About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 232
|
|
T.K.M v Passenger Rail Agency of South Africa (41002/2011) [2014] ZAGPPHC 232 (24 April 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 41002/2011
DATE:
24 APRIL 2014
In
the matter between:
T.
K.
M.
Plaintiff
And
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA
Defendant
JUDGMENT
PRETORIUS J,
[1]
The plaintiff claims from the defendant due
to injuries he had sustained when he was a passenger in a train on 8
April 2011.
[2]
The plaintiff was [.....] years old at the
time of the incident. He was travelling to the Wonderboom Mall by
trian, when the train
in which he was a passenger, was hit by a train
from behind near Akasia Railway Station.
[3]
The defendant conceded the merits of the
matter prior to the commencement of the trial. All aspects of damages
were in issue. During
the trial future medical expenses were settled
at an amount of R160 000.00. General damages were settled at an
amount of R280 000.00.
[4]
This court has to decide the issue of
future loss of earnings and earning capacity.
[5]
The plaintiff's evidence was that he had
been standing in the train, felt a collision, fell onto the floor of
the train and loss
consciousness. He woke up after he had been
removed from the train. According to him he was injured on his elbow
and head. He was
admitted to Odi Hospital for three weeks, after
which he was discharged.
[6]
At present he has an arm that gets sore if
he carries heavy objects. He is also more forgetful than prior to the
incident. His arm
is deformed, a so-called gunstock deformity. The
plaintiff testified that he feels hurt, ashamed of his deformity and
demoralized.
[7]
He cannot proceed doing garden work to earn
money with his deformed arm. The accident caused him to fail grade 10
more than once.
He was then advised to attend a trade school. Prior
to the incident he intended becoming a soldier, but due to the
physical requirements
he will not be able to do so. Although he
expressed a wish to become an electrical engineer, he realised that
with his scholastic
record it would be impossible. He is currently
not employed. The plaintiff is presently [......] years old.
[8]
The plaintiff reiterated under
cross-examination that he had injured his arm, his leg as well as
head during the collision. The
result of all of this was that he
missed classes at school as he could not earn transport money by
doing gardening work, to enable
him to attend school.
[9]
The combined minutes by the orthopaedic
surgeons, Dr Kumbirai and Theron, set out that:
"Both
doctors agree that the major clinical findings were at 10° varus
deformity (gunstock deformity) of the left elbow
with a diminished
carrying angle;
Both
doctors agree that although the x-rays of the left elbow are reported
as normal, however there is deformity in the long axis
of the left
humerus, thus causing the gunstock deformity of the left elbow."
[10]
Both occupational therapists, Succers Moagi
and Sagwati Sebapu agreed in a joint minute that the plaintiff has
suffered a loss of
amenities and noted in a joint minute:
"We
agree that Mr M. is best suited for sedentary, light to medium
occupations.
We
agree that he will have difficulties coping with any work outside of
these parameters (i.e. heavy work). His employment prospects
have
thus been reduced. It's expected that he would be less competitive
than his counterparts during periods of increased symptomology.
"
(Court’s emphasis)
[11]
Ms Kheswa, the industrial psychologist,
gave evidence that the plaintiff would probably have completed matric
and even raised the
possibility that he could have obtained a post
matric qualification. She conceded that the plaintiff would not have
been able to
study engineering, both pre-morbid and post morbid. It
was more likely that he would have become a soldier. Both Ms Kheswa,
the
plaintiff's industrial psychologist and Ms du Toit, for the
defendant, testified that it would not be possible for the plaintiff
to pursue a career in the army as a soldier, even doing sedentary or
administrative work, as the physical and academic requirements
would
be too strenuous for him to qualify.
[12]
After evidence had been led the defendant
requested a postponement to obtain the evidence of an educational
psychologist. The postponement
was granted and the matter finally
heard on 31 March 2014 and 1 April 2014.
[13]
The version on which the defendant relied
in argument, that all the difficulties the plaintiff would have had
to pursue a career
in the army, is due to the fact that he is
dyslexic, was never put to any of these witnesses. This version was
not canvassed at
all, before Ms Matheus, the educational psychologist
for the defendant gave evidence. She made the diagnosis of dyslexia
based
on the plaintiff's scholastic performance and did not provide
any tests that had been done to confirm this diagnosis. She was not
prepared to make any concession that his poor performance may have
other causes. She further concluded that the plaintiff had lied
about
his scholastic achievements, but at the same time she ignored his
complaints of forgetfulness and memory problems. These
complaints
were not only articulated to her, but also to other experts.
[14]
She could give no explanation as to why the
plaintiff's scholastic performance deteriorated after the accident.
She conceded that
dyslexia is more evident in the early stages of
childhood, but failed to explain why it was not detected as profound
and evident
prior to the accident, whilst the plaintiff was in the
lower grades at school.
[15]
Ms Mattheus evidence did not deal with the
plaintiff's complaints and/or difficulties as articulated by him to
her:
"K. reported the
following difficulties relating to the accident in question:
-
Memory problems - he has difficulty to
remember what he has read and struggles when he has to write exams.
-
Difficulty concentrating - he is of the
opinion that his ability to concentrate is less after the accident.
-
Attention difficulties - he find it
difficult to concentrate for long times and becomes forgetful.
-
Misplacing or difficulty tracking things
- He has become more forgetful after the accident in question.
-
Mood swings - he goes from angry to sad
"quickly".
-
Headaches or head pains - this has
increased after the accident.
-
Weakness or loss of strength - he has
difficulty with is left arm.
-
Sleeping difficulties - he would often
awake during the night."
[16]
Mr
Nethavhani, a registered research psychologist, with special interest
in education and training, assessed the plaintiff together
with the
registered educational psychologist, Dr van Niekerk on behalf of the
plaintiff. He gave evidence in a straightforward,
reasonable manner,
making concessions where necessary.
[17]
The court accepts the reasoned conclusion
reached by Mr Nethavhani and Dr van Niekerk. The conclusion is:
"In
the present assessment Mr M. had few difficulties in different
intellectual but the imbalance in his results point to learning
problems. Mr M. still has an above average intellectual ability and
it is expected that he should be able to pass on a grade 12
or
equivalent level post-accident with specialised remedial help. Had he
not been involved in the motor vehicle accident he would
probably
have passed grade 12 level and even have studied further (highest IQ
marks 15, 13, 12). As far as his vocational prospects
are concerned I
defer to the expertise of the Industrial Psychologists.
In
general, it was found that Mr M. is a well-spoken sensitive
individual who was doing well at school. However being intelligent
and artistic person the accident affected his emotional life
negatively. He will need emotional therapy as well as vocational
guidance."
[18]
The court has considered all the
evidence and comes to the conclusion that both industrial
psychologists were correct when
they had agreed that the plaintiff
would most probably have entered an apprenticeship or followed a
trade.
[19]
The calculations by the plaintiff's and
defendant's actuaries differ vastly. The court is aware of the two
methods that can be used
to calculate the future loss of earnings as
set out in
Southern Insurance
Association v Bailey NO 1984 (1) 98 AD
.
I am not prepared to make "a blind plunge into the unknown",
but will rely on the mathematical calculations taking the
evidence
into consideration. Both industrial psychologists came to the
conclusion that the plaintiff is expected to be able to
perform
secondary light to medium physical work, as he is excluded from
strenuous work and would have to be more selective in future
job
choices. Therefor I will make use of the calculations by the actuary
for the plaintiff.
[20]
I agree that a higher contingency deduction
should apply due to the plaintiff's youth at the time of the
accident. The court will
apply the principles as set out in the
Bailey case
(supra)
at 116 G - 117 A where Nicholas JA held:
"
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable actuarial
calculations". He has "a large discretion to award what he
considers right". One of the elements in exercising that
discretion is the making of a discount for "contingencies"
or the "vicissitudes of life". These include
such matters
as the possibility that the plaintiff may in the result have less
than a "normal" expectation of life; and
that he may
experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or general
economic
conditions.
The
amount of any discount may vary, depending upon the circumstances of
the case. The rate of the discount cannot of course be
assessed on
any logical basis: the assessment must be largely arbitrary and must
depend upon the trial Judge's impression of the
case.
"
(Court’s emphasis)
[21]
The rate of contingencies cannot be
assessed on any logical basis, but must take the vicissitudes of life
into consideration. In
assessing damages for loss of earning capacity
the practice in the South African courts has generally been to take
inflation into
account and this practice was recognised by the
Supreme Court of Appeal in
Legal
Insurance Co Ltd v Botes
1963 (1) SA 608
AD
.
[22]
In considering contingencies the courts
have on numerous occasions used the sliding scale guideline, for
example 25% for a child,
20% for a youth and 10% in middle age as set
out in
Goodall v President Insurance
1978 (1) SA 389
(W) and Bailey's case
(supra)
.
In the present case the contingency deduction made in relation to the
plaintiff's future earnings, having regard to his disability,
should
be substantial and more than 20% for a youth.
[23]
In the present case the court is dealing
with a youth and there are not many improbabilities about the future
employment of the
plaintiff. I have considered all the evidence, the
arguments by counsel and the decisions I have been referred to. I
come to the
conclusion that a 30% contingency deduction will be fair
to both the plaintiff and defendant. The loss of earnings, as
calculated
by the plaintiff's actuary, George Schwalb, which I
accept, is R4 600 927.00, less a 30% contingency which amounts
to R3 220
648.00.
[24]
The amount which should thus be paid is
R160 000.00 for future medical expenses; R280 000.00 for
general damages and R3
220 648.00 for future loss of earnings.
[25]
It is ordered that:
1.
The Defendant must pay to the Plaintiff by
way of delictual damages the amount of R3 660 648.00 (Three
million six hundred
and sixty thousand six hundred and forty eight
rand) payable into the Plaintiff’s attorneys of record trust
account with
the following particulars, who shall retain these funds
of the Plaintiff in trust pending the creation of the Trust referred
to
in paragraph 2
infra
.
BANK
:
ACCOUNT HOLDER
:
ACCOUNT NUMBER
:
BRANCH
CODE
:
BRANCH
:
2.
The attorneys of the Plaintiff are ordered:
2.1 To
cause a trust (“the Trust”) to be established in
accordance with the Trust Property Control
Act no. 57 of 1988 to the
aforesaid funds of the Plaintiff;
2.2
To request the Master to appoint and issue Letters of Authority as
trustee of the Trust to MARTHA
MAGDALENA PRINSLOO as nominee of ABSA
TRUST LTD.
2.3
To pay over all the monies held in trust by them for the benefit of
the Plaintiff to the Trust
as soon as Letters of Authority have been
issued by the Master and the necessary Trust banking account has been
opened.
3.
The trust instrument contemplated in
paragraph 2.1 above shall make provision for the following:
3.1
That the Plaintiff is the sole beneficiary of the trust;
3.2
That the trustee is to provide security to the satisfaction of the
Master;
3.3
That the ownership of the trust property vests in the trustee of the
Trust in her capacity
as trustee;
3.4
Procedures to resolve any potential disputes, subject to the review
of any decision made
in accordance therewith by this Honourable
Court;
3.5
That the amendment of the trust instrument be subject to the leave of
this Honourable Court;
3.6
That the trust property and the administration thereof be subject to
an annual audit.
4.
The Defendant is ordered to pay:
4.1
The taxed or agreed party and party costs of the Plaintiff in this
action to date hereof,
on the High Court scale which costs shall
include:
4.1.1 Costs
of Senior Counsel;
4.1.2 Costs
of Junior Counsel.
4.2
The costs in connection with consultation of experts in preparation
for trial, fees in connection
with court attendance of experts,
medico legal reports as well as the reservation and qualifying fees
(if any) of the following
experts:
4.2.1 Dr P.T.
Kumbirai, Orthopaedic Surgeon;
4.2.2
Sagwati Sebapu, Occupational Therapist;
4.2.3
Moipone Khwesa, Industrial Psychologist;
4.2.4 Masindi
Nethavhani, Educational Psychologist.
4.3
The cost of obtaining actuarial calculations and the revised
calculations of George Schwalb,
Actuary.
4.4
Any costs previously reserved herein.
5.
In the event that the above costs are not settled by agreement
between the parties
the Plaintiff shall:
5.1
serve the notice of taxation on the Defendant’s attorneys of
record; and
5.2
allow the Defendant 7 court days to make payment of the taxed costs.
_____________________
Judge
C Pretorius
Case
number
: 41002/2011
Heard
on
: 31 March 2014
For
the Applicant / Plaintiff
: Adv Geach SC
Adv
Seima
Instructed
by
: Mashapa
For
the Defendant
:
Adv Musi
Instructed
by
: Makhubela
Date
of Judgment
: 24 April 2014