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[2012] ZAFSHC 128
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Dlangamandla v Road Accident Fund (3265/09) [2012] ZAFSHC 128 (28 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3265/09
In the matter between:-
CEBISA NOMZAMO
DLANGAMANDLA
…....................................
Plaintiff
and
ROAD ACCIDENT FUND
….......................................................
Defendant
_____________________________________________________
HEARD
ON:
16 MARCH 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, AJP
_____________________________________________________
DELIVERED
ON:
28 JUNE 2012
_____________________________________________________
[1] The plaintiff sues
the defendant for payment of damages in the sum of R9,2 million. The
plaintiff was injured in a road accident
which took place in Andries
Pretorius Street in Bloemfontein on 7 October 2006. The action is
defended.
[2] The issues of merits
and quantum were separated. The substantive merits have been
previously adjudicated upon. The defendant
was held to be fully
liable for the plaintiff’s proven damages. In these proceedings
I am now called upon to determine the
quantum of the plaintiff’s
damages.
[3] In her particulars of
claim, the plaintiff alleged that she sustained certain bodily
injuries as a result of the aforesaid road
accident. Her injuries
were described as follows: a severe brain injury; a fracture of the
left femur and multiple lacerations
and abrasions.
[4] She further alleged
that she received past medical treatment. Such treatment included
emergency treatment at the hands of the
paramedic ambulance crew at
the scene of the accident and intensive medical treatment and care at
Pelonomi Hospital where she was
admitted and treated as an inpatient.
[5] The plaintiff alleged
firstly, that as a result of the aforesaid injuries she would have to
incur medical and related expenses
in the future. Secondly, she
alleged that the injuries she sustained coupled with the disability
which stemmed from them, would
have an adverse impact upon her
capacity to earn an income in the future. Thirdly, she alleged that,
as a result of the injuries
she sustained, she has suffered loss of
amenities of life and that she had endured, and would continue to
endure, pain and suffering.
[6] Initially the
defendant disputed the nature and extent of the injuries the
plaintiff alleged she had sustained in the accident.
In its plea the
defendant consequently repudiated the plaintiff’s claim for
compensation. I adjudicated the substantive merits
of the matter. At
the end of the hearing I found for the plaintiff as I have already
said.
[7] I was subsequently
called upon to adjudicate the disputes by determining the issues of
quantum. During the course of the second
leg of the trial, certain
quantum issues were narrowed. Now two issues remain for
determination,
viz
future loss of earning capacity and general
damages.
[8] In the first place, I
deal with the issue of loss of earning capacity. This is one of the
segments of special damages. The inquiry
requires the leading of
medical evidence concerning the effects which the injury will have on
the plaintiff in the long run. Of
particular significance is the
adverse impact, if any, of such injury on the plaintiff’s
ability to earn a livelihood in
the future. The underlying purpose of
the inquiry here is to have any limitation to a victim’s
capacity to earn income in
the future first ascertained and then
quantified in monetary value.
[9] Shortly before the
close of the plaintiff’s case, the assessment report by Dr.
P.A. Olivier, the plaintiff’s orthopaedic
surgeon, was admitted
and handed in as evidence. That was done by agreement between the
parties. The defendant closed its case
without calling any witness.
[10] On behalf of the
plaintiff Mr. Strydom contended that the plaintiff would suffer
substantial loss of capacity to earn income
as a result of the
injury. Under this head of compensation the plaintiff estimated her
claim to be in the region of R8 million.
[11] On behalf of the
defendant Ms De Kock contended that the plaintiff would not suffer
substantial loss of capacity to earn income
in the future, as was
contended. Besides submitting that the plaintiff’s claim was
very excessive, counsel did not venture
to say what figure the
defendant regarded as a fairly reasonable compensation to the
plaintiff.
[12] In support of her
claim, the plaintiff called the following witnesses:
Nomazima Dlangamandla,
the plaintiff’s biological mother;
Sivuyisile Dlangamandla,
the plaintiff’s older sibling;
Dr. Odette Guy, a speech
language therapist and audiologist; Ms Andiswa Gowa, an occupational
therapist;
Dr. Pieter Repko, a
neurosurgeon; Dr. Richard G Holmes, an industrial psychologist; Mrs
Margaret Gibson, an educational and neuropsychologist;
Ms F A van
Vuuren, an educational psychologist and remedial therapist.
[13] In order to
determine the extent of the plaintiff’s future loss of earnings
capacity it is necessary to consider two
scenarios that emerged
during the course of evidence.
[14] The pre-accident
scenario – This requires that the plaintiff be profiled before
7 October 2006. The plaintiff was born
on 24 March 1990. She lived at
Sterkspruit in the Eastern Cape. She was the second child in a family
of two siblings. She performed
very well scholastically. She never
repeated a class or a grade at school. She was in grade 11 at
Navalsig High School in Bloemfontein
in 2006 when she met her
disaster. Her subjects included physical science and mathematics. Her
ambition was to become a chemical
engineer. These facts were sourced
from the evidence of her mother, Ms Nomazima Dlangamandla’s
evidence.
[15] Her mother described
her as a clever, happy, friendly, confident, tolerant, sociable and
articulate girl. Her older sister,
Sivuyiside Dlangamandla, described
her little sister in pretty much the same way. She said the plaintiff
was a jolly girl who liked
having fun with her peers. She was a very
pleasant person with an outgoing personality. The aforegoing personal
profile is of vital
importance in determining her career,
development, disregarding her disability.
[16] Ms M. Gibson
assessed the plaintiff as above average intellectually. She regarded
her as an exceptional learner. She had no
doubt that, with the sort
of scholastic accolades she had, the plaintiff was on course to pass
matric with a university exemption
and that she would be able to
advance to degree studies.
[17] Dr. R.G. Holmes’
evidence was that the plaintiff was an active and healthy child and a
social product of a highly functional
family. She could have worked
in the private or public sector. The corporate world falls under the
former. So much about the pre-morbid
scenario.
[18] The post-morbid
scenario – The focus shifts to the period after 7 October 2006.
According to the plaintiff’s mother
and sister, the plaintiff
became a different person altogether after the disaster, which befell
her on the fateful day. She became
very forgetful, angry, intolerant,
irritable, unhappy, unfriendly, over-sensitive, a-sociable, impulsive
and unpleasant. She is
less confident about herself. She cries a lot
and often hibernates or locks herself in her bedroom. She is no
longer open-minded.
She gets annoyed when one disagrees with her
viewpoint. She suffers from mood swings, poor self-esteem and poor
memory. She often
gets panic attacks while taking exams or tests.
[19] The plaintiff was
rendered unconscious by the physical impact during the collision.
Seemingly she was in that condition upon
her admission. She remained
in that state for a few days. The ultimate diagnosis revealed that
she sustained head injury as well
apart from a fracture of the left
femur. At her mother’s request she was transferred to the
Netcare Hospital, a private hospital
housed on the same premises as
Pelonomi Hospital, where a surgical operation was performed on her
fractured femur. On 15 October
2006 she was discharged from the
hospital.
[20] The doctor advised
her parents and the school that she would not be able to attend
school for the remainder of the year. As
a result of her injury she
could not sit for the grade 11 year-end exams. On the strength of her
good school record, she was given
a condoned pass. In 2007 she
returned to school and resumed her studies as a grade 12 learner. She
found it hard to cope. She failed
test after test. She was taking
subjects on a high grade. Realising that she could no longer cope,
she scaled down her school programme
by lowering the grading of her
subjects from high to standard grade. Notwithstanding such
downgrading, she continued to struggle.
She fared very badly in the
final matric exams. Her highest symbol was D. The rest of the symbols
were 3 E’s and 2F’s.
Needless to say that she did not
obtain a university exemption. Thus she could not begin her tertiary
education.
[21] Since she did not
obtain university exemption, something she desperately needed in
order to pursue her dream of becoming a
chemical engineer, she took
supplementary exams in 2008 in an endeavour to improve her poor grade
12 results. Her efforts were
fruitless.
[22] In 2009 she embarked
on a two year diploma course in IT Networking at Varsity College in
Port Elizabeth. She did not complete
the course there. Poor academic
performance coupled with relational problems forced her to move. She
moved to another college in
Tswane. She continued to struggle. She
was unable to complete the course within the prescribed two year
period. She failed some
subjects in 2010 and again in 2011. She
eventually completed the diploma in 2012. Even then she passed after
she was required to
sit for supplementary examinations. The
aforegoing personal profile is of paramount importance in determining
her vocational development
regarding her disability.
[23] Dr. P. Repko
assessed the plaintiff. According to his evidence the plaintiff’s
concussive head injury consisted of an
injury to the occipital region
of her head. The occipital injury gave rise to loss of consciousness
and subsequent period of amnesia.
In his opinion the plaintiff
sustained cerebral oedema which caused axonal damage, in other words,
permanent damage to her mental
function. The brain injury she
sustained in the collision was diffused in nature. Seeing that the
frontal lobe was involved, the
injury should be classified as a
severe form of brain damage. The personality change earlier alluded
to, was a true complaint and
it was causally attributable to the
brain injury the plaintiff sustained. He was of the opinion that
notwithstanding the plaintiff’s
disability and cognitive
impairment, she was nonetheless still employable.
[24] Ms Gibson also
assessed the plaintiff. Her evidence was that the plaintiff sustained
traumatic brain injury. Her initial state
of unconsciousness as well
as her subsequent post-traumatic amnesia of about five days
corroborated such injury. She mentioned
three external factors which
indicated that the plaintiff had indeed sustained brain injury,
namely: deterioration of her school
performance after the injury; her
impulsive intolerant and irritable tendencies after the injury and
her lack of sustained attention,
working memory, mental tracking,
executive functioning, information processing and information
retention.
[25] The danger of the
plaintiff’s post-accident situation was, according to the
witness, that she was at the raised risk
for social, behavioural and
affective difficulties. Those difficulties were likely to negatively
affect her in the work environment.
The likelihood was that she would
tend to hop from job to job. She was likely to develop a bad
reputation as being superficial
and whimsical among her fellow
employees. That sort of unfavourable depiction would adversely affect
her assessment by prospective
employers.
[26] She concluded that
the profile of the educational and neuro-psychological test results
indicated diffused brain injury with
frontal lobe involvement and
that such profile was consistent with the complaints documented in
her report. In her opinion the
plaintiff was no longer employable.
[27] Dr. O. Guy opined
that the plaintiff presented with speech, language and communication
profile that was characterised by mild
articulation problem and
expressive language problem. Her language pattern, according to the
witness, was typical of that often
seen after a traumatic brain
injury. She expressed the opinion that the plaintiff’s language
and communication difficulties
rendered her functionally
unemployable.
[28] Dr. P.A. Olivier
found that the plaintiff had sustained a commuted midshaft femoral
fracture of the left leg.
[29] Dr. R. Holmes’
opinion about the plaintiff’s post-accident profile was that
the plaintiff presented with a poor
self-concept, a perceived reduced
self-confidence and a loss of self-esteem. The witness remarked that
the plaintiff remained prone
to moods of despondency and even
depression at times. She becomes easily frustrated, has a tendency to
be emotional and most evidently
lacking impatience and tolerance
towards others. Such characteristics invariably strain relations at a
worker’s workplace.
[30] The witness remarked
that although the plaintiff continues to make every effort possible
to educationally improve herself,
it is not anticipated that she
would ever be able to utilise any further qualification she might
obtain in the future, should she
succeed in her endeavours.
[31] The industrial
psychologist remains pessimistic concerning the plaintiff’s
ability to ever become a competitor in the
open labour market,
notwithstanding the contrary view by Dr. P. Repko. Indeed, he was of
the opinion that all factors considered,
it was not expected that she
would be able to obtain or sustain any meaningful or competitive
work, given her post-accident cognitive,
neuropsychological,
educational, sociological, emotional and functional impairments.
[32] The plaintiff’s
witnesses, without any exception, acquitted themselves very well as
witnesses. They all gave evidence
in a candid, consistent, logical
and straightforward manner. They did not contradict themselves. None
of them was contradicted
by another. They materially corroborated one
another. I did not get any impression that the mother and the sister
were induced
by the relationship to unfairly exaggerate any aspect of
the plaintiff’s pre-accident situation or post-accident
situation.
Neither the expert witnesses nor the lay witnesses were
shaken by cross-examination. All of them impressed me as witnesses.
They
portrayed positive demeanours in the witness box. I have no
hesitation to accept the testimony of each one of them as credible
and reliable evidence.
[33] The experts, in
particular, Dr. Repko was at pains to explain the nature and severity
of the concussive head injury associated
with traumatic brain injury
the plaintiff has suffered. His evidence in connection with the brain
injury was substantially corroborated
by Ms Gibson. She identified
certain external indicators as evidence of such brain injury. None of
these aspects relative to the
brain injury were disputed during the
course of the hearing. In the absence of any evidence to the
contrary, it has to be accepted
that the plaintiff has sustained
severe diffused brain injury with frontal lobe involvement and a
communeted midshaft femoral fracture
of her left leg. According to
the expert witnesses both injuries entailed permanent disabilities.
[34]
In the case of
SOUTHERN INSURANCE ASSOCIATION LTD v
BAILEY NO
1984 (1) SA 98
(AD) at 113F the court held:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.”
[35] In his assessment
report Dr. Holmes stated that salary figures given in the vocational
tables were approximations only of future
earnings and that they were
not supposed to be regarded as definite salary figures for various
vocations. He stressed that much
depends on numerous factors such as
actual geographical location of a given business, the availability of
adequately qualified
individuals and conditions of employment under
which a particular appointment is made.
[36]
Additional factors with a bearing on actual salary figures would,
among others, relate to socio-political climate, socio-economic
trends, the possibility of errors in the prediction of a victim’s
lifespan expectancy, victim’s estimate age of retirement,
likelihood of unforeseen illness or unemployment which would, in any
event, have occurred or which may in fact occur. The inflation
or
deflation of the value of the domestic currency in the future and the
possibility that, in spite of the experts’ predictions
and
expectations to the contrary, the plaintiff might be gainfully
employed and handsomely remunerated and the uncertainty as regards
the precise sector in which the plaintiff would have been employed
but for the accident. See Dr. R.J. Koch 2012:
Quantum
Year Book
.
[37] The calculations
made by Dr. R.J. Koch, the actuary, in this matter did not contain
deductions for general contingencies. When
the plaintiff’s
future loss of earning is determined I shall take into account the
aforegoing factors in determining appropriate
deductions for general
contingencies.
[38]
In general the standard measure of deductions for general
contingencies and hazards of life frequently applied to past loss
of
earnings is 5% and to future loss of earnings 15%.
GOODALL
v PRESIDENT INSURANCE CO LTD
1978 (1) SA 389
(W);
ROAD
ACCIDENT FUND v GUEDES
2006 (5) SA 583
(SCA)
[39] Ms De Kock urged me
to apply the aforesaid rates of contingencies. Mr. Strydom urged me
to apply 20% or 25% in respect of future
loss of earnings. As regards
past loss of earnings he agreed with Ms De Kock that 5% was an
appropriate rate of deductions.
[40] The plaintiff’s
loss of future earnings may be calculated by means of the following
method: Firstly, the estimated value
of the income which the
plaintiff would have earned in the future, having no regard to the
injuries and consequent disability,
has to be calculated. Secondly,
the estimated value of the income which the plaintiff stands to earn
in the future, if any, having
regard to the injuries and consequent
disability, has to be calculated. Thirdly, the post-morbid figure
obtained under the second
step must be subtracted from the pre-morbid
figure obtained under the first step above. Fourthly, the figure
obtained as a result
of the aforegoing subtraction process, must then
be adjusted by taking into account all the relevant factors and
appropriate general
contingencies already referred to.
[41] The results of the
actuarial assessment report by Dr. R.J. Koch were as follows:
“
Based on the
aforegoing considerations the calculation yields the following values
as at 13 March 2012:
Results: Uninjured Injured NetValue
Diploma/degree private sector R R R
Past income: 120,515 0 120,515
Future income: 8,289,421 0 8,289,421
Control total for above items
8,409,936
Results: Uninjured Injured NetValue
Post-graduate degree private sector R
R R
Past income: 42,179 0 42,179
Future income: 10,602,931 0 10,602,931
Control total for above items
10,645,110
Results: Uninjured Injured NetValue
Diploma/degree public sector R R R
Past income: 144,271 0 144,271
Future income: 8,512,203 0 8,512,203
Control total for above items
8,656,474
Results: Uninjured Injured NetValue
Post-graduate public sector R R R
Past income: 66,040 0 66,040
Future income: 10,765,441 0 10,765,441
Control total for above items
10,831,481
Note that the above values will change
with the passage of time and may need to be recalculated if there is
an extended delay before
payment of compensation.
Note that the above items have not
been adjusted for general contingencies save that full allowance for
early and late death, in
accordance with the life table, has been
included in the capitalization process.”
[42] It will be readily
appreciated that the actuary made no allowance for the plaintiff’s
post-morbid future earnings. He
assumed that the plaintiff would not
earn any income in the future now that she has been injured and
permanently disabled. The
actuary’s assumption was on all fours
in line with the majority opinion expressed by the experts, namely:
Ms M. Gibson, Dr.
O. Guy and Dr. R.G. Holmes. However, Dr. P. Repko
differed. The actuary’s assumption was not in line with that
minority opinion.
[43] Mr. Strydom, relying
on the majority opinion of the experts, submitted that the
plaintiff’s post-accident earnings should
be taken as zero. Ms
De Kock differed. She submitted that the assumption and argument that
the plaintiff would not earn any remuneration
in the future was
unrealistic. Obviously, counsel’s submission was informed by
Dr. P. Repko’s minority opinion.
[44] To deduct or not to
deduct? That is the question. Counsel for the plaintiff contended
that the plaintiff has become totally
unemployable as a result of the
injuries she sustained and the consequent impairments. About the
plaintiff’s post-morbid
prospects of employment the opinions
and evidence of the experts were:
That Ms Dlangamandla
would not be a suitable candidate for many vocational positions on
the competitive job market;
That she would be at a
higher risk than her unimpaired competitors of being underemployed
and altogether unemployed;
That she would find it
very difficult to retain sustainable employment;
That she would face
curtailed prospects of advancement; and
That she would be
regarded as an underachiever, if she should be fortunate enough to
obtain work – given her increased risk
of social, behavioural,
relational and affective difficulties – Ms. Gibson.
[45] On the same topic
Dr. Guy’s opinion and evidence was that, given her now
compromised speech, language and communication,
Ms Dlangamandla would
experience difficulties in a workplace that has become replete with
novel jargon. Lack of articulate speech,
expressive language and
effective communication skills were all the factors that would
negatively impact on her ability to function
efficiently in the
workplace.
[46] Still on the same
topic Dr. Repko expressed the opinion that, notwithstanding her
underlying traumatic brain injury, Ms Dlangamandla
would still be
able to compete on the open labour market. He nonetheless
acknowledged, as an accomplished fact, that she would
not realise her
full pre-accident potential. He was the most optimistic of all the
experts.
[47] The most pessimistic
of them all was Dr. Holmes. This is what he had to say concerning the
young lady’s post-accident
prospect of employment:
“
Although it
is anticipated that Miss Dlangamandla could well complete her current
studies, the Writer is very pessimistic regarding
her future ability
to compete on the open labour market, given her pervasive cognitive,
neuropsychological and socio-emotional
impairments. Her problems, as
manifested and confirmed during psychometric assessment and clinical
examination would, in the Writer’s
opinion, make the pursuit of
most occupational paths extremely difficult, if not impossible.
Simply, it is unlikely that Miss
Dlangamandla would obtain meaningful employment on the open labour
market – even at a lower-skilled
level.
That Miss Dlangamandla is likely to
suffer a very significant loss of her assumed pre-morbid employment
prospect, employability
and potential to derive an income, given her
post-accident cognitive, neuropsychological and socio-emotional
impairments, should
be accepted.”
[48] Ms Gibson and Dr.
Guy, but the former in particular, were neither as pessimistic as Dr.
Holmes nor as optimistic as Dr. Repko.
Perhaps it is fair to say they
were more inclined to subscribe to the pessimists’ than to the
optimists’ opinion. It
will be recalled that the plaintiff was
only 16 years of age at the time she met the crippling disaster which
has irreversibly
altered the course of her life and shattered her
dreams.
“
... it is
always difficult to be precise when projecting a career path of a
claimant who sustained injuries during childhood.”
ARTHUR
RENS v MEC FOR HEALTH: NORTHERN CAPE PROVINCIAL
DEPARTMENT OF HEALTH
(799/06)
[2009] ZANCHC 10
(17 April
2009) per Majiedt J, as he then was.
[49] The evidence shows
that the experts are not unanimous as to what the future holds for
the young claimant’s prospects
of being gainfully employed and
thus earning income post-morbidly. Since predictions as to the future
are difficult and speculative,
these divergent view do not come as a
surprise. The minority opinion in this matter carries some weight.
Although the majority
opinion appears more persuasive than the
minority opinion, I am of the firm view that it cannot absolutely
prevail.
[50] I am not totally
convinced that the plaintiff has become virtually unemployable. I
think it remains debatable but not unreasonable
for me to estimate
that, on the proven facts, the plaintiff will probably have no less
than 15% chance of working and earning some
income from gainful
employment in the future notwithstanding her severe impairments as
alluded to by the experts. I would, therefore,
not accept the
proposition that she has become totally unemployable and that her
post-accident future earnings be taken as zero.
[51] The contingency
deductions have to be applied as follows, in other words, the first
and third scenarios (60/40):
In respect of past loss
earnings: 5% should be applied;
In respect of future loss
of earnings: 20%.
[52] As regards scenario
1:
Past
loss R120 515 - given (vide Dr Koch)
Less
5% = R120 515 x 95/100% = R114 489
Future
loss R8 289 421 - given (vide Dr Koch)
Less
20% (R8 289 421 x 80/100%) = R6 631 537
Total
(s1) R114 489 + R6 631 537 = R6 746 026 (s1)
[53] As regards scenario
3:
Past
loss R144 271 - given
R144
271 less 5% = R144 271 x 95/100%
=
R137 057
Future
loss R8 512 203 - given
R8
512 203 less 20% = R8 512 203 x 80/100%
=
R6 809 764
Total
(s3) = R137 057 + R6 809 764
=
R6 946 819
S1
+ S3 ÷ 2 = (R6 746 026 + R6 946 819) ÷ 2
=
R6 846 422
Adjustment
R6 846 422 less 15% = R6 846 422 x 85/100
=
R5 819 459
This is an estimated
average between scenario 1 and scenario 3. It represents the midway
figure between the two probable sector’s
of future employment.
[54] The contingency
deductions have to be applied as follows to second and fourth
scenarios (60/40 ratio)
In respect of past loss
of earnings 5%
In respect of future loss
of earnings 25%
[55] As regards scenario
2:
Past
loss R42 179 - given
Less
5% (R42 179 x 95/100%) = R40 070
Future
loss R10 602 931 - given
Less
25% (R10 602 931 x 75/100%) = R7 952 198
Total
(s3) R49 070 + R7 952 198 = R7 992 268
[56] As regards scenario
4:
Past
Loss = R66 060
Less
5% (R66 040 x 85/100%) = R62 738
Past
loss R10 765 481 - given
Less
25% (R10 765 481 x 75/100%) = R8 074 111
Total
(s4) (R62 738 + R8 074 111) = R8 136 849
S2
+ S4 (R7 992 268 + R8 136 849) ÷ 2 sectors
=
R8 064 558
This is the average of
the aforesaid two scenarios 2 and 4 and represents a figure somewhere
between the public sector domain and
the private sector domain.
Provision has to be made for such uncertainty.
[57] I have given careful
consideration to all four scenarios presented. Having done so, I have
come to the conclusion that greater
weight should be apportioned to
scenario two and four. I have given consideration to the real
difficulties practically encountered
in accurately determining the
ultimate educational and vocational outcome of someone injured before
the completion of an academic
goal and prior to the commencement of a
defined career.
[58] The plaintiff’s
pre-accident scholastic track record and her post-accident
unrelenting determination to overcome a great
variety of seemingly
insurmountable obstacles were appropriated acknowledged by the expert
witnesses. Given such cognitive potential
and predicted further level
of actual intellectual functioning, but for the crippling accident or
any other unforeseen adverse
circumstances – I was impelled to
believe that the young lady was on track to attain post graduate
academic accolades.
[59] Now the final
adjustment, taking into account all the general contingencies
including possible post-accident earnings, is as
follows:
R8 064 558 less 15% ( R8
064 558 x 85/100%) = R6 854 874
This disposes of the
issue of an estimated prediction of future loss of earnings.
[60]
I now turn to the issue of general damages. Under this head the
plaintiff claimed R1 million. In his closing argument Mr. Strydom
scaled down to R900 000. However, Ms De Kock argued that a figure of
R600 000 would be a fair estimate. In this regard guidance
is
frequent sought from decided caselaw. I am mindful of the general
principle that comparison with earlier cases, though not decisive,
is
nonetheless instructive –
HULLEY
v COX
1923
AD 234
; that comparative analysis of awards can only be meaningfully
undertaken where the circumstances of a matter at hand and those of
an earlier decided case are clearly shown to be broadly similar in
all material respects -
CAPITAL ASSURANCE CO LTD
v RICHTER
1963 (4) SA 901
(AD)
on 908;
that regard should be had to a general sort of figure which, by
experience, is generally regarded as reasonable in the circumstances
of a particular type of an injury -
SIGOURNAY v
GILLBANKS
1960 (2) SA 552
(AD) at 556B
and
that a court merely needs to draw on its own experience and that it
does not require to be reminded of earlier awards by the
citation of
an array of earlier decided cases –
MARINE AND
TRADE INSURANCE CO LTD v GOLIATH
1968 (4) SA 329
(A).
[61] The plaintiff was
initially diagnosed with a fracture of the left femur. A surgical
operation was performed. The fracture femur
was surgically exposed.
The injury was treated by means of internal fixation with an
intramedullary nail. The surgical wound was
then sutured. The
internal fixatives are still
in situ
. There is a visible
surgical scar. The operation, like most surgical procedures, was
undoubted followed by a long spell of pain
and suffering. The femoral
injury has adversely affected the plaintiff’s left knee. The
flexion of the joint is restricted.
There is correlation between her
femoral fracture and ipsilateral knee injury. She sustained cruciate
ligament injury and not complete
ligament tears. There are symptoms
of joint space narrowing. The narrowing puts her at risk to develop
degenerative changes. She
will endure further pain and suffering as a
result of the expected traumatic degenerative changes. She will have
to wear elastic
knee brace. Wearing it entails some discomfort. There
is a 70% probability that she will require total knee replacement in
the
future.
[62] She must have
experienced a great deal of pain on the scene before the paramedics
arrived to attend to her. She must also have
being in pain during the
course of her transmit from the scene to the hospital. She was
immobilised before she was operated upon.
She suffered acute pain and
endured considerable physical discomfort as a result of the operation
and immobilisation. It is hoped
that her pain over the trochanteric
region will completely clear up after the removal of the fixative
hardware. So far she has
endured pain over there for over six years.
Meanwhile she continues to walk with a gait. Walking in that fashion
entails discomfort.
She is physically deformed. After her discharge
from the hospital she walked on crutches for some time. She had to
endure discomfort
while she was on crutches. She was deprived of her
natural mode of ambulance.
[63] She was discharged
from the hospital and sent home to recuperate. She could not return
to school. The anguish she experienced
when she hopelessly failed
matric must have been incredible. She suffered from persistent
headache, dizziness, imbalance and sleeplessness.
The concussive head
injury and its consequent traumatic brain damage drastically
complicated her already bad communited midshaft
fracture of the
femur. Her physical disability was made a whole lot worse by a wide
range of other devastating impairments as fully
highlighted in the
assessment reports and evidence of the experts. All those impairments
have remarkably changed her personality
and permanently destroyed her
vocational aspirations.
[64] She attended some
sessions of physiotherapy treatment. She will have to do so again,
not only after the removal of the fixative
hardware, but also after
the anticipated further surgical operation for the total replacement
of her left knee. Ms Gowa’s
evidence was that such a treatment
was often vigorous and that it could be quite a painful exercise at
each session. The plaintiff
did not give evidence. Therefore there is
no direct evidence as to how she personally experienced such
treatment. However, it has
to be readily accepted as a given fact,
that she must, at least, have endured some moderate if not severe
pain during each session.
Moreover she will probably endure such pain
and suffering again in the future. The hip and knee joint will again
be manipulated
in various ways in an endeavour to strengthen the
joint muscle and to improve the restricted movement.
[65] The evidence was
overwhelming that the plaintiff is now permanently disabled. She has
experienced and will continue to experience
pain and suffering. She
was deprived of certain amenities of life such as learning, loss of
retentive memory, employment opportunities
and socially appropriate
conversation ability, among others. She was cosmetically disfigured
by the surgical scar. She is permanently
deformed – physically
and mentally.
[66] As regards the
plaintiff’s aspired dream, the witness commented:
“
Although it
was Miss Dlangamandla’s ambition to qualify as a chemical
engineer, this would not have been a realistic and attainable
goal,
given her pre-morbid performance in Mathematics.”
(Dr
R. G. Holmes)
[67] It is my considered
opinion that, in the light of all the aforesaid factors, an award of
R950 000 would be a fairly reasonable
general compensation for all
amenities lost, such as disfigurement, deformity, discomfort, pain
and suffering. Compare
TORRES v ROAD ACCIDENT FUND
2010
(6A4) QOD 1 (GSJ);
CORDEIRA v ROAD ACCIDENT FUND
2011
(6A4) QOD 45 (GNP).
[68] Accordingly I make
the following order:
68.1 The defendant is
directed to pay the plaintiff compensation in the total award of R7
804 874,00;
68.2 The defendant shall
also pay interest thereon at the rate of 15,5% per annum from the
fifteenth day of this order;
68.3 The defendant shall
furnish the plaintiff with a written undertaking in terms of
section
17
of the
Road Accident Fund Act 56 of 1996
to cover the plaintiff’s
costs in respect of future medical expenses to the sum of R300
000,00.
68.4 The defendant is
directed to pay R5 million of the capital award over to the Master of
the High Court, Bloemfontein, to be
held and invested in “The
Guardians Fund” for the plaintiff’s benefit until the
court orders otherwise.
68.5 The Master of the
High Court, Bloemfontein, is directed to pay unconditionally pay the
plaintiff an allowance of R25 000,00
per month as from 7 July 2013.
68.6 The defendant is
further directed to pay the balance of R2 804 874,00 directly to the
plaintiff’s attorneys of record.
68.7 The plaintiff is
granted leave to approach this court, if so advised, at any time
hereafter, for the reconsideration of paras
4 to 6,
supra
.
68.8 The costs of this
action as well as those relative to an application for the
appointment of curator(s), should such an application
become
necessary, to the plaintiff’s person and estate and the
remuneration of a curator
bonis
for the administration of her
estate shall be borne and paid by the defendant on the party and
party scale.
68.9 The defendant is
further directed to pay the fees and qualifying costs of the
following witnesses of the plaintiff plus interest
thereon at the
rate of 15,5% per annum from the fifteenth day after the date of
taxation:
Dr. P. Repko
Ms M.A. Gibson
Dr. O. Guy
Ms A. Gowa
Dr. R.G. Holmes
Dr. P.A. Olivier
Dr. R.J. Koch
Ms F A van Vuuren
________________
M.H. RAMPAI, AJP
On
behalf of plaintiff: Adv. S. Strydom
Instructed
by:
SS
Mehlomakulu Co
STERKSPRUIT
and
Matsepes Inc
BLOEMFONTEIN
Ref.:
M DU PLOOY/MEH1/0034
On
behalf of respondent: Adv. D. de Kock
Instructed
by:
Bokwa
Attorneys
BLOEMFONTEIN
Ref.: S MABENA/CN/TP.312
and
Mashazi Sishi &
Mathibela Inc.
BENONI
/sp