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[2016] ZAGPPHC 15
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Webb v Road Accident Fund (2203/14) [2016] ZAGPPHC 15 (14 January 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NUMBER: 2203/14
DATE:
14 January 2016
NJJ
WEBB
Plaintiff
v
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MABUSE
J:
[1]
The plaintiff, an adult male of Rustenburg, North-West Province, has
sued out summons against the defendant, a juristic person
constituted
as such by the provisions of s. 2 of the Road Accident Fund Act 56 of
1996 ("the Act") in which he has claimed
payment of money
and certain ancillary relief.
[2]
The plaintiff's claim has its origin in the following circumstances.
On 1 January 2012 and at or near Harrysmith the plaintiff
was a
passenger in a motor vehicle with registration numbers and letters
[…] which was at all material times being driven
by one Marne
Maritz ("Maritz"). The said accident occurred after the
said Maritz had lost control of the said motor vehicle
and as a
result of which it overturned while the plaintiff was inside it. It
is the plaintiff's case that the said motor vehicle
overturned as a
consequence of the negligence of the said Maritz. This aspect has
been conceded by the defendant.
[3]
As a result of the said motor accident the plaintiff sustained the
following injuries:
3.1. L1 burst fracture
with T12/L 1 dislocation resulting in paraplegia,
3.2. left displaced
radius and ulna fracture; and
3.3. such further and
better injuries as has been set out by various experts in their
respective reports.
[4]
Following the said injuries, the plaintiff was:
4.1. transported to
hospital where he was given emergency treatment appropriate to the
serious nature of his injuries whereafter
he was treated during
further hospitalisation;
4.2. experienced pain,
suffering and discomfort and would continue to do so in future;
4.3. experienced
emotional trauma and would in the future continue to experience
further emotional trauma;
4.4. required hospital
and medical treatment as outlined above and will, in the future,
require further such treatment and will
have to incur expenditure
with regard thereto;
4.5. has been permanently
disabled;
4.6. has experienced loss
of earnings and earning capacity; and
4.7. has sustained
substantial loss of enjoyment of amenities of life.
[5]
At all material times hereto and more in particular on 1 January 2012
the defendant was liable in terms of the said Act, to
compensate
people who sustained injuries and suffered damages arising from
negligent driving of motor vehicles in a public road
where the
identity of the owner or driver has been established.
[6]
It is alleged in the combined summons that as a consequence of the
aforementioned injuries and
sequalae
thereof, the plaintiff
sustained damages in the total amount of R9,561,685,49 which is
computed as follows:
6.1 past hospital medical
and related expenses: R556 763.49;
6.2 estimated future
hospital and medical related expenditure to be covered by an
undertaking in terms of s. 17(4)(a) of the Act.
6.3 loss of income and
earning capacity: R6 504 922.00. It is contended that the amount in
respect of loss of income and earning
capacity was determined by way
of actuarial calculations done by Mr. JW Whittaker on 9 July 2015;
and
6.4 general damages:
R2,500,000.00.
[7]
Dr. PA Engelbrecht confirmed in the RAF 4 Serious Injury Assessment
Report that the plaintiff's impairment was 43%. On this
basis it is
contended that the plaintiff has suffered a serious injury as
contemplated by s. 13(1)(A) of the Act.
[8]
When this matter came before Court for hearing, the court was
informed as follows that:
8.1 the only issue that
the court was called upon to determine was quantum, in particular
loss of income and general damages;
8.2 the injuries that the
plaintiff suffered were not in dispute;
8.3 the liability was not
in dispute;
8.4 the defendant was
liable 100% for the plaintiff's injuries; and
8.5 the medical expenses
have been dealt with and the court need not be detained by this
aspect of the claim; and
8.6 that the defendant
admitted the correctness of the expert reports in respect of which it
had no expert reports itself. There
were also joint minutes of
experts.
Mr.
Tyatya, counsel for the defendant, confirmed that the only
issues in dispute between the parties concerned the general
damages and loss of income.
[9]
Mr. De Waal, for the plaintiff, led the testimony of three witnesses
before closing the plaintiff's case. These witnesses are
Chipo Mabaya
("Chipo"), the plaintiff himself and one Jacobus
Johannes Prinsloo. Chipo testified
that she
was a senior underwriter with certain insurance
brokers. She knew the plaintiff as she was
one of his supervisors.
Her duties included having training the plaintiff and assessing his
performance. During the course of working
together with the plaintiff
Chipo was aware of several handicaps that the plaintiff was,
following the said incident, faced with.
She was aware that the
plaintiff was unable to get to the upper floor where the cabinets in
which some of the files were kept were
located. This was due to the
fact that no elevators had been installed in the building.
Accordingly, to reach the upper floors
where other departments were
situated the plaintiff would have to walk. The plaintiff could not
walk. Some of the files are big
and in order to work on them one
needs to pick them up and put them on one's side.
[10]
From time to time and primarily due to his handicap, the plaintiff
has, to take 6 days leave. This happens frequently. The
problem they
are faced with his absence was that there would be no one to assist
his own clients. The consequence thereof is that
prospects of someone
who is regularly absent from work, irrespective of the reason for his
absence, are drastically reduced. The
plaintiff has prospects of
success if he becomes an underwriting manager or accounting officer.
He will, however, be hampered by
his physical handicap. If he aspires
to those positions he will have to fight for them with sixteen others
who are able bodied.
According to Chipo, the plaintiff's chances of
promotion to these senior positions are 70% to 80%. The plaintiff
would stand a
better chance of occupying these positions if he had a
better qualification.
[11]
The plaintiff himself testified and in his testimony told the Court
that at the time he testified he was 24 years old. The
accident in
which he was involved took place when he was 20 years old. As a
consequence of the injuries he sustained during the
motor vehicle
accident in question, he has now become a paraplegic. On 1 August
2013 he started working at a certain insurance
company as a junior
underwriter or intern. The plaintiff told the Court furthermore that
he has a University degree. Because of
the injuries he sustained
during the motor vehicle accident in question there was an inordinate
delay in completing his studies.
The delay was for a period of six
months which translated into a year. But for the motor vehicle
accident, he would have completed
his studies earlier.
[12]
He is now on a wheelchair. The reality that he would be permanently
injured dawned upon him a few days after his operation.
Because of
his physical problem, he has now become a problem to those around
him. They become impatient when he needs them to assist
him.
[13]
Before the accident in question he played provincial hockey, rugby
and took part in swimming. To him sport was something he
took
seriously in his life. It was a big thing to him. The injuries he
sustained have become an insurmountable hill in many other
respects.
Now he is unable to play with his sisters, something he enjoyed doing
before the accident. He cannot go and see his clients
because he is
on the wheelchair. He testified that because he is on a
wheelchair he will find it difficult to attend social
events.
Despite his handicap the plaintiff is determined to work
himself up.
[14]
During cross-examination it turned out that he was appointed as a
trainee for four months from 1 August 2013 to 31 December
2013 at the
salary of RS 500.00 per month and without any allowances. From 1
January 2014 to 31 December 2014 he did his internship.
He had to do
internship because he had no experience in the insurance industry. As
an intern, he received a salary of R14 000.00
per month and an
allowance of R10 000.00. At the same time he was studying part-time
at the University of South Africa so that
he could become an
insurance representative. He stated that he should be able to
complete his studies within a record time.
[15]
The last witness that Mr. de Waal called as the plaintiff's witness
was one Jacobus Johannes Prinsloo ("Prinsloo"),
an
industrial psychologist, who, for the purposes of his testimony, had
compiled a report about the plaintiff. He testified that
it is
important that, in the determination of loss of earning capacity,
the Court should have regard to the plaintiff's pre-morbid
scenario
i.e. his situation had the accident not occurred; the prospects of
securing employment and holding onto it; the family
background, the
individual himself and the opinion of other people about such an
injury.
[16]
He compiled his report after he had, inter alia, interviewed the
plaintiff himself. From the information he obtained from the
plaintiff he was able to establish that the plaintiff had a keen
interest in the business world. Mainly because of the motor accident
in question, the completion of his studies was interrupted for a
period of six months which translated into a year. A man reaches
his
pinnacle at 45 years. He assessed the plaintiff on the basis that but
for the motor accident he would have reached retirement
age of 65
years. Because of his disability his projected age of retirement is
55 years.
[17]
The plaintiff's pre-morbid scenario is, according to him, dismal.
Dismal people who are handicapped like the plaintiff do not
get
employment. This is despite the Constitution of the Republic
Act 108 of 1996 ("the Constitution") providing
for equal
opportunities for all, disabled or not and despite the declared
policy of the State according to which all the people
have equal
opportunities. According to him, the field that the plaintiff has
chosen to work in presents with some inherent challenges
i.e. for
instance the ability of the insurance brokers to travel in order to
see their clients. With this disability there is always
a risk he is
facing. The plaintiff has restrictions.
[18]
He conceded that despite the plaintiff's disability any award made to
him must still be subjected to contingency deductions.
Reference was
made in his evidence to the Joint Min:..ites which were not signed by
him and his counterpart on the defendant's
side. Notwithstanding that
fact, it was still part of his evidence that it would be wrong to
think th::it because of the legislation
more disabled people will get
work. He opined that on the contrary, despite the attempts of the
legislature to level the playing
fields for all people, the chances
of disabled people getting more work are gradually receding. He
expressed an opinion that it
was wrong to imagine that the plaintiff
will be permanently employed by one employer until he reach the age
of 65 years. If the
plaintiff was not a paraplegic and stayed with
the same company he would reach the age of 65 years.
[19]
Mr. Prinsloo testified that there are contingencies of 6% made by one
Industrial Psychologist. There is a 45% chance that the
plaintiff
will not reach the age as the industrial psychologist has projected.
There is also a 55% chance that he may reach it.
[20]
During cross-examination he furnished reasons why the Joint Minutes
were not signed by both Industrial Psychologists and the
steps that
he took to make sure that the defendant's expert signed the Joint
Minutes. He further opined that although the defendant's
Industrial
Psychologist has not signed the Joint Minutes, he still regarded the
Minutes technically as Joint Minutes after the
other expert responded
by email to him. He also spoke to her by phone.
[21]
At the close of the plaintiff's case Mr. Tyatya informed the Court
firstly, that the defendant had no witnesses to call and
that the
defendant had obtained four reports but that the plaintiff disputed
such reports. The defendant therefore closed its case
without
tendering any evidence.
[22]
The plaintiff, as set out above, claims a sum of R6,504,922.00 in
respect of past and future loss of earnings. Of the said
amount
R106,590.00 is claimed in respect of past loss of income while the
balance of R6,398,332.00 is in respect of future loss
of earnings.
The plaintiff's claim is predicated on the delayed entry by him into
the labour market resulting from the injuries
he sustained during the
motor vehicle accident in question. It will be recalled that the
Industrial Psychologist testified that
due to the motor vehicle
accident the plaintiff was delayed for six months before he could
complete his studies and that the said
period translated into one
year.
[23]
The amount of R6,504,922.00 that the plaintiff claims in respect of
past and future loss of income is based on an actuarial
determination
made by Algorithm Consultants and Actuaries. The calculation was made
on August 2015.
[24]
Before dealing with the Actuarial Report it is, in my view, important
to deal with the Joint Minutes by the parties' Industrial
Psychologists, Mrs. Moiponi Kheswa ("Kheswa") for the
defendant and Kobus Prinsloo ("Prinsloo") for the
plaintiff.
Each one of them had prepared a report for her or his
client. Mr. Prinsloo's report was dated 8 July 2015 while Kheswa's
was dated
20 June 2015. They are agreed that they had perused all the
documentation and accordingly their conclusions, despite their
differences,
and I will point them out later, are based on the same
set of documents, except that Kheswa did not have the benefit of the
report
by Dr. Zolani Mukansi, the orthopaedic surgeon.
[25]
According to the Joint Minutes between Prinsloo and Kheswa agreed
that the plaintiff's biographical information which included
family
backgrounds and education and career information was a matter of
record and as they particularly referred to an aspect or
part of
dispute; that the plaintiff would have obtained his BCom Honours
Degree (NQF8) at the end of 2013, whilst also working
as an intern
and Graduate Trainee capacity in the general sector of the labour
market; that thereafter the plaintiff would
have entered the
corporate sector on a Paterson 85 job complexity level. The plaintiff
would then have progressed as a highly skilled
or a tactical middle
management level, typically functioning on a Paterson 03 and MK:D2/D3
job complexity level as his typical
career ceiling at forty five (45)
years of age. He would have retired in this capacity.
[26]
Furthermore they agreed that Mr. Webb's earnings would have been as
follows:
Market remuneration
The
National Remuneration Guide 2004 from Deloitte Consulting Pty Ltd was
used as the basis. The survey represents effective market
information
as at 1 March 2015. The information used is very comprehensive and
was based on 180 companies in 19 economic sectors
in seventeen (17)
defined geographic regions in South Africa. The information
represents the combined market information for Task
and Peromnes
Grades. A number of 11648 shop incumbents remuneration is included in
the survey. A comparative table with the relevant
job grades was
developed out of sourced documents based on a predictive market move
of 7.0% for the period 1 March
2015 to 28
February 2016, the Basic Salary, the
Total Guaranteed Package
and the Total Grand Package figures
for the relevant job grades have been adjusted with the relevant
percentage formula to be effective
on 31 July 2015.
[27]
Kheswa and Mr. Prinsloo agreed with regard to pre-morbid earnings
growth. The two experts were agreed that the plaintiff would
have
worked until normal retirement. They disagreed, however, with respect
to the age of retirement, with Kheswa postulating 60-65
years
Prinsloo postulating 65 years. In the Joint Minutes Mr. Prinsloo gave
a full motivation of his view that the plaintiff's
retirement age is
placed as 65 years of age. He opined that the plaintiff will continue
functioning as a graduate trainee within
the underwriting
environment. Due to his cognitive abilities the plaintiff will
probably migrate to the Life Insurance Underwriter
discipline and
then he will progress to a Senior Underwriter within the Paterson
C4/C5 job complexity levels. Due to his paraplegia,
inter alia
mobility restrictions, the plaintiff will probably attain his career
plateau in terms of job complexity whether he functions
as an
Insurance Writer or in another office based job role until
recommended retirement age.
[28]
The plaintiff's discomforts, complaints and impairments could result
in the classification under the designated employees in
South Africa
"Employees with Disabilities Category". With the best
legislations like the current Employment Equity Act
and Integrated
White Paper for People with Disability (1997) in South Africa, people
with disabilities have been integrated into
the workplace.
Accordingly the plaintiff has more chances, also coupled with
his education profile and work experience
to be accommodated
until his retirement age.
[29]
The two experts agreed furthermore that the plaintiff will work until
the recommended retirement age of 55 years. According
to Prinsloo the
plaintiff's future loss of earnings will be the difference between
the projected pre-morbid and post-morbid earnings
until his
retirement age. Pre-morbid 65 years of age; post-morbid 55 years of
age. Accordingly his loss of earnings will be the
loss of total
earnings post 55 years until 60-65 years. The retirement age of his
current employer is 63 years.
[30]
Prinsloo noted that over and above the plaintiff's loss of earnings
due to the following career impediments, firstly his diminished
career potential, not realising pre-morbid career potential and
diminished opportunities for career development, the plaintiff
will
still be subjected to additional career impediments and risks until
recommended early retirement. In that regard Prinsloo
noted the
following:
firstly,
declined personal productivity as a result of physical and
psychological impairments and, secondly, diminished work
opportunities due to his restriction to function in a sedentary and
light natured work environment as well as limited mobility.
The
"labour market covert discrimination" towards people with
disabilities which manifests in the "poor" actual
employment of facilities for people with disabilities. On this basis,
Prinsloo recommended, that a significantly higher contingency
than
the pre-morbid contingency be applied to the plaintiff's post-morbid
occupational functioning.
[31]
Report by Algorithm Consultants and Actuaries
Because
of the report by Dr. JJ du Plessis, dated 28 January 2015 that the
plaintiff was expected to live up to the age of approximately
63
years, the determination of the plaintiff's loss of income was over a
period of 39 years.
[32]
The plaintiff's past loss of earnings
The
plaintiff's claim for past loss of earnings is founded on the late
entry into the labour market. It was argued by the plaintiff's
counsel, based on the evidence of Prinsloo, that such a delay into
the labour market amounted to six months. On that basis it is
contended that the delay of six months translated efficiently into a
period of one year. In the determination of the plaintiff's
past loss of earnings, his actual earnings as a graduate trainee were
used as the basis for his calculation. As pointed out by
Mr. de Waal
in his heads of argument, the actual calculation provides for the
actual salary earned by the plaintiff in January
2014 but which was
adjusted to reflect income figures as at 1 January 2013. This
calculation assumes that but for the accident
the plaintiff would
have become a graduate trainee as at 1 July 2013.
[33]
At the time of the accident, the plaintiff had completed his second
year studies for the degree of Bachelor of Commence.
In other
words, during 2012, the plaintiff would have been in his third year
of study. He was 20 years of age at the material time
of the
accident. Despite his physical handicaps his qualifications are an
Honours Degree 1n Bachelor of Commence (Business
Management). Quite
clearly, his physical disability has not affected his ability to
further his studies. As a consequence
of the motor accident he only
managed to complete his first degree six months after the accident.
There was therefore a delay of
six months. This fact was not disputed
by the defendant.
[34]
According to Corbett and Buchanan 1 at page 49:
"Where as a
result of his injuries a plaintiff has been precluded from carrying
on the activities whereby he normally earns
a living, he is entitled
to damages representing the income or wages he would have earned
during his period of incapacity.
"
In
order to recover loss of earnings, it is incumbent upon the plaintiff
to prove, by way of evidence, that his injuries prevented
him from
earning his living in the normal way and what he would have earned
but for the injuries. In
casu,
the plaintiff's actual earnings
of R5500.00 per month from 1 August 2013 as an intern was calculated
and deducted from the income
he would have earned had he not suffered
the injuries from the accident. In order to produce the past loss of
income a 5% contingency
deduction was applied and what remained was
the sum of R106,590.00.
[35]
With regard to loss of earnings, Mr. Tyatya argued that a sum of One
Million Rand (R1M) would be fair and reasonable. What
I found
unfortunate with his argument was that Mr. Tyatya had not set out how
he arrived at the sum of One Million Rand (R1M) that
he postulated.
Relying on the authority of AA Mutual Insurance Association Ltd v
Magula 1978(1) SA 865(A), he submitted that with
regard to an
assessment of this kind which cannot be made with any precision or
mathematical accuracy a Court has a discretion.
It must always be
recalled that the Courts do not possess the scientific knowledge or
skill for the assessment of damages. In most
cases, especially where
complex formulae are involved, a Court will rely on the outside
assistance. The other problem I have with
the figure of One Million
Rand (R1M) postulated by Mr. Tyatya is that it does not distinguish
between past and future loss of earnings.
[36]
Relying on the principle set out in paragraph 37 supra, I am
satisfied about the correctness of the determination of past loss
of
income.
[37]
With regard to future loss of income the principle to calculate the
present value of future income was set as follows by Corbett
and
Buchanan page 65 paragraph 2:
"Where the plaintiff has been
totally disabled and his earning capactfy
has been
reduced to nil, this
calculation presents no difficulty
whatever.
The answer is
nothing. When on the other hand
he is not completely disabled then
it is again a question of
first determining factually what his average earnings are
ltkely to be in the future and for what
period he is ltkely to
continue to earn and then reducing such future income to Ifs present
value.
"
[38]
The plaintiff claims, in respect of future loss of earning, a sum of
R6,398,332.00. This is the amount that has been determined
mathematically by actuarial calculation. An entirely different
situation prevails in this scenario. The said amount is claimed
not because the plaintiff is a paraplegia but that because of his
paraplegic condition emanating from the injuries he sustained
during
the motor accident in question. His retirement age is postulated at
55 years when ordinarily he would have retired at 65
years of age. In
other words, the plaintiff has a shortened expectation of life.
According to Prinsloo, but for the motor accident,
the plaintiff
would have reached the Paterson level 03 at the age of 45 years.
Making allowance for certain contingencies of 5%
the actuaries
produced a future loss of income prior to the application of the loss
limit. Such a figure they arrived at was R8,855,081.00.
On the other
hand Mr. Tyatya contended in his heads of argument that there is no
patrimony that has been diminished other than
the experts'
hypothetical and speculative approach for loss of income and earning
capacity.
[39]
Counsel for the defendant seems to argue that because six months
after the accident the plaintiff picked himself up, dusted
himself
off and went to obtain his junior degree honours qualification, got
internship programs, got permanent employment and got
to be what his
superior actually testified, then he has not sustained any
patrimonial loss. In my view this approach is flawed
because the
plaintiff's claims for loss of future earnings are not based on his
inability to work but instead on his early retirement
because of his
injuries.
[40]
In their assessment, the actuaries do not seem to have had regard to
certain relevant factors which would have compelled them
to adjust
their assessment. In Gillbanks v Sigournay 1959(2) SA 11(N) at pages
17-18, the Court per Henochsberg J, stated as follows:
"In any estimate
of a person's loss of earning capacity allowance must be made for all
contingencies including the accidents
of life and certain deductions
must be made from the gross income to allow for unemployment
benefits, insurance and so on. This
configuration would include
-
(i)
a possibility that a plaintiff's working life may have
been less than 65 years,·
(ii)
a possibility of his death before he reaches the age of
65years,·
(iii)
the /Jkelihood of him suffering an illness of long duration,·
(iv)
unemployment,·
(v)
inflation and deflation,·
(vi)
alterations on the cost of living allowance,·
(vii)
an accident whilst participating in sport such as hockey or
cricket or at any other time which he would affect his earning
capacity
and
(viii)
any other contingency that may affect his earning capacity.
"
[41]
I have a few problems with this actuarial report. For post-accident
contingency deduction the actuaries relied on paragraph
8.6 and 8.7
of Prinsloo's report. However, they do not specify with any
particularity the relevant portions of such report on which
they
rely. Secondly, they have made a 60% post-accident contingency in
respect of future loss of income. They have not set out
how they
arrived at 60%. Thirdly and lastly, they have not taken all the
relevant factors into account. In this regard I
refer to the
preceding paragraph.
[42]
Considering the fact that contingency deduction were made at a steep
60% which is to the advantage of the defendant, the absence
of
evidence by the defendant and absence of any other evidence
juxtaposed with the available evidence, I would conclude that the
sum
of R6,398,332.00 determined by the actuaries is fair and reasonable.
[43]
General damages
I
now turn to general damages. The basic principle underlying an award
of damages in the Aquillian action is that the compensation
must by
so assessed as to place the plaintiff as far as possible in the
position he would have been had the wrongful act causing
him injuries
not been committed. The assessment of compensation is done by
comparing the plaintiff's
"properties"
meaning a
universitas or complex of general relations, including the
plaintiff's rights and duties, as it is after the commission
of the
wrongful act with its projected state had the wrongful act not been
committed. This is how the Court put it in Union Government
(Minister
of Railways and Harbours) v Warneke
1911 AD 657
at 665:
''In later Roman Law
property came to mean the universitas as it was after the act of
damage and as it would have been if the act
had not been committed. A
difference reckoned in terms of money becomes the damages to which
the plaintiff is entitled "
[44]
In the combined summons, an amount claimed under the subheading for
general damages was the sum of R2,500,000.00. In both his
argument
and heads of argument, Mr. de Waal submitted that an award of an
amount of between R2,200,000.00 and R2,300,000.00 would
be fair and
reasonable. In support of this submission, he had referred this Court
to several reported and unreported cases, some
old which required an
award then made to be converted to the present time and other related
decisions. In addition he referred
the Court to Quantum Book Year by
Robert J Koch. I will revert to the unreported cases and one reported
case during the course
of this judgment.
[45]
As pointed out earlier, the defendant led no evidence at all in
respect of general damages. The only evidence before this Court
and
on the basis of which the determination or assessment of the award
has to be made comes from the plaintiff's side only. Such
evidence
consists of oral evidence tendered by the plaintiff and his
witnesses, some of whom were expert witnesses and the details
contained in the reports by various experts and the uncontested
admissions contained in the Joint Minutes and lastly the admitted
medico-legal reports. From the defendant's side no expert report was
placed before the Court to enable it to assess the award.
The
consequence of the defendant's failure to lead evidence and to tender
any expert reports is that the plaintiff's evidence relating
to his
claim for general damages, in particular the difference between his
pre-accident and post-accident lives was not challenged.
[46]
It is correct that notwithstanding the best available medical
treatment that he may receive the plaintiff's current condition
will
never be restored to its original position. The difficulties he now
has following the motor vehicle accident will always be
with him. He
will always be a paraplegic with all the accompanying difficulties,
discomforts, pain, and all the challenges he will
daily take to his
place of work. Much of the evidence relating to the plaintiff has
already been referred to somewhere supra. The
motor accident in
question has forced the plaintiff to completely change his life and
to have little interaction with his friends.
[47]
As a consequence of the motor vehicle accident he has lost a lot of
his friends, social events and have become burdensome,
unpleasant and
a degrading reminder of his difficulties. He now has very little
participation in social events. Following the incident
he had a
protracted spell of hospitalisation and rehabilitation. During
rehabilitation he developed pressure sores and at the time
he gave
evidence had developed some. On a regular basis he has to be alit and
not let the pressure sores to fester. Should he let
the situation get
out of control and let the pressure sores to develop, he will require
hospitalisation and surgery which may require
a recovery period of
about six weeks at a time. The plaintiff suffers from frequent bouts
of depression and cannot erase from his
memory the trauma of the
motor accident and its accompanying devastating consequences on his
life. He suffers from post traumatic
stress disorder ("PTSD").
The
sequelae
of his spinal cord injury have negatively
impacted various aspects of his life. These aspects include
such as already indicated
supra, his social, intimate, relational and
working life.
[48]
It had always been his dreams to take over the business of the family
in Rustenburg. This desire evaporated with the motor
accident in
question. His dreams to do so have been irreparably shuttered by the
injuries he sustained. The trajectory of his lifestyle
has now been
adversely redirected. His life now consists of a life replete with
monotony and interspersed characteristically isolated
features often
spiced with conflicts with his girlfriend and family members. He has
challenges if he has to visit new areas because
of the fear of not
knowing whether such areas will be wheelchair friendly. He
already has fallen out of his wheelchair twice.
[49]
This Court has to take into account the fact that the motor accident
happened when he was still 20 years of age, which means
he will have
to live a longer life with his handicaps. Again the Court must take
into account the fact that he is a male and that
the chances of him
establishing an intimate relationship may be an insurmountable
mountain to climb. He may not be able for this
reason to have a
family. He is nevertheless an intelligent young man who is forever
mindful of his difficulties. The plaintiff
is
au faff
with the
various factors which compromise his ability to complete on an
equal footing with his competitors in the labour market.
He has been
forced by his injuries to choose a career best suited for his
handicaps.
[50]
The plaintiff now experiences chronic back pain and suffers from
intermittent bladder infections. Every two hours he has to
self-catherize himself. He has to manually evacuate his bowls when
the need arises. He experiences mishaps due to his bowl
and
bladder incontinence and to him they are degrading. He experiences
increased personal fatigue on a regular basis. His pain
and
discomfort contribute to his frustration, irritability and
intermittent depression. He has no normal sleeping pattern. During
the night the plaintiff has to wake up regularly in order to turn in
order to prevent the development of pressure sores. Apart
from the
chronic and often debilitating pain he experiences in his back,
shoulders, left forearm and wrist, the plaintiff is likely
to
experience future pain and discomfort and suffering due to
foreseeable and unforeseeable medical treatment he may have to
undergo.
His paraplegia has left him with a neurogenic bladder.
Because of this he is at an increased risk of developing chronic
bladder
infections and other neurogenic difficulties. Life is not
going to get any easier for him.
[51]
According to the report by Dr. Darell L Kirsten, the plaintiff's lung
infection is mildly restrictive with a 20% loss of lung
capacity.
Accordingly he has a mildly increased risk of developing
complications in the event of him developing chest infections.
The
plaintiff used to be active. He used to enjoy many physical
activities. Now that he is confined to a wheelchair he cannot
participate in any form of active physical activity. He is now
restricted to participating in passive or activities, such as
reading,
video games and television watching.
[52]
The function of the law is to enable the plaintiff theoretically, at
least, to receive proper compensation or a satisfaction
which does
not burden the defendant unnecessarily. The object of the award
is of crucial importance. In making an award,
the Court must have one
or the other object in mind otherwise the award may be found to be
predicated on arbitrary grounds and
therefore speculative. One of the
important guidelines a Court must adhere to in the award of damages
or in the quantification
process is fairness and convertism. This
means that in general a Court should not merely out of sympathy with
the plaintiff award
a huge amount of money at the expense of the
defendant. This is how Holmes J, as he then was, put it in Pitt v
Economic Insurance
Co. Ltd 1957(3) SA 284 (D) at 287:
"I have only to
add that the Court must take care to see that each award is fair to
both sides
-
it must give just compensation to the plaintiff
but must not pore out largesse from the horn of plenty at the
defendant's expense.
"
[53]
According to Law of Delict 51h Edition by Neethling, Potgieter,
Visser, edited and translated by JC Knobel at page 232, the
concept
of
"fairness"
or
"equity"
is
usually a phrase that summarises the following principles:
"The Court must
take all the relevant circumstances into account which disclose the
extent of the injury to personality and
it must ignore irrelevant
factors such as undue sympathy towards the plaintiff; the basic
object of compensating the plaintiff
must be emphasized,· the
Court must exercise its discretion carefully and conservatively and
rather award too little than
too much and the amount awarded must not
necessanly burden the defendant in the plaintiff's favour. If these
principles are applied
it may safely be said that "a fair"
approach has been followed.
"
I
wish to point out that it is the duty of the parties to place
all the relevant circumstances before the Court to enable
it to make
a proper assessment of the amount to be awarded to the plaintiff.
Trollip J dealt with the concept
"conversatism"
extensively in
Bay Passengers Transport Ltd v Franzen 1975(1)
SA
267 AD 274
and laid the general rules that should be observed
in assessing an award. In order to illustrate this very important
point,
I wish to quote copiously from page 274 E-H:
"In recent years
there has been several appeals to this Court raising the issue of the
quantum of general damages awarded for
pain and suffering,
disability, loss of amenities, disfigurement, etc., for bodily
injuries sustained in a vehicle collision.
Hence, it is
opportune, I think, to sound a note of caution about the correct
judicialy approach to adopt in the admittedly difficult
problem of
deciding what amount to award for such damages.
Awarding damages for
the items mentioned is, of course, anomalous, since they do not
involve any patrimonial loss,· moreover,
the so-called loss is
not susceptible of being measured with any certainty in terms of
money. The latter imponderability is usually
also aggravated by
reason of having to adjudge, not only past, but also ''loss" in
respect of those items, which involves
some degree ofjudicial
prophecy. The best that a Court can do is to decide "by the
broadest general considerations" on
an amount which it considers
to be "fair in all the circumstances of the case" (Sandler
v Wholesale Coal Supplies Ltd,·
1941 A.D. 194
at p. 199). But,
because of that very anomaly and imponderability, the general rule
that should be observed in assessing the amount
is, I think, the
well-known, fundamental one that, in such circumstances of difficulty
and dubiety, defendants should be regarded
with greater favour than
plaintiffs, favorabiliores re potius quam actores habentur (Digest
50. 17 125). In
other words, in striving to determine an
amount that will be fair in all circumstances, the Court should act
conservatively, rather
than liberally towards the plaintiff unless
some injustice be perpetrated on the defendant. That must also apply
where the defendant
is, as is now usually the case, registered
insurance company being sued for compensation under Motor Vehicle
Insurance Act 59 of
1942. Furthermore an award of general damages of
the kind under an enquiry, especially one determined or confirmed by
this Court,
often serves as some guide to future awards and might
therefore influence the cause. See F. Sigournay v Gillbanks, 1960(2)
SA 552
AD at page 555H."
[54]
According to practice, the general rule in the quantification process
is the consideration of previous awards in comparable
cases. It
is for this very reason that in
Bay Passenger Transport Ltd v
Fransen
supra Trollip
J
stated that:
"Furthermore an
award of general damages of the kind under enquiry, especially one
determined or confirmed by this Court, often
serves as some guide to
future awards and might therefore influence their cause.
"
The
quintessential case in the method of taking previous cases into
consideration is without doubt
Protea Insurance Co. Ltd v Lamb
1971(1) SA 530 (A) 534 to 536B
where the Court had the following
to say:
"It should be
emphasized, however, that this process of comparison does not take
the form of meticulous examination of awards
made in other cases in
order to fix the amount of compensation,· nor should the
process be allowed so to dominate the enquiry
as to become a fetter
upon the Court's general discretion in such matters.
Comparable cases, when
available, should rather be used to afford some guidance, in a
general way, towards assisting the Court in
arriving at an award
which is not substantially out of general accord with previous awards
in broadly similar cases, regard being
had to all the factors which
are considered to be relevant in the assessment of general damages.
At the same time it may be permissible
in an appropriate case to test
any assessment arrived upon this basis by reference to general
pattern of previous awards in cases
where the injuries and their
sequelae may have been either more serious or less than those in the
case under consideration.
"
[55]
Once again the defendant did not tender any evidence in respect of
the relevant circumstances this Court is required to have
regard in
the assessment of general damages. However in his heads of argument,
Mr. Tyatya, having conceded that in his research
he could not find
any case comparable to the instant case, referred this Court to
Mosupi (not Mosupa) v Road Accident Fund (11/23686)
(2013) ZAGPJHC108
(10 May 2013) at page 45. The principle involved herein was that in
determining the quantum of general damages
the Court has a wide
discretion to award what it considers to be fair and equitable
compensation having regards to a broad spectrum
of facts and
circumstances connected to the plaintiff and the injuries suffered by
the plaintiff, which include their nature, permanence,
severity and
impact on the plaintiff's lifestyle. Although Mr. Tyatya did not deem
it prudent to furnish the Court with a copy
of the relevant case,
which in the Court's view would have greatly assisted the Court, he
has, however, set out the facts of the
said case succinctly and has
shown the similarities between that case and this instant case. I do
not deem it necessary to point
out the similarities in both cases. In
the end, and based on the said case he submitted that a sum of
R900,000.00 would be a fair
and reasonable compensation in respect of
the plaintiff's general damages.
[56]
On the other hand, the plaintiff, as indicated earlier, has testified
and led the evidence of certain witnesses. He relied
not only on the
oral evidence of his witnesses but also on numerous expert reports
which were handed in and admitted by the defendant.
In his turn Mr.
de Waal, has, for the purposes of enabling this Court to assess the
amount in respect of general damages, referred
the Court to numerous
unreported cases. There are five such unreported cases he has
referred the Court to and one important matter
namely Marine and
Trade Insurance Co Ltd v Katz N.O 1979(3) SA 1(A) in which in 1979
the Court awarded the plaintiffs in that case
a sum of R90,000.00 for
general damages. It was argued by Mr. de Waal that the amount of
R90,000.00 awarded in 1979 translates
to R2,262,963.00 in terms of
today's value.
[57]
Now may I rush to point out the following which, in my view, is of
paramount importance. I will point out the reasons why it
is
important. Counsel for the plaintiff has not furnished the Court with
copies of the relevant unreported cases. This means that
the duty was
cast on this Court to look for and peruse those cases itself.
Second!y, save for one case namely Oosthuizen v Road
Accident Fund,
the unreported judgment by Bertelsmann J, the Court has not been
favoured by Mr. de Waal with a brief summary of
the facts of each of
such cases. It was important that copies of the cases or the facts or
summary of the facts be furnished to
enable the Court to compare the
facts of such cases with the facts of the current matter. The
importance of comparable cases has
been set out somewhere supra. It
is not sufficient to inform the Court that an amount that was awarded
during the past years was
translated into so much during the current
year.
[58]
I now turn to the facts of Mosupi v Road Accident Fund supra as set
out in Mr. Tyatya's heads of argument. The facts of that
case were
almost identical with the facts of the current case. Mosupi ltumeleng
("Mosupi"), the plaintiff in that matter,
had suffered
severe permanent and multiple injuries. As a consequence of the
accident in which she was involved, she had become
a paraplegia and,
among others, had sustained head and chest injuries. Now compared
with the current plaintiff, it is not in dispute
that the plaintiff
in this matter is also a paraplegia. While Mosupi had sustained head
and chest injuries, it is not the plaintiff's
case that she has
suffered such similar injuries. Mosupi was 19 years in age and in his
second year of studies. She was doing Bachelor
of Commerce degree.
The current plaintiff was also 20 years old at the time of the
accident and was in his second year of a Bachelor
of Commerce degree.
Mosupi, like the present plaintiff, became wheelchair bound and like
the present plaintiff was unable to transfer
herself from the
wheelchair to a sofa or a bed. Like the current plaintiff, Mosupi
relied entirely on those around her to assist
her to trcinsfer from a
wheelchair. In order to avoid her developing pressure sores, she has
to be turned regularly during the
day and night. She could not sit
upright for more than two hours. Mosupi, unlike the current plaintiff
was paralysed from the armpit
downwards.
[59]
There is no evidence that the current plaintiff was paralysed to the
same extent as the said Mosupi. In 2013, the Court awarded
the said
Mosupi general damages in the sum of R1,000,000.00. In other words if
the Court in 2012 were to make an award to the plaintiff
for the
injuries he sustained on 1 January 2012 R1,000,000.00 would have been
regarded as a fair and reasonable amount of compensation.
[60]
In the premises, taking into account the fact that the award I am
about to make is made as at 2015, the year in which this
matter was
heard and finalised, taking into account furthermore the ravages of
time on money, a sum of R1,500,000.00 is, in my
view, a fair and
reasonable amount of compensation in respect of the plaintiff's
general damages.
[61]
Mr. Tyatya has also referred the Court to the unreported case of
Marilyn Fortuin v Minister of Safety and Security (Case No.
2728/02).
Briefly he has also set out the facts of the said case and the fact
that the Court awarded the plaintiff, in that case,
a sum cf
R350,000.00. The problem though is that Mr. Tyatya has not indicated
the year in which the said award was made nor has
he indicated what
the current value of the said award would have been.
[62]
Finally I am satisfied that on the facts of this case and using my
discretion the sum of R1,500,000.00 would be fair and reasonable
compensation for the plaintiff for general damages.
Accordingly
I grant an order incorporating the
terms of the draft order
hereto
attached and marked "XPS".
_____________________________________
P.M.
MABUSE JUDGE OF
THE
HIGH
COURT
Appearances
:
Counsel
for the plaintiff: Adv. WP de Waal (SC)
Instructed
by: Adams
&
Adams
Counsel
for the defendant: Adv. L Tyatya
Instructed
by: Tau Phalane Inc.
Date
Heard: 29-31 July 2015
Date
of Judgment:
14 January 2016
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NUMBER: 2203/14
DATE:
14 January 2016
NJJ
WEBB
Plaintiff
v
ROAD
ACCIDENT
FUND
Defendant
DRAFT
ORDER
1. Having heard Counsel
for the Plaintiff and Defendant the following order is made:
1.1.
That the defendant shall pay the plaintiff the sum of R8,004,922.00
in respect of the following heads of damage:
1.1.1. past and future
loss of earnings R6,504,922.00;
1.1.2. general damages
R1,500,000.00.
Payment must be made to
the Plaintiff's attorneys, Adams and Adams, payable by direct
transfer into the trust account
with the following details:
NEDBANK
Account Number: […]
Branch Number: 198765
Pretoria Ref NK/RIW/P906
1.2.
That the amount reflected in paragraph 1.1 above is over and above
amounts awarded in respect of past medical expenses, brought
by means
of applications for interim payment, and awarded by the Court on the
following dates and in the following amounts:
1.2.1. 15 August 2014 -
R396,262.00;
1.2.2. 23 January 2015 -
R28,065.95;
1.2.3. 29 May 2015 -
R104,067.71;
1.2.4. 22 July 2015 -
R28,367 .02.
1.3.
That the capital amounts refer to in paragraph 1.1 above will not
bear interest unless the defendant fails to effect payment
thereof
within 14 (fourteen) days of the date of this Order, in which event
the capital amount will bear interest at the rate of
9% per annum
calculated from and including the 151h (fifteenth) day after the date
of this Order to and including the date of payment
thereof.
2. That the defendant
shall forthwith provide to the plaintiff an undertaking in terms of
section 17(4)(A) of the Road Accident
Fund 1996 for the payment of
100% of the cost of the plaintiff's future accommodation in a
hospital or nursing home or treatment
of or rendering of a service or
a supplying of goods to him resulting from the injuries sustained by
him in the motor collision
which occurred on 1 January 2012, of such
costs have been incurred and upon proof thereof.
3. That the defendant
must make payment of the plaintiff's taxed or agreed party and party
costs on the High Court Scale which costs
shall include the
following:
3.1.
all the fees of senior counsel on the High Court Scale, inclusive of
counsels' fees for preparation of heads of argument;
3.2.
the reasonable taxable cost of obtaining all expert/medico-legal and
actuary reports from the plaintiff's experts which
were furnished to
the defendant;
3.3.
the reasonable taxable preparation and
reservation fees, if any, of the
following experts:
3.3.1. Dr. PR
Engelbrecht;
3.3.2. Dr. DF Louw;
3.3.3. M Du Plooy;
3.3.4. Dr. Potgieter;
3.3.5. Dr. L Coetzee;
3.3.6. Dr. DL Kirsten;
3.3.7. Dr. JJ du
Plessis;
3.3.8. Dr. K Truter;
3.3.9. Dr. Rademeyer;
3.3.10. Dr. JPM Pienaar;
3.3.11. E Prinsloo;
3.3.12. Dr. Grobler;
3.3.13. L Eybers;
3.3.14. C Pretorius;
3.3.15. K Prinsloo;
3.3.16. J Whittaker;
3.4.
The cost of preparing for, attendance at Court and testifying in
respect of Mr. K Prinsloo, which cost will not be limited
to
R1,500.00.
3.5.
The cost incurred in payment of the amount mentioned in paragraph
1.1 above;
3.6.
Reasonable traveling cost (including of toll gate and e-toll charges)
incurred by the plaintiff in attending medico-legal appointments
with
the parties' experts and attending Court on the day of trial;
3.7.
The above costs will also be paid in the aforementioned attorney's
trust account.
4. That the following
provisions will apply with regards to the determination of the
aforementioned taxed or agreed costs –
4.1.
The plaintiff shall serve the notice of taxation on the defendant's
attorney of record;
4.2.
the plaintiff shall allow the defendant 7 (seven) court days to make
payment of the taxed costs from date of settlement or
taxation
thereof;
4.3.
should payment not be effected timeously, the plaintiff will be
entitled to recover interest at the rate of 9% on a taxed
or
agreed cost from date of allocator to date of final payment.
5. That no contingency
fee agreement has been entered into between the plaintiff and his
duly appointed attorneys of record.
BY
ORDER REGISTRAR