About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 458
|
|
Gunter v Road Accident Fund (5170/2016) [2018] ZAGPPHC 458 (16 March 2018)
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 (GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTBALE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
5170/2016
16/3/2018
In
the matter between
GUNTER:
TIAAN
Plaintiff
and
Road
Accident
Fund
Defendant
JUDGEMENT
A.
INTRODUCTION
1.
The
Plaintiff was severely injured on 3 April 2012 when a motor vehicle,
in which he was a passenger, overturned.
2.
Action
was instituted against the Defendant on 6 March 2017 and the
following orders was made:
2.1
Merits
were conceded;
2.2
Defendant
was ordered to pay R600 000.00 to the Plalntiff in respect of general
damages; and
2.3
An
undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act, was ordered.
3.
At
the pre-trial conference held on 16 November 2017, the Plaintiff
decided not to persist with this claim for past hospital and
medical
expenses.
4.
The
matter was enrolled for hearing on 22 November 2017 in respect of
quantum future loss of earnings only. There were 9 expert
reports
filed in terms of Rule 36(9)(b) in respect of the Plaintiff is
quantum claim. The Defendant flied 5 expert reports to counter
the 9
reports filed by the Plaintiff. These reports were from the neuro
surgeon, educational psychologist, occupational therapist;
industrial
psychologist and actuary.
5.
In
terms of the minutes of the pre-trial held on 16 November 2017, the
Defendant was requested to admit the balance of Plaintiff's
expenses
reports and revert to the Plaintiff by noon on 20 November 2017 and
failed to do so by the registered date; as a result
thereof the
Plaintiff's reports would be deemed to be admitted. Therese reports
that were deemed to be admitted were the following:
5.1
Independent Medical Examiner (Dr.
T.JEnslin}
5.2
Orthopedic surgeon Dr. I Liebenberg
5.3
Ophthalmologist (Dr. N. Cornelius); and
5.4
Mr B. Mallinson (neuropsychologist).
6.
Joint minutes were obtained from:
6.1
the
neurosurgeons (De Klerk on behalf of Plaintiff and Dr. Mazwi on
behalf of the Defendant;
6.2
the
educational psychologist (Mr Prinsloo on behalf of Plaintiff and Ms
Sepenyane on behalf of Defendant;
6.3
the
occupational therapists (Ms Pretorius on behalf of the Plaintiff and
Ms Hudson on behalf of Defendant; and
6.4
the
industrial psychologists (Mr. Prinsloo on behalf of Plaintiff and Ms
Ratala on behalf of Defendant).
7.
The
parties agreed that the joint expects minutes of the neuro-surgeons
would form part of the evidence.
8.
At
the hearing of this matter, the Defendant’s legal
representative had not reverted to the Plaintiff's legal
representative
about the admission of the balance of Plaintiff's
experts reports. The agreed date by which this admission had to be
done was 20
November 2017, failing which the Plaintiff's expert's
reports was to be deemed to be admitted.
9.
The
experts reports that are deemed to be admitted are as follows:
9.1
Dr TJ Enslln (Independent Medical
Examiner);
9.2
Dr F Liebenberg (Orthopedic Surgeon);
9.3
Dr N Cornelius (Ophthalmologist); and
9.4
Mr B Mallison (Neuropsychologist).
10.
Joint minutes of the pre-trial
conference were obtained from:
10.1
the
neurosurgeons (Dr. de Klerk on behalf of Plaintiff and Dr. Mazwi on
behalf of Defendant);
10.2
the
educational psychologist
(Ms.
Prinsloo on behalf of Plaintiff and
Ms. Sefenyane on behalf of Defendant);
10.3
the
occupational therapists (Ms. Pretorius on behalf of Plaintiff and Ms.
Hadson on behalf of Defendant); and
10.4
the
industrial psychologists (Ms. Prinsloo on behalf of Plaintiff and Ms.
Ratala on behalf of Defendant.)
11.
The
parties have agreed that the joint expert minutes of the
neurosurgeons would form part of the evidence.
12.
The
Plaintiff abandoned the pass loss of income, as a consequence, only
future loss of income would be agreed. In this regard, Plaintiff
s
legal counsel submitted that the appropriate award for future loss of
income should be the same of R4 459 155.00 (four million
four hundred
and fifty-nine thousand one hundred and fifty-five rand).On the other
hand, the submission made on behalf of Defendant
is that the sum of
R2 973 096.00 {two million nine hundred and seventy-three thousand
and ninety-six rand) for future loss of income
to the Plaintiff would
be appropriate under the circumstances.
B
THE EVIDENCE
13.
Recording for the admitted reports, the
following injuries were submitted by Plaintiff:
13.1
a
mild diffuse traumatic brain injury;
13.2
a
mandible fracture, a comminuted fracture of the anterior and lateral
wall of the left maxillary sinus;
13.3
as
injury to the left shoulder and right foot, and abrasions and
lacerations.
14.
Plaintiff was admitted in hospital on 3
April 2012 and discharged on 4 April 2012. It is common course that
the following injuries
were suffered by the Plaintiff:
14.1
a mild diffuse traumatic;
14.2
a mandible fracture;
14.3
a zygomatic arch fracture;
14.4
a comminuted fracture of the anterior
and lateral wale of the left maxillary sinus;
14.5
as injury to the left shoulder and right
foot; and
14.6
abrasions and lacerations.
15.
According to Dr Theo Enslin's report,
Plaintiff had loss of consciousness for approximately 20 minutes
after accident. He was treaded
conservatively for his head, mandible
fracture, zygomatic arc fracture, left shoulder and left boot. The CT
scan of the brain reported
as normal according to the reports by Dr
De Klerk.
16.
When the neuropsychologist Mr. Mallinson
("Mallinson"), inspected the doctor's notes of Waterfall
City Hospita'ls records,
the doctor's notes were not included therein
and as such no GCS records existed. Based on the CT Scan of the brain
the radiologist
noted, according to Millinson, that "despite
severe facial bone fractures ls in tracranial bleeds or raised
intracranial pressure
is identified".
17.
Mallinson recorded that although
Plaintiff condition has stabilized and that he is functioning again,
although not nearly at the
same level as before the accident, he was
still suffering from the following
sequelae
as a result of the injuries
sustained in the collusion:
17.1
He
complains of daily intense headaches which lasts all day and result
is him becoming irritable;
17.2
A
definite decline in his short-term memory;
17.3
He
has become slightly intolerant and aggressive at times;
17.4
He
has pains in his limbo-sacral region, which is aggravated by
standing, walking, running, negotiating stairs, including and uneven
terrain.
18.
Mallinson is of the view that in future,
Plaintiff would still require various forms of treatment as therapy,
such as:
18.1
Psychotherapy;
18.2
Occupational therapy;
18.3
Physiotherapy; and
18.4
Scar revision surgery.
19.
Mallinson assessed Plaintiff making use
of the tests detailed in his report, as being the least and
appropriate measures available,
given Plaintiff's age, language group
and level of education. He believes neuropsychological test results
should be interpreted
against the benchmark of the individual’s
estimated level of pre - accident functioning, which is usually
determined by examining
the individual's highest level of functioning
prior to the accident. In this instant case, Malllinson used
Plaintiffs senior certificate
results. He is of the opinion that
Plaintiffs pre- accident level of functioning is estimated to have
been in the superior range.
20.
Mallinson also assessed Plaintiffs
attention and working memory making use of the tests mentioned in his
report. According to his,
Plaintiffs variable performance results
suggest auditory attention difficulties. Plaintiffs performance was
marginally below the
level expected and indicates poor auditory
attention difficulties. Plaintiffs performance was marginally below
the level expected
and indicated poor auditory attention and
difficulty with working memory. Mallinson spires that the poorer than
expected performance
on same of the least was probably due to the
following neuropsychological difficulties:
20.1
poor auditory attention;
20.2
difficulty with working memory;
20.3
psychomotor slowing;
20.4
poor visual attention;
20.5
poor incidental visual memory;
20.6
poorer than expected acquisition of
information into vital memory.
21.
Mallinson furthermore opines that the
aforesaid neuropsychological difficulties fall into the mild-to
moderate category. He concluded
that while Plaintiff has been able to
complete his professional qualification and find employment he is not
functioning at the
level he would have had the accident not occurred.
His neuropsychological difficulties will result in a decrease in
efficiency
in the work place.
22.
Mallinson furthermore testified that the
brain injuries were subtle at a cellular level and were organic in
nature. Having regard
to the fact that MMI (maximum medical
improvement) has been reached, the injuries are permanent with
improvement not likely to
occur. He also testified that the
neuropsychological difficulties which he found to exist could not be
improved by treatment. He
concluded that his scientific evidence
exist to support the proposition that the neuro-psychological
difficulties could be improved
by treatment. His evidence was
uncontroverted.
23.
Ms. Elmarie Prinsloo ("Prinsloo"),
an Educational Psychologist was the best witness to testify for
Plaintiff. She testified
about the impact of the accident on
Plaintiffs education and training possibilities. She also provided
opinion on Plaintiff's correct
cognitive functioning and as opinion
on the influence of the sequelae of the accident on his pre accident
and post-accident education
and training opportunities.
24.
Prinsloo supported the findings of
Mallinson based on the own tests administered. She testified that she
and her counterpart, Ms.
Sepenyane ("Sepenyane") concluded
a joint expect minutes. She stated that the joint minutes was
initialed by both of
them on each page and signed at the end thereof.
She confirmed the content of the said joint minutes as being correct.
25.
The joint minutes of the Educational
psychologists have agreed in all reports except for Sepenyane's view
that the neurocognitive
deficits could be improved by treatment.
Prinsloo disagrees with Sepenyane that although MMI has been reached
the, medical treatment
will not improve Plaintiff's deficits.
Prinsloo was a credible witness and Sepenyane's version was not put
to her during cross
examination.
26.
The next witness to testify for
Plaintiff was Mr. Kobus Prinsloo ("Kobus") and Industrial
Psychologist He testified based
on his addendum reports and compared
Plaintiffs pre - and post morbid positions in respect of Plaintiffs
employability and caring
capacity. His evidence was credible and not
challenged under cross examination and what his counterpart Ms.
Manoko Ratala would
come and testify.
27.
Kobus testified that over and above the
one year agreed delay in respect of Plaintiff completing his honours
degree, that he is
of the opinion that Plaintiff would also have an
additional one year delay, because, even as a specialist, Plaintiff
still have
deficits if compared with as abled - bodied competitor.
This aspect of his evidence was also not challenged in
cross-examination.
28.
Kobus opines that Plaintiffs
competitiveness in the open labor market has been materially
affected. He concludes that Plaintiff
would damming his career
lifespan be at risk with regards to his occupational functioning and
that he would need to exert more
effort, vigor, motivation and
persistence to sustain his personal productivity out post. He is
furthermore of the view that a lighter
post- morbid contingency
deduction that the pre - morbid contingency should apply.
29.
He testified that both he and Ratala,
his counterpart concluded a joint export minutes which was initialed
by both of them on each
page and signed at the end thereof. He
confirms the contents of the said joint minutes as being correct. It
is clear from the joint
minutes of the Industrial Psychologist, that
they agree in all respects save for the retirement age. Kobus was not
challenged in
cross-examination in respect of the contents of the
joint minute.
30.
Kobus and Ratala agree on Plaintiffs
pre-morbid career scenario and the applicable relevant salary scales.
They agree that Plaintiff
would have worked with normal retirement at
65 years of age but Kobus asked a possibility of Plaintiff working
until 70 years of
age. They both agree that the normal pre-morbid
contingency deduction be considered.
31.
Kobus and Ratala agree that Plaintiff is
a vulnerable individual in terms of identified cognitive process
deficits. They also agree
that Plaintiff will continue to function as
junior Quantity Surveyor and that he will react a ceiling of junior
partner and function
in that capacity until normal retirement. The
Educational Psychologist further agree that Plaintiff be compensated
for loss of
income which represents the difference between the
projected pre and post- morbid earnings until normal retirement.
B.
ISSUES FOR DETERMINATION
32.
The issue to be determined is the
quantum to be awarded for contingency allowance for future loss of
income given the injuries sustained
by the Plaintiff.
C.
LEGAL PRINCIPLES
33.
In
Shield Insurance Co Ltd v. Booysen
[1]
it was held that the determination of contingency allowances involves
a processes of subjective impression on estimation rather
than
objective calculation, in other words, allowance on which judicial
opinions vary appreciably.
34.
In
Southern
Insurance Association v Bailey NO
[2]
the Court adopted the approaches that can be used to determine the
future form of earnings. Nicholas JA said the following
"One
is for the judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely
a matter of guess
work,
a
blind
plunge into the unknown. The other
is
to try to make an assessment by way
of mathematical calculations, on the assumptions resting on the
evidence. The validity of this
approach depends of course upon the
soundness of the assumptions, and this may vary from strongly
probable to speculative. It is
manifest that either approach Involves
guess work to a greater or lesser extent."
35.
It is also trite that in a case where
the Court has it before if material on which an actuarial calculation
can usefully be made,
that the first approach offers any advantage
over the second. While the result of an actuarial computation may
exist, they may
be no more than an informal guess and have an
advantage of a logical basis
[3]
.
36.
In
Goodall
v President Insurance Co LTD,
Margo
J held, as follows
[4]
:
"In the assessment of
a
proper allowance
for contingencies, arbitrary considerations must Inevitably play a
part, for the act or science of foretelling
the future, so
confidently practiced by ancient prophets and soothsayer, and by
modern authors of
a
certain type of
almanac, is not numbered among the qualifications for judicial
office."
37.
The relevant contingency deductions are
dependent upon the circumstances of each case
[5]
.
The determination of the percentage contingency deduction to be
applied, falls within the discretionary powers of the trial judge
and
depends on the circumstances of each case
[6]
.
38.
There is no fix rule on the percentages
of the contingency deductions in the different case. Each matter is
assessed on its own
merits with the court exercising its
discretionary powers.
39.
In the instant case, Mr Greg Whittaker,
an actuary, testified on behalf of Plaintiff. His calculations were
based on the joint minutes
of the Industrial Psychologist. He
concluded that "Cap" finds no application (based on the
contingencies used) and that
Defendant’s actuarial calculations
is not based on the joint minute of Industrial Psychologist.
40.
Plaintiff in the instant case is seeking
damages for future loss of earnings.
41.
Mr Maritz submitted that base on the
actuarial calculations , by an award of R4459 155.00 (four million
four hundred and fifty-nine
thousand one hundred and fifty-five rand)
in respect of future loss of earnings in fair and reasonable base on
the evidence.
42.
I have considered the evidence by all
experts on behalf of the Plaintiff, the expert reports and the
submissions made on behalf
of the parties by both counsels.
43.
I am of the view that a determination of
an award of R3 716 125.50 (three million seven hundred and sixteen
thousand one hundred
and twenty five rand) is fair and reasonable
base on the evidence.
44.
The last issue which needs determination
is the punitive costs prayed for by the Plaintiff.
45.
The underlying principle in
consideration of the award of costs on an attorney-and-client scale
is whether or not special circumstances
exist to warrant such order
in favour of the winning party
[7]
.
46.
The basis of such an award of costs is
by reason of special considerations arising either from the
circumstances which gave rise
to the action on from the conduct after
losing party. This type of the costs award is considered as a way to
ensure more effective
means that a successful party will not be out
of pocket
of
the
expense caused by xxx litigation
[8]
.
47.
In this case this Court has a discretion
in the special circumstance to consider such application.
48.
The Defendant refused to consent that
the joint experts' minutes could form part of the evidence. The
refusal according to the joint
minutes, was based on the fact that
Defendant intended to call its own experts. At the trial of this
case, no experts were called
by the Defendant to testify on its
behalf. The refusal to consent to the joint minutes leads to an
inescapable conclusion that
it was done in bad faith.
49.
Following such refusal, the Plaintiff
was compelled to call his own expert witnesses who all testified.
These experts were not challenged
in cross-examination by the
Defendant and no version of the Defendant's case was put on them to
be supported by its own expert
witnesses. This has led to the
Plaintiff incurring unnecessary costs on the hearing of this matter.
50.
The Defendant closed its case without
calling any of its own expert witnesses.
51.
In the light of these circumstances, I
am of the view that the Defendant acted in bad faith. As a
consequence I agree with the Plaintiffs
counsel that an appropriate
punitive costs order would be justified under these circumstances.
52.
ORDER
The following order is made: -
a)
Payment of R3 716 125.50 (three
million seven hundred and sixteen thousand one hundred and
twenty-five rand fifty cent) for damages,
being loss of earnings,
following injuries sustained by the Plaintiff in a motor accident on
3 April 2012;
b)
The amount set out in(a) shall be
payable within14 {fourteen) days of the judgment and be deposited
into the Plaintiffs attorneys
of record's trust account details of
which are as follows:-
Account holder
: MacRoberts Inc
Bank
: Standard Bank
Account number
: [….]
Branch
: Pretoria
Branch Code
: 01-00-45
Ref number
: 2040142
c)
The Defendant's claims handler is
ordered to request payment of the capital amount set out in (a) above
within a period of (seven)
days from the date upon which this court
order has been served on Defendant and/or Defendant's claims handler
and to provide Plaintiffs
attorney with written confirmation that
payment has been requested.
d)
Should Defendant fail to make
payment of the capital amount within 14 (fourteen) days of judgement
by this court, Defendant will
be liable for interest on the amount
due to Plaintiff at a rate of 10,25% (ten comma two five percent) per
annum as from the date
of this to date of final payment.
e)
Defendant is ordered to pay
Plaintiffs attorney and client's costs on High Court scale which
costs will include, but will not be
limited to:-
i.
The
costs of all experts reports, medico- legal reports, actuarial
reports, radiological reports, addendum reports and combined
reports
of all experts of whom notice has been given and/or whose reports
have come to the knowledge of Defendant and/or their
possession
and/or contained in their Plaintiff's bundle of documents.
ii.
The
full fees of Mr. NC Maritz Senior Counsel for preparations
consultation, pre-trial conferences, heads of argument and day fees
for 22, 23 and 24 November 2017.
iii.
The
reasonable travelling subsistence and transportation costs, including
e-toll fees incurred by and on behalf of the Plaintiff
for attending
the medico legal examination of both parties.
iv.
The
costs relating to Plaintiff's trial bundles, experts reports,
pleadings and notices, all indexes, documents bundles, witness,
including the costs of six full copies thereof, costs of holding all
pre-trial conferences, round table meetings between the legal
representatives for both Plaintiff and Defendant and counsel's charge
in respect thereof to all reasonable travelling costs incurred
by
Plaintiff's attorneys and counsel to attend such pre-trial
conferences.
SENYATSI
AJ
For
the Plaintiff:
Mr NC Maritz
Instructed by MacRoberts
Attorneys, Pretoria
For
the Defendant:
Mr Maphelelela
Instructed by Marivate Attorneys,
Pretoria
[1]
1979(3) SA 953 (A) at 965 G-H
[2]
1984 (1) 98 (A) at 113
[3]
See
Smit NO v the Road Accident Fund, the Quantum of Damages,
Corbett and Honey, Vol 5, 84 -251
[4]
1978(1)SA 389 (WLD) at 392+1-393A
[5]
See Nochomowtz v Santam Insurance Co Ltd
1972 (1) SA 78(T
[6]
See Van der Plaats v SA Mutual Fire of General Insurance Co Ltd 1980
(3)
QOD1
[7]
See Nel v Waterberg Land Touwer s Ko-operatieve Vereeniging 1946AD
597
[8]
See SA Druggists LTD v Beecham Group pie
1987 (4) SA 876
(T) at 882
HJ