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[2011] ZAKZDHC 2
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Nkosi v Road Accident Fund (8846/2007) [2011] ZAKZDHC 2 (4 January 2011)
IN THE KWAZULU – NATAL HIGH COURT, DURBAN
Not reportable
REPUBLIC OF SOUTH AFRICA
CASE NO: 8846/2007
In the matter between
Malungisa Remember Nkosi
….................................................................................................
Plaintiff
and
Road Accident Fund
…..........................................................................................................
Defendant
Judgment
Lopes J
[1] The plaintiff in this matter is Malungisa Remember Nkosi, a 23
years old man who was involved in a motor collision during August
of
2007 when a motor vehicle collided with him when he was a pedestrian.
He received a number of superficial abrasive bodily injuries.
In
addition, however, he received what has been described, and what is
accepted by all parties, as a very severe head injury.
[2] At the time of the collision the plaintiff was a talented and
promising young rugby player for whom the highest expectations
were
held.
[3] The parties are agreed that the defendant will pay to the
plaintiff 70% of whatever damages he proves he has suffered as a
result of the collision.
[4] The parties have also agreed upon the quantum of general damages
which should be awarded to the plaintiff. I understand past
medical
expenses have been agreed, as have future medical expenses by way of
an undertaking given by the defendant to the plaintiff.
I am to
determine his loss of earnings.
[5] At the end of the evidence led during the trial, Mr
Marais
SC who appeared together with Mr
Combrinck
for the plaintiff,
handed me a schedule of the damages sought by the plaintiff. The
parties agreed at that stage that I should
merely indicate which of
these figures I agreed with, and any amendments I thought were
appropriate, and convey those to the parties.
An actuarial report was
then to be compiled and sent to me, whereupon I would finalise my
judgment. I acted accordingly but was
then advised by Counsel for the
defendant that they wanted me to give my reasons prior to the
actuarial report being compiled.
I accordingly do so, with the
agreement of the plaintiff.
[6] The first witness for the plaintiff was Dr Michael Denis du
Trevou. He testified that he qualified as a neurosurgeon in 1987
and
has been in private practice since 1993. In addition, he is a senior
lecturer in neurosurgery at the University of KwaZulu-Natal.
In his
evidence he dealt with the injury suffered by the plaintiff together
with the
sequelae
thereof. He described the injury as a “
high
velocity shaking injury of the brain, typical of a motor vehicle
accident
”. On admission to hospital after the accident the
plaintiff’s level of consciousness, measured on the Glasgow
Coma
Scale, was 6 out of 15. According to Dr du Trevou anything less
that 8 out of 15 means that the person concerned is in a coma. The
Glasgow Coma Scale is a universally accepted measure of the
consciousness of a patient, measured by observation and easily
applied.
[7] Although two CT scans had been performed on the plaintiff they
did not reveal the extent of the damage. That was later found
by Dr
du Trevou when he did a more sensitive MRI scan which showed evidence
of an underlying diffuse brain injury.
[8] Dr du Trevou was asked to decide whether the plaintiff would be
fit to return to rugby, and because of the MRI scan, and a
report by
Dr Anne Watts who found significant cognitive dysfunction in the
plaintiff, Dr du Trevou was of the view that the risk
of a second
brain injury which could be suffered whilst playing rugby was too
dangerous for the plaintiff to undergo.
[9] In cross-examination Mr
Maharaj
for the defendant raised
the issue that alcohol intake prior to the collision may have
affected the plaintiff’s level of
unconsciousness and rendered
the Glasgow Coma Scale readings somewhat inaccurate insofar they were
an indication only of brain
damage. Dr du Trevou responded that only
an excessive intake of alcohol would have had any effect. If the
level of consciousness
had been created by alcohol alone, the
plaintiff would not have been able to walk across the road where he
was knocked down. Dr
du Trevou stated that a great deal of alcohol
would be needed to influence the measurement on the Glasgow Coma
Scale by more than
a unit.
[10] The next witness for the plaintiff was Silomuzi Donald Ngwenya
the manager of what is described as a development rugby football
club
in KwaZulu-Natal. There are 29 or 30 such clubs. These clubs are
aimed at the development and promotion of rugby football.
Mr Ngwenya
is responsible for conducting coaching courses, administration
courses and courses on financing these clubs. He has
been doing that
job since 2007, prior to which he worked at the Golden Lions in
Gauteng doing a similar job. He was there for five
years. He has been
involved in rugby for approximately 18 years.
[11] Mr Ngwenya stated that he had first become aware of the
plaintiff when he was 15 years old and playing rugby in the school
system. He originally played for Soweto High School and had played in
the schools team of the Golden Lions and in the under 16
Craven week.
[12] The Craven Week can basically be described as a gathering of the
pride of South African schools’ rugby players. Twenty-two
candidates per province go to the Craven Week. There are 14 provinces
which together with Namibia and Zimbabwe comprises 16 teams
or
approximately 352 players. The 22 players who are chosen in each
province go through numerous selection processes and are selected
from approximately 200 players. At the Craven Week two sides are
chosen, a South African schools’ team (the “A team”)
and a South African academy team (“the B team”).
[13] In this regard :-
a) in 2003 the plaintiff played for the Golden Lions under 16 Craven
Week team and was chosen for the RSA Open “Green Squad”;
in 2004 he was chosen for the Golden Lions under 18 Craven Week
team, the South African Academy team, the South African Schools’
team, the South African under 19 squad, the South African under 19
Sevens team and he participated for South Africa in the under
19
team in the Commonwealth Games as well as playing at a junior level
for the Lions provincial side;
in 2005 he played for the Golden Lions under 19 Craven Week team
during which he was elected Craven Week player of the year.
He also
played for the South African Schools’ team;
in 2006 he enrolled at the Sharks Academy in Durban, played for the
South African under 19 team, played in the under 19 World
Cup in
Dubai and was a member of the KwaZulu-Natal under 19 squad.
(I should mention that the parties agreed that the achievements of
the plaintiff, as set out above, are common cause).
[14] Mr Ngwenya testified that he had watched the progress of the
plaintiff because he had a close interest in him having coached
him
at the Soweto rugby club. He testified that the plaintiff had the
attributes necessary to play the “sevens” version
of
rugby which is a very fast version of the normal game and usually
played by backline players. The accent is on speed and mobility.
The
plaintiff, unusually, had been able to do this despite the fact that
he was not a backline player but a forward.
[15] Mr Ngwenya said that the Craven Week was regarded as the hunting
ground of rugby football talent scouts because that is where
the best
players are displayed. Provincial sides send representatives and
coaches to Craven Week to find the best talent. Because
Mr Ngwenya
was so impressed with the plaintiff’s ability he assisted him
in organising a rugby bursary for him to attend
St Stithians private
school where he attended a post-matric year.
[16] In 2006 the plaintiff was invited to join the Sharks Academy
which is a rugby development academy in Durban designed to bring
talented players up through the system and provide a basis for
players to fill the ranks of those leaving the Sharks’ senior
teams playing in the Currie Cup and the Super 14 (now 15)
competitions.
[17] Personnel of the Sharks Academy had identified the plaintiff as
a desirable player at the Craven Week and Mr Ngwenya was the
link
between him and the Sharks Academy. The plaintiff was offered what is
referred to as a Sharks junior contract paying for schooling
and his
attendance at the Sharks Academy.
[18] Once a player has completed a junior contract at the Sharks
Academy he is either offered a senior contract if he is considered
a
desirable player, or released to be able to play in one of the other
provinces.
[19] Mr Ngwenya described the plaintiff’s particular attributes
as being not only his physical strength but his exceptional
ball
skills. He was a forward who was a kicker, usually a station reserved
for backline players. He was very fast for a loose forward
as well as
versatile, as a result of which Mr Ngwenya occasionally used him as a
centre (a backline player) at club level when
one of his centres was
injured. In addition he testified that the plaintiff had an intense
interest in rugby and worked very hard
in his training. He was always
willing to go to the gym and do extra work.
[20] Finally Mr Ngwenya believed that the plaintiff would have
definitely played for the Sharks in the Currie Cup competition and
the Super 14 competition as well as playing for the South African
under 19 side in the under 19 championships in Dubai, with teams
from
all over the world.
[21] When asked about the number of players who dropped out after
achieving a high level at a young age, Mr Ngwenya’s views
was
that approximately 70% of the under 19 national level players would
go “all the way”.
[22] In cross-examination by Mr
Maharaj
Mr Ngwenya stated that
he had coached the plaintiff during three years, from January to July
at club level, and in representative
teams in the Craven Week trials
from March to May. One of those years had been with the Soweto rugby
club. In addition Mr Ngwenya
was part of the selection process in
2005 for the Golden Lions provincial team, where the plaintiff was
chosen for the under 19
squad.
[23] With regard to the Craven Week, Mr Ngwenya said that to be
selected as player of the year was an important achievement following
which the player gets invited to the Springbok team’s award
ceremony to be presented with a trophy.
[24] Mr Ngwenya closely followed the career of the plaintiff again in
2007 when he joined the Sharks Academy.
[25] The functioning of the Sharks Academy is such that 500
applicants are screened per year, of which 90 are accepted. Of those
90 who are accepted, it is usually the ones who have been “scouted”
(approximately 20 – 30 players) who are ultimately
successful
in remaining members of the Sharks’ team. Of those who were
sponsored, as was the plaintiff, 90% would make it
into the Sharks’
senior team. He stated that players became professional rugby players
when they obtained their junior contracts,
basically straight out of
school. In reply to the suggestion that it was speculation that the
plaintiff would make the Currie Cup
and Sharks Super 14 team, Mr
Ngwenya stated that he had seen the plaintiff play, coached him and
the fact that he had come through
the screening process at the Sharks
Academy was a good indication that he would.
[26] Whilst training at the Sharks Academy Mr Ngwenya would conduct
two training sessions per week and attend games with the squad
size
consisting of two senior teams, and he got to know the players
personally. He conceded that the process was very competitive
and
stated that only a full-time commitment at an under 19 level would
enable a player to succeed. The commitment was that of a
total
professional and a career in rugby could no longer be a part-time
commitment as had previously been the case.
[27] Finally Mr Ngwenya stated the fact that the plaintiff was a
black player would greatly have enhanced his prospects of succeeding
because of the responsibility of the rugby administration towards
transformation of the game.
[28] The next witness for the plaintiff was Miss René Stewart
an occupational therapist in private practice. Miss Stewart
testified
that she had been in private practice as an occupational therapist
for 12 years, having obtained a Master’s degree
in occupational
therapy. She compiled an occupational therapist’s report in
respect of the plaintiff and that report appears
in Exhibit B from
page 48 onwards. Her function was to assess the impact of the
plaintiff’s injuries on his functional abilities,
particularly
his quality of life and occupational performance. She conducted a
series of tests including cognitive testing, which
she acknowledged
were not as sensitive as neuro-psychological testing. On the morning
of the day on which she testified she had
conducted a follow-up
assessment with the plaintiff for approximately two hours. She had
done this to see if there had been any
changes. In her view the same
deficits existed.
[29] She examined three areas finding that there were no real
problems physically but problems existed with the behavioural
presentation
of the plaintiff and cognitive aspects which showed
definite indicators of cognitive inefficiency. His higher level
functions were
compromised and would affect his judgment,
decision-making, complex problem solving, memory and information
processing capacities.
She emphasized that it was not just the score
in the cognitive testing which was important, but how fast the job
was approached,
the approach that was used, and the organisation of
the work, all of which were poor in the case of the plaintiff.
Aspects of his
behaviour which were problematic were his loss of
focus, he became bored and apathetic, depressed, withdrawn, agitated,
aggressive
and irritable. Miss Stewart described this behaviour as
typical of a head trauma. She was of the view that whatever
deficiencies
had not improved two years after the injury would
experience little cognitive or behavioural improvement. As the
deficits were
organic in nature, they could not be remedied.
[30] She made various suggestions in her report in regard to
rehabilitative recommendations, but stated that those were there to
help manage the problem rather than cure it. She described his
academic performance as being poorer in high school than it was
in
junior school and being uninspiring. She made reference to his
employment history since the accident, including coaching the
under
13 Mhlapane High School for R60 per practice, working in the Brown’s
Diamond Store for four months and coaching at
the Linksfield High
School.
[31] Miss Stewart viewed the plaintiff as having diminished work
prospects and that he would only be able to work in coaching jobs
at
a very low level – perhaps an assistant coach in a high school.
He had a higher probability of losing his jobs, and because
of his
behavioural problems he would only be able to compete for employment
at an unskilled or semi-skilled level. She regarded
the probability
of his completing Matric as unlikely.
[32] Miss Stewart agreed with Mr
Maharaj
’s statement
that the plaintiff was passionate about rugby and not really
interested in anything else. In addition if he did
obtain a
matriculation certificate, he would have better prospects in the
semi-skilled employment field. She disagreed with the
conclusion of
Dr Plunkett that the plaintiff would still achieve Grade 12, given
his deficits in memory, his inability to concentrate
for long
periods, his vulnerability to exam stress and lack of motivation to
study further.
[33] It was pointed out that the conclusions reached by Miss Stewart
and those of Dr Plunkett were different despite the fact that
similar, although not the same, tests were conducted. Miss Stewart
could not comment on why this should be. Miss Stewart expressed
the
view that the plaintiff could benefit from repetitive inhouse
training such as that applied to a low level machine operation
or
assembly line worker. She felt the plaintiff could operate at one
level above unskilled – i.e. very low semi-skilled worker.
[34] The next witness to testify was Roelof Kotzè the rugby
manager of the Sharks Academy since 2000. He had a wide history
of
coaching rugby and had played for the Free State provincial side as
inside centre.
[35] He explained that the Sharks Academy was developed for the
purpose of training young rugby players to become professionals
at
both the provincial and national level. Although they come to the
Academy after they have finished school in order to become
professional rugby players, they are encouraged to further their
education with tertiary studies.
[36] He referred to a brochure from the Sharks Academy which appears
at Exhibit A from pages 38 ff which indicates that of the
195 players
who entered the Academy between 2001 and 2009, 135 became provincial
players. From his statement it is evident that
45 of those were
Sharks players and 10 were Springboks. His view was that the Sharks
academy introduced approximately 14 players
on average per year into
the provincial level of rugby. Forty to fifty percent of those
players go on to make a career as professional
rugby players.
[37] Those who qualified had the option of playing for the rugby
union in South Africa or going overseas, basically anywhere in
the
world where rugby is played as a sport. He spoke of the popularity of
rugby outside of South Africa and particularly in the
Middle East.
Countries such as Argentina, America, Canada, Ireland, France,
Portugal, Austria, Italy as well as Hong Kong and Japan
continually
sought players. He said that in the rugby nations which are not at
the forefront of the game players could earn a salary
similar to the
smaller unions in South Africa – i.e. R15 000 – R20 000
per month. In the Far East in Japan salaries
were well in excess of
the starting packages and in their top 14 competition players could
expect to earn R 500 000 for six months.
[38] Mr Kotzè stated that once players had reached a high
profile level in rugby they could expect to be able to market
themselves for reward. Sponsorships include not only money, but cars,
furniture and groceries. The lifestyle of professional rugby
players,
particularly at the top, was akin to that of a celebrity,
particularly in Gauteng, although the level was more modest
in
Durban. He stated, however, that the best players lived in the best
houses, drove the best cars, and wore the best clothes.
[39] Mr Kotzè stated that the plaintiff had joined the Sharks
Academy during 2006 as part of a recruitment drive. The academy
keeps
a particular eye on schoolboy rugby from the age of approximately 17.
The plaintiff was seen by Mr Kotzè at the St
John’s
festival where he recognised his potential immediately. He also
watched him whilst playing for the Golden Lions, where
members of the
Sharks Academy encouraged him to leave them and join the Sharks
Academy.
[40] At the Sharks Academy only between 7 and 12 new players are
contracted per year, and the plaintiff was one of them. The full
contract includes money for studies, accommodation, meals, the
Academy and pocket money (others must pay their own way). The plan
of
the Sharks Academy in recruiting these player is to produce new
Sharks players. In this regard they look ahead at their need
for
specific positions to be filled because players in those positions
were becoming older or in short supply and they would look
out for
new players and recruit them. The idea was to put them through the
system and develop them into successful Sharks players.
His view was
that the Sharks Academy was very successful in achieving its goals.
[41] Throughout the Academy only approximately 36 contracts are given
out per year and every player who has received a contract
over the
last seven years has played senior provincial rugby, either at the
Sharks or elsewhere. It was significant that the plaintiff
was
contracted at a lower age than might otherwise have been the case.
[42] Mr Kotzè stated that the pool of talent which really
makes it in rugby is very small and the market is extremely
competitive
between the five big unions. Contract negotiations
usually take place between the union and the player’s agent.
The thinking
in the Sharks Academy was that it was much cheaper to
contract a player early and take him through the system rather to
hire him
when he was much older, not only because of the high
salaries paid, but also because they might have to buy a player out
of his
contract if he has a long term contract with his current team.
[43] His view when they signed up the plaintiff was that they had
obtained what he called “the real deal”. The plaintiff
was one of the hardest workers both in the gym and on the field, and
stood out in matches as a skilful player. His catching and
passing
was excellent and he had good strong running abilities with the ball.
All these qualities were described by Mr Kotzè
as being very
useful for a loose forward. He explained how the game had moved to
faster and bigger players and had become what
he called “a
collision sport” where size was extremely important. In this
respect the plaintiff was always very big
for his age.
[44] Other attributes sought by the Academy would include speed,
agility, explosiveness (the ability to accelerate quickly) defending
and anticipation, decision making abilities, etc. They looked for
players which he described as having “the X factor”
and
he was convinced that the plaintiff “ticked all the boxes”.
Another important aspect was that the plaintiff(apparently
referred
to at the Sharks Academy as “Giant”) demonstrated a
willingness to work and improve his skills. In his evidence
Mr Kotzè
listed a number of players who were at the Sharks Academy at the same
time as the plaintiff, and were now playing
for other provincial
sides as well as the Sharks.
[45] He said if he could have picked out two players at the Academy
during 2006, one of them would have been the plaintiff.
[46] With regard to what would have happened to the plaintiff had he
not been injured, Mr Kotzè was of the view that he
have been
in contention for the World Cup squad in 2011. He stated that World
Cup availability dictates a player’s path of
progress and if he
had not qualified for the 2011 World Cup he would have played for the
Sharks for a further four years. Most
players would try to attend two
World Cups, and a loose forward would be able to play for
approximately ten years, because they
lost speed after the age of
about 25.
[47] Thereafter, a player would usually go overseas to one of the
smaller nations in the northern hemisphere countries which play
rugby
in vastly different conditions to those played in the southern
hemisphere. The nature of the game and the weather conditions
there
dictate that players are stronger and this suits older players
because their strength increases after the age of about 25.
In the
northern hemisphere the game is slower and there is closer contact,
and a greater need to be stronger. This career move
of the rugby
player essentially gives them a second career of approximately five
to six years. Mr Kotzè gave examples of
player playing in
Japan at the age of 35.
[48] Players who went to Japan or the Far East would typically play
for a club owned by a big multi-national corporation. The players
were essentially employees and the company would pay them
approximately R500 000 for six months at the beginning of their
employment.
[49] Although back line players would begin their careers earlier
than front line players, their careers would be shorter and they
would not last much past 26 or 27 years of age whereas the forwards
would start later and last longer.
[50] With regards to the further progress of the plaintiff beyond the
Sharks provincial team Mr Kotzè was of the view that
the
plaintiff would definitely have made it into the South African
national side – at least at the level where he would have
been
given a few games in order to prove himself. It was impossible to say
with certainty whether he would have established himself
there in the
long term.
[51] With regard to salaries earned by players Mr Kotzè stated
that a Sharks player playing in the under 21 team, would
earn
approximately R10 000 per month, players contracted in the senior
side would earn R15 000 – R 20 000 per month for the
first year
going up to R30 000 per month for the first three years of their
contract. Their next contract for a further period
would progress
between R30 000 – R50 000 per month. These amounts exclude
match fees of R5 000 per game and win bonuses of
R5 000 per game.
These match and win bonuses would cover all games in the Super 14
competition and the Currie cup.
[52] In the last year the Sharks played between 25- 30 games winning
eight or nine in the Super 14 competition and eleven in the
Currie
cup competition. Their expectation was that the Sharks would do even
better in the coming years. Players who played for
the Springboks
would obtained a separate contract from the South African Rugby Board
of approximately R1 000 000 (one million rand)
per year with match
fees of R85 000 per match. He did not know whether or not they got
win bonuses.
[53] Mr Kotzè stated that the salary from the South African
Rugby Board would be in addition to the salary earned by the
player
from his provincial union. A Springbok player might play between ten
and twelve matches per year.
[54] Mr Kotzè also felt that the plaintiff’s chances
would have been greatly enhanced because of the need for
transformation.
[55] With regard to the ability of the plaintiff to earn money as a
coach or rugby trainer, he indicated that he himself had earned
approximately R3 000 per month coaching at Harlequins for seven to
eight months of the year. He indicated that senior schools did
pay
for experienced rugby coaches, but normal players who coach school
boys might make only approximately R1 500 per month and
then only
during the rugby season. He was however, aware of two large
government schools who paid their rugby coach approximately
R14 000
per month and the other R5 000 per month.
[56] In cross examination by Mr
Maharaj
, Mr Kotzè
stated that he had coached the plaintiff at the Sharks Academy
approximately twice per week. He worked with the
plaintiff in his
role as a defensive coach. He reiterated that out of the 500
applicants who applied to come to the Sharks Academy
only 90 are
chosen. About six of those 90 would make it to the Sharks senior team
eventually, and others go to other provincial
teams. He agreed that
it was extremely competitive to get into both the Sharks team and
national team. Approximately a third of
the players who made it to
the senior side would be those of colour. In response to questions
about his own career, he said he
had played rugby for 27 years and
had finished his Currie Cup career in 1995 when rugby became
professional.
[57] The Sharks Academy has increased the percentage of Sharks
players and Springboks its produces as it has progressed since 2001.
Their approach to selection was highly scientific and goes on from
February to September once a month.
[58] In response to questions about what happened if a player did not
perform, Mr Kotzè stated that those who evidenced
problems
would have the benefit of remedial and extra training, but if they
continued to perform poorly would be released at the
end of the
period. Sometimes players who were under-performing were put out on
loan in order to enable them to regain their confidence.
[59] His view was that most professional players would have a playing
life of approximately ten years and that there were very
few players
who were put out of the game because of severe injuries. He could
think of only three in the last year. Players occasionally
left for
other reasons such as the pressure of playing. Mr Kotzè stated
that his only interaction with the plaintiff had
been at the Sharks
Academy and the plaintiff had been with him for eight to nine weeks
when he went off to the Under 19 World Cup.
Only three other players
in that group went to the World Cup. Every player in the Academy was
evaluated each week by a panel of
the trainers who debate the player.
These are the conditioning staff coaches and the rugby coaches.
[60] Mr Kotzè’s knowledge of the salaries was as the
result of discussions with the commercial manager of the Sharks
Rugby
union, and in addition salaries were often discussed with players in
determining their career paths.
[61] Although serious injuries could hold up a player’s career
to some extent, a professional rugby team would not expect
more than
three out of 30 players to have injuries which will keep them out for
any substantial length of time.
[62] The next witness for the plaintiff was Izak Stephan De Villiers
Swart who is also known as “Balie” Swart. His
rugby
career began in earnest at the Craven Week whilst at school and he
had played for the Western Province team at that stage.
He had played
25 tests for the Springboks in addition to other games for them and
had competed over the period between 1989 and
1995. He had also been
in five winning Currie Cup teams and had been a member of the South
African World Cup winning team in 1995.
From 1998 to 2008 he had
become a professional rugby coach and had worked for two years with
the Golden Lions under Lawrie Mains,
a prominent former New Zealand
player and now a coach. He had followed Mains to New Zealand to train
the Highlanders for a further
two years and then had worked under
Robbie Deans with the Crusaders for two years. Both teams are in the
Super 14 competition which
is a competition of 14 teams from New
Zealand, Australia and South Africa. It has now been expanded to be a
Super 15 competition.
[63] After his return to South Africa Mr Swart joined the Sharks as
an assistant coach for five years from approximately 2002 to
2007. He
now consults with the Sharks Academy once a month as he operates as a
consultant for his own account and for S A Rugby.
His function is to
set up training systems which are designed to ensure that South
Africa is able to compete with systems available
in New Zealand and
elsewhere. This started with the Sharks Academy and has been extended
to other provinces as well as an academy
for the S A referees.
[64] Mr Swart saw the plaintiff play for SA Schools and during Craven
week. He said that when he first saw the plaintiff he knew
he was an
exceptional player, who was different and had to be looked after. His
work with the plaintiff started when the plaintiff
joined the Sharks
Academy. Mr Swart’s view was that the modern game needs big
fast men who can handle big collisions. He
conceded that the work
intensity must have been something of a culture shock for the
plaintiff. He said at that level players are
required to step up the
level of their performance, and discipline is an area which is
important, particularly with regard to what
they eat, etc. He said
that the plaintiff exhibited a very good attitude and the academy was
very happy with him. During his progress
at the Sharks Academy they
had wanted to match him with one of the Sharks players who is
currently playing in the Springbok team
(Mtwarira, a Springbok front
row forward affectionately known to his fans as “the Beast”).
The idea was that they would
work together in the front row.
[65] Mr Swart was confident that the plaintiff had been earmarked to
become a senior and established member of the Sharks. He was,
however, unable to say whether or not the plaintiff would have made
the Springbok team, although based on his work ethic the plaintiff’s
chances were better than even. He said it was often a case of how
badly a player wanted to do so. He said the plaintiff had the
work
ethic and ambition of someone who could become a Springbok. With
regard to the earnings of provincial players he was of the
view that
the entry level was about R350 000 per annum together with win
bonuses, etc. Top players in the world could earn approximately
R2
000 000 per year together with match fees and their provincial fees.
He regarded the life expectancy of a player in the Springbok
team as
being two World Cup campaigns for a forward player and possibly more,
and he cited examples of forwards who were going
into their third
World Cup.
[66] In cross-examination by Mr
Maharaj
Mr Swart stated that
the plaintiff was in his mentor group. He had one-on-one sessions
with him once a week and on field sessions
between three and six
times per week. He was a specialist coach for the loose forwards. Mr
Swart was unsure whether he had first
seen the plaintiff playing on
videotape footage of the SA Schools and Craven week competitions or
whether he had actually seen
him there. He said that he had
nonetheless recognised his talent. He described the plaintiff as a
type of “Jonah Lomu individual”.
This is a reference to
the famous New Zealand wing. This was in terms of the fact that the
plaintiff was big and had exceptional
ball skills. He was earmarked
for something special and Mr Swart described the fact that he was a
different and special player,
as well as a player of colour, meant he
was the “crown jewels”.
[67] Because of the availability of witnesses, the evidence of Dr
Rory Patrick Plunkett was then interposed as a witness for the
defendant. He testified that he was a clinical psychologist and
neuro-psychologist and had been doing reports and giving expert
witness evidence throughout the country for 28 years. He had prepared
a report on the plaintiff which appeared at Exhibit B22ff,
was
familiar with its contents and confirmed them. He was of the view
that the deficits revealed by the plaintiff were mild and
would have
disabled him only to a minor or moderate degree. He had evaluated the
plaintiff by means of psychometric testing, input
from his mother and
collateral information from his mother. He regarded the plaintiff as
not being socially inappropriate.
[68] Dr Plunkett stated that the plaintiff would have problems with
concentration and minor problems with retention. His immediate
recall
was in the superior range but when required to recall after one day
it was only in the average range. He was thus experiencing
a loss of
information or being forgetful. With regard to his visio-spatial
ability the plaintiff had an ability to put elements
together and was
good at what he called “the block design test”. Dr
Plunkett regarded this as an outlying result with
no clear reason for
it, but in his view was just an ability which the plaintiff had. It
was at odds with the rest of the assessment
of the plaintiff.
[69] Dr Plunkett was in agreement that the plaintiff’s rugby
playing career was over, but regarded his coaching career as
uncertain. He said that the plaintiff’s reduced academic
achievement would reduce his level of employment. His minor deficits
would also reduce his employment possibilities. He was of the view
that there should be a minor increase in the unemployment
contingencies
to allow for this.
[70] Dr Plunkett agreed that the head injury which the plaintiff
sustained was very severe and that his post-traumatic amnesia
had
similarly been severe. He felt that his findings were not consistent
with those injuries and the outcome of the injuries were
not well
correlated with the injury itself. He did state that there was not a
perfect correlation between the severity of an injury
and its
outcome. Sometimes severe injuries can result in good outcomes and
vice versa.
[71] He was unable to explain the difference between his report and
that of Miss Stewart save to say that they differed significantly
in
assessment outcomes. He said that reactive psychological events would
play a role in the deterioration of the plaintiff’s
condition
resulting in reduced confidence, low self esteem, anxiety, depression
and stress, and that knowledge of his inability
to achieve his
potential would impact on his depression.
[72] It was pointed out to Dr Plunkett by Mr
Marais
SC in
cross-examination, that his assessment had been performed two days
after the assessment by Miss Stewart. Dr Plunkett was
of the view
that patients get what he referred to as “test-wise”
which could explain the improvement in the plaintiff’s
performance in his testing. He said he did not question the findings
made by Miss Stewart and that the results of her recent findings
would be reliable if they were the same as two years ago. He conceded
that the plaintiff could not function at the level he had
formerly
done and would have to obtain a lesser job. He was of the view that
the best the plaintiff could do was semi-skilled labour.
In
re-examination by Mr
Maharaj
Dr Plunkett was of the view that
the plaintiff may simply have had a good day when he saw him. He
viewed it as unlikely in reality
that the plaintiff would re-do his
matric. He had gained the impression that the plaintiff did not want
to be there for the testing,
but he had told him that his maximum
performance was required in order for the tests to be meaningful.
[73] The plaintiff then called Clive David Couperthwaite a
counselling and industrial psychologist practising in Durban. As with
all the other experts Mr
Maharaj
placed on record that his
qualifications and expertise were accepted. He had been engaged in
numerous matters as an expert witness
on employment opportunities for
those who have suffered head injuries. He confirmed his report which
appeared at Exhibit B page
86ff. With regard to the cognitive and
behavioural difficulties experienced by the plaintiff, Mr
Couperthwaite said he would always
defer in this regard to the
neuro-psychologists. He did tests on the plaintiff which showed
abnormalities being :-
an emotional score of 1 which is significantly different from the
normal range of 4 to 6;
with regard to pessimism plaintiff also registered an extreme score.
[74] He had no knowledge of the pre-morbid state of the plaintiff but
strongly suspected that his emotional state had changed because
of
his injuries. Although the plaintiff’s mother could not see
much wrong with the plaintiff he regarded this as deceptive
because
it was an untutored view.
[75] Mr Couperthwaite went through the plaintiff’s work
history. He stated that he had ascertained that the plaintiff had
been dismissed from the Brown’s Diamond Store because of,
inter
alia
, poor performance, sleeping on the job, etc. He had been
given a fixed term contract for four months which had not been
renewed.
During that time he had earned a basic salary of R4 000 per
month. In view of his experience at the Brown’s Diamond Store
Mr Couperthwaite was of the view that the plaintiff would have
difficulty in holding down a normal job. He would have to decide
whether coaching was a viable prospect because the long term option
of being retained in a firm was unlikely. For this reason the
application of scales such as the Peromnes scale was inappropriate.
He stated that unskilled labourers would earn approximately
R14 500
per annum
up to R39 000
per annum
.
[76] Mr Couperthwaite had contacted the Sharks Academy in order to
ascertain salaries and confirmed that the information in his
report
was as conveyed to him by Gavin Melville who deals with contracts and
finances of the Sharks franchise. Top players earn
up to two million
rand (R2 000 000) and if they were not well paid other franchises
would attract them away. He could not make
no comment about the
additional income a player might earn.
[77] With regard to the salary of Springbok players he obtained his
information from Andy Marinos, the acting managing director
of SA
rugby.
[78] In cross examination by Mr
Maharaj
, Mr Couperthwaite said
that he had found the plaintiff to be emotionally distressed as a
result of an occupational personality
profile test. On the basis of
an aptitude test he was of the view that the plaintiff may be able to
do semi-skilled work. In this
regard mention had been made of a taxi
driver or truck driver.
[79] As the Peromnes scale was based on blue chip companies (if that
was applicable) he was of the view that the plaintiff would
fit in
somewhere between the 19
th
and 16
th
ranks. He
viewed it unlikely given the plaintiff’s employment background
that he would be hired by any of the big companies.
He regarded the
prospect of the plaintiff being a truck driver or taxi driver as
somewhat risky. He had also obtained information
was regard to
salaries in the Sharks team from Mr Kotzè, and they basically
correlated to the evidence of Mr Kotzè.
He was also of the
view that it would be appropriate to increase the unemployment
contingency to deal with the uncertainty retention
that he had
suffered.
[80] In re-examination by Mr Combrinck for the plaintiff, Mr
Couperthwaite stated that the occupational personality profile was
a
vocational assessment tool used throughout his industry. He described
it as a job grading system as was the Patterson grading
system and
the Task grading system. They were designed for use in South Africa
to apply to occupations in order to judge their
complexity with a
salary scale attached. These scales were generally employed by larger
corporate employers in South Africa. He
said it would have been
speculative to use them and reduce the figures in scale to account
for a smaller company.
[81] Mr Couperthwaite suggested (on his own admission tenuously) that
the plaintiff could be a regular coach and that that salary
could be
used to determine his loss of income because it was a field of his
interest, and a field in which he had expertise, and
was of a
seasonal nature which might suit his temperament.
[82] The parties then closed their respective cases. Mr
Marais
gave me a schedule of proposed findings regarding the uninsured
progress (both past and future) of the plaintiff and his injured
income, both past and future.
[83] Before I am able to decide on the actual figures it is necessary
for me to decide how far the plaintiff would have progressed
had he
not been injured in the collision.
[84] It is necessary for me to assess the various witnesses who
testified at the trial. I agree with Mr
Marais
that in this
matter there has been no suggestion that the credibility of any of
the witnesses is to be called into question. I
am satisfied that they
were all honest witnesses who did their best to assist the Court as
far as they could.
[85] It was also agreed between the parties that :-
the plaintiff could never again play rugby; and
the plaintiff would have become an established Sharks team player;
the plaintiff would initially have played under 19 and under 20
rugby at R10 000 per month and then signed a contract for between
R15 000 and R20 000 per month going up to between R30 000 and R50
000 per month in his third year.
[86] I accept the evidence of Mr Cooperthwaite as to the loss of
earnings in 2007 of R13 000. The figures of R120 000 to R140 000
and
R360 000 for the plaintiff’s Sharks contract during the 2008,
2009 and 2010 years are also therefore accepted. In this
regard the
figures quoted are at the bottom end of the range for years 1 and 3
and at the top end for year 2.
[87] With regard to match fees and win fees the calculations of Mr
Marais
are in accordance with the evidence (i.e. match fees of
R5 000 for 25 games and win fees of R5 000 for 20 games). The total
of
past earnings which the plaintiff would have received had he not
been injured, would therefore have been R1 395 000. However, a
contingency must be applied. Mr
Marais
suggests that
contingency at 12% whereas Mr
Maharaj
suggests it should be as
high as 25%.
[88] Based on the evidence of Messrs Ngwenya, Kotzè and Swart
it would seem clear that the plaintiff’s history had
marked him
for great things by the time he came to the Sharks Academy in 2006.
As agreed between the parties, I have no doubt that
he would have
progressed to become an established member of the Sharks senior team.
Given the figures quoted by the above witnesses,
the prospect of him
having dropped out through injury, lack of interest, etc was a fairly
low one put at 10% by Mr Ngwenya (who
said that 90% of those who were
sponsored eventually make it to the senior side), and Mr Kotzè
– three in the past
years have suffered career-ending injuries.
In my view it would be safer to be cautious on this aspect and I
would put that contingency
at 15%.
[89] For the years 2011 to 2018 the figures for the Sharks contract,
match and win fees as proposed by Mr
Marais
seem probable and
consistent with the evidence. (R600 000 for the Sharks contract,
match fees of R5 000 for 25 games and win fees
of R5 000 for 20
games). As that period is further down the line with the plaintiff
getting older all the time, the contingency
to be applied to those
three items is 20%.
[90] With regard to the plaintiff becoming a Springbok, Mr
Marais
and Mr
Maharaj
again differed, with Mr
Maharaj
maintaining that the contingency to be applied to such wages, if
applicable, should be of the order of 60%.
[91] The evidence of salaries paid to Springbok players was given by
Mr Kotzè who said they earned a contract of a million
rand per
year in addition to the provincial contracts which they held. Mr
Couperthwaite at page 99 of Exhibit B reflected this
income for one
player in 2009 as being R450 000
per annum,
together with
match fees of R30 000 per game and win fees of R80 000. Mr Kotzè
stated that a Springbok player would earn
R1 million per years in
addition to which there would be match fees of R85 000 per game and
win bonuses. Mr Swart stated that Springbok
players could earn
approximately R2m per year plus match and win bonuses in addition to
their provincial contracts. According to
Mr Couperthwaite’s
research the Springboks played 14 games in 2009, winning nine of
them.
[92] Without any ability to determine the accuracy of these extremes,
and in the absence of any evidence from the defendant to
counteract
them, it would in my view be wise to use a conservative figure for
the plaintiff’s Springbok earnings of somewhere
between the two
of R600 000
per annum
and match fees of R80 000,00 per game
and win fees of R80 000 per game. In my view the contingency which
should be applied to the
Springbok fees and match and win fees should
be 45%
[93] With regard to the further earnings the plaintiff could have
earned in foreign rugby clubs after the end of his South African
playing career I think that the four years allowed in the calculation
is a conservative figure and the amount allowed is in accordance
with
the evidence that players would not necessarily earn substantially
more than they earned in their South African provincial
clubs, but
this would depend on where they went. In this regard I agree that a
figure of R600 000 per year for the four years would
be appropriate
with a contingency of 40%. I have increased the contingency because
the prospect of accurately seeing so far into
the future is less
certain.
[94] With regard to coaching income thereafter for a period of 11
years Mr
Marais
has submitted a figure of R60 000
per
annum
. I consider this to be conservative since it seems likely
that whether or not he had been injured (as a player only) the
plaintiff
would at some stage at the end of his career have
considered working as a coach, more particularly because that is a
likely path
for players who achieve national standards. It would be
less well paid that other job possibilities at the end of a career
such
as commentating, public speaking, etc. I would apply a
contingency of 40% in this regard.
[95] With regard to the income which the plaintiff has accrued in his
injured state, there is no evidence to contradict the figures
for
2008, 2009 and 2010 and I accept them. With regard to his future
income in his injured state it would appear that at best he
would be
able to earn R48 000 per year, but given the severe reservations held
by Mr Cooperthwaite and Miss Stewart as to his ability
to maintain
steady employment, I would apply a 50% contingency.
[96] The costs of the action are to be paid by the defendant, such
costs to include those consequent upon the employment of two
counsel.
[97] I shall cause this judgment to be handed down and the parties
are invited to provide me with an agreed actuarial report based
on
the above. Should they be unable to agree on an actuarial report
based on these figures and taking into account the agreed
apportionment against the plaintiff of 30%, they will have to
approach me to present argument on that aspect.
[98] In the event that they are able to provide me with an agreed
actuarial report I will make a final order with regard to the
damages
which the defendant is obliged to pay the plaintiff.
[99] In summary then, the figures to be applied by the actuary are :
Special Damages
:
Past loss of earnings
1)
2007
: R 13 000
2)
2008
:
(a) Sharks contract R 120 000 (R 10 000 per month)
(b) Match fees R 125 000 (R 5 000 x 25)
(c) Win fees R 100 000 (R 5 000 x 20)
3)
2009
:
(a) Sharks contract R 240 000 (R 20 000 per month)
(b) Match fees R 125 000 (R 5 000 x 25)
(c) Win fees R 100 000 (R 5 000 x 20)
4)
2010
:
(a) Sharks contract R 360 000 (R 30 000 per month)
(b) Match fees R 125 000 (R 5 000 x 25)
(c) Win fees R 100 000 (R 5 000 x 20)
_________
R 1 395 000
Less
: contingency 15%
Future loss of earnings
:
2011 – 2018
(a) Sharks contract R 600 000/yr (R 50 000 per month)
(b) Match fees R 125 000/yr (R 5 000 x 25)
(c) Win fees R 100 000/yr (R 5 000 x 20)
Less
: contingency 20%
(d) Springbok contract R 600 000/yr
(e) Match fees R 800 000/yr (R 80 000 x 10)
(f) Win fees R 800 000/yr (R 80 000 x 10)
Less
: contingency 45%
2019 – 1023
Foreign club rugby R 600 000/yr
Less
: contingency 40%
2024 – 2035
Coaching income R 600 000/yr
Less
: contingency 40%
Injured income :
Past
2008 R 12 000
2009 R 12 000
2010 R 3 135
Future
2011 – 2035 R 48 000/yr
Less contingency 50%
Note
: An overall apportionment of 30% is to be applied
against the plaintiff.
[100] In the interim I make the following order :-
1. the defendant is to pay to the plaintiff the agreed sum of R300
000,00 in respect of general damages;
2. The defendant is to provide the plaintiff with an undertaking for
payment of the plaintiff’s future hospital, medical
and related
expenses, in terms of
s 17
of the
Road Accident Fund Act, 1996
;
3. the defendant is to pay the plaintiff’s legal costs on the
High Court scale (party and party) :
(a) including the costs of two counsel, including all consultations
with and by senior and junior counsel, attorneys and experts;
(b) the reasonable qualifying fees and reservation costs and
attendant fees (where applicable) of the following experts :
(i) Dr Mike du Trevou;
(ii) Dr G M Pillay (report only);
(iii) Dr Rory Plunkett;
(iv) Mr Clive Couperthwaite;
(v) Dr Robert Fraser;
(vi) Dr Barry Isaacs (report only);
(vii) Ms René Stewart;
(viii) Mr Balie Swart;
(ix) Mr Ian Morris (report only).
Date of hearing : 19
th
November, 2010
Date of judgment : 4
th
January 2011
Counsel for the plaintiff : J Marais SC with P J Combrinck
(instructed by Friedman & Associates)
Counsel for the Defendant : M Maharaj (instructed by Linda Mazibuko &
Associates)