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[2012] ZAGPPHC 294
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Smit v Road Accident Fund (24883/2008) [2012] ZAGPPHC 294 (16 November 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH, PRETORIA)
CASE
NO: 24883/2008
DATE:16/11/2012
In
the matter between:
ABRAHAM
MATTHYS SMIT
(as
curator ad litem to SAMUEL TEBOGO
TSOTETSI)
…...................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.........................................................................................
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
This is an action for damages in terms of the Road Accident Fund Act,
56 of 1996 (“the Act”) pursuant to a motor
vehicle
collision on 20 May 2006 during which Mr. Tebogo Tsotetsi, then 27
years old, suffered a fracture of the right femur and
a severe head
injury. He was cyclist when the collision occurred. The plaintiff is
a curator ad litem on behalf of Mr Tsotetsi,
by an order of this
court on granted on 2 November 2012. In his amended particulars the
plaintiff claimed R3 000 000 for loss of
earning capacity and R1 000
000 for general damages. The defendant has conceded the merits in
full, meaning the plaintiff is entitled
to 100% of his proven
damages.
[2]
The parties have agreed on an amount of R251 949 in respect of loss
of earnings and earning capacity. All I need to do is to
decide on an
appropriate percentage of contingency deduction. The parties have
also agreed that the defendant will furnish Mr.
Tsotetsi with an
undertaking in terms of s 17(4)(a) of the Act. Accordingly, the only
issue for determination is the quantum of
general damages and a
contingency deduction to be applied to the agreed amount in respect
loss of earnings and earning capacity.
The
injuries, treatment and consequences
[3]
I have already alluded to the nature of injuries sustained by Mr.
Tsotetsi. He was initially treated at the Heidelberg Hospital
on 26
May 2006, the day of the collision. He was examined, x-rayed and
admitted for treatment. The right femur fracture was initially
treated conservatively with traction, but he later underwent an open
reduction and internal fixation of the right femur. He was
discharged
after 26 weeks, with medication and mobilising with the aid of
crutches.
[4]
At the time of the accident, Mr. Tsotetsi was employed by a garden
service company as gardener, where he earned R200 per week.
He was
absent from work for 18 months following the accident, during which
he received no income at all. He was unable to do gardening
work
after the accident, and was unemployed for an extended period. From
approximately 2008 to the present he has been employed
to wash cars.
He works 2 days per week (Wednesdays and Saturdays) and earns R15 per
car. This is said to be a sympathetic gesture
from the owner of the
car wash business. He reportedly washes 4 cars per day. His average
monthly income is therefore R480. He
was reportedly rendered
unemployeable from 1 September 2011.
The
experts1 reports
[1]
By agreement the expert reports prepared on behalf of Mr. Tsotetsi
were handed in. The experts are Dr. M. Lichtenberg (orthopaedic
surgeon); Ms. Sara Boyman (occupational therapist); Ms. Christa du
Toit (industrial psychologist); Dr. S Braun (plastic and
reconstructive
surgeon); Mr. Alex Stipinovich (speech and language
therapist); Dr. J. Scheltema (neurosurgeon); Ms. Marylin Adan
(neuropsychologist)
and Dr. Shevel (psychiatrist).
[2]
From the totality of the expert reports, Mr. Tsotetsi experiences
difficulties with the following: standing longer than an hour;
carrying 20 litre buckets; walking for longer than 30 minutes; weekly
headaches; depressed mood and severe memory losses; irritability;
social withdrawal; occasional suicidal thoughts; loss of libido;
sleep disturbance; daytime fatigue; diminished enjoyment of life;
and
no plans for the future.
[3]
The following clinical observations and findings were made on
assessment. There is shortening of the right lower limb for 3.5
cm
and the limb is in 20 degrees external rotation, where, given his
young age, a femoral osteotomy and internal fixation is recommended.
He has inconspicuous healed lacerations above the brow; and two
intradermal cysts on the left outer can thus of the left eye. He
also
has a severe to moderate organinc brain syndrome - post-traumatic,
with associated frontal lobe symptomatology and post-traumatic
epilepsy. He exhibits inconsistency in performance; significant
difficulties with concentration, including impulsivity and
distractibility;
adynamic, presenting with reduced drive and
motivation to complete tasks; he tires easily and exhibits reduced
endurance. Neuropsychological
assessment results showed marked
diffuse neuropsychological deficits and difficulties with strong
frontal lobe overlay.
Future
loss of earninqs/loss of earning capacity - contingency deduction
[8]
As stated in the introduction, the parties have agreed on an amount
of R251 949 in respect of this head of damages. A contingency
deduction has to be applied to this amount. In this regard I refer to
Robert Koch The Quantum Yearbook 2012, p102, where the learned
author
states the following ‘sliding scale’ to be applicable: Vi
% for year to retirement age, i.e 25% for a child,
20% for a youth
and 10% in middle age.
[9]
In Road Accident Fund v Guedes1, the trial court had arrived at the
quantum of its award on the basis of an actuarial calculation
of the
income the respondent (26 years old) would have made but for the
accident and the income she stood still earn, from which
figures it
made contingency deductions of 10% and 30% respectively, and then
awarded the difference. On appeal to it, the SCA concluded
that the
trial court had misdirected itself in its ‘but for’
scenario contingency deduction, based on the trial court’s
misunderstanding and misapplication of the ‘sliding scale’
guideline by Koch. The SCA concluded that with proper application
of
the guideline, the trial court should have made a deduction of 19.5%.
The appeal was allowed and the contingency deduction was
altered from
10% to 20%.
[10]
I would categorise Mr. Tsotetsi as a youth - he was only 27 years old
at the time of the accident. Given all these considerations,
it seems
a contingency deduction of 20% is fair and justifiable. Applying that
percentage deduction to the agreed amount, the net
loss is R201
559.20.
General
damages
Purpose,
approach and general principles
[11]
I turn now to general damages. Arriving at an appropriate award for
general damages is never an easy task. The difficulty in
placing
monetary value on pain and suffering, loss of amenities of life and
disability, is described by Gauntlett, the learned
author in Corbett,
The Quantum of Damages vol 1, 4ed, at pages 4-5 as follows:
“
In
determining the award of damages to be made under the heading general
damages there are of course no scales upon which one can
weigh things
like pain and suffering and loss of amenities of life, nor is there a
relationship between either of them and money
which makes it possible
to express that in terms of money with any approach to certainty. The
broadest general consideration and
the figure arrived at must
necessarily be uncertain, depending upon the judge’s views of
what is fair in all circumstances
of the case. (Sandler v Wholesale
Coal Suppliers Ltd
1941 AD 194
at 199.)”
[12]
The purpose of awarding general damages is to compensate a claimant
for the pain, suffering, discomfort and loss of amenities
of life to
which he or she has been subjected as a result of the particular
injuries that were sustained. Although the determination
of an
appropriate amount in this regard is largely a matter of discretion,
some guidance can be obtained by having regard to previous
awards
made in comparable cases. Past awards in comparable cases afford a
useful guide in determination of general damages.
[13]
Awards in previous cases can, however, only offer broad and general
guidelines in view of the differences that inevitably arise
in each
case. The process of comparison is not a meticulous examination of
awards, and should not interfere upon the court’s
general
discretion (Protea Assurance v Lamb
1971 (1) SA 530
(A) at
535H-536A). The previous awards should obviously be updated to
present day values in order to properly serve as a basis
for
comparison. In making such an adjustment, one should be mindful of
the fact that, whereas it is permissible to have regard
to the
general depreciation in the value of our currency by utilising the
consumer price index (CPI) a slavish adherence thereto
may lead to
undesirable results.
[14]
I am quite aware of, and take into account, the recent tendency by
our courts to make higher awards than has been the trend
in the past.
See Marunga (supra) at 160G-H, where the rationale therefor was
articulated, with reference to Wright v Multilateral
Vehicle Accident
Fund, Corbett and Honey The Quantum of Damages in Bodily and Fatal
Injuries Cases vol 4 at E3-31
[15]
I also take into consideration that the remarks in Marunga were
tempered later in De Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA) at
para 60 where, after noting that the tendency towards increased
awards in respect of general damages in recent times was
readily
perceptible, the court reaffirmed conservatism as one of the multiple
factors to be taken into account in awarding general
damages. The
court concluded that the principle remained that the award should be
fair to both sides - it must give just compensation
to the plaintiff,
but ‘not pour out largesse from the horn of plenty at the
defendant’s expense’, as pointed
out in Pitt v Economic
Insurance Company Limited
1975 (3) SA 284
(N) at 287.
[4]
The injuries sustained by Mr. Tsotetsi are severe, with serious and
long term adverse consequences. They have resulted in serious
effect
upon his life. Prior to the accident he was completely healthy. The
injuries have left Mr. Tsotetsi with a negative alternation
of his
physical condition. The injuries are unavoidably connected with gross
pain and suffering for extended periods of time. He
is likely to
undergo surgical procedure to fix the area of fracture. It is likely
to be followed by another one in the distant
future for the removal
of internal fixation from the fermur. All these would result in
further pain and suffering for him. According
to Dr. Lichtenberg,
orthopaedic surgeon, the surgical procedure would require
approximately 10 days of hospitalization and three
months of
ambulation on crutches. To the date of examination by Dr.
Lichtenberg, he suffered from intense symptoms of pain in the
area of
right thigh, which improved only after 3 months. He also complained
of frequent headaches. The pain symptoms are of such
intensity that
he is prevented from resuming his work, and limits his overall
physical performance, even in normal life circumstances.
[5]
As to the awards made in previous comparable cases, I have had regard
to the following cases: Bikawuli v Road Accident Fund
2010 (6BB4) QOD
17 (ECB); Sterris v Road Accident Fund 2010 (6B4) QOD 26 (WCC);
Tobias v Road Accident Fund
2011
(6B4) QOD 65 (GNP); Mgudlwa v Road Accident Fund 2011 (6E3) QOD 1
(ECM); and Venter v Road Accident Fund 2011 (6E3) QOD 7 (GNP).
[6]
In the final analysis, I must make an award that is just and fair on
the particular facts of the present case. In the circumstances,
taking into account the nature of Mr. Tsotetsi’s injuries and
their sequelae, the awards in previous comparable cases and
the
decline in the value of the currency in the last decade, I am of the
view that an amount of R 650 000 would constitute a fair
and adequate
compensation for Mr. Tsotetsi.
[7]
To sum up. The total of the plaintiff’s damages is R 851 559.80
made up as follows:
Future
medical treatment
An
undertaking in terms of s 17(4)(a)of the Act General damages R 650
000.00
Loss
of earnings and/or earning capacity R 201 559.80
[8]
The parties’ counsel have agreed on a comprehensive draft
order, subject to my conclusion on the two amounts reflected
above. I
have inserted the total of the two amounts in the draft order.
[9]
In the result the draft order attached hereto, dated, initialled and
marked "X”, is made an order of this court.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 5 NOVEMBER 2012
JUDGMENT
DELIVERED : 16 NOVEMBER 2012
FOR
THE PLAINTIFF : ADV N ENGELBRECHT
INSTRUCTED
BY : RAPHAEL KURGANOFF INC
JOHANNESBURG,
AND VAN STADE VANDER ENDE, PRETORIA
FOR
THE DEFENDANT : ADV C DALTON
INSTRUCTED
BY : MOTLHE JOOMA SABDIA INC, PRETORIA