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[2018] ZAGPJHC 533
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S v Road Accident Fund (2016/05577) [2018] ZAGPJHC 533 (20 September 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2016/05577
In the matter between:
S,
G
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
J U D G M E N T
MABESELE, J
:
[1] The plaintiff has instituted a claim against the defendant for
damages for bodily injuries he sustained in the motor collision.
[2] On 9 March 2017 the defendant conceded merits and accepted
liability for 80% of the plaintiff’s proved or agreed damages.
[3] On the same date an order was made, directing the defendant to:
3.1 compensate the plaintiff for 80% of the plaintiff’s proved
or agreed damages arising from the motor collision which occurred
on
23 May 2015;
3.2 furnish
the plaintiff with an undertaking in terms of section 17(4) of the
Road Accident Fund Act
1
,
for the costs of the future accommodation of the plaintiff in a
hospital or nursing home or the treatment of or rendering of a
service to him or the supplying of goods to him arising out of the
injuries sustained by the plaintiff in the motor vehicle collision
which occurred on 23 May 2015 and the
sequelae
thereof, after such costs have been incurred and proof thereof, which
undertaking shall be limited to 80%;
3.3 pay the plaintiff the sum of R100 000,00 as an interim
payment.
[4] The costs of the postponement were reserved for adjudication on
finalisation of the matter.
[5] At the commencement of the trial the parties admitted the
following:
5.1 the skills, expertise and qualifications of the experts of record
to assist the court by furnishing their expert opinions;
5.2 the truth and correctness of the facts and the opinions expressed
in the respective medico-legal reports filed, in accordance
with Rule
36(9)(b), of:
Dr Percy Miller – neurosurgeon;
Dr M Naidoo – psychiatrist;
Mr K Viljoen – orthotist and prosthetist;
5.3 the truth and correctness of the factual basis and actuarial
assumptions contained in the report of Algorithm Consultants and
Actuaries CC, dated 13 August 2018;
5.4 the truth and correctness of the areas of agreement recorded in
the joint minutes of the expert witnesses such that same constitute
common cause evidence and which requires no further proof thereof.
[6] Due to these admissions no expert witnesses were called to
testify.
[7] The parties agreed on an amount of R14 240,00 in respect of
the plaintiff’s claim for past loss of income. I was
called
upon to make a determination for the amount of general damages to be
awarded to the plaintiff and the contingency deduction
to be applied
to the plaintiff’s claim for future loss of income.
[8] The plaintiff contends that an award of R1 200 000,00
for general damages and contingency deduction of 11,5% for
future
loss of income are appropriate as opposed to an award of between
R700 000,00 and R750 000,00 and contingency deduction
of
30% for future loss of income which are considered by the defendant
to be appropriate.
[9] The plaintiff was employed as a forklift operator at Sun Valley
Africa Flowers since 01 September 2009. He earned a salary
of
approximately R3 400,00 per month.
[10] On 23 May
2015 the plaintiff was knocked by a motor vehicle and injured his
head and left arm after he had fallen on his head,
chest and arm on
the ground. He sustained mild to moderate head injury and fracture
of the left arm.
[11] Upon his
return to his pre-accident employment he experienced difficulties
meeting his job demands. He was subsequently placed
on light duties.
He left employment on 10 May 2018 after he was dismissed for refusing
to train a new employee. When he left
employment he was 37 years old
and earned a salary of approximately R4 000,00 per month with
UIF and overtime benefits. According
to experts he would have worked
until the normal retirement age of 60 to 65 years, depending on a
variety of factors such as his
health status, personal circumstances
and conditions of employment.
[12] Mild head injuries, according to Dr Miller, do not produce
neuropsychological organic brain damage-related effects and are
always better by 6 to 9 months after the event has passed. In the
case of a head injury in the mild to moderate spectrum the plaintiff
can develop medium or moderate neuropsychological or cognitive
changes or defects, which can sometimes get better or become worse.
[13] The
plaintiff has fixed flexion contractions over the fingers and the
thumb, with a total loss of active and passive movements
of these
areas, and of the wrist. He has no shoulder rotation, and has very
minimal extension and flexion movements of the shoulder.
The global
power of the left elbow is reduced and circulation of the left hand
and fingers appears compromised. The left upper
limb is permanently
injured, with a poor prognosis for the return of function. Implants
in relation to the left upper limb needed
to be removed. There is a
possibility of the presence of Volkmann’s ischaemic contracture
of the left forearm. The plaintiff
suffers from partial to permanent
disability due to injuries to the left upper limb, with total
orthopaedic disability due to complete
loss of function in the left
forearm.
[14] It was noted that since the plaintiff does everything with the
right arm, same has now undergone some trauma. The plaintiff
constantly feels pain in the right arm which relates to a chronic
strain and sprain and could probably render his arm more difficult
to
use. The plaintiff may then, purely because of pain, not be able to
exert much force with the right arm.
[15] Mrs
Grootboom and Ms Nkuna who are both clinical psychologists, prepared
joint minutes dated 27 August 2018. They both noted
that
neuropsychological and cognitive tests that were performed on the
plaintiff revealed shortcomings with regard to his attention
and
concentration, working memory, vision and moderate symptoms of
depression which are all associated with head injury
sequelae
,
compromised by psycho-emotive, behavioural and physical difficulties.
[16] The
occupational therapists, in their joint minutes dated 6 March 2018,
noted that due to the plaintiff’s left upper
limb impairment,
the plaintiff is not suitable for occupations requiring bilateral
hand function, inclusive of bilaterally working
above shoulder, as
well as bilateral or unilateral left hand manual load handling. They
noted that the plaintiff does not meet
the physical requirements for
occupations that fall within medium, heavy to very heavy type of work
category, unilaterally or bilaterally.
In addition, Ms September is
of the opinion that the plaintiff is no longer suitable for
meaningful occupation in the open labour
market. Ms Moagi is of the
opinion that the plaintiff will be a vulnerable competitor and job
seeker with reduced efficiency, effectiveness
and productivity
compared to uninjured peers. However, Ms Moagi is of the opinion
that the plaintiff is still employable in occupations
within his
vocational exposure, from a cognitive perspective. They both agreed
that the plaintiff will experience a partial loss
of independence in
execution of activities of daily living. He has to live with pain on
the left shoulder, left elbow and left
hand. He suffers from mood
related disorders.
[17] The industrial psychologists are in agreement that although the
accident did not render the plaintiff unemployable, it nonetheless
resulted in functional truncation and reduced employment options
making him a compromised competitor in the open labour market.
[18] In
considering general damages for pain and suffering, disfigurement,
permanent disability and loss of amenities of life, the
court has to
take into account all the facts and circumstances of the case. Regard
be had that each and every award depends on
the particular
circumstances of each case and that previous awards in broadly
similar cases serve as guidelines
2
.
I am grateful to both counsel for referring me to comparative cases
and awards which I found useful.
[19] Counsel
for the plaintiff relied on two cases of this division. They are
discussed briefly hereunder.
[20] In
Matjee
v Road Accident Fund
3
the plaintiff sustained head injury and severe laceration of the
brachial artery resulting in a flaccid left arm. The prolonged
immobilisation resulted in a “
frozen
shoulder
”
with limited movement, which made it difficult for the plaintiff to
do bi-manual activities. His permanent disability was
severe as he
had lost approximately 95% of his power grip in the left arm and
hand. The stiffness and bad positioning of his hand
had contributed
to his inability to work. The main vein carrying blood into the arm
was severed, causing the loss of much blood
and oxygen to his arm.
That resulted in the arm becoming floppy. His spine was out of
balance due to the drooping of the left
arm. The degree of movement
of his shoulders had been severely impaired. His elbows were very
stiff. He was unable to bend or
use his left elbow and due to the
minimal grip of the left hand he could not use it to eat with. Due to
the frozen shoulder, his
left arm was useless and he could not
effectively function with tasks requiring medium or heavy work which
require bilateral arm
function. The court awarded him R650 000,00
in 2017. The value in 2018 would be approximately R700 000,00.
[21] In
Ramasetla
v Road Accident Fund
4
the injuries sustained by the plaintiff in consequence of the
accident were head injury, fracture of the right radius and the
brachial plexus of the right arm. This simply refers to the damage to
the nerves that conduct signals from the spinal cord to the
right
shoulder, arm and hand, rendering the plaintiff’s entire right
arm practically non-functional. The court awarded him
an amount of
R700 000,00 in 2013. The value in 2018 would be approximately
R900 000,00.
[22] In
similar matter of
Mdunge
v Multilateral Motor Vehicle Accident Fund
5
which was relied on by counsel for the defendant the plaintiff
sustained multiple injuries embracing left shoulder, arm and hand,
loss of all useful vision in left eye and significant facial
lacerations and disfigurement. The nerves that conduct signals from
the spinal cord to the left shoulder, arm and hand were damaged,
rendering left arm flail and completely useless. The plaintiff
was
awarded an amount of R180 000,00 in 1998. The value in 2018
would be approximately R550 000,00.
[23] In
addition to the cases referred to, I found the following cases
equally helpful in my assessment of damages. These are the
cases of
De-Felice
v South British Insurance Co Ltd
6
and
Smith
v Road Accident Fund
7
.
[24] In the matter of
De-Felice (supra)
the plaintiff whose
brachial nerves of the right arm were wrenched out of the spinal
column suffered the following
sequelae
, namely, a paralysis of
the right arm which was later amputated and the shoulder which was
immobilised. He also suffered pain to
the spinal column. The court
awarded him R5 500,00 in 1962. The value in 2018 would be
approximately R500 000,00.
[25] In the matter of
Smith (supra)
the plaintiff sustained a
partial fracture of the right side of his skull. He also suffered a
traumatic amputation of the entire
left arm. The
sequelae
were severe pain, shock and distress, resulting in future operations
and behavioural problems in the form of aggression and withdrawal.
The court awarded him R250 000,00 in 2013. The value in 2018
would be approximately R560 000,00.
[26] In the present matter the plaintiff suffered mild to moderate
head injury with abrasion of his scalp and dizzy spells. He
sustained fractured left forearm with permanent orthopaedic
disability.
[27] Due to head injury sustained the plaintiff experiences
difficulty in concentration, psychomotor speed, working memory and
vision, among others. However these problems seem not to be severe,
in my view. This is evidenced by the plaintiff’s ability
to
perform his work as a forklift operator for a period of 3 years after
he was involved in the accident. He was also capable of
training
other employees. Regard be had that he was dismissed from work for
refusing to train a new employee.
[28] His left upper limb is impaired and practically non-functional.
He has to live with pain on his left shoulder, left elbow
and left
hand. Due to the accident he now suffers from mood related disorders.
He suffers partial loss of independence in execution
of activities
of daily living and needs regular supervision.
[29] Having taken into account all the relevant factors and
considered previous awards, I am of the view that an amount of
R680 000,00
would be fair and equitable compensation as general
damages.
[30] On the question of future loss of income it is beyond dispute
that due to the upper limb impairment the plaintiff does not
meet the
physical requirements for occupations that fall within medium, heavy
to very heavy type of work category. He is no longer
suitable for
meaningful occupation and his vulnerability with reduced employment
options will make him a compromised competitor
in the open labour
market. However, the accident did not render him completely
unemployable.
[31] For these reasons, I am of the view that contingency deduction
of 15% for future loss of income is appropriate. This will
amount to
R613 897,00.
[32] On the issue of costs the defendant agreed to pay the plaintiff
the wasted costs occasioned by the postponement of the matter
on 9
March 2017 in addition to costs that the defendant will be ordered to
pay.
[33] In view of the above, I make the following order:
33.1 - The defendant shall pay the plaintiff the sum of R946 510,00,
arising from the injuries he sustained in the collision
on 23 May
2015 and which comprises 80% of:
i) General damages R 680 000,00
ii) Past loss of income R
14 240,00
iii) Future loss of income
R
613 897,00
Sub-total R1 308 137,00
Less 20% apportionment R1 046 510,00
Less interim payment
R
100 000,00
Total R 946 510,00
33.2 - The aforesaid sum of R946 510,00 shall be payable within
14 days hereof to the plaintiff’s attorneys, Mafate
Inc
Attorneys Trust account as follows:
Mafate Inc Trust account
Standard Bank
Branch Code: 002305 – Carlton Branch
Account No: [….]
33.3 - Interest
a tempore mora
on the aforesaid amount shall
be payable 14 days hereof to date of payment
33.4- The defendant shall pay the plaintiff’s party and party
costs of the action on the High Court scale which costs shall
include:
33.4.1 The costs of preparation for trial, consultations, attendances
on trial on 9 March 2017 and wasted costs occasioned by the
postponement of the action on 9 March 2017.
33.4.2 The costs of 29 and 30 August 2018.
33.4.3 The reasonable costs of the reports, addendum reports, if any,
joint minutes, addendum joint minutes, if any, and the preparation,
attendance and reservation costs to be determined by the Taxing
Master, of the following expert witnesses:
i) Dr P Miller – neurosurgeon
ii) Dr E A Mjuza – orthopaedic surgeon
iii) Drs Mashao and Dzichaunya – radiologists
iv) Dr M Naidoo – psychiatrist
v) Mrs L Grootboom – clinical neuropsychologist
vi) Ms N September – occupational therapist
Dr K Viljoen – orthotist and prosthetist
Ms Z Shaik – industrial psychologist
Algorithm Actuaries CC
________________________________________
M M MABESELE
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Plaintiff’s representatives: Adv F F Docrat
Instructed by: Mafate Inc Attorneys
Defendant’s representatives: Adv W J van Wyk
Instructed by: Diale Attorneys
Date of hearing: 30 August 2018
Date of judgment: 20 September 2018
1
56 of 1996
2
See,
Protea Insurance Company v Lamb
1971 (1) SA 530
(A)
(2E3) QOD 117 at 535H-536A
3
2017 (7D4) QOD 7 (GJ)
4
Case no: 2010/36120
5
1998 (4J2) QOD 145 (N)
6
1962 (1D2) QOD 22 (W)
7
2003 5D2) QOD 1 (AF)