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2012
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[2012] ZAKZDHC 65
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Milliken v Road Accident Fund (4739/06) [2012] ZAKZDHC 65 (7 November 2012)
1
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO.:
4739/06
Heard: 19 October 2011
Delivered: 7 November 2011
In the matter between
JONATHAN IAN MILLIKEN
.....................................................................
PLAINTIFF
and
ROAD ACCIDENT FUND
.....................................................................
DEFENDANT
______________________________________________________________
JUDGMENT
______________________________________________________________
D. Pillay J
Introduction
Jonathan Ian Milliken, the plaintiff,
was driving a Nissan High-Rider double cab in Glenmore, Leisure Bay,
KwaZulu-Natal on the
afternoon of 9 December 2003. With him were his
wife, Janine Ashley Milliken, their two children Shannen Anne and
Niall Craig
and his mother Elizabeth Milliken. It was raining. A
white truck approaching from the opposite direction collided into
the Nissan.
The plaintiff lost consciousness
momentarily. On regaining consciousness he found himself on the
tarred road. He heard his wife
screaming ‘my babies, my
babies’. She was running along side the road with their son in
her arms. He tried to open
the front passenger door but it was
jammed. With the help of people who had stopped at the scene, he
managed to open the rear
passenger door. He found his daughter lying
on top of his mother. He pulled his mother out of the vehicle and
placed her on the
ground. Then he removed his daughter and placed
her along side his mother. His daughter moaned and he thought that
she would
be fine. He ran to his wife and son. His son was placed on
the open tail-gate of a bakkie and someone was performing
cardiopulmonary
resuscitation (CPR) on him. Both his children and
his mother died at the scene of the accident.
He was hospitalised overnight and
heavily sedated. As a result of the accident, the plaintiff
fractured his right ninth and tenth
ribs, sprained his right middle
finger, sustained a contusion to the right side of his abdomen, his
right rib and his right lower
leg. His right knee was also bruised.
However, the most enduring consequence of the collision is the post
traumatic stress disorder
(PTSD) that he continues to suffer
following the sudden death of his children and mother. He has also
developed temporal lobe
epilepsy.
The claims
In this action for damages arising
from the collision, the Road Accident Fund accepted full liability
for the collision. It agreed
to pay general damages in the amount of
R450 000.00, funeral expenses in the amount of R8 474.64, costs
consequent upon the employment
of senior counsel and the reasonable
and necessary fees of expert witnesses for their reports, minutes,
consultations with legal
representatives and attendance in court.
All that remains for the court to determine therefore is the
plaintiff’s past
and future loss of earnings. Consequently,
all the evidence lead on behalf of the plaintiff was confined to
assessing the extent
of his PTSD and, coupled with the epilepsy,
their impact on his employment and earning capacity post the
accident to date and
into the future.
The evidence
Four experts reported on the
plaintiff and testified at his trial. They are Dr Rosanne Hardy, Ms
Jane Caroline Bainbridge, Dr
Cristy Janet Leask and Dr Laban. Two
experts reported only on the plaintiff’s condition without
testifying. They are Dr
M J H Mair and Dr Rajkovic. Dr Mair’s
report was admitted. Dr Rajkovic’s report was not challenged
either. The actuary
on whom both parties relied was Mr Ian Morris.
Mr Kenneth John Langley the managing director of Alliance One
testified about
the plaintiff’s prospects as an employee in
the company.
On the facts there was much consensus
between the parties. The Fund declined to call witnesses.
Cross-examination of the plaintiff’s
witnesses was confined to
determining the plaintiff’s ability to progress career-wise
and to enhance his earning capacity.
His medical condition was not
challenged. In fact, the Fund accepted that the plaintiff could not
testify because rekindling
memories of the accident would aggravate
his PTSD. The parties also agreed to use the same actuary.
The points of departure arose from
the differences of opinion of their respective industrial
psychologists. Ms Shaida Bobat projected
that uninjured the
plaintiff would have been promoted to management but not to levels
as high as Dr Leask projects.
Dr Leask testified for the plaintiff,
whereas Ms Bobat did not testify for the Fund. Furthermore, Dr
Leask’s report is based
on interviews with the plaintiff, his
wife and father-in-law, the MMF form and documents accompanying it,
reports of other experts
who diagnosed the plaintiff’s
condition and psychometric tests she performed on the plaintiff to
assess his general and
critical reasoning capabilities.
Ms Bobat based her report on her
interview with the plaintiff and formal tests she performed on him
to assess his non-verbal reasoning
ability, his cognitive
functioning, his memory and his PTSD level. Without the collateral
information that Dr Leask referred
to and having failed to testify,
Ms Bobat’s opinion is tenuous. Still, the pre-trial minute
between Dr Leask and Ms Bobat
helps to orientate the court to the
issue in dispute.
In summary, the consensus opinion of
these experts is that the plaintiff suffered from PTSD to the extent
that it impaired his
career prospects and consequently his earnings.
The dispute turns on the impact of his disability on his past and
future loss
of earnings post the accident. I will return to their
points of agreement and disagreement after summarising the evidence
of
the experts and the plaintiff’s employer.
Medical evidence
First, the extent of the plaintiff’s
disability is explored before turning to assess its impact on
income. The plaintiff
was 31 years when the accident occurred. Today
at almost 40 years, he manifests symptoms of depression, anhedonia,
irritability
and loss of energy and libido. He holds negative views
of himself, the world and the future. He has chronic suicidal
ideation
having attempted suicide twice, once in 2004 in Thailand
when he tried to gas himself and again in 2009 in Zimbabwe when he
overdosed
on medication. After his suicide attempt in April 2004 he
was hospitalised for three nights under the management of a
psychiatrist.
He continued to receive treatment for PTSD. He is
chronically unhappy.
His personality changed from a warm
loving father and husband to being cold and withdrawn. He is prone
to aggressive outbursts
towards his family and colleagues. His
marital relationship is strained. He is impatient, rude, aggressive,
intolerant, and emotionally
and physically fatigued. His wife is
scared of him especially when he consumes alcohol. He becomes
abusive and has assaulted
her on two occasions. On the first
occasion he tried to stab her with a kitchen knife; on the second
occasion he tried to drown
her in the swimming pool. He has no
recollection of these episodes. He has anxieties over money to the
extent that he no longer
allows his wife access to their funds. He
admits that his marital relationship has deteriorated but resists
marital counselling
because he considers himself to be a private
person.
Socially, he has become withdrawn. He
does not want to meet people, friends or socialise with the family.
He finds it an effort
to be nice. He just wants to be left alone. He
has lost trust in others. As for his faith, he has always been a
believer. Now
he finds himself questioning why God let these things
happen. He has lost interest in maintaining the home.
He acknowledges that he is more
short-tempered and has no passion for anything. He describes his
symptoms of depression as being
in a dark place from which he is
unable to get out. He feels that he is ‘not really living
anymore’. He has been
on anti-depressants since the accident.
He acknowledges that the counselling he received soon after the
accident saved his life.
Ms Bobat’s tests confirm that
his clinical depression and post traumatic stress scales are
‘significant’ and
the content scales for anger was
‘extremely high’.
On 18 April 2009, MRI and EEG brain
scans showed no abnormalities. A neuropsychological assessment
revealed a range of deficits
consistent with variable impairment of
his neuropsychological functioning. The EEG confirmed the presence
of temporal lobe epilepsy
for which he is being treated with
Carbamazepine. He has to take it for the rest of his life. He is
also taking Sulpiride, Amitryptilene
and Fluoxetine for depression.
He received psychotherapy and counselling by his general
practitioner who managed his depression
and post traumatic stress.
Dr Laban prescribed additional medication for his post-traumatic
temporal lobe epilepsy to stabilise
his moods. She also prescribed
psychotherapy on a weekly basis for two years and thereafter
bi-monthly for five years.
On assessing his mental condition Dr
Laban found him to be orientated and coherent but at times agitated.
He was emotionally labile
and easily detractible. He showed signs of
psychomotor restlessness and behavioural problems triggered by high
levels of anger
and guilt. Although he was coherent, he had
difficulties with comprehension, executive level reasoning, abstract
thinking, problem
solving and learning new information. His
concentration was poor. His short-term memory was deficient.
Although his insight was
fair, his judgment was impaired.
Cognitively, his memory is impaired.
He depends on his diary and cellular phone to remind him. His
processing speed is reduced
in that he is slower now and finds
himself going back and rechecking things which slows him down. His
attention and concentration
diminishes within fifteen minutes.
Neuropsychiatric interviews revealed the presence of chronic PTSD of
moderate degree and recurrent
major depressive episodes of
moderately severe degree.
The most disabling aspect of the
plaintiff’s psychiatric morbidity is the psychological
distress he feels at the loss of
his mother and children. His
survivor guilt underlies his mental problems. His post-traumatic
temporal lobe epilepsy induces
his behavioural problems.
His loss of amenities of life
includes the disruption to his family and social relations. His life
expectancy is not affected.
Dr Laban concluded that his
neuropsychiatric deficits are permanent, especially as it persists
five years after the accident.
Although initial medical records did
not reveal injury to his head, Dr Hardy, a psychologist specialising
in brain injury, described
his disability as acquired
psychopathology and personality change. She could not exclude brain
trauma. At the time of the accident
his oxygen deprivation and
concussion contributed to his deficits. His dysfunction is probably
attributable to the effects of
a post concussive syndrome coupled
with grief for the loss of his children and mother. Although he had
a history of concussions
in his youth he had recovered fully from
them.
A neuropsychological assessment
revealed that although many of his deficits appear to be mild, his
performance in various tests
fell below what would be expected from
a 30 year old male with a grade 12 education. His average scores for
the neuropsychological
tests suggest that his cognitive ability
deteriorated as a result of his head injuries. The head injury also
contributes to his
impaired capacity to attend to, recall and use
new information. The tests substantially confirm that his alertness,
abilities
to avoid distractions, to concentrate, to retain new
information and process information speedily were compromised. These
symptoms
indicate mild brain damage.
The plaintiff reported to Dr Hardy
that by the afternoon he is too fatigued to concentrate. He
experiences anomia in that occasionally
he cannot retrieve the right
words. He uses sleeping tablets since the accident. He has
nightmares about accidents and robberies
usually involving the
family being in danger and him being unable to help them. Sometimes
he awakens with a fright. Sudden loud
noises frighten him. He avoids
meeting people with children, he suffers panic attacks but he
manages to regain control on his
own. He continues to experience
headaches daily and finds that he is increasing the quantity of
medication to cope with the headaches.
Dr Hardy’s prognosis is that
five years after the accident, ongoing counselling may assist him to
manage his difficulties.
In her follow-up assessment as recent as 5
September 2011, she suggests that he would benefit from unlimited
psychological intervention,
family counselling, psycho-education,
psychiatric and pharmacological intervention and pain management.
However, his symptoms
are likely to persist and contribute to his
neurocognitive disability. Work-wise, the combination of his
physical, cognitive,
psychiatric and psychological deficits
diminishes his vocational capacity significantly.
Dr V Rajkovic, a consultant forensic
psychiatrist who treated the plaintiff for clinical depression,
described his condition as
an ‘
emotional
wasteland of despair and gloom, lack of any hope, any light.’
Dr Rajkovic continued psychotherapy sessions which were lengthy,
arduous attempts to revitalise the plaintiff’s emotional
responses. Suicide is an ever increasing risk, he notes. He also
diagnosed temporal lobe epilepsy with mood disorder and concurrent
PTSD. As a psychiatrist since 1985 with experience in a war
situation, Dr Rajkovic remarked that he has rarely, if ever,
encountered
a case of such emotional devastation as this.
In summary, the medical experts are
agreed that the physiological injury to his head resulting in the
temporal lobe epilepsy combined
with PTSD complicates and retards
his recovery. Psychological therapy will help but not cure him
completely. Even if he received
all the treatment recommended, his
complete recovery is doubtful.
Employment
Turning to his employment situation,
occupational therapist, Ms Bainbridge who, on 2 September 2011
assessed the plaintiff’s
ability to work and noted his work
history. In 1990 on leaving school he started working for
Transcontinental or Tancon Tabacco
until 1995. For two years until
1997, he was a farm manager for DW Stotter (Pty) Ltd, a tobacco
farm. He worked for Stancom which
later merged with Alliance One
International until he reached the position of sales manager in
2004.
After the accident in December 2003,
he was booked off work for as long as he needed but he chose to
return to work within three
weeks. Retrenched in 2004, he secured
employment as a leaf manager for Cut Rag Processes, a cigarette
manufacturer. About 2009,
he was an area manager for Associated
Tobacco Company. He left there in April 2011 to rejoin Alliance One
International as a
sales executive, his current position.
His job involves buying tobacco from
farmers, processing it in factories and ensuring that the bulk is
exported. Before the accident
he was on the path to run the company
and serve on its board of directors. He was earmarked for senior
management and was sent
on sales and management courses. He reported
to Ms Bainbridge, however, that he believed that he was in the same
job as he had
been at the time of the accident. He had difficulty
settling down in a job, feeling satisfied and motivated to work. He
simply
tried to get through each day. He had no real ambition or
drive. He avoids anything challenging in the afternoons when he
knows
he would be tired and his concentration low. He is concerned
that he has slowed down at work. His position allows him much
freedom
but he doubts that his boss has noticed his condition. He is
fearful of the future and his ability to work as a professional,
having regard to the objective negative conditions in Zimbabwe and
his subjective sense of inadequacy.
Colleagues described the plaintiff
before the accident as a go getter, ambitious, responsible,
determined and one who chased business
opportunities wherever he
could. He was a trusted member of Stancom Commercial Tobacco Company
having worked through the ranks,
demonstrating his willingness to
access increased work loads and responsibility. He maintained a good
work ethic. Before the
accident he was dispatched abroad annually to
boost local management and interact with customers. He developed an
excellent name
for himself with customers. He was highly competitive
and was promoted steadily. In preparation for a promotion before his
accident,
he was selected to attend the University of Cape Town’s
Business School.
Mr Ivan Mop, a former employee of
Stancom and Associated Tobacco company reported to Ms Bainbridge
that he did not think the plaintiff
would ever recover fully and
pursue a higher career path; the plaintiff seemed to him to have no
purpose left in life. Mr Allan
Stevenson similarly observed that if
the plaintiff did not heal psychologically, it would affect his
future earning capacity.
He was convinced that but for the accident,
the plaintiff would have been a senior figure in the tobacco
industry in Zimbabwe.
Mr Mike Green of Alliance One, Thailand did
not think that the plaintiff’s emotional capacity had been
altered as he had
been appointed in a higher capacity than when he
had left Alliance One years ago.
In Ms Bainbridge’s opinion full
recovery is ‘not realistic’, taking into account that
eight years have passed
since the accident, the extent of his
psychological disability, and the onset of temporal lobe epilepsy.
Intensive psychiatric
and psychotherapeutic interventions would
ameliorate certain symptomology. Implementing ergonomic principles,
physiotherapy and
medication will help to ease his pain and
discomfort. However, he can not be expected to manage increased
levels of responsibility
or stress associated with higher levels of
management. His anti-social tendencies and loss of confidence
diminish his prospects
of securing better employment. Hence she
advocates a higher then average contingency for periods of
unemployment if he lost his
job.
Notwithstanding Mr John Langley’s
high regard for the plaintiff, he opined that it was unlikely that
the plaintiff would
reach the career heights that he would have but
for the accident. The plaintiff returned to Alliance One because
there was an
upturn in the industry. More staff was needed. Although
there were promotion positions in sales, he doubted that the
plaintiff
would be appointed.
Although the plaintiff’s
employment appears secure for the time being, if the industry slumps
or if he is promoted to high
levels of stress, he may regress.
Dr Leask interviewed Ashley Wilson
the senior buyer of Stancom, who was also a close friend of the
plaintiff and his family, Mr
Ken, Mr Graham Du Preez, the sales
director of Alliance Once and Paulett Kankhwende, the human
resources director, all of whom
commended the plaintiff.
In Dr Leask’s assessment, the
plaintiff has the capacity to cope with numerical work at a skilled
level and to cope with
a broad range of semi-skilled work. His
responses to a questionnaire that tested his personality attributes
indicated that he
might have presented himself in a falsely positive
light.
The opinions of the plaintiff’s
colleagues are hearsay. Furthermore, they are not experts. However,
they are relevant to
Dr Leask formulating her expert opinion on his
future prospects. The reliability of the opinions of his colleagues
is not challenged.
Nor is the opinion of Dr Leask. I accept her
evidence and report.
The approach to determining past
and future loss of earnings
Determining loss of income would pose
no difficulty if judges could gaze into crystal balls to foretell a
claimant’s future.
Since that is impossible, judges do the
best they can employing methods that are not wholly speculative and
arbitrary but still
not perfect science. Mr Pillemer helpfully
identified the generally accepted four-step process of the annuity
method of calculating
loss of earnings claims. This method injects
some rationality into the determination. It involves the following:
Determining what the plaintiff was
likely to have earned had he not suffered the disability.
Determining what the plaintiff is
likely to earn having regard to the disability.
Subtracting (B) from (A).
Applying
contingencies – before the figures in (A) and (B) are finally
determined.
1
Prognosis
Component A
Returning to the point of departure
between Dr Leask and Ms Bobat, they agree that uninjured, the
plaintiff would have been promoted
with a successful career in the
tobacco industry. They appear to disagree on the extent of his
success. Ms Bobat opined in the
pre-trial minute that he would have
been promoted to a sales executive or regional manager with earnings
comparable to those
paid by larger companies. The first difficulty
is that as Ms Bobat did not testify, she did not clarify her
conceptualisation
of the positions of sales executive and regional
manager and whether the plaintiff would attract rates of
remuneration higher
or lower higher than those that Dr Leask
assigned to him, whatever his position. The second difficulty is
that it is not clear
whether she thinks he would not have achieved
director status or higher. She expresses no clear opinion on what
his position
would have been but for the accident. Reading between
the lines, she seems to suggest that he would not have reached the
heights
that Dr Leask ascribes to him.
Component B
As far as his injured career
prospects go, these experts agree that as he has not after 8 years
returned to his pre-morbid level
of functioning, he is unlikely to
progress to higher levels. In her report Ms Bobat notes that with
his deficits, he will probably
remain at the level of sales
executive with inflationary increases applying to his remuneration.
Both industrial psychologists
therefore agree that the plaintiff
would remain in his current position as sales executive for the rest
of his life. He will
retain his current remuneration USD 8 800 per
month plus medical aid, pension and provident fund benefits, all of
which are subject
to inflationary increases. They also agree that a
higher than average contingency for unemployment should be awarded
for his
injured state. Agreement on these facts minimises some of
the uncertainty attendant on assessing future loss of earnings.
Assessment
Factor A ‘but for’
income
Dr Leask obtained from Ms Kankhwende
the following salary bands for the positions the plaintiff might
have held but for the accident:
manager $66 000- 90 000
executive $84 000 – 120 000
director $120 000 – 170 000
Dr Leask compared these salary scales
with those of Philip Morris International and found that they were
consistent with salaries
in the tobacco industry. Based on Ms
Kankhwende’s figures, Dr Leask projected the plaintiff’s
loss of income but
for the accident as follows:
Year Title USD per month
2003 Manager 4000
2004 Manager 4500
2005 Manager 5000
2006
to Executive 75
th
per
centile of $84 000 - $120 000 per annum
2008
2009
to Director 75
th
per
centile $120 000 - $170 000 per annum
2037 (age 65)
To these figures must be added the
annual increases of 3 % to 5 % per annum, the performance bonus of
15%, the benefits of a company
car and the employer’s medical
aid, pension and provident fund contributions.
Factor B ‘having regard to’
loss of income (future)
Dr Leask broke down his progression
as follows having regard to the accident:
Sales executive by 2005 – 2006
for 3 – 5 years
Sales director by 2008 – 2010
until retirement
An additional 15% should be added to
the remuneration of the executive director for bonus and a further
15% of basic for medical
aid. He continues to receive pension and
provident fund contributions.
Factor B: ‘having regard to’
loss of income (past)
His past monthly income in USD post
the accident extracted from Dr Leask’s report is as follows:
2003 – 4000
2004 – 4500
2005 – 4500
2006 – 4500
2007 – 4500
2008 – 4500
2009 – 5000
2010 – 5000
March 2011 – 5000
April 2011 – 8800
Determination
But for the accident the plaintiff
would easily have achieved an executive sales position by 2006 and
director by 2009. He was
in fact promoted to sales executive but
this promotion was delayed until April 2011. As a young executive
further promotion to
director would also be within easy reach.
Restricting his remuneration to the 75
th
percentile is
modest and achievable. Based on her evidence, Dr Leask’s
projections are reasonable.
Contingencies (factor D)
The assessments of factors A and B
above must be moderated by contingencies. Higher or lower
contingencies apply to either increase
or decrease the awards
assessed for factors A (‘but for’) and B (‘having
regard to’). Thus if the probabilities
are strong that a
claimant would reach great heights in her career, then her ‘but
for’ amount should be high. If
the adversities of life are
strong, the ‘having regard to’ amount should be low. To
achieve the appropriate amount
of the award, either a high
percentage is assigned to keep factor B low and a low percentage is
set to increase factor A, or
vice versa, depending on the prevailing
contingencies.
Age is a ‘hard’
fact on which other contingencies can be worked off.
2
A
ctuary
Robert Koch’s textbook
The
Quantum Year Book
suggests
the rule of thumb of applying approximately ½ % per annum
over the working life of a claimant.
RAF
v Guedes
2006
(5) SA 583
(SCA) at 588 supports this approach. At the age of 40,
the plaintiff would have twenty five more working years until
retirement
at age 65. Applying the rule of thumb, the contingency
reduction would be 12.5%. Thereafter, both the ‘but for’
and
‘having regard to’ scenarios which cover the same
period should start from the same base of 12.5% to increase or
decrease income due to positive or negative prospects.
The plaintiff’s youthful age
means that the period for which contingencies must be considered is
long. Projecting loss of
earnings over a long period is harder than
if the plaintiff had a few years to retirement.
Contingencies
are the vicissitudes of life, both favourable
3
and
unfavourable. Assigning percentages for contingencies requires the
court to first identify the favourable and unfavourable
contingencies generally and specifically in relation to the facts of
the case; second, form an opinion on the likelihood of each
contingency, and thereafter, balance negative and positive
contingencies to arrive at the most reasonable percentage.
The usual adversities of life –
economic downturn, retrenchment, accidents and illness – are
possibilities that could
interrupt or impede the working life of any
person. These I regard as ‘soft’ facts because they may
or may not occur.
Specifically on the facts of this case the soft
factors are not so soft that the norm of 12.5% can apply. In the
‘having
regard to’ scenario additional risks not present
in the ‘but for’ scenario include the likelihood of him
losing
his job, his vulnerability, the possibility of an error in
the estimation of the plaintiff’s life expectancy and
retirement
age having regard to his suicide ideation. Therefore,
although the retirement age in the tobacco industry is 65 years he
is likely
to be un- or under-employed before retirement.
Correlatively, his prospects of progressing are weighed down by the
adverse impact
of the higher stress levels accompanying promotion.
In the ‘but for’ scenario global economic uncertainty
and increasing
prohibitions against the tobacco industry are threats
that could materialise sooner or later.
Fortune may also have favoured the
plaintiff. In the ‘but for’ scenario, further promotion,
perhaps even beyond the
level of director with Alliance One or
another company was realistic. His educational and skills
development towards advancing
his career and regular promotions
indicate that his career was on an upward trajectory. In the ‘having
regard to’
scenario, further therapy which all the experts
recommend and which the plaintiff himself found helpful can over
time improve
his condition possibly leading to promotions. The human
spirit is resilient and capable of many surprises, even the
acceptance
of profound loss.
Somewhere between the hard and soft
contingencies lies the inflation or depreciation of money in the
future. That the value of
money will change is a reasonable
certainty. The uncertainty is about whether it will be upwards or
downwards and by how much.
The reality may differ from the actuary’s
estimation.
These positive and negative
contingencies set off each other. In the ‘but for’
factor A scenario, balancing the adversities
of life with good
fortune the probabilities tip the balance in favour of the
plaintiff’s career excelling to great heights
with little
adversity. Instead of the norm of 12.5%, a contingency of 7.5% that
Mr Pillemer proposed is set for future loss of
income but for the
accident. This percentage also factors in the long period of 25
years for the rest of his working life.
For past loss of earnings, the
shorter period of 8 years in retrospect is easier to estimate.
Instead of the 5% that Mr Pillemer
proffered I set the contingency
at 6% because his employer out of kindness or otherwise was willing
to promote him and did promote
him albeit later than Dr Leask
projected. Obviously, no contingency applies to the actual past
earnings.
In the ‘having regard to’
factor B scenario, all the experts and his employer were pessimistic
about his promotion
prospects. But no one criticised his performance
currently. That could be because he is good enough for the job he
now holds
or because no one supervises him closely. However, the
overwhelming kindness shown to him cannot discount the fact that as
a
person with disability he is being accommodated. This
accommodation obscures the real worth of his labour.
On the other hand, his concern for
his financial future is a driving force that propels him to remain
focused on work. That, coupled
with the likelihood that with the
therapy he is yet to receive his health would improve hold out a
glimmer of optimism. Instead
of allowing the discount for
contingencies to remain at 12.5% as Mr Pillemer suggests, I reduce
it to 11%. A percentage shift
up or down seems arbitrary or
insignificant, but not so in a case where the quantum could be
substantially in excess of USD1m.
Order
It is ordered that:
1. Judgment is entered for the
plaintiff against the defendant for
a. general damages in the sum of R450
000.00
b. funeral expenses in the sum of R8
474.64
2. The defendant is ordered to furnish
to the plaintiff an undertaking in terms of
section 17(4)
of the
Road
Accident Fund Act 56 of 1996
for the costs of the future
accommodation of the plaintiff, in a hospital or nursing home or
treatment of or rendering of a service
to him or supplying goods to
him arising out of the injuries sustained by him in the motor vehicle
collision that occurred on 9
December 2003, after such costs have
been incurred and upon proof thereof.
3. The defendant is ordered to pay the
plaintiff’s taxed or agreed costs such cost to include:
a. the costs consequent upon the
employment of senior counsel; and
b. the reasonable and necessary fees
charged by the under mentioned expert witnesses for their reports,
joint minutes (where applicable),
their fees for consultations
reasonably held with the plaintiff’s legal representatives,
their fees to qualify themselves
to testify at the trial, their
attendance fees not exceeding the amount payable to witnesses in
accordance with the tariff in civil
cases:
Dr MJH Mair (report and consultations
only);
Dr R Hardy;
Dr Rajkovic (report only);
Ms J Bainbridge;
Dr Leask;
Ian Morris – Actuary (reports
only);
Dr Laban
4. In the event of costs not being
agreed, the plaintiff is directed to serve a notice of taxation on
the defendant or the defendant’s
attorney of record and allow
the defendant seven (7) court days to make payment of the taxed
costs.
5. I discount his loss of income
follows:
a. past by 6 %;
b. future but for the accident 7.5 %;
c. future having regard to the
accident by 11 %.
The plaintiff is directed to refer
the discounts in paragraph 5 above to the actuary to factor them
into his computation of the
claims for past and future loss of
income.
The parties may revert to the court
with the actuary’s provisional amounts for these claims,
unless they settle the matter.
_____________
D. Pillay J
Appearances
For the Plaintiff: Adv Pillimer SC
Instructed by: Larson Falconer
Incorporated
3
rd
Floor Momentum House
125 Florence Nzama Street
Durban
For the Defendant: Adv Kuboni
Instructed by: S D Moloi &
Associates
Suite 260, 2
nd
floor
Mansion House
12 Field Street
Durban
1
Corbett
and Buchanan
Vol
1 General Principles at page 48
2
Goodall
v President Insurance Company Limited
1978 (1)
SA 389
(W)
3
Minister
of Defence V. Jackson
1991
(4) FA 23 (ZS)