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[2011] ZAECELLC 6
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Ndaba v Road Accident Fund (EL 321/08) [2011] ZAECELLC 6 (30 June 2011)
Reportable
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON LOCAL DIVISION –
EASTERN CAPE)
Case No: EL 321/08
ECD 721/08
Date Heard: 16/03/11
Date Delivered: 30/06/11
In the matter between
NTOMBIZANDILE NDABA
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
JUDGMENT
REVELAS J
[1] The plaintiff, a 45 year old
woman, instituted an action against the defendant for damages arising
from a motor vehicle accident
that occurred on 7 February 2004. The
plaintiff was travelling as a passenger in a taxi when the collision
occurred on the national
road between East London and Ndantsane. She
sustained multiple orthopaedic injuries and a ruptured bladder during
the accident
and she was admitted to the Frere Hospital where she
spent just over four months.
[2] The defendant has conceded
liability to fully compensate the plaintiff for such damages as she
may prove and the only issue
to decide in this matter was the quantum
of the plaintiff’s damages. On certain heads of damages (past
and future medical
expenses) agreement had been reached prior to the
trial and what remained in dispute was the plaintiff’s alleged
past and
future loss of earnings as an informal hawker, and general
damages. The plaintiff claimed as follows:
Past Loss of Income: R175 804.00
Future Loss of
Income: R549 861.00
General Damages: R500 000.00
_________________
Total: R1 225 665.00
__________________
[3] The plaintiff testified on her
own behalf and called three witnesses. They were her neighbour (Mrs
Wosintsi), one of the orthopaedic
surgeons who had prepared a
medico-legal report in respect of her injuries (Dr PA Olivier) and an
industrial psychologist who prepared
a report on the plaintiff’s
past and future loss of earnings (Dr HJ van Daalen). The defendant
called no witnesses. Dr
Olivier’s report and the medico-legal
report of Dr Berkowitz (also an orthopaedic surgeon), were handed up
by agreement.
The actuarial report of Dr RJ Koch, on the plaintiff’s
past and future loss of income also became part of the evidence.
[4] Dr van Daalen, the plaintiff,
and her neighbour, were however taken to task during
cross-examination by counsel for the defendant,
on the question of
the plaintiff’s past and future loss of earnings. Dr Koch’s
actuarial calculations were based on
the facts noted in report of Dr
van Daalen, who had received the information from the plaintiff.
During a pre-trial meeting the
parties specifically agreed to
dispense with the oral testimonies of actuaries.
[5] Very little seemed to be in
dispute as far as the plaintiff’s injuries and her treatment
were concerned. The parties
were in agreement that the defendant was
to be ordered to undertake, in terms of
Section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
, to compensate the plaintiff for future
medical treatment. The primary enquiry during the trial was aimed at
establishing the
approximate income generated from the plaintiff’s
hawking. The plaintiff kept no record of her earnings and therefore
there
was no real prospect of establishing an accurate figure. It is
convenient to deal with the less contentious issues first.
General Damages
[6] An adequate award for general
damages (for pain, suffering disfigurement, disability and loss of
amenities) “
must be
fair to both sides-it must give just compensation to the plaintiff,
but not pour out largesse from the horn of plenty at
the defendant’s
expense
”.
1
The plaintiff, who was 42 years old at the time, was travelling with
her youngest child, a mere baby, when the collision occurred.
The
plaintiff’s legs were trapped inside the vehicle and she had to
pass her baby through the window to onlookers while
waiting to be
freed from the mangled vehicle. This caused her much distress.
Thereafter she was admitted to the Frere Hospital
with very little
recollection of the accident. Upon admission the following injuries
were noted: A straddled pelvic fracture,
a right femural “midshaft”
fracture and a bladder injury (rupture) as a result of blunt
abdominal trauma. She also
sustained an injury to her right shoulder
and a dashboard left knee injury. The latter injury she sustained as
a result of being
trapped between the seats of the taxi she travelled
in.
[7] At the hospital, a Denham pin
was inserted in the region of the right proximal tibia. A balanced
skeletal traction was performed
and the wound on her arm was
stitched. A catheter was inserted as a result of the ruptured
bladder. The fractured femur was also
treated by means of a delayed
internal fixation with a plate, screws and a bone-grafting procedure.
[8] When the plaintiff consulted
with Dr Olivier in 2010, she presented with multiple complaints.
These were a painful right shoulder
pain in the pelvic area backache,
a painful right hip and right knee. She still suffers from all of
the aforementioned. The
plaintiff has difficulty in using her
right arm. She is unable to lift it above her shoulder. Pain in the
pelvic area is increased
when she climbs stairs or walks, and during
sexual intercourse. The plaintiff walks with a limp and her knee is
often painful
and swollen. She is unable to bend forward or stand
for more than a few minutes without pain. All her orthopaedic
complaints
are aggravated by inclement weather. She suffers
permanently from discomfort and intermittent pains. Given her
impairments, she
is unfit for any type of employment in the open
labour market which requires any physical activity and she can no
longer trade
as a hawker. This was the conclusion of both
orthopaedic surgeons who examined the plaintiff.
[9] A removal of the internal
fixation of the right hip joint and shaft of the right femur is
predicted. Because of degenerative
changes, the plaintiff is bound
to have a total knee replacement in the future. Her shoulder and hip
might also later require
replacement. The plaintiff’s injuries
are of a serious and permanent nature.
[10] The plaintiff’s evidence
was that the injury (the pelvic injury in particular) has had a
negative impact on her relationship
with her husband as she no longer
enjoys sexual intercourse. She is no longer able to participate in
dancing at church which she
loved and her social life has also become
limited. She used to be a community walker, an enjoyable activity
which she can no longer
participate in. She is also no longer able
to cook for her family. Her daughter has taken over this task and
this has caused
some friction in the home. Clearly, the sequelae of
the accident had impaired the plaintiff’s quality of life
substantially.
[11] Courts have a broad discretion
in determining quantum for general damages. It amounts to what is to
be fair and adequate compensation
based on the facts pertaining to
the plaintiff herself and the nature and impact of her injuries.
There is a tendency for awards
to be higher than in the past as a
result of our higher standard of living and different value systems.
The aforesaid approach
sanctioned by the Supreme Court of Appeal in
Road Accident Fund v
Marunga
2
.
Although the approach to be adopted is to compare awards in similar
cases, the question of non-patrimonial loss still remains
within the
discretion of the court
3
.
[12] It is useful in this mater to
be guided by awards made in similar cases where plaintiffs were
granted compensation for multiple
orthopaedic injuries. Here are few
examples. In
Ntuli v Road
Accident Fund
4
an amount equal to R221 000.00 at current value was awarded to
such a plaintiff. In
Muller
v Road Accident Fund
5
the plaintiff was awarded R265 000.00 at present value and the
plaintiff in
Vilakazi v
Road Accident Fund
6
was granted R464 000.00 at present value.
[13] In
Vilakazi
(
supra
)
the plaintiff suffered from multiple injuries which included head
injuries, and soft tissue back injuries. Her left leg had broken
in
three places. Seven years after the collision she was still using
crutches. Her face was also disfigured by scarring. Her
injuries
were clearly considerably worse than those sustained by Mrs Ndaba,
the plaintiff in this matter.
[14] In the
Ntuli’s
case,
(
supra
) the plaintiff had been employed as a municipal worker
when she was injured and suffered multiple injuries. Her
circumstances
were very similar to those of the plaintiff. She was
also in her early forties, enjoyed dancing and was a community
walker. Her
pelvic injury resulted in a drop foot, a disfigurement
which was a factor taken into account in the award granted to her.
She
could still manage dancing and did not have the limited mobility
of the plaintiff in this case, who suffers discomfort in almost
any
physical position she assumes. Here it must be pointed out that the
plaintiff was described as “obese” in the medico-legal
report, which is a fact which may contribute to her discomfort.
[15] In
Roux v Road Accident Fund
(unreported decision under case no EL 397/02 ECD 1066/2, dated 15
August 2005), the plaintiff suffered comparable injuries (fracture
of
the left libia, right knee injury, and substantial deformity of the
right leg). He also suffered substantially diminished amenities
of
life. Roux was awarded approximately R250 000.00 in present
terms.
[16] Reference were also made to
other awards which I have read and need not list in this judgment.
Suffice it to say, that in
none of the cases that were comparable,
was an amount awarded which is close to what the plaintiff claims in
this case for general
damages (R500 000.00).
[17] After considering past awards
and all the factors relevant to the assessment of damages in this
particular case, I have formed
the view that an amount of R300 000.00
will be adequate compensation to the plaintiff for general damages.
Past and Future Loss of Earnings
[18] The plaintiff’s claims
under these two heads were the subject of much debate during this
trial, which had to be postponed
when the defendant raised the point
that the plaintiff did not have a hawking licence. This led to an
application by the plaintiff
to re-open her case to lead evidence in
rebuttal of this point. The defendant opposed the application, but a
few days prior to
the hearing the defendant abandoned the point it
raised, and the necessity for the application to lead further
evidence fell away.
The parties reached an agreement on the legality
of the plaintiff’s business activities and wasted costs, which
was made
an order of court.
[19] The facts set out below,
pertaining to the plaintiff, are relevant in establishing her loss of
income as a result of the motor
vehicle accident.
[20] The plaintiff is married with
three children. Her husband works for Auto Tyres as a driver. They
live in a three roomed house
which is supplied with electricity and
running water. She completed grade eight at the Ngwenyathi High
School at the age of nineteen.
She commenced working as a hawker in
1984. She stopped working in 2003 when her child was born and her
plan was to resume work
as soon as this child was able to walk.
However, she could not resume her work because she was involved in
the accident in February
2004. When the accident occurred this
youngest child (who was seven years old in 2010) must have been one
year old. Assuming
that she interrupted her hawking for one year for
this child, the same would apply to her two older children.
[21] The plaintiff’s hawking
business consisted primarily of selling vetkoek at St Luke’s
Higher Primary School. She
told Dr van Daalen she sometimes sold
sweets and fruit there as well. In addition, she sold other small
articles such as candles,
matches, single cigarettes, sachets of
sugar, chips and sweets in the community and from her home. She told
Dr van Daalen that
she would sell the vetkoek at 50c each. It cost
her approximately R21.00 per batch to make the vetkoek consisting of
flower, oil
milk and yeast. She made about R55.00 per day from these
vetkoek sales.
[22] Cigarettes and candles sold at
R1.00 per item. Matches and chips were sold at 50c per item and
sugar went for R1.50 per cup.
Loose sweets and teabags cost 20c and
25c each. Yeast was sold for R1.20 per sachet and paraffin for R2.00
a bottle (750ml).
The profit margin on all there items were
evidently very low. No evidence was proffered as to the approximate
daily profits the
sale of these items generated, or how much she sold
and from where exactly. It appeared to be mostly from home.
[23] The plaintiff told Dr van
Daalen that she was able to generate R600.00 per week from her
hawking activities. For the plaintiff
to have made R600.00 per week
from her hawking trade, particularly the confectionary (vetkoek) side
of it, must have involved considerable
effort and industry on her
part. She first had to make the vetkoek. She then had to walk three
kilometres to the school, carrying
the two 25 litre paint buckets
with 150 units of vetkoek (75 per bucket). It would be fair to
assume that if she was able to make
the same profit (R55.00 per day)
from selling vetkoek at home, she would have mentioned this to Dr van
Daalen.
[24] What vexed the calculation of
the plaintiff’s approximate earnings, apart from the absence of
records such as receipts
and bank accounts, was that the plaintiff’s
evidence and calculations did not make provision for certain very
important factors,
such as school holidays and public holidays during
which the plaintiff would obviously sell nothing at the school. The
plaintiff
attempted unsuccessfully to prove that she earned R31
200.00 per year, (based on a profit figure of R600.00 per week).
This was
the figure upon Dr Koch based on his calculations. The
plaintiff, at best, earned R275.00 per week (consisting of five
school
days) from selling vetkoek at the school. Moreover, there are
approximately nine public holidays per year which do not fall within
the school holidays. The school vacations account for at least a
further fifty six days of a year fall in non-school weeks
(discounting
the week-ends).
[25] If the plaintiff carried two
full twenty five litre buckets of vetkoek to St Luke’s School,
she would hardly be able
to carry fruit and sweets as well. To
arrive at a profit figure of R600.00 per week, would mean that the
plaintiff made about
R330.00 per week from selling the low profit
loose grocery items and vetkoek from home. I find this hardly
likely, given that
most of her profit must have been generated from
the sale of vetkoek at school, where there is a large and
concentrated number
of children.
[26] Although the plaintiff could at
least provide some information as to how many confectionary items
(vetkoek) she sold per day
at the school, the sales figures for the
grocery items were absent. In addition, anyone of her family could
sell loose groceries
from home. Her accident could not have caused a
loss in this regard. If the shortfall between the R600.00 and
R270.00 per week
as illustrated above, was made up by larger
quantities of vetkoek sold at home, (as submitted by the plaintiff),
that information
would have been furnished to Dr van Daalen and it
was not. The plaintiff’s case as presented, was that the lion
share of
her income was generated from the school sales. That is
also more probable scenario.
[27] Dr Koch’s calculations
are based on the plaintiff’s evidence that the plaintiff earned
R600.00 per week for fifty
two weeks a year (R31 200 in 2003).
Allowance was made for the fact that the plaintiff will reach the
normal retirement age
of 60 years. No provision was made for general
contingencies. Inflation at the rate of 6.34% per year and nett
capitalisation
rate at 2.5% per year, were factors taken into
account. Sliding scales for an earlier death was also brought into
account and
the following figures were arrived at in Dr Koch’s
report and claimed by the plaintiff: Past loss of earnings:
R175 804.00.
Future loss of earnings: R549 861.00. TOTAL:
R725 665.00. Week-ends, holidays and the year prior to the
accident (2003),
in which she reared her child and did not trade, are
not accounted for.
[28] At best for the plaintiff, her
sales of vetkoek at the school took place on approximately three
hundred days per year, not
365 days per year. At R55.00 per day, she
thus made approximately R165 00.00 per year from her sales at the
school. The remainder
of her income, which she did not sufficiently
prove, must have been considerably less for the reasons set out
above.
[29] The above exercise demonstrates
the flaws in the plaintiff’s calculations. This is a question
which could have been
best resolved by the parties, as suggested by
Dr Koch in his report as to how general contingencies should be
factored in. The
plaintiff should also not unduly benefit from her
insufficient evidentiary contribution towards establishing what her
income was,
at the defendant’s expense.
[30] In
Bridgeman
NO v Road Accident Fund
7
van Heerden J said the following:
“
In order to claim
compensation for patrimonial loss, a plaintiff must discharge the
onus of proving, on a balance of probabilities,
that such a loss has
indeed occurred. That does not mean that the plaintiff is required
to prove the loss with mathematical precision
– however, the
plaintiff is required to place before the Court all the evidence
reasonably available to enable the Court
to quantify the damages and
to make an appropriate award
”.
[31] The plaintiff did have an
income as a hawker, but in my view, R31 200.00 per annum was an
exaggerated figure. The figure has
to be reduced and that reduction
must be arbitrary to a large extent. It must also be noted that
“……
it is not competent for a court to embark upon conjecture in
assessing damages where there is no factual
basis in evidence, or an
inadequate factual basis for assessment
”.
8
[32] When assessing damages for loss
of earnings, allowances are usually made for contingencies not
specifically provided for in
actuarial calculations. The flaws in
the plaintiff’s calculations outlined above can only be
appropriately addressed by
providing for a substantial contingency
figure of 50% in respect of both past and future loss of income of
earnings. There need
not be a distinction between the two types of
loss of income, on the facts of this case. (See:
AA
Mutual v Maqula
.
9
)
[33] In the result, the plaintiff is
entitled to the following amounts in respect of her loss of earnings.
Total Past and Future loss of
income: R725 665.00
Less Contingency of 50%:
- R362 832.50
________________
Total loss of
income: R362 832.50
________________
[34] To sum up, the full award is as
follows:
Loss of Income (Past and Future
Damages): R362 832.50
General Damages: R300 000.00
Total: ________________
R662 832.50
________________
[35] In the result, the following
order is made:
Defendant shall pay to the
plaintiff the sum of R662 832.50 as and for damages;
Defendant shall pay interest on the
sum aforesaid at the legal rate of interest from a date fourteen
(14) days after judgment
to date of payment;
Defendant shall provide the
plaintiff with a certificate in terms of
Section 17
(4) (a) of the
Road Accident Fund Act in
respect of future medical expenses;
Defendant shall pay the plaintiff’s
costs on High Court tariff as between party/party which costs shall
include:
Costs of the action for the
proceedings on the 10
th
, 13
th
, and 14
th
of September 2010 and the 16
th
of March 2011.
The qualifying expenses in respect
of plaintiff’s witnesses, Dr PA Olivier, Dr HJ Van Daalen and
Dr RJ Koch, as may be
agreed between the parties or as may be
directed by the Taxing Master;
Costs of photographs;
That plaintiff is declared a
necessary witness.
Defendant shall pay interest on the
taxed costs at the legal rate of interest from a date fourteen (14)
days after allocatur by
the Taxing Master.
_____________________
E REVELAS
Judge of the High Court
Counsel on behalf of the
Plaintiff: Adv SSW Louw
Instructed by: Niehaus McMahan and
Oosthuizen
East London
Counsel on behalf of the
Defendant: Adv NJ Sandi
Instructed by: Bate Chubb and
Dickson Inc
East London
Date Heard: 16 March 2011
Date Delivered: 20 June 2011
1
Pitt v Economic Insurance Company Ltd
1957 (3) SA
284
(D) E-F per Holmes J
2
2003 (5) SA 164
(SCA), paras 23-29
3
De Jongh v Du Pisanie NO
2005 (5) SA 457
SCA
4
2009 5J2 QOD 207 (SE)
5
2007 5F3 QOD 40 (SE)
6
2007 5 QOD J2-160 (T)
7
QOD 5 B4-1 at B4-23
8
Per Rose Innes AJ in Monumental Art Co v Kenston
Pharmacy Pty (Ltd) 1976(2) SA 111 (c) at 118 E
9
1978(1) SA 805(A)