IN THE KWAZULU-NATAL HIGH COURT, DURBAN

							CASE NUMBER : 9506/2008

In the matter between:

MHLENGI CLETUS KHUMALO				Plaintiff

and

ROAD ACCIDENT FUND					Defendant

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JUDGMENT
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VAN ZYL, J.:-

1.	On 31 August 2004 the plaintiff, a pedestrian, was injured in a collision with a motor vehicle, the identity of which has never been established. Plaintiff thereafter instituted the present action against the Road Accident Fund as the defendant, claiming payment of damages for his injuries thus sustained. At the inception of the trial both liability and quantum were in dispute. However, during the course of the proceedings the issue of liability was resolved and by agreement the defendant now accepts liability to compensate plaintiff for ninety percent (90%) of the latter's proven damages.
 
2.	Only the plaintiff called witnesses in respect of the remaining issues relevant damages and the quantification thereof. The defendant closed its case immediately after the conclusion of the plaintiff's case. As a result a number of issues are either common cause, or at least not seriously disputed. Amongst these are the physical injuries sustained by plaintiff as a result of the collision. Such injuries comprise lacerations to the right eyebrow, the nose, the lip, the right elbow, the left wrist and elbow and both knees. X-rays also showed a depressed skull fracture of the right parietal bone. 

3.	The plaintiff, a young man born on 27 March 1984 and thus 20 years of age at the time of the collision, was admitted to the Prince Mshiyeni Memorial Hospital. A Glasgow Coma Scale ("GCS") reading of 15, which indicated a normal level of consciousness, was recorded upon admission. However, it was found that he suffered decreased power on the left side and a subsequent CT scan revealed an intra-cerebral haematoma with surrounding oedema with a midline shift and moderately raised intra-cranial pressure. Of more immediate concern, however, was the fact that plaintiff also had a chronic right sided sub-dural haemetoma, corresponding with the fracture site of the parietal bone. This, as was explained by Dr Nadvi, a neurosurgeon, was an extremely dangerous condition where blood clots had formed between the lining of the brain and the brain itself, requiring urgent intervention in order to evacuate the clotting and to relieve the pressure on the brain. 

4.	As a result plaintiff was transferred to the Albert Luthuli Hospital where a craniotomy was performed under general anesthetic and the blood clots evacuated. Thereafter plaintiff was transferred back to the Prince Mshiyeni Memorial Hospital to recuperate and he was eventually discharged during the middle of September 2004. 
  
5.	Despite the GCS reading of 15 upon admission to the Prince Mshiyeni Memorial Hospital, plaintiff does not recall the events for about two to three days following the collision. In the light thereof, as well as the results of the CT scan and subsequent operation, Dr Nadvi is firmly of the view that the plaintiff has suffered a severe brain injury which left him with significant deficits, including post traumatic epilepsy which is not well controlled. Life expectancy is, however, not reduced in the circumstances. 

6.	Prior to the collision the plaintiff had no history of any head injury or the other complaints corresponding with those which developed thereafter. These include headaches and painful eyes, particularly in hot weather, poor memory, exhaustion, sporadic epileptic seizures with characteristic left side body jerks and convulsions, as well as behavioral changes and disturbances.

7.	Plaintiff further called Professor Lazarus, an experienced neuropsychologist. This witness confirmed and expanded upon the views expressed by Dr Nadvi. According to this witness, by reason of the persistence of the deficits suffered by plaintiff and the passage of more than five years following the collision, the plaintiff's condition has become chronic and may be considered as permanent in nature. Prof Lazarus conducted extensive testing upon the plaintiff and concluded that the plaintiff suffers significant neuro-psycholigical deficits, inter alia, in both visual and auditory complex mental tracking, in his working memory, with regard to speed and accuracy of information processing, in absorbing new information, or acquiring new skills, in his motor speed and executive mental regulation and control. These are consistent with a frontal lobe injury, such as suffered by plaintiff. 

8.	In addition plaintiff's personality and emotional capacities have also been negatively affected. He lacks insight and awareness of his deficits, overvalues his capabilities with a resultant tendency to misrepresent himself. Thus the witness concluded that the plaintiff displayed a marked propensity to confabulate, this being a tendency to invent information, but without conscious awareness of the inaccuracy involved. These deficits would also negatively affect his inter relationships with others and render any future employment possibilities doubtful. In effect, plaintiff would have to be constantly supervised and monitored, so that the only possible employment opportunity would lie in finding some form of sympathetic or sheltered employment.
 
9.	Plaintiff's counsel also called as a witness Ms Andiswa Gowa, an occupational therepist who confirmed that plaintiff was not, and never would be able to compete in the open labour market. During the course of interviews with plaintiff he appears to have misinformed the witness that he had failed both standards 6 and 8 (grades 8 and 10) when the available scholastic records, as well as the undisputed evidence of his brother Gregory Khumalo, indicate that he had only repeated one academic year (grade 10) and that this was due, not to a failure to achieve the required standard but to a decision to change from commercial to science subjects. 

10.	Plaintiff was attending and had successfully passed the half year examinations in standard 9 (grade 11) during 2004 when he was injured in the collision and did not return to school thereafter. Since then he has tried selling as a hawker, but without success. He appears unable to muster the necessary skills to succeed in this field and his attempts have effectively been therapeutic only. Ms Gowa confirmed and agreed with the findings of Prof Lazarus regarding the deficits suffered by plaintiff and also found that he lacked coordination, particularly in the lower limbs, thus rendering workplace activities such as climbing a ladder or scaffolding dangerous. She is in agreement that plaintiff is effectively and will remain unemployable in the open labour market. 
 
11.	Plaintiff's final witness was Ms Plaatjes, as Industrial Psychologist. She also accepted, in view of the circumstances and factors elaborated upon by the plaintiff's other expert witnesses, that despite plaintiff's completion of a grade 10 level of education, as a result of the collision he will likely be precluded from securing and retaining employment in the open labor market, even at the lowest levels.   

12.	At the end of the evidence for the plaintiff the remaining issues in dispute are therefore effectively limited to the quantification of plaintiff's damages for his loss of past and future earning capacity, as well as general damages. With regard to plaintiff's vocational potential Ms Goba and Prof Lazarus appear to accept that, upon the probabilities, plaintiff would have completed his matric, a view shared by Ms Plaatjes. Ms Goba made this concession in the light of the evidence that plaintiff had not had a history of failures at school, as she had previously been led to believe. All three witnesses also took into account the achievements of the plaintiff's siblings, where four out of eight had completed grade 12 with three of those four acquiring some level of additional tertiary education.
 
13.	The evidence of Ms Plaatjes in particular was geared to postulating what the plaintiff's likely career path and earning capacity would have been, but for the tragic consequences of the collision, the injuries suffered as a result by plaintiff and the sequellae of those injuries. Ms Plaatjes postulated two career scenarios for plaintiff. One in the non-corporate or informal sector and the other in the corporate or formal sector.  
 
14.	Ms Plaatjes developed a first scenario whereby the plaintiff was assumed to have entered the non-corporate or informal sector after he had obtained a grade 12 (matric) qualification and some form of post matric or tertiary qualification. In developing this scenario she postulated an initial period of sporadic employment of about 1 to 2 years before securing permanent employment at the lower level of the semi-skilled workers earning (at current levels) approximately R27 900-00 per annum (R2 325-00 per month). 
 
15.	Assuming the acquisition by plaintiff of some practical skills and some post grade 12 qualification, he would have progressed to the mean of the semi-skilled worker category after a further 2 to 3 years and without some post grade 12 qualification, then after 3 to 5 years, before earning in the region of R41 300-00 per annum (R3 441-67 per month).
 
16.	In terms of this model plaintiff would have reached his carreer ceiling after a further 5 to 7 years at an estimated remuneration of R110 000-00 per annum (R9 1 66-67 per month) until retirement at age 65.  
      
17.	 The second scenario assumes that plaintiff followed a career path in the corporate or formal sector with a grade 12 level of education and that he would have acquired some form of post grade 12 qualification. Here allowance is made for some 2 to 3 years of sporadic (informal sector) employment before securing permanent employment at an entry level position (at current rates) earning either a salary (at Peromnes 16/Paterson A3) of R55 000-00 per annum or a total remuneration package valued at R70 000-00 per annum.
 
18.	Depending upon plaintiff's ability to acquire additional skills through training he is assumed, with a post grade 12 qualification to have been promoted to higher grades at 3 to 5 year intervals and without a post grade 12 qualification at 5 to 7 year intervals, earning (at current rates) either a salary (at Peromnes 12/Paterson B4) of R100 000-00 per annum or a total remuneration package valued at R131 000-00 per annum.

19.	The calculations as postulated by Ms Plaatjes, although helpful, tend by their very nature to be speculative, although she professed to have taken a very conservative approach to estimating plaintiff's lost earning potential.  Mr Aboobaker SC, who appeared for the plaintiff, submitted that the Court should, on the probabilities, consider the features of the two scenarios postulated by Ms Plaatjes in arriving at the most likely assumed career path for the plaintiff as being too conservative. He submitted that allowance should be made for plaintiff to have completed his schooling, to have undergone some form of post grade 12 training and for his sporadic or initial unemployment, by assuming that he only commenced his working life at age 26 and then worked until retirement at age 65.

20.	In developing his argument with regard to the first scenario postulated by Ms Plaatjes, Mr Aboobaker submitted that plaintiff should be assumed initially to have entered the informal sector and to have earned an initial income (at current prices) of R27 900-00 per annum for 2 to 3 years. Thereafter and having acquired some skills and experience, that plaintiff would have progressed to an income of R41 300-00 for a further 3 to 5 years. To allow for the possibility of plaintiff having obtained post grade 12 qualifications, Mr Aboobaker submitted that plaintiff's increases should be staggered at 5 yearly intervals until he reached his ceiling (at current prices) of R110 000-00 per annum, whereafter allowance would only be made for inflationary increases until retirement.
 
21.	With regard to the alternative scenario of employment in the formal sector Mr Aboobaker submitted that allowance be made for an initial period of 1 to 3 years of sporadic employment at earnings of R1 000-00 per annum before plaintiff obtained employment in the formal sector at an entry level position (at current rates) earning either a salary (at Peromnes 16/Paterson A3) of R55 000-00 per annum or a total remuneration package valued at R70 000-00 per annum. To allow for the possibility of a post grade 12 qualification Mr Aboobaker submitted that plaintiff's increases should be staggered at 5 yearly intervals until he reached his ceiling earning (at current rates) either a salary (at Peromnes 12/Paterson B4) of R100 000-00 per annum or a total remuneration package valued at R131 000-00 per annum, whereafter allowance would only be made for inflationary increases until retirement.

22.	Mr Naidu, who appeared for the defendant submitted that there was no justification to assume plaintiff's employment in the formal sector, particularly in view of the large scale and chronic unemployment from which the country has suffered in the past and will, in all likelihood continue to suffer in the future. In his approach Ms Plaatje's second scenario should initially be disregarded and employment assumed to be limited to the informal sector only for a period of 7 to 10 years before assuming that plaintiff found employment in the formal sector, but then at the level of Peromnes 18 and not Peromnes 16 where Ms Plaatje's scenario 2 commenced.
 
23.	In the absence of any countervailing evidence from the defendant I do not believe that there are grounds for seriously doubting the quality of the evidence of Ms Plaatjes. She was at pains to stress that, in her view, her approach was a conservative one.  However, the Court is not bound by her evidence, particularly where she has made assumptions based upon little solid factual evidence relevant to the plaintiff himself. As already indicated above, the calculations as postulated by Ms Plaatjes, although helpful, tend by their very nature to be speculative at times. In the end the Court must make the best it can from the available facts and circumstances placed before it.
  
24.	Against the background of the facts placed before the Court, I consider it likely that the plaintiff would at least have successfully completed grade 12 before leaving school. Since plaintiff was 20 years of age and in grade11 when the collision occurred during 2004, in my view the probabilities favour the assumption that but for the collision the plaintiff would have been 21 years of age when he completed grade 12. Nevertheless, allowing for the possibilities of him having to repeat a year, spending a few years in obtaining a post grade 12 qualification and being unemployed, or sporadically employed in the informal sector before obtaining regular employment, I am prepared to accept that plaintiff would enter the field of regular employment at age 26.
 
25.	I consider it most probable that plaintiff's initial employment would have been in the informal sector, commencing at R27 900-00 per annum and progressing after a period of five (5) years to a salary of 41 300-00 per annum. Five(5) years later it is likely that the plaintiff, having gained in marketable skills and experience would have secured employment in the formal sector, entering as Ms Plaatjes postulated, at the 25th percentile level of Peromnes16/Paterson A3 at a basic salary of R55 000-00 per annum. It seems probable to me that five(5) years later plaintiff would progress and improve his position to the 50th percentile level of Peromnes15/Paterson B1 at a basic salary of R73 000-00 per annum. After a further five(5) years plaintiff is likely to further improve his position and to move to the 25th percentile level of Peromnes14/Paterson B2 at a total package remuneration of R92 000-00 per annum and moving, after a further five(5) years, to the 25th percentile level of Peromnes13/Paterson B3 at a total package remuneration of R108 000-00 per annum. Thereafter progression is likely to improve and five(5) years later plaintiff is likely to achieve the 50th percentile level of Peromnes12/Paterson B4 at a total package remuneration of R158 000-00 per annum before, after a further five(5) years reaching his career ceiling at the 50th percentile level of Peromnes11/Paterson B5 at a total package remuneration of R185 000-00 per annum until retirement at age 65.

26.	 The next issue which was hotly debated by counsel for the parties was what allowance should be made for contingencies in the circumstances. Mr Aboobaker for the plaintiff submitted that, in respect of the loss of past employment opportunities, a 10% contingency deduction should be made because a presumed period of unemployment had already been applied to this period. Mr Naidu for the defendant submitted that the contingency should be fixed at between 10% and 15% by reason of the high unemployment rates prevailing, especially among the young. In my view and bearing in mind that the plaintiff is only deemed to have commenced employment at age 26, a contingency deduction of 10% for the possibility of past unemployment would be justified.
 
27.	With regard to the appropriate contingency relevant to future unemployment Mr Aboobaker submitted that a 20% contingency would be in keeping with the normal approach. Mr Naidu for the defendant, again stressing the very real possibility of protracted unemployment in these uncertain times, contended for a contingency of 30%. Given the conservative approach adopted to the projected career path of the plaintiff, I consider that a contingency in respect of the possibility of future unemployment should not exceed 20% in the circumstances of the matter. 
 
28.	The next issue concerns general damages. Mr Naidu for the defendant correctly submitted that the determination of a just sum for general damages requires of the Court to be fair to both the plaintiff and the defendant. That, of course, is easier said than done. Fairness, like beauty, often resides in the eye of the beholder and depending upon one's vantage point, an award can appear overly generous or unduly parsimonious. In this case a young life has, for all intents and purposes, been ruined. Plaintiff is effectively unemployable and his ability to socialize has also been drastically curtailed. He depends, and will in the future have to depend, upon his siblings for care and protection. Given the epilepsy he suffers from, even with his diminished intellect, the plaintiff is aware and fearful of venturing too far away from home. Plaintiff has neither the intellectual ability, nor the physical stamina, to tackle any project which might otherwise occupy him. In the result plaintiff is condemned to a frustrating and empty existence, awaiting the next epileptic seizure. The disability which he suffers and will continue to suffer, together with the loss of the amenities of life, are of considerable significance.
 
29.	Mr Aboobaker submitted that general damages in the sum of R600 000-00 is called for. Mr Naidu for the defendant submitted that such sum is excessive and that R300 000-00 would be entirely adequate in all the circumstances. Counsel referred to some case law which is, as is often the case, not entirely helpful because each matter is judged upon its own peculiar facts. Ultimately the Court is called upon to weigh all the factors relevant to the determination of the appropriate sum to be awarded as general damages and to determine, in its discretion and as best it can, the award to be made. In my view the matter calls for significant general damages, but not as significant as contended for by plaintiff's counsel. In my judgment the sum of R420 000-00 in respect of general damages would balance the competing interests of the plaintiff and defendant in al the circumstances of this case and represent fair compensation to plaintiff for the damages he has sustained.
 
30.	Past medical expenses have not been pursued by plaintiff diring the course of the trial and the parties appear content that plaintiff's future medical expenses, limited to 90% thereof in terms of the agreement of the parties, be resolved by the defendant furnishing the plaintiff with an undertaking in terms of section 17(4)(a) of Act 56 of 1996, which undertaking should include the costs of the curator bonis to whom I will refer below.
 
31.	It is manifestly clear, in the light of the evidence presented on behalf of plaintiff at the trial, the plaintiff is not now and will not in the future be in a position to meaningfully attend to or manage his financial affairs. Should a curator bonis  not be appointed to take charge of the damages to be awarded to plaintiff herein, then the proceeds thereof are likely to be frittered away and the plaintiff will likely be left destitute in time to come.
 
32.	In the light of the rulings contained above, it will be necessary for the parties to submit the formulation of damages for loss of both past and future employment opportunities, calculated for present purposes at current prevailing rates, to an actuary for the calculation of the corrected sum will then be included in the final damages award to be made against the defendant and in favour of the plaintiff. Once calculated, the totality of the final award will be reduced by 10% in compliance with the agreement reached between the parties regarding defendant's liability to compensate the plaintiff. 
 
33.	During the interim the parties should also occupy themselves with an application for the appointment of a suitable curator bonis to the estate of the plaintiff so that, once the damages award is made after the actuarial  calculations have been attended to, payment can be made to such curator bonis. With regard to the powers to be conferred upon the curator bonis the parties are referred to the form of the order made in Smit NO v The Road Accident Fund, delivered on 23 March 2006 and reported in Corbett & Honey, Vol V, B4-251 at page B4-262 et seq.
 
34.	In the result and in the light of the rulings made, the matter is adjourned sine die pending the actuarial calculations to be obtained, as well as the appointment of a curator bonis to manage the affairs of the plaintiff, once the award is made in final form.  All questions of costs are reserved.

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Date Argued:			9 February 2010
Judgment delivered: 		16 February 2010
Counsel:
For Plaintiff:			Adv T N Aboobaker SC, instructed by 						Sudesh Sidhlall and Associates, Durban.
For Defendant:			Adv R Naidu, instructed by Zubeda Seedat 					& Company, Durban.