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[2019] ZAFSHC 170
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PM v Road Accident Fund (2581/2017) [2019] ZAFSHC 170 (19 September 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number
: 2581/2017
In
the matter between:
P
M
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
HEARD
ON
: 13, 14 and 16 AUGUST 2019
JUDGMENT
BY
: LOUBSER, J
DELIVERED
ON
: 19 SEPTEMBER 2019
[1]
The Plaintiff in this action sustained serious injuries in a car
accident on 19 November 2016 near the town of Thaba Nchu in
the Free
State Province. At the time of the accident, he was earning a nett
salary of R 21 819-88 per month as a cost accountant
with a
company by the name of Saint–Gobain Abrasives. Presently the
Plaintiff is 34 years of age, and he has a national Diploma
in cost
accounting and a B.Tech degree in the same field of learning. After
he qualified as such, he first worked for Nokia as
a cost accountant
for some three years, and then for Saint-Gobain as from 2014.
[2]
The injuries sustained by the Plaintiff appear from the joint minutes
by the two orthopaedic surgeons handed in during the course
of the
trial. According to the minutes, he sustained the following injuries:
a head injury with a base skull fracture, a left femur
fracture, a
chest injury with contusion of the lungs, and an injury of the left
elbow/forearm, with injury of the ulnar nerve.
The doctors further
agreed that the Plaintiff is suffering a loss of amenities due to the
accident, and loss of earning capacity
and a disfigurement of his
body.
[3]
In the summons, the Plaintiff claimed a total amount of R
8 794 671-00 damages for his injuries and the consequences
thereof. This total amount is calculated as follows: R 50 000-00
for post medical and hospital expenses, R 350 000-00
for
estimated future medical treatment, R 7 594 671-00 for past and
future loss of income, and R 800 000-00 for general
damages.
This Court has already ordered on 6 February 2018, by agreement
between the parties, that the issue of merits and quantum
be
separated and that the defendant is liable to pay hundred percent of
the Plaintiff’s proven or agreed damages. The trial
therefore
concerned only the quantum of damages.
[4]
The first witness to testify in the trial was the Plaintiff himself.
His evidence was not contested by any cross-examination
at all, with
the result that it has to be accepted as common cause between the
parties. The Plaintiff testified that he had to
use crutches for a
period of 10 months after the accident due to a metal pin that was
inserted to his left femur from the hip downwards.
As a result of the
pin, he cannot run anymore, he cannot kneel down, he cannot stand for
long periods of time and he has problems
with climbing stairs.
[5]
Worst of all, he testified that his head injury had the profound
effect of impairing his mental abilities at the workplace.
Whereas
the position he held requires the ability to concentrate, be accurate
and to calculate, he is now unable to perform sufficiently
on such a
level. He has become forgetful, even to such an extent that he cannot
even recall a formula on Excel that he has created
himself. Although
he continued with his employment with Saint-Gobain after the accident
his concentration was severely affected,
he made many errors in his
work, and his overall performance became reduced. At some point he
was even issued with a written warning
pertaining to his work
performance. This warning did not have the desired result, and after
approximately one year the Plaintiff
lost his job through
restructuring and retrenchment. He then remained unemployed during
2018, but at the beginning of 2019 he found
employment on a six
months contract, again as a cost accountant. The contract was not
renewed after the period of six months, and
he is now unemployed
again. Although he went for many interviews for employment, he was
not successful.
[6]
The evidence of the Plaintiff is confirmed by joint minutes between
industrial psychologists on both sides. They agreed that
after the
accident the performance of the Plaintiff declined drastically as he
struggled to pay attention to detail and as a result,
made errors.
Referring also to a report of Dr. J.H. Kruger, they came to the
conclusion that the Plaintiff would in all probability
no longer be
suited to work as a cost accountant anymore. The report of Dr. Kruger
indicates that the Plaintiff showed signs of
a moderately severe to
severe traumatic brain injury, consisting of, inter alia, fractures
of the lateral walls of the left orbit
and anterior maxillary sinus.
Dr. Kruger is a neurosurgeon, and his report was handed in
without any objection from the defence.
[7]
Mr. Ben Moodie, one of the industrial psychologists, testified that
in his opinion, the Plaintiff is, realistically speaking,
not
employable anymore. His head injury and the consequences thereof, may
cause him big problems in future interviews for a job.
He will be
impaired by his forgetfulness in whatever he does. I pause here to
mention that when the Plaintiff testified, the Court
observed him
closely to see for itself whether he showed any signs of the
moderately to severe brain injury. At first glance, the
Plaintiff
appeared to be a friendly and presentable young man, but after a
while it became apparent that he was having difficulties
concentrating and recalling detail. He often repeated himself and
sometimes appeared confused when responding to specific questions.
In
this respect it needs mentioning that the evidence of Mr. Moodie was
also not placed in dispute by the defence.
[8]
Mrs. Lindelwa Grootboom, a clinical psychologist, was one of the last
witnesses called to testify on behalf of the Plaintiff.
In short, she
found that the Plaintiff lacked cognitive flexibility. Someone can,
for instance, have a so-called blank because
of an over-burdened
brain. In the case of the Plaintiff, he has a mental block of the
same kind. When asked to recall a story read
to him, his performance
was far below the average. His word fluency is inadequate, and it is
the frontal lobe functioning of the
brain which affects the word
fluency of a person. She concluded that it is likely that the
personality and behavioural changes
of the Plaintiff are permanent in
nature, possibly due to the frontal or temporal lobe brain injury.
The evidence of this witness
was again not challenged in
cross-examination.
[9]
The joint minutes of the two occupational therapists on both sides
were also presented to the Court. They agree that the Plaintiff
is
best suited for sedentary work, but that he will remain vulnerable in
the open labour market and may experience difficulty finding
and
sustaining new employment.
[10]
In view of the evidence tendered, and on the basis of the Courts own
observations, I have to find that the Plaintiff is not
likely to be
employed as a cost accountant again. In circumstances where thousands
of able-bodied persons are without jobs in our
country today, I also
find that the prospects of the Plaintiff securing any other kind of
job in the future are also not good.
His physical and mental
impairment will become evident during any job interview, and will in
all probability cause him to be found
an unsuccessful candidate.
[11]
The last witness called by the Plaintiff, was Mr. JJ.C. Sauer, an
actuary. He issued an actuarial certificate indicating the
future
loss of capital income of the Plaintiff, without calculating the
total package, and taking into account the applicable RAF
cap, as an
amount of R 6 598 914-00. In coming to this figure, Mr.
Sauer applied a contingency deduction of 35% in order
to provide,
inter alia, for a much lower income than before the accident. He
explained that such deduction was also done to provide
for increased
employment vulnerability, for labour incapacity, uncertainty,
possible long periods of unemployment and early retirement.
Adding
the Plaintiff’s past loss of income to the above figure
(calculated on a contingency basis of 5%), the total loss
of income
amounts to R 6 831 934-00, he testified. The evidence of
Mr. Sauer was not seriously challenged by the defence.
[12]
No witnesses were called to testify on behalf of the Defendant. Mrs.
Sander, appearing for the Defendant, submitted in final
argument that
the Plaintiff’s future loss of income should be calculated on a
35% contingency deduction, as the actuary had
done. As for the amount
of damages, she informed that she is instructed to suggest an amount
of R 200 000-00, but she added
that she could take that argument
not any further. Mr. Steenkamp, appearing for the Plaintiff,
referred the Court to a number
of authorities where general damages
to the current value of between R 700 000-00 and R 900 000-00
were awarded in cases
where brain injuries were sustained. One of
those cases is
Tobias v Road Accident Fund
(unreported Case No. 4934/09 North Gauteng High Court)
,
which appears to be on all fours with the present case as far as the
injuries and likelihood of employment are concerned. In that
case,
the court granted an amount of R 722 000-00 (present value) for
general damages.
[13]
When it comes to the final awards to be made, I am mindful of the
view expressed by the orthopaedic surgeons that the Plaintiff
would
need further surgery and treatment in the future. The order I intend
making, will take care of this aspect. As for the claim
for general
damages, I am mindful of the pain and suffering the Plaintiff had to
cope with, and of the emotional trauma caused
by the reality that he
will never be able to work as a cost accountant again, or possibly
for any employer in any other capacity
for that matter. In my view,
an amount of R 650 000-00 general damages would be fair in the
circumstances.
[14]
As far as the contingencies are concerned, I find no reason to
question the calculations of the actuary. Although it was already
found that the prospects of the Plaintiff finding any employment are
slim, the possibility must be considered that he would somehow
manage
to generate some income for himself by way of a business at home or
somewhere else, and maybe with assistance of others.
This is so,
because the Plaintiff has shown in the past that he is driven by
ambition. After all, he has attained a diploma and
a university
degree to secure his future. His post-accident efforts to find a job,
is further evidence of his ambition to become
financially active
again. I cannot imagine for a moment that he would be content just to
sit back in future without doing anything.
In my view, the 35%
contingency applied by the actuary, is appropriate.
[15]
In making an award for the total loss of income, I will also make
provision for the income generated by the Plaintiff during
his
six-month contract. The certificate signed by the actuary is dated
before that period of six months. I make no award for the
past
medical and hospital expenses, because no evidence pertaining thereto
has been presented.
[16]
Only one issue remains. Mrs. Sander has raised the question whether
the amount awarded to the Plaintiff should not be protected
in a
trust, due to the possible large amount of the award. Her concern is
probably founded on a suggestion by Dr. Kruger in a letter
dated 9
October 2019, that the money be protected in a trust. No evidence was
placed before the Court, however, that the Plaintiff
is unable to
manage his own affairs. It was also not the impression of the Court,
having questioned to and having seen the Plaintiff
during his
testimony, that he would not be able to manage his own affairs. There
is no indication that he has become irresponsible
or careless after
the accident. Should it appear later that I am wrong in this respect,
the mechanisms provided for in Court Rule
57 may be invoked.
[17]
In the premises I make the following order:
1.
The Draft Order attached as “X”, and as amended, is made
an Order of Court.
_________________
P.J.
LOUBSER, J
For
the Plaintiff
: Adv. M.J. Steenkamp
Instructed
by:
VZLR Attorneys, Pretoria
c/o
Du Plooy Attorneys
Bloemfontein
For
the Defendant
: Adv. I. Sander
Instructed
by
: Maduba Attorneys
Bloemfontein