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[2013] ZAFSHC 126
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Pohl NO obo van Niekerk v Road Accident Fund (2170/2011) [2013] ZAFSHC 126 (5 July 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 2170/2011
In
the matter between:
ADV L POHL NO
.
.........................................................................
Plaintiff
on behalf of
BENJAMIN JOHANNES
VAN NIEKERK
and
ROAD ACCIDENT FUND
.
.......................................................
Defendant
_____________________________________________________
JUDGMENT:
DAFFUE, J
HEARD ON:
12, 13, 15 en 26 MARCH 2013
_____________________________________________________
DELIVERED ON:
5 JULY 2013
_____________________________________________________
INTRODUCTION
[1] Plaintiff is adv
Louis Pohl, a member of the local Bar, who acts herein in his
representative capacity as curator ad litem to
Benjamin Johannes van
Niekerk (“the patient”) in a delictual claim for damages
against the defendant arising from injuries
sustained by the patient
in a motor vehicle collision on 30 March 2010 (“the
collision”).
[2] It is plaintiff’s
case that defendant is liable to compensate the patient in terms of
the provisions of the Road Accident
Fund Act, 56 of 1996, (“the
Act”) for his damages arising from the collision on the grounds
that the patient’s
injuries were sustained as a result of the
wrongful and negligent driving of the insured driver, a certain Mr
Shaun Davies.
[3] As a consequence of
the collision the patient has suffered damages in the form of past
and future medical, hospital and related
expenses, accrued and
prospective loss of earnings/earnings capacity and general damages.
[4] The matter was
originally set down for hearing on 27 November 2012 on which day the
following orders were issued by the Acting
Judge President:
“
(1) The
matter is postponed
sine
die
;
(2) The defendant pay the plaintiff’s
wasted costs on an attorney and client scale, inclusive of the
qualifying experts of
the plaintiff’s expert witnesses as well
as travelling and subsistence costs of all witnesses;
(3) The attorney of the defendant Mr W
Bloem must furnish reasons on the first date of trial why he should
not be ordered to pay
the wasted costs
de bonis propriis
;
(4) That defendant’s attorney is
ordered
(a) to attend a rule 37 conference on
a date to be arranged by the plaintiff’s attorney for a meeting
to be held by Friday,
7 December 2012;
(b) to give his full co-operation in
order to obtain instructions from the defendant to arrange the
proceedings and to respond to
the admissions sought by the plaintiff,
failing which leave is granted to plaintiff to approach the court for
appropriate relief.”
The matter was
subsequently re-enrolled for hearing and evidence was led on 12, 13
and 15 March 2013. On 26 March 2013 I heard oral
argument whereupon I
reserved judgment.
THE ISSUES
[5] Liability and
quantum
are both in dispute. Furthermore defendant filed two special pleas,
both dealing with s 17(1A) of the Act read with reg 3(3) and
3(4) to
3(14) of the 2008 regulations to the Act,
inter alia
relating
to the defendant’s obligation to compensate the patient for
non-pecuniary loss in respect of “
serious injury”
only, plaintiff’s alleged non-compliance with the procedure set
out in the regulations for the establishment of “
serious
injury”
and that the issue of the alleged “
serious
injury”
had not been finally determined in terms of the
regulations.
[6] By agreement between
the parties I made the following order in terms of High Court rule
33(4) pertaining to separation of issues:
“
All issues
still in dispute on the pleadings shall be adjudicated during the
hearing, except plaintiff’s claim for non-pecuniary
loss,
including the two special pleas which shall stand over for later
adjudication.”
Consequently the hearing
proceeded solely to determine the defendant’s liability and the
quantum
of plaintiff’s claim for special damages
(pecuniary loss).
[7] During the hearing
the following were settled:
7.1. Past hospital,
medical and related expenses in the amount of R375 055,69;
7.2. In relation to
future hospital, medical and related expenses, defendant agreed to
furnish plaintiff with an undertaking in
terms of s 17(1)(a) of the
Act in full and final settlement of all amounts claimed on behalf of
the patient under this head of
damages;
7.3. Plaintiff’s
locus standi
as the patient’s duly appointed curator
ad
litem
was eventually conceded on the third day of the hearing
notwithstanding the fact that it should have been crystal clear to
defendant
and its legal representatives that Rampai J had appointed
adv Pohl as curator
ad litem
to the patient under application
number 2170/2011 on 1 November 2012 already. I shall deal later in
this judgment in more detail
with the unprofessional manner in which
the defendant and its attorneys approached the litigation
in casu
.
DOCUMENTATION
[8] At the commencement
of the hearing plaintiff handed up:
8.1. A bundle of
documents admitted as exhibit “A”. The parties agreed
that the documents contained in the bundle, except
for the clinical
notes of Dr De Bruyn, could be admitted into evidence as being what
they purport to be without admission as to
the truth of their
contents;
8.2. A bundle of
photographs of the scene of the collision which were admitted as
exhibit “B” without objection by the
defendant;
8.3. A bundle of
documents containing the notices and reports of plaintiff’s
expert witnesses in terms of rules 36(9)(a) and
(b) which were
admitted as exhibit “C”.
It is apposite to remark
at this stage already that defendant failed to file any notices in
terms of rule 36(9)(a) or expert summaries
and/or reports in
accordance with the provisions of rule 36(9)(b).
THE EVIDENCE
RELATING TO DEFENDANT’S LIABILITY
[9] Before dealing with
the evidence it is necessary to make the following observations with
reference to the pleadings. I have
no hesitation to state that
defendant and its attorneys did not investigate the plaintiff’s
claim pertaining to the merits
(and possibly
quantum)
at all.
In response to the averments relating to the collision and
negligence, defendant pleaded in the same pro-forma manner which
has
now become custom of defendant’s legal representatives in RAF
litigation. First of all the collision was denied and this
was
followed up by the customary alternative pleas. What is amazing
in
casu
is that defendant pleaded in the final alternative that the
collision had been caused by the contributory negligence of the
patient
who was negligent in one or more or all of the very same
respects relied upon by the plaintiff. These grounds of negligence
were
pleaded in exactly the same order and what is more, it is
alleged that the patient executed a turn when it was inappropriate to
do so. Defendant copied plaintiff’s particulars of claim by
what can be described as “a cut and paste job”. As
will
be seen from the evidence, the patient travelled with his motorcycle
in a straight line through a robot controlled intersection
–
this was never in dispute - whilst the insured driver, Mr Davies,
executed a right-hand turn causing the motorcycle to
collide with his
vehicle.
[10] I fully agree with
the sentiments expressed by Satchwell J in
Motswai v Road
Accident Fund
2013 (3) SA 8
(GSJ) at paras [26] - [36],
relating to the duties of legal representatives and officers of the
court preparing and signing pleadings
known to be based on untrue
allegations. When an attorney or advocate appends his signature to a
pleading he confirms that he has
been scrupulous in preparing the
pleading and that it is not a fabrication. Practitioners should not
misrepresent facts to the
court. If Mr Bloem, defendant’s
attorney or his client perused the police docket or held a mere ten
minutes’ interview
– even telephonically – with the
insured driver, the plea on the merits would have been drafted
totally different.
In fact the merits would probably be conceded.
Unfortunately this is not an isolated incident and over the years the
Road Accident
Fund’s attorneys and counsel have become known to
draft standard pleas in order to play for time, only to fully concede
the
merits on the first day of trial in the majority of cases. The
wasted financial resources are too ghastly to contemplate.
[11] If it was not for
the endeavours of the plaintiff’s legal team, Mr Davies would
not be in court to testify in the proceedings.
He was subpoenaed by
plaintiff and Mr Branford, acting for plaintiff, placed it on record
that Mr Davies was so subpoenaed, that
he was at court and that he
was made available to defendant’s counsel, Mr Moeti for
consultation purposes. Mr Branford indicated
at that stage that it
was not plaintiff’s intention to call this witness. I have
reason to believe that Mr Davies’
attendance was secured in an
attempt to persuade defendant to concede the merits, but
unfortunately this did not eventuate.
[12] Two constables in
the employ of the South African Police Service, constables Molaoa and
Moloi, testified that on 30 March 2010
they received notification of
a collision at the intersection of Pres Boshoff Street (which becomes
Kolbe Avenue at the other side
of the intersection) and Victoria
Road, Bloemfontein (“the intersection”). They went there
and came across the aftermath
of a collision. They confirmed each
other’s evidence in material respects.
[13] Constable Molaoa
testified with reference to the customary SAPS Accident Report (AR
form) and accompanying sketch, filled out
and prepared by him, as
well as photographs of the scene. Whilst at the scene he identified
that two motor vehicles had been involved
in a collision, being a
motorcycle driven by the patient bearing registration number CTJ483FS
and a Volkswagen Beetle motor vehicle
driven by Mr Shaun Davies
bearing registration number DKX521FS. He observed damage to the
left-mid-front-side of the Volkswagen
Beetle as indicated in the AR
form. From his re-collection the two vehicles were positioned more or
less as depicted on the sketch
when he arrived at the scene. His
impression was that Mr Davies had been travelling in a northerly
direction prior to the collision
whilst the patient had been
travelling in a southerly direction. The collision occurred in the
patient’s lane of travel when
Mr Davies executed a
right-hand-turn across the patient’s path of travel at a time
when the patient had been travelling straight
through the
intersection.
During his
cross-examination Mr Moeti put it to him that the driver of the
Volkswagen Beetle will testify that he would have seen
the motorcycle
if it was not driven at an excessive speed. This statement is in
direct contrast with defendant’s pleaded
grounds of negligence
and as mentioned it merely copied the grounds relied upon by
plaintiff.
[14] Constable Moloi
testified that she deposed to her statement as contained in the
police docket on the day of the collision,
noting her observations on
the scene and setting out what Mr Davies had informed her about the
events giving rise to the collision.
She confirmed the contents of
her statement and testified that she had indeed conducted an
interview with Mr Davies who informed
her that he had approached the
intersection at the time when the traffic lights were green, that he
checked to see if there were
any approaching vehicles and having
satisfied himself that it was clear, he proceeded to turn right at
the intersection whereupon
the collision occurred. He did not see the
patient’s motorcycle prior to the collision.
Again in the
cross-examination of constable Moloi, Mr Moeti put it to her that it
was his client’s view (presumably Mr Davies
with whom he had
consulted at court) that the speed of the motorcycle was the major
factor contributing to the collision and that
Mr Davies told the
constable as much at the scene. She denied that and said that she
could not recall anything about excessive
speed communicated to her.
[15] Mr Davies testified
for the plaintiff hereafter. He confirmed that he was travelling in a
northerly direction whilst approaching
the intersection and that he
intended to turn right at the intersection. Whilst approaching the
intersection the traffic lights
were green for him and as he did not
see any approaching vehicles and considered it safe to turn, he
proceeded to turn right. The
next thing he heard and felt a crash
that jolted his vehicle to the side. He did not know what had
happened. He did observations
at the scene whereupon the ambulance
and medical personnel arrived as well as two members of the South
African Police Service.
He remembers that one of the SAPS members, a
female, conducted an interview with him regarding his knowledge of
the collision.
He informed her what had happened and that he did not
see the patient’s motorcycle prior to the collision. He later
on received
notice to appear in court on criminal charges relating to
the collision in respect of which he eventually paid an admission of
guilt fine. It was never put to the witness in cross-examination by
Mr Moeti that he made either a written or oral statement pertaining
to the alleged excessive speed of the motorcycle and that this was
the major cause of the collision as put by Mr Moeti to the police
constables. It is clear from Mr Davies’ evidence that he
conceded negligence and that he could not put any blame whatsoever
on
the patient.
It should also be
recorded that the collision happened during the day. On the AR form
constable Molaoa noted that the collision
occurred approximately 11
o’ clock the morning, it was daylight, the weather conditions
were good, visibility was clear and
the road surface was good and
dry.
As I’ll indicate
infra
defendant closed its case without calling any witnesses.
ANALYSIS OF THE
RELEVANT LEGAL PRINCIPLES AND EVIDENCE PERTAINING TO LIABILITY
[16] In order to succeed
plaintiff must establish that the collision occurred as a result of
the causal negligence on the part of
Mr Davis, the insured driver.
[17] It is the duty of
every road user to keep a proper lookout. This duty involves not only
the physical act of looking, but also
a reasonably prudent reaction
to what might be seen. It is clear from the evidence of both police
constables, as well as the insured
driver, that immediately prior to
the collision the patient was proceeding along President Boshoff
Street in a southerly direction,
whilst the insured driver was
travelling along the same road in the opposite and thus a northerly
direction. The collision occurred
when the insured driver executed a
right turn in the intersection and thereby cutting directly across
the path of travel of the
patient who was travelling straight at the
time. The patient had an undisputed right of way whilst entering and
proceeding through
the intersection. Under these circumstances the
notional reasonable man in the position of the insured driver would
not only have
observed the patient’s approach if a proper
lookout was kept, but would also have respected the patient’s
right of
way and allow him to pass through the intersection before
executing a right turn. If this was done, no collision would have
occurred.
[18] It has been stated
in a long line of cases that to turn across the line of oncoming or
following traffic, is an inherently
dangerous manoeuvre and that
there is a stringent duty upon a driver who intends executing such a
manoeuvre to do so by properly
satisfying himself that it is safe and
choosing the opportune moment to do so. See
AA MUTUAL INSURANCE
ASSOCIATION LTD v NOMEKA
1976 (3) SA 45
(AD) at 52E.
[19] Mr Moeti submitted
that
“
both drivers
are somehow negligent and each party should be held responsible to
the extent of degree of his liability to the damage
caused and
apportionment ought to be applied (sic).”
I accept that Mr Moeti is
of the view that contributory causal negligence on the part of the
patient was shown to exist. The onus
of establishing such negligence
rests with the defendant. See
Solomon and
Another v Mussett and Bright Ltd
1926 AD
427
at 435. The defendant should have adduced or elicit sufficient
evidence to support a finding of negligence on the part of the
patient
as well as a causal connection to the collision if it is to
succeed with establishing contributory negligence. Mr Moeti submitted
that
“the indication is that the cyclist (sic) was also
negligent because he failed to apply brakes or avoid a collision with
the
insured driver’s beetle in the circumstances as it was
crossing in front of him.”
As indicated no
witnesses were called by defendant in support of its case and no
evidence was elicited from the plaintiff’s
witnesses to assist
defendant in its plight. There is no factual basis for Mr Moeti’s
submission of contributory negligence.
There is no evidence as to the
distance between the motorcycle and the motor vehicle at the stage
when the insured driver started
to execute the right hand turn and
whether sufficient opportunity was available for the patient to brake
or take other measures
to avoid the collision. The insured driver
failed to observe the patient and his motorcycle at any stage prior
to the collision
and could therefore provide no indication as to
whether or not the patient had any opportunity to take any meaningful
action to
avoid the collision. It must be emphasised that the
collision occurred just after the insured driver started executing
his turn.
Even if it could be found that a reasonable person in the
shoes of the patient would have recognised that the insured driver
was
not going to yield and would have reacted, whilst the patient
failed to do likewise, which finding is not possible
in
casu,
defendant failed to establish that such
culpable omission was causally connected with the collision. See
Diale v Commercial Union Assurance Co of SA
Ltd
1975 (4) SA 572
(AD) at 578 C –
H and
Guardian National Insurance Co Ltd v
Saal
1993 (2) SA (CPD) at 163 D –
G.
[20] Consequently no
apportionment should be applied and I find that the patient is
entitled to 100% of the damages to be proven.
The insured driver’s
conduct in executing a right-hand turn in the face of oncoming
traffic was clearly unlawful and negligent
and it was the direct and
sole cause of the collision. I wish to emphasise that if defendant
had undertaken a careful investigation
in respect of the merits
before summons was issued, it should have come to the same
conclusion. Costs have been wasted by disputing
liability in
circumstances where the insured driver fully supported plaintiff’s
version of the collision.
“
SERIOUS
INJURY”, GENERAL DAMAGES AND RELEVANT CASE LAW
[21] Section 17 of the
Act has been amended by the introduction of the
Road Accident Fund
Amendment Act, 19 of 2005
which took effect on 1 August 2008. It now
limits the Road Accident Fund’s liability to compensate a
claimant for general
damages, referred to as “
non-pecuniary
loss”
in the amended section, to instances where the
claimant suffered “
serious injury”
within the
meaning of the section read with s 17(1A) of the Act. It is apposite
to quote these two subsections:
“
17
Liability of Fund and agents
(1) The Fund or an agent shall-
(a)
subject to
this Act, in the case of a claim for compensation under this section
arising from the driving of a
motor vehicle where the identity of the
owner or the driver thereof has been established;
(b)
subject to
any regulation made under section 26, in the case of a claim for
compensation under this section arising
from the driving of a motor
vehicle where the identity of neither the owner nor the driver
thereof has been established,
be obliged to compensate any person
(the third party) for any loss or damage which the third party has
suffered as a result of any
bodily injury to himself or herself or
the death of or any bodily injury to any other person, caused by or
arising from the driving
of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence or other wrongful
act of the driver or of the owner of the
motor vehicle or of his or her employee in the performance of the
employee's duties as
employee: Provided that the obligation of the
Fund to compensate a third party for
non-pecuniary loss
shall
be limited to compensation for a
serious injury
as
contemplated in
subsection (1A)
and shall be paid by way of a
lump sum.
(1A)
(a)
Assessment of a
serious injury
shall be based on a prescribed method adopted
after consultation with medical service providers and shall be
reasonable in ensuring
that injuries are assessed in relation to the
circumstances of the third party.
(b)
The assessment shall be
carried out by a medical practitioner registered as such under the
Health Professions Act, 1974 (Act 56
of 1974).” (Emphasis
added)
[22] Reg 3(3) stipulates
that a claim for compensation for non-pecuniary loss in terms of s 17
of the Act shall be submitted in
accordance with the Act and these
regulations. It is unnecessary to quote the regulations, but it is
clear that the process to
be followed is peremptory and consequently
it is, unlike the position prior to 1 August 2008, no more the
court’s prerogative
to award general damages for non-pecuniary
loss. See in this regard the detailed exposition of Brand JA in
Road
Accident Fund v Duma
[2013] 1 ALL SA 543
(SCA), paras [4] –
[10] at 546E – 548G. In
Duma
the SCA specifically
found in para [19] that the approach of the High Court in the four
judgments considered on appeal that it
is ultimately for the court to
decide whether a plaintiff’s injury was serious so as to
satisfy the threshold requirement
for an award of general damages is
fundamentally flawed. The decision whether or not an injury is
serious has now been conferred
on the RAF and eventually the Appeal
Tribunal established in accordance with the statutory mechanism the
legislature chose to adopt.
In
Duma
the SCA upheld all
four appeals, set aside the orders of the High Court and replaced
them with its own orders. The special pleas
of the defendants in all
instances were upheld and the plaintiffs’ claims for general
damages were postponed
sine die
. In two of the four matters
the court ordered the defendant to pay the respective plaintiffs
certain amounts in respect of loss
of earnings. It is not clear from
the judgment of the SCA, but it appears as if these were the amounts
that were originally granted
by the High Court in respect of loss of
earnings suffered by the plaintiffs. A discussion of the effect of
the regulations can
also be found in
Road Accident Fund v
Lebeko
(802/110
[2012] ZASCA 159
delivered on 15 November
2012.
[23] In
Bvuma v
Road Accident Fund
case no 17220/2010 (GSJ), an unreported
judgment delivered on 14 December 2012, Satchwell J dealt with a loss
of earnings claim
where the merits had been settled and the issue of
general damages had been held over until the question of “
serious
injury”
had been determined by the Appeal Tribunal
constituted in terms of reg 3(8)(b) & (c). Although the claim for
damages in respect
of future loss of earnings was eventually
dismissed, it is apparent that the learned Judge was prepared to
adjudicate the claim,
notwithstanding that a “
serious
injury”
still had to be determined by the Appeal Tribunal.
I find it an awkward
position to adjudicate claims for special damages such as
in casu
which can only be done having considered the evidence of a number of
experts in various fields,
inter alia
, a neuro-surgeon
pertaining to the brain damage the patient sustained. Although it is
not necessary for me to find that a “
serious injury”
has been sustained as I am not dealing with general damages or
non-pecuniary loss, I eventually have to make a finding about the
seriousness of the injuries sustained and in that regard I might
pre-empt the decision to be taken by the Fund or the Appeal Tribunal.
However I am mindful that I should not enter the arena reserved for
others in the regulations. Having considered the above judgments
it
appears that I am fully entitled to adjudicate the
quantum
of
plaintiff’s claim insofar as it does not relate to
non-pecuniary loss.
EVIDENCE PERTAINING
TO THE
QUANTUM
OF PLAINTIFF’S CLAIM
[24] Plaintiff gave
notice to call nine expert witnesses whose expert summaries and
reports were duly filed in terms of High Court
rule 36(9)(b).
Eventually five of these experts testified. In addition to the expert
testimony of the experts four lay witnesses
testified on behalf of
the patient. I shall deal with the testimony of the lay witnesses
first, although not in the same order
as they were called, whereafter
the experts’ evidence will be summarised.
Mr Gavin Potterton
(“Potterton”)
[25] He is employed at
Electro Vroomen in Bloemfontein as a salesman. Previously he was a
store manager. At the time of the collision
the patient was employed
by Elecro Vroomen as a stock puller (store assistant) and Potterton
was his direct supervisor. The patient
worked for this employer for
approximately 1½ to 2 years prior to the collision. Potterton
gave a detailed overview of the
patient’s job description as
stock puller and testified that he had been a very competent, capable
and a fast worker. They
experienced no problems with the patient
prior to the collision. He was regarded as one of his best workers
and was it not for
the collision he would be one of the first to be
promoted to salesman if he remained in the employ of Electro Vroomen.
In such
case he would be earning in the region of R12 000,00 to
R15 000,00 per month in today’s terms.
[26] Potterton testified
that upon his return to work after the collision, the patient was not
the same person. There were numerous
problems with his work and it
would have led to disciplinary action being taken against him for
poor work performance, was it not
that he resigned of his own free
will shortly after returning to work.
RIAN DE LANGE (“De
Lange”)
[27] He is currently in
the employ of Dreems Transport CC (“Dreems”) where he
works as a truck driver. The patient is
his brother-in-law and is
known to him for approximately five years. Although he has not spent
much time with the patient prior
to the collision (he met him
approximately 2 years prior to the collision), they did spend time
together during weekends and family
gatherings. He did not identify
any problems, behavioural or otherwise, with the patient and there
had been no problems in their
relationship.
[28] During the latter
part of 2010 and whilst he was in the employ of Dreems, the patient
also start to work there as a driver’s
assistant. He was on
probation for three months and worked directly under the owner, Mr
Deon van Rhyn, who acted as truck driver
at the time.
[29] De Lange left the
employ of Dreems at a stage for better prospects but returned in
January 2012. Following consultations and
negotiations the patient
also returned to work at Dreems from this point in time and it was
agreed that he would work as De Lange’s
assistant truck driver.
Although De Lange took pity on the patient, it became clear as time
passed that the patient’s conduct
at work and his general
behaviour caused numerous problems. He had memory loss, was generally
slow and forgetful at work and had
regular outbursts of anger. He
also fell asleep on the job on a regular basis and required
instructions to be repeated to him often.
De Lange referred to
various e-mails between him and Mr Van Rhyn relating to the extent of
difficulties experienced and it appeared
as if De Lange had reached
the point where he could no longer tolerate the patient’s
behaviour and conduct. He regarded the
patient’s employment as
of a sympathetic nature insofar as he is married to the patient’s
sister. He testified that
he could not see that the patient would
continue with his current employment any longer than the end of 2013
and that he would
not be able to hold a job in the open labour
market. He concluded his evidence by testifying that the only reason
he had tolerated
the patient working with him for so long was because
they are related and he felt sorry for him. However the patient’s
conduct
has created significant stress at home and has created
problems within his own family. He held the view that the patient is
not
the same person as he was prior to the collision and that he is
basically unemployable. He testified that from his experience and
knowledge the patient would have had the potential and capacity to
work as a truck driver, were it not for the problems experienced.
He
confirmed the correctness of his salary slips as truck driver which
form part of exhibit “A”.
Mr Deon van Rhyn
(“Van Rhyn”)
[30] He is the owner of
Dreems which existed for many years as a family business and which
was previously known as Van Rhyn’s
Transport. The patient was
unknown to him prior to the collision and he met him in September
2010 when he started to work for him
on probation. The patient
started to work as assistant to Van Rhyn who was at that stage
working as truck driver. He experienced
the same problems with the
patient as testified to by De Lange, i.e. memory problems, falling
asleep on the job and frequently
requiring instructions to be
repeated.
[31] The patient was not
appointed after termination of his probationary employment, but
returned to working for him in January
2012 at which stage he was
employed as assistant truck driver to De Lange, and this is currently
still the situation. He indicated
that he felt sorry for the patient,
that he regarded his employment as sympathetic in nature and how he
persuaded De Lange to continue
working with the patient despite the
fact that De Lange indicated that he no longer wished to do so.
Mrs Mariana van
Niekerk
[32] She is the patient’s
mother and currently runs a day care centre in Gauteng. She gave a
detailed exposition of the patient’s
childhood days and the
period until the collision as well as the patient’s behavioural
problems thereafter. As a young boy
the patient was growing up mainly
in Gauteng. His grade 1 schoolteacher informed her that she was
experiencing problems with the
patient whereupon the patient was
examined by an expert who indicated that he suffered from Tourette
Syndrome. The patient was
placed on Ritallin for a period of three to
four years, but medication was stopped thereafter as he had learned
to manage and control
his concentration and attention difficulties.
Although he was held back and repeated grade 3 the patient progressed
reasonably
well at school and she assisted him during that time to
manage his difficulties associated with his Tourette Syndrome. The
patient
left school after completing grade 8 as he wanted to start
working. By that time he had managed to bring his Tourette Syndrome
symptoms under control and according to the witness the patient was a
caring and loving child with no problems relating to memory,
aggression or anything of the like.
[33] The first company
that he worked for closed down after three months. He worked there as
a casual and did packing. His father
worked at the same company as a
machine setter. Subsequently he obtained work as a forklift driver at
a company for which she and
her husband also worked at the time.
After a while the patient indicated that he wanted to move to
Bloemfontein. He obtained employment
as a stock puller (store
assistant) at Electro Vroomen, a company for which his aunt and uncle
also worked at the time. According
to Mrs van Niekerk she was
satisfied that the plaintiff had become completely independent and
that his earlier symptoms from childhood
were under control. She had
full confidence in his ability to independently move to Bloemfontein
and work there. He worked as far
as she knows without any problems
for Electro Vroomen for approximately 1½ to 2 years prior to
the collision.
[34] After the collision
the patient was never the same person again. She confirmed that he
presented with significant difficulties
in the form of forgetfulness,
disorientation and anger outbursts. He is very easily upset,
unpredictable, intolerant of crowds
and often depressed. He also has
general mood swings and he behaves as a person much younger than him.
According to her he is a
vastly different person to the person whom
she knew prior to the collision when he had been stable and coping
well at work and
with life.
[35] Prior to the
collision the patient had loved animals and had been in charge of
feeding the chickens on their smallholding.
After the collision he
could not tolerate the sound of chickens, so much so that they
eventually had to get rid of all the chickens.
He has become
completely intolerant of any noise and he is unable to cope in
crowded places. She is of the view that he would not
be able to live
independently without regular assistance and monitoring.
Dr Domingo
(Neurosurgeon)
[36] He examined the
patient on 21 September 2011, approximately 18 months after the
collision and subsequently compiled a report
dated 14 March 2012 as
well as a serious injury assessment report (RAF4). He confirmed the
contents of his report and expressed
the opinion that the patient
sustained a severe brain injury as assessed by an initial Glascow
Coma Scale of 7/15 upon admission
to the Rosepark Hospital,
Bloemfontein, coupled with a prolonged period of post-traumatic
amnesia of approximately two to three
weeks. He also testified about
a CT scan taken on admission which showed evidence of a shearing
injury and that subsequent scans
showed
inter alia
the
development of a frontal contusion and structural damage to the
brain. He also referred to the significant force that had been
levelled at the head of the patient with reference to the fractures
of facial bones and according to him the patient sustained
a diffused
injury.
[37] In his opinion the
patient sustained a severe brain injury which resulted in significant
neuropsychological deficits which
adversely affect his employability
in the open labour market. Aspects that impact on employment are
cognitive deficits such as
the inability to concentrate and
behavioural problems insofar as such patients are unpredictable. In
the doctor’s opinion
the effects of the patient’s brain
injury were permanent and no further improvement could be expected
over the balance of
his life. He was also of the view that neither
therapy, nor medication would meaningful assist the patient’s
employment prospects
or his ability to sustain employment, but
indicated that treatment may assist the patient and his family in
coming to terms with
the deficits and make it more manageable in the
home environment.
Dr Madden
(Neuro-psychologist)
[38] She assessed the
patient on 12 June 2012 and compiled a report dated 20 June 2012. She
confirmed the contents of her report.
She has been practising in her
field for 30 years and has vast experience in the special schools
system although her speciality
is the rehabilitation of adults. She
works on social reintegration with the socially marginalised in order
to teach them how to
adjust.
[39] She was of the view
that as a result of the
sequelae
of the patient’s brain
injury his clinical presentation revealed darting attention span,
marked insecurity and uncertainty
and an infantile manner. The
patient’s disinhibited outbursts, lack of judgment in certain
social settings, fatigue and excessive
moodiness are all a function
of both an acquired brain injury superimposed on a vulnerable
pre-trauma neuro-psychological make-up.
The patient is not employable
in the open labour market and needs to be part of a rehabilitation
programme or community workshop
where he will be able to socialise
with his peers. According to her the brain injury involved both the
frontal and parietal regions
of the brain. The damage caused by the
brain injury was permanent as were the effects thereof including the
deficits relating to
his frontal lobe. Treatment in the form of
medication or therapy would not meaningfully improve the patient’s
employability
or ability to sustain employment in the open labour
market.
Dr De Bruyn
(General Surgeon)
[40] He examined the
patient at the Rosepark Hospital immediately upon his admission after
the collision and prepared clinical notes
which form part of exhibit
“A”, which notes he confirmed in evidence to be correct.
These notes provide a description
of the injuries suffered by the
patient and the Glascow Coma Scale reading of the patient which was
7/15 at the time of his admission.
This recording was performed prior
to the patient having been intubated or sedated. Based on his
assessment of the patient he classified
the patient’s brain
injury as severe.
Dr Ogilvy (Speech
and Language Therapist)
[41] She interviewed the
patient together with his mother on 13 June 2012 and prepared a
report dated 7 October 2012 the contents
which she confirmed in her
evidence. She highlighted the following deficits with which the
patient presented:
4.1. Reduced tolerance
for noise, suggestive of a significant central auditory processing
difficulty, resulting in the patient withdrawing
socially;
4.2 Difficulties in
multitasking across modalities;
4.3 A word retrieval
deficit;
4.4 Difficulties in the
recall of detailed auditory verbal information;
4.5. Substantially
increased pragmatic impairments including interrupting conversations,
reduced socio-linguistic sensitivity and
significantly increased
verbal abuse, poorer control of his verbal outbursts, increased
distractibility which at times negatively
impacts upon his ability to
convey his thoughts and ideas effectively.
[42] Based on collateral
information provided, she stated that the patient was coping well
with his disorder of Tourette Syndrome
prior to the collision to the
extent that it was not having any significant negative effect on his
socio-communicative interactions
or on his work performance. It is
apparent that he was able to sustain employment, was committed to his
work and was able to cope
well with his work functions. He was
pleasant, talkative and interactive. However since the collision, the
patient has suffered
from marked behavioural, psychological and
cognitive communicative changes and difficulties which have had a
significant negative
impact on his work performance and his
interpersonal relationships.
[43] Dr Ogilvy testified
that it would appear that the patient is currently working very much
in a sheltered position of employment
whereby he has his
brother-in-law, De Lange, supervising and monitoring him. She
expressed the opinion that would it not be for
the sheltered work
arrangements, the patient would have severe difficulties sustaining
any form of employment due to his behavioural
difficulties, his poor
pragmatic skills and his memory problems to the extent that he would
in essence be unemployable. Treatment
in the form of therapy or
medication would not meaningfully assist him in regard to his
employment prospects. Despite treatment
he would remain essentially
unemployable particularly due to the implications and permanency of
his frontal lobe fallout.
Mr Hunter
(Industrial Psychologist)
[44] He assessed the
patient on 8 October 2012 and subsequently prepared a report dated 7
November 2012, the contents which he confirmed
in his evidence.
Insofar as the patient’s pre-morbid career path was concerned,
he considered it reasonable to conclude that
had the patient not been
injured he would probably have worked at a similar level as present
until retirement age of 65. However
he may have progressed to a
higher earning level beyond this. This was the opinion contained in
his report after having interviewed
several people, including Van
Rhyn and Potterton. This viewpoint was confirmed in his
viva voce
evidence when he referred to the testimony of Van Rhyn and De
Lange. He also indicated that it was possible, would it not be for
the collision, that the patient would by now have progressed to
beyond his current level of earnings. He then indicated that the
patient would currently be earning a salary that fell somewhere
between his current income and that of De Lange, as a truck driver.
He estimated that this would be at the level of between 20% and 30%
of the difference between these two income levels (i.e. between
the
employment level of a truck driver and an assistant truck driver).
[45] Mr Hunter was of the
opinion that the patient’s current employment is sheltered and
that it was most unlikely that he
would remain employed for many much
longer. Should the patient lose his current employment within the
near future he might obtain
work on a limited basis, but would not
sustain such employment. This might happen on a few occasions but he
would soon be unable
to secure any form of work anywhere and would
then be deemed entirely unemployable within the open labour market.
Given the presence
of frontal lobe deficits it was not reasonable to
expect treatment to assist the patient’s employability given
that such
symptoms were notoriously problematic within the open
labour market.
Mr Alex Munro
(Consulting Actuary)
[46] Mr Munro confirmed
the contents of his report dated 24 November 2012. In terms thereof
he calculated the loss of income to
be R2 119 600.00, being
R72 800.00 in respect of past loss and R2 046 800.00
in respect of future loss.
He accepted that the patient would not
earn any further income from 1 January 2013 and onwards. No provision
was made for contingencies.
I asked him to provide the court with a
fresh report, taking into account the evidence led at the trial and
the salary slips of
the patient and De Lange contained in exhibit
“A”. He did that and I was presented with his second
report when the
matter was argued. Mr Branford submitted that I may
consider using scenario 4 of Mr Munro’s report for purposes of
adjudicating
the claim for future loss of income. In terms of this
scenario Mr Munro accepted that the patient would continue earning
his present
income for a further period of 12 months. The total loss
of income, so calculated, without taking into consideration any
contingencies
amounts to R4 333 500,00, being R91 200.00
in respect of past loss and R4 242 300.00 in respect of
future
loss.
DEFENDANT’S
APPLICATION FOR POSTPONEMENT
[47] Prior to dealing
with defendant’s application for postponement it needs to be
emphasised that I, already in chambers
before the trial commenced,
enquired from Mr Moeti whether defendant intended to call any expert
witnesses as no notices or reports
of expert witnesses had been filed
in accordance with the provisions of rule 36(9)(a) &(b). He
indicated that there was one
such witness and that his report was
probably not filed by mistake. This report never surfaced. By the end
of Wednesday, the second
day of the hearing, I again enquired from Mr
Moeti whether he intended to call any experts. He indicated that his
witness might
be coming through to Bloemfontein on Friday, the third
day of the hearing (the court did not sit on Thursday) and he
believed that
the necessary arrangements had been made by his
attorneys in that regard. I must mention that throughout the
proceedings Mr Moeti
single-handedly conducted the trial without the
assistance of either the attorney of first instance, the Bloemfontein
correspondent,
or a clerk and in particular, no expert witness or
witnesses attended the trial to assist counsel in cross-examination
of plaintiff’s
experts.
[48] When plaintiff
closed its case Mr Moeti applied from the Bar for a postponement on
the basis that his expert witness did not
turn up at court. I was not
presented with a formal application for postponement and consequently
no affidavit setting out the
reasons why a postponement was sought.
Mr Moeti could not enlighten me as to where his expert witness was as
that stage, why he
did not come to Bloemfontein and in particular,
what this witness would testify about. I must say that the firm
impression was
created that Mr Moeti was left in the dark by his
attorney right through the trial. I was not satisfied that proper
reasons for
postponement were advanced and dismissed the application,
whereupon Mr Moeti closed defendant’s case.
ADJUDICATION OF THE
CLAIM FOR LOSS OF INCOME / EARNING CAPACITY
[49] I am mindful of the
fact that the court exercises a wide discretion in assessing the
quantum of damages as a result of loss
of earning capacity. See
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA) at 586J –
587B. There is no doubt that in order to adjudicate the
quantum
of the claim the actuarial computations presented to me should be
employed as a useful basis for determining such. Even if this
is
done, it will have to involve some guesswork.
[50] Notwithstanding
attempts by Mr Moeti to obtain concessions from the expert and lay
witnesses, he did not succeed, firstly because
he did not have the
backing of expert reports and expert opinions which differed from the
opinions of plaintiff’s experts
and secondly, because the
information relied upon by the lay witnesses pertaining to the
patient was within their own personal
knowledge and Mr Moeti did not
have any witnesses that could contradict the evidence of these lay
witnesses.
[51] I must say that it
is evident that the patient is employed in sympathetic circumstances,
but it is also apparent that the lay
witnesses were sympathetic
towards him and to a certain extent subjective in there assumptions
with reference to his future employment
progression in an uninjured
state. I explain my viewpoint in para [53]
infra.
An aspect
that cannot be disregarded totally is that the patient has been
working for more than a year for his present employer
and that he was
in fact working during the trial and not attending trial. It was Mr
Branford’s prerogative to call him as
a witness which he
declined to do, but I don’t think a negative deduction can or
should be made from such failure. The point
that I want to make is
that although it is predicted that the patient will resign or be
forced to resign shortly or within a year
from now, this may not
necessarily be so. Having said this, I have to accept the evidence of
the experts that the patient is not
employable in the open labour
market and that his brain damage is permanent. His present employment
is sheltered and may at any
time terminate.
[52] Mr Moeti quoted
extensively from
Lawson v Road Accident Fund
1566/2006
[2010] ZAECPEHC 6 (4 March 2010) in which case a brilliant sportsman
and medical doctor was the plaintiff and submitted
that the patient
in casu
could not be favourably compared with Dr Lawson. Mr
Moeti relied heavily on the fact that the patient left school at the
end of
grade 8 and averments to some of the experts that “he
did not like school and was unhappy at school” and “always
seemed to be in trouble due to his problems with attention”. He
further on submitted that the patient’s experts “failed
to take into account the total picture of his child’s (
sic
)
developmental history in the main”. Notwithstanding this
criticism he failed to make any submissions as to what a reasonable
award in respect of loss of future income and/or earnings capacity
should be.
[53] The point that Mr
Moeti tried to make with reference to the
Lawson
judgment is not without merit. Prior to the collision the patient
always worked for employers who employed his relatives, parents
or
uncle and aunt, as well. He did not progress in any of his jobs. He
had three jobs in a short space of time. He never worked
as either a
salesman or a truck driver. He is a white male with a grade 8
certificate. He cannot, to give one example, be regarded
in the same
vein as the plaintiff in
Torres v RAF
QOD vol 6 at
A4-1, who came from a long line of jewellers and who upon acceptable
evidence proved that he had the talent to join
his father in his
well-established jewellery business, was it not for the brain
injuries sustained. Although the uncontested assumptions
contained in
the evidence of Messrs Potterton, De Lange and Van Rhyn are to the
effect that he might have progressed to either
salesman or truck
driver, these are possibilities and not necessarily probabilities.
Their versions in this regard are obviously
not primary factual
evidence, but mere assumptions, the veracity which I doubt
notwithstanding Mr Hunter’s acceptance thereof
and his evidence
in this regard. The position of a forklift driver who operates in a
yard or confined private space cannot be equated
to that of a heavy
vehicle driver that is confronted with busy roads and skills of a
totally different kind. Also, a stock puller
(store assistant) may be
good at his job, but the skills required by a salesman are totally
different. The first position does
not require much communication
skills, whilst a salesman works directly with the public and requires
such skills. Mr Potterton’s
example of the petrol pump
attendant that was promoted at Electro Vroomen to salesman in order
to bolster his version that the
same could happen to the patient
cannot be accepted as proof that the same would have happened to the
patient in due course. He
could not achieve that in the about two
years that he worked there prior to the collision. The witness is not
the owner or human
resources manager of the business and it is
unknown what motivated the promotion. The particular employee might
have been an excellent
candidate, or received promotion based on the
fact that he was a previously disadvantaged individual. It is not
necessary to speculate,
because what we know is that the patient had
three different jobs in a short space of time and notwithstanding his
good employment
record at Electro Vroomen, he was not promoted. Mr
Potterton’s version that an employer is not so much concerned
with an
employee’s education as long as he can do the job,
loses sight of reality. It might be so in the case of labourers, but
cannot
be true throughout the workplace. It cannot be disregarded
that the unemployment rate in this country is extremely high and
bearing
in mind the pressure on employers to achieve employment
equity in the workplace, career progression of uneducated white males
is
not that rosy.
[54] I have referred to
Mr Munro’s two reports. Mr Munro indicated in his second report
that 5% and 20% contingency deductions
respectively should be applied
in relation to the patient’s past and prospective uninjured
income values. Mr Branford submitted
that the 20% in respect of
prospective income might be increased to 25%. In making this
concession he submitted that the reasonable
value of the patient’s
loss of income/reduced earnings capacity is R3 238 610,00.
I have given serious consideration
to the revised figures which are
based on the patient’s assumed future earnings as truck driver
and not that of truck driver
assistant previously taken into
consideration. Anything is possible, but I am not convinced that the
patient in his pre-morbid
state would have progressed to that level,
or to the level of salesman for that matter. I am therefore not
prepared to accept the
second report, but have no reason not to base
my judgment on the calculations contained in the first report. In
doing so, I take
cognisance of Mr Hunter’s suggestion that it
would be a pessimistic view – the low water
mark - to conclude that
the patient would remain at the same employment level. It must be
reiterated that Mr Munro’s calculations
are based on permanent
unemployment as from 1 January 2013 while we know that the patient
was still employed during the trial in
March 2013. Regarding
contingencies I am of the view that no contingency deduction should
be applied to past loss and that 15%
in respect of future loss should
be applied. This is less than the 21% that might have been applied,
to wit ½% per year
to retirement age in accordance with the
generally acceptable sliding scale. See
RAF v Guedes
supra
at 588 A-F. The patient is 23 years old and his
undisputed retirement age was regarded as 65. In allowing a lower
deduction, I to
an extent compensate for the conservative, if not
pessimistic approach in Mr Hunter’s words, followed in arriving
at the
quantum.
DUTY OF LEGAL
REPRESENTATIVES
[55] I have referred
supra
to the duty of legal representatives and to some
instances in which the defendant’s legal representatives failed
their duty.
Notwithstanding Mr Bloem being called upon by the court
to explain why a cost order
de bonis propriis
should not be
made against him, he failed to turn up. Mr Moeti was specifically
requested to explain Mr Bloem’s absence,
but he merely
mentioned that as far as he was aware, this attorney (who was
handling the matter until two months prior to the hearing)
had been
taken off the case. He could not explain his whereabouts. Defendant’s
legal representatives failed to make admissions
reasonably sought by
plaintiff’s legal team which admissions should have been made
in order to save unnecessary legal costs.
Such admissions would be
unavoidable if a timeous and proper preparation for trial had been
undertaken. Defendant should have been
prepared for trial in November
2012. In December 2012 a rule 37 conference was held via telephone.
By that time defendant was still
not prepared to admit adv Pohl’s
appointment as
curator ad litem,
or that a collision had taken
place, or that the insured driver’s negligence caused the
collision, or that he had admitted
guilt and paid the required fine,
or that the patient suffered injuries. It was invited to accept the
correctness of the numerous
expert reports, but declined to do so.
This remained the situation until the matter was eventually heard.
From defendant’s
side hardly anything was done to cast doubt on
these reports and the findings of the experts. It was apparently in
possession of
a report of a dr Earle, but to the best of my knowledge
the patient was not requested to avail him to examination by other
experts.
The ineffective cross-examination by counsel who did not
receive any assistance whatsoever speaks volumes of defendant’s
attitude towards the matter. At no stage was it put to any witness
that his or her evidence was challenged based on evidence to
be
tendered on behalf of defendant. No attorney or employee of the two
firms involved attended the court proceedings. There is
no reason why
either the attorney of first instance or the local correspondent
should claim any fees in respect of preparation
for trial and
attendance of the trial proceedings. This judgment will be sent to
the Law Society of the Northern Provinces and
the Chief Executive
Officer of the Road Accident Fund to consider appropriate measures to
be taken, not only in the public interest,
but also in the interest
of the legal profession in particular.
THE RELIEF
[56] As indicated
supra
the issue of general damages stands over for later adjudication, if
necessary. The claim in respect of past hospital, medical and
related
expenses has been settled and defendant has offered to furnish an
undertaking in respect of future hospital, medical and
related
expenses in accordance with s 17(1)(a) of the Act. The claim in
respect of past and future loss of income/reduced earnings
capacity
has been adjudicated and I have arrived at the figure of
R1 812 580.00, being past loss of R72 800.00 plus
future loss of R1 739 780.00 (R2 046 800.00 less
15% contingency deduction, to wit R307 020.00). Plaintiff
is
entitled to its costs including the costs of the expert witnesses as
more fully set out in the order
infra
.
ORDER
[57] Therefore the
following orders do issue:
57.1. Defendant is liable
to compensate the patient for 100% of the patient’s damages
arising from injuries sustained in a
motor vehicle collision on 30
March 2010;
57.2. The following
amounts are awarded to plaintiff on behalf of the patient:
57.2.1. Past hospital,
medical and related expenses as agreed: R375 055,69;
57.2.2 Past and future
loss of income:
R1 812 580,00;
Total:
R2 187
635,69
57.3. Defendant shall be
liable for interest at the rate of 15,5% per
annum
on any
unpaid amount from a date 14 days after judgment to date of payment;
57.4. Defendant is
ordered to issue an undertaking in terms of
s 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
to plaintiff as agreed;
57.5. The defendant is
ordered to pay plaintiff’s costs which include:
57.5.1. Costs of the
reports of all plaintiff’s expert witnesses as well as the
reasonable costs attached to the procurement
of such reports;
57.5.2. The qualifying
expenses of all plaintiff’s experts;
57.5.3. The travelling
and subsistence costs of plaintiff’s expert and lay witnesses
who attended and testified at the trial;
57.5.4. The costs of
plaintiff’s counsel including counsel’s attendance at an
inspection
in loco
, all consultations as well as counsel’s
travelling and subsistence costs relating to the trial.
57.6 The following
witnesses are declared necessary witnesses:
57.6.1 Dr Madden;
57.6.2 Dr Domingo;
57.6.3 Dr Ogilvy;
57.6.4 Mr Hunter;
57.6.5 Dr De Bruyn;
57.6.6 Mr Munro;
57.6.7 Mrs Van Niekerk;
57.6.8 Mr Van Rhyn;
57.6.9 Mr De Lange;
57.6.10 Constable Moloi;
57.6.11 Constable Molaoa;
57.6.12 Mr Davies;
57.6.13 Mr Potterton.
______________
J. P. DAFFUE, J
On behalf of applicant:
Adv. A. D. Branford
Instructed by:
Sohn Wood c/o Honey
Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. J. P. Moeti
Instructed by:
Mabunda Inc c/o Phalatsi
&
Partners
BLOEMFONTEIN
/eb