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[2013] ZAFSHC 7
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Machumolotsa v Road Accident Fund (2894/2010) [2013] ZAFSHC 7 (14 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2894/2010
In the matter between:-
K
K MACHUMOLOTSA
..............................................................
Plaintiff
and
ROAD ACCIDENT FUND
........................................................
Defendant
_____________________________________________________
HEARD ON:
17 OCTOBER 2012
_____________________________________________________
DELIVERED ON:
14 FEBRUARY 2013
_____________________________________________________
JUDGMENT
_____________________________________________________
MOCUMIE, J
[1] The plaintiff is Ms
Ann Keleabetsoe Machumolotsa, resident of Bloemanda in the Free State
who sues in her capacity as the duly
appointed curator
ad litem
of her son, Kagisho Kenneth Machumolotsa
(“Kagisho”)
who was born on 24 March 1992. Kagisho referred to by the medical
experts in all the reports as “
the patient”
is
currently residing with his mother. The defendant is the Road
Accident Fund (“RAF”), a statutory body established
in
terms of the
Road Accident Fund Act 56 of 1996
, with its head office
in Cape Town.
[2] The parties have by
consent dispensed with the adduction of oral evidence and have agreed
upon a written statement of facts
in the form of a special case for
the court’s adjudication in terms of the Rules of Courts. I set
out hereunder the stated
case as per the written statement somewhat
paraphrased.
2.1. The patient was
involved in a motor vehicle accident on 25 August 2007 wherein he
sustained
severe close head injury with intra ventricular
hemorrhage
as well as
mild cerebral swelling
being
present,
a cervical spine fracture involving the C2 vertebral
body and dens, a degloving scalp laceration to the fore head, arms
and thoraco-lumbar
spine.
2.2 The merits have been
conceded.
2.3. The
neurosurgeons
were agreed that there will be no further improvement in the
patient’s level of functioning. His ability to work will depend
on the extent of his intellectual fallout and the level of schooling
he will achieve.
The
orthopedic
surgeons
were agreed that the plaintiff was unable to do manual
work.
The
occupational
therapists
were agreed that the patient was restricted in the
type of work that he can do in future. He could do sedentary work
with accommodation
to seating, work station layout, work heights
and will have to apply back and neck care principles in the
workplace.
The
plastic and
reconstructive surgeon
was of the view that the inconspicuous 8
cm scar on the patient’s head ,on the dorsum of both the left
and the right
hand, and two pen-point scars above each ear where
the halo ring was affixed and can be revised.
The s
peech and
language pathologist
was of the view that the patient had
difficulties in the accessing of specific and non-specific words,
limitations in higher
order linguistic thinking skills, a
restricted auditory attention span and poor verbal selective
attention, difficulties in
mental tracking, deficit in the
processing of auditory verbal information displayed problems which
were consistent with the
traumatic brain injury. The problems
included the difficulties he was showing in his linguistic thinking
skills and the difficulties
of recalling of more detailed
information which made it possible that he would not finish Grade
12. Indeed he was unable to
finish Grade 12 after failing Grade 11
in 2011.
The
clinical
psychologists
were agreed that the patient had experienced a
global drop in mental efficiency with associated deficits in the
following areas:
fluctuations in mental focus resulting in
variability and inconsistency of performance, executive dysfunction
and poor self
monitoring, on verbal fluency and initiation,
inhibition, monitoring and self-correction ability and planning and
the use of
strategy. They were also of the view that substantial
improvements in the patient’s cognitive abilities over time
were
unlikely. They further agreed that they anticipated no further
improvement in the patient’s cognitive abilities.
2.9
The
industrial psychologists
were
agreed that in his uninjured state the patient would have
successfully completed Grade 12, whereafter he would have obtained
a
3 year tertiary qualification, whereafter he would have entered the
labour market at Paterson Job Grade C1/C2, after a period
of 5 to 7
years he would have progressed to Paterson Job Grade C3/C5, and after
3 to 5 years he would have progressed to Paterson
Job Grade D1/D2
where he would have progressed to Paterson Job Grade D1/D2 where he
would have remained until the retirement age
of 65 years. The
industrial psychologists were also agreed that 5 to 7 years after
entering the labour market
“
he will drift
in and out of employment between jobs and he might be forced to work
in the informal sector earning between R100,
00 and R120, 00 per
day.”
2.10 The
actuaries
,
Munro Consulting and Genesis Actuarial Solutions were agreed that the
actuarial report of Genesis Actuarial Solutions dated 16
October 2012
be accepted by the parties. That the uninjured future income amounts
to R8 287 290,00 and the injured future income
amounts to R2 500
712,00.
2.11 The actuaries did
not apply contingencies to the aforementioned uninjured and injured
income.
[3] This Court was asked
to determine the following.
The contingencies to be
applied to the uninjured income and the injured income; and
3.2 The amount to be
awarded for the general damages
[4] The court in
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA) introduced a
modernized process of thought when determining general damages. It
introduced the updating of values found in
general damages to
contemporary times and present values.
[5] It is common cause
that Kagisho endured a great deal of pain and suffering as a result
of the severity of the injuries and the
resultant impairment that
followed as set out and agreed upon by all experts.
[6] Mr de Vos, on behalf
of the plaintiff referred me to a number of cases for general
comparative purposes for his submission that
the Court should award
the plaintiff general damages of R500 000,00. The cases are
Ngomezulu, Zamokwakhe Comfort v the Road Accident Fund (SGH)
Unreported case No 04643/2010
; Monia Raupert and the Road
Accident Fund
Case no 2153/2008
; Alfred
Kgomo v Road
Accident Fund
;
Grobler v the Road Accident Fund
(GSJ) case
No 9231/2008, dated 29 April 2010;
Xolani Bovungana and the Road
Accident Fund
case No 2090/2007 and
LN v Minister of Safety
and Security and Another
2011(5) SA 512 (KZP).
[7] In
Ngomezulu v the
Road Accident Fund
, the plaintiff, a 25 year old clerk, was
struck down by a hit and run motor vehicle so much that he lost
consciousness and only
came to his senses in hospital after
treatment. He suffered injuries as follows: compound right tibia
fibula fractures; closed
chest injury with lung contusion; a 30cm
laceration on the right thigh; and a moderate head injury. The court
awarded damages to
the amount of R600 000,00. The court further
allowed contingencies of 40% on the injured income and 20% on the
uninjured income.
[8] In
Monia Raupert
and the RAF,
the plaintiff, a 20 year old photographer, was
knocked down by a motor vehicle in the parking area of the Board Walk
Casino, Port
Elizabeth. In the collision she sustained a serious head
injury. The court awarded general damages to the amount of R750
000,00
taking into account that the plaintiff was aware of what she
had lost and the unrelenting mental anguish associated therewith. The
court further allowed contingencies of 20% taking into account
following the uncertainty as to the precise nature of career the
plaintiff would have followed.
[9] In
Grobler and the
RAF
, the plaintiff, a 15 year old child sustained a head inury
with severe traumatic brain injury as well as a fractured tibia and
fibula. The child suffered from a permanent educational disability
and permanent employment disability with a permanent loss of
amenities of life. The court awarded general damages of R800 000,00.
[10] In
Xolani
Bovungana and the Road Accident Fund
, the plaintiff was struck by
the insured vehicle whilst walking on the pavement of a bridge. The
plaintiff sustained severe injuries
to both his legs and as result
was amputated above the knee on the left and below the knee on the
right side. The court awarded
damages to the amount of R750 000,00.
[11] In
Kgomo v RAF
,
the plaintiff, a 14 year old Grade 7 pupil at the time of the
collision in 2006, was knocked down by the insured vehicle whilst
jogging along the road. He sustained severe head injury with
progressive extra-dural hemorrhage resulting in compression of the
brain. The court granted damages of R800 000,00 which is R840 000,00
in present values.
[12] In
LN v Minister
of Safety and Security and Another
the plaintiff was 30 years of
age, HIV-positive, feeling well and with good energy levels. He had
been taking Anti-Retro Viral
(ARV) drugs, understood the need to
continue taking his medication, and was expected to live for 30 to 40
more years. The court
accepted the evidence of the expert witness
that his hiv-positive status would not have a negative effect on his
life expectancy
and future loss of earnings. The court applied a
contingency of 23% to the plaintiff’s future loss of earnings
based on the
normal contingencies and an additional 8% by taking the
possibility of reduced life expectancy due to his HIV-positive status
into
account.
[13] Mr de Vos submitted
further that, the
sequelae
of the injuries suffered by the
patient in this matter were similar to those suffered by the
plaintiff in
Grobler
and
Kgomo
above where the courts
awarded R800 000,00 for general damages. In the circumstances, so he
argued, R500 000,00 which the plaintiff
was claiming was low and
reasonable.
[14] Ms Smith for the
defendant contended for a lesser award of R400 000,00 in respect of
general damages. In support of this contention
she relied on a number
of judgments delivered prior to the SCA judgment in
RAF
v
Marunga
above where the modern tendency to award higher quantum
of damages was taken into account in making of an award for general
damages.
In my view, the awards made in the cases relied upon by
counsel for the defendant particularly
Wessels, Botha
and
Combrink
have been overtaken by the modern tendency of
awarding higher amounts.
[15] She however also
relied on
Makupula v Road Accident Fund
2011(6) B4 Q 48EC
where the court having considered what it called the application of
both the conservative and modern approaches
without undue emphasis of
one approach above the other, awarded R300 000,00 to the plaintiff
for general damages. It is however
important to note that the basis
of this award was that there was no clear medical evidence available
to assist the court in the
assessment of compensation for an injured
arm and thus such compensation was addressed together with other
injuries that were clearly
identified by the experts.
[16] In addition Ms Smith
argued that this Court should apply a further contingency of 30% on
the basis that there was no possibility
that the patient who was born
and bred in Bloemfontein in the Free State, would leave Bloemfontein
in the future to work for a
large corporation outside the province.
[17] Contingency
deductions allow for the possibility that the plaintiff may have less
than normal expectations of life and that
(s)he may experience
periods of unemployment by reason of incapacity due to illness,
accident or labour unrest or even general
economic conditions (see
Van Der Pllats v Southern African Mutual Fire & General
Insurance Co
1980(3) SA 105 (A) at 114-115). The underlying
rationale is that contingencies allow for general hazards of life
such as periods
of general unemployment, possible loss or earning due
to illness, savings in relation to travel to and from work now that
the accident
has somewhat incapacitated or impaired him as well as
the risk of future retrenchment. The general vicissitudes of life are
taken
into consideration when contingencies are considered. Both
favorable and adverse contingencies must be taken into account.
[18] According to Dr
Robert Koch, a well known and respected actuary in his book, Quantum,
2012
when assessing damages
for loss of earning or support it is usual for a deduction to be
made for general contingencies for which
no explicit allowance has
been made in the actuarial calculation.
The deduction is the
prerogative of the court;
General contingencies
cover a wide range of considerations which vary from case to case
and may include taxation, early death,
saved travel costs, loss of
employment, promotion prospects, divorce, etc. The following
guidelines are can be helpful:
(a) Sliding scale: ½
% per year to retirement age .i.e. 25% for a child, 20% for a youth
and 10% in middle age (See
Goodall v President Insurance
1978
(1) SA 389(W)
; for child claims (See
Southern Insurance
Association v Bailey
1984 (1) SA 98
(A);
(b) The RAF normally
agrees to deductions of 5% for past loss and 15% for future loss, the
so called “normal contingencies.”
(c) A deduction for
general contingencies is sometimes appropriate for future medical and
other expenses (See
Van der Merwe v Premier of Mpumalanga
2005
5 QOD 13-15(T); and
(d) Every year of a
person’s remaining working life should represent a 0, 5%
contingency deduction.
[19] Mr de Vos, on behalf
of the plaintiff, relied on the following cases to make his point
that this Court should allow contingencies
of 25%:
Southern
Insurance Association v Bailey
1984(1)SA 98(A);
Xolani
Bovungana and the Road Accident Fund
Case No 2090/2007 and
Kgomo
v Road Accident Fund (SGH) Unreported Case No 25846/10.
[20] He submitted that in
Southern Insurance Association v Bailey
the court applied a
contingency of 15% where the plaintiff was a 15 year old child with
injuries similar to the patient’s
in this case. In
Xolani
Bovungana,
the court allowed contingencies of 5% injured and 15%
on uninjured income. In
Kgomo
where a 14 year old Grade 7
pupil sustained severe head injury with progressive extra-dural
hemorrhage resulting in compression
of the brain the court allowed
contingencies of 20%.
[21] He further submitted
that although the courts generally allow contingencies of 5% and 15%,
in this case he urged this Court
to make a discount for “
the
uninjured income”
not more than 25%. In respect of the “
injured income”
, he proposed a contingency deduction of
40% taking into account that all experts were agreed that the
plaintiff will drift in and
out of the labour market.
[22] Ms Smith on behalf
of the defendant submitted that in the circumstances of this matter a
discount of 25% was reasonable. However
such discount should be in
respect of both uninjured and injured income without any distinction.
She further urged this Court to
consider an additional discount of
30% on the basis that there was no possibility that the patient will
in the future leave the
Free State to look for employment outside the
province. She referred to a number of cases as well to substantiate
her submissions.
[23] The plaintiff relied
heavily on the case of
LN v Minister of Safety and Security and
Another
for general damages similar to those of the plaintiff in
this case. The defendant on the other hand pressed on the case of
Makupula v Road Accident Fund
in which the court awarded
damages of R300 000,00. She contended that R400 000,00 is the high
watermark in awards for general damages
in this category of injuries
in South Africa.
[24] As is always the
case, the fact that Kagisho was still 15 years at the time of the
collision and obviously unemployed makes
it more difficult to predict
with precision what he would have been had the accident not have
happened. As is trite, courts can
only make calculated estimation
based on different aspects including the plaintiff’s social
economic background, his or her
level of intelligence as seen from
his or her educational achievements and any other relevant factor
that may be of assistance
to come to a just decision.
[25] Kagisho comes from a
middle class family. His father is a teacher at the local school. His
mother, his appointed curator ad
litem, is employed as a cleaner. His
elder sister is studying BCom Human Resources at the University of
Free State. He progressed
well at school and wanted to become a
chartered accountant. Due to his poor performance after the accident
he struggled with school
work, his esteem went low; he developed
anxiety attacks, lack of concentration and other related
sequelae
and consequently had to settle to do a Diploma in Office Management
at a local Technical College.
[26] In my view there is
no reason to believe that Kagisho would not have become a chartered
accountant judging from his family
background of an educated family.
Despite his parents not coming from a family of chartered accounts,
there is nothing that indicates
that he would not have become one but
for this accident.
[27] I have carefully
considered the plaintiff’s case, Kagisho’s injuries and
the
sequelae
emanating therefrom and am of the view that
although his probable career progression having regard to the
accident has been compromised,
it is not the worst case scenario. It
is clear from the reports that although he has been deprived of his
dreams of becoming a
chartered accountant, he has already made plans
to study for a Diploma in Office Management at a local Technicon to
make himself
employable. The likelihood of epilepsy as predicted by
the neurologists means he will need the supervision of his mother and
someone
else later in his life in his mother’s absence. But it
is not as dire as seen from other comparable cases in which the
plaintiffs
relied entirely on others to feed, clothe and nurse them
for the rest of their lives. With proper and close monitoring and
patience
from those around him he can lead a normal life. However a
fair and reasonable sum can help to ameliorate his unfortunate
position.
[28] I have considered
all the cases I was referred to as well as others such as
Torres v
RAF
2010(6A4) QOD 1 (GSJ);
Van der Mescht v RAF
2010 JDR
231 (GSJ) and
Megalane v RAF
[2007] 3 All SA 531
(W). I am
however of the view that the case of
Kgomo v RAF
referred to
by both the plaintiff and the defendant is more appropriate and in
line with the facts of this case and of real assistance
albeit
not on all fours. The plaintiff is very reasonable in not arguing for
R800 000,00. My assessment of general damages in all the
circumstances of this case is R500 000,00. The amount is not only
fair but is reasonable to both parties.
[29] In so far as
contingencies are concerned I am of the view that the appropriate
contingency deduction for both the uninjured
and injured income would
be 25%. A contingency deduction of 25% is reasonable in the
circumstances and in line with the normal
general contingencies as
Kagisho has recovered somewhat except the deficits referred to which
are not as serious as in other similar
cases. The factures he had
sustained had healed; the deficits such as neck pain or expected pain
in the back due to sitting can
be addressed through conventional
treatment including physiotherapy not operations. The scar on his
scalp can be covered up without
any complications.
[30] The huge and unequal
difference between the percentages on the contingencies to be applied
as argued by Mr de Vos, 25% on uninjured
income and 40% on injured
income, is out of the ordinary and not justified by the facts of this
case. However, I cannot agree with
Ms Smith on the additional 30% to
be deducted. None of the industrial psychologists mentioned the
possibility that the plaintiff
would not have been employed in the
corporate sector or that he would be confined to Bloemfontein for the
rest of his life despite
the lack of opportunities of employment
here. Nor is there any reason to take into account what Ms Smith
refers to as “
the positive situation in light of the
principle of transformation”
. Statistics in South Africa
indicate that all youth in South Africa in 2012 and years to come,
regardless of their background and
whether they are graduates or
under-graduates face the same bleak future of high unemployment
across the country. In any event
these submissions are
unsubstantiated and have no basis at all.
[31] Applying some
calculations at a 25% contingency deduction on the uninjured income
amount given of R8 287 290,00 amount payable
to the plaintiff could
come to R6 215 467,50. Applying a 25% contingency deduction on the
injured income given the amount of R2
500 712,00 amount payable to
the plaintiff could come to R1 875 534,00.
[32]
Costs
always follow a suit unless there are extraordinary circumstances
which dictate otherwise. There are no reasons why this general
rule
should not be applied in this case. The plaintiff is entitled to her
costs on party and party costs of suit.
[33]
In
the result I grant the following order.
ORDER
1. The
defendant is ordered to pay the plaintiff
R6
215 467,50
in respect of uninjured income
and in respect of injured income
R1 875 534,00.
2. The defendant is
ordered to pay the plaintiff the sum of
R500 000,00
in respect
of general damages.
3. The defendant to pay
the costs of this suit.
_______________
B.C. MOCUMIE, J
For the plaintiff: Adv JN
De Vos SC
Instructed by:
Rosendorff Reitz
Attorneys
Bloemfontein
For the defendant: Ms
Smith
Instructed by: Webber
Attorneys
Bloemfontein
BCM/sp