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[2012] ZAECPEHC 37
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Abrahams v Road Accident Fund (1531/2010) [2012] ZAECPEHC 37 (29 May 2012)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 1531/2010
Date
Heard: 18 May 2012
Date
Delivered: 29 May 2012
In
the matter between:
RAFIEK
ABRAHAMS
…...............................................................
Plaintiff
and
ROAD
ACCIDENT FUND
….....................................................
Defendant
JUDGMENT
EKSTEEN J:
[1] The plaintiff who was 41 years
old at the time sustained severe bodily injuries in a motor vehicle
collision which occurred
in Stanford Road, Port Elizabeth on 17 June
2007. The accident occurred when the vehicle driven by the plaintiff
came into collision,
head-on, with an oncoming vehicle. As a result
of the injuries sustained in the collision the plaintiff suffered
damages and he
has instituted action against the defendant for the
recovery of such damages.
[2] At the commencement of the trial
the defendant conceded the merits and acknowledged that it was liable
to compensate the plaintiff
for such damages as the plaintiff was
able to establish that he has suffered in consequence of the injuries
which he sustained
in the collision. In addition, the defendant
admitted the plaintiff’s damages in respect of past hospital
expenses in the
amount of R130 824, 44. It also indicated that
it wishes to tender an undertaking in terms of
section 17(4)
of the
Road Accident Fund Act, 56 of 1996
in respect of future medical and
related expenses and requested that an order be made accordingly.
What falls to be decided therefore
is the plaintiff’s loss of
earning capacity, both past and future, and general damages.
[3] The plaintiff alleges that he
has suffered the following injuries in and as a result of the
collision:
1. A badly comminuted proximal right
femur fracture;
2. A fracture of the right patella;
3. A fracture of the right distal
fibula;
4. A fracture of the right medial
malleolus;
5. Severe soft tissue injury to the
left hand;
6. Secretions in the chest;
7. A mild concussive traumatic brain
injury.
[4] The defendant has admitted that
the plaintiff sustained all of these injuries in and as a result of
the collision, save for
the soft tissue injury to the left hand. The
dispute in respect of this injury appears to me to be more apparent
than real. I shall
revert to this aspect below.
[5] The plaintiff contends further
that as a result of the collision and the injuries sustained therein
he developed a chronic post-traumatic
stress disorder, a chronic
general anxiety disorder, a chronic major depressive disorder, a
chronic social phobia and a pain disorder.
The defendant has
similarly admitted all these sequelae too, however, as I shall show
later, the evidence placed before me establishes
that both the
general anxiety disorder and the social phobia were pre-existing
conditions which were exacerbated as a result of
the collision and
the injuries sustained.
[6] I was handed a bundle of
medico-legal reports and I was advised from the Bar that all of the
medical reports, bar one, that
of Ms van Zyl, to which I revert
later, were admitted. The admission, I was advised, entails an
admission of the correctness of
the conclusions arrived at and the
opinions expressed in these reports.
[7] These reports set out the
nature, extent and degree of severity of the various injuries and
their sequelae. In this regard I
was referred to the reports of Dr
Daan Joubert, Dr Basil Mackenzie and Dr Colin Audley, all orthopaedic
surgeons, Dr Leandré
Gauché, a psychiatrist, Dr Bawasa,
a family physician, Dr Landman, a radiologist, Dr Peter Whitehead, an
industrial psychologist,
Mr Ian Meyer, a clinical psychologist and Ms
McCrindle and Ms MC Bean, both physiotherapists. To the extent
necessary I shall refer
to these reports later.
[8] Ms van Zyl, an occupational
therapist, testified before me in respect of her examination of the
plaintiff and the plaintiff
himself testified. The plaintiff’s
evidence casts little light on the collision nor on the immediate
consequences thereof.
There is, however, some detail provided in the
admitted reports. In respect of the period of his hospitalisation the
plaintiff
testified only that whilst he was in hospital he was unable
to sit upright on his own nor to stand. He says he was discharged
from
hospital in a wheelchair and upon his arrival at home was unable
to dress himself or to perform any menial tasks for himself. He
was
dependent upon his wife and children, initially completely, and to a
greater or lesser extent for a period of approximately
three months
after his arrival home.
[9] The plaintiff testified in
respect of the injury to his left hand confirming that he hurt the
middle finger. The finger is permanently
swollen and it is painful
when it is cold. This evidence accords with the evidence of Dr
Mackenzie in this regard and was not placed
in dispute. This, it must
accordingly be accepted, is the extent of this injury.
[10] As a result of the collision
the plaintiff’s one leg is shorter than the other and he was
given an assistant device to
wear in his shoe in order to compensate
for the discrepancy. He states however that this device hurt his foot
and as a result of
the pain he discontinued the use thereof. He
continues to experience pain on a daily basis and utilises still pain
tablets to elevate
the pain. When the weather is cold he uses more
than he would on other days.
[11] The plaintiff is a devoted
adherent to the Islamic Faith and was a regular attendee at the
mosque prior to the accident. After
the collision he was totally
unable to attend the mosque for a period of approximately six months,
a matter which caused him considerable
disquiet. In consequence of
the injuries which he sustained to his right leg he is entirely
unable to kneel during prayers and
is required to sit in a chair in
the mosque. He says that his friends began to mock him as a result of
this disability and he has
accordingly now taken to attending a
different mosque where he is not well-known to the congregation.
[12] It is common cause that the
plaintiff was employed at Volkswagen South Africa prior to the
accident as a spray painter and
that he has been unable to return to
his employment since. The pension scheme of which he is a member by
virtue of his contract
of employment is underwritten by Metropolitan
Employee Benefits. The particular scheme is an income continuation
benefit scheme
in terms of which the plaintiff continues to receive a
benefit of 75% of his total salary until his normal retirement age,
subject
to what is set out later herein. The plaintiff testified that
for the first three months after the accident, which is a waiting
period under the scheme, he received 45% of his normal wage and has
since then received 75% of his ordinary income. I shall revert
to
this benefit below.
[13] Plaintiff testified that whilst
employed at Volkswagen he worked different shifts and received shift
allowances, a spray paint
allowance and overtime pay when work was
available. In addition he received an annual bonus equivalent to one
month’s salary
and he did certain private repair work to motor
vehicles from his home in his spare time. In this regard he says that
he performed
bodywork, removing rust from vehicles, spray painting
work and certain mechanical work. He earned, on an average,
approximately
R1 000 per month from such part-time work. The
R1 000 per month he says is a calculation of the average monthly
income.
Upon questioning, however, he was unable to provide any
particulars relating to the period over which the calculation was
done
or the manner in which he arrived at the figure. At best, it
seems that the figure of R1 000 per month is an estimate.
[14] Notwithstanding his injuries
and his inability to return to work he testified that he continues to
do certain mechanical work,
aided by an assistant, from home, but
that his income in this regard is minimal. He estimates approximately
R100 per month on average.
[15] As set out above the plaintiff
casts very little light on the accident and his initial treatment in
his evidence. Dr Daan Joubert,
however, records in his report that
the plaintiff was removed from his vehicle by ambulance personnel and
fire brigade personnel
and transported to St Georges Hospital Trauma
Unit by ambulance. His condition was stabilised, X-rays were taken
and his leg was
splinted. He was then referred to Dr Audley, the
orthopaedic surgeon on duty and was transferred to the Greenacres
Hospital High
Care Unit by ambulance.
[16] On the same evening he was
taken to theatre by Dr Audley and an open reduction and internal
fixation of the right femoral fracture
was performed with a sliding
hip nail and a long plate. On the femur the loose bone fragments were
secured by wire loops over the
fracture site. An open reduction of
the patella fracture was performed and immobilised with Kirchner wire
pins and wire loops to
hold the fracture together. In the right ankle
the medial malleolus was fixed with a screw and a plate was used to
immobilise the
fractures of the distal fibula.
[17] Dr Joubert records that the
plaintiff was nursed for approximately three days in the High Care
Unit and transferred to the
general ward. After five days in the
general ward he was discharged on 26 June 2007. On 19 June 2007,
prior to discharge, he was
referred to Fiona McCrindle who initially
treated him with chest treatments, bed exercises and eventually
mobilisation on crutches.
On 21 June 2007 he could walk with
non-weight bearing on the right leg. He had a brace on the right knee
that controlled the flexion
that was slowly increased by Fiona
McCrindle. After discharge he was further treated by Amanda MC Bean,
also a physiotherapist
at the same firm as Ms McCrindle.
[18] Dr Audley produced three very
brief reports setting out the injuries sustained and the treatment
which he administered. Dr
Daan Joubert examined the plaintiff and
prepared a medico-legal report on 11 March 2008, some nine months
after the collision and
again in September 2009. Dr Basil Mackenzie
examined the plaintiff during November 2011 and prepared his report
accordingly. The
reports all deal with different times during the
plaintiff’s recuperation and accordingly reflect the position
as it was
at the different times. There are no significant
discrepancies between the reports and I shall refer herein primarily
to the report
of Dr Mackenzie, the most recent report of an
orthopaedic surgeon.
[19] Dr Mackenzie records that the
plaintiff was discharged from the Greenacres Hospital on 26 June 2007
and that Dr Audley noted
that on 30 May 2008 the plaintiff was taken
back to the operating theatre where Dr Audley removed the wires that
had been used
to stabilise the right patella fracture. Under the same
general anaesthesia he carried out a right knee arthroscopy. An
important
finding of this exercise was an area of chondromalacia
affecting the lateral femoral condylar articular surface.
Furthermore, under
the same anaesthesia, Dr Audley carried out
realignment and revision internal stabilisation and bone grafting of
a non-union of
the plaintiff’s right distal fibular/lateral
malleolar fracture. Autogenous bone graft material was harvested from
his right
illiac crest.
[20] To the best of the plaintiff’s
recall he has not received any specific treatment since July 2008 in
respect of the injuries
sustained in the accident.
[21] In respect of the fracture to
the right proximal femur shaft Dr Mackenzie noted that this was
“expertly treated”
by means of open reduction and
internal stabilisation using a sliding hip screw and plate device
augmented by two cerclage wires.
These internal fixatives remain in
place and the femur fracture has united in satisfactory angular and
rotational alignments with
functionally insignificant shortening of
the bone and therefore the right lower limb. The plaintiff has
however been left with
discomfort along his proximal thigh and
trochanteric regions. This, Dr Mackenzie postulates, is probably a
result of scar tissue
formation associated with both the fracture and
its surgical management, although it is possible that it may be
caused by the continued
presence of the internal fixatives.
[22] The fracture to the right
patella was managed surgically but it did eventually become necessary
to remove the fixative wires
which became a source of irritation
under the skin overlying the patella. At the arthroscopy conducted on
30 May 2008 one of Dr
Audley’s findings was an articular
cartlidge defect on the lateral femoral condyle. This finding,
together with the fact
that he sustained a patella fracture, is, in
the view of Dr Mackenzie, a strong indication that severe compressive
forces were
applied to the patelo-femoral articulation. The
comminuted nature of his femur shaft fracture may also be explained
on this basis.
[23] Most recent radiographs, being
those explained in the report of Dr Landman, demonstrated
irregularity of the posterior surface
of the patella with what
appeared to Dr Mackenzie to be only fibris union of a distal patellar
pole fragment. The tangential view
of the patelo-femoral compartment
demonstrated narrowing of the joint space and evidence of secondary
osteoarthritis. Dr Mackenzie
expressed the view that this was one of
those instances where the plaintiff, if he feels his pain levels
warrant it and that non-operative
treatment is insufficient, would
benefit from a total patellectomy. This procedure may alleviate
symptoms but it would probably
not eliminate the anterior knee pain
and it is associated with certain functional disadvantages. These
include quadriceps wasting,
25-50% loss of extension strength and
limitation of terminal flexion.
[24] Dr Mackenzie recorded that the
medial malleolus united “per primam” following open
reduction and internal stabilisation
using a single malleolar lag
screw and a single Kirschner wire. Union has occurred in perfect
anatomical alignment. Initially,
surgical management of his distal
fibula shaft fracture was complicated by non-union, however, in May
2008, this was remedied by
means of revision open reduction and
internal stabilisation with autogenous bone grafting. The internal
fixatives, a bone plate
and six screws, remain in place. Radiographs
demonstrated that at the time Dr Mackenzie prepared his report in
November 2011 solid
union of the fibular had been achieved, however,
the bone plate appeared to have backed away slightly from the fibular
cortex and
the tip of the single Kirschner wire which was used to
stabilise his medial malleolus also appeared to be fairly prominent
above
the cortex of the bone. It is however significant that, despite
the lapse of some four years since the accident, radiographs showed
no feature of secondary ankle osteoarthritis.
[25] In respect of the soft tissue
injury to the hand to which I have referred above Dr Mackenzie
records that the plaintiff complained
of occasional hand discomfort
and indicated a slight functionally unimportant mallet deformity of
his left middle finger DIP joint.
Dr Mackenzie considered the most
recent radiographs to be unremarkable so that attenuation of the
dorsal attachment of the extensor
mechanism to his distal phalanx is
the most likely cause of this slight deformity, swelling and
discomfort.
[26] Ms Ansie van Zyl examined the
plaintiff on 25 July 2011. In respect of the injuries to the right
leg she testified that the
range of motion in the right hip, knee and
ankle is impaired. The right hip flexion is limited to 80% and the
right knee flexion
to 90%. All the movements of the right ankle are
limited. By virtue of the limited range of motion in the right hip,
knee and ankle
measurement of the muscle power in the right lower
limb was very difficult. She states that the plaintiff reported
severe pain
in his right hip, knee and ankle as well as the left
ankle. She says that his balance in the seated position is functional
but
that the plaintiff sits with minimal weight on his right buttock
and tends to sit with the right leg straight in front of him. He
uses
his right arm to support himself by sitting. In the standing position
he is able to stand unsupported but with limited weight
on the right
leg. He is unable to use his upper limbs whilst standing due to his
impaired standing balance and all movements are
slow and awkward with
limited right hip flexion and ankle movement. She noted that he is
able to walk short distances indoors with
no assistance. His walk is
however slowed and the limited flexion in his right hip and knee
causes an awkward gait on uneven terrain.
Ms van Zyl opined that his
walking was not safe and she stated that he almost fell twice in the
gym on his way to the steps. He
approached the steps with his left
side first and dragged his right leg on the next step. She testifies
that he relies on the handrails
to pull himself up. She also noted
that prefers narrower staircases as it allows for handrails on both
sides and that he lacks
the endurance to cope with long staircases
and struggles to walk longer distances.
[27] Ms van Zyl states that the
plaintiff reported to her that he has great difficulty in accepting
himself with his psychiatric
condition. He finds it difficult to
accept that he is not able to cope with all aspects of his life due
to a psychiatric condition.
In this regard he reported that he comes
from a conservative Muslim family and depression and anxiety are
conditions he thought
he would never struggle with. The fact that he
cannot kneel during prayers when he attends the mosque is a huge
problem as he considers
himself less of a Muslim and always feels
that he will be judged for this.
[28] Mr Ian Meyer prepared a lengthy
report in respect of the psychological disorders and the mild
concussive traumatic brain injury.
[29] The latter injury is easily
dealt with. In respect of the retrograde amnesia the plaintiff was
able to recall that he was on
his way to work at the time when the
accident occurred and that it was dark at the time. He was travelling
in Stanford Road in
the direction of Uitenhage when he saw lights
approaching from the opposite direction and an oncoming vehicle
crossed the barrier
line into his lane. Retrospectively, he recalls
taking evasive action by steering to the left, close to the pavement
and applying
brakes. Mr Meyer concluded that the plaintiff probably
had a very brief period of retrograde amnesia, considering that he
has no
recall of the actual collision.
[30] Mr Meyer records that the
plaintiff advised that his memory returned to consecutive functioning
whilst he was still in his
vehicle with his feet in the pedal-well
and his upper body thrown against the passenger seat. He recalled
that his vehicle, which
had come to a stop on the adjacent pavement,
had remained on its wheelbase, but had made a 180˚ turn on its
axis and was facing
in the direction of oncoming traffic. Mr Meyer
concluded that the plaintiff probably had a very short period of
post-traumatic
amnesia.
[31] In summarising his conclusions
Mr Meyer stated as follows:
“
A
retrospective history indicated that the plaintiff presented with a
brief period of retrograde amnesia, and a short period of
PTA,
indicating collectively that he probably experienced an alteration of
consciousness. However, the hospital record indicates
that is GCS was
rated at 15/15 at the scene of the accident, and there was no
subsequent alteration in his level of consciousness
that was
mentioned in the hospital record. Furthermore, the examiner was
clinically unable to confirm the presence of a Postconcussional
disorder.”
[32] At best, it seems to me, that
such concussional injury, to the extent that it has been established,
was minimal.
[33] In respect of his psychological
disorders Mr Meyer diagnosed each of these disorders. As pointed out
earlier he concluded that
the social phobia and the generalised
anxiety disorder were pre-existing conditions which were intensified
as a result of the collision.
He concluded as follows:
“
Besides
his chronic Pain Disorder, the plaintiff also presents with PTSD,
which is partially in remission, a GAD and Major Depressive
Disorder,
for which he is treated by a psychiatrist with
psychopharmacotherapy.”
[34] The plaintiff’s
disability, as it emerges from the various medic-legal reports, is a
consequence of the combined effect
of the orthopaedic injuries and
the psychological conditions. Dr Mackenzie opined that it was indeed
not possible for the plaintiff
to return to his position as spray
painter after the accident and he does not believe that the plaintiff
will be competitive in
that kind of work in future either. He
concludes however that from a purely physical perspective he does not
believe that the plaintiff
has been rendered unemployable. In his
opinion the plaintiff would tolerate a job description where he is
permitted to sit intermittently
throughout a working day for a total
of approximately 33% of the time. Traversing uneven terrain,
squatting, frequently adopting
bent knee posture, frequent stair
climbing and heavy manual material handling should also not be
requirements of the job.
[35] Dr Mackenzie recognised,
however, that the plaintiff continues to have pain, mainly as a
result of the disruption of his right
knee extensor mechanism and in
particular the articular surface of his patella. Mr Ian Meyer
concluded that in his opinion, the
plaintiff presents with a pain
disorder due to a general medical condition. He proceeds to state as
follows:
“
Furthermore,
there is probably a complicating synergistic interaction between the
plaintiff’s experience of pain and secondary
psychological
factors, although on brief psychological testing his cognitive
functioning does not appear to be significantly impaired.
Subjectively the plaintiff complained that he experiences consistent
pain/discomfort and that this interferes with his ability
to
concentrate.”
[36] Later Mr Meyer records as
follows:
“
When
considering the intensity and chronicity of his Pain Disorder,
improbable future orthopaedic rehabilitation, and underpinned
by his
secondary psychiatric disorder, his age, and the chronicity of the
disorder, the examiner is of the opinion that his prognosis
is poor,
especially when considering the synergistic interaction between his
orthopaedic and psychiatric/psychological disorder.
In
his current condition, it is improbable that the plaintiff will
return to his former job and considering his education, intellectual
ability, training and mental state, the examiner is of the opinion
that it is highly improbable that he will ever again be employed
on
the open labour market. Nevertheless, he does appear to be able to
earn a meagre, irregular income from his hobbies (mechanical
repairs
and animals).”
[37] Dr Peter Whitehead, an
industrial psychologist testified in respect of the plaintiff’s
employment history and prospects.
He states that he has been advised
by the human resources consultant a Volkswagen South Africa that the
plaintiff has been employed
with Volkswagen for a number of years.
Volkswagen makes use of five pay grading levels for hourly and weekly
paid positions which
fall into the “process operator”
category. Once an employee gets hired in a process operator position,
such as the
plaintiff was employed in, they get paid on an hourly
basis. An hourly paid employee progresses through five levels as he
completes
relevant mechanical and other training modules. Such an
employee is then eligible for a group leadership position (which is
level
5). At this level, an employee then becomes eligible for
monthly payment. The next level thereafter would then be a
supervisor.
[38] In the case of the plaintiff he
has been employed at level 3 for the past nine years. Dr Whitehead
testifies that he has been
advised that in these circumstances,
although there was theoretically a possibility that the plaintiff may
in future have progressed
to level 4 this was thought unlikely. Dr
Whitehead accordingly postulated that, but for the accident, the
plaintiff would in all
likelihood have continued working at
Volkswagen in the position of a productions spray painter on level 3
where he would have retired
at the age of 65.
[39] In consequence of the
plaintiff’s injury he has been compensated under the income
continuation benefit scheme to which
I have referred earlier. Under
this scheme he will continue to receive 75% of his salary until
retirement age or until he has been
found fit to work, based on an
annual assessment of disability status which is mandatory. Ms van Zyl
then testified that she had
prepared her medico-legal report filed of
record at the instance of Metropolitan Employee Benefits for the
purpose of such an annual
assessment. It is apparent that these
assessments are carried out on the basis of medical opinion. Dr
Whitehead, an experienced
industrial psychologist, concluded as
follows:
‘
The
likelihood of Mr Abrahams being declared “able to work”
during an annual assessment will need to be dealt with on
a
contingency basis. However, based on the various medical reports
perused, this eventuality seems highly unlikely.’
[40] This conclusion accords with
the conclusion reached by Mr Ian Meyer which I have recorded earlier.
Loss of earning capacity
[41] The plaintiff’s loss of
earnings since the collision and his future loss of earning capacity
has been calculated actuarially
by Mr Alex Munro, a consulting
actuary. The assumptions upon which the calculations are based are
not in dispute and both parties
rely for purposes of their argument
on the computation of Mr Munro.
[42] Mr Munro has made certain
actuarial assumptions which fall within his own specific field of
expertise and in addition thereto
has based his calculation and
assumptions on the opinions expressed by Dr Whitehead and figures in
respect of earnings provided
to him by the plaintiff, which are not
in dispute. Mr Munro calculated the plaintiff’s loss of earning
capacity as follows:
Uninjured
Injured Loss of
Income
Income Income
Past R 606 100 R 371 700 R 234
400
Future R1 706 100
R1 062 400 R 643 700
TOTAL LOSS OF INCOME R 878 100
[43] In this calculation Mr Munro
has made no allowance for contingencies. The argument before me is
concerned only with the contingency
adjustment which must be made to
this calculation. The claim in respect of past loss of earnings is
calculated over a brief period
extending from the date of the
accident to the date of the trial and it has been become customary,
in the absence of any special
circumstances, to allow for a deduction
of 5% in respect of general contingencies of life. I think that such
a deduction would
be appropriate in the present circumstances.
[44] In respect of future loss of
earning capacity Mr
Niekerk
accepts the calculation. He points
out however that the future projected income of R1 062 400,00
calculated in respect of
the plaintiff’s post morbid condition
is comprised primarily of the 75% of salary which is paid to him
under the income continuation
benefit scheme. Mr
Niekerk
argues that by virtue thereof that this payment is conditional upon
an annual mandatory assessment of the plaintiff’s disability
it
may be that in the opinion of Metropolitan Employee Benefits the
plaintiff would be assessed to be employable whereas in actual
fact
he may be incapable of finding employment on the open labour market.
In these circumstances Mr
Niekerk
argues that I should add on
to the calculated loss a percentage, he submits 20%, of the
R1 062 400 so as to provide for
this possibility.
[45] I do not agree. In
Southern
Insurance Association v Bailey
NO
1984 (1) SA
98
(A) Nicholas JA considered the approach of the court’s to
loss of earning capacity. He held as follows at 113G-114A:
‘
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.”
[46] Later in the judgment at p.
117B-D Nicholas JA, dealing with contingencies, said:
‘
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz
v Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
"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 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 upon its own
facts. In some it may seem that the chance of good fortune might
have
balanced or even outweighed the risk of bad."’
[47] Reverting firstly to the
calculation, Nicholas JA stressed that the validity of the approach
depends of course on the soundness
of assumptions and these may vary
from strongly probable to speculative. In the present matter the
assumption has been made that
the plaintiff will continue in future
to be unemployable and that he will continue to receive 75% of his
salary until his normal
retirement age. This assumption is supported
by a very firm opinion expressed by Mr Meyer and supported by Dr
Whitehead, an experienced
industrial psychologist. The assumption
accordingly seems to me to be a very sound one which may be accepted
as strongly probable.
I think the stronger the evidential foundation
for the assumption the less the scope for further adjustment for
contingency.
[48] It is correct that the
possibility of an incorrect calculation should be dealt with by way
of contingencies. Nicholas JA, in
approving the dictum by Windeyer J
acknowledged that each case must depend upon its own facts. On the
facts of the present case
the eventuality which Mr
Niekerk
argues should result in the inflation of the calculated figure has
been considered by the expert evidence which was tendered on
behalf
of the plaintiff himself, to be highly unlikely. That does not mean
that it should be ignored. The possibility must be considered
together with all the other contingencies. Assessing what the future
may hold for the plaintiff as it emerges from the evidence
before me,
however, the prospects of the plaintiff being considered fit for work
at some future time must be remote. I certainly
do not think that
this positive contingency can outweigh the negative contingencies
which are ordinarily recognised.
[49] On a consideration of all the
facts of the present matter, including the medical evidence, the age
of the plaintiff and his
stable work history I think that it would be
appropriate to reduce the calculated figure in respect of future loss
of earning capacity
by 10% to allow for contingencies.
General damages
[50] In determining general damages
the court is called upon to exercise a broad discretion to award what
it considers to be fair
and adequate 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 the impact on his lifestyle.
[51] Watermeyer JA, in
Sandler
v Wholesale Coal Supplies Ltd
1941 AD 194
at 199 stated as
follows:
“
The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived at
must
necessarily be uncertain, depending upon the judge's view of what is
fair in all the circumstances of the case.”
[52] That still remains the legal
position. There is no hard and fast rule of general application
requiring a court to consider
past awards. Such awards are seldom on
all fours with the facts of the case under consideration. (Compare
Road Accident Fund v Marunga
2003 (5) SA 165
(SCA)
169G-H.) On a consideration of these general principles I have
endeavoured to assess what I consider to be a fair compensation.
The
injuries which the plaintiff sustained and the sequelae thereof are
set out above. I have had regard thereto in endeavouring
to assess a
reasonable compensation for general damages.
[53] Mr
Niekerk
, on behalf of
the plaintiff has referred me to a number of previous decisions
including
Noble v RAF
,
Corbett & Honey
vol 6
J2-54;
Roe v RAF
,
Corbett & Honey
vol 6
J2-59;
Rieder v RAF
,
Corbett & Honey
vol 6
E6-1 and
Mgudwa v RAF
,
Corbett & Honey
,
E3-1. Mr
Paterson
has referred me further to
De Bruyn v
RAF
,
Corbett & Honey
, vol 5 J2-69;
Vilakazi
v RAF
,
Corbett & Honey
, vol 5 J2-160 and Van
der
Mescht v RAF
,
Corbett & Honey
, vol 6 J2-42. Whilst
there are certain similarities between some of these cases and the
present, each of these decisions differ
on the facts and the
considerations raised therein from the present. They serve
nevertheless as a guide to the general trend in
the value of awards
made. To the extent that guidance may be derived from these matters I
have given careful consideration to them.
[54] On a consideration on all the
facts of the present matter and awards previously made in similar
matters I have concluded that
an award in the amount R500 000,00
would represent fair compensation.
[55] In all the circumstances I
think that the plaintiff is entitled to be compensated in the amount
of:
1. R130 824, 44 in respect of
past hospital expenses;
2. R222 680,00 in respect of
past loss of earnings;
3. R579 330,00 in respect of
future loss of earning capacity; and
4. R500 000,00 in respect of
general damages.
[56] In the result I make the
following order:
1. The defendant is ordered to pay
to the plaintiff the amount of R1 432 834,44 as and for
damages.
2. The defendant is order to pay
interest on the aforesaid amount calculated at the legal rate from a
date fourteen (14) days after
judgment to the date of payment.
3. The defendant is ordered to
furnish to the plaintiff an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, in respect of the payment
of the costs of the future accommodation of the plaintiff in a
hospital or nursing home, or the treatment
of, or the rendering of a
service or the supplying of goods to him as a result of the injuries
sustained by him in the motor vehicle
collision which occurred on 17
June 2007 and the sequelae thereof, after such costs have been
incurred and upon proof thereof.
4. The defendant is ordered to pay
the plaintiff’s costs of the suit, such costs to include the
qualifying expenses, if any,
of:
4.1 Mr Ian Meyer;
4.2 Dr Leandré Gauché;
4.3 Ms Fiona McCrindle;
4.4 Ms Amanda MC Bean;
4.5 Dr C Audley;
4.6 Dr Basil Mackenzie;
4.7 Ms Ansie van Zyl;
4.8 Dr P Whitehead;
4. Mr Alex Munro.
5. The defendant is ordered to pay
to the payment interest on the plaintiff’s taxed costs
calculated at the legal rate from
a date fourteen (14) after taxation
to the date of payment.
_________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv D Niekerk,
instructed by Mc Williams & Elliot Inc, Port Elizabeth
For Defendant:
Adv N
Paterson, instructed by Friedman, Scheckter Attorneys, Port Elizabeth