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[2019] ZAECBHC 6
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Griffiths v Road Accident Fund (14/2017) [2019] ZAECBHC 6 (12 February 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
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No: 14/2017
In
the matter between:
MPAYIPHELI
BONGANI
GRIFFITHS
Applicant
And
ROAD
ACCIDENT
FUND Respondent
JUDGEMENT
NQUMSE
AJ
Introduction
1.
The plaintiff, a 14 years and 10 months old boy who
was doing grade nine at the time
of the accident that gives
rise to this claim, was on 14 June 2009 at a bus stop at
Mitford in the area of Ntabethemba when
he was hit by a motor vehicle
with registration number: DYG 874 EC, rendering him unconscious
and as a result suffered the
following injuries:
1.1 A severe head
injury with loss of consciousness (Glascow Coma Scale 10/15) ;
1.2 Multiple head
lacerations;
1.3 Mandibular jaw
fracture;
1.4 Left
peri-orbital hematoma and traumatic uveitis and
1.5 Left elbow
sprain and deep abrasion wound right proximal lower leg.
BACKGROUND
FACTS
2.
The accident occurred on a dirt road in Mitford. The sketch plan
denotes the width of the road as 7,5 meters.
The motor
vehicle in question was driven by one Ayanda Dingezweni, the
insured driver.
3.
After the impact, the plaintiff was conveyed to a mini hospital in
Thornhill. Subsequently he was taken to
Hewu Hospital, where it was
opined that due to the severity and seriousness of his injuries he
should be transferred to Frere Hospital
in East London. At Frere
Hospital he remained disorientated for approximately 7 days and he
underwent surgery for the fractured
mandible with wires and plates
inserted. He was further attended by a neurosurgeon, an
ophthalmologist, an orthopaedic surgeon
and a maxilla-facial surgeon.
He was detained in the hospital until 29 June 2009.
4.
In his pleadings plaintiff avers in paragraph 7, that as a result of
his injuries, he underwent hospitalization
and received medical
treatment, he was disabled and disfigured; he suffered pain and loss
of amenities of life. Consequently he
suffered damages as follows:
4.1 He claims R500 000.00
for estimated future medical treatment comprising of:
The costs of conservative
treatment, consultation with doctors, costs of neurological
consultation, orthopaedic surgeon, controlled
x-rays, medication and
transportation to appointments.
4.2 He claims
R5, 923, 900.00 for estimated future loss of employability
as
per the actuarial
calculations.
4.3 He claims R1,
500, 000.00 for general damages for pain and suffering.
5.
Initially, this claim was launched in Johannesburg and it was
enrolled in the Gauteng Local Division sitting
in Johannesburg. The
matter was subsequently transferred to this court despite it being
trial ready in that court. The defendant
disputed merits and
quantum until the last minute on the day of trial, 29 November 2018.
At tea break during the trial the defendant
conceded 100% liability
of plaintiff’s damages and sought an indulgence to be afforded
an opportunity to consult with the
claim handler and to obtain a
mandate in respect of quantum. This caused the matter to be rolled
over to the next day, however,
it could still not be finalised owing
to the same reason of obtaining the necessary mandate. It was
only after 3 days without
any success by the legal representative of
the defendant, that the court had to cause the parties to proceed
with arguing of the
matter.
6.
The plaintiff filed expert reports which eventually were admitted by
the defendant after the experts were flown
in from Johannesburg. The
reports are from the following experts:
6.1 Dr TM Ramakgopa
(Orthopeadic Surgeon)
6.2 Prof. Lekgwana
(Neurosurgeon)
6.3 Margaret Anne Gibson
(Neuropsychologist)
6.4 Clara Tsatsawana
(Occupational Therapist)
6.5 Elna Roussow
(Industrial Psychologist) and
6.6 Amith Haribhai (
Actuary)
7.
Although it
was left until the last minute, counsel for the defendant conceded
that albeit not tendered by the defendant, that plaintiff
will
require future medical treatment and consequently plaintiff’s
claim for future medical expenses should be covered by
an undertaking
or certificate in terms of section 17(4) of the Road Accident Fund
Act.
[1]
8.
The concern goes also for the general damages which defendant is not
contesting, save to mention that notwithstanding
the R1, 500, 000.00
claimed, a reasonable amount to be awarded is within the court’s
discretion. He referred
the court to case law, more
particularly Manewel v AA Onderlinge Assurasie Assosiasie Bpk 1967
(1) C&B755(C) and Hendriks v
Minister of Safety and Security
2016(6) QOD A4 – 34 (ECG). In both cases the plaintiffs
suffered head injuries and sequelae
thereof, however according to the
defendant’s counsel they were a bit more severe than the
plaintiff’s in this case.
He therefore argued that a
reasonable award should be between R750, 000.00 and
R800, 000.00.
9.
Despite admitting the actuarial report the defendant’s
submission is that taking into account the age
of the plaintiff, his
projected working life, such as illness, early death and
unemployment, it opined a 25 % contingency deduction
on plaintiff’s
future uninjured income as more realistic and that would give an
amount of R5, 258, 304.75 and a
20 %contingency on the
future injured income which would amount to R173 021.00. A
deduction of the future injured income
from the future uninjured
income would give the plaintiff a nett future loss of
R5, 085, 283.75. It was further
submitted that if the
same contingencies of 25 % could be applied in respect of past
uninjured income of R175 929.00 and a
20 % in respect of past
injured income, this would leave plaintiff with a net past income of
R123 891.40. The result
is that the plaintiff’s
reasonable loss of income would be in the amount of R5, 209, 175.15.
10.
Accordingly, the only items of the claim which I am called upon to
determine are the plaintiff’s future loss of earnings
and a
reasonable award of general damages. In this regard I turn to
deal with the expert report briefly. The Neuropsychologist,
Ms
Gibson, had indicated that in between 2 assessments which she has
done over a period of 3 years, the plaintiff has instead regressed
dramatically. Of most significance is her conclusion that the
brain injury was a watershed in the life of the plaintiff.
That
no further improvement in the functioning of plaintiff is likely to
occur from her perspective as a Neuropsychologist.
Plaintiff
remains with neurocognitive, neurobehavioral and neuroaffective as
well as neurophysical difficulties consistent with
brain injury.
11.
The Orthopaedic Surgeon, Dr Ramokgopa, indicates that the plaintiff’s
current chronic headache and personality change
are a direct
consequence of the severe head injury he had suffered. The
plaintiff has a poor vision to the left eye.
He has been left
with a feri-orbital heamatoma. His elbow that was sprained in
the accident has stiffness, although with
a fair range of motion,
which is accounted for by the sprain injury at the time of the
accident.
12.
The Neurosurgeon, Professor Lekgwara, concludes that the plaintiff
has some neuropsychological problems which need to be assessed
by a
Clinical Psychologist. His prognosis is that the plaintiff
suffers from post-concussion headaches. That there
is a 10 to
20 % chance of the plaintiff developing epilepsy, treatment of which
will cost approximately R15 000, 00 per annum.
His further
prognosis is that their literature records that 80 % of patients who
suffer from post-concussion headaches recover
within a period of 2 –
3 years. However, the remaining 20 % of patients remain with
chronic symptoms. According
to his opinion is that a
spontaneous resolution of these headaches the plaintiff suffers from
is not expected, taking into account
that it has been 9 years since
the accident. Treatment for the headaches will cost up to
R3 000, 00 per annum.
13.
The Occupational Therapist, Ms Clara Tsatsawane, concurs with the
Neurosurgeon on the issue of plaintiff’s total loss
of
employability. She concludes that the plaintiff is not a
preferred candidate in the open labour market owing to his accident
related injuries. It is her contention that plaintiff qualifies
for general damages and he should undergo 10 (ten) sessions
with an
Occupational Therapist at a cost of R750, 00 per session.
She further recommends that plaintiff should have
30 (thirty)
sessions with a Clinical Psychologist/Psychiatrist at the rate of
R1 200, 00 per session. She also allocated
an amount of
R9 000, 00 for care giver / home facility should the plaintiff’s
condition deteriorate and become disabling
due to organic disorder.
14.
The Industrial Psychologist, Elma Rossouw, notes that the plaintiff
with a Matric level of education would have been able to
compete for
a sedentary type of work. She further opines that he is not
likely to have had any physical, emotional and cognitive
restrictions
since he was reportedly healthy prior the accident life. It is
her further opinion that the plaintiff left his
previous employments
due to sequelae of the accident namely, pain and inability to perform
certain duties. Having taken
regard of the other expect
reports, she opines that the plaintiff’s prior test results
when she assessed him, compiled with
his chequered work record and
intermittent periods of unemployment, the plaintiff will be totally
unemployed in about five (5)
years’ time. She also confirms
that the plaintiff’s amenities, qualities of life and life
enjoyment have been negatively
impacted by the accident of 14 June
2009 and its sequelae.
15.
The Actuary, Amith Haribhai, taking into account the
plaintiff’s residual difficulties and various factors in the
open labour market, he allocated higher than normal contingency for
the past morbid loss of income. He applied more than
the normal
contingency deductions in his calculations, at 20 % on the injured
income and 40 % on the uninjured income. Counsel
for the plaintiff
submits that if the court is inclined to interfere with the
contingency assumptions of the actuary, it must apply
the normal
contingency deductions which are 5 % for the uninjured income and 15
% for the injured income.
16.
It is trite
that general contingencies cover a wide range of consideration which
may vary from case to case.
[2]
As already indicated that at the time of the accident the victim was
14 years of age. He is relatively of young age
and as was
stated in Bee v Road Accident Fund
[3]
the younger the victim the longer the period over which the
vicissitudes of life will operate and the greater the uncertainty
assessing the claimant’s likely career path.
In
Road Accident Fund v Keridge
[4]
Nocholls AJA writing for the majority judgment stated as follows:
“
Some general rules
have been established in regard to contingency deductions, one being
the age of a claimant. The younger
the claimant, the more time
he or she has to fall prey to vicissitudes and imponderables of
life. These are impossible to
enumerate but as regards future
loss of earning they include, inter alia, a downturn in the economy
leading to reduction in salary,
retrenchments, unemployment,
ill-health, death and myriad of events that may occur in one’s
everyday life. The longer
the remaining working life of a
claimant, the more likely the possibility of an unforeseen event
impacting on the assumed trajectory
of his or her remaining career.
Bearing this in mind, courts have, in a pre-morbid scenario,
generally awarded higher contingencies,
the younger the age of the
claimant. This court in Guedes
[5]
,
relying on Koch’s Quantum Yearbook 2004, found the appropriate
pre-morbid contingency for a young man of 26 years was 20
percent
which would decrease on a sliding scale as the claimant got older.
This of course depends on the specific circumstances
of each case but
is a convenient starting point.”
17.
Taking into consideration that the claimant is 24 years old, and his
surrounding circumstances, I am inclined to accept the
submissions by
Mr Bester for the fund who suggested that a 25 % contingency to be
applied for future uninjured income and a 20
% be applied for future
injured income as more reasonable. The same percentage be
applied for past uninjured income at 25
% and past injured income at
20 % leaving claimant with a reasonable loss of income of
R5, 209, 175.15.
18.
In regard
to general damages I find the approach in Sandler v Wholesaler Coal
Supplies Ltd
[6]
very instructive
where the following is stated.
“
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 on the Judge’s view of what is fair in all
the circumstances of the case.”
19.
I have been
referred to a number of cases by counsel for the plaintiff in which
general damages were awarded. Whilst I find
those helpful it is
has been stated in the matter of Bay Passenger Transport v
Frainzan
[7]
that
“
Comparable cases,
when available should rather be used to afford some guidance in a
general way, towards assisting the court in
arriving at an award
which is not substantially out of general accord with the previous
and broadly similar cases, regard being
had to all the factors which
are considered to be relevant in the assessment of general damages.
At the same time it may
be permissible in an appropriate case to test
any assessment arrived at upon this basis by reference to the general
pattern of
previous awards in cases where the injuries and the
sequelae may have been either more serious or less than those in the
case under
consideration.”
Having
regard to the reports of the experts more particularly that of the
Industrial Psychologist I am of the view that an amount
of
R1, 200, 000.00 for general damages would be an appropriate
award.
20.
Turning to
the question of events, the less said about the conduct of the
defendant in handling the matter the better. However,
the court
is unable not to express its displeasure in the ineptness of the
officials of the Fund in causing such an inordinate
delay and the
attended burden of costs to the taxpayer. What is mostly
lamentable is the arrogance of the officials of the
Fund;
disregarding the many frustrations suffered by our courts in the
delinquent manner they handle these matters. I find
no better
way to express the court’s displeasure than the articulation of
Davis J in Mashiqa v Road Accident Fund
[8]
when he stated
“
There is a
disconcerting number of these trials where the facts pertaining to
the merits are either common cause or undisputed but
in any event
would in all probability result in 100 % liability of the Fund yet
the merits remain contested until the last moment.
Many of
these include claims on behalf of minor pedestrians or passengers.
In an equally disconcerting number of these cases
the answer to the
question by the court as to why merits had not settled or conceded is
given by counsel or attorney representing
the Fund as being a lack of
instruction from the Fund.”
The
learned Judge continues to vent his frustration and said:
“
By its own
inaction the Fund has therefore not only increased the pain and
suffering of an innocent plaintiff but also increased
the amount of
public funds to be paid in respect thereof. In all probability
this will be the same consequence in other cases
where similar delays
occur. The unsatisfactory manner in which the Fund conducts its
litigation in this court therefore has
a public element.”
21.
Despite the matter being a relatively straightforward one, the manner
in which this case has been litigated by the defendant
fits in all
fours with the situation described by Davis J above. Despite
the defendant not providing counter expect reports
having received
plaintiff’s as early as 2016, it refused to concede merits
until the day of trial. Even then, counsel
for the Fund could
tender no undertaking for lack of instruction from the claim
handler. The call by the counsel for the
plaintiff to summon
the claim handler to court and to proffer an explanation on his or
their ineptitude is not an unreasonable
request. However, owing
to the further delay in finalising this matter and the consequent
costs likely to be incurred I declined
the invitation and suffice to
order that the defendant pays costs on a punitive scale.
22.
In the draft order prepared by the plaintiff, the court had been
requested to order the creation of a Trust Account at ABSA
Trust.
In
the result I order as follows:
1.
The merits having been settled between the parties, the
Defendant is liable for 100 % of the Plaintiff’s
damages.
2.
The Defendant pay to the Plaintiff the amount of :
R1,
200,000.00 (One Million Two Hundred Thousand Rand only) in respect of
general damages.
2.1
R5, 209,75.15 (Five Million Two Hundred and Nine Thousand One Hundred
and Seventy Five Rands and Fifteen Cents)
in respect of loss of
future income.
2.2
The monies to be paid into the Plaintiff’s Attorney Trust
Account:
ACCOUNT
HOLDER
: M. Ndima Incorporated
BANK
: Standard Bank
BRANCH
NAME
:
Carlton Centre
ACCOUNT
NUMBER
: 0…
BRANCH
CODE
: 0…
TYPE
OF ACCOUNT
: Cheque Account
3.
The Defendant will furnish to the Plaintiff with an undertaking in
terms of Section 17 (4) (a) of
Road Accident Fund, Act 56 of 1996
to
pay the costs of the future accommodation of the plaintiff in a
hospital or nursing home, or treatment of or rendering of a
service
or supplying of goods to him, arising from injuries sustained by him
in a collision, on 14 June 2009 after the costs have
been incurred.
4.
The Defendant shall pay the Plaintiff’s taxed or agreed
attorney and client costs on the High Court scale,
to date, subject
thereto that such costs shall include the following:
4.1
The costs of Plaintiff’s counsel;
4.2
The costs of all medico-legal reports, addendum reports and joint
reports served by the Plaintiff, as well as such
reports furnished to
the Defendant or it’s attorney;
4.3
The qualifying fees of the experts referred to and listed in the
Court Order dated 30 October 2018;
4.4
The reasonable costs incurred by and on behalf of the Plaintiff, as
well as the costs consequent to attending the
medico-legal
examinations;
4.5
The costs of all necessary witnesses and a Plaintiff who attended
court.
5.
The Plaintiff is directed to cause a trust (“the Trust”)
to be established in terms of the Trust
Property Control Act 57 of
1988.
6.
The Trust instrument contemplated in paragraph 5 above shall make
provision for the following:
6.1
The Plaintiff (Bongani Griffits Mpayipheli) is to be sole beneficiary
of the Trust;
6.2
The Defendant shall be responsible for costs related with the
establishment and administration of a Trust in terms
of
Section
84(1)(b)
of the
Administration of Estates Act 66 of 1965
as amended
according to the prescribed tariff applicable to curators as
reflected in the Government Gazette notice R 1602 of 1
July 1991
specifically paragraph 3(a) and 3(b) of the Schedule thereto;
6.3
The trustee(s) administration costs shall be borne by the Defendant;
6.4
The trustee(s) are, if so required, to provide security to the
satisfaction of the Master of the High Court;
6.5
The ownership of the trust property vests in the trustee(s) of the
Trust in their capacity as trustees;
6.6
Procedures to resolve any potential disputes, subject to the review
of any decision made in accordance therewith
by the Honourable Court;
6.7
The amendment of the trust instrument is subject to the leave of this
Honourable Court;
6.8
The reasonable costs incurred in the provision of the security to the
satisfaction of the Master of the High Court
for the administration
of the award and the annual retention of such security to meet the
requirements of the Master in terms of
Section 77
of the
Administration of Estates Act.
>______________________
VM
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant: Adv Babalo Metu Instructed by M. Ndima
Incorporated c/o Mandla Falithenjwa INC.
KING WILLIAM’S
TOWN
For
the respondent : Adv Johan Bester Instructed by Smith Tabata
Attorneys, KING WILLIAM’S TOWN
Date
heard
: 4 December
2018
Date
judgment delivered
: 12
February 2019
[1]
See par 5 of Defendant’s Heads of Argument.
[2]
Robert J Koch The Quantum Yearbook (2015) at 120
[3]
2018(4) SA 366 SCA at par 116
[4]
RAF v Keridge (1024/2017)[2018] ZASCA 151 (01 November 2018) at par
44 (Reportable)
[5]
Road Accident Fund v Guedes
[2006] ZASCA 19
,
2006 (5) SA 583
(SCA)
(Guedes) par 8
[6]
1941 AD 194
at 199
[7]
1975 (1) SA 269
(A) at 274
[8]
(2120/2014) [2018] ZAGPP HC 539 (13 June 2018)