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[2023] ZAKZPHC 29
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Dlamini v Road Accident Fund (7796/2010P) [2023] ZAKZPHC 29 (3 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No. 7796/2010P
In
the matter between:
AYANDA
DLAMINI
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
ORDER
1. Judgment is granted in
favour of the plaintiff in the sum of R1 398 567.12.
2. The draft order marked
X and signed is made an order of court.
JUDGMENT
Mngadi,
J
[1]
The plaintiff instituted an action against the defendant claiming
damages for injuries sustained in a motor vehicle accident
on 2
September 2004.
[2] The
plaintiff is Ayanda Dlamini a male person born on 15 February 1990.
The defendant is the Road Accident Fund a juristic
person established
in terms of s2 of the Road Accident Fund Act 56 of 1996 (the Act)
which in terms of s17 of the Act is responsible
to pay compensation
for loss arising out of motor vehicle accidents.
[3]
The parties as at the date of trial had settled all the issues except
the issue of contingencies relating to the loss of earning
capacity
and the issue of general damages. The parties in addition, agreed not
to lead any oral evidence and that reports confirmed
on affidavit and
filed by various experts and the joint minute filed by some of the
experts shall constitute the evidence on which
the parties would
argue their respective cases.
[4]
Reports were filed by the following experts, Dr R. Fraser, an
orthopaedic surgeon; Jane Bainbridge, occupational therapist;
David
de Vlamingh, industrial psychologist; Ike Roliwe, occupational
therapist; Angel Hargreaves, occupational therapist ; Shaida
Bobat,
industrial psychologist; and Ian Walsh Morris, an actuary. The
occupational therapists Angela Hargreaves (Bainbridge and
Associates)
and Pragashnie Govender (Ike Roliwe Incorporated) provided a joint
minute. The industrial psychologist David de Vlamingh
and Shaida
Bobat also filed a joint minute.
[5]
Dr R Fraser in his report dated 12 February 2019 stated that the
plaintiff was walking along the side of the road on 20 September
2004
when he was knocked over by a motor vehicle. He sustained a fracture
of the right humerus at the junction of the middle and
distal thirds.
He was taken to hospital. His arm was immobilised with a U-slab and
transferred to another hospital on 4 October
2004. It was noted that
he had an isolated injury to his right humerus with no distal
neurovascular deficit. The position of the
fracture was deemed
unsatisfactory and he was taken to theatre on 14 October 2004. The
fracture was reduced and internally fixed
with medial and lateral
Tens nail. Post-operatively his arm was immobilised with collar and
cuff. He was noted to have a right
radial nerve palsy
post-operatively and was fitted with a cock-up splint. He was
discharged on 18 October 2004.
[6]
Dr Fraser reported that the plaintiff wore the splint for
approximately three (3) weeks. He returned to school after three (3)
months. He was promoted to grade 9 the following year based on his
June results. On 13 December 2006 he was re-admitted in hospital.
It
was noted that he had a stiff right elbow. His radial nerve palsy had
recovered completely. There was evidence of infection
with purulent
discharge from the previous wounds. The pins were removed and he was
discharged on 14 December 2006.
[7]
Dr Fraser noted the socio economic situation of the plaintiff as
follows. He achieved grade 12. He worked as a general worker
building
houses for 4 months. He got employment as a security guard for three
years. He then started work as a general worker for
Sappi in 2016 and
he has remained so employed.
[8]
Dr Fraser reported that the medical examination of the plaintiff
showed the following. He had a 6cm post-surgical scar over
the medial
aspect of the right upper arm and a 4cm post-surgical scar over the
lateral aspect of the right upper arm. There is
a 2 cm post-surgical
scar over the anterior aspect of the right upper arm. The
circumference of the right upper arm measures 27
cm a hand’s
breath above the elbow compared to 30 cm on the left side. The
circumference of the right forearm measures 26
cm a hand’s
breath below the elbow compared to 27 cm on the left side. The
alignment of both forearms is in slight varus.
The range movement in
the right elbow is from 10 to 90 degrees of flexion compared to zero
to 150 degrees on the left side. Pronation
is 0 degrees compared to
90 degrees on the left and supination is zero to 90 degrees
bilaterally. All joints of the right wrist
and hand have a full range
of active movement. There is no neurovascular deficit in the lower
limbs. The radiological examination
of the right humerus confirm a
previous fracture of the distal humerus which has united in good
position. There is some irregularity
of the articular surface of the
elbow joint compatible with post- traumatic osteoarthritis in the
elbow. Dr Fraser in conclusion
states that the plaintiff has early
post-traumatic osteoarthritis of the right elbow which if it does not
respond to anti-inflamatories
he would require a right elbow
arthrodesis. The plaintiff’s permanent disability, states Dr
Fraser, are as follows. Pain
in the right elbow with strenuous
physical activity; stiffness in the elbow, which precludes him from
doing certain physical activities;
permanent loss of range of
movement in the right elbow joint.
[9]
The occupational therapists in the joint minute agreed on the
following physical limitations: right elbow pain; stiffness of
the
right elbow joint; mild to moderate reduction in muscle strength in
the elbow flexors and extensors; wasting of the right arm
and
forearm; and impaired manual dexterity, handwriting ability, motor
coordination, finger dexterity and aiming. Further, the
therapists
regarding functional difficulty agreed on the following; impaired
grip strength in the dominant right hand; strength
and lifting
capacity limited to tasks of sedentary to light nature.
[10]
The industrial psychologists, David de Vlamingh and Shaida Bobat
agreed as follows. The plaintiff uninjured would have more
competitive to progress to semi-skilled work on a pre-accident
earnings peak at the lower quartile of the Paterson B1 level (Total
package of R207 000.00 per annum in 2003 rand value as per Koch
Corporate Survey Earnings). The plaintiff has early onset
of
post–traumatic osteoarthritis of the right elbow and the
stiffness in his elbow precludes him from doing certain activities.
His current employability and future employability as well as
prospects of career advancement are compromised He is at risk to
retire 8 to 10 years earlier. He will no longer be able to reach his
pre-accident earning potential remaining at a Paterson A2
level
reaching an earnings peak of R155 000.00 per annum (lower
quartile of Paterson A2 total package in 2023 rand value as
per Koch
Corporate Survey Earnings) by the age of 45, with inflationary
increases only until retirement. The post–accident
retirement
age being 56 years.
[11]
It trite that the courts when making awards for potential or future
losses, the practice is to make use of contingency deductions
to
provide for any future events or circumstances that cannot be
predicted with any certainty but are possible. The determination
of
contingencies is a process of subjective impressions or estimation.
The process is driven primarily by the courts consideration
of the
circumstances of the case and the impression they create in the mind
of the court. The contingency deductions are a key
in converting
uncertainties to concrete calculations as well as in exercising
trade-offs
intra
uncertainties. The determination of
contingencies must be founded on relevant considerations and be
within the range of acceptable
realities of life. The determination
is made in context that the future is uncertain and it is difficult
to judge how a person’s
career prospects could be and would
have been over a considerable period. It factors in what factors
would have an impact and in
what degree in the career of an
individual. The deduction for contingencies is meant to take into
account the vicissitudes of life.
They include the possibility that
the plaintiff may have passed on early in life, may have not
qualified in her chosen career,
may have lost employment, may have
not progressed in her career, may have changed careers, may have
fallen sick and unable to work
etc. Importantly, contingencies factor
in the fact that the claimant is compensated based on what she would
have earned working
although she has not worked.
[12]
The rate of a discount is not be assessed on any precise logical
basis; the assessment is largely arbitrary and depends on
the Judge’s
impression of the case. See
Southern Insurance Association Ltd v
Bailey NO
1984(1) SA 98 (A) at 116H). The court to decide issue
of contingencies relies on evidence by experts, but the court is not
bound
by the opinion of experts. It is the duty of experts to furnish
the court with the basis of their opinion indicating the necessary
criteria applies to the facts.
[13]
The principles relevant to the assessment of damages are the
following: what would constitute fair compensation in a particular
matter taking into account
, inter alia,
the circumstances of
the case, amounts previously awarded in broadly comparable cases and
the decrease in the value of money since
those previous cases were
decided. However, awards made in previous cases afford broad and
general guidelines in view of the differences
that inevitably arise
in each case. See
Bonese v Road Accident Fund
2014(7A3) QOD 1
(ECP) at p19.
[14]
In
Alla v Road Accident Fund
2013 (6EB) QOD 1 (ECP), a
41-year-old correctional services officer sustained fracture of the
ankle resulting in displacement of
the distal tibio-fibula joint and
soft tissue injury. Surgery was in the form of an open reduction and
internal fixation of the
fracture. She was immobilised in a cast for
six weeks and thereafter in an air cast brace. Plaintiff still
experienced pain in
the ankle resulting in the difficulty in walking
long distances. She was awarded general damages in the sum of
R200 000-00.
In
Mahlangu v Road Accident Fund
(2013/46374)[2013) GNP (9 June 2015) a 30 year old general assistant
sustained a bimalleollar fracture dislocation resulting in
a fixed
plantar flexion deformity of the ankle and foot, a manumitted
displaced fractured medial malleolus and a laterally sub
fluxed ankle
and foot off the tibia. The ankle left permanently misaligned and
lost flexibility accompanied by chronic pain. The
court awarded the
plaintiff the sum of R300 000-00 general damages.
[15]
The court in
Msiza v Road Accident Fund
2010 (7E2) QOD 1 (GNP)
p5 stated that the plaintiff must be sufficiently and properly
compensated, but the defendant should not
unnecessarily be burdened
with an inordinately high award despite the recent tendency by the
courts to pitch the awards higher
than in the past. In
De Jongh v
Du Pisane NO
2004 2 All SA 565(SCA)
at para [56] the court held
that the claimant is entitled to a fair compensation. The amount of
such compensation must also be
fair towards the defendant. The court
must warn itself against what is in the human nature to
over-compensate. In
NK v MEC for Health, Gauteng
2018 (4) SA
454
(SCA) at p461e it was held:
‘
It is also
important that awards, where the sequelae of an accident are
substantially similar, should be consonant with one another,
across
the land. Consistency, predictability and reliability are intrinsic
to the rule of law. Apart from other considerations,
the principles
facilitate the settlement of disputes as to quantum.’ In
Mahlangu
the court
noted the following:
(a). The award for
general damages remains compensation, it ameliorates the damage (pain
and suffering) resulting from the injuries
sustained in an accident.
It is not intended to be full compensation (if that is possible) and
it is not intended to wipe out (if
that is possible) the damage.
(b). The statutory
compensation scheme is in essence compensation by the public at large
through the state. Therefore, it cannot
have a punitive element in
it.
(c). The statutory
compensation scheme is meant to benefit a broad spectrum of the
public. Money in a country like South Africa
remains a scarce
resource with huge demands for it made to the fiscus. Compensation
awards must be considered carefully in a responsible
manner.
[16]
The following are, in my view, the main consideration in determining
the amount to be awarded to the plaintiff as general damages:
1. The plaintiff got
injured at the age of fourteen (14) years. He was a teenager. It
means he shall experience most of his life
in an injured state.
2. The plaintiff
sustained injury at a crucial stage of his life to demonstrate his
intellectual ability that would determine his
life career
3. The plaintiff
sustained the injury in the formative state of his development
robbing his of showing his potential.
4. The plaintiff was
injured when he had not obtained any skills and left unable to
compete for any physical work.
[17]
The plaintiff showed resilience and fortitude. He continued with his
schooling. He based on his previous results was promoted.
He
completed matric on time. He despite his physical challenges secured
employment. In my view, the plaintiff with his qualities,
and the
availability of state funded education, would probably have enrolled
for and obtain a tertiary qualification. It is unfortunate
that his
uninjured state is worked at unskilled to semi-skilled level.
[18]
The accident has compromised the plaintiff’s competitiveness on
the open labour market and in his current employment.
It has
compromised his ability to find employment, his ability to keep
employment, his ability to advance in his career. It has
also reduced
the lifespan of his employment. The plaintiff faces the early onset
of traumatic osteoarthritis, which shall progressively
affect
negatively on the quality of his life.
[19]
The defendant has offered the plaintiff an amount of R400 000-00
for general damages. The defendant referred to the case
of
Ngomane
v Road Accident Fund
(53010/12)[2017] ZAGPPHC 401 (26 May 2017 as
a comparable case. Counsel for the defendant stated the following
referring to
Ngomane
‘plaintiff was 24 years old at the
time of the accident, had a severe fracture of the right humerus and
radius and ulna.
Since the accident, he has been left with
dysfunctional rightt arm and scarring. He has weak grip on the right
side and he cannot
lift and carry heavy things. He says he also has
headaches at times. Frane du Toit , occupational therapist reported
that after
the accident , the plaintiff has a dysfunctional right arm
with limited grip strength due to the radial nerve injury, his active
wrist extension and active MP extension is impaired. He has limited
extension and flexion of his right elbow and no forearm pronation.
Mr
Ngomane has major loss of amenities due to his dysfunctional right
arm. He will need to make adjustments for the rest of his
life to
accommodate these limitations. The court awarded R450 000 for
life. and the current valuation amounts to approximately
R600 000.00’. I agree that the case of
Ngomane
is
comparable to the plaintiff’s situation. In
Ngomane
the
plaintiff had some injuries on the radius and ulna but it appears
that those injuries on their own had no significance. The
effect of
the injuries on the right arm is similar to that of the plaintiff. In
addition, the plaintiff was only fourteen (14)
years old when he was
injured, and he has to face early onset of posttraumatic
osteoarthritis, which together with the disability
will endure for
the rest of his life. In my view, the ward to the plaintiff for
general damages in the sum of R550 000.00
is conservative and is
fully justified by the injuries sustained by the plaintiff and the
sequelae
thereof.
[20]
The parties differ on the contingencies to be applied. The defendant
submits the normal premorbid contingency is 0.5% per annum
totalling
16% in the case of the plaintiff. However, contends the defendant, in
the case of the plaintiff more than normal contigency
should be
applied. A reasonable and fair contingency premorbid future is 20%,
submits the defendant. The defendant submits that
the reasonable more
than normal post morbid future contingency is 30%. The plaintiff
submits in the case of plaintiff a fair and
reasonable contigency
premorbid is 11% and post morbid is 40%.
[21]
The contingencies help the court to factor in the uncertainties
accompanying calculation of future loss. The uncertainties
include
possible errors in calculating the injured party’s life
expectancy; the injured party’s future quality of life;
future
economic situation; etc. The parties agreed that the plaintiff did
not suffer past loss of earnings. The normal contingency
for future
loss is around 15%. The plaintiff in an injured state is exposed to
uncertainties at a greater degree. In his case,
in my view, a
realistic contingency is 35%. The plaintiff in an uninjured state a
realistic contingency is 15%. Based on the actuarial
calculations
dated 21 February 2013, the future loss of income, but for the
accident would amount to R2 927 783.00 less
15% is
R2 488 615.55. The future loss of income in an injured
state is R1 985 241.00 less 35% is R1 290 406.65.
The difference between R2 488 615.55 and R1 290 406.65
is R1 198 208.90. The defendant settled for
liability at
80%. The amount of general damages of R550 000.00 added to
R1 198 208.90 less 20% results in R1 398 567.12.
[22]
It is ordered as follows:
1. Judgment is granted in
favour of the plaintiff in the sum of R1 398 567.12.
2. The draft order marked
X and signed is made an order of court.
Mngadi,
J
APPEARANCES
Case
Number
: 7796/2010
Plaintiff
represented by
: Ms Rasool
Instructed
by
: AC De Sousa Attorneys.
: DURBAN
Defendant
represented by
: Ms Govender
Instructed
by :
Road Accident Fund
DURBAN
Date
of Hearing
: 27 February 2023
Date
of Judgment