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IN THE HIGH COURT OF SOUTH AFRICA

Western Cape High Court: Cape Town

CASE NO 7492/07

In the matter between:

PETER DAVID PETERSEN Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

JUDGMENT delivered on 19 June 2009

BINNS-WARD AJ:

[1] The plaintiff, who was a pedestrian at the time, was injured in a collision with a motor vehicle in the Main Road, Somerset West, on the evening of 24 July 2005. He claims compensation from the defendant under the provisions of the Road Accident Fund Act 56 of 1996 ('the Act') for damages suffered by him consequent upon his injuries. The plaintiff was 54 years of age at the time of the collision and 58 at the date of trial.

[2] The defendant filed a special plea based on the alleged non­compliance by the plaintiff with the provisions of s 19(f) of the Act. In terms of s 24(6) of the Act a claim under the statute is not enforceable in legal proceedings if the claimant has not submitted an affidavit as contemplated by s 19(f). Any default by the plaintiff in this regard had been purged when he provided an affidavit in response to a request by the defendant. In the circumstances it was wisely decided before the commencement of the hearing not to persist with the special plea at the trial.

[3] It was in issue between the parties whether the driver of the motor vehicle involved in the collision was causally negligent in respect of the injuries sustained by the plaintiff. The only evidence tendered in respect of the occurrence of the collision was that of the plaintiff. I was informed by the defendant's counsel that the driver of the motor vehicle could not be traced by the time of trial.

[4] The plaintiff testified that he was in the process of crossing the Main Road, which at that point consists of a dual carriageway with two traffic lanes in each direction, when he was struck while standing on the broken line dividing the two southern lanes of the road. He testified that as he crossed the road he noticed two vehicles approaching in the outer of the two southern lanes and had stopped to let them pass. He stated that the vehicle in the rear moved from the outer lane into the inner lane and in so doing knocked him down. He has no recollection of events from the time he was struck by the oncoming vehicle until he recovered his senses at the Tygerberg Hospital the following morning.

[5] Mr Abrahams, who appeared for the defendant, took the plaintiff to task under cross-examination for not having mentioned until quite shortly before the trial that there had been two on­coming motor vehicles. The written accounts previously given by the plaintiff had referred only to one vehicle. I do not find that the plaintiff's failure to refer to both vehicles is particularly significant. The plaintiff has consistently described having been struck while standing between the two lanes on the southern side of the carriageway and has consistently indicated that this occurred while the vehicle in question was moving from the outer to the inner lanes of that side of the carriageway. The other vehicle mentioned by the plaintiff played no role whatsoever in the collision and I therefore understand that the plaintiff might have thought it superfluous to mention it.

[6] Mr Abrahams also sought in cross-examination of the plaintiff to suggest that the latter's intake of alcohol on the day had played a role in the causation of the collision. The defendant testified that he spent most of the day, from about 11.00 a.m. at a braaivleis at his parents' house and that he had consumed a beer and two or three brandies during that time. He and his brother and a friend of the latter had then driven in the plaintiff's vehicle from his parents' house in Kuils River to Somerset West in the early evening to have drinks at a pub or restaurant on the Main Road. The plaintiff said that after he and his companions had one drink at the pub, his brother had left with his friend to fetch the latter's girlfriend. They were not expected to be away long, but in the event had not returned after more than an hour. During that time the plaintiff had another drink while watching television. He was unable to leave because his brother had borrowed his motor vehicle for the purpose of collecting the aforementioned girlfriend. After finishing his second drink the plaintiff decided to fill time by visiting a friend who lived nearby in Helderberg Street. He spent no more than quarter of an hour there before walking back towards the pub hoping to find that his brother had returned. It was while he was crossing the road to the pub that the collision occurred. My attention was drawn to an endorsement in the ambulance report (the Metro Emergency Services Pre-Hospital Patient Report) which stated, amongst other matters, that the patient was intoxicated, anxious, 'difficult' and would not divulge information. The report affords no description of the basis on which the recorded observations were made and is of no practical assistance to the defendant. It is common ground that the plaintiff had been consuming alcohol and I accept that he may well have been to some extent intoxicated. There is no basis in the evidence however to conclude that this resulted in his being wholly or partly to blame for the collision.

[7] The plaintiff gave a straightforward and coherent account of events. He was not shown in any way to have been dishonest or unreliable in this respect. In the absence of any direct evidence to contradict the plaintiff's account, I must therefore accept on the probabilities that the collision occurred because the driver of the motor vehicle had failed to keep a proper look out. I accordingly find that the defendant is liable for such damages as the plaintiff was able to prove.

[8] The quantum of the medical expenses incurred by the plaintiff consequent upon his injuries and their sequelae up to the time of the trial was agreed in the sum of R38 927,45. The defendant tendered an undertaking in terms of s 17(4) of the Act in respect of the cost of any hospitalisation or medical treatment that the plaintiff may reasonably require in the future arising out of the consequences of his injuries.

[9] The issue most centrally in contention at the trial was the plaintiff's loss of earning capacity.

[10] The plaintiff had matriculated in the late 1960's at the normal age and had thereafter completed a bachelors degree at the University of Stellenbosch. After completing his studies he spent a short time in the civil service and thereafter worked for a few years as a car salesman and as an insurance broker. His early working life appears to have been unsettled and not particularly remunerative. From about 1982 he worked as a line fisherman. Fishing ran in the family. The plaintiffs father had been a successful fisherman and so is the plaintiff's brother. The plaintiff initially worked for his brother, but in the late 1990's was able to buy a small boat (referred to in the evidence as a 'kreefbakkie') and, with two or three assistants, fish for his own account.

[11] In 2001 or 2002, and with the assistance of a sympathetic businessman in Stellenbosch, the plaintiff purchased a sixteen foot six inch ski boat. This enabled him to use a bigger crew and increased the amount of fish that he was able to load. As a consequence of his injuries he was initially completely disabled from any fishing activity and was forced to sell the boat. Even now, the disabling effects of his shoulder injury prevent him from being able to resume his functions as a ski boat skipper and he is employed by other skippers from time to time only on a casual basis and largely out of sympathy for his current condition. The plaintiff is currently able to earn about R1000 per month doing odd jobs. It is not disputed that he will be unable to return to his former employment.

[12] The appropriate starting point for determining the value of the plaintiff's loss of earning capacity is to try to quantify the difference between the present value of his probable earnings between the date of the trial and his likely date of retirement and the present value of the earnings that he is able to earn during that period in his disabled state. In addition the plaintiff is entitled to compensation for lost income between the date of the collision and the date of the trial. An element of speculation is inherent in both these calculations, but this affects past loss of earnings to a lesser degree than it does the so-called future loss.

[13] The biggest difficulty in the way of an accurate assessment of the value of the plaintiff's loss of earning capacity is the uncertainty about the level of his earnings before the collision. The plaintiff had no documentary evidence to substantiate his earnings in the period before the collision and his evidence on the point was not entirely consistent. One was left with the impression that the plaintiff enjoyed nothing much more than a subsistence level of income. He does not appear ever to have had his own place to live and lived mainly out of rooms in the houses of friends or with his parents. Life as a self-employed fisherman appears to have had its ups and downs. The income generated thereby is unpredictable with times of plenty, but also sometimes extended periods with little or nothing coming in.

[14] Dr Johann Lourens, a psychologist and human resources consultant, who gave evidence in support of the plaintiff's claim, undertook an informal survey amongst a number of boat owners to try to determine income levels. The results of this survey, which were incorporated in a report dated 20 May 2009, showed a wide disparity in earnings between boat owners, but tended to confirm the average income levels of line boat crew members as between R5000 and R10000 per month. The majority of his respondents put the lower level of line fisherman earnings at R7000 per month. It would appear from his evidence that the plaintiff's income probably approximated that of a line fisherman rather than a boat owner. Because of the absence of corroborating records and the fact that the plaintiff testified that his income rarely exceeded the minimum level required for the purpose of having to submit a return of income to the revenue service, it is appropriate to use a conservative basis for the calculation of the plaintiff's loss of earnings. I consider it reasonable to work on the basis that in his uninjured state the plaintiff would have been able to earn an average of R7000 per month and that subject to contingencies he would have continued to do so until the age of 65.

[15] The parties were agreed on the appropriate discount rate to be applied in respect of the calculation of the present value of the plaintiff's future loss of earnings, namely the application of a discount rate of 2,5%.

[16] Using a premorbid earning capacity of R7000 per month in current value and a residual earning capacity of R1000 per month and applying the actuarial calculations put in by agreement between the parties the plaintiff's past loss of earnings may fairly be estimated in the amount of R220 000. In this regard I have accepted that it would be appropriate to apply a 5% adverse contingency provision in respect of the likelihood of the plaintiff having earned R7000 per month in present terms consistently during the affected period.

[17] Using the same constants, but applying a 10% adverse contingency in respect of premorbid earning capacity to age 65, and the same adverse contingency factor to the plaintiff's ability to generate income in accordance with his postmorbid earning capacity, I have quantified the plaintiff's damages for loss of earning capacity post-trial in the amount of R330500.

[18] I should mention that in determining on the contingencies I have taken into account that the actuarial calculations submitted were undertaken with regard to the applicable life tables on the basis that the plaintiffs life expectancy was not affected by his injuries and that mortality was therefore already provided for. I also had what I considered to be appropriate regard to the evidence that the plaintiff was subject to mental depression and exhibited a propensity to high alcohol intake. Against the negative factors I took into account that despite the indicated adverse factors, the evidence suggests that the plaintiff has consistently maintained some level of employment and that at the time of the collision and in the immediately preceding years his fortunes had improved consequent upon his acquisition of a ski boat.

[19] Turning now to the plaintiff's claim for general damages for pain and suffering and loss of the amenities of life.

[20] There was no dispute between the parties in regard to the medical evidence set out in the expert summaries of the neurologist, the orthopaedic surgeon, the radiologists and the occupational therapist. Dr Le Roux, the orthopaedic specialist was nevertheless called to give oral evidence. I found his description -with its physical demonstration using an orthopaedic model of the shoulder joint - of the nature and effect of the plaintiff's shoulder injury of assistance in better understanding the debilitating long-term consequences of that injury.

[21] The plaintiff suffered a fracture of the second and third ribs on the right side with an associated haemothorax. He also suffered a fracture of his right clavicle, a fracture of the neck of the right scapula and of his right humerus. The plaintiff was hospitalised for approximately two weeks after the collision and underwent open surgery to fix the fracture to his humerus with a plate and screws. A week later, after the removal of an intercostal drain that had been inserted to deal with the haemothorax, the plaintiff underwent further surgery for the open reduction and fixation with a plate and screws of his fractured clavicle. He was confined to bed at home thereafter for some time and his arm was immobilised in a sling for some weeks whereafter he required physiotherapy to mobilise the injured shoulder. Severe pain and suffering would have been experienced by the plaintiff in the early stages of his treatment and recovery and this would gradually have moderated with time. The long-term effects of his injuries are that his pre-existing asymptomatic degenerative spondylosis in the neck has been rendered symptomatic and the movement in his right shoulder has been materially compromised rendering him physically unable to undertake many of the tasks and activities that formed part and parcel of his everyday life. Treatment might alleviate the extent of the resultant disability, but the adverse effects will to a greater rather than lesser extent be permanent. The plaintiff often suffers pain, particularly in cold weather and he has regular need to use analgesics.

[22] Pain and suffering and the loss of enjoyment of the amenities of life are insults which cannot really be valued in monetary terms. Monetary compensation is no more than a solatium. Bearing in mind that no one case will exactly mirror any other it is nevertheless in the interest of justice that the quantum of awards for general damages in this respect should be broadly consistent.

In having regard to awards in comparable cases, experience tells that the older authorities do not update reliably with inflation. The award of R6200 in Coetzee v Union & National Insurance Co Ltcf made in 1969, on which Mr Salie, who appeared for the plaintiff relied, translates in line with inflation to about R320 000 in current values. To illustrate the point it is sufficient to highlight how far removed that updated amount is with the current value of more recently made awards in broadly comparable cases such as van der Walt v Road Accident Fund, a 2002 judgment relied on by Mr Abrahams, reported in volume V of Corbett & Buchanan¹ with a present value, calculated from judgment in line with the inflation rate, of between R150 000 and R160 000.

[23] In my judgment the plaintiff would be fairly compensated in general damages for pain and suffering and loss of enjoyment of the amenities of life by an award in the sum of R180 000.

[24] In the result an order will issue in the following terms:

1. The defendant is directed to pay compensation to the
plaintiff in the sum of R769 427,45, made up as
follows:

1.1 R38 927,45 in respect of past medical expenses;

1.2 R220 000 in respect of past loss of earnings;

1.3 R330 500 in respect of loss of earning capacity during the period from the time of the trial until the plaintiff attains the age of 65; and

1.4 R180 000 in respect of general damages for pain and suffering and loss of enjoyment of the amenities of life.

2. Interest a tempore morae at the prescribed rate of 15,5% per annum shall be payable on the said amount from date of judgment in the event that payment thereof is not effected by the defendant within 14 calendar days.

3. The defendant is directed to furnish the plaintiff with an undertaking in terms of s 17(4) of the Road Accident

Fund Act 56 of 1996 to compensate him for the costs his future accommodation in a hospital or nursing home, or treatment or supply of goods after the costs have been incurred and on proof thereof, alternatively, directly to the provider of such service or treatment.

4. The defendant is directed to pay the plaintiff's costs of suit including the qualifying fees of Ulla Worthmann, Dr Jacques Marais, Dr Jacques Basson, Dr B. Cotton, Dr Johan Gruene, Dr J Reid, Dr Theo Le Roux and Dr Johan Lourens and the witness fees of Drs. Le Roux and Lourens.

a.G binns-ward

I

Acting Judge of the High Court

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