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[2015] ZAGPPHC 646
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Dlamini v Road Accident Fund (59188/13) [2015] ZAGPPHC 646 (3 September 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
59188/13
DATE:
3/9/2015
In
the matter between:
BHEKISISA
SIMON
DLAMINI
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
J U D G M E N T
MALI AJ
[1]
The
plaintiff herein instituted action against the defendant herein, the
Road Accident Fund as a result of the motor vehicle accident
which
occurred on 1 September 2012. The merits of the matter were
settled with the defendant accepting liability for 100%
of
the plaintiff’s proven damages.
[2]
In
the particulars of claim at paragraph 6 and 7 the plaintiff alleged
as follows:
“
6.
In and a result of the said accident, Plaintiff sustained, inter
alia, the following severe
injuries;
6.1
a severe brain injury with intracranial bleeding and multiple
contusions;
6.2
a comminuted fracture of the mandible; and
6.3
facial injuries.
7.
The sequelae of the injuries sustained by the Plaintiff are and were
the following:
7.1
he received hospital and medical treatment;
7.2
he incurred hospital and medical expenses and will in the future
incur further such expenses;
7.3
he suffers from ataxia;
7.4
he suffers from a diminution in his cognitive capacity;
7.5
he suffered shock, pain, suffering, discomfort and disability and
will in the future suffer further
pain, discomfort and
disability;
7.6
he has in the past and will in the future suffer a loss of the
amenities of life; and
7.7
he has in the past and will in the future suffer a loss of earnings.”
[3]
The
issues to be determined are the following:
(a)
The
amount to be awarded to the plaintiff in respect of his claim for
general damages;
(b)
The
amount to be awarded to the plaintiff in respect of his past loss of
income and
(c)
The
amount to be awarded in respect of future loss of income.
(d)
Undertaking
in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of
1996
(“
section 17(4)(a)).
[4]
The
defendant admitted the following reports :
4.1
RAF 4 Serious Injury Assessment Report;
4.2
Report by Dr DA Ramogale Sports Physician;
4.3
Report by M. J Adan, Clinical
Neuropsychologist;
4.4
Report by Dr D. De Klerk, Neurosurgeon;
4.5
Report by Dr GA Versfeld, Orthopaedic
Surgeon;
4.6
Reports by A. Jamotte, Industrial
Psychologist;
4.7
Report by Dr M Close, Psychiatrist;
4.8
Report by Roos & Du Preez, Occupational Therapist and
4.9
Report by M. Cartwright, Industrial
Psychologist
[5]
The
parties agreed that no oral evidence was to be led, and that issues
in dispute were to be determined by the court solely on
the evidence
contained in the various experts’ reports filed by the
plaintiff. The defendant did not file any medico-legal
reports.
GENERAL
DAMAGES
[6]
The
plaintiff has claimed an amount of R1, 500 000 in respect of general
damages. In
PROTEA
INSURANCE COMPANY v LAMB 1971(1) SA 530 (A) at 534H and ROAD ACCIDENT
FUND V MARUNGA 2003(5) SA 164 (SCA) at 23
it
was stated that a claim of general damages comprise of pain and
suffering, disfigurement, permanent disability and loss of amenities
of life.
[7]
In
SOUTHERN
INSURANCE ASSOCIATION LIMITED V BAILEY N.O. 1984(1) at 99H
the following was stated:
“
The
AD has never attempted to lay down rules as to the way in which the
problem of an award of general damages should be approached.
The
accepted approach is the flexible one described in Sandler v
Wholesale Coal Suppliers Ltd
1941 AD 194
AT 199, namely: “The
amount to be awarded as a compensation can only be determined by the
broadest general considerations
and the figure arrived at must
necessarily be uncertain depending upon the Judge’s view of
what is fair in all the circumstances
of the case”. To
adopt a different approach (in casu, it was contended that the
“functional approach” should
be adopted, ie the approach
according to which damages for non- pecuniary loss may be justified
only to the extent that they might
effectively be employed to
provide the plaintiff with a reasonable solace for his
misfortunes) might result in injustice
of the kind referred to
in Lim Pooh Choo v Camden and Islington Area Health Authority
[1979] 2 ALL ER 910
[HL] at 919. This does not mean, of course that
the function to be served by an award of damages should be excluded
from consideration.
That is something which may be taken into account
together with all the other circumstances”
[8]
In
assessing the amount to be awarded to the plaintiff for general
damages, the following reports were considered.
THE EVIDENCE OF DR
G.A. VERSFELD –ORTHOPAEDIC SURGEON
[9]
Dr
G.A. Versfeld
stated
that the plaintiff suffered injury in the right foot resulting to him
having problems in wearing shoes. In his report
he further
noted that radiological there was evidence of dislocation of the MP
joint of the second toe ; and that the above features
suggest that he
sustained a severe right foot injury, with dislocation of his second
metarsophalangeal joint and damage to
the navicular cuneiform
joint and inter-cuneiform joint. He remarked as follows:
“
He
has suffered serious loss of physical activities and social
amenities. I find no reason to suspect that his life expectancy has
been altered by the orthopaedic injuries sustained in this accident”.
THE EVIDENCE OF DR
D.A. RAMAGOLE- SPORTS PHYSICIAN
[10]
According
to the report of
Dr
D A. Ramagole,
the
plaintiff sustained severe injuries to the head and face with
intracranial bleeding and a mandible fracture. He was kept ventilated
and sedated and when his condition was stabilised, burr holes were
done to drain the bleeding from the brain. The conclusion reached
by
Dr Ramagole is that the plaintiff is deemed to have suffered
irreversible brain damage which renders him unsafe to himself and
to
others especially in a working environment. He is not suitable to
work especially in the mining sector where safety is of paramount
importance.
THE
EVIDENCE OF DR DE KLERK- NEUROSURGEON
[11]
Dr
De Klerk ,
in
his final opinion reported as follows:
“
The
claimant sustained a serious diffuse traumatic brain injury with
focal components. An injury of this severity is expected to
cause
significant neurocognitive and even psycho- organic abnormalities and
these will be permanent and irreversible”.
THE
EVIDENCE OF DR M CLOSE- PSYCHIATRIST
[12]
Dr
M Close
inter
alia
made the following recommendations:
“
Mr
Dhlamini would not be able to engage in the legal process adequately
on the basis of his neurocognitive and neuropsychiatric
sequelae. A
Curator-ad-litem is therefore recommended. Should funds be awarded to
Mr Dhlamini, these should be protected and a
Curator – bonis
appointed…. As a result of the significant impairments
present, placement in a suitable facility that
will offer ongoing
care and supervision would need to be considered”.
THE
EVIDENCE OF MS A DE LANGE –OCCUPATIONAL THERAPIST
[13]
Ms
A de Lange
of
Adri
roos & du Preez Occupational Therapists
opined that the preferred option would be for the plaintiff to live
in his home with supervision and support. A support worker
should be
appointed. The support worker should be a qualified facilitator and
provision should be made for such an individual’s
travelling
costs.
[14]
The
plaintiff’s counsel referred to the following cases in
support of an award of R1,5 million:
14.1.
MEGALINE V ROAD ACCIDENT FUND
[2007] 3 ALL SA 531
(W)
(“Megaline”)
wherein the court awarded the plaintiff a sum of R1000 000 for
general damages. The said amount updated
is equivalent to R1, 700
000. The plaintiff an 11 year old boy then, got injured whilst
travelling with his parents. He suffered
a head injury which led to
his having to be in a nursing home. He had profound neuorological
impairments and prominent irreversible
disfigurement. The court held
that his loss of amenities was profound. Prior to the accident, he
was able to use the computer,
read and write and enjoyed sport.
Defendant’s counter
argument is that the plaintiff in Megalane, due to his age lost the
enjoyment of amenities at a very younger
age and would suffer for a
longer period of time. This is not the case
in casu
. Plaintiff
has at least had a fair opportunity for the enjoyment of amenities.
14.2.
MNGUNI v ROAD ACCIDENT FUND (unreported 810/2005)
In this matter the
plaintiff was awarded the amount of R700 000 for general damages. The
plaintiff a 39 year old suffered a severe
brain injury and his right
lower leg was amputated. He experienced headaches, pain in the
neck, shoulder, knee and ankle.
He was ambulant with one crutch.
Although he suffered memory, concentration and attention difficulties
he returned to his pre-
accident employer within 9 weeks following
the accident. The amount of R700 000 updated is equivalent to R1, 2
million.
[15]
Counsel
for the defendant submitted that the court should award the plaintiff
an amount of R1, 1 to R1,2 million in respect of general
damages. She
relied on the following cases:
15.1.
VAN ZYL v ROAD ACCIDENT FUND 2012 (6A4) QOD 138 (WCC)
In this matter the
injured a 19 year old male part-time law student; sustained a severe
head injury with multiple craniofacial impacts
on a severe traumatic
brain injury. He also sustained serious orthopaedic injuries with
bilateral severe tibia/fibula fractures
and multiple abrasions and
bruises. A vegetative state persisted for weeks. He underwent
treatment and rehabilitation of seven
months after the collision. The
court awarded the injured for general damages the amount of R850.000.
The amount updated is equivalent
to R960 000.
15.2
.
OLIVIER V ROAD ACCIDENT FUND 2013 (6A4) QOD 216 (GNP)
The plaintiff who was 43
years at the time of the accident sustained a head injury, an injury
to the vertebra and nerve damage in
the left arm. Due to the
head/brain injury, plaintiff subsequently developed seizures and was
readmitted to the hospital for such
problem. He suffered from focal
epileptic seizures and loses consciousness. The report of the expert
further noted that attacks
occur once a week or every two weeks, are
brief but he is sleepy afterwards. Due to medication the attacks are
partially controlled.
[16]
In
casu
the
nature and extent of the plaintiff’s pain and suffering; and
loss of amenities of life are well documented in the various
medical
reports. It is unequivocally stated that the plaintiff’s
injuries exacerbated by brain damage are irreversible. In
the Cases
referred to above by the Counsel for the defendant, both the injured
are not permanently impaired notwithstanding the
seriousness of their
injuries. It appears that their respective situation could either be
controlled or the injured can be rehabilitated.
[17]
The
above having been said, I am mindful of the caution in
DE
JONG V DU PISANIE N.O.
2005 (5) SA 547
(SCA)
at paragraph 60 wherein the court after noting the tendency towards
increased awards in respect of general damages, in recent times
was
readily perceptible, the court re- affirmed conservatism as one of
the multiple factors to be taken into account in awarding
damages.
The court concluded that the principle remained that the award
should 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, as pointed out in
PITT
V ECONOMIC INSURANCE CO LTD
1975 (3) SA 264
(N) at 267.
[18]
On
the issue of awarding quantum, a court has a wide discretion to award
what it considers to be fair and adequate compensation
to the injured
part. It has been said that there is no hard and fast rule of general
application requiring a court to consider
past awards. It is
generally accepted that it would be difficult to find a case on all
fours with the one being heard and that
awards in decided cases
should be considered only as a guide of how other courts arrived at
an award. See
PROTEA
INSURANCE COMPANY v LAMB
above
at
535
H
and
ROAD
ACCIDENT FUND v MARUNGA
above
at paragraph [24]
THE EVIDENCE OF MS
ADAN- CLINICAL NEUROPSYCHOLOGIST
[19]
Ms
Adan‘s
report
shows that the plaintiff sustained head/brain injuries. It further
states the following:
“
According
to the RAF form 1 and 4 and the available hospital records, CT scan
and medical reports as well as information obtained
from Mr Matheus
it seems Mr Dlamini sustained the following head and brain injuries:
·
Laceration
to the chin and left ear.
·
Comminuted
fracture of the mandible right.
·
Loss
of a tooth which has been replaced.
·
Multiple
brain contusions involving the right temporal lobe and cerebral
peduncie and the high parietal regions bilaterally.
·
Subrachnoid
haemorrhage in the interpeduncular cistern.
·
Suspected
subdural haemorrhage along the falx.
·
A
sever primary difuse axonal/concussive brain injury associated with
coma and very prolonged posttraumatic confusion and amnesia
lating
more than 3 months.
·
Secondary
micro damage due to pressure build-up in the brain from haemorrhage.
·
Patchy
opacity in the left lung seen on CT scan requires medical comment as
pulmonary congestion was ticked on admission to the
Netcare
Krugersdorp Hospital.
·
Problems
with the right shoulder since the accident.”
[20]
In
conclusion Ms Adan stated that the plaintiff is unemployable and
unable to fulfil the roles of husband to his wife and father
to his
children. He cannot cope with household duties or take part in sport.
He is dependent on others and in need of care and
supervision.
Because he cannot follow conversations he has been left socially
isolated. Both physically and mentally Mr Dlamini
is unemployable in
any capacity.
[21]
There
is no doubt that the plaintiff sustained fatal and irreversible
injuries as a result of the accident. Furthermore the pain
and loss
of amenities suffered by the plaintiff are overwhelmingly stated.
Plaintiff was hospitalised for a period of more than
a year; his past
medical expenses are enormous amounting to R250 000.00 Due to
the injuries sustained in the collision, the
plaintiff cannot even
manage and take care of his personal affairs a situation resulting
to the appointment of a curator
ad litem. He has to be placed
in a suitable facility for specialised health care. Having regard to
the above in my opinion an award
of
R1,
350 000
would be fair compensation in relation to the general damages.
PAST
LOSS EARNINGS
[22]
The
plaintiff’s loss of earnings since the collision and his future
loss of earning capacity have been calculated by Mary
Cartwright
Consultant CC as at 29 July 2015. The basis of the calculation and
the assumptions made were undisputed and not counter-
attacked. The
value of past income uninjured is R461 400. The Actuary applied a
contingency deduction of 5% and that result to
the net value of past
income being R 438 300. The value of past income injured has been
calculated at R259 300. Taking into consideration
the two figures
above, the net loss in respect of past income is R179 000.
FUTURE
LOSS OF INCOME
[23]
The
plaintiff must prove that he will probably suffer financial loss or
diminution of his income. In
Sandler
v Wholesale Coal Suppliers Ltd
1941
(A) 194
it was stated that:
“
It
is no doubt exceedingly difficult to value the damage in terms of
money, but that does not relieve the Court of the duty of doing
so
upon the evidence placed before it. This is a principle which has
been acted on in several cases in South African Courts”.
[24]
In
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA) a para [11]
,
the Court said:
“
There
must be proof that the reduction in earning capacity indeed gives
rise to pecuniary loss.”
THE
EVIDENCE OF MS A JAMOTTE –INDUSTRIAL PSYCHOLOGIST
[25]
Ms
A Jamotte
reported
as follows:
“
Post-
accident Mr Dhlamini was off work for a considerable period of time
and effectively has never returned to work……..
It is
perceived that he has been rendered functionally unemployable and
will never generate any meaningful income in the future.
He has
sustained a devastating and permanent loss of earnings for which he
should be compensated….”
[26]
At
the time of his accident the plaintiff was employed as a winch
operator at Bafokeng Platinum Mine with basic earnings of R5 940.00
per month. He also received a number of fringe benefits and worked
overtime.
[27]
According
to the calculation by Mary Cartwright Consultant CC the plaintiff’s
gross prospective value of income uninjured
is R1, 959 700 whereas
having regard to the accident it has been reduced to R916, 000.00
The actuary having applied
contingency deduction but for
the accident at 15% and nil contingency having regard to the accident
because the plaintiff will
never be employed again due to the
irreversible state of brain damage. The net loss is therefore R1043
700.
[28]
Contingencies
have been described as the normal consequences and circumstances of
life, which beset every human being and which
directly affect the
amount that a plaintiff would have earned.
AA
MUTUAL INSURANCE v VAN JAARSVELD 1974(4) SA 729 (A).
[29]
In
his book
The
Quantum Yearbook,
Koch states that when assessing damages for loss of earnings or
support it is usual for a deduction to be made for general
contingencies
for which no explicit allowance has been made in the
actuarial calculation. The deduction is in the prerogative of the
court. General
contingencies cover a wide range of considerations
which may vary from case to case and may include: taxation, early
death, loss
of employment, promotion prospect, divorce etc.
[30]
Koch
refers to the following as some of the guidelines a regards
contingencies:
·
“
Normal
contingencies” as deductions of 5% for past loss and 15% for
future loss.
·
Sliding
scale: 1/2 % per year to retirement age, i.e. 25% for a child, 20%
for a youth and 10% in the middle age and relies on
Goodall
v President Insurance.1978 (1) SA 389.
·
Differential
contingencies are commonly applied, that is to say one percentage
applied to earnings but for the accident, and a different
percentage
to earnings having regard to the accident.
[31]
When
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so with necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position of the plaintiff
would have succeeded to minimize the adverse hazards of life rather
than to accept them. Both favourable and adverse contingencies
have
to be taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies are not always
adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been placed in the
position where his
income would have to be the subject of speculation if the accident
had not occurred.
[32]
In
this matter, there are no opposing expert reports from the defendant.
I did not understand counsel for the defendant to be arguing
that the
actuarial calculations were wrong, biased and unfair or based on
incorrect principles. Furthermore due to the plaintiff’s
permanent brain injury he is unemployable and the experts have
strongly advised that he be kept at facility of care. There are
no
foreseeable risks warranting the application of contingencies.
[33]
Under
the circumstances therefore, I am of the view that the actuarial
calculations as depicted above are fair and equitable and
will serve
to balance the interests of both parties.
[34]
The
plaintiff’s claim is calculated as follows:
General
Damages
R1, 350 000
Past Loss of Earnings
R 179.000
Future Loss of Earnings
R
1, 043 700
[35]
Accordingly
I make the following order:
i)
The
defendant shall pay the plaintiff the sum of R2,572 700
ii)
Interest
on the above amounts at the rate of 15,5% per annum from a date
fourteen (14) days after judgment to the date of final
payment.
iii)
The
defendant shall furnish the plaintiff an undertaking in terms of
section
17
(4) (a)
of the
Road
Accident Fund Act 56 of 1996
in respect of future medical expenses.
ii)
The defendant shall pay the plaintiff his taxed or agreed party and
party costs including
the following experts:
-
RAF
4 Serious Injury Assessment Report by Dr DA Ramogale
-
Dr
DA Ramogale
Medico- Legal Report Sports Physician
-
MJ
Adan
Clinical Neuropsychologist;
-
Dr
D. De Klerk,
Neurosurgeon;
-
Dr
GA Versfeld,
Orthopaedic Surgeon
-
A.
Jamotte,
Industrial Psychologist
-
Dr
M Close,
Psychiatrist;
-
Roos
& Du Preez,
Occupational Therapist
-
Mary
Cartwright Consultants CC
Actuary
N.P. MALI
Acting Judge of the High
Court of
South Africa, Gauteng
Division,
PRETORIA
APPEARANCES:
Counsel for the
Plaintiff
:
Adv. G
Schwartz
Instructed
by
: Malcolm Lyons
&Brivik Inc
Counsel for the Defendant
:
Adv.
J M Liebel
Instructed
by
: Tsebane Molaba Inc
Date of
Hearing
: 17 August 2015
Date of
Judgment
: 03 September
2015