FORM A
	  FILING SHEET FOR EASTERN CAPE JUDGMENT

								ECJ no: 185

PARTIES:  CHARLES WOOD N.O.(CURATOR AD LITEM FOR JEFFREY MANAUL LOUW) AND THE ROAD ACCIDENT FUND

REFERENCE NUMBERS –
•	Registrar:  EL 344/05; ECD 924/05
•	Magistrate:
•	Supreme Court of appeal/Constitutional Court: HIGH COURT, EAST LONDON LOCAL DIVISION 

DATE OF HEARING:  23 AUGUST 2007 
DATE DELIVERED:    30 AUGUST 2007(ORDER)
			        04 September 2007(REASONS AVAILABE)

JUDGE(S):  E REVELAS

LEGAL REPRESENTATIVES –
Appearances:

•	for the State/Applicant(s)Appellant(s): ADV DE LA HARPE 
•	for the accused/respondent(s): ADV RUGUNANAN

Instructing attorneys:
•	Applicant(s)/Appellant(s):  BAX KAPLAN INC.    
•	Respondent(s):  HART & BEYERS  

CASE INFORMATION –
•	Topic:
•	Keywords:

IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL DIVISION)

					
						Case No:  EL 344/05 
							     ECD 924/05
						Date Heard:  23/08/07
						Date Delivered:  30/08/07(Order) 
						Reasons available:  4/09/07

In the matter between

CHARLES WOOD N.O. 
(CURATOR AD LITEM FOR JEFFREY MANUAL LOUW)         PLAINTIFF 

and 

THE ROAD ACCIDENT FUND					   DEFENDANT 

J U D G M E N T

REVELAS J 

[1]	The plaintiff is Mr Charles Wood, who is the appointed curator ad litem for Mr Jeffrey Manual Louw, who sustained an extremely severe and traumatic brain injury when he was knocked down by a motor vehicle on 27 April 2001, which happened to be his thirty-second birthday.  

[2]	The defendant has conceded the merits of the plaintiff’s claim for damages and has tendered an undertaking as provided for in terms of section 17(4)(a) of Act 56 of 1996, in respect of the plaintiff’s claim for estimated future and related medical expenses, the nature and extent whereof are contained in the medico-legal report dated 2 August 2004.  The defendant has also agreed to pay the fees of the curator bonis appointed for Mr Louw, as well as costs of suit including the costs consequent upon the appointment of a curator bonis, and interest thereon calculated at the applicable legal rate from a date 14 days after taxation to date of payment.  Insofar as accrued and prospective loss of income is concerned, the parties agreed on the amounts as furnished by Mr Gerald Jacobson in his actuarial report, which are R 228 447,00 and R 798 188 respectively.  These two amounts were arrived at without applying any contingencies, the assessment of which was referred to me for determination.  Mr Louw’s disability grant of R 7 680 per annum was also accounted for in the actuary’s report.  

[3]	Consequently, the two issues to be determined in the hearing before me, are the quantification of general damages and the determination of a contingency factor regarding Mr Louw’s accrued and prospective loss of income.  The defendant did not call any witnesses.  Two witnesses testified on behalf of the plaintiff.  

[4]	The first witness called was Mr CM Gerze, the managing member of a close corporation called SIGNPRO, which conducts business as a designer and manufacturer of signs.  Mr Louw was engaged by Mr Gerze since 1996, as an employee and eventually a sign rigger until his accident in April 2001.  According to Mr Gerze, Mr Louw was an enthusiastic employee who enjoyed his job, did not fear heights (a good attribute in a sign rigger) and he was never disciplined.  Mr Louw also had an exemplary attendance record. He further testified that many of his employees were multi-skilled and were required to work on manually operated machinery.  On his unchallenged evidence, SIGNPRO was growing from strength to strength, despite the presence of ten other competitors in East London.  His testimony was that there was no prospect of reconstruction of his business or the spectre of redundancies and retrenchments of some of the employees.  This of course is by no means a situation cast in stone, given the ununionized workplace and the economic vagaries of our times.  It is apposite to mention at this juncture that Mr Louw dropped out of school after grade seven (standard five), and if his services were to be terminated, he would probably have been employed as a manual worker again.  

[5]	The second witness was Dr Robert Campbell, the medical director and principal clinician at the Aurora Hospital in Port Elizabeth, a hospital where patients with spinal chord injuries are treated.  He is a highly qualified physical rehabilitation expert whose medical opinion has been accepted in several cases.  He examined and interviewed Mr Louw (also referred to in this judgment as “the patient”) on two occasions, once on 20 July 2004 and the other on the day before the trial.  He also compiled a medico–legal report, which he explained and amplified in his oral testimony which remained virtually unchallenged during cross-examination.    

BACKGROUND

[6]	After the collision, the unconscious Mr Louw (also referred to in this judgment as “the patient”) was picked up at 18:30 by an ambulance at the scene of the collision. His pulse rate was 95 per minute; his blood pressure 230/130; and his Glasgow Coma Scale recorded at 3/15, which means he was deeply comatose.  He was admitted at Frere Hospital and discharged 55 days later in a wheelchair. Since his discharge the patient has been looked after exclusively by his family as he only has use of his right arm and hand.

[7]	On admission at Frere Hospital, a large haematoma was noted over the left parietal region of the patient’s scalp, with overlying abrasions. A second area of abrasions was noted over the left-hand side of his thorax.  Following an urgent CT scan of the brain at 22:00, his condition was noted as being still “critical” and (?that) he had “brain oedema”.  A half an hour later (at 22:30) his Glasgow Coma Scale was recorded as being 4/15.  At 23:00 he was transferred to the intensive care unit of the hospital, where he was connected to a ventilator, a nasogastric tube and a urinary catheter.  The following day the Glasgow Coma Scale improved to 7/15 on morphine sedation, but it dropped the day thereafter to 4/15.  A history of previous hypertension was also noted.  On the third day of his stay in the hospital his pupils started responding to light and feeding through a tube was commenced.  On the fourth day his posture changed with spastic hypertension of the upper and lower limbs.  He was hyperventilated on the ventilator in order to reduce his carbon dioxide levels to promote lowering of brain pressure.  He was also given an osmotic diuretic in a further effort to reduce the brain oedema.  

[8]	He remained in the intensive care until 12 May 2007 when he was transferred to a general surgical ward.  During his stay in the intensive care unit he developed a chest infection and was treated with an anti-biotic.  His decorticate posture had improved to a decerebrate posture (spastic flexion of the upper limbs with extention of the lower limbs).  His pupils reacted to light, he was weaned off the ventilator, and his Glasgow Coma Scale reached 9/15.

[9]	In the general ward his level of consciousness fluctuated and his blood pressure remained high.  He developed contractures as a result of his posture.  During the period 28 May to 3 June his Glasgow Coma Scale improved to 12/15 and it remained stable.  During the period 18 June to 24 June, it improved to 14/15.  His feeding tube was also removed and a wheelchair was ordered for him.  On 24 June (the 55th day) he was sent home, whereafter he has had no contact with any rehabilitation therapists.  The plaintiff is cognitive of his situation and his frustration initially led him to lash out, by throwing a walking stick (kept next to his bed), at members of his family after his return home from hospital.  

HOME CARE 

[10]	At home the patient is mainly attended to by his mother who has to bath, dress and groom him.  She also changes the nappies he has to wear because he is unable to sit upright on a toilet.  He is however able to control his bladder and he urinates by urinating into a bucket which he is able to hold with his one hand. He can roll himself over in the bed by clutching the bedpost or side with his right hand, but he remains totally dependant on his family if he is transferred from his bed to his wheelchair. He is sometimes pushed into a sunny patch in the yard where he sits for short periods.  

[11]	He is able to eat by himself with his right hand if the food is cut and put before him.  The family’s general practitioner, Dr Chetty visits the patient at home once a month which is source of great comfort to the patient and his mother.  He has not been followed up by any department of the Frere Hospital.  

[12]	His room (one of only three in a house in a house which is over occupied) is very small and looks out on a narrow passage. He has a television in his room. His urine bucket is next to his bed. He has apparently coped with the minimum of assistance and medical support up to this point. He will not survive without the constant care of his mother and family. His mother is also partially disabled as a result of a stroke suffered some years ago and in all probability she will be unable to keep up her constant attending on him. 

CONSEQUENCES OF THE INJURY  

[13] On 10 July 2003, more than two years after his accident, the patient was examined by Mr Theo Berkowitz, an orthopaedic surgeon, whose medico-legal report on the patient was also placed before me.  A summary of the most important aspects of the patient’s physical condition in that report is noted as follows:  
•	The patient’s blood pressure was elevated at 190/130 millimetres mercury.  (This was due to a pre-existing hypertension problem).
•	He had a left-sided spastic hemiplegia.
•	There were severe adduction contractures in his left shoulder and flexion contractures in his left elbow and left hand.
•	The left knee could not be flexed and his right foot was in a fixed equinus deformity at 30 degrees.  
•	There was an identical equinus deformity in the right foot.  

[14]	Dr Campbell also made the aforesaid observations, but further noted limited flexion in the right hip and total inflexibility in the left hip. What the above means in practical terms, is that the patient’s limbs (save for his right arm and part of his right hand) are very rigid and contracted.  Both legs are so rigid and extended so that only the right knee can be moved (and only passively, i.e. by someone else) to the extent of 20 degrees.  The left arm is contracted inwards, close to his body with his hand clenched. The patient’s spasticity is severe. His right hand is also clenched but has some mobility, although its permanently semi-closed position causes the presence of moisture, which has the potential for hygiene related problems.  He has functional movement in the right shoulder, elbow, wrist, hand and fingers.  He has none in any of left limbs.  Although surgical intervention may alleviate the spasticity in his muscles, his disability is permanent. He also has good head and neck control, but his trunk and pelvis control are too poor for normal functioning.  Therefore he is unable to sit effectively.  His swallowing is also abnormal because of some impairment to his upper airway protection.  

[15]	Insofar as the patient’s cognotive functions are concerned, he was able to concentrate for most of the duration of his interview, but his attention did wonder at times.  He was inclined to inappropriate behaviour, such as giggling.  His speech was also poor at times.  There was a mild impairment of language function with restricted vocabulary and perservation.  Dr Campbell also visited the patient before the day of the trial and observed that his speech had deteriorated since the previous interview.  His memory was poor but he was able to recognize some every day items such as pens, books and phones.  He has moderate to severe post-traumatic dementia, but still retains sufficient awareness to appreciate the extent of his suffering.  He knows he has suffered an immense loss. He is able to experience pain and the straightening of his muscles causes him severe pain.   

GENERAL DAMAGES

[16]	Mr De La Harpe, counsel for the plaintiff, argued that the amount of R 1 500 000,00 would be an appropriate award in respect of general damages.  He referred to three comparable cases reported in Corbett & Honey, Quantum of Damages in Bodily and Fatal Injury Cases, in support of his argument.  These cases which are reported in Corbett and Honey op cit Volume V are:  Sgatya v Road Accident Fund (Eastern Cape Division dated 4 July 2001) at A2-1; Cunningham v Road Accident Fund (South East Cape Local Division dated 19 November 2002) at A2-17; and Delport v Road Accident Fund (Transvaal Provincial Division dated 19 November 2003) at A4-1.  These cases dealt with spinal injuries of the utmost severity.  

[17]	In the Sgatya-case, the 29-year-old former school teacher became a permanent tetraplegic as a result of a spinal injury.  He was paralysed from the shoulders downwards with a loss of bowel and bladder function.  He also suffered from depression due to the meaninglessness and purposeless of his life.  His condition was irreversable.  Jennet J awarded the plaintiff R 800 000,00 which in today’s terms would apparently be equal to R 1 200 000,00 (according to Koch’s manual, The Quantum Yearbook).  

[18]	The plaintiff in the Cunningham-case was a 48-year-old fork-lift driver in the forestry whose cervical spine injury also resulted in tetraplegia, with a loss of bowel and bladder function, an inability to turn himself in bed every two hours as required, depression and frequent infections.  His condition was also irreversable.  The award made in this case was R 700 000,00 which would currently translate to an award of R 926 100,00.  

[19]	The patient in the Delport-case was awarded R 1 250 000,00 (in November 2003) for general damages.  That award would equate to R 1 445 000,00 in today’s terms.  She was left without the use of any limbs, except for the very limited use of her left arm and hand, and with a complete inability to speak or move, whilst apart from appreciating her tragic situation she retained a sharpness of mind and sensory function, so that she still fully experienced chronic pain.  She had no control over bowl and bladder functioning.  She also suffered from severe depression because of her completely dysfunctional body.  She was permanently institutionalized, with no hope of improvement. 

[20]	When considering aspects like pain and suffering and loss of amenities of life in order to determine general damages, it is not possible to measure those losses in certain and precisely measured financial terms, by reliance on other cases.  In many of them, the difficulty of doing just that was expressly mentioned.  Jennet J expressed himself in this regard in Sgatya’s case (supra) at A2-6 as follows:  
“There are of course no scales upon which one can weigh things like pain and suffering and amenities of life nor is there a relationship between either of them and money which makes it possible to express them in terms of money with any approach to certainty”.   

[21]	In Cunningham’s case (supra) Pillay J noted at A2-19, that he had “again discovered, it is never easy to establish a proper monetary value to compensate a person in respect of disability and associated suffering”.  

[22]	In relying upon Hully v Cox 1923 AD 234 (at 246), Jennet J in Sgatya at A2-6 suggested that in order to maintain consistency, comparable injuries should be compensated with comparable awards but that each claim should depend on its own facts, and whereas comparisons with other facts may be instructive, they should not be decisive.  

[23]	The expert evidence of Dr Campbell clearly illustrates how tragic the patient’s position was in addition to suffering pain and discomfort.  His situation is comparable to the plight of the patients in the three cases I have been referred to.  I also considered the cases of Steenkamp v Minister of Justice reported in Corbett and Buchanan,  Quantum of Damages in Bodily and Fatal Injury Cases, Vol 1 at 186, where an award of R 25 000,00 was made in 1960, in favour of a twenty-five-year-old tetraplegic male.  In today’s terms his award would equate to approximately R 900 000,00.  The patient in Marine and Trade Insurance Co Ltd v Katz NO (reported in Corbett and Buchanan op cit Vol III at 1) was awarded R 90 000,00 (presently about R 1 400 000,00).  She was a thirty-two-year-old woman who, save for movement of the neck and some “ineffectual movement” of the right hand, was completely paralysed.  

[24]	The plaintiff’s situation is slightly less tragic than the patients in the aforementioned cases, in that he is able to roll himself over in bed and he has maintained bladder and bowel control.  He can also more easily be moved around in a wheel chair.  He is not completely paralysed.  He can clean his face and eat by himself, albeit with assistance.  His spasticity and related pain can also to some extent be alleviated by surgery.  He therefore does not fall within the general damages category of the Delport case which would justify an award in excess of R1,4 million.  He can also speak unlike the patient in Delport’s case.     

[25]	I was also referred to the case of Road Accident Fund v Marunga 2003(5) SA 164 (SCA), which is authority for the approach that all assessments of general damages were historically too low and should be adjusted significantly upward.  The upward tendency, it must be added, is but one of the factors to be considered in the exercise of the Court’s discretion in assessing the amount of general damages. (See De Jongh v Du Pisani NO, Corbett and Honey, op cit Vol V, J2-103 (SCA)), and should only be applied if the facts of the matter warrants such an approach.  In my view there are no facts in this matter to warrant a significant adjustment upwards in comparison with awards made some three and four years ago.  The suggestion in the Marunga case was made in a matter where the plaintiff suffered an injury to his lower back.  Awards in such cases are notoriously varied.  In a case where the patients are suffered the severest spinal or brain injuries, the awards tend to be less varied and always on the upper end of the award continuum.  To depart significantly from the quantification of damages set out in those awards, would be the wrong approach.      

[26]	In my view, an award of R 1 150 000,00 for general damages would be in keeping with awards made for similar injuries, bearing in mind that the patient’s position, even though his loss is immense, is not the worst case scenario imaginable, by comparison to other similar cases.   

LOSS OF INCOME:  CONTINGENCY REDUCTION   

[27]	It is common cause that the patient is unemployable and that his life expectancy is reduced.  Mr Jacobson made his calculations based on a reduction in life expectancy of 25%, in arriving at the figures he did for the loss of income (accrued and prospective loss).  I now proceed to consider what allowances should be made for general contingencies.  The defendant’s counsel, Mr Ruguganan, argued for a reduction of 15%, given the patient’s work environment where he was required to manually operate machinery which allowed for the potential of accidents.  The patient was also required to perform work on elevated areas, particularly because he was not “scared of heights”, an attribute which was particularly admired by Mr Gerze.  The suggested figure for past loss of earnings is based almost entirely on the assumption that the patient would have remained employed by SIGNPRO, or a similar business concern.  In the Sgatya case Jennet J found no reason to make a deduction for unforeseen circumstances of life, of more than 10 per cent.  In this matter, where the patient was not a school teacher, like Sgatya, but a manual labourer, who was naturally more at risk in respect of unforeseen accidents.  I believe a deduction of 12 per cent would meet all the circumstances of this case.

[28]	His future loss of earnings is based on the assumption that the patient would have continued to be in the same type of employment until his retirement.  He then would have earned increases as well.  I must however provide for the ordinary vicissitudes of life and arrive at a percentage which is of necessity rough and ready.  With reference to reductions applied in other cases, I have concluded that 15 per cent is appropriate.  The patient’s prospective loss of income is therefore assessed at R 228 447,00, less 12 per cent, to equal R 201 033,36.   His future loss of income is assessed at R 798 188,00, less 15 per cent, to equal R 678 459,80.  

[29]	All other issues having been agreed upon, the remaining heads of damages are assessed as follows:

General damages for pain
and suffering and loss of
amenities of life		-		R 1 150 000,00
Prospective loss of income	-		R    201 003,36
Future loss of income 		-		R    678 459,80

Total 				-		R 2 029 463,16

[30]	In the result I make the following order.
The defendant is ordered to:
1.	Pay an amount of R 2 029 436,16 to the plaintiff in respect of the patient       Mr RM Louw as damages, as well as interest on the aforesaid amount at the rate of 15,5% from 14 days of judgment to date of payment.

2.	Furnish the plaintiff’s attorneys with an undertaking as provided for in sec 17(4) (a) of Act 56 of 1996, with regard to required future hospitalisation, accommodation in a clinic or nursing home, treatment, rendering of services and the supply of goods consequent upon the injuries suffered by the patient in the motor vehicle collision of 27 April 2001, the particularity, nature and extent whereof, are set out in the medico-legal report of Dr RDD Campbell and dated 2 August 2004.

3.	Pay the costs of suit, including:
	 3.1 the qualifying fees of Dr RDD Campbell; and
             3.2 the fees of the curator ad litem and the curator bonis. 

______________________
E REVELAS
JUDGE OF THE HIGH COURT