W.S v Road Accident Fund (3159/2016) [2020] ZAFSHC 87 (30 April 2020)

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

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 3159/2016

In the matter between:

W S

Plaintiff

and

ROAD

ACCIDENT

FUND

Defendant

HEARD ON: 28 & 29 JANUARY 2020

JUDGMENT BY: MATHEBULA, J

DELIVERED ON: 30 APRIL 2020

[1] On 11 January the plaintiff then a seventeen year old schoolboy, was involved in a motor cycle accident. Summons were issued against the defendant instituting a claim for payment of emergency medical treatment, future medical expenses, general damages as well as past and future loss of income. The matter was settled in respect of negligence as well as past and future medical expenses on 14 November 2017 and 3 September 2019 respectively. The only outstanding issue to be determined in respect of quantum are general damages and loss of income or earning capacity.

[2] Both parties obtained medico-legal reports of numerous experts, prepared joint minutes which were signed by clinical psychologists,

occupational therapists and orthopaedic surgeons. In order to prove its case the plaintiff presented evidence of Drs Oelofse, Van

Aswegen, Pienaar, Jacobs as well as Ms. Van Zyl and Mr. Boshoff. These experts also prepared medico-legal reports which were prepared

in a bundle and admitted into evidence. The plaintiff and his mother also testified. Medico-legal reports were prepared on behalf of the defendant but none of the experts were called to present oral evidence.

[3] It was agreed between the parties that the expertise of the experts is not placed in dispute. The same goes with the injuries sustained by the plaintiff. Primarily the defendant is disputing the career path and the basis of calculation of the loss of earnings as well as the award to be made for general damages. This aspect came to the fore when the Road Accident Fund Appeal Tribunal held that the injuries sustained qualified as serious as per the narrative test.[1]

[4] The plaintiff was examined by Dr. Oelofse on 14 June 2018. A comprehensive medico-legal report was compiled[2] which is part of the record. He was also examined by Dr. Bogatsu who compiled and filed a detailed medico-legal report.[3] Both orthopaedic surgeons concluded a joint minute where they both agreed that the plaintiff suffered acute pain for two (2) weeks and moderate pain for three (3) months. They concluded that since the accident, the plaintiff has not been pain free. They both agreed that he sustained a traumatic brain injury resulting in chronic headaches and cognitive changes. Dr. Oelofse further noted there was a possibility to develop post-traumatic epilepsy, disturbed sense of taste and physiological problems.

[5] In addition they noted that he sustained a lumbar injury with residual pain. They were ad idem that provision must be made for treatment in the form of consultations, medication, physiotherapy and bio kinetics. In conclusion they both agreed that the injuries sustained had a profound impact on his amenities of life. They were also of the view that the injuries will not have any detrimental effect on his life expectancy.

[6] The point of departure was whether the injuries have had an effect on his productivity and retirement. Dr. Oelofse maintained that he was rendered and unfair competitor in the open labour market and can only be accommodated in sympathetic employment and should not be allowed to do physical labour. He recommended that provision should be made for ten (10) to fifteen (15) years early retirement. In contrast, Dr. Bogatsu was of the view that injuries have not resulted in significant loss of employment capacity and can still be gainfully employed in the open labour market.

[7] This brings me to the evidence of Dr. Oelofse in court. He stated that the plaintiff has sustained serious injuries to his back. He will probably suffer osteoarthritis of the hip which will get worse due to advanced age. To alleviate the problem he will require hip replacement at thirty five (35) years with the revision every ten (10) years. His amenities of life were diminished because he will live with pain every aspect of his life. He concluded that he must not be allowed to do physical labour and he will retire earlier than expected.

[8] Dr Van Aswegen examined the plaintiff and compiled two medico-legal reports dated 10 June 2019.[4] Both covers in a succinct manner the salient points of the case. In his opinion which he confirmed in oral evidence, the plaintiff has suffered a traumatic brain injury during the accident which it did not have any effect on his life expectancy. His complaints of short temper, decreased level of concentration, insomnia and headaches can be attributed to the head injury. In addition the plaintiff has approximately a 5% chance to develop epilepsy in his lifetime. In the event that it does, he will be on anti-convulsants for the rest of his life. It must be stated that there is a fairly low percentage of the eventuality of epilepsy.

[9] Nevertheless, he concluded that his ability to compete in the open labour market has been affected by personality changes and short temper. This conclusion is based on his unblemished academic record prior to the accident and the fact that it was an uphill battle to pass grade 12 and the learners driver’s license. Regrettably it is not articulated in the report as to how these are directly linked to his performance in the labour market. Even if they are, the magnitude of the role of these factors is far from being explained either in the report and/or oral evidence.

[10] Drs Pienaar and Rapapali (Clinical Psychologists) assessed the plaintiff, prepared detailed reports and concluded joint minutes.

Both noted that the plaintiff probably sustained a mild concussive type of traumatic brain injury. This resulted in occasional pain, fatigue with changes in physical, emotional and cognitive functioning.[5] They further agreed that his enjoyment of amenities and quality of life has been limited by the injuries he has sustained affecting execution of some physical activities.

[11] Furthermore, Dr Pienaar attributed the loss of concentration to occasional pain, fatigue mood disorders and post-concussion syndrome. She was specific that significant decline in overall neurocognitive functions was not clearly evident. She concluded that such concussive type does not usually have a significant and chronic effect on neurocognitive, executive or intellectual functioning. Importantly, she was of the view that these personality and cognitive symptoms can improve with effective psychiatric and psycholigical treatment. This is an important conclusion demonstrating that with proper intervention the present suffering of the plaintiff can be ameliorated.

[12] In oral evidence she alluded to the strained relationship between the plaintiff and his mother. She also touched on his difficult

background. She stated that the treatment must deal with all the issues as a whole. She confirmed that depression can be treated to a certain degree. Turning to the plaintiff, she testified that he has low intellect. It was possible that he may have had depression but it was not diagnosed.

[13] Me Lusindy van Zyl outlined the basis of her expertise as looking at the function of the person and determining as to how it affected daily life. In particular how the disability and limitations affect his ability to work and why he cannot. In this case, there are many issues impacting on the ability of the plaintiff to sustain life in a proper manner. The most telling conclusion of the occupational therapist is that based on physical, cognitive and physiological limitations the plaintiff is an unequal competitor in the open labour market in comparison to his uninjured peers. She is of the view that the plaintiff may be compromised in his ability to obtain and retain work within a sedentary category. It is worth nothing that the report defers significantly to other experts pertaining to the prognosis of other experts.

[14] Contradicting the clinical psychologist (Dr Pienaar) Charmaine Dicken (the plaintiff’s mother) testified that they enjoyed a cordial relationship with her son prior to the accident. According to her the plaintiff was a great employee at the estate agency where she is also employed. Even up to this stage the employer still require his services. This is an direct contrast to the evidence of the defendant that he had sent out approximately fifty (50) job applications and has received no feedback. Given these glaring contradictions, this witness cannot be considered to be objective. The conclusion is that she is unreliable and her evidence is rejected.

[15] The plaintiff testified that prior to the accident he was a keen rugby player and also participated in athletics. It was his desired goal to become a professional rugby player. This is in contrast to evidence of his mother that he desired to be a pilot or builder. He detailed his injuries which are not in dispute. On his way to recovery he had to learn elementary milestones like walking. The unbearable pain he endured caused him the lapses in concentration leading to despondency in life and its activities. Prior to the accident he had a healthy relationship with other people and was liked by his peers.

[16] The Industrial Psychologist obtained some of the information from Ms. Blerch of Chaz Everett who informed him that the plaintiff could not complete a transaction on his own and he was under performing. He concluded that the career of the plaintiff was severely restricted and could not pursue a career. This is so because given his impairments his opportunities were substantially less as a result of his weak physical capacity. As such he was most likely unemployable in circumstances requiring his physical prowess.

[17] As it is his field to consider the uninjured and injured career path, the plaintiff would have reached his academic plateau of completing grade 12. Therefore the plaintiff would have reached NQF 4 on a Paterson A3 – B3/4 with the annual income ranging from R162 000.00 to R285 000.00. This appears to be the basis upon which the Actuary compiled his report. The worrying factor is that the plaintiff was for some time employed by an estate agency firm and the actual amount he received was substantially less than the aforementioned amount. It will appear that the calculations were postulated from a basis that he was physically incapable to do manual labour and cognitively impaired to function in a rigorous work environment except on a sympathetic basis. This is contrary to medical evidence tendered in this matter. The situation can be ameliorated with effective treatment which can enhance his chances. Moreso he suffered head injuries describes as mild in nature. To that extent, accepting that he suffered debilitating injuries, a higher contingency percentage must be applied.

[18] There is no doubt that the plaintiff was a scholar who had not failed a great until he struggled to complete grade 12 after the accident. It must be noted that he was not an intellectually astute scholar who could have scaled higher heights. He was a keen rugby player. As to whether he could have achieved his dream of becoming a professional rugby player was not supported by any evidence. Given the limited opportunities at his disposal, he would probably have earned income in sedentary or heavy work.

[19] Mr. Coetzer for the plaintiff argued that according to the expert witnesses the plaintiff can no longer do any physical work because he is both cognitively and physically restricted. He submitted that taking the effect of his injuries into account, it was highly unlikely that he will find employment. Therefore, even if he does find one, he will not cope and lose it. In this regard it can be assumed that the plaintiff will not work and earn an income.

[20] I am indebted to both counsel for referring to a number of decided cases which have made the onerous task much lighter. It is apposite to emphasize that the evaluation of the amount to be awarded is an estimation.[6] This is where the Actuary plays a critical role in assisting the court to exercise its discretion about the unknown. It has been repeatedly emphasized that the figures as calculated are not be understood as prescriptive or confining of the assessment in nature.

[21] The value of Actuarial expert opinion in assessing damages was dealt with in Southern Insurance Association limited v Bailey NO[7] as follows:-

“Any enquiry into damages for loss of earning capacity is of its nature speculative … 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 open to it two 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 on 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 lesser extent. But the Court cannot for this reason adopt a non possumus attitude and make no award. … In a case where the Court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, while the result of an actuarial computation may be no more than an ‘informed guess’, it has the advantage of an attempt to ascertain the value of what was lost on a logical basis; whereas the trial Judge’s ‘gut feeling’ (to use the words of appellant’s counsel) as to what is fair and reasonable is nothing more than a blind guess.”

[22] This principle was restated in RAF v Guedes[8] in the following manner:-

“It is trite that a person is entitled to be compensated to the extent that the person's patrimony has been diminished in consequence of another's negligence. Such damages include loss of future earning capacity (see for example President Insurance Co Ltd v Mathews). The calculation of the quantum of a future amount, such as loss of earning capacity, is not, as I have already indicated, a matter of exact mathematical calculation. By its nature, such an enquiry is speculative and a court can therefore only make an estimate of the present value of the loss that is often a very rough estimate (see, for example, Southern Insurance Association Ltd v Bailey NO). The court necessarily exercises a wide discretion when it assesses the quantum of damages due to loss of earning capacity and has a large discretion to award what it considers right. Courts have adopted the approach that, in order to assist in such a calculation, an actuarial computation is a useful basis for establishing the quantum of damages. Even then, the trial Court has a wide discretion to award what it believes is just”

[23] In the actuarial calculation the Actuary had applied twenty (20%) percent contingency in respect of future loss of income. This is higher than the normal percentage of fifteen (15%) percent applied in our courts. Obviously in evaluating the contingencies, positive and negative factors have to be taken into consideration. This will include issues such as periods of unemployment due to illness and time spent recuperating as envisaged by experts, general economic conditions or incapacity.

[24] The experts are ad idem that the injuries have no effect on his life expectancy. There is evidence that the injuries were mild concussive type of brain injury. This type did not have significant and chronic effect on neurocognitive, executive or intellectual function. Importantly, there can be improvement with effective and appropriate treatment.

[25] On the totality of evidence, it is my considered opinion that a higher contingency percentage will be appropriate. In applying the higher contingency percentage the actuary was acknowledging that this is such a matter where the deviation from the normal percentage was applicable. Exercising my discretion, it is my assessment that it is fair to impose a thirty (30%) percent contingency on the future loss of earnings.

[26] It is a long established principle that the onus rest on the plaintiff to prove not only that he has suffered damages but quantum

thereof.[9] This was reiterated by Selikowitz J in Hendricks v President Insurance Co Ltd[10] as follows:-

“I appreciate that in assessing damages in this type of case it is invariably impossible to have resort to precise arithmetical calculations. That notwithstanding, both the fact that damages have been suffered and if so, the quantum of such damages must be proved by the plaintiff who, in order to do so, must establish that after allowing for the costs saved he is still out of pocket.”

[27] The approach in determining the award for damages is a flexible and not adherence to strict rules. This must be done by considering broad generalisation and what I consider fair in all circumstances.[11] I have been referred to comparable awards for general damages to use as a guide in making the determination in this matter. I am alive to the fact that these cases are not always on all fours with the matter on hand.

[28] The one matter that stands out is De Johngh v Du Pisanie N.O.[12] In this matter the high court reduced the award of the court a quo from R400 000.00 to R250 000.00. The present day value is R550 000.00. In that matter the plaintiff had suffered a head injury with accompanying intellectual impairment, change of personality,

behavioural problems, insomnia, lack of logical thinking, impairment of speech and aggression. There were also various orthopaedic

injuries.

[29] Quite correctly counsel for the plaintiff conceded that the injuries sustained in the matter are more serious than those sustained by the plaintiff. It is quite startling that he will still continue to argue that a higher award in the sum of R800 000.00 before apportionment should still be made. It stands to reason that taking this into consideration the extent of the injuries sustained by the plaintiff, a much smaller award is appropriate. An amount of R500 000.00 before apportionment is the appropriate award. This means that the defendant is liable to compensate the plaintiff the sum of R375 000.00.

[30] In the result the following order shall issue:-

30.1 Payment by the Defendant to the Plaintiff in the sum of R3 288 247.00 which amount is compiled as follows:

30.1.1 Past and future loss of income R2 913 247.00

30.1.2 General damages R375 000.00

in the following bank account:

HONEY ATTORNEYS - TRUST ACCOUNT

NEDBANK - MAITLAND STREET BRANCH, BLOEMFONTEIN

BRANCH CODE: 11023400

ACCOUNT NO: 1102475912

REF: DJ JOUBERT/YV/IJ03206

30.2 In the event that the Defendant does not, within 14 (fourteen) court days from the date on which this order is handed down, make payment of the capital amount the Defendant will be liable for the payment of interest on such amount at 9.75%.

30.3 The Defendant pays the Plaintiff's taxed or agreed party and party costs on High Court scale to date of this order, including but not limited to the following:

30.4 The reasonable costs incurred by and on behalf of the Plaintiff in attending the medico legal examination, as schedule by the Defendant, with Dr Z Ndaba (educational psychologist), including fees for travelling time, accommodation and disbursements incurred in such amount as allowed by the taxing master.

30.5 Full reservation fees of the following experts regardless:

30.5.1 Dr A Van Aswegen (Neurosurgeon);

30.5.2 Dr LF Oelofse (Orthopaedic Surgeon);

30.5.3 Dr M Pienaar (Clinical Psychologist);

30.5.4 Ms L van Zyl (Occupational Therapist);

30.5.5 Dr EJ Jacobs (Industrial Psychologist);

30.5.6 Munro Forensic Actuaries.

30.6 Full traveling and accommodation expenses of the following experts:

30.6.1 Dr LF Oelofse (Orthopaedic Surgeon);

30.6.2 Ms L van Zyl (Occupational Therapist);

30.6.3 Dr EJ Jacobs (Industrial Psychologist);

30.6.4 Munro Forensic Actuaries.

30.7 Counsel’s fees.

30.8 In the event that costs are not agreed the Plaintiff agrees as follows:

30.8.1 The Plaintiff shall serve a notice of taxation on the Defendant's attorney of record; and

30.8.2 The Plaintiff shall allow the Defendant fourteen (14) court days to make payment of the taxed costs.

30.9 The establishment of a trust to be known as the “W S Trust” (hereinafter referred to as “the trust”) for the purpose of administrating the award for the benefit of W S with identity number […]87 (hereinafter referred to as “W”).

30.10 The appointment of Ms Anne-Marie Viljoen with identity number […]89, an employee of FNB Fiduciary, situated at First Place Bloemfontein, 1st Floor, No.174 Nelson Mandela Drive, Westdene, Bloemfontein (hereinafter referred to as the “professional trustee”) as trustee of the trust with the power of substitution.

30.11 The trustee will be granted the following powers:

30.11.1 acquire any shares, unit trusts, debentures, stocks, negotiable instruments, mortgage bonds, notarial bonds, securities, certificates and any moveable or immovable property or any incorporeal rights and to invest in such assets and to lend funds to any party or make a deposit or investment with any institution, such investment to be of such nature and on such terms and conditions as the trustee may deem fit;

30.11.2 exchange, replace, re-invest, sell, let, insure, manage, modify, develop, improve, convert to cash or deal in any other manner with any asset which from time to time form part of the trust funds;

30.11.3 borrow money;

30.11.4 pledge any trust assets, to encumber such assets with mortgage bonds or notarial bonds to utilize same as security in any manner whatsoever;

30.11.5 institute of defend any legal proceedings or otherwise to rake any other steps in any court of law or other tribunal and to subject controversies and disagreements to arbitration;

30.11.6 to call up and/or collect any amounts that may from time to time become due to the trust fund;

30.11.7 settle or waive any claim in favour of the trust;

30.11.8 exercise any option and to accept and exercise any rights;

30.11.9 exercise any rights or to incur any obligation in with any shares, stocks, debentures, mortgage bonds or other securities or investments held in this trust;

30.11.10 open accounts at any bank or other financial institution and to manage such accounts and if necessary to overdraw such accounts;

30.11.11 draw any cheque or promissory note, to execute or endorse same;

30.11.12 take advice from any attorney or advocate or any other expert for the account of the relevant trust account;

30.11.13 lodge and prove claims against companies in liquidation or under judicial management and against insolvent or deceased estates;

30.11.14 appoint professional or other persons on a temporary or permanent basis to conduct the whole or any portion of the business of the trust under the supervision of the Trustee or to manage the investment of part or the entirety of the funds of the trust and to remunerate such persons for their services out of the funds of the trust;

30.11.15 form any company and to hold any interest in any company and to form any other trusts, hold an interest in any other trusts or partnership or undertaking for the purposes of this trust or in the interest of any beneficiary;

30.11.16 amalgamate with any other trust with the same or similar aims as this trust;

30.11.17 commence any business or continue such business or to acquire an interest therein and for such purpose to acquire assets or to incur expenses and to partake in the management, supervision and control of any business and to conclude any partnership or joint venture;

30.11.18 accept any disposal in favour of this trust and to comply with any conditions regarding such disposal; and

30.11.19 in general do all things and to sign all documents required to give effect to the aims of this trust.

30.12 That the trustee shall determine procedures to resolve any potential disputes, subject to the review of any decision made in accordance therewith by this Honourable Court.

30.13 That in the event of W’s marriage, his estate be excluded from any community of property.

30.14 The suspension of W’s contingent rights in the event of cession, attachment or insolvency, prior to the distribution or payment thereof by the trustee.

30.15 That the amendment of the trust instrument be subject to the leave of this Honourable Court.

30.16 The termination of the trust upon the death of W, in which event the trust assets shall pass to his estate.

30.17 That the trust property and the administration thereof be subject to an annual audit.

30.18 The powers of the trustee, as set out in paragraphs 6.1 to 6.19 are to be exercised subject to the approval of the Master of the High Court.

30.19 The Master of the High Court has the dissection to be authorized to appoint an alternative person as trustee(s), should the appointed trustee(s) refuse or be unable to fulfill his/her obligations as trustee(s)

30.20 The professional trustee serving as such, either as first trustee, or as additional or succeeding trustee(s) will be exempted from furnishing security to the Master of The High Court, or any other person or body, in terms of the Trust property Control Act 57 of 1988, or in terms of any other statutory provision, for the proper performance of their duties as trustee(s).

30.21 The Defendant pays the costs of the appointment of the trustee(s) as well as the costs of the administration of the estate of W by the Trustee(s) at each financial year end and subject to section 84 of the Administration of Estates Act, Act 66 of 1965.

­­______

M. A. MATHEBULA, J

On behalf of Plaintiff: Adv. C. Coetzer

Instructed by: Honey Attorneys

Bloemfontein

On behalf of Defendant: Adv. K. Naidoo

Instructed by: Maduba Attorneys

[1] Page 305 of the Expert Notices Bundle – Letter from HPCSA dated 16 January 2019

[2] Page 113 - 160 of the Expert Notices Bundle

[3] Page 322 - 340 of the Expert Notices Bundle

[4] Page 13 - 21.15 of the Expert Notices Bundle

[5] Page 384 of the Expert Notices Bundle

[6] MS v Road Accident Fund 2019 (3) All SA 626 (G) are para 36

[7] 1984 (1) SA 98 (A) at 113 G – 114 E

[8] 2006 (5) SA 583 (SCA) at para 8

[9] Erasmus v Davis 1969 (2) SA 1 (A) at 9 E

[10] 1993 (3) SA 158 (C) at 163 E - F

[11] Sandler v Wholesale Coal Suppliers 1941 AD 194 at 199

[12] 2004 (2) All SA 565 (SCA)