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[2022] ZAFSHC 14
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Spyrou v Road Accident Fund (6036/2018) [2022] ZAFSHC 14 (1 February 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
6036/2018
In
the matter between:
NICOLAS
ALEXANDER SPYROU
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
05 OCTOBER 2021
CORAM:
MATHEBULA,
J
JUDGMENT BY:
MATHEBULA, J
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’
legal representatives by email and release to SAFLII
on 01 February 2022. The date and time for hand-down is deemed to be
01 February
2022 at 10H00.
Introduction
[1]
In this matter the plaintiff claims damages from the defendant
arising from the injuries
sustained in a motor vehicle accident on 28
June 2015. On 22 October 2019 the matter served before me and
liability was settled
fifty percent (50%) in favour of the plaintiff.
This matter is set down for quantum only.
Preliminary Issues
[2]
It is apposite to mention that the defendant gave an undertaking in
terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
limited to fifty percent (50%) of the medical expenses to be incurred
by the defendant. The parties further agreed that there is
no need to
lead evidence in respect of the general damages. The matter will be
argued on admitted reports and a determination made
on that basis.
The main dispute is about past and future loss of income.
[3]
The plaintiff served and filed numerous expert summaries and reports.
The contents thereof
were conceded by the defendant save the reports
of the industrial psychologist and an actuary. The concession meant
that their
expertise was also not in dispute. I understood this
agreement which was conveyed to me during the hearing as a
confirmation that
the plaintiff does not need to call these witnesses
to give oral evidence. Regrettably, the defendant in the heads of
argument
seems to be recanting from the agreement. Pertinently the
defendant contends that the agreement does not mean that the contents
of the reports are conceded. The concession, so the argument goes,
agrees to the reports what they purport to be and that they
are still
subject to scrutiny and argument.
[4]
Accordingly the basis for the concession was to save the defendant
the immense pressure of spiralling
costs of litigation. That is not
what was conveyed to me on behalf of the defendant and to bring it up
at the end stage of the
proceedings is akin to an ambush. The
plaintiff did not call these witnesses to give oral evidence because
their reports were admitted
by the defendant. None of these
assertions or claims made on behalf of the defendant has merit.
Evidence for the
plaintiff
[5]
The plaintiff testified that he was born in this Republic to Cypriots
parents. He relocated
to Cyprus with his mother while still a
toddler. After he completed his basic education studies and mandatory
military service,
he enrolled at Culinary Arts School to train as a
chef. He was a student there from September 2009 until June 2011. He
then entered
the job market as a chef on part-time basis. He started
out at Gratzie Italian Restaurant from June 2011 to May 2012 before
proceeding
to Almyra Hotel where he remained from June 2012 until
March 2014. According to him, he was promoted to the level of being
in charge
of the Greek Restaurant at the aforementioned hotel. He
explained that he started out as Cook C chef but in fact he was
performing
duties of a Cook A chef.
[6]
He came back to the Republic to attend to some family matters. It is
common cause that the
he was involved in an accident on 25 June 2015
and suffered injuries. According to him, these injuries put paid to
his dream of
ever being employed as a chef. He felt that the injuries
had rendered him unable to perform at the required level. The nature
of
the work is physically demanding and exhausting. He is unable to
stand for long hours because of the knee injury. The kitchen is
a
highly stressed environment and plagued by frequent dizzy spells and
anxiety disorder, he is unable to handle the demands of
the job.
[7]
Unknown to him, at the time that he was still admitted at the
hospital, he was offered employment
at Gold Sakira Japanese Dining
Restaurant in Cyprus from 1 August 2015 at a salary of
€
1,800.00
per month. Needless to mention, he was unable to accept the offer. At
the moment he is employed by his grandmother as a
manager/caretaker
of her properties. He testified that he is not employed in the real
sense because she does not essentially need
his services. The entire
employer-employee relationship is primarily to affirm him as person
and also help him out.
[8]
Dr Everd Jacobs, the Industrial Psychologist, assessed the plaintiff
on 20 February 2020
and 23 March 2021 respectively. It will appear
that the second assessment was necessitated by the late discovery of
the letter
of employment mentioned in paragraph 7. He explained that
he used the information sourced from the hospitality industry in the
Republic as a guide to express an opinion on his most probable career
progression and earning capacity. He suggested the career
ceiling in
the uninjured scenario of R40,000.00 per month calculated on 2016
value. The earning plateau was considered to be at
age forty-five
(45). This was in line with the evidence of the plaintiff that
progression to the position of the Head Chef could
take up to seven
(7) years. On the basis of the medical evidence made available to
him, he concluded that the employment relationship
between the
plaintiff and his grandmother was a sympathetic one. He outlined that
past loss of income is calculated from date of
accident to date of
calculation. Although the plaintiff was unemployed at the time of the
accident, it did not mean that he had
no capacity to earn.
[9]
Dr Jacobs also testified about the difference between the educational
and industrial psychologist
disciplines. He added that his main
purpose was to provide an opinion on the plaintiff’s most
probable career path in the
pre and post-accident scenario. On the
other hand, the educational psychologist provides an opinion on the
plaintiff’s pre
and post-accident educational levels of
function.
[10]
Turning to the actuarial calculations the parties agreed that same be
included as part of admitted
evidence. The only sticking point are
the contingencies still to be applied.
Discussion
[11]
The role of experts and the purpose of their opinion evidence is a
matter that is well settled in our
law. The key requirement is that
the reasons of their opinions must be acceptable and the court is not
bound by the expert testimony.
Their evidence is part of the body of
evidence to be considered in the determination of the probabilities.
[12]
The defendant adopted an armchair critic approach by simply pointing
out on some discrepancies or contradictions
contained in the admitted
reports of the experts. According to the report of Ms Elmarie
Prinsloo, Educational Psychologist, the
plaintiff came back to the
Republic to work on the family chicken farm and desired to acquire a
qualification in business management.
This was thwarted by the
accident. Ms Prinsloo also noted during consultation that the
plaintiff indicated that he was content
to be part of the business
and management component of the family business. This motivated him
to proceed with his studies up to
university level.
[13]
Importantly it was pointed out that the plaintiff displayed good
interpersonal skills and gave his
full co-operation to Ms Prinsloo.
His memory skills were found to be intact and no significant
attention or memory deficit was
detected. The same with his
concentration levels and ability to solve complex tasks. The argument
is that despite the accident,
the plaintiff has not suffered major
setbacks to the extent stated by other experts. In fact, it was
pointed out that other experts
in particular Dr Louis Oelofse, the
Orthopaedic Surgeon recorded what the plaintiff narrated to him.
[14]
The defendant also took issue with the injuries narrated by the
plaintiff and the conclusions of the
ophthalmologist to
wit
Dr
Roland Berger. According to him there was no direct injuries to the
plaintiff’s eyeballs during the accident. He also touched
on
the allegation that the plaintiff suffered “stroke” on
his left eye approximately two (2) years after the accident
which
resulted in loss of vision in the centre of the image. His conclusion
is that a “fact embolization can follow a fracture
of a big
bone about 48 hours after the event.”
[1]
General Damages
[15]
This brings me to the question of general damages. The parties have
opted to refer me to numerous comparable
awards. It must be stated
that although their individual approach is different, they come to
the same amount. Before dealing with
the appropriate amount in the
circumstances, it is worth it to reiterate that the approach in
determining the award for damages
is a flexible one without adhering
to strict rules. The court must give consideration to broad
generalisations and act with fairness
in all circumstances.
[2]
[16]
The comparable awards serve as a useful guide given the task on hand.
The plain reality is that these
cases are not on all forms with the
present matter. The court must carefully strike a balance which must
be just to both parties.
The injuries sustained by the plaintiff are
described by Mr P Bruce White, a Plastic and Reconstructive Surgeon,
in the following
terms: -
·
a head injury with a degloving wound of the frontal region,
·
trauma of the chest with:
- a bilateral
haemo-pneumothorax,
- a traumatic
thoracic aorta rupture,
·
a laceration of the liver,
·
a fracture of the left femur.
[3]
[17]
At the time he assessed the plaintiff, he recorded the complaints of
the plaintiff as follows: -
“
unsightly
scarring, loss of sensation of the forehead, ongoing headaches,
ongoing pain of the chest with dyspnoea (shortness of
breath) after
strenuous exercise, ongoing pain of the left thigh and knee, a
deformed left big toe, poor memory, poor concentration
and he is
short-tempered.”
[4]
[18]
The plaintiff relied on the following cases to advance his case
namely
Bismilla
v Road Accident Fund
[5]
and
Laubscher
v Road Accident Fund.
[6]
These are cases that come close to the case of the plaintiff. The
submission made is that the injuries in the Bismilla matter are
less
serious than those of the plaintiff. The award made by the court was
R800,000.00. In the only case that I was referred to
that was in line
with that of the plaintiff, the court awarded compensation in the sum
of R1,175,000.00. In the Laubscher case
it was submitted that the
injuries were more serious and the court awarded compensation in the
sum of R1,375,000.00. On these basis,
counsel for the plaintiff
argued that the sum of R1,000,000.00 should be awarded which will
translate into R500,000.00 after the
application of percentage
apportionment.
[19]
The defendant relied on
Sterris
v Road Accident Fund
[7]
and
Mgudlwa
v Road Accident Fund
.
[8]
In the Sterris matter the court confronted with more serious
injuries, awarded the sum of R435,800.00. Again in the Mgudlwa matter
with more serious injuries the court awarded the sum of R500,000.00.
[20]
Clearly there are parts of the plaintiff’s evidence that were
not corroborated and are open to
doubt. The event about having
suffered a stroke in the left eye was not corroborated and is open to
doubt. The admitted evidence
of Dr Berger deals with this matter in a
comprehensive manner which negates his evidence. Then there is an
issue of him suffering
hypertension as a result of this accident.
This too is uncorroborated and there is evidence that he has a family
history of illnesses
that are notoriously hereditary. There is also
evidence that the plaintiff has good memory and the injury sustained
did not make
any cognitive changes. It seems that indeed cumulatively
the plaintiff suffered injuries to which he must be adequately
compensated.
[21]
In the exercise of my judicial discretion, informed by the evidence
and principles of law, it is my
considered opinion that the just
award before apportionment should be the sum of R500,000.00.
Past Hospital and
Medical Expenses
[22]
The parties settled the claim for past hospital and medical expenses
at R661,423.42 before apportionment.
Loss of Earnings
[23]
This brings me to the last heading of the claim pertaining to the
loss of earnings. The approach of
the courts was set out in
Road
Accident Fund v Guedes
as follows: -
“
It is trite that a
person is entitled to be compensated to the extent that the person’s
patrimony has been diminished in consequence
of another’s
negligence. Such damages include loss of future earning capacity (see
for example President Insurance Co Ltd
v Mathews). The calculation of
the quantum of a future amount, such as loss of earning capacity, is
not, as I have already indicated,
a matter of exact mathematical
calculation. By its nature such an enquiry is speculative and a court
can therefore only make an
estimate of the present value of the loss
which is often a very rough estimate (see for example Southern
Insurance Association
Ltd v Bailey NO. The court necessarily
exercises a wide discretion when it assesses the quantum of damages
due to loss of earning
capacity and has a large discretion to award
what it considers right. Courts have adopted the approach that in
order to assist
in such a calculation, an actuarial computation is a
useful basis for establishing the quantum of damages. Even then, the
trial
court has a wide discretion to award what it believes is just
(see for example the Bailey case and Van der Plaats v South African
Mutual Fire and General Insurance Co Ltd.”
[9]
[24]
It is trite that the evaluation of the amount to be awarded is an
estimate. On this occasion the role
of an actuary is a critical one
in assisting the court about the unknown. It is up to the presiding
Judge to make an estimate of
an amount that is just, fair and
reasonable.
[10]
Despite the
fact that it is not an easy task to resort to precise arithmetical
calculations, the plaintiff bears the onus to prove
the quantum of
his claim.
[25]
The actuarial report compiled by Munro Actuaries on the instructions
of the plaintiff is based on information
provided by the attorneys
and report compiled by Dr Jacobs. They were further instructed to
apply 5% and 15% contingencies on past
and future earnings as well as
30% on future earnings.
[26]
Dealing with contingencies, it is so that in the evaluation thereof,
both positive and negative factors
should be taken into
considerations. This is something that is not readily ascertainable
or can be accurately ascertained. I have
no issue with the underlying
principles upon which the calculations are made. However, it does not
end there. What also comes into
play is my impressions of the matter
and the surrounding circumstances.
[27]
In preceding paragraphs I have stated that the plaintiff has not
suffered severe intellectual, psychological
and negative setbacks. I
gained the impression that he can still operate as a chef but perhaps
being a meticulous person that he
claims to be, he rather not. It is
therefore my considered opinion that higher contingencies percentage
will suffice.
[28]
The following order is made:
28.1. The defendant is
liable for payment to the plaintiff in the amount of
R
5,038,601.71 (five million, thirty-eight thousand, six hundred and
one rand and seventy-one cent) [hereafter “the capital”]
in full and final settlement, as set out hereunder:
28.1.1.
R 4,457,890.00
in respect of past and future loss of income;
28.1.2.
R 250,000.00
in respect of general damages.
28.1.3.
R330 711.71
in respect of the plaintiff’s claim for
past medical and hospital expenses.
28.2. The defendant is
ordered to furnish to the Plaintiff with an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for 50% 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 the Plaintiff arising out of injuries
sustained by him in the motor vehicle collision
mentioned above, in
terms of which undertaking the defendant will be obliged to
compensate him in respect of the said costs after
the costs have been
incurred and on proof thereof.
28.3. The defendant
to pay the plaintiff's taxed or agreed party and party costs on the
High Court scale, until date of this
order, including but not limited
to the costs set out hereunder:
28.4. The reasonable
preparation / qualifying and reservation fees and expenses (if any)
of the following experts:
28.4.1. Dr JJ Schutte
(General Practitioner);
28.4.2. Dr LF Oelofse
and Dr MB Deacon (Orthopedic Surgeons);
28.4.3. Dr PB White
(Plastic and Reconstructive Surgeon);
28.4.4. Dr A van Aswegen
(Neurosurgeon);
28.4.5. B Mallinson
(Neuropsychologist);
28.4.6. Ingrid Erasmus of
Rita van Biljon Occupational Therapists;
28.4.7. E Prinsloo
(Educational Psychologist);
28.4.8. Dr R Berger
(Ophthalmologist);
28.4.9. Dr EJ Jacobs
(Industrial Psychologist);
28.4.10. Munro Forensic
Actuaries.
28.5. The payment
provisions in respect of the aforegoing are ordered as follows:
28.6. Payment of the
capital amount shall be made without set-off or deduction, within 180
(hundred and eighty) calendar days from
date of the granting of this
order, directly into the trust account of the plaintiff's attorneys
of record by means of electronic
transfer, the details of which are
the following:
Honey Attorneys
-
Trust Account
Bank
-
Nedbank, Maitland Street, Bloemfontein
Branch Code
-
11023400
Account No.
-
1[...]
Reference
-
HL Buchner/J03428
(please
quote the reference at all times)
28.7.
Payment of the taxed or agreed costs shall be made within 180
(hundred and
eighty) days of taxation, and shall likewise be effected
into the trust account of the plaintiff’s attorney.
28.8.
Interest shall accrue at 7% (the statutory rate per annum),
compounded,
in respect of the claim calculated from fourteen (14)
days of the date of this order.
28.9.
The defendant shall be liable to pay interest as per paragraph 28.8
above in the event the defendant does not effect payment within 180
days of the date of this order.
M.A. MATHEBULA, J
On
behalf of plaintiff:
Adv.
P.J.J. Zietsman SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of defendant:
Ms
C. Bornman
Instructed
by:
State
Attorney
BLOEMFONTEIN
tkwapa
[1]
Index
Expert Bundle at page 248 par 6.5.
[2]
Sandler
v Wholesale Coal Suppliers
1941 AD 194
at 199.
[3]
Amended
Index: Expert Notices at page 94.
[4]
Amended
Index: Expert Notices at page 96.
[5]
Quantum
of Damages Volume VII [B4-64].
[6]
2018
JDR 1227 (GP).
[7]
2009 LNQD 23 (WCC).
[8]
(818/2002)
[2010] ZAECMHC 13 (5 February 2010).
[9]
2006
(5) SA 583
(SCA) at para 8.
[10]
Southern
Insurance Association Limited v Bailey NO
1984 (1) SA 98
(A) at
113G-114E.