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[2019] ZAFSHC 172
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Khokho NO v Road Accident Fund (274/2019) [2019] ZAFSHC 172 (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
No.: 274/2019
In
the matter between:
ADVOCATE
NGAKA DAVID KHOKHO
N.O
Plaintiff
(Curator
ad litem to M G)
And
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT:
MOENG, AJ
HEARD
ON:
4 SEPTEMBER 2019
DELIVERED
ON:
19 SEPTEMBER 2019
[1]
This matter came before me as a stated case .The plaintiff’s
case against the defendant is for payment of damages arising
from
injuries sustained by M G (M) in a collision which took place on the
10th of August 2017 within the jurisdiction of this court.
The
plaintiff is Advocate David Ngaka Khokho, an advocate of the High
Court of South Africa in his capacity as
curator ad litem
to
M.
[2]
The dispute relating to liability and future medical expenses was
settled at the start of the trial and the parties agreed that
the
Fund is liable for 80% of the agreed or proven damages, suffered by M
as a result of the collision. The Fund also conceded
its liability to
compensate M for 80% of his future medical expenses by way of an
undertaking in terms of section 17(4)(a) of the
Road Accident Fund
Act.
[3]
A statement detailing the agreed facts was handed into the record and
I was requested to determine the contingency to be applied
for the
future loss of earnings and to determine the quantum of the general
damages suffered by M.
[4]
The statement disclosed the following facts: On the 10th of August
2017 M was run over by the insured vehicle along Harvey Road
in
Bloemfontein and he sustained severe bodily injuries as a result. He
sustained a severe traumatic brain injury consisting of
a subdural
haematoma, an extradural haematoma and a temporal brain stem
haematoma. He further sustained a skull fracture, multiple
lacerations and abrasions on the forehead, right arm, right elbow and
right lower leg.
[5]
He was unconscious after the collision and was transported to
hospital immediately thereafter. He was admitted into the intensive
care unit with a reduced Glasgow Coma Scale of 6/15. He received
treatment and was discharged from hospital on 22 August 2017.
[6]
He was subsequently re-admitted to hospital on 5 September 2017 due
to the development of a subdural haematoma, as a consequence
whereof
burr holes were drilled into his skull on the 7th of September 2017.
He was discharged from hospital on the second occasion
on the 9th of
September 2017.
[7]
M suffered severe organic brain damage. He now has a greatly impaired
walking gait, he is not able to ambulate without assistance
and he
has cerebral signs and tremors in the right arm. He is partially
paralysed in the lower limbs, and his speech is severely
impaired..
[8]
He further suffers from disfigurement in that he has scarring on the
frontal scalp and deep multiple abrasion marks on the right
elbow. He
has involuntary movement of the eyes and a scar above the left eye.
All these marks are cosmetically visible.
[9]
He suffers from severe neuropsychological deficiencies, in particular
severe impaired attention; working memory; information
processing and
mental tracking deficiencies. He is unable to plan what to do and how
to do it, problem solving, concept formation
and verbal fluency. He
has had a personality change after the collision and he in particular
gets easily irritated and has lowered
frustration tolerance. He
suffers from bouts of rage and the brain injury had a substantial
severe and prominent effect on his
behaviour.
[10]
He has an impaired insight and reasoning ability and depression which
is secondary to the impairment of his ability to perform
and enjoy
his normal activities of daily living. He is struggling to wash and
groom himself and cannot use his right hand to brush
his teeth. He is
unable to clothe himself and his mother has to assist him in this
regard. He likewise needs assistance when using
the bathroom which is
an outside toilet. He has significant difficulty to transfer himself
from a chair to a bed.
[11]
He did not suffer from these deficits before the collision and his
condition may be regarded as permanent and irreversible.
He obtained
his matric in 2002 and he was employed in various capacities from
2005 to 2017 as a packer, cleaner, salesperson, merchandiser
and
general worker. He would have continued to earn his pre accident
earnings of R6500.00 per month with the ability to advance
to higher
levels of employment.
[12]
He would have started earning on the Paterson A3 level from January
2019 and he would have progressed through to Paterson B2
level until
his career ceiling at age 47. He would have remained at that level
until the retirement age of 65 with inflationary
increases only. He
will, due to his injuries, never be employed in the open market.
[13]
An actuarial calculation has been obtained from Dr Robert Koch based
on the agreed facts and the methodology employed and results
obtained
have been agreed to by the parties relating to the plaintiff’s
claim for past and future loss of income.
[14]
The plaintiff contends that a contingency deduction of 5% in respect
of past loss of earnings and 25% in respect of future
loss of
earnings should be applied. The plaintiff further submits that the
Fund should be ordered to pay an amount of R133 200,
45 after the
contingency deduction of 5% for past loss of income and an amount of
R2 708 161, 50 after the contingency deduction
of 25% for future loss
of income. Having regard to the agreed facts, the plaintiff submitted
that an amount of R1 7000 000. 00
should be awarded for general
damages. A further 20% deduction based on the apportionment should
still be made from the award the
court will make after the deduction
of the contingencies.
[15]
The Fund agreed with the contingency and amount suggested by the
plaintiff to be awarded for past loss of income. It however
submitted
that a contingency deduction of 35% be made in respect of future loss
of income and that the Fund be ordered to pay an
amount of R2 347
073, 30 to the plaintiff. In contrast, the Fund submitted that an
amount of R1 3000, 00 be awarded for general
damages.
[16]
It was succinctly stated in
Southern Insurance Association Ltd
v Bailey NO
1984 (1) SA 98
(A) at 113F-G that:
‘
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
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’... and
at 114C–E ‘In a case where the Court has
before it
material on which an actuarial calculation can usefully be made, I do
not think that the first approach offers any advantage
over the
second. On the contrary, while the result of an actuarial computation
may be no more than an "informed guess",
it has the
advantage of an attempt to ascertain the value of what was lost on a
logical basis; whereas the trial Judge's "gut
feeling" (to
use the words of appellant's counsel) as to what is fair and
reasonable is nothing more than a blind guess. (Cf
Goldie v City
Council of Johannesburg1948 (2) SA 913 (W) at 920.)
[17]
The parties have provided a factual basis that allows for the
actuarial calculation. The actuarial calculations of Dr Koch
reflect
the loss of income before the application of general contingency
deductions. These calculations, accepted by both parties,
are
premised on an allowance having been made for M to be continuously
employed until the normal retirement age of 65 and for the
risk of
early and late death. No further allowances for this should thus be
made under general contingencies.
[18]
It is trite that in assessing damages, the amount to be allowed by
way of a deduction for contingencies is variable and is
closely
connected with the circumstances of the particular case in which the
trial Judge has to exercise his discretion. It may
further be
accepted that contingencies allow for the unknown possibility that
the plaintiff may have less than ‘normal’
expectations of
life and that he or she may have experience periods of unemployment,
illness, accident or general economic conditions.
This in essence
relates to various imponderables and speculation about the future.
[19]
In
Goodall v President Insurance Co Ltd
1978 (1) SA 389
(W) it was held that age is an important factor in calculating
contingencies. Thus, the period for the contingencies to be applied
for a person who was already 46 years of age, was much shorter than
in cases of younger plaintiffs. The Court held that the allowance
for
contingencies ought to be substantially less than the 20 per cent in
such other cases as had been cited.
[20]
In
Road Accident Fund v Guedes
2006 (5) SA 583
(SCA)
the approach to the application of contingencies by Koch was adopted
and was set out as follows at 583:
‘
The author
Koch
describes his work as 'a publication of
financial and statistical information relevant to the assessment of
damages for personal
injury or death'. The page in question is headed
'General contingencies'. 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. . . . There are
no fixed rules as
regards general contingencies. The following guidelines can be
helpful.'
Then
follows what is termed a 'sliding scale' and the following is stated:
'Sliding Scale: % for year to retirement age, ie 25% for a child,
20% for a youth and 10% in middle age
(see
Goodall v President
Insurance Co Ltd
1978 (1) SA 389
(W). . . .'
[21]
It should be noted that the calculations, accepted by both parties,
are premised on an allowance having been made for M to
be
continuously employed until the normal retirement age of 65 and for
the risk of early and late death. These factors should thus
not be
considered in making further contingency deductions.
[22]
After taking into account that, although M’s working life had
been ordinary, he had been employed in various capacities
from 2005
to 2017. Even though counsel for the Fund argued that he had been
job-hopping and had been retrenched at some stage,
the parties agreed
that the assumption should be made that he would be continuously
employed until the normal retirement age of
65 years. The parties
agreed that he would have progressed through to Paterson B2 level
until his career ceiling at age 47. He
would have remained at that
level until the retirement age of 65.
[23]
M suffered no ailments before the accident and he appears to have
been in good health. Considering his background, he appears
to have
been a responsible and reasonable individual. There are no adverse
factors which were advanced to warrant a higher contingency
deduction.
[24]
Taking the well-known principles of Dr Koch into account, and having
regard to his age when the collision took place, the applicable
sliding scale should, in my view, be in the vicinity of 16 to 20%
which is categorised under youth. Counsel for plaintiff’s
contention that a 25% contingency be applied is reasonable under the
circumstances to make provision for other unforeseen future
occurrences. There is no basis, in my view, to make allowance for a
35% contingency. I am satisfied that a contingency deduction
of 25%
be applied for the loss of future earnings.
[25]
I was referred to a number of comparable cases regarding general
damages. No two cases are exactly the same, therefore past
cases can
only serve as a rough guide and ultimately, each case must be
determined on its own merits. In determining general damages,
I will
take the factors agreed upon by the parties in the stated case into
account. It goes without saying that Mongenzi sustained
extreme
severe physical and cognitive impairments.
[26]
I was referred to the following cases:
a)
Torres v Road Accident Fund
2010 (6A4) QOD 1
(GSJ)
The plaintiff was a 24
year-old male, who was 20 years old at time of his injury. He
sustained severe diffuse brain injury; soft
tissue injury to the neck
and soft tissue injuries to the face and chin. He suffered
significant neuro-cognitive and neuro-behavioural
deficits associated
with concentration, working memory, impulse control and abstract
reasoning. He suffered from depression and
adjustment disorder. He
would have had a probable successful career in jewellery design and
he was limited to sympathetic employment.
An award of R1, 2 million
in current terms was made.
b)
Megalane NO v The Road Accident Fund
2006 (5A4)
QOD 10 (W)
The victim was an
11-year-old schoolboy at the time of the accident and he was 14 years
old at the time of the trial. He suffered
a severe brain injury with
diffuse and focal brain damage in the form of a subdural
haematoma
resulting in cognitive impairment characterised by poor verbal and
visual memory; poor concentration and distractibility; impaired
executive function characterised by
frontal
lobe disinhibition causing inappropriate behaviour; speech
difficulties characterised by
dysarthria
and word retrieval difficulties; bilateral
hemiparesis
with severe spasticity of all four limbs and left facial paralysis as
well as aphasis. He was confined to a wheelchair. His intelligence
level was that of a young child. He was an above average scholar
before the accident, who would probably have undergone tertiary
education, left with severe permanent physical and mental
disabilities rendering him unemployable. He was awarded R2, 1 million
in present terms.
c)
Nepgen NO v Road Accident Fund
2012 (6A4) QOD
129 (ECP)
The injured party was a
48-year-old manual worker. He suffered severe closed brain injury;
fractures of the right
tibia
and
fibula
;
fracture of the left
clavicle
and extensive soft tissue injuries. A remarkable recovery but left
with permanent cortical blindness and a degree of intellectual
compromise. Pain in leg related to weather and when walking longer
distances. He suffered occasional backache. Severe concentration
and
tracking problems, learning and memory problems diminished verbal
fluency and slowed mental processing. He was unemployable
in the
future. He was awarded R1, 3 million in present day monetary terms.
d)
Mngomezulu v Road Accident Fund
2012 (6A4) QOD
95 (GSJ)
The plaintiff was a
25-year-old clerk. He suffered moderate to severe traumatic brain
injury; compound fractures of the right
tibia
and
fibula
;
closed chest injury with lung contusion; and a 30cm laceration of the
right thigh. He had post-traumatic organic brain syndrome
comprising
attention and concentration difficulties, reduced cognitive
processing speed, motor functioning difficulties, visual
motor
difficulties, verbal difficulties, memory difficulties, learning
difficulties, and neuro- behavioural problems. Residual
functional
disability associated with right leg fractures. His future employment
prospects were limited to a structured and routine
environment and
future tertiary education no longer possible. An award of R938 000
was made in present day monetary terms.
[27]
I am satisfied that considering the above factors and the comparable
cases that I have been provided with, general damages
should be
awarded in the amount of R1 500 000.00. A further 20% deduction based
on the apportionment will be made to this amount,
as well as the
amount for past and future loss of income.
[28]
In the result the following order is made:
1. The defendant is liable for payment
to the plaintiff in his representative capacity and as duly appointed
curator ad litem
to M G, an adult male born on 28 September
1983, the amount of R3 473 089, 56 (three million four hundred and
seventy three thousand
and eighty nine rand fifty six cents) set out
as follows:
a.
R106 560, 36 (one hundred and six five hundred and sixty rand thirty
six cents) for loss of past income and;
b.
R2 166 529, 20 (two million one hundred and sixty six thousand five
hundred and twenty nine rand and twenty cents) for future
loss of
income and an amount of;
c.
R1 200 000, 00 (one million two hundred thousand rand) for general
damages, resulting from the motor vehicle collision as indicated
above.
2. Payment of the capital amount and
costs shall be made without set-off or deduction, within 30 (thirty)
calendar days from date
of the granting of this order, directly into
the trust account of the plaintiff's attorneys of record by means of
electronic transfer
pending the establishment of the Trust
contemplated hereunder:
S.S.H.
MEHLOMAKULU&CO Trust Account
Bank
- FNB
Account
No. - 53760023945
3. The defendant is ordered to furnish
M G with an undertaking in terms of
Section 17(4)
(a) of the
Road
Accident Fund Act 56 of 1996
, for 80% of the costs of the future
accommodation of M G in a hospital or nursing home, or the treatment
or the rendering of a
service or the supplying of goods to M G
arising out of injuries sustained by him in the motor vehicle
collision mentioned above.
In terms of this undertaking the defendant
will be obliged to compensate him in respect of these costs after the
costs have been
incurred and on proof of these costs being provided.
These costs shall include the costs to be incurred for:
3.1
The establishment of a trust and the the appointment of a trustee;
3.2
The fees of the trustee in administering the aforesaid nett capital
amount and the costs of administering the aforesaid undertaking
as
determined by the
Administration of Estates Act, 66 of 1965
;
3.3
The furnishing of security by the trustee and obtaining of annual
security bond to meet the requirements of the Master of the
High
Court in terms of
section 77
of the
Administration of Estates Act, 66
of 1965
Subject thereto that the
costs referred to in a, b and c above are limited to the prescribed
tariff applicable to a
curator bonis
.
4. The defendant is to pay the
plaintiff's taxed or agreed costs on the scale as between party and
party until date of this order,
including but not limited to the
costs set out below: No interest will accrue in respect of any of the
amounts stipulated above
if payment is made on or before the
stipulated dates; Should payment not be made in respect of any of the
aforesaid amounts on
or before the stipulated date(s), interest will
accrue at 10.25 % (the statutory rate per annum), compounded; In the
event that
costs are not agreed, the plaintiff shall serve a notice
of taxation on the defendant's attorney of record; and shall allow
the
defendant fourteen (14) court days to make payment of the taxed
costs;
4.1
Appointment of the
curator ad litem,
including the costs of
such
curator ad litem.
4.2
The reasonable preparation / qualifying / accommodation / travelling
and full reservation fees and expenses (if any) of the
following
experts, and the costs relating to the plaintiff attending their
medico legal examinations;
i. Dr P.A Olivier (Orthopaedic
Surgeon);
ii. Dr Wilkinson (neurosurgeon);
iii. Mrs Gibson (Neuropsychologist);
iv. Mr Mashaba (Occupational
Therapist);
v. Dr Fine (Psychiatrist);
vi. Mr Mendelowitz (Industrial
Psychologist);
vii. Dr R.J Koch (Actuary).
5. The plaintiff’s attorneys are
directed to:
5.1 Cause a trust to be established in
accordance with the Trust Property Control Act, 57 of 1988
5.2 To pay such amount as may be due
to M G for the trust for the benefit of M G
6. The trust instrument contemplated
in paragraph 5 shall provide that :
6.1. M G shall be the sole beneficiary
of the trust;
6.2. The first trustee shall be
MOHALIA MOLEFE as nominee on behalf of ABSA Trust Limited;
6.3. The trustee(s) shall provide
security to the satisfaction of the Master of the High Court of South
Africa;
6.4. The ownership of the trust
property shall vest in the trustee(s) of the trust, in his/her/their
capacity as trustees
6.5. Procedures to resolve a potential
dispute, shall be subject to the review of the above Honourable
Court;
6.6. The trustee(s) shall be
authorized to recover the remuneration of, as well as the costs
incurred by the trustee(s) in administer
in the undertaking as
envisaged in paragraph 3 above;
6.7. There shall be an exclusion of
any community of property in the event of the marriage of M G
6.8. The amendment of the trust
instrument shall be subject to the leave of the above Honourable
Court;
6.9. The trust shall terminate upon
the death of M G in which event the trust assets shall pass to the
estate of M G
6.10. The trust property and the
administration thereof shall be subject to an annual audit;
6.11. The trustee(s) shall maintain M
G as may be reasonably required from time to time.
7. The attorneys shall be entitled to
make payment of and or recover all disbursements incurred by them in
the action, including,
but not limited to accounts rendered by:
7.1.
The expert witnesses;
7.2.
Counsel employed on behalf of the plaintiff;
7.3.
The
curator ad litem
from the aforesaid funds
received by them in trust for and on behalf of M G
8. The attorney shall be entitled to
payment from the aforesaid funds received by them in the trust on
behalf of M G for their fees.
________________
L. B.J MOENG, AJ
On
behalf of the plaintiff: Adv. S Strydom
Instructed
by: Mehlomakulu Attorneys
c/o
Matsepes
BLOEMFONTEIN
On
behalf of the defendant: Adv. D Hattingh
Instructed
by: Maduba Attorneys
BLOEMFONTEIN