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[2019] ZALMPPHC 26
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Hendrick v Road Accident Fund (1382/2014) [2019] ZALMPPHC 26 (4 June 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 1382/2014
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
In
the matter between:
MARAKALALA
HENDRICK
PLAINTIFF
AND
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff has instituted action against the defendant for damages
and ancillary
relief arising from a motor accident which occurred on
the 27
th
August 2013.
[2]
The merits
of this matter have been disposed of and liability on the part of the
defendant has been resolved on the basis of 80%
in favour of the
plaintiff’s proven damages.
[3]
The parties
have agreed to dispose the matter on arguments only. The experts
employed by the parties are in agreement on most of
the issues and
there was no need to file joint minutes. The plaintiff has conceded
to the defendant’s actuarial calculations
and to the
contingency deduction as suggested by the defendant’s actuary.
However, the defendant does not agree with the
contingency deduction
as applied by its own actuary and submit that a higher deduction
should be applied.
[4]
The court
is called upon to determine two issues. The first issue is the
general damages suffered by the plaintiff, and the second
issue is
the appropriate contingency deduction to be applied.
[5]
The
background facts are that on the 27
th
August 2013 the plaintiff was a pedestrian when he was hit by the
insured vehicle. As a result of the accident, the plaintiff suffered
bodily injuries consisting of fracture of the tibia, concussion,
traumatic cerebral oedema, open wound on the scalp and traumatic
pneumothorax. He was admitted to hospital for two months.
[6]
At the time
of the accident the plaintiff was 18 years of age and was repeating
grade 7. The plaintiff was struggling academically
and had to repeat
some of the grades. After the accident he was condoned to grade 8. He
failed grade 8 and dropped out of school.
The reason why he dropped
out was that his teachers had informed him that he had exceeded the
age requirements for grade 8.
[7]
The
plaintiff has submitted the following expert reports
.
7.1 Report by Dr T.P Moja
Neurosurgeon;
7.2 Serious injury
assessment report by Dr T.P Moja;
7.3 Report by Dr K.S Bila
Orthopaedic surgeon;
7.4 Serious injury
assessment report by Dr K.S Bila;
7.5 Report by C. Sampson
Clinical Psychologist
7.6 Report by Dr M.
Mayaven Psychiatrist;
7.7 Report by W.M Khumalo
Educational Psychologist
7.8 Report by L.Mashishi
Occupational Therapy
7.9 Report by Sonnet
Industrial Psychologist; and
7.10 Actuarial
calculations by G.W Jacobson
[8]
The defendant submitted the following expert reports:
8.1 Report by Dr S. M
Mbili Neurosurgeon;
8.2 Serious injury
assessment report by Dr SM Mbili;
8.3 Report by Dr N.
Mhlongo Orthopaedic Surgeon;
8.4 Serious injury
assessment report by Dr N. Mhlongo
8.5 Report by M. Anokwuru
Clinical Psychologist
8.6 Report by Dr Mojapelo
Educational Psychologist
8.7 Report by N. Machete
Occupational Therapist;
8.8 Report by F Chamisa
Industrial Psychologist; and
8.9 Actuarial
calculations by IAC Consultants.
[9]
The plaintiff’s counsel submitted that the plaintiff has
sustained severe diffuse
brain injury and that as a result of that he
is in vegetative state due to the permanent damage to the brain.
According to the
counsel for the plaintiff prior to the accident, the
plaintiff was a soccer player, and as a result of the accident he
will no
longer be able to play soccer. He further submitted that
according to their Clinical Psychologist C Sampson, the plaintiff
appears
to have developed organically based symptoms and anxiety with
hyper-arousal elicited and will require chronic psychiatric
treatment.
He therefore, submitted that for general damages a fair
compensation would be between R1 350 000-00 and R 1 500 000-00.
[10]
With regard to contingency deduction, counsel for the plaintiff
submitted that the deduction
of 5% for past loss and 15% for future
loss as suggested by the defendant’s actuary is fair under the
circumstances taking
into consideration that the plaintiff is in a
vegetative state as a result of the severe brain injury that he had
sustained.
[11]
Counsel for the defendant has submitted that the plaintiff’s
head and brain injuries are
severe but the sequelae are not that
severe. According to the counsel for the defendant as per the expert
reports, the plaintiff
had a pre-existing mental condition. He
further submitted that there is no future medical attention required
for the plaintiff,
and that under the circumstances an amount of
R700 000-00 will be fair and reasonable in compensation for the
plaintiff’s
general damages.
[12]
With regard to the contingency deductions, the counsel for the
defendant submitted that the plaintiff
has failed each school grade
he was in. He would not have progressed beyond grade 9, and therefore
in the labour market he would
have to rely on his physical condition.
He dropped out of the school not because of the accident, but as a
result of the fact that
the teachers have told him that he was over
age for that grade. They conceded that the accident had compromised
him, but that it
is not the accident alone, he had pre-existing
conditions that also contributed. Counsel for the defendant submitted
that a contingency
deduction of 5% for past loss of earnings and 50%
for future loss of earnings will be appropriate under the
circumstances.
[13]
With regard to the awarding of general damages, it is settled law
that the trial court has a
wide discretion to award what it in the
particular circumstances, considers to be fair and adequate
compensation to the injured
party for his bodily injuries and their
sequelae.
(See
AA Mutual Insurance Association v Maqula
1978 (1) SA 805
(A) at 809
B).
[14]
In
NK
obo ZK v MEC for Health, Gauteng ZASCA 13
(15 March 2018) Willis JA at para 9 said:
“
As was said by
Nicholas JA in Southern Insurance Association Ltd V Bailey NO, this
court has not adopted a ‘functional’
determination as to
how general damages should be awarded. It has constantly
preferred a flexible approach, determined by
the broadest general
considerations, depending on what is fair in all the circumstances of
the case. We do not have to determine
what the award will be used for
–its purpose or function. What we must consider is the child’s
loss of amenities of
life and his pain and suffering.”
[15]
It is not in dispute that the plaintiff has sustained serious
injuries as a result of the accident.
It also not in dispute that the
plaintiff has to be compensated for general damages. What is in
dispute is what will be the appropriate
award for him.
[16]
In substantiating his claim for general damages plaintiff relied on
the following unreported
cases, (a) Msimanga v RAF where in 2011 an
amount of R800 000-00 was awarded to a minor child. However this
was an agreed
amount and it is therefore distinguishable from the
present case, (b) Nhlapo vs RAF where Bhika AJ in 2011 awarded
R800 000-00;
(c) Ramatseba v RAF during 2011 Victor J
awarded R800 000-00 ; (d) Pieterson vs RAF in which Bava AJ on
11 August 2011
awarded R750 00-00; (e) Nepgen NO vs RAF in which
Eksteen J on the 15
th
March 2012 awarded R900 00-00 and (f) Dlamini v RAF in which Mali AJ
as she was then on 3
rd
September 2015 awarded R1 350 000-00.
[17]
The defendant has relied on the cases of (a) Abrahams vs RAF in which
in 2014 an award of R500 000-00
was awarded; (b) AA Mutual
Insurance Association v van Jaarsveld in which in 1974 an award of
R12 000-00 which was confirmed
on appeal was made. According to
the defendant this amount is equivalent to R642 000-00 in 2019
as per the 2019 Quantum year
book by Dr Robert Koch; (c) van der
Mercht v RAF in which during 2010 an award of R400 000-00 was
made. According to the defendant
in 2019 as per the Quantum Year book
by Dr Robert Koch this amount is equivalent to R642 000-00.
[18]
It is trite that past awards are merely a guide and are not to be
slavishly followed, but they
remain a guide nevertheless. It is also
important that awards, where the sequelae of an accident are
substantially similar, should
be consonant with one another, across
the land. (See
NK
obo ZK v MEC for Health, Gauteng
supra
).
[19]
With the cases that the plaintiff and the defendant had relied on, in
my view the most relevant
one is that of Dlamini v RAF as the issues
raised is that case are substantially similar to the case before me.
In Dlamini’s
case the Sports Physician has concluded that the
plaintiff was deemed to have suffered irreversible brain damage which
renders
him unsafe to himself and to others especially in a working
environment. The Occupational Therapist in Dlamini’s case has
opined that Mr Dlamini live in a home with supervision and that a
support worker should be appointed for him.
[20]
In the case before me the plaintiff was not deemed to have
irreversible brain damage, he is not
regarded to be unsafe to himself
and others in a working environment. He does not need supervision and
a support worker. Counsel
for the plaintiff has submitted that the
plaintiff is in a vegetative state. I do not agree with this
submission. The plaintiff
is still able to talk without problems; he
is aware of his surroundings; he can walk on his own and do things on
his own. He can
still work. He was able to continue with his studies
after the accident. That in my view are not the signs of a person who
is in
a vegetative state.
[21]
It is not in dispute that the plaintiff has sustained serious injury
and that he should be compensated
for pain and suffering and also for
loss of amenities of life. Taking into consideration the totality of
the evidence, circumstances
surrounding this case, as well as the
past awards for general damages in similar cases, such as Dlamini’s
case, I consider
R1000 000-00 to be fair award for general damages
with regard to the plaintiff’s case.
[22]
Turning to contingency deductions, it is trite that the application
of contingency deductions
is essentially a matter of judgment resting
on the judge’s view of the likelihood of the expenses allowed
actually being
incurred. (
See
Singh and Another v Abrahim ZASCA 14 (26 November 2010).
[23]
In
Bee
v RAF
[2018] ZASCA 52
,
2018 (4) SA 366
(SCA) at para 116 Rogers AJA
said:
“
I
do not
think with respect that one can speak about a normal contingency
deduction for loss of future earnings, at least not without taking
into account the age of the claimant. For obvious
reasons, the younger the victim, the longer
the period over which the vicissitudes of life will operate
and the
greater the uncertainty in assessing the claimant’s likely
career path.”
[24]
The same path principle was followed in
RAF v Kerridge
2019 (2) SA
233
(SCA)
where Nicholls AJA at para 44 said:
“
Some general
rules have been established in regard to contingency deductions, one
being the age of the claimant. The younger the
claimant, the more
time he or she has to fall prey to vicissitudes and imponderables of
life. These are impossible to enumerate
but as regards future loss of
earnings they include inter alia, a downturn in the economy leading
to the reduction in salary, retrenchment,
unemployment, health,
death, and the myriad of events that may occur in one’s
everyday life. The longer the remaining working
life of a claimant,
the more likely the possibility of an unforeseen event impacting on
the assumed trajectory of his or her remaining
career. Bearing in
mind, courts have, in a pre- morbid scenario, generally awarded
higher contingencies, the younger the age of
the claimant. This
court, in Guedes, relying on Koch’s Quantum Yearbook 2004,
found the appropriate pre-morbid contingency
for a younger man of 26
years was 20% which would decrease on a sliding scale as the claimant
got older. This of course, depends
on the specific circumstances of
each case but is a convenient starting point.”
[25]
The defendant’s actuary has suggested a contingency deduction
of 5% for past loss and 15%
for future loss. The plaintiff has
accepted the defendant’s actuarial calculations. Five and 15%
for past and future loss,
respectively, have become accepted as
normal contingencies. (
See
RAF v Kerridge supra at para 30).
Therefore, absent special circumstances, 5% and 15% for past and
future loss will be the high end. (
See
Bee v RAF at para 116).
[26]
The plaintiff at the time of the accident was 18 years old and was in
grade 7. The plaintiff
has been struggling academically and was
repeating almost every grade. After the accident he went back to
school. The plaintiff
dropped out of school in grade 8 after he
failed it. He did not drop out of school because of the accident, but
because the teachers
told him that he was over age for that class.
[27]
According to the plaintiff’s Educational Psychologist, the
plaintiff has failed grade 6
thrice and grade 7 prior to the accident
which according to psychologist suggest pre-existing learning
difficulties. The plaintiff’s
Educational Psychologist is
further of the view that the plaintiff would have been pushed through
the system until he reached grade
12 and would have failed it
dismally. The defendant’s Industrial Psychologist is of the
view that the plaintiff would have
schooled up to grade 8 or 9.
[28]
Both experts are in agreement that the plaintiff would not have
progressed beyond grade 12, and
not as a result of the accident but
due to his own pre-existing learning problems. In the likelihood he
was employed, he would
have been employed in the semi-skilled or
unskilled sector. Without proper education, it will be difficult for
the plaintiff to
be employed in a higher income bracket. With
struggling economy at the moment, most companies are also struggling
financially and
it becomes difficult to employ unskilled workers.
[29]
The plaintiff is now 24 years of age and is still unemployed and has
never being employed after
dropping out of school at the age of 19
years. It is therefore difficult to assess his career path due to his
non- existent employment
history. There is no evidence that after he
dropped out of school he attended any institution to try and skill
himself.
[30]
Taking into consideration his age, that he dropped out of school due
to his pre-existing learning problems
and not as a result of the
accident, and that 5 years has lapsed after he dropped out of school
without being employed, in my view
are special circumstances which
militate against a general contingency deduction of 15% in respect of
future loss of earnings.
In my view an appropriate contingency
deduction for future loss of earning will be 35%.
[31]
In my view, the following calculations are fair and adequate.
(a) Past
loss
R8811-00
Less 5% contingency
deduction
R
440-55
Net future
loss
R8370-45
(b) Future
loss
R1041 831-00
Less 35% contingency
deduction
R
364 640-85
Net future
loss
R 677190-20
Add General
damages
R1000
000-00
R1685 560-60
Less 20% apportionment of
damages
R
337 112-12
Total
loss
R1348 448-50
[32]
I therefore make the following order:
32.1
The plaintiff succeeds in his claim for compensation against the
defendant.
32.2
The defendant is to pay the plaintiff the sum of R1348 448-50
representing the plaintiff’s general damages, past and
future
loss of earnings.
32.3
The defendant to pay plaintiff’s costs.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPERANCES
COUNSEL FOR THE
PLAINTIFF
: Adv N.
Phatudi
INSTRUCTED
BY
: Mafori Lesufi Inc
COUNSEL FOR THE
DEFENDANT
: Adv T.I Ngwana
INSTRUCTED
BY
: Mathobo, Rambau &
Sigogo Att
DATE OF HEARING
: 02 May 2019
DATE OF
JUDGEMENT
: 4
th
June 2019