R v Road Accident Fund (67408/2012) [2017] ZAGPPHC 422 (1 March 2017)

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[2017] ZAGPPHC 422
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R.G v Road Accident Fund (67408/2012) [2017] ZAGPPHC 422 (1 March 2017)

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 REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
1 March 2017
CASE
NO: 67408/2012
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
R
G
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
On 23 November 2012, a 55 year old
Plaintiff, Ms G R, ("Ms R") instituted an action against
the Road Accident Fund as
a statutory insurer in terms of s 17 of the
Road Accident Fund Act 56 of 1996 ("the Act"), as amended,
("the Defendant")
for compensation for damages she
allegedly suffered arising from personal injuries she sustained when
a motor vehicle with registration
number […] GP ("the
insured vehicle") driven by one Bheki Khumalo ("the insured
driver") in which she
was a passenger overturned on the
Heidelberg road near Alberton on 8 November 2010.
[2]
In her particulars of claim Ms R alleges
that the sole cause of the accident was the insured driver in that he
drove the insured
vehicle negligently in one or more respects as set
out in her particulars of claim, and to have as a result sustained
the following
personal injuries:
[2.1]
Chest injury;
[2.2]
Head injury;
[2.3]
Left and Right Knee;
[2.4]
Right eye injury;
[2.5]
Multiple lacerations and abrasions.
[3]
Ms R further contends that the injuries
constitute a serious injury as envisaged by s 17 (1A) of the Act, and
claimed in his particulars
an amount of R660 000.00 (Six Hundred and
Sixty Thousand Rand) constituted as follows:
[3.1]
Past Medical Expenses

R10 000.00
[3.2]
Future Medical Expenses

Undertaking ito Section 17 (4) (a)
[3.3]
Past Loss of Income

R50 000.00
[3.4]
Future Loss of Income

R100 000.00
[3.5]
Non- Pecuniary Loss (General Damages)     R500
000.00
With
a proviso that the amounts were still to be substantiated.
[4]
Save for admitting to Ms R's personal
details, citations and
locus standi,
the
Defendant, in its Plea, denied any liability to her claim, putting
her to the proof of all the allegations in her particulars
of claim.
The Defendant pleaded in the alternative that, if Ms R is found to
have sustained injuries and suffered the consequent
damages as
alleged, it denies that such injuries and damages are related to the
accident. It pleaded further in the alternative
that, if the injuries
and damages are found to be related to the accident, Ms R
contributed
to the injuries and or damages she may have suffered,
due
to her failure to comply with the rules of the National Traffic
Legislation.
[5]
The Defendant's plea indicates a lack of diligence and prudence. It
referred to Ms R as a "he" and claimed contributory

negligence from her even though she pleaded to have been a passenger
in the car and the insured driver's motor vehicle to have
been the
only vehicle involved in the accident. Also, the Defendant had, in
agreement with Ms R's particulars, pleaded that the
accident was
caused by the insured driver's sole negligence, and thereafter stated
in contradiction to that assertion, that 'if
the court does find that
the insured driver was negligent as alleged it denies that such
negligence was the cause of the accident.
No exception was raised to
the pleading. Both parties lacked attentiveness.
[6]
On 25 March 2015, a few weeks before
trial that was set down on 4 May 2015, Ms R's particulars of claim
were amended. The injuries
she sustained were amended to include the
following:
[6.1]
A head injury with
brain
injury;
[6.2]
Multiple soft tissue
injuries on the face;
[6.3]
Paralysis of the sixth cranial nerve;
[6.4]
Injuries to both
patelia
femoral
joints;
[6.5]
Multiple soft
injuries over her body.
[7]
Furthermore, the total amount she
was claiming was also amended to R2 310 000.00 with the past loss of
earnings amended to R300
000.00, the future loss of earnings to R1
000 000.00 and general damages to R1 000 000.00. The increase in the
loss of earnings
was stated to be for the reason that:
[7.1]
R has
a grade 12
level of education;
[7.1]
At the time of
accident she was employed as a machinist at Service Products since
June 2010;
[7.3]
In addition to her
employment she also conducted 2 businesses of her own, catering and
sewing.
[7.4]
But for the
collision R would have been promoted into a supervisory position
and
would have continued with her catering and sewing business.
[7.5]
As a result of the
collision R's job description was changed from stitching the garments
to cleaning them of excess threads;
[7.6]
R's
business in
catering and sewing collapsed and she lost this source of income;
[7.8]
It would appear that
R is now in significantly sympathetic employment and not expected to
be sustained much longer;
[7.9]
The Plaintiff is for all intents and purposes
unemployable.
[8]
Prior thereto, on 27 November 2014
the parties had agreed in a pre-trial conference in respect of the
status of the documents that,
during the trial copies may be used.
The documents will serve as proof of what a document purports to be
without further evidence
thereof being necessary, the truth of the
content of such document not being admitted. It was also noted that
in the accident report
in possession of the Defendant, the Plaintiff
is not mentioned to be one of the passengers that were in the insured
motor vehicle
at the time of the accident.
[9]
At the beginning of the trial, I was
however accordingly advised that the issue of liability has been
settled. The Defendant conceded
100 % liability of Ms R's proven
damages.
[10]
The Defendant on the main
challenges,
inter alia,
the
extent of Ms R's damages arguing that the amount that was to be paid
to her with regard to loss of earnings was to be nominal
as
she
was employed informally (in a sheltered employment) at the time of
the
accident and that there was no
proof of the additional business that she alleged she was conducting
for an extra income. Also that
if she proves that she ran an
additional business, she must prove the impact of her injuries on her
ability to continue with the
business. In other words indicating that
she was so affected to the extent that she would not be able to
continue with the business.
[11]
Ms R, as a result bore the onus to
prove the nature, extent and
sequelae
of
her damages on a balance of probabilities. She was therefore expected
to demonstrate that her head/brain injury resulted in a
significant
neuropsychological or cognitive impairment that impacted on her
ability to continue with her informal business and
or being a
participant in the formal labour market and affected her life in
general as alleged in her amended particulars.
[12]
The parties agreed that the reports
compiled by the experts filed of record, specifically the ones
consulted by Dr Cathy Angus in
compilation of her report and
mentioned during her evidence, are to be considered by the court in
determining the exact nature
of Ms R's damages and the appropriate
compensation she is to be awarded, only to the extent of what they
purported to be, and not
as to truth of content. They were to be
admitted as reflecting both what they had been told and an opinion
based on the information
they identified, it being the court's
function to weigh them and make an appropriate finding should they
differ.
[13]
The reports that were handed in are
those of experts, Dr J J du Plessis (Neurosurgeon), Ms Cathy Angus
(Clinical Psychologist);
Ms Ida-Marie Hattingh (Speech/Language
Pathologist & Audiologist); Dr David Shevel (Psychiatrist); Ms
Alison Crosbie (Occupational
Therapist); Dr Van den Bout (Orthopaedic
Surgeon); Dr L van der Merwe (Opthalmologist); Ms Rialette Gaus
(Speech /Language Pathologist
& Audiologist); Mr Louis Linde
(industrial Psychologist); Mr G Whittaker (Algorithm); Dr S Bouwer
(ENT Specialist); Ms Celeste
De Freitas (Speech Therapist &
Audiologist)
EVIDENCE
[14]
Evidence was led on behalf of Ms R
by three witnesses, that is, Ms Cathy Angus ("Angus"), the
clinical psychologist whose
special interest is in neuropsychology,
Ms Mary Khanyile ("Khanyile") R's friend and Ms R. The
sequence followed was
a result of the initial indication by Ms R's
counsel that she was not going to testify as they think she will not
be able to follow
the proceedings. However after the evidence of the
first two witnesses, she was called to testify. No evidence was led
on behalf
of the Defendant. Counsel for the Defendant indicated that
the matter would be argued on Ms R's case. Titles hereafter if not
used,
is
to curtail proliferation of words and ease of reference, with no
disrespect intended.
[15]
Dr
Angus,
whose expertise were not in dispute was the first to testify. She
indicated at the beginning of her testimony that the report
she was
presenting was compiled in consultation with R and with reference to
the following relevant sources:
[15.1]
Hospital records;
[15.2]
RAF Forms 1 and 4;
[15.3]
Medico- legal reports by Dr AH van den Bout (the
Orthopaedic
Surgeon),
Dr L van
der Merwe (the
Opthalmologist/Eye
Specialist),
Dr J J
du Plessis (the Neurosurgeon), Dr D Shevel
(the
Psychiatrist),
Ms R
Gaus (the Speech Language Pathologist and Audiologist), Ms I Hatting
(Speech/Language Pathologist & Audiologist);
[15.4]
Telephonic interview with Ms Busi Zulu (daughter) and Ms Elrika
Coetzee a Human Resources Manager and Patricia a Supervisor
from
Service Products.
[16]
She testified to have reported the
following, that: Ms R's level of education is Grade 12. Her hospital
records show that she suffered
a
mild
head injury
in the accident. Clinical
tests that followed show a moderate and a peripheral vision, some
areas the intensity being average, with
two (double) tracks of
concentration. She could not understand Ms
R
when she spoke to her
as Ms R struggled
with details. Information had to be repeated to her, always and she
confabulated, making up her own information
which would normally
impede any hearing/learning. Her
opinion
was that the problem that manifested itself in Ms R was psychometric
and therefore she supported supervision. A
reasonable
time for recovery
for a mild
brain injury
is n
ormally
a
two year period
,
after which no further improvement to the injury is expected
(deferring to her report for further analysis).
[17]
On Ms R's capacity to earn
-
she figured that issues that could impact on
her
ability to sustain her business are her cognitive mental functional
problems, like depression, anxiety, physical condition intertwined

with inability to stay focused.
During
the interview she observed that R withdraws when a
ngry
but was appropriately emotional at times
.
She regarded R's mood as euthymic (which is a normal non­
depressed reasonably positive mood).
She
indicated that prior to the accident Plaintiff's physical
disabilities made her work at a sheltered employment company under

the auspices of the Labour Department.
The
disabilities did not include cognitive problems and her physical
condition considered treatable. However at the time of accident
R was
already
working at a sheltered
employment. She went back after the accident and was paid the same
amount of salary she earned at the time
of the accident.
Dr
Angus reckoned that due to the condition of R's ailments, should she
loose her work at the sheltered employment, she will not be
able to
find other work.
She considered her to
be unemployable in an open labour market, her cognitive ability,
drive and motivation to have been reduced
and her combination of
problems to vastly reduce her ability to
handle
problems.
[18]
She said Ms
R's
letting her aunt take over her house,
transferring
the house to the aunt's name
displayed
a deficiency in her ability to judge. She
could
therefore be easily and unduly manipulated and influenced by outside
sources.
However in handling of
substantial award, she was of the opinion that Ms R
could
handle day to day finances
but advised
that large amounts should be handled by an expert. She said she
concurred with
Dr du Plessis's
report
that Ms R will require some level of protection and supervision since
she is a vulnerable individual who can be easily manipulated
and
influenced by outside sources.
[19]
On the question of the serious head
injury, her take was that during the consultation Ms R became really
fatigued. Occasionally,
they had to repeat instructions to her
although not always. On the concept of a court room performance, Ms
Angus was certain that
she would cope with giving evidence, but
needed just to be asked in a simple and constructive manner. She said
her short term memory
was not functioning properly, however her old
learning was still stable. The stuff that she already knew will
remain, so she will
not have a problem with that since it is
something that she has lived with. Commenting on the suggestion that
was made that she
might have difficulty answering questions that are
even simple, Angus' replied that if 2 or 3 long and complicated
questions are
asked at a time, Ms R will struggle. However on issues
of recollection of the accident even when considered with regard to
her
short term memory, Angus did not think she has forgotten, but
regarded her only problem being with the day to day events. She also

was of the opinion that Ms
R does not
need a
curator ad litem.
Although
if the court was to be asked to
consider if Ms R would indeed need curatorship then she said her
recommendation would be that the
services of a psychiatrist be
engaged. Although due to Ms R's
severe
brain damage her money will need to be protected from her aunt,
it
however has not been suggested that she needs a curator.
The
information she got from Ms R was that she has got problems with
exercising judgment and therefore needs to be protected.
[20]
On the
sequelae-
She confirmed that Ms R was a
few months before the accident, already diagnosed, with dizziness,
osteo-arthritis and a problem with
the right eye.
The
ailments were treatable by medicine. Her
present
situation could be controlled, she has to get a neuropsychology
treatment,
the medical expertise on
depression and anxiety, a field of specialty.
She
pointed out that the treatment is not curative but assist to improve
the quality of life.
Ms R will still be
able to knit and be able to communicate as well. The symptoms that
she had before were mostly physical and not
cognitive, she only
experienced the cognitive after the accident. Ms Angus confirmed (as
pointed out in Dr Linde's report) that
a
report
written by Dr SB Khumalo
("Khumalo")
indicated that she was diagnosed with the
hypertension,
osteo-arthritis, right eye short sightedness and peptic ulcer disease
prior to being employed at Service products.
For
this reason she was placed in a sheltered employment as a mechanist.
When she went back after the accident she was downgraded
to cleaning
the clothes. Therefore
it is possible
for Plaintiff to find her own way and god willingly to live a normal
life again. The injuries sustained from the
accident were mild.
[21]
Ms Khanyile was the next witness to
testify. She testified in respect of the informal business that Ms R
allegedly operated. Her
testimony was that she knew Ms R from Soweto
where they all stayed prior to moving to Dawn Park. Ms R moved to
Dawn Park first
in 1991. She followed in 1996 and they linked up
again. She assisted R to run a dressmaking business that she started
when she
was in Soweto and continued with it at Dawn Park. Ms R was
now also doing catering. They catered for weddings, parties and
mostly
government functions. The size of groups catered for was
dependent on the event whether it was a wedding or a government
function.
In respect of Government functions they used to be told the
number of people to be catered for, usually about 200 to 400. They
did catering on average twice a month and it will depend on the type
of function sometimes they will cater for 4 to 5 days in a
week. She
assisted Ms R
with the business until
November 2010 when Ms R was involved in the vehicle accident. Ms R
stopped working after the accident.
[22]
When asked about the dressmaking,
she said it took place at Ms R's garage where she kept her
industrial
machines, cutting tables and materials.
She
sew gowns, costumes and garments for ladies. They used to
start
at 7h00 early in the morning work until 17h00. If they had a big
order they will work until 10 at night,
depending
on the workload.
When Ms R was working
she would come back from work and do her part.
She
used to go to Ms R's house more frequently to assist her.
Ms
R was not well when she came back from hospital in November 2010.
It
was bad because she is the one who had the skills and did all the
cutting. She would forget orders. One example is when Ms R
forgot
about a jacket that she had bought her. She also had to help Ms R to
wash her clothes after she came out of hospital.
[23]
In explaining how the business was
conducted she said Ms R took the money from customers, wrote down
their payment and issued receipts.
She kept a book
where
she wrote orders. She however could not comment on whether or not Ms
R reserved the books and receipts since it seemed Ms R's children

took the books. As far as she knows, Ms R paid tax and had a
certificate to prove it. She herself could not produce any proof
since she was not known to SARS as she was just employed. Ms R ran
the company. She confirmed that Ms R's
condition
has improved a little bit, she can now cook and sew again but not for
business. She tried sewing for other people but
has lost
interest.
With regard to catering she forgets
.
She would ask her if she has put salt in the food.
She
worked with Ms R from June until November 2010 when she was at the
sheltered employment. She did not have work when Ms R had
an
accident.
[24]
Ms R's testimony in chief was that
she finished school quite a long time ago, probably in 1974 or 1975
and got her first job at
Carola working as a table hand. The company
made jerseys and shirts. She did not work for long there and moved on
to
BagerTears
,
once more as a tablehand and later a
machinist. She worked for
Bagers
for 2 to 3 years, gaining experience in
making leather and denim handbags. She then moved to Sealy Trust also
employed as a machinist
doing stitching. She did dressmaking on the
side. In 2005, she registered a company for catering, transport,
cleaning and dress
making services, in order to expand and do other
things. She during that time compiled a profile for her company in
which she indicated
what services her company offered. On
construction, she explained that they did painting and repaired
windows of houses and schools.
She had actually started the business
in 2004 before she registered it as "Ka Wena Nka Phela
Construction" CC in 2005.
She had decided to formalize the
business, expand and register catering as well.
However
she could not get a clearance for catering and therefore could not
get the government jobs
. When she
registered the company in 2005 she was already at home with no formal
employment, having left Sealy.
[25]
Ms R confirmed that the only
documents she can produce as proof for the existence of the catering
business are, the Company Profile
and the registration documents of
the construction and catering business. She stopped the catering and
dressmaking businesses in
2010 after the accident. She had catered
for weddings, individuals, school events and for the Department of
Arts and Culture, for
groups of between 150 - 200 people. She used to
cook and do the decorations as well. She would
do
between 3 and 4 events in a month.
They
charged according to the number of days they would have catered and
the number of people.
[26]
On dressmaking Ms R produced an undated, unnamed newspaper tear sheet
of an article about a very young looking lady referred
to as Dipuo
Thulare and her thriving sewing business. She indicated that the
young lady was her. She confirmed that she looked
different in the
article and said at the time she was staying in Soweto (which should
be prior to 1991). According to the article
Dipuo was by then 12
years in the business, making leather bags and clothing. Ms R said at
the time she was using one of her bedrooms
as a workshop where she
kept a
double needle
stitching machine,
overlocker
and scrun machine, buttons, hole hamming machine. On weekends
she
worked right through
the night. When she was working she also did some of the work at
work. She was assisted by her friend Maria.
She
became very busy from 2005- 2010 when she was unemployed. There was
always people at her house. Sipho Hotstix Mabuse was one
of her
customers. She was always very busy unless if she decided to give
herself a break. She then worked with leather but also
did curtains,
trousers, coats and bags, charging R750, trousers R350 and leather
bags R300. She also did wedding dresses for which
she charged
according to whether or not they bring their own material.
The
average she was making per month was +-R10 000.00 and she
always
had work.
[27]
With regard to the books she
said
she had books were she wrote the orders but her
children
burnt everything when they were cleaning and nothing was left. She
explained that her
company
profile does not mention dress making because the profile was not
compiled for the Road Accident Fund. When it
was
put to her that also she could not produce any evidence on catering,
the newspaper article also does not say
anything
about catering.
She
said she cannot answer to that because she was under stress.
She
wanted to remember everything, but it is difficult.
She
said she
forgets
quickly and her forgetfulness is related to the accident. The doctors
told her she had a head injury and has been told that
she forgets due
to the head injury. She said she was however not sure about that
because she only saw herself hurt in the eye which
had
a
double vision. When she sees a car coming she does not know whether
to go left or right.
She
did not have a vision problem like that prior the accident although
she wore glasses. Every now and then she would have dizzy
spells,
actually every day, and she told all the specialists.
She
would like to be assisted in terms of dealing with the money. Her
daughter helped her,
but
she was now at university.
[28]
She testified further that she now worked at Service Products. At the
time she had an accident she WdS about to be promoted,
the promotion
due by December 2010.
She
missed on it
because
of the accident.
She
was instead, demoted when she came back to work after the accident.
However, as shown on the salary slip, she was paid the same
salary
she received prior to the accident as a mechanist. The salary that
was to be paid on promotion was never discussed. She
explained
that she ended up working in a sheltered employment company despite
running a lucrative business because she had a problem
with her
husband whom she was
divorcing
at the time, hardly six months before she had started there.
They
also did not employ just anybody that is employable at
Service
Products, but only
people with disabilities. However not everybody employed there has a
disability. A person has just to allege
that there is something wrong
with them to be employed there.
She
alleged to suffer from high blood
although
it was not true at
the time.
Now she
has got it. She obtained a letter from a
Dr
S Bheki Khumalo ("Khumalo") in which Dr Khumalo stated that
she was sick. She had told Khumalo to write that she suffered
from
high blood, hyper tension, gastro­ arthritis, right eye problem
with short sightedness and pelpic ulcer, to get the job.
At the time
she suffered from none of these ailments. She only suffered from
headaches and did not have any other health problems.
[29]
It was put to her that in recording all the history she told Dr
Khumalo, she did not mention what was a fact at the time, that
she
had an operation done on her wrist. She confirmed that she indeed did
not tell
Dr
Khumalo about the wrist operation
because
for her to be hired at the shelter she needed both hands to function.
She was asked why the court should now believe her
or the doctors who
had written reports reliant on the information she gave them, when
she had lied to a health official before,
registering non-existent
ailments and hiding information to get access to employment.
She
said she lied then because she was going through a divorce at the
time. She felt she had to go and look for something as the
situation
was not right at the house.
She
confirmed that she could not tell the court about any head injury
except the eyes. Her
61h
nerve cracked and caused the eye to make her to go to St John. She
felt that something was not right with the eye but could
not explain.
She said her eyes
were not painful now but better and
she
gets medication every month which makes her feel better.
She
also had a fracture on the ankle and not on the knees, which is not
related to the accident.
[30]
Furthermore
she told
the court that when she was injured, she was very busy making more
money than at the sheltered employment. She said she
however went to
work at the shelter because things were not right at home,
she
was going through a divorce
and
the job provided security in
some way.
So
she had to work for somebody else
even
though she was doing well working with a friend from the comfort of
her home. She refused to continue working for herself because

pensions and other things were not right. She confirmed again that
she did not have a single shred of paper to indicate that she
ran the
other businesses and also could not prove the income she generated.
She did not know
anything about bookkeeping. It was done by her daughter.
She
did pay tax and SARS issued her with a tax clearance certificate. She
however had no
idea
of their whereabouts. The children helped her with the certificates.
It was at the time they
stayed
in Soweto. They now don't have the books.
She
confirmed that before the accident she had no health problems she was
ok.
[31]
In re-examination
she reiterated her allegation that she told Dr Khumalo to write all
the fictitious ailments because she wanted
to get out of the divorce.
She also confirmed
that she also did not have peptic ulcer
when she actually claimed to have it. She said she only had problems
with her knees, headaches
and the back.
When the accident
happened they were talking in the taxi. She heard a scream, the next
thing she woke up it was after 5 days. She
was told that she was
airlifted from there to hospital where she remained for a long time.
She subsequently had dizzy spells.
ANALYSIS OF THE
EVIDENCE
Ms
R's evidence on her earning capacity
[32]
As it is evident, on Ms R's own version she has not been truthful.
She lied about suffering from certain ailments in order
for her to
secure the sheltered employment. She has therefore unjustifiably
continued to date to receive a salary with concomitant
benefits from
the state funded enterprise that she in reality did not deserve,
having secured the job illegally. Ms R's conduct
of fraudulently
obtaining the letter from Dr S B Khumalo that certified the existence
of fictitious ailments and using it to secure
the sheltered
employment, is a criminal act. The matter should be referred to the
National Health Professional Council of South
Africa ("NHPCSA")
for Dr Khumalo's role in the matter to be properly investigated and a
copy of the judgment be sent
to Service Products since R remains in
their employment to date.
[33]
A sense of justice anchored on basic principles of fairness and
legality calls for the Plaintiff's claim for loss of earnings
past or
future as far as this employment is concerned to be disregarded as it
cannot have any merit. The earnings of such an unlawfully
secured
employment cannot be legitimized, the income earned in such a way is
of an unlawful nature. The court cannot rely upon
such earnings to
determine the effects of the accident and its
sequelae
on Ms R's
employability and earning capacity which is against public policy. If
Ms R had not obtained the fraudulent medical certificate
she would
not have been in that employment, a Labour Department initiative.
One's age, colour, creed or station in life should
not cause society
to place a blind eye on crime. These are ill gotten earnings which in
actual fairness should be paid back to
the Labour Department.
[34]
Authorities advocate that when courts deal with illegally earned
income, they should consider the issue of future loss of earnings

from a perspective of the fact that what is being established is the
Plaintiff's weakened capacity to earn and therefore the illegality
of
the earnings may be a factor to consider as an inhibition or an
inherently diminishing factor of Plaintiff' capacity to earn
but not
an instant disqualifier for consideration of the loss; see
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1
973
(2) SA 146
.
In
Shield
Insurance
Co
Ltd
v Booysen
1979 (3)
SA AT 964 D-E it was said that even though some activities may be
found to be illegal, they can nevertheless be relied
upon as an
indication of a person's earning capacity. In
Dlamini
v Multilateral Motorvoertuig Ongelukkefonds
1992
(1) SA 802
(T)
it was held that illegal earnings as in illegal taxi-driving without
a licence could be taken into account as an indication
of the
deceased's earning capacity and that a deduction of 30 % should be
made for the change-over from illegal to legal taxi driving.
The
deceased could have earned the same monthly income from legal taxi
driving. However I believe it would be a different scenario
if the
claimant would never have qualified to obtain a licence and was
driving with a fraudulently obtained licence. No action
arises from a
bad cause.
[35]
It is trite law that an award of damages for the loss of a claimant's
earnings or earning capacity is intended to place him
in the
financial position he would have been in, had it not been for the
delict, to allow him to enjoy financial benefits equal
to the quantum
of the earnings lost by him. It is not intended to be a money making
scheme as it has turned out to be. In
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA)
on para [10]- [11] of the judgment, the court made it quite clear
that a reduction in earning capacity only results in a loss
if it
gives rise to a pecuniary loss. 'Similarly, and on grounds of public
policy, a South African court would not make an award
for diminution
in earning capacity if the only way in which the earning capacity
could remain productive was by a failure on the
part of the claimant
post­ accident to comply with his legal duties or by perpetuating
the criminal conduct; see
Heese
NO v Road Accident Fund
(A
586/2012)
[2013]
ZAWCHC 157
;
2014 (1) SA 357
(WCC) (23 October 2013).
[36]
In this case the illegality will pervade Plaintiff’s earnings
into the future. Recognising her continuance in her illegally

obtained employment and the earnings, the court will then be
perpetuating the criminal conduct. Our courts should therefore draw
a
line between earnings obtained illegally and those obtained through a
criminal act. The court should disregard the latter earnings
and only
consider the fact of the earnings in the former situation as a
diminishing factor. Any regard to such earnings would be
an affront
to public conscience and therefore opposed to public policy.
[37]
Ms R has unashamedly proceeded to
seek as part of her claim, compensation for having missed on the
promotion for the job she illegally
secured. In consideration of all
the factors in this matter, the earning power of Ms R based on this
illegally obtained employment
may not accurately represent her future
economic damages. Any claim premised on the sustainability of this
job affronts public
policy and is unmerited, more so since the
Applicant is directly involved in the fraud and had in the process
listed the services
of other people, like Dr Khumalo, to perpetuate
the deceit and realise her criminal objective. So even if Ms R's
conduct was to
be equated with the circumstances in
Dlamini
where the courts have taken into
account earnings derived from illegal activities for a loss of
support claim, the direct involvement
of Ms R being the claimant
in
casu
and the criminality of Ms R's
conduct differentiates between the two cases.
Dlamini's
driving of the taxi without a licence
is an illegal act but it can hardly be regarded as a criminal act;
see
Wong Keungv Ng Kwok-Leung, H.C.
Action
3143/75 (Unreported)
where
Justice L
i
found it rather difficult to assimilate the earnings of an unlicensed
hawker with the illegal earnings of a criminal. Such differentiation

also was reflected upon in a matter of
Mak-Yuk-Kiu
v Thin Shing Auto Radio CTR. Ltd
[1981]
HKLR 77
in support of a decision where the claimant was directly
involved, having aided and abated the deceased to obtain the illegal
earnings,
her claim was not to be allowed; at 83 Chief Justice
Roberts of Hong Kong High Court stated that:
"I
do not suggest that in all circumstances dependents would be able to
recover if their income has been derived from criminal
activities. It
may well be that they would be barred in some cases, for example if
they had themselves taken a direct part as parties
in the illegal
activity which gave rise to the income"
[38]
Ms R further testimony about the
informal work or business she alleges she was conducting outside her
supposedly formal employment
as a source from which her earning
capacity could be assessed is the only evidence left to be considered
by the court, dependent
on its probability or trustworthiness. The
court has to also determine its veracity.
[39]
According to Ms R, outside the
formal employment of
Service
Products, she also ran a business
of dressmaking and catering, earning a monthly income of +- R10
0000.00. The loss of earning capacity
on this business has according
to the amendment effected on her particulars escalated her claim for
future loss of earnings to
R1 000 000.00. Considering her overall
performance in court which was very unimpressive, the court has to be
guarded in evaluating
that evidence. The Plaintiff could not just be
taken on her word, having regard to the whole of her testimony and
the issue of
her unreliability.
[40]
It seems appropriate then to deal
first with the veracity or sincerity of this claim and its relevance
to her earning capacity before
considering the other categories of
damages and their extent and the amount of her proven damages that
are payable. Her allegations
in relation to the existence of such
businesses was to be corroborated supposedly by Ms Khanyile and the
article from the undated
newspaper, the only two determinants from
which the existence of the businesses could be ascertained, there
being no other hard
facts.
[41]
Ms Khanyile's version was that she
worked with Ms R in Soweto, until 1991 when Ms R moved to Dawnpark.
In 1996 when she also moved
to Dawn Park she again assisted her with
the business of catering and dressmaking. Ms R alleges that she was
featured in the article
as a successful businesswoman a very long
time ago whilst she was still staying in Soweto. At the time she had
established herself
in the sewing industry. As a result she looks
very young in the article and a lot more different from how she
looked in court.
From that viewpoint it sounds probable since
according to Ms Khanyile she would have left Soweto in 1991 that is
23 years ago from
the date of trial, therefore if true she would have
been 33 years old or younger. The article features her
prior
1991
as
Dipuo
Thulare, already a single mother with 3 children.
Yet
according to her and the information she told the experts she went
through a divorce in 2009 and 2010 which she alleged in court
to have
caused her to seek a letter from Dr Khumalo to secure employment at
Secure Product. According to all the experts then Ms
R was divorced
after leaving Soweto, 16 years later in 2009 or by 2010, which she
says was before her first 6 months at Secure
Products. So the article
cannot be about her. If the article is about her, then she was not
candid when she alleged that she obtained
the fraudulent medical
certificate on June 2010 she used to secure the sheltered job
because
she was going through a divorce.
According
to the article she was already single 23 years ago using her maiden
surname 'Thulare". Their evidence contradicts
the article.
[42]
Furthermore, according to the
article she was prior to 1991 already a single mother with three
children. Her youngest daughter by
that time would have been born.
However in 2014 her daughter was said to be 19 years old, which makes
it improbable that she would
have been born at the time the article
was published which would be prior to Ms R leaving Soweto in 1991.
Another contradiction
between Ms R's witnesses and the article.
[43]
Ms R in her testimony further stated
that when running her business in Soweto she was assisted by a friend
Maria or Mary, referring
to Ms Khanyile. Ms Khanyile confirmed that
they worked together in Soweto and also when they met again in
Dawnpark. Neither Ms
Khanyile nor Ms R, throughout their evidence
mentioned any other person who assisted Ms R at any time in any of
the alleged businesses.
Ms Khanyile under cross examination actually
confirmed that her version is that it was only the two of them and
she was the only
one offering assistance to Ms R who would call her
as and when there is something to do. The article on the other hand,
states
that Thulare employed two ladies to assist her to cope with
the demands of her dressmaking business in Soweto. The article
therefore
is not corroborative of Ms R or Ms Khanyile's evidence.
[44]
Furthermore the article does not say
anything about or mention catering, although it is Ms R's allegation
that she had started with
the catering business whilst she was in
Soweto.
[45]
Ms R also led the evidence on an old
document that profiled the business or services rendered by her close
corporation, for which
she was the sole director. Dressmaking her old
business or trade, is not mentioned, even though that is the only
business Ms R
spoke at length about during the trial, in an attempt
to prove an additional loss of what she alleges to have been a
lucrative
business she allegedly ran besides catering. It is alleged
in her particulars to form the basis of her claim for loss of her
earning
capacity. A business she claims to have been doing for
decades. Surprisingly none of the services she purported in the
profile
to have been running are mentioned in her particulars or her
testimony and no claim was filed in respect thereof. There is no
reason
proffered for the omission.
[46]
It is her evidence also that she registered her company in order to
expand the services she could provide to include dressmaking,
but the
company registration and profile as already indicated do not mention
dressmaking. Catering is also not mentioned. The answer
she gave for
not mentioning catering was that she could not get a tax certificate
and therefore could not do business with the
Government Departments.
And yet she had testified that she catered for the Government
Department in groups of approximately 200
-400 people (160-200
according to Ms Khanyile) three times a month and made +- R10 000.00
a month which contradicts her prior statement.
Such evidence is
unreliable. The 2009-2010 clearance certificate discovered cleared
the company only in respect of the construction
business. Which
reinforces the conclusion that the existence of these two businesses
is doubtful, evidence of both Ms R and Ms
Khanyile in proof thereof
is shrouded with inconsistencies and contradictions.
[47]
Ms Khanyile had testified that even after Ms R had secured employment
at Secure Products they remained very busy with both
catering and
dressmaking businesses. During that period they would work until late
at night. Ms R would usually join her after
work and be busy until
10h00 at night, working on the catering orders. On the other hand Ms
R's testimony is that after securing
employment at Secure Products
she ran the business only on weekends and did not mention her running
the business and working after
hours until late at night. It would
also be far-fetched that the said business was booming even after Ms
R had secured a full time
job at Secure Product, continuing to make
the alleged income of R10 000.00 per month. Ms R was allegedly
according to Ms Khanyile,
the one with skill and on a full time
employment during the day, so not possible that the business could
have continued to generate
the same income.
[48]
The final straw in the evidence led on behalf of Plaintiff is the
incomprehensible explanation Ms R gave for having allegedly
opted to
forego the full time running of a lucrative business for a sheltered
employment (even going to the length of fraudulently
obtaining
medical certificate) that pays comparably, a paltry salary. Her
initial answer was that her head was not right as she
was going
through a divorce. Afterwards she said (which is probably the truth)
she wanted the security that the sheltered job offered
in respect of
pension. Even in that regard which of all these versions is the
truth.
[49]
In addition to all these inconsistences and contradictions Ms R and
Ms Khanyile could not produce reliable documentary evidence
to prove
that such a business existed or made the alleged income. The main
damaging causative factor is that the circumstances
or reasons for
not being able to produce such evidence were unconvincing and lacked
sincerity. If Ms R has at some point submitted
financial statements
to SARS, evidence would be accessible. She alleged that her daughter
or children handled the books and also
took care of her tax issues as
well. She then again alleged that the reason for her not being able
to produce any documents is
that her daughter or children when they
were cleaning, burnt the books or threw away everything. If her
children knew what the
documents were for, and were involved in their
compilation and kept them for Ms R and SARS for tax purposes, it is
incomprehensible
or improbable that they that they would just burn or
throw away the books as part of cleaning.
[50] Taking into account
all the snags in Ms R's evidence I find that there is no tangible
evidence that she conducted the business
of dressmaking or catering
whilst working at Secure Products or even prior to that. She had a
company registered for different
services in 2005 but had not
registered dressmaking or clothing, her major business. There is no
also proof that she ran a catering
business. On her own evidence she
could not get the business from the Government Departments due to not
having a tax certificate
which she could not get issued because of
the money that was required. The evidence on the existence of these
businesses is unreliable
and the amount its alleged they generated
indeterminate, there being no credible details from which that could
be established.
In argument it was conceded by Ms R's Counsel that a
higher contingency should be applicable, instead of total disregard
of the
evidence as suggested by Defendant. As a result a discount of
40% on the alleged earnings should be effected. The uncertainty being

a serious diminishing factor on Ms R's capacity to earn.
The
nature, extent and effect of the injuries sustained
[51]
All the experts compiled their reports in consultation with Ms R who
then reported on her physical, emotional and cognitive
status prior
and post the accident. Notably, on the accident itself her evidence
was that she could not remember anything that
happened at the time of
the accident
except
for what she says she was told when she woke up in hospital after 5
days.
What
she
could notice then
was only the eye that was hurting and a headache,
alleging
that she was unconscious for 5 days.
The
experts gave their opinions structured upon the facts she relayed to
them in relation to her pre and post- accident condition,
in addition
to the documents filed of record, like the hospital records, RAF 1
and RAF 4 Forms and other expert opinions.
[52]
It is trite that courts must ensure that the facts underlying the
experts' opinions were sufficiently reliable. The concern
in
casu
being that an
expert's opinion is only as reliable as the evidence on which it is
based. If the court could not find the facts according
to the
Plaintiff legally reliable, the opinions become to that extent
unusable. The court will therefore in weighing the evidence
of the
experts take cognizance of what has been found to be unreliable in Ms
R's evidence and carefully assess the conclusions
made by the experts
and enquire on their rationality. Especially if the information they
based their assessment on to determine
the nature, extent and effect
the accident had on Plaintiff's
as
presented in their reports is inconsistent and discrepant
.
It is the function
of the court to base its inferences and conclusions on all the facts
placed before it. In
S
v Harris
1965 (2)
SA 340
(A) at page 365B-C the court stated that:
"In
the ultimate analysis, the crucial issue of appellant's criminal
responsibility for his actions at the relevant time is
a matter to be
determined, not by the psychiatrists, but by the Court itself. In
determining that issue the Court - initially,
the trial Court; and,
on appeal, this Court - must of necessity have regard not only to the
expert medical evidence but also to
all the other facts of the case,
including the
reliability of appellant as a witness and the nature of his proved
actions throughout the relevant period.
(
my
emphasis)
[53]
In respect of the nature of the
injuries sustained the first documents to be consulted should be Ms
R's hospital records. The court
took into account Ms Angus's evidence
and report together with the report of the neurosurgeon Dr du Plessis
to highlight what was
supposedly in the record, which the parties did
not bother to attach to the records.
[54]
Taking into consideration Ms Angus's
evidence and report on the injuries sustained, Ms R consulted with Dr
Du Plessis, the neurosurgeon,
on 21 February 2014, three years after
the accident. According to him Ms R sustained injuries in the
accident that were recorded
by the hospital as: (i)
a
mild head injury, (ii) damage to the 6th cranial nerve on the right
which resulted in a double vision and a squint and (iii) soft
tissue
injuries to the left side of the face, leading to Ms R feeling dizzy
and having a double vision. She was
unable to go back to work. She received Botox injections for her
squint and later underwent
surgery to fix the squint. Ms
R
reported to him that she also sustained soft tissue injuries to both
knees.
The injuries are not recorded in
the hospital records.
[55]
Dr Du Plessis conducted a special
investigation by referring Ms R for a MR scan of the brain on the day
of the consultation.
The scan showed no
sign of a diffuse or focal brain injury,
but
for small ischemic changes noted in both hemisphere which he says is
probably related to chronic hypertension,
a
pre-existing condition at the time of accident. Plaintiff said
dizziness was not a problem before.
[56]
According to him the following
information was recorded in the hospital documents:
"On
arrival the Plaintiff was groaning from pain with a
GCS
of 15/15
and a
swelling in the periorbital area.
Diagnosed
with a mild head injury. At 13h00 in the afternoon she was received
from casualty, conscious not restless
with
left side of face swollen and left eye not opening but
responding
to verbal commands.
At
17h00 that afternoon it was noted that
she
is fully awake but not well oriented.
On
9 November 2010 at 17h00, a day after the accident, the Doctor's note
said
she was fully
awake, alert and oriented and well oriented at GSC 15/15.
The
recordings said
he
was awake, alert and oriented with a GSC score of 15/15 for the
following days. On 12 November
2010
it was noted that
she
was also communicating well.
The
GSC score stayed at 15/15 until the Plaintiff was discharged from
hospital on 22 November 2010".
[57]
St John's Hospital records
indicate that on 9 December 2010 she had no headaches or dizziness.
Still 15/15 GSC and right sided
abducens nerve palsy. I have noted that in other reports the GSC
score was recorded from the RAF
Form completed on behalf of Ms R
after the accident noted as 14/15. The court will take into account
the information and GSC as
recorded in Ms R's hospital records as
none of the experts had explained why they had reported on the
information differently.
The court note also as of significance that
Ms R was already awake at 13h00 on 8 November 2010, the date of the
accident when she
was received from casualty, responding to verbal
commands and not restless. On 9 November 2010 she was well oriented.
According
to Ms R she was only awake after the 12 November 2010.
[58]
The court has taken into account
that Du Plessis reported that Ms R was disorientated for
approximately 12 hours after the accident
and not unconscious.
Further that it would appear she was drowsy for the first few days
after the accident. An episode of confusion
appearing again recorded
on 17 November 2010, 9 days after the accident.
It
is to be noted that the doctor does not use the word unconscious in
his report.
Since it is
clearly
indicated that Ms R was awake and well orientated since the date of
admission till 17 November 2010.
Du
Plessis instead speaks about being drowsy, retrograde amnesia and
post-traumatic amnesia and an episode of confusion again. There
is no
drowsiness or episode of confusion recorded in the first few days
after the accident, that repeated itself on 17 November
2010 as
alleged by du Plessis. Drowsiness meaning sleepy or tiredness was
only indicated on 18 November 2010 after which it was
later indicated
that
drowsy/sleeping due to the heat and
tiredness.
Such drowsiness cannot be
rational of Plaintiff having sustained
a
moderate to severe concussive head injury
as
Du Plessis indicated comparable to the mild injury recorded by the
hospital. He reported that from the hospital records and history
Ms R
provided and from an impression gained at examination, she sustained
a moderate to severe concussive head injury.
However
the
hospital records do not justify such
a conclusion and the history of 5 days of unconsciousness as provided
by Ms R is not supported
by the hospital record.
She
would not have been able to respond to verbal commands at 13h00 and
noted to be fully awake at 17h00 on the date of her admission
to
hospital with a moderate to severe concussive head injury. The MR
scan/examination he ordered Ms R to undergo indicated no sign
of a
diffuse or focal brain injury.
[59]
The past medical history
that
Ms R provided to Du Plessis was that
she
was not on chronic medication, not dizzy and had no eye problem
before the accident.
She said to him
she was on treatment for hypertension. She underwent surgery for a
tenolysis of her right wrist in 2000. Then the
current symptoms Ms R
mentioned were dizziness, moderate headaches, forgetfulness,
misplaces her belongings, concentration affected,
taking more breaks
at work than before, struggles intellectually cannot interpret
patterns when she makes clothes.
[60]
Du Plessis concluded that Ms R's
memory and concentration has been affected and
her
dizziness caused by the head injury. Suggesting that
her
residual visual symptoms,
might
be because of injury to the vestibular tracts in the brain stem or
the result of damage to the inner ear structures,
deferring
to an ENT and an Ophthalmologist. It is important however to note
that he subsequently contradicted his conclusion on
the dizziness by
pronouncing that
"dizzy spells
do not necessarily point to a head injury",
in
response to the information Ms Angus obtained from Ms R's employer.
He also acknowledged that Ms R was
not candid with him and
did not
provide accurate information with regard to dizziness. She had
alleged not to have struggled with dizziness before the accident.
He
also altered his opinion
on the
residual visual symptoms admitting that it has no relevance to the
abduces nerve palsy that developed after the accident
.
Such evidence is very critical as it has already been shown that most
of the experts were consulted upon such conclusions being
made. Du
Plessis had, following such a conclusion suggested that an ENT and an
Ophthalmologist be consulted on the basis of his
opinion on the
residual visual symptom. The costs of such experts were unnecessary
and therefore not to be borne by the Defendant.
The
court took into account that all experts have relied on the aspect of
dizziness being reflective of the seriousness of the head
injury
despite being recorded by the hospital as a mild injury. It is not
the first time Ms R has not been truthful to a doctor
and such costs.
[61]
It is critical also to note that Ms Angus on the other hand noted as
the post- accident condition that Ms R suffered from persistent

headaches, dizziness, and whilst at her office she complained of a
moderate headache, at the end of the consultation her headache
had
worsened. During the testing the headaches remained bad. She reported
to Dr Angus that she suffers from headaches everyday,
lasting the
entire day covering her whole head, complained of an ongoing
dizziness and thus poor balance. Also that when Ms Angus
questioned
her about
the
dizziness she had
before
the accident Ms R said it was occasional and
the
dizziness and balance problems have been significant since the
accident.
However
Ms
Angus concluded
that the headaches that Ms R suffers from are typical of brain
injury. It was however
countered
by the information she discovered on investigation that Ms R had the
headaches prior the accident. Ms Angus also noted
Hatting reporting
in her addendum that it leaves no doubt as to the cause and origin of
her post accident dizziness and balance
difficulties to be the head
injury. This however should be viewed from the perspective that Du
Plessis afterwards backed down from
his opinion that dizzy spells
point towards the severity of the brain damage, since Ms R suffered
some measure of dizzy spells
and headaches before the accident. When
she was cross examined on the ailments she suffered from before the
accident she said she
had headaches.
[62] Moreover, taken into
consideration was the fact that on testing by Ms Angus, Ms R showed
good mathematical ability even though
her
working memory found to
be poor
and to may have been affected by sustained concentration
difficulties. Her concentration fluctuated significantly and the test
also
suggested a difficulty in sustaining concentration which proves
sensitivity to
the cognitive impairments
that
results from
brain injury.
Ms Angus noted that Ms R struggled with sustaining
concentration and has complex attention and double conceptual
tracking problems.
Her verbal memory was good and that she had a
working memory problems. Her work speed was very slow. The many
deficits she had
were typical brain injury. Ms Angus noted that
Hatting also took into account that she has specific verbal and
retrieval skills
amongst other difficulties which was said to
highlight that
she has neuropsychological deficits.
She also
has auditory processing difficulty which would explain many of her
problems. All these were said to be brain injury related.
All also
evaluated considering what was Ms Angus's evidence in court, that Ms
R's short term memory was not functioning properly,
however her old
learning was still stable. The stuff that she already knew will
remain, so she will not have a problem with that
since it is
something that she has lived with. It is significant that from the
reports it was apparent that as of date of trial
she was back at work
employed in the same position as a machinist. A point she was candid
about in court. She dishonestly presented
that she is still employed
to what she initially referred to as a cleaner when in truth she
cleaned off the threads form the finished
garments.
General
Damages (disfigurement, pain & suffering)
[63]
Ms Angus also reported that MJs R's had double vision but this
cleared up in 2012.
Her
vision is now normal after the operation except for the peripheral
vision which she reported to have been affected.
She
however uses glasses. She also indicated that she now presents with
mood symptoms.
Also
that depression as well can impact on cognitive functions.
In
the symptoms identified as depression can mean in fact symptoms of
organic brain damage. Ms Angus concurred with Dr Shivel that
Ms R is
suffering from an organic (gradual) brain damage.
She
concluded that she has neuropsychological cognitive deficits, mood
and personality changes
as
a result of the moderate to severe brain injury sustained in the
accident in question. She also has various physical problems
and
fatigue as a consequence of the accident. She recommended that she
undergo supportive therapy for her depression and anxiety.
Forty
sessions recommended at a cost of R900 a session. It is not suggested
that any therapy is curative. She said R will always
have neuro
stigmata as a result of the accident but it should assist in
improving the quality of life and provide support in time
of crises.
The report is noted except the conclusion that the brain injury was
moderate to severe. No justification had been submitted
for holding
an opinion that Ms R's injury was not slight but moderate to severe.
[64]
Dealing with her cognitive deficiencies, it
is noted that there was conflicting evidence regarding her level of
education. Ms Angus
reports that she has a grade 8 level of
education, however in concluding her report and in court Ms Angus
testified that Ms R has
finished school and has a matric. Other
reports also continue to refer to her as having only a Grade 8
education. This is of significance
since it will impact on the
evaluation of her earning capacity as well. Since also on the tests
conducted by Ms Angus she noted
that many of Ms R's
neuropsychological scores are lower than expected.
[65]
Ms R is said to have suffered from body
pain as well. Angus confirmed that it is well documented that
patients with pain often have
reduced attentional capacity processing
speed and psychomotor speed. Performance in these areas was probably
affected to some extent
by her pain and discomfort but that the range
and severity of her difficulties cannot be explained by pain alone.
The combination
of neuropsychological deficits special concentration
and slowed work speed, headaches and constant dizziness have
understandably
had a significant impact on her capabilities.
Therefore the sentiments that her pain and suffering had undergone a
significant
change in her ability to cope and handle her own life
should be viewed with some circumspection. She is said to have been a
capable
independent decisive and confident woman and now she has to
deal with cognitive mood personality and physical changes impacting

negatively on her life. Du Plessis noted that she used to make her
own clothes before the accident and says she is no longer able
to do
it because she struggles to read the patterns. The opinion is viewed
with circumspection since there is no sufficient credible
evidence
proving that. She has since been working as a machinistor seamstress
again.
Loss
of amenities of life
[66]
Ms R indicated to Dr Linde that she used to play basketball as a
member of the community team. She was also a member of a church

choir. She used to read the bible and magazines now she forgets and
unable to do any of the activities anymore. She still attends
church
every Sunday. She has completed Grade 10 and computer literate and
she could not complete school she got pregnant. To Ms
Angus she said
she went up to Grade 12. Dr Linde said during the interview she
displayed problems with memory, she was unable to
recall her Id
number. She was unsure about the date of her accident. When asked for
her birth date she recited her full Id number
that she could not
remember before. She spoke softly avoiding eye contact. All this was
something new now. She took pain medication
to relieve her headache
during the interview.
[67]
As regards the severity of her
reported cognitive difficulties and its impact to her productivity or
earning capacity as a seamstress,
Du Plessis
deferred
to the neuropsychologist and
industrial
psychologist, however not ruling out
a
chance of recurrent episodes of absence from work due to falls as a
result of dizziness. Also unlikely that she would recover
fully from
her dizziness in the long term
suggesting
that more information be obtained from her employer.
She
could not function at the level she did before and regarded as
fortunate that her visual problems have improved through surgery
and
only peripheral vision left. Also that she was lucky that she was
already working in a sheltered employment. If she does not
work for
Secure Products she would cope at a similar structure or routine
supervised environment where employer understands her
physical and
mood problems. According to him she is considered unemployable in the
open market. This opinion should be viewed against
the fact that Ms R
is back at the sheltered employment in her previous position as a
machinist paid accordingly. In Du Plessis'
report he makes no mention
of any other work she performed besides her formal work as a
seamstress. He also concluded his report
without verifying with the
employer the information of Ms R's condition post the accident, even
though such verification is suggested
in his report. Ms Angus's
outlook is that the post- accident conditions that could impact on
Ms
R's ability to sustain her business are
her cognitive mental functional problems, like depression, anxiety,
physical condition entwined
with inability to stay focused. She at
the same time said she regarded Ms R's mood as euthymic (which is a
normal non-depressed
reasonably positive mood). This is
contradictory.
[68]
It is again of importance to point
out that Ms R in court did not mention that as of that time she was
reinstated to her position
as a machinist and testified that she
still is employed as a cleaner. So it would be difficult to establish
with certainty as to
exactly what Ms R can or cannot do.
Once
more that would not have been as a result of the injuries she
sustained from the accident as indicated that the episodes of

dizziness and headaches were alleged to be there in another set-up of
her scheme.
[69]
I had, inter alia considered the
Industrial psychologist, Dr Louis Linde's report who consulted with
Ms R on 9 May 2014 and reported
that according to the RAF 1 Form the
injuries sustained by Ms R were
a mild
head injury and pain on elbow and face.
Understandably
that might have been completed probably prior to the hospital records
being obtained. Linde noted that on 4 May 2012
Dr Kaplan noted her
current complains to be double vision right eye that is now better
after operation. Sore right breast,
extreme
fatigue, anxiety, tends to be confused and poor cognitive and
executive ability.
The diagnosis being
a head injury and brain injury chronic subdural, right 6th nerve
palsy on and cognitive and executive dysfunction
and loss of life
roles. Whilst a RAF 4 Form that was concluded by Dr van den Bout on 4
April 2013 is indicated to have noted the
injuries suddenly to be a
severe head injury, severe facial
injury, right eye injury, injury to both knees, abrasions and
emotional shock and 45% whole person
impairment.
It
is strange how the mild head injury and a soft tissue face injury had
developed from date of accident, 3 years thereafter to
be a severe
head and face injury. The differences on such factual matters is
frightening.
[70]
Dr
Linde's
report record that Ms R had a sinus operation as well as an operation
for carpel tunnel syndrome before the accident, information
Ms R did
not divulge to any of the other experts.
She
also revealed information of the surgery she underwent on her right
wrist and the precondition of hypertension. After the accident

besides an operation to her right eye she according to him fell into
a gutter in 2013. She complains of chronic dizziness, had
stopped
socializing and her strength depleted.
She
cannot stand for long and has chronic pain in her legs.
The
chronic pain on her legs was also revealed only to Linde. She has a
poor memory and stated that she often forget things. She
is afraid of
travelling in a taxi and always has got somebody to come with her.
She is still in the same employment in
the same position as prior the accident and still uses the taxi to go
to work.
She has constant headaches and
takes pain medication regularly throughout the day. She report
problems with her eyes and always
disoriented therefore needs someone
with her all the time. She does not indicate if this person
accompanies her in a taxi every
day to work and back. Always there at
home and work as well. She is of the opinion that she is depressed.
Management
of funds
[71]
Dr Linde reports that the family
history as re-counted to him was that Ms R met her ex-husband when
still at school and had a child.
They later married.
She
was divorced between 2007 and 2009
prior
the accident. Whilst the article from the tearsheet indicate that she
was divorced a very long time ago. So even this information
is not
reliable.
She signed over her house to
her aunt
while she was in hospital.
However Ms R's younger daughter told him in an interview he conducted
with her before compiling his report
in March 2015 that the aunt has
now moved out of the house. The only people who were staying in the
house was her and Ms R. They
were busy with a process of
retransferring the house back to Ms R. All these facts were not
presented on trial. The court was informed
of the takeover by the
aunt and seven other people.as the prevailing status quo on the date
when matter was on trial and Ms R and
her daughter still staying in a
room. Why would Ms R want to present a picture of delusional and
stressed person? The issue of
a curator bonis was premised on those
facts by the experts.
[72]
Her ex-husband is a principal. Her
41 years old son is an IT specialist. Her one daughter is 32 years
old and working at the UIF
Department within the Department of Labour
and her younger daughter 20 years old and a full time student at
Milpark Business College.
Her immediate family is of capable and
educated people. This indicates that her children would also be
knowledgeable with regard
to the importance of keeping records or
books of accounting of a business and SARS tax information. She also
testified that her
daughter assisted her in keeping proper financial
statements and with tax issues.
Amenities
[73]
It should be noted that the
Industrial psychologist took into consideration the report by Gous
that a moderate to severe asymmetrical
sensory-neural hearing loss
was reflected in both ears. Her hearing difficulty does not affect
her own perceived functional communication
abilities at present in
quite environments. However with possible cognitive disabilities and
poor environmental acoustics and or
noise she may find it harder to
cope in communication situations. Ms R may make use of coping
strategies such as withdrawal which
may result or contribute to a
form of depression she may experience at present. She also noted that
Ms R reflected difficulties
in the sensory and motor output systems
that contribute to a postural balance disorder and the dizziness
difficulties she is experiencing.
Her hearing and related balance and
the dizziness she is experiencing places her at a high risk of
falling. Hatting' opinion noted
that the dizziness and balance
difficulties affect and have a significant impact on her quality of
life and she is at an increased
risk for secondary injury as a result
of her propensity for tripping and falling.
[74]
Linde recorded that as a result of
the head injury she suffered, Ms R has lost her sensori-neural
hearing loss in both ears (Ms
Gaus) as well as a cochlear lesion. As
a result her hearing loss as well as problems with motor ability and
dizziness is at high
risk for falling when doing activities where
motor planning and integration are involved. As a result she is at
increased risk
for a secondary injury. It is noted that she has
suffered a loss of amenities and life enjoyment. Such loss however
cannot be regarded
as severe to justify the amount claimed but
moderate.
[75]
Her legal employment history that
was recorded is that between August 1994 - 2005 she was employed at
Transvaal Mattress & Furnishing
Company trading as Sealy as a
seamstress and machinist earning R641. 67 weekly by 2005 she was
earning R909.06. She worked for
the company for 10 years. In 2002 - 8
November 2010, she established a business in 2002 as a sole member"
Ka Wena Nka Phela
General Construction CC which she conducted while
employed at Sealy until 2005 when she then registered it and started
to focus
on it. She was responsible for catering and earning an
amount of R10 000 per month from the business. She continued the
business
on a part time basis when she obtained work at Secure
Products in 2010.
She obtained the job
as a sense of security after the divorce. One of the managers was a
friend and asked if she wanted to work
there. She started there on 9
June 2010.
The medical certificate
dated 22 June 2010 she obtained from Khumalo indicated that she was
diagnosed with hypertension, osteoarthritis,
right eye short
sightedness and peptic ulcer disease prior to being employed at
Service Products. For that reason she was placed
in the sheltered
employment company. It falls under the Labour Department and makes
government uniforms, sheets and blankets. Her
monthly salary
indicated in her payslip as varying between R 2 767.89 and R3 308.57.
They would also be paid for overtime.
[76]
Further information was obtained by
Dr Linde from Ms R's employment that indicated that her supervisor
could not explain why she
was employed there. On a scale of 1 to 10
her work was rated or scored to be 9/10 by Coetzee. The personnel
officer indicated to
him that people employed there have disabilities
so they are employed there to be assisted. He was told through
ethical concerns
he would not be told why Ms R was in their
employment. She however confirmed that to be employed there one needs
a medical certificate.
The retirement age there is 65 years old. By
25 March 2015 she was earning as a machinist a salary of R 4 500.53
per month.
[77]
For purpose of quantification Linde
recommended 3 to 5 years from the date of accident. As I have
indicated this employment would
not be considered.
Dr
Linde however opines that should Ms R have lost this job she would be
in a position to enter the formal open labour market.
She
has to be assessed in that capacity. With regard to her business, Dr
Linde took into consideration that no
proof of the income was provided and suggested a positive
contingency.
After the accident she
feels physically and mentally unable to work at her businesses and
her circumstances have impacted negatively
on her ambition. She
thinks she might not produce the same quality of work. This would be
regarded as speculative since it is what
she thinks and not factual.
Coetzee's report indicates otherwise, indicating that her work was
now rated 9/10.
At the time of Linde's
report 25 March 2015, it was confirmed that Ms R is employed 100% as
a machinist and earning R4850.53 with
a housing subsidy.
On
speaking with Coetzee again he was told that when it was enquired
from the supervisor Ms Kubheka about Ms R's work she was told
that
her work has not changed she performs the same and remained employed
as a machinist. He also records that prior to the accident
she
enjoyed good health, if Dr Khumalo's letter is to be ignored Dr Linde
reckons she would have been able to retire at 65.
[78]
However when Kubheka was contacted directly she said her opinion was
that Ms R's work was no longer the same post the accident.
That is
the reason she worked as a cleaner when she came back to work,
although she is now placed back into her position she is
not as fast
as she was prior the accident, saying her performance is now 5/10 and
her employment not guaranteed. It was therefore
noted Ms R is not a
candidate for work within the light to medium work categories, which
requires fast and accurate fine motor
work such as working with a
sewing machine. She is restricted to work that falls in the Sedentary
Work Category, such as that of
Garment cleaner. This is not accurate,
the information that was presented conflicting. Ms R testified in
court that she is still
employed as a cleaner when she was not. For
the purpose for recovery the information would be considered.
[79]
She would also need to be employed in a supportive emphatic
environment. This is also not accurate as Coetzee responsible for

personnel has not received any report that indicates her performance
to be less than before the accident which has been rated as
9/10. It
is accepted as noted that pre-accident her potential has been
negatively affected by the accident and
sequelae
such as her
cognitive, emotional and physical problems and she may struggle with
alternative employment, but not that she is found
unemployable..
Regarding her business it is noted that she will not be able to
continue her business activities. It is recommended
a higher
contingency deduction be applicable due to the uncertainty of Ms R's
business. It has already been indicated that the
sheltered employment
will be disregarded for that purpose.
[80]
Now having taken into consideration and assessed all the evidence as
collated in the reports by the experts and the testimony
of the
Plaintiff's witnesses, it is largely the discretion of the court to
determine an appropriate award for the general damages,
which account
for pain and suffering, disability, disfigurement and loss of
amenities of life. Placing a monetary value on these
factors in
attempting to arrive at an appropriate award is a very difficult task
that has been described in
Sandler
v Wholesale Coal Suppliers Ltd
1941
AD 194
at 199 as follows:
'in
determining the award of damages to be made under the heading general
damages there are of course no scales upon which one can
weigh things
like pain and suffering and loss of amenities of life, nor is there a
relationship between either of them and money
which make it possible
to express that in terms of money with any approach to certainty. The
broadest general consideration and
the figure arrived at must
necessarily be uncertain, depending upon the judge's views of what is
fair in all the circumstances
of the case."
[81]
The general practice of the courts is to
obtain guidance from previous awards made in comparable cases. It is
to be cautioned that
such awards could only offer broad and general
guidelines in view of the differences that inevitably arise in each
case and should
not interfere with the court's general discretion;
see
Protea Assurance v Lamb
1971
(1) SA 530
(A) at 535H- 536A. Of utmost importance is that each
decision should be influenced by the distinctiveness of the facts of
each
case. The principle however remaining that the award should be
fair to both sides- it must give jut 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 Company Limited
1975
(3) SA 284
(N) at 287. I have therefore painstakingly considered the
comparable authorities as a guideline and most of all the facts in
relation
to what I have to consider as the general effect of the
injuries sustained by Ms R to her general life.
[82]
It is evident that she has endured a
measure of suffering due to the head injury affecting her moods,
concentration and causing
her a considerable amount of pain. The
severity of the injury is taken into account that it was graded as a
mild injury and that
other experts had referred to as moderate to
severe and severe. The fact that it has resulted or caused retrograde
amnesia and
organic traumatic amnesia. Also neuro cognitive
difficulties and neuro behavioural problems also arising from
depression. Her physical
performance was said to be somehow limited
in normal life circumstances. She will still be able to attend church
and read the bible
and magazines It is all also in fairness that her
condition prior to the accident should have an impact on the
contingency to be
applied that she already suffered from the
headaches, dizziness and had a problem with her vision as well. Her
pain intensity also
appeared to be exaggerated or out of kilt with
the injuries suffered or her prevailing status. The injuries
sustained and prior
ailment were only revealed in 1 or 2 reports that
indicate that her post tiredness was also caused by previous
manifestation of
pre- existing ailments that where not taken into
account by other experts. In the final analysis taking into account
the nature
of the injuries sustained by Ms R and their sequelae, the
awards in previous comparable cases and the decline in the value of
the
currency, I am of the view that an amount of R450 000.00 for
general damages would constitute a fair and adequate compensation.
[83]
As indicated above there were challenges
that the court was confronted with in dealing with Ms R's evidence in
order to arrive at
a fair assessments of the facts and award to be
made. As for the Plaintiff to succeed in a claim for loss of
earnings, she is required
to provide a factual basis that allows for
an actuarial calculation. A process designed to assess actuarial
/mathematical calculations
on the basis of the evidence as well as
overall assumptions vesting or depending on evidence, known as the
actuarial approach):
see
Southern
Assurance Association Ltd v Bailie NO
1983
(3A4) QOD 351 (A)
(1984) (1) SA 98)
at 358-359 (112E-114F. This
approach seeks to determine the loss of earnings as realistically as
possible to what may be the Plaintiff's
actual loss. The approach
comprises of (a) providing a factual basis upon which the loss of
earnings is to be calculated and only
then (b) by applying
appropriate contingency deductions. That is what the court has done
in this instance. I have indicated the
challenges encountered by Ms R
in establishing the factual basis upon which the loss of earning
capacity would be calculated and
as a result indicated that her
earnings in relation to the sheltered employment will be disregarded
and a contingency deduction
of 40 % to be applied to her self-
employment earnings. The contingency deductions are within the
discretion of the court and dependent
upon the Judge's impression of
the case.
[84]
The Plaintiff has not exhibited a need or
made a sufficient case for the appointment of a curator
ad
litem.
With the family support that she
is getting such an appointment would seem not necessary. However a
formal application may be brought
if the Plaintiff still insist that
such a need exist.
[85]
As a result, the earnings of the sheltered
employment for reasons of public policy are disregarded and on the
future loss, a contingency
deduction of 40 % is applied on the value
of the uninjured self-employment as per actuarial calculation. On the
value of the injured
self-employment of R378 881 less 40% equals an
amount of R113 664.20 deduction.
The net
future loss of earnings amount awarded is R 173 684.60
[86]
Past loss of earnings on uninjured
self-employment amount of R493 774.00 as per actuarial calculations
applying a contingency of
40 %, the amount payable is R296 264.40
less R130 001.80 the value of uninjured income equals a
net
past of loss of earnings amount of R166 263 .50.
[87]
The total of Ms R's damages is R7
8
9
948.10 made up as follows:
Future
medical treatment

An undertaking in terms of s 17(4) (a) of the Act
General
damages

R4
50
000.00
Past
loss of earnings

R166 263.50
Future
loss of earnings

R173 684.60
[88]
It is therefore ordered that:
[88.1]
The Defendant pay damages to the Plaintiff, in a total amount of R739
948.10 (Seven Hundrend and Thirty Nine Thousand Nine
Hundrend and
Forty Eight Rand and Ten Cents) within 14 days of the date of this
order. Interest shall accrue thereafter at the
rate of 9% per annum
from the date of order to date of final payment.
[88.2]
The Defendant is to furnish the Plaintiff with an undertaking in
terms of
s 17
(4) (a) of the
Road Accident Fund Act, Act
No 56
of 19996, covering 100% treatment or rendering of a service, or
supplying of goods or related expenses as, inter alia, set
out in the
Plaintiff's medico legal reports, in respect of injuries sustained by
the Plaintiff in a motor vehicle collision which
occurred on 8
November 2010, after such costs have been incurred and on proof
thereof:-
[88.3]
Payment of the Capital amount is to be made into the following
account:-
Account
Name:

Edeling Van Niekerk Incorporated
Bank:

NEDBANK
Branch:

Business Westrand
Account
Number:

[...]
Branch
Code:

128605
[88.4]
The Plaintiff's attorney will be entitled from the aforesaid funds
held by them for the benefit of the Plaintiff, to make
such payment
of expenses incurred in respect of accounts rendered by the following
expert witnesses, namely:
[88.4.1]
Dr
Cathy Angus,
Clinical Psychologist
[88.4.2]
Counsel employed on behalf of the Plaintiff;
[88.5]
The Plaintiff's attorneys shall be entitled to payment, from the
aforesaid funds held by them for the benefit of the Plaintiff
of
their fees in accordance with their written fee agreement OR as taxed
of an attorney and own client bill of costs;
[88.6]
The Defendant pays the Plaintiff's taxed or agreed party and party
costs on the High Court Scale which costs will include,
inter
alia,
the
following:
[88.6.1]
The cost of junior/senior counsel;
[88.6.2]
The medico legal reporting costs as well as preparation and
reservation costs, if any, of the following experts
[88.6.2.1]
Dr J J du Plessis, Neurosurgeon;
[88.6.2.2]
Cathy Angus, Clinical Psychologist
[88.6.2.3]
Ida Marie Hatting (Speech / Language pathologist & Audiologist)
[88.6.2.4]
Dr D Shevel, Psychiatrist
[8.6.2.5]
Alison Crosbie, Occupational Therapist
[88.6.2.6]
Louise Linde, Industrial Psychologist
[88.6.2.7]
Mr G Whittaker, Algorithm
[88.6.2.8]
Rialette Gaus, Speech/ Language Pathologist & Audiologist
[89.7] The costs
occasioned in respect of 28 April 2015.
NV KHUMALO J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION:
PRETORIA
On
behalf of the Plaintiff:
Adv E Kromhout
Instructed
by:
Edeling Van Nikerk Incorporated Attorneys
Ref:
Ms L De Souza
On
behalf of the Defendant:
Adv L Tyatya
Instructed
by:
Tau Phalane Incorporated Attorneys
Ref:
Mr Rachuene