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[2012] ZAFSHC 199
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Wessels v Road Accident Fund (4299/2009) [2012] ZAFSHC 199 (1 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 4299/2009
In the matter between:
LINDIE WESSELS
............................................................................
Plaintiff
and
THE ROAD ACCIDENT
FUND
....................................................
Defendant
JUDGMENT:
LEKALE, J
HEARD ON:
11 OKTOBER 2012
_______________________________________________________
DELIVERED ON:
1 NOVEMBER 2012
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On the 6 May 2008 the
plaintiff sustained serious personal injuries when a motor vehicle
which she was driving was involved
in a collision with an motor
vehicle in respect of which the defendant was liable for compensation
in terms of the Road Accident
Fund Act, No 56 of 1996 (“the
Act”).
[2] She, thereafter,
instituted an action for payment of special and general damages
against the defendant after complying with
the provisions of the Act.
[3] The defendant
resisted the claim but, on the 10 May 2011, the parties reached
agreement on and secured a court order in respect
of the defendant’s
liability for payment of all of the plaintiff’s proven or
agreed damages.
[4] The parties could,
however, not agree on the extent of the plaintiff’s damages and
the matter now serves before me for
determination of the quantum of
the claim.
ISSUES IN DISPUTE
[5] The parties are in
agreement on plaintiff’s injuries and the sequelae of the same.
[6] They are, however,
effectively at variance over the plaintiff’s earning capacity
as at the date of the accident with the
defendant maintaining that,
although her agreement with her employer at the time entitled her to
receive commission, she never
received the same for a period of 24
months prior to the accident despite having earned it.
[7] The parties are,
further, in dispute over whether or not the defendant is liable for
the costs relating to the report of Dr
Rosman in so far as the latter
expert did not testify before the court.
PLAINTIFF’S
CASE
[8] Defendant closed its
case without tendering oral evidence. In support of the plaintiff’s
claim five expert witnesses testified
to,
inter alia
, the
effect that the plaintiff has permanently lost control of her bladder
and experiences difficulties with bowel function as
a result of the
accident. She has reduced motor function and altered sensation in
both legs as a result of injuries to her back
and neck. The plaintiff
now walks with crutches and will continue to experience a degree of
chronic back pain despite any surgical
and/or medical intervention
which may take place. She has a urinary catheter implanted as a
result of her permanent urinary incontinence.
The use of a catheter
is a source of embarrassment and emotional depression for the
plaintiff. She is now only suitable for a half
day administrative
work with a sympathetic employer and chances of securing such
employment are between 5% and 10%.
[9] The plaintiff
testified that her oral contract of employment as at the date of the
accident provided for a salary of R6 500,00
per month inclusive of
petrol allowance together with 10% commission on sales. Her monthly
sales ranged from R2 000,00 to R3 000,00
per month.
[10] She, further,
pointed out that although her monthly sales were recorded and she was
entitled to commission thereon of between
R2 000,00 and R3 000,00 she
never received the commission because the business was still growing
and she was aware that the price
of sunflower was not favourable at
the time.
CONTENTIONS FOR THE
PLAINTIFF
[11] Mr Zietsman, for the
plaintiff, submits that an award of R4 571 415,00 is fair and
reasonable as global compensation for both
general and special
damages and relies,
inter alia
, on the actuarial report of
Munro Consulting Actuaries which was admitted by agreement between
the parties as exhibit “G”
with regard to loss of income.
[12] He contends,
further, that R450 000,00 is fair and reasonable as quantum for
general damages regard being had to the injuries
sustained by the
plaintiff and the findings of the experts on the extent of her
injuries as well as case law.
[13] Mr Zietsman
concludes that what matters is the plaintiff’s earning capacity
as at the date of the accident and not whether
or not she actually
received the commission as per her employment agreement.
[14] The costs attendant
on the report of Dr Rosman, the neurologist, are payable by the
defendant even though he did not testify
because his report was
relevant in so far as Ms Van Jaarsveld, the industrial psychologist,
used it to prepare her report.
CONTENTIONS FOR THE
DEFENDANT
[15] Mr Steenkamp, for
the defendant, submits that an award of between R400 000,00 and R450
000,00 is fair and reasonable in respect
of general damages regard
being had to case law.
[16] He contends,
further, that a high negative contingency of 25% should be applied in
order to arrive at a realistic award for
loss of income regard being
had to the fact that the actuarial reports viz exhibits “G”
and “H” are based
on the wrong assumption that the
plaintiff earned R6 500,00 plus R2 000,00 to R3 000,00 commission per
month when she, in fact,
only received R6 500,00 per month as at the
date of the accident.
[17] In his view a global
amount may be awarded because the court does not have to be precise
in its calculations.
[18] Dr Rosman did not
testify and the issue of costs relating to his report should be left
for assessment by the taxing master.
GENERAL DAMAGES
[19] As correctly pointed
out by Mr Zietsman, the parties are in agreement as to the bracket
within which general damages should
be located in so far as the
plaintiff claims R450 000,00 therefor while the respondent grudgingly
accepts that an award of between
R400 000,00 and R450 000,00 is fair
and reasonable.
[20] The question is,
therefore, whether or not R450 000,00 is fair and reasonable regard
being had to,
inter alia
, the injuries sustained, shock, pain
and suffering, discomfort and disfigurement as well as loss of
amenities of life.
[21] It is not in dispute
that the accident has had severe consequences on all aspects of the
plaintiff’s life. In her personal
capacity she is in constant
pain and experiences general humiliation and frustration. As a mother
she is incapable of giving her
daughter the necessary maternal
support both at home and at school as well as socially. She has been
deprived of social life and
no longer allows friends to visit her at
home. She has no sex life. She is dependent on others to get by and
is acutely aware of
her limitations and incapabilities which render
her a burden to her daughter. She was 34 years of age at the time of
the collision.
[22] It is axiomatic that
no amount of money can ever make up for the loss and disfigurement
involved in the instant matter. The
exercise involved herein tries to
ameliorate the situation with due regard to the realities and
possibilities of life. The aim
being an endeavour to adequately
compensate the plaintiff for the changes to her person and the loss
she has suffered by striking
a healthy balance between her interests
and those of the dependant. (See generally
NIDBLOCK-STUART v
PROTEA ASSURANCE COMPANY LIMITED
1973 CB (2) 323 (O) at 327.)
[23] I am persuaded by
available evidence that the instant matter merits an award more in
the region of R450 000,00.
LOSS OF INCOME
[24] The aim of an award
for compensation for loss of income is to put the plaintiff, in so
far as it is possible with money, into
the same position she would
have been had the wrongful occurrence not taken place.
“
The
capacity to earn money is considered to be part of a person’s
estate and the loss or impairment of that capacity constitutes
a
loss, if such loss diminishes the estate.”
(See
DIPPENAAR v
SHIELD INSURANCE COMPANY LTD
1979 (2) SA 904
(AD) at 917B.)
[25] As correctly
submitted by Mr Zietsman, what has been damaged and needs to be
compensated in this matter is the capacity to
generate an income and
not the earnings which the plaintiff was in actual receipt of at the
time of the accident.
[26] In my view, the fact
that the plaintiff earned commission but did not receive the same
because of the employer’s inability
to pay when it was due does
not detract from her capacity to earn that commission as at the date
of the accident. The fact of the
matter is that the plaintiff was
capable to and did, in fact, earn that commission and was entitled,
as of law, to payment in respect
of the same.
[27] I am, thus,
persuaded that the plaintiff’s earning capacity has not been
overstated in the actuarial reports.
COSTS
[28] It is apparent from
the report of Ms Van Jaarsveld, as correctly submitted by Mr
Zietsman, that the same is based on,
inter alia
, Dr Rosman’s
findings.
[29] Dr Rosman’s
report is, thus, relevant to the issue in so far as Ms Van
Jaarsveld’s report forms the basis of actuarial
calculations.
ORDER
[30] In the result the
following order is made in accordance with the draft order presented
for the plaintiff:
30.1 Defendant is
directed to pay the plaintiff an amount of R4 571 415,00 (four
million five hundred and seventy one thousand four
hundred and
fifteen rands).
30.2 The said amount is
to be paid directly into the account of the plaintiff’s
attorneys, the particulars of whom are as
follows:
Honey Attorneys –
Trust Account
Nedbank – Maitland
Street Branch
Bloemfontein
Branch Code: 11023400
Account number:
Ref: HLB/ec/J02410
Defendant shall provide
plaintiff with an undertaking in terms of section 17(4)(a) of Act
56 of 1996 for the costs of her future
accommodation in the
hospital or nursing home or her treatment or the rendering of any
service to her or supply of goods to
her arising out of the
injuries sustained by her in the motor vehicle accident on the 6
May 2008, after such costs have been
incurred and upon proof
thereof.
Defendant is liable for
payment of the plaintiff’s taxed or agreed party and party
costs, which shall include the following:
30.4.1 The reasonable
preparation/qualifying and reservation fees and expenses (if any) of:
30.4.1.1 Dr JJ Fourie;
30.4.1.2 Dr P Repko;
30.4.1.3 Dr K Rosman;
30.4.1.4 Dr P Cronje;
30.4.1.5 Dr S Walker;
30.4.1.6 Ms Susan van
Jaarsveld;
30.4.1.6 Mr Alex Munro;
30.4.2 The costs
attendant upon obtaining the payment of the amounts referred to
above;
30.4.3 The plaintiff
shall serve a notice of taxation on the defendant’s attorney of
record; and
30.4.4 The plaintiff
shall allow the defendant 7 (seven) court days to make payment of the
taxed costs.
_______________
L. J. LEKALE, J
On behalf of the
plaintiff: Adv. P. Zietsman
Instructed by:
Honey Attorneys
BLOEMFONTEIN
(Ref: HLB/EC/JO2410)
On behalf of the
defendant: Adv. Steenkamp
Instructed by:
Eversheds c/o Symington &
De Kok
BLOEMFONTEIN
/eb