JUDGMENT. numbers DRF 631 EC and the insured vehicle registered VHC 667 GP was driven by

Transcription

1 1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE, GRAHAMSTOWN Case no: 2802/2010 Date heard: Date delivered: In the matter between: SIYANDA BULELANI MAJOLA Plaintiff vs ROAD ACCIDENT FUND Defendant JUDGMENT TSHIKI J: A) INTRODUCTION [1] This is an action for payment of damages resulting from a motor vehicle accident on 8 th July 2007 at or near the intersection between the road from Grahamstown to Port Alfred and the road from Port Alfred to East London. The plaintiff herein was a passenger in the other vehicle with registration letters and numbers DRF 631 EC and the insured vehicle registered VHC 667 GP was driven by Mr Allister Majola. Plaintiff is claiming a total sum of R inclusive of special and general damages. [2] The plaintiff was 20 years one month and 11 days at the time of the accident and was an electrical engineering student, studying towards his N2, a diploma in the field of electrical engineering. According to the plaintiff he would have completed his N4 diploma in electrical engineering and would have passed his trade test in Therefore, he would have commenced employment as an electrician on Paterson C2

2 level in In 2022 he would have been promoted to senior electrician on Paterson C3 level. In 2032 he would have been promoted to either an electrical foreman/supervisor/manager on Paterson C4 level, and in 2042 he would have been promoted to Paterson C5 level as manager where he would have remained until retirement at age 65. [3] Alternative to the above work scenario and owing to the collision plaintiff would no longer be able to work in the electrical engineering field, and would have to change his course of study to the information technology field. [4] On the date of trial Mr Niekerk appeared for the plaintiff and Mr Jooste represented the defendant. [5] At the inception of the trial, I was advised by both counsel that defendant has conceded the merits and that all other issues have been settled and the only issues left being general damages and loss of earning capacity. Defendant, therefore, has agreed to make an undertaking in terms of section 17 (4) of the Road Accident Fund Act 56 of [7] An Actuarial Report prepared by Nilen Kambaran was handed up as exhibit A as well as a joint Rule 37 minute dated 4 November 2011 was received and is now marked as exhibit B. The joint Rule 37 minute confirms that Dr Peter Whitehead as well as Dr Karen Piro, industrial psychologists for both plaintiff and defendant respectively, have prepared and agreed on the contents of the calculation reflected on table I annexed to the minute. It has been signed by both industrial

3 3 psychologists. Based on this calculation reflected in table I above, Mr Alex Munro an actuary has calculated the total loss of income of the plaintiff and arrived at the total amount of R [8] However, during the trial Mr Jooste, to my dismay, informed the Court that the defendant is not bound by the joint agreement by industrial psychologists. This is so notwithstanding that one of the two industrial psychologists, Dr Karen Piro was instructed by the defendant to deal specifically with the pre- and post-morbid working ability of the plaintiff. No valid basis was, however, advanced for this rather belated disagreement more so that there has been no other contrary report prepared by defendant. In any event, the defendant does not deny the correctness of the calculation by the industrial psychologists save to deny liability for the amount claimed. I must say though that Courts do not possess special skills on the issues like these contained in annexure A and B and they rely almost entirely on the assistance by the experts. B) EVIDENCE [9] The first witness Ms Ansie van Zyl, an occupational therapist, was called by the plaintiff. She referred to her report which appears on page 78 of the bundle of Court papers. She then made reference to her report. She emphasized that the plaintiff could not be able to lift his right arm but can use his left arm. His right arm has a peculiar appearance and is so stiff that he finds difficulty in, for instance, taking off his shirt. There is virtually no active movement in the right shoulder. He is not able to lift or depress his right shoulder but can only bend the elbow in a position where the influence of gravity is excluded. Straightening of the elbow is stronger but

4 not at full 515 Oxford scale. And that phonation is stronger than supination in the forearm. [10] There is patchy loss of sensation in the right arm and hand with tactile sensation less acute. Sensation seems to be protective and he does not report instances of burning with hot water or injuring the right arm and hand without being aware of it. More to the above appears in the witness s medico-legal report by the witness. [11] Of significance is that the plaintiff will not be able to drive a standard motor vehicle and will require an adapted vehicle. He will not be able to hold and turn the steering wheel with his right hand arm. Holding the steering wheel with his right arm while changing gears with the left arm is not possible. He will benefit from a vehicle with automatic transmission as well as an adaption to the steering wheel to allow for turning with the left hand only. [12] The plaintiff will not be able to manage the physical requirements of sign writing or electrical engineering due to the injury to the right arm. His ambition to study Information Technology (IT) is a possibility though he will also require adaptions to enable him to manage the physical requirements of IT. He will only be able to work as an end user, performing data capturing etc and will not be able to manage the physical work on the hardware at all. In conclusion, the witness suggests that plaintiff will benefit from a custom made solution to provide support for the right arm and enable use of the right hand. Therefore, his production levels will always be affected by pain and a slower right hand.

5 5 [13] However, plaintiff will benefit from the (10) sessions of intensive physiotherapy initially to manage the pain in the shoulder. He will require a maintenance programme for the rest of his life. [14] Plaintiff, therefore, has had a significant loss in terms of amenities. He has not been able to complete his studies or obtain work and has been struggling financially. The same holds true with his physical requirements of signiting or electrical engineering which he will not be able to manage to achieve. He will, therefore, never be able to work in the field of his choice and training and should seriously consider alternative training and consequently alternative employment. [15] During cross-examination by Mr Jooste the witness conceded that plaintiff can still write if one has regard to his motive function of his hand. He can also move his index finger to enable him to type using a computer. His right arm would be supported. The witness conceded that in order to achieve other qualifications he would have to extend his studies by doing additional courses. The witness confirmed and emphasized that it is difficult to find employment for the range of people who are in the same circumstances as the plaintiff. This is so especially that he only attained a grade 10 qualification. The witness testified that it is difficult to find employment for people with injuries as those of the plaintiff. His field for looking for work has been severely narrowed. The plaintiff is also impaired to be able to do practical things. He is even slow in writing as a consequence of his injuries. [16] The next witness was Peter Whitehead who is an industrial psychologist and is in private practice. Although this witness was called to testify both parties had

6 earlier agreed in a Rule 37 conference that a joint minute was compiled by the plaintiff s industrial psychologist, the witness Dr Peter Whitehead, and defendant s industrial psychologist Dr Karen Piro on 27 October Both industrial psychologists have agreed that it would be fair to apply a contingency deduction of 40% to income, having regard to the collision in respect of scenario 1. Both parties have agreed that the agreement which was jointly minuted be handed in Court though defendant indicated it was not bound by that agreement. [17] I must say though that I do not understand the line of approach by defendant. When the parties professional witnesses who specialise on a field in which both parties are not familiar can, without reasons advanced, elect not to be bound by the joint minute. I cannot understand why and on what basis defendant refuses to be bound by the joint reports compiled with its consent. If not bound by it why agree that it be handed to Court. Having been handed to Court by consent on what basis could it not bind the parties? [18] In any event there is no reason advanced why the defendant cannot be bound by a report whose contents have not been challenged. Mr Whitehead read the relevant contents of his report in particular pages 122, 124, 133 and 149. [19] His evidence is that plaintiff would have to compete with normal people in order to get employment and this appears to be a problem for him to find a job. This is so although all companies are obliged to have disability requirements. When they worked on the report it was on the basis that after the accident plaintiff would not necessarily complete a diploma but a certificate. Therefore, his chances of getting a

7 7 descent job have been impacted by about 60%. And that it would be a different case if plaintiff had obtained N6 on IT which is equal to a matric pass. [20] Mr Jooste cross-examined the witness and the latter conceded that he was speculating on what would be the plaintiff s cognitive possibilities. He conceded further that plaintiff would, of primary importance, be assisted to achieve the best out of him. He cannot simply sit at home for the rest of his life. According to the witness IT is more theoretical than say electricity and the latter would not suit the plaintiff s abilities after the accident. The witness testified that 5 years would be a little short period to expect the plaintiff to achieve a qualification in N2-N3 level and that in order to be in par with an electrician plaintiff would have to achieve N3 which can only be achievable after a period not less than five years. All his ability to achieve that had been taken away by the injuries sustained in the accident. The witness then settled at 8 years to go by before the plaintiff can achieve the status of a diploma qualification equivalent. [21] The witness was then questioned about their joint reports which led to the compilation of the Actuarial Report exhibit A which includes the calculation of the loss of earnings. An amendment was, therefore, granted to have the figure for loss of earnings capacity at R The amended particulars of claim were, therefore, accepted. C) REASONS FOR JUDGMENT [22] No evidence was led on behalf of the defendant and, therefore, both cases were closed.

8 [23] The only issues to be decided are general damages and loss of earning capacity. It seems to me that exhibit A will provide a source of reference on the issue of loss of earning capacity. [24] During argument Mr Niekerk for the plaintiff submitted that having had regard to the background, the broad spectrum of general damages a sum of R400- R for general damages would be reasonable and justifiable. [25] On the question of loss of earning capacity, he submitted that a contingency deduction of 15% should be appropriate. He then suggested a total sum of R less 40% for loss of earning capacity deduction and totalling to R and then deduct 20% for contingencies. This will then result to a figure of R the amount suggested and recommended in the calculation by actuaries Alex Munro the plaintiff s actuaries which calculation is based onthe information in exhibit A. [26] Mr Jooste has submitted that a total sum of R for loss of earning capacity and R for general damages be allowed. He argued further that 15% deduction on contingency yet there is an uninjured 60% would be absurd. He also criticized the plaintiff for not giving evidence so as to take the Court into his confidence as well as for clarification of other unclear issues. In my view, there is no basis for the suggested R as against the amount R which is based on the actuarial calculation. I am also of the view that 20% contingency deduction would be just.

9 9 [27] It is trite law that a Court should compensate an injured plaintiff in a fair manner depending on the circumstances of the particular case. [28] I must say though that on the question of general damages both parties have suggested different amounts which are not very far from the other. I have also considered all the relevant factors inclusive of the injuries sustained by the plaintiff and I am of the view that the main disabilities of the plaintiff are those which have been described in the medico-legal examination reports. There has even been no dispute about them. Plaintiff sustained a minor head injury, a severe traction type brachial plexus injury to the right upper limb. In my view, this is the major serious injury which, according to the reports and witnesses, have to some extent incapacitated the plaintiff. Before the accident he had no deformity on his body. Plaintiff was seen by the orthopaedic surgeon (Dr Ngcelwane) after a few days in Port Elizabeth who diagnosed the injury on his right arm. He referred the patient to an upper limb specialist in Cape Town for further surgical management. He was seen by Dr Solomon in a Cape Town private hospital and underwent urgent CT myelogram examination of the cervical spine, which revealed signs of partial root avulsions of C5, C6, C7 and C8. Dr Solomons also noted a floppy shoulder and elbow with no significant active muscle activity in these joints and he also indicated that there was good range of active movement present in the right wrist and hand. Dr Solomons suggested that plaintiff should come back after two months to see if any neurologic recovery occurs in that period. The doctor had in mind the possibility of performance on a nerve transfer type procedure to improve the elbow function in future. For unknown reasons plaintiff, who did not testify, never went back for the follow up review and further treatment by Dr Solomons.

10 [29] When considering the assessment and award of general damages which comprises pain and suffering disfigurement, permanent disability and loss of amenities of life a trial court, which has to consider all the facts and circumstances of the particular case has a wide discretion towards what it considers to be a fair and adequate compensation to the injured party 1. It is also useful to have regard to the awards in previous similar cases. However, in Marunga 2 case it was held that there was no hard and fast rule of general application requiring a trial court or a court of appeal to consider past awards. This is so for the reason that It would be difficult to find a case on all fours with the one being heard. Nevertheless, said the learned Judge (Navsa JA), that awards in decided cases might be of some use and guidance 3. [30] In the Protea Assurance Co Ltd v Lamb supra 4 Potgieter JA remarked as follows at 535H-536A: The above quoted passages from decisions of this Court indicate that, to the limited extent and subject to the qualifications therein set forth, the trial Court or the Court of Appeal, as the case may be, may pay regard to comparable cases. It should be emphasized, 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 enquiry as to become a letter upon the Court s general discretion in such matter. Comparable cases, when available, should rather be used to afford some guidance, in a 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 1 Road Accident Fund v M<arunga 2003 (5) SA 169 (SCA) 2 fn 1 supra at 169 para 24 pernavsa JA 3 Muranga case at p 169 para 24 G-H. See also Protea Assurance Co Ltd vs Lamb 1971 (1) SA 530 at fn 3 supra

11 11 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 5. [31] I have already analysed the injuries sustained by plaintiff as well as the amounts suggested by counsel for both parties. I am of the view that both counsel have assisted the Court as far as they could. Having had regard to the circumstances of this case taken together in totality, I am of the view that an award of R for general damages is a realistic and just award. [32] Having regard to the loss of earning capacity, I have been assisted by both parties in that both have agreed to the actuarial award based on the agreement by both Industrial psychologists of both parties. Defendant has not challenged the uninjured percentage of 60% which will be considered having regard to the collision in respect of scenario 1. Defendant admits the correctness of the actuarial assumptions used by Mr Munro. However, no agreement as to the contingency deduction to be applied to income, by the parties. [33] Mr Jooste acting on behalf of the defendant, refused to rely on the actuarial calculation. Accordingly, defendant is refusing to be bound by its own industrial psychologist. [34] I must say though that the Courts are not specialists on their own in the assessment and calculation of pre- and post- morbid earning capacity. They rely almost entirely on the assessment and calculation made by the specialist. There is 5 At p 536A-B

12 no tangible reason given as to the calculation by the specialist should not be accepted 6. Given the fact that both industrial psychologists of the parties have come to one agreement suggest to me that the parties have no objection to the agreement and consequently to the award to be made based on the report of the industrial psychologists which resulted in the calculation by the actuaries. I have also not been convinced that the calculation has been incorrectly made. A Court s approach to expert testimony and or calculation was clearly formulated in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 7 as follows: What is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the decision of the House of Lords in the medical negligence case of Bolitho v City and Hackney Health Authority [1998] AC 232 (HL(E)). With the relevant dicta in the speech of Lord Browne-Wilkinson we respectful agree...the Court must be satisfied that such opinion has a logical basis, in other words that the expert has considered comparative risks and benefits and has reached a defensible conclusion. [35] To me it does not appear that there has been any dispute about the correct amount calculated and determined by the actuaries Alex Munro. I have no reason to reject it despite the defendant s refusal to abide by such assessment and calculation. I accept the figures reflected in scenario 1 of the Appendix on page 153 of the record. It shows that the pre-morbid past and future of plaintiff amount to R The pre-morbid earnings are R , less the 40% contingency deduction of R to make the total sum of R Having deducted the 20% contingency, the total amount of the plaintiff s diminished earning capacity is R I have considered plaintiff s age at the time of accident which was 20 years, his young age giving him more years to earn a good living had he not been 6 See Prinsloo v Road Accident Fund 2009 (5) SA 406 (SECLD) (3) SA 1188 (SCA) also at [2002] 1 ALL SA 384

13 13 injured. He is now about 25 years old and is still young. I am, therefore, of the view that in view of the plaintiff s age a 20% deduction for contingencies should be just in the circumstances. [36] In the result therefore the following orders will issue: 1. The defendant shall pay to the plaintiff the sum of R (a) Defendant shall by to plaintiff the sum of R for general damages. 2. The defendant shall pay the aforesaid amount into the trust account of the plaintiff s attorneys of record within 14 days of the date of this order, failing which interest shall run on the capital at the rate of 15.5% per annum from due date until date of payment. 3. The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, NO. 56 of 1996, to pay to the plaintiff the costs of future accommodation in a hospital or nursing home, or the treatment of, or the rendering of a service to, or the supplying of goods to the plaintiff, as a result of the injuries sustained by him in the motor vehicle collision which occurred on 8 July 2007 on the road between Grahamstown and Port Alfred, and the sequelae thereof, after the costs have been incurred upon proof thereof. 4. The defendant shall pay the plaintiff s taxed party and party costs, such costs to include the reasonable and necessary qualifying, travelling and appearance expenses, if any, of the following expert witnesses: 4.1 Dr B L Mackenzie; 4.2 Ansie van Zyl; 4.3 Ilonka Wessels;

14 4.4 Dr Roger Keeley; 4.5 Dr Peter Whitehead; and 4.6 Alex Munro 5. The defendant shall be liable for interest on the taxed costs at the legal rate of 15.5% per annum from 14 days after allocator to date of payment. P.W. TSHIKI JUDGE OF THE HIGH COURT Counsel for the plaintiff : Adv Niekerk Instructed by : Brown Braude & Vlok c/o Whitesides attorneys GRAHAMSTOWN Counsel for the defendant : Adv Jooste Instructed by : Karsans Inc c/o NN Dullabh Attorneys GRAHAMSTOWN