Maholela v Road Accident Fund (391/2001) [2006] ZAFSHC 44 (7 November 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2006
>>
[2006] ZAFSHC 44
|

|

Maholela v Road Accident Fund (391/2001) [2006] ZAFSHC 44 (7 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 391/2001
In
the matter between:
NTOI MIKEA
MAHOLELA
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
_____________________________________________________
JUDGMENT BY:
EBRAHIM, J
_____________________________________________________
HEARD ON:
7 NOVEMBER 2006
_____________________________________________________
DELIVERED ON:
_____________________________________________________
[1] On the 11
th
of February 1996 the plaintiff who was 40 years of age at the time
was seriously injured when the taxi in which he was travelling
as a
passenger was involved in a collision. It is common cause that the
insured driver was negligent and it has been accepted by
the
defendant that the plaintiff is entitled to 100% of such damages as
he can prove. This judgement accordingly deals only with
the
question of quantum.
[2] In
his particulars of claim the plaintiff has claimed:
Estimated future
medical and related expenses R2 180 247,00;
Pas loss of earnings
R880 791,02;
Estimated future loss
of earnings R919 859,00;
General damages in
respect of pain and suffering R1 000 000,00.
The past hospital and
medical expenses have been agreed on the sum of R7 020,22. In
addition a certificate in respect of the future
medical and related
expenses has, in terms of section 43(a) of the MMA Act 1998, (Act 93
of 1998) being a statutory undertaking has
been issued by the
defendant.
[3] The certificate is
dated the 9
th
of November 2006. At the outset it must be
mentioned that no evidence whatsoever in contradiction to the
evidence led by the plaintiff
in regard to the collision and the
injuries he sustained in the collision was proffered by the defendant
during the trial and as
such, the plaintiff having been an exemplary
witness who steadfastly kept to the version which he gave of the
collision and his condition
immediately after the accident, no reason
exists for me not to accept his version as being reliable in the
circumstances.
[4] In terms of rule
36(9)(a) and (b) the plaintiff gave notice experts witness of its
intention to call the following:
1. Dr. J J Fourie an
orthopaedic surgeon;
2. Dr.
P Repko a neurosurgeon;
3. Prof.
E van Zyl an industrial psychologist;
4. Mrs.
Elana Human an occupational therapist;
5. Mr.
D Jacobson an actuary.
The defendants indicated
that they would be relying on two witnesses namely Dr. I Lissoos, a
urologist and Prof. C Pottas an industrial
psychologist. Prof Pottas
was not called to give evidence on behalf of the defendant and the
urologist’s report was common cause
between the parties. Although
the defendants indicated that they deny the contents of the reports
of Dr. Fourie, Dr. Repco, Mrs.
Human and Mr. Jacobson the evidence of
these witnesses were not challenged by way of any experts on behalf
of the defendant and not
disputed by way of any statements to these
witnesses during cross-examination. Accordingly this court accepts
the evidence of Dr.
Fourie, Dr. Repco, Mrs. Human and Mr. Jacobson in
its entirety.
[4] In
the particulars of claim the plaintiff alleged that he sustained
severe bodily injuries as a result of the collision more particularly
a fracture-dislocation of the first lumber vertebra which rendered
him permanently a paraplegic with classic symptoms of paraplegia
and
multiple fractures of the ribs on the right hand side. Dr. Lissoos
mentioned in his report that the plaintiff is a paraplegic.
In this
view he is supported by Dr. Repco as well as Dr. Fourie.
[5] At the time of the
collision the plaintiff was employed by Anglo Gold as a senior
personnel assistant since the 2
nd
of December 1986 until
the 7
th
November 1996. These dates are not disputed. The
agreement of service with Vaal Reeves Mines was tendered in evidence
as exhibit
“C” and from this exhibit it was also clear that the
plaintiff was also employed by the mine as a part-time teacher with
an average
income of R800,00 per month.
[6] A
proper reading of the pleadings reveals that the real disputes of
fact between the parties are:
1. Whether the plaintiff
suffered the injuries referred to by the plaintiff’s medico-legal
experts as a result of the collision;
2. The
reason for the plaintiff’s retrenchment;
3. Whether
the plaintiff would have continued to earn R800,00 per month as a
teacher had it not been for the accident.
In
this regard the only dispute is whether the R800,00 should be taken
into account when calculating the plaintiffs prospective loss
of
income. The defendant does not dispute that the amount should be
taken into account in the calculation of the plaintiff’s accrued
loss of income.
4. The percentage of the
contingency deductions to be employed insofar as the calculation of
the accrued loss and the prospective
loss of earnings are concerned,
and
5. The quantum of the
general damages to be awarded to the plaintiff.
[7] A careful scrutiny of
the defendant’s plea reveals that the defendant does not seriously
challenge or deny that the plaintiff
sustained the injuries referred
to by the medical experts but merely alleges that it bears no
knowledge of such injuries. In light
of the fact that there is no
evidence to gainsay the evidence of the plaintiff and his experts I
do not consider that there is a
serious dispute of fact insofar as
the nature of the injuries sustained by the plaintiff is concerned
and I have already recorded
___________ acceptance of the evidence
that the plaintiff suffered a fracture to his lumber spine and an
injury to his ribs as a
result of being involved in the collision on
the 11
th
of February 1996.
[8] It
is axiomatic that the plaintiff’s employment at the mine was
terminated as a result of the injuries which he sustained during
the
collision which rendered him unfit for work. The fact that he was
offered the option of either taking a retrenchment package
alternatively the option of a monthly wage is of no moment and does
not detract from the fact that the only reason why the offer
of a
retrenchment package came his way in the first place was because he
was not in a position to work any longer due to the injuries
he
sustained during the collision. The plaintiff’s undisputed
evidence was that he was not in a position after the collision to
do
the same work as he was able to do prior to the collision. He was
not able to continue with his duties as senior personnel assistant
after the collision and that it was for this reason that he was given
an option of either being medically boarded that is being declared
medically unfit for doing his job in which event he would receive a
monthly payment as well as a possible lump sum amount alternatively
if he elected to be retrenched he would receive an amount that he
regarded as substantial. His undisputed evidence was that he
preferred
to take the retrenchment package. This however does not
detract from the fact that he was unfit to perform his duties because
of
his paraplegic state. It is common cause between the parties that
the plaintiff has not been able to earn an income since the date
of
the collision and in light of that I find that his employment with
Vaal Reefs Mining Company was terminated for no reason other
than
that he was unfit for duty due to the injuries he sustained during
the collision. I am fortified in this conclusion by the
fact that
the plaintiff’s duties entailed walking around often and going
underground which in light of his injuries would have
been impossible
for him to perform after the collision. The ____________________
psychologist called by the plaintiff, Prof. van
Zyl, confirmed that
the plaintiff was not fit for any work in the open labour market
because of his disabilities. This was also
the view of the
occupational therapist, Mrs. Elana Human.
[9] I turn next to the
issue whether the plaintiff did indeed earn R800,00 per month as a
part-time teacher on the mines. Then again
there is no evidence from
the defendant to gain-say the evidence of the plaintiff which,
moreover, is corroborated by a letter from
his employer found in
exhibit “C”. The dispute in this regard centres around the
question whether this court can find that the
plaintiff would have
continued to earn an income of R800,00 per month as a part-time
teacher until his retirement age of 62 and a
half years. I am of the
view that in all probability the plaintiff would have continued
earning this income because of the following
circumstances:
1. The plaintiff studied
a course in Lesotho to become a qualified teacher. This is his
undisputed evidence and as of the date of
the collision the plaintiff
had not only been teaching but had also been earning an income from
such teaching for a period of approximately
9 years. In all
probability mineworkers from the rural areas would have had to be
taught basic communication skills and this would
have continued each
time mineworkers from the rural areas were employed by the mines.
Consequently in all probability the teaching
classes presented by the
plaintiff would have continued as there would have been a continued
need for them. The plaintiff on his
undisputed evidence had not only
been teaching English classes but had been promoted to the level of
principal of the school. I
find that these are factors which
indicate that in all probability the plaintiff would have continued
to earn an income of R800,00
per month until his retirement age of 62
and a half years.
[10] I deal now with the
issue of contingencies. The basis for the calculation therefor was
the actuarial calculation prepared for
the plaintiff by its actuary
Gerard Jacobson. The figures used by the actuary were obtained from
the report of the industrial psychologist,
Prof. Van Zyl, whose
evidence was not seriously disputed by the defendant. In light of
this it would appear that the basis for the
calculations by the
actuary are common cause in the following respects:
1. As far as the
plaintiff’s accrued loss is concerned the quantum thereof is R955
465,00 from which amount a contingency deduction
has to be made and
the amount of R27 359,00 which the plaintiff received in terms of his
contract of employment must be deducted
from the quantum of the
plaintiff’s accrued loss.
2. In view of my finding
that the plaintiff would have earned an income of R800,00 per month
as a teacher until his retirement age
of 62 and a half, the quantum
of his perspective income is given as R1 066 788,00 from which a
contingency deduction should be made.
In regard to this issue of
contingency is I was referred by the plaintiff to the well-known
dictum of Nicolas JA in
SOUTHERN INSURANCE ASSOCIATION LTD v
BAILEY NO
1984 (1) SA 98
(AD) at 113G:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.”
[11] As
far as accrued loss is concerned the evidence of the actuary confirms
that a normal deduction for contingencies is 5%. The
defendant has
however taken issue with this and argues that a normal deduction
would be 10%. I have found that the fact that the
plaintiff was
employed continuously for a period of ten years by a multi national
company and that no incidences occurred in his
life save for the
injuries sustained as a result of the collision which would have
caused him not to continue earning an income which
he was earning at
the time militates against the possibility of him losing his
employment to a large extent. In addition, the
plaintiff was not
a mine worker who was obliged to go under ground to earn a living, he
was a senior personnel assistant and accordingly
in a managerial
position. He also had a standard 10 qualification and had undergone
and completed a 3 year teaching course which
qualified him as an
educated employee rather than an illiterate employee of the mines.
He has a stable working record and as such
was a reliable employee
and there is no reason to assume that this position would have
changed and that he would have gone from one
employment position to
another. The plaintiff was also of great value to his employer in
two senses. First as an employee in a
managerial position and
secondly in his capacity as a teacher of the illiterate mine workers.
Moreover he received a promotion to
the position of principal and
was thus a valuable feature of the education centre on the mines.
All these factors have moved me
to make the finding that the
plaintiff would in all probability have continued to earn his salary
and his income as a teacher. The
actuarial evidence of Mr. Jacobson
was that in view of the dispute between the parties as far as the
rate of the contingency deduction
is concerned it would be better
that a contingency deduction of 7½ % be made such that the figure
which the plaintiff would then
be awarded in respect of past accrued
loss is R856 464,00 as appears from his calculation contained in his
(exhibit “D”).
[12] Insofar
as the prospective loss of earnings is concerned there is a dispute
once again in regard to the rate. The normal deduction
would be
between 10% and 15% as submitted by the plaintiff’s counsel and
confirmed by the evidence of Jacobson. I find that in
view of the
plaintiff’s value as an employee to the mines and the fact that he
has shown himself since the date of the collision
to be positive
despite his disabilities and has even attempted to obtain a further
qualification by registering for a degree in journalism
ant that
despite his obvious inability to use his legs his determined effort
to convince the court as demonstrated in the court that
he is able to
walk up stairs shows that he is not one who would easily be
discouraged once he had set his sights upon a particular
goal. At
this stage the plaintiff is 51 years of age and I have concluded,
based on the report of Mr. Jacobson and having regard
to all the
circumstances of the plaintiff’s case, that it would be fair and
proper insofar as both the plaintiff and the defendant
is concerned,
for a contingency deduction of 12½% in respective of for prospective
loss should be made. Translated into figures
this means that the
plaintiff’s prospective loss would be R933 439,50.
[13] I finally address
the issue of general damages for pain and suffering, loss of
amenities off life, shock and disfigurement.
In this regard both
counsel for the plaintiff and defendant referred to comparable cases
and to awards made therein in respect of
general damages. I was also
referred to the case of
ROAD ACCIDENT FUND v MARUNGA
2003 (5) SA 164
(SCA) where it was held that the court should take
into account that there has been a tendency to make high awards in
respect of
general damages in the more resent past the court quoted
with approval a passage from
WRIGHT v MULTILATERAL VICHLE
ACCIDENT FUND
as reported in Corbett & Honey, Volume 4 at
E3-46.
“’
I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher that
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.’”
13.1 In my view of the
comparable cases quoted by counsel the one of significance is that of
NDABA v ROAD ACCIDENT FUND
2002 (5), Corbett and
Becannon A3-1 (a decision of the Transvaal Division) as bearing the
closest resemblance in terms of factual
content and circumstances to
the facts and circumstances of the plaintiff’s case. In
NDABA
the plaintiff was at the time of the trial 35 years of age, having
been born in 1967. He was a boilermaker and sportsman of note,
particularly a long distance runner. As an athlete he had won
various silver and gold medals. As a result of the collision he was
rendered a paraplegic and permanently confined to a wheelchair. On
trial he was awarded R600 000,00 in general damages. In his
judgment
Roux J remarked as follows:
“
The
amount claimed for general damages is R600 000,00. In my view this
is a modest claim. Certainly if more had been claimed I would
have
considered granting a larger award.”
In his heads of argument
counsel for the plaintiff referred to this particular case and very
helpfully made reference to the consumer
price index to reflect the
current equivalent value in 2006 to be an amount of R758 400,00.
13.2 Mr. Reinders who
appears on behalf of the defendant has taken issue with this amount
and has submitted that because of the marked
difference in age
between the respective claimants, (the plaintiff is at present 51
years old) and the fact that he could still walk
with crutches and
was not permanently confined to a wheelchair, the amount of general
damages should be significantly reduced to
that awarded in the
NDABA
-case. He submitted that this court should prefer
the line of reasoning adopted in
NGUBANE v SOUTH AFRICAN
TRANSPORT SERVICES
[1990] ZASCA 148
;
1991 (1) SA 756
where once again the
plaintiff suffered a spinal fracture resulting in permanent partial
paralysis. He was left paraplegic with
constant pain and suffering,
spasms incontinence, sexual inability and a severe and permanent loss
of amenities of life. He was
awarded an amount of R85 000,00 in
general damages which updated for purposes of inflation to the
present day would amount to R394
000,00. Mr. Reinders has argued
that this case is on all forms with the present matter and that,
accordingly fair and reasonable
award in the plaintiff’s case would
be an amount of R350 000,00 in general damages.
[14] The
undisputed evidence of the plaintiff and his medical experts was that
the plaintiff’s injuries were permanent and according
to Dr. Fourie
there was:
“’
n
Fraktuur van die eerste lumbale werwel. Dit was ‘n verbrokkelde
fraktuur. Daar was totale neurologiese uitval van die onderste
ledemaat en blaas en rektrum.
Ribfrakture aan die regterkant met
gevolglike hemo-pneumotoraks.”
Dr.
Repco stated the following in his report:
“
Hierdie
uitgesproke swakheid met verlamming van die onderste dele van die
bene het gepaard gegaan met duidelike spieratrofie beide
in die bo-
en onderbene. Daar was geen spiertonus en die verlamming was van
slap geaardheid.”
In
addition he went on to say the following:
“
Aan
albei kante vanaf L3 ondertoe, insluitende die sakrale gebied was
daar ‘n anestesie, d.w.s. ‘n totale verlies van sensoriese
waarneming.”
On
this basis he came to the following conclusion:
“
Die
paraplegiese toestand gaan ook gepaard met totale funksie van beide
die urinêre en dermkanaal sfinkters. Hierdie paraplegiese
toestand
met die verlamming en sensoriese verlies is van permanente aard.”
The
plaintiff himself give evidence of a pressure sores which he had
sustained as a result of him lying on his back in hospital
for long
periods of time, unitary trait infection, clinical depression and
loss of sexuality bordering on impotence. Both medical
experts, Drs.
Repco and Fourie also testified to the degree of pain and suffering
which the plaintiff experienced and Dr. Repco’s
report in this
regard deserves specific attention.
“
Dit
is prakties onmoontlik om die verlies van lewensgenot van
paraplegiese toestand te beskryf. Hy het bewegingsvryheid ingeboet,
kan alleen met groot moeite klein distansies onafhanklik beweeg en
dit dan met hulp van twee arm krukke. Alle aktiwiteite waarby
normale funksie van die bene benodig word, is permanent verlore. Die
pasiënt het ook willikeurige kontrole van die sfinkter funksies
verloor wat ‘n totaal onaanvaarbare toestand geskep het.”
Dr.
Repco also went on to say that the motion which the plaintiff
describes as walking as demonstrated to the court where he attempted
to drag his feet using his crutches from one step to another, is
rather a process during which the plaintiff drags his feet and uses
his hips for momentum thereby moving forward but could hardly be
described as walking in the normal sense of the word. Both doctors
also testified that the plaintiff is not able to lift his legs
against gravity and in light of the undisputed evidence that the
plaintiff
has no function whatsoever of his lower limbs there can be
no debate about the fact that the plaintiff is simply unable to use
his
legs purposely and I make that finding.
[15] The
plaintiff’s evidence also disclosed that immediately after the
collision, after he had been pulled out of the taxi he experienced
terrible pain on his back. It felt like he was being pierced by a
sharp instrument. He also testified that this pain was unbearable
and that it only subsided marginally after three days when he was
transferred to a hospital in Bloemfontein. He said that on being
admitted to hospital, because of the terrible pain, he began to
vomit. He also became incontinent and because of the loss of
sensation
in his lower limbs he was unable to detect the movement of
his bowels and so would soil himself which caused him tremendous
embarrassment
and loss of dignity as he would have to be cleaned up
by members of the nursing staff at the hospital. The plaintiff’s
complete
disability in his lower limbs was pertinently clear to the
court when he attempted to demonstrate in the courtroom that he was
able
to climb stairs. The plaintiff impressed me as a credible and
honest witness who was not given to embellishment of his evidence
nor
to exaggeration of his physical condition and as one who was bent on
showing the world that he was not a paraplegic confined
to a
wheelchair, hence his determined effort to show the court that he was
able to climb steps.
[16] The
plaintiff testified that at least several times a day he had to
manually empty his bladder and every second day he had to
empty his
bowels. The exercise of having to perform these two functions is not
only disturbing but also extremely degrading. From
the description
that the plaintiff gave of an incident in which he and his wife were
mugged whilst on their way home after they had
alighted from a taxi
it was obvious that the plaintiff’s inability as a result of his
paraplegia to have assisted his wife against
her attackers and
prevented them from removing her handbag, cellphones and money gave
him tremendous pain as he said, if he had not
been disabled he would
have been able to help his wife but he could not.
[17] I have found the
NDABA
-case particularly instructive and, conversely,
the
NGUBANE
-case to be of little guidance. This is so
because, in live with the recent tendency of the courts to make
higher awards in respect
of General Damages I found the amount of
R350 000 suggested by Mr. Reinders as a suitable award, to be wholly
unrealistic, unfair
and unreasonable in the circumstances of the
plaintiff’s case.
There are, however,
distinct lines to be drawn between the circumstances of the plaintiff
in the
NDABA
-case and that of the present plaintiff.
The plaintiff in that case was much younger (at least 16 years
younger) than Mr. Maholela
who is at this time 51 years of age. Mr.
Ndaba was a sportsman of note, who had won silver and gold medals as
a long distance athlete.
Mr. Maholela whilst not achieving
distinction in any specific field, nevertheless has a proven track
record of stability, reliability
and has shown timeously to be of
above average intelligence, having gained the recognition therefor by
being promoted to school principal,
at the mines. In addition he was
employed in a managerial position at the mines. These factors have
already been considered in
quantifying his prospective loss of
earnings but they are also, in my view, relevant to determining the
quantum of his general damages,
for the quality of his life is
necessarily determined by the standard of living on enjoys and that,
in truth, is determined by the
position one holds in society and the
level of one’s earning capacity. Mr. Maholela was not an ordinary
labourer engaged in manual
labour. He occupied a position of
leadership at the mine, which gave him some authority over other
employees. That meant that he
enjoyed a certain status in his work
environment which came to an end when the collision occurred. He
must be compensated for this
loss together with the loss of all the
other amenities in life which I have already referred to as also his
pain and suffering.
I have endeavoured to do my best to quantify the
plaintiff’s general damages so as to do justice between both
parties and I have
come to the conclusion that, in the exercise of
the discretion vested in me, an amount of R600 000,00 would be fair
and reasonable
to both the plaintiff and the defendant in the
circumstances of this case.
[18] I
accordingly find that the plaintiff has succeeded in discharging the
onus which he carries of proving the quantum of his damages
on a
balance of probabilities. There will accordingly be judgement for
the plaintiff as follows:
1. The defendant is
ordered to pay to the plaintiff:
1.1 An amount of R5
477,00 in respect of the claim for past hospital expenses;
1.2 An
amount of R1 543,22 in respect of the claim for past medical
expenses;
1.3 An
amount of R2 180 274,00 in respect of the claim for future medical
and related expenses;
1.4 An
amount of R856 448,00 in respect of the claim of past loss of
earnings;
1.5 An
amount of R933 439,50 in respect of the claim for future loss of
earnings;
1.6 An
amount of R600 000,00 in respect of the claim for general damages.
2. The defendant is in
addition ordered to pay the plaintiff’s costs of the action which
costs are to include the costs of the medical
and supplementary
reports of the following experts as well as their costs in respect of
preparation, reservation and appearance in
court:
2.1 Dr. Fourie, Dr.
Repco, Mrs. E. Human (including her actual travelling expenses from
Cape Town to Bloemfontein per return on two
occasions);
2.2 Prof.
E. van Zyl;
2.3 Mr.
G. Jacobson (including actual travelling expenses from Johannesburg
to Bloemfontein per return on one occasion).
In
passing, I wish to express my gratitude to both counsel in the matter
for their very helpful written heads of argument.
_____________
S.
EBRAHIM, J
On
behalf of the plaintiff: Adv. D. Coetzee
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. S. J. Reinders
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
/em