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[2016] ZAGPPHC 1112
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Sayed NO v Road Accident Fund (49442/2013) [2016] ZAGPPHC 1112 (16 November 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
Case number: 49442/2013
Date: 16/11/2016
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In the matter between:
ADVOCATES SAYED N.O.
(CURATOR AD LITEM
OF R R
RIGNEY)
PLAINTIFF
Versus
ROAD ACCIDENT
FUND RESPONDENT
JUDGMENT
TOLMAY, J:
[1] The Plaintiff was
involved as a passenger in a motor vehicle accident that occurred on
27 March 2012.
[2] According to the
Plaintiff's neurosurgeon he suffered a severe traumatic brain injury,
with scalp lacerations, brain oedema
and multiple small haemorrhages,
including multiple abrasions on his torso and right leg.
[3] Merits were
previously settled together with general damages and future medical
treatment. Defendant is liable for a 100% of
the damages suffered by
the Plaintiff. The Plaintiff is assisted by a curator ad litem and
she filed a report. She is thanked for
her assistance in this matter.
[4] The matter was
allocated for argument as to future loss of income on the filed
reports only.
[5] During argument the
Defendant preferred the following arguments:
5.1 That the Plaintiff
has suffered no loss of earnings as he is still working;
5.2 That the Plaintiff
should be medically assessed for the purposes of boarding by the SAPS
and be held to be unfit before a loss
will be proven; and
5.3 That the contingency
should be lower.
[6] The Plaintiff worked
as a student constable prior to the accident. Post - accident he is
still employed by the South African
Police but he is not able to
perform the normal duties of a constable. His employment can be
described as sympathetic employment.
[7]
In
Santam
Versekeringsmaatskappy Bpk v Byleveldt
[1]
it was
held that when an employee was employed purely on compassionate
grounds such a salary is not taken into account when dealing
with the
Plaintiff's claim for loss of earnings. Obviously the Plaintiff must
prove a loss of earning capacity.
[2]
[8] After the accident
Plaintiff presented with neurological deficits. He has difficulty
with speech, suffers from short term memory
loss, poor co
ordination and from residual neurocognitive problems. His
neurological problems are permanent.
[9] After the accident
Plaintiff no longer has the required communication skills and
struggles to work with the public. Due to his
cognitive and
communication deficits the experts found that he will not be able to
respond quickly and appropriately in stressful
conditions. The
experts are of the view that he poses a risk to himself and his
co-workers as a result of the
sequelae
of his
injuries.Plaintiff's neurophysical impairment makes it difficult for
him to live an independent life.
[10] Plaintiff also
suffers from post-traumatic stress disorder and major depressive
disorder according to the clinical psychologist.
[11]
The argument that Plaintiff could be medically boarded does
not assist the Defendant. No evidence was put before Court to
substantiate
this argument. Plaintiff's counsel pointed out that, as
the Defendant has less than 10 years' service he will not be entitled
to
a proportionate amount of his salary and will only receive the
little he has built up in terms of his pension fund. Consequently
this argument by Defendant does not have any merit.
[12]
The Plaintiff submitted that the only reasonable way to
compensate the Plaintiff for his future loss of earnings would be by
way
of a contingency deduction to factor in the risk factors as
referred to by the various experts.
[13]
Using the Defendant's own actuarial calculations the Plaintiff
submitted that scenario 1 of the actuary's calculation should be
used. However, Plaintiff's counsel argued that where the actuary used
a 15% pre and a 35 % post morbid contingency, the post morbid
contingency should be raised to 60%. In other words instead of a 20%
so-called spread, a 45% spread should be applied to fairly
compensate
the plaintiff for the various additional risk factors he is facing.
[14]
In support of this contention the following was submitted on
behalf of Plaintiff:
14.1 The Plaintiff is in
actual fact sympathetically employed and any income he receives
should be disregarded in line with what
was found in
De
Mellin v The Road Accident Fund
[3]
where a
60% contingency was allowed in circumstances where the Plaintiff's
employment could be described as sympathetic employment.
Plaintiff's
counsel contended that as in the aforementioned case he does not
contribute to his employer's business in that:
a.
All he is allowed to do is certify documents - which given the
fact that he has a curator, is probably in any event irregular.
b.
His cognitive profile means he is a danger to the public.
c.
Has it not been for Plaintiff's intense wish to remain in the
employ of the SAPS he would probably already have been unemployed.
The measure he has gone through to remain in the employ is further
proof of his limited insight into his problems.
[15]
The experts agree that Plaintiff is not suited to work as a
police constable and that should there be changes at the station
where
he works, he faces unemployment for the remainder of his life.
The Plaintiff's neurocognitive profile is irreversible, i.e. he will
not improve and will in all likelihood get worse.
[16]
The
Court has a wide discretion when determining the appropriate
contingencies and it will depend on the Court's impression of the
case.
[4]
Despite Plaintiff's
submissions to the contrary I am of the view that in the
circumstances of the case a 50% contingency will be
fair.
Such a contingency takes
into account the fact that the Plaintiff is still employed and may
remain in that position, and also allows
for the possibility that he
may be rendered unemployable if he should lose his job. I am of the
view that basis I of Plaintiff's
actuary's calculation based on
Plaintiff's industrial psychologist's, Ms Talmud's opinion should be
followed. I must point out
that the calculation based on Ms Talmud's
opinion favours the Defendant slightly, but the difference is
negligible. Ms Talmud concluded
that Plaintiff may either continue
working in his current accommodated capacity, alternatively if he
should lose his employment
at the SAPS he should be regarded as
unemployable in the open labour market. In my view her opinion is
supported by the facts in
this case.
[17]
The calculation of loss of income according to the actuary is
set out as follows:
SUMMARY OF LOSS OF
INCOME
Basis
I
:
Based on Mrs Talmud's opinion
Past Loss
Value of Income but for
accident
R 543 215
5% Contingency
deduction
R 27 161
R 516 054
Value of Income having
regard to accident
R 504 702
5% Contingency
Deduction
R 25 235
R 479 467
Net Past
Loss:
R 36 587
Future Loss
Value of income but for
accident
R 5 189 352
15% contingency Deduction
R 778 403
Net value of income but
for
Accident
R 4 410 949
Value of Income having
regard to
Accident
R 4 320 276
50% Contingency
Deduction
R 2 160 138
Net value of income
having regard
To accident
R 2 160 138
Net future loss:
R2
250 811
TOTAL NET
LOSS:
R2 287 398
[18]
The Plaintiff should therefore be awarded the amount of R2 287
398- 00 as compensation for future loss of earnings.
[19]
Consequently I make the following order:
19.1Merits have been
settled 100% in favour of the Plaintiff.
19.2The Defendant must
pay the Plaintiff an amount of R2 287 398-00 (two million two hundred
and eighty seven thousand three hundred
and ninety eight rand only)
in full and final settlement of the Plaintiff's claim for Loss of
Earnings, payable within 30 days
of this order into the Plaintiff's
attorneys of record's trust account with the following details:
Account Holder : Ehlers
Attorneys
Bank Name : FNB
Branch Code : 261550
Account Number : [...]
19.3The issue of past
medical expenses as well as any remaining heads of damages for
non-medical expenses are postponed
sine die.
19.4The Defendant will
not be liable for interest on the above mentioned amount, save in the
event of failing to pay on the due
date, in which event the Defendant
will be liable to pay interest on the outstanding amount at a rate of
10.50% per annum.
19.5The Defendant is
ordered to pay the Plaintiffs taxed or agreed party and party costs
on High Court scale, which costs will include,
subject to the
discretion of the Taxing Master the following:
19.5.1
The reasonable taxed fees for consultation with the experts
mentioned below, together with delivery of expert bundles including
travelling and time spent travelling to deliver such bundles,
preparation for trial, qualifying and reservation fees {if any and
on
proof thereof), including the costs (fees and disbursements) of all
consultations {inclusive of telephonic consultations) with
Counsel
and/or Plaintiff's attorney and the
costs (fees and
disbursements) of all consultations between the Plaintiff's and
Defendant's experts, as well as costs of the reports,
addendum
reports, joint minutes and addendum joint minutes and full day fees
for court attendance (if at Court) of the following
experts:
19.5.1.1
Dr P Engelbrecht – Orthopaedic Surgin;
19.5.1.2
Dr. Smuts - Neurologist;
19.5.1.3
M Sisisson - Clinical Psychologist;
19.5.1.4
Dr. Moja - Neurosurgeon;
19.5.1.5
I Jonker - Neuropsychologist;
19.5.1.6
Dr. Langenegger Maxillo - facial Surgeon;
19.5.1.7
Dr. Fredericks – Disability and Impairment Assessor;
19.5.1.8
Dr. Maimela - Urologist;
19.5.1.9
Dr. Zako - Psychiatrist;
19.5.1.10
Hattingh - Speech Therapist;
19.5.1.11
Dr. Pienaar - Plastic Surgeon;
19.5.1.12
N September - Occupational Therapist
19.5.1.13
Jacobson IP's - Industrial Psychologist;
19.5.1.14
G Jacobson - Actuary
19.5.2
The costs for transportation of the Plaintiff as well as a
family member, with JT Transportation Services or any alternative
transport
provider, to the medical legal examination(s) arranged by
Plaintiff and the Defendant.
19.5.3
The costs for transport with JT Transportation Services or any
alternative transport provider, for the injured as well as a family
member, to attend Court.
19.5.4
The costs for the Plaintiff's attorney travelling to and
spending time travelling to pre-trial conferences and attendance at
pre-trial
conferences by the Plaintiff's attorney.
19.5.6
The costs for preparation of Plaintiff's bundles of documents
for experts, as well as the travelling costs and time spent to
deliver
these bundles.
19.5.7
The costs and fees of the
curator ad /item,
including but not limited to any consultations deemed
necessary, including but not limited to consultations with trustees,
the Master's
office, the Plaintiff's attorney, family members of the
injured, medical experts and any other experts deemed necessary, as
well
as the drawing of reports and day fees.
19.5.8
The
full costs of Plaintiff's Counsel Adv Karin Strydom.
20. The Defendant is
ordered to pay the Plaintiffs taxed and/or agreed party and party
costs within 7 days from the date upon which
the accounts are taxed
by the Taxing Master and/or agreed between the parties.
22.
Should payment of taxed costs not be effected
timeously, Plaintiff will be entitled to recover interest at the rate
of 10.50% on
the taxed or agreed costs from date of allocator to date
of payment.
23.
As a
Curator Bonis
was
appointed the Plaintiff's attorneys: Ehlers Attorneys, will only be
allowed to pay the monies received as set out in clause
2 of this
order over to the
Curator Bonis.
_________________________
R
G TOLMAY
JUDGE OF THE HIGH COURT
[1]
1973(2) SA 146 A
[2]
Rudman v Road Accident Fund 2003(2) SA 234 (SCA) par 8 and par 13
[3]
Unreported South Gauteng High Court case no 2010/19802 judgment
given 18 November 2013
[4]
See Southern Insurance Association v Bailey NO 1984(1) SA 98 (A);
Van Der Plaats v South African Mutual Fire & General Insurance
Company 1980(3) SA (A), p105 at 114-5