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[2016] ZAGPPHC 38
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Tsabedze v Road Accident Fund (24251/2013) [2016] ZAGPPHC 38 (29 January 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NUMBER: 24251/2013
29/1/16
Reportable: No
Of interest to other Judges: No
In the matter between:
TSABEDZE,
MT PLAINTIFF
and
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT:
STRIJDOM AJ:
A. INTRODUCTION
1. The Plaintiff sues under the Motor
Vehicle Insurance Act for damages for personal injuries sustained in
a motor vehicle accident
on 12 June 2009. At the time of the
collision, the Plaintiff was a passenger in vehicle […].
2. The Plaintiff suffered the
following injuries as a result of the accident:
2.1.
Moderate to severe head injury;
2.2.
Fracture of the parietal region skull with subarachnoid
acute haemorrhage.
3. Defendant has conceded the merits
of the action on the basis that it is liable for 100% of Plaintiff's
proven and/or agreed damages.
4. Defendant has tendered an
undertaking in terms of Section 17 (4) (a) of the Road Accident Fund
Act which will subject to the
provisions of the Act, take care of any
possible future medical and hospital related expenses.
5. The Defendant was ordered on 10
September 2015 to pay Plaintiff a capital amount of R550,000.00 (Five
Hundred and Fifty Thousand
Rands) as payment in respect of general
damages.
6. The Plaintiff absconded his claim
for past medical expenses.
B.
ISSUES IN DISPUTE
7. The only issue that remains for
determination is the claim for future loss of earnings.
C.
EXAMINATION BY
MEDICAL EXPERTS
8. The following expert reports were
obtained by the Plaintiff:
8.1. Dr T Enslinndependant Medical
Examiner;
8.2. Dr DA Birrell, Orthopaedic
Surgeon;
8.3. Dr JJ du Plessis, Neurosurgeon;
8.4. Dr K Truter, Clinical
Psychologist;
8.5. Dr M Mazabow, Neuropsychologist;
and
8.6. Ms A Greef, Occupational
Therapist.
9. Defendant admitted the contents of
Plaintiff's medico-legal reports. Save for an Orthopaedic Surgeon,
the Defendant did not appoint
any experts.
10. The Plaintiff called two expert
witnesses, to wit. Ms Prinsloo (Educational Psychologist) and Mr
Prinsloo (Industrial Psychologist).
11. Plaintiff suffered an isolated
injury to the brain.
12. He has suffered a moderate to
severe diffuse brain injury from which intellectual difficulties
could be expected.
13. He struggled with his vision and
his short term memory was poor.
14. He also suffered an injury, which
aggravated the diffuse injury.
15. He had a skull base fracture with
leakage of sub-arachnoid fluid.
16. Given the severify of the brain
injury, he will not be able to fullfill his pre morbid
potential.
MS A GREEFF
17. Ms Greeff concluded that the
Plaintiffs aptitude scores which were secured during assessment
indicated that he has the ability
to apply common sense while
understanding and carrying out instructions of written, oral or
diagramical nature. The occupation
of a telemarketer falls within
this reasoning. Other marketing positions indicate the need for
mathematics, language and reasoning
skills.
18. The Plaintiff was unable to select
certain subjects at school. He would in all probability have had
difficulty to cope due to
the neuropsychological profile identified
by Dr Mazabow.
19. His capacity for learning new
information is compromised.
DR MAZABOW
20. He concluded that the Plaintiff
has a period of dense post-traumatic amnesia for more than 24
hours.
21. Plaintiff suffered a head injury
including a right parietal skull fracture and a traumatic
sub-arachnoid haemorrhage.
22. Plaintiff sustained a moderate
brain injury.
23. Plaintiff has reduced insight into
his own difficulties and he has an unreliable memory and cognitive
difficulties. His neuropsychological
status is permanent.
24. Plaintiff is likely to experience
difficulty in the context of tertiary studies and he will also
struggle to perform efficiently
in vocational positions with high
clerical
I
administrative requirements.
DR TRUTER
25. Dr Truter stated that there was a
decline in the Plaintiffs school marks. He aspired to enrol at
Tshwane University of Technology
to study Marketing Management. His
poor results in accountancy prevent him from qualifying for a bursary
and resulted in him not
being accepted.
26. He has a depressed mood and the
contribution to his WPI as a result of psychological condition is
12%.
27. He suffered from an adjustment
disorder with depressed mood and anxiety.
DR BIRRELL
28. Dr Birrell concluded that the
Plaintiff did not sustain a loss of work capacity from an orthopaedic
point of view and he will
not have to retire early.
MS E PRINSLOO
29. Ms Prinsloo testified that the
Plaintiff will suffer to process information and his working memory
has been affected. Under
cross-examination, Ms Prinsloo testified
that the Plaintiff aspires to become a Marketing Manager. Although he
has a Grade 12 qualification
with degree exemption, she expressed her
concern regarding the lower level of mathematics and the poor
achievement of accountancy.
She is doubtful that the Plaintiff will
obtain a degree.
30. She is of the view that the
Plaintiff would have been able to complete his first degree (NQF7) if
he had the financial support
by way of a bursary.
31. Due to Plaintiffs poor results he
did not get a bursary. He will not be able to obtain a degree from a
University but rather
from a college (NQF5)
I
courses.
MR PRINSLOO
32. Mr Prinsloo testified and
concluded as follows:
Pre-morbid
32.1. Plaintiff would obtain NQF4 and
enter the labour market in 2014. He would be unemployed for some
time, obtain temporary work,
migrating to the non-corporate sector.
32.2. He would start with his tertiary
studies - migrated to the corporate sector in 2019.
32.3. He would have completed his
studies over 8 years reaching B2 and plateau at D1
I
D2 at age
45, inflationary increases to age 65.
32.4. He recommended that normal
pre-morbid contingency deductions be applied.
Post-accident
32.5. Plaintiff would be unemployed
for some time, will commence with temporary work (January 2016 to
December 2018), migrate to
the non-corporate sector in 2019.
32.6. Plaintiff will obtain NQF5 over
5 years, enter B2 progressing to C2 until retirement age, age 65.
32.7. He suggested that significantly
higher post-morbid contingency deductions should be applied.
33. Defendant's counsel submitted that
Plaintiff has achieved well scholastically in his progression pre-
and post-morbidly, with
the exception of his changing of mathematics
to mathematics literacy. He further submitted that it was not
established with certainty
that the Plaintiffs pre- morbid and
post-morbid ambitions have been altered as a consequence of the
accident.
34. Counsel for the Defendant
submitted that higher contingencies of 15% and 35% be applied.
35. It is postulated by Dr Du Plessis
(neurosurgeon) that Plaintiffs severe injuries and the
sequelae
thereof have a direct effect on the earning capacity of the
Plaintiff.
36. The Plaintiff has in my view
discharged the onus of proving on a balance of probabilities that as
a result of the injuries he
sustained in the collision, his academic
results have decreased and he will not be able to reach his full
pre-accident potential
and that his career choices have been limited.
ACTUARIAL CALCULATIONS (HUMAN &
MORRIS)
37. The summary of the actuarial
results are as follows:
Summary of results:
Uninjured
Injured
Net
Future
Loss
R6,427,511
R3,999,130
R2,428,381
CONTINGENCY DEDUCTIONS
38. There is no consensus between
Plaintiff and Defendant regarding contingency deductions. The court
has to take cognisance of
the view expressed in the expert reports,
with particular reference to those of the Industrial Psychologist and
the Actuary.
39. The approach which a court should
adopt is found in a judgment by Nicolas AJ in
Southern
Insurance Association v Bailey
N.O.
1984
(1) SA 98
A at 113 G - 114 A:
"It has open to possible
approaches. One is for
a
judge to make
a
round estimate
of an amount which
seems
to him to be fair and reasonable.
That is entirely
a
matter of guesswork,
a
blind plunge
into the unknown. The other is to try to make an
assessment
by
way
of mathematical calculations on the basis of assumptions
resting on the evidence. The validity of his approach depends of
course
upon the soundness of the assumption and they may vary from
the strongly probable to the speculative. It is manifest that whether
approach involves guesswork to greater or lesser extent. But the
court cannot for this reason adopt
a
non-possumus attitude
and make no award."
40. Having considered the various
medico-legal reports, the different legal approaches and the
submissions by both counsel for the
Plaintiff and Defendant, I am
persuaded that:
40.1. A 20% pre-morbid contingency be
applied;
40.2. A 30% post-morbid deduction be
applied;
40.3. The total loss of
earnings
I
income suffered by the Plaintiff is R2,342,618.
41. In the result:
The Draft Order annexed hereto marked
"X"
is made an Order of Court.
____________________________
JJ STRIJDOM
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD ON:
DELIVERED ON:
APPEARANCES:
Counsel for Plaintiff: Adv M van
Rooyen
Attorneys for Plaintiff: RG Hayes
Counsel for Defendant: Adv PP Monama
Attorneys for Defendant: Savage Jooste
E Adams
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION (PRETORIA)
On this the
_29
th
day of __
January
__
2016
Before his Lordship Mr Justice
Strijdom (AJ)
CASE NO.: 24251/2013
In the matter between:
M T
TSABEDZE
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
DRAFT COURT ORDER
This Court Order must be read in
coniunction with the previous Court Order dated 10 September 2015 and
stamped 7 October 2015. attached
hereto.
AFTER HAVING HEARD COUNSEL FOR BOTH
PARTIES
, the following is ordered:
1. In addition to the amount
stipulated in the Court Order attached hereto, the Defendant is
further ordered to pay an amount of
R2, 342, 618 (Two million three
hundred and forty thousand six hundred and eighteen rand) In respect
of the Plaintiff’s claim
for loss of earnings/earning capacity,
which amount shall be paid to the credit of the trust account of the
Plaintiff's Attorneys
of record, Savage Jooste & Adams Inc,
Pretoria, whose trust account details are as follows:
Nedbank
name: NEDCOR - ARCADIA
Account
type: Trust account
Branch
code: 16-33-45-07
Account
no: […]
Reference
no.: RP2872/RGH
2. The Defendant is ordered to pay the
Plaintiff's taxed or agreed party and party costs of the action on
the High Court scale.
The costs will include the following
2.1.
The costs of counsel, including the costs of attending on the
pre-trial conference.
2.2.
The reasonable travelling and accommodation costs for Plaintiff to
attend on the Defendant's medico-legal expert appointments
as well as
on Court on 2 November 2015.
2.3.
The reasonable travelling costs of Plaintiff's instructing attorney
of record, Mr G van den Berg, Podbielski Mhlambi Inc. -
Carletonville) to attend Court on 2 November 2015.
3. No interest will be payable on the
capital sum in respect of general damages, provided that payment is
made 14 days after the
Court Order. Should payment not be made
timeously, the Defendant will pay interest at the rate of 9% per
annum from due date to
date of payment.
4. The party and party costs are
payable within 14 days of date of settlement/taxation, whereafter
interest will be charged at 9%
from the aforementioned date to date
of payment.
5. Following agreement on or taxation
of the costs, the Plaintiff shall allow the Defendant fourteen (14)
Court days after the allocator
has been made available to the
Defendant's Attorneys, to make payment of the taxed or agreed party
and party costs, whereafter
interest will be charged at 9% per annum
from date of the stamped allocator to date of payment.
6. There is no Contingency Fee
Agreement applicable.
BY ORDER
_______________________
REGISTRAR
COUNSEL FOR PLAINTIFF: ADV M VAN
ROOYEN (082 897 1260)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION (PRETORIA)
On
this the 10th day of September 2015
Before
his Lordship Mr Justice Ledwaba (DJP)
CASE
NO.: 24251/2013
In
the matter between:
M
T
TSABEDZE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
DRAFT
COURT ORDER
BY
AGREEMENT between parties:
1.
The Defendant is liable for all of the Plaintiff's proven or agreed
damages.
2.
The Defendant is ordered to pay an amount of R550 000.00 (Five
Hundred Thousand Rand) in respect of the Plaintiff's claim
for
general damages, which amount shall be paid to the credit of the
trust account of the Plaintiff's Attorneys of record, Savage
Jooste
& Adams Inc, Pretoria, whose trust account details are as
follows:
Nedbank
name: NEDCOR - ARCADIA Account type: Trust account
Branch
code: 16-33-45-07 Account no: […]
Reference
no.: RP2872/RGH
3.
The Plaintiff's claim in respect of past medical expenses and loss of
earnings I earning capacity is postponed until the- 2nd
of November
2015 for allocation to proceed on trial for 2 days.
4.
The Defendant is ordered to furnish the Plaintiff with an Undertaking
in terms of
5.4
The reasonable travelling costs of Plaintiff's instructing attorney
of record, Mr G van den Berg, Podbielski Mhlambi Inc. -
Carletonville) to attend Court on 10 September 2015.
6.
No interest will be payable on the capital sum in respect of general
damages, provided that payment is made 14 days after the
Court Order.
Should payment not be made timeously, the Defendant will pay interest
at the rate of 9% per annum from due date to
date of payment.
7.
The party and party costs are payable within 14 days of date of
settlement/taxation, whereafter interest will be charged at 9%
from
the aforementioned date to date of payment.
8.
Following agreement on or taxation of the costs, the Plaintiff shall
allow the Defendant fourteen (14) Court days after the allocator
has
been made available to the Defendant's Attorneys, to make payment of
the taxed or agreed party and party costs, whereafter
interest will
be charged at 9% per annum from date of the stamped allocator to
date of payment.
9.
There is no Contingency Fee Agreement applicable.
BY
ORDER
_____________________
REGISTRAR
COUNSEL
FOR PLAINTIFF: ADVOCATE M VAN ROOYEN
(082
897 1260)