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[2018] ZAGPPHC 441
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Salmons v RAF (67403/2013) [2018] ZAGPPHC 441 (14 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
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Policy
REPUBLIC
OF SOUTH AFRJCA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
67403/2013
14/2/2018
In
the matter between:
SALMONS
TL
Plaintiff
And
RAF
Defendant
Date
heard: 2 February 2018
Date
delivered: 14 February 2018
JUDGEMENT
STRIJDOM
AJ:
[1]
This is an action for damages in terms of the
Road Accident Fund Act
56 of 1996
as amended (the Act) pursuant to a motor vehicle collision
on 25 December 2012. The plaintiff, then 20 years old, was a
passenger
in a vehicle which collided with another.
[2]
The plaintiff sustained the following
injuries:
2.1
Head injury with frontoparietal
haemorrhagic contusion to the brain.
2.2
Degloving laceration vault of skull.
2.3
Ten centimetres laceration frontal
forehead.
2.4
Mandible fracture on the left requiring
an open reduction internal fixation.
2.5
Loose teeth
[3]
The key question for determination is whether the plaintiff would,
but for the accident,
attained a degree or diploma.
[4]
The defendant has conceded full liability for the plaintiffs proven
damages. The plaintiffs
general damages have been agreed upon in the
amount of R500 000. With regard to future medical expenses the
defendant has agreed
to furnish the plaintiff with an undertaking in
terms of
section 17(4)(a)
of the Act. Accordingly the only issue for
determination is the quantum for loss of earnings or earning capacity
and contingency
deduction.
[5]
The parties agreed to the submission s of a number of expert reports
as the only evidence
to be adduced for purpose of quantification of
the plaintiff’s damages. Argument before me was directed at
whether the plaintiff
would have obtained a degree or diploma but for
the accident.
[6]
The following expert reports were
obtained by the plaintiff:
6.1
Dr TP Moja (Neurosurgeon)
6.2
DT Preininger (Neuropsychologist)
6.3
Prof Seabi (Educational Psychologist)
6.4
Dr Pienaar (Plastic Surgeon)
6.5
Dr Ivan Marx (Dentist)
6.6
M du Plooy (Audiologist)
6.7
ProfTshifularo (Ear Nose & Throat
Specialist)
6.8
Prof FJ Jacobs (Maxilla Facial and Oral
Surgeon)
6.9
Dr Fredericks (Disability and Impairment
Assessor)
6.10
Dr Sissison (Clinical Psychologist)
6.11
Megan Spavins (Occupational Therapist)
6.12
Jacobson Talmud Counselling (Industrial
Psychologist)
6.13
Gerhard Jacobson (Actuary)
[7]
The following expert reports were
obtained by the defendant:
7.1
Dr NEM (Occupational Therapist)
7.2
Dr E Tromp (Clinical Psychologist)
7.3
Caro Cilliers (Industrial Psychologist)
Common
Cause Facts
[8]
The plaintiff obtained her national
senior certificate with an endorsement decided towards a diploma in
2010. She aspired to qualify
as a teacher and was planning to apply
to study at Pentech , Cape Town in 2013. Her uncle and cousin or
teachers played a significant
role in influencing her career
aspiration. She would have studied full-time with support from her
father and bursaries. She was
a cashier at the time of the accident.
[9]
Dr Preininger a Neuropsychologist
concluded that pre-morbidly the plaintiff feared well academically
and there were no adverse factors
evident in a biographical history
that would have had a negative effect on her functioning and but for
the accident the plaintiff
estimated potential fell within the
average range. In terms of her academic and vocational functioning
her noted difficulties with
concentration and focus would have a
negative impact on her ability to study at a tertiary level.
Furthermore her problems with
verbal memory functioning would
influences and retrieve information learned in the classroom contact.
[10]
In her current work context it appears that her performance has been
affected negatively by her
neurocognitive changes rendered a
vulnerable employee as a consequence of the accident.
[11]
The defendant's expert, E Tromph a
Neuropsychologist also concluded that the plaintiff suffers from
fluctuating attention below
average memory and concentration below
average auditory narrative memory, below average learning abilities
and slowed psychomotor
speed abilities.
[12]
Prof Seabi, an Educational Psychologist
is of the opinion that as a result of the accident the plaintiff has
been left with cognitive
and academic difficulties which include
borderline verbal cognitive functioning with difficulties to
sustained focus and retrieval
information as well as slow psychomotor
speed. If she were to pursue post matric qualification, she wouldn't
be able to cope with
the demands of diploma or certificate. Given the
accident, it is unlikely that the plaintiff will be able to cope with
the demands
of a diploma or high certificate. Although she aspires to
be a teacher she won't be able to cope with the demands of post
matric
qualification. Grade 12 will remain the highest level of
education.
[13]
The occupational therapists in the joint
minutes agree that the probability of the plaintiffs functional
capacity been permanently
compromised with regards to ability to
study and work as a teacher is high.
[14]
The Industrial Psychologist - T Talmud postulates the following
pre-morbid scenario
:
14.1
She would have followed the same post morbid career to date.
14.2
Within three to five years from October 2017 she would have commenced
a part time diploma which she would have completed
in three
years on a part-time basis. This time frame allows sufficient time
for her to save funds to commence and complete a part-time
diploma
14.3
Within one or two years from completion of the diploma she would have
secured employment earning a basic monthly salary
in time with the
Patterson B-4 median level. In the following year she would have
received additional benefits earning a total
annual package in time
with the B-4 median level.
14.4
She would have reached her career ceiling level between the ages of
45 and 50 at which stage she would have been earning
a total annual
package in line with the Paterson C4/C5 median level.
14.5
Thereafter she would have received inflationary increases until
retirement at age 65.
[15]
In the post morbid scenario the expert
is of the view that:
15.1
She will continue to work in her current
capacity
15.2
She will reach her career ceiling
between the ages of 45 and 50, earning a total package in line with
the Peterson B2/B3 median
level.
15.3
Thereafter she will receive annual
inflationary increases until normal retirement at the age of 65.
[16]
The actuary - G Jacobson calculated the
pre- and post morbid income of the plaintiff as set out in the
postulation of the industrial
psychologist supra. He applied a 20%
contingency to the value of the plaintiff s income having regard to
the accident.
[17]
The
legal position relating to a claim for diminished earning capacity is
trite. In
Santam
Versekeringsmaatskappy Bpk v Byleveldt
[1]
Rumph
JA states the principle as follows:
Die
vermoensvermindering moet wees ten opsigte van iets wat op geld
waardeerbaar is en sou insluit die vermindering veroorsaak deur
'n
besering as gevolg waarvan die benadeelde nie meer enige inkomste
lean verdien nie of alleen maar 'n laer inkomste verdien.
Die verlies
van geskiktheid om inkomste te verdien, hoewel gewoonlik gemeet aan
die standaard van verwagte inkomste, is 'n verlies
van geskiktheid en
nie 'n verlies van inkomste nie.
"
[18]
It
was stated in Prinsloo v RAF
[2]
that:
"
A person all-round capacity to earn money consist, inter alia of
individuals talents, skill including his/her present position
and
plans for the future, and of cause, external factors over which a
person has no control
... "
[19]
The defendant is not in agreement with
the plaintiff that the plaintiff would have pursued her studies to
become a teacher. In the
present matter, the dispute revolves around
the plaintiff's probable career path before or after the accident.
[20]
In my view having considered all the
common cause facts and expert opinions , it is highly probable that
the plaintiff would have
progressed to become a teacher or would have
reached her educational plateau at diploma level. In my view the
plaintiff's disability
giving rise to a diminished earning incapacity
was proved and that her incapacity constituted a loss which
diminished her estate.
[21]
Both parties agreed at the outset of the
trial that the contents of the expert reports should be admitted as
evidence and that the
contents of such reports be treated as being
true and correct without a need of calling witnesses who had made
those statements.
[22]
I am prepared to treat the actuarial
calculations and all statements relevant thereto which appear in the
reports submitted to the
court as true and correct.
[23]
The
locus classicus on contingency deduct ions is the judgment of
Nicholas JA at 116 -117 of the Southern Insurance Association
v
Bailey NO :
[3]
"Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable
actuarial
calculations". He has "a large discretion to award what he
considers right" (per HOLMES JA in
Legal
Assurance Co Ltd v Bates
1963 (]) SA 608
(A) at 614F). One of the elements in exercising that discretion is
the making of 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 he 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."
[24]
In the result, I find that the amount of
damages to be paid by the defendant should be the following:
1.
General damages: R500 000
2.
The amount of loss of earnings will be
calculated as follows:
(a)
Value of income, but for the accident,
R6 552 253 les
s 20%
(b)
Value of income now that the accident
occurred, R283 746 less 20%
Nett
future loss: R3 070 805.
[25]
The draft order marked " X" is
made an order of this court.
J.J.
STRIJDOM
ACTING
JUDGE OF THE GAUTENG DIVISION
HlGH
COURT OF SOUTH AFRICA
For
the plaintiff:
Adv. K. Strydom
Instructed
by:
Ehlers Attorneys
For
the defendant:
Adv. Bokaba
Instructed
by:
Mkhonto & Ngwenya Inc.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 67403/2013
On
the 2
nd
day of February 2018 , before the Honourable Judge
Strijdom (AJ) in Court 6D.
In
the matter between:
TIFFANEY
LEE-ANN
SALMONS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DRAFT
ORDER
By
Agreement between Parties:
IT
IS ORDERED THAT:
1.
Merits
are
settled at 100% in favour of the Plaintiff;
2.1
The Defendant to pay the Plaintiff an amount of R
3 070 805
(Three million seventy thousand and eight hundred and five
RAND)
the Plaintiff’s claim for Loss of Earnings, payable within
fourteen days into the Plaintiff’s attorneys of record
trust
account with the following details:
Account
Holder : Ehlers Attorneys
Bank
Name :
FNB
Branch
Code : 261550
Account
Number: [….]
2.2
The interim payment of R300 000.00 is to be deducted from the
amount in paragraph 2.1, in
the event that said interim payment has
in fact been paid to the Plaintiff by the Defendant.
3.
The
Defendant to pay the Plaintiff an amount of R 500 000.00 (Five
hundred thousand rand alone) the Plaintiff’s claim for
General
Damages, payable within fourteen days into the Plaintiff's attorneys
of record trust account with the following details:
Account
Holder :
Ehlers Attorneys
Bank
Name :
FNB
Branch
Code:
261550
Account
Number :
[….]
4.
The
Defendant will not be liable for interest on the above mentioned
amount, save in the event of failing to pay on the due date,
in which
event the Defendant will be liable to pay interest on the outstanding
amount at a rate of 10,25%per annum.
5.
The
Defendant is ordered to pay the Plaintiffs taxed or agreed party and
party costs, including wasted costs -
if
any
on High Court scale, which
costs will include, but will not be limited to the following,
subject
to the discretion of the Taxing Master:,
whichever costs have not been paid
yet in terms of the previous draft order.
5.1
The reasonable taxed fees for consultation with the experts mentioned
below, together with delivery
of expert bundles including travelling
and time spent travelling to deliver such bundles, preparation for
trial, qualifying and
reservation fees
(if any and on proof
thereof)
,
as well as costs of the reports, addendum
reports, joint minutes and attendance fees of the following experts,
and subject to the
discretion of the Taxing Master:
5.1.2
Dr Moja - Neurosurgeon;
5.1.2
Dr Preininger - Neuropsychologist;
5.1.3
Prof Seabi - Educational Psychologist;
5.1.4.
Dr Marx - Dentist;
5.1.5.
Dr. Pienaar - Plastic and reconstructive
surgeon;
5.1.6.
M. Sissison - Clinical Psychologist;
5.1.7.
M. Spavins - Occupational Therapist;
5.1.8.
T. Talmud - Industrial Psychologist;
5.1.9.
Gerard Jacobson - Actuary;
5.1.10.
5.1.10M Du Plooy -Audiolgist;
5.1.11
Prof Tshifularo - ENT;
5.1.12
Prof Jacobs - Maxillo - Facial and Oral
Surgeon; and
5.1.13
Dr Fredericks - Disability &
Impairment Assessor.
5.2
The
costs of accommodation and transporting the Plaintiff and a family
member, with JT Transportation Services or any other transportation
service provider, to the medical legal examination(s) arranged by
Plaintiff and Defendant.
5.3
The
costs of an Interpreter to the medical legal examination(s) arranged
by Plaintiff and Defendant.
5.4
The
costs of transport with JT Transportation Services or any other
transportation service provider and accommodation for the Plaintiff
and a family member, to attend Court on 2 February 2018.
5.5
The
costs of an Interpreter to attend Court on 2 February 2018 (If any).
5.6
The
costs for the Plaintiffs attorney travelling to and spending time
travelling to pre-trial conferences and attendance at pre-trial
conferences by the Plaintiffs attorney.
5.7
The
costs for preparation of Plaintiffs bundles of documents for experts,
as well as the travelling costs and time spent to deliver
these
bundles.
5.8
The
costs of Plaintiffs counsel, Advocate K Strydom, for the preparation
and drafting and settling costs of common cause facts and
heads of
argument.
6.
The
Defendant is ordered to pay the Plaintiffs taxed and/or agreed party
and party costs within 14 days from the date upon which
the accounts
are taxed by the Taxing master and/or agreed between the parties.
7.
Should
payment of taxed costs not be effected timeously, Plaintiff will be
entitled to recover interest at the rate of 10.25% on
the taxed or
agreed costs from date of allocator to date of payment.
Adv.
for Plaintiff: Adv. K Strydom (076 096 7523)
For
Defendant: Adv. M.H. BOKABA (082 506 0247)
BY
ORDER - REGISTRAR
[1]
1973 (2) SA 146
(A) at 150 B - D
[2]
2009 (5) SA 406
(SE)
[3]
1984 (1) SA 98
(A)