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[2018] ZAGPJHC 637
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A R and Another v Road Accident Fund (2012/2429) [2018] ZAGPJHC 637 (29 November 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2012/2429
In
the matter between:
A
R
First
Plaintiff
A
R
Second
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
J U D G M E N T
MAIER-FRAWLEY
AJ:
Introduction
1.
The
first and second plaintiff sued the defendant, the Road Accident
Fund, for damages resulting from injuries sustained by the
second
plaintiff in a collision,
which
occurred on 2 December 2006. At the time of the collision, the second
plaintiff was 13 years old and had just completed grade
7 (standard
5) at primary school.
[1]
2.
In
the action instituted, the first plaintiff (being the father of the
second plaintiff) claimed payment of past hospital and medical
expenses incurred by him (first plaintiff) arising from treatment
received by the second plaintiff in respect of the injuries sustained
by him in the collision. I was informed at the commencement of the
hearing that the first plaintiff’s claim was not being
pursued.
[2]
Although the first
plaintiff’s claim was not formally withdrawn as such, he did
not participate in the hearing.
3.
For convenience, I shall henceforth refer
to the second plaintiff as ‘the plaintiff’.
4.
The
parties had previously agreed the issue of ‘liability’ on
the basis that the defendant would compensate the plaintiff
for 100%
of his agreed or proven damages.
[3]
The matter proceeded on the issue of quantum only,
apropos
the amount of the patrimonial damages incurred by the plaintiff in
respect of:
4.1.
future hospital and medical expenses;
4.2.
past and future loss of earnings; and
4.3.
general damages.
5.
During
the course of the hearing, the issues requiring determination were
narrowed, in that:
[4]
(i) the
defendant
agreed
to furnish the plaintiff with an undertaking in terms of
section
17(4)
(a)
of the
Road
Accident Fund Act 56 of 1996
in
respect of the plaintiff’s claim for future hospital and
medical expenses; and (ii) the plaintiff conceded that he had
suffered no
past
loss of earnings.
6.
Accordingly, the only remaining issues
requiring determination by the court, were the following:
6.1.
The amount of general damages to be
awarded; and
6.2.
Whether or not the plaintiff would likely
suffer a loss of earnings in the future as a result of the injuries
sustained by him in
the collision and if so, the amount to be awarded
in respect thereof.
Common
cause matters
7.
The Plaintiff sustained the following
injuries in the collision:
7.1.
Mild concussive head injury including a
laceration to the scalp (occipital area);
7.2.
Fracture to the jaw;
7.3.
Contusions
[5]
(bruises) to the right hand, knees and face (right cheek).
8.
The defendant admitted the contents of the
plaintiff’s expert reports, as prepared by:
8.1.
Dr
Scott (radiologist);
[6]
8.2.
Dr
Mudau (neurologist);
[7]
8.3.
Ms
Nkosi (speech therapist and audiologist);
[8]
8.4.
Prof
Mayet (ophthalmic surgeon);
[9]
8.5.
Dr
Berkowitz (plastic and reconstructive surgeon);
[10]
8.6.
Dr
Rossouw (ear, nose and throat surgeon);
[11]
8.7.
Dr
Vafaei (maxilla-facial and oral surgeon).
[12]
9.
The
defendant further admitted the correctness of the calculations
performed by the plaintiff’s actuary, Mr G.A. Whittaker,
(relating to the claim for future loss of earnings) without admitting
the bases of such calculations, i.e., the underlying assumptions
upon
which the figures were calculated.
[13]
10.
The agreements embodied in the joint
minutes prepared by the parties’ orthopaedic surgeons,
neurosurgeons and occupational
therapists were common cause between
the parties.
11.
The following facts were not in dispute in
the evidence presented at trial:
11.1.
The plaintiff attended a private high
school after the accident (St Stithians College) where he completed
grades 8 to 12, without
failing any grade. He matriculated in 2011
and obtained his National Senior Certificate, having met the minimum
requirements for
entry into Bachelor’s degree study. In 2012,
he enrolled at university, where he studied social work (4 year
degree), obtaining
a Bachelor of Social Work degree in 2016. Whilst
at university, he was selected to tutor students. He successfully
engaged in tutoring
during this period. He has not been employed
professionally as a social worker pursuant to graduating, due to
factors unrelated
to the accident. He is currently employed in the
corporate sector, working for a company called ‘Taxify’
(akin to ‘
Uber’)
,
which operates as a taxi service.
11.2.
A Bachelor of Social Work degree is the
equivalent of an Honours degree or NQF8 level of post-graduate study.
11.3.
The
plaintiff suffers from visual difficulties
[14]
and a loss of hearing in the left ear.
[15]
Matters
in dispute
12.
Disputes centred around:
12.1.
the percentage contingency deductions to be
applied in both the pre-and post-morbid scenarios; and
12.2.
whether
or not the plaintiff will likely suffer a loss of earnings in the
future, as postulated by the plaintiff’s experts,
[16]
having regard to the peculiar facts and circumstances of the matter,
and if so, the amount to be awarded in respect thereof.
Evidence
at trial
13.
The following witnesses testified on
behalf of the plaintiff, after which the plaintiff closed his case:
13.1.
Mr A R (plaintiff);
13.2.
Mrs Jessica Rice (clinical psychologist
with a special interest in neuropsychology);
13.3.
Dr Matlala (educational psychologist);
and
13.4.
Mrs Gerber (industrial psychologist).
14.
The defendant closed its case without
leading any oral evidence. The defendant also did not rely on any
expert reports as may have
been procured by it.
15.
I
summarise the relevant aspects of the testimony given by the various
witnesses at trial.
[17]
Evidence
presented at Trial
Evidence
of Plaintiff
16.
The
plaintiff testified that he obtained a scholarship to attend St
Stithians Boys’ College in high school. He aspired to
become an
architect one day, because his father and brother had both attained
qualifications within the engineering field of study.
At high school,
he was not able to achieve the requisite academic results in subjects
such as maths and science (physics), which
he ascribed to the
accident. His National senior certificate reflects that he obtained
48% for mathematics and 55% for physical
science at the end of his
matric year. He applied to study architecture at university, but his
application was unsuccessful. He
then opted to study social work.
After graduating, he was unable to obtain employment in the field of
social work, however, he
still intends pursuing a career in social
work. He was however, able to obtain formal employment within the
corporate sector. He
is presently employed in the position of
customer support agent
[18]
at
Taxify and experiences no difficulties in executing work tasks.
17.
As
regards the collision, he remembers talking to his friend moments
before the collision occurred.
[19]
He has no recall of what happened immediately thereafter. He only
recalls waking up in hospital the following day.
[20]
18.
During
cross-examination, the plaintiff conceded that his overall high
school and university academic results were comparable to
that of the
average to above average student.
[21]
High school academic results reflected lower than average marks only
in subjects such as mathematics and physical science.
[22]
19.
As regards
the
sequelae
of the injuries sustained by the plaintiff in the collision, he
testified that at times he does not know that he is being forgetful,
although family members tend to notice that he is forgetful.
[23]
He can perform tasks at a good pace, save that he is a little slower
in pace when starting new tasks. At high school, he required
and was
afforded extra time in which to complete his exams.
Evidence
of Mrs Jessica Rice (clinical psychologist)
20.
Mrs Rice is
a qualified clinical psychologist with a special interest in
neuro-psychology. She interviewed the plaintiff and compiled
a
written report (including an addendum report), the contents of which
were confirmed by her in evidence. She conducted a battery
of tests
to obtain estimates of the plaintiff’s pre and post morbid
cognitive functioning. She hypothesized that the plaintiff
had
performed in the average to high average range pre-morbidly.
[24]
21.
As regards the plaintiff’s post-morbid functioning,
neuropsychological test results revealed: (i) various cognitive
problems,
inter alia,
deficits in abstract reasoning and
higher order executive functioning with reduced multi-tasking skills,
slower processing speed
and working memory deficits and (ii) the
presence of depressive and post-traumatic stress symptoms.
22.
During
cross-examination, Mrs Rice conceded that the plaintiff might have
retained the same intellectual capability after the accident
as he
enjoyed prior to the accident, such that he would have retained the
academic ability to study architecture at university,
however, she
opined that the plaintiff’s functional ability to perform the
work required of an architect was questionable,
based on her
evaluation of test results, which, as indicated earlier, revealed the
existence of various psychological deficits.
[25]
Evidence
of Dr Matlala (educational psychologist)
23.
Dr Matlala
is a qualified educational psychologist who interviewed the plaintiff
and undertook an assessment of his intellectual
capability, pre-and
post-accident.
[26]
She
compiled a written report, the contents of which she confirmed in
evidence.
24.
According to Dr Matlala, the plaintiff reported to her that he
aspired to become an economist (this was his first career choice)
or
an architect, which was his second career choice.
25.
According to Dr Matlala, there are various factors that can influence
a person’s educational achievement or academic performance,
such as family members’ educational achievement history,
motivation, socio-economic status of the family, genetics and
heredity,
environment, peer influences, maturity level of learner and
others.
26.
Dr Matlala performed an array of tests during her assessment of the
plaintiff. She opined that the plaintiff’s pre-morbid
intellectual ability was that of above or high average. Test results
revealed that he retained the same high average ability
post-morbidly.
27.
In her report, Dr Matlala concluded that the plaintiff suffered
physical and psychological trauma in the accident.
Evidence
of Mrs Gerber (industrial psychologist)
28.
Mrs Gerber
is a qualified industrial psychologist who interviewed the plaintiff
and compiled a written report, the contents of which
she confirmed in
evidence. She was required,
inter
alia,
to
postulate the plaintiff’s likely
[27]
pre- and post-accident income. This is undertaken by interpreting the
impact of the injuries and the effects (
sequelae
)
thereof
[28]
and then
postulating whether this could have an impact on the plaintiff’s
functioning.
29.
For purposes of postulating the plaintiff’s likely pre-and
post-morbid incomes, she testified that she did not assume
that the
plaintiff would have followed a particular occupation such as that of
an architect because of the numerous uncertainties
at play, amongst
others, academic merit and selection processes employed by academic
institutions. For example, selection
is often informed by the
number of students that can be accommodated or accepted into a
particular field of study, and with each
post-graduate level
attained, the requirements become more stringent. She therefore
considered a generic degree scenario,
assuming, for purposes of her
evaluation, the absence of obvious deficits or environmental
hindrances in the pre-morbid scenario.
30.
Mrs
Gerber’s opinion was that in the pre-morbid scenario, the
plaintiff would
most
likely
have progressed to the Patterson scale D2 level of earnings
[29]
on the assumption that he was of high average ability and untainted
by obvious cognitive deficits. On a more conservative approach,
the
plaintiff would likely have progressed to the D1 level of earnings.
Mrs Gerber indicated that the D1 level of earnings appeared
to be the
most
realistic
scenario, given the prevailing high rate of unemployment in South
Africa.
31.
During cross-examination, Mrs Gerber stated that she accepts that the
plaintiff will still be able to attain a Master’s
degree after
the accident, even though he presents with a profile that suggests
cognitive compromise. She pointed out that where,
for example, two
individuals both possess a Master’s degree but one has
cognitive deficits whilst the other one does not,
then the individual
without the deficits would be expected do better than the one who
presents with deficits.
32.
According to Mrs Gerber, in order to function effectively at the
Pattison scale ‘D’ level of earnings, which requires
‘tactical or interpretive decision making’ or higher
level complex thinking, ‘one would expect higher order
cognitive skills to be intact’. Mrs Gerber was of the opinion
that it is unlikely that the plaintiff will progress beyond
the
Pattison scale C4 or C5 level of earnings in the future (post-morbid
scenario), given that he presents with compromised higher
order
cognitive skills.
33.
C4 or C5 is the level at which a person pursuing an occupation such
as a social worker, with 10 years’ experience, would
be
classified, whilst D1 or D2 is the level at which a person pursuing
an occupation such as an architect, with 10 years’
experience,
would be classified. A person normally reaches the pinnacle of his or
her career at approximately age 40 or 45, which
is when the person
would be expected to reach level D1 or D2 (or C4 or C5) in the
abovementioned two examples.
34.
A social worker who is just starting off in his/her career, would be
placed at a ‘B3’ level on the Pattison scale
of earnings,
which is the same level at which the plaintiff would be placed in his
current occupation.
35.
According to Mrs Gerber, the plaintiff reported to her that he
intends enrolling for a Masters’ degree. During
cross-examination,
Mrs Gerber was asked the following question:
Assuming he obtains a Master’s degree, ‘wouldn’t
the plaintiff then
be in the same position post-accident as he would
likely have been pre-accident? Mrs Gerber’s explained that
academic achievement
(education) is not the only consideration that
is taken into account in determining ability in the pre-morbid
scenario, and it
cannot therefore be the only consideration in the
post-morbid scenario. By virtue of the fact that the plaintiff
presents with
specific deficits, account would have to be taken of
the impact that such deficits are expected to have on his ability to
achieve
the postulated pre-morbid earnings. The presence of deficits
are expected to impact adversely upon his post-accident earnings
because
of his hypthesised inability to be able to function (with
compromised higher order executive skills) at the level of complexity
required of an individual who has reached a D2 (or D1) level of
earnings, meaning that it appears unlikely that he would reach
the D1
or D2 level of earnings in the future.
36.
Mrs Gerber
readily conceded that there is no certainty or guarantee that the
plaintiff would have reached the level of D2 earnings
in the
pre-morbid scenario,
inter
alia
,
because there is no certainty that the plaintiff would have obtained
a Master’s degree to have enabled him to progress to
a higher
scale of earnings.
[30]
As she
pointed out in her report, ‘the plaintiff was too young to have
had a crystallised career aspiration at the time of
the accident, and
at age 13, career aspirations are still susceptible to swing
direction due to role model influences, career information
and
resources available.’ The selection process for entry
into, for example, an Architectural Programme, is influenced
by
various factors,
inter
alia,
academic merit, home assignments and wide-ranging departmental
selection tests and interviews. Selection decisions and admission
is
also influenced by the maximum number of students that may be
selected per course offered in the Faculty. Admission to an
architectural
programme would thus be subject not only to academic
merit but to various other factors.
Evaluation
of evidence
37.
I bear in
mind the principles that have evolved over the years concerning
expert evidence, as set out in cases such as
R
v Jacobs,
[31]
Twine
and Another v Naidoo and others
,
[32]
Karani v
Karani NO and Others,
[33]
Nienaber v Road Accident Fund,
[34]
and
S
v M.
[35]
38.
In
Louwrens
v Oldwage,
[36]
the
following was said: ‘What was required of the trial Judge was
to determine to what extent the opinions advanced by the
experts were
founded on logical reasoning…’
39.
The
postulated level of earnings that the plaintiff would
likely
achieve in the post-morbid scenario, as testified by Mrs Gerber,
appears to me to have been based to a large extent on the opinion
of
Mrs Rice regarding the effect that the deficits (uncovered through
neuropsychological testing) were projected to have on the
functional
ability of the plaintiff in the future.
[37]
Mrs Rice’s view of the plaintiff’s post-morbid
functionality was mostly pessimistic.
[38]
On the other hand, Mrs Rice’s opinion regarding the pre-morbid
capability, functionality and progression of the plaintiff
seems to
have been optimistically pegged on ‘all things being
equal.’
[39]
Mrs Gerber
was the only expert who differentiated between the most likely
expected outcome vs the most realistic expected outcome.
Dr Matlala
did however confirm the vast array of uncertainties or imponderables
that could possibly affect an expected outcome.
The uncertainties at
play in the pre-morbid scenario are almost innumerable and
imponderable.
[40]
So too in
the post-morbid scenario.
40.
I gained
the impression that Mrs Rice was seeking to make the brain injury
sustained by the plaintiff more impactful than is sustainable
on the
objective facts.
[41]
In my
view, Mrs Rice’s objectivity was somewhat questionable. What
stood out to me was that according to the version of the
plaintiff,
he suffered a loss of consciousness immediately after the accident,
which he said, endured until the following day.
The GCS scores, as
commented on by Mrs Rice in her reports,
[42]
were reported to be 15/15 at the scene of the collision (as recorded
by paramedics). A repeat of the GCS results after admission
to
hospital indicated that the scores were again 15/15. The significance
of the scores lies in the fact that the plaintiff was
thus found to
be alert and oriented, i.e., awake at the scene of the accident and
upon admission to hospital. The medical records
do not reflect that
the plaintiff suffered a loss of consciousness in the accident. Yet
Mrs Rice appeared unwavering in her acceptance
of the subjective
reports of the plaintiff in reaching her a conclusion about the
severity of the head injury as well as the impact
thereof upon the
plaintiff’s functioning.
41.
Both the
educational psychologist and the industrial psychologist accepted
that the plaintiff would likely struggle later in his
working life
when faced with higher demands, based on the opinion of Mrs. Rice.
The conclusion reached by Mrs Rice was based on
her own diagnosis of
a ‘significant head injury,’ the results of
neuropsychological testing
[43]
and the impact of such injury, based on the subjective reports of the
plaintiff during the interview process. The difficulty in
this regard
is that the plaintiff’s self-reported loss of consciousness is
not supported by the medical evidence, which points
to the contrary.
The other difficulty is that the plaintiff did not confirm the
existence or extent of his reported symptoms during
his oral evidence
in court. He mentioned only the
sequelae
referred to in paragraph 19 above.
[44]
42.
The evidence did not establish that the plaintiff’s visual or
hearing problems were caused by the accident. The impact
thereof on
the plaintiff’s functionality in general, if any, was also not
addressed by the experts or explored in the evidence.
43. It is clear, from a
consideration of the totality of the evidence, that the plaintiff
possessed the intellectual capability
to meet the demands of higher
study prior to the accident and that he has retained the same
capability after the accident, despite
the presence of deficits and
notwithstanding any reported symptomology – that much was
common cause. His intellectual ability
at present is above or high
average. The plaintiff appears motivated to study further and to
attain his goals. On the evidence
presented, he appears to be
functioning capably in the work place, at least at the level at which
he is currently earning. In the
event that the Plaintiff undergoes
the recommended medical treatment (as proposed by the various
experts), there will likely be
an amelioration of physical discomfort
(pain) or any lingering emotional difficulties that he may be
experiencing due to post-traumatic
stress and depression.
44.
Having
heard the evidence presented on behalf of the plaintiff and in the
absence of expert opinion to the contrary, I must accept
that
cognitive deficits found extant may have rendered the plaintiff
susceptible to compromised higher order executive functioning,
as
opined by the experts who testified at the trial. The extent
thereof
[45]
and the
hypothesised impact thereof,
[46]
however, remain questionable. If one accepts that the plaintiff has
retained the intellectual capability to pursue post-graduate
studies,
including the cognitive ability to manage the increased mental
demands of higher level post-graduate study
[47]
(despite deficits) then it begs the question as to why the plaintiff
would have retained the capacity to learn, process and recall
information studied without retaining the capacity to apply same, at
a practical level, when he reaches the age of 40 or 45 in
the future?
With experience comes expediency, surely? The plaintiff’s
experts expect such deficits to impact adversely upon
the plaintiff’s
work performance, but only at a future date. Whether this will in
fact eventually manifest in the plaintiff’s
work performance,
as predicted at age 40 or 45, remains to be seen. I intend to cater
for the uncertainties in this regard by means
of an appropriate
contingency deduction
[48]
when
determining a fair and reasonable amount to award in this matter.
45.
In the
seminal judgment of
Southern
Insurance Association v Bailey,
[49]
Nicholas
JA stated as follows:
‘
An enquiry into
damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to the future,
without the
benefit of crystal balls, soothsayers, augurs or oracles. All that
the court can do is to make an estimate, which is
often a rough
estimate, of the present value of the loss. It has open to it two
possible approaches: one is for the judge to make
a rund estimate of
an amount which seems to him to be fair and reasonable. That is
entirely a matter of guesswork, a blind plunge
into the unknown. The
other is to try to make an assessment, by way of mathematical
calculation, on the basis of assumptions resting
on evidence. The
validity of this approach depends of course upon the soundness of the
assumptions, and these may vary from the
strongly probable to the
speculative…’
46.
In Bailey’s case, the court recognised that not all
contingencies are adverse, and not all ‘vicissitudes’
are
harmful. Each case depends on its own facts.
47.
The plaintiff provided the court with an actuarial report from Mr G.A
Whittaker, in which he has sketched 6 different scenarios
for the
plaintiff’s projected future loss of income, depending on
whether he would have reached an uninjured ceiling at either
Paterson
level D1 or D2 or D3, with injured ceiling being pegged at either
Paterson level C4 or C5.
48.
Having
applied my mind to the various scenarios sketched in the actuarial
report and having considered the evidence presented holistically,
I
am of the view that the plaintiff will best fall into the category
sketched in Basis IB of the report. The figures given by the
actuary
in Basis IB of the report comprise the plaintiff’s net loss
after applying a contingency deduction of 19% in the
pre-morbid
scenario and 34% in the post-morbid scenario.
[50]
49.
The allowance to be made in respect of contingencies rests in the
courts discretion. Contingency deductions cater for the ‘
normal
vicissitudes of life’. These generally include,
inter alia,
the possibility that the plaintiff may have a less than ‘normal’
life expectancy; he may experience periods of unemployment
due to
illness or accident or labour unrest or general economic conditions
or retrenchment, to mention but a few. The discount
may vary,
depending on the circumstances of the case. See
Bailey supra
at 116 G-H.
50.
The
postulated likelihood that the plaintiff would have reached Paterson
level D1 pre-morbidly is beset by numerous uncertainties,
as
testified by Mrs Gerber and Dr Mudau. In my view, these factors would
justify a higher pre-morbid contingency deduction than
that suggested
by the parties.
[51]
The
uncertainties alluded to in paragraph 44 above, in my view, justify a
lower post-morbid contingency deduction in the post-morbid
scenario.
51.
Using the figures provided in Basis IB of the actuarial report, the
calculations can be computed as follows:
Loss of income uninjured
R10 367 389
Less: Contingency
deduction:
25%
2 591 847.25
___________
R7 775 541.75
Loss of income injured
R9 011 965
Less: Contingency
deduction:
20%
1 802 393
___________
R565 969.75
Total net
loss:
R565 969.75
General
damages
52.
In assessing an award for general damages, the plaintiff’s pain
and suffering, loss of amenities of life and any disability
are to be
taken into account. The Court is required to exercise a wide
discretion in order to award what it considers to be fair
and
adequate compensation, having regard to all the relevant facts and
circumstances connected with the plaintiff, as well as the
nature of
the injuries sustained by him/her, the permanence thereof, and the
severity and the impact on the claimant’s lifestyle.
53.
Due to the
difficulty in calculating an amount to be awarded for non-patrimonial
damage, considerations of fairness and reasonableness
always play
determining rolls in the assessment of such damages. The Supreme
Court of Appeal has cautioned that whilst fairness
and reasonableness
mean that the claimant must be sufficiently and properly compensated
for the injury he/she has suffered, care
must also be taken to ensure
that the award is fair to the defendant.
[52]
54.
The
plaintiff’s counsel referred to the case of
Maele
v Road Accident Fund
[53]
in
respect of general damages awarded in a comparative matter where a 7
year old scholar suffered a mild concussive head injury
and a
fractured left tibia, which had healed completely, save that she
continued to experience discomfort in running, standing
or walking
for long distances and when kneeling. Pre-accident learning
difficulties were not exacerbated by the injuries sustained
in the
accident. The court awarded an amount of R300 000.00 in respect of
general damages.
[54]
55.
As no two cases are identical, comparative authorities are merely a
guideline in assisting the court in arriving at an award.
56.
In the present case, the plaintiff suffered a fractured jaw injury in
addition to the concussive head injury. According to the
orthopaedic
surgeon’s report, the plaintiff suffered a considerable degree
of pain as a result of the injuries sustained
in the accident. The
plaintiff’s jaw still clicks and he is unable to open his mouth
too wide. It is clear from the educational
psychologist’s
report that the plaintiff also suffered emotional trauma, especially
when bearing in mind that he lost his
close friend in the accident.
57.
The plaintiff’s counsel submits that an amount of R600 000.00
is fair and reasonable whilst the defendant submits
that an amount of
R400 000.00 is fair and reasonable in respect of general
damages.
58.
In my view an appropriate award in respect of general damages, which
would be fair to both parties in this matter, is the sum
of four
hundred and fifty thousand rand (R450 000.00).
59.
The plaintiff, as successful party, is, as a general rule, entitled
to his costs. I see no reason to depart therefrom.
60.
I was provided with a draft order on behalf of the plaintiff in which
the amount of the aggregate total capital sum to be awarded
to the
plaintiff was left blank, the final amount to be inserted depending
on the outcome of the court’s decision as to the
amount to be
awarded under each head of damage. I have inserted the amount of
R1
015 970.00
in paragraph 2.1 thereof (calculated by adding the sum
of R565 969.75 in respect of future loss of earnings (rounded off to
R565
970) and R450 000.00 in respect of general damages).
61.
In the circumstances and save as aforesaid,
I make the following order in terms of the draft marked “X”.
________________
MAIER-FRAWLEY
AJ
Date
of hearing:
09 to15 November 2018
Judgment
delivered
29 November 2018
APPEARANCES:
Counsel
for Plaintiffs:
Adv
.
HB Marais
Attorneys
for Plaintiffs:
Douglas Bennett Inc. Attorneys
Counsel
for Defendant:
Adv. N Makhani
Attorneys
for Defendant:
Borman
Duma Zitha Attorneys
[1]
At
the time of the hearing, the second plaintiff was 25 years of age. He
was 18 years of age as at the date of institution of the
action on 24
January 2012.
[2]
The
first plaintiff’s claim had in fact prescribed prior to the
institution of the action in 2012. The defendant raised
this in a
special plea in its pleadings.
[3]
No indication was given as to whether or not the agreement included
an admission by the defendant in regard to the issue of causation
(which relates to the question of whether or not the plaintiff’s
loss was caused by the injuries sustained in the collision).
[4]
This occurred at the close of the case for the plaintiff and that of
the defendant, at the stage of presentation of oral arguments.
[5]
The
medical definition of ‘contusion’ can be summed up as
follows: a
region of injured tissue or skin in which blood capillaries have
been ruptured, resulting in discolouration, commonly known as
a
bruise. See: www.medicinenet.com
[6]
p
p.
1 & 2, plaintiff’s expert bundle.
[7]
pp 22-30, plaintiff’s expert bundle.
[8]
pp 90-120, plaintiff’s expert bundle.
[9]
pp 121-122, plaintiff’s expert bundle.
[10]
pp 123-127, plaintiff’s expert bundle.
[11]
pp 128-132, plaintiff’s expert bundle.
[12]
pp 133-140, plaintiff’s expert bundle.
[13]
The actuarial report is contained at pp 210-227 of the plaintiff’s
expert bundle.
[14]
The plaintiff has reduced vision in the left eye (described by the
ophthalmologist as ‘poor visual acuity’), the
cause of
which is unknown.
[15]
It was accepted that the visual problems and loss of hearing were
not attributable to the accident in question (about which,
more
later).
[16]
namely,
the
clinical, educational and industrial psychologists. The defendant
did not admit the contents of their reports.
[17]
I
did, however, consider
the
totality of the full conspectus of evidence presented at trial in
reaching a decision in this matter.
[18]
According to the plaintiff, his duties entail ‘assisting the
company in any way they see fit.’
[19]
The expert reports record that
the
plaintiff and his friend were being conveyed, together with other
children, as passengers in one of the vehicles that were
involved in
the collision. They were seated at the back of a closed canopy truck
at the time of the collision. Upon impact, the
children were flung
out of the truck. The plaintiff’s friend died in the
collision. The expert reports do not reflect consistent
reports
concerning what transpired in the collision. One report suggests
that the plaintiff’s close friend died in the
collision.
Another report suggests that 3 children died in the collision.
[20]
The plaintiff’s version is to the effect that he suffered a
loss of consciousness at the scene of the collision, which
lasted
until the following day.
[21]
The
plaintiff’s university marks ranged between 58 % to 75% in the
second, third and fourth years of study.
[22]
The plaintiff conceded under cross-examination that he did ‘fine’
in all subjects other than mathematics in high
school. When it was
put to him that the impact of the brain injury only concerned
mathematics, the plaintiff’s response
was: ‘no, I did
not do as well as I would have done’ that is, had the accident
not occurred.
[23]
This evidence was not corroborated by any family members at the
trial.
[24]
Although
she holds no formal medical qualification, she considered herself
‘sufficiently qualified’ to treat and diagnose
brain
injuries and to evaluate the impact thereof, about which, more
later.
[25]
According to Mrs Rice, based on test results, the plaintiff is
postulated to fall within the lower percentile, meaning that 96%
of
the population would perform better than the plaintiff.
[26]
The purpose of the assessment was to evaluate the plaintiff’s
emotional, cognitive and educational potential and to determine
the
possible level of education he will attain in order to establish
placement for him as regards his future career prospects.
This is
documented in Dr Matlala’s report, in para 1 at p 65 of the
plaintiff’s expert bundle.
[27]
According to Mrs Gerber, she considers what is likely, although what
is likely is never a certainty as no-one knows what the
future will
hold.
[28]
She
had regard to the sequelae as outlined by
the
various experts in their reports, including subjective reports made
to her during her interview of the plaintiff.
[29]
D2 is postulated for a professional, such as an architect, who Mrs
Gerber states would reach the pinnacle of his career after
a period
of 10 years of practise.
[30]
The
vast array of uncertainties that could derail an expected outcome
are not difficult to contemplate – unresolved psychological
or
emotional trauma, feelings of inadequacy, lack of self-confidence
are all factors that one might imagine could prevent an
individual
from fulfilling his potential – this aside from the normal
vicissitudes of life which the courts have recognised
and commented
upon in several cases,
inter
alia, Southern Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 116 G-H.
[31]
1940 TPD 142
, where, Ramsbottom J stated,
inter
alia,
that experts ‘…are not the judges of fact in relation
to which they express an opinion.’ (at 146-147)
[32]
[2018] 1 ALL SA 297
(GJ) at paras 18 and 33-36, where Vally J
cautioned,
inter
alia,
that
‘
expert
testimony should only be introduced if it is relevant and reliable.
Otherwise it is inadmissible. It should, therefore,
only be
introduced if there is a possibility of it assisting the court in
(i) understanding a scientific or technical issue,
or (ii) in
establishing a fact either directly or by using inferential as
opposed to speculative reasoning…’ (para
[18](c))
[33]
[2018] 1 ALL SA 156
(GSJ) para 33.
[34]
(A5012/11)
[2011] ZAGPJHC 150 (27 October 2011) at para 4 where Van Oosten J
sated that ‘…
The
evidence of expert witnesses cannot be allowed to usurp the function
of the Court. It is for the Court to ultimately decide
whether an
expert’s opinion is to be relied on or not and to determine
what weight, if any, has to be afforded to it. The
Court must not
blindly accept expert testimony. It is obliged, even where expert
evidence is so technical that the average judicial
officer would not
be able properly to reach an unassisted conclusion, still to decide
whether it would be safe to accept the
opinion or not.’
[35]
1991
(1) SACR 91
(T)
at 100a, where the court stated that “The cogency of the
evidence should be weighed ‘in the contextual matrix
of the
case with which (the Court) is seized’
.
”
[36]
2006 (2) SA 161
SCA at 174 H (with reference to the decision of
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
SCA at 1201)
[37]
As
explained by Mrs Gerber, the plaintiff is likely to experience
difficulties when he reaches the age of 40 or 45 because he
will
likely not cope with work that is more demanding and which requires
intact cognitive executive functioning. As stressed
by her, nothing
is certain – it is not certain that the plaintiff would have
been able to progress to the level where he
would have been doing
such work, had the accident not occurred, because it depends on a
number of factors, such as availability
of positions, the state of
the market, environmental influences etc. Whether the plaintiff
would have been accepted for enrolment
in an architectural programme
at university is also uncertain.
[38]
Although Mrs Rice accepted that Dr. Mudau’s opinion that the
plaintiff suffered no loss of intellectual ability in the
accident,
and that the plaintiff might have retained the ability to pursue
post-graduate studies such as a Masters’ degree,
she expressed
doubt that the plaintiff would be able to complete such studies. Her
evidence in this regard is questionable (see
para 40 below).
[39]
Meaning, if everything happens as expected and
if
nothing unexpected happens or if there are no other factors which
affect the situation.
[40]
In
this regard, see
paras
25, 29 and 36 above, and footnotes thereto.
[41]
Mrs Rice opined that the plaintiff sustained a
significant
brain injury, which had
significant
effects
after
the accident based on test results obtained during her
neuropsychological assessment of the plaintiff and subjective
reports
made to her concerning the symptoms the plaintiff
experiences post-accident. Although readily conceding that she
has never
acquired any type of medical qualification, she continued
to maintain that she was qualified to diagnose and treat brain
injuries,
based on her acquired theoretical knowledge of research
conducted by others concerning brain injuries. She remained resolute
that the plaintiff suffered a significant brain injury in the
accident, notwithstanding that:
(i) the plaintiff’s
neurologist had diagnosed a
mild
concussive head injury;
(ii) she did not conduct
a neurological examination of the plaintiff;
(iii) GCS scores of
15/15 were recorded by medical officers at the scene of the accident
and again upon plaintiff’s admission
to hospital, which belied
the plaintiff’s report concerning a loss of consciousness
(commencing at the scene and persisting
upon admission to hospital);
(iv) a CT- scan of the
brain performed whilst the plaintiff was in the hospital revealed
the absence of any abnormality or structural
damage to the
plaintiff’s brain. (The CT-scan did not show any
intracranial problems or fractures of the skull);
and
(v) the facts of life
revealed that the plaintiff had successfully embarked on higher
level studies and was able to function effectively
in his
employment, pointing to the conclusion that no significant signs of
impaired functional ability were evident.
[42]
In her main report (at p.43 of the plaintiff’s expert bundle),
Mrs Rice notes as follows: ‘There are various commonly
used
indicators of brain injury severity, including the impairment of a
patient’s level of consciousness (as measured by
the Glasgow
Coma Scale [GCS] and the duration of a patient’s
post-traumatic amnesia [PTA]’). In her addendum report
(at
p.50 of the plaintiff’s expert bundle), Mrs Rice records that
the plaintiff ‘seemingly sustained a head injury
in the
accident, based on his self-reported loss of consciousness and
Post-Traumatic amnesia (PTA)’ As noted in the report
of Dr
Rosseauw, a CT-scan of the brain taken in the hospital did not show
any intracranial problems of fractures of the skull.
Mrs Rice,
whilst conceding that she had no formal medical training or
qualification as such, and notwithstanding that the neurologist
(Dr
Mudau) had diagnosed a
mild
brain injury, nonetheless sought to suggest during her oral
testimony that the GSC scores were not definitive and that
microscopic
damage to the brain would also not be evidenced on a
CT-scan. She maintained that the head injury was
significant,
even if the medical evidence pointed otherwise.
[43]
Mrs Rice does not appear to have considered the impact that PTSD or
the plaintiff’s psychological or emotional state of
mind,
presence of pain, or depression may have had upon the plaintiff’s
test performance on the day of the assessment.
No mention is made
thereof in her report, nor was this canvassed in her oral evidence
in court.
[44]
Any unconfirmed reported sequelae, as recorded in the expert
reports, remains inadmissible hearsay – see:
Witthuhn
v Road Accident Fund
(A5046/2015)
[2017] ZAGPJHC 285 (14 September 2017), an unreported decision of
the full court in this division.
[45]
See fn 25 above.
[46]
See fn 38 above.
[47]
The evidence revealed that a higher standard of learning is demanded
of students in high school i.e., the standard of work required
to be
understood, learnt and applied in high school is greater than that
which is demanded of scholars in primary school (and
a
fortiori,
the
standard of learning demanded of university students are greater
than that demanded of high school scholars).
[48]
A lower percentage contingency deduction applied in the
post-accident scenario than that postulated by the plaintiff’s
actuary.
[49]
1984 (1) SA 98
(A) at 113C-115H.
[50]
The plaintiff’s counsel was unsure as to how the actuary
arrived at a figure of 19% in the pre-morbid scenario and 34%
in the
post-morbid scenario.
[51]
I bear in mind that the predicted D1 level makes provision for the
prevailing high rate of unemployment in the country. As I
understood
it, the plaintiff accepted that a contingency deduction of 19
% should be applied in the pre-morbid scenario,
as suggested by the
actuary, whilst the defendant suggested that a 10% spread should be
applied between the pre-and post-morbid
scenarios.
[52]
In
De
Jongh v Du Pisanie N.O
.
2005 (5) SA 547
(SCA) para 60, the court, after noting the tendency
towards increased awards in respect of general damages in recent
times, re-
affirmed conservatism as one of the multiple factors to
be taken into account in awarding damages. The court concluded that
the
principle remained that the award should be fair to both sides,
it must give just compensation to the plaintiff, but not pour out
largesse from the horn of plenty at the defendant’s expense,
as pointed out in
Pitt
v Economic Insurance Co ltd
1975
(3) SA 264
(N) at 267.
[53]
2015 (7E4) QOD 1 (GNP).
[54]
Present
day value is R411 000.00.