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[2022] ZAKZPHC 58
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Wooley v Road Accident Fund (3123/19P) [2022] ZAKZPHC 58 (5 August 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
FLYNOTES:
LOSS OF INCOME – PARTIAL
Motor
accident – Severe leg injuries – Despite impact to
head, no brain injury – Plaintiff young and motivated
to be
a teacher – Restricted in physical activities other teachers
could perform – 20 % contingency on future
loss of earnings
pre-morbid and 40 % contingency post morbid
.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
No:
3123/19P
In
the matter between:
JESSICA
LOUISE
WOOLLEY
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
ORDER
Judgment
is granted in favour of the plaintiff with costs as set forth in the
judgment.
JUDGMENT
Delivered
on: 5 AUGUST 2022
Mngadi
J:
[1]
This is an action for damages instituted
by the plaintiff Jessica Louise Woolley an adult female against the
defendant.
The
defendant is the Road Accident Fund a juristic body established in
terms of section 2(1) read with
section 51
of the
Road Accident Fund
Act No. 56 of 1996
liable to compensate persons for damages arising
out of injuries or death caused by the negligent driving of motor
vehicles along
public roads within the Republic of South Africa.
[2]
The plaintiff claims that on 8 July 2017
at a road intersection in Pietermaritzburg a collision occurred when
a vehicle collided
with her as she was walking on the road.
The collision caused her to suffer
certain injuries, which caused her pain and suffering and resulted in
her inter alia suffering
general damages and loss of future earning
capacity. The defendant admitted liability for damages suffered by
the plaintiff but
contested the amount the plaintiff claimed for both
the general damages and the loss of future earning capacity.
[3]
The plaintiff in the particulars of
claim claimed to have suffered the following injuries. A severe
bilateral open tibia and fibula
fracture on the right leg; compound
fracture of the left tibia; soft tissue injuries of the limbs, torso
and spinal soft tissue;
knee injuries; traumatic brain injury;
comminute left roof and frontal sinus fracture; loss of front teeth
and
multiple
contusions
and
abrasions
over
the
extent
of
her
body.
As sequlae
of
me
injuries the plaintiff claimed that she had a defective gait when
walking, severe pain in both legs, severe deformation of the
left
leg, inability to stand or function with daily tasks, severe
headaches and nausea, stiffness of the neck, amnesia and significant
fallout insofar as executive brain function.
[4]
The plaintiff claimed as general damages
as follows:
1.
Shock,
pain
and discomfort an amount of R400 000-00.
2.
Disability an amount of R400 000-00.
3.
Loss of amenities of life an amount of
R400 000-00.
4.
Disfigurement an amount of R400 000-00.
The
plaintiff for loss of income and diminution of earning capacity
claimed an amount of R6 million.
[5]
The defendant at the commencement of the
hearing placed on record that it had offered the plaintiff an amount
of R700 000-00 ( later
in the closing arguments increased to R800
000) for general damages and an amount of R1.2 million for loss of
income and diminution
of earning capacity which offer is not
acceptable to the plaintiff.
The
plaintiff adduced evidence from four witnesses, namely; the
plaintiff, a physiotherapist, a neuropsychologist and the plaintiff's
supervisor at work.
The
defendant did not lead evidence from any witnesses.
[6]
The plaintiff introduced with the
consent of the defendant a bundle of evidence documents.
A pre-trial conference in terms of
Rule
37(4)
was held on 16 July 2019.
The
the parties agreed on documents in the plaintiff's evidence bundle
(which could be supplemented by the defendant), the documents
in the
bundle are what they purport to be
without the contents of the said
documents being admitted and it was agreed that photocopies of
originals may be used.
The
effect of the agreement is that documents in the bundle may be used
in the trial as evidence without any formal proof thereof
and without
calling the author of the document as a witness. In addition, it is
admitted that what purports to be the contents
of the document is
what it purports to be but a party does not admit
the contents
of the document
as correct.
The
plaintiff
in
leading
its
witnesses in particular the expert
witnesses referred to the other documents in the bundle. The
defendant also in cross-examination
of the witnesses who gave oral
evidence used the contents of the other documents in the bundle.
The defendant did not lead any oral
evidence.
[7]
The accident took place on 8 July 2017.
The plaintiff at the time of the
accident was seventeen (17) years old and she was in matric.
The plaintiff was transported by
ambulance from the scene of the accident to the hospital.
She was admitted at the hospital for
medical treatment and she she was discharged on 11 May 2018.
The plaintiff in the accident sustained
the following injuries for which the corresponding medical treatment
was administered:
1.
Orbital blowout fracture on the left
orbital roof and broken four frontal upper teeth.
A C.T. Scan was done on 8 May 2017 and
the
teeth
removed two months after the accident.
2.
Bilateral fractures of the proximal
tibia with extension of the proximal tibia on the left side into the
tibial plateau.
In
relation to the right tibia, debridement was done on 9 July 2017, a
nail was inserted and remains in situ, and re-debridement
and wound
closure done on 10 July 2017.
In
relation to the left tibia, an application of a ring fixator on the
proximal and distal part done which allowed for treatment
for the
comminute fracture of the tibial plateau and proximal tibia; a ring
fixator fixed and removed four months later. On 7 May
2017
re-fixation done of the left proximal tibia and a plate inserted
literally to stabilise re-fixation and the plate remains
in situ.
[8]
Dr Osman a specialist orthopaedic
surgeon in a report dated 11 July 2019 stated that disability caused
by the injuries to the plaintiff
entails difficulty in bending,
kneeling, squatting, walking, jumping, running, and skipping.
His diagnosis are the following:'
Fractured left proxima tibia and left tibia! plateau resulted in
depression of lateral tibial
plateau and slight tilting of the ankle
mortise aggravating the valgus and causing shortening ((the
shortening of the left leg
is about 3 cm);The fractured right tibia
healed with > 10degrees angulation.
The orbital blowout fracture on the left
orbital roof and broken four frontal teeth resulted in some facial
disfigurement.
The
left eyebrow is slightly raised due to the left orbital fracture.
Lower
limbs: Walks with a short limb gait favouring the left side. The left
knee has a valgus deformity of 15 degrees with full
range of motion.
The left knee has a grade 1 coronal instability. The is crepitus in
the left patellofemoral joint.. The range
of motion in the left ankle
is dorsal flexion 10 degrees, planter flexion is full, aversion is
full, and inversion is full. The
quadriceps circumference measures 14
cm righty and 37 cm left, and leg lengths measures 88 cm right and 85
cm left. Dr Osman recorded
the following scars; 3.5 cm on the right
tibia for tibial nail, 12 cm a fracture site in the right tibia, 1 cm
for distal locking
screw for right tibia on the left a 2 x 0. 5 cm 14
cm anterolateral for fixation of left distal tibia, evidence of ring
external
fixator scars on the left lower limb.. The skull except
presence of old healed fracture in relation to the floor of the left
orbit
was normal.
[9]
Dr Osman, further, noted that the left
tibula/fibula showed intact orthopaedic plate with cancellous screws
in site in relation
to the proximal shaft on the left tibia with
callus formation and satisfactory bony alignment in keeping with
adequate bony healing.
Non
unith of an old fracture of the proximal shaft of the fibula.
The right tibula/fibula showed intact
interlocking nail with cancellous screws in situ in relation to the
shaft of the tibia, an
old adequately healed fracture of the
mid/proximal shaft of the tibia with callus formation and
satisfactory bony alignment, and
a concomitant old adequately healed
fracture of the proximal third of the fibula with satisfactory bony
alignment.
[10]
Dr Osman concluded that final disfigurement equalled 5% of whole
person impairment, the left tibia accounted
for 22% and the right
tibia for 5%.
The
total is 30% of Final Whole Person Impairment.
The fractured left proximal tibia and
left proximal
tibia
and left tibial plateau resulting in depression of lateral tibia
plateau with valgus deformity and osteoarthritic changes
results in
long-term problems anticipated in terms of difficulty with lower
limbs activities and having to weight bear for long
periods and do
heavy work. The plaintiff suffered severe pain for two weeks,
moderately severe pain for six weeks and up to now
experiences pain
with any physical activities and in cold weather.
He stated
that
that
the
plaintiff
will
have
difficulty
working
in
the
open
labour
market
doing heavy
work
or
work
requiring
her
to
be
on her
feet
for
long
periods
at
a time
but
will manage sedentary work.
[11]
Dr Bhagwan a specialist neurologist in
his report dated 13 November 2018 stated that the C.T. Scan of the
brain on the plaintiff
was normal.
Dr
Nicole Boreham an occupational therapist in her report stated that
she found the plaintiff's concertation good, her immediate
and
delayed memory recall was average and within the functional range,
she can make basic and more complex decisions on a daily
functional
level and she could problem solve on a simple and more abstract
level.
Dr
Boreham concluded that the plaintiff was generally capable of
performing a job in a sedentary and light level.
Once there is deterioration in her
condition, her standing/walking tolerance shall become less. It
results in her being less competitive
in an open labour market.
The sedentary work is work involving
lifting no more than 5 kg at a time and occasionally lifting or
carrying articles like docket
files, ledgers and small tools.
It involves primarily sitting and
occasional walking and standing.
Light
work she stated involves a good deal of walking or standing, lifting
objects weighing more than 8 kg at a time with frequent
lifting or
carrying of objects weighing up to 4.5 kg.
[12]
Shaida Bobart an Industrial and Clinical
psychologist recorded in her report that the plaintiff had passed all
her school grades
including matric without repetition. The accident
took place in July whilst she was in matric. She was away from school
for two
and half weeks.
She
returned to school whilst in crutches and she managed to pass matric
with admission to diploma studies. In 2019 she completed
a one year
Destiny Leadership Academy course from the One Life Church .Ms Bobart
stated that she conducted plaintiff's assessment
of her current level
of emotional and cognitive functioning. She found no formal thought
disturbances and that her flow of thought
was appropriate.
She found no mood disorder or
difficulties and no vegetative shifts.
She assessed the plaintiff's capacity to
form comparison reason by correspondence (similarity/analogy) and to
develop a logical
and systematic method reasoning. The plaintiff's
score put her in a catergory
of
intellectual
functioning
in
low
average
range.
Bobart
concluded
that
the
plaintiff had she not been injured, would have entered the labour
market at B3 level and her career ceiling would likely been
at the
C1/2 level.
She
would have probably commenced employment in 2022 at lower Quartile of
Paterson 81, and after 2 years progressed to Median of
Paterson 81,
further progress with straight line increases at the Median of
Paterson 85 by 2044 at the age of 45 and rely on inflationary
increases up to retirement at age of 65 years.
[13]
The plaintiff testified that she used
crutches for seven months.
She
was in severe pain for four months after the accident until she was
re-admitted and she was operated on again.
She managed to study for matric although
she was in pain and it was difficult to concentrate.
She intended to study to become a
teacher.
She
could not continue with further studies whilst receiving medical
treatment and she did not know how further operations would
affect
her.
In
2018, she was not admitted in the Destiny Leadership Academy course
because it involved physical activities. From January 2018
to
December 2018, she did volunteer work with the Church, which involved
putting together activities for children.
From June 2021, she got her current job
as teacher assistant.
She
generally assist the teacher by looking after children aged between 6
months and two years.
Her
duties involves changing nappies, preparing snacks for the children
and supervising children whilst playing.
She had to stand for long periods but
she cannot cope.
She
must take short breaks to rest at about every hour otherwise; her
injured leg becomes too painful.
There are scars on her face and where
she was injured on her legs.
Her
left leg is shorter than the right led and she got used to it.
She now does not take any pain tablets.
Her four frontal upper jaw teeth were
damaged and they were removed.
She
has been fitted with false teeth.
[14]
The plaintiff testified that she has
never repeated a school grade.
She
passed matric with a diploma pass.
She
had to do a bridging course before proceeding to study for a teaching
qualification. She still has passion for teaching. She
opted to be
teacher assistant to have a feel for a teaching career. She did not
know whether she would qualify to become a teacher.
She rates her
chance to become a teacher at 50%.
She
has a passion
for
working
with
children.
Her
volunteer
work
with
the
church
involved
physical work including painting and
garden work.
It
was strenuous for her.
She
was of average intelligence before the accident and the accident has
not changed anything.
She
because of the accident is a little more emotional and anxious and
she is withdrawn.
The
plaintiff prior to the accident at school participated netball,
soccer and swimming.
[15]
Ms Janeri Perumal testified.
She was employed as a teacher at the
Pre-Primary school with the plaintiff.
She is the plaintiff's supervisor.
The plaintiff assists her with lessons
and with her preparations.
She
looks after the children.
Her
duties require her to be physically active.
The plaintiff has to take short breaks
of about 5 minutes each to rest.
She
rests her leg by putting it on a locker.
She complains that he knee becomes
painful.
She
has noticed that at times the plaintiff gets upset with the children
and starts shouting at them.
She
had to talk to the plaintiff and advised her to control her emotions.
If the plaintiff was away on her days off, she turns to
loose
concentration.
[16]
Rossane Hardy a neuropsychologist
testified and confirmed the contents of her expert report.
She also prepared a joint minute with Ms
Strydom. She testified that she conducted neuropsychological
assessment on the plaintiff
on 3 October 2019
The assessment batter included measures
to assess attentional and psychomotor functions, visuo-spatial
processing, memory functioning,
learning ability, and higher
cognitive abilities, as well as self-report measures to assess
mood-state, adaptive behaviour and
personality. The assessment
results showed the plaintiff to be average and in few instances to be
low average.
In
particular, her IQ was average.
On
the adaptive behaviour and personality criteria, a self-report
measure of mood state (BDI) indicated a mild depression and a
moderate degree of psychological distress.
She found opined that the
neuropsychological assessment revealed a range of deficits consistent
with variable impairment of neuropsychological
functioning. She
stated that although the plaintiff showed an intact C.T. Scan on
admission, loss of consciousness and brief period
of posttraumatic
amnesia suggests that the plaintiff sustained a mild head injury;
radiological investigation demonstrated multiple
facial fractures
indicating that she sustained a significant impact to the head. Her
posttraumatic complaints and test findings
are indicative of
neuropsychological impairment.
Since
there was
no
report of developmental dysfunction, previous cognitive difficulties
or relevant medical history and malingering was not suspected,
the
current findings and her level of dysfunction are attributed to
residual effects of the injuries she sustained in the accident.
[17]
Lizanne Strydom is a clinical
psychologist and the defendant's expert.
She prepared an expert report after
assessing the plaintiff.
She
also prepared a joint minute with Ms Hardy.
She was not called to testify.
She stated in her report that she
conducted a neuropsychological assessment on the plaintiff.
The purpose of the assessment was to
determine the nature, extent and severity of any neuropsychological
sequelae arising from the
accident and how these may impact on the
future functioning.
She
conducted the assessment on 26 March 2020.
The evaluation consisted of
neuropsychological assessment battery (including measures to assess
attentional and psychomotor functions,
visual-spatial processing,
memory functioning, learning ability, higher cognitive abilities),
and self-report measures to assess
mood-state and personality.
She recorded that the hospital medical
records show that a C T brain Scan was performed.
It revealed a left supraorbital and
frontal sinus and orbital roof fractures with bone fragments
projecting within the orbit.
The
right superior rectus muscle haematoma was also noted. In the
Intellectual Functioning Range, the plaintiff's results were on
the
law average range consistent with her educational and vocational
progress pre-accident and post-accident. On the test for Attention,
Concentration, Working Memory and Processing Speed, her performance
suggested intact auditory as well as intact visual attention,
auditory working memory, visual working memory and visual processing
speed.
Her
receptive and expressive language skills
visuo-perceptual/visuo-constructional, verbal memory, ability to
acquire new verbal
information, delayed memory for verbal material
and delayed memory for non-verbal were judged intact.
Ms Strydom concluded on the AMA Guides
to Evaluation of Permanent Impairment (sixth edition) the following
impairment rating applies
to plaintiff:
>
Mental
Status,
Cognition,
and
Higher
Integrative
Functioning
rating
(MSCHIF): Alteration in Mental Status,
Cognition and Highest Integrative Function (Table 13-8): 5% (Class
1).
>
Global Assessment of
Functioning (GAF) Impairment score
(Table 13-8): 5%.
Therefore,
Higher
Cortical
Function Impairment
is
5
%(
Highest
score
was
MSCHIF
-5%0. According to the criteria for
rating neuropsychological Impairment due to alteration in mental
status, cognition and highest
integrative functioning, her injuries
constitute a mild abnormality.
Further,
concludes Ms Strydom that it is unlikely that the plaintiff's
educational and vocational potential has been substantially
affected
by the accident.
She
found on the Intellectual Functioning Range that the plaintiff's
results fell between the 25thband 50
th
percentile ranks, indicating her current level of general
intellectual functioning on the Low Average Range which score is
fairly
intact with her educational and vocational progress, pre-and
post-accident.
There
is no reduction in intellectual functioning range suspected.
[18]
Lastly, the plaintiff adduced evidence
from Michael Denton a physiotherapist.
Mr Denton also prepared a medico-legal
report.
Mr.
Denton explained that two surgical procedures were done on the
plaintiff.
The
first was done on the day of the injury.
It was an internal fixation of the tibia
with intramedullary nail.
The
other procedure was done two days later, which debridement and
closure of the 5 cm wound in the right lower leg. The plaintiff
was
kept with a bowel slab on her left leg to support her left leg
fracture until this could be fixated on the 17th July 2017 using
a
ring fixator which is an external device used to hold the bones in
place whilst they heal.
The
plaintiff remained in hospital for 10 days when she had physio and
taught to walk with her crutches before she was discharged
on 27 July
2017.
In
January 2018, she was still using crutches and still reported severe
pain.
A
tibia! plateau fracture is one of the most disabling injuries because
it involves weight-bearing surface of the leg.
Rehabilitation is typically difficult
and time consuming and it can last over a period of twelve months if
the injury has been managed
with an internal plate.
When managed with an external ring
fixator, it can take even longer to heal, healing is often delayed
because of the tenuous hold
the fixator has on the bones, and so
weight bearing has to progress very gradually.
This leads to prolonged period of
disability and non-weight bearing in which muscles will atrophy and
weaken around the hip and
the knee.
Post-operative fixation of the tibia!
plateau results in
the
loss
of
flexibility
in
the
ankle
joint.
The
plaintiff
has
lost
50%
of
the
movement
in
the ankle joint.
This
causes her to load the knee when walking causing pain through the
healing fracture.
She
has a loss of left knee flexion due to pain.
Evaluation
of the evidence
[19]
There is no dispute on the nature and
the extent of the physical injury sustained by the plaintiff.
There is also no dispute about the
sequel of the injuries of the plaintiff. However, by its nature
sequel requires one to predict
what will happen in the future, which
cannot be done with certainty.
The
plaintiff's injuries may stabilise and have minimal negative effect
on the life of the plaintiff.
On
the other hand, they may be a constant source of pain and anguish for
the rest of the life of the plaintiff.
The plaintiff is young, she has a
positive attitude, and she is prepared to challenge herself.
A positive factor may assist her to
adapt and enhance the healing process.
However, the opinion of experts on the
likely sequel of the injury is borne by years of experience with such
an injury and naturally,
they carry a lot of persuasive force.
By all accounts, the plaintiff has
suffered on the left leg a devastating injury.
The injury on the left leg due to the
youthfulness of the plaintiff might not appear to have a measure
impact on the life of the
plaintiff but probabilities are that it
will not stabilise to be able to bear weight for extended period. It
will probably need
constant attention and shall cause on going pain.
Late in middle age, it is likely to
deteriorate and worsen the situation of the plaintiff.
[20]
The plaintiff sustained impact to her
head.
It
caused a degloving wound on the left parietal area and laceration to
the face. CT brain scan revealed a left supraorbital and
frontal
fracture; comminute left frontal sinus and orbital roof fractures
with bone fragments projecting within the orbit.
Right superior rectus muscle haematoma
was also noted.
The
impact did not cause any injury to the brain.
The head injury healed satisfactorily
except that it left facial scars and substitute frontal teeth.
[21]
Both Hardy and Strydom refer to a
neuropsychological impairment of the plaintiff, which they attribute
to the head injury suffered
by the plaintiff.
The plaintiff was assessed by a
neurosurgeon dr. Trevou.
In
a report dated 16 January 2020 in the summary of abnormal findings,
it was found that excerpt for multiple well healed scars
(including
mild facial
disfigurement)
both
her
general
and
neurological
examinations
are
normal.
It should be noted that a detailed neuropsychological
assessment was not undertaken.
She however does not complain of any
abnormalities of her higher mental functions and none are evident to
bedside testing.
Given
the obvious
severity
of the impact to her head ( multiple
facial fractures ) it may of value to have her more comprehensively
assessed by a neuropsychologist.
She
was investigated with computer tomography scans of the head and
cervical spine which were normal except for facial fractures.
In particular, there was no radiological
evidence of an intracerebral (brain) abnormality. Dr Trevou
recommended that
it
might
be
of
value
to
give
the
plaintiff
a
more
comprehensive
assessment
by
a
neuropsychologist.
[22]
Lizainne Strydom and Rosanne Hardy as
psychologists prepared a joint minute on neuropsychological
assessment of the plaintiff.
Strydom
noted that no intracranial pathology was indicated on CT brain scan.
Hardy stated that the plaintiff suffered
a significant impact to the head as indicated by her facial
fractures, and opines that
a lack of intracranial pathology seen on
CT does exclude the presence of brain damage ( due to the limitation
of CT scans).
On
findings, Strydom
found
no deficits across all cognitive domains, and suggests that her low
average intelligence scores appears 'congruent with her
emotional and
vocational background.
Further,
the plaintiff's mood disorder (anxiety) can partly be related to the
accident, but also partly to other phytosociological
factors (
uncertainty around employment, death of her mother in 2012 and
changes to her life thereafter.
Whereas
Hardy as her findings, notes significant variability in plaintiffs
scores ( from above average to severely defective ) with
difficulty
in attention/ concentration ( average to borderline ) processing
speed ( average to below average ) , working memory
(average to
borderline) , visual spatial functioning( average to below average ).
Such inter-and intra- test scatter is a
common indicator of neurological involvement.
Further, the plaintiff's psychological
assessment alluded to a mild depression, a moderate degree of
psychological distress and
features of PTSD related to the accident.
Her reported emotional/behavioural
complaints
were
a
change
from
premorbid
descriptions
of
plaintiff as a happy, friendly and
polite.
Hardy
opines that the above changes are consistent with expected effects of
a head injury.
[23]
Strydom reported that it unlikely that
the plaintiff's educational and vocational potential has been
substantially affected by the
accident.
Hardy opined that the plaintiff's
educational and vocational capacity are reduced due to the injuries
she sustained in the accident.
Her
neuropsychological profile and reported complaints suggest that she
will reach her educational ceiling sooner and her ability
to secure
employment and progress vocationally has been compromised. Both
Strydom and Hardy agreed that given the time that has
passed since
the accident the plaintiff is unlikely to undergo any further
improvement and her core neurocognitive deficits can
be considered
permanent. Strydom recommends psychotherapeutic intervention to deal
with the plaintiff's fear and nurture better
coping skills. Whereas
Hardy recommends supportive therapy, counselling and psycho-education
to assist her in compensating for
her deficits and to address her
psychological distress.
[24]
The psychologists base their findings
solely on the plaintiff's performance on neuropsychological
assessments.
The
assessment showed a slight deviation.
The problem is that there could be other
causes of the deviation. Further, there is no evidence that if these
assessments were conducted
pre-accident there would have been no
deviation.
The
plaintiff's school performance prior to the accident and
post-accident indicates a likelihood that these deviations are part
of the plaintiff's make.
Both
Hardy and Strydom do and have to defer to a neurosurgeon.
There is no evidence by a neurosurgeon
of damage to the plaintiff's brain, which may result in some
psychological impairment.
In
my view, the plaintiff has not proved any neuropsychological
impairment caused by an injury sustained in the accident.
Ms Hardy in her report and evidence
refers to the plaintiff's injury having resulted in
neuropsychological impairment.
She
states that the current findings and her level of dysfunction are
attributed to the residual effects of the injuries she sustained
in
the accident. She states that the plaintiff's injuries constitutes a
severe
alteration
in
mental
status. cognition
and
highest
integrative
functioning
(Class 111; 26%) and has led to
diminished educational, vocational and psychosocial potential.
In
my view, Ms Hardy draws conclusion, which are not founded on facts.
The plaintiff on the totality of the evidence is of average
intellectual intelligence. There is no evidence that the injuries
sustained in the accident has in any significant manner altered
her
intellectual ability. There is, also in my view, no evidence that the
injuries sustained in the accident have in any significant
manner
changed the plaintiff's psychological behavioural profile.
[25]
The injuries sustained by the plaintiff in the accident has rendered
her permanently not able
to perform any other work other than work of
a sedentary nature. This renders her permanently incapable of
performing work as a
general worker. If she does not acquire
qualification to become a professional worker, she has suffered a
total loss of future
income as a general worker. If the plaintiff
acquires a qualification, she is restricted to certain professions.
Even in the selected
profession, her chances to be competitive and to
progress are slightly reduced. She shall need to be accommodated by
her employer.
[26]
The plaintiff is realistic and measured
in her career choice.
She
has passion for teaching and teaching has always been her career of
choice.
She
is well aware of her limited intellectual abilities.
The teaching profession accommodates
person with various degrees of intelligence.
The plaintiff is motivated.
She has a suitable personality for a
vocation as a teacher.
She
expresses herself well and she strong religious grounding. The
plaintiff's physical condition shall have a limited effect in
her as
a teacher.
[27]
The courts have a wide discretion to
determine general damages.
It
is not an exercise in exactitude or to be arrived at according to a
known
formulae
but
factors and circumstances considered important must be stated to show
that the conclusion arrived at is based on proper grounds
and
reasoning.
See
Road Accident Fund v Marunga
2003
(5) SA 164
(SCA) at para [34).
The
onus is on the plaintiff to prove on the balance of probabilities her
damages.
In
Singh v Ebrahim
(413/09)
[2010] ZASCA 145
26 November 2010
at
para
[128]
the
Syneders
JA held:
'The
conservative
approach
to
the
assessment
of damages is an approach based on
policy considerations.
Those
policy considerations take account of the fact that when a court
assesses damages, particularly for loss of future earning
capacity
and medical expenses, it has been said to be 'pondering the
imponderable'. It in essence makes an assessment of what the
future
holds. Fairness to a defendant when an uncertain future is assessed
at a time when injuries caused by the defendant is known
and could
give rise to an overly sympathetic assessment of the plaintiff's
damages has also to be borne in mind.
The general equities in the case need to
be given due weight to achieve fairness, not only to the defendant,
but the plaintiff and
the public at large.
The latter, because awards made affect
the course of awards in the future, overly optimistic awards may
promote inequality and foster
litigation'.
[28]
The
plaintiff's
left
knee
injury
caused
fractured
tibia
plateau.
It
damaged
the
ligaments in the left knee joint and the soft tissue around it.
It is a compound fracture, which
fractured the bone into pieces.
It
left the knee joint misaligned, with limited flexion and the left leg
shorter than the right leg.
Since
the damage is in the knee joint it results in the leg being unable
bear weight.
It
results in the plaintiff compensating in order to walk. The right leg
too was fractured which results in that leg able to carry
only
limited weight.
The
result is that the plaintiff's structure is unstable with poor
prospects of improving and any activity accompanied by chronic
pain.
The plaintiff is young and knee replacement may only be considered
later in life.
The
mobility of the plaintiff with all its consequences is permanently
compromised.
[29]
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.
[30]
In
Alla
v Road Accident Fund2013
(6EB) QOD 1
(ECP), a 41-year-old correctional services officer sustained fracture
of the anKie 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.
Pain
was still being experienced 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.
[31]
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
MEG 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:
1.
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.
2.
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.
3.
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.
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
seventeen years.
She
was a teenager.
It
means she shall experience most of her life in an injured state.
2.
The plaintiff sustained injuries which
have been described above in her head and face, in her right leg and
in her left leg.
She
was in severe pain for about six weeks.
Due to the nature of the injury, she
sustained in the left leg she shall be in some pain whenever she
carries out any activity in
a mobile state.
The pain is likely to worsen as she gets
older.
3.
The injury has had a huge impact on the
mobility of the plaintiff, which leaves her with confined space.
She is partially permanently disabled.
She shall never live a normal life.
[32]
The evidence establishes that the
plaintiff would probably enrol for and obtain a tertiary
qualification, probably a teaching qualification.
She would have entered labour market at
B3 level and the career ceiling reached at C1-2 level.
She probably would have secured
employment in the year 2022 earnings at lower quartile of Paterson
B1, progressed to the median
of Paterson B1 after two years, further,
progressed in straight line increases at the median of Paterson
B5 by 2044 at the
age of 45, followed by annual inflationary
increases until age of 65.
[33]
The accident has compromised the
plaintiff's competitiveness on the open labour market and in her
chosen career.
It
has compromised her ability to find employment, her ability to keep
employment, her ability to advance in her career.
It has also reduced the lifespan of her
employment.
[34]
The defendant offered the plaintiff an
amount of R?00 000-00 for general damages. The principles for
determination of general damages
have been set out above.
The amount offered by the defendant is
in my view in accordance with the said principles.
It falls within the range of
a fair and
reasonable compensation for general
damages for a claimant in the circumstances of the plaintiff.
Loss
of earning capacity.
[35]
The plaintiff's life expectancy has not
been affected by the injuries she sustained in the accident.
The defendant accept that the plaintiff
has suffered a loss in the form of the diminution of earning
capacity.
In
the particulars of claim plaintiff claimed R6 million claiming that
plaintiff has suffered and will continue to suffer a reduction
in her
earning capacity and a loss of income.
[36]
In my view, the plaintiff has
established on the preponderance of probabilities that, all other
things being equal, she will qualify
as a teacher and commence
employment as a teacher. She is of average intelligence; she has the
expressive ability and the suitable
personality to become a teacher.
She passed matric when she was seventeen
years without having repeated a school grade.
She passed matric despite the trauma of
the accident.
She
is an achiever.
If
she had not been involved in the accident, she would have taken a gap
year, do a bridging course in 2019 and commence with her
teaching
qualification in 2020 and completing it in 2024. She would have
commenced employment as a teacher in 2025.
In my view, the loss the plaintiff has
suffered is the total loss of earning capacity as a general worker.
Since the plaintiff could not have been
a general worker and a teacher at the same time, her loss of earning
capacity eventuates
if she failed to become a teacher.
But even if she became a teacher, she
would have had the capacity to do work as a general worker.
[37]
The injuries sustained by the plaintiff
render the plaintiff less competitive in the labour market.
It is also realistic to find that the
plaintiff would not be able to work beyond the age of 55 years. The
plaintiff as a teacher
would be restricted in the physical activities
the other teachers can perform. This shall stilt her career
development. It results
in a partial loss of earning capacity. In
addition, she has lost the earning capacity as a general worker.
It is difficult to assess the
plaintiff's loss but her loss is real and it has to be assessed.
[38]
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 which is possible but cannot be
predicted with certainty. The determination of
contingencies is a
process of subjective impressions or estimation. It's guided largely
by the court's 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 the context that the
future is uncertain and it is difficult to judge how a person's
career prospects would be and would have been over a considerable
period. What factors would have an impact and in what degree
in the
career of the 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 lost employment, may have not progressed in her career,
may have
changed career, may have not qualified in her career, may have less
than a normal expectation of life.
[39]
The rate of the discount cannot of
course be assessed on any precise logical basis: the assessment must
be largely arbitrary and
must depend upon the Judge's impression of
the case.
(Southern Insurance
Association Ltd v Bailey NO
1984(1)
SA 98 (A) at 116H.) In order to assess the plaintiff's future loss of
earnings a comparison should be made between what
would she would
have earned pre-morbid and what she is likely to earn post-morbid.
Experts are frequently called in to
assist the court, but courts are not bound by the opinion of experts.
It is the duty of the experts to furnish
the court with the necessary scientific criteria for testing the
accuracy of the expert's
conclusion to enable the court to form an
independent judgment by the application of the
creteria
to the facts. The value of the
expert evidence depends on a large measure on the qualifications and
experience of the expert, the
application by the experts of the
creteria
to
the facts of the case and the logical connection between the expert's
conclusion and the basis of the conclusion.
[40]
The court in
Goodall
v President Insurance
1978 (1) SA
389
(W) at 392-3 referred to a case where 20 per cent contingency was
fixed for a 25 year old plaintiff and a contingency of ten (10)
per
cent for a 46 year old plaintiff..
In
the so-called sliding scale method a contingency of half a percent
per year to the retirement age in the 'but for' scenario working
out
to 25% for a child, 20% for a youth and 10% for middle age are the
normal range.
In
the 'but for' scenario Road Accident Fund usually agrees to
deductions of 5% for past loss and 15% for future loss as the
so-called
normal contingencies.
In
Duma v Road Accident Fund
[2019]
JOL 41486(KZP)
the court for a 47-year-old plaintiff incapable of
assuming any form of employment, applied a contingency deduction of
7% pre-morbid
and 7% post-morbid.
[41]
The plaintiff has lost capacity to do
general work.
Except
to consider the loss in dealing with other issues, the loss needs not
be worked out into a specific amount for compensation.
However, it is taken into consideration
in reducing the total contingency percentage.
The plaintiff in the teaching career has
lost 45 per cent of the full capacity. The uncertainties are that it
is not known whether
the plaintiff would qualify as a teacher, what
would be her career progression, how long she would remain a teacher.
These uncertainties
are quantified into 20 per cent contingency.
[42]
The
plaintiff's
actuary
calculates
the
plaintiff's
loss
of
income
as
R2 599 735.00 based on a contingency of
5% for past income, a contingency of 40% in her injured state and
contingencies for the
future 'but for' scenario at 0.5% per year on
45 year working life span resulting in 22.5%.
[43]
The defendant contends that an initial
actuarial report there was no consideration of a delay in
progression, the factor is a type
of contingency warranting lower
contingencies post morbid.
The
defendant contends for contingencies at 5% past, 24% future
uninjured, and 48% future injured which result in past income of
R174
762 made up of uninjured R249 050 less injured of R65 089.
The defendant contends that for loss of
future
income
R2
377
911
based
on
future
uninjured
income
of
R7
062
464
and
injured at R6 085 238, in the event of
seven year delay instead of five (5) year delay,
it amounts to R2 599 735.
The defendant contends that the future
uninjured contingency be 25%, and
the
future
injured
contingency
be
30%
which
calculates
at
a
loss
earnings
of
R1 211 944.
[44]
The situation of the plaintiff in my
view calls for a contingency of 20% on future loss of earnings
pre-morbid and 40% contingency
post morbid.
I accept 5% contingency for past
loss
of
earnings.
In
the
result
the
plaintiff
total
loss
of
earnings
is
found
to
be
R2 173 571.00.
The
plaintiff's general damages are determined at R850 000.
[45]
In the
result,
the
court
awards
damages
to
the
plaintiff
as
follows,
before apportionment agreed to between the parties.
It
is ordered that:-
1.
The Defendant
is directed
to pay Plaintiff
in the sum of R 850 000.00(eight hundred
and fifty thousand) for general damages.
2.
The defendant is directed to pay the
Plaintiff the sum of R2 173 571.00 (two million one hundred and
seventy thousand five hundred
and seventy one) for loss of earnings.
3.
The Defendant is to pay interest on the
determined amounts at the rate of 7,75% per annum commencing on
expiry of 180 days from
the date of determination of the amount to
the date of the final payment.
4.
The Defendant is directed to provide an
undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
in respect of 65% of Plaintiff's medical costs arising
from the injuries she sustained in the motor vehicle accident.
5.
The Defendant is directed to make
payment of the Plaintiff's taxed or agreed party and party costs on
the High Court scale. These
costs shall include,
but are not limited to:
5.1
The costs of counsel, including their
costs of preparation for the hearing of the matter, as well as the
costs of the Plaintiff's
counsel and attorney consequent upon them
attending upon consultations with the undermentioned expert
witnesses, in preparation
for the hearing of this matter.
5.2
The fees and expenses incurred by the
following witnesses (with the quantum of their fees to be determined
by the taxing master)
for,
inter
alia,
the preparation of their
reports and any supplementary reports, joint minutes and the RAF
forms (where applicable), as well as the
experts' qualifying fees and
their fees for attending upon necessary consultations with the
Plaintiff's counsel and attorney to
enable them to testify at the
trial to give evidence:
i)
Dr A. Osman -
(Orthopaedic Surgeon) -
Qualifying fee
ii)
Dr B. Bhagwan -
(Neurologist) -
Qualifying fee
iii)
Dr 0. Van Heerden -
(Maxillofacial and Oral Surgeon)
iv)
or
R.
Hardy -
(Neuropsychologist) -
Qualifying fee
v)
Dr M. Du Trevou -
(Neurosurgeon) -
Qualifying fee
vi)
Ms N. Portela- (Biokineticist) -
Qualifying fee
vii)
Ms N. Boreham -
(Occupational Therapist) -
Qualifying fee
viii)
Ms S. Babat- (Industrial Psychologist)
-
Qualifying
fee
ix)
Mr M. Denton -
(Physiotherapist) -
Qualifying fee
x)
Robert J. Koch -
(Actuary)
5.3
Counsel and Attorney fees (including but
not limited to perusing, preparation time, travelling time, fees
regarding consultation
with experts and witnesses as well as
attendance at Court and travel for the trial set down for 22
nd
and
23
rd
of
November 2021.
5.4
The costs consequent upon the
Plaintiff's Attorney attending all
Rule 37(4)
and
Rule 37(8)
Pre-Trial Conferences including Plaintiff's Attorneys reasonable
travelling expenses.
6.
The Defendant
is to pay the capital
amount
as
well as the aforesaid
amount
into Plaintiff's attorney's trust
account with the details as follows:
DIEDRICKS
ATTORNEYS INC.
BANK
STANDARD BANK
TRUST
ACCOUNT NO.
[....]
BRANCH
CODE
057525
REF.
1W3401
Mngadi
J.
APPEARANCES
Case
Number
3123/19P
For
the Plaintiff
Mr. Dutton
Instructed
by
Diedricks Attorneys
PIETERMARITZBURG
For
the Respondent
Ms Ramouthar
Instructed
by
Road Accident Fund
DURBAN
Heard
on
23 November 2021
Judgment
delivered on
5 August 2022