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[2022] ZAMPMBHC 47
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Nhubunga v Road Accident Fund (1851/2021) [2022] ZAMPMBHC 47 (20 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
CASE
NO: 1851/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
20/06/2022
In
the matter between:
GANON
DZUNISANI NHUBUNGA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This is a delictual claim emanating from a motor vehicle collision
between the Plaintiff
and motor vehicle with Registration letters and
numbers DTX 3 MP. The collision happened on
23
September 2012 at Dwarsloop in the district of Bushbuckridge in
Mpumalanga Province, at about 16h30. When the collision occurred,
the
Plaintiff was a pedestrian. In consequence of the collision described
aforesaid, the Plaintiff sustained multiple injuries.
[2]
Believing that the Defendant was as a result of the negligent driving
of the driver
of motor vehicle DTX 3 MP liable to compensate him for
the resultant injuries, he lodged a motor vehicle accident claim
against
it. The action was initially defended but the Defendant
subsequently withdrew the mandate that it had given to its attorneys
causing
the matter to become essentially undefended. When the matter
served before me on 18 October 2021, I was advised that merits and
quantum had been settled on an earlier date on the basis that the
Defendant would be liable for 80% of damages that the Plaintiff
may
subsequently prove against it.
[3]
To this end, the Court was provided with an order of the Gauteng
Division dated 8
October 2018, which was evidently prior to the
transfer of the matter to this Court. As such, the purpose of these
proceedings
is to assess and dispose of the quantum part of the
claim. Both parties have appointed experts who, following their
examination
of the Plaintiff or consultation with him, have compiled
reports describing their findings.
[4]
I note that of all these experts only the Orthopaedic Surgeons have
compiled joint
minutes. The action is undefended consequently it did
not come as a surprise that majority of the Plaintiff’s experts
gave
evidence in Court while those of the Defendant did not. I cannot
take the reports of the Defendant into consideration because they
were not presented to Court nor was there a request on behalf of the
Defendant that they be admitted into evidence. Additionally,
I have
no pre-trial minutes to guide me on what the status of those reports
is.
INJURIES
[5]
The Mapulaneng Hospital clinical notes record the injuries as
fractures of the left
tibia and fibular distal 1/3, abrasions on his
left foot and the anterior aspect of the tibia and a head injury,
which consisted
mainly in lacerations to the scalp. Treatment
comprised x-ray examination of the left tibia and fibular, suturing
of all his scalp
lacerations and analgesics. Later, when the
Plaintiff received further treatment at OR Tambo Memorial Hospital in
Boksburg, doctors
operated on his left leg to insert a nail. The
fractures are stated to have united without any complications and the
nail is to
be removed.
[6]
In their joint minute, Drs Preddy and Tladi record the injuries
sustained by the Plaintiff
as fracture of the left tibia and fibula,
scalp laceration, left foot abrasions and left upper limb abrasions.
The treatment administered
on the Plaintiff while admitted in both
hospital is common cause between the doctors. The treatment that he
received at Mapulaneng
Hospital consisted in the suturing of the
scalp laceration, analgesia, dressings, back slap cast to the left
power leg and antibiotics.
He underwent an intramedullary locking
nail procedure as an ‘open reduction and internal fixative’
(“ORIF”)
while at OR Tambo Memorial Hospital.
[7]
Drs Preddy and Tladi examined the Plaintiff on 30 September 2015 and
3 October 2018
respectively. Both the Mapulaneng and OR Tambo
Memorial Hospitals did not capture the right shoulder injury detected
in 2015 by
Dr Van Rensberg, a Radiologist, and subsequently reported
by Dr Preddy in his medico-legal report. Similarly, when Dr Tladi
examined
the Plaintiff in 2018, she neither observed or noted the
Plaintiff’s shoulder injury yet the x-ray report captures it as
follows:
“
A
fracture is noted of the superior aspect of the body of the scapula.
The
fracture
extends to the glenoid cavity. The radiographic features are
suggestive of a non-united fracture with a
residual
lucency still demonstrated. The
glenoliumeral joint space is otherwise intact. The visualized
clavicle and ribs are intact.”
PLAINTIFF’S
COMPLAINTS TO THE RESPECTIVE DOCTORS
[8]
On 3 October 2018, the Plaintiff told Dr Tladi that his pain was
intermitted in nature.
He advised her further that it was exacerbated
by prolonged walking, lifting of heavy weights and inclement weather.
He was unable
to walk for long distances. On 30 September 2015 when
he saw Dr Preddy, he complained that he limped on the left leg. He
could
not run and experienced pain when he walked for long periods.
His leg swells if he stands for long and often wakes up at night
because of pain coming from the left led. He reiterated to Dr Preddy
that inclement weather intensified his pain.
[9]
Both doctors noted that the Plaintiff was experiencing recurring
headaches for which
they deferred his complaint in that respect to a
Neurosurgeon or Neurologist. It is common cause that the Plaintiff
sustained a
head laceration at the occiput. The magnitude of this
injury is not recorded anywhere except by the Neurosurgeon of the
Defendant,
Dr Mosadi whose report, for reasons described above, I
cannot consider because it is not before me. It should suffice to
state
that it is stated in the medical records that following the
collision, the Plaintiff lost consciousness and only woke up in
hospital.
The GCS registered his level of awareness on admission at
the Mapulaneng Hospital at 15/15.
[10]
On the question of injuries sustained by the Plaintiff, all the other
experts take their queue
from Drs Peddy and (Mosadi, the
Neurosurgeon. For reasons that I have already stated above, I
reiterate that I cannot take into
account the report of Dr Mosadi as
his report is essentially hearsay. That leaves me with the report of
Dr Preddy as the only one
that describes the injuries of the
Plaintiff.
EVIDENCE
[11]
As could be expected, the evidence levied before Court was not
challenged because the matter
was not defended. That said, I must
emphasise that the weight and pertinence of their testimony and
sequelae lean heavily on the
accuracy of the injuries described by Dr
Preddy in his report. If the injuries are incorrect, so will those
captured in the reports
of other experts who depended on it for their
inferences.
[12]
Under the heading: Assessment Summary, Messrs. Mphuthi and Maye state
as follows:
“
Neuropsychological
test results indicate impaired neurocognitive and psychosocial
capacity and function, particularly in the following
domains:
cognitive flexibility, information-processing speed, executive
function, psychomotor speed, motor speed,
reaction
time and memory.
Mr
Nhubunga’s EEG results fall within the normal range, and brain
connectivity measures suggest problems with erratic cortical
processing. This indicates vulnerability to problems with
attention/concentration.
As
reviewed above, his performances on psychometric testing were likely
influenced by premorbid cognitive-intellectual capacity,
as well as
the disruptive impact of chronic pain and mood-effects on his
attention/concentration, motivation and frustration-tolerance.
Conclusion
regarding traumatic brain injury
Taking
all the foregoing into account, we conclude that Mr Nhubunga
sustained a mild concussion at the time of the accident. This
is
evidenced by the brief period of retrograde amnesia, the prolonged
period of post-traumatic amnesia, the period of irritability,
confusion, forgetfulness and restlessness, according to Mr Nhubunga’s
account of his hospitalization, and the scalp lacerations
noted in
the hospital records.
We
nevertheless defer to the diagnoses of neurosurgeons regarding the
severity of brain injury.”
[13]
Ms D Mathebula, the Occupational Therapist, was appointed by the
Defendant to examine the Plaintiff
and to furnish her report
thereafter. She saw the Plaintiff on 13 November 2015. Her testimony
stood unchallenged and I have no
reason not to accept it. However, it
must be recalled that to the extent that she refers to a sublaxed
right shoulder, her evidence
is incorrect. I will elaborate later on
this aspect of this judgment.
[14]
Ms Mathebula assessed the Plaintiff with the objective of firstly,
determining the extent to
which the motor vehicle accident has
affected his functional abilities to participate in daily activities.
Secondly, furnishing
a professional opinion on the financial
implications of the Plaintiff’s injuries. Thirdly, making
recommendations for the
Plaintiff’s future care. In her
endeavour to accomplish the above, Ms Mathebula conducted various
tests among which were
the pain, cognitive and psychosocial
assessments of the Plaintiff.
[15]
Ms Mathebula records that the brief pain inventory was utilized to
measure the degree of pain.
The scale assesses both (quantitative)
subjective experiences and (quantitative) amount of pain that the
client has experienced
within a short period of time such as within
one or two weeks. The scale uses 0-10 numeric rating scale for item
rating. It measures
the severity and how the pain interferes with the
quality of life. The Plaintiff experienced pain on right shoulder and
left leg,
when palpating the injured sites. Similarly, when requested
to perform certain movements, he evinced objective behavioural signs
of pain by grimacing. The severity of pain generated using the above
method, out of a scale of 0-10, the Plaintiff measured 6/10.
This
amount of pain, she states, would interfere with his ability to
engage in general activities such as walking and running.
[16]
On assessment of the Plaintiff’s hand function, Ms Mathebula
records that this was found
to be intact in both hands. In any event,
she continues, there was also no evidence of notable injuries to the
hands. Equally,
with regard to motionless sitting balance, he was
able to sit without any support. Insofar as dynamic sitting balance
was concerned,
he was able to maintain his dynamic sitting position.
When an external force was applied to affect his base of support he
was able
to regain his balance and also extend his hand to protect
himself.
[17]
The Plaintiff was able to stand immobile without external support. Ms
Mathebula found the Plaintiff’s
dynamic standing position to be
fair as he could perform activities in standing position without
losing balance. He could stand
on tip toes but could not hop on one
leg. His sitting posture was fair. His shoulders were not aligned
with the right shoulder
being slightly lower than the left. His back
was not slouched when sitting. He maintained an upright posture. He
was able to position
both his feet on the floor and knees maintained
a 90° angle.
[18]
Ms Mathebula’s observation of the Plaintiff’s sitting
endurance is that he did not
show signs of fatigue and discomfort
during the evaluation. The Plaintiff succeeded to keep a sitting
position for the duration
of the assessment. His standing endurance
too was observed to have been good. That said, he complained of
physical fatigue and
pain when he had to walk for long distances.
[19]
On cognitive and psychosocial assessments, which she states includes
orientation to time, place
name, memory, intellectual insight,
problem solving skills, decision making, attention, concentration,
judgement and thought processes,
Ms Mathebula says that all his
cognitive abilities were assessed and confirmed to be intact. The
Plaintiff was able to walk independently
but does so with a limp. Ms
Mathebula writes that the Plaintiff told her that he could not walk
for long distances anymore. Likewise,
he experiences difficulty with
running. The Plaintiff could stand on one leg while raising the other
but experienced difficulty
with weight bearing on the left leg.
[20]
The Plaintiff could fully squat. Regarding self-care activities,
which refers to the ability
to bath independently, toilet use,
bathing and grooming, the Plaintiff is said to have come well-groomed
and tidy. He informed
Ms Mathebula that he experienced difficulty
with combing his hair, bathing and dressing. Insofar as use of public
transport and
money management, he reported that he was fully
independent. He assists to make shopping at home. On home
management, which
refers to activities such as cleaning the house,
cooking and making one’s own bed, the Plaintiff advised Ms
Mathebula that
prior to the collision, he assisted with most of the
chores but after the injury he only does those activities that do not
cause
him pain.
[21]
Prior to the collision, the Plaintiff is said to have been unemployed
and busy with upgrading
his Grade 12. Following the collision and
after undergoing several medical consultations and examinations, the
Plaintiff was unable
to continue with his job studies. He is
currently said to be presenting with physical problems, pain and
walking with a limp favouring
the left leg. He played football before
the collision but cannot do so anymore as he cannot run. Ms Mathebula
is of the opinion
that the physical problems with which he now
presents are negatively affecting his ability to perform daily living
activities that
he performed before the collision. She recommends the
following medical management:
21.1
Specialist Physician;
21.2
Continued rehabilitation consisting in Physiotherapy for pain
management techniques, improvement of joint range of motion,
strengthening of muscles, and
mobilization;
21.3
Domestic assistance with some daily activities;
21.4
Orthopaedic consultation for sublaxed shoulder.
[22]
Ms Mathebula concludes with loss of amenities of life and she states:
“
The
claimant was involved in a motor vehicle accident, which left him
with injuries on his left leg and right arm. He received appropriate
conservative and surgical treatments during his hospitalization. He
currently presents with residual symptoms that are restricting
his
abilities to fulfil his pre-accident roles (particular his scholastic
activities, self-care and Leisure activities). His current
functional
limitations also limit his ability to enjoy meaningful life with
family and friends as he did before the accident. His
abilities to
perform daily activities independently have been negatively affected
as result of his injuries. The claimant had dreams
and aspirations
about his career path.”
[23]
Dr M Malaka is the Plaintiff’s Industrial Psychologist. He
looked at the pre and post collision
employment prospects of the
Plaintiff. He states that the collision occurred when the Plaintiff
was approximately 21 years old.
He assumed that, but for the
accident, the Plaintiff would have completed Grade 12 and proceeded
to attain a tertiary education.
To decide on the impact, the
collision has had on the Plaintiff’s abilities and future
prospects, he found it necessary to
investigate the background of the
family of the Plaintiff, their age and education.
[24]
The Plaintiff’s father, Mr Deference Nhubunga, passed standard
ten (Grade 12). He has a
civil engineering degree from University of
KwaZulu Natal. He works at Thaba Chweu Municipality as a Projects
Manager. His mother
who has since passed on was Nunu Mokoena. She
passed Grade 12 following which she proceeded to acquire a Nursing
Diploma. She worked
at Barberton Hospital as a nurse. The Plaintiff
is the second born of three children the first being Innocent.
Innocent has matric
and is currently unemployed and fully dependent
on his father. Katlego, the third child, is a learner at Nkothesi
Primary School.
[25]
The highest grade achieved by the Plaintiff is Grade 11, which he
attained at Masana High School.
He attempted Grade Twelve in 2009 but
failed. In 2010, he took a ‘gab-year. In 2011, he enrolled at
the Germiston FET College
studying Marketing but dropped out as a
result of insufficient financial support. His attempt to rewrite
Grade 12 in 2012 foiled
as he became involved in the accident. The
Plaintiff informed Dr Malaka that he holds a Code 10 driver’s
license. Dr Malaka
construes the background information of the
Plaintiff’s family to suggest that the Plaintiff had prospects
of completing
his high school education and to proceed beyond.
[26]
Dr Malaka assumed that, but for the collision, the Plaintiff would
have obtained Grade 12. Armed
with a matriculation certificate,
continued Dr Malaka, the Plaintiff would have acquired a two or three
year certificate/diploma.
The diploma would have empowered him to
obtain a semi-skilled work at
R19 500.00 - R56 000.00
– R143 000
per annum. Dr Malaka adds that after ten years
or so, given more experience and even in-house training as well as
further studies,
he would have earned at Paterson B1/B2 level. At
fifteen years or so, he could have earned at Paterson B5/C1 level.
His ceiling
would have been at Paterson C2/C3 level at age 45 years.
At this stage, he could have qualified for general annual increment
until
his retirement at the age of 65 years.
[27]
Taking his queue from the Orthopaedic Surgeon, Neuropsychologist and
Occupational Therapist,
the Industrial Psychologist, Dr M Malaka,
states that it is plain from the contents of the reports of the
aforesaid experts that
since the collision, the Plaintiff battles to
complete his schooling and to continue with his work goals. Due to
the Plaintiff’s
Orthopaedic and Neuropsychological deficits,
chances of successful employment or the ability to generate income is
limited. Dr
Malaka further avers that
the Plaintiff has therefore been
rendered a vulnerable worker. His work capacity has been drastically
compromised and seems ordained
for a sympathetic type employment,
which is hard to come by.
[28]
The report of the Industrial Psychologist has set the stage for the
actuary. The calculations
of the actuary derive, in the main, from
the report of the Industrial Psychologist. Thus, in appropriateness
or correctness of
such a report will reverberate through to the
actuarial calculations. The assumptions made by the actuary in
arriving in the answer
will as such, either be proper or incorrect
depending on the Industrial Psychologist’s report and the
information upon which
it in turn relied.
ISSUES
[29]
The first matter that requires the attention of this Court is which
of the injuries ought to
be taken into consideration when determining
the loss of earning capacity of the Plaintiff. This becomes necessary
because the
injuries recorded by the Mapulaneng and OR Tambo Memorial
Hospitals are different from those noted by the Plaintiff’s
experts.
Secondly, the Court ought to determine the value of the
award that it should make given the injuries sustained by the
Plaintiff
and their sequelae.
LEGAL
FRAMEWORK AND ANALYSIS
DETERMINATION
OF INJURIES SUSTAINED
[30]
When the Plaintiff was admitted to the Mapulaneng Hospital on 23
September 2012 the injuries
noted in the hospital records were a
scalp laceration, fractures of the left tibia and fibula distal 1/3
and abrasions on his left
foot and the anterior aspect of the tibia.
When compiling their joint minute, Drs Preddy and Tladi added to this
list of injuries,
abrasions of the left arm. Putting his report
together on 30 September 2015, Dr Preddy made a further addition of a
right shoulder
injury.
[31]
The x-ray examination of October 2018 on which Dr Tladi based her
findings did not detect the
shoulder injury. Even more disquieting is
that the Mapulaneng Hospital, which detained the Plaintiff for
approximately one or two
weeks prior to transferring him to OR Tambo
Memorial Hospital did not note the shoulder injury. An enquiry
regarding the genesis
of the right shoulder injury is inevitable. In
other words, how did the Mapulaneng Hospital on 23 September 2012 and
Dr Tladi on
3 October 2018 miss this serious right shoulder injury
detected by Dr Preddy in 2015?
[32]
Given the nature and gravity of the right shoulder injury described
above, it is unlikely that
the Plaintiff would not have reported it
to the treating doctors at the hospital. Almost three years after the
collision, Dr Preddy
noted the right shoulder injury.
Three years following
Dr Preddy’s report, 2018, the Plaintiff omits to inform Dr
Tladi of the shoulder injury. Dr Tladi is
unequivocal that he
examined the Plaintiff’s upper limbs and found no deformities
with both.
[33]
There are several possibilities but they are all speculative. First,
there was never a right
shoulder injury and that is why it was not
reported on admission at the hospital. Second, there might have been
an intervening
act that resulted in an injury to the Plaintiff’s
right shoulder and that is what the Radiologist detected. Third, the
shoulder
injury pertains to another person whose films mixed with
those of the Plaintiff on submission to Dr Preddy. Fourth, the
Plaintiff
had completely recuperated when he was examined by Dr Tladi
in 2018. On any one of these the Defendant cannot be held liable for
the compensation of the Plaintiff.
[34]
Turning to the fractures of the left tibia and fibula. It is
understandable that the complaints
and sequelae reported by the
Plaintiff to Dr Preddy were more severe. The reason is not difficult
to fathom – it had been
only three years since the left leg
injury and possibly it had not settled. When Dr Preddy saw him in
2015, he was experiencing
pains from the injured site, he could not
stand for long without pain, could not walk or run for long distances
without being subjected
to pain and his left leg would swell when he
stood for protracted periods. This picture had changed in 2018 when
the Plaintiff
visited Dr Tladi because his complaints were captured
as follows:
“
PRESENT
MAIN COMPLAINT
I
recorded the following history:
·
Left leg
pain:
ü
This pain
is intermittent in nature.
ü
Exacerbated
by prolonged walking, lifting of heavy weights and inclement
weather.
ü
He is
unable to walk for a long distance.
·
Recurrent
headaches:
ü
Opinion
deferred to a neurosurgeon/ neurologist.
·
No other
symptoms reported.”
[35]
These complaints are obviously less serious than those recorded in
2015 by Dr Preddy. I attribute
the severity of the complaints in 2015
to the period over which healing had to occur. Although some of the
complaints were persisting
in 2018, they were not as serious as those
recorded by Dr Preddy in 2015. Both doctors agree though that the
fractures have united
without any significant difficulties and that
all that must happen is for the Plaintiff to undergo a further
surgery for the removal
of the intramedullary nail. Additionally, and
worth mentioning, is that both doctors examined the Plaintiff prior
to the removal
of the intramedullary nail, which on its own causes
discomfort because it is a foreign object inserted in his left leg.
[36]
As such, this Court is somewhat disadvantaged because it cannot
speculate on the Plaintiff’s
recuperation after the removal of
the nail. From the joint minute though it would appear that the
operation is not anticipated
to bring about untold amount of
prolonged pain. That said, it must be noted that the Plaintiff will
nonetheless be immobile for
approximately six weeks while recovering.
Most of the Plaintiff’s medico-legal reports are stale making
reliance on them
exceedingly difficult as demonstrated by the 2018
report of Dr Tladi. The Plaintiff ought to have taken the
responsibility of updating
them.
[37]
The conclusion of the Court on the right shoulder and left leg
fractures is that the former injury
cannot be considered because the
Plaintiff has not proved that he sustained it during the collision on
23 September 2012. Insofar
as the left leg injury is concerned, I
note that although both Orthopaedic Surgeons report on residual pain,
their reports were
made prior to the suggested operation to remove
the nail. The doctors do not record of any possible complications
that may be brought
about by the awaited operation. This is an aspect
that the Plaintiff should have investigated further with relevant
experts. I
therefore conclude that from the reports of both
Orthopaedic Surgeons, the left leg injury will not hinder the
Plaintiff to compete
in an open labour market.
[38]
The last major injury of the Plaintiff is the scalp lacerations. The
only indication of the severity
of this injury is recorded by Messrs.
Mphuthi and Maye, Neuro Clinical Psychologists. Having consulted and
extracted information
from the Plaintiff they reasoned that the
Plaintiff has sustained the following injuries:
“
Taking
all the foregoing into account, we conclude that Mr Nhubunga
sustained a mild concussion at the time of the accident. This
is
evidenced by the brief period of retrograde
amnesia,
the prolonged period of post-traumatic amnesia, the period of
irritability, confusion, forgetfulness and restlessness,
according to
Mr Nhubunga’s account of his hospitalization, and the scalp
lacerations noted in the hospital records.
We
nevertheless defer to the diagnoses of neurosurgeons regarding the
severity of brain injury.”
[39]
It must be noted that the recommendation that the Plaintiff be
referred to a Neuro-Surgeon or
Neurologist was not exploited by the
Plaintiff. Once again, the Court’s ability to fully assess this
injury is impaired as
it finds itself having to rely on experts such
as Neuro Clinical Psychologist to comment on brain injuries instead
of a proper
diagnosis by a Neurosurgeon or Neurologist and then the
former to report on sequelae flowing from those injuries. An added
difficulty
is that that the Court cannot even be certain of the
circumstances that caused the Plaintiff to fail Grade 12 in 2009 as
no records
of his scholastic performance prior to that have been
provided.
[40]
The only manner in which the Court can assist is to accept the
subjective report of the Plaintiff
to the various experts that he
suffers pain that emanates from his occiput. This pain is directly
connected to his cognitive challenges
as it and will continue to
limit his ability to apply himself academically or in his work
situation. The amount of this pain cannot
be the cause of all his
cognitive problems because part of it was occasioned by the right
shoulder and left leg injuries.
PAST
MEDICAL EXPENSES
[41]
I have noted that the Plaintiff also claims an amount of
R50 000.00
for past medical expenses but has provided no proof that these
amounts have indeed been incurred. I have as a result ignored the
amount claimed as there is no basis for claiming it. I have noted
that the injuries of the Plaintiff have been classified as not
serious. As such, I have ignored the amount claimed under general
damages. Insofar as past and future loss of incomes, I have been
furnished with the report of Mr Gert Du Toit of Independent Actuaries
and Consultants (IAC) on which I intend to rely to produce
the amount
that I will award below.
LOSS
OF EARNING CAPACITY
[42]
Insofar as loss of earnings is concerned, two matters come into play
in this case. Firstly, the
fact that initially the pains that the
Plaintiff suffered and had to be taken into account included the
right shoulder and the
left leg. It will be recalled that the right
shoulder and the left leg have now been taken out of the equation.
The pains that
should be regarded as contributing towards his
cognitive deficits is now only one and that is the headaches.
[43]
Secondly, the scholastic record of the Plaintiff was not supplied and
one cannot with confidence,
as the Industrial Psychologist does,
predict with some measure of certainty that the Plaintiff would have
ultimately passed Grade
12 and acquired a tertiary education
qualification.
[44]
Customarily, the above difficulties would be addressed by the
application of higher than normal
contingencies. However, that will
not address the problems in this case because the amount claimed for
loss of earning capacity
is way off the mark because of the inclusion
of the shoulder and the left leg injuries. Another complicating
factor in this case
is that assessment of pain is exceedingly hard.
The reason for that is its subjective nature. Seriousness of pains
will differ
from one person to the next as some individuals have a
high threshold whilst the opposite is true in others.
[45]
Given the fact that the original cause of the pains was based on
three injuries two of which
have been discarded for reasons stated
above, the amount of the award should be discounted by two third
prior to discussing contingencies.
I note that the actuary has
suggested two scenarios. In the first scenario, the amount of the
loss is
R3 285 195.00
while in the second, it is
R4 381 293.00
.
[46]
One third of
R3 285 195.00
is
R1 095 065.00
.
This amount has taken into account
5%
contingency deductions
on the amount of
R157 702.66
and
15%
contingency
deductions on the amount of
R937 362.33
. It is trite that
there are fundamentally two ways in which the Court can approach this
subject and these are:
46.1
the Court may ascertain a practical and realistic amount of loss
based on the verified facts and the
existing circumstances of the
case; or
46.2
the Court may, with reference to mathematical computation, determine
an amount made on the demonstrated
facts of the case using such
calculation as a foundation for
its award. See in this
regard the case of
Southern
Insurance Association v
Bailey N.O.
[1]
[47]
At times the Court is faced with instances where there exists no
sufficient information. In those
cases, the “gut feel”
approach is normally ideal the proviso being that the Plaintiff puts
at the Court’s disposal
adequate evidence to enable it to
appraise such financial loss. The lowest possible deductions have
been made because I have assumed
that each injury has contributed one
third to the pain experienced by the Plaintiff without any employment
of a known scientific
method.
[48]
This Court prefers to employ the method referred to in Paragraph
46.2. The amount of
R1 095 065.00
to which I have
referred above, has taken into consideration all appropriate
circumstances and applied what it regarded as fair
and just. The
contingencies applied include, among others, the following:
48.1
The possibility of mistakes having been made in the determination of
the life expectancy of the Plaintiff;
48.2
Accidents which may affect his earning capacity and life expectancy;
48.3
Circumstances which would increase or decrease his cost of living;
48.4
The likelihood of illness, inflation and adjustment for costs of
living allowance;
48.5
The fact that the Plaintiff lives in a violent and lawless
neighborhood which increases the risk of
him being killed or
assaulted; and
48.6
The likelihood of the Plaintiff being fired or retrenched.
[49]
The list above of possible contingencies is not exhaustive but it is
merely intended to serve
as guidance. However, it is also true that
one cannot always assume that the worst will happen to a Plaintiff.
In this regard
see
Southern Insurance Association Ltd v Bailey
supra
where the court stated the following:
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial Judge
is "tied down by inexorable actuarial calculations". He has
"a large discretion to award what he considers
right". One
of the elements in exercising that discretion is the making of a
discount for "contingencies" or the
"vicissitudes of
life". These include such matters as the possibility that the
plaintiff may in the result have less
than F a "normal"
expectation of life; and that he may experience periods of
unemployment by reason of incapacity
due to illness or accident, or
to labour unrest or general economic conditions. The amount of any
discount may vary, depending
upon the circumstances of the case. The
rate of discount cannot, of course, be assessed on any logical basis:
the assessment must
be largely arbitrary and must depend upon the
trial Judge's impression of the case. In making such a discount for
G "contingencies"
or the "vicissitudes of
life", it is, however, erroneous to regard the fortunes of life
as being always adverse: they
may be favourable.”
[50]
Having considered the personal circumstances of the Plaintiff such as
the fact that life would
not necessarily have been rosy for him
pre-collision, that he still has a residual earning capacity and that
he may still be employed
as a result of his relatively young age, the
Court set the contingency deductions on past and future loss of
earnings at
5%
and
15%
respectively. The result is an
amount of
R1 095 065.00
to which I have made mention
above.
ORDER
[51]
In the result, the following order is made:
1.
The Defendant
is liable for payment of
R1 095 065.00
to the Plaintiff;
2.
Interest
atempore
morae
on
the aforesaid sum at the prescribed rate of interest per annum, from
the date 14 days after the date hereof to date of payment;
and
3.
The Defendant
is liable for payment of the costs of the Plaintiff.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 20 June 2022 at 10:00.
APPEARANCES:
Counsel
for the Plaintiff:
Miss BN Manzini
Instructed
by: BC
Masinga Inc.
Counsel
for the Defendant:
No Appearance
Instructed
by:
Date
of
Judgment: 20
June 2022
[1]
1984
(1) SA 98
(A)