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[2008] ZANCHC 34
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Swanepoel v Road Accident Fund (1271/2004) [2008] ZANCHC 34 (13 June 2008)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 1271/2004
Heard: 12-15/5/08
Delivered:
13/06/08
In
the matter between:
J
F T SWANEPOEL PLAINTIFF
VS
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
Mokgohloa
A J:
Introduction
1.
The
plaintiff, Johannes Frederick Theron Swanepoel, instituted action
against the defendant, the Road Accident Fund (“RAF”),
for damages suffered by him as a result of a collision between motor
vehicle with registration letters and numbers BNN 352 GP (the
insured
vehicle) driven by a certain Delene Boshoff (the insured driver), and
a motor vehicle with registration numbers and letters
BBW 396 NC
driven by the plaintiff. The said collision occurred on 26 April
2000 at 18h20 on the N1 national road at Richmond.
The plaintiff
based his claim on the sole negligence of the insured driver.
2.
The plaintiff claimed the following amounts:
2.1
Hospital expenses
R
83 780.74
2.2
Medical expenses
R
38 509.82
2.3
Estimated future hospital and medical expenses
R
533 053.00
2.4
Past loss of earnings
R 1 506 880.50
2.5
Loss of earnings/future loss of income
R 3 146 329.50
2.6
General damages
R
900 000.00
3.
At
the commencement of the trial, I was informed that the merits of the
plaintiff’s claim have already been decided in favour
of the
plaintiff on an 80/20% basis. I was further informed that the
defendant has tendered payment of plaintiff’s hospital
and
medical expenses in the amount of R 122 290.56 which the plaintiff
has accepted. Furthermore the defendant has tendered an
undertaking
as provided for in section 17 (4)(a) of Act 56 of 1996 in respect of
the plaintiff’s estimated future and related
medical expenses.
The plaintiff has accepted this tender. Consequently the issues for
determination are plaintiff’s general
damages, past loss of
earnings and future loss of income.
4.
At
the end of the trial I made the following order after deducting the
20% from the R 122 290.56 without giving reasons:
“
The
defendant pay the amount of R97 832.44 for hospital and medical
expenses to the plaintiff as soon as possible (within 3 days
from
today) and also make the certificate in terms of Section 17(14)
available to the plaintiff within 7 days.”
I intimated that
my reasons will be furnished in due course. These are my reasons.
Backround
5
. The
plaintiff sustained very serious injuries. He also lost
consciousness as a result of the collision. He was admitted to
Richmond Hospital, whereafter he was transferred to Hydromed Hospital
in Bloemfontein where he eventually regained full consciousness.
He
remained in hospital until 9 May 2000 when he was discharged. From
the evidence, it is clear that the plaintiff suffered serious
and
multiple injuries. His injuries included a frontal head injury, a
spinal cord injury at C5 and C6, and fractures of the D6
and D8
vertebraes. He was quadriplegic from C6 down. He was admitted to
the intensive care unit and had to undergo an urgent
operation to
reduce the pressure on the spinal cord on interior fusion of C5 and
C6 discs and a bone graft from his right ileum
was performed and
prosthesis was inserted. To compound his problems, plaintiff had
breathing difficulties and was mechanically
ventilated for a period
of 3 days. Upon his discharge from hospital, the plaintiff
experienced a weakness of grip in both hands
and a 4/5 recovery of
motor power of the legs. He had spasticity in his legs. On a
follow-up examination, it was found that the
posterior elements of
the vertebral C4/6 disc space were abnormally mobile and a further
operation was performed on 24 July 2000
to stabilize it. Though the
plaintiff received physiotherapy treatment, not much improvement was
noticed.
Evidence
6.
Five
witnesses testified on behalf of the plaintiff. The plaintiff
himself also testified. No evidence was led on behalf on the
defendant. All the witnesses testified to the effect that the
plaintiff’s disability was profound and impacted on every
domain of his life. They all agreed that his disability would never
improve and in fact his condition is worsening and will continue
to
worsen overtime.
7.
The
plaintiff testified that he is 43 years old married with two
children. He is a farmer and a professional hunter. Before the
accident he was healthy and lived an active normal life of a farmer
and a hunter. He did most of the work on his farm with the
help of
his employees. He ploughed his fields, drove the tractor, repaired
his cars and serviced his machines and windmill. He
shorn his sheep.
According to him, he balanced his life as a farmer and a hunter very
well. He did hunting on his own farm and
as well as assisting
tourists to hunt in Port Elizabeth where he made substantial profit.
It used to be his favourite pastime
to take his wife for dance
parties on Saturday nights. All these changed drastically as a
result of the accident. His life is
reduced to sheer misery. He now
has to endure pains everyday. He can no longer enjoy the amenities
of life. He cannot conduct
his activities on the farm and cannot hunt
anymore. It is clear from his evidence that his life revolved around
these two activities.
Understandibly, he misses that. Sleeping for
him is a nightmare. He sometimes wakes up during the night with
excruciating pains
on his back and neck. He cannot control his
bladder and bowels and he sometimes soils himself. This, coupled
with severe pains
leaves him stressed and depressed. In a desperate
attempt to escape from his miseries, he imbibes alcohol in order to
relax and
relief the pains.
8. Suné
Minnaar
,
an Occupational Therapist who consulted the plaintiff on 6 August
2003 and again on 24 January 2008 testified that there were
no
noticeable changes on the plaintiff’s recovery. According to
her the plaintiff downplays his situation. In her opinion
the
plaintiff should discontinue farming.
9. Dr
Pieter Repko
,
a neurosurgeon who examined the plaintiff on 15 July 2002 and 24
January 2008 formed an opinion that the plaintiif’s life
expectancy has been reduced by between two and four years as a result
of the injuries. He testified that during a recent consultation
he
did not notice any improvement in the plaintiff’s condition and
he still complains about weakness in the arms, continuous
backache,
neck ache and restricted movement of the neck. According to Dr
Repko, the plaintiff still experiences itching of the
left arm and a
hypersensitivity of the index finger with a corresponding weakness of
the left arm and the hand. The fingers of
the left arm are in a
spastic flexed position and the plaintiff has lost co-ordination and
fine motor movements. This has resulted
in plaintiff having
difficulty in fastening buttons and dressing himself. The right hand
has less intense problems but has resulted
in the plaintiff being
unable to do the repair work that he used to do and to handle a
rifle. There is a warm burning sensation
in his back and a decreased
sensation especially on the left side. The left hand has constant
pins and needles. He has cold feet
and stumbles on uneven surfaces,
e.g ploughed ground. He drags his left foot when tired, cannot walk
up the stairs, need to pull
himself out of the car, cannot run or
jump, has spasticity in his legs and can only walk 100-200 meters at
a time. He further
has sphincter problems which results in him
soiling himself sometimes. He also has severe sexual problems which,
in effect amount
to impotence.
10.
According
to Dr Repko, these injuries have affected the plaintiff
psychologically and left him depressed, irritated and agitated.
He
is unable to play golf, squash, snooker and darts as he used to do
before the accident. He has a decreased awareness of pain
and touch
sensation and his neck movement is reduced to 40%. The damage to his
spinal cord could worsen in future. Dr Repko does
not recommend
surgery on neither the spinal cord nor the neck as, according to him,
that might prove to be disastrous. None of
the plaintiff’s
disabilities will be cured. According to Dr Repko, plaintiff’s
condition is worsening and will continue
to worsen over time.
Medication and physiotherapy will at best delay the condition. The
pains will remain with him forever.
In his opinion, Dr Repko
suggested that the plaintiff should discontinue farming and at least
employ a farm manager to assist him
in his farming activities. He
opined that the plaintiff will never be able to hunt again as a
professional hunter.
Special
Damages
11.
It
is clear from the medical and psychologists reports that the
plaintiff will never be able to earn an income. The defendant
has
admitted that the plaintiff suffered loss of income. A letter from
John X Safaris, the plaintiff’s employer as a professional
hunter was accepted as exhibit “C”. In this letter it is
stated that the plaintiff earned a total of R113 307.19 (VAT
included) for the calendar year 1999. The defendant also admitted
the report by the Industrial Psychologist
Dr
Ebben van Zyl
.
Dr van Zyl recorded that the average remuneration package of a farm
manager in the Northern Cape is R16 577.00 per month.
12.
Mr
lan Morris
an actuary, prepared an Actuarial Report. In this report the
plaintiff’s loss of past and future income is calculated at
R4
620 528.00. These calculations are based on earnings furnished by a
letter from John X Safaris and remuneration package by
Dr Ebben van
Zyl. The calculations in the report are based on the assumption that
the plaintiff would have worked until age 65.
He would have had
expenses in his professional hunting at 50% of his income.
Contingence
Deduction
13
. The
plaintiff testified that the only expenses incurred by him in his
professional hunting were the replacement of tyres of his
vehicle as
he personally attended to the maintenance to his vehicle and the
upkeep of his rifle. This evidence was not disputed.
When this was
put to Mr Morris, he responded that he had assumed that the
plaintiff’s expenses in his professional hunting
were 50% of
his income. Morris conceded that this assumption had to change in
the light of the evidence on this aspect. He testified
that the
expenses should rather be assessed at either 25% or 10% of the
hunting income. I permitted Mr Morris to re-calculate
the loss of
income at 25% and also at 10%. The new calculations reflected a
total amount of R4 783 831.00 (i.e 5% contingency
of past loss and
10% on future loss of earnings) and an amount of R4 522 589.00 (i.e
10% contingency on past loss and 15% on future
loss of earnings).
14.
Adv
Mouton on behalf of the plaintiff submitted that the most reasonable
approach to the percentage expenses for loss of income
on
professional hunting would be to set those expenses at 25%. He
further submitted that contingency for past loss of hunting
and farm
management should be set at 7.5% and for future loss of hunting and
farm management at 12.5%. Adv Botha on behalf of
the defendant
agreed that 25% expenses on loss of income on professional hunting
would be reasonable. He however argued that since
the plaintiff is
not bed-ridden and only 30% incapacitated, he can still be on a farm
and oversee his farming activities. He contended
that a farm manager
will have to be employed on a 6 months basis and then the expenses
thereon reduced by half. He based his argument
also on the fact that
the plaintiff used to be away from the farm whilst hunting for a
period of about 5 months.
15.
With
respect I cannot agree with Adv Botha on this argument. The
plaintiff testified that he used to go hunting in Port Elizabeth
for
a period of 188 days in a year. According to the plaintiff he did
this on weekends and sometimes during the week. This period
was not
a continuous 188 days but merely the cumulative number of days when
he was absent from the farm. Therefore it cannot be
said that the
plaintiff was away for a consecutive 188 days. He was absent on
intervals and would return and continue with his
farming activities.
I therefore find that because of the injuries he has suffered, the
plaintiff cannot continue with his farming
activities and would need
a farm manager on a full time basis. Significantly, this is supported
by expert opinion.
16.
It
is trite law that the contingency factors to be applied are to be
considered on the facts of each case. There is no rule of
the thumb
or an inflexible formula to be applied in all cases. The usual
considerations include the possibility of mistakes made
in
determining the life expectancy or earning life expectancy of the
plaintiff; the likelihood of illness, inflation and adjustment
for
the costs of living allowances; accidents which may affect the
plaintiff’s earning capacity and life expectancy; circumstances
which would increase or decrease his costs of living. However, this
is not a
numerus
clausus
.
See:
Corbett
and Buchnan
:
The
Quantum
of Damages in Bodily and Fatal injury cases, vol 1 at 51-52.
17.
The
plaintiff’s background prior to the accident has already been
set out above. Having considered the relevant factors
in this case,
I am inclined to agree with both counsel that 25% on expenses for
loss of income on hunting is reasonable. Relating
to a normal
approach to contingency, Koch,
The
Quantum Yearbook for 2008
(at
100) sets out guidelines that can be used in assessing contingency
factors as follows:
“Sliding
scale: ½ % per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in middle age.”
In
my view, the most reasonable approach is to adopt a middle path and
set the contingency for past loss of hunting and farm management
at
7.5% and for future loss of hunting and farm management at 12.5%.
General
Damages
18.
In
respect of general damages, Adv Mouton submitted that an award of
R
866 000,00 would be in keeping with awards made in similar cases
where plaintiffs sustained similar injuries to those sustained
by the
plaintiff herein. On the other hand Adv Botha submitted that an
award of R 400 000, 00 would be more appropriate. The
parties
referred me to a number of decided cases. I found the following
comparable cases more illuminating and helpful in my assessment
of
plaintiff’s damages.
18.1. AA
Mutual Insurance Association Ltd v Van Jaarsveldt
1974 (4) SA 729
fully reported in
Corbett
& Buchanan
,
The
Quantum of Damages in
Bodily
and Fatal Injury Cases Vol 11 at p 360
.
In this case the plaintiff, 34 years of age, sustained a dislocation
of the cervical spine at C 4/5 level with an incomplete tertraplegia,
a large segmental fracture of the left femur which also separated the
greater fronchanter, a fracture of the superior and inferior
romi on
the right side of the pelvis, a fracture of the left 5
th
rib, and a fracture of the 3
rd
,
4
th
and 5
th
transverse processes. His treatment consisted of skull traction for
a couple of months which was very painful. He was in hospital
for
six months, whereafter he was discharged walking with only a stick.
The fractured femur was reduced and an intramedullary
nail inserted.
A catheter was inserted too and a vascular tube passed. He was
completely paralysed for a period of 3½
months, whereafter he
was able to walk on crutches before being able to walk with a stick.
He had urinary tract infection and
inflammation of the bladder. His
sexual potency was somewhat affected.
18.2
. Van
Jaarsveldt was left with very serious disabilities. He had a sight
spastic haemaplegia involving his dominant side and his
right arm and
hand were so badly affected that they could be described as a
nuisance. At best his right arm could only serve as
a prop. His
right leg was also affected by the same spastic haemaplegia. He
walked with a tendency to drag the foot which, together
with a
clawing of the toes, caused his foot to catch occasionally while
walking and resulted in his stumbling and falling. He
could not walk
more than 200 yards at a stretch. It was difficult for him to sit on
a chair for too long. He had severe recurring
cramps in both legs,
particularly at night. This was a permanent disability. The court
awarded him R 866 000,00 (in 2008 terms).
19.1.
In
Michael
v Bruwer
reported in
Corbett
& Buchanan
supra
at 345
,
a young woman who was a saleswoman but intended to make specialist
dancing her career, sustained serious injuries to her spine
and ankle
in a motor collision. She had sustained dorsal and lumbar fracture of
the spine. However, she was expected to make a
fairly satisfactory
recovery for a number of years. Nevertherless she was expected to
undergo a spinal fusion of four vertebrae
and all the consequences
associated therewith within 10 years. She also had a kyphotic knob
on her back which could only alleviated
by surgery.
19.2.
The
ankle injury appears to have been the more serious in that she had
repeated operations on the ankle which provided to be unsuccessful.
At the time of her trial her ankle was still tremendously swollen and
painful. There was a 10% possibility of the amputation
of the foot
as a result of the ankle injury. In an attempt to conceal the swollen
ankle with the ugly scar she had to wear slacks.
She would further
not be able to resume her work as a result of her injuries. She was
awarded general damages of R 755 000,00
(in 2008 terms).
20.1.
In
Federated
Employers Fire and General Insurance Company Ltd & Another v
McKenzie
reported in
Corbett
& Buchanan
supra
at 23
,
the plaintiff, a young woman, 18 years of age sustained injuries to
the back, pelvis, ribs and chest. She also had an old back
injury
which had been aggravated by the accident. This would have
necessitated an operation in 15 to 20 years time but same had
been
hastened by the new injury to the back. Accordingly, it was
envisaged that she would now require the operation in two or
three
year’s time.
20.2.
She
was able to return to work within two months but her back caused much
strain and stress and hampered and restricted her work.
This also
affected her temperament, health and way of life. She had persistent
pain which was getting progressively worse because
of its progressive
radiation into the legs. If the operation was performed and
successful, she would be practically free of pain
in the lumbar
sacral joint but there would still be sacral iliae pain. The court
awarded her general damages of R 564 000, 00
(in 2008 terms).
21.1.
In
Klisiewiez
v Road Accident Fund
reported
in
Corbett
& Honey
, The
Quantum
of Damages in Bodily and Fatal Injury Cases, Vol V at C3-76,
the plaintiff a 44 year old neurosurgeon was injured in a motor
collision. He had a whiplash injury of the neck which ended up
with
a dreadful result from a physical point of view, and which ultimately
also had a devastating effect on his psyche. Initial
treatment of
three episodes of hospitalization for traction and physiotherapy
followed by surgery to fuse the 5
th
and 7
th
cervical vertebrae was not successful. Not only was this operation
unsuccessful, but the plaintiff became hypoxia on the operating
table
before eventually being intubated and resuscitated. He spent three
weeks in the intensive care unit. He also had a measure
of brain
damage.
21.2.
Physically
the plaintiff’s neck movements were restricted and severely
painful. There was marked weakness of the right arm
from the
shoulder through the upper arm, the elbow, the forearm and the hand.
Brain damage also resulted in impaired memory, concentration,
learning ability, motor co-ordination, and hand motor dexterity.
Plaintiff became childlike, depressed, irritable and aggressive,
forgetful and indecisive. The court awarded him general damages in
the amount of R 322 000,00 (in 2008 terms).
22.
The
courts have repeatedly stated that the exercise of assessing and
awarding damages for fatal and bodily injuries is less exact
and in
arbitrio
iudicis.
See
Passenger
Transport v Franzen
reported in
Corbett
&
Honey
Vol
II at 426
.
As
Watermeyer
JA
(as he then was) aptly put it in
Sandler
v Wholesale Coal Supplies Ltd
1941 AD 194
at 199:
“
It
must be recognized that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in
an accident
by compensating him in money, yet there are no scales by which pain
and suffering can be measured, and there is no
relationship between
pain and money which makes it possible to express the one in terms of
the other with any approach to certainty.
The amount to be awarded
as compensation can only be determined by the broadest general
considerations and the figure arrived
at must necessarily be
uncertain, depending on the judge’s view of what is fair, in
all circumstances of the case.”
I am in
respectful agreement with this dictum.
23.
In
determining a fair compensation, the courts have regard to a number
of factors, such as, awards in comparable cases, inflation
and
changes in the value of money and problems arising from collateral
benefits. It is abundantly clear from the abovementioned
cases that
all the plaintiffs suffered serious injuries to a varying degrees.
The sequelae and aftermaths of their injuries also
differ in a marked
degree. Of equal importance are the differences in their ages,
qualifications and chosen professions. However
all of them suffered
disability, loss of amenities of life, enduring pain and suffering
and discomfort although to varying degrees.
24.
Adv
Mouton submitted that Swanepoel’s injuries are most comparable
to the injuries suffered by Van Jaarsveldt as they are
more or less
similar. Adv Botha on the other hand argued that Van Jaarsveldt’s
injuries are more serious than Swanepoel’s
and can therefore
not be compared. He submitted that Swanepoel’s injuries could
at most be compared to Klisiewicz’s
and that an award of R400
000.00 as general damages would be more appropriate.
I
do not agree that the present case is more tragic and far reaching
than these comparable cases. Admittedly, the sequelae of
the
injuries by
Swanepoel are, in some respects, more serious than
in some of the comparable cases but less in other respects. It
cannot be gainsaid
that Swanepoel’s injuries are very serious
and far-reaching. It is clear that his resultant disability has
impacted on
every facet of his life. Sadly his condition will never
improve. In fact the evidence is clear that his condition is
worsening
and continues to worsen over time. His physical activity
would lead to the further degeneration of his condition. Like
Klisiewicz,
Swanepoel has been deprived of his great passion for
hunting and farming. It emerged from his evidence that his life
revolves
around these two activities. His social interaction with
his wife, children an society has been badly affected. He can no
longer
go out to attend social occasions with his wife Unlike Van
Jaarsveldt, Swanepoel’s sexual impotence is severe. As a
result,
he finds it extremely difficult to enjoy normal sexual
relations with his wife. Inevitably this has caused serious strains
in
their once happy and blissful marriage. He also has to wear
nappies for the rest of his life. Due to his incontinence which is
the result of this accident, he often soils himself. It was clear
during his testimony that this causes him serious embarrassment.
In
the premises I am of the view that general damages of R800 000-00
should be awarded in this case.
Conclusion
26.
It is not in dispute that the plaintiff has suffered and will
continue to suffer loss of income from his farming and hunting
activities.
The testimony of Mr Morris, the actuary was not
challenged, nor was any serious attempt made to discredit him. In
fact the only
issue or aspect of his evidence which was challenged
was the percentage of the contingency to be applied. As a result,
Morris revised
and readjusted his figures. I therefore do not find
any reason why the testimony of Morris should be rejected. As alluded
to in
paragraph 17 supra, I have decided to take a robust approach to
the assessment of the contingency to be applied.
27.
Having taken all the relevant facts and the various factors
referred to above into account, I am satisfied that the following
amounts constitute the fair and reasonable compensation for the
plaintiff:
Past
loss of hunting earnings
R 522 881. 00;
Future
loss of hunting earnings
R 1 091 769. 00;
Past
loss of earnings (farm manager)
R
983 999. 50;
Future
loss of earnings (farm manager)
R
2 054 560.50;
General
damages in the amount of
R 800 000.00.
____________________
TOTAL
R 5 453 210.00
_____________________
28.
It has to be borne in mind that the parties have agreed on an 80/20%
apportionment in favour of the plaintiff. It follows logically
that
20% has to be reduced from the global amount of R5 453 210. 00 as
representing his contribution to his own damages.
I therefore
make the following order:
1.
The
defendant is to make payment to the plaintiff in the amount of
R4
362 568.00,
together
with interests thereon at the legal rate of
15.5%
per annum from
14
(fourteen)
days from date of judgment to date of payment.
2.
The
plaintiff is declared a necessary witness.
3.
The
defendant is to pay the plaintiff’s costs of suit, including:
the
qualifying fees of the following expert witnesses, viz
.
Dr P Repko, Dr Steven Walker, Suné Minnaar, Prof Ebben Van
Zyl, Ian Walsh Morris, Dr Shah and Mr Louw’s and;
the travelling and
accommodation expenses of the above witnesses.
The
defendant is to pay interest on the plaintiff’s costs at the
rate of
15.5%
per annum, as from a date
(14)
fourteen
days after taxation to date of payment.
_____________________
F
E MOKGOHLOA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Plaintiff: Adv Mouton
Instructed
by: Van De Wall & Vennote Attorneys
For
the Defendant: Adv C Botha
Instructed
by: Du Toit Bomela Attorneys