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[2015] ZAGPPHC 183
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Mthethwa v Road Accident Fund (27744/2013) [2015] ZAGPPHC 183; [2015] 4 All SA 280 (GJ) (27 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE: 27 MARCH 2015
CASE NO: 27744/2013
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
WANDILE MZAMO CEDRIC
MTHETHWA
...............................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
..........................................................................................................
DEFENDANT
JUDGMENT
KGANYAGO. AJ
[1] The plaintiff in
this matter is claiming damages for bodily injuries arising out of a
motor vehicle accident. It is common cause
that the accident occurred
on 19 June 2009 wherein the plaintiff was a passenger in motor
vehicle DRW319MP (“insured vehicle”)
when its driver
(insured driver) lost control and it overturned.
[2] The merits of
this matter have been disposed of and liability on the part of the
defendant has been resolved on the basis of
100% in favour of the
plaintiff. General damages has been resolved on the basis that the
defendant has conceded to pay the plaintiff
R500 000.00 (five hundred
thousand rand). Future medical expenses have also been resolved by
being catered for by an undertaking
in terms of the
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
. The plaintiff has abandoned
the claim for past medical expenses.
[3] The only dispute
remaining is the plaintiffs loss of earning capacity. The plaintiff
has abandoned the claim for past loss of
income and is only pursuing
the claim for future loss of earning capacity. This is the dispute
that I must decide upon. The parties
have agreed to the admission of
the following plaintiffs expert reports in evidence without the need
for oral testimony from the
expert witnesses themselves:
3.1 Dr F L Segwapa
(Neurosurgeon)
3.2 Dr Conrad Visser
(Psychiatrist)
3.3 Dr Jivan
(Physician - RAF4)
3.4 M Sithole and H
Solanki (Actuary)
[4] The plaintiff
testified as the first witness. He testified that on 19 June 2009 he
was involved in an accident whilst a passenger
in a motor vehicle. At
the time of the accident he was in Grade 12. He completed his grade
12 in 2009. In 2010 due to financial
constraints he could not
continue with his studies. He registered for Public Relations Diploma
at the University of Kwa-Zulu Natal.
He completed his diploma in a
record time. His performance at the University was fairly good as he
has passed on merit.
[5] When he was
studying, he experienced problems as he lost concentration. Currently
he is unemployed, but he is still looking
for the job. There is
nothing preventing him to get a job, but the problem is that jobs are
scarce.
[6] He is
experiencing a lot of headaches. His finger is also painful when it
is cold. When he is experiencing headaches, he will
either sleep or
take pain killers. He was never invited to a job interview.
[7] The plaintiff
was cross-examined, and he stated that he had obtained his diploma in
a record time due to hard work.
[8] The second
witness for the plaintiff to testify was Dr Mokabane. She testified
that she is a neurologist. She had assessed the
plaintiff. The
plaintiff had sustained significant traumatic brain injury. As a
result of the accident, he is having poor insight,
poor judgment and
inappropriate behaviour due to frontal lobe dysfunction. He is also
having a unilateral cerebellum dysfunction
on the left showing injury
to the cerebellum. The plaintiffs prospects of employment have been
markedly reduced secondary to the
frontal lobe dysfunction. As a
result of the frontal lobe dysfunction, the plaintiff will have a
problem in a working environment.
Even if he can be employed his
prospects of progressing will be affected.
[9] The witness was
cross-examined and she conceded that in the process of preparing her
report, she also referred to the reports
of other experts.
[10] The third
witness to testify for the plaintiff was Dr Sekati. He testified that
he is an occupational therapist. He had assessed
the plaintiff. He
assessed his range of motion, looked into his dynamic strength. His
injury on the left finger was not a fracture
and will not have much
impact on his future work. He also found that in relation to manual
labour he did not have a problem. The
Plaintiff was able to pick up
objects without problems. In relation to his physical condition, he
does not foresee any problems
in future.
[11] The witness was
cross-examined and he conceded that the plaintiff has well recovered
from the accident, but that his life will
not go back to his
pre-accident status.
[12] The plaintiff
called Dr Dlakavu as their fourth witness. She testified that she is
the industrial psychologist. She has assessed
the plaintiff. Her
first impression on the plaintiff was that he was of sound mind. He
was able to present himself without problems.
In compiling her report
she also considered the reports of Dr Segwapa, Dr Sekati and Dr
Dlukulu.
[13] She is of the
opinion that the plaintiffs future career options and earning
prospects and career progression have been compromised
by the
accident. Due to the cognitive and behavioural deficits which he has
sustained, his ambitions of pursuing a career in Public
Relations
have been curtailed by the injuries sustained in the accident. With
his tertiary qualifications he will probably enter
the labour market
at a higher semi-skilled level of B1 Paterson scale progressing to a
more senior supervisory level C4 Paterson
level by the age of 45
years.
[14] If he get
employed, he will struggle with his work. He will need more time to
complete his task. He will work slower than his
colleagues.
[15] The witness was
cross-examined and he conceded that he cannot predict 100% whether
the plaintiff in future will be employed
or not but that he is merely
postulating.
[16]The fifth and
last witness to testify for the plaintiff was Dr Dlukulu. She
testified that she is the clinical psychologist.
She knows the
plaintiff. She has assessed the plaintiff, she found him to be
independent, confident, flexible and articulate. He
was also
uncertain and disregarding instructions. At some stage, he can be
deceiving when talking to him. She found the plaintiff
to be
intellectually impaired.
[17] His
intellectual impairment is due to, amongst others, his extremely poor
inductive reasoning, extremely poor problem solving
skills, extremely
poor problem solving ability, planning ability and visual motor
coordination.
[18] He has passed
his matric and university diploma because of fluctuations and mainly
his working memory. He still believes that
he is somebody who used to
be before the accident but not that he is in denial. He is going to
have a problem with his colleagues
in a working environment. He will
take time to grasp training in the new working environment and when
frustrated, he will refuse
to take instructions.
[19] The witness was
cross-examined and he stated that the plaintiff has fluctuations
deficits and that you can talk to him now
and the next minute he had
forgotten what you were talking about.
[20] That concluded
the evidence of the plaintiff and they closed their case. The
defendant closed their case without leading any
evidence. Both
parties submitted their closing arguments.
[21]
In
Goodall
v
President
Insurance Company
1978
1 SA 389
(W) 392H-393 A MAGO J stated:
“
In
assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part for the art of science
of
foretelling the future, so confidently practised by acient prophets
and soothsayers and by modern authors of a certain type
of almanac,
is not numbered among the qualifications of judicial office. In De
Jong
v
Gunther and
Another
1975 4 SA 78
(W), Nicholas J said at p80 opposite the letter
F: ‘In a case where a plaintiff sues for his own loss of
earnings it is only
contingencies which affect him personally which
have to be considered. In his judgment in Van Rensburg v President
Versekeringsmaatskappy,
(WLD) 21.11.68, quoted in Corbett and
Buchanan, The Qauntum of Damages Vol 2 at p65 Ludost J referred to
the fact that it has become
almost customary, at any rate in his
division of the supreme for the court to make a deduction for
unforeseen circumstances of
life of one fifth. That is, it is true, a
rough and ready approach, but the nature of the problem is such that
one can do no better
than adopt a rule of thump of this kind. ”
[22]
In
Southern
Insurance Association
v
Bailey NO
1984
1 SA 98
(A) 113F-114A NICHOLAS JA stated:
“
Any
enquiry into damage for loss of earnings 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 the loss.
It has 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 assumptions resting
on the evidence. The validity of this approach depends of course upon
the soundness of the assumptions,
and these may vary from strongly
probable to speculative.
It is manifest
that either approach involves guesswork to a greater or lesser
extent. But the court cannot for this reason adopt
a non-possums
attitude and make an award. ”
[23] It is not in
dispute that the plaintiff was a passenger in a motor vehicle that
was involved in an accident. It is not in dispute
that at the time
when the accident occurred he was in grade 12. It is not in dispute
that despite the accident, the plaintiff went
on to pass his grade 12
the same year. He
went on to study at
university of Kwa-Zulu Natal where he completed his diploma in a
record time and having performed exceptionally
well. It is not in
dispute that the plaintiff has suffered moderate traumatic brain
injury as a result of the accident.
[24] The plaintiff
have called several expert witnesses to testify for his case. The
evidence of the plaintiffs expert witnesses
are based on facts and
are objective. Since they are the only expert evidence before me and
there is no other expert evidence competing
with it, I don’t
have any other alternative, but to accept their evidence as I have
already found that they are based on
facts and are also objective.
[25] The plaintiff
has also handed in an actuarial report by M Sithole and H Solanki.
The counsel for defendant did not object to
that report and has also
not submitted any counter report from their side. The plaintiffs
actuarial report has made their calculations
on scenario 1 - ceiling
at Paterson level C2 and scenario 2 ceiling at Paterson level Cl.
[26]
In my view, the fact that the plaintiff did not struggle to complete
his matric the same year he was involved in an accident
and also went
on to complete his diploma on a record time and on merit, is an
indication that his case cannot be regarded as a
worst case scenario.
Physically he has fully recovered and will not anticipate problems in
the future. However, as stated in
Southern
Insurance Association
v
Bailey supra,
the
court will not adopt a non-possums attitude and make no award. Taking
into consideration the plaintiffs physical and mental
recovery from
the accident, in my view scenario 1 -ceiling at Paterson level C2 is
the most appropriate to apply in the plaintiffs
case.
[27]
The actuaries did not apply any contingencies and has left it open to
the discretion of the court. The aspect of contingencies
is a matter
that falls within the discretion of the court. In
Bailey
v
Southern Insurance
supra
the
court of appeal amended the general contingency deduction in respect
of a 2 year old child to 25%. In the case
Megalane
v
The Road Accident
Fund
[2007]
3 All SA 531
(W), the court applied a 20% contingency deduction in
respect of the loss of earning capacity to an 11 year old child.
[28] In this case
the plaintiff at the time of the accident was 19 years old. His
counsel has submitted that the court should apply
22% pre-morbid and
30% post-morbid. Counsel for the defendant did not object to this
proposal or submitted his counter proposal.
[29] In exercising
its discretion, the court will take into consideration the
possibility that the plaintiff may in the result have
less than a
normal expectation of life, he may be unemployed due to illness or
general economic conditions. The court should not
only look at the
adverse fortunes of life. Given the plaintiffs age, the fact that
physically he had fully recovered and also the
fact that he did not
struggle to complete his grade 12 and tertiary qualification, in my
view a fair and proper contingency deduction
to be applied is 22%
pre-morbid and 30% post-morbid as submitted by the plaintiffs
counsel.
[30] In the result I
make the following order:
30.1 The defendant
shall pay the total sum of R2 110 063.54 (two million one hundred and
ten thousand and sixty three rand and fifty
four cents only) to the
plaintiffs attorneys, Chuene Attorneys, in settlement of the
plaintiffs claims:
General damages R500
000.00
Loss of
eamings/Earnings capacity R1 610 063.54
30.2 The defendant
shall furnish the plaintiff with an undertaking in terms of
section
17(4)(a)
in respect of 100% of the costs of the future accommodation
of the plaintiff in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to him after the costs
have been incurred and on proof thereof, resulting from the accident
that occurred on 19 June 2009.
30.3 The defendant
shall pay to the plaintiff taxed or agreed party and party costs on
the High Court scale, which costs shall include
but not limited to
the following:
30.3.1 The costs
attendant upon the obtaining of payment of the capital amount
referred to in paragraph 1 above; and
30.3.2 The
preparation and reservation fees of plaintiffs experts, if any
(a) Dr F Segwapa -
Neurosurgeon
(b) Mr P Sekati -
Occupational Therapist
(c) Dr P Dlukulu -
Clinical psychologist
(d) Dr c Visser -
Psychiatrist
(e) Dr M Mokabane -
Neurologist
(f) Dr M Jivan -
Physician
(g) Ms Sandra Moses
- Industrial psychologist
(h) G A Whittaker
(Algorithm) - Actuaries
30.3 The plaintiffs
attorneys shall only be entitled to recover from the plaintiff
ordinary attorney and client fees which may be
taxed but shall not
exceed 25% of the capital awarded to the plaintiff.
30.4 Notice of
taxation of the plaintiffs party and party bill of costs shall be
given to the defendant’s attorneys and payment
of such taxed or
agreed costs shall be made within fourteen days from the date of
taxation or agreement as the case may be. Should
payment not be made
timeously defendant will be liable for the payment of interest at the
rate of 9% per annum from due date of
payment.
Heard
on
:
17 MARCH 2015
For
the Plaintiff
:
Adv MR. D L RAINERFELT
Instructed
by
:
CHUENE ATTORNEYS
For
the Defendant
:
Adv MR. E B MAFOKO
Instructed
by
:
CHAUKE ATTORNEYS
Date
of Judgment
:
27/03/2015