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[2021] ZAGPPHC 202
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Myburgh v Road Accident Fund (11131/2019) [2021] ZAGPPHC 202 (7 April 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 11131/2019
REPORTABLE:No
OF
INTEREST TO OTHER JUDGES:No
REVISED
DATE:7
April 2021
In
the matter between
JAN
HENDRIK
MYBURGH
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
This is an action instituted by Jan Frederick Myburgh (“the
plaintiff”)
against the Road Accident Fund (“the
defendant”), due to personal injuries sustained on 24 November
2017, whilst he
was a passenger in an insured motor vehicle bearing
registration number […]and which was driven by the
insured driver.
[2]
The defendant was originally assisted by the firm Pule Incorporated.
However
a notice of withdrawal from record was filed by Pule
Incorporated.
[3]
This matter was called at 15h00 on 11 March 2021. I was informed that
the claims handler had made an offer but that the plaintiff had
rejected the offer. The reason for the rejection is that the
defendant
had attempted to reduce the percentage of liability in
respect to the merits, which is contrary to what the defendant had
instructed
the previous attorneys at a pre-trial conference held on
12 February 2020. The minutes of the pre-trial, with specific
reference
to paragraph [2] states:
“
Merits
were settled with the Fund – 100% in favour of the Plaintiff
”.
[4]
The plaintiff’s counsel contended that his instructing attorney
had attempted to get hold of the claims handler on 11 March 2021 but
was unsuccessful. The matter was postponed to 09h00 on 12 March
2021
and it stood down to 12h00 the same day, in order to allow the
plaintiff’s counsel and his attorney to contact the claims
handler. When the matter was recalled at 12h00 I was informed by the
plaintiff’s counsel that neither himself or the attorney
had
been able to get hold of the claims handler. I accordingly proceeded
to consider this action by default.
[5]
The issues in dispute are whether the plaintiff as a result of bodily
damages suffered, qualifies for future medical, hospital and related
expenses. The issue of general damages, past loss and future
income
remains in dispute.
ADMISSIONS PERTAINING TO THE MERITS
[4]
The merits were resolved between the parties at the second pre-trial
conference held on 12 February 2020. The fact that the claims handler
intended to depart from these admissions is concerning and
requires
me to consider the effect of such a situation.
[5]
Section 15 of the Civil Proceedings Evidence Act 25 of 1965 (“Civil
Proceedings Evidence Act”) provides that:
“
It
shall not be necessary for any party in any civil proceedings to
prove nor shall it be competent for any such party to disprove
any
fact admitted on the record of such proceedings.”
[6]
An issue which is admitted in the pleadings is eliminated from the
issues to be tried and the plaintiff is no longer under a duty to
present evidence to establish such an issue. Accordingly, a defendant
is estopped from contending to the contrary when such facts have been
admitted. (See
Gordon
v Tarnow
1947 (3) SA 525
(A) and Whitaker v Roos
1911 TPD 1092
at 1102). This is so because the purpose of the
pre-trial conference is intended to expedite the trial and to limit
the issues
before the court.
[1]
As stated by the learned author Erasmus in
Superior
Court Practice
“…by making admissions required a party co-operates in
…promoting the effective disposal of the litigation.”
[2]
[7]
Taking into consideration s15 of the Civil Proceedings Evidence Act
read with Uniform Rule 37, it is apparent that any admissions made in
a pre-trial conference, are admissions “on the record”
in
the proceedings. In the case of
MEC
for Economic Affairs, Environment & Tourism v Klaas Kruizenga and
others
(169/2009)
[2010] ZASCA 58
(1 April 2010), the Court held that
admissions made by an attorney, during a pre-trial conference may not
be withdrawn and the
party who made such an admission will be bound
by such an admission. To hold otherwise would dilute the entire
purpose of the pre-trial.
[8]
The defendant’s ex-attorney in the matter
in
casu
,
freely made the admission and concession of the merits and signed the
pre-trial minute on 12 February 2020. There is nothing to
the
contrary to illustrate that such admission was not made voluntarily.
The plaintiff’s affidavit states that the bakkie
in which he
was a passenger was heavily loaded and that when the driver attempted
to cross a rail way line, the driver lost control
of the vehicle and
the vehicle over-turned. The plaintiff’s affidavit is very
clear as to what transpired. Even though the
defendant in its prayers
claimed in the alternative that the plaintiff’s claim be
reduced in accordance with the provisions
of the Apportionment of
Damages Act 34 of 1956, as amended, the defendant made no plea of
contributory negligence and neither was
the defence of
volenti
non fit injuria
raised in the pleadings.
[9]
Accordingly, in respect to the merits I am satisfied that the
admissions
made at the pre-trial by the defendant’s ex-attorney
remain and the defendant is liable to pay 100% of the plaintiff’s
proven damages.
THE PLAINTIFF’S INJURIES AND
SEQUELAE
[10]
Resulting from the aforesaid accident, the plaintiff sustained the
following
bodily injuries, namely, a L2 compression fracture, a C5/6
compression fracture, a traumatic annular tear C4/5 intervertebral
disc,
an injury of the ligament, spinal narrowing and contact with
the spinal cord and ventral root, a C3 oblique fracture, facial
laceration,
severe facial scarring, volume loss in the cerebellum and
a C3/C4 fracture dislocation.
[11]
As a result of these injuries, the plaintiff suffered the following
sequelae,
namely:
11.1 Compression
fractures of C5 and C6, fractures of the laminae C3 and C4,
subluxation level C4/C5 with injuries
to the vertebral bodies C3, C4,
and C7, which has resulted that he cannot turn his head effectively
and has caused pain localised
at the posterior base of the neck. He
also cannot effectively extend his neck.
11.2 A compression
fracture of the lumbar spine, L2, with just over 50% loss of anterior
vertebral body height,
which has left him with chronic back pain.
11.3 Hypertension of
the toes and tremors in the lower legs, and loss of sensation in both
feet.
11.4 Laceration to
the right of the forehead.
11.5 Mild to
moderate traumatic brain injury, which has resulted in the plaintiff
suffering from:
11.5.1 Neurocognitive difficulties, in
the form of concentration difficulties, memory difficulties, mental
and thought process slowing,
a decreased ability to multi-task,
forward planning and problem solving difficulties.
11.5.2 Neuro-behavioural difficulties,
in the form of reduced temper control associated with irritability,
difficulties coping with
pressure and stress, a reduced ability to
take initiative, and socially withdrawn behaviour.
11.5.3 Neuropsychiatric difficulties,
in the form of a depressed mood as well as irritability, a change in
sleeping patterns, decreased
energy levels and tiring easily,
decreased levels of motivation and a reduced interest in sex and
erectile dysfunction.
11.5.4 Symptoms of post-traumatic
stress disorder and depressive disorder.
11.6 Upper motor
neuron type of neurogenic bladder following the brain and spinal
injury.
11.7 Scarring in the form
of a 4 cm scar above his right eyebrow that is visible and very
unsightly; a hypopigmented
3 cm x 2.5 cm scar on his right cheek,
which is visible and very unsightly;
11.8 Mild to moderate
sensorineural hearing loss in the left ear and mild sensorineural
hearing loss in the right ear.
11.9
Right sided visual field scotomas due to right sided traumatic optic
neuropathy.
THE EVIDENCE
[12]
The following expert reports were obtained in respect to the
plaintiff, namely:
Dr
P Engelbrecht (an orthopaedic Surgeon), Dr T P Moja (a neurosurgeon),
I Jonker (a neuropsychologist), Dr J A Smuts (a neurologist),
Dr Van
Heerden (a urologist), Dr M Naidoo (a psychiatrist), Dr JPM Pienaar
(a plastic surgeon), Dr PJ Viljoen (an ENT specialist),
Dr C Weitz
(an ophthalmologist), M Du Plooy (an audiologist), S Naidoo (a
maxillofacial and oral surgeon), Dion Rademeyer (a mobility
expert),
M Sissison (a clinical psychologist), Dr G M Fredericks (a disability
and impairment assessor), N September (an occupational
therapist),
Karen Kotze (an industrial psychologist) and G Jacobson (an actuary).
I will deal in some detail with the reports of
Dr P Engelbrecht, Dr T
P Moja, I Jonker, Dr Van Heerden (a urologist), The plaintiff has to
take analgesics on a regular basis.
Dr JPM Pienaar, Dr PJ Viljoen, Dr
C Weitz (an ophthalmologist), M Du Plooy (an audiologist), and N
September.
Dr P Engelbrecht (orthopedic
surgeon)
[13]
Dr Engelbrecht’s findings are that the plaintiff suffered
compression
fractures of C5 as well as of C6 with fractures of C3 and
C4 laminae and subluxation level C4/C5 with antero listhesis. In
addition
there was a vertebral body height loss of cervical vertebrae
C3, C4, C5, C6 and C7 as well as a fracture of the lumbar spine L2.
The plaintiff sustained a laceration of 6cm on his forehead, as well
as cervical tenderness which extended to the thoracic as well
as to
the lumbar spine. There was no neurological fallout, however the
X-rays confirmed major spinal injuries. A urinary catheter
was
applied to the plaintiff as well as intravenous infusions.
Antibiotics as well as pain control were administered. The plaintiff
was transferred from the Caledon hospital to the Tygerberg hospital
on 24 November 2017. At the Tygerberg hospital the plaintiff
was
recorded as being neurologically intact although "confused".
There was wide spread injury to the cervical spine including
fractures of laminae C3/C4, subluxation C4/C5, a vertebral body
height loss C3 — C7, but no myelopathy. Cone callipers were
applied to the plaintiff as well as skull traction in order to
stabilise the neck injury. The plaintiff remained confused and had
to
be restrained until 20 December 2017. The Glasgow Coma Scale on 30
December 2017 was recorded as 14/15, and on 31 December 2017
it was
recorded as 15/15. Due to urinary tract sepsis and a bladder
infection, antibiotics were administered.
[14]
The cone callipers were removed on 3 January 2018. The plaintiff had
to wear
a neck collar for a period of approximately eight months. The
lower back injury was treated conservatively and there was no surgery
and no bracing. At the follow-up at the Tygerberg hospital on 20 June
2018 the plaintiff complained of loss of sensation bilaterally
to the
upper limbs and a C5 distribution was noted. In addition, atrophy as
well as wasting of supra- and infra-spinatus muscles
and a deltoid of
the left upper limb was noted. An MRI scan of the cervical spine was
repeated and a cervical spine kyphosis was
noted at the apex C5. The
plaintiff complained of pain localises in the lower neck area
accompanied by a muscle spasm and a deep
seated type of pain. The
plaintiff complained of pain to both upper limbs and that his arms
are weak and that he cannot lift heavy
objects. Dr Engelbrecht opined
that due to the lower back pain as well as the pain to the legs, the
plaintiff would be limited
to walking of a distance of less than 2
kilometres. The plaintiff experienced tremors of the lower limbs and
his legs tired easily.
Finally, the plaintiff informed him that he
had paraesthesias of both hands as well as weakness of the left upper
limb.
[15]
Dr Engelbrecht opined that the plaintiff has been left with
significant loss
of work capacity, and that even with further
effective medical treatment, and taking into account the plaintiff’s
heavy physical
work station pre-accident, it is not expected that the
plaintiff will return to his pre-accident work station. The expert
opined
that maximally, the plaintiff would be able to perform
administrative to light physical type of work provided that he
received
further effective medical treatment. Taking into account the
plaintiff’s level of education and employment history, the
accident
brought the plaintiff’s life to a standstill, ending
his working life which is evident from the fact that the plaintiff
has
been put on a permanent SASSA disability grant.
[16]
The expert opined that the plaintiff will require surgical
decompression of
the cervical spine, and there is a possibility (25%)
of the plaintiff requiring a surgical decompression of the lumbar
spine and
that he will require conservative treatment.
Dr T. Moja (neurosurgeon)
[17]
Dr Moja diagnosed the plaintiff as complaining of headaches, neck
pain, memory
loss, stiffness of the shoulders, stiffness of the
finger joints, cramps in his legs and a loss of balance when walking.
He noted
that the plaintiff had sustained blunt head trauma, which
caused a residual scar on his forehead. The Glasgow Coma Scale was
15/15
on arrival at the hospital, however from the clinical notes the
plaintiff had no focal neurological deficits and he was treated
conservatively for the head injury.
[18]
According to the expert, the clinical notes stated that the plaintiff
had episodes
of confusion and restlessness several days post the
accident and that the plaintiff was given Valium to control his
restlessness.
The expert opined that based on the available evidence,
the plaintiff sustained a primary concussive brain injury with a
brief
loss of consciousness at the accident scene. The plaintiff’s
subsequent episodes of confusion and restlessness were likely
due to
secondary brain injury resulting in a delayed deterioration in his
level of consciousness. The expert opined that secondary
brain injury
may result from delayed brain oedema, progressive brain contusion and
seizures. The expert opined that overall, the
plaintiff had sustained
a mild to moderate traumatic brain injury. The mild severity is based
on the initial brief loss of consciousness,
followed by a regain of
consciousness and the Glasgow Coma Scale being 15/15. The expert
opined that the moderate severity is based
on the secondary/ delayed
neurological deterioration with episodes of confusion and
restlessness. The expert opined that the plaintiff
has remained
seizure-free for about three years post-accident. As such, his risk
of developing late past-traumatic epilepsy has
declined to that
equivalent of the general population.
Ms I Jonker (neuropsychologist)
[19]
Ms Jonker opined that given the plaintiff’s educational and
occupational
histories as well as his best test performances, from a
neuropsychological perspective, the plaintiff appears to have
sustained
a significant traumatic brain injury which has left him
with the following neuro-cognitive vulnerabilities, namely,
concentration
difficulties, memory difficulties and forgetfulness of
conversations and tasks requested of him, mental slowing of thought
processes,
a decreased ability to multi-task resulting in focusing on
one task at a time, forward planning and problem-solving
difficulties.
[20]
The expert reported that the following neuro-behavioural difficulties
were
reported post- accident, namely, reduced temper control and
irritability, difficulties coping with pressure and stress, a reduced
ability to take initiative, and socially withdrawn behaviour. The
plaintiff exhibited the following neuro-psychiatric difficulties
post-accident, namely, a depressed mood, a change in his sleeping
patterns, decreased energy levels, decreased levels of motivation,
and a reduced interest in sex.
[21]
The expert opined that the plaintiff has probably been suffering from
a post
traumatic depressive disorder due to the traumatic brain
Injury and that he would therefore probably be at risk for further
neuropsychiatric
sequelae. This was further confirmed by Dr Naidoo,
the psychiatrist. Ms Jonkers opined that evidence of the depressive
disorder
was based on the fact that there were changes in the
plaintiff’s complex attention, learning and memory, perceptual
and motor
skills, and executive functioning.
[22]
As regards the plaintiff’s future occupational functioning the
expert
opined that following the accident, and as a result of his
physical injuries, the plaintiff would be unable to return to his
pre-accident
position and he has been medically boarded. The expert
reported that the plaintiff’s neuropsychological profile
demonstrated
cognitive difficulties which suggest that he will not be
able to successfully retrain himself or perform work of a sedentary
nature
in a consistent and efficient manner in future. Furthermore,
his ability to successfully apply for, secure and maintain employment
in the open labour market has been compromised by his depressed mood,
low frustration tolerance, his low levels of motivation,
fatigability
and withdrawn behaviour. His ability to re-enter the labour market
will be further hampered by his physical injuries
which will result
in sub-optimal output at work due to his chronic pain and inability
to sit for protracted periods. His future
employability has also been
negatively impacted by his age and the fact that he has been employed
as a welder for most of his working
life. As a result, it is unlikely
that the plaintiff will be able to secure and maintain meaningful
employment in the future.
Dr van Heerden (urologist)
[23]
The report of Dr van Heerden suggests that the clinical impression is
that
the plaintiff is suffering from an “Upper motor neuron
type of neurogenic bladder following a head / spinal injury.”
Dr J P M Pienaar (plastic surgeon)
[24]
Dr Pienaar detected the following scars on the plaintiff, namely, a
4cm unsightly
scar on the right forehead above the right eyebrow and
a hypopigmented 3 cm x 2,5 cm unsightly scar on the right cheek. This
expert
opined that the scarring will not lend itself to any further
surgical improvement and the plaintiff should receive compensation.
Dr Viljoen (ENT specialist)
[25]
Dr Viljoen revealed a mild to moderate sensorineural hearing loss in
the left
and right ear of the plaintiff. Dr Viljoen opined that
although the plaintiff noted his perceived hearing loss following the
accident
to be immediate, he evidently had been exposed to high
levels of loud noise during his occupation as boilermaker.
Dr Weitz (opthalmologist)
[26]
This expert opined that the plaintiff is suffering from a right-sided
traumatic
optic neuropathy causing mild to moderate right-sided
visual field scotomas and that the traumatic optic neuropathy can be
regarded
as permanent and stable and no treatment can be offered.
Ms September (occupational
therapist)
[27]
Ms September’s findings are that the plaintiff complained of
persistent
headaches, dizziness, and declining eyesight, pain on the
neck radiating distally and intolerance to noisy environments. The
plaintiff
was found to be experiencing back pain, cramps on the
fingers and toes, dizziness and incidents of losing balance. The
plaintiff
lost his wife shortly after the accident and he stopped
driving. The plaintiff experiences feelings of dejection and no
longer
enjoys an active lifestyle as he did previously. The plaintiff
has poor concentration, was restless and fidgety. The plaintiff
presented with tremors and jerky movements of both hands. Mood rating
questionnaires indicated borderline clinical depression and
moderate
anxiety. The visual perceptual skills test demonstrated a deficiency
in visual perceptual skills with five visual perceptual
skills
components being at a low average level, with the exception of visual
discrimination, which was at a below average level
and visual memory
which was at a severely impaired level.
[28]
The assessment of the sensori-motor integration showed poor
equilibrium and
poor posture when moving between dynamic positions.
The plaintiff was unable to walk on straight lines, was unable to hop
or jump
with the left leg and struggled with precision control of the
left hand. The expert found that there is an indication of
significant
movement difficulty in line with upper motor neuron
deficits. According to this expert the plaintiff’s physical
competence
for daily functioning has become significantly compromised
in activities that demand significant bending, dynamic flexibility,
trunk and spinal agility, repetitive reaching above shoulder height,
significant weight carrying and transfer and significant manipulation
of weight. The plaintiff has poor bed mobility, wakes up with a
stiffness of the neck and dizziness and he needs external support
when getting out of bed. He is limited with regards to heavy domestic
chores and is dependent on his son with whom he resides in
Betty's
Bay near Hermanus. His son drives him around and does handywork,
carries heavy shopping bags and does the general household
maintenance.
[29]
The expert reported that the plaintiff retains independence for
self-care functions,
but he struggles to dress the lower limbs due to
left leg imbalance, pain on the neck and back and dizziness. His
depressed state
and moderate anxiety as well as confirmed reduced
eyesight and hearing loss further limits his social integration and
interaction
with others. Leisure pursuits are compromised, and he
stopped pastimes such as fishing and cycling. He now has poor quality
of
life and he is unable to sleep if not medicated.
[30]
The expert reported that the plaintiff experiences feelings of
inadequacy as
he is reliant on his community for daily meals and
monthly grocery parcels that he fetches from a local church. His son
assists
him with menial tasks such as switching on a wall mounted
television and supervises him when getting out of the bathroom /
toilet
as the plaintiff has a tendency of becoming dizzy and falling.
The physical based incompetence for work as a boilermaker and
installer
is further heightened as a result of poor fine motor
coordination, poor motor planning, poor balance and dizziness when
handling
30-50 kg of different sized steel sheets and pipes. Working
as a boiler maker installer will be further compromised by the
plaintiff’s
difficulty in walking and standing in the metalwork
plant. Poor precision and accuracy as a result of tremors on the left
hand
and jerky movements on the left hand will further compromise the
plaintiff when handling manual and motorised equipment. It will
be
unsafe for the plaintiff to handle moving equipment and a welding
torch above eye level as he experiences dizziness with tendency
falling on the left side.
[31]
The expert opined that the plaintiff will be prone to injuries on
duty as he
is required to move from the floor to standing and back to
the floor repeatedly during installation. This difficulty is further
aggravated due to restricted shoulder flexion and abduction, weak
left hand grip strength and impaired left hand fine hand
coordination.
The risk of falling due to dizziness, reduced eyesight,
compromised dynamic postures and impaired dynamic balance and
dizziness
when he bends to pick up objects will all affect his
ability to work.
[32]
The plaintiff’s reduced tolerance for steelwork will be
exacerbated by
exertion due to pain on the neck radiating distally to
the back and pain on the fingers and toes as well as the headaches.
The
plaintiff demonstrated a work efficiency of 60% falling below the
minimal requirements of 87.5% in the light physically demanding
duties in an open labour market.
[33]
The expert opined that the plaintiff is not a candidate for
physically orientated
work and is precluded from light, medium, heavy
and very heavy work including engineering technical work that he was
experienced
in. Even in a sedentary work capacity, his fine motor
incoordination and use of analgesia will make him inefficient despite
provisions
of ergonomic sitting.
[34]
Accordingly, the expert opined that the plaintiff will be inefficient
at his
previous vocational capacity as a boilermaker and will be
unable to resume with previous duties or to re-enter the open labour
market as improvement in the vocational progression is unexpected.
EVALUATION
Future medical, hospital and
related expenses
[35]
From the reports of the various experts it is clear that the
plaintiff will need
to undergo future medical, hospital and related
treatment. Accordingly, I order that the defendant tenders an
undertaking, in terms
of the provisions of section 17(4)(a) of the
Road Accident Fund Act 56 of 1996 (“the
Road Accident Fund
Act&rdquo
;).
General
damages
[36]
In the defendant’s plea at paragraph [5], the defendant
specifically denied
that the plaintiff suffered bodily injuries or
that the injuries sustained were serious injuries.
[37]
Section 17(1)
of the
Road Accident Fund Act reads
as follows:
“
17
Liability of Fund and agents (1) The Fund or an agent shall-
(a)
subject to this Act, in the case of a claim for compensation under
this section arising
from the driving of a motor vehicle where the
identity of the owner or the driver thereof has been established;
(b)
subject to any regulation made under section 26, in the case of a
claim for compensation
under this section arising from the driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has
been established, be obliged to compensate any
person (the third party) for any loss or damage which the third party
has suffered
as a result of any bodily injury to himself or herself
or the death of or any bodily injury to any other person, caused by
or arising
from the driving of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence
or other wrongful act of the driver or of the owner of the
motor vehicle or of his or her employee in the performance of the
employees
duties as employee”
[38]
Regulation 3 of the Road Accident Fund regulations of 2008, which
were promulgated
on 21 July 2009 prescribes the method of
determination of a serious injury, namely:
“
3
Assessment of serious injury in terms of section 17(1)(A)
(1) (a)
A third party who wishes to claim compensation for non-pecuniary
loss
shall submit himself or herself to an assessment by a medical
practitioner in accordance with these Regulations.
(b) The
medical practitioner shall assess whether the third party’s
injury is serious in accordance
with the following method.
(i) The
Minister may publish in the Gazette, after consultation with the
Minister of Health, a list
of injuries which are for purposes of
section 17 of the Act not to be regarded as serious injuries and no
injury shall be assessed
as serious if that injury meets the
description of an injury which appears on the list.
(ii) If the
injury resulted in 30 per cent or more Impairment of the Whole Person
as provided in the AMA
Guides, the injury shall be assessed as
serious.
(iii) An injury
which does not result in 30 per cent or more Impairment of the Whole
Person may only be assessed
as serious if that injury;
(aa)
resulted in a serious long-term impairment or loss of a body
function;
(bb)
constitutes permanent serious disfigurement;
(cc) resulted in severe
long-term mental or severe long-term behavioral disturbance or
disorder; or
(dd)
resulted in loss of a foetus…”
[39]
It is clear that the plaintiff complied with the assessment
requirements set out
in s17(1A) read with Regulation 3. In addition,
the plaintiff qualifies for general damages, in terms of both the WPI
(having an
assessed WPI of 40%) and the narrative test as per the
report of Dr Fredericks, who is a disability and impairment assessor.
[40]
Regulation 3(3)(c) provides that the defendant is only
required to
compensate the plaintiff for non-pecuniary loss, i.e. general
damages, if it is satisfied that the plaintiff’s
injury has
been correctly assessed as serious.
[41]
From the various expert
reports filed I am convinced that the
plaintiff’s injuries qualify as serious injuries.
[42]
In arriving at an appropriate award for general damages, the learned
author JJ Gauntlett
SC in
The Quantum of Damages
referred to
the case of
Sandler v Wholesale Coal Supplies
1941 AD 194
where the learned Watermeyer JA at page 199 stated:
“…
It
must be recognized that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in
an accident
by compensating him in money, there are no scales by which pain and
suffering can be measured,…The amount to
be awarded as
compensation can only be determined by the broadest general
considerations”.
[43]
In the case of
Protea Insurance Company v lamb
1971 (1) SA 530
(A) at 535H-536A, it was stated that although the determination of an
appropriate amount for general damages is largely a matter
of
discretion of the court, some guidance can be obtained by having
regard to previous awards made in comparable cases, however,
as
stated by the learned Potgieter J at pages 534 to 536B;
"…Comparable
cases, when available, should rather be used to afford some
guidance,…in cases where the injuries
and their sequelae may
have been either more serious or less than those in the case under
consideration. "
[44]
In
AA Mutual Insurance Association Ltd v Maqula
1978 (1) SA
805
(A), the court held:
"It
is settled law that a trial Court has a wide discretion to award what
it in the particular circumstances considers to be
a fair and
adequate compensation to the injured party for his bodily injuries
and their sequelae. "
[45]
There is no hard and fast rule in considering past awards, as it is
difficult to
find cases on all fours with the one presently being
considered.
[46]
There is a tendency in our courts towards more generous awards for
general damages.
(See
Marunga v The Road Accident Fund
2003
(5) SA 164
(SCA) at 170F where the learned Navsa JA referred to the
following passage in
Wright v Multilateral Motor Vehicle
1997
(4) Natal Provincial Division (“
Wright
”)reported
in Corbett and Honey
The Quantum of Damages in Bodily and Fatal
Injury Cases
Vol. IV at E3-31). In
Wright
(
supra
),
the learned Broome DJP stated that the reason for this is that:
“
[There
is] … a natural reflection of the changes in society, in
recognition of greater individual freedom and opportunity,
rising
standards of living and the recognition that our awards in the past
have been significantly lower than those in most countries.”
[My emphasis]
[47]
I now proceed to consider some comparable cases and awards made
previously.
Cases
involving mild to moderate brain injuries
[48]
In the case of
Nkosi
v RAF
2009 6 QOD J2-16 (GSJ) the plaintiff had lacerations on the head, a
concussion, and chest injury and hand fractures. In current
values,
the amount awarded to the plaintiff was R449 000-00. The
plaintiff in the matter
in
casu
had various cervical and lumbar spinal fractures and also suffers
from the reduction in eye sight and urinary issues and scarring,
which makes the injuries of the plaintiff
in
casu
more serious.
[49]
In the case of
Maele
v Road Accident Fund
2015 QOD 1 (GNP) the plaintiff who was a […]-year old scholar,
sustained a mild concussive brain injury and fracture of
the left
tibia. The fracture and alignment of the tibia healed completely with
provision for conservative and possibly surgical
treatment in the
future. The plaintiff had discomfort when standing or walking for
long distances or kneeling but did not suffer
from depression. In
present day values, the amount awarded was R457 000-00. The
plaintiff in the matter
in
casu
had various cervical and lumbar spinal fractures and also suffers
from the reduction in eye sight, together with urinary issues
and
scarring, which makes his injuries more serious.
[50]
In the case of
Makupula
v RAF
2010 (6) QOD B4-48 (ECM) the plaintiff was a […]-year old boy
who sustained a mild to moderate brain injury, with neurocognitive
deficits, hyperactivity disorder, memory dysfunction, uncooperative
and aggressive behaviour, poor concentration, poor executive
functioning and school performance. In present term values the award
for general damages is valued at R517 000-00. The plaintiff
in
the matter
in
casu
is […] years old and suffered orthopaedic injuries. Although
his brain injury is similar to that of the five-year old plaintiff,
the plaintiff in the matter
in
casu
has bladder complications, together with reduced vision and a spinal
injury that renders his injuries more serious.
[51]
In the case of
Vukeya
v RAF
2014 (7B4) QOD 1 (KZP) the plaintiff was a […] year old
female, with a mild to moderate frontal brain injury, as well as
orthopaedic injuries, whiplash, a lower back injury, fracture of a
metacarpal bone in the left hand and soft tissue injury to the
leg.
Her mathematical and short term memory were affected, she had chronic
headaches and depression. In present terms her award
is valued at
R568 000-00. The plaintiff in the matter
in
casu
has various cervical and lumbar spinal fractures, reduction in eye
sight and the urinary issues and scarring, which makes the present
plaintiff’s injuries more serious.
[52]
In the case of
Modan
v RAF
2012 (6A4) QOD 123 (GSJ) the plaintiff was a […]year old girl
who sustained a concussive brain injury, a fractured nasal
bone, and
a soft tissue injury to the forehead with scalp haematoma. The
neurocognitive and neuropsychological sequelae comprised
of attention
and concentration difficulties, headaches, behavioural and emotional
difficulties. The child’s academic performance
was affected as
was the child’s future level of earnings. In present term
values the award is valued at R574 000-00.
The plaintiff in the
matter
in
casu
sustained a mild to moderate brain injury as well as various cervical
and lumbar spinal fractures and
suffers from the reduction in eye sight, urinary complications as
well as scarring, which makes the plaintiff’s injuries
more
serious.
Cases
involving spinal injuries
[53]
In the case of
De
Barros v RAF
2001 (5) QOD C4-13 (C) the plaintiff was a […] year old male
who sustained a soft tissue injury to the neck and back. His
psychological and emotional injuries were far worse than the physical
injuries. He suffered mild to moderate depression, moodiness,
irritability, low self-esteem and self-pity. In present terms his
award was valued at R248 000-00. His psychological injuries
were
less significant and he did not suffer a brain injury or cervical and
lumbar fractures as did the plaintiff in the matter
in
casu
.
The plaintiff
in
casu
suffers from paresthesia in the upper limbs, a loss of sensation in
the feet, together with the reduction in eye sight, urinary
complications and scarring which makes the plaintiff’s injuries
more serious.
[54]
In the case of
Stemmet
v Padongelukkefonds
2004 (5) QOD C4-60 (AF) the plaintiff was a […] years old male
who was a fresh produce manager. He sustained damage
to the
C4/C5 with a disc protrusion at C5/C6 with nerve root involvement. He
suffered from chronic pain resulting in his sport
interests coming to
an end. He was also physically hampered in both daily life and work.
In present terms his award is valued at
R373 000-00. Although
this plaintiff has similar cervical injuries to the plaintiff
in
casu
,
the plaintiff
in
casu
sustained a brain injury, reduction in eye sight, urinary
complications, and scarring rendering his injuries more serious.
[55]
In the case of
Ambrose
v RAF
2010 (6) QOD C4-13 (ECP), the plaintiff was a […] year old
diesel mechanic who sustained a compression fracture T12 which
limited him to purely sedentary work. He suffered continuous pain and
was unable to play pool or ride off-road motorcycles. In
present
terms his award is valued at R344 000-00. Although the plaintiff
had a compression fracture and was limited to sedentary
like the
plaintiff
in
casu
,
the plaintiff
in
casu
sustained a brain injury, reduction in eye sight, urinary
complications and scarring, which makes the plaintiff’s
injuries
more serious.
[56]
In the case of
Shongwe
v RAF
2013 (6C4) QOD 34 (GNP), 2015 (7C4) QOD 1 (GP), the plaintiff was a
[…]-old female teacher who sustained a fracture of T8.
She
could not sit or stand for long and could no longer coach sport at
school. A sympathetic employer gave her employment. In present
terms
her award is valued at R466 000-00. Although this plaintiff
sustained a thoracic fracture, the plaintiff
in
casu
sustained a cervical spine and lumber fracture, a brain injury,
reduction in eye sight, urinary complications and scarring,
which makes the plaintiff’s injuries more serious.
[57]
In the matter of
NK
M v RAF
2017 QOD 7 C6-1 (GP), the plaintiff, who was an adult male, sustained
a C2 Odontoid fracture of the neck resulting in neck stiffness,
requiring him to take a break every 75 minutes. He had no pain in the
neck. In present terms his award is valued at R372 000-00.
His
injuries were not as serious as those of the plaintiff
in
casu
,
as he did not suffer pain, or paraesthesia, nor did he have the brain
injury or the reduction in eye sight and the urinary issues
and
scarring, which makes the present plaintiff’s injuries more
serious.
[58]
I have considered the seriousness of the injuries sustained by the
plaintiff,
as well as previous awards granted in respect to moderate
brain injuries and spinal injuries. With reference to the cases of
Vukeya
v RAF
(
supra
)
and
Modan
v RAF
(
supra
),
the sequelae originating from the brain injuries sustained by the two
plaintiffs were similar to those of the plaintiff
in
casu
.
In the matter of
Modan
v RAF
(
supra
)
the plaintiff was four years old, as compared to fifty-six years old
of the plaintiff
in
casu
.
Accordingly, I find that a fair and reasonable award for general
damages in the matter
in
casu
would be an amount of R570 000-00.
Loss
of income and earnings
[59]
To claim loss of earnings or earning capacity, a patient must prove
the physical
disabilities resulting in the loss of earnings or
earning capacity and also actual patrimonial loss.
[3]
[60]
The longer period over which unforeseen contingencies can have an
influence
over the accuracy of the amount adjudged to be the probable
income of the plaintiff, the higher the contingencies that have to be
applied. (see
Goodall
v President Insurance Co Ltd
1978 (1) SA 389
(W)392H – 393G, (“
Goodall
v President Insurance
”).
[61]
The learned author Dr R.J. Koch in
The
Quantum of Damages Year Book
states at page 118 that the usual contingencies which the Road
Accident Fund accepts is 5 % on the past income and 15 % on the
future income. The aforesaid is only a guideline, but it indicates
the general approach adopted by the defendant in similar matters.
The
learned author continues on page 118 to suggest (based upon the
authorities of
Goodall
v
President Insurance
(
supra
)
and
Southern
Insurance Association v Bailey N.O
.
1984 (1) SA 98
(AD) (“
Southern
Insurance v Bailey
”),
that as a general rule of thumb, a sliding scale can be applied, i.e.
“1/2% per year to retirement age, i.e. 25%
for a child, 20% for
a youth and 10% in middle age.”
[62]
In the case of
Road Accident Fund v Guedes
2006 (5) SA 583
(SCA) at paragraph [9] the court referred with approval to
The
Quantum Yearbook
, by the learned author Dr R.J. Koch, under the
heading
'General Contingencies
', where it states that:
“…
[when]
assessing damages for loss of earnings or support, it is usual for a
deduction to be made for general contingencies for which
no explicit
allowance has been made in the actuarial calculation. The deduction
is the prerogative of the Court...” [my emphasis]
[63]
The percentage of the contingency deduction depends upon a number of
factors
and ranges between 5% and 50%, depending upon the facts of
the case. (See
AA
Mutual Association Ltd v Maqula
1978(1) SA 805 (A) 812,
De
Jongh v Gunther
1975(4) SA 78 (W) 81, 83, 84D,
Goodall
(
supra
),
and
Van
der Plaats v SA Mutual Fire & General Insurance Co Ltd
1980(3) SA 105(A) 114-115A-D).
[64]
The advantage of applying actuarial calculations to assist in this
task was
emphasised in the leading case of
Southern Insurance v
Bailey
(
supra
) at page 113H-114E , where the Court stated;
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative… All that the Court can do is to make
an estimate,
which is often a very rough estimate, of the present value of the
loss. It has open to it two possible approaches.
One is for the Judge
to make a round estimate of an amount which seems to him to be fair
and reasonable. That is entirely a matter
of guesswork, a blind
plunge into the unknown. The other is to try to make an
assessment, by way of mathematical calculations,
on the basis of
assumptions resting on the evidence…It is manifest that either
approach involves guesswork to a greater
or lesser extent.”
[65]
The Court has a large discretion to award what it considers right.
Some of
the factors that influence this discretion would be the
possibility that the plaintiff may have less than a "normal"
expectation of life. The amount of any discount may vary, depending
upon the circumstances of the case.
[4]
Pre-morbidly
[66]
The plaintiff was employed as a welder for Bergsig Ingeneurs,
Worcester, at the time
of the accident and was earning R1 600-00
per week. He received an annual bonus equivalent to 100% of his
weekly earnings.
He is presently […] years of age and would
have continued working in this capacity as a welder or in a similar
job, given
the nature of his work experience and vocational training,
until the age of retirement at […] old. He had already reached
his career ceiling, given his age at the time of the accident, and he
would have continued to receive
inflationary
increases, until retirement.
Post-morbid
[67]
In view of the nature and consequences of his injuries, the plaintiff
did not return
to his pre-accident employment and has received a
disability grant since 26 June 2018. He has been rendered
unemployable in the
open labour market.
Pre-morbid
contingencies
[68]
There is no reason to deviate from the “usual”
contingencies in respect
of the past loss of earnings, as a result,
the “usual” 5% should be applied.
[69]
In the circumstances, and especially bearing in mind that the
plaintiff is
presently […] years of age, and would have worked
until age […], I find that a pre-morbid future contingency of
4.5%
would be the “usual contingency to be applied. The
plaintiff has applied a 10% pre-morbid future earnings contingency
which
I find is fair and reasonable. This is conservative (in favour
of the defendant, in the circumstances), and is more than double
the
“usual” contingency to be applied. The plaintiff has a
stable work history and there are no difficulties with the
calculation of the loss which should be taken into account by means
of additional contingency deductions.
Post-morbid
contingencies
[70]
In the post-morbid scenario, the plaintiff has been rendered
unemployable.
The Plaintiff has received a disability grant SASSA
grant since 26 June 2018. This must be deducted from the loss of
earnings as
the plaintiff will not qualify to continue receiving the
disability grant, post the award of damages as the means test, in
terms
of the disability grant, will prohibit him from qualifying
further for the grant.
Summary of loss of income
[71]
The plaintiff’s loss of income is the difference between the
value of
his income but for the accident and the value of his income
having regard to the accident.
[72]
Based on the actuarial calculations dated 2 December 2020, the past
loss of
income, but for the accident would have amounted to
R269 289-00 and deducting a 5 % contingency deduction the amount
is R255 825-00.
The future loss of income, but for the accident
would have been R677 749-00 and deducting a 10 % contingency, it
amounts
to R609 074-00. If one deducts the disability
grant to the amount of R55 152-00, the amount remaining would
R809 747-00.
I accordingly find that this a fair and reasonable
amount.
ORDER
[73]
In the premises the following order is made:
1.
Merits were settled 100% in favour of
the plaintiff.
2.
The defendant is to pay the plaintiff
an amount of R1 379 747-00
(one million three hundred and seventy-nine thousand, seven hundred
and forty-seven rands),
in full and final settlement of the
plaintiff’s claim for general damages and loss of earnings,
payable into the plaintiff’s
attorneys of record trust account
with the following details:
Account Holder:
Ehlers Attorneys
Bank Name: FNB
Branch Code: 261550
Account Number: […]
3. The
defendant will not be liable for interest on the above mentioned
amount, save in the event of failing
to pay on the due date, in which
event the defendant will be liable to pay interest on the outstanding
amount at a rate of 7% per
annum.
4. The
defendant is ordered to furnish the plaintiff with an undertaking, in
terms of
s17
(4)(a) of the
Road Accident Fund Act 56 of 1996
, for the
costs of future accommodation in a hospital or a nursing home or
treatment of or rendering of a service or supplying of
goods to the
injured after such costs have been incurred and on proof thereof,
relating to the injuries sustained by the plaintiff
on 24 November
2017.
5. The
defendant is ordered to pay the plaintiffs taxed or agreed party and
party costs on the High
Court scale, subject to the discretion of the
taxing master, which costs will include, but will not be limited to
the following:
5.1 The reasonable
taxed fees for consultation with the experts mentioned below,
together with delivery of expert
bundles including travelling and
time spent travelling to deliver such bundles, preparation for trial,
qualifying and reservation
fees (if any and on proof thereof),
including the costs of all consultations (inclusive of telephonic
consultations) with counsel
and/or plaintiff’s attorney and the
costs of all consultations between the plaintiff’s and
defendant’s experts,
as well as costs of the reports, addendum
reports, joint minutes and addendum joint minutes and full day fees
for court attendance
(if at Court) of the following experts:
5.1.1
Dr P Engelbrecht – Orthopaedic Surgeon
5.1.2
Dr T P Moja – Neurosurgeon
5.1.3 I
Jonker - Neuropsychologist
5.1.4
Dr J A Smuts – Neurologist
5.1.5
Dr Van Heerden – Urologist
5.1.6
Dr M Naidoo – Psychiatrist
5.1.7
Dr JPM Pienaar – Plastic Surgeon
5.1.8
Dr PJ Viljoen – ENT Specialist
5.1.9
Dr C Weitz - Ophthalmologist
5.1.10 M Du Plooy –
Audiologist
5.1.11 S Naidoo –
Maxillofacial & Oral Surgeon
5.1.12 Dion
Rademeyer – Mobility expert
5.1.13 M Sissison –
Clinical Psychologist
5.1.14 Dr G M
Fredericks – Disability & Impairment Assessor
5.1.15 N September–
Occupational Therapist
5.1.16 Karen Kotze
– Industrial Psychologist
5.1.17 G Jacobson –
Actuary
5.2 The
costs for accommodation and transportation (as per the prescribed AA
rates) of the injured
as well as a family member, to the medical
legal examination(s) arranged by the plaintiff and the defendant.
5.3 The
costs for accommodation and transportation (as per the prescribed AA
rates) for the injured
as well as a family member to attend Court.
5.4 The
costs of an inspection in loco by the plaintiff’s attorney.
5.5 The
costs of appointing an assessor to investigate merits.
5.6 The
costs for the plaintiff’s attorney travelling to (as per the
prescribed AA rates) and
spending time travelling to pre-trial
conferences and attendance at pre-trial conferences by the
plaintiff’s attorney.
5.7 The
costs for preparation of plaintiffs bundles of documents for trial
purposes, as well as the
travelling costs (as per the prescribed AA
rates) and time spent to deliver these bundles.
5.8 The
costs for preparation of plaintiffs bundles of documents for experts,
as well as the travelling
costs (as per the prescribed AA rates) and
time spent to deliver these bundles.
5.9 The
costs of advocate Caleb Dredge a senior-junior briefed and appearing
for trial, including
but not limited to the following:
5.9.1
Preparation
for Trial;
5.9.2
Consultations with plaintiff’s attorney in respect of
preparation for trial;
5.9.3
Consultations with plaintiff and or family members in respect of
preparation
for trial;
5.9.4
Drafting
heads of argument and memorandum of settlement;
5.9.5
Day fee
for 11 March 2021 and 12 March 2021.
5.10 The costs of the
affidavits compiled by the listed experts in order for the plaintiff
to proceed on a default
Judgement basis.
6. The
defendant is ordered to pay the plaintiffs taxed and/or agreed party
and party costs within
14 days from the date upon which the accounts
are taxed by the taxing master and/or agreed between the parties.
7.
Should payment of the taxed costs not be effected timeously, the
plaintiff will be entitled to
recover interest at the rate of 7% on
the taxed or agreed costs from date of allocator to date of payment.
8. There
is a valid contingency fee agreement signed by the plaintiff.
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
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 10h00 on 7 April 2021.
Matter
heard on: 12
March 2021
Judgment
granted on:
7 April 2021
Appearances
:
On
behalf of the Plaintiff
Adv.
C.M Dredge
Instructed
by:
Ehlers Attorneys
On
behalf of the Defendant
Absent
[1]
Hendricks v President
Insurance Co Ltd
1993 (3) SA 158
(C) at 166E
[2]
Erasmus
Superior
Court Practice
Volume 2, Second Edition, Juta service 6, 2018 page D1-499
[3]
Rudman v Road Accident
Fund
2003 SCA 234
[4]
Southern Insurance
Association v Bailey N.O
.
1984 (1) SA 98
(AD) at 116G-H.