Cawood N.O obo Somdyala v Road Accident Fund (3156/15) [2018] ZAGPPHC 950 (7 December 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

GAUTENG DIVISION , PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

Case No: 3156/15

7/12/2018

In the matter between:

ADVOCATE CLAIRE CAWOOD N.O on behalf of

Gqobisa Somdyala

Plaintiff

and

ROAD ACCIDENT FUND

Defendant

JUDGMENT

MNGQIBISA-THUSI J:

[1] Advocate Claire Cawood, was appointed curator ad !item for Miss Gcobisa Somdyala ("the plaintiff ') and has instituted a claim against the Road Accident Fund ("RAF") in which the plaintiff seeks damages for injuries sustained in a motor vehicle collision which occurred on 17 May 2011 at or near Mabhele N6 national road, Kei, Eastern Cape. At the time of the accident plaintiff was a pedestrian.

[2] In accordance with an order dated 11 October 2017:

(i) the parties have reached settlement on the merits based on 90%/10% in favour of the plaintiff; and

(ii) the defendant has agreed to furnish the plaintiff with an undertaking in terms of section 17(4) (a) of the Road Accident Fund Act[1], for future medical and hospital expenses.

[3] There is agreement that as a result of the collision, the plaintiff sustained the following injuries:

2.1 a concussive head injury;

2.2 a fractured right humerus involving the elbow joint;

2.3 multiple facial lacerations; and

2.4 a pelvic fracture.

[4] The issues to be determined are the amount to be awarded for general damages and loss of earning capacity, including the contingency deductions to be applied.

[5] The parties have also agreed that no evidence will be led and that reference will be made to the joint minutes of the parties' clinical psychologists[2] and industrial psychologists[3].

[6] Dr D Ogilvy (speech-language pathologist) is of the opinion that as a result of the head injury plaintiff sustained, she now suffers from significant cognitive-­ communicative deficits which have had an impact on her daily socio­ communicative interactions and that it was unlikely that plaintiff would have passed grade 12.

[7] Ms L Le Roux (occupational therapist) noted that the plaintiff has severe facial scarring, has a medial nerve palsy and that her elbow remains with a 60° c\flexion contraction. Ms le Roux is of the opinion that with her injuries, the plaintiff has been rendered unemployable.

[8] In their joint minute, the parties' clinical psychologists, Ms R de Wit and Ms E Tromp, reported that plaintiff as a result of the injuries sustained, was still suffering from memory difficulties, concentration and understanding difficulties and short-temperedness. Further the psychologists reported that plaintiff's physical deficits include limited function of the right arm and hand; back pain, headaches, increased appetite, disrupted sleep patterns, eye sight difficulties and significant facial scarring. Furthermore, the experts agree that post­ accident the plaintiff presented with "global impairment in all domains".

[9] The experts further agree that, due to the plaintiff's accident induced neuropsychological, psychological and physical deficits, she was unlikely to be in a position to complete any further studies and that as a result, she has been rendered unemployable . It is the opinion of both experts that plaintiff's physical and psychological deficits are permanent. Further, the psychologists are of the opinion that any pre-morbid cognitive difficulties plaintiff might have had were probably exacerbated by the injuries she sustained in the accident.

[10] According to the reports of Drs Reid (neurologist) and J Sagar (orthopaedic surgeon), plaintiff continues to experience the following:

(i) intermittent pain at the right elbow, right lower upper arm, over the pelvis and lumbar back;

(ii) intermittent headaches;

(iii) loss of mobility in the right elbow joint;

(iv) a permanent median nerve palsy;

(v) weakness of the right hand which limits activities of daily living, especially dressing, writing and bathing. She is no longer able to use her previously dominant right hand and has had to learn to use her left hand to write;

(vi) attention and working memory deficits;

(vii) short-temperedness;

(viii) unsightly scars over her right forehead, above the right lip, right chin and over the right distal forearm and elbow region; and

(ix) has become anti-social.

[11] Or Reid, the plaintiff's neurosurgeon, qualified Plaintiffs Whole Person Impairment at 32%.

[12] At the time of the collision the plaintiff was 22 years old and in Grade 9 at school. In terms of her academic performance, Plaintiff failed Grade 3; 6, 7 twice; and 9. Plaintiff is currently in grade 10. Further, plaintiff has never, either pre - or post - accident been employed.

[13] With regard to general damages, on behalf of the plaintiff the court was referred to three comparable cases which should be considered in considering the appropriate amount to be awarded for general damages. In Rabie v MEC for Education, Gauteng[4] the plaintiff sustained a head injury and facial fractures during a rugby match. The plaintiff managed to pass matric and was registered for tertiary studies. Furthermore the plaintiff was able to find employment after the accident. The plaintiff was awarded general damages in the amount of R800, 000.00 (the equivalent of R1, 100, 000.00 in 2018). In Clements v RAF[5] the plaintiff sustained a severe head injury with a skull fracture and a small sub­ arachnoid haemorrhage. The plaintiff presented with some cognitive deficits but was also employed post-accident. The plaintiff was awarded an amount of R950, 000.00 (equivalent of R1, 100, 000.00 in 2018), as general damages. And in Dlamini v RAF[6] the court awarded an amount of R1, 350,000.00 (approximatelyR1, 600, 000.00 in 2018) for general damages after the plaintiff sustained a severe brain injury, a comminuted fracture of the mandible and facial fractures. The experts involved were of the view that the physical and psychological deficits the plaintiff suffered were irreversible and had altered the plaintiffs life expectancy.

[14] Counsel for the plaintiff submitted that in the Rabie and Clements matters, although the plaintiffs had sustained injuries similar to those of plaintiff, they were both able to work post-accident, whereas plaintiff has been rendered unemployable. Counsel suggested that an amount of R1, 400,000.00 would be reasonable for general damages.

[15] For the defendant the court was referred to two comparable cases. In Nonkwali v RAF[7] besides the head injury, the plaintiff had also sustained multiple other injuries. It was submitted by counsel that even though the injuries in the Nonkwali matter were more serious than those sustained by plaintiff, Ms Nonkwali was awarded an amount of R750, 000.00 (equivalent of R800, 000.00 in 2018) as general damages. In Mngani v RAF[8] the plaintiff sustained a fracture of the right arm, laceration on the occipital area of the skull and injuries on the lumber and pelvis. Due to his injuries the plaintiff suffered from neurocognitive deficits and serious behavioural problems which impacted on his quality of life. Plaintiff was awarded an amount of R500, 000.00 as general damages (R914, 555 in 2018). Defendant's counsel suggested that an amount of between R700, 000.00 and R750, 000.00 in the current matter would be fair and reasonable.

[16] In Protea Assurance Company Limited v Lamb[9] the court held that

"...the trial court or the court of appeal, as the case may be may pay regard to comparable cases. It should be emphasised, however, that this process of comparison does not take the form of a meticulous examination of awards made in other cases in order to fix the amount of compensation, nor should the process be allowed so to dominate the inquiry as to become a fetter upon the court is general discretion in such matters. Comparable cases, when available, should rather be used to afford same guidance, in general way, towards assisting the court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration".

[17] Having considered the authorities I was referred to by Counsel and the expert reports submitted, I am of the view that the closest comparable case in terms of the injuries sustained and their sequelae , is the Nonkwali matter, although admittedly the injuries in the Nonkwali matter were more severe than the injuries sustained by the plaintiff.

[18] There is no dispute that as a result of the injuries plaintiff sustained, her personality has changed. In his report, Dr Le Fevre (psychiatrist) states that "Due the stress of her right arm problem and her hand injury she is not always rational." Dr Le Fevre further opines that the plaintiff has suffered loss of enjoyment of life a result the pain she endures and needs assistance with most daily activities.

[19] There is no doubt that taking into account the sequelae resulting from the injuries sustained, Ms Somdyala has suffered some loss of amenities andI am of the view that general damages in the amount of R1, 200, 000.00 would be fair and reasonable under the circumstances.

[20] With regard to loss of earning capacity, the industrial psychologists, Dr D Swart and Ms Du Toit/De Bod are in agreement that even without the resultant consequences of the injuries sustained, plaintiff would, without grade 12, qualified for unskilled/lower level semi-skilled work. However, the industrial psychologists are not in agreement as to when plaintiff would have entered the labour market. It is Ms Du Toit's opinion that Plaintiff would, but for the accident, have entered the labour market 3-4 years after completing matric . On the other hand, it is Dr Swart's opinion that Plaintiff would have entered the labour market a year after leaving school.

[21] The industrial psychologists are also in agreement that with her injuries the plaintiff has become unemployable in the open labour market.

[22] The actuaries, Munro Forensic Actuaries based their calculations on the conclusions reached in the reports of the industrial psychologists with regard to the predicted probable career path of the plaintiff. In terms of the actuaries' first scenario which is based on Dr Swart's report, the plaintiff's loss of future earnings is calculated in the amount of R1, 908, 335.00. On the second scenario based on Ms Du Tait/De- Bod's report the plaintiffs future loss of earnings is calculated in the amount of R1, 151, 675.00. Contingency deductions of 5% and 20% were factored in for past and future loss.

[23] In Southern Insurance Association Limited v Bailey NO[10] the court set out the two approaches open to the court in calculating an award for future loss of earnings by stating that:

"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 of 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.

It has opened to it to possible approaches.

One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown.

The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative.

It is manifest that either approach involves guesswork to a greater or less extent. But the court cannot for this reason adopt a non possumus attitude and make no award. See Hersman v A Shapiro & Co 1926 TPD 367 at 379 Stratford J:

'Monetary damage having been settled it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages".

[24] All the experts are in agreement, taking into account the plaintiff's progress at school and her age at the time of the accident, that it is unlikely that the plaintiff would have passed grade 12. Both industrial psychologists and the occupational therapist seem to agree that the plaintiff's employment prospects are compromised as a result of the sequelae of the injuries sustained. Moreover, the occupational therapist has also highlighted the impact the plaintiffs scarring would have on him psychologically and behaviourally.

[25] I am satisfied that the view expressed by Ms Du Toit/De Bod with regard to the plaintiffs entrance into the open labour market even without her injuries is more probable if one takes into account her school performance, age at the time of the accident and the economic sector the plaintiff would have entered on leaving school. I am therefore of the view that the most reasonable and fair award would be that suggested in the actuaries' second scenario, subject to a contingency deduction 5% for past loss and 20% for future loss. I am therefore of the view that the amount of R1, 151, 675.00 is fair and equitable compensation for loss of future earning capacity.

[26] Some of the experts have recommended the appointment of a curator bonis for the plaintiff. Counsel for the plaintiff has also suggested that it would be in the interest of the plaintiff if a curator bonis is appointed. I am not convinced that sufficient evidence has been presented that the plaintiff has been rendered unable to manage her own affairs to such an extent that it has become necessary for a curator bonis to be appointed. The plaintiff has at her disposal her mother and grandmother who have till now been assisting her and no reason has been given as to why they cannot be of assistance in the future.

[27] In the result, an order is granted in terms of the amended draft order marked "X''.

NP MNGQIBISA-THUSI

Judge of the High Court

Appearances:

For Plaintiff: Adv JH Roux SC (instructed by Savage Jooste & Adams Inc)

For Defendant: Adv A Gxogxa (instructed by Rambevha Morobane Attorneys)

‘X’

REPUBLIC OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

BEFORE THE HONOURABLE JUDGE MNGQIBISA-THUSI

Gqobisa Somdyala

Plaintiff

ROAD ACCIDENT FUND

Defendant

ORDER

HAVING READ THE PAPERS, HEARD SUBMISSIONS BY COUNSEL AND HAVING CONSIDERED THE MATTER, THE OTHER HEADS OF DAMAGES HAVING BEEN SETTLED BY WAY OF A PREVIOUS OF PREVIOUS ORDERS DATED 11 OCTOBER 2017 AND 24 MAY 2018,

IT IS ORDERED THAT:

THE CAPITAL

1. Defendant is ordered to pay to the plaintiff the amount of R2, 116, 50.750 (two million , one hundred and sixteen thousand, five hundred and seven rand and fifty cents only (""the capital") (after the apportionment of 10% in respect of contributory negligence had been applied) by way of a lump sum payment within two months of this order, by way of electronic transfer to the trust account, details of which are set out hereunder ("the capital payment").

2. The capital before the apportionment of 10% in respect of contributory negligence had been applied, is made up as follows:

2.1 General damages - R1, 200, 000.00 (one million two hundred thousand rand only).

2.2 Past loss of earnings/earning capacity - R50, 635 (fifty thousand, six hundred and thirty five rand only).

2.3 Future loss of earnings/earning capacity - R1, 101, 040.00 (one million, one hundred and one thousand and forty rand only).

COSTS

3. The defendant shall pay the plaintiffs taxed or agreed High Court Scale party and party costs, including for the sake of clarity, but not limited, to the costs of the plaintiffs instructing attorneys, Adendorff Incorporated in Cape Town and the correspondent attorneys in Pretoria, Savage Jooste and Adams Inc, as well as the other costs set out hereunder.

4. The plaintiff shall, in the event that the costs are not agreed, serve the Notice of taxation on the defendant or the defendant's attorney of record.

5. The plaintiff shall allow the defendant 30 (thirty) calendar days to make payment of the taxed or agreed costs.

GENERAL COSTS

6. Any taxed or agreed costs incurred after the date of this order in obtaining payment of any of the amounts referred to herein, the

defendant will not be liable for interest on the outstanding amount.

EXPERT WITNESSES

7. Regarding the expert witnesses listed herein below ("the experts"), the taxed or agreed qualifying expenses, the actual attendance, travelling, waiting time and reservation fees, if any, the actual costs attached to the procurement of the medico legal and other reports, inclusive of those referred to, as well as joint expert minutes of the experts, including x-ray, MRI scans, pathology reports, interpreter's services and addendum reports and all consultations with counsel, plaintiffs attorneys, as well as time spent travelling and conducting home and work visits.

8. The experts are:

a. Dr Keir le Fevre (psychiatrist) (RAF4 and expert report).

b. Dr Johan Reid (neurologist) (RAF4 and expert report).

c. Dr JS Sager (orthopaedic surgeon) (RAF4 and expert report).

d. Dr Dale Ogilvy (speech & language therapist).

e. Drs Morton & Partners (radiologists).

f. Ms Yolande Bekker (educational psychologist) .

g. Ms Martinette le Roux (occupational therapist).

h. Ms Renee de Wit (neuropsychologist).

i. Dr Hannes Swart (industrial psychologist).

j. Messrs Munro Consulting (actuary).

TRAVELLING, ACCOMODATION AND RELATED COSTS

9. The defendant shall be liable to pay the reasonable costs of the plaintiff's legal representatives, the actual travelling, waiting

time, and accommodation and related costs incurred by the plaintiff s legal representatives and counsel in respect of settlement

discussions with defendant or defendant's attorneys, and in respect of consultations with experts for trial preparation, costs for preparing for pre-trial conference (s) and formulation of pre-trial conference minutes, pre-trial agendas, Rule 37(4) & (6), further particulars , if any, Rule 35(9) & Rule 36(10) notices, Rule 38(2) affidavits, trial preparation, advice on evidence, the preparation of 6 trial bundles as per the Practice directives and the cost of this order.

10. The defendant shall be liable to pay the travelling, waiting time, accommodation and related costs, incurred as follows:

a. in respect of the plaintiff/ G Somdyala attending medico legal examinations with expert witnesses in Cape Town & Gauteng.

b. in respect of Ms SM Somdyala, the plaintiff/ G Somdyala's maternal grandmother, attending medico legal examinations with expert

witnesses in Cape Town & Gauteng.

c. in respect of the plaintiffs attorney and plaintiffs counsel conducting home visits, consultations and inspections in loco at G Somdyala's home in Stutterheim.

d. in respect of the plaintiffs legal representatives conducting the second and third pre-trial meetings on 10 October 2017 & 19 April 2018.

e. in respect of Ms N Phakade, the plaintiff's mother and Ms SM Somdyala, the plaintiffs maternal grandmother, and the plaintiff/G Somdyala travelling to attend consultations with the curator ad litem and the proposed curator bonis.

f. in respect of plaintiff's legal representatives conducting the trials on 11 October 2017 & 24 may 2018.

g. in respect of Dr Hannes Swart, industrial psychologist, attending the trial to testify on 24 May 2018 from 10h00 to 16h00.

COUNSEL'S FEES

11. The fees of the plaintiffs senior counsel conducting the trial which costs are inclusive of preparation and consultations with expert

witnesses, lay witnesses and drafting submissions, heads of argument and advice on evidence.

COSTS OF THE CURATOR AD LITEM

12. The defendant shall pay the costs of the application to appoint a curator ad litem on the High Court scale, as between party and party, including the costs of the medical reports filed as part of the said application, as taxed or agreed, plus VAT.

13. The defendant shall pay the costs of the curator ad litem on the High Court scale, as between party and party, as taxed or agreed, plus VAT.

CONTINGENCY FEE AGREEMENT

14. It is recorded that the plaintiff entered into a contingency fee agreement and that same complies with the Act.

TRUST BANKING DETAILS

15. The plaintiff's attorneys trust banking account details are as follows:

Bank: FIRST NATIONAL BANK

Account name: ADENDORFF INC.

Branch name: ADDERLEY STREET

Branch Code: 201-409

Account Number: [….]

BY ORDER OF THE COURT

REGISTRAR

Box 71: Savage Jooste & Adams

Ref no: M Haasbroek/gk/MHA 307

Plaintiffs counsel: Adv JH Roux SC (083 679 0574)

Defendant's counsel: Adv A Gxogxa (083 546 6265)

[1] Act 56 of 1996.

[2] Ms R de Wit (plaintiff) and Ms E Tromp (defendant.

[3] D H Swart (plaintiff) and Ms C du Toit/ A De Bod (defendant).

[4] 2013 (6A4) QOD 227 (GNP).

[5] Unreported judgment, Case number 13131/2011, GNP (8 March 2016).

[6] Unreported judgment, Case number 59188/2013, (2015] ZAGPPHC 646 (3 September 2015).

[7] Unreported judgment, Case number 771/2004, ZAECMHC 5 (21 May 2009).

[8] Unreported judgment, Case number 09/2008, ZAECMHC 12 (21 January 2010).

[9] 1971 (1) SA 530 (AD) at 535 H-536B.

[10] 1984 (1) SA 98 (A) at 113F-114E