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[2021] ZAECGHC 72
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Jamieson and Another v Road Accident Fund (2392/2018) [2021] ZAECGHC 72 (20 July 2021)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: 2392/2018
In the matter between:
VUYOKAZI JAMIESON First Plaintiff
KUHLE GONTSHI Second Plaintiff
And
ROAD ACCIDENT FUND Defendant
JUDGMENT
BESHE J:
[1] On the 2 July 2015 at approximately 01h15 and along the N10 road between Cookhouse and Paterson, in the Eastern Cape, a horrific accident occurred. This involved a truck and Mercedes Benz bus in which second plaintiff was being conveyed as a passenger. She was 13 years old at the time. As a result of the collision she sustained severe bodily injuries being the following:
a severe degloving of the left shoulder with associated muscle tissue loss;
an injury to the cervical spine with consequent segmental instability, between C2 and C3, as well as C3 and C4 cervical vertebrae;
a head injury, being a diffuse axonal head injury, moderate brain injury, with left lateral intra-ventricular haemorrhage;
a compound and comminuted open fracture of the proximal numerus;
an abrasive injury of the posterior aspect of the left shoulder, with consequent significant scarring and disfigurement;
a fracture of the right pubic ramus;
multiple rib fractures on the right side, with consequent lung and pulmonary contusion and right pneumothorax;
blunt abdominal trauma;
laceration of the kidney;
burn injuries of the left arm;
an injury of the spleen; and
a wound of the head as well as a laceration of the lip.
[2] An action for damages having been instituted against the defendant in this regard, the defendant admitted being 100% liable for the damages suffered by the plaintiffs as a result of the motor vehicle collision in question. An order was taken by agreement in this regard on the 28 January 2020.
[3] The following heads of damages were further settled between the parties: (I will confine myself to settlement relating to second plaintiff).
Claim for future medical and related expenses.
Entitlement to general damages. The quantification thereof remained in dispute or outstanding as well as the claim for future loss of earnings and or loss of earning capacity.
[4] The determination of these two issues was postponed to the 28 April 2021 by agreement between the parties. An order to this effect was issued on the 19 February 2021. This order was preceded by a pre-trial conference between the parties the minute in respect of which was signed on behalf of both parties on the 18 February 2021. The minute records that defendant admits the correctness of contents of paragraphs 14.2.2.1 to 14.2.2.3 of plaintiffs’ further amended particulars of claim. The abovementioned paragraphs contain the following allegations:
“14.2.2.1 At the time of the collision the Second Plaintiff, who was almost 14 years of age, was a scholar and still is a scholar, schooling at Kingswood College, Grahamstown, Eastern Cape.
14.2.2.2 It is anticipated that had the collision herein not occurred, the Second Plaintiff would have achieved a Gr 12 secondary schooling, as well as a tertiary qualification thereafter, being a 3 year diploma or degree, after which the Second Plaintiff would have commenced with employment in the open labour market, following the career path, progression and earnings, as further detailed at paragraphs 17 and 19.2 of the medico-legal report of Mr J. du Rand, and industrial psychologist, dated 30 November 2018, as read together with paragraph 4.2 of the actuarial report of Munro Forensic Actuaries, dated 5 April 2019, a copy of which has already been filed of record, until the retirement of the SECOND Plaintiff at the age of 65 years.
14.2.2.3 As a result of the injuries and the further sequelae thereof, as aforesaid, suffered by the Second Plaintiff in the collision herein, the Second Plaintiff has been rendered compromised in her employability in the open labour market, which is anticipated to be permanent and in consequence of which it is anticipated that the Second Plaintiff will achieve a Gr 12 secondary schooling, and thereafter, at best a 3 year diploma in her tertiary education, after which it is further anticipated that the Second Plaintiff will commence with employment in the open labour market, in which she is anticipated to follow the career path and earnings as further set out at paragraphs 18 and 19.3 of the said medico-legal report of Mr. J du Rand, and industrial psychologist, as read together with paragraph 4.3 of the said actuarial report of Munro Forensic Actuaries, until the retirement of the Second Plaintiff at the age of 65 years.”
The minute further records a list of expert reports including those compiled by Munro Forensic Actuaries as well as Mr J du Rand, an industrial psychologist that are admitted by the defendant. This was in relation to loss of earnings / earning capacity.
[5] Likewise regarding the claim for general damages, defendant admitted the correctness of allegations relating thereto being paragraphs 14.2.3.1 to 14.2.3.6 of plaintiffs’ further amended particulars of claim:
“14.2.3.1 The Second Plaintiff’s injuries, as aforesaid, have been correctly and properly assessed and evaluated by Dr. P Olivier, and orthopaedic surgeon, as well as Dr. Ansari, a neurosurgeon, according to the prescribed methods as per Section 17(1), as read together with Section 17(1A) of the Act, as amended, as read together with the Regulations thereto, with the findings and conclusions of the said doctors contained inter alia in prescribed RAF4 serious injury assessment reports, including such report of Dr. Olivier, dated 10 May 2017, as well as Dr. Ansari, dated 17 July 2018, copies of both of which have already been filed of record.
14.2.3.2 As per the assessment of Dr. P Olivier, an orthopaedic surgeon, the Second Plaintiff’s injuries, as well as sequelae thereof, as aforesaid, have resulted in a whole person impairment of the Second Plaintiff, assessed as per the relevant AMA guides criteria, of 16% taking into account the physical injuries of the Second Plaintiff only.
14.2.3.3 As per the assessment of the Dr. Ansari, a neurosurgeon, the Second Plaintiff’s neurological injuries and the sequelae thereof, as aforesaid, have resulted in an additional whole person impairment of the Second Plaintiff, assessed as per the relevant AMA guides criteria, of 5% taking into account the neurological injuries of the Second Plaintiff only.
14.2.3.4 In any event, and also as per the said assessment of Dr. P Olivier, as per his aforesaid RAF4 serious injury assessment report, the Second Plaintiff’s injuries and the further sequelae thereof, as aforesaid, have resulted in serious long term impairment and loss of bodily function of the Second Plaintiff, permanent serious disfigurement of the minor, as well as severe long-term mental and severe long-term behavioural disturbance and disorder of the Second Plaintiff, and accordingly as per the prescribed narrative tests, the Second Plaintiff has suffered serious injuries as per Section 17(1), as read together with Section 17(1A) of the Act, and as read together with the Regulations thereto.
14.2.3.5 The Second Plaintiff has reached maximum medical improvement and further the sequelae of the Second Plaintiff’s aforesaid injuries are anticipated to be permanent.
14.2.3.6 The Second Plaintiff is, in the circumstances, entitled to compensation for general damages.”
[6] On the date appointed for the hearing of the matter in respect of the outstanding issues, there was no appearance for the defendant. Two witnesses were called in support of plaintiffs’ claim; the plaintiff as well as Mr Jean du Rand.
[7] Mr du Rand took the court through his report. I do not propose to regurgitate his evidence or contents of his report. Having asserted the plaintiff’s future career prospects, Mr du Rand came to the following conclusion also contained in paragraph 20 of his report:
That, but for the accident, in her uninjured state the plaintiff was expected to enter the labour market at a skilled level (Paterson C level) and progress to a higher organisational level. As a consequence of the collision, due to a combination of physical and cognitive deficits the plaintiff is expected to enter the labour market at a higher level Paterson B Level and progress slower than she would have had she not been injured. Further that she had been compromised as a direct result of the accident.
He recommends that she be fairly compensated.
Mr du Rand also expressed an opinion that the plaintiff will have difficulties maintaining a job. Because of the injury to her arm, she will be slower than her able peers. Employers and colleagues may be less sympathetic to her or she may feel pressured.
[8] The actuarial report confirms that the plaintiff is not expected to reach her pre-accident career potential.
[9] In her evidence plaintiff shared with us what she went through as a result of the accident. The extent of her injuries. The procedures she had to endure following the accident. How lucky she is that she did not die notwithstanding the serious injuries she sustained. The pain and discomfort she went through and still does. She still suffers from flashbacks. How active she was as a student, in sporting activities / codes as well as cultural activities and doing well academically. She is currently studying at Stenden College towards a Hospitality Management qualification. She intends opening a hotel or Bed & Breakfast establishment after completing her vocational training.
[10] Plaintiff’s claim for general damages is for the sum of R1 200 000.00. For future loss of earning capacity, a sum of R3 312 415.00. This is as per plaintiff’s further amended particulars of claim.
[11] There can be no doubt in the circumstances that plaintiff is entitled to compensation for general damages. There can also be no doubt that she is entitled to fair compensation for future loss of earnings and or earning capacity.
[12] According to the latest actuarial report, the Capital Value of Loss of Earnings is said to be R3 406 440.00, calculated as follows:
Capital Value of Loss of Earnings
Uninjured Injured Loss of
Earnings Earnings Earnings
Future R 9 542 100 R 7 045 400
Less contingencies ______20%___________40%_______________
R 7 633 680 R 4 227 240 R 3 406 440
TOTAL LOSS OF EARNINGS R 3 406 440
[13] Counsel for the plaintiff Mr Paterson urged me to apply a higher contingency also because plaintiff may have difficulty holding on to a job due to the sequelae of her injuries. The age of the plaintiff also plays a big part in this regard.
[14] In Southern Insurance Association v Bailey N. O.[1] the assessment of damages for loss of earnings was aptly said to be “speculative”, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs or oracles. Later at page 116 – 117 the following was stated:
“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. See Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114-5. The rate of the discount cannot of course be assessed on any logical basis: the assessment must be largely arbitrary and must depend upon the trial Judge’s impression of the case.”
See also Goodall v President Insurance Co. Ltd 1978 (1) SA 389 (W) at 392 H to 393 A:
“In the assessment of a proper allowance for contingencies, arbitrary considerations must inevitably play a part, for the art or science of foretelling the future, so confidently practised by ancient prophets and soothsayers, and by modern authors of a certain type of almanac, is not numbered among the qualifications for judicial office.”
[15] It is also customary to make different contingency deductions in respect of the morbid and post-morbid scenarios with the future loss being the difference / shortfall between the two. The point was made by the learned judge in the Southern Insurance matter that it is erroneous to regard the fortunes of life as being always adverse, that they may be favourable. I will bear those principles in mind when considering what contingency allowance should be made in this matter.
[16] Despite the calamity that befell the plaintiff and the sequelae thereof, she struck me as determined bright young lady.
[17] Having considered the evidence placed before me, I am satisfied that it will be fair to both the plaintiff and the Road Accident Fund (the defendant) that the contingency deduction suggested by the plaintiff’s counsel, be applied, which is also as recommended in the actuarial report.
[18] In respect of the general damages suffered by the plaintiff, I will take the following undisputed factors:
The seriousness of the injuries she suffered;
The fact that they have resulted in long term impairment and loss of bodily function of the plaintiff;
Her permanent disfigurement;
Long term mental and behavioural disturbance and disorder.
As a result of the injuries suffered by the plaintiff in the collision, she suffered damages in respect of shock, pain, suffering, disability, discomfort, scarring, disfigurement as well as loss of amenities of life as was apparent from her evidence. In the circumstances and in my view a sum of R900 000.00 will be a fair compensation for the damages she suffered.
[19] Accordingly, the following order will issue:
1. That the Defendant is directed to pay compensation to the Second Plaintiff as follows:
1.1 in the sum of R3 406 440.00 (Three Million, Four Hundred and Six Thousand, Four Hundred and Forty Rand), as and for the Second Plaintiff’s claim for future loss of earnings and/or loss of earning capacity;
1.2 in the sum of R900 000.00 (Nine Hundred Thousand Rand) as and for the Second Plaintiff’s claim for general damages.
2. That the Defendant shall pay the Plaintiffs’ taxed or agreed party and party costs of the Plaintiffs’ action, on the High Court scale, with such costs to include:
2.1 the reasonable costs of consultations between the Plaintiffs’ counsel, the Plaintiffs’ attorney and the Plaintiffs’ expert and lay witnesses in preparation for trial;
2.2 the costs of the reports and supplementary reports, as well as the qualifying fees and expenses, if any, of the following expert witnesses:
1.1.1. Dr. J Niazi;
1.1.2. Dr. S Parker;
1.1.3. Dr. P Olivier;
1.1.4. Dr. S Ansari;
1.1.5. Mr. K McKerrow;
1.1.6. Dr. B Moolman;
1.1.7. Mr J du Randt;
1.1.8. Munro Forensic Actuaries.
2.3 the testifying and reservation fees as well as the travelling fees and disbursements, if any, of Mr B Moolman and Mr J du Rand;
2.4 the costs of the trial day set down for hearing on 28 April 2021;
2.5 the costs of the case flow management and roll call proceedings in respect of the Plaintiff’s action;
3. That payment of the aforesaid amounts (referred to in paragraphs 1 and 2 above) shall be effected by means of an electronic transfer of the funds into the trust account of the Plaintiffs’ attorneys of record, details whereof are as follows:
Account holder: LULAMA PRINCE INC. TRUST ACCOUNT
Account number: 407 117 0468
Bank: ABSA BANK
Branch code: 63 20 05
Reference: LP0732
4. That the Defendant shall be liable for interest on the aforesaid amounts (set out at paragraph 1 above), calculated from a date 14 (fourteen) days after date of this Order, at the prevailing legal rate per annum, to date of final payment;
5. That the Defendant shall be liable for interest on the said amounts (set out at paragraph 3 above), calculated at the prevailing legal rate per annum and from a date 14 (fourteen) days after date of taxation or agreement, as the case may be, to date of final payment.
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Plaintiff : Adv: NM Paterson
Instructed by : LULAMA PRINCE AND ASSOCIATES
C/o NN DULLABH & CO.
5 Bertram Street
GRAHAMSTOWN
Ref: Mr N Dullabh
Tel.: 046 – 622 6611
For the Defendant : N/A
Date Heard : 28 April 2021
Date Reserved : 28 April 2021
Date Delivered : 20 July 2021
[1] 1984 (1) SA 98A at 113.