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[2019] ZAGPPHC 293
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Sohaba v Road Accident Fund (96985/2016) [2019] ZAGPPHC 293 (4 July 2019)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE NUMBER: 96985/2016
4/7/2019
In
the matter between:
SOHABA
OFENTSE
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
ERASMUS
AJ
INTRODUCTION
[1]
The
Plaintiff, a 29-year old Customer Care Consultant, is suing the
Defendant for damages that she suffered, under different heads
of
damages, arising from bodily injuries which she sustained in a motor
vehicle collision on 5 October 2015. She was a passenger
in a taxi.
The taxi overturned when the driver of the said taxi overturned when
the driver was overtaking a truck coming from the
front to opposite
direction and the driver of the taxi drove to the extreme right of
the road and the truck passed when the driver
of the taxi went back
to the road, but started swerving, which lead the taxi to overturn.
MERITS
[2]
During
July 2017 the Defendant, and correctly so, conceded the merits. It is
therefore not necessary that I deal with the merits
of the matters. I
have already alluded to herein above as to how the accident occurred.
ASPECTS
THAT NEED TO BE DETERMINED BY THE COURT
[3]
What remained for this Court to consider
are the following:
3.1
The amount of general damages;
3.2
The amount of loss of earnings / earning
capacity;
3.3
The amount for the past medical
expenses.
[4]
At
the outset it was indicated to me that the Defendant made a tender in
respect of the past medical expenses. The Plaintiff still
had to
consider this tender. The parties undertook to inform me of the
amount they agreed on in order for it to be included in
this order. I
indicated to the parties that I am not inclined to postpone the past
medical expenses and that I am of the intention
to deal with it in
the week of 8 April 2019. The issue of unnecessary costs was raised
with the parties.
[5]
In
addition hereto it was mentioned to me that the Defendant wishes the
Plaintiff to call the Plaintiff herself to come and testify.
The
Court cannot force any party to call a witness or refuse to listen to
any evidence presented by a party during the trial proceedings,
unless there is a basis in law in which the Court can or should
disregard the evidence.
[6]
I
am mindful of the fact that any Court can make a negative inference
from the fact that an available witness is not called to come
and
testify. At no stage was it indicated to me that the Plaintiff is
present at Court and available to testify and at no stage
was I
requested to make a negative inference from the fact that she is
present and not called to give evidence. I, however, did
highlight
the risk of a party not calling a witness and indicated that that is
the risk is that the Plaintiff should accept if
they fail to call a
witness to come and testify.
[7]
I
cannot take this matter any further.
[8]
Mnr
Manala, who appeared with Mr Tshavhungwe, on behalf of the Plaintiff,
indicated to me that there was an agreement reached on
Friday 5 April
2019 at a pre-trial held between the parties that an agreement was
reached between the parties that argument will
be made on the expert
reports and joint minutes filed. Mr Manala also provided me with an
email that was send on Friday 5 April
2019 to the attorney for the
Defendant indicating this alleged agreement. The attorney on behalf
of the Defendant replied to this
email simply indicating "Received"
but did not deny the indication that such an agreement was reached.
[9]
Mr
Baloyi on behalf of the Defendant denied that any such agreement
existed and he again raised the issue of the calling of the
Plaintiff
to come and testify. I have indicated to Mr Baloyi that I have
already indicated to the parties that I cannot force any
party to
call a witness, but that the parties must accept the risk that goes
with that.
[10] It was then agreed
that in as far as the experts are concerned the parties will proceed
on the reports
filed. I need to emphasize that I never understood the
reports to be accepted by either party. The agreement that was
allegedly
reached only indicated that the parties will argue on the
reports. It was not stated by the parties that the contents of the
reports
are accepted by the other party.
[11]
At
this stage I need to interpose and state that despite the fact that
the parties were made aware of the risk of not calling a
witness, the
parties elected to proceed without calling any witnesses.
[12]
During
argument it was clear that there were some inconsistencies in the
report by Dr Akhona Mazwi (herein after referred to as
"Mazwi"),
the report by the Neurosurgeon. This report was filed by the
Plaintiff. I had not had the benefit of hearing
oral evidence in
order to clarify what on the report seems to be a mistake or
oversight. However, without the oral evidence of
Mazwi the Court
cannot merely accept that it was a mistake or an oversight.
[13]
Much
reliance was placed on the fact that no counter expert was appointed
by the Defendant, or that such expert report has been
filed. I am of
the view that the Court is not a rubber stamp of any expert witness
and that the evidence set out in the report
should still be weighed
up and a find should be made on the facts set out in the report by
the expert.
LACK
OF PRE-TRIAL MINUTES ON THE COURT FILE
[14]
The
Court was faced with a plethora of bundles. Much of it was a
duplication of bundles already filed in the court file. Despite
this,
not one single copy of any pre-trail held was filed on the Court
file.
[15]
This
issue was raised with the counsel for the Plaintiff. The counsel for
the Plaintiff undertook to provide me with copies of all
the
pre-trials held. Despite this undertaking this bundle of pre-trial
minutes was never made available to me. I therefore was
not in the
position to have regard to any of the agreements set out in the
minutes. I must note my displeasure with the fact that
it was not
provided to me despite an undertaking to provide same to me before I
make the order.
BUNDLES
PROVIDED TO THE COURT AT THE DATE OF HEARING OF THE MATTER
[16]
I
was provided with the Court File the weekend before the Monday on
which this matter was set down for trial. I therefore worked
through
the bundles that was filed on the Court File and I have made my
necessary markings in these bundles.
[17]
At
the beginning of his argument, Mr Manala handed me 5 bundles, and an
email dated 5 April 2019. The bundles were a mere duplication
of the
bundles that was already filed on the Court File and the bundles that
was served on the Defendant.
[18]
The
only difference of these bundles was the sequence in what it was
inserted in the bundles, and the pagination thereof. This also
made
the argument of Mr Baloyi difficult as he prepared his argument on
the previously served bundles.
[19]
During
the argument of Mr Tshavhungwe, a further two bundles were handed to
me. The one contained a number of documents, but reference
was only
made to the Hospital records, and a second bundle of pictures showing
the scarring of the Plaintiff.
[20]
The
bundles were marked as follows:
A
- Pleadings & Notices
B
- Discovered Documents
C
- Plaintiff's Expert Reports
D
- Defendant's Expert Reports
E
- Joint Minutes
F
- Hospital Records
G
- Pictures
[21]
I already during the argument indicated
to the parties that I am not of the intention to allow costs of the
second set of bundles
prepared for the trial of 8 April 2019.
[22]
I indicated that this is simply a waste
of costs of the Defendant.
[23]
Mr Manala then indicated to me that the
Plaintiff do not seek costs for the preparation of the second set of
bundles.
[24]
On perusal of the draft order that was
handed to me, and in paragraph 2.4 thereof, provision was made for
the costs of the making
of the bundles for the trial of 8
th
April 2019. This was not deleted prior to handing the draft order to
me. I took this aspect up with Mr Tshavhungwe on Friday 12
April
2019. The only explanation he could provide was that the draft order
was prepared prior to the trial. I said to him that
it still does not
assist his argument as the indication by Mr Manala was that the costs
of these bundles will not be sought by
the Plaintiff. Be that as it
may.
[25]
In light of the indication by Mr Manala
that the Plaintiff will not seek the costs of the second set of
bundles, this prayer is
amended by myself, specifically to exclude
the fee for the preparation and copying of the bundles for 8 April
2019.
BACKGROUND
[26]
On 5 October 2015, and at Molefe Makinta
Highway, Hammanskraa, l a collision occurred. In paragraph 3 of her
Particulars of Claim
the Plaintiff indicated that the collision
occurred between a motor vehicle with registration letters and
numbers [….] driven
by a certain Maponyane Peter Khomo (herein
after referred to as "Khomo") and a motor vehicle driven by
an unknown driver.
The Plaintiff as a passenger in the vehicle driven
by Khomo. This should be read in conjunction with paragraph 1 of this
judgment.
PLANTIFF'S
INJURIES
[27]
In paragraph 5 of her Particulars of
Claim, the Plaintiff alleged that she sustained the following
injuries:
"5.
1 Head
injury
5.2
Shoulder dislocation
5.3
Deep laceration on left eye, and
also on nose."
[28]
In
the RAF4, completed by Dr Mogora, the orthopaedic surgeon of the
Plaintiff,
[1]
he listed the following injuries:
28.1
Facial injuries - bilateral blowout
fractures
28.2
C6
/
C7
spinous processes fracture
28.3
Left humerus fracture.
[29]
In
the RAF4 form duly completed by Dr TS Bogatsu, the orthopaedic
surgeon of the Defendant,
[2]
he listed the following injuries:
29.1
facial disfigurement/ scarring;
29.2
Healed humerus fracture;
29.3
Post- traumatic headaches.
[30]
In the RAF4 completed by Dr Akhona
Mazwi, the Plaintiff's neurosurgeon,
[3]
he listed the following injuries:
30.1
Head injury;
30.2
Facial fracture;
30.3
Severe headaches;
30.4
Lumbar back injury;
30.5
Visual disturbances;
30.6
Humerus fracture;
30.7
Hearing disturbances;
30.8
Cervical Spine Injury;
30.9
Multiple Facial Scars.
[31]
At
this point I need to interpose and emphasize the fat that regarding
the poor hearing Mazwi made deference to an Ear Nose and
Throat
Specialist
[4]
and in respect of poor vision bilateral orbital fracture, deference
was made to an ophthalmologist.
[5]
[32]
The
Plaintiff failed to appoint experts in these two fields of practice.
[33]
No expert reports or evidence was placed
before me of an ENT or ophthalmologist. There is therefore not
evidence before me that
these injuries are accident related or caused
as a result of the accident. This might have been a pre-existing
condition, or a
pre-existing condition that was merely aggravated by
the accident. In order to determine this, the Court need the
assistance of
an expert to come an give the necessary evidence in
this regard.
[34] In light of the
failure to appoint these experts, the Court cannot come to the
conclusion that these
injuries are indeed accident related.
[35]
I will later herein deal in greater
detail with the report by Mazwi and the conclusion he came to in his
report
[36]
In paragraphs 9 - 12 of the Heads of
argument of the Plaintiff, she listed her injuries as follows:
[6]
"9.
The Plaintiff is recorded to have sustained orthopaedic injuries
to wit:
a
facial injury-bilateral blowout fracture, C6 /
C7
SPIOUS process fracture and left humerus fracture. She has
a
11 cm scar below the left eye to above upper lip. She presents
with
a
16*3cm anterior left shoulder scar, deformed left side
of the face (characterised by disproportion), depressed check and
ptosis
of left eye (dropping of upper eyelid due to paralysis.)
10.
On
assessment of whole person impairment, Dr Mogoru concludes that the
Plaintiff has suffered 33% whole person impairment, and further
opines (with reference to the narrative test) that the Plaintiff has
serious long-term impairment or loss of
a
body function: Permanent serious
disfigurement and severe long-term mental or sever long-term
behavioural disturbances or disorder.
11.
The
neurosurgeon on assessment, concludes that the Plaintiff has
sustained a moderately sever head injury, with multiple facial
fractures with bilateral maxillary fractures to wit: Fractures on the
jaws, neck and both zygomatic bones; and multiple facial
lacerations.
12.
On
assessment of whole person impairment, the neurosurgeon concludes
that the Plaintiff has suffered 50% whole person impairment.
Insofar
as the narrative test, the neurosurgeon concludes that the Plaintiff
has permanent serious disfigurement and sever long-term
mental or
severe long-term behavioural disturbances or disorder."
[37]
On its turn, and in the Heads of
Argument prepared by Mr Balyoi, the Defendant lists the sustained
injuries as follows:
"7.
1 The
Plaintiff sustained a fracture of the left humerus and head facial
injuries (Dr TS Boagadi page 165
of second pre-trial index)
7.2
Dr
N Mogoru noted C6 I Cl spinous Processes fracture (page 4 of second
pre-trial index)
7.3
Deep
laceration on the left eyebrow and left upper lip
7.4
Swollen
and tender left shoulder
7.5
Back
injury
7.6
CT
scan showed bilateral blow out fracture of inferior orbital rim and
anterior wall of maxillary sinuses."
SEQUELAE
/
CURRENT COMPLAINTS
[38] The Plaintiff
documented her present complaints in the various reports filed. Mr
Manala & Tshavhungwe
summarised the present complaints as
follows:
[7]
•
Has post injury severe headaches;
•
Has severe difficulty with
concentration;
•
Has significant permanent residual
memory disturbances;
•
Has personality changes and short
temper;
•
Has lower bac and left arm pain;
•
Has facial pain;
•
Has poor hearing and bilateral poor
vision;
•
Has upper lip scar;
•
Has left facial aspiratory; and
•
Has deep left eyebrow scar;
•
Painful left arm;
•
Aggravated by inclement weather
conditions;
•
Backache;
•
Unable to stand for long;
•
Stiff neck;
•
Discomfort feeling around nose and
cheek;
•
Sensitivity to light;
•
Irritability to noisy places;
•
Loss of appetite;
•
Constipation;
•
Social;
•
Teary left eye;
•
Dripping nostril; and
•
Forgetfulness.
•
Sleep disturbances due to recurring
nightmares."
[39]
The Defendant summarised the
sequelae
in paragraph 8 of its Heads or
Argument as follows:
"8.1
Cognitive:
8.1.1
Headaches.
8.1.2
Pains and scarring.
8.1.3
Socially withdrawn.
8.1.4
Difficulty in wearing short
sleeves and backache.
8.2
Orthopaedically I Physically
8.2.1
One
has found no evidence of any pre-existing musculoskeletal
pathological condition and/or disability.
8.2.2
Assessments
of orthopaedic injuries and its sequalae in this case is not
bedevilled by contradictory facts and potentially problematic
conclusions.
8.2.3
Facts
reported in consultation by Ms Sohaba indicate that she sustained
significant orthopaedic injuries in the accident.
8.2.4
Her
report is supported by contents of available clinical records. Where
one is to take into consideration subjective report by
patient,
objective clinical observations and employment history, one would
find:
8.2.5
Healed
humerus fracture with motion deficits."
[40]
I
already dealt with the lack of report by and ENT and an
ophthalmologist. There is therefore no evidence that any reference to
these type of injuries relates to the injuries sustained in the
accident. I therefore cannot come to the conclusion that the sequelae
in relation to the eyes, nose and ears are as a direct result of the
accident.
PRESENSE
OF A MODERATELY SEVERE HEAD INJURY AS A DIRECT RESULT OF THE ACCIDENT
AND THE INJURIES SUSTAINED IN THE ACCIDENT
[41]
The existence of a moderately severe
head injury is in dispute.
[42]
Only the Plaintiff filed a neurologist
report and the Plaintiff has placed much reliance on the fact that
the Defendant did not
file a report by a neurologist.
[43]
I have already dealt with my view
whether I should readily accept the report for the mere fact that
there is no counterpart report
filed. The answer remains no. I am
simply no rubberstamp to the findings of a single expert witness.
[44]
At the outset, I am not in possession of
the curriculum vitae of Mazwi. On his letterhead, he describes
himself as a Neurosurgeon.
It is important to note that the Court
does not disregard or deny the qualifications of Mazwi. I am simply
having regard to his
field of expertise. This therefore should
nowhere in the future being utilised in any fashion to state that I
have found Mazwi
is incompetent to give an expert opinion in his
field of experience. It is also important to note that the Defendant
at no stage
raised any objection to his qualifications.
[45]
This Court understands that the key to
understanding whether or not a given patient had sustain a brain
injury will depend heavily
on the demonstration on psychomatric
testing by the neuropsychologists, after
MMI
,
of the presence or otherwise of
neurocognitive and neuropsychological shortcomings. It is in their
province of expertise that such
an evaluation of neurocognitive and
neuropsychological deficits lies. It is important to remember that
the neurosurgeon does not
test for these dysfunctions and can only go
on what he is told.
[46]
There is unfortunately no neuro
psychologist's evidence before the Court who tested and evaluated the
neurocognitive and neuropsychological
deficits. This was crucial in
the case of the Plaintiff in order to convince the Court that she
indeed suffers a moderately severe
head injury.
[47]
I have debated the report by Mazwi with
Mr Tshavhungwe and I indicated to him that I have issues with the
report and I have highlighted
the issues I have with the report. I
even went so far to state that it is a pity that Mazwi is not present
to testify and clarify
the issues I have with his report.
[48]
It is also critical to note that at no
stage was I requested to stand the matter down to secure the presence
of Mazwi in order to
take the stand in order to clarify the issues.
In light of my attitude that I cannot force any party to call any
witness this was
also not something I suggested to the Plaintiff. I
have warned the parties about the risk in the failure to call any
witness.
[49]
I will no turn and deal with the report
by Mazwi itself.
[50]
On page 47 of Bundle C Mazwi express the
opinion that the plaintiff sustained a moderately severe head injury.
[51]
On page 50 Mazwi deals with the
classification and complications of a head injury and he states as
follows:
"Based on the American Academy of
Neurology Grading Glascow Coma Scale and American congress of
rehabilitation medicine definitions
A.
Classification
i)
Severe head injury
GCS
3 / 15 to
GCS
8/15 or amnesia for one week or more
ii)
Moderate head injury or
a
concussion
GCS
13 /15 to
GCS
12 / 15 or amnesia for one day or more
iii)
Mild head injury or
a
concussion
GCS
13 /15 to
GCS
15/15 or amnesia
for less than one day Mild concussion: amnesia for less than fifteen
minutes Moderate concussion: amnesia for more
than fifteen minutes
Severe concussion for more than fifteen minutes."
[52]
Under the heading
"Cognitive
disturbances"
[8]
Mazwi states that
"The severity of
a
head injury determines damages of the
injury, seriousness of the injury, fracture treatment, and risk of
epilepsy, the seriousness
of neuropsychological disturbances,
employability and prognosis.
Severe head injury and moderate sever injury
-
Significant cognitive disturbances
can be expected
Mild head injury
Cannot expect significant cognitive
disturbances in 85% of patients 15% of patients will have cognitive
disturbances."
[53] Mazwi then
concludes that:
[9]
"The claimant has the following
problems:
Ø
"'
Has
severe difficulty with concentration
Ø
Has
significant
permanent residual memory disturbances
Ø
Has
personality
changes and short temper."
[54]
As
already stated herein above, the Neurosurgeon does not make the
necessary tests in order to determine these problems. They can
simply
record what was stated to them. I therefore cannot come to the
conclusion that Mazwi made his findings on these problems,
as these
aspects were not tested by him. These aspects were merely related to
him. This falls outside his province of expertise.
[55]
It
is a pity that the necessary and relevant expert evidence was not
placed before the Honourable Court.
[56] In addition to the
aforementioned I need to address the following issue. During the
argument Mr Baloyi,
on behalf of the Defendant, pointed out to me
that the GCS of the Plaintiff was at all relevant times to the
accident 15/15.
[57] I have debated
this aspect with Mr Tshavhungwe. I took him back to page 50 of bundle
C and the different
classifications between a severe head injury,
moderate head injury and a mild head injury or concussion.
[58] Mr Tshivhungwe
pointed out and argued that one should have regard to either the GCS
OR the amnesia.
He argued that one should not only have regard to the
GCS. On this argument I invited Mr Tshavhungwe to take me to the
relevant
reports were the experts dealt with the period of amnesia.
[59] He was not able to
do so.
[60] Based on this I
have indicated to him that I will reserve my judgment for somewhere
in the week between
8 April 2019 to 12 April 2019 in order to go
through the reports again in order to establish if the experts deals
with the period
of amnesia.
[61] Mr Tshivhungwe
then argued further and referred me to the Bilateral blow-out
fracture. This injury
is not assisting the Plaintiff’s argument
at all. This Court understands a blow-out fracture to be an
indication of the existence
of a sever brain injury.
[62] I took time to go
through the reports again in order to determine if reference was made
to the amnesia
of the Plaintiff subsequent to the accident. In order
to place her in the category which the Plaintiff the Court wants to
believe
she falls in, reference needs to be made of one week or more.
[63]
In the report by Mazwi
[10]
he stated as follows:
"The claimants experience significant
head trauma, had multiple facial fractures and CT brain showed
genocides brain swelling,
also
had loss
of
awareness
and wake up at the scene.
The
claimant had Joss of consciousness and amnesia in keeping with
a
moderately severe head injury."
[Court's emphasis]
[64]
I find the remark by Mazwi in a certain
contradictory. I the one breath Mazwi states that the Plaintiff woke
up at the scene, but
proceeds to state that the loss of consciousness
and amnesia is in line with a moderately severe head injury. If one
then has regard
to the period of a severe head injury as set out on
page 50 of bundle C one see that in order to have a severe head
injury one
need to have amnesia for one week or more.
[65]
On a simple analysis the conclusion of
Mazwi cannot be correct. He expressly states that the Plaintiff woke
up the scene. In the
same breath states that her amnesia is in line
with a severe head injury, in other words amnesia for one week or
more. It is unthinkable
that the plaintiff was at the scene for more
than a week, as this is in actual fact what the argument by Mazwi
boils down to.
[66] I also considered
the other reports by the experts filed. Nowhere is there any
indication that the
Plaintiff had amnesia for more than one week. It
is not even indicated that the amnesia was more than one day.
[67] The Plaintiff woke
up at the scene of the accident. Unfortunately, no indication was
made as to the
duration the Plaintiff loss her awareness. Was it less
then 15 minutes ore more.
[68] Based on this,
this Court cannot but to reject the findings of Mazwi that the
Plaintiff suffer a moderately
severe head injury. The best this Court
can do is to accept that the amnesia is more than 15 minutes and
therefore the Plaintiff
suffered a severe concussion.
GENERAL
DAMAGES
[69]
In order to substantiate the claim of
more than R1 700 000.00, the Plaintiff referred me to the matter of
Anthony v The Road Accident
Fund, an unreported judgment by my
brother Msimeki, under case number 27454/2013, which was handed down
on 15 February 2017 (herein
after referred to as "the
Anthony-judgment").
[70]
The Plaintiff wen to a great extent in
order to show this Court and to convince this Court that the facts
before me are similar
to the facts in the Anthony- judgment, and that
I therefore had to follow that judgment and aware an amount in line
with the Anthony-judgment.
[71]
I need to stress the fact that my
brother Msimeki ha the privilege to her evidence by some of the
experts. This court dud not had
that privilege.
[72]
I also need to stress the fact that I
had no evidence of a neuro psychologist, ENT or ophthalmologist
before me and evidence I could
consider. This is to the Plaintiffs
own doing.
[73] In the
Anthony-judgment the Plaintiff the Plaintiff suffered a traumatic
brain injury, and such injury
was significant.
[74] I already
indicated that I cannot come to the conclusion that the Plaintiff
suffered a traumatic brain
injury, it is at best a severe concussion.
I have fully dealt with my reasons herein above.
[75] I therefore cannot
follow the Anthony-judgment.
[76] I accept the
position and circumstances of the Plaintiff is dire.
[77]
In this regard I have had regard to the
comments in the matter of
De Jongh
v Du Pisanie NO
(2004]
2 All
SA 565
SCA,
where the Court reduced
the award of the Court a
quo
from
R400 000.00 to an amount of R250 000.00 for a head injury. At para
[65] of that judgment the Court noted that the tendency
to award high
amounts and cautioned against same as it was not mathematically
accurate. I am mindful that merely following the
trend to grant high
awards slavishly does not take cognisance of the view of Holmes in
Pitt v Economic Insurance Co Ltd
1957 (3) A 284 (0) at 287 E -
F
that:
"[T]he court must take care to see that
its award is fair to both sides
-
it
must give just compensation to the Plaintiff but it must not pour out
largesse from the born of plenty at the defendant's expense."
[78]
Nor does it take cognisance of the view
expressed in
Hully v Cox
1923 AD
234
at
246
where it was stated that:
"We cannot allow our sympathy for the
claimants in this very distressing case to influence our judgment."
[79]
The Defendant reminded me that the
determination of General Damages has never been an easy task as there
is neither mathematical
nor scientific formula or formulation to
compute the monetary value on pain & suffering, loss of amenities
of life and disability.
Regard was had to
AA
Mutual Insurance Association Ltd V Magula
1978
(1) SA 805
(A)
ar.id
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA)
at para 8.
[80]
I was also reminded that I have a wide
discretion to award what I considered to be a fair and adequate
compensation to the injured.
Such discretion may be exercised with
the guidance of previous awards made in comparable cases. In this
regard, I was referred
to
Van Dyk
v Road Accident Fund
2003
(SES) QOD 1 (AF).
[81]
I was further reminded that the use of
comparable cases in not a hard and fast rule that should be strictly
applied. Two cases can
never be the same, hence the need for judicial
adjudicative in cases for General Damages. In this regard I was
referred to the
judgments of
RAF v
Marunga
2003 (5) SA 165
(SCA)
19 G - H.
[82]
On his turn, the Defendant in in the
Heads of Argument filed by Mr Baloyi, reference was made to several
matters. I am grateful
for the assistance in this regard.
[83]
I was referred to the unreported
judgment of
Mnqinda v RAF
where
it was held that as a result of the collision, the Plaintiff suffered
inter alia
facial
fractures, back trauma, abrasion, left tibia and tibia fractures and
multiple contusions. The injury resulted in him being
unable to walk
or stand for prolonged periods. The value of the award today is R720
000.00.
[84]
In the case of
Abrahams
v RAF
2014 (7J2) QOD 1 (ECP)
where the Plaintiff suffered a badly
communicated fracture of the right proximal femur, fractures of the
right distal fibula and
patella, fracture of the right medial
malleolus and mild concussive traumatic head injury. As a result, the
Plaintiff was rendered
unemployable. The value today is an amount of
R750 000.00.
[85] The Defendant
submitted that an amount of R700 000.00 for general damages would be
reasonable.
[86] Taking all the
factors into consideration I am of the view that the amount of R850
000.00 in respect
of the General Damages are justified.
PAST
MEDICAL EXPENSES
[87] As indicated
above, the Defendant made a tender which was considered by the
Plaintiff. The parties
settled this head of damages on an amount of R
2 040.75. The Court will therefore ward such an amount.
LOST
OF EARNINGS/ EARNING CAPACITY
[88] At the hearing of
the trial, the Defendant handed fresh calculations to me. The basis
of these calculations
was incorrect and I will therefore not consider
same.
[89] In considering the
loss of earning capacity, the Court had considered the joint minutes
filed by the
parties.
[90]
In her argument, the Plaintiff suggested
that I accept the scenario 2 of Mr Thsepo Kalanko (the industrial
psychologist of the Defendant).
It was further suggested that I use
the calculation of Mr Loots, the Actuary of the Plaintiff.
[91]
The Defendant suggested that we work on
scenario Mirriam Mathabela, the Industrial Psychologist of the
Plaintiff.
[92]
I am comfortable in accepting the
scenario by Mr Kalanko as per the joint minute.
[93]
The legal principles applicable to the
assessment of both the heads of loss of earnings and loss of earning
capacity has been set
out in numerous occasions in the past in
various case law. It is by now accepted that in assessment of these
heads of damages,
which cannot be assessed with any amount of
mathematical accuracy, the Court has a wide discretion. See for
example
AA Mutual Insurance
Association Ltd v Maqula
1978
(1) SA 805
(A).
[94]
The question before me is the question
of contingencies.
[95]
No arguments were presented to me as to
what factors I should take into consideration in considering the
pre-accident or post-accident
contingencies. Both the Plaintiff and
the Defendant forwarded very broad arguments.
[96]
I do not see any reason why I should
deviate from the normal pre-morbid contingency of 15%. I therefore
reject the argument by the
Defendant that a contingency of 20% should
be applied.
[97]
In addition, the question is what
contingency should be used on the post accident scenario. The
defendant suggested that post
contingencies of 25% should be applied,
and the Plaintiff in her argument suggested 45%, in the alternative
40%.
[98]
I cannot agree with the Plaintiff that
the facts before me warrants contingencies of either 45% of 40%. This
is simply not justified.
[99]
No arguments were presented to me as to
the factors I should consider in coming to the conclusion of the
post-accident contingencies
.
[100]
It is by now well established that
contingencies, whether negative or positive, are an important control
mechanism to adjust the
loss suffered to the circumstances of the
individual case in order to achieve equity and fairness to the
parties. There is no hard
and fast rule regarding contingency
allowance. Koch in the Quantum Yearbook said:
"General contingencies cover a wide
range of considerations which may vary from case to case and may
include: taxation, early
death, saved travel costs, loss of
employment, promotion prospects, divorce, etc. There are no fixed
rules as regard to general
contingencies."
[101]
There are also unforeseen contingencies
based on factors such as error in the estimation of future earnings
and life expectancy,
loss of earnings due to unemployment and
sickness, retirement at an earlier age and hazards of life. The list
can never be exhaustive.
[102]
Each case must be assessed on its own
circumstances.
[103]
Contingencies are the hazards that
normally beset thee lives and circumstances of ordinary people. In
Shields Insurance
Co
Ltd v Booysen
1979
(3) SA 953
(AD) at 965 G
it was held
per Trollip JA that:
"The determination of allowance such as
contingencies involves, but its very nature, a process of subjective
impression or
estimation rather than objective calculation."
[104]
In
Southern
Insurance Association v Bailey NO
1984
(1) SA 98
(A) at 113
Nicholas AJ
held in relation to the process of imposing an opposite:
"One (possible approach) 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. The validity of this approach depends off course
upon the soundness
of the assumptions and these may vary from the
strongly probable to the speculative. It is manifest that either
approach involves
guesswork to
a
greater or lesser extent."
[105]
That being said, and without guidance
from the arguments as to what factors I should take into
consideration and what not, I came
to the following conclusion. I am
mindful of all the factors before me. I had regard to
inter
alia
the following: the stable
working history of the Plaintiff, her additional qualifications she
obtained, that the Plaintiff is functioning
at a diminished level of
functioning. I also had regard to all the medical evidence before me.
[106]
When I consider all the factors, I am of
the view that a 35% post contingency should be allowed.
[107]
The calculation results are therefore as
follows:
POST INCOME
FUTURE INCOME
R15 456 681,00
R15 456 681,00
Less 15%
-R25 318 502,15
Less 35%
-R5 409 838,35
TOTAL
R13 138 778,85
R10 046 842,65
Difference
R3 091 336,20
CONCLUSION
[108] The Defendant, in my view,
must therefore be ordered to pay to the Plaintiff an amount of R3 943
376.95, which
amount is made up as follows:
1.
Past medical expenses R2 040.75;
2.
Future medical expenses in the form of
an undertaking in terms of Section 17 (4)(a);
3.
Future loss of earnings and earning
capacity R3 091 336.20;
4.
General damages R850 000.00.
ORDER
[109] Wherefore the amended draft
order marked
" XYZ"
signed and dated (and attached
hereto) is made an order of Court.
E
ERASMUS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
[1]
See Bundle C, page 30 - 37
[2]
See Bundle D, page 182 - 193
[3]
See Bundle C, page 54 - 60
[4]
See Bundle C, page 47
[5]
See Bundle C, page 47
[6]
See Plaintiffs Heads of Argument, paragraph 9 - 12
[7]
See Paragraph 17 of the Plaintiff's Heads of Argument
[8]
See Bundle C, page 50
[9]
See Bundle C, page 51
[10]
See Bundle C, page 40