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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

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

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

(3)    REVISED

 

CASE NUMBER: 79132/2017

DATE: 15 June 2020

 

FM SIMELANE                                                                                                            Plaintiff

 

V

 
THE ROAD ACCIDENT FUND                                                                                 Defendant

JUDGMENT

MAUBANE AJ

INTRODUCTION

[1]        Plaintiff, a major male person, sued the defendant in respect of damages resulting from injuries which he sustained in a motor vehicle collision occurred on 26^th December 2016 at the R66, Mkhuza Bridge, Madugu, Pongola, KwaZulu-Natal.

[2]          The plaintiff was a passenger at the time of the collision.

[3]          As a result of the collision and the injuries sustained, the plaintiff issued summons and claimed the following against the defendant:

3.1     Future medical expenses:                 R 250 000.00

3.2     Past loss of income:                          R 250 000.00

3.3     Future loss of income capacity:        R1 150 000.00

3.4     General damages:                             R 800 000.00

Total                                                    R2 450 000.00

 

[4]          The court was informed that during the course of time, merits were settled at 100% in favour of the plaintiff's proven or agreed damages.

 

GENERAL DAMAGES

[5]          Injuries sustained:

5.1         a head injury with brain damage;

5.2         a soft tissue injury to the left shoulder;

5.3         a soft tissue injury to the cervical spine;

5.4         a soft tissue injury to his lower spine;

5.5         an injury to the chest, the above-referred injuries are referred to by the plaintiff in his particulars of claim; however, Dr Engelbrecht, an orthopaedic expert who consulted the plaintiff and prepared a medico-legal report, recorded tenderness of chest, left parasternal border, and lumbar spine as injuries sustained by the plaintiff.

 

[6]        The Orthopaedic further stated that the plaintiff was injured on his left shoulder.

[7]        The plaintiff consulted with the following experts, and their reports were accordingly filed at court:

7.1          Dr Smuts (Neurologist);

7.2          Dr Pauw (Clinical Psychologist) ;

7.3          Dr Botha (Maxilla Facial Surgeon);

7.4          Anneke Greef Inc (Occupational Therapist);

7.5          J J Prinsloo & Associates (Industrial Psychologists;)

7.6          Argen Actuarial Solutions (Actuary);

7.7          The defendant did not file any medico-legal report.

 

[8]       It is worth noting that the trial was conducted virtually, resulting from the Judge President's directive that physical contact should be avoided to curb the spread of the corona virus pandemic.

[9]       The plaintiff complied with the directive, and as such, the trial was conducted via Zoom video conference.

[10]     The matter came before court on the 11^th of June 2020 for adjudication of quantum merits, having been previously settled. There was no appearance for the defendant. The plaintiff's counsel was advised by court to ascertain to whether the defendant was aware of the trial date and if so why there was no representation. The matter was stood down until the 15th of June 2020.

[11]       It was clear to the court that the plaintiff was aware that the matter was before court. Of particular importance, a correspondence from Melanie Moodley, a senior handler at the defence's offices dated 11 June 2020 12:19 stated, "This matter is being attended to by Bathabile Khumalo, I have advised the plaintiff's attorney accordingly to communicate with her".

[12]       Having regard to the awareness of the defendant's attorneys and defendant themselves about the trial of the above matter and their absence thereof, the court decided that the plaintiff should proceed to argue his case.

[13]       The defendant did not file any medico-legal report, and the counsel for the plaintiff addressed the court that the plaintiff's medico-legal reports were uncontested and as such would like to address the court without calling any witnesses.

[14]       It is recorded by an Orthopaedic Surgeon that the plaintiff was employed at Mississipi Butchery in New Castle and had six months of service at the time of the accident. The Orthopaedic Surgeon further recorded that the clinical injuries were scanty, but after perusal of relevant documents observed that the plaintiff suffered the following injuries:

14.1      cervical spine;

14.2      thoracic and lumbar spine;

14.3      left upper limb;

14.4      head injury.

 

[15]       Plaintiff was re-assessed by the Orthopaedic Surgeon on the 16th of March 2020, 23 months after the first assessment. During the assessment by the Orthopaedic Surgeon, it was noted that the plaintiff complained of weakness of the left arm, impairment of function of the left shoulder, and finding it difficult to bath or dress himself. He cannot lift nor carry heavy objects, cannot sleep on the left side at night, and cannot perform overhead tasks. During periods of cold weather, symptoms worsen of the neck, chest, as well as lumbar spine.

[16]     An MRI scan, which was performed during his second assessment by the Orthopaedic Surgeon, indicated chronic active C6/C7 radiculopathy as well as low-grade C5 radiculopathy. MRI confirmed C5/C6 focal disc protrusion with stenosis of left neural foramina, also disc protrusion level C3/C4 as well as C4/C5. The Orthopaedic Surgeon further noted that the plaintiff has reached maximum medical impairment. The Orthopaedic Surgeon concluded that the plaintiff has serious long-term impairment or loss of a body function and thereby qualifies under the narrative test.

[17]     It is further noted that besides the Orthopaedic Surgeon, the plaintiff was assessed by the following experts, who made the following observations:

17.1      Dr Smuts (Neurologist): The head injuries sustained, if any, were mild in nature and this seldom leads to long-term brain dysfunction and have no doubt that he was psychologically traumatised and there is residual depression;

17.2      Dr Pauw (Clinical Psychologist): He has symptoms of both depression and post­ traumatic anxiety and continues to experience significant psychological distress related to the accident;

1.7 3   Ms Greet (Occupational Therapist): Noted that plaintiff has impaired use of his left non-dominant upper extremity, which constitutes vulnerability and compromise in his capacity, and more so, sustaining employment;

17.4    Dr Prinsloo (Industrial Psychologist): The plaintiff's competitiveness in the labour market has been materially affected.

 

[18]     The manner of determination of general damages in personal injury cases is trite.

[19]     In determining the quantum of general damages in personal injury cases, the trial court essentially exercises general discretion. De Jongh v Du Pisani N.O.[1] laid down the basic rule in that the award should be fair to both sides; it must give just compensation to the plaintiff, but not pour largesse from the horn of plenty at the defendant's expense.

[20]       General damages is the broad term given to non-pecuniary loss such as pain and suffering, loss of amenities, emotional harm, etc. As pointed out by the court in the case of Hendricks v President lnsurance[2]_, the nature of the damages which are awarded make quantifying the award very difficult.

[21]       The Appellate Division in Sandler v Wholesale Coal Suppliers[3] at 199 stated:

"Though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty."

 

[22]       There is unfortunately no expert that can place an exact value to the above-mentioned losses. The damages that are to be awarded should be assessed by taking into account the age, sex, status, culture, lifestyle, and the nature of the injury suffered as well as having regard to previous awards made for similar injures. Also, other factors which are often taken into account include the degree of pain suffered. The fact that pain is subjective is taken into account, whether further surgery can be expected, whether the plaintiff has debilitating scarring, is unable to fend for him/herself, and has a decreased life expectancy are examples of factors that guide the court. This discretion is not restrained by an inexorable tariff drawn from previous similar awards.

[23]       It is not enough to compare the general nature of injuries. All factors affecting the assessment of damages must be taken into account. Once it is established that the circumstances are sufficiently comparable, then only are comparable cases to be used as a general yardstick to assist the court in arriving at an award. Each case must be adjudicated on its own merits. Van Heerden J in Dikeni v Road Accident Fund[4] stated that:

"Although these cases have been of assistance, it is trite law that each case must be adjudicated upon on its own merits and no one case is factually the same as another ... previous awards only offer guidance in the assessment of general damages."

[24]       Holmes, J (as he then was) stated in Pitt v Economic Insurance Co. Ltd that:

"The court must take care to see that its award is fair to both sides - it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant's expense".

 

[25]       The plaintiff made comparison to several cases of which the court sees no similarities. Of importance, the court noted the referred case of Bester v South African Eagle Insurance Ltd 1974 2 QOD (397) where a 23-year-old female sustained a severe commuted fracture of the right arm immediately above the elbow. The sequelae were 63-degree loss of extension and a 10-degree loss of flexion arm, resulting in a crooked arm with muscular weakness. The court is of the view that these two cases are incomparable in that in the present case, the plaintiff did not suffer any fracture. It is trite law that previous similar cases should be taken into consideration when deciding an award, and each case should be decided on its own merits.

[26]       In Dolamo v Minister of Safety and Security (5657/2011 )[2011) ZAGPPHC 225 (24 April 2015) unreported , Makgoka J said that "the process of comparison is not a meticulous examination of awards and should not interfere upon the court's general discretion".

[27]       The plaintiff made comparison of several other cases of which the court sees no similarities; deciding an award for each case should be decided on its own merits.

[28]       The plaintiff further made comparison to Lee v Raf [201OJ ZAGPPHC 276 and Smith v Raf [2011]ZAGPJHC 203 where the plaintiff suffered a fracture of the elbow, an open wound of the head, multiple bruises on the right knee cap, and was awarded R250 000.00 of which the current value is R401 000.00.

[29]       After having considered the injuries sustained by the plaintiff and previous cases of similar nature, the court is of the view that a fair and reasonable amount for general damages would be R550 000.00.

 

LOSS OF INCOME CAPACITY

[30]       The plaintiff is claiming a total amount of R1 400 000.00 as loss of income.

[31]       The plaintiff, who is currently 37 years of age, was 33 years old at the time of the accident.

[32]       According to the Orthopaedic Surgeon, the plaintiff qualifies under the narrative test.

[33]       The court was informed that the plaintiff's company closed down and the plaintiff is unemployable because of the accident and the injuries suffered.

[34]       The Occupational Therapist opined that the plaintiff presented impairment which is accepted to constitute vulnerability and compromise the plaintiff's capability of securing sustainable employment.

[35]       The Occupational Therapist further opined that the injuries the plaintiff suffered have led to substantive consequences, affecting functioning in his daily life, inclusive of enjoyment and capacity for earning a viable income.

[36]       The Industrial Psychologist opined that the plaintiff's competitiveness in the labour market has been materially affected.

[37]       The plaintiff would retire at the age of 65 years if he was not injured.

[38]       The plaintiff's counsel argued that a pre-morbid of 5% should be applicable, and post-morbid should not be applicable due to the fact that the plaintiff is unemployable.

[39]       The court, given the age of the plaintiff and the fact that he did not return to work due to closure of the place he was employed at and further that the actuary was not furnished with any proof of previous employment, the court should take that into account when deciding the contingency applicable.

[40]       The Clinical Psychologist opined that the plaintiff's neuro-cognitive profile suggests that he would have difficulty in any work setting as a result of the injuries sustained.

[41]       Argen Actuarial Solutions prepared an actuarial report which was filed by the plaintiff.

[42]     The actuary was informed that the plaintiff was employed as a general worker, but no proof was furnished to him. It was reported to him that the plaintiff was earning R67 548.00 per annum.

[43]       The actuary made a recommendation that the plaintiffs pre-morbid be based on R65 590.00 per annum, which represents the Paterson A2/A3 (non-corporate sector: unskilled category).

[44]       No further career progressions were indicated, and it was assumed by the actuary that the plaintiff's income would have received annual increases until retirement at the age of 65 years. The consideration taken by the court should be fair and reasonable. The award made should not be to enrich the injured but to compensate him what it deems he would have earned had the accident not occurred.

[45]       While it is recorded by the plaintiff's medical experts that the plaintiff will incur a loss of earning capacity in future, contingencies should be considered and applied. Contingency deductions allow for the possibility that the plaintiff may have less than normal expectations of life and that he may experience periods of unemployment by reason of incapacity due to illness, accident or labour unrest, or even general economic conditions. Contingencies are arbitrary and also highly subjective, and, in this regard, see Goodall v Insurance Co Ltd[5].

[46]       The underlying rationale is that contingencies allow for general hazards of life such as periods of general unemployment, possible loss of earnings due to illness, savings in relation to travel to and from work now that the accident has somewhat incapacitated or impaired him as well as the risk of future retrenchment. The general vicissitudes of life are taken into consideration when contingencies are considered.

[47]     Both favourable and adverse contingencies must be taken into account. Nicholas JA held, among others, in the Southern Insurance Association v Bailie No[6] that -

"The generalisation that there must be a 'scaling down' for contingencies seems mistaken. All 'contingencies' are not adverse and all 'vicissitudes' are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the buffets and ignore the rewards of fortune?"

[48]      After having considered the actuarial calculations furnished by the plaintiff's actuary, the court is of the view that the following contingencies should be applied:

*           Post pre-morbid less 15%:                          R223 067.20

*           Future pre-morbid less 35%:                      R873 395.90

*           Total loss of earnings:                                 R1 096 463.10

 

As a result, I make an order in terms of the draft order handed in by plaintiff's counsel which I have marked "x" with the proviso that the amount in paragraph 1 thereof should read R1 646 463.10.

 

 

 

M MAUBANE

 ACTING JUDGE OF THE HIGH COURT

 

 

 

Appearances:

Counsel for the Plaintiff:               Adv Spannenburg

Instructed by:                                 Spruyt Inc.

Counsel for the Defendant:           No appearance

Instructed by:                                 No appearance

Dates heard:                                   15 June 2020

Date of Judgment:                         26 June 2020

”X”

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Before the Honourable Acting Judge Maubane on 15 June 2020, held via Zoom

 

Case number: 79132 /2017

 

In the matter between:

 

FM SIMELANE                                                                                            PLAINTIFF

 

and

 

ROAD ACCIDENT FUND                                                                          DEFENDANT

 

DRAFT ORDER

 

AFTER HAVING HEARD COUNSEL, the following default judgement granted:

1.           The merits of the action have previously been disposed of and the Defendant agreed to pay 100% of the Plaintiff's proven or agreed damages.

2.           The Defendant shall pay to the Plaintiff the sum of ONE MILLION SIX HUNDRED AND FOURTY SIC RAND AND FOUR HUNDRED AND SIXTY THREE RAND, in respect of loss of earnings and general damages.

3.           In the event of the aforesaid amount not being paid timeously, the Defendant shall be liable for interest on the amount at the rate of 9.75% per annum, calculated from the 15^th calendar day after the date of this Order to date of payment.

4.           The Defendant shall furnish the Plaintiff with an undertaking in terms of Section 17(4)(a) of Act 56 of 1996 for payment of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him resulting the injuries sustained by the Plaintiff in the motor vehicle accident that occurred on 26 December 2016, to compensate the Plaintiff in respect of the said costs after the costs have been incurred and upon proof thereof limited to 100%.

5.           The Defendant shall pay the Plaintiff's taxed or agreed party and party costs on the High Court scale, subject thereto that:

5.1.    In the event that the costs are not agreed:

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

5.1.2.   The Plaintiff allow defendants 15 (FIFTEEN) Court days from date of allocator to make payment of the taxed costs.

5.1.3.   Should payment not be effected timeously, the Plaintiff will be entitled to recover interest at the rate of 9.75% per annum on the taxed or agreed costs from date of allocator to date of final payment.

5.2.    Such costs shall include but not be limited to:

5.2.1.   The costs incurred in obtaining payment of the amounts mentioned above;

5.2.2.  The costs of and consequent to the employment of Counsel, including counsel's charges in respect of her full day fees for the 11 and 15 June 2020, as well as reasonable preparation for trial and drafting of heads of argument;

5.2.3.     The costs of all medico-legal, radiological, actuarial, pathologist, and addendum reports, if any, obtained by the Plaintiff, as well as such reports furnished to the Defendant and/or its attorneys, as well as all reports in their possession and all reports contained in the Plaintiff's bundles, including, but not limited to the following:

5.2.31.     Dr P Engelbrecht - Orthopaedic surgeon;

5.2.3.2.    Dr JA Smuts, Neurologist;

5.2.3.3.   Dr Pauw - Clinical psychologist;

5.2.3.4.   Dr Botha - Maxilla facial surgeon;

5.23.5.    Anneke Greeff Incorporated - Occupational Therapist;

5.2.3.6.    JJ Prinsloo & Associates - Industrial Psychologist;

5.2.3.7.    Argen Actuarial Solutions - Actuary

 

5.2.4.      The reasonable costs and time spent travelling incurred by and on behalf of the Plaintiff in, as well as the costs consequent to attending the medico-legal examinations of both parties, as well as the translator assisting the experts in communicating with the Plaintiff.

5.2.5.      The costs consequent to the Plaintiff’s trial bundles and witness bundles.

5.2.6.     The cost of holding all pre-trial conferences, as we as round table meetings and judicial case management conferences at court between the legal representatives for both the Plaintiff and the Defendant, including counsel's charges in respect thereof;

5.2.7.     The cost of and consequent to compiling all minutes in respect of pre-trial conferences;

5.2.8.     The reasonable travelling costs and time spent travelling of the Plaintiff, who is hereby declared a necessary witness:

5.29.      The cost of Mr Pesley Maleka who acted as interpreter at the medico legal assessments.

 

6.         The amounts referred to above will be paid to the Plaintiff's attorneys, Spruyt Incorporated , by direct transfer into their trust account, details of which are the following:

Standard Bank

Account number: [….]

Branch code: Hatfield (01 15 45)

REF: SD2941

 

7.           There is no contingency fee agreement between the Plaintiff and Spruyt Incorporated Attorneys.

 

 

 

BY ORDER OF THE REGISTRAR

 

 

 

PLAINTIFF'S ADVOCATE:            ADV C SPANGENBERG

079 507 4819

 

NO APPEARANCE ON BEHALF OF THE DEFENDANT

 

 

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