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[2016] ZAGPPHC 133
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Clements v Road Accident Fund (13131/2011) [2016] ZAGPPHC 133 (8 March 2016)
IN THE NORTH GAUTENG HIGH COURT OF PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 13131/2011
DATE OF HEARING:
15 NOVEMBER 2015
Not reportable
Not of interest to other judges
Revised
DATE: 8/3/2016
In the matter between:
CLAYTON ALVIN
CLEMENTS
PLAINTIFF
and
THE ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
OLIVIER AJ
[1] The only question to be decided by the Court is the
quantum of the plaintiff’s claim.
[2] The chronology of this action appears from the heads
of argument of the plaintiff. The plaintiff was driving between
Springs
and Nigel when he was involved in a motor vehicle accident
with an unknown driver in an unknown vehicle on 11 August 2006. He
was
airlifted by helicopter to hospital, where he was treated until
26 August 2006. The plaintiff suffered significant injuries, as
will
be described below.
[3] Summons was served on the defendant on 3 March 2011.
The defendant’s defence was struck out by this court on 8 March
2013
and on 18 March 2013 an order was granted in terms of which the
defendant was liable for 100% of the plaintiff’s proven or
agreed damages. The quantum determination was postponed sine die.
[4] The matter was originally enrolled for the
determination of quantum on 14 May 2014. Defendant, at this hearing,
appeared and
requested a postponement of the proceedings to allow it
to file an application to rescind the striking-out order. The trial
was
postponed sine die, but the court ordered that an interim payment
be made by the defendant of R 400 000. (This amount was subsequently
paid by the defendant.) Defendant was ordered to file their
application for the rescission of the order striking out their
defence
within 10 days of the order. A punitive cost order was
granted against the defendant.
[5] Defendant failed to file their rescission
application within the court-ordered 10 day period. A new trial date
was set and the
matter now serves before me.
[6] There was no appearance for the defendant due to
their defence being struck out and their failure to apply for a
rescission
of the striking out order.
[7] The plaintiff is claiming past hospital, medical and
travelling costs; future hospital, medical and related expenses; loss
of
earnings and earning capacity; and general damages. See
particulars of claim, as amended.
[8] Medico-legal reports were obtained from the
following experts:
a.
Dr Jaap Earle
(neurosurgeon)
b.
Ms Elzeth Jacobs
(occupational therapist)
c.
Dr J J L Heymans
(Orthopaedic surgeon)
d.
Dr J Smuts (neurologist)
e.
Ms Annelies Cramer
(Clinical psychologist)
f.
Mr C P J Schoeman
((Industrial psychologist)
[9] Of these, the plaintiff called Ms Cramer and Mr
Schoeman (Industrial Psychologist) in order to elucidate and explain
their opinions
to the Court. An actuary, Mr Immerman, from Gerard
Jacobson Consulting Actuaries, was later called.
[10] The injuries sustained by the Plaintiff were
described by each of the experts in their reports.
[11] According to Dr Jaap Earle, the plaintiff sustained
a severe head injury with stellate laceration on the scalp and a
small
sub-arachnoid haemorrhage. He sustained a skull fracture. As a
result of his injuries the plaintiff had to re-learn how to walk
and
write. He suffered a severe diffuse axonal brain injury with focal
components.
[12] According to Ms Jacobs, the plaintiff was in good
health prior to the collision and played soccer and cycled. She
identified
the following problems post accident: difficulties with
running and sport activities, fine motor skills problems,
concentration
difficulties, mild difficulty using technology, slight
limp and difficulty with left hand movements. He has become socially
reclusive.
[13] Dr Heymans identified the following problems:
headaches, loss of memory, concentration difficulties, mood swings,
weakness
in his left leg. Specifically identified were anterior
osteophyte formation with disc space narrowing at level C6/7, and a
small
chance of a discectomy anterior cervical fusion in the
mid-cervical region. The plaintiff’s orthopaedic symptoms
should
clear up should he would be able to continue with his career
as an underwriter.
[14] According to the neurologist Dr Smuts, the
plaintiff sustained soft tissue injuries as well as a head and brain
injury. The
plaintiff had left-side paralysis which affected his
motor skills. He now walks with a limp, and slower. He cannot run or
climb
down stairs. His left arm is weaker than his right arm, making
his writing slower. He suffers from memory loss (which is
significant), concentration, personality changes, has become an
introvert, and hates driving. On the positive side, his higher mental
functions are good, and he has improved significantly from his
concussive head injury but remains with problems indicative of at
least a moderate brain injury.
[15] Ms Cramer’s report deals comprehensively with
his state of mind. She also testified in court. Among other problems
identified
by her, the plaintiff is more irritated by noise, he is
emotionally more sensitive and tearful, and he has a fear of failure
and
rejection. He has difficulty getting close to people, is
impatient and is sensitive to criticism. He’s single. Since the
accident his girlfriend left him and he has had only two brief
relationships. His concentration and memory have been negatively
affected. He is distressed when confronted with his losses from the
accident. He has lost interest in technology which he used
to enjoy.
He is moderately depressed. In terms of future work the following: he
is likely to experience difficulty in any work
setting, which would
undermine any potential to do well in a management position. He is
unlikely to function at his pre-accident
potential. He would cope
with a monotonous, structured work environment but not a stressful
one which requires initiative and problem-solving.
He is a very
vulnerable employee, neuro-psychologically speaking. Prior to the
accident he was in the high average to average range
according to
neuro-psychological testing, but he now has problems with narrative
recall, keeping attention and so on. He can manage
his own affairs
but some protection of his funds would be prudent. She recommends 40
sessions of individual psychotherapy as future
treatment.
[16] Mr Schoeman, the industrial psychologist, confirmed
many of the diagnoses and observations of some other experts in
respect
of headaches, memory problems, frustration and so on. He
sketched the plaintiff’s educational and work history:
completion
of grade 12 in 2000; he then enrolled but failed to
complete IT course and network administration courses for financial
reasons.
[17] Mr Schoeman also testified about the plaintiff’s
career prospects and earning potential. His work history is
described.
Pre accident he was in sales for 4 years, followed by 2 or
so years’ unemployment. He has since returned to various sales
positions and since January 2012 he has been employed, first as a
sales consultant, and now as a service consultant. In 2013/4
he
completed the RE5 (regulatory exam for representatives), and is
presently studying towards RE 1 and a management training programme.
[18] The plaintiff’s current remuneration amounts
to R 204 000. Inclusive of employer’s provident fund
contribution,
his package is R 216 400.
[19] Pre-accident the plaintiff would have reached the
position of sales manager in line with Paterson level C5 at the age
of 40,
reaching career ceiling earnings equivalent to the upper
quartile earnings on Paterson level C5.
[20] Mr Schoeman’s report states the following on
the plaintiff’s post-accident prospects:
In the event that he continues to work in the same
capacity (or similar), his income would probably progress steadily
(straight
line recommended) to career ceiling earnings equivalent to
the upper quartile earnings on Paterson B4 (annual guaranteed
package),
to be reached at approximately age 45, where after further
increases would probably be based on inflationary pressure, With
successful
completion of the RE1 (Key individual Regulatory Exam) and
the 1-year management training Programme, he may be able to progress
steadily to a hierarchical career ceiling equivalent to approximately
Paterson C1, to be reached at approximately age 40-45. His
income
would progress steadily (straight line recommended) to career ceiling
earnings equivalent to the median earnings on Paterson
C1 (annual
guaranteed package), to be reached at approximately age 50.
Thereafter his income would probably increase, based on
inflationary
pressure.
Mr Schoeman’s income prognosis took into account
the reports of other experts.
[21] Mr Immerman, the actuary, also testified. He used
the projections of Mr Schoeman in his calculations. He took into
account
retirement age, future inflation, pension benefits, taxation,
mortality as well as interest.
[22] He concluded with the following 2 loss of income
scenarios: without passing the IRE, the past loss would be R 275 903,
while net future loss would be R 4 806 156, for a total of
R 5 082 059. The second scenario, with the plaintiff
passing the IRE, the past loss would be the same but the
future loss would be R 4 716 882, for a total of
R
4 992 785. This is based on a pre-accident contingency of
15% and a post-accident contingency of 50%.
[23] Contingencies are a notoriously vexed question. The
court has a discretion in determining the applicable contingency
deduction.
The amount or percentage may vary based on the
circumstances of the case.
[24] I was referred to a range of cases in this division
on the determination of contingency deductions across the spectrum of
injury
severity. In the case of
Abel vs RAF
2015 JDR
1879 (GJ) an adult male security officer with a moderate to severe
brain injury and permanent right ear impairment, the
court fixed the
pre-accident contingency at 15% and the post-accident contingency at
50%. This is quite similar to the present
case.
In
Rabie v Gauteng Department of Education
(Gauteng North High Court, case no 3202, unreported), the court
applied a 20% pre-accident contingency and a 40% post-accident
future
contingency. The case concerned a leaner who sustained a severe
diffuse brain injury with focal components. The sequelae
are similar
to the plaintiff’s.
[25] I agree with the proposal of a pre-accident
contingency of 15%, and a post-accident contingency of 50% for future
loss. A 5%
contingency deduction for past loss applies.
[26] I find that basis 2 is the more probable path,
working on the assumption that the plaintiff will pass the Key
Individual Regulatory
Exam. This means an amount of R 4 992 785.
[27] Mr Immerman estimates future medical expenses to be
R 536 627 (see annexure 1 to his report). He estimates the
capitalised
future periods off work to amount to R 26 431.
[28] In respect of past medical expenses, in the
particulars of claim the plaintiff claimed past hospital, medical and
travelling
costs in the amount of R 11 155.37. In the
plaintiff’s heads of argument, this amount is limited to R 7
286.70, which
is the amount confirmed by the plaintiff under oath for
past medical expenses.
General damages
[29] The final question for determination is what an
apposite award would be in respect of general damages. Counsel for
the Plaintiff
referred me to various reported decisions of the High
Court in respect of comparable injuries. It is within the discretion
of the
court to determine the amount to be awarded for general
damages.
[30] I have considered the following
cases drawn to my attention by plaintiff’s counsel:
a.
Makheta
:
R 1000 000 in 2015 -- a male, 33 years old, suffered severe head
injuries resulting in permanent brain damage.
b.
Zarrabi
:
R 1 419 000 (current value) in 2006 – female, 30 years old,
suffered severe orthopaedic injuries and severe brain injury.
c.
Seme
:
R 1 485 000 (current value) in 2008 – male, 36 years old,
several orthopaedic injuries and a severe brain injury.
d.
Torres
:R
994 000 (current value) in xxx – male, 24 years old, severe
brain injury “with neuro-cocnitive and psychological
sequalae
and soft tissue injury to neck and chin"
[31] I find that a proper award, taking into account all
factors and the comparable cases above, specifically Torres, is the
sum
of R 950 000.00.
[32] Consequently, the plaintiff is awarded the
following damages:
Past medical expenses: R 7286.70
Future periods off work: R26 431
Loss of earnings (on basis 2): R 4 992 785
Future medical expenses (present value): R 536 627
General damages: R 950 000
Credit for interim payment: R 400 000
R 6513129.70 – R 400 000 = R 6 113
129.70.
Costs
[33] Plaintiff wants a special costs order against the
defendant. The defendant appeared at the hearing of 14 May 2014 and
requested
a postponement to file an application for rescission of the
striking out order. But this application was never made.
[34] Plaintiff claims that the defendant delayed the
finalisation of the quantum claim and unnecessarily burdened the
court roll,
and that the court was misled into believing that the
defendant had the real intention to participate in the case.
[35] I agree with the plaintiff’s submission on
costs.
ORDER
[35] The defendant is liable to the plaintiff in the
amount of R 6 113 129.70. This amount is to be paid directly in
to the
trust account of the plaintiff’s attorney.
Should the defendant fail to make payment within two
weeks of this order, the defendant will be liable for interest on the
amount
due to the plaintiff at the rate of 15.5% until final payment.
The defendant is ordered to pay the plaintiff’s
taxed or agreed party and party cost of suit to date hereof, as well
as the costs incurred on 10 November 2015 when the matter stood down,
on the High Court scale which costs will include the costs
of
Counsel, the costs of the reports and consultations, as well as the
preparation and reservation fees, if any, of the expert
witnesses, as
well as the travelling and subsistence costs of the Plaintiff and the
expert witnesses who attended the hearing to
testify as witnesses.
_______________________
OLIVIER, A J
ACTING JUDGE OF THE HIGH COURT
08/03/16