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[2014] ZAGPPHC 424
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Scheffer v Road Accident Fund (56098/2010) [2014] ZAGPPHC 424 (11 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
56098/2010
DATE:
11 JUNE 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
SCHEFFER,
NADIA
...................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
MATOJANE,
J
[1]
On 18 December 2008 the Plaintiff was involved in a motor vehicle
collision. She instituted action against the Defendant
on 30
September 2010. On 7 June 2012 the matter came before Van Der
Merwe DJP and by agreement between the parties he gave
judgment and
ordered the Defendant to pay the Plaintiff’s damages as proved
or agreed. The quantum portion was postponed
sine
die
with costs in
the cause. Costs were also awarded to the Plaintiff. The
Plaintiff and the Defendant could not agree
on the quantum of damages
suffered by the Plaintiff. The case before me was therefore
only on the question of damages.
[2]
At the trial on quantum of damages, no oral evidence was led before
me on behalf of the parties. The Defendant admitted the
factual
allegations and opinions contained in the expert notices of the
Plaintiff filed in terms of Rule 36(9)b. The parties
further
agreed on the expertise of the expert witnesses and that it will not
have to be proved. The Defendant indicated that
it would rely
on its own expert reports, the facts and opinions that are common
cause in the joint-minutes and any reports of the
Plaintiff that have
been admitted. The contents of the various reports are accepted
as evidence before court.
[3]
It is common cause that the collision occurred on the 18
th
December 2008, Plaintiff then 27 years was sideswiped by a car while
she was riding on a scooter. She lost consciousness and had
a seizure
at the accident scene she had left her employ at The Wedding
Warehouse where she was working as a graphic designer
two days before
the accident. Due to the accident, she was admitted to hospital
for 2 days; thereafter she recuperated for
2 weeks. She secured
work approximately a month after the accident. She is currently
employed as a freelance journalist.
[4]
Plaintiff claimed for past medical expenses an amount of R2 593.50,
she was treated in a government hospital and this amount
is awarded.
[5]
The Plaintiff also claims an amount of R200 000.00 for future medical
expenses. The Defendant, however, undertook to furnish
the
Plaintiff with an undertaking in terms of section 17(4)(a) of the
Road Accident Fund Act to cover future hospital and medical
expenses
which Plaintiff may incur.
[6]
The claim for general damages is disputed. The Defendant
rejected the serious injury assessment report (RAF 4) completed
by
Prof Fritz in terms of regulation 3 of the regulations promulgated
under the Road Accident Fund Act, Act 56 of 1996. The
court set
the rejection aside on the 1 August 2012. Before me, the Defendant
again rejected the Plaintiff’s Serious Injury
Assessment Report
on the ground that there was no objective evidence that the injury
suffered by the Plaintiff has resulted in
serious long term
impairment or that the injury constitutes permanent serious
disfigurement. The difficulty with this argument
is that
Defendant has accepted the reports of Prof Fritz and Dr Birrell that
Plaintiff’s orthopaedic injuries and her mental
disability as
outlined by Dr Mazabow in his report, qualifies as a serious injury
under the Narrative Test. In any event,
the order of Hiemstra J
setting aside the objection still stands.
[7]
It was not contested that as a consequence of the collision the
Plaintiff sustained the following injuries (a) A head injury
with
general brain oedema, a subarachnoidal haemorrhage but no structural
brain injury (b) A seizure on the scene (c) Multiple
rib fractures of
the left posterior to ribs 5, 6, 7, 8 and 9 (d) neck injury. Prior
to the accident, the Plaintiff had spinal
muscular atrophy, which
causes progressive muscular weakness and wasting. As result of
this spinal muscular atrophy she will
not be able to undertake any
career, which required physical activity or climbing stairs. Any
sedentary occupation she undertakes
will depend on her intellect not
being damaged and her mood and emotions being intact. Now as a
result of the cognitive damage
caused by the brain injury and also
the precipitation of deterioration of the spinal muscular atrophy,
she has been put at a disadvantage.
According to Dr DA Birrell,
an orthopaedic surgeon, her muscular atrophy does not limit her from
normal everyday functions
but she does not have strong musculature
and her posture is not that good due to this problem which increases
her symptoms. He
estimate her overall loss of work capacity as a
result of the accident to be around 8% or 9%. Prof Vivian Fritz, a
neurologist
reports that plaintiff sustained a diffuse concussive
brain injury. She had a subarachnoid haemorrhage and cerebral oedema
on scan
and a fairly prolonged post traumatic amnesia. She had fairly
severe dizziness for six months after the accident and this has since
become worse.
[8]
According to Dr M Mazabow, a clinical and Neuro Psychologist the
plaintiff sustained a significant head injury which has given
rise to
a deterioration in her neurocognitive functions in comparison with
her pre-accident estimated level of functioning. Her
ability to
tolerate frustration within the workplace has been undermined by the
presence of brain injury, which will render her
more prone to ‘work
stress’ and to interpersonal conflict. Ms BL Purchase, an
educational psychologist reports
that the accident has aggravated her
pre-existing condition and resulted in deterioration in many of her
cognitive functions.
[9]
The speech and language therapists in their joint minute agree about
the extent of Plaintiff’s communication difficulties,
they
report that despite intervention, residual difficulties will remain
and this will continue to have a negative impact on her
ability to
cope with all activities of daily living. She will experience
on-going difficulties in the workplace as a result
of her language
and communication difficulties. They agree that she will have
difficulties with social communication at home
and at work.
[10]
In their joint minute the psychiatrists agree that Plaintiff has
sustained a head injury that requires psychiatric treatment.
Prof.
Vorster is of opinion that Plaintiff has made a good recovery from
the head injury and that there do not seem to be
any on-going
sequelae as a result of the head injury, his opinion is that her
depressive illness is largely due to her spinal condition
and there
are no long lasting limitations on her employment potential. Dr
Shevel on the other hand is of the opinion that
Plaintiff is
suffering from mild post –traumatic Organic Brain Syndrome that
will adversely affect plaintiff’s long
term occupational
potential.
[11]
Both counsel referred me to various awards made by various courts
over a period of time where victims of motor vehicle accidents
sustained similar injuries, some less serious and others more
serious. Each case however, is determined on its own facts.
I
have considered the Plaintiff’s case in the light of the
differing expert opinions; I have also had regard to cases
referred
to by counsel, which I need not quote in this judgment. I have
also considered the fact that as a person with spinal
muscular
atrophy she was already naturally limited in terms of the work that
she was able to do and that the accident has aggravated
her
pre-existing condition. I am of the view that Plaintiff should
be awarded an amount of R500 000.00 for general damages
as she is
already compensated in terms of future loss of earnings.
[12]
At the pre-trial conference held on 7 March 2014 the Defendant
requested that the Plaintiff’s actuary should prepare
a report
based on the joint minute between the parties’ respective
Industrial Psychologists and the Defendant confirmed that
it would
abide by the calculations. The actuary, Mr G W Whittacker, has
prepared such actuarial calculations. The only
difference
between the parties is the contingency to be applied. In their
joint minute the industrial psychologists agreed
that a higher
pre-accident contingency deduction should be applied due to
Plaintiff’s vulnerability as an employee as a result
of
pre-existing spinal muscular atrophy and indicated depression. They
also agreed, correctly in my view, that as a result
of the
significant brain injury she sustained as well as the orthopaedic
injuries she sustained during the collision, a higher
post-accident
contingency deduction should be applied.
[13]
I agree with counsel for the Plaintiff that having regard to all the
factors to be taken into account in determining the appropriate
pre-accident and post- accident contingency deductions, the
pre-accident 20% and post-accident 50% deductions should be applied
under the circumstances. The actuary has prepared four
different scenarios with different contingencies applied; I agree
with the parties that the average of the four figures should be
used. The plaintiff is therefore entitled to an award of
damages in respect of past and future loss of earnings and/or earning
capacity as calculated by Mr Whittacker, based on the joint
minute by
the parties’ industrial psychologists in the total sum of R2
081 658.00.
[14]
The total amount to be awarded to the plaintiff as damages is R2 588
882.50 calculated as follows:
Past
hospital, medical and related expenses:
R2 593.50
Past
and future loss of earnings:
Past
loss:
R4 631.00
Future
loss:
R2
081 658.00
R2 086 289.00
General
damages:
R 500 000____
R2
588 882.50
[15]
In their joint minute Dr O Guy and Ms I Hattingh, (Speech Language
and Audiologists) agree that given the communication deficits
evident
during their assessment of the Plaintiff, the funds awarded would
need to be protected. To this end, counsel for
the Plaintiff
prepared a draft order that made provision for the establishment of a
trust that will have as its main objective
to control and administer
the capital amount on behalf of the Plaintiff. The Defendant
did not have any objection to the
draft order being made an order of
court.
[16]
In the result, I give judgment in favour of the Plaintiff in terms of
the draft order which is attached marked “X”
_____________________________
KE MATOJANE J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
NORTH GAUTENG
HIGH COURT, PRETORIA