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[2012] ZAECPEHC 99
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Potgieter v Road Accident Fund (2416/05) [2012] ZAECPEHC 99 (18 December 2012)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 2416/05
Date Heard: 30 July-3 August 2012
19 Nov-21 Nov 2012
Date Delivered: 18 December 2012
In
the matter between:
FABIAN
BRANDON THOMAS POTGIETER
............................................................
Plaintiff
and
ROAD ACCIDENT FUND
......................................................................................
Defendant
JUDGMENT
EKSTEEN
J:
[1]
The plaintiff, who is currently 40 years old, sustained severe bodily
injuries when his vehicle came into collision with another
vehicle on
31 August 2002 in Stanford Road in Port Elizabeth. The plaintiff
issued summons against the defendant in which he claims
damages
arising from the injuries which he sustained in and as a result of
the collision. Prior to the commencement of the trial
the defendant
conceded the merits of the plaintiff’s claim and what remained
in issue for determination was the quantum of
the plaintiff’s
claim.
[2]
The plaintiff claims an amount of R8 242 843,13 as and for damages
which amount is made up as follows:
(i)
Past medical expenses R 10 523,10
(ii)
Estimated future medical expenses R 52 250,00
Past and future loss of
earnings and earning
capacity R7 385 400,00
General damages
R 800
000,00
R8 242 843,10
By
agreement between the parties the defendant has undertaken to pay
past medical expenses in the amount of R10 523,10 and to provide
to
the plaintiff an undertaking in terms of the provisions of section
17(4)(a) of the Road Accident Fund Act, 56 of 1996 (herein
referred
to as “the Act”) to pay for the costs of future
accommodation in a hospital or nursing home or for the treatment
of
or rendering of a service or the supply of goods to the plaintiff,
after the costs have been incurred and upon proof thereof.
[3]
In the circumstances I am called upon to determine the quantum of the
plaintiff’s damages for past and future loss of
earning
capacity and for general damages.
[4]
The plaintiff was 30 years of age at the time of the accident and is
the eldest of four children. His parents were married in
1971 and
remain happily married. His father was employed in the building
industry and never obtained any significant academic qualification
as
a result of a head injury which he sustained at a young age. His
mother is a teacher by profession and has been in the teaching
profession for more than forty years. She holds a tertiary
qualification. Plaintiff has two sisters both of whom have tertiary
qualifications. The eldest is a holder of a Masters degree in human
resources which she obtained
cum laude
. The younger daughter
is the holder of an honors degree in statistical science and is
presently studying towards a Master’s
degree.
[5]
The plaintiff brother, Grant, the youngest of his siblings, commenced
his studies towards a B.Comm degree in 1998. He discontinued
his
studies at the time of the accident in order to look after the
plaintiff and to assist him in his recuperation. In 2003 he
returned
to his studies and, he says, completed his majors leaving only “a
few minor modules” in order to complete
his degree. He has
however to date not done so.
[6]
Prior to the accident the plaintiff was an active sportsman playing
soccer on a semi-professional level. He pursued an active
social life
and was described by his brother as having been “the life of
the party type of person” prior to the accident.
He exhibited
high levels of energy and pursued a busy schedule.
[7]
The injuries which the plaintiff sustained in the motor accident were
not seriously in dispute. Pursuant to a conference held
in terms of
the provisions of Rule 37 of the Uniform Rules of Court the defendant
has admitted that the plaintiff sustained a severe
head injury. The
precise nature of the head injury and the anatomical areas of the
brain which may have been involved have not
been admitted. It is,
however, common cause that the plaintiff sustained a traumatic brain
injury with considerable frontal lobe
dysfunction in consequence
thereof. He had an extensive laceration of his scalp and a fracture
of the parietal region of the skull.
He sustained soft tissue
injuries to his neck, right wrist, right foot and lumbar sacral spine
which probably improved within six
to twelve weeks. Whilst it is
possible that there were minor residual pain and stiffness symptoms
in the neck and lower back over
a further period of a few months the
plaintiff has not retained any residual symptoms of pain, stiffness
or loss of function in
the cervical spine, lumbar spine, right wrist
or right foot regions thereafter.
[8]
The plaintiff was rendered unconscious in the collision and he has no
recollection of the collision itself although he does
recall
headlights approaching him directly from the front on the incorrect
side of the road. He accordingly had retrograde amnesia
for only a
few seconds. Shortly after the collision he was removed from the
vehicle by the emergency staff and taken to the Livingstone
Hospital
by ambulance. He was admitted to the Livingstone Hospital with a
suppressed level of consciousness and suffering from
cerebral
contusion, a fracture of the skull with some disruption of the right
orbital margin and a substantial laceration of his
scalp. His
Glasgow-coma scale assessment was recorded in the hospital notes as
10/15. His Glasgow-coma scale assessment improved
over the next few
days and by 3 September 2002 the hospital notes reflect a
Glasgow-coma scale assessment of 15/15. Dr Keeley,
a neurosurgeon
testified that the plaintiff was admitted to the ward where he
remained until his discharge. During this period,
Dr Keeley
testifies, that he did from time to time respond appropriately to
members of his family but, for the most part, was confused
and
disorientated and quite unaware of what had actually befallen him. On
the 6 September a mere six days after the accident, he
was discharged
from the Livingstone Hospital to the care of his relatives at home.
At home it was noted that he was restless and
that there was blood in
his urine. He was examined by Dr Peter Maasdorp, an urologist and
readmitted to hospital just three days
later.
[9]
Upon his readmission a cystoscopy was performed and it was determined
that the plaintiff had a rupture of the bladder. Suturing
of the
bladder was, however, not necessary and the plaintiff was left with
an indwelling Foley’s catheter draining his urine
while the
bladder healed. He was discharged home again approximately ten days
later.
[10]
The plaintiff has no recall of the collision or of being removed from
the wreck of the motor vehicle and transported to the
Livingstone
Hospital. He has no recall of being in the Livingstone Hospital or of
his discharge from the Livingstone Hospital.
He has no recall of the
time that he spent at home prior to the rupture of his bladder and he
is unaware of the discovery of blood
in his urine. He has no recall
of having been catheterized at all. Dr Keeley accordingly concludes
that he had post traumatic amnesia
for about three weeks. This Dr
Keeley states is significantly long and indicative of severe brain
injury.
[11]
On his discharge from the Provincial Hospital, he was for all
practical purposes, a total invalid. He had to be bathed, fed
and
dressed. He had long periods of total confusion. The plaintiff had
been diagnosed with diabetes in approximately 1996 and he
required
regular injections of insulin. After his discharge from hospital he
was unable to take care of his own medication and
a nursing sister,
who had come to stay with them, did the necessary tests and arranged
for the daily doses of insulin. His brother
Grant testified that he
was required to assist from time to time to administer the insulin to
the plaintiff.
[12]
The plaintiff was left with a scar to the right forehead as a result
of the laceration which he sustained in the accident.
Dr Marx, a
dermatologist, reported (the report of Dr Marx was admitted) that the
plaintiff presented with a linear flat scar of
3cm X 0,5cm on the
right forehead. Photographs were not taken and destruction with
erbium yag laser was performed. The treatment
was followed up with
intralesional cortisone injections and Dr Marx reports a very
satisfactory cosmetic result was achieved.
[13]
The plaintiff complained post accident of a slight hearing loss and
was referred to Dr Black, an ear, nose and throat surgeon
in Port
Elizabeth. A definitive audiometry was carried out which revealed a
mild conductive hearing loss present in the right ear
with raised
speech discrimination abilities. Hearing in the left ear appears to
be within normal limits. Dr Black states in his
report (which was
admitted) that the hearing loss can be ascribed to a significant
injury to the right ear in keeping with the
extent of the injury
which the plaintiff sustained in the accident. He was of the view
that the conductive hearing loss with raised
speech discrimination
thresholds on the right hand side could indicate some form of middle
ear pathology, with possible damage
to the ossicular chain or
scarring or adhesions of the ossicular chain. The hearing loss
detected is of a mild nature and could
be corrected either with the
use of a hearing aid, or possibly, an attempted surgical correction
of the underlying conductive hearing
loss.
[14]
The plaintiff complained post accident of a measure of
disequilibrium. Dr Black confirmed rotational vertigo and opined that
it was suggestive of a concussive injury to the Labyrinth. The degree
or extent of such injury could not be ascertained with clinical
testing alone. Specialized balance testing, he declared, is only
available at academic institutions, the closest of which is possibly
in Cape Town. Dr Black confirmed that the dizziness does interfere
with the daily life of the plaintiff and the management of the
vertigo will involve some form of vestibular habituation, with the
length of such therapy to be determined by the success of the
therapy
itself.
[15]
The plaintiff sustained an injury to the right eye. In the pleadings
the plaintiff contended that he had sustained a fracture
of the
lateral pillar of the right eye socket. In preparation for trial the
defendant admitted only that he had sustained a raccoon
eye. Dr
Keeley testified as to the fracture of the lateral pillar of the
right eye socket and the injury was not disputed. Subsequent
to the
accident the plaintiff complains of a measure of double vision on
extreme downward gaze and was of the view that the visual
acuity of
his right eye had been slightly blurred. He was referred to Dr
Gardiner, an ophthalmic surgeon. Dr Gardiner’s report
has, like
those mentioned above, been admitted. On an examination of the
plaintiff’s visual acuity in the right eye Dr Gardiner
found it
to be 6/6 with a small refractive error of -0.50. Dr Gardiner
recommended that the plaintiff obtain glasses for driving
but opined
that this marginal defect was not related to the motor accident. He
concluded that the plaintiff’s visual fields
showed no
restriction and his ocular movements appeared full and normal. At
times he had diplopia on extreme downward gaze; however,
Dr Gardiner
was not of the view that it was any cause for concern.
[16]
Dr Keeley testified that there is, in his view, some minor
displacement of the orbital contents of the eye (enophthalmus) which
is so subtle that he is not of the view that correction is indicated.
This he ascribes to the fracture of the pillar of the right
eye and
the force of the impact which caused such fracture.
[17]
The plaintiff complained from the outset, and still complains, of a
defective memory, impaired concentration and headaches.
These
complaints are borne out by the evidence of his mother, Mrs.
Potgieter and his brother Grant Potgieter. They accord too with
the
opinions of Mr Ian Meyer, a clinical psychologist, Dr Crafford and
Professor Zabow, both psychiatrists, and Ms Ansie van Zyl,
an
occupational therapist. Mr Loebenstein, also a clinical psychologist,
expresses of the view, however, that the plaintiff does
not have a
significant memory problem. He concludes, nevertheless that by virtue
of the frontal lobe syndrome he is unable to apply
new knowledge and
skills in the real world. In these circumstances I think the dispute
is more apparent than real. To the extent
that it is necessary to
make a finding in respect of his impaired memory I think that the
weight of the expert evidence, which
includes the evidence of
Professor Zabow, for the defendant is in favour of a frontal-lymbic
injury with impairment of memory.
The overwhelming lay evidence
confirms this. This dispute does not seem to me to be significantly
material to the resolution of
the present matter and I shall revert
thereto below.
[18]
Mrs Potgieter, the plaintiff’s mother and Grant Potgieter, the
plaintiff’s brother both testified as a significant
change in
personality which the plaintiff exhibited after the collision. Prior
to the collision, as recorded earlier, the plaintiff
was a bundle of
energy and was perceived to be the “life of the party” in
his social activities. Subsequent to the
accident he is withdrawn,
quiet and has become disproportionately and noticeably aggressive.
Plaintiff too acknowledges that he
has become less tolerant, more
impatient and irritable to the point of being internally angry whilst
nevertheless thinking that
he does not externalize this personality
trait. His brother Grant, testified by way of example, to an incident
where he was required
to intervene so as to prevent an assault by the
plaintiff upon a referee on the soccer field, conduct which he says
would be entirely
inconsistent with the plaintiff’s personality
prior to the accident. Professor Zabow testified that during his
examination
the plaintiff’s mood was one of depression with
congruous effect. He states that the plaintiff is anxious as to the
future
capacity in occupational situations and his ongoing ability to
function.
[19]
On a clinical assessment Professor Zabow states that there is no
gross cognitive impairment but slowness is evident and change
in
ability is evidence thereto. He is of the view that although the
plaintiff is presently employed there is indication of decreased
functional capacity and impairment. The degree to which this capacity
is curtailed due to cognitive dysfunction which is influenced
by
depression and financial personal stresses needs ongoing evaluation.
He concludes that overall the plaintiff’s presentation
is now
related to that of depression and anxiety together with some
frontal-limbic brain dysfunction residual.
[20]
Whilst Dr Crafford seeks to place the emphasis elsewhere and there is
some terminological differences between his evidence
and that of
Professor Zabow, his conclusion is essentially the same as that to
which Professor Zabow came.
Loss
of Earning Capacity
Past
loss
[21]
The plaintiff matriculated in 1989. During 1990 he embarked upon
full-time study at the now Nelson Mandela Metropolitan University.
He
terminated his studies during the course of the year and in 1991 took
up employment with his grandfather in his construction
business. At
first he was employed as a driver and later worked as a site foreman
and managed some of the wages and order books.
He remained with the
construction company for approximately two years. From 1992 to 1995
he performed lesser functions mostly on
a casual basis at Markhams,
Edgars and Woolworths. In 1995 he took up a permanent position with
Absa Bank as a teller, however,
he did not enjoy the work and did not
remain there for an extended period. In 1996 he took up an
appointment with the Port Elizabeth
Technikon, as it then was. He
started as a financial clerk at the Technikon and remained there
until the end of 2001. At the end
of 2001 he applied for a more
senior position in the same institution and was unsuccessful in his
application. He therefore resigned
and in 2002 embarked on a
short-lived endeavour to import clothing from Bangkok and to sell
same at a profit. In June 2002 he again
took up a position, this time
with his uncle in a packaging firm. This was a small business in
which he reported directly to his
uncle and was placed in a
supervisory position over fifteen unskilled employees. This business
did however not last long and was
liquidated. The collision occurred
on 31 August 2002.
[22]
During the course of this period from 1990 to 2002 the plaintiff made
various attempts at part-time study in an endeavour to
obtain a
tertiary education. I shall revert to this endeavour below in
consideration of his future loss of earning capacity. The
industrial
psychologist, Dr Piro, who testified for the plaintiff, and Dr
Whitehead, for the defendant, are in broad agreement
as to the
plaintiff’s probable career path, had the accident not
occurred, from the date of the accident until the plaintiff
reached
the age of 40. Dr Piro expressed the view that the plaintiff would
probably have obtained a B.Comm degree at the age of
40 whilst Dr
Whitehead held the contrary view.
[23]
Both the industrial psychologists are of the view that the plaintiff
would probably have remained within the Paterson B Band,
semi-skilled
positions, from the date of the accident until 2012. Dr Piro appears
to have accepted a more optimistic point of departure
in respect of
the plaintiff’s probable earnings from the date of the accident
until 2007 (Paterson B3) than that utilized
by Dr Whitehead. In
addition she has predicted a more optimistic progression through the
various levels of the Paterson B Band
to the Paterson B5 level by
2007.
[24]
Dr Whitehead, on the other hand, was more conservative. He expressed
the view, having regard to the liquidation of his uncle’s
business, that the plaintiff would probably have obtained employment
in the latter part of 2002 at the level of the Paterson B1
remuneration. His view was that the plaintiff would gradually have
progressed to the level of Paterson B3 by 2007 reaching the
Paterson
B4 level in 2012.
[25]
It would appear that the difference between the two industrial
psychologists in respect of the plaintiff’s probable income
in
the latter part of 2002, is to be found therein that Dr Piro has
accepted the remuneration which the plaintiff received from
his uncle
in the packaging business as the point of departure whilst Dr
Whitehead has used the last salary earned by plaintiff
at the PE
Technikon in December 2001 as the point of departure. I think that
the plaintiff’s last employment opportunity
prior to the
collision should be accepted for purposes of calculating the last
loss of earning capacity. I am however constrained
to acknowledge
that this was a short-lived employment opportunity in that his
uncle’s firm was liquidated shortly thereafter
and that he was
employed here within a family concern earning an income considerably
in excess of any income which he had previously
been able to command
on the open market. Recognition should be given to these
considerations in the application of a contingency
adjustment to the
calculation.
[26]
I have been favoured with actuarial calculations in respect of the
scenario predicted by Dr Piro and the scenario predicted
by Dr
Whitehead. Mr Alexander Munro, an actuary appointed on behalf of the
plaintiff calculated the probable income which the plaintiff
would
have earned but for the accident from the date of the accident to the
date of the trial on an acceptance of the predictions
of Dr Piro. His
calculation reflects that the plaintiff, in his uninjured state,
would probably have earned an amount of R1 285
700,00. Mr Nilen
Kambaram, an actuary appointed on behalf of the defendant has
similarly calculated the probable income which the
plaintiff would
have earned, but for the accident, but on an acceptance of the
assessment by Dr Whitehead of the probable career
path from the date
of the accident to the date of the trial. On this basis he has
calculated that the plaintiff would have earned
an amount of R985
847,00 during this period, but for his injuries. Accepting, as I have
done, that earnings on the Paterson B3
level as at the date of the
accident should be utilized for purposes of the calculation I accept
the figures prepared by Mr Munro
as a point of departure.
Recognizing, however, that the plaintiff may not have been in a
position to secure employment in the open
labour market on terms as
beneficial as those offered to him by his uncle and having regard to
the duration over which past loss
of earning capacity is calculated
in this matter, being 10 years, I am of the view that the calculation
of Mr Munro in respect
of probable past earnings should be adjusted
downwards by 10% to allow for these contingencies and ordinary
contingencies of life.
[27]
I turn to the plaintiff’s actual earning. At the commencement
of the trial the parties indicated that they were in agreement
in
respect of the actual income earned by the plaintiff in his injured
state from the date of the accident to the date of the trial.
The
agreement between the parties was to adopt the figure set out in the
report of Mr Munro. Mr Munro did two calculations setting
out
different scenarios in respect of future loss of earning capacity. In
his two calculations, however, there is a discrepancy
relating to the
actual income earned in the injured state. In scenario one he has
calculated the figure at R878 900,00 whilst in
scenario two he
reflects the figure as R875 800,00. Counsel were unable to cast light
on the reason for this and I was advised
that the actuary was unable
to explain it either. Past loss of earnings is of course
arithmetically calculable. Having regard to
the general principle
that defendants are to be regarded with greater favour than the
plaintiffs in the assessment of damages I
repose to accept the higher
figure of R878 900,00.
[28]
To summarise, the calculated figure of R1 285 700,00 in respect of
the plaintiff’s anticipated earning capacity, but
for the
accident, from the date of the accident to the date of the trial
falls to be reduced by 10% to R1 157 130,00. The plaintiff’s
actual earnings over this period are accepted as R878 900,00. In
these circumstances I propose to award the plaintiff the amount
of
R278 230,00 in respect of past loss of earnings.
Future
loss
[29]
In respect of the plaintiff’s claim for future loss of earning
capacity there is a substantial dispute between the parties.
At the
heart of the dispute lies the assessment of Dr Piro supported by Mr
Ian Meyer and Ms Ansie van Zyl, that the plaintiff would
probably
have acquired a B.Comm degree by the age of 40. Dr Whitehead and Mr
Loebenstein have adopted the view that it is improbable
that the
plaintiff would have obtained a degree, whether at the age of 40 or
at all.
[30]
Mr Ian Meyer prepared a comprehensive medico-legal psychological
assessment in November 2004. He subjected the plaintiff to
an
extensive battery of tests, including an IQ battery which Mr Meyer
declares to be standardized in many countries in the world.
On
analyzing the scores attained in this battery of tests Mr Meyer
states:
‘
Based on the best performance
method it is probable that the Plaintiff had a pre-morbid IQ within
the high average range. This is
probably supported by his scholastic
results having achieved a “C” aggregate in matric despite
having one paper lost
and therefore not marked which detracted from
his overall aggregate.’
[31]
Early in 2009 Mr Meyer again assessed the plaintiff and on 20 April
2009 prepared an even more comprehensive medico-legal psychological
assessment. He again administered an IQ battery of tests and again
came to the same conclusion on the same basis.
[32]
Mr Loebenstein was critical of this assessment on two bases. He
expressed the view that the plaintiff was probably only in
the
average range and not the high average range. Mr Loebenstein also
relied on the matriculation results and pointed out that
Mr Meyer had
been misinformed in both his reports and that in fact the plaintiff
had achieved and “E” aggregate in
his matriculation
results. At the trial it was not in dispute that the plaintiff had in
fact achieved an “E” aggregate
in his matriculation
results. The second basis for criticism of the approach of Mr Meyer
was that he had adopted the best performance
method which Mr
Loebenstein considered to be unreliable.
[33]
Whilst it is undoubtedly true that in general the matriculation
results of a particular individual may be indicative of his
intellectual capacity I do not think it can carry any weight in the
present matter. In the first instance there was a considerable
dispute during the trial in respect of the reliability of the
results. The plaintiff testified that shortly after having written
his Business Management Paper in his matriculation examination he was
approached by two teachers who advised that his answer script
had
been mislaid. His matriculation certificate handed in in evidence
reflects only the subjects which he passed. There were only
five
subjects which, on the face of the certificate is compatible with the
evidence of the plaintiff. The defendant, however, procured
a letter
from the Western Cape Department of Education verifying the results
which the plaintiff allegedly achieved in his matriculation
examinations in 1989. This the verification reflects six subjects and
reflects a “G” of Business Management. This the
defendant
contended was indicative thereof that the plaintiff did indeed write
the examination and that he had failed it dismally.
I do not think
that the conclusion which the defendant draws is necessarily correct
and the verification from the Western Cape
Department of Education
is, in my view, not destructive of the version of the plaintiff. A
“G” symbol appears to be
the lowest symbol awarded and if
a candidate achieved zero it would be reflected in a symbol “G”.
It seems to me that
where no script was submitted the candidate may
indeed have been awarded zero. There is no evidence that a contrary
inscription
would have been made. In the circumstances I think that
the plaintiff’s evidence that the symbol “E” was
achieved
on the strength of only five subjects must be accepted.
[34]
More importantly, however, I do not think that in this particular
case the poor matriculation result should be accepted as
being
indicative of anything. Dr Piro in her evidence commented on the
weight which Mr Loebenstein attached to the matriculation
results as
follows:
‘
I am working in the Eastern
Cape since 2005. I assess 900 people in the Eastern Cape, 85 of them
with 35 years and older, which
means 85% of those people come from –
were educated during the “apartheid” era and it was very
clear, it was
very clear that those people who had – some of
them had a very poor matric education, very poor symbols and they
demonstrated
very good learning potential despite the fact that they
come from a disadvantaged education system, so unfortunately during
the
“apartheid” era the Coloured schools, Black schools …
but particularly the Black Department of Education and
the Coloured
Affairs were notorious for not providing an adequate standard of
education and we cannot use those matric results
to say that he would
not have done well at university at all.’
The
plaintiff was educated and matriculated in the Bethelsdorp Senior
Secondary School, what was then referred to as a “coloured
school”. I think that the argument of Dr Piro is compelling and
I do not think that the matriculation results achieved by
the
plaintiff can be regarded as a true reflection of his learning
potential.
[35]
Mr Loebenstein further criticized the approach of Mr Meyer in
adopting the best performance method. He testified that this
method
of assessment had fallen into disrepute internationally and is
unacceptable by virtue of the spurious results which it sometimes
achieves. He referred to the work of Muriel Lezak, Diane (Howinson)
and David Loring, “
Neuro Psychological Assessment”,
4
th
ed in support of this contention. The learned authors
address the best performance method at p. 99 and state:
‘
In criticizing this method for
systematically producing over-estimates of pre-morbid ability,
Mortensen and his colleagues (1991)
give some excellent examples of
how misuse of the best performance method can result in spurious
estimates. Most of their “best
performance” estimates are
based solely on the highest score obtained by
normal
control subjects
on WIS-A
battery. What they found, of course, was that the highest score
amongst tests contributing to a summation score (ie, an
IQ score) is
always higher than the IQ score since the IQ score is essentially a
mean of all the scores, both higher and lower
…’
[36]
The authority of the author Lezak was not disputed by Mr Meyer in his
evidence. On the contrary, he acknowledges the author
Lezak and her
approach that one requires as much information as possible in order
to make accurate deductions. He declares, however,
that he did take
into account all the information placed before him. This is not
reflected in his report filed in terms of Rule
36(9)(b) of the
Uniform Rules of Court.
[37]
I have, however, recorded above that the reports filed on behalf of
Mr Meyer are very comprehensive. There is indeed a great
deal of
collateral information contained in the reports and in defense of his
conclusion he testified that he did indeed have regard
to all these
factors. It is therefore necessary to consider the further
information relied upon by Mr Meyer in concluding that
the plaintiff
was probably, pre-morbidly, in the high average intellectual category
and that he would probably have graduated.
Much stress was placed on
the family background where his mother and both his sisters had
graduated and his brother Grant has studied
successfully at
university although he did not complete his degree. He relies also on
the plaintiff’s own academic endeavours
prior to the accident
and subsequent to having matriculated.
[38]
It is not disputed that the family performance in areas of education
and employment is a relevant consideration in assessing
the
plaintiff’s probable pre-accident prospects. I think, however,
that the longer the plaintiff’s own track record
is, the less
the significance of the performance of his parents and siblings. In
this instance the plaintiff’s own track
record extends over
some twelve years after matriculating. The major difficulty in the
reliance upon other factors in Mr Meyer’s
medico-legal reports
and evidence is that he had labored under a misapprehension in
respect of a number of features and he had
not been provided the full
record. Thus in his first and second reports Mr Meyer’s
declares:
‘
The Plaintiff matriculated at
the Bethelsdorp Senior Secondary School with a “C”
aggregate matric, although the examiner
has not had sight of this
document because it was stolen. At present the Plaintiff is
attempting to get a certified copy of his
matric certificate. He
informed the examiner that he was only credited with five of his six
subjects because the other paper was
lost. While he received a “C”,
he had expected to achieve “B” aggregate …’
[39]
This information was clearly erroneous and in evidence Mr Meyer
recognizes this and states that he relies rather on his post
matric
achievements. Mr Meyer continues to record in each of his reports
that “the Plaintiff first commenced reading for
a B.Juris
degree at UPE in 1990. He informed the examiner that he passed three
of the initial six subjects but lost interest in
the course”.
The evidence of Dr Whitehead, which was not challenged, and which was
supported by official examination results
obtained, reveals that the
plaintiff enrolled in 1990 for a B.Juris degree and that he passed
only one subject, failed one subject
and did not obtain a year mark
to be admitted to write exams in the remaining subjects. The
information on which Mr Meyer relied
accordingly overstates the
achievement considerably.
[40]
Mr Meyer appears to have been of the view that the plaintiff did not
attempt any study in 1991. Dr Whitehead’s researches
revealed
that the plaintiff was enrolled at the University of Port Elizabeth
in 1991 for a BA degree. His first year comprised
five subjects. He
failed four subjects and did not receive admission to write the exam
in the fifth subject. Mr Meyer was accordingly
not in a position to
consider this unsuccessful endeavour.
[41]
In 1994 the plaintiff enrolled for a B.Comm degree at the Vista
University and attempted five subjects. He passed four subjects
being
Business Management 1, 50%, Economics 1, 50%, Introduction to the
study of Law 1, 53%, and Private Law 1, 50%. This Mr Meyer
was
advised of and, quite correctly, did consider and it clearly
represents the plaintiff’s most successful academic year.
[42]
In 1995 the plaintiff enrolled at Vista University on a part-time
basis for a B.Comm degree registering for two subjects. Mr
Meyer
records that he did not obtain a DP as a result of the extended hours
he was working at Woolworths, firstly as a permanent
casual sales
assistant and later as a clerk. That the plaintiff was employed at
Woolworths is indeed so, however, the plaintiff
did not testify to
extended hours of employment. On the contrary, the plaintiff had very
little recall of his employment at Woolworths
at all and was unable
to say whether the employment was limited to weekends or whether he
worked at Woolworths during the week.
In the circumstances the
evidence does not support the justification for the poor performance
which Mr Meyer advances.
[43]
In 1996 the plaintiff again enrolled for a B.Comm degree, this time
at the University of South Africa and registered for two
subjects. Dr
Whitehead points out that the diploma course is at a lower level than
a degree and accordingly doubts whether this
course could assist him.
During the course of the year he cancelled his enrolment in respect
of both and did not attempt to write
the exam. This too was not
considered by Mr Meyer.
[44]
In 1997 the plaintiff again enrolled at the University of South
Africa, this time for a Nation Diploma: Cost and Management
Accounting. He registered only for one subject being Quantitative
Techniques. This, Mr Meyer, states, was to consolidate his subjects
towards an eventual B.Comm degree. The plaintiff passed this subject
in a supplementary examination in January 1998.
[45]
What Mr Meyer was not advised is than the plaintiff also enrolled at
the Vista University in 1997 for a B.Comm degree. He registered
only
for one subject, Accountancy, which he failed achieving 19%.
[46]
In 1998 the plaintiff again enrolled for a B.Comm degree at Vista
University registering again only for Accounting 1. He again
failed,
this having been his fifth attempt at this course. Again Mr Meyer
does not appear to have been aware of this enrolment.
[47]
In 1999 he enrolled with the Port Elizabeth Technikon where he was at
that stage employed for “occasional studies”
and
registered for a semester subject in Business Management 2. Dr
Whitehead’s evidence in this regard is that the PE Technikon
permitted students at the time to register for any isolated subjects
without registering for any degree course. On this basis the
Port
Elizabeth Technikon permitted a student to register for a second year
subject irrespective of whether he had met the requirements
which
would otherwise be set for the advancement to the second year. The
plaintiff successfully completed a second year Business
Management
Semester Course with a pass of 52%. Dr Whitehead testified however
that this is merely a semester course and does not
represent second
year subject. This success was recognized by Mr Meyer in his
assessment although it appears from his evidence
that Mr Meyer was
under the impression that it constituted a year course. The success
was accordingly overstated.
[48]
In the same year, 1999, the plaintiff registered for a B.Comm degree
at Vista University. He registered for four modules and
was absent
from the examination in respect of three of them whilst he failed the
fourth module achieving merely 18%. This information
too appears not
to have been conveyed to Mr Meyer and Mr Meyer has not taken
cognisance thereof in his assessment.
[49]
In 2000 the plaintiff did not enrol for studies and in 2001 again
enrolled for occasional studies at the Port Elizabeth Technikon
again
passing a single semester subject at third year level in Business
Management. This information was passed to Mr Meyer, however,
Mr
Meyer was again under the impression that this represented a full
year subject which it does not. Mr Meyer was not informed
that during
the same year the plaintiff had enrolled for a B.Comm degree at Vista
University. He enrolled for sixteen modules and
was absent from the
examination for fourteen modules. He passed one module. Dr Whitehead
states that a single year subject consists
of four modules.
[50]
The difficulty, in my view, which the plaintiff faces in relying upon
Mr Meyer’s assessment of his pre-morbid capacity
and the
probability of him achieving a tertiary qualification is that Mr
Meyer, recognizing that the best performance method of
testing may
not be reliable, labored under considerable misapprehension as to the
plaintiff’s academic endeavours and achievements,
or lack
thereof. In these circumstances I do not think that the plaintiff has
established, on Mr Meyer’s evidence, that he
probably fell in
the high average category of intellectual capacity.
[51]
In as far as the pre-morbid intellectual capacity is concerned I do
not think, however, that it is decisive to the conclusion
of this
matter and Mr Loebenstein, correctly in my view, conceded under
cross-examination that even if the plaintiff had pre-morbidly
been
only of average intellectual capacity such would be sufficient to
achieve a tertiary education from a purely intellectual
perspective.
[52]
There is a third area of dispute between Mr Meyer and Mr Loebenstein
relating to the anatomical areas of the brain which have
been
affected by the injury. In particular Mr Loebenstein challenges the
conclusion of Mr Meyer, which finds support in the evidence
of Dr
Crafford, Professor Zabow and Dr Keeley, relating to impairment of
the plaintiff’s memory and the involvement of lymbic
area of
the brain. Again, I am not of the view that this an issue which needs
to be resolved. All the experts are agreed that the
plaintiff has
sustained an injury to the brain with a resultant frontal lobe
syndrome. Even if the plaintiff does have an unimpaired
memory, the
evidence is overwhelming that he is unable to apply such memory in
the real world in consequence of his frontal lobe
syndrome and the
impact which that has upon his executive functioning. In any event, I
think that the lay evidence of Mrs Potgieter,
Grant Potgieter and
Lester Potgieter relating to the day to day functioning of the
plaintiff is strongly indicative of a dysfunctional
memory.
[53]
Dr Piro, the industrial psychologist who testified on behalf of the
plaintiff supports the notion that the plaintiff would
in all
probability have obtained a B.Comm degree at the age of 40. The only
foundation laid for this opinion in her report was
that she consults
widely in large corporate organizations and offers career counseling
to many employees in their mid-life, with
numerous examples of people
in their late thirties and forties completing their first degree.
This is undoubtedly true, however,
I do not consider that this factor
alone can cast any light on the prospects of the particular plaintiff
in this matter achieving
a B.Comm degree.
[54]
During her evidence she repeated this position and, as already set
out comprehensively dispelled the notion that the plaintiff’s
poor matriculation results should be considered a indicator
militating against the achievement. She relies, like Mr Meyer, on the
plaintiff’s academic results post matric. It is apparent that
Dr Piro, like Mr Meyer, was informed only of the plaintiff’s
successes and not his repeated endeavours which were unsuccessful.
She further assumed that the semester course in Business Management
2
and Business Management 3 were in fact year courses. In this regard
she states:
“
And within the course of the
ten years after since leaving school, he had managed to finish a
major subject.”
And
later she states:
“
He has already got 1 major
subject and he just has to do another major subject.”
[55]
It is apparent from the cross-examination of Dr Piro that she has
assumed that all that remained for the plaintiff to do was
to
complete one additional major subject in order to qualify for his
degree. She had not researched the extent of the various subjects
which the plaintiff had passed.
[56]
The evidence of Dr Whitehead was that the plaintiff would require six
full first year subjects, each comprised of four modules,
in order to
be promoted to his second year. He would be required to pass four
second year subjects and two third year subjects.
As at the date of
the collision the plaintiff had passed only one first year subject in
the B.Juris degree in 1990. Any credits
accumulated for such success
would, in his view, in all probability have lapsed by now. The
plaintiff passed four first year subjects
towards a B.Comm degree in
1994 and then enrolled for a national diploma. In this course he
passed only one subject. Dr Whitehead
points out however that the
national diploma is a lower lever qualification than a degree and in
his view success in this subject
would not advance his progress in
the degree course. In addition he has registered and passed two
semester courses (one at second
year level and one at third year
level) in Business Administration when registered for occasional
studies at the Port Elizabeth
Technikon. It follows that Dr Piro had
grossly over-estimated the extent of the plaintiff’s academic
successes.
[57]
Dr Piro recognizes that universities tend to place a limit on the
duration of study towards a particular degree although she
is
uncertain of the time span normally set. She states that in the case
of long distance study through the University of South
Africa the
university permits one to enrol in eight separate years whilst
pursuing a single three year degree. The time periods
she says are
not set in stone and the eight years do not need to be eight
consecutive years. In the present instance the evidence
of Dr
Whitehead reveals that the plaintiff had enrolled in 1990 for a
B.Juris degree. This has been abandoned. In 1991 he enrolled
for a BA
degree. This too has been abandoned. He has enrolled for a B.Comm
degree in 1994 (Vista University), 1995 (Vista University),
1996
(Unisa), 1997 (Vista University), 1998 (Vista University), 1999
(Vista University) and 2001 (Vista University).
[58]
On an acceptance of Dr Piro’s evidence it appears
overwhelmingly probable that the plaintiff’s successes would
have lapsed unless he completed his degree in the next year of
enrolment. In fact he had not yet completed his first year. Again
Dr
Piro was at the disadvantage that she had not been advised of the
plaintiff’s repeated enrolments.
[59]
Ms Ansie van Zyl also supports the view that plaintiff would have
obtained a degree. She is an Occupational Therapist and I
think that
it is questionable whether this opinion falls within the expertise of
her discipline. In any event the only basis laid
by Ms van Zyl for
her opinion is that “he was almost able to obtain adequate
credits to obtain a degree” and she was
convinced that he
“would have been able to complete the final credits …”.
She does not discuss his academic
history in her report or in her
evidence and one cannot fathom what she perceived his academic
progress to have been. It appears,
however, that she too, was led to
believe that the plaintiff had virtually completed all the
requirements for a degree.
[60]
In all the circumstances I think that the evidence establishes that
the plaintiff’s matriculation results are not an
indication of
his possible future success. His family history shows a family with a
measure of commitment to obtain tertiary qualifications
and his
mother and two sisters all have tertiary qualifications. Whether he
was in the average or high average intellectual category
prior to the
collision is not decisive. I am satisfied that the evidence shows
that the plaintiff did have the intellectual ability
to obtain a
degree had he applied himself to it. His repeated endeavours over a
period of twelve years prior to the collision are
indicative of a
strong desire to have obtained such a qualification. These endeavours
persisted through difficult financial times
and I think that it is a
strong indication that they would have persisted after the collision.
Indeed even in his injured state,
the plaintiff did persist for
several years, not surprisingly, without success. Despite this
recognition, however, I consider that
there is considerable merit in
the view expressed by Dr Whitehead that the plaintiff’s
academic history shows little focus,
was at times haphazard and
undirected and did not meet with a great measure of success. This
casts considerable doubt on the prospects
of him obtaining a degree
had the accident not occurred.
[61]
Mr
van der Linde
, on behalf of the defendant, argues
that the plaintiff has not established on a balance of probability
that he would have obtained
a degree by the age of 40 or at all. He
accordingly urged me to ignore the possibility that the plaintiff may
in future obtain
a degree and to assess the future loss of earning
capacity on the basis that the plaintiff would not have obtained a
degree. Mr
van der Linde
places reliance on
Monumental
Art Co.
v Kenston Pharmacy (Pty) Ltd
1976 (2)
SA 111
(C) at 118E and argues that the court should not embark upon
conjecture in assessing damages where a factual basis for the
assessment
is inadequate.
Monumental Art Company
(
supra
) concerned premises which had been flooded. The
plaintiff claimed damages resulting from goods either destroyed or
damaged as a
result of the flooding including certain pockets of
cement. Plaintiff tendered evidence as to the cost of the cement to
it but
made no attempt to lead evidence as to the actual value of the
cement. It was held that the plaintiff had not established its
damages
in respect of the pockets of cement.
[62]
In the case of personal injury a plaintiff is required to claim in
one action all the damages which arise from the single cause
of
action, both damages already suffered and of perspective damages. It
is true that the general rule requires that loss must be
established
upon a balance of probability, however, the assessment of future loss
is necessarily speculative. In
Southern Insurance Association
Ltd v Bailey NO
1984 (1) SA 98
(A) at 113G-114A Nicholas JA
recognized this in the following terms:
“
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.”
[63]
I accept that the onus of showing that there is sufficient likelihood
of such loss rests upon the plaintiff, however, this
does not mean
that where the evidence suggests a range of possibilities, the court
will select the one least favorable to the plaintiff
because he bears
the onus, and has not proved that a more favourable possibility ought
to be preferred. (Compare
Burger v Union National South British
Insurance Company
1975 (4) SA 72
(W) at 75B and
Kwele v
Rondalia Assurance Corporation of SA Ltd
1976 (4) SA 149
(W)
at 152H.)
[64]
For the reasons set out above I consider that the evidence does
establish that the plaintiff probably would have pursued his
studies
with the view of obtaining a tertiary qualification. The parties are
in agreement that he did have the intellectual ability
to attain such
a qualification even though his track record is indicative thereof
that he may very well not in fact have obtained
such a qualification
or that he might have obtained it at a later stage than the age of
40, as predicted by the plaintiff’s
experts. I think that this
is clearly a case where the evidence suggests a range of
possibilities. In the circumstances I think
that it would be fair,
for purposes of assessing the value of the plaintiff’s loss of
earning capacity, but for the accident,
and to provide for a far
greater contingency adjustment than would ordinarily be the case in
order to give recognition to the extent
to which his own academic
track record detracts from the likelihood of him obtaining his
declared goal.
[65]
Even if he did obtain a degree Dr Whitehead and Dr Piro differ in
respect of his likely career path had that occurred. Dr Piro
postulates that the plaintiff would have been employed at the level
Paterson C5 at the age of 40, progressing to the Paterson level
D2 at
the age of 45 and remaining at such level until his retirement at the
age of 65. Dr Whitehead, on the other hand, postulates
that even if
the plaintiff did obtain a degree at the age of 40 one would have to
take into account that in all likelihood he would
now have been
working for about 20 years in a semi-skilled position. Upon receiving
his degree he would therefore have been at
least 18 years behind in
appropriate experience, compared to other colleagues who would have
obtained their similar degrees in
their early twenties. This being
so, Dr Whitehead is of the view that even if the plaintiff was, at
best, appointed at Paterson
level C2 he would first have to gain
experience in a skilled position before being considered for further
promotions. He is accordingly
not in agreement with Dr Piro in
respect of the rate of progression which she envisages thereafter.
[66]
Dr Piro, in her evidence, addressing this argument has alluded to the
demand which there is for black graduates in South Africa
in meeting
the objectives of the Broad Based Economic Empowerment Act. She was
accordingly unmoved in her opinion of the plaintiff’s
likely
progression had he graduated at the age of 40,
[67]
I consider that there is sufficient merit in the approach set out by
Dr Piro to justify the adoption of her prediction for
purposes of an
actuarial calculation to form the point of departure for the
assessment of the plaintiff’s earning capacity
but for the
accident. Recognition must of course be given to the commercial
reality to which Dr Whitehead alludes in a consideration
of the
contingency adjustment to be made.
[68]
I have been provided with a calculation made by Mr Alexander Munro on
an acceptance of the opinion of Dr Piro. The actuarial
soundness of
the calculation is admitted and Mr Munro has calculated that, but for
the accident, the plaintiff’s future earning
capacity
calculated from 2012 to his anticipated retirement age of 65 would
have amounted to R7 627 800,00. For the reasons set
out above I
consider that this calculation falls to be adjusted by a contingency
factor considerably in excess of the customary
reduction for the
ordinary contingencies of life. There is a very real prospect that
the plaintiff’s may not have obtained
a degree at all and, if
he did, that he would have obtained it at a later stage. Even if he
did obtain a degree, whether at 40
or at a later stage, I am
compelled to recognize the real possibility that his progression may
not have been as rapid as Dr Piro
has predicted. I propose
accordingly to reduce the calculation of his assessed future loss of
earning capacity by 40%.
[69]
In his injured state there is no doubt that he is subjected to
cognitive, socio-emotional and executive deficits which will
impact
seriously upon his employability. The industrial psychologists on
behalf of the parties are in agreement that in his injured
state the
plaintiff would, at best, be able to function in a well structured
job environment at the level of Paterson B1/B2. Even
at that level
they are in agreement that he is at greater risk of dismissal than
other employees employed at that level would be.
Dr Piro and Ms Ansie
van Zyl have expressed the view that the typical career path of an
individual with frontal lobe syndrome shows
that initially he is able
to obtain employment but that he is unable to retain his employment.
As time passes he develops a record
of serial dismissal and a
checkered career history which diminishes his chances of obtaining
employment. Dr Piro and Ms van Zyl
in evidence went to the
plaintiff’s post-morbid employment record as confirmation of
their opinion.
[70]
Post accident the plaintiff first took up employment in 2004 with his
uncle in a construction business. Initially it was only
a half day
position and later, in approximately 2005, the plaintiff took up a
full-time position. He was employed in this position
until 2006.
Initially he did mostly deliveries and banking and from 2006 he
performed office work and did some of the business
accounts. He moved
on of his own volition to take up a position with Austell
Laboratories as a medical representative. He was only
employed in
this position for a month or two whereafter he was dismissed for
making “ghost calls”.
[71]
Plaintiff testified that at Austell he was employed to sell the
products of his employer. He was to set up appointments with
doctors
and call upon the doctors providing them with details of his
employer’s products. At the conclusion of the interview
he
would be required to obtain the signature of the doctor and, upon
departure, to record his comments in respect of the call.
He had been
issued by his employer with an electronic device which he referred to
as a “PBA”. Union recording his comments
of the call he
would immediately transmit that to his head office.
[72]
In this particular instance the plaintiff explained that there were
two doctors with the same initials and the same surname,
one
practicing in Port Elizabeth and the other in Queenstown. He had
called upon the doctor in Port Elizabeth obtained the signature
of
the doctor, added his comments and transmitted same to his head
office. When he left the surgery he realized that he had obtained
the
signature of the doctor alongside the particulars of his namesake who
practices in Queenstown. He accordingly reverted to the
doctor and
requested the doctor to sign again, this time alongside the
particulars of his Port Elizabeth practice. This too the
plaintiff
transmitted to his head office, however, he did not advise his head
office that he had not called upon the doctor in
Queenstown. It was
naturally readily apparent that he could not have called upon the
doctor in Queenstown and the doctor in Port
Elizabeth on the same
day. This error, though does not emerge from the evidence, was no
doubt seen as an offence of dishonesty
by his employer whereas the
plaintiff ascribes it to his defective memory.
[73]
Upon his dismissal from the position at Austell he remained
unemployed for approximately five months before taking up a position
with Media 24 as an advertising representative. He remained with
Media 24 from August 2007 to March 2008. In this position he was
remunerated at a rate of R6 500,00 per month plus the use of a
company vehicle. There is no evidence of any unsatisfactory
performance
in this position and the plaintiff was not dismissed from
this position. In April 2008 he resigned from his position to take up
employment with Grobir, as a surgical representative. In this
position the plaintiff was remunerated at a rate of R16 500,00 per
month plus the use of a company vehicle, a medical aid benefit, and a
pension fund benefit. In this position he was stationed in
East
London from April 2008 to August 2008. Again there is no evidence as
to unsatisfactory performance and again he resigned of
his own free
will, he says, because he wished to return to Port Elizabeth. He
applied for a position as a market development manager
at Appletiser.
After his interview he was subjected to psychometric testing and
thereafter awarded the position. This position
was remunerated at a
rate of R31 458,00 per month. He remained with Appletiser from
September 2008 to September 2009 when ultimately
he was dismissed for
poor performance. Upon his dismissal he remained unemployed for
approximately a year whilst initiating proceedings
in the CCMA to be
reinstated. The matter was ultimately settled. In October 2010 the
plaintiff again took up employment this time
with Onemed, as a sales
executive. This position was remunerated at a rate of R24 964,00 per
month. Again he was dismissed for
poor performance in November 2011.
[74]
In February 2012 the plaintiff took up employment with Pharmaco
Services and Marketing CC as a medical sales representative
where he
is currently still employed at a remuneration of R20 000,00 per
month. In August 2012, however, a performance assessment
was carried
out. The provisional report was presented in evidence by his
superior, Mr Soobramoney. The report is a provisional
report and Mr
Soobramoney testified that the plaintiff had not yet had the
opportunity to deliver any input and to debate the provisional
findings of Mr Soobramoney. The report may accordingly still change.
What it does clearly reflect, however, is that Mr Soobramoney
assessment of the plaintiff shows considerable weakness in those
areas where planning, goal setting and execution are required.
There
is no indication currently that the plaintiff is at risk of dismissal
and Mr Soobramoney testifies that a process will be
initiated to
assist the plaintiff. The indications are however clearly there that
the plaintiff is at risk of dismissal from this
position at some
future stage.
[75]
Dr Piro testified that upon enquiring the plaintiff confided in her
that he had not advised any of these employers of his injury.
Furthermore, the plaintiff acknowledged in his evidence that in
obtaining the positions at Media 24 and at Appletiser he had
submitted
a fraudulent curriculum vitae. At Appletiser he had
represented that he had in fact completed a B.Comm degree in December
2007.
He declared that he had been the brand development manager for
King Neptune Foods from January 2002 to December 2003 and sets out
a
host of duties and responsibilities which he performed in this
position. All of which on his own admission, is pure fabrication.
It
emerges from his evidence that prior to the accident he had submitted
a tender to erect certain advertising boards in Port Elizabeth
and
Durban for King Neptune Foods. Post accident he was unable, from a
physical perspective, to perform this work himself and acquired
the
assistance of others to simply erect these boards. He was never
employed by King Neptune Foods at all. His curriculum vitae
proceeds
to allege that he was the area sales manager for King Neptune Foods
from February 2002 to June 2007. Again he set out
a host of duties
and responsibilities which he allegedly performed which, it
transpires, is all fabrication. In respect of his
employment with
Media 24 he declared to Appletiser that he had been the head of
advertising at Media 24. It is on this basis that
he obtained this
employment.
[76]
The evidence does not establish what was represented to Onemed at the
time that he obtained such employment. The job description
was
however tendered in evidence. It required a grade 12 qualification
with a degree or diploma in a medical or sales environment
with at
least three to five years sales or medical experience. The plaintiff
did not have either of these qualifications.
[77]
Whilst I have no doubt that the plaintiff’s frontal lobe
syndrome would have contributed to his inability to perform
the
functions required of him at Appletiser and Onemed, I think that the
opinion of Dr Piro and Ms Ansie van Zyl that his dismissal
should be
attributed to his frontal lobe syndrome is considerably undermined by
the manner in which he obtained these positions.
With or without a
head injury it could reasonably be anticipated that he would not have
been able to perform the functions required
of the position as he had
neither the qualification nor the experience which was necessary. In
these circumstances, I do not think
that too much weight should be
attached to the plaintiff’s dismissal from these two positions.
Nevertheless the general import
of the evidence of Dr Piro and of Ms
van Zyl that a pattern of repeated dismissal is typical of a victim
of closed head injury
with frontal lobe dysfunction remains valid and
the parties are in agreement that even if he were to obtain
employment at the level
of the Paterson B1/B2 category he would
remain at increased risk of dismissal. Mr Munro has calculated the
plaintiff’s anticipated
earnings at Paterson B1 from the date
of trial to his anticipated date of retirement at 60 in the amount of
R1 561 200,00. Giving
recognition to the increased risk of dismissal
discussed above I think that this figure should be reduced by 30%.
[78]
In the circumstances, to summarise, I propose to accept the
calculation by Mr Munro as a point of departure. The calculated
figure of R7 627 800,00 in respect of the anticipated future earning
capacity, but for the collision, is reduced by 40% to R4 576
680,00.
The calculated figure of R1 561 200,00 in respect of the plaintiff’s
anticipated earnings in his injured state falls
to be reduced by 30%
to R1 092 840,00. The latter figure falls to be deducted from the R4
576 680,00 and accordingly I consider
it fair that the plaintiff be
awarded the amount of R3 483 840,00 in respect of his future loss of
earning capacity.
General
Damages
[79]
In determining the quantum of general damages the court is called
upon to exercise a broad discretion to award what it considers
to be
just compensation in the light of the circumstances connected with
plaintiff and his injuries, including their nature, permanence,
severity and impact. In recent years there has been an tendency for
awards to be higher than what they previously were, as a result
of
changing values in society, improvements in standard of living and
the fact that awards have traditionally been lower in this
country
than in many others. I shall have regard to this trend in seeking
guidance from previous awards. I am alive too to the
effect which the
ravages of inflation has upon the value of money and I shall
accordingly be guided by the inflation adjusted calculations
of
previous awards as set out in “
The Quantum Yearbook
”
of Robert Koch.
[80]
In considering the previous awards as a guide to what is just
compensation in this matter I am mindful thereof that the
determination
of non-patrimonial damage remains in the discretion of
the court. (Compare
De Jongh v Du Pisanie
NO
2005 (5)
SA 457
(SCA) para [64].) I have been referred to a number of cases by
counsel as comparisons. I have had regard to these cases, however,
each case is determined on its facts. Each of the matters to which I
have been referred differs in certain respects to the present.
I have
however had regard to the general trend of awards which emerged from
these cases as adjusted by the actuary Koch to have
regard to
inflation.
[81]
The injuries and sequelae of the plaintiff have been fully set out
above. There are undoubtedly serious. The weight of the
expert
evidence is supportive of a severe closed head injury involving the
frontal-limbic area of the brain. This has resulted
in a significant
change in personality and has impacted severally on the plaintiff’s
lifestyle, in particular upon his executive
functioning. I consider
that an award of R650 000,00 represents fair compensation in respect
of the plaintiff’s general damages.
[82]
Consequently, the following order is made:
The
defendant is ordered:
1.
To pay to the plaintiff the amount of R4 422 593,10 as and for
damages;
2. To pay to the
plaintiff interest on the above stated amount calculated at the legal
rate from a date fourteen (14) days after
judgment to the date of
payment.
3. To furnish to the
plaintiff an undertaking in terms of the provisions of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
4. To pay the plaintiff’s
costs, including the qualifying expenses, if any, of the following
expert witnesses:
(i) Mr Ian Meyer
(ii) Dr R J Keeley
(iii) Ms Amanda McBean
(iv) Dr J H Black
(v) Dr J Enslin
(vi) Dr S Bemath
(vii) Dr E Marx
(viii) Dr Peter Crafford
(ix) Ms Ansie van Zyl
(x) Dr Karen Piro
(xi) Dr M Aslam
(xii) Dr V Gardiner and
(xiii) Mr Alexander
Munro.
5. To pay interest on the
above costs calculated at the legal rate from a date fourteen (14)
days after taxation to the date of
payment.
______________________
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For
Plaintiff:
Adv D Niekerk instructed by McWilliams & Elliot
Inc, Port Elizabeth
For
Defendant:
Adv H van der Linde SC instructed by Cliffe Dekker
Hofmeyr Inc, Cape Town c/o Friedman Scheckter, Port Elizabeth