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[2019] ZAGPPHC 360
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Tsoael v Road Accident Fund (63013/16) [2019] ZAGPPHC 360 (12 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 63013/16
12/7/2019
In the matter between:
TIEHO
SAMUEL
TSOAEL
Plaintiff
And
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
GWALA
AJ
1.
In
this matter the plaintiff instituted an action against the defendant
for a claim for damages suffered by him as a result of motor
vehicle
collision which occurred on 06 November 2015. At the time of the
collision the plaintiff was 29 years old. Currently, he
is 33 years
old. The matter come before me for determination of quantum, the
issue of liability having been previously determined
at 80%
apportionment against the defendant and the court having made an
order to that effect.
2.
At
the beginning of the trial I was informed by counsel for the parties
that a portion of the quantum relating to future hospital
and medical
expenses was equally resolved between the parties with the defendant
furnishing the plaintiff with an undertaking certificate
in terms of
Section 17
(4) (a) of the
Road Accident Fund Act 56 of 1996
. The only
issue that remained for determination by the court was the issue
pertaining to the plaintiffs past and future loss of
earnings as well
as general damages.
3.
Counsel
also informed me that none of the parties would lead oral evidence
instead parties would argue their cases based on the
experts reports
that were filed by them, all of which were admitted by the parties as
evidence before court. The parties also filed
joint minutes by the
corresponding experts which I was asked to consider as part of
admitted evidence. It was common cause between
the parties that the
pass and future loss of income was actuarially calculated on the
basis agreed to by the Industrial Psychologists
and in line with
their joint minutes.
4.
The
plaintiff appointed several experts such as Orthopaedic Surgeon,
Neurosurgeon, Neurologist, Ear. Nose and Throat Surgeon, Clinical
Psychologist, Occupational Therapist and Industrial Psychologist as
well as an Actuary who calculated the loss of income. On the
other
hand, the defendant appointed Orthopaedic Surgeon, Neurosurgeon,
Occupational Therapist and Industrial Psychologist. The
corresponding
experts have prepared and submitted joint minutes. They agree on all
material issues. During argument counsel for
the parties aligned
themselves with the joint minutes without departing therefrom in
anyway.
5.
As
appearing from the medico-legal reports, the upshot of the
plaintiff's injuries are the following:- mind, traumatic brain injury
(concussion), dislocated jaw, right facial nerve, palsy (paralysis)
abrasion on the right eyebrow, forehead, lower back {L5/S1
disc
narrowing), right thigh and right knee and bleeding from both ears.
6.
Plaintiff
was admitted and treated at One Military Hospltal for a period of
approximately six (6) weeks. The following treatment
was
administered: -clinical and radiological examination; CT scan of the
brain, neuro-observations, closed reduction of right-tempo
mandibular joint, anti-epileptic treatment, rehabilitation
physiotherapy, pain management, tetenus administered and wounds
dressing.
7.
As
to the sequelae, as noted by the experts, the plaintiff was left with
the following symptoms: epilepsy, lower back pains which
is
exacerbated by prolonged sitting; and standing, he suffers from right
thigh pain which is exacerbated by prolonged walking,
he suffers from
frequent headaches, a paralysis on the right of the face, a mild
inner ear deafness on the left, he has poor vision
with neuro-
cognitive deficits associated with poor memory, concentration and
attention deficits, he suffering from neurobehavioral
changes,
moderate levels of anxiety and severe symptoms of post-traumatic
disorder.
8.
The
issue taken by the defendant in argument was that there is no finding
by any of the relevant experts on whether the plaintiff
suffered from
epilepsy as a result of the collision. He conceded though that it is
mentioned in various experts reports that the
plaintiff is on
epileptic medication. He conceded further that prior to the collision
the plaintiff was not on any epileptic treatment.
He conceded too in
his head of argument that the plaintiff is now suffering from
epilepsy. The concessions were correctly made.
The plaintiff suffered
mild traumatic brain injuries as a result of the accident. It appears
from the various reportst notably
by both Neurosurgeons, that on
admission the plaintiff was put on Epilim. There is no evidence to
the effect that he suffered from
epilepsy prior to the accident.
9.
As
mentioned above, parties had admitted the experts reports as
evidence. Professor PL Lekgwara recorded in his report that the
complications the plaintiff is faced with is that he is already
suffering from epilepsy. He opines also that a provision should
be
made for future treatment of the epilepsy. Even Dr Mogwale S
Motebejane, the Neurosurgeon appointed by the plaintiff, confirmed,
in his report, that plaintiff is epileptic.
10.
The defendant did not seek to
cross-examine the experts who opine that the plaintiff is now on
medication for epilepsy or that he
is already suffering from epilepsy
and that he will need treatment in that regard. I have already
mentioned that it was conceded
by the counsel for the defendant that
prior to the accident the plaintiff had no record of suffering from
epilepsy. lt was diagnosed
for the first time when he was admitted at
One Military Hospital following the accident.
11.
The
defendant did not submit any form of evidence to dispute that the
epilepsy was as result of the accident. There is no basis,
factual or
otherwise, to challenge that he suffered from epilepsy as a result of
the accident. lt is merely an argument presented
by the defendant
without any factual foundation. The defendant admitted the experts
reports of the plaintiff as evidence.
12.
The
defendant argued that the epilepsy could be as a result of another
accident which apparently currently in 2012. This argument
cannot be
sustained. lt is not based on any evidence. It is based on
conjectures. At least the defendant ought to have some factual
basis
for such argument to stand. According to Professor PL Lekgwara the
plaintiff did not sustain any injuries in the 2012 accident.
13.
The
defendant argued further that the epilepsy may be as the result of
both the 2012 and 2015 accident. Of cause, this argument
was more of
a guesswork. Again, there is no support for the submission that the
2012 accident had resulted in plaintiff suffering
from epilepsy. The
argument is highly speculative. It should be dismissed.
14.
According
to the medico-legal reports, the plaintiff will need future treatment
indicated as conservative treatment for epilepsy
and headaches,
surgery: thoraco-lumber decompression and fusion, psychotherapy,
occupational therapy, revision of the scars and
biokieticist. The
defendant has provided an undertaking for the future medical
treatment and did not, at that time, question the
fact that the
plaintiff suffers from epilepsy.
15.
I
am satisfied that the plaintiff is suffering from epilepsy. This
occurred for the first time after the plaintiff had suffered
injury
to the brain which was as a result of the accident for which he was
treated with Epilim on admission at the hospital. The
epilepsy is
directly connected to the accident which resulted in him suffering
from brain injuries. Even if I am wrong, nevertheless,
probabilities
favour a conclusion that the epilepsy is as a result of the injury to
his brain which he suffered as a result of
the collision in question.
LOSS
OF EARNINGS AND CONTINGENCIES: -
16.
Save
for the epilepsy, it was common cause that the plaintiff suffered the
injuries aforesaid and that he will require the treatment
aforementioned. Both parties were in agreement that the plaintiff is
entitled to compensation for general damages as well the loss
of
earnings. The plaintiffs past and future loss of earnings was
actuarially calculated on the basis agreed to in the joint minute
between the industrial psychologists. The basis and correctness of
the calculations are common cause between the parties. The issue
is
what contingencies deductions should be applied to the figures
provided for the past and future loss of income in the circumstances
of this matter. This is what I now tum to.
17.
In
the matter Benjamin
NO v The Road
Accident Fund C& B Vol 5 84-205
the
plaintiff was an OB-year-old girl at the time of the accident and she
was 15 years old at the time of the trial. She had sustained
severe
brain injuries resulting in urinary incontinence, emotional
liability, daily headaches, low self-esteem and was being subjected
to ridicule by other children. She also suffered certain orthopaedic
injuries and it was held that she would be incapable of earning
an
income. The court applied 15% contingency deduction to her claim for
future loss of earnings.
18.
In
Mehle and Another v Road Accident
Fund Corbett and Buchanan Vol 5 A2-30 (C)
the
plaintiff was a 20-year-old male who as a result of the motor vehicle
accident was left functionally useless. He was assessed
as being
completely unemployable. The court found that the contingency
deduction to be made was 20% for future loss of income and
5% in
respect of past loss of income.
19.
In
Smit N.O v The Road Accident Fund C&B
Vol 5 84-251
, the plaintiff was a
12-year old girl who suffered a severe diffuse axonal head
injury and other orthopaedic as well as some
soft tissue injuries.
She was left with intellectually impairment and having some
personality changes and a lack of drive. The
accident left her in a
situation where her future employment would be limited to a
sympathetic environment and for short periods.
The court allowed a
contingency deduction of 15% to her future loss of income.
20.
In
the matter of
Zarrabi v The Road
Accident Fund C&B Vol 4 B4- 231
a
30-year-old female, a trainee medical specialist had suffered severe
diffuse axonal brain injury with severe neuro-physical, cognitive
and
psychiatric consequences. She sustained some orthopaedic and other
injuries. She suffered from intellectual impairment which
meant that
at best for her, she would manage some form of employment in a
sympathetic environment. The court allowed a 5% contingency
deduction
in respect of past and a 15% in respect of future loss of earning.
21.
In
this matter the plaintiff is a young man of 33 years old. His is one
of the factors to be taken into account in determining appropriate
contingence deductions. The fact that the plaintiff was employed and
having a stable job at the time of the accident is another
factor to
take into. He had a potential to be promoted even to the rank of a
captain pre-accident, this too is relevant. There
is no evidence to
justify any departure from the normal contingencies. For all the
above reasons, I am of the view that the 5%
for the pre-morbid and
post-morbid for the past loss of income is reasonable and fair. This
fact is also admitted by the defendant.
22.
As
for post-morbid contingencies the following factors are taken into
account: - the possible further reduction to his work capacity
in the
event of the recommended surgery to the lumber spine; should he lose
his employment for one reason or the other, there may
also be some
further deterioration as a result on his epileptic condition. Should
this occur, he will be more compromised and will
be an unfair
competitor in the labour market as he will be precluded from doing
work which requires driving for instance.
23.
The
plaintiff has already forfeited deployment to the Democratic Republic
of Congo which was supposed to take place during May 2017
to May
2018, wherein he would have earned an income of approximately R370
000.00. Another factor to consider is the fact that he
does not hold
sufficient physical capacity now for his job as paramedic. For these
reasons I am of the view that 15% pre-morbid
and 35% post-morbid
contingency deductions are justifiable in respect of the future loss
of income.
24.
As
mentioned above, the actuarial calculations were prepared and were
not placed in dispute by any of the parties. Accordingly,
the
actuarial calculations may be taken as correctly reflecting the
plaintiffs loss of income prior to the application of any
contingencies. With that in mind the award for the plaintiffs loss of
earnings should be calculated as follows:
PAST LOSS OF EARNINGS
Pre-morbid
: R454 718 -5% =
R431 982
Post-morbid
: R431 507-5% = R409
929
Total
past loss of income
:
R22, 053
FUTURE LOSS OF EARNINGS
Pre-morbid
: R6 356 056-15% = R5 402
648
Post-morbid
: R4 640 463-35% =
R3 016 301
Total
future loss of income
: R2 386 347
TOTAL LOSS OF EARNINGS
: R2408400
GENERAL DAMAGES:-
25.
It is trite law that no two cases are
always similar hence it is difficult to find a comparable matter that
is in all fours in respect
of the facts. Past decided comparable
cases, although often useful, merely serve as guidelines. The need to
adjudicate each case
on its own particular merits is always present.
In
Van Dyk v Road Accident Fund 2003
(SES) QOD
1
(AF);
at paras [22] and [23) it was
stated:
"[22]
The purpose
of
an award for
general damages is to compensate a claimant for the pain, suffering,
discomfort and loss of amenities of life to which
he or she has been
subjected
as a
result
of
the particular
injuries that were sustained.
Although the determination of
an appropriate amount in this regard is largely a matter
of
discretion,
some
guidance can be
obtained by having regard to previous awards made in comparable
cases.
[23]
This should obviously be updated to present day values in order to
properly serve as a basis
for comparison. In making such an
adjustment I am mindful of the fact that, whereas it is permissible
to
have
regard for the general depreciation in the value of our currency by
utilising the Consumer Price Index,
a
'slavish
adherence' thereto, particularly in the case of awards made in older
cases, may lead to somewhat anomalous results or inflated
values in
today's terms."
26.
It is equally trite that in the
determination of general damages it is required of the Court to
exercise a wide discretion in order
to award what it considered to be
fair and adequate compensation, having regard to all the relevant
facts and circumstances connected
with the plaintiff, as well as the
nature of the injuries sustained by him/her, the possible permanence
thereof, and the severity
and the impact on the claimant's lifestyle.
As far back as 1941, Watermeyer JA in
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
(A)
at
199 stated that:
"The amount
to
be awarded
as
compensation can
only be determined by the broadest general considerations and the
figure arrived at must necessarily be uncertain,
depending upon the
Judge's view of what is fair in all the circumstances of the case."
27.
There
is also no hard and fast rule of general application which requires
the Court to consider past awards for no two cases can
ever be the
same (cf
Road Accident Fund v Marunga
2003 (5) SA 165
(SCA) 169G-H).
Previous
awards may be compared where it is useful to do so to provide some
guidance only. They play an important role and may be
used where
appropriate. However, they are by no means a decisive factor. The
court still has a wide discretion.
28.
In the matter of Mnguni vs Road Accident
Fund, 2006 (6) QOD E-1 (GSJ) the plaintiff, a 32-year-old male (who
was 29 at the time
of the accident), had suffered severe brain injury
with fractures of the skull and facial bones: severe injuries to the
right lower
leg resulting in traumatic amputation; soft tissue
injuries to the left ankle and whiplash injury to the spine. There
significant
neuropsychological difficulties including headaches,
impotence, depression, memory difficulties, concentration
difficulties; depression
and change of personality. Orthopaedic
injuries causing difficulty in walking with prosthesis due to painful
stump; phantom pain
at site of amputation; neck pain associated with
headaches; and shoulder, knee and ankle pain. The court awarded
general damages
in the sum of R 700, 000.00 in 2006 terms.
29.
In
De
Jongh v Du Pisanie N.O. C & B, Vol 5 at J 2-103
-
a 35-year-old male had sustained some orthopaedic injuries including
a fracture of the frontal skull causing an extradural haematoma
causing brain damage giving rise to intellectual impairment as well
as changed personality. He was awarded general damages in the
amount
of R250,000.00 in 2004 terms.
30.
In
Mohale
V Road Accident Fund 2015 (7A4) QOD 15 (GNP),
the
plaintiff was a 10 years old girl who suffered brain injury and
injuries of the neck and back. Accident resulted in the plaintiff
having headaches with slightly increased risk of developing epilepsy.
Due to the severity of the neurocognitive sequelae of the
head and
brain injury, behavioural and neurocognitive changes, psychiatric
changes, headaches, back and neck pains, poor progress
at school and
the industrial psychologist's opinion that the plaintiff is
unemployable, the court was satisfied that the accident
has had a
tremendous impact on the ability of the plaintiff to work. The court
awarded R650, 000.00for general damages in 2015
terms.
31.
In
Manginda V Road Accident Fund
(12465/15) [2018] ZAGP JHC 410 (13 June 2018),
the
plaintiff sustained the following injuries, facial fractures, back
trauma, frontal abrasion, left tibia and tibia fracture,
and multiple
contusions, he also suffered from epilepsy. The award in the case was
R700, 000.00 in 2018 terms.
32.
In
this matter the plaintiff has suffered serious injuries which have
left him compromised which include amind, traumatic brain
injury
(concussion), dislocated jaw, right facial nerve, palsy (paralysis)
abrasion on the right eyebrow, forehead, lower back
(L5/S1 disc
narrowing), right thigh and right knee and bleeding from both ears.
33.
He
is now left with symptoms of epilepsy, lower back pains, he suffers
from frequent headaches, a paralysis on the right of the
face, a mild
inner ear deafness on the left, he has poor vision with
neuro-cognitive deficits associated with poor memory, he has
concentration and attention deficits, he suffering from
neurobehavioral changes, moderate levels of anxiety and severe
symptoms
of post-traumatic disorder.
34.
I
am of the view that a fair and reasonable amount for compensation for
general damages should be awarded in the sum of R 800, 000.00
(eight
hundred thousand rand).
35.
The
total award for both general damages and loss of earnings (both past
and future loss), before apportionment, should be an amount
of R 3,
208, 400.00 (three million two hundred and eight thousand four
hundred rand).
36.
The
merits were resolved and the defendant was found liable for 80% of
the plaintiff's proven damages. This apportionment of damages
must
now be taken into account with the result that the amount for which
the defendant is liable to compensate the plaintiff is
in the amount
of R 2, 566, 720.00 (two million five hundred and sixty-six thousand
seven hundred and twenty rand).
37.
The
costs should follow the results. lt was not argued otherwise. The
plaintiff is successful. There is no reason not to award costs
to the
plaintiff as a successful party. Accordingly, I will award costs to
the plaintiff.
38.
In the result, I make an order in the
following terms:
36.1
The
defendant is ordered to pay the plaintiff a sum of R 21 566, 720.00
(two million five hundred and sixty-six thousand seven hundred
and
twenty rand).
36.2
The
defendant is ordered to pay the costs of suit.
M. Gwala AJ
Acting Judge of the High Court of
South Africa
Gauteng Division, Pretoria
Appearances:
For
the plaintiff: Adv RB Mphela
For
the defendant: Adv RT Ramabulana