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[2012] ZAGPPHC 57
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Mvundle v Road Accident Fund (63500/2009) [2012] ZAGPPHC 57 (17 April 2012)
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NUMBER: 63500/2009
DATE:17/04/2012
In
the matter between
MVUNDLE
SINDAPHI
PHINEAS
................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
..........................................................
DEFENDANT
JUDGMENT
KUBUSHI,
AJ
[1]
This is a damages claim by the plaintiff for bodily injuries
sustained in a motor vehicle collision. The claim is against the
Road
Accident Fund as the statutory insurer in terms of the
Road Accident
Fund Act 56 of 1996
, as amended ("the Act").
[2]
The common cause facts of the case are that the plaintiff as a driver
of a Mercedes Benz bus was involved in a motor vehicle
collision with
a motor vehicle insured by the defendant. As a result of this
collision the plaintiff sustained the following injuries:
soft tissue
injury of the scalp, neck, shoulder and ankle; loss of 50% of his
sight to the left eye and also suffered emotional
trauma.
[3]
In his particulars of claim the plaintiff claimed damages in respect
of:
3.1 Past hospital and
medical costs.
3.2
Estimated future medical costs to be provided for in terms of
section
17
(4) (a) of the Act;
3.3
The loss of earnings and earning capacity; and
3.4
general damages.
[4]
The defendant conceded liability on the merits and offered to pay the
plaintiff 100% of the proven damages. The damages for
past hospital
and medical costs were abandoned because the plaintiff received
treatment at a provincial hospital. The defendant
agreed to provide
the plaintiff with a certificate in terms of
section 17
(4) (a) of
the Act for the estimated future medical costs, as the injuries would
require future medical treatment. The damages
for loss of earnings
and loss of earning capacity, as well as general damages remained in
contention.
[5]
The parties agreed that evidence should not be led and that the
various expert witnesses' reports solicited by the plaintiff
be
admitted into the record as evidence. The defendant admitted the
contents of the reports. It also did not have any experts'
opinion to
counter the opinion of the plaintiff's expert witnesses. A bundle of
documents containing the experts' reports were,
thus, handed in court
per agreement between the parties.
THE
EVIDENCE OF THE EXPERT WITNESSES
[6]
The following is the evidence of the expert witnesses as gleaned form
their respective reports and as read into the record by
the
plaintiff's counsel:
ORTHOPEADIC
SURGEON:
[7]
According to Dr D A (Tony) Birrell, the orthopaedic surgeon who
examined the plaintiff, when he first saw the plaintiff he was
complaining of a headache. In the doctor's opinion, the headache
confirmed the injury as per the MMF1 form that was signed by Dr
L
Roche, who saw the plaintiff immediately after the accident. The MMF1
form stated that the plaintiff sustained a swelling on
the right side
of the forehead. The report stated that the plaintiff also injured
his left shoulder, the neck and lower back. He
had not lost
consciousness, but was confused. The hospital records also stated
that there was no sign of a skull fracture. He still
had posterior
neck pain, which increased in cold weather.
[8]
The report stated also that according to the MMF1 form the plaintiff
received a voltaren injection and bruffen tablets. This
treatment
according to Dr Birrell, confirmed the bruise as noted in the MMF1
form and the fact that the plaintiff complained of
a headache at the
hospital. The plaintiff also confirmed to Dr Birrell that he received
intravenous fluid therapy, but no blood
transfusion; he did not wear
a neck collar after the accident; he did not have any physiotherapy;
he returned to the outpatients
department of the Carletonville
Hospital in follow-up; and he was not on medication when he came to
see him.
[9]
According to the information the doctor received the plaintiff
sustained soft tissue injuries of the scalp, neck and dorsal
spine,
and possibly also the left shoulder. The report stated further that
the plaintiff returned to work again a day after the
accident and
that the fact that he was retrenched in September 2010 was not
related to the accident. He is presently unemployed
but if he were to
find employment as a driver he would have a loss of work capacity of
between 4% to 5% and that he will not need
early retirement because
of this.
[10]
Dr Birrell, stated further that past medical expenses related to the
accident were justified. As regards future medical treatment,
the
plaintiff had a 3% to 5% chance of requiring cervical (neck) surgery,
which would require eight to ten weeks of sick leave.
He also had a
5% chance of requiring an arthroscopy of the left shoulder, which
will require four to five weeks of sick leave
[11]
This report also set out the employment history of the plaintiff and
social activities as follows: at the time of the accident
the
plaintiff was a bus driver for MME in Carletonville for a period of
five years. Prior to that he had worked for Carleton Brewery
as a
driver of a large truck for a period of six years. He used to do
gardening. He no longer does it but his children do it for
him.
NEUROPSYCHOLOGIST:
[12]
The plaintiff was referred to Dr Menachem Mazabow, a
neuropsychologist, to assess whether the head injury was serious or
not
and its effect. The doctor's findings were that the plaintiff did
not sustain a significant head injury and indications are that
any
concussion sustained by the plaintiff in the accident would have been
very mild. However, the plaintiff had reported visual
difficulties
involving both eyes. The right eye difficulty apparently was due to
the accident in 2000 and the left eye difficulty
due to the current
accident.
[13]
His finding, in respect of these difficulties, were that together
with his rather poor concentration/attention and stimulus
resistance
on formal testing, indications were that he was not a safe candidate
for a position involving driving. He reported that
should the
plaintiff be precluded from driving because of his visual impairment,
he would most likely find it difficult to find
alternative
employment. In particular the plaintiff's reported fatigability and
painful left shoulder and headaches would preclude
work of a
physically demanding nature, while his neuropsychological profile
(and in particular his slow work-tempo and poor
concentration/attention
and stimulus resistance) would compromise his
ability to undergo vocational retraining, after twenty years
employment as a driver.
NEUROLOGIST
[14]
Prof Vivian Una Fritz, a neurologist was ad idem with Dr Mazabow that
in view of his visual problems, the plaintiff should
not be driving a
truck. She reported that the plaintiff had very poor education and
would not be able to do clerical work and his
left shoulder precluded
him from doing any physical heavy work.
SPEECH
LANGUAGE THERAPIST AND AUDIOLOGIST
[15]
Ms Odette Guy, a speech language therapist and audiologist, also saw
the plaintiff. She reported that during the interview
the plaintiff
complained of constant neck pain and headaches; limited shoulder
mobility and did not see with his right eye.
[16]
Her conclusions after the interview were that the plaintiff presented
with a language profile that was characterised by poor
receptive
language skills. The result thereof being that the plaintiff will
struggle to cope in a workplace, and was likely to
make multiple
errors of understanding. She reported that his low level of education
might have contributed to his overall language
performance; however,
he showed some characteristic language features seen after a brain
injury. She stated further that the plaintiff
had experienced a
previous head injury, and it was likely that the most recent injury
aggravated his language skills.
OPTHALMOLOG1ST
[17]
According to the ophthalmologist, Dr Charl Weitz, the plaintiff
reported that his vision was normal prior to the accident and
that
his vision has now been severely affected in both eyes by the
accident. He also reported that he sustained a head injury;
injury to
the left shoulder; neck injury and has back pain.
[18]
The doctor's opinion was that the plaintiff suffered from commotio
retina in his left retina during the ordeal. Commotio retina,
according to the doctor, is a condition where retinal swelling causes
a long-term mild decrease in visual acuity. She expected
the left eye
to be stable at 6/12 in the long term.
[19]
From an ophthalmological point of view, Dr Weitz's opinion was that
the plaintiff's future employment possibilities were severely
restricted due to the fact that he was permanently blind in the right
eye (which was not related to the current accident) and has
only 50%
vision in the left eye and that he will not be able to function as a
bus driver again.
PSYCHIATRIST
[20]
A psychiatrist who examined the plaintiff, Dr David A Shevel's
findings are that there were subtle symptoms of underlying organic
brain dysfunction, which could be related to the plaintiff's low
standard of education and/or a previous head injury. The subtle
symptoms of organic brain dysfunction would impact negatively on the
plaintiff's coping and adaptation skills, which would affect
his
overall ability to readjust his lifestyle after the recent accident.
His poor adaptation skills have also been aggravated by
the pain
related to the soft tissue injuries sustained in the 2008 accident
and has probably resulted in a mild to moderate chronic
depression
(dysthymia). The psychiatrist's opinion was further that the
plaintiff's psychiatric condition has impacted negatively
on his
personal skills and relationships.
OCCUPATIONAL
THERAPIST
[21]
The occupational therapist, Ms Tracy Brown, stated in her report that
the plaintiff was reportedly complaining of a headache
and had
swelling over the right side of his forehead with no skull fracture
noted. The sequelae have resulted in reduced and altered
capabilities
related to pain/discomfort over the neck, lumber spine, left
shoulder, reduced agility for mobility positions, postural
asymmetry
and reduced stamina for sustained use of the upper limbs for overhead
work and lifting. In her opinion the plaintiff
would be able to
perform work in the sedentary, light to medium category of strength
demands, medium lifting demands for tasks
such as waist to floor and
front carry should however be limited to occasional use during his
work day.
[22]
There has been loss of amenities of life because of the mildly
diminished self-management and home management efficiency and
loss of
previous leisure pursuits, she opined.
PSYCHOLOGIST
[23]
Ms Carina Coetzee, a psychologist with a specific interest in
psychomotor research, development and assessment, assessed the
plaintiff and drew a full psychomotor assessment report. She assessed
the plaintiff's psychomotor abilities in order to determine
his
driving performance or potential driving performance. She reported
that during the interview, the plaintiff complained of pain
in his
left shoulder, neck and back. This reportedly becomes worse when
driving. According to her report the impact of pain on
levels of
fatigue and concentration need to be taken into account and it is
likely that as the plaintiff's levels of pain increase,
the levels of
fatigue will also increase. This could result in a decrease in his
attention and concentration abilities and consequently
decrease in
perceptual abilities and reaction times.
[24]
She reported further that the plaintiff's performance raised some
concerns although he was tested in an ideal situation where
there
were no disturbances and distractions.
According to her, in
actual traffic the plaintiffs performance may be much worse due to
the disturbances and distractions he will
have to deal with from
outside and within the vehicle. Her conclusion was that the
plaintiff's overall performance on the psychomotor
tests showed
severe inadequacies regarding his abilities to drive a motor vehicle
safely and competently. She further concluded
that the plaintiff
presented with an elevated risk as a driver on the road: the pain in
his back could negatively impact on his
making comprehensive
observations and as a result missing vital traffic related
information which may cause driving errors or accidents;
the pain in
his left shoulder may also negatively influence his ability to
effectively maneuver the vehicle, especially in emergency
situations
and may result in an accident or incident.
INDUSTRIAL
PSYCHOLOGIST
[25]
The industrial psychologist, Esme Noble, reported that the plaintiff
presented with pain in the left shoulder, neck, back and
frequent
headaches.
[26]
From the interview she held with the plaintiff, she established that,
except for the time when he was not employed, the plaintiff
was
employed as a driver for most of his adult life. This information was
confirmed with the various employers.
[27]
According to Ms Noble, the plaintiff's career can be divided into two
periods. The first period is before he obtained a heavy-duty
driver's
license and the second period is after he obtained the license. The
plaintiff's working history was marked by periods
of unemployment
between employers. Before he obtained the driver's license he was
employed as a farm worker. From 1979 he started
working in the formal
sector as a lorry driver. He also worked in the informal sector as a
bus driver for a private owner. In the
period between 2000 and 2004
he was employed as a truck driver. At the time of the accident he was
working as a truck driver at
MM&E (Pty) Ltd where he earned a
salary of R39 000-00 per year. A Mr Botha from the human resource
division at MM&E confirmed
this. His reason for leaving this
employment was not accident related.
LOSS
OF EARNING CAPACITY
[28]
The plaintiff's counsel submitted that the defendant's earning
capacity has been compromised because he was employed his whole
life
as a professional driver. He worked as a bus or lorry driver. The
plaintiff is no longer physically able to drive because
of the
shoulder injury and has lost sight in his left eye because of head
injuries sustained in the accident. The right eye is
blind since he
was young he has now lost 50% sight of the left eye after the
accident.
[29]
His further submission was that the experts were of the opinion that
if the collision is taken away the plaintiff should have
worked until
the age of 60 years. Given his advanced age and competition in the
market place he would not be able to easily get
employment. Although
he is entitled to receive pension at 60 years probabilities are that
he should have been able to do piece
jobs e.g. one day driving. It is
not save for him to continue employment as a driver. It is now highly
unlikely that he will do
piece jobs because of lack of motivation and
the pain.
[30]
According to the plaintiff's counsel at the time of the collision the
plaintiff was in a stable employment, was hard working
and worked as
a bus or lorry driver. The erstwhile employer admitted that only a
driving license was required for employment. No
annual medical
testing of eyesight was done. The plaintiff should never have gone
back to drive a bus - he was a danger to other
road users. Physically
he should not have been taken back - because of the impaired eyesight
and injured shoulder. He returned
to work after the collision but was
dismissed. The fact that he was dismissed was irrelevant.
[31]
Counsel argued further that the defendant's refusal to accept that
the plaintiff's left eye was injured in the accident must
not be
entertained. The defendant did not place this issue in dispute during
the pretrial conference or at any stage during the
pleading stage.
The defendant also admitted the contents of the reports of the expert
witnesses who confirmed that the plaintiff's
left eye was injured in
the accident in question. The defendant did not tender an expert
witness' opinion to gainsay the evidence
of the plaintiff's expert
evidence. The argument by the defendant's counsel from the bar must
not be accepted as evidence. The
defendant's counsel did not proffer
reasons to this court why three medical experts would lie and say
that the plaintiff's left
eye was injured in the accident in
question.
[32]
The argument by the defendant's counsel on the other hand was that
the plaintiff did not suffer loss of earning capacity. He
stated in
argument that the plaintiff's claim revolved around the loss of
vision in his left eye but the eye was not injured in
the accident in
question. According to counsel there was no evidence that the
plaintiff injured the eye during the accident in
question. There was
also no medical record from the hospital or the reports of the
various doctors who examined him that his left
eye was injured during
that accident. Immediately after the accident he was able to assist
other persons involved in the accident.
He was never treated for eye
injury. He continued with his work - driving -after the accident and
never complained of the eyesight.
The injury to his left eye was only
reported two years after the accident.
[33]
To my mind, the question of whether the plaintiff's left eye was
injured in the accident in question or not can be easily and
readily
answered. Firstly, it is clear from the reports of Dr Menachem
Mazabow, the neuropsychologist, Dr Charl Weitz and Professor
Vivian
Fritz that the visual difficulties involving both eyes were indeed
reported by the plaintiff.
[34]
Secondly, the answer appears from the report of Dr Charl Weitz, the
opthalmologist who examined the plaintiff. His opinion
was that the
plaintiff suffered blunt trauma during the accident and developed
commotio retina in his left retina during the ordeal.
Commotio
retina, according to her, is a condition where retinal swelling
causes a long-term mild decrease in visual acuity. This
has caused a
permanent decrease in visual acuity. She expected the left eye to be
stable at 6/12 (50%) in the long term. It is,
therefore, apparent
that the plaintiff was injured in the left eye in the accident in
question.
[35]
Sight must also not be lost of the fact that Dr Weitz only examined
the plaintiff almost three years after the accident. And
according to
his prognosis a commotio retina is a condition that results in a
long-term mild decrease in visual acuity. It is therefore
possible
that immediately after the accident the plaintiff did not experience
difficulty with the vision in his left eye. However,
the vision
deteriorated with the passage of time.
[36]
It is trite that any patrimonial claim in respect of future loss of
earnings / earning capacity requires:
36.1 A loss of earning
capacity as a result of a damage causing event; and
36.2
An actual patrimonial loss of income as a result of the
abovementioned loss of earning capacity. In which case, either the
one or the other may be claimed for the same amount.
See
RUDMAN v ROAD
ACCIDENT FUND
2003 (2) SA 234
(SCA) at para [11] and the South
Gauteng High Court unreported decision of Bizos, AJ in
DEYSEL v
ROAD ACCIDENT FUND
2483/2009 at paras [15], [22] and [28].
[37]
In order for the plaintiff, in this instance, to succeed with his
claim for loss of earnings / earning capacity, he must proof,
firstly, that his earning capacity has been compromised as a result
of the damage causing event. In this instance, I am satisfied
that
the plaintiff was able to establish that his earning capacity has
been compromised as a result of the injuries he sustained
in the
accident in question. The evidence as extracted from the expert
witnesses' reports established this.
[38]
It is common cause or undisputed that as a result of the damage
causing event, the plaintiff sustained the following injuries:
a
swelling on the right side of the forehead (head injury); injured his
left shoulder, the neck and lower back; sustained soft
tissue
injuries of the scalp, neck and dorsal spine, and a commotio retina
to the retina of the left eye.
[39]
It is also common cause that the sequelae of the injuries were the
following:
39.1
In terms of the injury to the left eye:
a.
Dr Charl Weitz's opinion was that the plaintiff sustained blunt
trauma during the ordeal and developed commotio retina in his
left
retina. She expected the left eye to be stable at 6/12 (50%) in the
long term;
b. Dr Charl Weitz, also
reported that due to the fact that he is permanently blind in the
right eye (which is not related to the
current accident) and has only
50% vision in the left eye he will not be able to function as a bus
driver again;
c. Dr Menachem Mazabow,
the neuropsychologist, reported that should the plaintiff be
precluded from driving because of his visual
impairment, he would
most
likely find it difficult to find alternative employment;
d. Prof Vivian Una Fritz,
the neurologist, confirmed that in view of his visual problems, the
plaintiff should not be driving a
truck.
39.2
In terms of the brain injury:
a.
Dr David A Shevel reported indications of subtle symptoms of
underlying organic brain dysfunction, which would impact negatively
on the plaintiff's coping and adaptation skills, and would affect his
overall ability to readjust his lifestyle after the recent
accident;
b.
He further reported that the plaintiff's poor adaptation skills have
also been aggravated by the pain related to the soft tissue
injuries
sustained in the 2008 accident and has probably now resulted in a
mild to moderate chronic depression (dysthymia);
c.
The psychiatrist's opinion was further that the plaintiff's
psychiatric condition has
impacted negatively on his personal
skills and relationships;
d.
Dr Menachem Mazabow, the neuropsychologist, reported that together
with his rather poor concentration/attention and stimulus
resistance
on formal testing, indications are that he was not a safe candidate
for a position involving driving.
e.
He also reported that the plaintiff's neuropsychological profile (and
in particular his slow work-tempo and poor concentration/attention
and stimulus resistance) would compromise his ability to undergo
vocational retraining, after twenty years employment as a driver;
f.
Ms Odette Guy, the speech language therapist, reported that the
plaintiff presented with a language profile that was characterised
by
poor receptive language skills, that is seen after a brain injury,
and that will cause him to struggle to cope in a workplace,
and
result in him making multiple errors of understanding.
39.3
In terms of the shoulder injury:
a.
Ms Tracy Brown, the occupational therapist, reported that the
plaintiff would be able to perform work in the sedentary, light
to
medium category of strength demands, medium lifting demands for tasks
such as waist to floor and front carry should however
be limited to
occasional use during his work day;
b.
Ms Carina Coetzee's conclusion was that the plaintiff's overall
performance on the psychomotor tests showed severe inadequacies
regarding his abilities to drive a motor vehicle safely and
competently;
c.
She further concluded that the plaintiff presented with an elevated
risk as a driver on the road: the pain in his back could
negatively
impact on his making comprehensive observations and as a result
missing vital traffic related information which may
cause driving
errors or accidents; the pain in his left shoulder may also
negatively influence his ability to effectively maneouvre
the
vehicle, especially in emergency situations and may result in an
accident or incident;
d.
Ms Carina Coetzee, the psychologist, also reported that the plaintiff
complained of pain in his left shoulder, neck and back
that
reportedly becomes worse when driving;
e.
Dr Menachem Mazabow, the neuropsychologist, reported that the
plaintiffs fatigability and painful left shoulder and headaches
would
preclude work of a physically demanding nature;
f.
Prof Vivian Una Fritz (the neurologist) reported that the plaintiffs
left shoulder would preclude him from doing any physical
heavy work;
g.
Prof Fritz also reported that because he had very poor education the
plaintiff would not be able to do clerical work;
h.
Ms Tracy Brown, the industrial psychologist's conclusion was that the
sequelae have resulted in the plaintiff's reduced and altered
capabilities related to pain/discomfort over the neck, lumber spine,
left shoulder, reduced agility for mobility positions, postural
asymmetry and reduced stamina for sustained use of the upper limbs
for overhead work and lifting.
39.4
According to the psychologist, Ms Carina Coetzee's report the impact
of pain on levels of fatigue and concentration need to
be taken into
account and it was likely that as the plaintiff's levels of pain
increase, the levels of fatigue will also increase.
This could result
in a decrease in his attention and concentration abilities and
consequently decrease his perceptual abilities
and reaction times.
[40]
Based on the above mentioned factors I am satisfied that the
plaintiff's earning capacity has been compromised. However, the
plaintiff must prove that his patrimony has been diminished as a
result of the compromised earning capacity as well.
[41
] The defendant's counsel was of the view that since the reason why
the plaintiff left his last job was not accident related,
and also
because he continued to work as a driver for two years after the
accident, his claim must not be entertained. This view
according to
me has no merit.
[42]
It is trite that damages for loss of income can be granted where a
person has in fact suffered or will suffer a true patrimonial
loss in
that his or her employment situation has manifestly changed. The
plaintiff's performance can also influence his/her patrimony
if there
was a possibility that he/she could lose his/her current job and/or
be limited in the number and quality of his/her choices
should he/she
decide to find other employment. See
THE ROAD ACCIDENT FUND v
DELPORT
2005 (1) All SA 468
(SCA);
SAAYMAN v ROAD ACCIDENT
FUND
2011 (1) SA 106
(SCA) and
DEYSEL
-case supra at para
[38].
[43]
To my mind, in this instance, if the plaintiff had remained in his
erstwhile employment he would not have succeeded in his
claim for
loss of earnings / earning capacity. But because he has left the job,
irrespective of what the cause was, he must be
compensated if he
could establish that but for the accident he was no longer fit to
drive and that his choices, either in number
or quality, of finding
alternative employment were now limited and his chances of retraining
for a new career were negatively affected.
The evidence, which I
accept, is that the experts have declared him not fit to drive at
all; he can only perform work in the sedentary,
light to medium
category; due to his education level and neuropsychological profile
he cannot be retrained and will therefore possibilities
are that he
may be unable to make a career change.
[44]
The fact that the plaintiff was able to drive for two years before he
left his last job is to me not material in deciding whether
he is
entitled to the damages or not. What is important, in my view, is
that his earning capacity was compromised whilst he was
so employed.
He has left the job and must now find another one. The experts'
opinion was that he should not be driving and in fact
he should not
have been allowed to drive at all after the accident. Even if it can
be said that I must not accept this evidence
because the plaintiff
had been driving for two years without any complaint, the evidence of
Dr Weitz, to the effect that the condition
was degenerative, still
stands.
[45]
The industrial psychologist's opinion, which I accept, is that but
for the accident, firstly, the plaintiff would have worked
as a
driver until the age of sixty years when he would have retired;
secondly, that after the age of sixty, he would have done
piece jobs,
e.g. one day driving, to augment his pension money until at least the
age of sixty five years.
[46]
My view is that but for the accident, with his one good eye,
possibilities are that the plaintiff would have continued to work
as
a heavy-duty driver until his retirement age of sixty years. This he
will no longer be able to do as he has been forced to go
into
retirement at the early age of fifty-seven years. The income that he
would have received from the age of fifty-seven years
until he
reached the retirement age of sixty years plus the income he would
have received from the piece jobs is to me the actual
pecuniary loss
that the plaintiff has suffered and which diminished his patrimony.
[47] I am satisfied
therefore that the plaintiff succeeded in proving his claim for loss
of earnings / earning capacity.
ACTUARIAL
CALCULATIONS [48] The actuarial calculations are based on the above
summation and I am of the view that they have been
correctly
computed. The calculations are from 1 September 2010 when the
plaintiff was fifty-seven years until he reaches sixty-five
years. I
must now determine the percentage that must be applied in respect of
the contingency deductions. As is trite, the contingency
deductions
are within the discretion of the court and depend upon the judge's
impression of the case. Normal contingencies are
5% for past loss and
15% for future loss.
SOUTHERN INSURANCE ASSOCIATION V
BAILEY
NO
1984(1) All SA 98 at 113 (G) and Robert Kock: THE
QUANTUM
YEARBOOK 2011
at p104.
[49]
In the circumstances of this case, I considered the fact that the
plaintiff was fifty-seven years old when he left his employment;
that
his choices of finding alternative employment were limited; his
chances of a career change were also limited; because of the
lost
sight and constant pain he will not be motivated to look for and do
piece jobs. I am therefore of the view that the normal
contingency
deductions of 5% for past loss and 15% for future loss must be
applied.
[50]
The calculations will thus be as follows:
PAST LOSS
Earnings pre morbid R 21
790
5% deductions
1 089-50
20 700-50
[51] The plaintiff's
counsel referred me to the judgments in the following cases in
comparison to the current case:
BUTTON v SA EAGLE INSURANCE CO LTD
1980 3 C & B 323E - in that case the plaintiff sustained a head
injury with concussion; damage to the right eye, resulting
in total
loss of sight in that eye; most serious of all, a severe compound
fracture of the right humerus with severed muscles and
nerves; an
injury to the chest; abrasions and lacerations. The plaintiff was
awarded R22 500, which translates into R414 000 in
2012 according to
Robert Kock's Quantum Yearbook 2012
TROOST TRANSPORT T/A
EKONOLINER LUXURY COACH LINES v ABRAHAMS
1997 4 C & B 13 3
(C") - the plaintiff sustained total and permanent loss of sight
in both eyes and was awarded R100 000,
which translated to R235 000
as per Robert Kock's Quantum Yearbook 2012.
EDEM v ROAD ACCIDENT
FUND
2001 C & B 513 - 1 (AF) - the plaintiff suffered a
rapture of the right eye causing irreversible loss of all sight in
that
eye. Due to a pre-existing condition in the left eye, plaintiff
was left with residual vision of only about 20% in the left eye.
The
claimant was awarded R120 000, which translated into R225 000
according to Robert Kock's Quantum Yearbook 2012.
MTHEMBU v
MINISTER OF LAW AND ORDER
1991 4 C & B 13 - 1 (D) - the
plaintiff's vision in the right eye was completely and permanently
destroyed by a shotgun pellet
fired by a policeman. The claimant was
awarded R55 000 which translated into R223 000 per Robert Kock's
Quantum Yearbook 2012.
AA ONDERLINGE ASSURANSIE ASSOSIASIE v
SODOMS
1980 3 C & B 105 (A) - the plaintiff lost the sight of
his right eye and had to endure two operations to the eye. He was
awarded
general damages in the amount of R10 000 which translated to
R184 000 as per Robert Kock's Quantum Yearbook 2012.
[52] Counsel submitted
that the Appellate Division's approach was that courts must be
liberal in awarding damages. The court in
this instance must decide
what is fair compensation where the injuries comprise of left eye,
depression, headache and shoulder.
He was of the opinion that an
amount R300 000 would be a reasonable award in the circumstances of
this case.
[53] He further contended
that, in referring this court to a case where a whiplash injury was
in issue, the defendant's counsel
was not comparing like with like
because a whiplash injury has nothing to do with the current case. He
further submitted that other
cases referred to by the defendant's
counsel were on the extreme limits of being unrealistic and that
relevant cases are those
dealing with loss of eyesight.
[54] The defendant's
counsel submitted that the plaintiff did not report the other
injuries to the orthopaedic surgeon and that
only the injuries on the
forehead, as stated in the clinical report, are accident related and
should be considered by the court.
[55] In comparison with
the current case, he referred me to the following judgments in
PETERS
v RAF
2004 (5) C&B C where the injury was a whiplash of the
neck and back and was too severe compared to the current case. The
court
in that case awarded R72 000 in present 2012 value;
NEWLIFE
v RAF
1974 (2) C&B 400 where the court dealt with back and
neck injury which is much closer to the scenario in our case and the
court
awarded R22 000.
[56] He submitted that
taking all the injuries sustained by the plaintiff in this instance
into account, if the court does not award
R22 000 the compensation
should not be over R50 000.
[57] Comparison with
previously decided cases does not help in most cases, as few cases
are rarely directly comparable. No two cases
can be on all fours. The
cases I have been referred to by the two counsels are a good example
of how no two cases can be on all
fours. The plaintiff's counsel
submitted that the
EDEM
- case supra is very similar to the
current case. I however do not agree. In this instance the plaintiff
was left 50% blind in
the good eye, whereas in that case the
plaintiff lost complete sight in the good eye. The defendant's
counsel on the other hand
argued that the injuries of back and neck
pain in the
NEWLIFE
- case supra were much closer to the
scenario in our case. This is also not so because in this instance
the plaintiff did not sustain
back and neck injuries only. As has
always been stated previously decided cases must be taken as only a
guide of how other courts
awarded the damages.
[58] In this instance,
the injuries sustained by the plaintiff and the sequelae thereof have
been succinctly set out in paragraphs
[38] and [39] of this judgment.
The plaintiff received a voltaren injection and bruffen tablets at
the hospital. This treatment
confirmed that he experienced pain and
headache. It is therefore evident that the plaintiff did experience
pain and suffering at
the time of the accident. He also continued to
experience the pain even after the accident. This is so because when
he visited
the various experts for examination he presented with
headache and constant neck and shoulder pain. He will also continue
experiencing
the shoulder pain. The doctor has also recommended
arthroscopy, which will cause more pain.
[59] It is also
undisputed that the plaintiff suffered loss of amenities of life. The
experts are agreed, which I accept, that there
has been loss of
amenities of life because of the mildly diminished self-management
and home management efficiency and loss of
previous leisure pursuits.
I agree that the loss of vision also contributes to the loss of
amenities as well.
[60] The award of general
damages is by no means an easy task. I am however satisfied that, in
the circumstances of this case, the
plaintiff has been able to prove
that he has experienced pain and suffering and has also suffered the
loss of amenities of life.
Consequently an amount of R200 000 is in
my view, a fair, just and reasonable compensation.
ORDER
[61]
In the premises I make the following order:
61.1 General damages are
awarded to the plaintiff in the amount of R200 000;
61.2 Future loss of
earnings damages are awarded to the plaintiff in the amount of R81
588-55;
61.3 The defendant is
ordered to pay interest on the amount awarded at the prescribed
interest rate, from a date fourteen days after
the date of this
judgment to date of payment;
61.4 The defendant is
ordered to pay the plaintiff the costs of this suit, including the
qualifying expenses of:
61.4.1 Ms Brown;
61.4.2
DrD. A. Birrell;
61.4.3
Dr D. A. Shevel;
61.4.4
Dr Mazabow;
61.4.5
Ms Noble;
61.4.6
Prof Fritz;
61.4.7
DrWeitz;
61.4.8
MrWhittaker;
61.4.9
DrGuy; and
61.4.10
CPRD Consulting Services
61.5
It is recorded that the defendant shall provide the plaintiff with an
undertaking for 100% future me dical expenses in terms
of
section 17
(4) (a) of the
Road Accident Fund Act 56 of 1996
, as amended.