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[2017] ZAGPPHC 868
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Mtshali v Road Accident Fund (23918/2013) [2017] ZAGPPHC 868 (22 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 14 and 17 March 2017
Date
of judgment: 28 March 2017
Case
number 23918/2013
Not
reportable
Not
of interest to other judges
Revised.
22/3/2017
In
the matter between:
SANDILE
WONDERBOY
MTSHALI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BRENNER,
AJ:
1.
In this personal injury case, quantum is in
dispute, after the RAF had conceded 100% liability on the merits.
2.
On 28 June 2009, the plaintiff, Sandile Wonderboy
Mtshali ("Mtshali"), (born on 28 January 1987, and
therefore 22 at the
date of accident), was a passenger in a motor
vehicle which collided with a vehicle insured by the defendant, the
RAF.
3.
The claim for past and future medical expenses
was abandoned. Mtshali's claim comprised four components, namely,
payment of:
a.
general damages;
b.
past loss of income;
c.
future loss of income;
d.
future medical and hospital expenses, by way of a
section 17(4)(a) undertaking: this undertaking was tendered by the
RAF.
4.
The parties agreed to the introduction into
evidence of all of their expert reports, and the joint minutes of
experts. The qualifications
and expertise of the experts who adduced
vive voce evidence was not placed in dispute.
5.
The following injuries were sustained by Mtshali:
a.
A
head injury with frontal and parietal cranial impacts, accompanied by
a moderate to severe brain injury;
b.
A
soft tissue injury of the right shoulder;
c.
Widespread abrasions and soft tissue injuries.
6.
The focal issues in dispute were whether Mtshali
had indeed suffered a severe head and brain injury, and if so, the
sequelae and
the nature and extent of his claims for past and future
loss of income.
7.
To this end, Mtshali's legal team adduced the
vive voce evidence of clinical psychologist Dr Catherine Angus
("Angus"),
educational psychologist Brigitte Purchase
("Purchase"), industrial psychologist Jeannie van Zyl ("van
Zyl"),
and neurosurgeon Dr Herman Edeling ("Edeling").
The RAF closed its case without calling witnesses. In addition, at
the
hearing, Mtshali's Counsel handed up an updated report by actuary
GA Whittaker ("Whittaker"), which took into account
two
scenarios: one, that Mtshali would have obtained an N4 certificate
and diploma in civil engineering but for the accident, and
two, that
he would have obtained a degree in civil engineering.
8.
The RAF handed in an actuarial report from
Ndumiso Mavimbela ("Mavimbela").
9.
During the hearing, certain additional documents
were handed in by Counsel for Mtshali. They were: Mtshali's UNISA
records from
October 2010 to 2017, which came to light on 14 March
2017, an undated Netcare 911 Patient report form, Addington hospital
records
dated 28 June 2009, and a supplementary report from Purchase
dated 16 March 2017 commenting on the UNISA records.
10.
It was common cause that Mtshali had secured a
matric certificate with exemption in December 2006. He received an F
mark for physical
science at the standard grade, and a D for
mathematics at the standard grade. It was undisputed that, in 2007,
Mtshali worked as
a volunteer teacher at a local primary school.
11.
Mtshali attended the Ntuzuma Academy in 2009, the
year of the accident, with the aim of securing an NT4 diploma. His
year marks
for four subjects reveal three passes and one failure. His
final marks, which encompassed practical exams (for which he received
zero in all four subjects) represented a failure of all subjects: 33%
for quantity surveying, 35% for building administration,
22% for
building and structural construction, and 15% for building and
structural surveying. No evidence was led on Mtshali's behalf
to
explain his zero marks for the practical exams.
12.
The UNISA records reveal the following. Mtshali
commenced to study for a Bachelor in Education (Intermediate and
Senior Phase) in
October 2010. He passed the subjects "Child
Education" at 53% and "The Learning Child" at 51% in
October 2010.In
June 2014, he passed "African Language and
Culture in Practice" at 50%.In all, he failed two exams and was
absent from
two.In 2017, he enrolled for five subjects. The UNISA
records were produced after Messrs Angus and Purchase had testified.
13.
Angus gave evidence that she is a qualified
neuropsychologist who is able to assist in the diagnosis and
treatment of brain related
problems, as also emotional problems due
to brain dysfunction. She has been in private practice for 21 years.
Angus testified that,
according to her information, Mtshali was
discharged on the same day of admission at Addington hospital, at
about 08h30. The accident
apparently happened at about 18h00 on 28
June 2009 and Mtshali was admitted to hospital at about 02h10 the
following morning. His
Glasgow Coma Scale was 15/15. Loss of memories
for 2 to 8 hours, combined with a normal GCS as indicated by
Netcare's paramedics,
would suggest
"the
possibility of a mild to moderate head injury."
14.
The hospital records reflect that he was given a
Voltaren injection and a prescription for Panado and Brufen. Angus
indicated that
to her recollection, there was a strike at the
hospital at the time. The Netcare report indicates that he was
bleeding from the
right upper eyebrow and had a laceration in the
same area. Her interview with Mtshali on 27 January 2014 included his
girlfriend,
Simangele Gumede.
15.
Angus was aware of Mtshali's matric results and
his results at Ntuzuma Academy. She notes that after matric, Mtshali
was accepted
at Zululand University for a B.Ed degree but had no
money to study. He then attended "Elangeni" College (which
we assume
is Ntuzuma Academy), where he studied for one semester "but
was not really interested in this course so he dropped out.....He
then applied to do a B.Ed at UNISA and was accepted."
16.
In her report, dated 4 January 2015, she
concludes that Mtshali had cognitive deficits typical of a brain
injury which were mild
to moderate in nature. The mild to moderate
deficits were consistent with a mild to moderate brain injury. In the
same report,
concerning future loss of income, she notes she was
informed that Mtshali was studying towards a degree in Education
before the
accident. She notes:
"His poor
marks in his Civil Engineering subjects were reportedly due to a lack
of interest in the course."
She goes on
to say:
"His current profile would
suggest that he is not going to cope with a degree at this stage and
he should move to studying
a diploma or certificate or more practical
types of training."
17.
In cross-examination, Angus expressed the view
that she did not think that Mtshali would have obtained a diploma in
civil engineering,
pre accident.
18.
Purchase testified that the purpose of her
report, dated 23 May 2016, was to determine Mtshali's then cognitive
and educational
potential, establish his academic progression and
ability to cope with future learning or training and to establish his
pre-accident
levels of educational potential. She was cognisant of
his matric results and the marks obtained at Ntuzuma Academy. Her
report
notes on pre-accident learning potential, Mtshali was "at
least within the average range."
19.
In her view, he would have completed a tertiary
qualification, either by way of a diploma or degree and depending on
his level of
interest. She testified that, but for the accident,
Mtshali would have been able to complete his N4 diploma. However,
financial
means would have also played a role in choice of
institution and area of study.
20.
Post accident, according to his assessment, he
was no longer eligible for tertiary education but may be able to
complete a three
to six month certificate course. Post accident, she
noted that Mtshali
"still wants to
realise his pre-accident aspiration of being a teacher or lecturer."
"The writer is of the view that
(Mtshali) is no longer suited to
this occupation as he will struggle with the inherent requirements of
the job."
Purchase deferred to the
industrial psychologists with regard to his expected employment
prospects. She doubted whether Mtshali
could work without
supervision.
21.
In her supplementary report, Purchase has regard
to the UNISA results which were forthcoming on 14 March 2017.In her
view, the B.Ed
degree at UNISA was overwhelming and it was unlikely
that he would complete it within 10 years. Mtshali was better suited
to short
vocational certificates which may equip him as a teacher's
aide or assistant, such as listening to reading groups or supervising
homework. He will require a "supportive and sympathetic
environment where he is supervised and directed at all times."
He remains a "vulnerable individual by this accident and is no
longer competitive in the open labour market."
22.
Van Zyl stood by the opinions articulated in her
report dated 20 February 2017, and was not seriously challenged in
cross-examination.
When shown the UNISA results, she did not change
her opinion. The fact of enrolment post accident did not indicate
Mtshali's cognitive
ability but rather his motivation.
23.
She accepts that it is unknown which profession
of the two options, education or civil engineering, Mr Mtshali would
have pursued.
She posed two scenarios, the first being the attaining
of a diploma and the second being a degree. Van Zyl's evidence is
best summarized
by the conclusion drawn in her report, and repeated
in her evidence:
"Mr Mtshali was a
full time student, studying towards a N4 Certificate when the
accident occurred. But for the accident, Mr
Mtshali would probably
have completed a diploma or degree. He would probably have been
gainfully employed at the Paterson C4 or
01/ 2 level. Mr Mtshali was
probably motivated to work until retirement. On 28 June 2009, Mr
Mtshali was involved in a motor vehicle
accident in which he
sustained a brain injury. Mr Mtshali's educational potential, as well
as his work capacity has probably been
significantly and permanently
curtailed by the sequalae of his brain injury. Mr Mtshali's
employment opportunities have probably
been restricted to unskilled
work. Mr Mtshali is presented with a high risk that he will probably
become permanently unemployed
in future, as set out in the report.
"
24.
ln evidence, Edeling was taken through his report
dated 16 February 2017 arising from an assessment of Mtshali on 23
April 2015,
this time in the company of his cousin, Sifiso Gumede
("Gumede"). Gumede provided important collateral
information. The
fact that Mtshali remembered nothing of the accident
and only about waking up in hospital was evidence of post-traumatic
amnesia.
The bleeding from his right upper eyebrow was consistent
with a possible brain injury. At hospital, there should have been
four-hourly
neurological observations for a period of at least 24
hours.
25.
The anecdotal evidence from a relative, Gumede,
confirmed that when he saw Mtshali a few days after the accident,
Mtshali was unable
to walk straight or look after himself. He spent
most of his time sleeping. He failed to recognize family members. His
memory and
concentration have deteriorated. He had difficulty in
reading. He had continued to take Panado and Grandpa headache powders
weekly.
Mtshali was a healthy and ambitious young man before the
accident. The accident marked a watershed in Mtshali's life with
persistence
since then of headaches, mental impairment, fatigue and
alterations in personality, moods and behaviour.
26.
Edeling testified that the fact that he had to
prompt Mtshali to share the sequelae with him, a form of
under-reporting, was another
indication of incomplete recovery from
trauma. Edeling observed scars on his head in the right upper
parietal region, and at the
left flank, as also musculoskeletal
impairment to the right shoulder. Impairments of mental function were
evident in poor attention,
memory difficulties, sluggish thought
processes, paucity of speech, comprehension difficulties, lack of
drive and mental fatigue.
27.
In his view, the head injury involved
"acceleration-deceleration forces as well as direct cranial
impact, resulting in a primary
diffuse (concussive) brain injury with
loss of consciousness and amnesia". It was what he termed was
probably a moderate "coup-contra
coup" contusional brain
injury. The contents of the ambulance and casualty records white note
GCS levels of 15/15 were consistent
with a mild primary diffuse
(concussive) brain injury.
28.
In conclusion, Edeling states that the organic
neurological sequelae of the brain injury had become permanent.
Provision should
be made for specialist treatment for possible
epilepsy and for psychotropic medication. The sequelae have resulted
in permanent
serious disability with loss of earning capacity. He was
to be considered a
"vulnerable
individual".
And finally, he states:
"On
neurological grounds it is considered that any residual work capacity
will be limited by the needs of simplicity, structure,
supervision
and sympathy."
When asked what work
might suit Mtshali, Edeling indicated that simple manual labour under
supervision might be appropriate, and
the construction industry was
cited.
29.
This concluded the case for Mtshali. The RAF
closed its case without calling evidence.
30.
I have had regard to the actuarial reports of
Whittaker and Mavimbela. Whittaker's calculations are premised on
Mtshali having attained
an N4 certificate and diploma in civil
engineering (scenario 1), or a degree in civil engineering, (scenario
2), pre-accident.
31.
Post accident, Whittaker assumes entry at
Paterson level Al and A2 earning R102 370,00 per annum as at February
2016. The net loss
for scenario 1, with contingency deductions,
translates to R5 747 163,00. The net loss for scenario 2, with
contingency deductions,
translates to R6 337 897,00.
32.
Mavimbela assumes that, pre-accident, Mtshali
would have studied for a teaching diploma in December 2011, entering
the labour market
in 2016 at a basic salary of R173 130,00 per annum,
in 2016 money terms. Allowance is made for a basic salary, thirteenth
cheque,
housing allowance, medical aid and pension benefit.
Pre-accident, he poses this one scenario.
33.
Post-accident, he poses two scenarios. The first
being that Mtshali is restricted to unskilled work, earning R20
600,00 per annum,
equating to the median quartile for unskilled
workers. The second scenario assumes that he would have been an
educator by August
2022, with added benefits.
34.
In my view, the assumption of Mtshali's obtaining
a teaching diploma pre accident is far more consonant with the
proven facts
as adumbrated above.
35.
Mtshali had originally enrolled for an education
degree at Zululand University. He spent 2007 teaching at his local
school. He expressed
a lack of interest in civil engineering in 2009
and he failed his first semester in any event. Post accident, he
enrolled for a
B.Ed at UNISA, and passed three subjects.
Post-accident, he maintained the ambition to become an educator,
albeit that the experts
opined that this was an unrealistic
aspiration. All of these indiciae are consistent with the inherent
probability that he would
have become an educator but for the
accident.
36.
Concerning post accident loss, scenario 1 as
posed by Mavimbela is the more probable, namely that of work in the
unskilled sector
where, on a starting salary of R20 600,00 per annum,
supervision would be competent and conducive to the amount of the
income.
This is consistent with the consensus of opinion amongst
Mtshali's own experts. A post accident contingency deduction of 30%
is
fair. This being the case, Mtshali's claim would amount to R5 788
663,00.
37.
His past loss, after a contingency of S% would be
R795 331,00 and future loss, after a contingency of 30% would be R5
095 333,00.
After deduction for the RAF cap of R102 001,00, the total
claim amounts to R5 788 663,00.
38.
The determination of general damages is an
inexact science and requires consideration of various factors. Ihave
taken note of the
relative youth, health and enthusiasm of Mtshali
before the accident turned his life around, the severity of his brain
injury and
its sequalae, the unabated headaches, pain, mental health
issues, and his compromised employability.
39.
In casu, taking cognizance of the severe
consequences of his brain injury, the sum of R850 000,00 is a
justifiable award for general
damages.
40.
In the result, an order is made in terms of the
draft attached hereto marked “X”.
__________________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
22
March 2017
Appearances
Counsel
for the Plaintiff:
Advocate N Makopo
Instructed
by:
Edeling van NiekerkInc Attorneys
Counsel
for the Defendant:
Advocate M Pienaar
Instructed
by:
T M Chauke Attorneys
IN THE HIGH COURT OF
SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
Case
No:
23918/2013
HELD AT PRETORIA ON THIS
22
nd
DAY OF MARCH 2017 BEFORE THE HONOURABLE JUDGE
BRENNER
AJ
.
In the matter between:
MTSHALI
:
SANDILE
WONDERBOY
Plaintiff
and
THE
ROAD ACCIDENT FUND
RAF
REF NO. 509/1938365/06/0: LINK
3188334
Defendant
ORDER
By
agreement between the parties, it is ordered that:
1.
The Defendant pay damages to
SANDILE
WONDERBOY MTSHALI
(hereinafter referred to as
"the Plaintiff'), in a total amount of R6 638 663,00,
comprising R795 331,00 for
past loss of income, R4 993
332,00 for future loss of income + R850 000,00 for general
damages (“the capital amount").
Payment of the capital
amount shall be paid within 60 (sixty) days of the date of this
order.
2.
The Defendant is to furnish the Plaintiff with an
Undertaking
in terms
of Section 17(4)(a) of the Road Accident Fund Act, Act No 56 of 1996,
for
100%
of
the Plaintiff s future accommodation in a hospital or nursing home,
or 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 or about
28 JUNE 2009,
which
undertaking shall further include the following:-
2.1
The reasonable costs incurred in the creation and
establishment of the Trust and the appointment of trustees(s) as
contemplated
in paragraph 6 and 7 below;
2.2
The costs of the trustee(s) in respect of the
future administration of the Trust and;
2.3
The costs incurred in providing security to the
satisfaction of the Master of the High Court of South Africa for the
administration
of the award and the annual retention of such security
to meet the requirements of the Master;
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
4.
Should the defendant fail to effect payment of
the capital amount within 60 (sixty) days of the date of this order,
the Defendant
shall become liable for interest a
tempore
morae
on the capital amount at a rate of
10.5% per annum from 14 (fourteen) days from date of this order to
date of final payment;
5.
The payments by the Defendant referred to in this
order shall be made into a trust account as contemplated in Section
78(2A) of
the Attorney Act 53 of 1979, of the Plaintiff s Attorney,
EDELING VAN NIEKERK INCORPORATED, for the sole benefit of the
Plaintiff
pending establishment of the TRUST contemplated in
paragraph 6 hereunder.
6.
In order to ensure that the monies awarded to the
Plaintiff are suitably protected, as contemplated by the relevant
experts, the
attorneys for the Plaintiff, EDELiNGVAN NIEKERK
INCORPORATED of Block A, Clearview Office Park, Wilhelmina Avenue,
Constantia Kloof,
ROODEPOORT are ordered:
6.1
to cause a trust ("the TRUST') to be
established in accordance with the Trust Property Control Act No. 57
of 1988, such Trust
to be a "special trust" as defined in
Section 1 of the Income Tax Act, No. 58 of 1962 (as amended). Such
trust shall
be registered with Uberrima Phoenix Trust (Pty) Ltd as
per the trustee consent annexed to this order marked "A";
6.2
to pay all monies held in trust by them for the
benefit of the Plaintiff, to the TRUST;
7.
The trust instrument contemplated in paragraph 6
above shall make provision for the following:
7.1
That the Plaintiff shall at all times be the sole
beneficiary of the TRUST;
7.2
That the trustee(s) and their successors are to
provide security to the satisfaction of the Master;
7.3
That the powers of the trustee(s) shall
specifically include the power to make payment from the capital and
income for the reasonable
maintenance of the beneficiary, or for any
other purpose which the trustee(s) may decide to be in the
beneficiary's interest, and
if the income is not sufficient for the
aforesaid purpose, that the trustee(s) may utilise capital;
7.4
That the trustee(s) be authorized to recover the
remuneration of and costs incurred by the trustee(s):-
7.4.1.
In the establishment of the Trust;
7.4.2.
The future administration of the Trust which will
include accounting and auditing fees;
7.4.3.
In administering the undertaking;
7.4.4.
In the annual retention of security to the
Master.
7.5
That the ownership of the trust property vest in
the trustee(s) of the TRUST in their capacity as trustees;
7.6
Procedures to resolve any potential disputes,
subject to the review of any decision made in accordance therewith by
this Honourable
Court;
7.7
The exclusion of any and all benefits (income
and/or capital) accruing to the Plaintiff as beneficiary of the TRUST
from any community
of property and/or accrual system in any marital
regime;
7.8
The suspension of the Plaintiff s contingent
rights in the event of cession, attachment or insolvency, prior to
the distribution
or payment thereof by the trustee(s) to the
Plaintiff;
7.9
That the amendment and cancellation of the trust
instrument be subject to the leave of this Honourable Court;
7.10
The termination of the TRUST upon the death of
the Plaintiff, in which event the trust assets shall pass to the
estate of the Plaintiff;
7.11
That the trust property and the administration
thereof be subject to an annual audit.
8.
The Plaintiff's attorney shall be entitled to
make payment of expenses incurred in respect of accounts rendered by:
8.1
experts witnesses namely:-
8.1.1.
Dr D lrsigler,
General
Medical Practitioner
8.1.2.
Dr C Angus, Clinical Psychologist
8.1.3.
Ida-Marie Hattingh , Speech/ Language Pathologist
& Audiologist
8.1.4.
Dr L Grinker, Psychiatrist
8.1.5.
Alison Crosbie, Occupational Therapist
8.1.6.
Rookaya Vahed, Audiologist
8.1.7.
Brigitte-Leigh Purchase, Educational Psychologist
8.1.8.
Mr G Whittaker (Algorithm), Actuary
8.1.9.
Jeannie Van Zyl, Industrial Psychologist
8.1.10.
Dr H J Edeling, Neurosurgeon
8.1.11.
Ravine Yachad, Orthopaedic Surgeon
from
the aforesaid funds held by them for benefit of the Plaintiff.
9.
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. There is no valid contingency fee agreement.
10.
The trustee(s) will ensure that the payment in
terms of such agreement will be fair and reasonable and the Master of
the High Court
and/or the trustee(s) may insist on the taxation of an
attorney-and-own-client bill of costs;
11.
The Defendant pays the Plaintiff s taxed or
agreed party and party costs on the High Court Scale which costs
inter alia
will
include the following:
11.1
The Costs of Senior-Junior Counsel;
11.2
All costs in obtaining all
medico-legal/addendum-reports, joint minutes and an actuarial report
as well as the Plaintiff s travelling
and lodging costs in attending
the Plaintiff's and Defendant's Experts. The Plaintiff filed the
following expert reports:
11.2.1.
Dr D lrsigler,
General
Medical Practitioner
11.2.2.
Dr C Angus, Clinical Psychologist
11.2.3.
Ida-Marie Hattingh , Speech/ Language Pathologist
& Audiologist
11.2.4.
Dr L Grinker, Psychiatrist
11.2.5.
Alison Crosbie, Occupational Therapist Rookaya
Vahed, Audiologist
11.2.6.
Brigitte-Leigh Purchase, Educational Psychologist
11.2.7.
Mr G Whittaker (Algorithm), Actuary
11.2.8.
Jeannie Van Zyl, Industrial Psychologist
11.2.9.
Dr H J Edeling, Neurosurgeon
11.2.10.
Ravine Yachad, Orthopaedic Surgeon
12.
Reservation fees of Ms I Hattingh, Dr C Angus, Dr
HJ Edeling, Ms BL Purchase and Ms J van Zyl.
BY
ORDER OF COURT
__________________
REGISTRAR
COUNSEL
FOR PLAINTIFF: COUNSEL FOR
DEFENDANT:
ADV
N MAKOPO
083
258 0435
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 23918/2013
In
the matter between:
MTSHALI,SANDILE
WONDERBOY
(ID
[…])
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CONSENT
TO BE APPOINTED AS TRUSTEE
I,
the undersigned,
PENELOPE
JANICE DU PLESSIS
as
duly authorised nominee of Uberrima Phoenix Trust (Pty) Ltd of
Property Business Park, 389C Ontdekkers Road, Roodepoort, hereby
declare that if appointed, I would be willing and able to act as
Trustee of the Trust created for the benefit of
SANDILE WONDERBOY
MTSHALI.
SIGNED
at
Roodepoort
on this
17
th
day of
March
2017.
______________
PJ
DU PLESSIS