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[2016] ZAGPPHC 1210
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M.J.M v Road Accident Fund (27951/2014) [2016] ZAGPPHC 1210 (10 November 2016)
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REPUBLIC
OF SOUTH AFRICA
GAUTENG HIGH COURT
DIVISION, PRETORIA
CASE NO: 27951/2014
DATE: 10/11/2016
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In
the matter between:
M
J
M
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
1.
The plaintiff instituted a claim against
the defendant
for
injuries he sustained in a motor vehicle collision which occurred on
4 March 2012. At the time of the collision, the plaintiff
was cycling
along
the
N1
Road
in
Elandslaagte,
Ladysmith
when
he was knocked down
by a motor vehicle, bearing registration number N[…] […]
and driven by the insured driver, Mr
Thembinkosi Charles Mkhonza.
2.
As a result of the collision and the
negligence of the
insured driver, the
plaintiff sustained a severe head injury, a fracture of
the
mandible
and lost some teeth.
At
the time he was admitted
to the Ladysmith
Hospital his Glasgow Coma Scale was recorded to be 9/15. He remained
unconscious for three days while in hospital
and was hospitalised for
a period of 4-6 weeks. Three days after he was admitted to hospital a
tracheostomy was performed in order
to open his air passages. For
three months after his discharge he stayed at home recuperating
and
went back to work as
a farm worker until he resigned in January 2015 due to
the
sequelae of his injuries.
3.
Liability was settled at 80%/20% in favour
of the plaintiff and an order to that effect was made on 9 October
2015. The issue of
quantum
was postponed
sine die.
4.
The plaintiff has abandoned the claim for
past medical expenses. In respect of future medical expenses, the
defendant has agreed
to furnish the plaintiff with an undertaking in
terms of section 17(4)(a)
of the
Act.
5.
The parties agreed that the issue of
quantum of damages to be argued on the basis of the plaintiff's
expert medico-legal reports
without the necessity of having to call
the experts as witnesses, with the defendant admitting the
correctness of the opinions
expressed by the experts. The defendant
did not file any expert reports.
6.
At the trial no evidence was adduced. The
reports
of
the
following plaintiff's experts were handed in by
the plaintiff
and
were
admitted without the necessity of having to call the expert
witnesses, with the defendant admitting the correctness of the
opinions
expressed
by
the following experts:
10.1
Dr
C Morare
(general practitioner);
10.2
Mrs TMR Nape (occupational
therapist);
10.3
Dr G Read (orthopaedic
surgeon);
10.4
Prof
DM Manyane
(neurologist);
10.5
Mrs T Gama (industrial psychologist);
10.6
Mrs L Modipa ( clinical psychologist);
10.7
Professor
PL
Lekgwara
(specialist neurosurgeon);
10.8
Dr B Malakou (ear, nose and throat
surgeon);
10.9
Dr NJB Kazadi
(specialist
psychiatrist);
10.10
Dr D Hofmann (plastic, reconstructive and
cosmetic surgeon); and
10.11
Professor R Lurie (maxilla-facial and oral
surgeon).
7.
The defendant has also admitted the report
of Dr G Read, the plaintiff's orthopaedic surgeon.
Dr
Read noted that
the plaintiff
did
not
have any
orthopaedic
injuries.
8.
The issues to be determined are the
appropriate contingency deductions to be applied to the award for
loss of earning capacity and
general damages. In line with Dr
Morare's assessment, the plaintiff has suffered a serious injury and
therefore qualifies for general
damages.
9.
It is common cause that at the time of the
collision the
plaintiff
was
44 years old and had gone up to Standard 6 (grade 8) at school.
At
the
time
of
the
accident
the
plaintiff
worked
as a general
worker at a farm and earning R2300. After the accident the plaintiff
returned to work and for reasons which will become
apparent below, he
resigned from his employment at the beginning of 2015.
10.
Furthermore, the following facts are also
common cause:
10.1.
on admission to hospital the plaintiff was
unconscious and his GCS measured 9/15;
10.2.
the plaintiff sustained a severe head
injury, facial fractures and loss of teeth;
11.
Professor Lekgwara (specialist
neurosurgeon)'s prognosis is that the plaintiff suffers chronic
post-concussion headaches and will
require long term treatment for
the headaches. Furthermore, Professor Lekgwara was of the opinion
that the plaintiff had a 5- 100/o
chance of
developing
late onset post-traumatic
epilepsy.
12.
In Dr Manyane (neurologist)'s opinion that
the plaintiff suffers from an amnestic syndrome which has resulted in
him being forgetful,
un-attentive and unable to recall things said to
him. Further, that the plaintiff has undergone a personality change
and has become
irritable. Dr Manyane was of the opinion that the
plaintiff was suffering from severe depressive symptoms and that the
neuro-cognitive
impact of the brain injury was permanent and
irreversible. The plaintiff's wife also informed Dr Manyane that
after the accident
the plaintiff was so forgetful that he usually
gets lost in environments he is familiar with.
13.
According to Dr Kazadi, the psychiatrist,
the plaintiff presented symptoms of a chronic debilitating
neuropsychiatric condition
which will affect the plaintiff socially
and occupationally. He is of the opinion that the plaintiff's
prognosis opens him to the
risk of suicide.
14.
According to Mrs Modipa, the clinical
psychologist, as a result of the head injury the plaintiff sustained,
the plaintiff suffers
from severe vulnerabilities, cognitively and
emotionally, which sequealae she considers to be permanent if one
takes into account
the number of years which have lapsed since the
accident and no significant improvement has been noted. The plaintiff
reported
that before the accident he had a relatively healthy life.
According to Mrs Modipa, post-accident the plaintiff has become
withdrawn
and does not socialise anymore due to his depression and
irritability.
15.
Dr Malakou, the ear, nose and throat
surgeon, indicates that the plaintiff sustained a hearing loss and
severe conductive loss in
his left ear which has resulted in a
chronic ear infection. In his opinion the plaintiff will need a
typanomastoidectomy operation
in order to clear the ear infection.
16.
Dr Hofmann, the plastic, reconstructive and
cosmetic surgeon, indicates that the plaintiff has scarring on his
face and neck which
is sometimes painful and has affected the
plaintiff psychologically. According to Dr Hofmann, people with
scarred faces were not
favourably considered by prospective
employers. Dr Lurie, the maxilla-facial and oral surgeon indicates
that as a result of the
head injury the plaintiff sustained, he also
suffered a 'jiggered cut' around the nose, lost teeth and complains
of a painful jaw
when he chews. He is of the opinion that the
plaintiff will need to undergo medical treatment to restore his lower
anterior teeth.
17.
The occupational therapist, Mrs Nape,
opines that as a result of the accident, the plaintiff may have
difficulty in working in an
environment where
he
has to lift objects above his head height
or
to carry of heavy
objects.
Further,
Mrs Nape is of the
view,
in light of his injuries, that
the
plaintiff
would no longer
be
able
to work as a farm worker and that he
qualifies to perform sedentary to light type of work with
accommodation from his coworkers.
18.
Mrs Gama, the industrial psychologist,
indicates that at the time she consulted with the plaintiff, he
informed him that he earned
R2 100.00 per
month. She is of the opinion that but for the accident, the plaintiff
would have been able to work in the unskilled
sector until his
retirement at the age of 65 years. However, due to the
consequences of the injuries he sustained
in the accident, the headaches, deafness in the
left ear, problems with his eyesight and lower back pain, his
employability has
been compromised. Mrs Gama basis her prognosis on
the fact that when she interviewed the plaintiff's former employer,
he had informed
him that when the plaintiff returned to work after
his recuperation, he struggled to cope and was dependent on his co
workers.
It is Mrs Gama's opinion that due to his injuries the
plaintiff is no longer in a position to do
manual
work.
Even though he
qualifies to sedentary to light work, it
will
be impossible for him to find employment as he
lacks
experience and education. Mrs Gama's
conclusion is that the plaintiff has become unemployable and has
suffered a total loss of
earnings.
19.
It was suggested that the calculations done
by Algorithm Consultants & Actuaries CC ("Algorithm")
based on the report
of the industrial psychologist, Mrs Gama, be used
in the calculation of the loss of earnings.
Further
it
was submitted
by
counsel
for the plaintiff that for past
loss of earnings a contingency of 5% and 10% should be should be
applied to the uninjured earnings
for past and future loss of
earnings. Further that in regard to post accident contingencies a 5%
and 0% contingency deduction should
be applied for past and future
loss of earnings, respectively. It is the plaintiff's submission that
a much lower contingency percentage
is used in older people. Due to
the fact that the plaintiff was 47 years old and has been rendered
unemployable, the loss of past
and future earnings and the
contingencies applied by the actuaries should be adopted.
20.
Even
though the court has been presented with actuarial calculations on
the assessment of loss of future earning capacity, the court
retains
the discretion to determine the appropriate award. In
Southern
Insurance Association v Bailey NO
[1]
the
court further
stated
that:
"Any enquiry into
damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to
the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that
the court can do is to make an estimate,
which is often a very rough
estimate of the present value of loss.
It has been open to it
two possible approaches. One is for the 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 assumption resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable
to the speculative."
21.
At the time of the accident the plaintiff
was 44 years old and had a healthy lifestyle. The experts are in
agreement, taking into
account the debilitating headaches that the
plaintiff now suffers from, a change in his personality and has
become moody and easily
irritated. Further, as a result of the head
injury he sustained, the plaintiff suffers from chronic headaches and
has neuro-cognitive
and neuro-psychological impairments. The injury
has rendered him unemployable particularly as it was suggested by the
occupational
therapist, Mrs Nape, that the plaintiff was well suited
for sedentary to light work. However, due to his lack of experience
and
low education, the plaintiff is unlikely to find employment in
those categories.
22.
I am of the view that the contingencies
suggested by plaintiff's counsel are reasonable. The actuary
postulates that the plaintiff
uninjured could have worked until he
reached the normal retirement age of 65 years. I am of the view that
the amount of R286
055.00
is
fair compensation
for loss of
earnings.
23.
With
regard to general damages plaintiff is claiming
the
suggested
amount of R1 200
000.00.
The
defendant
submitted
that an amount of R600 000.00 would be reasonable as general damages.
The court was referred to various comparable cases.
The closest in
comparison in relation to the injury sustained and the sequelae are
Torres
v Road Accident Fund
[2]
and
Radebe
v Road Accident Fund.
[3]
24.
In
Torres
matter
(supra)
the plaintiff was 24 years old at the
time of the accident. The injuries he sustained were the following:
severe
diffuse
brain injury,
soft
tissue injury
to the
neck, face and chin. As a result of the injuries he sustained, the
plaintiff suffered neuro-cognitive and neuro-behavioural
deficits
associated with concentration, working memory and impulse control. At
the time of the collision, the plaintiff was running
a successful
jewellery design business which he no longer ran. Plaintiff was
awarded R600 000.00 as general damages in March 2007.
At today's
values this amount would be R1 025 000.00. In the
Radebe
matter
(supra)
the plaintiff sustained a severe brain
injury and suffered from a permanent and irreversible organic brain
syndrome. His prognosis
was that he was likey to develop post
traumatic epilepsy. The court awarded an amount R936 000.00 (1016
values) as general damages.
25.
I am of the view that, taking into account
the fact that prior to the accident the plaintiff enjoyed a healthy
lifestyle, and was
working, that post-accident he not only suffers
from mental and emotional impairment but also has scarring on his
face and neck,
the amount of R1 100 000 000.00 for general
damages
is fair and
reasonable compensation under the circumstances.
26.
There is common cause that there is a need
for the funds in this awarded. Included in the amended draft order,
provision is made
for the creation of a trust for the benefit of the
plaintiff.
27.
In the result, an order in terms of the
amended draft order marked "X" is made:
NP MNGQIBISA-THUSI
Judge of the Gauteng
High Court
Appearances
:
For
Plaintiff:
Adv M
Hugo
Instructed
by:
Mbowane
Attorneys
For
Defendant:
Instructed
by:
Tsebane
Moloba Inc
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
On
7 MAY 2016
BEFORE
THE HONOURABLE Ms Justice Mngqibisa-Thusi
COURT
6A
Case No: 27951/2014
In
the matter between:
M[...],
J
M
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
DRAFT ORDER
An order in the following
terms is hereby made:
1.
The defendant is ordered to pay to the
plaintiff, in full and final
settlement of
his damages,
the amount
of
1.1.
GENERAL DAMAGES: R880 000.00 (EIGHT HUNDRED
AND EIGHTY THOUSAND RAND) (being 80% of R1 100 000.000).
1.2.
LOSS OF EARNINGS (PAST AND PROSPECTIVE):
R228 844 (TWO HUNDRED TWENTY EIGHT THOUSAND EIGHT HUNDRED AND FORTY
FOUR RAND) (being 80%
of R486 055.00);
TOTAL
PAYABLE
: R1 188 844, 00 (ONE
MILLION ONE HUNDRED EIGHTY EIGHT THOUSAND EIGHT HUNDRED AND FORTY
FOUR RAND)
payable on or before 28
JUNE 2016, into the plaintiff’s attorney’s trust account,
the details of which are as follows:
ACCOUNT BANK HOLDER:
MBOWANE ATTORNEYS INCORPORATED
BANK:
FIRST NATIONAL BANK
ACCOUNT NUMBER:
[…]
BRANCH:
HATFIELD
2.
The defendant is ordered to furnish to the
plaintiff an undertaking in terms of section 17(4)(a) of the Road
Accident Fund Act,
Act 56 of 1996 (as amended), for the costs of the
future accommodation of the plaintiff in a hospital or nursing home
or treatment
or rendering of a service to the plaintiff, or the
supply of goods to the plaintiff, arising out of the injuries
sustained by the
plaintiff in the motor vehicle collision on 4 March
2012, after such costs have been incurred and upon proof thereof,
LIMITED TO
80%.
3.
The defendant is ordered to pay the
plaintiff’s taxed or agreed party to party costs on a High
Court scale, until date of
this order, including but not limited to:
3.1.
the reasonable taxable fees in respect of
examinations and reporting special investigations, RAF4/serious
injury considerations
and/or reporting, preparation, reservation and
trial attendance, if any, of the following experts that the plaintiff
gave notice
of:
3.1.1.
Dr C Morare (general practitioner);
3.1.2.
Mrs L Modipa (clinical psychologist);
3.1.3.
Dr G Read (orthopaedic surgeon);
3.1.4.
Mrs T Gama (industrial psychologist);
3.1.5.
Dr D Hofmann (plastic, reconstructive and
cosmetic surgeon);
3.1.6.
Dr B Malakou (ear, nose and throat
surgeon);
3.1.7.
Dr D M Manyane (neurologist);
3.1.8.
Professor Russell Lurie (maxilla-facial and
oral surgeon);
3.1.9.
Dr N J B Kazadi (specialist psychiatrist);
3.1.10.
Mrs T M R Nape (occupational therapist);
3.1.11.
Professor P L Lekgwara (specialist
neurosurgeon).
3.2.
The costs of obtaining such expert
medico-legal reports/addendum reports/RAF4 Assessments from the above
experts, inclusive of the
plaintiff’s reasonable travelling
and/or accommodation costs in respect thereof;
3.3.
The full costs of counsel;
3.4.
The plaintiff's trial costs for 7 May 2016,
inclusive of the reasonable travelling and/or accommodation costs for
trial preparation
and trial attendance, as well as such costs for any
witnesses
of the plaintiff;
3.5.
The plaintiff's wife, Mrs M[...], is
declared a necessary witness for purposes of
trial;
3.6.
The plaintiff's
costs
in trial preparation;
3.7.
The costs of one consultation
with
the
plaintiff
for
consideration of the settlement tender made by the defendant, and the
consideration
thereof by the plaintiff's
counsel.
4.
The plaintiff's attorney is ordered to
cause
a trust
to
be established and is authorised to sign all
documents necessary for the formation of the trust for the benefit of
J M M[...], with
identity
number
6[...],
such
trust
to
be
held
by __________
___________ in accordance with the the written undertaking,
dated ___________, hereto attached as
ANNEXURE
A.
5.
The defendant is ordered to pay, for as
long as the trust remains in existence:
5.1.
the costs of the appointment
of
the trustee(s),
such costs
to
be limited to the costs of a curator
bonis;
5.2.
the costs, remuneration and disbursements
of the trustee(s) in the administration of the trust;
and
5.3.
the costs of furnishing
annual
security.
6.
The defendant's liability for such costs as
stipulated in paragraph 5 above shall not exceed the costs of
the
appointment
and
remuneration
of a curator
bonis.
7.
The trustee(s) is to pay the plaintiff's
attorney's costs in terms of the contingency fee agreement entered
into between the plaintiff
and the plaintiff's attorneys.
8.
The trustee(s) shall be entitled to call
for
an
appropriate
taxation
of the
plaintiff's attorneys (attorney and own client) cost disbursements if
deemed necessary.
9.
The trust instrument contemplated here
above
shall make
provision for,
inter
alia,
the
following:
9.1.
that J M M[...] be the sole beneficiary of
the trust;
9.2.
that the trustee(s) of the trust to be
formed shall take all the requisite steps to secure an appropriate
bond of security to the
satisfaction of the Master of the High Court
for the due fulfilment of his/her obligations and to ensure that the
bond of security
is submitted to the Master of the High Court at the
appropriate time as well as to all other interested parties if so
required
by the Master of the High Court;
9.3.
the duty of the trustee(s) to disclose any
personal interest in any transaction involving the trust property;
9.4.
the termination of the trust shall occur
when J M M[...] dies, otherwise subject to the leave of the High
Court upon application,
the costs of any such application which shall
be costs in the main action herein, and for which purposes notice of
such application
is to be given to the defendant.
9.5.
the trustee(s) shall be entitled, if he/she
deems it necessary, to utilise the income of the trust for the
maintenance of J M M[...]
and/or his spouse and maintenance dependent
children;
9.6.
that the trustee(s) to be appointed to
provide security to the satisfaction of the Master of the High Court;
9.7.
that ownership of the trust property shall
vest in the trustee(s) of the trust in their capacities as
trustee(s);
9.8.
procedures to resolve any potential
disputes, subject to the review of any decision made in accordance
therewith by the honourable
Court;
9.9.
that any amendment of the trust instrument
be subject to approval and leave of the Master of the honourable High
Court and/or this
honourable Court;
9.10.
in the event of the death of J M M[...],
such trust shall terminate and the trust assets shall pass to the
estate of J M
M[...];
9.11.
that the trust property and the
administration thereof be subject to an annual audit.
10.
That the provisions of such trust document
referred to here above shall be, in accordance with the provisions of
the Trust Property
Control Act, Act 57 of 1988, subject to the
approval of the Master of the High Court.
11.
The plaintiff shall –
11.1.
if the costs of suit are not agreed upon,
serve a notice of taxation on the defendant's attorneys of record;
and
11.2.
allow the defendant 14 (fourteen) court
days, after the
allocatur
has
been made available to the defendant, to make payment of the agreed
or taxed costs.
BY ORDER:
REGISTRAR
Counsel
for Plaintiff: M Hugo
Counsel
for Defendant: _____________
[1]
1984(1)
All SA 98 (A) at 113G.
[2]
Vol
6
Quantum
of Damages in Bodily and Fatal Injury Cases,
Corbett
and Honey.
[3]
2013(6A4)
QOD 220 (GNP).