About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 705
|
|
F D v Road Accident Fund (2015/28856) [2018] ZAGPJHC 705 (13 December 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
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 2015/28856
In the matter
between
F
D Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUGDMENT
RAMAPUPUTLA
AJ,
Introduction
1.
The plaintiff
was injured in a motor vehicle collision which occurred on 30
January 2014. At the time of the collision
the plaintiff was 21 years
old and at school. As a result of the collision the plaintiff
suffered numerous injuries, namely, a
concussive brain injury; facial
injuries to the forehead and right ear; a fracture of the left pubic
ramus; a fracture of the left
acetabulum; an injury to the left
shoulder; and multiple bruises to the left hand, buttocks and right
knee.
2.
The issue of
liability was settled and the defendant is liable for 100% of the
plaintiff's agreed or proven damages. During the
course of this
trial, the parties settled damages in the amount of R500 000.00
(five hundred thousands rands). The Defendant
will provide the
Plaintiff with a statutory undertaking in terms
of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
to
reimburse him for 100% of his future accident related medical,
hospital and related expenses.
COMMON
CAUSE ISSUES AND FACTS
3.
It was common cause between the parties
that the plaintiff had failed several grades at high school prior to
the accident. According
to the orthopaedic surgeons’ joint
minutes, plaintiff sustained injuries as recorded in the Leratong
Hospital records which
are; bruises and abrasions on the left side of
the face, degloving wounds on the right ear exposing cartilage, left
acetabula fracture
and multiple soft tissue injuries.
4.
According to the neurosurgical joint minute
the Plaintiff had suffered a mild concussive brain injury and he was
21 years old at
the time of the accident. According to the joint
minute of the educational psychologists, the pre-accident functioning
of the Plaintiff
(in this area of expertise) was agreed, to the
extent that it was common cause that the Plaintiff failed grade 9,
10, 11 and 12.
He dropped out of school in 2012 and 2013. He was a
vulnerable learner, with low average educational potential and he
would have
struggled to complete grade 12.
5.
The Plaintiff abandoned any claim for past
hospital and medical expenses. The agreements of the occupational
therapists as reflected
in their joint minute is not disputed and
thus accepted by the parties.
The plaintiff’s retirement
age would have been and remains 65 years of age (pre-morbid and
post-morbid).
ISSUES IN DISPUTE
6.
The only remaining issue for determination
is the quantum of plaintiff’s damages in respect of loss of
earning capacity.
The
defendant admits the method of calculation employed by Mr Alex Munro
(actuary) in his calculation of the Plaintiff’s loss
of
earnings, in terms of his pre-morbid earnings but does not admit his
post morbid earnings method of calculation.
THE WITNESSES AND THE EVIDENCE
7.
The witnesses who testified on behalf of
the Plaintiff were Dr CT Frey an Orthopaedic surgeon; Ms Gibson -
a Neuro-psychologist;
Marc Peverett an Industrial psychologist; Dr
Shevel – a Psychiatrist. The Defendant’s only witnesses
was Mikateko Mantsena
– an Educational psychologist; All the
witnesses who testified confirmed their respective reports as well as
the respective
joint minutes signed by them in preparation for this
trial.
8.
Dr C.T Frey’s evidence was that he
had examined the Plaintiff on the 12 August 2015, (i.e. 1 ½
years after the Plaintiff
had suffered orthopaedic injuries in the
motor vehicle collision). He testified that Plaintiff will continue
to live with chronic
pain and such pain could be alleviated by
conservative treatment which includes physiotheraphy and medication.
The pain will not
go away but will be better managed by treatment. He
further testified that there is a 60% chance that plaintiff will
require hip
replacement at the age of 50. He also conceded the
difference of opinions with his counterpart, Dr Bogatsu that the
plaintiff will
not require any surgical intervention. He testified
that cartilage is not a bone or a muscle but a layer between the
bones which
works as a wear and tear. It will therefore not show on
the x-rays. Dr Bogatsu did not come to testify for the defendant
despite
the court being informed that he will come to testify.
9.
It is argued on behalf of the defendant
that Dr Frey conceded that there is 40% chance that plaintiff will
not require hip replacement.
He further conceded that once hip
replacement has been done, the pain will go away. It is submitted
that the mere fact that plaintiff
only has 60% chance of undergoing a
hip replacement, at the age of 50, goes to show that he can manage
and become anything that
he aspires to be. It is submitted that the
court can accept that if the plaintiff’s pain is managed
conservative treatment,
he will be able to perform his daily
activities.
10.
Ms Gibson’s expertise (as
neuropsychologist) was also conceded. Ms Gibson prepared a report
following an assessment of the
plaintiff on 4 September 2015 and an
updated report following a second assessment of plaintiff on 24
January 2018 (4 years after
the accident). She testified that the
testing and results of neuro-psychology are mostly the same as that
of educational psychology.
She further testified that plaintiff was
of average intellect, with seemingly an interest in his environment
and willingness to
be engaged and active.
11.
During cross examination, when it was
put to her that plaintiff has in fact done well and attained matric
with good results, she
testified that plaintiff is an adult doing
children’s work, hence his good performance. She further said
that this will apply
to all adults who are doing children’s
work because they are matured. She said plaintiff had the advantage
of doing well
in his grade because he repeated the grade. She
testified that the RAF should assist the plaintiff to cope with his
future bearing
in mind his difficulties. She testified that plaintiff
is now even more motivated, but will not end up in a field he would
have
been occupationally, because of the accident.
12.
It was put to her that plaintiff was
doing badly even before the accident, having failed at least three
grades in high school and
also failing in West College. She testified
that she still holds a view that the accident has now exacerbated the
plaintiff’s
pre-existing condition. Even though he has now
attained grade 12 with better results, he is now at an associated
risk of future
psychological disorders. Ms Gibson’s testimony
was not based on any collateral information. Her opinion totally
disregarded
the plaintiff’s pre-existing condition. She differs
with her counterparts about the plaintiff’s pre-accident
intellectual
ability which is not based on facts. It was argued for
the defendant that her opinion and testimony is not logically and
factually
based.
13.
Ms Gibson testified with regard to
the plaintiff’s neuropsychological problems, which include
difficulties with attention,
memory and expressive language, slowed
learning and restricted vocabulary. She is of the view that there is
a risk of future psychological
disorders, particularly when plaintiff
realises his restrictions and inability to progress despite the
dedication and commitment
which he has shown thus far. Her opinion is
that the plaintiff is at risk of a total loss of earning capacity, or
at best being
employed at a very low level. This prognosis takes into
account the plaintiff's Grade 12 equivalent pass and demonstrates
that
future employability is determined not only by the level of
academic achievement but must take into account how even subtle
problems
may have a significant impact in the work environment.
Furthermore, Ms Gibson testified that the accident had robbed the
plaintiff
of the ability to pursue his real interests in more
creative fields such as photography or journalism.
14.
Ms Gibson was of the view that the
main reason for these repeated failures was the plaintiff's
disinterest in the school curriculum
and a desire to pursue other
interests such as photography and journalism. She was adamant that
there was no indication of any
pre-existing intellectual deficit and
testified that the plaintiff was probably in the average intellectual
range prior to the
accident.
15.
In her first report Ms Gibson states that
despite his poor pre-accident performance she considered it likely
that he could have
achieved the equivalent of matric plus three years
of tertiary education, given some time. This view was confirmed in
her testimony
and is supported by the plaintiff's actual
post-accident performance in that he has managed, through sheer
persistence and despite
the sequela of his injuries and numerous
failed attempts, to obtain the equivalent of a grade 12 pass and has
enrolled for a tertiary
qualification.
16.
Mr
Marc
Peverett’s expertise was conceded. He assessed the plaintiff on
the 8
th
May 2018. He testified that his opinion was based on all the
medico-legal reports including that of the Neuropsychologist, Ms
Gibson. He testified that now that the plaintiff has passed matric,
it will take at least two to three years more for him to complete
his
Diploma due to the difficulties resulting from the accident. He
testified that the plaintiff will therefore enter the open
labour
market at a lower quartile than before the accident. During cross
examination, it was pointed out to him that the plaintiff
had
pre-existing difficulties and therefore the before and after the
accident scenario should be the same for him in respect of
his
earnings.
17.
Mr Peverett based his opinion on the report
by the Neuropsychologist. It was argued on behalf of the defendant
that the Industrial
Psychologist further commented on the field which
is not his expertise with regards to the time of completing a
diploma. Therefore,
his opinion is not logical.
18.
The expertise of Dr Shevel, as a
Psychiatrist was admitted. His testimony was that pain affects
concentration and focus. If it is
treated, his pain will go away and
his concentration and focus will improve. He testified that plaintiff
has mild depression which
can be attended to by psychiatric
treatment. He conceded that he did not seek collateral information to
find out what caused plaintiff’s
difficulties before the
accident. He conceded that he had medico-legal reports and more
especially the one by an educational psychologist
but did not find
the reason for his difficulties before the accident.
19.
It is further argued on behalf of the
defendant that Dr Shevel confirmed that once pain has been controlled
and psychiatric treatment
has been administered, then plaintiff will
lead a healthy life. He will be able to solve problems, concentrate
and focus. It is
further submitted that this is important in what the
court should make of the Industrial Psychologist’s and the
Neuropsychologist’s
opinion about the plaintiff. In the
circumstances, it is respectfully submitted that the Honourable Court
can accept the version
of Dr Shevel, and in doing so should find that
the Plaintiff’s career progression, having regard to his
injuries, will be
the same though with difficulties.
20.
Ms
Mikateko
Mantsena’s an educational
psychologist, confirmed that she saw the plaintiff on the 23
rd
June 2016, and at that time, he was struggling with his Grade 11 NQF
level at the West College. At the time of the assessment she
had no
reason to believe that he will go beyond grade 12 because he had
failed at least three grades in the mainstream and went
on to fail
again at the college. He further dropped out of school in the year
2012 and 2013. He went back to school in 2014. She
testified that
many things including socio economic reasons could have made him fail
grades before the accident including learning
difficulties. She
further testified that the schooling system currently allows learners
to go through the grades even if they are
not doing well and their
learning problems only become apparent in the higher grades because
they are regarded as adults and therefore
teachers do not baby them
as much as they did in primary schooling. She emphasized that
teachers only give more attention to children
until grade 8 and
beyond that, the children are on their own. Therefore, even if
plaintiff had problems, it would not have been
known because we did
not have school reports in primary school and this is despite calling
for them. It is submitted on behalf
of the defendant that her
testimony was not challenged and in the absence of any contrary
evidence, the court should accept her
version.
21.
She further testified that now that
plaintiff has passed grade 12, he would be delayed by 2 years to
compete his diploma. She further
testified that had it not been for
the accident, he would have been delayed by a year.
22.
Ms Mantsena testified that in her opinion
the plaintiff would have been capable of obtaining a Grade 12
equivalent pass and a 3
year tertiary qualification. In addition, she
testified that even with the
sequalae
of his injuries he will still be able to obtain a 3 year tertiary
qualification. When it was pointed out to her during cross
examination
that in her report and in the joint minute between her
and Ms Trollip she was of the view that the plaintiff would not
proceed
beyond a Grade 12 equivalent, she was unable to provide a
satisfactory explanation. It is argued on behalf of the plaintiff
that
Ms Mantsena was therefore an unsatisfactory witness and insofar
as her evidence conflicts with that of Ms Gibson, it should be
disregarded.
23.
Ms Trollip was in agreement with Ms
Mantsena in the joint minute that pre-accident the plaintiff would
have struggled to obtain
a Grade 12 equivalent pass. In her report Ms
Trollip states that it is probable that plaintiff would not have
completed Grade 12
even if he had not been injured. The plaintiff’s
post-accident performance demonstrates that this opinion is clearly
incorrect.
24.
The evidence of Ms Trollip contained in the
aforementioned joint minute can also be safely
disregarded insofar as it
conflicts with the evidence of Ms Gibson.
REASONS
FOR JUDGMENT
25.
The first aspect to be determined is what
plaintiff's earnings would have been had he not been injured. Munro
Forensic Actuaries,
for the plaintiff set out plaintiff's likely
uninjured earnings at the amount of R 4,065,000.00. The injured
income is set out
at R 1 863 400.00. This calculated is
prior to any contingency deduction. It is assumed the plaintiff's
pre-accident
and post-accident earnings are calculated on the basis
that he would have obtained a Grade 12 equivalent plus a 3 year
tertiary
qualification.
26.
In the actuarial report, contingency
deductions of 15% have been applied to the plaintiff's uninjured
income and 25% to injured
income. Using these percentages and
assuming the best case scenario, the total loss of income would be
R2,057,700.00.15.
27.
The defendant’s counsel argues that
in the consideration of the totality of the evidence, the version put
forward on behalf
of the Defendant is not only the most plausible,
but also the more probable on a balance of probabilities.
28.
The Defendant however accepts that Plaintiff’s
difficulties have been aggravated by the accident. It is argued for
the defendant
that Mr Alex Munro of Munro Actuaries had previously
calculated the Plaintiff’s loss of earnings on the basis
postulated
by Mr Marc Peverett (Industrial Psychologists employed by
the Plaintiff). As an academic exercise Mr Munro was further
instructed
to calculate the Plaintiff’s future loss of earnings
using the pre-morbid scenario and adopting the scenario put forward
by Mr Peverett in his report but his calculations are not the same as
post-morbid scenario.
29.
The Defendant therefore submits that based
on difficulties before the
accident, the
fact that it is not known whether the pre-difficulties will still
persist, then Plaintiff’s earnings should
be the same pre and
post morbid with a higher contingency being applied in the post
morbid earnings because of the aggravated difficulties
because of the
accident.
30.
In the premises it is respectfully
submitted that the Honourable Court should accept the Defendant’s
version as set out above,
and in doing so order the Defendant to pay
damages to the Plaintiff as follows:
31.
It is submitted for the defendant that in
respect of the Plaintiff’s future loss of earnings / earning
capacity, the Defendant
be ordered to pay the Plaintiff the amount of
R 406 500.00 which is calculated as follows: PRE-ACCIDENT
EARNINGS are R 4 065 000.00
Minus 25% due to pre-existing
difficulties= R 3 048 750.00. POST MORBID EARNINGS are R 4
065 000 Minus 35% due to aggravated
difficulties due to the
accident = R 2 642 250
TOTAL
LOSS OF EARNINGS CAPACITY IS
R
406 500
;.
32.
In view of these disabilities and
considering that Ms Trollip in her report was of the opinion that
even had he not been injured,
the plaintiff probably would not have
obtained a Grade 12 equivalent pass and Ms Mantsena, in
her report and in the
joint minute with Ms Trollip predicted a
pre-accident ceiling of Grade 12 equivalent, the plaintiff's
post-accident academic limit
for the purposes of calculation should
be no higher than a Grade 12 equivalent or at best a
considerably delayed diploma.
33.
On the other hand it is argued for the plaintiff that he has shown
exceptional perseverance and the highest determination post-accident.
In the circumstances it is submitted that a contingency deduction of
25% to uninjured income would be appropriate in this case.
34.
Having regard to his injuries, even though the plaintiff has managed
to obtain a Grade 12 equivalent, he is at risk of total
unemployability or at best, lengthy periods of unemployment. In the
circumstances, it is submitted that a contingency deduction
of at
least 40% should be applied to his post-accident earnings if the
court is of the view that a Grade 12 equivalent is the highest
academic level plaintiff will achieve. If the court is of the view
that the best case scenario set out in Mr Peverett's report
and which
forms the basis of the actuarial calculation is appropriate, it is
submitted that a considerably higher contingency deduction,
in the
region of 70 to 80%, is appropriate.
35
If a contingency deduction of 40% were to be applied to the
plaintiff's injured income his total future income would be
R1,118,040.00
on the best case scenario and his total loss would
amount to R2,946,960.00. It is submitted that this amount would be an
appropriate
award if the court finds that the best case scenario
appropriate contingency deduction would be 20% as the plaintiff would
be classified
as a youth.
36. Mr Peverett has set out the
plaintiff’s prospective earnings having regard to his injuries.
He assumes a
best possible
outcome but emphasises that the
plaintiff is significantly vulnerable which should be taken into
account in assessing an appropriate
contingency deduction. This best
case scenario, which assumes that the plaintiff will obtain a 3 year
diploma qualification (although
this is not probable) forms the basis
of the actuarial calculation, where the plaintiff's injured income
before any contingency
deduction amounts to R 1,863,400.00.
CONTINGENCY
DEDUCTIONS
37.
Contingency deductions must be applied to both injured and uninjured
income. It is trite law that contingency deductions are
a matter for
the court's discretion. In the case of
Smit
v Road Accident Fund
[1]
the court held that the assessment of general contingency
deductions is not something upon which the opinion of expert
actuaries
is appropriate. Actuarial calculations naturally take into
account contingency factors such as inflation, income tax and
relevant
to mortality assessment factors.
38.
The courts are asked to decide on general contingencies that reflect
the ordinary incidents of chances of life. This means making
a
reasonable allowance for contingencies the result of which it is
impossible accurately to assess.
[2]
To determine allowances for such contingencies the court will have to
engage in a process of subjective impression rather than
objective
calculation.
[3]
39.
The circumstances of both plaintiff and defendant must be considered.
The courts own feel for the impact of the risks of illness,
accident
and economic adversity. The adjustment for contingencies is in the
nature of a valuation adjustment establishing a fair
balance.
[4]
40.
Koch, correctly points out, that the adjustment for contingencies is
almost without exception a deduction. See
Bay
Passenger Transport Limited v Franzen
1975
(1) SA 269
(A)
at 274 F to 275 D
.
41.
This being said, a proper analysis of the contingency issue requires
there to be taken into account both positive and negative
contingencies. See
Southern
Insurance Association Limited v Bailey NO
1984
(1) SA 98
(A)
117 B – E.
43.
Whilst each case must be judged on its own facts, the approach of the
courts in the past and a comparison with other cases is
of
importance. Koch points out that at least up to the time of the
writing of his book in 1984, deductions used in practice ranged
from
0 to 60 % with 10 to 20 % being the most common whilst recognition
had been given to the principle that a short period of
exposure to
the risk of adversity justifies a lower deduction than would be
appropriate to a longer period.
44.
The RAF Practitioner’s Guide (Lexis Nexis) states that the
percentage applied depends upon a number of factors and ranges
between 5 % and 50 % depending upon the facts of the case. A number
of decisions are referred to including, more recently,
Van
Plaats v SA Mutual Fire and General Insurance Company Limited
1980
(3) SA 105
(A)
at 114 – 115 A – D; Nienaber v Road Accident Fund (A
5012/11) [2011] ZAGPJHC 150
.
45.
Put otherwise there is always the chance of good fortune which must
be balanced against the risk of the bad. See
Ngubane
v South African Transport Services
[1990]
ZASCA 148
;
1991
(1) SA 756
(A)
at 781 F
.
46.
The trial judge exercises a discretion with reference to the relevant
facts. Having regard to the factors already taken into
account by the
actuary, here follows a list of matters which might be taken into
account:
47.
The possibility of errors in the estimation of the plaintiffs life
expectation and retiring age; The likelihood of illness and
unemployment which would have occurred in any event or which
may in fact occur; Inflation or deflation in the value of money
in
the future; Alterations in cost of living allowances; Cost of
transfer to and from work; Accidents or other contingencies
which
would have affected earning capacity in any event; Loss of pension or
provident fund benefits. This is not a closed list.
48.
In the Quantum Year Book by Koch (2013) he states correctly that it
is usual for a deduction to be made for general contingencies
for
which no explicit allowance has been made in the actuarial
calculation. He mentions things such as saved travel costs, loss
of
employment, promotion prospects, divorce and the like. Whilst he
points out that there are no fixed rules in this regard he
suggests
that a guideline of a sliding scale of ½ % per year to
retirement age i.e 25 % for a child, 20% for youth and 10
% in middle
age may be appropriate.
49.
He points out that the RAF usually agrees 5 % for past loss and 15 %
for future loss as a “normal” contingency,
but points out
that in suitable circumstances a nil deduction may be appropriate.
See
RAF v Reynolds 2005 (5) QOD D3-1 (W).
50.
He points out that the risk of early or late death is always made in
the actuarial calculation and no further adjustment need
be made
herefor in general contingencies.
51.
He points out that differential contingencies are commonly applied,
that is to say a certain percentage applied to earnings
but for the
accident, and a different percentage to earnings having regard to the
accident. He gives the following examples:
52.
According to Koch as cited above the "normal" contingency
deduction is 5% for past loss and 15% for future loss.
53.
The defendant admitted that the Plaintiff suffered a mild concussive
brain injury. The Neuropsychologist’s tests
identified
cognitive problems and that plaintiff is at risk of future
psychological disorders and failure with associated negative
behaviour and habits. Furthermore, the plaintiff is suffering from
mild post-traumatic Organic Brain Syndrome which invariably
adversely
affects coping and adaptation skills. The plaintiff is at risk of
developing a variety of underlying organically based
psychiatric
conditions relating to mood and behavioural disturbances. Further
consideration must be taken of the physical, neuropsychological
and
psychiatric sequelae of plaintiff's injuries as these will clearly
affect plaintiff’s employability.
54.
I cannot accept the defendant’s proposal that the
pre-morbid future
earnings and post morbid future earnings be regarded as the same. The
defendant offers no basis for such submission
and failed to engage
the services of its own Industrial Psychologist and Actuary despite
the fact that it has the ability to do
so.
55.
In light of the above
I have no option but to rely on the submissions of the plaintiff
’
s
experts whose evidence is not impugned by their counterparts.
I conclude that the difference in
contingency deductions between the parties is 5% for uninjured income
and is also 5% for injured
income. Therefore, I conclude that
appropriate contingencies are 20% for uninjured income and 30% for
injured income. Therefore,
pre-accident earnings are R 4 065 000
Minus 20%= R 3 252 000.00 and Post Mordid earnings are R 1
863 400.00
Minus 30%=R 1 304 380.00.
Therefore,
the total loss of income is R3 252 000.00 minus
R1 304 380.00= R 1 947 620.00.
56
. I make the following
order:-
1.
The defendant is ordered to pay the
plaintiff an amount of R 2 447 620.00.
2.
The Defendant will provide the Plaintiff
with a statutory undertaking in terms of
Section 17(4)(a)
of the
Road
Accident Fund Act.
3.
Defendant
to pay the costs
EN
RAMAPUPUTLA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING: 09 NOVEMBER 2018
DATE
OF JUDGMENT: 13 DECEMBER 2018
APPEARANCES
PLAINTIFF’S
COUNSEL: I SMITH
INSTRUCTED BY: RAPHAEL & DAVID
SMITH INC
DEFENDANT’S
COUNSEL: M PUTUKA
INSTRUCTED BY: MARIBANA MAKGOKA INC
[1]
(1820/10)
[2013] ZAECGHC 57 (5 March 2013)
[2]
Sigournay
v Gillbanks
1960
(2) SA 552
(A)
at 569 A.
[3]
Shield
Insurance Company Limited v Booysen
1979
(3) SA 953
(A)
at 965 G
[4]
Koch-Damages
for Lost Income page 59 .