In the high court of south africa




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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE HIGH COURT: MTHATHA)

CASE NO: 09/2008


In the matter between:


MXOLISI MNGANI Plaintiff


And


ROAD ACCIDENT FUND Defendant

­

JUDGMENT


NHLANGULELA J:


[1] The plaintiff claims payment of R2 783 938,00 against the defendant as and for damages arising out of a motor vehicle accident in which he was involved as a pedestrian on 20 August 2006 at Coffee Bay, Mqanduli.

[2] On 25 November 2008 Majeke AJ granted an order in terms of which the defendant was held to be liable to compensate the plaintiff for damages as the plaintiff may prove. Therefore, the purpose of the trial before me was to determine the quantum of damages that the plaintiff is entitled to be paid.


[3] At the beginning of the trial I was advised by both parties that :

(a) The defendant had since given an undertaking to furnish the plaintiff with a certificate in terms of s 17 (4) (a) of The Road Accident Fund Act 56 of 1966 in respect of future medical expenses.

(b) The documentary evidence on general damages, past loss of income and future loss of earning capacity should be admitted without a need of calling witnesses.


Consequently, all that the Court was requested to do was to listen to submissions of the legal representatives of the parties on the admitted documentary evidence and law to determine the quantum of damages as claimed under general damages, past loss of income and future loss of earning capacity.


[4] A bundle of documents filed of record discloses numerous reports that were compiled by expert witnesses on various issues which are relevant to general damages and loss of earnings. Some of those experts had consulted with the plaintiff’s relatives and examined the injuries that were sustained by him. Others had only consulted with the relatives and studied documents. In the paragraphs that follow I recount the agreed facts which emanate from the said reports.


[5] The plaintiff, a pedestrian aged 29 years, was hit by a motor vehicle on 20 August 2006. As a result of that collision he sustained serious bodily injuries. Three doctors who examined and treated the plaintiff were J.R. Domingo and S. Jwara, the orthopaedic surgeons, and S. Nadvi, the neurologists. These doctors found that the plaintiff sustained a fracture of the right arm, laceration on the occipital area of the skull and an injury on the lumber and pelvis. The orthopaedic injuries caused radical nerve paralysis and post traumatic cyst due to remnants of the resolving subcutaneous hematoma and a mild scoliosis. Dr Nadvi summarizes the effects of the occipital injuries in the following terms:

I have now seen the MRI Scan of the brain performed by Dr R D Scott dated 28 January 2009. This confirms that Mxolisi has had a severe brain injury with evidence of previous axonal shear injuries associated with trauma. This would mean that Mxolisi sustained a severe brain injury. This would then tie in with his current behavioural and cognitive problems. As nearly three years have passed since the accident, I do not expect any further improvement in his neurologic status. Due compensation is advised“


[6] The physiotherapist, Ms Grace Hughes, states in her report that:

The humerus [of the plaintiff] was surgically stabilized, but the radical nerve palsy is unresolved. The wrist and hand now need surgery entailing multiple tendon transfers… In my opinion, even if he obtains optimum surgery and rehabilitation, he will not be able to sustain employment as a labourer.”

Ms Hughes, together with Dr Domingo opine that the cyst may be surgically excised.


[7] The details of the behavioral and cognitive problems of the plaintiff are well documented in the neuropsychological report by Ms Zanele Khumalo, the clinical psychologist. Her findings are the following :

Mr Mngani manifested with the following neurocognitive deficits :

  • severely diminished levels of attention and concentration

impaired learning and memory

severely impaired executive functioning

severely impaired immediate auditory attention and auditory memory

severely impaired sustained attention

severely impaired immediate visual and delayed visual memory

visual memory for well learned material is adequate and intact.

The finding above yield a picture that is suggestive of effects of severe traumatic brain injury with diffuse axonal closed head injury and with indications of specific impairment in executive functioning, frontal lobes and localized left hemisphere effects.”


[8] Ms Andiswa Gova and Mr Gideon de Kock, the occupational and industrial psychologists respectively, were presented with the medico-legal reports of the experts who have been mentioned above to advise on the vocational and employment prospects of the plaintiff. They studied the reports and interviewed Mr Pewula, the guardian of the plaintiff. They concluded that the serious behavioural problems of the plaintiff coupled with his neurocognitive deficits and intellectual impairment deprived him of any vocational and employment opportunities in the labour market.


[9] All the experts who have filed reports in this matter agree that the decline in plaintiff’s physical, psychological and intellectual abilities and quality of life resulting from the accident justify that he be compensated for damages he incurred.


[10] Mr Schoeman, the legal representative for the plaintiff, submitted that the appropriate quantum in respect of general damages is R500 000,00; for past loss of income it is R70 617,00; and for future loss of earning capacity it is R539 277,00. He is also asking for a costs order in favour of the plaintiff. As earlier on indicated, the defendant has agreed to pay for future medical costs. Mr Mafunda, the legal representative who appeared on behalf of the defendant, submitted that a sum of R350 000,00 would be an appropriate compensation for general damages. He based his submission on the caveat issued by Holmes J in the case of Pitt v Economic Insurance Co.


Ltd 1957 (3) SA 284 (D) at 287 F that courts must give just compensation to the plaintiff and refrain from pouring their largesse from the horn of plenty at the expense of the defendant. In reply, Mr Schoeman submitted that the recent judgment of this division, per Schoeman J, in Johannes Lodewickus Benade (Snr) and Johannes Lodewickus Benade (Jnr) v Road Accident Fund C/N 536/2007 shows that a sum of R500 000,00 in this case is a fair measure of compensation for general damages. It must decide the issue of general damages without much ado.


[11] It is a trite principle of our law that a court in search of an appropriate quantum for general damages must have regard to previous comparable cases. As stated by the Supreme Court of Appeal in De Jongh v Du Pisani [2004] 2 All SA 565 (SCA) at 682I an award made will be fair if it is consistent with previous cases of similar facts and law. However, such an approach is never applied mechanistically and a court has to exercise its discretion based on the peculiar facts of the case presented to it. In this regard see Benjamin N.O. v Road Accident Fund reported in Corbett and Honey: The Quantum of Damages Vol. 5, B4-205, at 207. Schoeman J referred to the cases of De Jongh and Benjamin, supra, with approval when dealing with general damages in the case of Benade, supra, at paragraphs [29] and [30]. I am bound to follow these decisions as well.


[12] The facts in Benade, which are relevant to the claim for general damages, were the following : On 10 March 2003 Mr Benade (jnr) was involved in a motor vehicle accident whilst he was driving a motorcycle. He was 19 years of age at the time. Mr Benade (snr), his father, brought an action for compensation against the Road Accident Fund on behalf of his son. Medical records show that the son sustained multiple injuries which were categorized as orthopaedic and neurocognitive deficits. The orthopaedic injuries he sustained were a whiplash injury, fracture of the left clavicle, compound fracture of the radius and ulna, fracture of the left 4th and 5th metacarpal shafts of the knucle joints of the hand, intra-articular fracture of the right distal radius, fracture of the right superior and inferior pubic rami of the pelvis and fracture of the right tibia. These injuries caused him severe pain and discomfort for a period of 1 year and 6 months. It was also envisaged that he would thereafter endure a moderate degree of pain and discomfort for a long time after medical operations were done. He indulged heavily in medically prescribed and street drugs after the accident. The court held that a sum of R600 000,00 was a fair and reasonable compensation to be awarded under a claim of general damages.


[13] Mr Schoeman referred other cases to the attention of this Court. These cases are : Zarrabi v The Road Accident Fund, Corbett & Honey, Vol. 6 B4-231 and Smit NO v The Road Accident Fund, Corbett & Honey, Vol. 5 B4-251, and Benjamin, supra, at B4-205 at 207. These cases were also referred to in the case of Benade.


[14] The court in Zarrabi awarded compensation in a sum of R600 000,00, the equivalent of R904 000,00 today, where the plaintiff suffered from impairment, personality change, spasticity of the right side and lack of drive. In Smit, supra, the plaintiff suffered multiple facial lacerations, fractures of the right humerus, left ulna, bilateral ankle fractures and the pelvis. She also sustained a brain injury which resulted in her intellectual impairment and behavioural change. The court awarded general damages in the sum of R670 000,00. In Benjamin, supra, the court awarded R400 000,00, the equivalent of R473 000,00 today, as compensation where the plaintiff, aged 8 years, had sustained brain injury that resulted in urinary incontinence, emotional fluctuation, daily headaches, low self-esteem and ridicule by other children. Mr Schoeman also submitted that this Court should be alive to the dictum in the case of Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) at 170 that a modern approach should be infused into the process of assessing damages in a case such as the present. In terms of this modern approach the courts are enjoined to have regard to individual freedom and opportunity, rising standards of living and the recognition that awards made in the past have been significantly lower than those in most other countries. In this regard see the case of Wright v Multilateral Vehicle Accident Fund 1997 NPD – Corbett and Honey : The Quantum of Damages in Bodily and Facial Injury Cases, Vol. 4 at E3-31.


[15] The past awards made in the cases referred to above give a helpful guide and, in my view, are supportive of the submission by Mr Schoeman that R500 000,00 is an appropriate award for the present case. The award in the sum of R600 000,00 would be excessive because Mr Benade (jnr) sustained more serious injuries than those suffered by the plaintiff in this case. The award in Benade seems to be consistent with the “modern approach”, just as the award of R500 000,00 in this case fits in hand-and-glove with that approach.


[16] I had the privilege of reading another comparative judgment of this division, per Dawood J, in Bulelwa Nonkwali v Road Accident Fund, C/N 771/2004 dated 21 May 2009. In my view the case of Nonkwali comes very close to the present case in terms of the nature and effect of injuries sustained by each of the victims in both cases. Ms Nonkwali, an adult female, was involved in a motor vehicle accident and, as a result, sustained injuries on the head, pelvis, left humerus, right tibia and fractures on the 5th, 6th and 7th ribs. The injury to the head presented her with neuropsychological and intellectual deficits consistent with a neurocognitive disorder. The orthopaedic injuries presented her with decreased physical mobility and agility of life, disfiguring scarring on the chin, lower lip and upper left arm. She experienced severe pain and inconvenience due to the injuries sustained. Vocationally, she could not do the work of an educator as before. She was certified as unemployable in the open labour market. The court awarded a sum of R500 000,00 as and for general damages.


[17] It bears mentioning that most of the comparable past cases referred to in the case of Benade were dealt with by Dawood J in the case of Nonkwali. In my view, the orthopaedic injuries sustained by Mr Benade were more serious than those sustained by Ms Nonkwali.

[18] In all the circumstances of this case I find that an award in the sum of R500 000,00 for general damages is fair and just.


[19] I next deal with a claim of damages for loss of income. It is common cause that at the time of accident the plaintiff was 25 years of age and was self employed. He worked as a builder of low cost houses in the rural community of Mqanduli. He is single and resides with his grand parents in Mqanduli. He earned R900,00 per rondavel as and when he was employed to build one. When not engaged in building he grew vegetables which he sold in the community. He has a grade 3 educational qualification. The actuarial calculation by Mr J.L. Olivier shows that he earned R21 600,00 per annum from his building activities. Earnings derived from vegetable business were not quantifiable. The use of his right arm and co-ordination between his brain and body is permanently impaired. He could therefore not proceed with his building activities. In terms of the orthopaedic report of Dr Domingo, neurocognitive report of Dr Nadvi, physiological report of Ms Hughes and psychological reports of Mrs Khumalo and Mr de Kock future surgical intervention and assistive devices will improve but not remedy his functional disabilities. According to the report of Mr Olivier a total sum of R609 894,00 is an appropriate compensatory relief for damage due to past and future loss of earnings but subject to contingency deductions as may be deemed appropriate to the court. He allocates a sum of R70 617,00 for past loss of income and a remaining sum of R539 277,00 for future loss of earnings.


[20] The defendant is not in agreement with the plaintiff that it would be proper for the court to apply the standard approach to deductions for contingencies and hazards of life at 5% and 15% for past and future loss of earnings respectively as espoused in the cases of Goodall v President Insurane Company Limited 1978 (1) SA 389 (W) and Road Accident Fund v Guedes 2006 (5) SA 583 at 588D-C. On the basis of this approach Mr Schoeman submitted that it would be proper for the court to deduct 5% of R70 617,00 = R3 530,85 in respect of past loss of income and 15% of R539 277,00 = R80 891,55 in respect of future loss of earning capacity. Mr Mafunda submitted that 5% contingency deduction for past loss of income is in order. On the question of future loss of earning capacity he submitted that it would be proper for a deduction at the rate of 30% to be applied because Mr de Kock stated in his report that plaintiff’s potential capacity to earn an income in the future could be assessed on the basis of chance. Mr Mafunda contended further that the reports by expert witnesses that the plaintiff earned income from building activities were based on hearsay evidence of Mr Pewula, the grand-father of the plaintiff. It bears mentioning that with diminished intellectual capacity and loss of ability to communicate the plaintiff could not on his own consult with experts to tell about his economic and personal circumstances.


[21] As I understand the submissions on the issue of contingency deductions the question that must be answered is whether the actuarial calculations are based on reliable evidence of Mr Pewula. In my view there can be no controversy arising from the evidence that was submitted by Mr Pewula to expert witnesses, including Mr Olivier, because both parties agreed at the outset of the trial that the contents of the reports should be admitted in evidence and that the contents of such reports be treated as being true and correct without a need of calling witnesses who had made those statements. Therefore, I am prepared to treat the actuarial calculations and all statements relevant thereto which appear in the reports submitted to the court on behalf of the witnesses as true and correct. Consequently, there will be deductions made for contingencies in respect of loss of income at the combined rate of 20%.


[22] In sum, I find that the amount of damages to be paid by the defendant should be the following :


1. General damages : R500 000,00

2. Past loss of income : R 70 617,00

Less 5% : R 3 530,85 R 67 086,00

3. Future loss of earning

capacity : R539 277,00

Less 15% : R 80 891,55 R 45 385,00

_____________

Total R1 025 471,00

_____________


[23] I now turn to deal with costs. These will be awarded in favour of the plaintiff because he has achieved success in these action proceedings. Such costs will include qualifying expenses attendant upon the employment of expert witnesses.


[24] In the result the following order shall issue :


1. The defendant is ordered to pay the plaintiff the amount of R1 025 471,00 as and for general damages, past loss of income and estimated future loss of earning capacity;

2. The defendant shall pay the plaintiff interest on the said sum in paragraph 1 above calculated at the legal rate from fourteen (14) days after the date of this judgment until the date of payment; and

3. 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 56 of 1996 to compensate the plaintiff for the costs of future accommodation of plaintiff in a hospital or nursing home or for the treatment of or rendering of a service supplying of goods to him after such costs have been incurred and on proof thereof, and

4. The defendant will be liable for the plaintiff’s costs together with interest thereon from a date of 14 days after taxation to date of payment; and

5. The aforementioned costs will include the qualifying, attendance and reservation fees, if any, of the following experts:


5.1 A. GOVA (occupational therapist);

5.2 Mr DOMINGO (orthopaedic surgeon);

5.3 J OLIVIER (actuary);

5.4 GIDEON DE KOCK (industrial psychologist);

5.5 S NADVI (neurosurgeon);

5.6 Z KHUMALO (clinical psychologist);

5.7 G HUGHES (phsysiotherapist);

5.8 R D SCOTT (radiologist).


_____________________________

Z.M. NHLANGULELA

JUDGE OF THE HIGH COURT

HEARD ON : 18 NOVEMBER 2009

DELIVERED ON : 21 JANUARY 2010


Appearing for the Plaintiff : Mr Schoeman

Instructed by : Mpambaniso Attorneys

Locally represented by

Mgxaji Co Inc

3 Glencombe Flats

MTHATHA



Appearing for the Defendant : Mr Mafunda of

Potelwa & Co

43 Wesley Street

MTHATHA

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