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
>>
2013
>>
[2013] ZAGPPHC 283
|
|
Johan Hendrik Adriaan Saunders NO obo Tshepo Michael Nkopane v Road Accident Fund (69330/2011) [2013] ZAGPPHC 283 (3 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
CASE
NO: 69330/2011
DATE:03/10/2013
In
the matter between:
JOHAN
HENDRIK ADRIAAN SAUNDERS N.O.
obo
TSHEPO MICHAEL
NKOPANE
.................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...................................................................................
Defendant
JUDGMENT
TEFFO.
J:
[1]
The claimant, Mr Tshepo Michael Nkopane born on 20 January 1982,
sustained multiple bodily injuries in a motor vehicle collision
which
occurred on 4 July 2008 at or near Pnuthadichaba, Klerksdorp, when a
motor vehicle with registration letters and numbers
FNP 508 NW there
and then driven by Martiens Lenaka (the insured vehicle) collided
with a motor vehicle with registration letters
and numbers CGB 339 NW
there and then driven by Alfred Leshage and in which latter vehicle
the claimant was a passenger.
[2]
The injuries sustained by the claimant in the aforesaid collision are
summarised as follows: a head injury with a skull fracture
and
intracranial bleeding, multiple scalp and facial lacerations which
were sutured, a deep laceration on both sides of the head
(bleeding),
right cheek, right upper eyelid, right side in front of nose,
abrasions forehead, cerebral contusion, a thin subdural
haematoma and
subarachnoid haemorrhage. He was rendered unconscious at impact and
arrived at hospital with a Glasgow Coma Scale
(GCS) of 5/15. Later in
the day his GCS was recorded at 8/15 after he extubated himself. He
had a prolonged period of confusion
that lasted for about two (2)
months. He has multiple facial scars. He has a temporal lobe
post-traumatic gliosis and a 10% chance
of developing post-traumatic
epilepsy. There were also facial bone fractures.
[3]
The plaintiff in his capacity as curator ad litem has instituted a
claim for damages against the defendant arising out of the
said
collision on behalf of Mr Nkopane which damages are formulated as
follows:
3.1
Future medical expenses: R4 000 000,00
3.2
Estimated loss of earnings: R2 600 000,00
3.3
Generai damages for pain and
suffering,
loss of amenities of life, disablement, etc: R1 000 000,00
Total:
R4 000 000,00
[4]
I am informed that the parties reached agreement on the following:
4.1
The defendant admits full liability for the proven or agreed damages
suffered by the plaintiff.
4.2
The defendant has tendered a section 17(4)(a) of Act 56 of 1996
undertaking in settlement of the claim for estimated future
hospital,
medical and ancillary expenses which the plaintiff has accepted.
4.3
The parties are agreed that the plaintiff’s past loss of
earnings amount to R44 863,00.
4.4
Accordingly the heads of damages that remain for determination are
claims for future loss of earnings or loss of earning capacity
and
general damages.
[5]
Medico-legal reports by the following experts have been filed on
behalf of the plaintiff and admitted by consent into the record
as
evidence:
2.4
Dr B A Okoli - Neurosurgeon;
2.5
Mrs C Motake - Occupational Therapist;
2.6
Mrs N Mngomezulu - Clinical Psychologist;
2.7
Dr M Malaka - Industrial Psychologist.
[6]
The joint minutes by the following experts were admitted into
evidence by consent:
6.1
Clinical psychologists - Mrs N Mngomezulu and Ms E Tromp.
[7]
Actuarial calculations by Robert J Koch instructed by the plaintiff
were also admitted into evidence by consent.
[8]
The parties agreed to argue the case for the disputed heads of
damages as a stated case on the basis of the admitted facts,
medico-legal evidence and opinions. Accordingly no viva voce evidence
was led by both parties.
[9]
It is common cause that when the claimant was involved in an accident
he was 26 years old. He was at the time sitting with a
friend (who
died outright as a result of the accident) at the back of a bakkie
when the bakkie had a head on collision with the
insured vehicle. He
sustained serious injuries and was treated at Tshepong Hospital from
4 July 2008 to 16 July 2008 and transferred
to a hospital that was
near his home for outpatient treatment. Prior to the accident he was
not formally employed. Me did piece
jobs whenever available. After
the accident he was employed as a diesel attendant at Econo Diesel.
[10]
According to Dr Okoli the claimant suffered a severe traumatic head
injury with a focal temporal lobe contusion. He has
neuropsychological
sequelae characterised by insensitivity or
indifference to the feeling of other people, poor judgment in his
relationship with
people and his general behaviour and forgetfulness.
Dr Okoli is of the view that based on the severity of the injuries
and the
neuropsychological problems, the claimant will require a
neurocognitive evaluation by a clinical psychologist. He opined that
the
claimant’s behavioural problems may interfere with his
usual lifestyle and relationships with people. He also opined that
with his neuropsychological sequelae it was unlikely that the
claimant would rise beyond his present level of job functioning.
[11]
It was reported to Mrs Mngomezulu that the claimant has significant
personality changes post-accident. It was reported that
he behaves
strangely, has a tendency to offend people by saying inappropriate
things and makes silly and offensive jokes. That
he is emotionally
labile. The claimant’s sister expressed concern that he is
taken advantage of and has poor judgment ability.
It was also
reported that the claimant becomes anxious when a car travels in high
speed and he often tells the driver to slow down.
[12]
Based on the tests she conducted Mrs Mngomezulu concluded that the
claimant displays neurocognitive deficits which are commensurate
with
a significant head injury. Further that the claimant appears to have
neuropsychiatric sequelae resulting from the head injury.
She is of
the view that the claimant appears to lack insight with regard to the
full scale of his cognitive difficulties and behavioural
problems. To
support her conclusion Mrs Mngomezulu stated that a significant
change in the claimant’s personality is evidenced
by his lack
of awareness of social boundaries, inappropriate behaviour and
insensitivity to others’ feelings. In her opinion
this
behaviour is likely to have significant ramification as it can give
rise to interpersonal relationship difficulties at work
and probably
lead to dismissal. She also mentioned that the accident has left the
claimant in an emotionally vulnerable position
in that the results of
the Beck Depression Inventory indicates the presence of depressive
symptoms and the fact that he is reported
to experience anxiety
symptoms when travelling in a car.
[13]
Mrs Mngomezulu also mentioned that it was reported to her that the
claimant takes time off when he is not feeling well. According
to
her, should the plaintiff change his job he may not get a sympathetic
employer. She is of the view that the claimant’s
employment
prospects in the open labour market would be compromised and he would
also experience difficulties competing with his
peers in the open
labour market.
[14]
In their joint minutes Mrs Mngomezulu and Ms E Tromp agree that the
claimant is at risk of developing severe psychological
and
neuropsychological difficulties. They also agree that the claimant
has suffered significant loss of future employment opportunities.
According to Mrs Mngomezulu the claimant’s behavioural
difficulties may interfere with his usual lifestyle and relationship
with people. She concluded that with his neuropsychological sequelae
it is unlikely that he would rise beyond his present level
of job
functioning. She deferred to industrial psychological opinion with
regard to quantifying the vocational effects of the
neuropsychological status.
[15]
Mrs C Motake, the Occupational Therapist, mentions in her report that
on formal testing, the claimant’s index scores
reflect marked
difficulty with general visual perception, motor reduced visual
perception and visual motor integration. She mentioned
that the
claimant reported to her that his vision is poor and he struggles to
read and write down the litres of diesel pumped from
the tanks at
work. Furthermore that he has been penalised on two occasions at work
for writing down the incorrect number of litres
pumped and has had to
refund the shortfall on a monthly basis. It appeared from her report
that the claimant has been in his current
job since October 2008 and
over the years, he has not been promoted. This tallies with the
opinion of Dr Okoli and Mrs Mngomezulu
that with his
neuropsychological sequelae, it will be unlikely that the plaintiff
would rise beyond his present level of job functioning.
She opined
that given the fact that the claimant makes mistakes at work even
though he is familiar with his job, he may be at risk
of losing his
job. Further that when he starts a new job he is iikeiy to battie to
iearn new routines and may not be kept on. She
is of the view that
the claimant would lose jobs should there be problems with his work,
colleagues or superiors and even in low
level work, he would battle
to sustain employment.
[16]
According to Dr M Malaka (Industrial Psychologist) pre-accident the
claimant would have stayed healthy and remained self-employed
as a
gardener. At the time of the accident he was self-employed as a
gardener. His view is that over time the claimant would have
found
suitable alternative employment in the event that an opportunity
presented. Further that in the event that this employment
ceased for
any other reason, he could have found alternative employment at a
comparative level. According to him the claimant could
have then been
expected to work until he reached normal retirement. The claimant
reached Grade 11 and did not acquire any form
of skills. His work
record suggests that he had spells of unemployment, he resorted to
the informal sector where he functioned
as a gardener for private
households. Dr Malaka is of the view that the claimant could have
continued to function in this role
until he found suitable
employment. He opined that assuming that the claimant would have
remained employed in the role of gardener,
he could have been
expected to continue earning at the lower quartile in the unskilled
level. Thereafter upon finding suitable
employment he could have
initially earned in the unskilled level and steadily progress to
positions at the low semi-skilled level.
Progression from the
unskilled ievel to the low semi-skilled level would have been at
interval periods of 5 to 7 years. Thereafter
his earnings could have
increased to those at the semi-skilled level. According to him heaitn
and other factors life permitting,
the claimant would have been in a
position to work until age of retirement at 60 to 65 years of age,
depending on the policy of
the organisation.
[17]
He further opined that based on medical expert findings post-accident
the claimant is no longer suited to physically and cognitively
demanding jobs. While the claimant had been able to find alternative
employment at the unskilled level, his view is that the claimant
is
unlikely to progress beyond this job level. Information from the
claimant’s employer is that the claimant’s work
performance was satisfactory and that he was still efficient in his
duties. He finds this contrary to the plaintiff’s reports
that
he occasionally takes off from work when he does not feel good. He
got information from the claimant’s supervisor that
his
promotional prospects are nil. His view is that following the
accident, the claimant’s physical capacity is significantly
curtailed and his impaired neuropsychological status will adversely
affect his employment prospects if he were to lose his current
employment.
[18]
According to Dr Malaka physically the claimant has been found to have
limited walking and standing tolerance and manifest personality
changes. He opined that in a working situation the claimant, will not
work with any degree of efficiency and will struggle with
physical
demanding jobs. Furthermore in the event that he lost this
employment, he is likely to struggle to find suitable employment.
His
employability is according to him definitely diminished. His view is
that the claimant’s injuries are such that he can
be expected
to struggle with work that is more cognitively challenging, as it is
the case in his current work role as a diesel
pump attendant. He is
of the view that should
the
claimant lose his current work role, he will struggle to find
alternative suitable employment due to his neurocognitive problems.
He concluded that the accident has had a negative effect on the
claimant’s cognitive functioning and possibly his physical
capacity. Furthermore his view is that the claimant is unlikely to
actualise his potential for work compatible to his high school
education. Whilst it is accepted that he retains some capacity for
unskilled work, the claimant may not sustain his employment
for long
due to his personal difficulties and reduced physical endurance.
According to him the claimant’s employability is
at risk and
should he lose his current employment because of his cognitive and
physical limitations, he will be rendered less competitive
for the
open labour market.
FUTURE
LOSS OF EARNINGS OR LOSS OF EARNING CAPACITY
[19]
The defendant accepted the actuarial calculation prepared by Robert J
Koch for the plaintiff, which calculation left the determination
of
contingency deductions to the discretion of the court or for the
parties to negotiate. This calculation is based on the opinions
of
the plaintiff’s medical experts which the defendant has
accepted. No opposing medical reports were filed by the defendant
except for the joint minutes of the Clinical Psychologists Mrs
Mngomezulu and Ms Tromp. There was no difference of opinion in the
two experts’ medico-legal reports, in any event Mrs
Mngomezuiu’s opinion taiiied with the opinions of other experts
of the plaintiff and made more sense and I found it to be realistic
given the severity of the injuries sustained by the plaintiff.
It is
clear from the reports by experts that the plaintiff has a residual
earning capacity.
[20]
Based on the above calculation the parties agreed that but for the
accident the claimant would have earned a future income
of R642 753
and having regard to the accident he should have earned a future
income of R512 430. The parties further agreed that
from the but for
the accident figure a contingency deduction of 15% should be made.
The only issue for determination is what contingency
deduction is to
be applied to the having regard to the accident scenario.
[21]
Counsel for the plaintiff submitted that 100% general contingency
deductions should be applied while the defendant’s
counsel
argued about a deduction of between 60 to 70%. Counsel for the
defendant submitted that a 100% contingency deduction is
highly
unreasonable given the fact that even if the plaintiff can be faced
with challenges of losing his current job because he
once worked as a
gardener, he can still do that job. I understand the argument that
100% deduction is highly unreasonable but it
is my view that based on
the experts’ opinion even if the plaintiff was to lose his
current job and fall back to his initial
work as a gardener his
physical, neurocognitive and psychological limitations will still
affect him negatively in his job. He will
definitely have
interpersonal relationship problems with his clients and they will
also take advantage of him. Obviously he will
also not be having the
physical strength and capacity to do the work as before. It is clear
from the experts’ reports that
he will not have the physical
ability to do that work given
the
injuries. He will therefore not last for long as a gardener. Dr
Malaka’s view is that the claimant will not work with
any
degree of efficiency in a working situation and he will struggle with
physically demanding jobs. His further opinion is that
the claimant’s
injuries are such that he can be expected to struggle with work that
is more cognitively challenging. The
argument by the defendant’s
counsel is not supported by any medical evidence. It is therefore
bound to fail.
[22]
In Southern Insurance Association v Bailey NO
1984 (1) SA 98
(A) the
following remark was made:
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, 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 ‘contingency’
or ‘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 economical conditions. The amount of any
discount may vary, depending upon
the circumstances of the case. The
rate of 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.”
After
considering all the experts’ opinion and having noted that the
defendant accepted all the plaintiff’s reports
I am of the view
that the most appropriate and fair deduction that should be applied
in the having regard to the accident scenario
is 85%. Applying the
85% deduction to the having regard to the accident scenario income
leaves a balance of R76 865,85.
Income
having regard to the accident: R512 439,00
Less
80% contingency: R435 573,15
R
76 865,85
Income
but for the accident: R642 753,00
Less
15% contingency: R 96 412,95
R546
340,05
[23]
The award to be made for future loss of income or loss of earning
capacity is as follows:
Income
but for the accident:R546 340,05
Less
income having regard to the accident: R 76 865,85
Total
loss of earning capacity: R469 474,20
[24]
As I have already highlighted supra, the plaintiff’s past loss
of earnings therefore amounts to R44 863,00.
GENERAL
DAMAGES
[25]
Counsel for the plaintiff submitted that an amount of R900 000,00
will fairly compensate the plaintiff for the injuries sustained
in
the motor vehicle accident. A number of cases were referred to. The
defendant disagreed and argued that an amount of R650 000,00
is
appropriate compensation to the plaintiff’s injuries. I have
considered the cases referred to by the parties and having
taken into
account the severity of the sequelae of the head injury, the other
injuries sustained, the fact that there is a 10%
chance of the
plaintiff developing epilepsy, his age and the pain that the
plaintiff suffers which persists since the accident
I am of the view
that an amount of R750 000,00 is appropriate in the circumstances.
[26]
The award to be made to the plaintiff is calculated as follows:
26.1
Future medical and hospital expenses An undertaking in terms
of
section 17(4)(a) of Act 56 of 1996
26.2
Past loss of earnings: R 44 863,00
26.3
Future loss of earnings/loss of
earning
capacity: R 469 474,20
26.4
General damages:R 750 000,00
Total:R1
264 337,20
[27]
Accordingly I grant judgment in favour of the plaintiff against the
defendant as follows:
27.1
The defendant is ordered to pay the capital amount of R1 264 337,20
to the plaintiff’s attorneys of record (Chueu Attorneys)
on or
before 15 November 2013, who will hold the said funds in trust for
the trust to be created in terms of para 27.4 of this
order.
The
banking details of the said attorneys are as follows:
Account
holder:Chueu Attorneys
Bank:
ABSA
Branch:
Lephalale
Account
Number: …..
Type
of account Trust account
Reference
No Chueu/MVA/MB/9175
27.2
Should the defendant fail to pay the said amount to the plaintiff as
ordered above, the defendant will be liable to pay interest
to the
plaintiff on the said amount at a rate of 15,5% per annum, calculated
from the date of this order to date of payment thereof.
27.3
27.3.1
The defendant is ordered to, on or before 30 November 2013, provide
the plaintiff with a written undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for 100% of the costs of
the future accommodation of Michael Tshepo Nkopane (“the
claimant’’) in a hospital
or nursing home, or treatment
of or rendering of a service to him or supplying of goods to him,
arising out of the injuries sustained
by him in the motor vehicle
collision that occurred on 4 July 2008, in terms of which undertaking
the defendant is obliged to compensate
the claimant in respect of the
said costs, after such costs have been incurred and upon proof
thereof;
27.3.2
The aforesaid undertaking will include the costs of furnishing of
security to the Master of the High Court, by the trustee
of the trust
to be created in terms of para 27.4 of this order.
27.4
The plaintiff’s attorneys of record (Chueu Attorneys) shall
attend to the creation of an inter vivos trust in order to
protect
the awarded funds for the exclusive benefit of the claimant.
27.5
The Trustee of the trust to be created as referred to in para 27.4
above will be Mr Gert Kruger (identity number: 540102 5004
081) of
ABSA Trust.
27.6
Any trustee shall furnish security to the satisfaction of the Master
of the High Court.
27.7.1
The plaintiff’s attorneys (Chueu Attorneys) shall keep the
monies received as referred to in para 27.1 of this order
in an
interest bearing trust account for the benefit of the claimant and
shall pay over such monies to the trustee of the trust
to be created
in terms of para 27.4 of this order, immediately once the Master of
the High Court has issued the trustee with the
necessary letters of
authority.
27.7.2
The plaintiff’s abovementioned attorneys are, however,
authorised to pay all disbursements reasonably incurred in respect
of
this action on behalf of the plaintiff from the abovementioned funds
held in trust and shall submit to the trustee to be appointed,
a
complete schedule of such disbursements paid as well as proof of
payment thereof.
27.7.3
The plaintiff’s abovementioned attorneys are further authorised
to pay from the abovementioned funds held in trust,
the costs of
provision of security to the Master of the High Court by the
trustee(s), where applicable, of the trust to be created,
which costs
in turn must be refunded by the defendant to the plaintiff in terms
of para 27.3.1 of this order.
27.7.4
The plaintiff’s abovementioned attorneys shall submit an
attorney and client bill of costs to the said trustee to be
appointed, who shall authorise and make payment thereof. In the event
of a dispute in respect of the said bill of costs, same will
be
submitted for taxation.
27.8
The defendant is ordered to pay the costs in respect of the creation
and future administration of the said trust to be created
in order to
manage and administer the compensation payable to the plaintiff, as
referred to in para 27.1 of this order, which costs
will inter alia
include the fees of the trustee, all disbursements of the trustee,
the costs of the annual audit of the trust and
the investment costs
in respect of trust assets and capital from time to time, upon such
costs having been incurred, which costs
of administration shall be
limited to the amount of costs and fees chargeable by curators bonis
in terms of Act 66 of 1965, as
amended.
27.9
The defendant is ordered to pay the plaintiff’s taxed or agreed
party and party costs to the trustee of the trust to
be created,
which costs shall, inter alia, include:
27.9.1
the costs consequent upon the obtaining of all the medico-legal
reports of the plaintiff’s experts, namely:
27.9.1.1
C Motake (occupational therapist);
27.9.1.2
N Mngomezulu (neuropsychologist);
27.9.1.3
Dr M Malaka (industrial psychologist);
27.9.1.4
Robert Koch (actuaries);
27.9.1.5
Dr M S Fayman (plastic & reconstructive surgeon);
27.9.1.6
Dr B A Okoli (neurosurgeon);
27.9.2
the reasonable and necessary preparation, qualifying and reservation
fees, which will, inter alia, include the fees in respect
of meetings
between the plaintiff’s attorneys and the abovementioned
experts (if any) of all the plaintiff’s abovementioned
experts,
excluding the expert mentioned in paragraph 27.9.1.4 above.
27.9.3
the costs of appointment of the curator ad litem,
27.9.4
the reasonable fees of the curator ad litem.
27.9.5
the trial costs of 26 February 2013.
27.9.6
The fees of senior junior counsel.
27.9.7
The costs attendant upon the obtaining of payment of the
amounts
and undertaking referred to in this order.
M
J TEFFO
JUDGE
OF THE NORTH GAUTENG HIGH COURT, PRETORIA
COUNSEL
FOR PLAINTIFF: M FOURIE
INSTRUCTED
BY:CHUEU ATTORNEYS
COUNSEL
FOR DEFENDANT: MOJAMABU
INSTRUCTED
BY: A P LEDWABA INC