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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO. 183/2004
In the matter between
THE ROAD ACCIDENT FUND
Appellant
and
PETRUS JACOBUS DELPORT NO
Respondent
___________________________________________________________
CORAM: ZULMAN, VAN HEERDEN et PONNAN JJA
HEARD: 15 FEBRUARY 2005
DELIVERED: 31 MARCH
2005
___________________________________________________________
Summary:
Delict –personal injuries – Quantum of damages – Assessment of
damages for loss of earning capacity and
general damages – appeal court
declining to interfere with awards made by trial
court
___________________________________________________________
JUDGMENT
___________________________________________________________
ZULMAN JA
[1] The respondent is the curator ad litem of Helen van Rooyen (the patient). The patient suffered horrendous permanent injuries in consequence of a motor collision which occurred on 16 January 1997. The respondent instituted an action against the appellant for the recovery of damages suffered by the patient following upon the injuries sustained by her. The Pretoria High Court (Hartzenberg J) awarded damages in the total sum of R3 616 697,57, computed as follows:
Past medical expenses R 525 774,58
Damages for loss of earning capacity R1 840 923,00
General damages for
pain, suffering
and the loss of the amenities of life R1 250 000,00
[2] The
appellant, with the leave of the court below, appeals to this court only
in respect of the awards for loss of earning capacity and general damages,
contending that the order made
by the court below should be set aside and
substituted with awards of R845 212,00 and R800 000,00, respectively. The total
amount
in dispute is thus some R1 445 711,00.
[3] The injuries sustained by the patient that are set out in detail in various medico-legal reports tendered in evidence (including a comprehensive report by a Dr Richard Holmes, a psychologist) are not in dispute. The appellant accepts that those injuries have rendered the patient totally disabled and that, from the date of the collision she has not been - nor will she in the future be - able to earn any income. It further accepts, as held by the court below, that the patient’s earning capacity, subject to an adjustment for contingencies, must be calculated on the basis that in 2003 she had a life expectancy of 22 years.
The patient’s personal and work history
[4] The
patient was born on 4 November 1960 and was thus 36 years old at the time of the
collision. She matriculated in 1977, the
year her first daughter was born. Her
second daughter was born in 1981. Her first marriage, which was not a success,
lasted some
four years from 1982 to 1986. She first worked as a personnel clerk
at a business called Cremart which became part of Genkem in 1985.
She worked
there until 1989 when she obtained a position as a personnel officer at the Rand
Mutual Hospital, where she was responsible
for the administration of
approximately 400 workers. She remained in that position until November 1993
when, together with her present
husband, she began work in a restaurant in
Melville, Johannesburg.
[5] Her second marriage, which commenced in 1988, was
a particularly successful and happy one. Her daughters accepted her husband
as
their father and he regarded them as his own children. In his undisputed
evidence, her husband described the period which he had
spent with the patient,
before the collision, as the best nine years of his life. It is apparent from
the evidence that there was
a very close and loving relationship between them.
They enjoyed a fulfilled and energetic life style. They bicycled and exercised
together, participated (on a competitive level) in Latin-American and ballroom
dancing, and took overseas trips together. Their close
bond extended into the
work place and each manifested a warm enthusiasm for life and work. They enjoyed
a high standard of living
and each complemented the other in the skills that
they brought to the workplace.
[6] According to the evidence of a friend, a
certain Mrs Starck, who was a co-employee at Genkem, the patient then earned
approximately
R3500,00 per month and was an outstanding worker. The personnel
manager at the Rand Mutual Hospital, Mr Richardt, testified that
the patient,
whom he regarded as an excellent worker, earned approximately R4500,00 per month
whilst in the employ of the hospital.
[7] The restaurant, which the patient
subsequently operated together with her husband, in his words ‘as equal
partners’,
could serve 250 persons at any one sitting. It was open
approximately 20 hours a day and was very successful, with a turnover of
approximately R2 million a year. Although they had two managers, the patient was
responsible for numerous administrative tasks, including
the purchasing of
supplies and the maintaining of the books of accounts. She played a key role in
the management and undoubted success
of the restaurant business, displaying at
all times a great capacity for work. The patient’s husband testified that
the patient
drew R6000,00 per month from the business although this was not
reflected on the books of account of the business.
[8] At the end of 1996 the patient and her husband sold their house in Johannesburg for a profit of approximately R2 million. They then purchased a house in Seaview, Port Elizabeth, where they intended to relocate. Their plan was to take an overseas holiday for a few weeks in May/June 1997 and, after their return, to purchase and operate a new business. They had already started investigating various business possibilities. Shortly before the collision, a 20% share in the restaurant business was allocated to the two managers of the business. The remaining 80% was subsequently sold to the two managers for approximately R1,2 million. After the collision the patient’s husband had purchased and operated two restaurants in Port Elizabeth, subsequently selling one of them.
The accident and its sequelae
[9] The patient was rendered
immediately unconscious in consequence of the collision and remained so, without
any sign of movement,
until her arrival at the Kroonvaal Private Hospital later
that same day. The physical injuries suffered by her were a severe head
injury
(in association with a loss of consciousness) and widespread injuries to the
chest, left wrist, pelvis, left thigh and left
lower leg.
[10] At the
Kroonvaal Hospital she required intubation and ventilation. She was admitted to
the intensive care unit on the day of
the collision and in due course various
operative procedures had to be performed on her. On 21 January 2003 she was
transferred to
the Flora Clinic. She was again admitted to the intensive care
unit where her condition was described as ‘critical and
unsatisfactory’.
She still required naso-gastric feeding, intropic support
and ventilation via a tracheostomy. Her Glasgow Coma Scale was recorded
as 6/15.
She remained in the intensive care unit at the clinic until 31 January 1997,
during which time she required several courses
of antibiotics for a chest
infection. She was then transferred to the neurological high care unit where she
remained until her transfer
on 27 February 1997, at her husband’s request,
to the Greenacres Hospital in Port Elizabeth. The patient was subjected to
further
operative procedures before being discharged on 27 May 1997 to her home
in Port Elizabeth, where she remained in the care of her
husband, a full-time
resident enrolled nurse, and a team of care assistants. After three years she
was once again institutionalised
in Port Elizabeth. Since 18 February 2003, the
patient has been in the care of the Lily Kirschman Frail Care Unit in East
London.
Her daughter, Elizabeth Keulder, who testified during the trial, lives
in East London and visits her twice a day.
[11] It is common cause that the
patient is unable to speak; that she has no control over either her bladder or
her bowel and has
been fitted with a catheter which needs to be changed every
four weeks; that she is not able to swallow and is fully on a gastronomy
feeding tube for all her nutritional and fluid needs; that she has little, if
any, movement of the right side of her body and only
very limited control of her
left hand. She still suffers from headaches; abdominal cramps; discomfort of the
bladder; numerous bladder
infections; spastic contractions of the right arm;
intermittent pain of the left hip; and general body stiffness. She, however, has
no significant loss of sensory function. This means that she experiences - but
has no independent means of alleviating – pain
and discomfort (especially
when being handled).
[12] The patient has been rendered patently incapable of
any form of work. In the opinion of Dr Holmes she has suffered ‘an
obliteration of her pre-morbid employment prospects, employability and potential
to derive an income.’ She has been rendered
profoundly disabled, is in
need of twenty-four hour care and is completely dependent on the assistance of
others. She is essentially
confined to her bed. As such she has been denied the
opportunity of any form of social interaction beyond her immediate environment
and does not have any means of mobility.
[13] The patient can now communicate
only through non-verbal facial expression, nodding and shaking her head, and
making use of an
alphabet communication board on which she ‘spells
out’ words using her left hand. Because of her limited control of this
hand, communication with the alphabet board is slow and extremely laborious and
only possible with people who know her very well,
such as her daughter. While
she could benefit from the provision of an assistive/augmentative communication
device, her ability to
communicate will still remain severely compromised. It
should be noted that, despite the fact that the appellant was issued with
a
certificate in terms of s 17(4) of the Road Accident Fund Act 59 of 1996 in
respect of the patient’s accommodation and medical
and hospital expenses,
the appellant’s handling of the matter since the trial has been such (more
about this later) that the
patient has not yet been provided with any of the
assistive devices recommended for her use by the medical and other
experts.
[14] In his report, Dr Holmes describes the patient’s
neuro-psychological and emotional condition in the following
terms:
‘Retention of sharpness of mind (described as “one hundred
percent” by her daughter);
Some loss of memory (for a period in her
life);
Good long-term memory (good recall of previous events);
Ongoing
severe depression;
Feelings of extreme frustration (when being handled,
showered and toileted, etc.);
Ongoing tendency to cry (emotional
lability);
Ongoing good sense of humour (but inability to give expression to
the same);
Having a very active mind (“trapped in her
body”);
No ability to communicate (conventionally, that is) and
An
acute awareness of her situation and limitations resulting in profound emotional
trauma.’
[15] Put simply, the patient is a person with an alert and
active mind trapped in a non-responsive body. She is completely unable
to engage
in the ordinary functions of life. The undisputed evidence is that, before the
collision, she was a happy, dynamic and
active person who enjoyed amenities such
as cycling, competitive dancing and travelling. She is now clearly unable to
participate
in any such activities or indeed to lead anything resembling a
normal life. A video recording was led in evidence depicting her present
condition. Any viewer of that video tape cannot help but be deeply moved by the
graphic way in which her plight is depicted thereon.
In the words of Dr
Holmes:
“The psychological and emotional trauma experienced by her, on an ongoing basis, is profound – almost defying contemplation and appreciation.”
Damages for loss of earning capacity
[16] The appellant
attacks the way in which the court below dealt with the patient’s past
loss of earnings, the contention being
that it was incorrect to find, as the
court below did, that the patient would have entered the employment market some
seven months
before March 1998. In my view this argument was correctly rejected
by Hartzenberg J who found, on the undisputed evidence of the
patient’s
husband as well as her daughter, that she was the type of person who was so
highly motivated and industrious that
she would in all probability have returned
to work during August 1997 shortly after her overseas trip. That was the date
used by
the actuary, Mr Jacobson, in making his calculations.
[17] As regards
the patient’s loss of future earnings, the appellant contended that the
court below erred in employing the fiction
that, had there been no collision,
the patient would have returned to the structured labour market. Hartzenberg J
dealt with this
contention in the following terms:
‘Ek bevind dus dat
die pasiënt ‘n verlies aan verdienste vermoë gehad het.
Vanweë die werklike verloop
van haar beroepsloopbaan, is daar ‘n hele
aantal onsekerhede. Die eiser het om veilig te wees hierdie eis probeer
kwantifiseer
deur die pasiënt se verdienste vermoë in die
gestruktureerde arbeidsmark te bepaal. Ek het reeds aangedui dat ek van mening
is dat dit minder behoort te wees as wat sy waarskynlik sou verdien het deur
saam met haar man besigheid te doen... Die enigste oorblywende
vraag is dan of
die berekening wat namens die pasiënt gebruik is, realisties is of nie. Die
eiser gebruik vanaf 1 Augustus 1997
‘n jaarlikse inkomste van R46 560,00.
Dit is minder as R4 000,00 per maand. Sy het reeds in 1993 R4 500,00
verdien.
Mnr Jacobson, die aktuaris, het vanaf 2003 toegelaat vir inflasie teen
sewe persent per jaar. Hy het egter ook gekapitaliseer teen
tien persent. Hy het
toegegee dat sy inflasiekoers dalk te hoog kan wees maar het aangevoer dat as
dit die geval is, sy kapitalisasiekoers
ook te hoog is. Hy hou vol dat die netto
effek as jy die inflasiekoers en die kapitalisasiekoers teen mekaar opweeg,
redelik en billik
is en op die wyse waarop die getuienis aangebied is, is daar
werklik geen rede om nie daardie getuienis van hom te aanvaar nie. Vanweë
die feit dat daar hier met ‘n fiksie van die gestruktureerde arbeidsmark
gewerk word en vanweë die feit dat die pasiënt
en haar eggenoot hulle
in besigheid sou bevind het, meen ek dat daar groter voorsiening vir
gebreurlikheide toegelaat moet word as
waarvoor Mnr Jacobson toegelaat
het.’
In my view the learned judge was correct in rejecting that
contention. If anything, the assumptions relied on by him redounded to
the
appellant’s benefit. Prior to the collision, the patient had been drawing
approximately R6 000,00 per month from the
restaurant business and
according to the uncontested evidence of her husband, during October 2003 the
restaurant manager employed
by him in his restaurant in Port Elizabeth was
earning, as a salaried employee (working regular hours), R 6 500,00 per month
(plus
certain benefits). When Mr Jacobson’s calculations were put to Dr
Holmes during the trial, the latter’s view was that
they were ‘very,
very conservative...certainly lower than it should be’. In my view the
remaining evidence supports this
view. Moreover, Hartzenberg J made greater
allowance for that fiction than Mr Jacobson did, by increasing the contingency
factor
in respect of both past and future loss of earnings from 5 to 10 percent
and 15 to 20 percent, respectively. I can find no fault
with his approach in
this regard.
[18] The final objection to the assessment by the court below of
the patient’s loss of future earnings was based upon the proposition
that
she would have ceased working at age 55. This contention is belied by the
uncontradicted evidence of the patient’s husband
and daughter that she
would, given her disposition, in all probability have continued working at least
until the age of 65. That,
indeed, was the finding by the court below and there
appears, on all of the available evidence, to be no basis for interfering with
it.
[19] The appellant contends that any amount awarded to the patient for
loss of earning capacity should be reduced in some way because
she will be
confined to an institution for the rest of her life and, accordingly, so the
argument went, her living expenses will
thereby be reduced. The court below
dealt as follows with that contention:
‘Ek wil net op hierdie stadium
meld dat ek definitief verskil van Mnr Delport [counsel for the appellant in the
trial court]
wat aanvoer dat daar op ‘n manier ‘n vermindering van
die pasiënt se skade moet wees omdat sy nou bedgekluister
is en gevolglik
nie meer mooi kan aantrek nie, nie kan reis nie en nie geld kan uitgee op
vermaaklikheid nie. Dit lê nie in
die mond van die persoon wat
verantwoordelik is vir die pasiënt se toestand om ‘n voordeel te wil
beding vir hierdie gevolg
wat myns insiens niks met die delik pleger te doen het
nie.’
[20] It is not necessary to express a view on the correctness or otherwise of the learned judge’s general statement in this regard. This is so as no evidence whatsoever was led by the appellant as to the nature or extent, if any, of such savings. Nor, was this aspect canvassed during the cross-examination of the respondent’s witnesses. In those circumstances, it can hardly be contended that the learned judge erred in not reducing the amount awarded for loss of earning capacity by failing to take into account alleged savings, the existence, nature and extent of which had not even been touched on in the evidence before him.
General damages
[21] I now turn to consider the award of R1
250 000,00 as general damages for pain and suffering and the loss of the
amenities
of life. I refer to what I have stated above in regard to the
patient’s obvious severe pain and suffering and loss of the normal
amenities of life. In addition, the patient has effectively lost her husband as
a result of the collision – he no longer visits
her and is apparently
planning to divorce her. His evidence in this regard was to the effect that,
although he still loves her, his
feelings for her are akin to that felt for a
child and not a spouse. This loss of an exceptionally happy marriage
relationship obviously
severely exacerbates the patient’s psychological
and emotional suffering. This is a case where the patient is acutely aware
of
her pain, discomfort, profound disablement, total dependence upon others and
loss of nearly all the amenities of her pre-collision
life. She has to cope with
that awareness for the rest of her not inconsiderable life span.
[22] It is
trite that an award of general damages, falling as it does within the wide
discretion of the trial court, will not lightly
be interfered with by a court on
appeal. The position is well summarised by HJ Erasmus and JJ
Gauntlett[1] in these terms:
“(a) ...
(b) Where the assessment of the amount of damages is a matter of estimation rather than calculation, the trial court has a wide discretion to award what it in the particular circumstances considers to be fair and adequate compensation.
(c) Where the amount of damages is a matter of estimation and discretion, the appeal court is generally slow to interfere with the award of the trial court - an appellate tribunal cannot simply substitute its own award for that of the trial court. However, once it has concluded that interference is justified in terms of the principles set out in (d) below, the appeal court is entitled and obliged to interfere.
(d) The appeal court will interfere with the award of the trial court:
(i) where there has been an irregularity or misdirection;
(ii) where the appeal court is of the opinion that no sound basis exists for the award made by the trial court;
(iii) where there is a substantial variation or a striking disparity between the award made by the trial court and the award which the appeal court considers ought to have been made. In order to determine whether the award is excessive or inadequate, the appeal court must make its own assessment of damages. If upon comparison with the award made by the trial court there appears to be a “substantial variation” or a “striking disparity”, the appeal court will interfere.’
[23] In my view the
finding of the court below is manifestly free of any misdirection or
irregularity. It carefully considered the
question of general damages and
motivated its conclusion inter alia with reference to the principles enunciated
in Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 (A).
Although the sequelae of the injuries sustained by the patient are more serious
than those in the Katz case, that case is similar in many respects to the
present case. In Katz an award of R90 000,00 was made in respect of
general damages. Translated to the values prevailing at the time of the trial,
the award made in the Katz case is approximately R1 452 000,00,
which is some R200 000,00 higher than that awarded by the court below in this
matter.
Having said this I do not believe that courts should necessarily be
wedded to previous awards, particularly those in which circumstances
may
differ.
[24] The matter was well put by Brand JA in De Jongh v Du Pisanie
NO [2004] 2 All SA 565 (SCA), in the following terms:
‘[64] ... die
vasstelling van nie-patrimoniële skade [is] in die diskresie van die hof.
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.
[65] Die stygende tendens van toekennings in die onlangse verlede is,
soos ek alreeds gesê het, duidelik waarneembaar. Die effek
daarvan is
egter weer eens nie met matematiese presiesheid bepaalbaar nie. Dit is nie seker
presies wanneer die tendens begin het
en wanneer dit sal eindig nie. Dit het bes
moonlik reeds tot ‘n einde gekom. ... As die vorige beslissings wat as
maatstaf
dien reeds met inagneming van die stygende tendens gemaak is, kan dit
nouliks geregverdig word om op grond van dieselfde oorwegings
sonder enige
bykomstige rede, ‘n verdere styging toe te laat. Daarbenewens verg die
tendens klaarblyklik nie die vermenigvuldiging
van vroeëre toekennings met
‘n voorafbepaalde of bepaalbare faktor nie. Op die ou end 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
ouere sake, as riglyn verwys.’
[25] In so far as guidance is to be sought from previous awards and although
the amount of R1 250 000,00, at first blush,
appears high, I certainly
do not regard it as excessive (“buitensporig”) as contended for by
the appellant. Given the
circumstances of this case, in particular the extremely
serious injuries which the patient suffered and their tragic sequelae, I
certainly would have awarded, as general damages, an amount which would not have
differed substantially, if at all, from the amount
awarded by the court below. I
accordingly see no warrant for interfering with the exercise by that court of
its discretion.
The appellant’s conduct after the
trial
[26] Before concluding this judgment I believe that it is
necessary to record what can only be described as deplorable conduct on
the part
of the appellant. Notwithstanding the fact that the appellant conceded that the
patient was entitled to an award of approximately
R1 600 000,00 in respect
of loss of earning capacity and general damages, it made no payments on account
of such award before
December 2004. Judgment was given by the court below in
favour of the respondent on 22 October 2003. Thereafter various attempts
were
made to obtain payment from the appellant of the admitted amounts. Those
attempts were unsuccessful. The respondent was obliged
to bring an application
during August 2004, claiming:
1. An order that the appellant pay for the appointment of the curator ad litem and the curator bonis of the patient as well as the attendance at the trial by the curator.
2. A declaratory order confirming that the appellant was liable for 100% of the past medical costs claimed in terms of the s 17(4) undertaking given by the appellant.
3. Payment of an amount of R1 720 000,00 being partial payment of the loss of earnings and general damages awarded to the respondent.
[27] The application was opposed and an opposing affidavit raising various technical issues was filed. Before the hearing of the matter it was settled by agreement between the parties in the following terms:
1. The appellant conceded liability for the costs of the curator ad litem and curator bonis;
2. The appellant also conceded liability in respect of the payment of 100% of the patient’s past medical costs claimed in terms of the undertaking;
3. It was agreed that the appellant would pay R1,6 million to the respondent pending the appeal to this court, in five monthly instalments of R320 000,00 each.
The agreed instalments of R320 000,00
were paid for the months of December 2004, and January and February
2005.
[28] When the failure of the appellant to make timeous payment of the
non-disputed amounts was put to counsel for the appellant in
this court, he
sought time to obtain proper instructions and to thereafter file a written
response explaining what, on the face of
it, amounted to a shocking breach by
the appellant of its statutory obligations. Subsequently a detailed written
explanation and
apology was filed by the appellant. The appellant apologised
‘without reservation’ for the delay that was caused in making
payments and for any inconvenience and discomfort caused to the patient, her
relatives and any other involved parties. It stated
that the purpose of the
written explanation was aimed not at ‘justifying the conduct of the Road
Accident Fund but ... at placing
facts before the Honourable Court which are
with respect necessary to enable the Honourable Court to fully understand the
circumstances
of the matter.’ In the result the appellant undertook to pay
the balance of the amount of R1 600 000,00 before or
on 28 February
2005; to reconsider the past medical expenses paid in terms of the undertaking
given and to make ‘an adjustment
payment’ before or on the
abovementioned date; and furthermore promptly to pay any further amount
‘that may still be
owing as a result of the imminent judgment’ of
this court inclusive of any relevant costs, if applicable. The respondent was
furnished with a copy of the explanation and apology and accepted the contents
thereof. The respondent furthermore confirmed that
the balance of the amount of
R1,6 million had in fact been paid as undertaken.
[29] The court thanks those representing the appellant for the comprehensive and detailed explanation as well as the promptitude with which it was been furnished. The hope is expressed that there will not be a recurrence of such conduct on the part of the appellant in similar cases in the future.
Conclusion
[30] Reverting to the merits of the matter I am
satisfied, in view of what I have said above, that the appeal is without merit.
Accordingly
the appeal is dismissed with costs, such costs to include the costs
attendant upon the employment by the respondent of two
counsel.
__________________________
R H
ZULMAN
JUDGE OF APPEAL
VAN HEERDEN JA )
PONNAN
JA )CONCUR
[1] In the title on ‘Damages’ 7 Lawsa (reissue) (revised by PJ Visser) para 117 p 89.
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