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IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case No.: 1471/95

Date delivered: 23 May 2008

JOHNSTON CURRIE Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

JUDGMENT

JANSEN J:

On 14 July 1990 the plaintiff was involved in a serious motor vehicle collision. He instituted action originally against Santam Insurance Limited who was an appointed agent in terms of the provisions of Act No. 93 of 1988. Santam Insurance was subsequently substituted as the defendant by the Road Accident Fund. On 26 August 2005 the matter came before Liebenberg J. He granted an order separating the merits of the case from the quantum of damages. On 13 October 2005 Liebenberg J gave judgment and ordered the defendant to pay the plaintiff’s damages as proved or agreed. Costs were also awarded to the plaintiff. The plaintiff and the defendant could not agree on the quantum of damages suffered by the plaintiff. The case before me was therefore only on the question of damages.

At the trial on quantum of damages no evidence was placed before me on behalf of the defendant. Evidence adduced by the plaintiff is therefore uncontested and the plaintiff’s damages have therefore to be determined on the plaintiff’s evidence.

It is common cause that the plaintiff, at the time of the collision a young man of 37 years, was employed by the Ibhayi City Council as an assistant superintendent. At the time of the collision the plaintiff was a workman as defined in the Workmen’s Compensation Act No. 30 of 1941. The plaintiff was injured in the course of his employment with the Ibhayi City Council. The plaintiff has received a pension from the Workmen’s Compensation Commissioner in terms of the Act. It has been agreed by the parties that the total sum of R295 726,02 has thus been received.

Plaintiff claimed for past medical expenses an amount of R20 640,87. The plaintiff, however, received compensation in terms of the Workmen’s Compensation Act in that amount, and I do not pay any further attention to that.

The plaintiff also claims an amount of R1 256 160,00 for future medical expenses. The defendant, however, undertook to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act to cover future hospital and medical expenses which the plaintiff may incur.

As far as loss of earnings is concerned the plaintiff claims an amount of R5 100 000,00 which amount was in dispute before me.

For general damages the plaintiff claims an amount of R700 000,00. The general damages claim is also disputed.

It is common cause that the plaintiff was medically boarded on 5 May 1993 as a result of the injuries that he sustained in the collision. The plaintiff also claims an amount of R17 723,02 as loss of earnings prior to boarding. This amount was however paid to the plaintiff as an advance by his employer and the said amount was in turn paid by the Workmen’s Compensation Commissioner to the plaintiff’s employer. It, therefore, also has to be ignored at this stage.

It was not contested that as a consequence of the collision the plaintiff sustained severe bodily injury and in particular (a) a laceration of his right ear; (b) a fracture of the occipital region of his skull; (c) a laceration of the right temple region; (d) an association fracture of the right frontal region of his skull; (e) a laceration above his right eye; (f) two lacerations of his chin; (g) a fracture of the right forearm; (h) a compound fracture of the left forearm; (i) a fractured nose; (j) a laceration to his nose; (k) a fracture of the zygoma on the right side; and (l) an injury to his right hip.

As a result of the injuries sustained in the collision the plaintiff was hospitalised in the Livingstone Hospital from 15 to 31 July 1990. The plaintiff has a complete loss of memory regarding his admission to and treatment in the Livingstone Hospital. The plaintiff was then transferred to the St George’s Hospital on 31 July 1990 until his release on 30 August 1990. The plaintiff underwent open reduction and internal fixation surgical procedures to both arms on 2 August 1990. On 2 October 1990 the plaintiff underwent a Gillies Lift surgical procedure to the fractured zygoma. On 25 October 1990 he underwent surgical removal of the plates from his right arm whereafter his right arm was in plaster of paris for three months. On 4 July 1991 the plaintiff underwent the surgical removal of the plates from his left arm. He suffered infection to both arms and on 5 November 1992 sequestrectomies were performed on both his arms. He, however, continued to suffer from infection in his arms and in 2004 the tip of the left ulna was surgically removed as a result of infection. The plaintiff is unable to lift or carry heavy weights and is unable to manipulate objects. He has significantly reduced grip strength and dexterity in both hands. The plaintiff is unable to drive a truck but is only able to drive his motor vehicle for short periods of time. He is unable to make a fist with his left hand. His right forearm is deformed due to angulation and the arm has been shortened. The plaintiff furthermore sustained a moderately severe diffuse axonal traumatic brain injury that resulted in a significant intellectual compromise. The plaintiff furthermore suffered from a chronic adjustment disorder with mixed anxiety and depressed mood. He lost all his upper teeth, including the roots. He is therefore unable to chew properly and any chewing is painful. He will have to obtain dental implants. The plaintiff has facial asymmetry with flatness of the left zygoma and an enopthalmic right eye. He used to suffer from stabbing pains in his face due to an injury to the right infra-orbital nerve but this is now resolved. The plaintiff further used to suffer from dysaesthesia in the right temporal region but this has now also resolved. He lost a portion of his right ear. He has significant obvious scars on his head and face. The plaintiff initially suffered from chronic headaches on a daily basis which have progressively resolved to the present situation where the plaintiff suffers from severe throbbing headaches approximately three times a month. This was originally treated with Stilpain tables but only with Panado at the moment. The plaintiff will continue to suffer from headaches for the rest of his life. He has suffered and continues to suffer from pain in his right hip.

The plaintiff pre-morbidly coached rugby and boxing but is unable to return to these activities. He is unable to write for more than five minutes at a time. He is permanently and totally unemployable.

The plaintiff suffered an injury to the lacrimal gland which causes his right eye to tear spontaneously. He will have to undergo maxillo-facial surgery for the correction of his facial asymmetry and the enopthalmus. The plaintiff will also have to undergo a septoplasty following the fracture of the nasal septum in the collision.

The plaintiff’s sex life was adversely affected. He is further unable to wash and dress himself properly. He needs assistance with these simple tasks. He initially needed assistance to go to the toilet.

It was properly conceded by Mr Frost on behalf of the defendant that the plaintiff was involved in a very serious condition with dramatic sequelae. The plaintiff would for the rest of his life not have a normal active life. He is severely handicapped. Both counsel referred me to various awards made by various courts over a period of time where similar injuries, some less serious and others more serious, were sustained by victims of motor vehicle collisions. Each case, however, has to be determined on its own facts. I have properly considered the plaintiff’s case and all the cases referred to by counsel which I need not repeat in this judgment. I am of the view that the plaintiff should be awarded an amount of R550 000,00 for general damages.

An actuary, Mr Alexander Munro, was called to give evidence on behalf of the plaintiff. His calculations were not disputed. Mr Munro assumed for purposes of his calculations that prior to the plaintiff’s boarding on 5 May 1993 he did not experience a loss of income. He therefore ignored any period prior to this date. He took into account that at the time of his boarding he was earning a basic income of R41 112,00 per year, a bonus of R3 426,00 per year, a housing subsidy of R5 160,00 per year, medical aid of R6 000,00 per year, overtime and standby in an amount of R24 551,00 per year and a 18% of his basic salary contribution by his employer to his pension fund.

It was accepted that the plaintiff would have been promoted during 1994 to the position of superintendent and that he would have earned the following in current terms from that date onwards: (a) a basic salary of R185 532,00 per year; (b) an annual bonus of R15 461,00 per year; (c) a medical aid subsidy of R12 084,00 per year; (d) a housing subsidy and Group Life allowance of R10 644,00 per year; (e) that the plaintiff would have worked approximately 9 hours per month at 1,5 times normal rate which amounts to 7,8% of his basic salary; and, (f) that he would have continued to receive the same contribution towards his pension fund. Nothing of this was placed in dispute by the defendant.

Mr Munro’s method of calculation of the plaintiff’s past loss of income and his future loss of income was not disputed on behalf of the defendant. According to these calculations the plaintiff suffered a past loss of income excluding any travel allowance in a sum of R1 869 600,00. According to Mr Munro the capital value of the loss of future income excluding any travelling allowance until a retirement age of 65 is R2 268 700,00 if notch increases over and above inflation each year are allowed. It must be accepted that the plaintiff would have been close to the top of his rank and therefore probably not for long entitled to the 2% notch increase. The evidence of Mr Martiny on behalf of the plaintiff is undisputed that the plaintiff would, in spite of the fact that he had reached the top of his rank, probably have received performance related increases in his salary. That could be anything up to a 10% increase. I have therefore decided to accept the calculated figure given by Mr Munro allowing for a 2½% notch increase as far as future loss of income is concerned. I in particular have decided to do that in the light of his evidence that he based his calculations on a future earnings inflation rate of only 5,4% per annum.

It is in dispute whether the plaintiff is entitled to damages relating to loss of travel allowances. Mr Mlunsi Febane testified on behalf of the plaintiff. He is presently a superintendent employed by the Nelson Mandela Bay Municipality in the Waterworks Department. He did his apprenticeship under the plaintiff. He is receiving a motor allowance of R5 894,00 per month. According to Mr Febane this allowance was calculated after a period of six months spent in the position of Superintendent. During those six months he had to keep record of all his expenses incurred whilst performing his duties. He had to keep record of the distances travelled and all related expenses. It was only then that the motor vehicle allowance was fixed. With that allowance he has to buy himself a motor vehicle and maintain it and has to use it for all official duties. He is, however, also allowed to use the vehicle for private purposes. It is clear to me that this allowance is primarily paid to him for work related purposes. That is why it was calculated only after six months records had been considered. The plaintiff did not work and is not going to work in the future. He did not have those expenses and will not have it in future as he would have had, had it not been for the injury. In my view, he cannot be compensated for a loss of income where that income is supposed to be primarily utilised for work related expenses. I have carefully considered the issue and believe that for the benefit of the personal use of a motor vehicle that the plaintiff never had, he should be awarded a percentage of the travel allowance that he would have received had it not been for the injury. The past travel allowance was calculated to be R644 500,00 and the future travel allowance in the amount R547 100,00. I believe that 20% thereof should be awarded to the plaintiff. That is calculated in an amount of R238 320,00.

The plaintiff’s total loss of income is calculated to be R4 376 620,00.

The contingency factor should also be taken into account. I accept that the plaintiff was in good physical health and that he enjoyed his work. I also accept his evidence that he would probably never have left the employ of the local government. The plaintiff was pre-morbid of high intelligence. At school he skipped a couple of standards and he obtained NTC3 within two years after school. I further accept that had it not been for the accident he would probably have continued with his studies to qualify himself as a water engineer. Although there may be work related dangers attached to his work as a plumber that probably decrease with the rank of superintendent and ever more so when a person reaches the position of a water engineer. I am of the view that a contingency factor of not more than 5% should be allowed in this case. That brings down the plaintiff’s award for loss of income with an amount of R218 831,00 which leaves us with a total of R4 157 789,00. The plaintiff is currently receiving a monthly pension of R1 624,66. The present capital value of this pension as calculated by Mr Munro is R229 857,00. This must be deducted from the amount of R4 157 789,00 which leaves us with a total of R3 927 932,00. It is further common cause that the plaintiff has thus far from the Workmen’s Compensation received a total amount of R295 726,02. This amount should also be deducted. The plaintiff is therefore entitled to an award of damages for loss of income in the total of R3 632 206,00.

In the result, I give judgment in favour of the plaintiff as follows:

1. Payment of the amount of R4 182 306,00 for damages.

2. Interest on such damages calculated at the legal rate of interest from a date 14 days after judgment to date of payment.

3. The defendant is directed to furnish the plaintiff with an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act to cover future hospital and medical expenses which the plaintiff may incur resulting from the collision.

4. Costs of suit together with interest thereon at the legal rate calculated from a date 14 days after the date of taxation to date of payment which costs shall include the qualifying expenses, if any, of the following witness:

Dr R J Keely

Dr A H Cassim

Mr M Eaton

Dr C Edelstein

Dr J F Forges

Ms A van Zyl

Dr D Barkley

Mr L Martiny

Mr A Munro

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J C H JANSEN

JUDGE OF THE HIGH COURT

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