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[2015] ZAGPPHC 599
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Du Toit v Road Accident Fund (17587/2013) [2015] ZAGPPHC 599 (5 August 2015)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
5/8/2015
CASE
NO: 17187/11
[1]
REPORTABLE:
YES
/NO
[2]
OF INTEREST TO OTHER JUDGES:
YES
/NO
IN THE
MATTER BETWEEN:
ADV.
AJ DU
TOIT
PLAINTIFF
OBO
KADEPHI WILLIE MTSHEMLA
AND
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
KUBUSHl,J
[1]
On or about 1 March 2010, at or near the pavement of Vanguard Drive,
Cape Town, Kadephi Willie Mtshemla (Mr Mtshemla), who was
at that
time pushing a bicycle on the pavement of the roadway, was knocked
down by a motor vehicle. Neither the identity of the
owner nor that
of the driver has been established.
[2]
As a result of the injuries sustained by Mr Mtshemla when he was hit
by the said unidentified motor vehicle, a curator
ad
litem
had to be appointed to him to institute action on his behalf.
Consequently, Albertus Johannes Du Toit (the plaintiff), a practising
advocate, was duly appointed curator
ad litem
to Mr Mtshemla,
and, he is as such suing the Road Accident Fund (the Fund) for
damages in respect of bodily injuries sustained by
Mr Mtshemla during
the collision in question.
[3]
At the commencement of the hearing, I was informed by the plaintiff s
counsel that the Fund has tendered an offer of 80/20 (in
favour of
the plaintiff) on merits and that the plaintiff has accepted the
offer. The Fund’s counsel applied to separate
quantum
from
merits so as to facilitate the procurement of joint minutes. I
refused to grant the application and ordered that the matter
be
proceeded with on
quantum.
What is in issue, which I have to
determine in respect of
quantum,
are two heads of damages,
namely, general damages and loss of income or earning capacity.
[4]
The plaintiff prepared a court bundle which was presented at the
hearing. The court bundle consisted of the following documents:
1. Bundle “A” - The
Plaintiff s Expert Reports
2. Bundle “B” -
Documentation Bundle
[5]
In terms of the minutes of the pre-trial conference, the parties
reached the following agreement pertaining to the documents
contained
in the bundles of documents prepared for purposes of trial:
“
12.2.1 Documents and copies of
documents and extracts from documents or copies of documents will,
without further proof, serve as
evidence of what they purport to be
without requiring formal proof in the normal cause of events;
12.2.2 The foregoing arrangement is
subject to the following:
12.2.2.1 Neither party admits the
correctness of the contents of any document as a result of the
aforementioned pragmatic arrangement;
12.2.2.2 Any party has the right, on
at least 4 days’ notice prior to the trial date, to require
that any specific document
or extract from any specific document be
proven formally.”
[6]
The plaintiff presented the oral evidence of the following expert
witnesses: Dr Johan Reid (Dr Reid) a neurologist; Dr Hannes
Swart (Dr
Swart) an industrial psychologist and Mr Alex Munro (Mr Munro) an
actuary. Besides the oral evidence, the plaintiff also
presented the
medico-legal reports of the three expert witnesses. There were other
expert medico-legal reports in the court bundle
which were not
admitted into evidence.
[7]
The Fund did not tender any oral evidence nor did it present any of
its medico-legal reports into evidence.
[8]
All the documents and/or medico-legal reports that were not admitted
into evidence do not constitute real evidence but are amongst
the
documents which could be referred to as being what they purport to
be. Extracts from some of the reports were relied upon in
the expert
medico-legal reports which were admitted into evidence.
[9]
At the end of the trial I requested counsel to provide written
submissions for their closing arguments. The submissions were
duly
submitted and I am thankful to counsel for the extensive manner they
dealt with the issues in their respective submissions.
THE
INJURIES
[10]
The extent of the injuries and their
sequelae
are evident from
the oral evidence presented by Dr Reid and his medico-legal report.
The injuries include a
severe
closed head injury, with skull and facial fractures, as well as
injuries to his left optic nerve. A left clavicle fracture
associated
with a brachial plexus injury and left femur fracture, a de-gloving
laceration of the face and a traumatic amputation
of his left leg
below the knee.
[11]
Mr Mtshemla is, as a result of the injuries, left with a number of
functional impairments, a number of physical deficits and
the
important number one would be orthopaedic, in the sense that he has a
permanent amputation of his left lower leg, below the
knee. He is now
fitted with a prosthesis and that would be his biggest single
residual functional impairment.
[12]
He sustained a severe/moderately severe head injury, as a consequence
of which he suffered a cognitive change, linguistic change,
behavioural and personality change. He is as a result left with a
neurocognitive compromise which together with the amputated left
lower leg provide for the bulk of his functional impairment and the
major reason why he is unemployable and cannot compete in the
open
labour market and is permanently impaired.
[13]
The injuries as enunciated by Dr Reid are not in dispute. Although
the Fund’s counsel, in his submission, contends that
the
plaintiff failed to prove the nature of the orthopaedic injuries
sustained by Mr Mtshemla and their
sequelae,
in that, neither
Mr Mtshemla nor the orthopaedic surgeon who treated him, were called
to establish the orthopaedic injuries and
their
sequelae;
and,
because neither side admitted the other’s reports, the Fund’s
counsel, however, concedes that the Fund’s
approach of the
matter was on the footing that Mr Mtshemla’s left leg was
amputated below the knee.
LOSS
OF FUTURE EARNINGS/EARNING CAPACITY
[14]
It is common cause that Mr Mtshemla is unemployable in the open
labour market due to the combination of his cognitive compromise
and
the amputation. What is in issue is the amount which should be
awarded.
[15]
It is also not in dispute that at the time of the collision, Mr
Mtshemla was employed as an unskilled general worker earning
a salary
of R650
per
week. The parties are, however, at odds as to Mr
Mtshemla’s future career path had the collision not occurred.
According
to the plaintiff’s counsel, Mr Mtshemla would have
progressed to become a truck driver, whereas, the Fund’s
counsel
contends that Mr Mtshemla would have remained an unskilled
general worker.
[16]
The plaintiff’s submission that Mr Mtshemla would have
progressed to become a truck driver is based on the opinion of
Dr
Swart, an industrial psychologist called to give evidence in support
of Mr Mtshemla’s claim for loss of earnings. Dr Swart’s
postulation that Mr Mtshemla would have progressed to become a truck
driver is based on the collateral information he received
from Mr
Steyl, Mr Mtshemla’s employer. According to Dr Swart, he was
told by Mr Steyl that he (Mr Steyl) would have assisted
Mr Mtshemla
to procure a driver’s licence and employed him as a truck
driver in his business. Based on this information,
Dr Swart testified
that qualifying as a truck driver would have qualified Mr Mtshemla as
a semi-skilled employee, within a range
of salaries indicated in a
document extrapolated from the Quantum Yearbook 2015 by Dr RJ Koch,
which was admitted into evidence
as exhibit “A”. In terms
of the said salary scales, as set out in exhibit “A”, Mr
Mtshemla would have reached
his ceiling of R136 000
per annum
in
three years, that is, in 2015. From there he would have received
linear inflation earnings until retirement age. It is upon this
postulation that the final actuarial calculations are based.
[17]
The Fund’s counsel objected to the admission of Dr Swart’s
evidence relating to the collateral information he received
from Mr
Steyl on the basis that it was hearsay evidence. In order to expedite
the matter I ruled that the evidence be admitted
provisionally and
that I will make a final ruling at the end of the matter. Besides the
hearsay issue, the Fund’s counsel
objected to the admission of
Dr Swart’s evidence as a whole on the basis that for an expert
witness he was evasive and too
defensive of his opinion and that his
conclusions were not based on established/admitted facts.
[18]
I shall therefore deal with these objections before I go into the
merits of the case.
Hearsay
Evidence
[19]
It is common cause that the information on which Dr Swart relies on
in his opinion that but for the collision, Mr Mtshemla
would have
progressed to become a truck driver, was provided to him by Mr Steyl.
That this information is hearsay is also not in
dispute. The
plaintiff's plea is that this collateral evidence should be accepted
despite the hearsay nature thereof.
[20]
The relevant part of the Law of Evidence Amendment Act 45 of 1988 (as
amended) (“the Act”) which pertains to the
hearsay
evidence reads:
“
(1) Subject to the provisions
of any other law, hearsay evidence shall not be admitted as evidence
at criminal or civil proceedings,
unless –
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself or herself testifies at such proceedings;
or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is
of the opinion that such evidence should be admitted in the interests
of justice.”
[21]
The submission by the plaintiff’s counsel is that I should
allow the hearsay evidence for the following reasons:
1.
The nature of the proceedings
- the Patient (Mr Mtshemla) sustained catastrophic injuries and these
are proceedings to recover damages by the plaintiff on his
behalf;
2.
The nature of the evidence
-
the evidence is from Mr Mtshemla’s employer at the time of the
accident and relates to Mr Mtshemla’s employment situation
and
prospects. It serves as collateral substantiation for the expert
opinion expressed by Dr H Swart;
3.
The purpose for which the
evidence is tendered
- the evidence is tendered as substantiation
for the expert opinion of Dr H Swart;
4.
The probative value of the
evidence
- the evidence was collected by an experienced expert
witness on two occasions over a period of approximately two years.
The said
expert confirmed under oath to the court that he was happy
with the validity of the said evidence which he also testified,
accorded
with the expert opinion and experience;
5.
The reason why the evidence was
not given by the person on whose credibility the probative value of
such evidence depends
- the employer resides in Cape Town and was
not brought to Pretoria to testify at the hearing because the
defendant did not deliver
an expert report by an industrial
psychologist, thereby creating the expectation that the evidence
would not be disputed;
6.
Any prejudice to a party which admission of such evidence may
entail
- it is respectfully submitted the defendant cannot be
heard to say the admission would be to its prejudice as its counsel
was
able to cross examine Dr H Swart at length,
inter alia,
in
respect of this hearsay evidence;
7.
Any other factor
- it is respectfully submitted that the fact
that Mr Mtshemla sustained catastrophic injuries and these are
proceedings to recover
damages by the plaintiff on his behalf, is a
very relevant factor to be considered.
[22]
In support
of these
submissions
the
plaintiff’s
counsel
relied on the judgments in
Makhathini
v Road Accident
Fund
2002
(1)
SA 511
(SCA), wherein
it
was
held that such
statements
are
examined
to
see whether
they
fall
within
the
statutory
definition of
hearsay
evidence. If
they
do
they
are
then
measured
against
the
requirements
set
out
in
s
3
(1)
(c)
(i)
to
(iv)
of
the Act
and
are
admitted
as
they
pass muster;
[1]
and in
Giesecke
&
Devrient
Southern
Africa
(Pty)
Ltd
v
Minister
of
Safety
and
Security
2012
(2)
SA
137
(SCA)
wherein it
was
held
that
the
Act
introduced
an
alternative, highly
flexible
standard for the admission
of
hearsay
evidence
in
the light
of
the interests
of
justice. Courts
must
rule on
the
admissibility
of
tendered hearsay evidence having regard
to
the collective effect of
all
the
considerations
set
out in paras
(i)
to
(iv), and any
other
factor
that
should
be taken
into
account in
the interests of
justice.
[2]
[23]
The Fund’s counsel on the other hand, submits that the factors
in s 3 (1)
(c)
(i) to (vii) of the Act, should not be
considered in isolation as they are interrelated and they overlap and
on that basis contents
that it is in the interests of justice that
this hearsay evidence be excluded on the following reasons:
1.
The nature of the proceedings
-
these proceedings are civil proceedings, adversarial in nature, where
each party must adduce the necessary evidence to support
its case;
2.
The nature of the evidence
sought to be introduced
- relying in the
Makhathini-
judgment
above the evidence sought to be introduced can be
characterised as assertions of the plaintiff’s erstwhile
employer
about (apparently, at least on the evidence, undiscussed)
future career path of Mr Mtshemla.
3.
The purpose for which the
evidence is tendered
- the evidence seeks to establish a basis
for the quantification of Mr Mtshemla’s post morbid earnings
scenario. It is thus
a central and decisive issue on this aspect;
4.
The probative value of the
evidence
- relying on the
Makhathini-
judgment above at
page 523 para 32, the reliability of this information is highly
questionable:
a. Dr Swart conceded that the employer
is affectionate towards Mr Mtshemla and may want to help him in
advancing his case;
b. Dr Swart’s interview with Mr
Mtshemla did not even touch upon this.
c. Mr Mtshemla was not called to
testify, despite it becoming clear during cross examination that the
issue is disputed. The omission
was never explained.
5.
It lacks a factual basis
-
Mr Mtshemla appears to have been oblivious to it. No evidence was
tendered as to how far he is with his preparatory steps e.g.
obtaining a learner’s licence. Other than Mr Steyl’s
assertion, it has not been established whether Mr Mtshemla is
actually driving, and if so for how long - Dr Swart conceded as much.
6.
The reason why the evidence is
not given by the person upon whose credibility the probative value of
such evidence depends
- no reason was given in evidence or at
least from the bar why Mr Steyl was not called. Clearly he was
reachable. Dr Swart testified
that he spoke to him “last
night”. Mr Steyl’s evidence being decisive on this aspect
of loss, every attempt should
have been made to bring him to testify.
Not even a postponement was attempted.
7.
Prejudice to the party against
whom the evidence is sought to be adduced
- the inability to
cross examine Mr Steyl on the cornerstone of this aspect of Mr
Mtshemla’s case escalates the degree of
prejudice against the
Fund. This evidence seeks to lay down the foundation for high
calculation that may result in Mr Mtshemla
being compensated more for
what is fair and due to him. The prejudice affects the funds
available to other victims who also require
fair compensation.
8.
Any other factor
- the
following factors are relevant:
a. The plaintiff always knew that his
reports have not been admitted and should have prepared fully;
b. The plaintiff opposed an
application to separate merits from
quantum,
this would have
given him ample time to subpoena Mr Steyl;
c. No application was made for
postponement; and
d. There is no indication that an
attempt was made to procure the evidence by affidavit.
[24]
Dr Swart’s oral evidence is that on 21 November 2013 he
contacted Mr Mtshemla’s employer, Steyl’s Transport
in
Cape Town, and talked to Mr Steyl, the person who signed the
employer’s certificate on behalf of Mr Mtshemla. Mr Steyl
confirmed that Mr Mtshemla worked for him and that he, Mr Mtshemla,
was one of his best workers. He was a good worker and punctual,
was
mechanically knowledgeable -he could take out a motor vehicle gear
box and put it back again, he was an all-rounder who could
be used
everywhere in the business. Mr Steyl told Dr Swart that, Mr Mtshemla
could have progressed to a code 10 driver and would
by 2013 have
earned a salary of R1400 to R1500
per
week in November 2013
values. A code 10 driver can drive a 3 ton lorry and higher but not
exceeding 10 tons. Dr Swart talked to
Mr Steyl again the night before
the day of the hearing and Mr Steyl confirmed what he told Dr Swart
on 21 November 2013.
[25]
According to Dr Swart, people progress to higher positions if able to
do multiple tasks, otherwise they remain unskilled which
means that
they do the same work all the time. Mr Mtshemla is punctual, an
excellent all-rounder and trustworthy, he would therefore
have
progressed higher. Code 10 would have been the licence he would
obtain in order to drive a lorry. He was already driving a
tipper
within his employer’s premises without a licence and he would
be able to drive any truck.
[26]
I am of the view that the collateral evidence in issue should, in the
interests of justice, not be admitted into evidence as
will appear
from the reasons stated hereunder.
[27]
Firstly, the evidence lacks factual basis.
[28]
In order
to test
the
opinion
of
experts,
the
facts
upon
which
they
draw
their conclusions must
be
considered.
If
the
facts
are
incorrect,
which
is
part
of
the judicial function to determine
then
a fortiori
the
opinion is
flawed.
[3]
[29]
There is no evidence before me which indicates that Mr Mtshemla
aspired to follow the career path of a driver. Dr Swart’s
evidence does not show that Mr Mtshemla was intending to improve his
career along that path. As
per
Dr Swart’s report, when
he consulted with Mr Mtshemla, Mr Mtshemla told him that his work at
Steyl Transport entailed loading
rubble and taking the rubbish to the
dump he never informed him that he intend to become a driver. Of
importance is that other
than Mr Steyl’s assertion that Mr
Mtshemla was a driver, there is no evidence that Dr Swart established
this fact with Mr
Mtshemla. It is also not apparent from the evidence
that if Mr Mtshemla was indeed driving, for how long he was so
driving. There
is no evidence that indicates how far he was, if at
all, with any preparatory steps to becoming a driver e.g. obtaining a
learner
driver’s licence. Mr Mtshemla did not testify, as such,
the fact that he is a driver and aspired to improve his career along
that path, as alleged by Mr Steyl, remains unproven and should be
taken as speculation and at best should be characterised as
assertions of Mr Steyl about future career path of Mr Mtshemla which
were not even discussed with or communicated to Mr Mtshemla.
[30]
There being no factual underpinning for Dr Swart’s opinion in
this regard, the collateral evidence ought to be rejected.
[31]
Secondly, the probative value of the collateral evidence is also
suspect. The submissions raised by the Fund’s counsel
as to the
reliability of this information is to me correct. It is indeed so
that Dr Swart conceded that Mr Steyl was affectionate
towards Mr
Mtshemla and may have wanted to help him in advancing his case.
Besides that, Dr Swart himself was not a satisfactory
expert witness
as he was not objective. He was evasive and too defensive when
answering questions put to him. He gave long winded
answers in trying
to make up a case for the plaintiff.
[32]
The examples of Dr Swart’s lack of objectivity, which I agree
with, are succinctly set out in the submissions by the
Fund’s
counsel as follows:
1. When asked to postulate a scenario
“thinking away” the truck driver scenario, he refused to
accept the possibility
that Mr Mtshemla could have remained a general
worker for the rest of his life;
2. When asked whether the client is
“functionally literate”, he embarked on a long discourse,
not answering the question;
3. When asked a direct question on Mr
Mtshemla’s chances of obtaining a driver’s licence within
the period he estimated,
the answer was, yet again a long discourse
on the process of driving, not the prerequisite of a learner’s
licence; and
4. When challenged about the fact that
Mr Mtshemla’s alleged truck driver aspirations were never
articulated to him indicates
that they were never there, he became
extremely defensive.
[33]
I conclude therefore that Mr Mtshemla was an unskilled general worker
and would have continued as such until retirement. His
damages for
loss of income should be calculated based on his employment as an
unskilled general worker.
Calculations
[34]
There are two actuarial reports presented in this instance. Both
actuarial reports are compiled by Mr Alex Munro the actuary
who was
called in to testify on behalf of the plaintiff. The first actuarial
report is dated 27 November 2013 and was compiled
by Mr Munro on the
basis of the report of Dr Swart (the industrial psychologist). This
actuarial report projects Mr Mtshemla’s
career path as that of
an unskilled general labourer. This report was not admitted into
evidence.
[35]
The second actuarial report which was handed in court as exhibit “B”
quantifies the oral evidence of Dr Swart relating
to Mr Mtshemla’s
career path as a driver. This actuarial report seeks to replace the
initial actuarial report of Mr Munro.
Dr Swart, during his testimony,
as already indicated, provided me with a document admitted into
evidence as exhibit “A”
which was extrapolated from the
Quantum Yearbook 2015 by Dr RJ Koch. The document indicated a number
of skills with parameters
for specific jobs. According to this
document a driver with a code 10 driver’s licence would earn a
salary of between R53
500 to R294 000
per
annum.
Mr
Mtshemla, as Dr Swart testified, would have been licenced in 2012 and
reached his peak in 2015. He testified that the salary
which Mr
Mtshemla would have earned in 2012 was R1450 and would have
progressed to R136 000
per
year in 2015. The plaintiff’s
claim is based on the calculations contained in exhibit “B”.
[36]
The submission by the Fund’s counsel is that Mr Mtshemla’s
post morbid career path should be considered as that
of his
pre-morbid, that is, an unskilled general worker along the earning
level referred to by Dr Swart in his report. This would,
according to
counsel, imply that:
1. For Past Loss - Mr Munro’s
past loss calculations should remain as they are in Annexure “B”,
that is, at R331
900 (before contingencies).
2. For Future Loss - post morbid
career path to be the same as pre-morbid, that is, an unskilled
general worker.
[37]
I have already rejected the evidence of Dr Swart which seeks to
project Mr Mtshemla’s career path as that of a driver
and ruled
that Mr Mtshemla’s loss of income should be calculated based on
his employment as an unskilled general labourer.
In that sense, I
have to reject the evidence of Mr Munro to the extent that it
projects Mr Mtshemla’s career path as that
of a driver together
with the calculations relating thereto as it is based on the flawed
opinion of Dr Swart.
[38]
To my mind
quantum
for this head of damages should be
determined based on Mr Mtshemla’s career path as an unskilled
general labourer for both
past and future loss. All other actuarial
calculations are to be in accordance with the actuarial assessment of
Mr Munro contained
in his report dated 13 May 2014.
[39]
It is my view that normal contingencies should apply, that is, 5% for
uninjured past loss and, taking into account Mr Mtshemla’s
age,
32 at time of collision and 37 at time of calculations, 12,5% for
uninjured future loss should be applied. A recalculation
of the
damages should therefore be produced and presented to this court for
final verification within two weeks of this order.
GENERAL DAMAGES
[40]
The parties are agreed that Mr Mtshemla should be compensated for
general damages. The parties are at odds as to the amount
of damages
which should be awarded to Mr Mtshemla.
[41]
The plaintiff’s submission is that Mr Mtshemla’s general
damages are worth at least R2 000 000. In support of this
contention,
the plaintiff’s counsel referred me to the following judgments:
1.
Bonnesse and
Another
v
Road
Accident
Fund and Others
(1505/2009)
[2014] ZAECPEHC7 (20 February 2014) in which general damages of R2
500 000 were awarded. It was conceded on behalf of
the plaintiff that
the injuries sustained in this judgment were more severe than those
of Mr Mtshemla in this instance.
2.
Zarrabi
v The Road
Accident
Fund
2006 (584) QOD 231 (T) in which general
damages of R800 000 were awarded to a 30 year old female trainee
medical specialist. The
plaintiff in this judgment sustained the
following injuries: a severe diffuse axonal brain injury with severe
neurophysical, neurocognitive
and neuropsychiatric consequences;
multiple facial lacerations; fractured nose, contusions of the chest
with bilateral contusions
of the lungs; rapture of the liver;
contusion of the kidneys with haematuria; closed fracture of the
right
humerus;
open fracture of the right radius and ulna;
deep laceration of the right elbow; open fracture of the right
radius; fracture of
the left patella; laceration of the left knee;
injuries to ligaments of the right knee; and multiple contusions and
abrasions of
both legs. The plaintiff suffered from intellectual
impairment; personality change; dysarthria; spasticity of the right
side; loss
of depth perception; loss of vision of the right visual
field and lack of drive; subtle speech, language and communication
problems;
difficulties with executive functions, sustained
concentration, memory psychomotor speed and emotional control.
Pre-accident the
plaintiff was a high achieving scholar, medical
graduate and practising doctor. As a result of the cognitive and
physical
seque/ae
of her injuries, plaintiff would be unable
to be employed as a medical doctor or specialist. At best plaintiff
would manage some
form of employment in a sympathetic environment on
a flexible or part time voluntary basis. General damages of R800 000
awarded
in 2006 are now worth R1 419 000.
3.
Seme v Road Accident Fund
2008
(5A4) QOD 33 (D) an amount of R800 000 was awarded to a 36 years old
male AIDS facilitator/counsellor. The plaintiff sustained
a severe
head and brain injury, fractures of the maxilla with multiple loss of
teeth, bilateral pulmonary contusion, fractures
of the right tibia
and fibula, compound fracture of the left knee, multiple scalp and
facial lacerations, dislocation of the right
elbow as well as the
lumbar spine and pelvis. Plaintiff was found to be permanently
disabled, immobile and totally dependent on
his family for his
well-being with no reasonable prospects of being gainfully employed
in future. The plaintiff was HIV positive
and the court found that
his life expectancy should be reduced by 35%. General damages of R800
000 in 2008 are now worth R1 485
000.
[42]
The submission is that even though the plaintiff in the
Bonnesse-judgment sustained more severe injuries than Mr Mtshemla,
it
is contended that Mr Mtshemla’s injuries and the
sequelae
thereof are worse than those suffered by the plaintiffs in the
Zerrabi
and the
Seme
cases.
[43]
On the other hand, the Fund’s submission is that Mr Mtshemla
should be awarded an amount of between R750 000 and R1 000
000 in
respect of general damages. The Fund’s counsel raised a number
of difficulties with the evidential basis for injuries
and their
sequelae
sustained by Mr Mtshemla in the evidence of Dr Reid.
The Fund’s counsel conceded that the matter should be
approached on
the basis that Mr Mtshemla has an amputation below the
knee; some kind of injury; and facial injuries (including cheekbone)
resulting
in an asymmetric smile. In support of his submissions in
this regard, counsel relied on the judgment, in
Mnguni
v
Road
Accident
Fund 2010
(6E2) QOD 1 (GSJ)
wherein the plaintiff suffered severe brain injury with fractures of
the skull and facial bones; severe injuries
of the right lower leg
resulting in traumatic amputation; soft tissue injuries to the left
ankle and a whiplash injury of the spine;
significant
neuropsychological difficulties including headaches; impotence;
depression and change of personality. Orthopaedic injuries
causing
difficulty in walking with prosthesis due to painful stump; phantom
pain at the site of amputation; neck pain associated
with headaches;
and, shoulder, knee and ankle pain with significant impact upon
employment prospects.
[44]
According to the Fund’s counsel the telling differences between
the evidence led in
Mnguni-judgment
and the current matter is
on the nature and extent of the brain injury and loss of amenities of
life. The plaintiff in the
Mnguni-judgment
led evidence which
established that he had a permanent and irreversible diffuse neuronal
injury characterised by general atrophy
of his brain and in the
current matter there is no evidence. He also led evidence that showed
his loss as regards amenities of
life whereas in this instance no
evidence was led. In the
Mnguni-
judgment there was also
evidence of sexual dysfunction, the infestation of the stump by
maggots and the likelihood of a further
surgery to amputate the stump
above the knee which is not the case in this instance. The plaintiff
in the
Mnguni
-judgment was awarded R700 000 which translates
to R1 242 000 in current terms.
[45]
The
Bonesse
-judgment is entirely inapposite here because of
the following reasons: the evidence of experts, friends, teachers
etc. was actually
led; some of the reports were admitted; the
plaintiff would never bear children, continue with school etc.; the
plaintiff was an
excellent student and a leader; six years after the
collision the plaintiff was the same total invalid as previously
reported;
she remained with a severe post traumatic dementia,
severely compromised speech and vision. She is a central tetraplegic
with flaccid
leg paralysis; total bladder and bowel incontinence and
dysaethetic pain.
[46]
It is trite that there
is
no hard and fast
rule of
general application
requiring
a
trial
court or a court of appeal to consider
past
awards.
This
is
so because it would be difficult to find
a
case on all fours with
the
one
being
heard.
Awards
in decided cases might be of some use
only for guidance. A court may also derive assistance from the
general pattern of awards.
[4]
[47]
As is the case in this instance, the judgments I have been referred
to are not on all fours with the case before me. The injuries
sustained by the plaintiffs in those judgments, the treatment
administered and the consequences of such injuries are not similar
to
those in the present case and as such the amount of compensation
would not necessarily be the same. I am also mindful of the
fact that
the injuries sustained by the plaintiffs in those cases are more
severe than in the current case. I am however satisfied
that the
general patterns in those cases are indicative of what courts would
normally award in such circumstances.
[48]
The Supreme Court of Appeal has repeatedly stated that in cases in
which the question
of
general
damages
comprising pain
and
suffering, disfigurement, permanent
disability and loss of amenities of life arises a trial court in
considering
all the
facts and
circumstances
of
a
case
has
a
wide discretion to
award
what it considers to be
fair
and adequate compensation to the injured party.
[5]
[49]
In this instance, there is no evidence tendered which indicates the
pain which Mr Mtshemla suffered after the collision and
which he
continues to suffer, if any. There is also no evidence as to the
amenities of life that he has lost. I however, have to
assume in Mr
Mtshemla’s favour that he suffered pain immediately after the
collision and that he suffered pain after the
amputation and whilst
recuperating from the various injuries which are common cause. I also
have to assume in his favour that he
has lost amenities of life. As
an amputee and because of the cognitive abnormality there must be
some amenities which he enjoyed
before the collision which he does no
longer enjoy. There is also evidence that he has been disfigured - he
has an asymmetrical
scarred face which includes the eyelids and
pupils.
[50]
The award of general damages is by no means an easy task. There is no
basic formula for the assessment of this kind of damages.
To arrive
at a fair and just amount both objective and subjective factors may
have to be taken into account.
The
facts of each particular case must be looked at as a whole.
[6]
[51]
There is no doubt that Mr Mtshemla has suffered severe injuries and
he must be fairly compensated. I am therefore of the view
that when
considering the injuries sustained by Mr Mtshemla and the general
trend followed by courts in awarding damages, it would
be fair and
reasonable if he is awarded an amount of R1 400 000.
[52]
I therefore make the following order:
1.
The plaintiff succeeds in his claim for 80% of his damages.
2.
The damages for loss of earnings should be determined based on Mr
Mtshemla’s career path as an unskilled general labourer
for
both past and future loss.
3.
All other actuarial calculations in respect of the damages for loss
of earnings are to be in accordance with the actuarial assessments
contained in the actuarial report dated 13 May 2014.
4.
Contingencies applicable are 5% for the uninjured past loss and 12.5%
for uninjured future loss.
5.
A recalculation of the damages for loss of earnings to be produced
and presented to this court for final verification within
two weeks
of this order.
6.
General damages are granted at an amount of R1 400 000 (One Million
Four Hundred Thousand Rand).
7.
The defendant is ordered to pay the costs of action including all the
qualifying costs.
__________________________
E. M. KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES
HEARD
ON THE
: 14 MAY 2015
DATE OF
JUDGMENT
: 05 AUGUST 2015
PLAINTIFF’S
COUNSEL
: ADV. A. LAUBSCHER
PLAINTIFF’S
ATTORNEY
: SAVAGE JOOSTE & ADAMS INC
DEFENDANT’S
COUNSEL
: W. LUSENGA
DEFENDANT’S
ATTORNEY
: MARIVATE ATTORNEY
[1]
See
page 518 to 521
[2]
See
page 145 to 148
[3]
See
Ndlovu v RAF
2014 (1) SA 415
(GSJ)
para
35.
[4]
See
RAF v Marunga
[2003]
2 All SA 148
(SCA)
paras
24 and 25.
[5]
See
Protea
Insurance
Company
v
Lamb
1971
(1) SA 530
{A)
at
534H
-535A.
[6]
See
Minister
of Safety
&
Security
v Seymour
2006
(6) SA 320
(SCA) at para 17.