “rendering of a service or supplying of goods” to the
plaintiff as envisaged in section 17(4)(a). This, in my view, is
correct and accordingly the claims relating to the handyman and
domestic assistant, the modifications to the home environment of the
plaintiff and the provision of an automatic motor vehicle
are all to
be covered under the undertaking given in terms of section 17(4)(a)
of the Act. To the extent that the undertaking already
given may be
limited to future medical and hospital expenses, I shall make an
order at the conclusion hereof that an undertaking
in the terms of
section 17(4)(a) be given. What remains in issue is accordingly the
quantum of the plaintiff’s loss of earning
capacity and general
damages.
[5]
General Damages
The plaintiff was 21 years of age at
the time of the collision and in excellent health. The evidence
establishes that he enjoyed
his sporting activities at school and in
particular his participation in rugby and athletics. He attended the
Newton Technical
School in Port Elizabeth where he successfully
completed Grade 10. After being unsuccessful in Grade 11 he returned
to the Technical
School to repeat Grade 11 before resolving to leave
school prematurely in order to take up employment. In his last two
years at
school he had played in the first rugby team of his school
and participated in the Eastern Province Schools Trials. At all times
prior to the collision he had enjoyed outdoor activities and enjoyed
motorcycling and fishing.
[6] In the collision the plaintiff
suffered a wedge compression fracture of Level T12 of the vertebral
body with comminution, a
vertical AP spilt fracture through the
vertebral body with retropulsion of the posterosuperior portion of
the body impinging on
the spinal canal. He suffered stenosis of the
spinal canal caused by the retropulsion of bone fragment with
impingement and compression
of the conus of the spinal cord. In
addition he sustained minor injuries to his head, chest, neck, upper
limbs, lower limbs and
pelvis including multiple abrasions.
[7] He was initially transported by
ambulance to the St George’s Hospital Trauma Unit. He was a
complete paraplegic in the
early stages after the collision and was
transported to the Greenacres Hospital for a MRI which confirmed the
spinal fracture.
On 8 December 2007 he had a laminectomy of the L1
level performed and a posterior spinal fusion of Level T12 and L2
done with transpedicular
screws and rods. Bone grafts were also
performed.
[8] Upon completion of these surgical
procedures the plaintiff was advised by Dr Azhar that he had a fifty
percent chance of being
able to regain walking function.
Understandably, the plaintiff was deeply traumatised upon receiving
this news and cried uncontrollably
for the remainder of that day. He
was initially constipated and from the outset suffered from urinary
incontinence. He was initially
tearful and depressed.
[9] On 14 December 2007 the plaintiff
was transferred from the St George’s Hospital to the Aurora
Rehabilitation Centre. There
he continued to experience urinary
incontinence and in addition was unable to control his bowel
movements and was required to wear
nappies. This he found greatly
humiliating. After several days at Aurora the plaintiff slowly
started to regain some movement and
feeling in his lower limbs. The
rehabilitation treatment which was administered was painful and
demanding. Due to the loss of sensation
and the inability to control
his bowel movements he would only become aware of the fact that he
had soiled himself when he became
aware of the unpleasant odour. He
was catheterised from the outset and was tearful and emotionally
labile during the early rehabilitation
phases.
[10] Whilst at Aurora Hospital the
plaintiff had various setbacks including a reopening of a surgical
wound on his back which required
treatment. He was eventually
discharged from Aurora Hospital at the end of January 2008 in a
wheelchair and returned home. During
the initial period at home the
plaintiff was mostly confined to a wheelchair and could ambulate
around the house for short distances
with the aid of crutches.
[11] At home plaintiff was totally
reliant upon family and friends for almost all aspects of his daily
living. He continued to suffer
from a lack of control of his bladder
and his bowel functions and his girlfriend, Chantelle Roberts,
assisted in his catheterisation.
[12] On 30 June 2008 plaintiff
required further surgery to his left foot and ankle for a deformity
and muscle imbalance where a
Z-lengthening of the Achilles tendon was
performed. In April 2009 he required a further operation to his left
ankle.
[13] With appropriate questioning Dr
Richard Holmes, an industrial psychologist, determined the overall
sequelae of the accident
and the impact which it had upon the
plaintiff. He records that the plaintiff experiences ongoing pain of
his back and both his
lower limbs. He experiences ongoing spastic
contractions of both lower limbs and experiences hypersensitivity,
reduced sensation
and loss of sensation in his legs. He has poor
balance resulting in him regularly falling and being unable to walk
in the dark
or upon uneven surfaces. He is unable to run or even to
walk quickly. His ability to remain standing or sitting for long
periods
is limited and he cannot remain seated in one position for
any length of time. Ascending or descending steps is difficult and he
experiences ongoing compromised lower limb function/dexterity. He has
a greatly compromised agility and the reduced mobility as
a
consequence of his spastic gait.
[14] On an emotional level the
plaintiff expresses a reduced level of motivation, intermittent moods
of depression and increased
irritability. He has an ongoing emotional
lability and a diminished self-confidence which in turn has led to
reduced social interaction
and relational difficulties.
[15] He is left with a reduced libido,
partial erectile dysfunction, ejaculatory difficulties and a loss of
normal orgasmic function.
[16] It is now more than three years
since the accident and the plaintiff still requires to make use of a
catheter twice daily,
a situation which is likely to persist
indefinitely. His is still only able to walk with the use of a crutch
which, Ms Ansie van
Zyl, an occupational therapist, opines is likely
to deteriorate over time.
[17] He has been left totally
unemployable, a consideration to which I shall revert below. He has
lost virtually all those amenities
which previously brought meaning
to his life and from which he derived great enjoyment. Plaintiff
testified that he is totally
unable to participate in off-road
motorcycling, an activity which he pursued regularly and from which
he derived great pleasure.
[18] From a very young age he assisted
his father in the garage workshop with mechanical maintenance tasks
and with time developed
a considerable skill in this regard. Apart
from his sport it was his prime interest whilst at school and, as
will appear below,
laid the foundation for the career which he was
about to embark upon. He is now entirely unable to participate in
even the most
menial mechanical tasks. His inability to participate
in these activities has, at least in his own mind, caused a measure
of separation
between him and his father, a bond which was previously
very tight.
[19] He regularly participated in and
enjoyed fishing and played rugby both at school and thereafter. These
activities are entirely
beyond his current abilities. Both he and his
girlfriend, Chantelle, testified that they have lost most of their
friends and that
they have very little if any social interaction at
present.
[20] The plaintiff was a young man at
the time of the accident in a steady relationship with Chantelle, a
relationship which still
persists and they intended to be married.
The impairment of the plaintiff’s sexual ability is a matter of
considerable concern
to himself which impacts upon his confidence in
the relationship. Indeed when the subject of marriage or a future
family is raised
the plaintiff avoids the subject.
[21] On a consideration of all these
factors I am called upon to determine his reasonable general damages.
In determining the quantum
of general damages the court has a broad
discretion to award what is considered to be fair and equitable
compensation having regard
to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries suffered by
him including their nature,
permanence, severity and impact on his
lifestyle. The plaintiff has suffered severe injury of a permanent
nature which has impacted
upon virtually every facet of his life. His
dreams of a future career and a stable family life have been
shattered. Ms van Zyl
has expressed the view that his mobility
appears to be deteriorating and is likely to deteriorate further in
future. Mr Mark Eaton,
a clinical psychologist, has expressed the
view in evidence that the mental and physical health of the plaintiff
appears to be
deteriorating. His very considerable and continuous
discomfort was readily evident in the witness box where he sat down
intermittently
and complained regularly of cramps in his legs.
[22] Mr
Nepgen
, on
behalf of the plaintiff, has referred me to a number of awards made
in our courts in cases which he submits involved injuries
of
comparable severity. In each case he has referred me to the current
day value of the awards made as calculated by the actuary
Koch in his
“
Quantum Yearbook
”.
[23] He has also referred me to the
decision of
Wright v Multilateral Motor Vehicle Accident Fund
reported in Corbett and Honey, Vol 4 at E-3-31 and in particular to
the passage at E3-36 where Broom DJP stated as follows:
“
I consider
that when having regard to previous awards one must recognise that
there is a tendency for awards now to be higher than
they were in the
past. I believe this to be a natural reflection in the changes of
society, the recognition of greater individual
freedom and
opportunity, rising standards of living and a recognition that our
awards in the past have been significantly lower
than those in most
other countries.”
[24] Having regard to this passage and
to the awards made in the decisions which Mr Nepgen has referred to
he submits that an appropriate
award for general damages in the
present matter would be R850 000,00.
[25] Mr
Spruyt
, who
appeared on behalf of the defendant has similarly referred me to a
number of awards made in matters which he considers to
be comparable
cases and their present day values. No purpose would be served herein
by my seeking to analyse the facts and circumstances
of each of those
decisions. Every case differs in its facts from the next and every
case falls to be decided on its own peculiar
facts and the impact
which the injuries may have had on the particular individual
concerned. I have given careful consideration
to each of the cases to
which I have been referred and they have provided useful guidance in
assessing the appropriate award to
be made in the present matter. I
have had regard to the effect which the ravages of inflation have had
upon the value of money
since such awards were made and I have
attempted to assess a compensation which will be fair to both
parties. I have sought to
guard against the temptation to “pour
out largesse from the horn of plenty” at the expense of the
defendant in sympathy
for the injured plaintiff. (Compare
Pitt
v Economic Insurance Co. Limited
1957 (3) SA 287
(N).)
[26] On a consideration of all the
factors set out above I have concluded that an award of R750 000,00
would reflect fair compensation
for general damages.
[27]
Loss of earning capacity
In respect of the claim for loss of
earning capacity the plaintiff has tendered much evidence both in
respect of his pre-accident
expectations and his post-accident
condition. Much of the evidence relating to his post-accident
condition is set out above and
finds equal application to the claim
for general damages. The defendant has tendered no evidence at all
and the evidence on behalf
of the plaintiff is largely unchallenged.
I refer to the significant features thereof below.
[28] I have referred earlier to the
plaintiff’s childhood passion for mechanical activity. This he
had learned from his father.
The plaintiff’s father qualified
as a fitter and turner and as a welder. He worked first for the South
African Transport
Services and later joined General Motors in Port
Elizabeth. There he had progressed to the position of maintenance
coordinator
where he had approximately 26 artisans working under his
supervision prior to the accident. The plaintiff always regarded his
father
as a role model and enjoyed assisting him in his workshop.
[29] Mr Wright confirmed the evidence
of the plaintiff relating to his passion for mechanical things. He
testified that the plaintiff
had acquired considerable skill in the
workshop and he has expressed the view that the plaintiff had a good
talent to develop as
an artisan. Both he and the plaintiff testified
that whilst still at school the plaintiff had worked during his
vacations at large
engineering concerns such as Tiger Engineering and
Ellard Engineering. He had developed his mechanical skills to the
extent that
he started to earn an income in his spare time over
weekends whilst still at school.
[30] Immediately prior to the accident
the plaintiff had been employed by Demag Cranes and Components (Pty)
Limited (Demag) as an
artisan’s assistant. He was an assistant
to Mr Morgan. Morgan testified that the plaintiff was one of the best
assistants
he ever had. He says that, had he not known better, he
would have thought that the plaintiff was qualified as an artisan.
The plaintiff
was hardworking and excellent with mechanical work. He
showed much initiative and a considerable interest in electrical
work, the
real area of Morgan’s expertise. Morgan states that
the plaintiff discussed with him his future plans. He had said that
he
intended to return to school to complete his Grade 12 N3
qualification and then to do an apprenticeship. The plaintiff had
indeed
resigned shortly before the accident from Demag, which the
plaintiff says was done in order to return to his studies. Mr
Grobbelaar,
the area manager for Demag in the Eastern Cape, testified
that he had spoken to the plaintiff prior to his resignation. He
confirms
the evidence of Morgan both in respect of the quality of the
plaintiff’s work and his future intentions. Grobbelaar
testifies
that Demag would certainly have taken the plaintiff on as
an apprentice in view of their experience with him in the time that
he
had spent with them. Whilst it was the company’s policy only
to take on matriculants he says that he had a discretion, in
deserving cases, to deviate from that policy. In the case of the
plaintiff the company knew what they had in him and even if the
plaintiff failed to obtain a matriculation he would certainly have
taken the plaintiff on.
[31] Dr Holmes, an industrial
psychologist expressed the opinion that it was strongly probably that
the plaintiff would have qualified
as an artisan, and possibly as a
millwright (an artisan qualified in two different trades). He
concluded that the plaintiff did
have the necessary attributes and
skills to have qualified as a millwright. In this regard he stated as
follows:
“
Undoubtedly,
Mr Wright did have the aptitude to successfully complete
apprenticeship training and to qualify himself as an artisan.
While
it had been his ambition to become a qualified millwright, the
possibility that he may have qualified in a different discipline
as
an artisan (motor mechanic, fitter, fitter/turner, etc) could not be
excluded. Importantly, however, Mr Wright was extremely
well
motivated to ultimately qualify himself as a millwright and certainly
had demonstrated the mechanical and electrical aptitude
needed to
apply his knowledge in the two trades.”
[32] This opinion accords with the
evidence received from the lay witnesses in this trial. Dr Holmes
testified that there is a growing
shortage of artisans in South
African and that the plaintiff would therefore not have experienced
any difficulty in obtaining employment.
Indeed given his father’s
extensive exposure in the industrial field in Port Elizabeth Dr
Holmes is of the view that the
plaintiff would have been an
advantaged work seeker in the area. This too is borne out by the
evidence of Mr Grobbelaar. Dr Holmes
predicts that on a consideration
of the plaintiff’s pre-morbid personality traits, his past work
experience, his future intentions
at the time of the accident and the
dire skills shortage In South Africa, it is significantly probable
that the plaintiff would
have progressed in his chosen trade to at
least a supervisory level.
[33] On an acceptance of the evidence
of the plaintiff, his father, Grobbelaar and Morgan, none of which
was seriously challenged,
the plaintiff would have returned to his
studies in 2008. Dr Holmes predicts, as a probable career path, that
the plaintiff would,
but for the accident, have commenced an
apprenticeship in January 2010, would have qualified as an artisan
and possibly a millwright,
progressing in the trade to a supervisory
position by the age of 40 to 43 and retiring at the age of 65. In
reality, however, in
view of the acute skills shortage in South
Africa many artisans progress more rapidly in the workplace and
continue to earn for
several years after their normal retirement age.
Dr Holmes has, on the strength of reputable employment surveys which
are periodically
published in South Africa, ventured what he
considers to be typical earnings through the career path of an
artisan. In the event
that the plaintiff would have qualified as a
millwright Dr Holmes has expressed the view that his earnings would
probably have
been approximately 12 to 15 percent higher than that of
an ordinary artisan. Whilst some of the opinions expressed by Dr
Holmes
were somewhat tentatively questioned in cross-examination no
conflicting evidence was adduced.
[34] Using the opinions expressed by
Dr Holmes in respect of the plaintiff’s probable qualifications
and career path, had
he not been injured, and assuming that the
plaintiff would have earned salaries in line with Dr Holmes’s
estimates, Mr Gerard
Jacobson, an actuary, has made a calculation of
what the plaintiff would have earned in the remainder of his working
life had he
not been injured.
[35] It is not in dispute that the
plaintiff is now, as a result of his injuries, not a contender for
employment in any capacity
on the open labour market.
[36] It is now trite that in our law
the defendant must make good the difference between the value of the
plaintiff’s estate
after the commission of a delict and the
value it would have had if the delict had not been committed. The
capacity to earn money
is considered to be part of a person’s
estate and the loss or impairment of that capacity constitutes a
loss, if such loss
diminishes the estate. (See for example
Dippenaar
v Shield Insurance Co. Ltd
1979 (2) SA 904
(A) at 917B-C.)
[37] The assessment of future loss of
earning capacity presents obvious difficulties. These were discussed
in matter of
Southern Insurance Association Limited v Bailey NO
1984 (1) SA 98
(A) at 113F-114E where Nicholas JA stated as follows:
‘
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. …
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. …’
[38] Mr Jacobson has calculated the
value of the plaintiff’s earning capacity but for the accident,
on the assumptions set
out above, in an amount of R6 169 452,00 if
the plaintiff had simply become an artisan and R6 721 662,00 if he
had become a millwright.
The actuarial soundness of the calculations
have not been challenged at all. The assumptions set out in the
evidence of Dr Holmes
were challenged in cross-examination but not
contradicted by evidence. I am satisfied that Dr Holmes has laid a
sufficiently sound
basis for the assumptions underlying the
calculation for me to place reliance upon the actuarial approach.
Indeed, in argument
before me Mr
Spruyt
, on behalf of
the defendant, did not contend otherwise.
[39] The calculations made by Mr
Jacobson has, correctly, had no regard to contingency adjustments.
That is a matter for the court
to do.
[40] Whilst accepting the actuarial
calculation as an attempt to ascertain the value of what was lost on
a logical basis, a judge
is not “tied down by inexorable
actuarial calculations”. He has “a large discretion to
award what he considers
right”. (Compare Holmes JA in
Legal
Assurance Co. Ltd v Botes
1963 (1) SA 608
(A) at 614F.) One
of the elements in exercising that discretion is the making of a
discount for “contingencies” or
the “vicissitudes
of life”. The amount of such a discount may vary, depending
upon the circumstances of each case.
(See for example
Van der
Plaats v South African Mutual Fire and General Insurance Co. Ltd
1980 (3) SA 105
(A) at 114-5.)
[41] The assessment of the necessary
adjustment to be made in each case is, like the assessment of the
future damages, not a matter
which can be accurately calculated. Thus
Nicholas J, as he then was, concluded in
De Jongh v Gunther and
Another
1975 (4) SA 78
(W) at 80F as follows:
“
In the
assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanack,
is not numbered among the qualifications for judicial office.”
[42] It follows that the rate of such
a contingency discount cannot be assessed on a calculated basis. It
is largely arbitrary and
will always depend upon the judge’s
impression of the case. (Compare
Southern Insurance Association
v Bailey NO
supra
at 116H-117A.)
[43] Mr
Spruyt
has
submitted that I should adjust the calculated damages down by
approximately 35% for the particular contingencies which arise
in
this case. Mr
Spruyt
argues that the plaintiff may not
have attained his matric qualification. This of course so, however,
Dr Holmes has given consideration
to this possibility. Dr Holmes
states as follows:
“
Although Mr
Wright would probably have experienced difficulty in achieving the
required proficiency level in mathematics and science,
given his
scholastic limitations, he would not have experienced any difficulty
in completing the practical training of both the
electrician and
mechanic (the millwright being a two trade artisan). Importantly,
communications with Mr Grobbelaar, of Demag,
revealed that Mr Wright
had, during the course of his period of employment at Demag, worked
as an artisan’s assistant to
electricians, fitters and
millwrights.
Having been exposed to the work and
functional activities of the aforementioned artisans, Mr Wright
gained valuable experience in
the broad domains of manufacture,
installation, repair and servicing of heavy industrial equipment.”
[44] The predicted career path which
underlies the actuarial calculations is therefore not dependent upon
the plaintiff’s
academic achievements at school. It is
significant that the salary scales which Dr Holmes has suggested as
typical earnings for
an artisan relate to artisans with Grade 10
qualifications and not matriculants. In these circumstances it seems
to me that this
particular consideration of the plaintiff’s
scholastic ambitions are largely immaterial to his future earnings.
[45] Mr
Spruyt
argues
that the plaintiff may not have found employment with Demag for any
number of reasons, for example, lack of need for an
apprentice,
closure of the plant, etc. This is also true, however, Mr
Grobbelaar’s evidence provides very good reason to
assume that
the plaintiff would indeed have obtained such a position. Even if he
had not obtained employment with Demag the evidence
of Dr Holmes is
that he would have had no difficulty in obtaining employment. In this
regard his father has been an artisan in
Port Elizabeth for many
years and he has built up a formidable network of contacts in
industry in Port Elizabeth. Indeed, it was
his connections which
originally secured the plaintiff’s employment with Demag.
Secondly, Dr Holmes considered that the plaintiff
has in his own
capacity shown such attributes in his brief employment record that he
would, without his father, have obtained employment.
This evidence is
supported by Grobbelaar and Morgan. Finally, and most significantly,
the evidence of Dr Holmes is that there is
a considerable shortage of
skills in the industrial sector in South Africa and this evidence
stands uncontradicted. In these circumstances
it seems to me that
there is a sound basis for the predicted career path with or without
Demag.
[46] Mr
Spruyt
suggests
that allowance should be made for the possibility that the plaintiff
may not have qualified as a artisan. The mere fact
that the plaintiff
had not yet qualified at the time when the accident occurred requires
that I should be alive to the possibility
that he may not have done
so. I have referred above to the evidence of Dr Holmes in this regard
which stands uncontradicted and
I am accordingly of the view that
this consideration should not be exaggerated.
[47] Mr
Spruyt
argues
that Demag operates mainly in the motor industry and it is a
well-known fact that any decline in the economy affects the
motor
industry and especially its support contractors and suppliers
negatively which in turn results in short time and even retrenchments
being applied. This too is so, however, it would be wrong to regard
all “vicissitudes of life” as being always negative.
Nicholas JA, in
Southern Insurance Association Limited v Bailey
NO
supra
referred with approval to the dictum of
Windeyer J in the Australian case of
Bresatz v Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213 where he is quoted as follows in
respect of contingencies:
‘
It is a
mistake to suppose that it necessarily involves a “scaling
down”. What it involves depends, not on arithmetic
but on
considering what the future may have held for the particular
individual concerned … (The) generalisation that there
must be
“a scaling down” for contingencies seems to be mistaken.
All “contingencies” are not adverse: all
“vicissitudes”
are not harmful. A particular plaintiff might have had prospects or
chances of advancement and increasingly
remunerative employment. Why
count the possible buffets and ignore the rewards of fortune? Each
case depends on its own facts.’
[48] There is no reason on the
evidence before me to believe that a down turn in the fortunes of the
motor industry is more probable
than a boom.
[49] In any event, the calculations of
the plaintiff’s loss is not tied to Demag. His employment
prospects as an artisan were
rosy even without Demag. He may have
secured a more remunerative position than predicted and the motor
industry may have flourished
beyond current expectation.
[50] Mr
Spruyt
suggests
that the calculations have been done on the best possible scenario
for the plaintiff and are accordingly overly optimistic.
I do not
agree. They have had no regard to the probability of post retirement
earnings, they have ignored additional income which
he may have
earned in his spare time over weekends and they proceed on a very
conservative assessment of promotion prospects as
it emerges from the
evidence of Dr Holmes.
[51] There are, however, a number of
considerations which do suggest a downward adjustment of the
calculated figure. Firstly, the
plaintiff was a very young man at the
time when the collision occurred. The claim is accordingly calculated
over an extended period
of time during which adverse events may have
arisen. Secondly, the plaintiff intended to embark upon a career as
an artisan where
working conditions are necessarily more hazardous
than a career behind a desk. Thirdly, the plaintiff has been rendered
unemployable
in consequence of the accident and accordingly
recognition must be given to the saving which he will have in respect
of working
clothing and transport to and from his place of
employment. On consideration of all the factors I am of the view that
an appropriate
adjustment to the actuarial calculations is to accept
the lesser calculation, that based upon the career path of an
ordinary artisan
(as opposed to a millwright) and to reduce the
figure arrived at by 15% to allow for the general contingencies of
life and those
specific to this plaintiff.
[52] The evidence establishes that the
plaintiff does not have any realisable residual earning capacity
having regard to his injuries.
In the circumstances I consider that
an award of R5 244 034,00 (R6 169 452,00 less 15%) represents
compensation which is fair to
both the plaintiff and the defendant in
respect of the plaintiff’s loss of earning capacity.
[53] In the result the plaintiff’s
damages (excluding those covered by the section 17(4) undertaking)
arising from the accident
are assessed as follows:
1. Past Hospital Expenses R127 555,95
(as agreed)
2. Past Medical Expenses R 33 809,82
(as agreed)
3. Loss of Earning Capacity R5 244
034,00
4. General Damages
R750 000,00
Total
R6 155 399,77
[54] The plaintiff’s claims
relating to future medical expenses, the costs occasioned by the
necessary future employment of
a handyman and domestic assistant, the
cost of the future modifications to the plaintiff’s home
environment and the additional
costs of an automatic motor vehicle
are to be covered by an undertaking in terms of section 17(4)(a) of
the Act. As recorded at
the commencement of this judgment I am
advised that such an undertaking has already been given in respect of
future medical and
hospital expenses pursuant to an order which I had
previously given relating to an interim payment. The undertaking is
to be in
the terms of section 17(4)(a) of the Act.
[55] In the result it is ordered that
the defendant:
1. Pay to the plaintiff the sum of R6
155 399,77 as and for damages. (It is recorded than an amount of R1
500 000,00 of the R6 155
399,77 has already been paid as an interim
payment.)
2. Pay interest to the plaintiff on
the outstanding amount of R4 655 399,77 calculated at the legal rate
from a date fourteen (14)
days after the date of this judgment to the
date of payment.
3. Provide the plaintiff with an
undertaking in the terms of
section 17(4)(a)
of the
Road Accident
Fund Act, 56 of 1996
.
4. Pay the plaintiff’s costs of
the suit as taxed, such costs to include:
4.1 The costs of the reports and
qualifying expenses, if any, of
4.1.1 Dr Azhar
4.1.2 Dr Audley
4.1.3 Dr Keeley
4.1.4 Dr Coetzee
4.1.5 Mr Deon Rademeyer
4.1.6 Dr Garish
4.1.7 Mr Mark Eaton
4.1.8 Dr Richard Holmes
4.1.9 Ms Ansie van Zyl
4.1.10 Mr David Williams
4.1.11 Mr Gerard Jacobson; and
4.2 The costs of the photographs
handed in in evidence.
5. Pay interest to the plaintiff on
the plaintiff’s taxed costs calculated at the legal rate from a
date fourteen (14) days
after
allocatur
to the date of
payment.
_________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv
Nepgen
,
instructed by De Villiers & Partners, Port Elizabeth
For Defendant:
Mr
Spruyt
instructed by Friedman & Scheckter, Port Elizabeth