Seme v Road Accident Fund (13917/04) [2008] ZAKZHC 47 (11 July 2008)

IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

DURBAN AND COAST LOCAL DIVISION

Case No. 13917/04

In the matter between

GIFT SIPHO SEME Plaintiff

and

ROAD ACCIDENT FUND Defendant

____________________________________________________________

J U D G M E N T

______________________________________________________________

Delivered:

11 July 2008

TSHABALALA JP

[1] The plaintiff is a 36 year old male who has instituted an action against the Road Accident Fund (Defendant), in terms of the Road Accident Fund Act No. 56 of 1996 (the Act) for payment of damages arising from a motor vehicle collision which occurred on 27 February 2001.

[2] Plaintiff’s claim as set out in his amended particulars of claim is for payment of a sum of R7 588 944.29 computed as follows:-

(a) Past hospital and medical expenses R1 010 620.29

(b) Future medical and related expenses R1 258 086.00

(c) Past loss of earnings R 200 491.00

(d) Future loss of earnings R3 369 747.00

(e) General damages for shock,

pain and suffering R750 000.00

General damages for disability,

disfigurement and loss of the

amenities of life R1 000 000.00

____________

R7 588 944.29

[3] The plaintiff was injured in the course and scope of his employment and the parties have agreed he has to date received from the Compensation Commissioner in terms of the provisions of the Compensation for Occupational Injuries and Diseases Act, 1993 an award in the amount of R1 486 268.29.

[4] Therefore the plaintiff claims against the defendant for his loss and damages in the some of R6 102 676.00. Such amount includes future medical and related expenses, past loss of earnings, future loss of earnings, general damages for shock, pain and suffering and general damages for disability, disfigurement and loss of the amenities of life.

[5] I was advised by Mr Frost, with Mr Nxusani confirming, that defendant was liable to compensate plaintiff. Therefore the only issue I am required to determine is the quantum of damages which defendant is liable to pay to the plaintiff.

[6] At the commencement of the trial it was agreed between the parties that:

6.1 Defendant has agreed that it will furnish the plaintiff with a certificate in terms of Section 17(4)(a) of the Act to cover the plaintiff’s claim in respect of future hospital, medical and related expenditure. Appointment and costs of administration by a curator bonis of plaintiff’s estate would be covered by aforementioned certificate;

6.2 The plaintiff’s claim for general damages was agreed in an amount of R1 000 000.00. (Transcript vol 1 p 65 line 19 to 21 & p 68 line16 )

6.3 The reports (dealing with general damages) of the medical experts were admitted by defendant as being true and correct without the necessity of proof thereof save for the hearsay statements made to the said experts.

[7] The issue that remains to be determined is whether the plaintiff has proved that he is entitled to payment of past and future loss of earnings.

[8] As far as the quantum of the Plaintiff’s claim for loss of earnings is concerned it was agreed that I would be required to rule on the disputed assumptions submitted to the actuaries for purposes of calculation of loss of earnings.

BACKGROUND

[9] Plaintiff was born on 16 February 1972, and has two children. He completed matric, has a one year computer and secretarial diploma and certificates, inter alia, in respect of attendance in rape and gender planning and AIDS counselling. Between 1994 and 1996 (not certain of the exact date) he was diagnosed as HIV positive. He was employed on contract basis by The Valley Trust from 1 July 1997 as an AIDS facilitator/counsellor. On 27 February 2001 he was involved in a head-on collision on the M19 in Westville, which collision was caused by the negligence of the other driver. He was airlifted to Crompton Hospital where he was treated for severe bodily injuries, and on about 23 March 2001 he was transferred to St. Augustine’s Hospital where he was also treated. It appears after the collision he was described as being in a deep coma for a period of six months.

[10] It is common cause or is not seriously disputed that as a result of the collision plaintiff sustained injuries which include:

a severe head and brain injury;

fractures of the maxilla with multiple loss of teeth;

bilateral pulmonary contusion;

fracture of the right tibia and fibula;

compound fracture of the left knee;

multiple scalp and facial lacerations;

abrasions with extensive swelling around the right elbow;

abrasions to the left thigh.

INJURIES

[11] In order to have clear view of the nature and extent of these injuries I shall now briefly refer to some aspects which appear from the medical experts’ reports.

[12] Dr Reddy, an orthopaedic surgeon, in his report dated 25 June 2004 states that on 27 February 2007 (date of the accident) plaintiff was taken to Crompton Hospital where he was diagnosed to have multiple severe injuries. X-rays were taken on 27 February 2001 and 28 February 2001, which indicated a remarkably angulated fracture dislocation of the left ankle joint. His right elbow was dislocated, as was his lumbar spine and pelvis. His right knee had incidental calcification of the medial collateral ligament and his right leg and ankle were mildly fractured. CT scans performed on the brain and chest revealed patent brain basal cisterns. An opacification shown on the conventional chest radiograph at the left lung apex and paralleling the superior mediastinum was due to extensive apical pulmonary contusion.

[13] In his summary Dr Reddy, on the basis of X-rays performed on 25 June 2004, remarks that the plaintiff is wheelchair bound and requires Orthosis to accommodate deformity and disfigurement around the ankle and foot. A fracture on the right tibia, though well healed, required open reduction and internal fixation with screw fixation. The right elbow is healed with minor deformity. The right knee is well healed with minor patella femoral joint crepitation due to post traumatic chondromalacia. The plaintiff is severely incapacitated by his injuries, especially the head injury, and his quadriplegic state requires assistance for his personal and social well being. His scalp and face have permanent scars and his fractured maxilla is associated with loss of upper teeth.

[14] In regard to loss of income Dr. Reddy says:

“[Plaintiff] was an AIDS counsellor (sic) for The Valley Trust.

He is unable to perform any work duties since then.

He is unlikely to do this in the future.

[Plaintiff] is unable to earn a living since the accident. ”

[15] In his summary Dr M.J.H. Mair, an orthopaedic surgeon retained by defendant, states the following in his report dated 20 June 2006:

“[Plaintiff] has been with the results of severe head injury, a quadric paresis, and the result of severe brain injury. He is severely disabled, and as a result of the injuries will not be able to resume work.”

[16] Dr Nadvi, a neurosurgeon said in his report dated 30 June 2004:

“[Plaintiff’s] present quadrispasticity is consistent with a severe head injury and his cognitive and behavioural problems are also consistent with someone who has sustained severe head injury. As three and half years have passed since the accident, I do not expect Mr Seme to improve much further… I would think that his condition must now be regarded as permanent.”

In regard to employment prospects Dr Nadvi stated:-

“I do not expect that he will be able to return to work in the future.”

[17] Dr Hugh Staub, a neurologist, examined plaintiff and reported on 28 August 2007 that:

“As a result of his injuries he has severe dysarthria and ataxia, affecting both the left and the right side of the body. The right side has some residual evidence of upper motor neuron pathology.”

He communicated with plaintiff through his father.

Some of the disabilities he found on examination of the plaintiff include:-

partial sensory loss on the right side of his face;

speech being severely dysarthric;

sensory loss on his upper limb;

Markedly impaired co-ordination in both upper and lower limbs

[18] Mr du Trevou, a neurologist retained by defendant, examined plaintiff and reported on 11 September 2006 that:-

“It would be clear to even a casual observer that [plaintiff] is now totally disabled from both a cognitive and physical perspective. As a result he is 100% dependent for all his basic needs on his family. He has difficulty in communicating, is inconsistent, and is immobile. This unfortunate situation will now not improve.”

[19] Ms Bosch and Mr Plunkett, both clinical psychologists, agree in their reports that plaintiff’s physical and mental capacity has compromised his ability to compete in an open labour market. In short they state his intelligence has diminished.

[20] Ms Bainbridge, retained by plaintiff and Ms Kisten, retained by defendant, who are both occupational therapists, generally agree in their reports dated 16 July 2006 and 20 July 2006 respectively, that plaintiff’s cognitive and physical capabilities are compromised. Plaintiff is permanently disabled and immobile. He is totally dependent on his family for his well being and without such assistance would cease to live. He is now an easily irritable person and his frustration levels are high which contribute to his speech difficulties. He has no prospects of being having gainful employment. Plaintiff will benefit from specialised equipment.

AGREEMENT BY INDUSTRIAL PSYCHOLOGISTS:

[21] Immediately before commencement of trial two industrial psychologists Ms S Hill and Mr C Couperthwaite, retained by plaintiff and defendant respectively, met with a view to achieving consensus in regard to their opinions regarding the extent of the plaintiff’s vocational compromise resulting from the injuries he sustained in the collision.

[22] Exhibit I, minutes of an agreement between them dated 19 September 2007, reads as follows:-

“4. This joint minute outlines our views regarding Mr. Seme’s possible future career development and income earning capacity at the Valley Trust – had he not been injured. CC and SH recommends that loss of income should be based on his career prospects at the Valley Trust…

5. Issues pertaining to his past loss of income (i.e. from the date of the accident to 2007) have not been included in the minute but were addressed by us in our original reports. This document is therefore targeted only at defining points of agreement and differences with regard to estimating Mr. Seme’s future loss of income at the Valley Trust.

The following issues are identified:

1. [Mr Couperthwaite and Ms Hill] agree that the Mr. Seme’s injuries render him incapable of working and he is due to compensation for total loss of income earning capacity.

[They] agree that with regard to his career prospects at the Valley Trust, Mr. Seme could have advanced to a position at Program level (i.e. C1 and C2) at the Valley Trust. In a post at this level his basic salary would have ranged from a minimum of R5617,50 to R8426,25. For actuarial purposes we recommend that a salary at the median i.e. R7021,88 per month be used to determine his income earning capacity in 2007. It should be noted that in addition to his basic salary he would have received benefits including employer contributions to medical aid fund, pension fund and a bonus. The pecuniary value of these benefits will need to be obtained from the Valley trust.

[They] agree that Mr. Seme would have been able to advance in January 2008 to a post of Programme Coordinator at the Valley Trust where his salary would have been ranged from R8538,60 to R16 290,75. As his capabilities in program coordination are not known, we propose that he would have been able to advance to the median of this grade (currently R12 077,63). The median salary is considered to represent the ceiling of his developmental potential. It should be noted that in addition to his basic salary he would have received benefits including employer contribution to a medical aid fund, pension fund and a bonus. The pecuniary value of these benefits will need to be obtained from the Valley Trust. [Mr Couperthwaite and Ms Hill ] interviewed Ms. Mngadi the HR Manger at the Valley Trust and she indicated that positions above program coordination (i.e. in the D band) at the Valley Trust are considered senior management. Typically incumbents of D band posts will have formal post matric and/or tertiary qualifications. [Mr Couperthwaite and Ms Hill] agreed that on this basis it is unlikely that Mr Seme would have advanced to a more senior post.

[They] agree that estimating Mr. Seme’s rate of progression as a Programme Coordinator requires speculation. CC recommends that loss of income should assume progression to the median level over a period of 7 to 15 years. SH, after consultation with Ms. Mngadi, estimates that progression to the median could have occurred in 5 years. For actuarial purposes we agreed that a period of 7 years should be used.

Calculation of loss of income should assume that Mr. Seme would benefit from annual salary increases – linked to inflation.”

I must note that no bonus or 13th cheque was payable to plaintiff. (Exhibit E22)

PAST LOSS OF EARNINGS

[23] It is common cause that plaintiff received monthly payments of R2568.00 from The Valley Trust for a period of six months beginning March 2001 ending August 2001, totalling R15 408.00. Counsel for plaintiff agrees that this amount has to be deducted from the claim. The State disability grant has to be deducted. Plaintiff further received R2568.00 monthly from The Valley Trust for the period September 2001 to the end of 2005. For a period between 2006 and 2007 plaintiff received monthly payments of R2698.00 from the Valley Trust. It is disputed whether payments between September 2001 and 2007 are gratuitous payments and are not to be deducted.

FUTURE LOSS OF EARNINGS:

[24] Ms Hill and Mr Couperthwaite agree in their reports dated 2 September 2004 and 23 March 2007 respectively, that plaintiff has suffered the sequelae of severe head injury. He is unemployable and his residual earning capacity should be assumed to be nil. They agree that in 2007 plaintiff would have earned a salary at the median R7021.88 per month plus benefits, i.e. medical aid and pension (and phone allowance). They also agree that in 2008 plaintiff would have earned a salary at the median R12 077.63 per month plus benefits.

EVIDENCE OF EXPERTS RE: INJURIES AND SEQUELAE THEREOF:

[25] At this point I shall comment on the evidence of the experts whose reports I have referred to and the evidence of Prof. Smith. This evidence is substantial to the effect that plaintiff sustained a severe head injury. Dr. Reddy described plaintiff as “severely incapacitated by the injuries especially the head injury and his quadriplegic state”. Dr. Mair described plaintiff as having “been with the results of a severe head injury, a quadric paresis”. The injuries included damage to the head, chest and limbs and plaintiff had to be ventilated and rehabilitated.

[26] The injuries as described by Dr Nadvi included:

a Glasgow Coma Scale (GCS) of 3 out of 15. A GCS of 3 is the lowest score that one can obtain and plaintiff was defined as being in deep coma;

pulmonary contusions;

a fractured left ankle.

I am therefore satisfied that plaintiff sustained, inter alia, a very serious head injury.

[27] The experts also substantially agreed that plaintiff is permanently wheel chair bound.

[28] In so far as the effects of the injuries on plaintiff’s employability the experts substantially agree that plaintiff’s deficits are such that he is not employable in an open market and opined that the only option is accommodation of plaintiff in a sympathetic, non-gainful employment environment.

[29] The evidence and opinions of the experts I shall consider together with other evidence in order to reach a proper finding as to prospect of future capacity of plaintiff’s employment.

ASSESSMENT OF EVIDENCE RELATING TO WHETHER PLAINTIFF HAS RESIDUAL CAPACITY TO ASSUME WORK:

[30] In determining this issue I considered the opinions and conclusions of the experts who submitted their reports, as well as the effect of the agreement of the two industrial psychologists and their evidence.

[31] The opinions and conclusions of these witnesses as appear in their reports have not been seriously attacked or disputed. As appears from the extracts from passages quoted from their reports, their opinions are that because of the seriousness and the sequelae of plaintiff’s injuries and the neuro-cognitive deficits resulting from those injuries, plaintiff is not likely to resume work and is not gainfully employable. I conclude that plaintiff’s residual earning capacity is nil.

EVIDENCE OF INDUSTRIAL PSYCHOLOGISTS:

[32] In so far as the evidence of the two industrial psychologists and their opinions are concerned, in my view they are to a great extent overshadowed by the agreement they reached as incorporated in the minutes handed into Court which I considered important in assessing plaintiff’s residual earning capacity as nil.

[33] In their evidence it is also clear that they both agree that Plaintiff cannot work after the accident.

[34] Ms Hill at page 149 to 150 of her report in exhibit C says the following:-

“Taken together, his neurocognitive disorder and physical limitations impact upon his vocational potential. In this scenario, it would be very difficult, if not impossible, for him to compete, even with sheltered employment, in the labour market. It must further be noted that employment in a sheltered environment is more for recreational than work purposes. A monthly fee is charged for the accommodation of individuals and any money received would be regarded as pocket money rather than for living expenses.

In this scenario, Mr. Seme’s career prospects and employability on the labour market should be considered as nil. ”

[35] Mr Couperthwaite at page 81 and 82 of his report in exhibit D says the following:-

“The [plaintiff’s] various disabilities and limitations make it unlikely that he will be able to work and earn income. He is entitled to compensation for loss of lifetime income… The [plaintiff] is not employable and his residual income earning capacity should be assumed as nil”.

[36] Clearly evidence shows that plaintiff’s residual earning capacity is nil.

LOSS OF EARNINGS:

[37] Dr Wimble’s evidence was that payments made to plaintiff from September 2001 were ex gratia remain intact even after cross-examination. Other than submissions defendant did not tender rebutting evidence. Regarding loss of past earnings from September 2001 to date of judgment it was submitted by Mr Frost that those earnings received by plaintiff were ex gratia and must not be deducted from the claim.

[38] Ms Hill at page 147 and 148 of her report in exhibit C described plaintiff’s loss of earnings as follows:-

“After consultation with Mrs. Penny Chidane, she indicated that the counsellors (sic) currently earn R2900 per month without any benefits.

Progression:

Depending on the availability of a project facilitator position and taken Mr. Seme’s educational background and the possibility of him completing further tertiary studies he could have been promoted to a project facilitator level 1 at a monthly income of R5636, 33 after five years.

He might have progressed to level 4 at a basic monthly income of R7372, 00 per month.

He would have continued receiving inflationary linked increases until normal retirement age of 65.”

[39] Mr. Couperthwaite at page 81 of his report in exhibit D describes plaintiff’s loss of earnings as follows:-

“The writer proposes that during this period the [plaintiff] would have continued employment at the Valley Trust as an AIDS facilitator. His salary would have increased as per employer’s certificate to R4000 in 2004. He would then have received inflation linked increases in 2005, 2006.”

[40] In view of the findings of the industrial psychologists it is likely that plaintiff’s salary in 2006 would have been in the region of R5000, 00 excluding any applicable benefits.

[41] Mr Nyathikazi makes a good comparable of how plaintiff would have progressed had he not been injured. He started working at The Valley Trust almost at the same period like plaintiff, and became permanent in 2001. Ms Mngadi testified Mr Nyathikazi had no diploma or degree but a basic health certificate. His monthly salary (plus benefits where applicable) from February 2000 to 2006 is set out in Exhibit E pages 2, 4, 8, 11, 13 to 21 as follows:-

February 2000 as C. Health Sup R2400, 00 pm

February 2001as C. Health Sup R4340, 00 pm

March 2002 as C. Health Sup R4894, 00 pm

February 2003 as C. Health Sup R6427, 00 pm

March 2004 as C. Health Sup R6651, 00 pm

March 2005 as C. Health Facilitator R9005, 00 pm

April 2006 as C. Health Facilitator R9275, 00 pm

Dr Wimble testified that it was resolved that contract staff would be made permanent staff. (Transcript vol 2 p 108 line 5-6 ), which evidence corroborated that of Ms Mngadi to the effect that plaintiff would have been employed permanently had he not been involved in a car accident. (Transcript vol 1 p 52, p 78).

[42] FACTORS REGARDING LOSS OF FUTURE EARNINGS:

[43] The Employment Certificate dated 9 January 2004 (Exhibit B28-31), relating to plaintiff’s earnings and future prospects indicates a pay progression as R3000, 00 per month in 2002, R3500, 00 per month in 2003, R4000, 00 per month in 2004. There is no explanation as to whether such progressions takes into account that plaintiff might have been a permanent staff and receiving benefits in addition.

[44] Percentage increase of plaintiff’s salary is approximately 15%. In determining the amount plaintiff would have earned after the collision I take into account that the general annual salary at The Valley Trust varied from 5% to 100%. The annual increases which plaintiff received include a 45% increase in the 2000 calendar year as well as a 7% increase in February 2001. The 45% increase put plaintiff on par with Mr Nyathikazi. In February 2001 Mr Nyathikazi received a 67% increase. After the 2001 calendar year the plaintiff never received further increases until 2006 which was 5%. At this period plaintiff was severely injured and his prospects of resuming work at The Valley Trust were nil.

[45] I therefore find that past loss of earning from September 2001 to the 2007 year calendar should be calculated on the basis that Plaintiff earned a sum of R2568, 00 in September 2001 which would have increased annually at the rate of 13%.

[46] In so far as benefits relating to past loss of earnings, I find that plaintiff would have received a pension from 2001 and medical aid allowance from 2003. Such benefits would have increased by 13% annually to the 2007 year calendar.

Deduction from past loss of earning:

[47] It is common cause that plaintiff was in receipt of a State disability grant from April 2003. The actuary has to calculate the amount to be deducted from plaintiff’s total amount of loss of past earning

from April 2003 up to date of judgment.

[48] I find that the amounts received by plaintiff from The Valley Trust were gratuitous and must not be deducted from plaintiff’s total amount of loss of past earning.

[49] The Workman’s Compensation Commissioner’s award to plaintiff was final and there is no further award anticipated. The award has already been deducted.

Future loss of earnings:

[50] The parties are in agreement that:

(a) Plaintiff would be earning a package as at 2008 in 2007 Rand terms of R10 624.00 per month. This package is to increase evenly over a period of seven years commencing in year 2008, to a monthly package in 2007 Rand terms of R14 460, 00. The later amount would represent plaintiff’s ceiling;

(b) Inflationary increases would be applicable post attainment of R14 460.00.

Contingencies

[51] When a court accepts an actuary’s calculation determining future earnings of an injured plaintiff, it usually then considers the ‘general equities of the case’1 and adjust the figure in order to ‘blend the scientific with the equitable’2.

[52] The figure is usually adjusted for certain contingencies which may not have been taken into account by the actuary. What these contingencies are and what they take into account varies from case to case and ranges beyond statistics3.

[53] Determining what contingencies to take into account is by its very nature a process of subjective impression rather than objective calculation.4 It is a matter that falls within the discretion of the court5, which will determine an amount that it considers to be right rather than being tied down by inexorable actuarial calculations.6

[54] However, the courts are mindful of the fact that the process involves ‘pondering the improbable’7 and primarily encompasses educated guesswork in which the court makes assumptions which cannot be proved8.

[55] As the fortunes of man are both adverse and favourable9, it is theoretically possible to consider both positive and negative contingencies.10However, in reality, the adjustment for contingencies is almost always a deduction11. To explain this, Koch12 refers to a passage in Bay Passenger Transport Ltd v Franzen13which speaks to the conservative approach a court must take in determining damages:

‘[I]n such circumstances of difficulty and dubiety, defendants should be regarded with greater favour than plaintiffs, favorabiliores rei potius quam actores habentur (Digest 50.17.125). In other words, in striving to determine an amount that will be fair in all the circumstances, the Court should act conservatively rather than liberally towards the plaintiff lest some injustice be perpetrated on the defendant.’

[56] However, the courts have allowed positive contingencies to be taken into account such as in Nochomowitz v Santam Insurance Co Ltd14 discussed below.

[57] Koch in his Newsletter (Number 50 –June 2003) also provides that “it seems fair to say that if there is such thing as “normal contingencies” then it must be 5% for past loss and 15% for future loss.”

LIFE EXPECTANCY

[58] An issue before the court to determine, is the life expectancy of the plaintiff must given that he is HIV positive. Plaintiff is what is termed as a ‘long-term non-progressor’ and as such his HIV status would not affect his normal life expectancy, and is to be viewed as having no effect on his working life.

[59] However, the defendant counters that despite being a ‘long-term non-progressor’, there nevertheless remains the uncertainty as to his longevity. It is not inconceivable that he be susceptible to opportunistic illnesses, and not all long-term non-progressors have survived for 25 years without treatment as postulated by the plaintiff.

[60] Koch defines life expectancy as ‘the sum of the separate chances of survival into each and every possible year’15and notes that it is assumed that a person has a normal expectation of life unless there is evidence to the contrary.16

[61] Nochomowitz v Santam Insurance17 is such a case where the evidence did show the contrary. Here, the court heard evidence that the deceased18 was a healthy, fit and keen sportsman who exercised regularly, had an unstrenuous job, and had a family history of longevity. On the basis of this evidence the court adjusted the deceased’s life expectancy up from the norm.

[62] The issue of HIV and its relevance to life expectancy and, therefore, damages has been considered in other jurisdictions. In Agosto v Trusswal Systems Corp19, heard before a US District Court in Pennsylvania, the defendant sought an order compelling the Plaintiff to furnish his medical records and information relating to his HIV treatment. The court commented that such medical information is relevant to establish life expectancy and therefore damages. Basic fairness dictates that the Plaintiff should not be allowed an amount of damages based on an average life span, when in reality, he may well have a shorter than average life expectancy.20

[63] In the Canadian case Hughes v Gillingham (Administrator ad litem of)21, heard by the Alberta Court of Queens Bench, the plaintiff suffered from various ailments including being HIV22. The court in considering his claim for loss of future income, noted that whilst it had been ten years since the plaintiff had been diagnosed HIV positive and was asymptomatic at the time of the hearing, further problems were at all times imminent, and the plaintiff’s further physical deterioration inevitably continued as a result of his pre-existing conditions.23 24

[64] Koch in his Newslatter (Number 50 –June 2003) says:

“The use of retrovirals can significantly increase the life expectancy of an AIDS victim. For an untreated AIDS victim life expectancy is about 11 years at the onset of HIV positive. For lucky victims retrovirals can extend life expectancy to nearly normal … In a recent extensively argued matter (now settled) the breadwinner was assumed to have a life expectancy halfway between 11 years and normal.

[65] I find guidance in Basson v Ongevallekommissaris25 that where in all probabilities a negligent defendant had foreseen the damage then he or she is fully liable for the assessed amount awarded for the injury suffered by a plaintiff irrespective of a plaintiff’s pre-existing asymptomatic condition which would have been symptomatic in few years.26

[66] It is generally accepted that a person who is infected with HIV has a reduced life expectancy. However, the extent of the reduction remains somewhat arguable.

[67] The evidence of Prof. Smith showed that the longest period a person categorised as a long-term non-progressor has lived without any form of treatment is 25 years. There is no certainty as to the length of period this person could live beyond 25 years when receiving treatment.

[68] It is safe to say that the plaintiff was diagnosed with HIV in 1995. Thirteen years later he is still in a generally healthy state without the use of retrovirals. I therefore find that life expectancy of a person diagnosed with HIV is halfway between 11 years and normal. I would add the caveat, however, that every case is sui generis and must be judged on its own particular circumstances.

[69] Finally, it is also pertinent to add that the parties have agreed to use of Salt 1984/86 Life Table 5 in respect of Black males. Plaintiff is 36 years old.

PAST LOSS OF EARNINGS:

[70] In considering this aspect I consider that the period for which an assessment is to be made is much shorter than that for future loss of earnings. In this regard I consider and weigh plaintiff’s age, his physical and psychological deficits against his nil chances of employability. I therefore assess contingencies under this heading at 5%.

FUTURE LOSS OF EARNINGS:

[71] In considering contingencies under this heading the chances of plaintiff being employed gainfully are nil. I therefore assess contingencies at 15%.

COMPUTATION OF LOSS OF EARNINGS

[72] Having considered the evidence and other factors I give the following directions for actuarial calculation of past and future loss of earnings.

The directions for actuarial calculation are as follows:-

Plaintiff is Sipho Gift Seme born on 16 February 1972.

He was employed by The Valley Trust from 1 July 1997.

On 27 February 2001 while still employed by The Valley Trust he was involved in a motor vehicle collision as a result of which he suffered serious injuries.

As a result of the injuries plaintiff suffered he has been left with no residual earning capacity consequently he has suffered, inter alia, a loss of past and future earnings.

At the time of the collision Plaintiff was earning R2568.00 per month..

It is assumed that had the Plaintiff not been injured he would have:-

6.1 Earned a sum of R2568, 00 per month from September 2001 to date of judgement with an annual increase of 13% per annum;

6.2 He would have received a pension from 2001 and medical aid allowance from 2003. Such benefits would have increased by 13% annually to the 2007 year calendar.

7. Deductions:

7.1 Disability grant from April 2003 up to date of judgment.

7.2 Contingencies for past loss of earnings at 5%.

FUTURE LOSS OF EARNINGS.

8. Future Loss of Earnings:

8.1 To be calculated after date of judgment to date of retirement of plaintiff at age 65 years;

8.2 It is assumed that plaintiff would earn R10 624.00 per month from 2008 calendar year;

8.3 Future income from 2008 accruing to plaintiff will increase evenly to R14 460.00 over a period of seven years;

8.4 Inflationary increases would be applicable post attainment

of R14 460,00

8.5 Contingencies are assessed at 15%.

8.6 It is assumed that life expectancy is halfway between 11

years and normal;

8.7 All other actuarial considerations normally taken into

account in actuarial calculations of this nature to be taken

into account.

[73] In the result I grant Judgment in favour of the plaintiff against the defendant for payment of:

(i) An amount of R1000 000,00 in respect of general damages.

(ii) In respect of past loss of earnings and future loss of earnings in the amount to be determined by an actuary in view of the above findings in this judgment.

(iii) Interest on the amounts in paragraphs (i) and (ii) above at the rate of 15,5% per annum with effect from fifteen (15) days after the handing down of this judgment to date of payment.

(iv) Costs of suit

TSHABALALA JP ________________________________________

Dates of Hearing: 17 – 21 September 2007

18 and 19 December 2007

24 April 2008

Date of Judgment: 11 July 2008

Counsel for Plaintiff: Mr. R. Frost

Instructed by: Thorrington-Smith & Silver

Counsel for Defendant Mr. J. Nxusani

Instructed by: Hughes-Madondo Attorneys

1 Hulley v Cox 1923 AD 234 at 244

2 Koch Damages for Lost Income pg 57

3 ibid pg 58

4 Sigournay v Gillbanks 1960(2) SA 522 (A) at 569A

5 Van Der Plaats v SA Mutual Fire and General Insurance Co Ltd 1980(3) SA 105 (A)

6 Legal Insurance v Botes 1963(1) SA 608 (A) at 614E

7 Anthony v Cape Town Municipality 1967 (4) SA 445 (A)

8 Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) at para 14

9 Southern Insurance Association Ltd v Bailey NO 1984(1) SA 98 (A) at 117B

10 P Visser & J M Potgieter Law of Damages pg 116

11 Note 2 above pg 61

12 Note 2 above 61

13 1975 (1) SA 269 (A) at 274F

14 1972 (1) SA 718 (T)

15 Note 2 above pg 100

16 ibid

17 Note 13 above

18 The deceased’s widow had brought a claim for loss of support.

19 142 F.R.D. 118

20 Paragraph 4

21 1999 CarswellAlta 638

22 The Plaintiff was a haemophiliac, who in addition to being HIV positive, also suffered from hepatitis, arthritis, osteoarthritis and alcohol abuse problems.

23 Paragraph 123

24 The matter went on appeal to the Alberta Court of Appeal where it was reversed in part, but not on this issue. See Hughes v Gillingham Estate (Administrator ad litem of) 2002 Carswell 333

25 [2000] 1 All SA 67 (C)

26 See also Jeffery v President Insurance Company 1987 Corbett and Honey C3-19 (W); Zuanni v NEG Insurance 1987 4 Corbett and Honey C3-26 (W); Smith v Mutual & Federal Insurance 1994 4 Corbett and Honey C3-45 (T).