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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case no: 2159/2012

Date heard: 7 Aug 2013

Date delivered:

In the matter between

XOLANI NDOKWENI .....................................................................................Plaintiff

vs

ROAD ACCIDENT FUND ..........................................................................Defendant

JUDGMENT

PICKERING J:

On 20 August 2007, and on the R62 road in the vicinity of Joubertina, a collision occurred between a motor vehicle with registration letters and number CVP 936 EC and a motor vehicle with registration letters and numbers CVT 297 EC. At the time of the collision the plaintiff was a passenger in motor vehicle CVP 936 EC.

In consequence of the collision plaintiff suffered severe bodily injuries including:

“1. A serious diffuse brain injury;

2. A fracture of the left femur;

3. A fracture of the anterior aspect of the C1 vertebra;

4. A fracture of the left clavicle;

5. A deep degloving laceration on the back of the head;

6. Lacerations to the face.”

Defendant has conceded the merits of the matter and accordingly the only issue for decision at the trial was that of the quantum of plaintiff’s damages.

In this regard the parties are in agreement as to the amount of plaintiff’s past medical expenses in the sum of R372 638,68. They are further agreed that a 5% contingency deduction should be applied in respect of plaintiff’s past loss of earnings of R648 943,00, as actuarially calculated, together with a deduction of R20 760,00 in respect of a disability grant received by plaintiff. The total agreed amount of plaintiff’s past loss of earnings is therefore R614 260,85.

The parties are further in agreement with the actuarial calculation of plaintiff’s future loss of earnings in the sum of R3 469 080,00, the only issue in this regard being the percentage of the contingency deduction to be applied thereto.

The remaining issue relates to the quantum of plaintiff’s general damages.

At the outset of the trial a number of medico-legal reports by various experts were handed into Court by consent. The refrain running throughout the various reports is how extremely severe plaintiff’s injuries were. Dr. McKenzie, an orthopaedic surgeon, states that plaintiff’s musculo-skeleton injuries were very severe and extensive and a major contributing factor to his invalidism. Dr. Keeley, a neurosurgeon, states that from the time of the accident plaintiff “has been physically and intellectually seriously disabled. He is an invalid and cannot live independently. This will be the case for the rest of his life. No matter what surgery he undergoes to his left hip he will never walk independently again, pain will trouble him to a varying extent and he will need to undergo very painful orthopaedic procedures.”

In his very helpful heads of argument, Mr. Schoeman, who appeared for plaintiff, correctly summarised the sequelae of plaintiff’s aforementioned injuries, which summary I freely paraphrase hereunder. Plaintiff was hospitalised after the accident for more than four months. He underwent a reduction and external stabilisation of his left femur. He also underwent an operation to re-align his femur and a later operation to remove the external fixatives. He underwent an open reduction and internal stabilisation of the fracture of his left clavicle. Dr. Kleyn, a maxillo-facial surgeon, carried out a right condylectomy and a coronidectomy. Plaintiff is now dependent on a pulpit walker for all ambulation and has received a shoe raise on the left foot inasmuch as his left leg is 8cm shorter than his right leg. He has limited flexion on his left knee and requires help putting on trousers and footwear. As a result of osteo-necrosis his hipjoint has been destroyed. There is furthermore also evidence of chronic osteomyelitis. The head injury resulted in fall-out in the executive function domain, his complex attention and working memory domain, as well as his short-term delayed recall domain. He experiences moodiness and anger outbursts and has a changed personality. It is accepted that he has insight into his condition which makes his situation more unbearable. It is furthermore anticipated that he has reached his maximum medical improvement and that he will require peer support and supervision for the rest of his life.

FUTURE LOSS OF INCOME

A joint minute prepared by plaintiff’s industrial psychologist, Mr. de Kock, and defendant’s industrial psychologist, Ms. Grove, was handed into Court. In addition Ms. Grove testified on behalf of defendant.

Ms. Grove stated that she interviewed plaintiff on 5 June 2013. He was walking with the aid of a walking ring and raised shoe. She stated that plaintiff had great difficulty in walking. He moved very slowly, gripping “fiercely” onto the walking ring.

Plaintiff has a senior certificate but, according to Ms. Grove, the marks obtained by him indicated that he was of below average ability. He worked initially as a labourer and a security guard before, at the relatively old age of 30 years, applying to join the South African Police Service. At the time of the accident he was aged 30 years and 10 months and had been working under a two year contract as a student constable for SAPS since January 2006. His permanent appointment as a constable was subject to the completion by him of the prescribed training, which training has three phases or semesters stretched over the two year period of the contract. Plaintiff had completed semesters one and two successfully and was eight months into his third semester when the collision occurred. It is accepted by the Industrial Psychologists that plaintiff would have been permanently appointed as a constable in SAPS in January 2008 after completion of his training. In their joint minute the Industrial Psychologists state, inter alia, as follows:

“2.7 The period to progress from constable to sergeant as well as from sergeant to warrant officer would, in terms of the new Promotion Policy of the SAPS, be two or four years (subject to a competitive process and depending on his qualification) or seven years in any respective rank (including a period under contract in respect of constable to sergeant), subject to the availability of funds and the member’s suitability for promotion, which includes at least satisfactory performance.

2.8 Theoretically, (using the seven years in a rank indicator, it would have been probable for the plaintiff to have become a sergeant by 2014 (not sufficient funds this year, 2013, according to Colonel Kemp) at the age of 38. He could have been a warrant officer at the age of 45 and could have progressed to more or less a top notch of warrant officer B1 rank or the commencing notch of warrant officer B2 rank before he reached the retirement age of 60 years (again depending on the suitability for promotion, which includes at least a satisfactory performance and availability of funds).”

In her evidence Ms. Grove agreed that the approach adopted by the industrial psychologists in assessing plaintiff’s probable career path, as set out above in paragraph 2.8, was conservative. She stated further that whilst theoretically plaintiff would be eligible for promotion every seven years there could be no guarantee that this would occur because it depended on the requisite funds for such promotions being available. No such promotions occurred last year because of a lack of funds. She was, however, unable to say what the position with regard to funds might be in future.

Both industrial psychologists agreed that plaintiff was now permanently unemployable and, as stated by Ms. Grove, he would at best earn pocket money in a sheltered employment environment.

In the well known case of Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A) Nicholas JA stated, at 113 F that “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.”

At 116G – H, the learned Judge stated as follows:

“Where the method of actuarial computation is adopted, it does not mean that the trial Judge is ‘tied down by inexorable actuarial calculations’. He has ‘a large discretion to award what he considers right’ (per Holmes JA in Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614F). One of the elements in exercising that discretion is the making of a discount for ‘contingencies’ or the ‘vicissitudes of life’. These include such matters as the possibility that the plaintiff may in the result have less than a ‘normal’ expectation of life; and that he may experience periods of unemployment by reason of incapacity due to illness or accident or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case.”

Mr. Schoeman submitted with reference, inter alia, to Hurter v Road Accident Fund, Corbett and Buchanan vol vi A4-12, Torres v Road Accident Fund, Corbett and Buchanan vol vi A4-1, Zarrabi v Road Accident Fund, Corbett and Buchanan vol v B4-231, Mngani v Road Accident Fund, Corbett and Buchanan vol vi B4-41, Hendricks v Minister of Safety and Security, Corbett and Buchanan vol vi A4-34, all of which cases bear some similarity to the present, that no reason existed to depart from what he termed as being the normal contingency deduction of 15%.

Mr. Hugo, who appeared for defendant, submitted that plaintiff’s career progression is not cast in stone and that there were a number of uncertainties, such as the possibility of plaintiff facing disciplinary action and the possibility of there being no funds available in order for plaintiff to achieve his seven yearly promotions. He submitted accordingly that an appropriate contingency deduction would be one of at least 20%.

I have given consideration to those submissions. Whilst plaintiff’s career progression may well not be cast in stone it is given a considerable degree of certainty by virtue of the new promotion policy in terms of which plaintiff would automatically receive promotion to the following rank after the effluxion of seven years. Although there may have been no funds available in 2013 to effect such promotions there is quite simply a dearth of information as to what the position might be in future. Furthermore, as conceded by Ms. Grove, plaintiff’s probable career path has been conservatively assessed.

In my view no good reason exists to depart from the normal deduction of 15%.

The figure of R3 469 080,00 must therefore be reduced by 15%, namely by an amount of R520 362,00, giving a figure of R2 948 718,00.

GENERAL DAMAGES

I turn now to the question of the general damages to be awarded to plaintiff. I have already dealt above with plaintiff’s injuries and the sequelae. It is apparent therefrom that plaintiff’s injuries were of an extremely serious nature and that they have had a devastating effect on his life. Plaintiff is also painfully aware of his situation. It is clear from the medico-legal report that plaintiff’s enjoyment of life has been seriously impaired.

It is trite that in determining an appropriate amount for general damages the Court is called upon to exercise a broad discretion to award what it considers to be fair and adequate compensation. In so doing the Court must consider the broad spectrum of facts and circumstances connected with plaintiff and the injuries suffered by him. In assessing the amount to be awarded to plaintiff I have taken into account the remarks of Navsa JA in Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) as well as the supplementary comments of Brand JA in De Jongh v Du Pisanie N.O. 2005 (5) SA 457 (SCA).

Mr. Schoeman, in submitting that an award of R800 000,00 would be appropriate, referred me to a number of cases concerning similar injuries to those sustained by the plaintiff, namely Taylor v Union and South West Africa Insurance Company Ltd, Corbett and Buchanan vol ii at page 507; Torres v Road Accident Fund supra, Nonkwali v Road Accident Fund, Corbett and Buchanan vol vi J2-27; Hendricks v Minister of Safety and Security, supra; Raupert v Road Accident Fund, Corbett and Buchanan vol vi, A4-52; Kgomo v Road Accident Fund, Corbett and Buchanan vol vi A4-62; Dlamini v Road Accident Fund, Corbett and Buchanan vol vi Aa4-68; Van Zyl N.O. v Road Accident Fund, Corbett and Buchanan vol vi A4-138 and De Hooghe v Road Accident Fund, Corbett and Buchanan vol vi J – I.

In addition to these matters Mr. Hugo referred me to Adlam v Road Accident Fund vol v 2003 Corbett and Buchanan J2. He submitted that an award of R700 000,00 would be appropriate.

I have had regard to the above cases, all of which are comparable to the present matter to a greater or lesser extent.

In my view taking into account all the factors an appropriate award would be one of R800 000,00.

Plaintiff’s total damages are therefore as follows:

“Past medical expenses R 372 638,60

Past Loss of earnings R 614 260,85

Future loss of earnings R2 948 718,00

General Damages R 800 000,00

TOTAL R4 735 617,45

The following order is therefore made.

1. Defendant is ordered to pay to plaintiff the amount of R4 735 617,45 as and for damages together with interest thereon at the legal rate from a date 14 days after date of judgment to date of payment.

2. The defendant will furnish the plaintiff with an undertaking in terms of the provisions of Section 17(4) of the Road Accident Fund Act, Act no 56 of 1996 for the costs of future accommodation of plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the plaintiff after such costs have been incurred and on proof of payment thereof. The aforementioned undertaking will include the costs of a caregiver and in the event of a Curator Bonis being appointed, the costs associated with his appointment and the administration of the estate.

3. The defendant will pay the plaintiff’s costs of suit together with the interest thereon at the legal rate from a date 14 days after taxation to date of payment.

4. The aforementioned costs will include the travelling/reservation/ appearance fees, if any, together with the qualifying fees, if any of the following experts:

   1. Dr. McKenzie, orthopaedic surgeon

   2. Peliwe Mdlokolo, occupational therapist

   3. Gideon de Kock, industrial psychologist

   4. Dr. Visser & Partners, radiologists

   5. Dr. Van Aarde, neurosurgeon

   6. Dr. Keeley, neurosurgeon

   7. Mark Eaton, clinical psychologist

   8. Busi Rungqu, physiotherapist

   9. Ronal Toogood, prosthetist and orthotist

4.10 Wim Loots, actuary

5. The aforementioned costs will furthermore include the travelling and accommodation costs, if any, of plaintiff’s legal representatives attending Court and consultations with the witnesses.

___________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Plaintiff: Adv. Schoeman

Instructed by: Boqwana Ntlabezo Inc., Mr. Armoed

Appearing on behalf of Defendant: Adv. Hugo

Instructed by: Goldberg & Victor Inc., M. Blumenthal

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