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Mlalandle v Road Accident Fund (1496/2007)  ZAECGHC 124 (17 December 2010)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE - GRAHAMSTOWN)
CASE NO: 1496/2007
DATE HEARD: 24-25/11/10, 30/11/10;
DATE DELIVERED: 17/12/10
In the matter between:
NOMAHOMBA PATROLINAH MLALANDLE …...........................................PLAINTIFF
ROAD ACCIDENT FUND ….......................................................................DEFENDANT
The plaintiff, a nurse with a number of years of experience as a midwife, was injured in a motor accident. As a result, she was no longer able to work as a midwife or to moonlight in her spare time (with the permission of her employer). The merits having been conceded by the defendant and the quantum of certain heads of damages having been settled, the only substantive issues to be decided were the quantum of her claim for general damages and for loss of income. As for the former, the court decided that an amount of R325 000.00 was appropriate. As for the latter, after five and 15 percent contingency deductions were made in respect of past and future loss of income respectively, and assuming that the plaintiff would, but for the accident, have been promoted in mid-2012, and now will probably retire at the age of 60 years of age, the court awarded her R1 868 625.00 for loss of income. A total award of R2 234 990.55 was made in favour of the plaintiff.
 On 29 October 2005 the plaintiff was injured when the vehicle in which she was travelling as a passenger was involved in a collision. She testified that she was trapped inside the burning vehicle and that her boyfriend at the time saved her life by pulling her from it. She duly instituted an action for damages against the defendant based on the negligence of the driver of the vehicle who caused the accident.
 The defendant has conceded the merits and this trial concerns quantum only. In a rule 37 conference the plaintiff’s claims for past medical expenses and past hospital expenses were settled in the amounts of R2 966.68 and R38 398.87 respectively and her claim for future medical expenses was settled on the basis of an undertaking in terms of s 17(4) of the Road Accident Fund Act 52 of 1996.
 All that remains for me to decide are the plaintiff’s claims for general damages and for future loss of income as well as issues relating to costs. The defendant has admitted the reports of Dr F.J.D. Steyn, an orthopaedic surgeon, Mr L. Loebenstein, a clinical psychologist, and Ms Ulla Worthmann, an occupational therapist.
[A] THE PLAINTIFF
 The plaintiff was born on 10 October 1959. She grew up and attended school in Qumbu in the Eastern Cape. She left school in 1976 when she fell pregnant but she returned to school a few years later, matriculating in 1982.
 In 1986 she moved to Cape Town where she attended and completed a pupil nursing course in 1987 at the Conradie hospital. She qualified as a staff nurse in 1989. From 1989 to 1990 she worked at the Groote Schuur hospital where she became a sister after completing a bridging course. In 1991 she completed a diploma at the Nico Malan Nursing College qualifying as a midwife in 1992 and being registered as such in 1993.
 From 1993 to 1997 the plaintiff worked as a midwife at the Midwifery and Obstetrics Unit (MOU) in Gugulethu. During 1997 she moved from this MOU to the Mitchell’s Plain MOU where she continued to work as a midwife.
 From 1993 until the accident the plaintiff worked in the labour ward of the MOU concerned. After the accident she was no longer able to perform her duties as a midwife. As a result, she was transferred to the ante-natal clinic of the MOU. In 2009 she took study leave and completed an advanced neo-natal course. Throughout her career as a nurse the plaintiff has worked for the Department of Health of the Western Cape Provincial Government.
 From 2003 the plaintiff had also ‘moonlighted’ through the Albrecht Nursing Agency, with the permission of her employer, and had, through this agency, worked in her spare time at Groote Schuur hospital as a midwife. As a result of the accident she is no longer able to perform this work or, indeed, to moonlight at all.
 The plaintiff has been employed in the nursing profession since 1986. She said that she loved nursing and was passionate about her work. This description is borne out by her qualifications and the substantial number of courses that she has completed over the years. She was described by Dr Johan Lourens, an industrial psychologist and human resources consultant, as a ‘go-getter’. Ms Merlene Graham, the chief personnel officer in the Department of Health of the Western Cape, agreed that the plaintiff was an exceptional person from a professional point of view. Mr Larry Loebenstein, the clinical psychologist, stated in his report that the plaintiff had ‘prior to the accident been an extremely self sufficient individual and was upwardly mobile within the nursing profession’.
[B] THE PLAINTIFF’S INJURIES AND THEIR EFFECTS
 As a result of the accident, the plaintiff suffered a fractured right clavicle, a fracture of the blade of the right scapula, multiple bruises, brachial plexus paralysis in her right hand and the fracture of three of her ribs.
 She was treated initially in the Dordrecht hospital, the accident having occurred in the vicinity of this town. She was treated with analgesic medication, her right arm was immobilised in a sling and she was discharged after a day.
 After her return to Cape Town she was admitted to the Vincent Pallotti hospital for an open reduction and internal fixation of the right clavicle fracture. She spent three days in hospital. She received physiotherapeutic treatment and occupational therapy.
 Despite this, however, she developed contractures of the ligaments of the metacarpo phalangeal joints of the right hand and was unable to flex the fingers of her right hand. This required an operation which was not successful. The surgery that the plaintiff underwent and the physical problems that she experienced both before and after it, resulted in the plaintiff not being able to work for a little over a year. When she returned to work she found that the combination of the shoulder injury and the hand injuries meant that she did not have the physical strength or dexterity to work in the labour ward, hence her move to the ante-natal clinic.
 Dr Steyn described the shoulder injury as severe and, after describing the plaintiff’s injuries, expressed the opinion that ‘only a major impact could have caused such injuries’.
 He said that the plaintiff would have experience severe pain for about three weeks which would then have subsided over the next six to eight weeks. The shoulder operation would have resulted in ‘temporary aggravation of pain for three to four days, whereafter the pain would gradually again have improved’. He was of the view that the hand surgery would have brought with it moderate pain for four to five days.
 The plaintiff confirmed that she had experienced severe pain following the accident caused by the shoulder injury and the broken ribs. She said that she experienced an excruciating burning pain in the right hand, stating that it felt like the inside of her hand was burning. To deal with the pain she took a painkiller every four hours.
 The pain was accompanied by an inability to do everyday activities as mundane as buttering a slice of bread, washing dishes or hanging clothes on a washing line. This and her inability to work in the labour ward, coupled no doubt with a realisation that her disability would be permanent, resulted in the plaintiff suffering from depression. This condition was treated with anti depressant medication.
 As a result of the accident the plaintiff: has difficulty using her right hand and flexing her fingers; is unable to make a fist; is forced to use her left hand predominantly, even though she is right-handed; is, as stated above, unable to work in the labour ward; experiences a constant dull pain in her wrist; experiences pain in her right shoulder in cold weather; is unable to use her right arm for any length of time as it becomes weak and numb; is unable to lift objects of any significant weight; is unable to wash her back; is unable to do her buttons and can only tie her shoe laces with difficulty; is unable to do her house work; cannot do the ironing and, as a result of this and other problems, has had to employ a domestic worker once a week; cannot perform a range of other domestic tasks; is unable to take blood samples from patients or insert drips or catheters; is unable to palpate the abdomen of a patient; is, as stated, unable to work as a midwife and is also unable to work in any other nursing capacity except in the sheltered employment of the ante-natal clinic; and is unable to work in an administrative capacity within the health care sector as she has difficulty writing and working on a computer for long periods of time.
[C] THE ISSUES
 As indicated above, the substantive issues that are outstanding are the quantum of general damages and the quantum of damages for loss of income. In addition, I am required to decide on costs that were reserved when this matter was postponed on a previous occasion and, of course, the costs of the trial.
(a) General Damages
 In determining quantum for general damages, I am called upon to exercise a broad discretion to award what I consider to be fair and adequate compensation. In so doing, I must: consider a broad spectrum of facts and circumstances connected to the plaintiff and the injuries suffered by her, including their nature, permanence, severity and impact on her life; take into account the tendency for awards now to be higher than they once were, as a result of changing values in our society, improvements in the standard of living and the fact that awards have traditionally been lower in this country than in many others; and allow myself to be guided by the broad patterns of awards made by courts in the past.1
 The approach to be taken when comparing awards made in similar cases has been set out as follows by Brand JA in De Jongh v Du Pisanie NO:2
‘Die benadering wat van oudsher deur hierdie hof gevolg word, is egter juis andersom … .Volgens hierdie benadering is die beginsel juis dat die vasstelling van nie-patrimoniële skade in die diskresie van die hof is. By die uitoefening van die hof se diskresie is vergelyking met toekennings in vorige sake ‘n nuttige hulpmiddel omdat dit darem vir die hof die breë parameters oftewel ‘n patroon aandui waarbinne sy toekenning tuisgebring moet word. Dit is ook ‘n nodige riglyn omdat konsekwentheid in toekennings ‘n inherente vereiste van billikheid is. Nietemin bly dit steeds ‘n riglyn. Dit vervang nie die hof se diskresie met ‘n letterknegtige gebondenheid aan die aangepaste waarde van vorige toekennings nie.’
 After having stated that the ‘stygende tendens van toekennings in die onlangse verlede is, soos ek alreeds gesê het, duidelik waarneembaar’, Brand JA proceeded to warn against attempting to ‘factor in’ the tendency with mathematical precision. ‘Op die ou end’, he held, ‘is die tendens maar net nog ‘n oorweging wat die hof geregverdig is om in ag te neem wanneer hy, by die uitoefening van sy diskresie, na vorige toekennings, veral in ouer sake, as riglyn verwys.’3
 I have set out the personal and professional details of the plaintiff. I have also set out in some detail the injuries she suffered as a result of the accident, and the effect that the accident had on her personal and professional life. It is clear that this highly motivated person who has achieved a great deal in her life through hard work and determination has been severely affected by her injuries and their after effects.
 The injuries to her shoulder and hand are permanent in the sense that they have healed to the extent that they will and have no chance of improving. For practical purposes the plaintiff’s right arm is of little use to her, hampering her ability to perform everyday activities and her ability to do the standard work of a midwife working in an MOU or, indeed, the normal day-to-day work of a nurse. Apart from that, the pain that the plaintiff experienced and continues to experience has been significant. The accident and its consequences led the plaintiff to suffer from depression and it is probably testimony to her indomitable spirit that she has largely put that behind her despite the debilitating long-term effects of her injuries.
 I have been referred to a number of cases by both Mr Schoeman, who appeared together with Ms Ayerst for the plaintiff, and Mr Dala, being led by Mr Van Der Linde, who argued this aspect of the case on behalf of the defendant. With one exception – Blyth v Van Den Heever4 -- the injuries to the plaintiffs in these cases were not as severe and debilitating as the injuries suffered by the plaintiff. The awards for general damages in these cases ranged from present day values of R64 000.00 in the case of Mosia v Federated Employers Insurance Co Ltd5 -- the oldest of the cases cited -- to R276 000.00 in the case of Nkosi v Road Accident Fund.6 In my view, the awards in the cases referred to by Mr Dala are on the low side while those referred to by Mr Schoeman, although dealing with injuries that were not as serious as that of the plaintiff, are fairly consistent, display something of a pattern and serve as a rough but useful guide as to a just amount for the plaintiff.
 Bearing in mind the principles I have outlined above, the facts of this case and the broadly comparable cases that I was referred to, I am of the view that an award of R 325 000.00 as general damages is warranted.
(b) Loss of Income
 In Southern Insurance Association Ltd v Bailey NO7 Nicholas JA dealt with how to approach the problem of quantifying a claim for future loss of income (or perhaps more correctly, loss of earning capacity). He said:
‘Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs or oracles. 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.’
 The second method referred to by Nicholas JA is a more rational way of determining damages because ‘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’.8 Where actuarial calculations are relied upon, the judge still retains a discretion in the quantification of damages. In Legal Insurance Company Ltd v Botes9 Holmes JA stated:
‘In assessing the compensation the trial Judge has a large discretion to award what under the circumstances he considers right. He may be guided but is certainly not tied down by inexorable actuarial calculations.’
This passage was specifically cited with approval by Nicholas JA in Southern Insurance Association Ltd v Bailey NO.10
 The plaintiff can no longer do the job she did before the accident and has, in effect, been moved to the ante-natal clinic as a form of sheltered employment. She no longer has any prospect of promotion and can no longer earn extra income through moonlighting. The evidence of Ms Graham was that because of the plaintiff’s transfer to the ante-natal clinic, she would lose the years she spent in the labour ward and have to spend ten years in the ante-natal clinic before being entitled to a grade progression from her present grade of professional nurse grade 1 (speciality nursing) (PNB1) to professional nurse grade 2 (speciality nursing) (PNB2).
 I have been provided with actuarial calculations based on different scenarios. In essence, they differ in respect of the retirement age of the plaintiff and whether it can be assumed that she would have been promoted to the post of Operations Manager of an MOU. What is not in dispute, however, is that she is no longer able to moonlight and so her loss of income in respect of that aspect of her claim is relatively straightforward, the only issue being the percentage of the contingency deduction.
 At the outset it is necessary for me to decide whether I should take into account that the plaintiff would probably have been promoted to the position of Operations Manager (whether in the Western Cape or elsewhere) by 1 July 2012 and whether she is likely to retire, as a result of the accident, at an age lower than the usual retirement age of 65 years. I have been provided with actuarial calculations based on a retirement age of 65, 60 and 55 years, taking into account promotion and leaving promotion out of account. The figures themselves are not in dispute.
 As for the first issue, the plaintiff stated that it was her intention to be appointed as an Operations Manager and, thereafter, a Facility Manager. When asked what she thought her prospects were of being promoted to these positions in due course, she stated: ‘One hundred percent.’ She said too that she had acted as an Operations Manager when the incumbent of the post was on leave. It cannot be gainsaid that if one considers the plaintiff’s work experience, her length of service, her track record of excellent service, her willingness to better her qualifications by attending courses so that she would be able to apply for more senior positions, her determination to achieve in her calling despite adversities, her ambition, her passion for her profession and her leadership qualities, she would have applied for promotion when a post became vacant and most probably would have been promoted.
 I am mindful of the evidence that was tendered to the effect that positions as Operations Managers do not fall vacant very often but I also take into account that the plaintiff’s evidence was that she would have considered taking such a position in a province other than the Western Cape or in the private health care sector, thus expanding the pool of posts that may fall vacant and be available to her. In any event, the relatively small number of such posts that become available will be taken into account when I consider the appropriate contingency deduction.
 As to the second issue, it is apparent that the plaintiff’s passion for her profession would have meant that, but for the accident, she would have worked – and moonlighted – until she had to retire at the age of 65 years. Indeed, she probably would have been able to moonlight even after retirement. Her evidence was that after the accident, despite her love for nursing, she would prefer to retire at 55 years of age if she can because of the pain she experiences and because her injuries impede her performance at work. In the light of the fact that the plaintiff is working in the more sedate environment of the ante-natal clinic where strength and dexterity are not as vital to her work as they were in the labour ward, it cannot be discounted that she may well work to the age of 60 years. In my view, it would be fair for me to make this assumption.
 That leaves the contingency deductions. Mr Schoeman argued that I should accept that the plaintiff would have been promoted to Operations Manager in 2012 but for the accident, take 60 years of age as the plaintiff’s age of retirement, deduct a five percent contingency for past loss of income and 15 percent for future loss of income. In the alternative, he argued that, given the relatively short period of employment left to the plaintiff, if it is to be assumed that she will retire at the age of 60 years of age, I should apply a sliding scale of 0.5 percent per annum to date of retirement as a contingency deduction for future loss of income.11 Mr Van Der Linde, on the other hand, argued for a five percent contingency deduction for past loss of income, a 15 percent contingency deduction for future loss of income and a further 20 percent contingency deduction on the difference between her being promoted in 2012 and not being promoted.
 To commence with Mr Van Der Linde’s argument, I am of the view that the additional 20 percent contingency deduction amounts to a duplication: the possibility that the plaintiff would not have been promoted is a relatively small one given her qualities and her willingness to have looked for higher positions outside the Western Cape and the public health care sector and does not have to be factored in separately. Mr Schoeman’s alternative argument has its attractions but I am of the view that there is no need to resort to a sliding scale in this case: a five percent past loss of income contingency deduction and a 15 percent future loss of income contingency deduction is fair to both sides when working from the assumption that the plaintiff will work until the age of 60 years. These percentage deductions are, furthermore, regarded by Koch as the norm.12
 That being so, I quantify the plaintiff’s claim for loss of income, using the actuarial report of Mary Cartwright Consultants CC dated 26 November 2010, as follows:
Western Cape Health Department
Past loss of income: R 105 700.00 less a five percent deduction:
Future loss of income: R 1 420 600.00 less a 15 percent deduction:
R 1 207 510.00
Albrecht Nursing Agency
Past loss of income: R 231 600.00 less a five percent deduction:
R 220 020.00
Future loss of income: R 400 800.00 less a 15 percent deduction:
R 340 680.00
The total of these amount is R1 868 625.00
(c) Reserved Costs
 When the matter was postponed on 11 November 2009, costs were reserved. It would appear that both parties had been late with the filing of reports of expert witnesses, that an amendment sought by the plaintiff was served a day late and that attempts had been ongoing to settle the matter.
 For some or other reason no agreement concerning a postponement was reached between the parties prior to 11 November 2009 even though it was plain that the matter could not proceed to trial. Instead, the parties spent the day attempting to settle. It was only after an offer had been made and rejected that the parties decided to postpone the matter, with the costs being reserved.
 In these circumstances – where no consideration was given to postponing prior to the day, where the day of trial was used constructively to attempt to settle the matter and where it was agreed to postpone only after settlement negotiations failed – I am of the view that it would be equitable for each party to bear their own wasted costs occasioned by the postponement.
(d) The Costs of the Trial
 It is not in dispute that the defendant should pay the plaintiff’s costs and that the plaintiff is entitled to the costs of two counsel. The only issue that I must decide is whether the costs order should include that the plaintiff is entitled to the costs of travelling, preparation and consultation with the expert witnesses.
 This is occasioned by the fact that it was, in the submission of Mr Schoeman, necessary for counsel and the legal representatives of the plaintiff to consult with their expert witnesses in preparation for trial on quantum because not all of the reports of the expert witnesses had been admitted, and for counsel to travel from Grahamstown and Port Elizabeth to Cape Town to do so. Mr Van Der Linde argued that this issue should be left in the hands of the taxing master and to make such an order would, in fact, usurp the discretion of the taxing master.
 In my view, I can and should make the order that Mr Schoeman seeks. I say this because I am in a position to decide that these costs, in general terms, are reasonable and necessary and that the travelling to Cape Town was prudent in the sense that it would have been less cost effective for the expert witnesses and the plaintiff’s attorney to have travelled from Cape Town to Grahamstown to consult with counsel. It still lies within the discretion of the taxing master to determine the reasonableness of the quantum claimed in costs.
[D] THE ORDER
 For the reasons stated above, it is ordered that the defendant is directed to:
(a) pay the plaintiff damages in the amount of R2 234 990.55 made up as follows:
Past medical expenses: R2 966.68
Past hospital expenses: R38 398.87
General damages: R325 000.00
Loss of income: R1 868 625.00
(b) pay interest on the above amount a tempore morae calculated from 14 days after the date of judgment to the date of payment;
(c) furnish the plaintiff with an undertaking in terms of s 17(4) of the Road Accident Fund Act 56 of 1996 for the costs of the future accommodation of the plaintiff in a hospital or nursing home for treatment or the rendering of a service or the supplying of goods to her after such costs have been incurred and on proof of payment thereof, including the costs of a domestic worker one day per week.
(d) pay the plaintiff’s costs of suit, together with interest thereon at the legal rate from 14 days after taxation to date of payment, such costs to include the costs:
(i) of two counsel;
(ii) the travelling and accommodation costs, if any, of the plaintiff’s legal representatives in respect of attending court and their consultations with witnesses; and
(iii) the travelling, reservation and appearance fees, if any, together with qualifying fees, if any, of the following expert witnesses:
Dr F.J.D. Steyn, orthopaedic surgeon;
Mr L. Loebenstein, clinical psychologist;
Ms U. Worthmann, occupational therapist;
Dr J. Lourens, industrial psychologist and human resources consultant; and
Alex Munro and Mary Cartwright of Mary Cartwright Consultants CC, actuaries.
JUDGE OF THE HIGH COURT
For the plaintiff: Mr N. Schoeman and Ms H. Ayerst, instructed by Wheeldon, Rushmere and Cole, Grahamstown.
For the defendant: Mr H. van der Linde S.C. and Mr I. Dala, instructed by N.N. Dullabh and Co, Grahamstown.
4C and B (Vol III), 38. Corbett and Buchanan The Quantum of Damages in Bodily and Fatal Injury Cases Cape Town, Juta and Co will be referred to as C and B except where, as in volume VI, a special mode of citation has been adopted by the editors.
5C and B (Vol II) 15.
62010 (6J2) QOD 16 (GSJ).
10Note 7, 116G-H.
12The Quantum Yearbook, 2010 Port Elizabeth, Van Zyl Rudd and Associates: 2010, 102.