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[2019] ZAFSHC 191
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C M v Road Accident Fund (3664/2016) [2019] ZAFSHC 191 (23 October 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3664/2016
In
the matter between:
C
M
Plaintiff
And
ROAD ACCIDENT
FUND
Defendant
HEARD
ON:
10,
11 & 13
SEPTEMBER
2019
JUDGMENT
BY:
VOGES,
AJ
DELIVERED ON:
23
OCTOBER 2019
[1]
On 11 September 2013 the Plaintiff was a passenger in a motor vehicle
with registration number […] FS travelling from
Qwa-Qwa
towards Bethlehem.
The
driver of this vehicle lost control of the vehicle, it overturned and
the Plaintiff sustained injuries.
[2]
In terms of
section 17(1)
of the
Road Accident Fund Act, 56 of 1996
the Defendant (RAF) is obliged to compensate the Plaintiff for
damages sustained in this accident.
[3]
In this action the Plaintiff claims R3 810 000.00 compensation form
the Defendant as a result of injuries sustained during this
incident
in the following amounts:
3.1.
Past medical
expenses
R10 000.00
3.2.
Future Medical Expenses:
Section 17(4)(a)
undertaking
3.3.
Past and future loss of earnings and earning capacity R3 000 000.00
3.4.
General
damages
R 800 000.00
[4]
The merits of the matter had been settled on the basis that the
Defendant is liable for 100% of the proven or agreed damages
of the
Plaintiff and an order to this effect was issued on 28 May 2019.
[5]
It is common cause that the matter of general damages was referred to
the HPCSA because of the opinion of the neurosurgeon of
the defendant
that the Plaintiff suffered only mild injuries. At the onset of
this trial the defendant argued that the matter
should not proceed
until the HPCSA has come to a conclusion. In line with
Botha
v Road Accident Fund
2015 (2) SA 108
(GP), where it was found that the high court still
has jurisdiction to determine the claimant’s claim for loss of
earning
capacity, this court ordered that the issues be separated and
that the matter should proceed on the quantum of the loss of
earnings.
(See
also
De
Bruyn v Road Accident Fund
Unreported case No 29608/2014 Gauteng Local Division delivered
9/5/2017)
[6]
EVIDENCE
Except
for joint minutes that were handed in, only the Plaintiff called
witnesses, namely the following experts, whose reports were
also
handed in:
6.1
Dr H J Edeling, a neurosurgeon
(Exhibit B)
6.2
Ms L de Rooster, educational psychologist (Exhibit G)
6.3
Ms R Hovsa, a clinical psychologist
(Exhibit L)
6.4
Ms C Keyter, an occupational therapist
6.5
Mr G A Whittaker, an actuary
(Exhibit P)
6.6
Mr K J Jooste, an industrial psychologist
(Exhibit Q)
The
Plaintiff did not testify herself but was extensively interviewed
and/or examined by the different experts.
[7]
The joint minutes were allowed as:
7.1
Exhibit A: Dr Edeling and Dr
Nqandu
7.2
Exhibit F: Ms De Rooster and Dr
du Plessis
7.3
Exhibit K: Ms Hovsa and Ms
Viljoen
7.4
Exhibit N: Ms Keyter and Ms Moagi
7.5
Exhibit O: Mr Jooste and Ms
Kheswa
[8]
Dr Edeling assessed the Plaintiff on 23 May 2016. He also
interviewed her husband and was availed of the RAF 1 form, hospital
records and the report of Dr Ngqandu. He came to the conclusion
that the Plaintiff sustained soft tissue injuries to the
shoulders,
chest and abdomen; blunt force facial trauma and lower lip
laceration; and a
head injury with moderate to severe traumatic
brain injury
which led to a permanent loss of learning ability,
employment capacity and amenities.
[9]
From the evidence of Ms De Rooster and Mr Jooste it transpired that
the Plaintiff failed grade 10 at school and had to repeat
it.
She passed Grade 12 in 2010 with an average of 42%. In 2012 she
enrolled for a National Senior Certificate (vocational)
in Electrical
Infrastructure Construction at Maluti TVET and completed Level 2
(equivalent to Grade 10) successfully.
She
was registered for Level 3 when the accident occurred on 11 September
2013. In her final examination, after the accident,
she failed
two subjects.
She
enrolled for Level 4 in 2014, but only managed to pass 3 of the 7
subjects. She did not return to write her re-examinations
as
she had lost her bursary. She thus failed the year and has
since been unemployed.
[10]
Ms De Rooster assessed the Plaintiff on 29 November 2017 and 4 May
2018 by using a comprehensive battery of tests and came
to the
conclusion that she is experiencing physical difficulties, behavioral
changes, depression and memory problems as a result
of the accident.
By inter alia comparing her academic results prior to the accident
with those thereafter she came to the
conclusion that the Plaintiff
would not be able to pass NQF4 with the physical difficulties she
experiences since the accident.
As a result she would not be
able to compete successfully in the labour market.
Ms
De Rooster also pointed out deficiencies in the tests applied by the
defendant’s educational psychologist, Dr Du Plessis.
[11]
Ms Hovsa evaluated the Plaintiff on 28 June 2019 by using a number of
tests. She came to the conclusion that the
Plaintiff’s
cognitive flexibility and logical memory were severely compromised as
a result of the injuries she sustained.
She also suffers from
severe depression. Ms Hovsa is of the opinion that the
Plaintiff suffered moderate brain injuries.
[12]
Ms Keyter assessed the Plaintiff on 30 November 2017. She also
testified about the Plaintiff’s present poor memory
and
concentration that do not correlate with her pre-accident
functioning. According to her, the Plaintiff is “practically
unemployable”. Physically she will be able to do unskilled or
semi-skilled work, but will be hindered by her neuro-cognitive
and
neuro-psychological impairments.
[13]
Mr Jooste pointed out that the plaintiff had already completed half
of the course at the time of the accident. Himself
and Ms
Kheswa (for the defendant) agreed on the fact that the Plaintiff
would likely have completed the rest of the course she
enrolled for
was it not for the accident. She would then have been able to start
her career in 2015 as an artisan within the basic
salary of the
Paterson A1 level. At the age of 40 to 45 she would have
advanced to the Paterson B3/B4 level where she would
most probably
have remained until retirement at the age of 65.
After
testing her present ability to work with language and numbers and her
hand-eye coordination he too came to the conclusion
that she is
“practically unemployable”.
[14]
Mr Whittaker based his calculations (per exhibit P) on the joint
minutes of the industrial psychologists, Mr Jooste, Mr Linde
and Ms
Kheswa. He postulated three scenarios for projection of the
Plaintiff’s income earning capacity, taking into
account the R4
500 income that she earned since the accident and applying different
percentage deductions for general contingencies.
He came to the
following results:
Basis 1:
Rendered unemployable
Net
past lost (after 5% contingency deduction)
:
R
376 513.00
Future
net loss (after 15% contingency deduction)
:
R4
429 252.00
Total
net loss
:
R4
805 765.00
Basis
2: Future injured earnings same as uninjured earning, i e
ceiling at B3/B4 level
Net
Past loss (after 5% contingency deduction)
:
R
376 513.00
Future
net loss
(after 35% contingency
deduction on injured income) :
R1 042 177.00
Total
net loss
:
R1
418 690.00
Basis 3: Future
injured earnings R1 500 per month +
inflation until
retirement
Net past loss (after 5%
contingency deduction)
:
R
376 513.00
Net future loss (after
15% contingency deduction)
:
R4
070 034.00
Total
net loss
:
R4
446 547.00
[15]
EVALUATION OF EVIDENCE
This
case has to be decided on the evidence that was presented to court by
the Plaintiff, as the Defendant elected not to call any
witnesses.
All that is on record from the Defendant’s side, is the joint
minutes.
In
Thomas
v BD Sarens
(Pty) (Ltd) [2012] ZAGPJHC 161it was said that where certain facts
are agreed between the parties in civil litigation, the court
is
bound by such agreement, even if it is skeptical about those facts.
Where the parties engage experts who investigate the
facts, and where
those experts meet and agree upon those facts, a litigant may not
repudiate the agreement ‘unless it does
so clearly and, at the
very latest, at the outset of the trial’ (par 11). In the
absence of a timeous repudiation,
the facts agreed by the experts
enjoy the same status as facts which are common cause on the
pleadings or facts agreed in a pre-trial
conference.
In
Bee v Road Accident Fund
2018 (4) SA 366
(SCA) at par
[66] it was stated:
“
Where,
as here, the court has directed experts to meet and file joint
minutes, and where the experts have done so, the joint minute
will
correctly be understood as limiting the issues on which evidence is
needed. If a litigant for any reason does not wish
to be bound
by the limitation, fair warning must be given. In the absence
of repudiation (i e fair warning) the other litigant
is entitled to
run the case on the basis that the matters agreed between the experts
are not in issue.”
[16]
In the joint minute of doctors Ngqandu and Edeling dated 8 September
2019 it is agreed:
2.1 We have found no
evidence of any pre-existing neurological pathological condition or
disability.
2.2 In the motor accident
mrs M sustained soft tissue injuries of the shoulders, chest and
abdomen; facial injuries with lower lip
laceration; and a head injury
with traumatic brain injury.
2.3 Her injuries have
resulted in a permanent neuropsychological disorder with
forgetfulness and short-temperedness, recurrent headaches,
scarring
of the lower lip and a mood disorder.
2.4 In relation to the
neuropsychological sequelae of her brain injury we refer to the
assessment findings of the expert neuropsychologists.
Provision
should be made for future treatment of headaches as set out in our
reports. Plastic surgeons will be deferred to
in relation to
the scarring.
2.5 She reported hearing
loss and vertigo to Dr Edeling, but not to Dr Ngqandu. She
reported lower back pain to Dr Ngqandu,
but not to Dr Edeling.
ENT surgeons and orthopaedic surgeons will be deferred to in relation
to these reports.
2.6 At the time of the
accident she was a 2
nd
year electrical engineering
student. After the accident she had to abandon her studies due
to sequelae of her injuries.
During
the evidence of Dr Edeling it was pointed out by Mr Jeje, for the
Defendant, that Dr Ngqandu has since changed his opinion.
There
was, however, no evidence forthcoming from the Defendant in respect
of this issue.
[17]
There are no aspects of disagreement between the occupational
therapists, Ms Keyter and Ms Moagi in their joint minute (exhibit
N). They agreed, inter alia, that the Plaintiff’s general
functioning is affected by the severe neuro-cognitive and
neuro-psychological injuries she sustained (par 2g); that the
accident has left her a vulnerable individual; that her occupational
potential has been significantly compromised (par 2h) and will make
her a less competitive employee in the open labour market (par
2i).
I
have no qualms in accepting the agreements contained in these joint
minutes.
[18]
As far as the rest of the joint minutes are concerned, there was no
agreement between the different experts (Exhibits F, K
and O).
[19]
I find no reason to doubt the reliability of the findings of Ms De
Rooster, Mr Jooste or Ms Hovsa, especially so in the absence
of any
evidence to the contrary. The methods/tests employed by them to
come to their conclusions seem to me to be sound.
It
is, however, so that they do not have any independent knowledge of
the Plaintiff’s condition prior to the accident. The
matter is
further complicated by the limited academic success of the Plaintiff,
both at school and at TVET. Her losing the
bursary also played
a part in not proceeding with her studies.
On
the other hand it is so that she managed to comply with required
standards until the time of the accident and presently she struggles
to cope at the internet café where she is employed.
[20]
It is common cause between at least the neurosurgeons and the
occupational therapists that the Plaintiff sustained permanent
debilitating injuries which impacts on her employability. She at
least now suffers a diminished earning capacity and may only be
suitable for light/sedentary work.
[21]
LEGAL PRINCIPLES
In
Rudman v Road Accident Fund
2003 (2) SA 234
(SCA) at
par [11] it was said that a physical disability which impacts on the
capacity to an income does not, on its own, reduce
the patrimony of
an injured person. There must be proof that the reduction in
the income earning capacity will result in
actual loss of income.
[22]
In
Herman v Shapiro & Co
1926 TPD 367
at 379 the
court said the following:
“
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is
certain that pecuniary damage
has been suffered, the Court is bound to award damages.”
[23]
In respect of what a fair and adequate compensation to an injured
party should be, the following was said in
AA Mutual
Association Ltd v Maqula
1978 (1) SA 805
(A) at p 809:
“
It
is settled law that a trial court has a wide discretion to award what
it in the particular circumstances considers to be a fair
and
adequate compensation to the injured party for his bodily injuries
and their sequelae.”
[24]
There are no hard and fast rules to be applied in deciding what a
fair and adequate compensation to an injured party should
be.
Arbitrary considerations must inevitably play a part. Any
enquiry into future loss of income is by nature speculative
because
it involves a prediction of the future, as was said in
Southern
Insurance Association v Bailey N
O
1984 (1) SA 98
(AD).
[25]
In respect of actuarial calculations the following was said in
Southern Insurance Association Ltd v Bailey NO
, supra
at 114E:
“…
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”
[26]
CONTINGENCIES
In
exercising its discretion in respect of what fair and adequate
compensation would be, a court must allow a discount for
contingencies
or the “vicissitudes of life”. These
include such matters as the possibility that the plaintiff may in the
result
have less than a "normal" expectation of life; and
that she may experience periods of unemployment by reason of
incapacity
due to illness or accident, or to labour unrest or general
economic conditions. The amount of any discount may vary, depending
upon the circumstances of the case.
See
Van
der Plaats v South African Mutual Fire and General Insurance Co
Ltd
1980
(3) SA 105
(A)
at
114 - 5.
The
rate of the discount cannot of course be assessed on any logical
basis: the assessment must be largely arbitrary and must depend
upon
the trial Judge's impression of the case.
In
Bee v Road Accident Fund
, supra at par [16] it was said
that 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.
[27]
In this matter there are various considerations which impact on the
contingency deduction. The Plaintiff was 21 years
old at the
time of the accident and has no real work record. This makes it
very difficult to assess her career path, especially
taking into
account her limited (pre-morbid) academic abilities and the fact that
she has since had a child.
[28]
In my view a contingency deduction of more than the 15% applied by
the actuary should be applied. On the facts of this
case, I
would accept Mr Whittaker’s Basis III calculations and apply a
contingency deduction of 35% on the uninjured future
loss of
earnings.
Thus:
Uninjured income R5 210 885 – 35% =
R3
387 075
Less
Injured income
R
359
218
Net
future loss
R 3 027
857
Plus
net past lost
R
376 513
Total
net loss
R3
404 370
[29]
It appears from the evidence of Dr Edeling that the Plaintiff may in
future require further medical attention as a result of
the injuries
sustained. An order in terms of
section 17(4)(a)
of the
Road
Accident Fund Act would
thus be appropriate.
[30]
In the result the following order is issued:
1.
The
Defendant shall make payment in the sum of
R3
404 370,00 (
Three
million Four Hundred and Four Thousand Three Hundred and Seventy
Rand
)
(hereinafter referred to as the “capital amount”) to the
Plaintiff’s attorneys, Edeling van Niekerk Inc, in respect
Loss
of Income of the Plaintiff’s claim which amount shall be
payable by direct transfer into their trust account, details
of which
are as follows:
Account
Name :
Edeling
Van Niekerk Inc
Bank
: Nedbank
Branch
:
Business Westrand
Account
number :
[…]
Branch
code
128605
2.
The
Defendant shall pay interest
a
tempore morae
on the capital amount aforesaid at a rate of 10.00% per annum from 14
(fourteen) days after date of this order to date of final
payment.
3.
The
Defendant is to furnish the Plaintiff with an undertaking in terms of
Section 17(4)(a)
for 100% (
One
Hundred Percentum
)
of the costs of future accommodation of the Plaintiff in a hospital
or nursing home or treatment of or rendering of a service
or
supplying of goods to the Plaintiff, after the costs have been
incurred and on proof thereof, resulting from the accident that
occurred on the 11
th
of September 2013.
4.
The
Defendant is liable for the Plaintiff’s taxed or agreed party
and party costs on the High Court scale as well as correspondent’s
fees and the Plaintiff’s lodging and travelling costs in
attending the Plaintiff’s Experts as well as the Defendant’s
Experts as well as trial attendance, which costs shall
inter
alia
include the following:-
4.1
The costs of Counsel;
4.2.
The costs of the Reports of the Plaintiff’s experts which shall
include the preparation and reservation fees and joint
minutes as
well as travelling expenses and lodging costs of the expert
witnesses. The experts being:
4.2.1 Dr G Fredericks –
General Medical Practitioner;
4.2.2 Ms R Hovsha –
Clinical Psychologist (including appearance fee);
4.2.3 Dr HJ Edeling –
Neurosurgeon (including appearance fee);
4.2.4 Dr LA Fine –
Psychiatrist;
4.2.5 Ms L de Rooster –
Educational Psychologist (including appearance fee);
4.2.6 Ms A Crosbie (C
Keyter) – Occupational Therapist (including appearance fee);
4.2.7 Mr L Linde (K
Jooste) – Industrial Psychologist (including appearance fee);
4.2.6
Mr GA Whittaker – Actuary (including appearance fee)
.
4.3.
Attorney’s fees in conducting trial.
__________
VOGES,
AJ
On
behalf of Plaintiff: Adv. A van Dyk
Instructed
by: McIntyre & vd Post
Bloemfontein
On
behalf of
Defendant
:
Mr A Jeje
Instructed
by: Maduba Attorneys
Bloemfontein