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[2008] ZAFSHC 112
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Esterhuizen and Others v MEC of Road, Transport and Public Works (1673/2004) [2008] ZAFSHC 112 (26 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
1673/2004
In
the
case
between:-
Theophilus
Esterhuizen
1
st
Plaintiff
Maryke
van Rooyen N.O.
2
nd
Plaintiff
Renier
Zietsman
3
rd
Plaintiff
Arend
Hendrik Adriaanse
4
th
Plaintiff
versus
M
EC
of Road, Transport And Public Works
Defendant
_____________________________________________________
J
udgment
By:
MOCUMIE,
J
_____________________________________________________
H
eard
on:
15
October 2007 - 15 May 2008
_____________________________________________________
D
elivered
on:
26
August 2008
_____________________________________________________
JUDGMENT
_____________________________________________________
[1] The
plaintiff
in this matter, Mr Arend Hendrik Adriaanse, was initially the fourth
plaintiff. The claims of the other three were settled, which
settlement agreement was made an order of court by me on 5 May
2008.Their claims need not detain us any further.
[2] Plaintiff
and his erstwhile co-plaintiffs were injured in a vehicle accident on
22 June 2001.The cause of the accident was attributed
to the state of
disrepair of the driving surface of the road. On 23 June 2005
Van
Coppenhagen J
found that the defendant, the MEC for Public Works, Roads and
Transport, Free State was solely responsible for the accident and
accordingly liable to compensate all the plaintiffs in full for the
proven damages suffered by them. This judgment was confirmed
on
appeal by the Supreme Court of Appeal in
MEC
for Public Works, Roads and Transport, Free State v Esterhuizen and
Others
2007 (1) SA 201
(SCA).
[
3] Plaintiff
sued the defendant for the following damages:
3
.1 Future
medical and related expenses
R95
524,00
3
.2 Loss
of income and earning capacity
R3
276 910,00
3
.3 General
damages
R500
000,00
[
4] Agreement
was reached between the parties in respect of the following damages:
4
.1 Future
medical and related expenses
R
85 000,00
4
.2 General
damages
R
400 000,00
4
.3 Past
loss of earnings
R
280 000,00
The
only dispute remaining for decision relat
ed
to plaintiff’s loss of future earning capacity.
[5] It
was common cause that plaintiff suffered the following injuries as a
result of the accident:
5
.1 A
severe lumbar spinal injury involving fractures of the transverse
processes of the 2
nd
,3
rd
and 4
th
vertebrae and traumatic herniation between the 5
th
vertebrae and the 1
st
sacral vertebra;
5
.2 More
relevantly: Severe head injury involving brain damage. The joint
minute of the neurosurgeons, Dr Pieter Repko for the plaintiff
and Dr
Edeling, for the defendant, record that they are in no doubt that the
head injury the patient (Mr Adriaanse) suffered from
the accident
under discussion has given rise to
“neuro-psychological
deficits.”
Dr
Repko also associated himself with the statement by Dr Edeling (the
latter’s report) that
“
the
degree of brain injury is regarded as severe. At this stage he
presents clinically with organic sequelae of traumatic brain
injury.
These sequelae have stabilized and become permanent.”
[
6] The
defendant’s contention is that plaintiff failed to prove on a
preponderance of probabilities that the back and head
injuries
sustained by him diminished or compromised his future earning
capacity. The onus is on a plaintiff to establish just that:
Ocean
Accident and Guardian Corporation Ltd v Koch
1963 (4) SA 147(A)
at 157B-159D.
[
7]
The defendant also submitted that a severe brain injury does not
necessarily result in a serious outcome. It relies primarily
on the
evidence of Dr Mariske Pienaar, a neuropsychologist who testified for
the defendant, under cross-examination where the following
is stated:
“
And
although,
as you correctly say, it is not necessarily so and you can (find)
cases where mild injury result in severe problems, as a general
statement the severity of the brain injury is a predictor of the
outcome, not so?---It is a starting point of your hypothesis that
you
are going to use in your assessment, but it does not necessarily
predict the outcome. It just gives you a vantage-point from
which to
go to select your battery of tests.
As a general
statement, the more severe the brain injury the more serious the
outcome, not so?---Yes, that is a general statement
but not
(necessarily) true. Not in practical terms.
Let me put it to
you again, I want to put it to you slowly. As a general statement,
the more severe the brain injury, the more serious
the outcome, not
so? ----Yes, I hear what you say, as a general statement, that is
right.
Is that correct
as a general statement? ----Yes.”
[
8] The
defendant’s submission is irreconcileable with the following
concessions made by the very witness (Dr Pienaar) under
cross-examination in the following passages:
8
.1
“And
you said that, it was conducive to the aim of the investigation to
discuss all these fine little differences between
the tests, not
so?---Yes.
So that there
was really no need for further detailed discussions, not so?---That
is right, yes.
Then if we turn
to p.60b, we look at paragraph 4, would you mind reading that into
the record for us?---‘Six years have elapsed
since the accident
and no further recovery would normally be expected. Experts agree
that a structured and sympathetic environment
would be necessary to
tolerate the cognitive changes currently experienced by Mr
Adriaanse’.
You and I know
that we all understand what the term cognitive changes means, not
so?---Yes.”
8.2
“
I
am looking at paragraph 4 on 60d and I am going to tell you that
there is no misunderstanding. I am going to read it to you, this
is
what the four of you agreed [reads para 4 of the Joint Minute]
Now a cognitive
change is brain
damage,
not so?---Yes. A ‘sympathetic and structured work environment’
can also imply that he himself manages his own
work environment to
get it in a structured and sympathetic way…
8
.3
“
Dr
Pienaar look at what you said---Yes, I am looking.
Look at what is
in front of your eyes: ‘The experts agree that a structured and
sympathetic environment would be necessary
to tolerate the cognitive
changes currently experienced by Mr Adriaanse’.---That is
right, yes.
I am putting it
to you that that plain and simple says his brain damage means he
needs a structured and sympathetic work environment
forever---Absolutely, I can show that to you as well. What we mean by
that is that he has to learn for instance to manage his fatigue,
because when he is fatigued…the deficits that are mild that we
found [in] the test situation would be exacerbated and would
really
come out, but it is within his control to manage the fatigue.
Is that your
answer?
---
That is my answer, yes.”
8
.4
“So
explain to us exactly why you think that the cognitive changes in Mr
Adriaanse’s head, brought about by the accident,
require a
structured and sympathetic work environment?---What we mean by
structured and sympathetic is probably the same as the
obvious
understanding, that he needs sympathy and structure to be able to not
let his environment get so out of hand that the
cognitive
difficulties that we found that were very mild, would then go over
to the moderate to severe side…he is someone
that has the
insight and the capability to …learn how to manage his own
environment to make it sympathetic towards himself
and to make it
structured…And he would also then have the knowledge, after we
have given him the guidance, to have for instance
a discussion with
his employer, saying listen, this has happened to me, this is my weak
point, I need to take regular breaks…I
usually get a bit [of]
stimulus overload when there is too much going on around me, but I
will manage it, I just want you to know…it
is not that he is
totally incapable of managing that himself, that is in other words he
has to be sort of put into a sheltered
work environment where he is
being looked after.”
8
.5
“And
if you have got brain damage you must not concentrate only on the
results in the tests because you must remember that
outside in the
real world he has to compete with all of these other stimuli.---That
is very true.
And because of
these problems, without going into all the little detail about this
test result and that test result, you all agreed
he needs a
structured and sympathetic work environment.---Yes.
For the rest of
his life?---Yes, absolutely.”
8
.6
“That
must be of some comfort to him to know that he can find structured
and sympathetic employment himself?---That is, if
I can just comment
on that? With the various head injury patients that I have seen up to
date it is an immense strength of that
person to realize that he is
actually capable of something, so it is in his benefit to realize
that.”
[
9] In
my view there is considerable merit in plaintiff’s contention
that the defendant has, through Dr Pienaar, valiantly
attempted to
resile from the Joint Minute of the neuropsychologists and
consequently to undermine the agreement reached between
the
industrial psychologists of the opposing parties. Another feature of
Dr Pienaar’s evidence is that the defendant sought
thereby to
discount Ms du Plessis’s evidence on the basis that she was not
sufficiently qualified or experienced or knowledgeable
to express an
opinion with regard to the severity of the deficits in the
plaintiff’s intellectual capacity.
[10] It
was common cause that Ms du Plessis was an expert in
neuropsychology.She may have been less experienced and qualified than
Dr Pienaar but this does not detract from her competency and the
quality of her evidence. She impressed me as an honest and unbiased
witness. She presented a balanced assessment of the plaintiff’s
condition from a neuropsychological medical perspective based
on the
tests she conducted and had regard to collateral information collated
from the respective views expressed by other experts
in their own
fields. Her considered opinion was that plaintiff’s post-morbid
condition undoubtedly showed that he presented
with deficits that
diminished his future earning capacity. Ms du Plessis’s
evidence is not at variance with that of Dr Repko
- mindful of course
of the fact that Dr Repko is a neurosurgeon and Ms du Plessis a
neuropsychologist.
[1
1] Dr
Repko testified that it appeared to him that the plaintiff did not
have full insight into his mental state. He found that
it was
extra-ordinary that a matriculant, such as the plaintiff, expressed
contentedness with the manual labour he had been performing
for over
six years. More significantly, however, he noted that the plaintiff’s
persistent headaches and bouts of memory loss
are attributable to the
head injury. Dr Repko confirmed that he and Dr Edeling (for the
defendant) agreed in the Joint Minute that
they
“do
not doubt that the head injury the patient (plaintiff) suffered in
the accident has given rise to neuropsychological deficits.”
Dr
Repko was not discredited under cross-examination on this point nor
did Dr Edeling testify.
[12] The
defendant, as pointed out earlier, has conceded that the plaintiff
has suffered past loss of income substantially along
the lines agreed
upon by the industrial psychologists, Mr Moodie and Ms Van Jaarsveld,
whose agreement in turn is largely informed
by the agreement between
the aforementioned neuropsychologists.Sound logic and inference
therefore points concomitantly to the
fact that defendant conceded
future loss along the same lines or on the same basis. There is no
doubt in my mind that plaintiff’s
brain injury has resulted in
his future earning capacity being seriously compromised.
[13] In
order to determine the quantum of plaintiff’s claim, it must be
determined what career path he would probably have
followed had he
not been injured. Here the experts on both sides gave their opinion
to substantiate this one aspect on which the
parties did not agree.
This, in my view, was as a result of the fact that plaintiff did not
undergo any psychometric assessment
prior to the accident or
immediately thereafter and only did so in 2007, five years after the
accident. Not only that but plaintiff
also found himself in the
peculiar situation of many South Africans who visit or are admitted
to public hospitals where top-of-the
range treatment is available
only to medical aid funded patients. Thus the experts relied mostly
on the results of a battery of
tests that were done in a controlled
environment other than the normal environment.
[14] Plaintiff
testified that he passed his matriculation examination on standard
grade. He changed from higher grade to enable
him to acquire this
qualification without delay so that he could seek employment because
he lacked financial
support
from his parents. From the subjects which he obtained high marks in
and the technical school he attended it was clear to
him that he was
a technically inclined person. He worked for panelbeaters shortly
before the accident. He had intended to pursue
a career in
Information Technology (IT) with Damelin College. Due to lack of
finances he abandoned the idea and started to do
manual work in Cape
Town and in Bloemfontein as a sample collector and a refrigerator
sales person, respectively. When the accident
struck he was
unemployed. After the accident he worked at the panelbeaters before
he left with his step brother for London where
he worked in a pub as
a waiter. He managed to hold on to this job for a period of six
months i.e. until he returned to South Africa.
He realised that after
the accident he was no longer as attentive as he used to be. He had a
short memory span and could not retain
information as he used to.
[1
5] Plaintiff
came through as an honest witness. It is noteworthy that in his
evidence he maintained that these problems identified
earlier “
did
not really affect him
”.
He did not exaggerate or change his symptoms as he was interviewed
by different experts at different times in June, July
and September
2007. He was not discredited in his entire evidence. Nor was it put
to him that he was exaggerating his case or
worst still faking the
symptoms. The defendant’s submission that he concentrated and
responded constructively when he testified
does not carry much
weight. I had no reason to doubt his evidence that post the accident
he suffered from short memory, was forgetful
and as a result was
moved to an undemanding job as a messenger-cum-driver.
[16]
Mr Christiaan Servaas Joubert (“
Servaas
”),
plaintiff’s employer, corroborated him in all material
respects. His uncontested evidence was to the effect that
plaintiff
changed from the meticulous worker he used to be prior to the
accident to one that was forgetful, and not focused, as
a result of
which he was forced to move him to the undemanding job of
messenger-cum-driver, running small errands. Servaas was
not
challenged on his personal observation on the changes that he noticed
on plaintiff as he carried out his tasks on a daily basis.
What he
said in Court is in substance what he conveyed to Mr Moodie, the
industrial psychologist during his collection of collateral
information on plaintiff.
[17
]
The
duty of a cross-examiner has been authoritatively stated in
President
of RSA v South African Rugby Football Union
2000 (1) (CC) at 36J-38A (paras 61-64) as follows:
“
[61] The institution of
cross-examination not only constitutes a right; it also imposes
certain obligations. As a general rule
it is essential, when it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct the witness’s
attention to the fact
by questions put in cross-examination showing that the imputation is
intended to be made and to afford the
witness an opportunity, while
in the box ,of giving any explanation open to the witness and of
defending his or her character.
If a point in dispute is left
unchallenged in cross-examination, the party calling the witness is
entitled to assume that the
unchallenged witness’s testimony is
accepted as correct. This rule was enunciated by the House of Lords
in
Browne v Dunn
(1893) 6 R 67 (HL) and has been adopted and consistently followed by
our courts (
R v M
1946 AD 1023
at 1028;
Small
v Smith
1954 (3)
SA 434
(SWA) at 438E-H;
S
v Van As
1991(2)
SACR 74 (W) at 109b-g).
[62] The rule in
Browne
v Dunn
is not
merely one of professional practice but ‘is essential to fair
play and fair dealing with witnesses. It is still current
in England
and has been adopted and followed in substantially the same form in
the Commonwealth jurisdictions.
[63] The precise nature of the
imputation should be made clear to the witness so that it can be met
and destroyed, (
Allied
Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation
(1983) 44 ALR 607
(SC (NSW)) at 623-34) particularly where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings.
It should be made clear not only that the evidence
is to be challenged. This is so because the witness must be given an
opportunity
to deny the challenge, to call corroborative evidence, to
qualify the evidence given by the witness or others and to explain
contradictions
on which reliance is to be placed.
[64] The rule is of course not an
inflexible one. Where it is quite clear that prior notice has been
given to the witness that his
or her honesty is being impeached or
such intention is otherwise manifest. it is not necessary to
cross-examine on the point, or
where ‘a story told by a witness
may have been of so incredible and romancing a nature that the most
effective cross-examiner
would be to ask him to leave the box’.”
In the
absence of any other
probable
version I had no reason to doubt both plaintiff and Servaas’s
evidence to the extent that they corroborated each
other.
[18] On
a conspectus of all the evidence I am satisfied that:
18
.1 Plaintiff
suffered severe brain damage as a result of the car accident on 22
June 2001;
18
.2 That
the brain damage was organic;
18
.3 That
the brain damage gave rise to deficits as set out by all experts
irrespective of the degrees of severity;
18
.4 That
such deficits have compromised his future earning capacity to the
extent evidenced by Ms du Plessis and other experts; and
18
.5 That
the plaintiff has established a causal relationship between his brain
injuries and the accident on a balance of probabilities.
[
19] In
their joint report, both industrial psychologists, Mr Ben Moodie, for
the plaintiff, and Ms Susan van Jaarsveldt, for the
defendant,
accepted that in order to make this estimate, the safest approach
would be to assume that, but for the accident, plaintiff
would have
opted for a career as an artisan such as a motor mechanic. He would
have had to complete N1, N2 and N3 at a technical
college whilst also
completing a 3 year apprenticeship. After completion of N3 and his 3
year apprenticeship he would have written
the trade test and qualify
as artisan. In his case he would have taken at least 5 years to gain
the necessary experience and knowledge
to write the trade test.
[20] Mr
Moodie, contended that as plaintiff had completed Grade 12 in 2000
“…
due
to the severity of the injuries he sustained he would be able to
perform semi-skilled type of work such as unqualified artisan,
earning on the lower quartile of Paterson level A2, progressing at a
slower rate that is anticipated at 5% in real terms, to the
median
level of Paterson level B3, possibly B4.As it was unlikely that he
would be able to secure employment with a corporate company
only the
basic salaries plus a possible 13
th
cheque would apply.”
[21] Ms
Van Jaarsveld, on behalf of the defendant, sets out a less optimistic
scenario to that performed by Mr Moodie on one progression
level only
i.e. C3/C4 . Her opinion was to the effect that:
“…
for
the small possibility that he would have remained in Hartswater for
the remainder of his working life, progress to this level
would have
been unlikely.”
I
don’t agree
with this gloomy picture. Plaintiff was shown to be adventurous and
had worked in London and Cape Town. There is no reason to believe
that he would have been shackled to Hartswater for the rest of his
working life. There is accordingly much to say for the submission
by
counsel for the plaintiff that little value should be attached to the
less optimistic approach by Ms Van Jaarsveld because it
lacked any
justification. There was no logical reason why plaintiff could have
progressed so slowly through the different levels
of the Patterson
Grading. I accept the joint report of both psychologists. The
question that remains is what mode of qualification
to employ.
[
22] The
remuneration values for an artisan position are given by
De
Loitte & Touche National Remuneration Survey of 2006
as follows:
"BASIC
TOTAL
COST-TO-COMPANY
MONTHLY
MONTHLY
SALARY
SALARY
Patersons-
Lower
Upper
Lower
Upper
Grading
Quartile
Quartile
Quartile
Quartile
B1
R3
874
R5
285
R5
388
R7
233
B2
R4
403
R5
925
R6
297
R8
383
B3
R5
150
R6
830
R7
297
R9
621
B4
R6
140
R8
272
R8
845
R12
115
B5
R7
172
R9
832
R11
124
R14
686
C1
R7
617
R10
443
R11
693
R15
293
C2
R9
215
R12
191
R13
567
R18
788
C3
R10
657
R14
403
R17
003
R22
366
C4
R12
566
R17
201
R20
507
R26
517
Applicable
salaries:
BASIC
MONTHLY
SALARY
Patersons-
Lower
Upper
Grading
Quartile
Quartile
R3
056
R4
327
R3
418
R4
645
R
3,874
R5
285
R4
403
R5
925
R6
140
R8
272
R7
172
R9
832"
[
23] Mr
Johan Sauer, an actuary called on behalf of plaintiff had prior to
his testimony in court, conferred with Mr Jacobson, the
actuary for
the defendant, telephonically and electronically. They acted on
different instructions in regard to the determination
of the future
remuneration. Whereas Mr Sauer was given instructions to indicate
different scenarios pre-morbid and post-morbid,
Mr Jacobson was
instructed by the defendant not to consider future remuneration. Mr
Sauer in his report which was read into the
record stated that:
“
A
ccording
to the combined report (dated 2007/10/24) of Ben Moodie and S van
Jaarsveld, industrial psychologists, Mr. A.H. Adriaanse
would have
started to work by 2001/01/01 with earnings equal to the lower
quartile of the Paterson B1 level. Thus, annual earnings
of R61 656
(R5 388 * 12) in 2006/02/01 monetary terms or annual earnings of R51
180 in 2001/01/01 monetary terms. These earnings
are projected
linearly until 2004/06/22 (3 years later) with earnings equal to the
median of Paterson B3 level. Thus, annual earnings
of R101 508 ((R7
297 + R9 631)/2 * 12) in 2006/02/01 monetary terms or annual earnings
of R93 553 in 2004/06/22 monetary terms.
Thereafter, he would have
entered on the lower quartile of the Paterson B4 level with annual
earnings of R106 140 (R8 845 * 12)
in 2006/02/01 monetary terms or
annual earnings of R97 836 in 2004/06/23 monetary terms. According
to the report, these earnings
would progress with a real rate of 5%
per annum (over-and-above inflation) until reaching the upper
quartile of the Paterson C2
level. Thus, annual earnings of R225 456
(R18 788 * 12) in 2006/02/01 monetary terms or R245 307 in current
monetary terms. These
earnings are projected linearly until
2032/07/30 (12.5 year later; average of 10 and 15 years) with
earnings equal to the upper
quartile of Paterson C3/C4 level. Thus,
annual earnings of R293 298 ((R22 366 + R26 517)/2 * 12) in
2006/02/01 monetary terms
or R319 122 in current monetary terms.
Thereafter, we project this income with inflationary increases only
until retirement at
age 65.
Post-morbid:
According to the
combined report (dated 2007/10/24
)
of Ben Moodie and S van Jaarsveld, industrial psychologists, Mr. A.H.
Adriaanse currently earns R500 per week. Thus, annual earnings
of
R26 000 (R500 * 52) in current monetary terms. According to the
combined report, these earnings are projected with a real rate
of 5%
(over-and-above inflation) until reaching a monthly salary (including
a thirteenth cheque) equal to the lower quartile of
Paterson A2
level. Thus, annual earnings of R39 728 (R3 056 * 13) in 2006/02/01
monetary terms or R43 226 in current monetary
terms. These earnings
are then projected with a real rate of 5% (over-and-above inflation)
until reaching a monthly salary (including
a thirteenth cheque equal
to the median of Paterson B1/B2 level. Thus, annual earnings of R63
333 ((R3 874 + R5 285 + R4 403 +
R5 925)/4 * 13) in 2006/02/01
monetary terms or R68 909 in current monetary terms. Thereafter, we
project this income with inflationary
increases only until retirement
at age 65.
[24] Mr
Sauer then presented four scenarios and from those scenarios he was
of the view that scenario A, hereunder was the most
appropriate to
adopt in plaintiff’s case.
Scenario
A
Pre-morbid
Post-morbid
Loss
497,406
136,509
360,897
24,870
6,825
18,045
472,536
129,684
342,852
4,526,833
1,142,187
3,384,646
679,025
228,437
450,588
3,847,808
913,750
2,934,058
Total
loss of earnings
3,276,910
His
entire calculations were based on t
he
assumption that plaintiff would have started to work by 1 January
2001. This assumption was made reliant on the industrial
psychologists’ (Moodie and Van Jaarsveld) combined report.
[
25] Mr
Sauer’s assumptions were criticised by the defendant on the
following bases:
2
5.1 That
plaintiff did not start working on 20 January 2001 but was actually
unemployed when the accident occurred;
2
5.2 That
he did not show any inclination to being employed as he moved from
one seasonal job to another;
2
5.3 That
plaintiff did not have any ambitions to study to become an artisan by
going to a technical college first. If anything he
would have become
one after he had done a 5 to 6 year apprenticeship after joining the
unskilled labour force;
2
5.4 There
was nothing in the industrial psychologists’ joint report which
could lead Mr Sauer to base his calculations from
January 2001; and
2
5.5 That
it was incorrect to assume that an apprentice would start as a
mechanic or draughtsman on a cost-to company-basis.
[
26] I
accept that plaintiff was unemployed at the time of the accident and
could not have been employed as a fully qualified mechanic
in at
least 5 years after joining the unskilled labour force in September
2002, as he testified. Except for the premature date
of calculations
by Mr Sauer his report cannot be substantively faulted. It was common
cause that plaintiff would have worked up
to the age of 65 years. Mr
Sauer testified that his calculations or figures were conservative in
that if he were to update them
he would have to take account of the
new tax rates and that would result in increases. He provided the
increased figures for this
proposition which plaintiff did not insist
upon. I am satisfied that his evidence in this regard is credible
because Mr Jacobson,
the defendant’s actuary computed the
earnings pre-morbidly in the range of plus minus R120 000,00 in
excess of Mr Sauer in
scenario A. Mr Sauer was not challenged on his
calculations except on the assumptions he made in respect of the
advanced date.
[27] Counsel
for plaintiff has contended strongly for a 15% deduction pre-morbid
and 20% post-morbid. He urged the Court to adopt
the approach taken
in
Du
Pisanie v De Jongh
V C + B B4 – 109 (C),
Van
Dyk v Road Accident Fund
V C + B E 8 – 1 (Arb),
Van
Staden v President
IV C + B L 2 – 1 (W) and
Road
Accident Fund v Reynolds
V C + B D3-1 (W) as it is fairly balanced and is generally adopted in
similar cases.
[28] Mr
Moerane,
for the defendant, submitted that should this Court be disposed to
award damages post-morbidly a global amount must be
awarded. He
contended that an amount in excess of R 3 million is
“way
out of range”.
No figures were supplied by him for such statement, nor has the
defendant proposed any amount which in their view would be fair.
I
cannot support counsel’s suggestion because of the helpful
actuarial calculations before me. Besides the authorities are
against
Mr Moerane’s approach. In
Southern
Association v Bailey
1984 (1) SA 98
(A) at 114D
Nicholas
JA
stated :
“In
a case where the court has before it material on which an actuarial
calculation can usefully be made, I do not think that
the first
approach [global approach] offers any advantage over the second
[actuarial calculations]. On the contrary, while the
result of
actuarial computation may be more than an “informed guess”,
it has the advantage of an attempt to ascertain
the value of what was
the loss on a logical basis, whereas the trial judge’s “gut
feeling” (to use the words
of appellant’s counsel) as to
what is fair and reasonable is nothing more than a blind guess…”
[2
9] I
am mindful of what
Broome
DJP
said in
Wright
v Multilateral Motor Vehicle Accident Fund
reported at Corbett & Honey,
The
Quantum of Damages in Bodily and Fatal Injury
Cases Vol IV at E3-31 at E3-36:
“
I have
been quoted a large number of cases where awards have been made.
Some of them are reasonably comparable, others are not,
but as both
counsel were quick to concede, there is no such thing as a case which
is on all fours. These awards made in earlier
cases are interesting
but they serve no more than to give some indication of what sort of
awards were considered appropriate on
the facts of the particular
case. I consider that when having regard to previous awards one must
recognize that there is a tendency
for awards now to be higher than
they were in the past. I believe this to be a natural reflection of
the changes in society, the
recognition of greater individual freedom
and opportunity, rising standards of living and the recognition that
our awards in the
past have been significantly lower than those in
most other countries.”
Bearing in mind the
aforegoing it is useful to seek guidance in recent awards by our
Courts in similar cases.
[
30] In
De
Jongh v
Du
Pisanie
the
plaintiff was 35 years old. He was a married male engineering
assistant employed by Eskom. He suffered
inter
alia
head injuries with brain damage.
Thring
J
applied a 10% future contingency deduction. In
Bartlett
v Mutual & Federal
IV
C+B A4-20 the plaintiff was 17 years old (23 by the time of trial).
Du
Plessis AJ
(as he was then) decided on a 15% general contingency deduction
because the claimant was working at a very low level and was probably
unable to retain that. He also allowed a further contingency
deduction of 15% to account for residual earning capacity. In
Van
Drimmelen v President Insurance
IV C+B E2-19(T) the plaintiff was a 21 year old engineering student.
He was amputated below the knee as a result of his injuries
and would
work pre-morbidly and post-morbidly to the age of 65.
Le
Roux J
decided to determine loss of income on the basis of differentiated
contingencies of 10% pre-morbid and 30% post-morbid. In general
a 15%
contingency deduction is normally applied where there is reasonable
degree of certainty. See
Van
der Merwe v Premier of Mpumalanga
V C+B 13-15 (T);
Newsletter
(No 50, June 2003) Robert Koch at page 2.
[31] It
appears to me that plaintiff had enjoyed good health prior to the
accident. He had not suffered illness or injuries. He
was employed on
a seasonal basis as he was still looking for finances to study
further to acquire qualifications for better employment.
There is no
indication that he would not have wanted to become something in life.
He is now confined to a specific area of work.
Other types of
employment which he could have done but for the accident are now
excluded. In addition the fact that he would undergo
a back operation
at some point in his life also has to be taken into account.
[
32] It
would be improper to have regard to Mr Sauer’s calculations
without taking into account the fact that plaintiff was
an unskilled
labourer and not entitled to a 13
th
cheque or a salary on a cost-to-company salary scale. Mr Sauer
computed that plaintiff be awarded the sum of R 2 934 058, 00. This
amount includes a contingency of 20% post-morbidly. He starts his
calculation from the 1
st
of January 2001 instead of June 2001 when the accident occurred. An
amount ought therefore to be deducted for the period of six
months
pre-accident. In addition an amount equal to one month’s salary
for the period of five years has to be disallowed
in respect of the
13
th
cheque which the plaintiff was not entitled to. Plaintiff’s
counsel intimated that he has instructions to accept a reduced
amount
of R2 800 000,00 which is less than the amount to be deducted for the
premature calculation of six months and the amount
to be deducted for
the 13
th
cheque. Plaintiff therefore forfeits an amount of R 134 058, 00 which
is R 2 934 058, 00 less R 2 800 000, 00. In my view this
is eminently
fair to both parties.
[
33] In
the circumstances I grant judgment for the plaintiff against the
defendant as follows:
ORDER
1.
The
defendant is ordered to pay the capital amount of R 2 800,000.00 (two
million eight hundred thousand rand) to the plaintiff’s
attorneys of record.
2.
Future
medical and related expenses (As agreed)
R
85 000,00
3.
General
damages
(As
agreed)
R
400 000,00
4.
Past
loss of earnings (As agreed)
R
280 000,00
5.
Future
loss of earnings R 2 800 000,00
Less
the
amount of R 6500,00 (Already paid by the Road
Accident Fund)
6.
Interest
on the aforementioned capital at the rate of 15% per annum calculated
from and including the thirty first calendar day
after the date of
this order to and including the date of payment.
7.
Defendant
is ordered to pay plaintiff’s taxed costs which would include
the following costs:
7
.1 The
costs of employing two Counsel;
7
.2
The costs of obtaining by plaintiff various
reports of the
following experts:
7
.2.1 Dr
Pieter Repko,
7
.2.2
Dr J.J Fourie,
7
.2.3 Ms
Wilma van der Walt,
7
.2.3 Ms
Lynne Reyers,
7
.2.4 Ms
Rita du Plessis,
7
.2.5 Ms
Karin Havenga,
7
.2.6 Dr
Niel Cornelius,
7
.2.7 Mr
Ben Moodie,
7
.2.8 Mr
Johan Sauer.
7.
3 The
reasonable preparation/qualifying and reservation fees (if any) of
the experts referred to in paragraph 7.2;
7
.4 Transcription
costs;
7
.5 The
travelling and accommodation costs of experts, witnesses, attorneys,
counsel; and
7
.6 The
reasonable costs of compiling the various bundles including the
experts report, joint minutes and expense vouchers.
_
______________
B.C. MOCUMIE, J
On
behalf of Plaintiffs:
Adv
J F Mullins SC
With
him:
Adv
J Du Plessis
Instructed
by:
Swanepoel
Attorneys
c/o
Naudes
BLOEMFONTEIN
On
behalf of
Defendant: Adv
M J Möller
With
him:
Adv
Marume
Instructed
by:
The
State Attorney
BLOEMFONTEIN