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,
FREE STATE DIVISION, BLOEMFONTEIN

Reportable:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	

Case No: 76/2012

In the matter between: -

B V                            	  PLAINTIFF

and

THE ROAD ACCIDENT FUND	     				     DEFENDANT 

____________________________________________________

CORAM:			MBHELE, J
_____________________________________________________

HEARD ON:		1, 2 & 4 SEPTEMBER 2020		
_____________________________________________________

DELIVERED ON:	23 NOVEMBER 2020
_____________________________________________________

MBHELE J

[1]	On 27 January 2007 on the S417 Road at Rustenfonteindam in the outskirts of Bloemfontein a collision occurred between a motorbike with registration numbers […] FS driven by the plaintiff and a quad bike driven by one Herman Johannes Beukes (the insured driver). As a result of the collision the plaintiff suffered severe bodily injuries.  
[2]	Plaintiff issued summons against the defendant for damages suffered as a result of the collision on the basis that the collision was caused by the sole negligence of the insured driver.  

[3]	The defendant was found liable for 40% of the Plaintiff’s agreed or proven damages. The matter is before me for determination of Plaintiff’s general damages, past loss of earnings, future loss of earnings and past medical costs.

[4] 	The matter proceeded undefended as there was no appearance on behalf of the defendant. The notice of set down was served on the defendant, at its head office, per sheriff, registered mail and email. The plaintiff led evidence and submitted reports of the following experts: 

     		Dr.  J Wilkinson (Neurosurgeon)
 		Susan Van Jaarsveld (Industrial Psychologist)
Letitia Delport (Occupational therapist)
Niel Du Plessis (Chartered Accountant) 
Dr. JF Ziervogel (Orthopaedic surgeon)
Ian- Walsh Morris (Actuary)

         	The plaintiff’s injuries were described as follows by Dr.  Ziervogel, an orthopaedic surgeon:
•	Brain injury
•	Multiple cervical and thoracic spine injuries
•	Neck injury
•	Lower back injury
•	Injury to the right ankle
[5]	He experiences severe headaches, the headache feels like a sharp pain in the right, frontal region. It gets worse when he is upset. His ability to concentrate is impaired. During examination he found it difficult to answer questions because of his impaired memory. 

[6]	He got injured when taking part in endurance rally with motorbikes. He doesn’t know what happened. He regained his consciousness after spending over 6 weeks in hospital. Shortly after regaining consciousness he was transferred to Pasteur Rehabilitation Hospital where a brace was fitted for his back. He was thereafter transferred to Bloemcare step down facility. 

[7]	Current Symptoms 
Impaired memory (he is forgetful and has a severe memory deficit
Impaired concentration
Impaired balance 
Constant back pain (he has permanent pain in his thoracic spine and intermittent pain in his cervical spine). 
He has pain in the right shoulder
[8]	The plaintiff complains of headaches and neck pain... 
He has behavioural and emotional disorders:
o	 Verbally aggressive, short tempered and suspicious of people, he doesn’t trust people
o	Forgetful
o	Depressed
o	Isolates himself
o	Foul language
o	Impaired reading and writing ability – he struggles to pronounce and find words during conversation. 
o	Struggles with bladder control
o	He has speech defect; his sentence construction is badly affected. 
o	His reasoning faculty is impaired
o	 His insight is severely limited;
o	He struggles to sleep
o	He is unable to lift his right leg, he has to sit down when he puts his pants on, he cannot balance on his own. 

[9]	SUSAN VAN JAARSVELD (INDUSTRIAL PSYCHOLOGIST) 
 	The plaintiff was running a practice as an Attorney before the accident.  A report by Susan Van Jaarsveld, an Industrial Psychologist, made an assumption that the plaintiff would have been able to stay in practice as an Attorney up until the age of 65 – 68. She is of the view that the plaintiff would have pursued his other business interests outside of the legal profession until way post retirement age. The plaintiff was running other businesses as a bee farmer and trailer hire which were profitable before the accident.  She opines further that he plaintiff is not in a position to perform any remunerative work and will not be able to compete in the open labour market. She further opines that in the unlikelihood of the plaintiff closing down his practice he could still get employment as professional assistant or junior partner in a law firm where he would earn a salary ranging between R 563 000.00 –  R 1 534 000.00 per annum. 

[10]		LETITIA DELPORT (OCCUPATIONAL THERAPIST) 

	She evaluated the plaintiff on 07 June 2011 and 12 August 2020. 

	She is of the opinion that the plaintiff can never compete in the open labour market.  She testified that the plaintiff presented with severe impairments in memory and concentration. He is unable to balance with sudden movements and unable to stand with his eyes closed. His cognitive ability is severely impaired. He presented with prominent challenges regarding attention, memory, fluency, language and visual spatial abilities. He speaks words that he is unable to attach meaning to. The pain in the lower back was worse than it was in the first assessment. 

[11]	Dr DJ Wilkinson (Neurosurgeon) 

Examined the plaintiff on 20 November 2019 and made the following findings:  

11.1 	The plaintiff displays emotional and behavioural challenges; his memory and concentration are impaired; he struggles to find words; he was unable to remember most of the things during the assessment. He is emotionally blunt; he has the profile of someone who sustained traumatic brain injury. He has reached maximum medical improvement and there are no chances of further improvement from what his current condition is, he is likely to have further deterioration due to the frontal lobe injuries.  

11.2	He concluded that the plaintiff has sustained serious neurological deficits and that his sequelae is permanent due to the brain injury.  His demand for painkillers will increase with time as a result of age and because the injury accelerated degeneration of the spine.   He concluded that the plaintiff has 45% whole person impairment. 

[13]	Niel Duplessis (Chartered Accountant)
  	
He gave an analysi of the Plaintiff’s loss of earnings as a result of the accident. The analysis was based on financial statements from the first year of plaintiff’s practice until its closure.  The plaintiff started as a fire fighter and worked as such for 10 years before he became an attorney. He started his practice in July 2003. His practice was already making profit by the end of the financial year 2005. It continued to show growth at the end of the financial year 2006. The growth necessitated a need to employ extra personnel. He employed a Professional Assistant in August 2006. 
The income grew from R 315 945 .00 in 2005 to R 727 251. 00 for the year ending February 2006. From 2008 the practice suffered financial losses year on year ranging between R72 351 .00 - R375 112.00 until the practice closed down in 2014. According to the scenarios he applied, the past loss of income is calculated at R 8 353 720 less 5% contingency and the future loss of income is calculated at R 9 265 821 less 15% contingencies. The total amount for loss of income is estimated at R 15 811 981. 80 

[14]	R V, the plaintiff’s wife   gave a brief overview of the plaintiff’s work history. She testified to, inter alia, the effect that in 1990 when she met the plaintiff he was a medical student. He discontinued his medical studies at the end of his second year in medical school due to financial constraints. He secured a job as a fire fighter where he worked for 10 years. While working as a fire fighter he registered a law degree which he passed and started with his articles. At the end of 2003 he got admitted as an Attorney and started his law firm.  

[15]	She is a registered nurse who worked at the hospital until 2006 when she resigned to work at the plaintiff’s firm as a manager. Before the accident he was a highly motivated person who was physically active and highly competitive in sport. He did motor racing and fishing. He kept bee hives and did bee farming. He was intelligent and constructive in reasoning and argument. 
His life changed drastically after the accident. He forgets easily and does not remember most of the things he did before the accident. He has become aggressive and because of the injury in the frontal lobe his libido has increased excessively. 

[16]	He loses balance when he walks. He struggles to get in and out of the shower. He fails to accept and relate with people who are not of Afrikaner origin. He has paranoia. He has stopped doing all the sports activities that he did before the accident. A bundle of receipts showing the amount of R 401 019. 48 for past medical costs was handed as proof for medical costs incurred by the plaintiff as a result of the accident. 

[17]	Plaintiff testified in support of his case. During his testimony it was clear that he could not remember most of the things he was asked. It was difficult to extract information out of him. He, in essence, confirmed what was in the experts’ reports about his state of health post-accident. He testified that he experiences severe headaches. He sustained injuries on the head, thoracic area, on his neck and has sustained multiple rib fracture. 

[18]	LOSS OF EARNINGS/EARNING CAPACITY:

18.1	Ian Walsh Morris, an Actuary, estimated the capital value of the plaintiff’s loss of income, without contingencies as follows: 

Past					R 8 353 720
Future				R 9 265 821
Total					R 17 619 541

18.2 	His calculations were based on the financial statements prepared by Neel Du Plessis and the assumption that he would have stayed in practice as an Attorney until age of retirement at 65.  

[19]	CONTENTIONS BY THE PARTIES

Mr. Steenkamp, on behalf of the plaintiff, submitted in his heads that the plaintiff suffered severe injuries and it is clear from the available evidence that the plaintiff may never be able to work again. He submitted, further, submitted that the plaintiff’s life has been altered to the extreme by the collision. He contended, further, that the plaintiff should be compensated for general damages in the amount of R 1, 3 million for general damages, an amount suggested by the actuary for loss of earning and R401 019. 28 for past medical expense. 

[20]	APPLICABLE LEGAL PRINCIPLES
A trial court has a wide discretion to award what it considers to be fair and adequate compensation in an action for damages based on loss of income which cannot be assessed with any degree of mathematical accuracy.  (See AA Mutual Insurance Association v Maqula 1978 (1) SA 805 (A) at 806). 

[21]	The defendant must make good the difference between the value of the plaintiff's estate after the commission of the delict and the value it would have had if the delict had not been committed. The capacity to earn money is considered to be part of a person's estate and the loss or impairment of that capacity 
(See Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) and Santam Versekeringsmaatskappy Beperk v Byleveldt 1973 (2) SA 146 (A). 

[22]	In Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) the court said the following when it dealt with loss income as a result of injuries sustained form a motor vehicle accident:

“A person's all-round capacity to earn money consists, inter alia, of an individual's talents, skill, including his/her present position and plans for the future, and, of course, external factors over which a person has no control, for instance, in casu, considerations of equity. A court has to construct and compare two hypothetical models of the plaintiff's earnings after the date on which he/she sustained the injury. In casu, the court must calculate, on the one hand, the total present monetary value of all that the plaintiff would have been capable of bringing into her patrimony had she not been injured, and, on the other, the total present monetary value of all that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury. When the two hypothetical totals have been compared, the shortfall in value (if any) is the extent of the patrimonial loss. … At the same time the evidence may establish that an injury may in fact have no appreciable effect on earning capacity, in which event the damage under this head would be nil.”
[23]   	When dealing with general damages it must be taken into             consideration that the pain, suffering, loss of amenities of life suffered by a victim cannot be measured and calculated in monetary terms. The amount to be awarded as compensation can only be determined by the broadest general terms.   (See Sandler v Wholesale Coal Supplies Ltd 1941 AD 194). 

[24]	Plaintiff submitted psycho-legal, neurological, orthopaedic, occupational and actuarial reports detailing the extent of the plaintiff’s patrimonial loss and damages. All evidence shows that the plaintiff’s life has been permanently interrupted. He will never be able to recover and do the things he used to do before the accident. His inability to reason properly and communicate eloquently makes it impossible to resume his practice as an attorney. Memory is one valuable asset for any lawyer and with him being forgetful and unable to construct sentences the practice of law seems like a farfetched dream for him. 
             
[25] 	The evidence shows the plaintiff has lost his ability to do things that he enjoyed doing before the collision. It is so that he will never be able to work again.  

[26]    The evidence shows that the Plaintiff was a motivated and hardworking business person. Save for running a law firm he was involved in other businesses which ensured multiple streams of income. He had positive attitude to life. 

[27] 	The plaintiff’s loss of income can be summarised as tabulated below after contingencies. I am of the view that 5% contingency deduction for past loss of income and 15% contingency for future loss of income is reasonable in the circumstances.

Past Loss
Value of Income but for accident		R 8 353 720.00
5% Contingency Deduction			R 417 686.00
									R 7 936 034. 00

Future Loss
Value of Income but for accident		R 9 265 821
15% Contingency Deduction			R 1 389 873.15	
Net value of income but for accident	R 7 875_947.85

[28]	In determining quantum for damages I am called upon to exercise a broad discretion to award what I consider fair and adequate compensation. I have considered the extent of plaintiff’s injuries and how his life has been affected by the said injuries. 

[29] 	I have also considered the cases I was referred to by Mr. Steenkamp. Past awards only serve as a guidance to assist the court not to come to an award that is not in harmony with past awards in matters of similar nature. None of the cases I was referred to fit squarely with the circumstances of the current matter. 

[30] 	In view of the severity of plaintiff’s injuries, prolonged severe pain and suffering, I am of the view that an appropriate, fair and reasonable amount for general damages is R 1 100 000.00. 

	Past medical expenses                                R 401 019 .48
	Loss of earning                                            R 1 575 1981. 85
	General damages                                        R 1 100 000.00

[31]	ORDER: 

I grant the judgment in favour of the Plaintiff as follows: 

1.	Defendant is ordered to pay the plaintiff the amount of R 6 925 200-53 which amount is made up as follows:
1.1	40% of the amount of R1 100 000-00 in respect of general damages;

1.2	40% of the amount of R7 936 034-00 in respect of past loss of income/earning capacity;

1.3	40% of the amount of R7 875 947-85 in respect of future loss of income/earning capacity;

1.4	40% of the amount of R401 019-48 in respect of past medical expenses.

2.	The aforesaid amount is to be paid into the following bank account:

Symington & De Kok Attorneys
First National Bank
Account number: […]
Branch Code:	250 655
Reference number: MXP2288

3.	Interest on the aforesaid amount to be calculated at the prescribed rate of interest from date of judgment to date of payment.

4.	The defendant is ordered to furnish the plaintiff with an undertaking in terms of s 17(4)(a) of the Road Accident Fund Act, 1996, for payment of 40% of the costs of the future accommodation of the plaintiff in a hospital or nursing home, or treatment of or rendering of a service or supply of goods to him arising out of the injuries that he sustained in the motor vehicle collision which occurred on the 27 January 2007 and the sequelae thereof, after such costs have been incurred and upon proof thereof;

4.1	The reasonable costs for the creation of a trust to administer the funds awarded to the plaintiff and the appointment of the trustees.
4.2	The reasonable fees/remuneration of the trustees and costs incurred by the trustees in administering the trust.

4.3	The reasonable costs incurred by the trustees in providing security to the Master.

4.4	The fees of the trustees shall be limited to those allowed to a curator bonis in terms of the Administration of Estates Act 66 of 1965.

5.	The defendant shall pay the plaintiff’s taxed or agreed party and party costs on a High Court scale to date of this order, which shall include the reasonable qualifying, preparation, reservation and appearance fees (where applicable) of the following experts:
5.1	Dr Wilkinson;
5.2	Dr Ziervogel;
5.3	L Delport;
5.4	Susan van Jaarsveld;
5.5	Human & Morris (actuary);
5.6	Dr P Repko;
5.7	Dr Walker
5.8	N du Plessis;

6.	In the event that costs are not agreed the plaintiff agrees as follows:

6.1	The plaintiff shall serve a notice of taxation on the defendant’s attorney of record; and 
6.2	The plaintiff shall allow the defendant fourteen (14) court days to make payment of the taxed costs.

_____________
 NM MBHELE, J

On behalf of the plaintiff:  		Mr. MDJ Steenkamp 
Instructed by:                      		BEZUIDENHOUTS INC. 
						BLOEMFONTEIN		

Defendant:			:		ROAD ACCIDENT FUND
						DEFENDANT
						38 IDA STREET
						MENLO PARK
						PRETORIA