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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magiatrates: YES/NO

Case no: 2338/2018

In the matter between:

CLAUDIA DENISE APRIL                                                             Plaintiff

and

ROAD ACCIDENT FUND                                                               Defendant

CORAM:                    PAGE AJ

HEARD ON:             27 JULY 2021          

DELIVERED ON:     The judgment was handed down electronically by circulation to the parties’ legal representatives by email on 15 September 2021.

[1]        The Plaintiff instituted action against the Defendant for damages arising from bodily injuries she sustained in a motor vehicle collision which occurred on 28 March 2015.

[2]        On the 11^{th of} February 2019 the Honourable ADJP MH RAMPAI found that the Defendant is liable for all (100%) of the plaintiff’s proven or agreed damages and an order was granted to that effect.

[3]        The issue dealt with in this hearing is that of quantum of the plaintiff’s claims in respect of future medical expenses, general damages, and future loss of earnings.

[4]        The defendant has tendered an undertaking, in terms of the provisions of S 17(4)(a) of the Road Accident Fund Act 56 of 1996 (“The Road Accident Fund”) in respect of future medical expenses.

[5]        The Plaintiff testified and led the evidence of the following expert witnesses:

            5.1      Dr Oelofse (Orthopaedic Surgeon)

            5.2      Dr van Aswegen (Neurosurgeon)

            5.3      B Mallinson (Neuropsychologist)

            5.4      Ingrid Erasmus (Occupational Therapist)

            5.5      Dr EJ Jacobs (Industrial Psychologist)

           5.6      The report by Munro Forensic Actuaries was, upon application and by agreement between the parties accepted into evidence.

[6]      The Defendant led no witnesses.

[7]        The Plaintiff suffered a C6 spinal fracture and a mild traumatic brain injury. The expert witnesses testified in detail about all sequelae of the injuries sustained by the plaintiff.

[8]        Evidence:

The plaintiff is a Grade R teacher at a school in Hopetown. Prior to the accident the Plaintiff completed a N4/N5 Management Assistant course at Northern Cape FET and during 2011 to 2013 completed a diploma in Early Childhood Development. She started as a Grade R teacher during 2014.

[9]        Approximately eight (8) weeks after the accident the Plaintiff returned to her occupation as Grade R teacher.

[10]     From the expert evidence by Dr van Aswegen, and as contained in his report, which forms part of the bundle, it is evident that the Plaintiff presented at Pelonomi Hospital immediately after the accident, with a Glasgow-coma scale reading of 11/15 which indicated an initial loss of consciousness immediately after the accident.

[11]     The Plaintiff testified in detail about the injuries she sustained to her head and spine which was, as confirmed by the experts, conservatively treated and Plaintiff was eventually discharged with a neck brace.  Although Plaintiff testified that she did not receive her salary whilst in hospital, such loss was minimal and accordingly her claim against the Defendant does not include a claim for past loss of income.

[12]     Although the Plaintiff returned to her pre-accident vocation, she testified that the sequelae of her injuries never disappeared and over time became worse both cognitively and physically to such an extent that she finds it extremely difficult to comply with the physical and cognitive demands of her job.  The cognitive fall-out resulting from the accident which has reached a stage where she simply cannot remember things having to make notes to remind herself of her duties and daily tasks and so forth.

[13]     The Plaintiff’s physical deterioration and cognitive problems were testified to in detail by Drs van Aswegen, Oelofse and Malinson and there is no doubt that the deficits experienced by the Plaintiff must be regarded as permanent and in addition to that will deteriorate over time.

[14]     The Plaintiff is currently 36 years old, unmarried with no children and it appears from her evidence that she devoted her life to being successful in her career. She enrolled in a 4-year B Ed degree in 2018. She testified about the difficulties she experienced cognitively in completing the degree. Both Mr Malinson and Dr Jacobs opined that it will be highly unlikely that the Plaintiff will successfully complete her studies.

[15]     The Plaintiff testified that notwithstanding her cognitive and physical difficulties she had no option but to return to work due to her socio-economic circumstances.

Medico-Legal Evidence

[16]     Dr Oelofse (Orthopaedic Surgeon) diagnosed the Plaintiff with:

16.1    A head injury with chronic headaches, memory loss and concentration -deficits.

16.2    A cervical spine fracture.

16.3    Chronic headaches, chronic pain and spasms, adjacent level C5/6 spondylosis and chronic pain syndrome.

[17]     In as far as the Plaintiff’s head injury is concerned Dr Oelofse refers to the neurosurgeon, Dr van Aswegen’s report and evidence which is essential.

[18]     In as far as the cervical spine injury is concerned, Dr Oelofse postulates various future medical interventions.

[19]     Of importance is Dr Oelofse’s expert opinion relating to the Plaintiff’s employment and future retirement.  Dr Oelofse states that in his opinion the patient must be placed on permanent light duty and neck friendly environment as determined by an occupational therapist. In this regard the evidence Ingrid Erasmus, the occupational therapist is essential.

[20]     Dr Oelofse testified that even with successful treatment the Plaintiff’s productivity will initially improve but as degeneration of her cervical spine progress, her productivity will decrease again and even with successful treatment she will always have a deficit in her cervical spine. With the passing of years, the Plaintiff’s symptoms have settled into a chronic and resistant scenario and despite successful conservative treatment she will most probably always be affected in her normal life, amenities of life and her productivity at work. Of utmost importance is Dr Oelofse’s testimony that the Plaintiff’s working abilities have been negatively affected by the accident and she has become an unfair competitor in the open labour market.  She is unable to do any physical labour and her injuries will influence her chances of advancement in her career.

[21]     Dr Oelofse made it clear that if the Plaintiff is accommodated in a sedentary, neck friendly environment as determined by an occupational therapist, provision must be made for ten years early retirement at 55 years. If not so accommodated, Dr Oelofse confirms that she will at most be able to work for another five to ten years. Dr Oelofse confirms that the Plaintiff will in all probability have to retire in 2027. This is confirmed by Ms Erasmus, the occupational therapist.

            Dr Van Aswegen (Neurosurgeon)

[22]     Dr van Aswegen’s testimony was of an extremely detailed and complex nature, the essence of which is that in his opinion the Plaintiff suffered from a cervical spine fracture and a mild traumatic brain injury.  He confirmed that the Plaintiff’s injuries indicate a high velocity, high energy impact causing a defuse axonal injury.  The sequelae of such a mild traumatic brain injury are commonly referred to as a “post concussive syndrome”.

[23]     The opinion of long-term cognitive and emotional consequences of a mild traumatic injury includes somatic systems such as chronic headaches, cognitive symptoms such as attention deficits, and psychiatric symptoms such as depressed mood, insomnia, anxiety, poor motivation, social withdrawal, and interpersonal difficulties.

[24]     It is his opinion that the Plaintiff may develop dementia and epilepsy at a later age.  He testified in great detail about the progression and sequelae of the brain injury and also explains that the cervical injury is a degenerative disease of the spine which is always progressive in nature.

[25]     Dr van Aswegen after hearing the Plaintiff’s evidence during this hearing expressed his opinion that conservative treatment will not bring any long-term meaningful relief and he proposes surgical intervention as set out in his report.  According to him the injuries are of a serious and progressive nature and will have a negative impact on her future career and personal life.

            Brian Mallinson (Neuropsychologist)

[26]     Mr Mallinson assessed the Plaintiff from a neuropsychological point of view having concluded a battery of tests. He confirms the diagnosis of mild to moderate concussive brain injury and sets out in detail the results of the neuropsychological testing which revealed that the Plaintiff suffered from various conditions such as poor auditory attention, poor working memory and poor verbal learning consistent with the presence of frontal amnesia.

[27]     Of importance is that it will be unlikely that the Plaintiff will succeed in achieving her Bachelor of Education degree. According to him the Plaintiff will be best suited to sedentary employment, but given her cognitive and psychological difficulties, she is unlikely to succeed in this except at a very low level.

            Ingrid Erasmus (Occupational Therapist)

[28]     Ms Erasmus evaluated the Plaintiff two years after an initial assessment by a colleague of hers, Ms Kemp. She notes in her report that since the initial report the Plaintiff’s physical and functional abilities have worsened compared to the initial evaluation. She concludes that the Plaintiff is best suited for sedentary work but noted that even in a sedentary category she presents with restrictions. She holds that the Plaintiff is not suited to her pre-accident and current duties as a Grade R teacher. She confirms the opinion of the other experts that should Plaintiff continue working in a position where her work demands it exceed a maximum capacity, as it currently does, early retirement could be expected. She concurs with Mallinson that the Plaintiff’s cognitive and psychosocial limitations restrict her ability to succeed within a sedentary work environment.  In her opinion the Plaintiff will be unlikely to secure alternative employment within the accommodated sedentary work category in the open labour market if she leaves her current employment.

            Dr Evert Jacobs (Industrial Psychologist)

[29]     Dr Jacobs evaluated the Plaintiff on 12 July 2017, 7 August 2018 and filed two addendum reports having obtained the further expert opinions by Mr Malinson and Ms Erasmus.  In his final addendum to his report, he considered the totality of the expert reports, especially the reports by Ms Erasmus and Mr Malinson. He had a follow-up assessment with the Plaintiff on 20 June 2020.

He opines that it is unlikely that the Plaintiff will succeed in achieving her Bachelor of Education Degree and this, combined with her cognitive, psychological and physical difficulties will have a detrimental effect on her employment. Dr Jacobs further states that if accommodated in a sedentary neck-friendly environment, provision must still be made for ten years early retirement. If not accommodated, as is currently the case, the Plaintiff will only be able to work for another five to ten years.

Dr Jacobs sets out his uninjured income projections in his addendum report. The income scales used by him stands uncontested. The injured career projections are that the Plaintiff is unlikely to complete her degree and that she is not physically and mentally suited to be a teacher and can only do sedentary work with accommodation.

He confirms that the Plaintiff’s physical health will further deteriorate and that is highly unlikely that she would find sedentary work once she is not suitable to continue with teaching.

He confirms the opinion of Dr Oelofse that the Plaintiff will not receive accommodation in her current job scenario and that she will have to retire early.

            The quantification of the Plaintiff’s injured income and the amounts used are set out in detail in his last addendum to his report.

General Principles

[30]     In Road Accident Fund v Guedes 2006(5) SA (SCA) on p 586 para (8) the court held as follows:

“It is trite that a person is entitled to be compensated to the extent that the person’s patrimony has been diminished in consequence of another’s negligence. Such damages include loss of future earning capacity… The calculation of the quantum of a future amount, such as loss of earning capacity, is not, as I have already indicated, a matter of exact mathematical calculation. By its nature, such an enquiry is speculative, and a court can therefor only make an estimate of the present value of the loss that is a very rough estimate… The court necessarily exercises a wide discretion when it assesses the quantum of damages due to loss of earning capacity and has a large discretion to award what it considers right.  Courts have adopted the approach that, in order to assist in such a calculation an actuarial computation is a useful basis for establishing the quantum of damages.  Even then, the trial court has a wide discretion to award what it believes is just...”

[31]     Per Henochsberg J in Gillbanks v Sigournay 1959 (2) SA 11 (N) 14H

            “… any enquiries into damages for loss of earning capacity is of its nature speculative, because it involves a predication 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 and 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 on the soundness of the assumptions, and these may vary from the strongly probable to the speculative.  In its 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 reward…in cases where a court has before its material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, while the result of actuarial computations 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 judges “gut feeling” as to what is fair and reasonable is nothing more that a blind guess…Nevertheless I do not think that even in such a case it is wrong in principle to make an assessment on the basis of actuarial calculations.”

[32]     Per Nicholas JA in Southern Insurance Association LTD v Baily NO 1984(1) SA 98 at 113 G-114 E

 “The trial judge retains nonetheless a large discretion to award what under the circumstances he considers right.  He may be guided but is certainly not tied down by exorable actuarial calculations”

[33]     An actuarial report prepared by Munro Forensic Actuaries forms part of the evidence. The actuarial report is based on the findings and subsequent evidence of Dr Jacobs.

            The report calculates the Capital Value of Loss of Earnings for “uninjured earnings” and “Injured Earnings” for future income and applying the cap which RAF applies to loss of income.

General Damages

[34]     The parties have referred to Case Law which they propose are applicable to the facts of the current case. I have had sight of the case law and considered the findings in reaching a finding.

[35]     I take into account the injury suffered, the degree of pain and suffering as testified to in detail by the Plaintiff. Her testimony was supported by the expert evidence and it is clear that her emotional, physical, cognitive difficulties and her pain and suffering has greatly impacted her life.

[36]     I am of the opinion that R 750 000.00 on respect of general damages is reasonable in the circumstances.

Future Loss of Earnings

[37]     An actuarial report was admitted into evidence by the parties. Munros Actuaries calculated the Plaintiff’s future loss of income in the amount of R 5 520 400.00 after contingency deductions.

[38]     The actuaries have utilised 10% contingency deductions on the Plaintiff’s uninjured earnings and 15% on the Plaintiff’s injured earnings. I find the deductions to be reasonable. The actuarial report also applies the capped amount applied by RAF.

[39]     In the circumstances I make the following order:

[40]     ORDER:

1.    The Defendant is ordered to pay the Plaintiff the sum of R 750 000.00 in respect of general damages.

2.    The Defendant is ordered to pay the Plaintiff the sum of R 5 520 400.00 in respect of future loss of income.

3.    In the event that the Defendant does not, within 180 (one hundred and eighty) days from the date on which this order is handed down, make payment of the capital amount, the Defendant will be liable for the payment of interest on such amount at 7 % compounded and calculated 14 (fourteen) days from date of this order.

4.    The Defendant is to furnish an undertaking to the Plaintiff in terms of Section 17(4)(a) of the Road accident Fund Act 56 of 1996, for 100% of the costs of the future accommodation of the Plaintiff in a hospital or nursing home or the treatment of or the rendering of a service of the supplying of goods to her arising out of injuries sustained by her in the motor vehicle collision of 28 March 2015.

5.    The Defendant is liable for payment of Plaintiff’s taxed or agreed party and party costs on the High Court scale.

6.    The Defendant is liable for payment of the qualifying fees of the following experts:

6.1          Dr A van Aswegen.

6.2          Dr LF Oelofse

6.3          Burger diagnostic radiologists.

6.4          Ms E Kemp.

6.5          Ms I Erasmus.

6.6          Dr B Malinson.

6.7          Dr EJ Jacobs.

6.8          Munro Forensic Actuaries.

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

7.1          The Plaintiff shall serve a notice of taxation on the Defendant’s attorney of record; and

7.2          The Plaintiff shall allow the Defendant 14 (fourteen) court days to make payment of the taxed costs.

                                                                                                            C L Page AJ

On behalf of the Plaintiff:   ADV. H. DE LA REY

Instructed by:                     Honey Attorneys

                                           Kenneth Kaunda Street

                                           Bloemfontein

On behalf of the Defendant: Ms. R CANHAM

Instructed by:                       The Road Accident Fund

                                             Bloemfontein

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