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[2017] ZAFSHC 217
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Lekhehle v S (5053/2011) [2017] ZAFSHC 217 (24 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION,
BLOEMFONTEIN
Case
number: 5053/2011
In
the matter between:
SENTLEJOHNLEKHEHLE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
SNELLENBURG,
AJ
HEARD
ON:
27, 28 & 30 JUNE 2017
DELIVERED
ON:
24
AUGUST 2017
“
The
web of our life is of a mingled yarn, good and ill together.
“
William
Shakespeare's All's well that end well, 1600's, Act IV, scene
3, line
80.
[1]
The plaintiff would understand this better than most. He has had his
fair share of challenges and sorrow, having had to endure
the passing
of his wife before the unexpectedness of life again cast a shadow
over him.
[2]
On 23 November 2008 at the intersection of Church and Vooruitsig
Streets, Bloemfontein, the plaintiff sustained serious injuries
as
result of a motor vehicle accident whilst being a passenger in one of
the vehicles involved in the collision.
[3]
The plaintiff ultimately issued summons against the defendant in
terms of the provisions of the
Road Accident Fund Act, 56 of 1996
, as
amended from time to time [the Act], to claim damages suffered as
result of the collision.
[4]
The merits and quantum of the plaintiff's claim were separated. The
defendant conceded the merits of the plaintiff's claim and
is liable
to compensate the plaintiff for 100% of any proven damages arising
from the collision. In terms of the court order and
apart from the
aforesaid the defendant tendered an undertaking in terms of
s
17(4)(a)
of the Act in respect of the plaintiff's past medical and
hospital expenses.
[5]
As result of the defendant's rejection of the RAF4 serious injury
assessment report lodged by the plaintiff, that issue
was
referred to an Appeals Tribunal constituted by the Health
Professions Council of South Africa which determined that the
plaintiff's injuries were serious in terms of the narrative test and
the plaintiff therefore qualifies to claim and be awarded
general
damages.
[6]
The matter ultimately served before me for determination of:
6.1
past hospital, medical and related expenses;
6.2
past and future loss of income
/
reduced earning
capacity; and-
6.3
general damages.
[7]
The plaintiff presented the following evidence:
7.1
His own viva voce evidence;
7.2
The viva voce evidence of Dr Le Roux (orthopaedic surgeon) and Dr
Wahlman (psychologist);
7.3
The plaintiff accepted and admitted the reasoning, conclusions and
opinions contained in
the
Rule 36(9)(b)
summary of the
defendant's occupational therapist, Ms Success Moagi which was
filed by the defendant as part of its
expert bundle without the need
of the relevant expert to testify. The defendant, insofar as it is
relevant, did not object;
7.4
The defendant accepted and admitted the reasoning, conclusions and
opinions contained in
the
Rule 36(9)(b)
summaries of Dr Richard
Hunter, industrial psychologist and Dr Theo Le Roux, orthopaedic
surgeon, both of whom the plaintiff intended
to call as expert
witnesses during the trial.
7.5
The defendant admitted the actuarial methodology adopted by
plaintiff's actuaries, Messrs
Munro Forensic Actuaries contained in
the plaintiff's
Rule 36(9)(b)
report.
[8]
The plaintiff moved for an amendment of the amounts claimed for past
hospital and medical expenses; past and future loss of
earnings and /
or earning capacity and general damages. The amendments were not
opposed and was granted. As amended the plaintiff
claims the
following amounts:
8.1
Past hospital and medical expenses R90 712.79;
8.2
Past and future loss of income
/
reduced earning capacity R1 642 370.00; and-
8.3
General damages R575 000.00.
[9]
For sake of completeness the following documents were handed in as
exhibits during the trial, namely:
9.1
The pleadings bundle as Exhibit A;
9.2
The expert reports bundle as Exhibit B;
9.3
An evidentiary document bundle as Exhibit C;
9.4
A bundle consisting of past
hospital,
medical and related documents as
exhibit D;
9.5
Diagrammatic sketch of an image of the human pelvis as exhibit E;
9.6
Updated actuarial report, dated 29 June 2017, by Messrs Munro
Forensic Actuaries as exhibit
F.
[10]
None of the viva voce or documentary evidence presented by the
plaintiff during the trial were contested by the defendant.
The
defendant at the conclusion argued only the quantum of the general
damages that it submits should be awarded.
[11]
Regarding the viva voce evidence which was presented I have no
hesitation in accepting the evidence of the plaintiff and the
expert
witnesses who testified on his behalf, namely Dr Le Roux and Dr
Wahlman.
[12]
The plaintiff made a very good impression on me. He was indeed a very
candid witness. I agree with the plaintiff's counsel
that the
plaintiff did not seek to embellish or exaggerate his symptoms or the
impact of his injuries on virtually every aspect
of his life. The
plaintiff's testimony leaves little doubt of the gravity of his
injuries and the continuous consequences thereof.
He very candidly
explained the symptoms and impact of his injuries in his own words.
His evidence brought to mind the quote from
William Shakespeare's
play I quoted in the introduction.
[13]
The court is called upon to evaluate the expert evidence to satisfy
itself that the evidence satisfies the criteria. The fact
that the
defendant has not challenged the evidence is also a factor weighing
in the plaintiff's favour. I have had the benefit
of witnessing both
experts whilst hearing their testimony. I have also had the benefit
of their evidence in addition to the summaries
of their conclusions
and the reasons therefore. I have no hesitation in accepting their
evidence. To this end I am satisfied that
both the experts assisted
the court in an objective manner and that the court received
appreciable help from the witnesses
on particular issues
by reason of their special knowledge and skill where they are better
qualified than the trier of fact.
[14]
The general damages was ultimately argued on the uncontested and
undisputed evidence presented by plaintiff by means of viva
voce
evidence and expert reports of the witnesses who testified as well as
those admitted without the need for evidence and the
documentary
evidence referred to above.
[15]
The plaintiff was born on 7 August 1969. He is presently 47 years of
age. Although the plaintiff apparently 'failed' grade
1 the plaintiff
ultimately matriculated in 1989 and obtained the distinction of
serving as prefect in his school during his matric
year. The
plaintiff got married during 1998 but sadly lost his wife to illness
during 2003. The plaintiff became involved again
and has a special
female friend who travels from Lesotho every two weeks to visit him
in Bloemfontein. The plaintiff has
one biological daughter presently
studying at a tertiary institution by means of a bursary. The
plaintiff also cares for his late
sister's children. He is on all
accounts the primary care giver of these children which he refers to
as his children.
[16]
The plaintiff initially followed the footsteps of his father after
matriculating by doing general work at various construction
sites in
Bloemfontein for approximately a year. The plaintiff then joined the
South African National Defence
Force [SANDF]
during 1991 (at that time it would have still been called the South
African Defence Force, but nothing turns
around this). Soldiers were
(and still are) classified when joining the Defence Force. The
plaintiff was classified during 1991
as G1K1. 'G' actually stood for
“Gesondheid”, health and 'K' for "Klimaatsaanwending",
climate application).
G1 simply meant that a soldier (plaintiff) is
healthy and can participate in any physical activity whilst a K1
classification meant
that the plaintiff could be deployed anywhere at
any time without any limitations. Other classifications, for example
K2 would
mean that the soldier had to be within an appropriate
vicinity to medical care for whatever reason which would obviously
impact
his ability to be deployed. In short the plaintiff was in good
physical health. As member of the permanent force the plaintiff
progressed to the rank of corporal. He left the SANDF in 1998.
[17]
During this time the plaintiff also obtained a diploma in Traffic
Science for which he studied part time.
[18]
The plaintiff was, not surprisingly, active in various sports
including boxing and road running. During his stint in the SANDF
he
would have been subject to fitness tests and activities in the normal
course.
[19]
On 28 October 1998 the plaintiff was appointed by Simba (Pty) Ltd
(Simba) as sales representative in Bloemfontein. During 2001
he was
promoted to Business Development Representative. The position of
Business Development Representative was done away with
by Simba after
approximately 3 years. The plaintiff then became a Route Sales
Representative. He remained in this position until
the termination of
his employment by Simba on 24 June 2014. I will revert to the
termination below. It needs little debate that
the plaintiff's career
advanced in a substantially different manner than that of his parents
or siblings.
[20]
The plaintiff's earnings were proved by means of payslips and a
Certificate of Service forming part of Exhibit C to which I
will
revert in due course.
[21]
It will suffice to say that the plaintiff's work as Route Sales
Representative involved a lot of physical activities. He was
responsible to load and offload stock in boxes, walking, standing,
sitting and being able to drive variable distances, lifting
and
carrying the boxes and obviously, as pointed out by the plaintiff's
counsel getting into and out of the truck he was driving.
He would
obviously do ordinary every day physical activities that we pay no or
little heed to, for example kneeling, sitting or
standing for
extended periods without any discomfort, or put differently, with the
normal discomfort associated with such activities.
[22]
The description of the accident and the immediate aftermath, to
borrow the plaintiff's counsel's words, are harrowing and very
real.
Save for the fact that the plaintiff thought he would die when he
felt the gash to his scalp, the plaintiff suffered severe
discomfort
and pain when strapped to the stretcher by the paramedics. This we
now know was caused by the traumatic injuries to
his pelvis. The main
injuries suffered by the plaintiff, in addition to the pelvic
injuries were lacerations to his scalp and left
arm and a fracture of
his left ankle.
[23]
It is apposite, before continuing, to record that the plaintiff
suffered what is commonly known as an open-book type pelvic
injury
which, according to Dr Le Roux who eloquently explained the injury
with assistance of the diagram of a human pelvis, comprises
of a
traumatic disruption of the plaintiff's symphysis pubis with the
dislocation of the left
sacro-iliac
joint. Dr Le Roux also
identified the plaintiff's injury to his left ankle as an
un-displaced fracture of the medial malleolus
of the left ankle. Dr
Le Roux testified that the plaintiff in addition suffered lacerations
on his head and elbow. I will revert
to Dr Le Roux's evidence.
[24]
The plaintiff was initially taken by ambulance to the Pelenomi
Provincial Hospital as the attending medical staff were unaware
that
the plaintiff was in fact covered by a medical aid fund. The
plaintiff's stay at the provincial hospital was limited to a
week on
all accounts. The plaintiff testified that he does not recall
receiving any meaningful medical treatment whilst being
in the
hospital. He was transferred to the Netcare Universitas Private
Hospital due to the fact that he was covered by a medical
aid fund.
The plaintiff received surgery to his pelvis and was later
discharged. He was however readmitted
before Christmas
for treatment of an infection which had developed at the location of
the pelvic surgery. This culminated in a
second surgery to treat the
septic wound.
[25]
The plaintiff's mobility was severely limited initially. The evidence
shows that the plaintiff initially used a wheelchair.
He was then
able to move around with the aid of a walking frame. He continued to
receive treatment culminating in his ability to
move around with
bilateral crutches. He was later able to use only one crutch. The
plaintiff was however confined to his house
for several months as
result of his limited mobility.
[26]
The plaintiff spent 6 months at home after his discharge. He received
75% of his basic (standard) income from Simba. He obviously
did not
receive any commission. The plaintiff returned to work during July
2009 and was assigned light duties due to his limited
mobility. He
continued to receive his basic salary without commission. He had to
resume his 'normal' activities with his employer
approximately 6
months later.
[27]
Although his employer was sympathetic to his situation at first this
did not last. The plaintiff experienced various problems
in
performing the tasks he was able to perform before the accident and
resulting injuries. He was no longer able to load and offload
boxes,
nor carry them. The plaintiff has severe discomfort in sitting for
extended periods. He had difficulty getting into
and out of his
truck. He was dependent on pain medicine and his productivity and
performance were greatly reduced. In short, the
plaintiff could no
longer make his monthly targets. This eventually, and understandably,
caused his employer to initiate steps
which ultimately lead to the
official termination of the plaintiff's employment.
[28]
The plaintiff has not been able to remain employed gainfully since
the termination of his employment by Simba.
[29]
The plaintiff has not been idle. Notwithstanding his inability to
secure permanent employment the plaintiff has rented out
his garage
for R900.00 per month. He also rents out his 'bakkie' when he can. He
may earn a few hundred rand per month, depending
on the demand. The
plaintiff also receives R1300.00 per month as result of his former
affiliation with the SANDF. This benefit
accrued before the collision
and has nothing to do with the collision.
[30]
The plaintiff received 36 stiches to close the scalp laceration and 3
stiches to close the laceration to his left elbow. The
scalp
laceration left a very significant and obvious scar which was visible
and could readily be observed by me during the proceedings.
[31]
The plaintiff experiences discomfort when lying down, sitting for an
extended period or standing for long
periods.
This unfortunately impacts on the plaintiff's ability to get a
meaningful night's rest. The plaintiff testified
that he cannot
sleep comfortably and needs to sit upright or even get up from
the bed after short intervals. This is an ongoing
problem which also
culminated in his inability to concentrate and perform when he
resumed his responsibilities at Simba. It remains
a problem.
[32]
The plaintiff testified that in his opinion the symptoms of his
pelvic injury had worsened over time or at least he felt that
it had
become more unbearable. The plaintiff also testified that he could no
longer properly satisfy his female friend's sexual
needs as he
suffers from a low libido. This makes him feel inadequate as man and
impacts on his self-esteem.
[33]
The plaintiff's life in general has been drastically altered. He
testified that he experiences constant pain in the pelvic
region and
lower back. As will appear, this is confirmed by the expert
evidence tendered on his behalf. He testified that
he generally
feels depressed and has no motivation. He mainly stays at home. Where
he tended to his own washing, gardening and
maintenance work around
the house, he is no longer able to do so. He needs assistance.
[34]
Dr Le Roux put the plaintiff's injuries and the consequences thereof
in perspective. His evidence confirmed the difficulties
and
discomfort that the plaintiff testified about after the collision.
Suffice it to say that Dr Le Roux, with assistance of the
plaintiff's
medical reports, confirmed that he underwent clinical and
radiological examinations. A plaster cast was applied to
the
plaintiff's left leg. The medial malleolus ankle joint fracture was
treated conservatively. The plaintiff underwent surgery
which
involved the open reduction and internal fixation of the open-book
pelvic injury. During the procedure double plates were
inserted and
affixed in position. The surgery was done on 2 December 2008 and the
plaintiff was discharged shortly before Christmas.
[35]
Dr Le Roux also confirmed that the plaintiff was readmitted shortly
after his discharge because the wound had become septic.
This appears
to be possible consequence as result of the type of injury and
treatment. It however necessitated debridement of the
wound sepsis
and closure of the wound. The plaintiff was admitted on 26 December
2008 and discharged on 6 January 2009. The plaintiff
had to be
readmitted for treatment of infection of the wound on 16 January 2009
and discharged on 22 January 2009. The plaintiff
had to use a
wheelchair and made use of bilateral churches for a period of
approximately 6 months.
[36]
Of specific relevance Dr Le Roux confirmed the merits of the
plaintiff's ongoing complaints regarding the inability to stand
for
long periods; remain sitting for periods exceeding 30 minutes;
sleep comfortably; walk for long distances; maintain bent
over
postures and jump without pain. The plaintiff's pain and discomfort
will increase in cold weather.
As
for the left ankle, the injury compromised
the plaintiff's left ankle permanently and left him
susceptible to
further injury. I must add that the plaintiff in fact testified that
he presently does not experience substantial
discomfort of the ankle
injury. This is but one of the reasons for my finding above that the
plaintiff was an honest witness who
did not seek to embellish his
injuries or consequences thereof. It is however a fact that the
condition of the plaintiff's left
ankle has been comprised and he is
susceptible to future injury.
[37]
Dr Le Roux testified that the plaintiff's evidence regarding the
worsening of the discomfort and pain, experienced as result
of the
pelvic injury was probable and probably as result of his physical
constitution and weight gain as result of the fact that
he was no
longer physically active. The increase in weight places the pelvic
structure under additional stress. In addition, the
plaintiff's
complaints were typical of the type of injury as result of the manner
in which the injury heals. The plaintiff's complaints
are real and to
be expected in light of the injury. Dr Le Roux also testified that in
his opinion both the pelvic and ankle injuries
had stabilized and the
symptoms experienced by the plaintiff would on probabilities not
improve or deteriorate. I would add that
the opinion regarding
possible deterioration must clearly be subject to the plaintiff's
weight gain as this put additional stress
on the pelvis.
[38]
As far as further treatment of the plaintiff's pelvic injury is
concerned Dr Le Roux explained that although there is a possibility
of arthrodesis of the plaintiff's
sacro-illiac
joint, he would
consider this as a last resort. The procedure could diminish the
level of pain and thus discomfort constantly suffered
by the
plaintiff, but has other reactions which could probably create other
complications as result of the nature and extent of
the fibrous
tissue that will manifest in the pelvic region due to the procedure.
At present Dr Le Roux would not advise this procedure.
[39]
Dr Le Roux opined that future employability of the plaintiff would be
subject to various accommodations by the employer such
as that the
employment should not involve walking, standing or sitting for
extended periods of time. The employment should also
not entail the
plaintiff to be in a bend-over position or having to lift anything of
substantial weight. As I understood the plaintiff's
evidence he
encounters severe discomfort in lifting objects which can not
necessarily be labelled to have substantial weight. It
appears that
the accommodations that would be necessary entails ordinary
activities which are part and parcel of normal everyday
activities.
[40]
Dr Le Roux does not share Dr Wohlman's
view
that the multi
disciplinary approach would yield a positive improvement in the
plaintiff's condition, specifically with reference
to the symptoms
experienced by the plaintiff as result of the pelvic injury. Dr Le
Roux's scepticism is based on the fact that
a substantial period of
time has already passed since the injuries were sustained and treated
and the history of the plaintiff's
symptoms and pain.
[41]
Dr Wahlman conducted a follow-up assessment (in addition to his
previous assessments which forms the basis for his expert reports)
of
the plaintiff on the morning of the first trial day. Dr Wahlman
recorded that the plaintiff complained of suffering chronic
pain;
having a depressed mood; encountering sleep difficulty, vocational
uncertainty with future employment; financial difficulties
and
associated anxiety; a low libido; weight gain; forgetfulness and lack
of ability to concentrate; a fear of and hyper vigilance
when
travelling and dependency of pain medication after the collision and
the consequent injuries.
[42]
Dr Wahlman testified that the plaintiff's complaints are authentic
complaints and this conclusion is confirmed and supported
by the
findings and conclusions of Dr Le Roux. I have no doubt at all that
the plaintiff's complaints are sincere.
[43]
Dr Wahlman diagnosed the plaintiff during clinical evaluation as
presenting distress with underlying symptoms relating to chronic
pain
disorder with accompanying symptoms of mixed depression and anxiety.
Dr Wahlman administered a mental state examination which
included the
Beck Depression Inventory, Beck Anxiety Inventory and a Pain
Disability Questionnaire. I summarise the results. The
plaintiff was
found to suffer from moderate to severe degree of depression and
anxiety. The impairments were measured as
follows:
functional impairment of 64/90 and a psychological
impairment of 52/60. This totals to a cumulative
score of
116/150. The assessment during the morning of the first trial day
revealed that the plaintiff's symptoms pertaining to
anxiety had to
some extent abated but the symptoms of depression had intensified and
become more severe. This was not unexpected.
[44]
In short, the plaintiff is caught up in a vicious cycle. The
continuous pain which the plaintiff experiences results in the
depression and the depression in turn restricts the plaintiff's drive
and motivation to become engaged, insofar as he is able to
do so, in
vocational, recreational and social activities which obviously
contributes to the depression in turn.
[45]
The plaintiff's symptoms effectively restrict his ability to secure
and being able to maintain gainful employment in the open
market. As
touched upon above, Dr Wahlman advocates a multi-disciplinary
treatment approach for the plaintiff involving psychotherapy,
counselling, medication, orthopedical management, physiotherapy,
biokinetical training and weight control management. Dr Wahlman
however qualified his opinion by reiterating that the plaintiff's
symptoms are deeply entrenched in the person he has become as
result
of the chronic nature and consistency of the pain he experiences.
[46]
The defendant's occupational therapist, Ms Moagi concluded in
her report that the plaintiff, at date
of her
assessment being 17 June 2014, did not satisfy the open
labour market physical requirements for the full scope
of light,
medium, heavy or very heavy type of work or work requiring prolonged
standing or walking; bilateral carrying or lifting
of heavy loads;
dynamic working postural patterns; climbing stairs or optimum
mobility. According to the report Ms Moagi found
the plaintiff to
meet sedentary (with some aspects of light) requirements of physical
work in terms of his vocational abilities.
She also, as Dr Le Roux,
found that the plaintiff would require reasonable accommodations that
have to be made by an employer as
well as a sympathetic employer, in
other words, the employer would have to understand the plaintiff's
unique circumstances and
be willing to make accommodations to enable
the plaintiff to perform his duties.
[47]
Ms Moagi in a joint minute (with Ms Raats) considered the plaintiff
to require 1O sessions of occupational therapy and in addition
3 to 5
hours of occupational therapy after any future surgery; domestic
assistance of 10 to 15 hours per week for home management
tasks;
handyman assistance of R2 000.00 per year and provision for assistive
devices such as a bucket on wheels, shopping bag on
wheels, high
chair, low chair, low bench, crutches, raised toilet seat, hip kit
consisting of easy-reacher, dressing stick, shoe
horn, washing aid
and stock puller, wheelchair and 2 grab rails.
[48]
Dr Hunter concluded that the plaintiff's earning capacity has been
significantly and adversely affected (impaired) as result
of his
injuries and the sequelae.
Dr
Hunter's report concludes
that the plaintiff would have experienced difficulty in
performing the tasks he performed
before the accident and resultant
injuries. The plaintiff will not be able to compete with able bodied
workers seeking employment
and he is likely to suffer long extended
periods of unemployment between jobs. He is likely not to be able to
work until he reaches
retirement age. Dr Hunter opined that the
plaintiff's loss of income or reduced earning capacity would be best
assessed by applying
differential contingency deductions. Dr Hunter
also recommended that the plaintiff be compensated for the period
that he was absent
from work as result of his injuries during which
period he only received 75% of his basic wage.
[49]
The plaintiff has suffered disfigurement. He has retained the scar
on his scalp, referred to previously, but also the
surgical scars,
including a scar anterior to his pelvis.
[50]
The plaintiff's condition, as stated, leads to memory loss and poor
concentration. The plaintiff has also gained significant
weight as
result of his lack of exercise. This will however detrimentally
affect the underlying injury.
[51]
The court is guided by the principles which were aptly summarised by
Zulman JA in
Road Accident Fund v
Guedes
2006
(5) SA 583
(SCA) para 8
et
seq.
"It
is trite that a person is entitled to be compensated to the extent
that the perso
n
1s
patrimony
has
been
diminished
in
consequence
of
anothe
s negligence. Such damages include loss of future earning
capacity (see
for
example President Insurance Co Ltd v Mathews)
[1]
.
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 (see, for example,
Southern
Insurance Association Ltd v Bailey NO).
[2]
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. Courts have adopted
the approach
that, in order to assist in such a calculation, an actuarial
computation is a useful basis for establishing the quantum
of
damages. Even then, the trial Court has a wide discretion to award
what it believes is just (see, for example, the Bailey case
[3]
and Van der Plaats v South African Mutual Fire and
General Insurance
Co
Ltd).
[4]
[52]
It
is by now well established that the court exercises a discretion when
awarding damages and that this discretion needs to be exercised
judicially. It is equally established that the court needs to
discount for vicissitudes of life, more commonly referred to as
contingencies. These contingencies may vary from case to case and the
discount may vary depending of the facts of the
matter
and is to large extent dependant on the trial Judge's impression of
the case. By its very nature the enquiry into damages
is
speculative
and involves a prediction of the future.
[5]
The Supreme Court of Appeal has never attempted to lay down rules as
to the way in which the problem of an award of general damages
should
be approached.
[6]
“
The
accepted approach is the flexible one described in the often quoted
statement of WATEAMEYEA JA in Sandler v Wholesale Coal Suppliers
Ltd
1941 AD 194
at 199:
“
The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived
at must
necessarily be uncertain, depending upon the
Judge's view of what
is fair in
all the circumstances of the case.”
[7]
From
the afore-going it is clear that contingencies are intrinsically
related to the facts and circumstances of the case. The trial
Court
applies a contingency in its discretion having regard to those facts
and circumstances and its overall view of the matter.
Also see
De
Jongh V Dupisanie
NO [2004)
2 ALL SA 565
(SCA) para 47.
[53]
The actuarial report of Munro applied deductions of 5o/o and 10°/o
for contingencies to the plaintiff's past and future
earnings. The
plaintiff's counsel argued that in terms of the sliding scale
approach, bearing in mind that the accident occurred
almost 9 years
ago, it would equate to a contingency
deduction of approximately 4.5%. If the plaintiff's
age is considered
(47 years) he is approximately 18 years from retirement age. On the
sliding scale approach this would equate
to a future
contingency deduction of approximately 9%.
[54]
The defendant did not take issue with the calculations or the
contingency deductions argued for by the plaintiff.
[55]
I am satisfied that these contingency deductions are reasonable in
the circumstances of this case. The uncontested evidence
indeed shows
that the plaintiff was in good health prior to the accident and his
employment was not in any way in jeopardy.
[56]
The plaintiff's parents have both passed away. His late father was a
construction worker and his late mother earned her living
as domestic
worker. The plaintiff's brother is a general labourer. The evidence
however shows that the plaintiff cut his own path
to a destiny quite
different to that of his immediate family. Obviously this was
possible as result of his parents' sacrifices.
Suffice it to say that
the employment history of his parents and siblings is not decisive in
this matter.
[57]
There can be no debate that the plaintiff's employability and
earning capacity has been greatly reduced post accident.
I agree with
the plaintiff's counsel that although the plaintiff has
retained certain marketable skills and limited
residual earning
capacity, his scope of prospective employment options are
significantly diminished. This was not disputed by the
defendant.
As pointed out above, the experts are not ad idem regarding the
future success of suggested treatments. Dr Le
Roux's scepticism was
well reasoned and when taking the plaintiff's evidence and the
general impression I got from him into consideration
I am inclined to
share Dr Le Roux's scepticism.
[58]
I have no doubt that the plaintiff's prospects of re-entering
the open labour market is to the lower end of the scale.
9 years have
passed since the accident. During this period the plaintiff lost his
employment as direct result of the injuries and
its consequences and
he has not been successful in obtaining any gainful employment. It
must be borne in mind that the plaintiff's
psychological disability
as result of the constant pain and the resultant effects coupled with
the impairment in rendering normal
tasks make it very unlikely that
the plaintiff will in fact find employment. To this end the
defendant's own expert witnesses opined
that any prospective employer
would have to be willing to make accommodations in order for the
plaintiff to be able to render services.
[59]
The revised actuarial report has taken into consideration the income
the plaintiff currently generates. The assumption is also
made that
the plaintiff will continue to receive the sum, increased by way of
inflation, for 60% of the balance of his career,
periods he is not
likely to be employed. The actuary also assumed that the amount has
been earned from date of his dismissal from
his employment at Simba
at the present rate (2017 terms). Lastly the actual earnings gathered
from the plaintiff's payslips were
taken into consideration as well
as the plaintiff's losses during the period of absence from his
employment and the placement on
light duty.
[60]
The actuary calculates, with the contingency deductions and taking
the aforementioned into consideration, the capitalised value
of the
plaintiff's accrued and prospective losses to
the amount of R1 642 370.00.
[61]
As far as the claim for past medical, hospital and related expenses
goes, this issue can be disposed of without much ado. The
plaintiff's
evidence in this regard is uncontested. I am satisfied that the
plaintiff has proven the past medical, hospital and
related expenses
to the amount of R90 712.79.
[62]
The only issue disputed by the defendant relates to the issue of
general damages.
[63]
The plaintiff claims R575 000.00 whilst the defendant argues that an
amount between A300 000.00 and A350 000.00 will be a reasonable
award
taking the facts of the matter into consideration. Both parties
relied on previous awards by courts in matters which are
comparable
to the facts in this matter.
[64]
I am alive to the fact that general damages are not granted as
measure of retaliation and punishment for injury suffered as
result
of negligence. It has a salutary purpose. Moseneke DCJ
explained in
Van Der Merwe v Road Accident Fund And Another
(Women's Legal Centre Trust As Amicus Curiae)
[2006] ZACC 4
;
2006
(4)
SA 230
(CC) para 56:
"What
is
crucial
for the present purpose is that the law of damages recognises special
and
general
damages to afford the fullest possible redress for delictual harm.
Both classes of damages seek to redress the deterioration
or
reduction of the quality or usefulness of a legally protected
interest. In both cases the injured party loses
something and receives money as
reparation. Stated differently, the principal object of damages,
whatever the kind, is to 'neutralise loss
through
the
addition
of a new patrimonial element'."
[8]
[65]
Farlam, J, as he then was held In
Van Wyk v Santam
Bpk
1998
(4)
SA 731
(C) 735c-h:
".....,
an award of money cannot really compensate a plaintiff for pain and
suffering, loss of amenities, disfigurement, etc.
There is indeed no
norm for determining in monetary terms the extent of such general
damages. As was said by WindeyerJ in Papanayioutou
v Heath
(1970) ALA
105
at 112 (quoted by Luntz Assessment of Damages 2nd ed at 158 n 6):
"What
is a reasonable sum for general damages for personal injuries cannot
be measured and tested as a reasonable price can
be, by the
experience of the market-place.”
It
follows that there may be even amongst lawyers a marked difference in
their assessment of the monetary value to be placed on
loss of a
non-pecuniary nature. It is for this reason that a Court of appeal
will not interfere with an award of general damages
made by a trial
court merely because it is considered to be too high or too low. And
in making such an award a court does not have
regard only to the
interests of the plaintiff; it also bears in mind that too heavy a
financial burden should not be placed upon
the defendant. In
consequence it cannot be said that a plaintiff is over-compensated
if, when assessing his general damages, no
regard is had to an
extraneous benefit conferred upon him for the purpose of ameliorating
pain and suffering, loss of amenities,
disability. etc."
[66]
Previous awards serve a useful purpose.
De Jongh
supra,
para
64.
They remain a useful guide. When considering previous comparable
awards it must be borne in mind that the court making the award
did
so taking into account the facts and circumstances of the
specific case whilst also being guided by the specific Judge's
general impression formed when hearing the specific matter.
[67]
The
'comparable'
[9]
cases to which
the parties respectively referred me proof this point.
Whilst the cases are all fairly comparable to
the facts of this
matter, whilst also not being exactly on all fours with the facts in
this matter, the awards differ substantially
from case to case. To
this end the awards differ from R354 000.00 to R600 000.00 in present
day (2017) terms. I have also considered
the awards referred to by
the respective Judges regarding cases they considered before making
the
awards.
[68]
I am guided by the approach explained by Brand JA in the
De Jongh
matter in
para 56:
"Rabe
is geregtig op billike kompensasie vir hierdie verlies. Die bedrag
van sodanige kompensasie moet egter ook billik wees
teenoor die
verweerder. Dit is juis in 1n geval soos
hierdie waar die hof moet
waak teen
die menslike geneigdheid om te oorkompenseer. Of, soos Innes HA dit
gestel het in
Hulley v
Cox
1923 AD 244.246
1we cannot
allow our sympathy for the claimants in this very distressing
case to influence our judgment'."
[69]
The plaintiff's injuries and the consequences thereof have been dealt
with above and appear more fully, of course, from the
evidence and
the expert reports that have been canvassed.
[70]
In my view an award for general damages that will compensate the
plaintiff appropriately and also be reasonable towards the
defendant,
all facts and circumstances of this matter taken into consideration
and also whilst taking the guidelines in the
comparable matters
into consideration, is payment of the amount of R550 000.00.
[71]
The defendant is therefore liable to pay to the plaintiff the amount
of
R2 283 082.79,
which consists of the following
amounts, namely:
70.1
Loss of income / reduced earning capacity
R1 642
370.00;
70.2
Past hospital, medical and related expenses
R90
712.79;
70.3
General damages
R550
000.00.
[72]
I request both counsel to prepare heads of argument to facilitate the
argument. Counsel for the plaintiff prepared heads of
argument
dealing in detail with the issues which greatly assisted me. I am
also indebted to both counsel for the heads and argument
regarding
the issue of general damages. The cost order granted in the
plaintiff's favour should be understood by the taxing master
to
include specifically the drawing by plaintiff's counsel of the
plaintiff's heads of argument.
[73]
Accordingly,
IT IS ORDERED THAT:
1.
The defendant shall pay the plaintiff the amount of R2 283 082.79;
2.
The aforesaid amount shall bear interest at the rate prescribed in
terms of the provisions of the
Prescribed Rate of Interest Act 55 of
1975
, from a date fourteen days after the date of this order to date
of payment;
3.
The defendant shall issue an undertaking in favour of the plaintiff
in terms of
Section 17(4)(a)
of Act 56 of 1996 to pay the costs of:
(a)
future accommodation of the plaintiff in a hospital or nursing home;
(b)
treatment of or rendering of a service to the plaintiff;
(c)
supplying of goods to the plaintiff,
arising
from the injuries sustained by the plaintiff;
4.
The defendant shall pay the plaintiff's costs of suit, which are to
include the following:
4.1
the qualifying expenses and preparation fees
of the plaintiff's expert witnesses,
namely:
4.1.1
Dr Hunter;
4.1.2
Mr Wahlman;
4.1.3
Dr Le Roux; and
4.1.4
Munro Forensic Actuaries,
as
well as the plaintiff's aforesaid expert witnesses' reasonable
travel, accommodation and subsistence costs in respect of their
attendance at trail and the costs of their expert reports including
the costs attached to the procurement of the said reports;
4.2
Costs of the plaintiff's counsel including the reasonable travel,
accommodation and subsistence costs in respect
of his attendance to
trial.
5.
Interest on the costs at the rate prescribed in terms of the
provisions of the
Prescribed Rate of Interest Act 55 of 1975
, from a
date fourteen days after date of allocator to date of payment
thereof.
On
behalf of the plaintiff:
Adv
AD Branford
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv CJ Hendriks
Instructed by:
Maduba Attorneys
BLOEMFONTEIN
[1]
1992 (1) SA 1
(A)
at
5C
- E.
[2]
Supra
[3]
Supra at 116G - 117A.
[4]
1980 (3) SA 105
(A) at 114F-115D.
[5]
Southern Insurance Association Ltd v Bailey NO, supra.
[6]
Southern Insurance Association Ltd v Bailey NO, supra 119G.
[7]
Southern Insurance Association Ltd v Bailey NO, supra 119 G-H.
[8]
Visser
et
al
Visser
en
Potgieter's
Law
of
Damages
2nd
ed
(Juta
&
Co
Ltd,
Lansdowne,
2003)
at
165.
[9]
TM
Kgopyane, case number: 43235/2014, ZAGPHC
(unreported);
Muller
v Road Accident Fund (2473/05)
[2007] ZAECHC 95
(30 October 2007);
Hendricks v Road Accident Fund,
reported
in Corbett and Honey, The Quantum of Damages in Bodily and Fatal
Injury Cases, Val 5 at F3-1;
Hartzenberg
v SA Eagle Insurance,
reported
in Corbett and Honey, The Quantum of Damages in Bodily and Fatal
Injury Cases, Vol 4 at F3-7.