REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT
JOHANNESBURG

CASE NO:   2008/11330

(1)	REPORTABLE: YES 
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

HALL, IAN CHRISTOPHER						    Plaintiff

and

ROAD ACCIDENT FUND						          Defendant
______________________________________________________________ 

J U D G M E N T
______________________________________________________________ 

MOSHIDI, J:

INTRODUCTION

[1] 	The plaintiff, a sales manager, has instituted an action against the defendant in consequence of certain bodily injuries which he sustained in a motor collision.  The collision occurred along Glenhove Road, Houghton, Johannesburg, on 16 July 2005. 

[2] 	I must hasten to mention that the trial commenced on 23 October 2012, and final arguments were presented on 2 November 2012 when judgment was reserved. Thereafter, the parties kindly undertook to secure a transcript of the proceedings which was duly furnished to me on or about 19 November 2012. This was not long before the December 2012 court recess. The transcript itself, containing the evidence of some 16 witnesses, ran into 405 pages.

COMMON CAUSE FACTS

[3] 	At the commencement of the trial, the defendant had already conceded in favour of the plaintiff in full the merits and negligence.  It was also agreed that the plaintiff’s past medical and hospital expenses was the amount of R56 187,20. As far as the plaintiff’s future medical and hospital expenses are concerned, it was accepted that the defendant would furnish him with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996.  Consequently, the only issues for determination in this trial are the plaintiff’s damages for loss of future income or loss of earning capacity as well as general damages.

[4] 	It was not in dispute that as a result of the accident, the plaintiff sustained a fracture of the left humerus;  fractured ribs on the left side; a concussive head injury of moderate degree; a left 6th cranial nerve lesion; soft tissue spinal injuries of the neck and back;  and various abrasions.  It was equally not in dispute that the plaintiff was born on 12 November 1966 and therefore 45 years of age at the time of the trial. The injuries referred to above were sustained when the plaintiff was run down while cycling.  

THE EVIDENCE OF MRS K J HALL

[5] 	The plaintiff did not testify but he was in Court.  However, nine witnesses did so on his behalf.  Mrs K J Hall, the plaintiff’s wife, testified that they had been married for some 22 years and lived together.  She was employed as a manager in the banking sector.  On the Sunday morning of the collision she was contacted by one of plaintiff’s co-cyclists and informed of the accident.  She immediately proceeded to the Union Hospital in Alberton.  On arrival, she was not permitted to see her husband since he was already admitted to the trauma unit by ambulance.  Later, after about two hours, she saw the plaintiff being wheeled out in a bed towards the Intensive Care Unit (“ICU”).  The plaintiff appeared unconscious, and not responsive to his wife.  Later while still in ICU, Mrs Hall was allowed to see her husband. The plaintiff was in pain, confused and disorientated.  

[6] 	Mrs Hall spent the new few days visiting the plaintiff on a regular basis at the ICU.  In the next five days he became more lucid.  When he was discharged and at home the plaintiff remained disorientated.  He had no recollection of riding his bicycle on the day of the collision.  He had memory losses, such as not recalling that he was home.  This condition lasted over two/three weeks before it improved. The plaintiff was previously involved in several sporting activities, including cycling, as discussed later below.  

[7] 	As in sports, career wise, the plaintiff was equally highly motivated and enjoyed thoroughly what he was doing. In January 2004 he was employed as a Sales Manager, Gauteng Region, by a company called Flowcrete Specialists Flooring (“Flowcrete”).  His commencement salary was R18 000,00 per month plus a travel allowance of R6 000,00 per month as well as a company motor vehicle. According to Mrs Hall, the plaintiff was recruited to the company by Mr Harrison, one of the witnesses who testified for the plaintiff. It was a new company.  The plaintiff had high aspirations and was looking forward to a higher position such as a Directorship.

[8] 	However, after the accident in July 2005, there were several drastic changes in the plaintiff’s personality. For example, he developed anger and frustration.  He was scared to ride on his bicycle. Although he later returned to work on a full-time basis he remained de-motivated with no aspirations.  He was not promoted.  He could not cope.  His pre-accident phenomenal memory had faded.  He could not handle stress and competitiveness.  He subsequently resigned or was asked to resign from the company.  The plaintiff’s consumption of alcohol increased.  The plaintiff also subsequently lost his employment at Verni Speciality Construction Products where he was employed as a Technical Development Manager by Mr Vernon Botha, one of the witnesses, from January 2010. His basic salary was R13 385,00 per month. Thereafter the plaintiff continued to look for other employment, mostly without any success.  After about six months of his resignation at Verni Speciality Construction Products, the plaintiff became employed in a temporary/ad hoc position as a Sales Assistant at Finish Line Cycles by Mr Clinton Curtis.  This was from 10 September 2012 up to the present, as testified to by Mr Curtis.  He earns about R2 00,00 per day.  According to Mrs Hall, the plaintiff appears to be a much more pleasant person mentally and psychologically at his current employment. He has a great interest in cycling sport and gets on very well with the people there and with Mr Curtis. However, when he testified, Mr Curtis alluded to certain disturbing unreliable conduct on the part of the plaintiff in the work environment.  Mrs Hall was however hopeful that with the combination of the medication currently taken stress levels were likely to decrease.  

[9] 	Mrs Hall testified that prior to the accident and as far back as the 1980’s, her husband became involved in canoeing and triathlon.  He successfully completed a number of endurance events. Thereafter the plaintiff challenged to compete the Dusi and the Fish River Canoe Marathon which he accomplished.  Thereafter the plaintiff aspired to running the Comrades Marathon which he also successfully completed subsequently. However, between 1996/97 the plaintiff took up cycling more competitively.  In his first year (1997) of competition he was awarded several medals at provincial championships, and went on to the South African Championships in that category of track cycling. He was in excess of some 30 South African Gold Medals and Titles.  He won four World Titles in Manchester.  He trained regularly from 04h00 in the morning before going to work and thereafter in the evenings until late.  

[10] 	In cross-examination, Mrs Hall said that in advising her husband from time to time on his career, she relied on her qualifications of a B.Com in Industrial Psychology as well as an Honours in Business Management.  The plaintiff abandoned gambling and was not addicted to alcohol as a social drinker.  The plaintiff currently manages his finances responsibly.  She disagreed with the version put to her that since the plaintiff’s Glasgow Coma Scale (“GCS”) was recorded as 15/15 on admission to the Union Hospital, he was awake and orientated.  She first met the plaintiff at school in 1982 and could not confirm all his qualifications in sales management. The rest of Mrs Hall’s evidence was not seriously challenged.  

THE EVIDENCE OF MR S A HARRISON

[11] 	Mr S A Harrison, the managing director of Flowcrete, testified that he knew the plaintiff not only from Flowcrete, but also from a company called Ivory Industrials (Pty) Ltd where the plaintiff was a colleague as sales manager from 1 May 2003 to 31 January 2004.  Flowcrete was a chemical manufacturing business.  He recruited the plaintiff to Flowcrete based on the plaintiff’s competence as a salesperson in early 2004.  The plaintiff performed extremely well so much that by the end of the first year the business had a turnover of approximately R8 million from a fresh start.  By the time of the accident the plaintiff was earning about R25 630,00 per month and would have received a 13th cheque as a performance bonus, and inflationary increases over 8%. There were high prospects of promotion to either General or National Sales Manager at about R43 000,00 to R45 000,00 per month.  The plaintiff was in the prime of his long career as a salesperson with an excellent memory.

[12] 	In the testimony of Mr Harrison, the plaintiff’s performance post-accident deteriorated rapidly.  The plaintiff became erratic, unstable, unable to separate personal issues from work, and was confused about just many things.  Mr Harrison was compelled to take a business decision which resulted in the termination of the plaintiff’s employment in December 2006.  Thereafter the plaintiff was employed as Area Manager at BASF Construction Chemicals SA and later by Verni Speciality Construction Products, as testified later by Mr Botha on behalf of the defendant. Mr Harrison was, however, aware that plaintiff’s employment at Verni Speciality did not last for long.  Mr Harrison confirmed that when subsequently contacted by the plaintiff early in 2012, he declined to re-employ him.  

[13] 	The cross-examination of Mr Harrison confirmed that his company had prospects of promotion for the plaintiff although promotion to a Directorship became a little controversial in the evidence later herein.  His evidence also confirmed his knowledge of the plaintiff’s qualifications in sales.  

THE EVIDENCE OF MR C CURTIS (PRESENT EMPLOYER)

[14] 	Mr Clinton Curtis, the present employer of the plaintiff, since about June 2012, testified.  His company, Finish Lines Cycles, has been in existence for some 18 years.  Prior to the accident in question, he knew the plaintiff as a motivated, disciplined and dedicated person.  However, since the accident, he noticed vast changes in the plaintiff’s personality. The plaintiff was no longer confident, he apologised frequently for no apparent reason, is highly strung, and not easygoing.  The plaintiff’s performance as a sales representative, although generally satisfactory, has become unpredictable and unreliable.  Mr Curtis related certain incidents which occurred at work when the plaintiff hit a book on the table badly, and an incident when the plaintiff, after speaking to a customer over the telephone, went to his motor vehicle and fetched his teazer gun.  On this occasion, the plaintiff was seemingly convinced that the customer would come into the shop later and fight with him.  On another occasion, when a customer was abrasive, the plaintiff told the customer that he, the plaintiff, took pills not to kill people such as the customer concerned.  All this occurred despite the fact that most of the customers who come into the bicycle shop, are pleasant people.

[15] 	The environment in the bicycle shop can be stressful especially when deadlines regarding customers’ orders have to be met. The plaintiff was unable to handle such stress.  On certain days when the plaintiff was in a stressed mood, Mr Curtis was unsure whether the plaintiff would return to work the following day.  Mr Curtis would not venture to leave the plaintiff on his own to run the business.  Neither does he believe that the plaintiff could run a bicycle shop on his own.  

[16] 	The crux of Mr Curtis’ evidence was that the employment of the plaintiff was precarious.  If he were to employ the plaintiff on a full-time basis, he would pay him an all inclusive amount of R10 000,00 per month only.  

[17] 	In cross-examination, Mr Curtis listed some of the residual positive characteristics of the plaintiff. The plaintiff is well-spoken, fully bilingual and carries great respect and credibility as a four times Cycle World Champion.  Mr Curtis sponsored the plaintiff’s cycling sport in the past.  The plaintiff is a better salesperson than any of the casual staff.  

THE EVIDENCE OF DR H J EDELING

[18] 	Dr H J Edeling, a neurosurgeon, testified for the plaintiff. He assessed the plaintiff on 12 July 2010, and prepared a report, and also compiled a joint minute with his counter-part, Dr C S van Heerden.  In the joint minute, the neurosurgeons agreed that the injuries sustained by the plaintiff, as listed in para [4] of the judgment, were common cause.  Significantly, the agreement was that the head injury was of a moderate degree.  In addition, the neurosurgeons agreed that the opinions of the neuropsychologists and the psychiatrists should be considered in order to establish the probable sequelae of the head injury.

[19] 	However, Dr Edeling was of the view that the concussive head injury has resulted in permanent neuropsychological and in neuropsychiatric sequelae and that the plaintiff also has psychological sequelae as a result of the physical injuries.  In the view of Dr Edeling, these neuropsychological and neuropsychiatric sequelae of the brain injury contribute to the plaintiff’s employment disability as well as his losses of amenities and enjoyment of life.

[20] 	In his report, one of the relevant conclusions made by Dr Edeling was that:

“In addition to limitations imposed by his physical impairment, neurophysical impairment and cognitive mental impairment (as quantified by the occupational therapists and neuropsychologists), it is anticipated that his ability to apply his retained intellectual capacity will be jeopardised by less readily quantifiable executive mental impairment and fatigue, as well as by mood and personality factors.  He is considered to be a vulnerable individual with some neurological loss of the ability to act in his own best interest.”  (see paras 7.7 and 7.9 at p 20 of exhibit “C”).

THE EVIDENCE OF DR C VAN HEERDEN

[21]	I must hasten to deal briefly with some aspects of Dr Van Heerden’s evidence which were rather worrisome, and sharply contradictory. He discarded the possibility that the plaintiff was unconscious, confused or disorientated immediately after the collision and upon admission to the Union Hospital.  This discarding was based on the recorded ambulance and hospital notes which show that the plaintiff’s Glasgow Coma Scale (“GCS”) had always been 15/15.  However, Dr Van Heerden, who testified for the defendant, went on to concede that:

“… In some of the notes they also report that the patient was confused as a Glasgow Coma Scale of 15/15 is consistent with mild confusion.  It means the patient is fully awake, alert and orientated. So there is some controversy on that.”  

Dr Van Heerden also conceded readily that he relied only on the opinion of Dr Van der Meulen, a neurosurgeon, who initially saw the plaintiff at the hospital.  In any event, this evidence was reliably countered by the more credible evidence of Mrs Hall who continuously visited the plaintiff at the hospital from the time she became aware of the collision.  In all probability, the plaintiff was unconscious immediately after the accident and/or during his admission at hospital. 

[22] 	What followed in Dr Van Heerden’s evidence-in-chief was even more troublesome. He testified that the biggest problem which the plaintiff had was his state of depression post-accident.  He expressed the view that the depression was not as a result of an organic brain dysfunction, but rather mainly as a result of the circumstances in which the plaintiff found himself.  Dr Van Heerden accepted that the plaintiff had suffered a concussive head injury.  Dr Van Heerden concluded that from the available information and notes of the treating neurosurgeon, the plaintiff appeared to have suffered a relatively minor concussive head injury from which one would not expect any major psychological sequelae as a result.  The views of Dr Van Heerden that he could find no evidence of physical problems from a neurosurgical perspective on examination of the plaintiff were rather tentative.  He instead deferred to a full neuropsychometric assessment.  A second assessment of the plaintiff by Dr Van Heerden on 15 August 2011 did not alter his initial views.  

[23] 	At the outset of cross-examination, Dr Van Heerden was driven to concede that his evidence that the plaintiff suffered a relatively minor concussive head injury with no resultant psychological sequelae, was in direct conflict with that of Dr Edeling, as stated earlier in the judgment.  When pressed further, Dr Van Heerden further changed his viewpoint by opining that he thought the plaintiff had a mild to moderate concussion.  In his view, although agreeing with Dr Edeling, the difference between a mild and moderate concussion was insignificant in the assessment of a patient in the long-term as it boiled down to a matter of semantics as to whether it is mild or moderate.  When further confronted as to why he again changed his opinion, Dr Van Heerden, either evaded the question, or could not advance a credible explanation. In the end, Dr Van Heerden re-endorsed the opinion expressed in the joint minute with Dr Edeling that the plaintiff suffered a moderate head injury.  

[24] 	In the course of further cross-examination, Dr Van Heerden made other significant concessions which paved the way to accepting as credible and more probable the findings of Dr Edeling.  Dr Edeling found, inter alia, that the plaintiff’s head and neck injuries were considered to have resulted in chronic headaches and neck pain, and that his brain injury is considered to have resulted in permanent neuropsychological and neuropsychiatric sequelae.  These, and the psychological sequelae of the plaintiff’s brain injury contribute to his employment disability as well as his losses of amenities and enjoyment of life.  At the risk of being unduly critical of Dr Van Heerden, the Court gained the distinct impression that his testimony in deviating from the joint minute, for no visible justification, showed that he somewhat lacked independence, objectivity and largely abandoned the role of being of assistance to a Court in matters such as the current one.  This was regrettable. 

THE EVIDENCE OF DR SHEVEL

[25] 	Dr D A Shevel, a psychiatrist, testified for the plaintiff while Dr A Fine, also a psychiatrist, testified for the defendant.  Dr Shevel assessed the plaintiff in March 2010 and again in May 2012, and prepared two reports.  Drs Shevel and Fine also prepared two joint minutes on 1 August 2010 and on 10 October 2012.  The joint meetings were intended to consider any possible psychiatric sequelae resulting from the injuries sustained by the plaintiff in the collision.  Dr Fine also assessed the plaintiff on two separate occasions, namely on 19 August 2011 and on 21 September 2012.  

[26] 	Briefly stated, the two psychiatrists essentially agreed with the views of Dr Edeling.  In 2010 the psychiatrists agreed that the plaintiff suffered multiple injuries including a significant head injury. It was agreed that the plaintiff has ongoing symptoms of an organic brain syndrome (mild) post-traumatic with associated features of depressive illness.  It was further agreed that the plaintiff is likely to require long-term intermittent psychiatric treatment as well as psychotherapy, and that his occupational functioning has been adversely affected.  However, the plaintiff retains occupational capacity. The plaintiff’s functioning level is lower than before the accident.  The occupational dysfunction is due to the physical orthopaedic injuries sustained in the accident, coupled with the symptoms connected to the organic syndrome. There was also a history of impulsive and disinhibited behaviour post-accident.

[27] 	In his evidence, Dr Shevel expressed the view that there is excessive impulsiveness in people with head injuries, and should things go wrong in life, the head injured cannot acclimatise.  Individuals with head injuries are also easily manipulated and are vulnerable. The plaintiff, due to his condition, requires to be micro-managed which was the current situation at home and at work.  At work the plaintiff was unable to deal with a difficult customer.  He is reliant on a sympathetic employer.  Dr Shevel was of the view that employers may find it difficult to cope with the plaintiff and become impatient with his reactions.  More significantly, Dr Shevel testified that frontal lobe injured persons almost always burn out at generally between 5 to 10 years post-accident.  They can, however, do the work whilst being functionally unemployable.  They, however, lack the motivation to actually perform duties, which is the case with the plaintiff.

THE EVIDENCE OF DR L FINE (PSYCHIATRIST FOR THE DEFENDANT)

[28] 	It will not be unfair to the defendant to observe that when he testified, Dr Fine was generally in agreement with Dr Shevel on the sequelae of the injuries sustained by the plaintiff.  The organic impairment component in the plaintiff cannot be treated.  It was common for people with depression, such as the plaintiff, to look for outlets which could account for behaviour such as gambling and the use of alcohol. Dr Fine expressed the view that although the plaintiff still requires treatment and the accompanying medication, his prognosis remains poor because of the brain injury.  If confronted with a stressful situation at work he moves into a dysfunctional mode, which can last up to a week or two.  This evidence was corroborated by Mr Clinton Curtis, the present employer of the plaintiff.  Dr Fine was of the view that surgical interventions will need to occur in the future which will lead to emotional deterioration.

[29] 	In cross-examination, Dr Fine agreed largely with the views put to him on behalf of the plaintiff.  For example, he agreed that the pain and disability wears down even the healthy mind. A brain damaged person’s employability is significantly affected.  The plaintiff was in need of a sympathetic employer.  This opinion of Dr Fine was never sought to be challenged during the trial at all.  Further, this was admitted in the defendant’s heads of argument.  There is no doubt to his uncontroverted testimony.  

[30] 	Dr M J Mazabow, a clinical psychologist with a neuropsychological practice, testified for the plaintiff.  He assessed the plaintiff on 11 December 2008, compiled a report which he confirmed in his testimony.  His counter-part, Mrs R du Plessis, also testified for the defendant.  These two expert witnesses agreed with the views of Dr Edeling.

THE EVIDENCE OF DR M MAZABOW AND MRS R DU PLESSIS

[31] 	In the light of the substantial agreement between Dr Mazabow and Mrs Du Plessis, it was unnecessary to detail in full all their evidence. In short, they agreed that the plaintiff sustained a significant head injury; they agreed that the plaintiff’s neuropsychological profile at assessment is compatible with the sequelae of a severe concussive head injury; that the plaintiff’s neurological profile included mostly preserved cognitive intellectual functions, with his main areas of difficulty relating to an attention/concentration variability, undermining the application of several of his abilities; they agreed that the reported behavioural inter-personal and psychological changes in the plaintiff are likely associated with a severe concussive injury; they further agreed that the depression will exacerbate plaintiff’s concentration problem; there was further agreement that the plaintiff’s variable cognitive functioning and compromised emotional/psychological and interpersonal functioning would restrict him from applying effectively his pre-accident potential within the workplace;  it was further agreed that the problems with concentration and impulsive behaviour are likely to manifest in the work environment, the more demanding the work environment, the clearer this will show up; and there was agreement that there are mainly two reasons for the plaintiff to stress up all day at work after a confrontation with a customer.  In the first place, frontal lobe loses much of its ability to perform multi-tasks. Such people become paranoid, which compounds issues. The second reason is attributable to depression.  The plaintiff is likely to always focus on negative things.  The brain injury is permanent.  Whilst depression is treatable to an extent, the element of the brain injury which is causing it, makes the prognosis worse.

[32] 	In addition to the substantial agreement with Dr Mazabow, Mrs Du Plessis was of the view that prior to the accident, the plaintiff showed excessive intelligence, driven and motivated.  This evidence was corroborated by Mr Harrison’s observations.  Mrs Du Plessis also confirmed that people with brain injuries, although having good intentions, they however cannot follow through. The plaintiff has a chronic secondary depression, and he will need a sympathetic employer which is a rarity.  If employed, the plaintiff is likely to destroy workplace relationships and usually employers’ attitudes change towards brain damaged employees.  The result is that such employees find it difficult to remain in stable employment.  

[33] 	In cross-examination Mrs Du Plessis made a number of concessions favourable to the plaintiff.  For example, she readily conceded that the type of profile presented by the plaintiff showed a person who is functioning badly under conditions accompanied with stress in the work place. She said that even if the plaintiff received psychotherapeutic help, he may improve, but if the basis is organic, such as in the present case, it will be of no assistance at all.  Mrs Du Plessis also conceded that the organic damage can lead to the plaintiff performing or behaving abnormally in the workplace.

THE EVIDENCE OF DR G A VERSFELD AND DR A F PIENAAR

[34] 	I deal with the evidence of the orthopaedic surgeons.  Once more, in the light of the substantial agreements it was not necessary to restate all the evidence.  Dr Versfeld, an orthopaedic surgeon, assessed the plaintiff in May 2010 and in September 2012.  He compiled reports and testified for the plaintiff.  Similarly, Dr Pienaar, also an orthopaedic surgeon, assessed the plaintiff in October 2009 and in September 2012, and testified for the defendant.  These surgeons later prepared joint minutes on two separate occasions.

[35] 	The orthopaedic surgeons agreed that the plaintiff suffered a fracture of his left proximal humerus as well as damage to his shoulder joint; that the plaintiff will have to undergo several medical procedures on his left shoulder in the future;  that subsequently the plaintiff will have a total shoulder replacement surgery and for which provision should be made for replacement surgery; further agreement was that the plaintiff also sustained a low back injury and cervical spinal injury; the shoulder injury was a massive one;  and that osteoarthritis will develop in the shoulder and cause pain.  

[36] 	Dr Pienaar expressed the view that the plaintiff will retire within 10 to 15 years from the date of the accident.  This means that the plaintiff will retire within 3 to 7 years from now as a result of the orthopaedic injuries, and not considering the probable negative effects of the brain injury and his ability to handle the pain associated with medical procedures as described, in particular, by Dr Fine.  Dr Versfeld was of the view that the plaintiff would be compelled to retire from even a sedentary occupation within the next 10 years. 

THE EVIDENCE OF MS TRACEY BROWN AND MS I H SHIBAMBO

[37] 	I deal with the evidence of the occupational therapists.  Ms Tracey Brown, an occupational therapist, assessed the plaintiff during September 2009, and also testified at the trial.  On the other hand, Ms Shibambo, also an occupational therapist, assessed the plaintiff on two separate occasions, namely during June 2010, and again in September 2012.  The occupational therapists also compiled joint minutes.  Ms Shibambo also testified on behalf of the defendant.  The input of the occupational therapists in oral evidence and in the reports was largely of a limited nature.    However, what is of significance was that upon re-assessment of the plaintiff in September 2012, Ms Shibambo of the defendant, found that the joint range of plaintiff’s shoulder was visibly reduced in flexion and there were complaints of pain with movement. As a consequence, the probabilities that there is a marked deterioration in the plaintiff’s shoulder recently, and that he will have to retire earlier than envisaged by the orthopaedic surgeons as set out in para [36] of this judgment.  The evidence of Ms Shibambo, when carefully evaluated, was plainly contrary to the credible evidence of the factual witnesses.  Ms Shibambo was the only witness who suggested that the plaintiff has been performing well post-accident.  She however, readily conceded that she relied solely on an interview with the plaintiff only.  She had no access to other collateral or corroborative information.  The factual witnesses were completely corroborative of the neuropsychologists and psychiatrists in the detection of the organic brain damage and functioning disability of the plaintiff. In this regard the evidence of Ms Shibambo can safely be disregarded.

THE EVIDENCE OF MR VERNON BOTHA

[38] 	I have to deal with the evidence of Mr Vernon Botha who testified on behalf of the defendant.  He knew the plaintiff from the 1980’s.  He testified mainly about a letter he drafted with the plaintiff’s attorney during October 2012, exhibit “J”.  He is the Managing Director of Verni Speciality Construction Products, a company specialising in epoxy type flooring.

[39] 	Mr Botha was aware of the plaintiff’s background and expertise.  He originally employed the plaintiff in a sales position as the plaintiff’s knowledge of the industrial flooring was excellent, accompanied by vast experience.  According to Mr Botha, the plaintiff did not perform as expected post-accident for a number of alleged reasons.  As a result, Mr Botha moved the plaintiff to the position of Sales Manager, which position too, according to him, did not work out because the plaintiff’s follow-up with sales representatives was poor and they could not meet their budgets.  Mr Botha then decided to further move the plaintiff to the advertising and marketing division of the business based on plaintiff’s excellence with editorials and presentations.  In spite hereof, the plaintiff could still not handle the pressure as he could not multi-task and his memory and concentration were very poor.

[40] 	The evidence of Mr Botha ought properly be evaluated in the light of the documentary evidence regarding the plaintiff’s employment with Mr Botha’s company.  From January 2010, the plaintiff was employed as a Technical Development Manager at a commencement salary of R33 850,00 gross per month.  Payment of an annual bonus was in the sole discretion of the employer, and payable at the end of plaintiff’s birthday month.  In January 2011, the plaintiff was promoted to the position of Sales Manager at a gross salary of R37 250,00 per month.  There was no pension fund. In October 2011, as a result of restructuring, the plaintiff was moved to a new position as Marketing Manager.  His salary remained unchanged.  On 31 January 2012 the plaintiff resigned from Verni Speciality Construction Products (Pty) Ltd.  

[41] 	In his evidence-in-chief and also as appeared from exhibit “J”, Mr Botha suggested that the plaintiff resigned from Verni Speciality Construction Products purely in order to strengthen plaintiff’s current action by being unemployed. However, in cross-examination, this suggestion of Mr Botha soon proved to be exceedingly unfounded for at least two reasons.  The plaintiff did attempt to find employment subsequently.  Mr Harrison of Flowcrete testified that the plaintiff contacted him for a job but due to his knowledge of the plaintiff’s shortcomings post-accident, Mr Harrison declined to re-employ the plaintiff. Secondly, when she testified, Mrs Hall made it plain that her husband resigned largely at her instance.  She was not challenged in this regard.

[42] 	The above aside.  Somewhat inadvertently, Mr Botha corroborated the evidence of Mr Harrison. The plaintiff did not perform as expected in the sales position post-accident.  As a consequence, Mr Botha moved the plaintiff around to other positions within the company.  More significantly, Mr Botha testified that he noticed a marked difference in the plaintiff since the accident. Mr Botha had confirmed to the plaintiff’s Industrial Psychologist, Mr W Wessels, that he had employed the plaintiff by reason of the plaintiff’s motivation, drive and energy levels which characteristics he had before the accident.  Mr Botha also testified that the plaintiff could not handle the stress of the job, in spite of his high ambitions, and Mr Botha was emphatic that he will never re-employ the plaintiff.  The plaintiff did the company a favour by resigning.  In fact, according to Mr Botha, since he had to follow up and micro-manage the plaintiff, if the plaintiff had not resigned, Mr Botha would have pressurised him to leave as the plaintiff became increasingly unreliable as an employee.  Mr Botha had reached a stage where he had lost confidence in the plaintiff.  The evidence of Mr Botha corroborated once more the other credible evidence to the effect that the plaintiff will find it extremely difficult to secure full-time employment in the future.  The evidence also discredited the unsubstantiated views of the defendant’s occupational therapist, Ms Shibambo.  
THE EVIDENCE OF MR W WESSELS

[43] 	Mr Wessels, an Industrial Psychologist, assessed the plaintiff in February 2009 and compiled a report, which was followed up by another report in October 2012.   He testified for the plaintiff on his findings.  The plaintiff was also assessed by the defendant’s Industrial Psychologist, Mr F van der Westhuizen, who testified in the trial on his reports.  The Industrial Psychologists also prepared joint minutes.  

[44] 	The Industrial Psychologists were substantially or wholly in agreement regarding the plaintiff’s condition. The salient features of the agreements included that, in the but for the accident scenario, the plaintiff would have been promoted by Mr Harrison at Flowcrete to a salary of between R40 000,00 and R45 000,00 per month in 2010 monetary terms.  This would have occurred at the age of 39/40 years.  The Industrial Psychologists also agreed that the latter figures and time frames would have constituted the plaintiff’s career pinnacle, and that he would have retired at age 65 years in the open labour market.

[45] 	The Industrial Psychologists also agreed that after the accident the plaintiff would probably be able to function in his present reduced capacity as a sales person earning about R200,00 per day.  In the event of the plaintiff’s current employer deciding to offer him full-time employment, as testified by Mr Curtis of Finish Line Cycles, the firm indication is that the plaintiff will likely earn R10 000,00 gross per month.  In his evidence, Mr Curtis when asked about this aspect, put it bluntly as follows:

“Maximum of R10,000.00 a month and that would be including his tax including his UIF, all costs.  The bike industry does not make a lot of money so that would be what I could pay for a good sales guy who works hard.”  (See p 75 of record, lines 2-6.)

[46] 	In the view of the Industrial Psychologists, the earnings as suggested by Mr Curtis should be accepted as a reliable indication of the plaintiff’s residual earning capacity presently and in future. However, on the overwhelming evidence, the plaintiff is neither a suitable candidate for self-employment, a consultant, business owner, nor a shop owner, since he will be unable to adequately manage his own business due to his cognitive deficiencies as highlighted in the testimony of the relevant expert witnesses and the collateral information from previous and current employers.  

[47] 	The Industrial Psychologists further agreed that there should be a substantial higher contingency deduction application post-accident.  When he testified, Mr Wessels (plaintiff’s Industrial Psychologist), emphasised, as shown by the evidence, that pre-accident, the plaintiff managed to achieve his goals and targets reasonably well which was an indication that he could handle stressful situations.  The employers who offered him positions, which fact is replete on record, were influenced by the plaintiff’s expertise and past performance before the accident.  These employers included Mr Harrison, Mr Botha and Ms Susan Posthumus, the Managing Director of BASF Construction Chemicals SA where the plaintiff was employed as Area Manager from about January 2007 to about the end of August 2009. 

[48] 	In the end, the final picture that emerged is that due to his orthopaedic injuries, and concomitant stress, which revealed inappropriate and unreliable behaviour evinced at Finish Line Cycles, the future employment of the plaintiff will most probably be precarious and problematic.  The plaintiff can barely sustain the employment he currently has. Mr Van der Westhuizen of the defendant testified that in his experience, if the plaintiff’s current mood deteriorates, this fact will have a debilitating effect on his future employment.  The associated pain will affect his mental condition and continued stress could lead to potential psychological burnout.  However, Mr Van der Westhuizen is unable to say that the plaintiff is completely unemployable in the open labour market since he is presently employed by Mr Curtis.  However, Mr Van der Westhuizen is of the view that the continued stress as alluded to will affect plaintiff’s continued employability.  For this reason, and quite correctly so in my view, he suggests higher contingencies deductions.  Mr Van der Westhuizen was the final witness for the defendant.

THE PLAINTIFF’S LOSS OF INCOME OR EARNING CAPACITY

[49]	Both parties have employed the services of actuaries to determine the plaintiff’s loss of income, for which the Court is extremely grateful, based on the difficult nature of the task involved.  As expected, the respective calculations are at variance, as indicated below.  This head of damages can also properly be described as “loss of earning capacity”.  See the dicta in Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) at 150A-C.  Indeed, the assessment of damages for loss of earnings is a complex matter and incapable of precision.  In the often quoted case of Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 113G-114C, the Court said:

“Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction 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 to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence.  The validity of this approach depends upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative.  It is 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 award. See Hersman v Shapiro and Co 1926 TPD 367 at 379 per Stratford J:

“Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.  There are cases where the assessment by the Court is little more than an estimate;  but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages.”

And in Anthony and Another v Cape Town Municipality 1967 (4) SA 445 (A) Holmes JA is reported as saying at 451B-C:

“I therefore turn to the assessment of damages.  When it comes to scanning the uncertain future, the Court is virtually pondering the imponderable, but must do the best it can on the material available, even if the result may not inappropriately be described as an informed guess, for no better system has yet been devised for assessing general damages for future loss;  see Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (N) at 287 and Turkstra Ltd v Richards 1926 (TPD) at 282 in fin-283.””

[50] 	In the present matter, the defendant’s actuary, Mr G A Whittaker of Algorithm Consultants and Actuaries CC, has calculated the total net loss of the plaintiff’s loss of earnings at R2 207 739,00.  On the other hand, the plaintiff’s actuary, Lawrence Gilbey, has calculated such loss of earnings at R6 193 553,00.  In my considered view, and as submitted by plaintiff’s counsel in closing argument, the totality of the credible evidence, on a balance of probabilities, and especially as set out in para [47] of this judgment accord substantially, if not wholly, with the basis on which the plaintiff’s actuary set about in his calculations.  Briefly stated, the scenario shows that, at the time of the trial, the plaintiff was 46 years of age, he is currently employed in a temporary position as a sales assistant at Finish Line Cycles, earning R200,00 per day, five days per week. He will probably remain in this position until January 2013, and if Mr Curtis employs him permanently, which is also precarious, his earnings will become R10 000,00 gross per month.  Prior to this, the plaintiff was employed as a sales representative at Verni Speciality Construction Products.  His earnings there for 2010 were R34 850,00 per month approximately, and from January 2011 to January 2012 were R37 205,00 per month approximately. At the time of the accident, and but for the accident, the plaintiff was employed by Floorcrete earning about R25 650,00 per month.  He would have received a bonus performance cheque, and inflationary increase of 8%.  By the age of 40, (he was about 39 years at the time of the accident), he would have been promoted to either General or National Sales Manager, earning about R42 000,00 per month, conservatively calculated in terms of 2010 figures.  The plaintiff thereafter would have received inflationary increases only until the agreed retirement age of 65 years.  

[51] 	However, having regard to the accident, the plaintiff was not promoted and remained on a similar package until January 2007.  He later joined the company, BASF Construction Chemicals SA, as an Area Manager until the end of August 2009 when he left as a result of his injuries. Thereafter, the plaintiff had no income until he commenced employment at Verni Speciality Construction in January 2010 and until he resigned at the end of January 2012 as shown by the evidence.  At his current employer, namely Finish Line Cycles, he will earn inflationary increases only until he will be forced to retire early, about 2017, as shown by the evidence.  This will be about 12½ years from the date of accident on 3 July 2005.  The plaintiff has received a 13th cheque in all his jobs with the exception of his current employment.  

THE CONTINGENCIES DEDUCTIONS

[52] 	The question of the contingencies deductions to be applied, as is the issue of the calculation of the quantum of a future amount, such as loss of earning capacity, are often difficult matters. Speculation inevitably abounds.  The Court has a wide discretion based upon a consideration of all the relevant facts and circumstances.  See in this regard Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) at para [8].  Contingencies of whatever nature, generally serve as a control mechanism to adjust the loss to the circumstances of the individual case in order to achieve justice and fairness to the parties.

[53] 	The defendant’s actuary in arriving at the total net loss figure of R2 207 739,00 stated above, has made general contingencies deductions of 10% pre-accident for past loss of earnings and 5% post-accident.  In regard to the pre-accident and past-accident figure loss of earnings the suggested deductions are 30% and 20%, respectively.  In so doing, the calculations of the defendant assumed, inter alia, that the plaintiff will be permanently employed as a salesperson from 1 January 2013 at earnings of R120 000,00 per annum.  

[54] 	However, in my view, the defendant’s assumptions regarding the plaintiff’s future employability prospects were rather over-optimistic in the circumstances of this case.  It is common practice that having regard to all kinds of contingencies, negative or positive included, a half percentage per annum is normally deducted.  This will result in a 10% deduction in the but for the accident scenario.  Having regard to the accident scenario, and as contended for by the plaintiff, it appears most appropriate and fair that 50% be deducted from the future employment scenario of R10 000,00 per month income gross for a number of compelling reasons revealed by the credible evidence.  These include that, from the evidence of Mr Curtis, the current employer of the plaintiff, it is uncertain whether the plaintiff will in fact become employed on a full-time basis;  the uncontested orthopaedic evidence is that should the plaintiff become permanently employed, it is unlikely that he will last for 5 years;  that if the plaintiff loses his present employment, which is probable, he is unlikely to find another job; that the pain and anticipated surgery will undoubtedly keep the plaintiff out of employment and have a negative effect on his emotional well-being and coping skills;  that the continued stress levels and his inability to cope adequately will result in increased depression and cause burnout;  and that in the event of the present employer closing or selling his business, an unsympathetic prospective employer will not likely tolerate plaintiff’s inappropriate and unpredictable behaviour, as described by Mr Curtis.  For all these reasons, and in the exercise of my discretion, a 50% contingency deduction from future earnings will be fully justified, as set out finally below.

THE PLAINTIFF’S CLAIM FOR GENERAL DAMAGES

[55] 	I deal with the plaintiff’s claim for general damages.  There is no doubt that the plaintiff sustained a brain injury and various orthopaedic injuries of some significance as agreed by the opposing orthopaedic surgeons.  He also sustained a 6th nerve palsy resulting in damage to his right eye. The orthopaedic surgeons agreed that the plaintiff will have to undergo a number of medical procedures in his left shoulder in future.  Further that these procedures are likely to include arthroscopic surgery for decompression of the shoulder and possible repair of a rotator cuff injury. As stated earlier in the judgment, the opposing orthopaedic surgeons also agreed that provision should be made for a total shoulder replacement surgery as well as for revision shoulder replacement surgery.  

[56] 	From the accident scene the plaintiff was conveyed by ambulance to hospital and admitted to the trauma unit and thereafter to the ICU for about five days.  He was unconscious after the impact and possibly up to his admission, but was definitely disorientated when seen by his wife at hospital during the same morning of the accident. By the time of his discharge from hospital he battled to walk because he had no mobility in his left arm, and had a brace and sling on his left arm.  He was using a walking stick when assessed by Dr Versfeld.  

[57] 	The plaintiff, unquestionably derived significant pleasure and accomplishment from his sporting activities, including cycling, prior to the accident.  He was a four times World Champion in his category.  In fact, he was training for the World Championships when the accident occurred. However, this source of enjoyment, accomplishment and stress relief has been truncated at the age of about 39 years.  After the accident he is now a substantially changed person with continuous physical complaints. He has lost confidence in himself and reportedly apologises profusely for no apparent reason.  He faces the real prospects of continued pain, depression and various surgical procedures as well as physical disability.  

[58] 	For all the above reasons, the plaintiff now has to be compensated adequately and fairly in the form of general damages.  These are essentially non-patrimonial damages for pain and suffering, loss of amenities, disfigurement, disablement, loss of amenities of life, shock and discomfort.  See Administrator, West Africa and Others v Kriel 1988 (3) SA 275 (A).  The approach to the award of general damages is trite but there are no fixed rules to the difficult task.  Each case must be considered on its own merits. The plaintiff has claimed the sum of R800 000,00 whilst the defendant has argued that the plaintiff’s general damages must be assessed at R540 000,00 only.  In this regard both parties have referred me to various decided cases on the subject dealing with past awards made in comparable cases.  I have had regard to such cases as they serve as a useful guide only.  In Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) at para [23] the Court said:

“This Court has repeatedly stated that in cases in which the question of general damages comprising pain and suffering, disfigurement, permanent disability and loss of amenities of life arises a trial Court in considering all the facts and circumstances of a case has a wide discretion to award what it considers to be fair and adequate compensation to the injured party …”

[59] 	In the instant matter, counsel for the plaintiff submitted that the tendency in the Gauteng Province seems to be to award approximately R800 000,00 for significant brain injuries with neuropsychological sequelae.  This, however, in my view, cannot be accepted blithely as a general proposition for the justification of the award contended for on behalf of the plaintiff, since each case depends on its own peculiar circumstances.  (Cf the award for general damages in respect of unlawful arrest and detention in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA).)  There is no evidence of a serious brain injury with permanent damage at issue here.  The plaintiff is still employed although in a precarious position. Dr Edeling merely found that the neuropsychological and neuropsychiatric sequelae of the plaintiff’s brain injury contribute to his employment disability as well as his losses of amenities and enjoyment of life.  I accept unreservedly the findings of Dr Edeling.  The award contended for on behalf of the defendant on the other hand, borders on the low side.  In my view, having regard to all the relevant circumstances of this case as described above, a fair and adequate award for general damages will be the sum of R700 000,00. The plaintiff’s past medical and hospital expenses were agreed in the sum of R56 187,20.  There is no reason why the costs should not follow the result.

THE PLAINTIFF’S TOTAL DAMAGES

[60] 	To sum up, the picture that unfolded regarding the plaintiff’s loss of income or earning capacity and general damages suffered as a result of the motor vehicle accident, and as calculated in the plaintiff’s actual report, which I accept, is as follows:

	60.1 	Past loss of income 		-	R   511 468,00
	60.2 	Future loss of income	-	R5 682 085,00
	60.3			TOTAL	-	R6 193 553,00
	60.4 	Less 50% contingencies
		deductions			 -	R3 096 776,50
	60.5 	Add general damages	-	R   700 000,00
	60.6	Add past medical and
		hospital expenses		-	R     56 187,20
	60.7 			TOTAL	-	R3 852 963,70
[61] 	It was common cause during the trial that the defendant had made to the plaintiff an interim payment of R1 million prior to the hearing.  This amount falls to be deducted from the total amount now due to the plaintiff.  This leaves a net amount of R2 852 963,70.  

ORDER

[62] 	The following order is made:

62.1 	The defendant shall pay to the plaintiff the sum of R2 852 963,70 (Two Million Eight Hundred and Fifty Two Thousand Nine Hundred and Sixty Three Rand and Seventy Cent Only).

62.2 	Interest on the said amount of R2 852 963,70 at the rate of 15,5% per annum from the date of this order until the date of final payment.

62.3 	The defendant shall furnish to the plaintiff, in terms of section 17(4)(a) of the Road Accident Fund 56 of 1996, an undertaking in lieu of future medical and hospital expenses.  

62.4 	Costs of suit plus VAT, such costs to include the costs of senior counsel as well as the costs of all the plaintiff’s expert witnesses who prepared medico-legal reports and the preparatory and appearance fees of the following witnesses:
62.4.1	Dr H J Edeling.
62.4.2 	Dr D A Shevel.
62.4.3 	Dr M Mazabow.
62.4.4 	Dr G Versfeld.
62.4.5 	Ms Tracey Brown.
62.4.6		Mr W Wessels.
62.4.7 	Dr Phil Pearce (if applicable).
62.4.8 	Mr L Gilbey (actuary).

						_____________________________
							   D S S MOSHIDI
						JUDGE OF THE SOUTH GAUTENG
						  HIGH COURT, JOHANNESBURG

COUNSEL FOR THE PLAINTIFF		J J WESSELS SC

INSTRUCTED BY				MUNRO, FLOWERS & VERMAAK

COUNSEL FOR THE DEFENDANT	M KUTAMA

INSTRUCTED BY				LINDSAY KELLER ATTORNEYS

DATES OF HEARING			23 OCTOBER 2012 -2 NOVEMBER
						2012 

DATE OF JUDGMENT			21 MAY 2013 

POSTEA 28th MAY 2013 – JUDGMENT CORRECTION OF ERROR

MOSHIDI, J:

[63] 	
63.1 	Having given judgment and made an order in this matter on 21 May 2013, plaintiff’s counsel and attorneys immediately brought my attention to the fact that, in assessing plaintiff’s future loss of earnings and earning capacity I had erred in one respect in my calculations.

63.2	The extent of the error has been fully set out in the plaintiff’s present application for the variation sought. The error was a glaring one which defied my true intention.  It arose as a result of my deducting a 50% contingency in paragraph 60.4 of the judgment when such 50% had already been deducted from the prospective value “having regard to the accident”.  In essence, the error amounted to making the aforesaid deduction from the total loss of income under circumstances when it had already been taken into account in the actuarial calculations of the plaintiff’s actuary, which I had adopted.  

63.3	As a consequence of the patent error, the plaintiff has promptly brought an application in terms of Rule 42(b) of the Uniform Rules to vary my order by substituting paragraphs 60.1 to 60.7 with the following:
“60.1 	Past loss of income 		-	R    511 468,00
60.2 	Future loss of income	-	R5 682 085,00
60.3	General damages		-	R   700 000,00
60.4 	Past medical and 
	hospital expenses		-	R     56 187,20
						R6 949 740,20
				Less interim payment	-	R1 000 000,00
					
					Total damages	-	R5 949 740,20”

63.4	The proposed variation will not affect the substance of the judgment. It is also not opposed by counsel for the defendant.  I am entitled to make the correction.  See Erasmus, Superior Court Practice, B1-306, (III) “A Court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention”.  See also Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 308, and Everson v Allianz Insurance Ltd 1989 (2) SA 173 (C) at 179-180.

63.5	In the result my original order in the judgment is hereby recalled, and varied to read as follows:

“62.1 	The defendant shall pay to the plaintiff the sum of  R5 949 740,20 (Five Million Nine Hundred Forty Nine Thousand Seven Hundred and Forty Rand and Twenty Cents).
62.2	Interest on the aforesaid amount of R5 949 740,20 at the rate of 15,5% per annum from the date of this order until the date of final payment.

62.3	The defendant shall furnish to the plaintiff, in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996, an undertaking in lieu of future medical and hospital expenses.

62.4	Costs of suit plus VAT, such costs to include the costs of senior counsel, as well as the costs of all the plaintiff’s expert witnesses who prepared medico-legal reports and the preparatory and appearance fees of the following witnesses:

62.4.1 	Dr H J Edeling.
62.4.2 	Dr D A Shevel.
62.4.3 	Dr M Mazabow.
62.4.4 	Dr G Versfeld.
62.4.5 	Ms Tracey Brown.
62.4.6 	Mr W Wessels.
62.4.7 	Dr Phil Pearce (if applicable).
62.4.8 	Mr L Gilbey (actuary).”

						_____________________________
							       D S S MOSHIDI
						JUDGE OF THE SOUTH GAUTENG
						  HIGH COURT, JOHANNESBURG

COUNSEL FOR THE PLAINTIFF		J J WESSELS SC

INSTRUCTED BY				MUNRO, FLOWERS & VERMAAK

COUNSEL FOR THE DEFENDANT	M KUTAMA

INSTRUCTED BY				LINDSAY KELLER ATTORNEYS

DATE OF HEARING			27 MAY 2013 

DATE OF JUDGMENT			28 MAY 2013