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[2017] ZAGPPHC 358
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G v Road Accident Fund (53432/2013) [2017] ZAGPPHC 358 (13 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 53432
/
2013
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
NOT
REVISED
In
the matter between:
M
G
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
SWARTZ
AJ.
[1]
This is a claim for
damages for personal injuries sustained by the plaintiff in a motor
vehicle collision that occurred on the 4th
September 2010. The merits
of the matter had been settled on a previous occasion and the
plaintiff is entitled to ninety percent
of her proven damages. The
matter appeared before me for the determination of the
quantum
of the plaintiff's
damages.
[2]
The plaintiff had no
less than nine expert reports. The defendant had none. The
uncontested expert opinion of the plaintiff's experts
were accepted
into evidence by way of affidavit in terms of the provisions of rule
38 (2) of the Uniform Rules of Court which provides
that:
'The
witnesses at the trial of any action shall be examined
viva
voce,
but a court
may at any time, for sufficient reason, order that all or any of the
evidence to be adduced at any trial be given on
affidavit or that the
affidavit of any witness be read at the hearing, on such terms and
conditions as to it seem meet...'
[3]
In the absence of any
alternative expert opinion by the defendant, despite the battery of
expert reports obtained by the plaintiff,
there is nothing to gainsay
the basis on which the plaintiff's experts arrived at their
conclusions. The evidence stands uncontested.
[4]
It is not in dispute
that in the motor vehicle accident the plaintiff suffered a
significant head injury with neurological, neuropsychological
and
psychiatric
sequelae;
dental injuries;
injury to the left knee and soft tissue injury to her lower back.
[5]
The plaintiff's
evidence was corroborated by her husband. She largely complains of
memory loss; agitation; irritability and depression.
This impacts on
her daily life and negatively affects her relationship with her
husband, family and friends. She is a changed person
to whom she had
been before the accident. Before the accident she was active and
outgoing. As a result of the head injury she suffered
in the
accident, she has become socially withdrawn and introverted. She
cannot concentrate and has to make a list of everything
she needs to
do. At times she misplaces even the "to-do" list. She has
become self-conscious with a low self esteem.
She suffered an
injury to her jaw on the left side of her face with broken teeth. She
has a habit of clenching her jaw, which causes
pain. She drinks pills
for this on a daily basis. She complains of lower back pain on a
daily basis. For many years since the accident,
on a daily basis, she
takes anti-inflammatory medication, pain medication, anti-depressants
and antipsychotics.
[6]
She has a matric level
of education. She studied for one year towards a degree in Social
Sciences at the University of the Free
State. Thereafter, she studied
for a period of one year towards a Marketing degree at the University
of South Africa. While studying
she worked at a car dealership and in
2007 started her own company supplying nutritional supplements. This
business closed down
as a result of the accident. She cannot produce
documentary proof of her earning in this venture. Although the
business is still
registered as an active entity, the business is no
longer in operation. She is now in sympathetic employment working for
her husband
in an administrative capacity in his second-hand car
dealership enterprise. She does not cope. She works from home which
allows
her to work at her own pace. After the accident she was again
formally gainfully employed for a period of two years, but quit the
job because she could not cope as a result of pain. She now earns R15
000 per month, working for her husband. Before the accident,
she had
seen herself as a career woman, running her own business
successfully.
[7]
The plaintiff's case
was closed after the evidence of her husband. Nothing turned on the
cross-examination of the plaintiff or her
husband. The defendant's
case was closed without any evidence being led on its behalf.
[8]
The past hospital and
medical expenses were proven in the sum of R99 375. The future
hospital and medical expenses will be taken
care of by the section 17
(4) (a) undertaking ordered on a previous occasion. In issue was the
determination of an appropriate
amount to be awarded for past and
future loss of earnings and general damages.
[9]
In the medico-legal
report of Dr Barlin, he expresses the opinion that, from an
orthopaedic point of view, she is unlikely to return
to her previous
level of work capacity. As regards the severity of the head Injury,
the brain injury was categorized as between
mild and severe when
regard is had to the 'outcome diagnoses' as opposed to the 'accident
diagnosis'. In his medico-legal report,
the neurosurgeon, Dr
Lewer-Allan, expresses the opinion that the plaintiff sustained a
significant brain injury and presents with
significant long-term
neuro functional
sequelae.
According to Dr
Fine, the psychiatrist, the plaintiff psychiatrically, reassessed six
years after the accident, still presents with
having significant
sequelae
from
the accident. According to him, the functional effects can be
considered permanent and irreversible and leave the plaintiff
vulnerable to the development of an array of organically based
psychiatric disorders. She requires ongoing long-term psychiatric
treatment. The conclusion reached by the plaintiff's experts is that
she has been rendered more cognitively, psychologically and
physically vulnerable as a result of the accident which, in turn, had
an adverse effect on her functioning in general. Over the
years since
the accident, there has been no improvement in her psychological
functioning. These factors will compromise her successful
return to a
full-time position without sympathetic considerations. She has, in
effect, been rendered unemployable on the open labour
market.
[10]
The plaintiff's case is
that, but for the accident, she would have continued managing her own
nutritional supplement business. She
would have retained her
pre-accident levels of physical and cognitive efficiency, endurance
and stamina. She enjoyed what she was
doing and would have carried on
doing it for as long as she possibly could. Having regard to the
accident, she never returned full-time
to her business as she had
lost her premises, most of her clients and her equipment had been
stored. She is not worth much in her
husband's business and is a
financial liability. Should she loose her employment for any number
of reasons, she would in all likelihood
be unemployable.
[11]
As is the nature of
these matters, the court is called upon to "crystal ball gaze"
to determine the
quantum
of the future
amount of such loss of earnings. In her report, the plaintiff's
industrial psychologist, Ms Elna May says that, but
for the accident,
it is impossible to determine the plaintiff's earning potential in
self-employment. She correctly proposes an
alternative employment
scenario on the open labour market, being earnings which felt between
the lower quartile and median of the
B5 Patterson level, grand total
monthly package. This scenario is reasonable. So too, the levels of
progression to the median of
the C1 Patterson level at approximately
age thirty-three years, with her ceiling at the upper quartile C2
Patterson level around
age 38, from which date onwards, only
inflationary increases would apply.
[12]
The actuarial
calculation by Mr Ivan Kramer is certainly helpful in determining the
amount to be awarded for future loss of earnings,
As
has been pointed
out again by Zulman JA in
Road
Accident Fund v Guedes,
2006 (5) SA 583
at
586, quoting the position held in
Bailey
1984 (1) SA 98A
that:
'The
calculation of the quantum of a future amount, such as loss of
earning capacity, is not, as I have already indicated, a matter
of
exact mathematical calculation. By its nature, such an enquiry is
speculative and a court can therefore only make an estimate
of the
present value of the loss that is often a very rough estimate. The
court necessarily exercises a wide discretion when it
assesses the
quantum
of
damages due to loss of earning capacity and has a large discretion to
award what it considers right."
[13]
The basis for the award
is found in the conclusions of Ms Rossouw, which recommendations are
sound. The recommendations are based
on the plaintiff's post-accident
earnings as a New Business Consultant at Softline VIP where she was
employed for a period of two
years until she could not cope with the
demands of the work.
[14]
The actuarial
calculation takes into account contingency deductions of five and
fifteen percent on the 'but for' scenario. This
is the usual
contingency deductions and is the correct approach in this matter as
well.
[15]
On the 'having regard'
scenario a thirty percent contingency deduction is applied to the
prospective loss. Counsel for the defendant
argued that a thirty
percent contingency deduction should be applied to both the accrued
and prospective loss on the 'having regard
to' scenario.
[16]
In my view, the thirty
percent contingency deduction in the 'having regard to' scenario is
correct. The uncontested evidence of
the medical experts is that the
plaintiff's working capacity, and therefore her earning capacity, had
been severely compromised
by her injuries and there consequences. Dr
Lewer-Allan expresses the opinion that:
'Were
she to remain in employment in her present protected and sympathetic
environment she may have to seek early retirement if
the spinal
symptoms escalate, as well they might. There are so many variables
that an attempt at crystal ball gazing will be guesswork.
The
possibility exist that at say age 45-50 that no matter the support of
physio, etc., that she may have to further curtail her
activities.
However if she is successfully benefitted by surgery, she has the
potential of being restored to some degree of functionality.
However
combined with the neurocognitive and neuropsychological problems, the
net outcome may rather end up with her being effectively
unemployable
even by her husband'.
[17]
The evidence of her
husband is that she is not coping. The accident occurred on 4
September 2010. The report of the psychiatrist,
Dr Leon Fine, is
dated 16 January 2015. In it he expresses the opinion that:
'With
cerebral organic impairment as assessed this long following upon the
causative accident, the functional effects can be considered
permanent and irreversible, and leave her vulnerable to the
development of an array of Organically-based Psychiatric disorders
over her future life-time which would require treatment at those
times. She requires ongoing, long-term psychiatric treatment...'
Thus,
in my assessment, having regard to the uncontested expert opinion,
coupled with the evidence of both the plaintiff and her
husband, the
thirty percent contingency deduction in the 'having regard' to
scenario appears to be correct. I am satisfied that
the loss of past
and future earnings, as actuarially calculated is correct, as it is
based on the correct assumptions.
[18]
In respect of general
damages, I have been referred to previous awards ranging from R700
000 to R1 100 000. It is trite that reference
to previous awards
serves merely as a guideline. Having regard to the nature and
severity of the injuries suffered by the plaintiff,
I am of the view
that payment of the sum of R800 000 is fair and reasonable
compensation.
[19]
ORDER:
After
the ten percent merits deduction and interim payment of R700 000, the
award I make is for payment of the sum of R5 437 416,
in respect of:
1.
Past hospital and medical expenses: R99 375
2.
Past and future loss of earnings:
R5
919 975
3.
General damages:
R800
000
______________________________
E SWARTZ
ACTING
JUDGE OF THE HIGH COURT
DATE OF
JUDGMENT
: 13 / 03 / 2017
PLAINTIFFS
ADV
: ADV. M CHAITOWITZ SC
BRIEFED
BY
: DE BROGLIO ATT INC
DEFENDANTS
ADV
: ADV G F JANSEN
INSTRUCTED
BY
: DIALE MOGASHOA ATT
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 53432/2013
In
the matter between:
G,
M
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
DRAFT ORDER
On
9th of March 2017 before the Honourable Justice Swartz, AJ; by having
heard counsel; it is ordered:
1.
The Defendant shall pay to the Plaintiff the capital amount of
R
5 437 416 (Five Million four hundred and thirty seven thousand four
hundred and sixteen rand)
2.
Payment will be made directly to the trust account of the Plaintiff's
attorneys within fourteen (14) days:
Holder
De Broglio Attorneys
Account Number
[…]
Bank & Branch
Nedbank - Northern Gauteng
Code
198 765
Ref
G379
3.
The Defendant is ordered in terms of
section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
to reimburse 90% of the Plaintiff for
the costs of any future accommodation of the Plaintiff in a hospital
or nursing home, or
treatment or rendering of service to her or
supplying goods to her arising out of injuries sustained by Plaintiff
in a motor vehicle
accident on which the cause of action is based,
after such costs have been incurred and upon proof thereof.
4.
Defendant shall pay Plaintiff's taxed or agreed party and party costs
on the High Court scale, such costs will include, but are
not limited
to:
4.1. the costs for
attending trial on the 5th and the 9th of March 2017;
4.2. the costs
attendant upon the obtaining of payment of the full capital amount
referred to in paragraph 1 above; and
4.3. The costs of
Plaintiffs reasonable travel and accommodation costs to attend
experts and trial;
4.4. the costs of
all Plaintiffs expert medico-legal reports, as well as the reasonable
taxable, qualifying and reservation fees,
if any, of such experts;
and
4.5. The costs
incurred in obtaining of Affidavits in terms of Rule 38{2) of the
Uniform Rules of Court.
4.6. Elna Rossouw
is declared a necessary witness;
4.7. the costs of
the actuarial reports of Mr. Ivan Kramer; and
4.8. Plaintiff and
her husband as well as subpoenaed witnesses are declared necessary
witnesses; and
4.9. All past
reserved costs, if any, are hereby declared costs in the cause;
4.10. The costs of
Senior counsel for 8 and 9 March 2017 and the costs for Counsel’s
preparation of written heads of arguments
5.
The Plaintiff shall, in the event that the costs are not agreed
serve the Notice of Taxation on the Defendant's Attorney of
record;
and
6.
The Plaintiff shall allow the Defendant fourteen (14) court days to
make payment of the taxed costs.
COUNSEL
FOR PLAINTIFF :
Advocate Martin Chaitowitz
:
Tel: 011 775 5800
ATTORNEY
FOR PLAINTIFF : de Broglio
Attorneys
:
Mr Patrick Sedutla Sedutla
:
Tel: 011 442 4200
COUNSEL
FOR DEFENDANT :
ATTORNEY
FOR DEFENDANT : Diale Mogashoa Attorneys
:
Ms Mari Wilsnach
:
Tel: 012 346 5436
BY
ORDER
f
f
REGISTRAR
OF THE HIGH COURT