FORM south carolina birth injury attorney

					                                       FORM A
               FILING SHEET FOR EASTERN CAPE JUDGMENT

                                                ECJ no: 156

PARTIES:
ANDY GILBERT IVERSON
 AND
ROAD ACCIDENT FUND


      Registrar CASE NO: 7539/05
      Magistrate:
      High Court: EASTERN CAPE LOCAL DIVISION


DATE HEARD:              11MAY 2007
DATE DELIVERED:          29 MAY 2007

JUDGE(S): MHLANTLA, J

LEGAL REPRESENTATIVES -
Appearances:
      for the State/Plaintiff(s)/Applicant(s)/Appellant(s): ADV EKSTEEN SC &
                                                            ADV SCHUBART
      for the accused/defendant(s)/respondent(s):          ADV SIMOYI

Instructing attorneys:
      Plaintiff(s)/Applicant(s)/Appellant(s): DE VILLIERS & PARTNERS
      Respondent(s)/Defendant(s): D N NDLOVU & ASSOCIATES


CASE INFORMATION -
    Nature of proceedings : CIVIL MATTER
    Topic: DAMAGES
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION)
                              NOT REPORTABLE
                              CASE NO.:7539/05
                                            DELIVERED: 29 MAY 2007

In the matter between:


ANDY GILBERT IVERSON                                     PLAINTIFF


and


THE ROAD ACCIDENT FUND                                  DEFENDANT


                     JUDGMENT
___________________________________________________________


MHLANTLA, J


[1] On 11 September 2001 and at the intersection of 1 st Avenue and
Handsworth Street, Newton Park, Port Elizabeth, a collision occurred
between a light delivery vehicle bearing registration letters and number
CJC 014 EC, the insured vehicle and a motor cycle bearing registration
letters and number CAW 12154 driven by the plaintiff. The plaintiff as a
result sustained bodily injuries.


[2] The plaintiff alleged that the collision was caused by the negligence
of the insured driver, one B.M. Mpongwana and claimed compensation
from the Road Accident Fund, (hereinafter referred to as “the defendant”)
in the sum of R2 890,503.40 made up as follows:-
      (a) Past Medical Expenses              -             R 40 787.36
      (b) Past Private Hospital Expenses     -             R 64 853.08
      (c) Future Medical Expenses            -             R 142 000.00
      (d) Past Loss of Income                -             R 104 373.00

      (e) Future loss of income and/ or
          loss of earning capacity           -             R2 188,490.00

      (f) General damages                    -             R 350 000.00


[3] The defendant conceded the merits. The only issue in dispute is the
quantum of damages.


[4] At the commencement of the trial I was informed by Mr Eksteen SC
appearing with Mr Schubart, for the plaintiff and Mr Simoyi, for the
defendant, that the following aspects of quantum have been admitted:-
      (a) Claim for past medical expenses in the sum of R40 787.36;
      (b) Claim for past private hospital expenses in the sum of
          R64 853.08; and
      (c) In regard to the claim for future medical expenses the defendant
         undertook to furnish the plaintiff with an undertaking in terms
         of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996.

[5] The issues that remained in dispute were the claims for general
damages, past loss of income and future loss of income and/or loss of
earning capacity.

[6] At the trial evidence was adduced on behalf of the plaintiff. The
defendant made the following admissions:-
      (a) that the reports of the Occupational Therapist Ms A van Zyl
           dated February 2007 can be handed in without the necessity of
           having to call her as a witness and that the defendant accepts
           the correctness of the contents of the report.

      (b) that the actuarial calculations of the Actuary, Mr Jacobson as
            set out in his report dated 12 April 2007 are correct . The
            defendant however did not accept the correctness of the
            information furnished to Mr Jacobson in compiling his report;

[7] No evidence was tendered on behalf of the defendant. Subsequent to
the hearing of evidence the parties reached an agreement on the quantum
of the claim for general damages in the sum of R300 000,00.

[8] The particulars relating to the background and upbringing of the
plaintiff, who was born on 9 September 1976, were provided by his
father Mr Malcolm Iverson Snr, his fiancé Ms Hobbs and the plaintiff
himself.    It is apparent from their testimony that the plaintiff was
extremely bright for his age and was ahead of his peers at school. He
performed exceptionally well in his studies. He participated in rugby,
athletics, cricket and enjoyed debating. He was always interested in
advertisements and that was his main interest in watching television. He
passed matric in 1994.

[9] In 1995 he attended the AAA School of Advertising in Cape Town.
He was a hard worker and obtained a study loan. He supported himself
whilst studying and basically paid his way through college. He obtained
a diploma in advertising specialising in media management. After
graduating he worked in Port Elizabeth to pay off his loan. He undertook
contract work at Two Moon Advertising Agency where he was involved
in copy writing activities. He managed to save sufficient money to go to
the United Kingdom in 1999. He worked there for two years often
holding two or three jobs at a time. He saved enough money and




eventually returned home in January 2001. Upon his return, he went
about seeking employment in his chosen career. In the meantime he was
employed on a part-time basis at Eastern Cape Property Post. He had an
outgoing personality, was full of life and enjoyed the company of his
friends.

[10] The collision occurred on 11 September 2001 whereafter he was
admitted at Greenacres Hospital until 8 October 2001.               He was
transferred to Aurora Hospital for rehabilitation and discharged on 2
November 2001. He was re-admitted at Greenacres Hospital on 5 March
2002 when a further operation had to be performed on him.

[11] It is clear from the evidence and report of Dr Johan Olivier, an
orthopaedic surgeon that the plaintiff suffered the following physical
injuries:-

       (a) A comminuted compound fracture of the right femoral shaft
             with an open wound over the posterior aspect of the upper leg;
      (b) A left-sided comminuted femoral shaft fracture;

      (c) A left-sided complex fracture involving the tibial plateau and
             shaft;

      (d) A compound fracture of the first metacarpal;

      (e) An undisplaced fracture of the right index finger;

      (f) An undisplaced fracture of the right distal radius, and
        (g) A soft tissue injury to the right elbow joint.




[12] According to Dr Olivier the fractures were of a serious nature and as
a result the plaintiff sustained serious muscular injuries. The muscular
damage is permanent. Numerous operations had to be performed on him.
The plaintiff has significant scarring. He suffered massive blood loss and
reverted to a state of clinical shock.



[13] Extreme complications arose and these included:-
     (a) A fat embolism which caused brain damage as a result of which
           the plaintiff was kept in the Intensive Care Unit (ICU) for two
          weeks.The fat embolism complicated rehabilitation. Sepsis set in.
    (b) Mobilisation was extremely difficult due to the pain and
          suffering.
    (c) There is a shortening of the left leg of 1,4cm. He will
          always have a limp and this will cause backache.
   (d) The fracture of the tibial plateau can lead to further degenerative
          changes including osteoarthritis of the knee joint. He will
          experience difficulty when ascending and descending stairs at
          work and this will lead to exhaustion of the muscles. He is more
          susceptible to obesity.
  (e)     He will probably require an arthrodesis of the right thumb. The
         plaintiff who is right-handed experiences pain when writing.
Dr Olivier stated that there will be a truncation of the plaintiff’s working
life by 10 to 15 years as a result of the collision.
[14] The plaintiff upon his discharge recuperated at his parent’s home in
George. He returned to Port Elizabeth in February 2002 and was
thereafter helped by his fiancé. Shortly thereafter he obtained
employment at Cheque Guarantee Services (CGS) where he worked from
May 2002 until April 2005. He had to travel to George and Queenstown
to meet clients. He struggled and could not cope. His motivation was
hampered by fatigue and pain.


[15] He commenced working for Algoa FM as an account executive in
April 2005.    His work is target driven and commission based. He
enjoys his work but struggles to cope with         the workload and gets
stressed. He has been unable to maintain his client portfolio and obtain
new clients and as a result failed to reach targets. There has been a
decrease on his client base from 40 clients in 2006 to 27 clients in 2007.
The decline in the work is due to fatigue and pain experienced by him.
He is unable to cope with travelling as he cannot sit nor stand for long
periods without experiencing pain and discomfort. In this regard the
Court observed him when he testified. He had to sit and at times stand up
intermittently. He has to climb a flight of stairs at least 15 times per day
at work and finds this difficult and painful. He earns less commission
than his contemporary Lesley Ann Fortuin. His personality has changed.
He has become demotivated and has regular mood swings. He is not
physically active and is unable to partake in any form of sport. He cannot
even play with his minor child and this frustrates him. His sleep is
affected. He is no longer outgoing and sociable. The pain is getting
worse.


[16] According to Dr Rory Plunkett, a clinical psychologist specialising
in neuropsychology, the plaintiff has neuropsychological problems and
probable diffuse brain dysfunction as a result of the fat embolism; that he
suffers from post traumatic stress disorder, depression and general
distress and anxiety. This adversely affects his ability to work. He also
reported that the plaintiff’s career path has been stunted to some degree.
His concentration is poor. He is fatigued and has reduced motivation. His
productivity at work is thus reduced and this affects his earning capacity.
He has cognitive disabilities. The long term effects on his functionality
both physically and psychologically are likely to be permanent.


[17]   Ms Ansie van Zyl, an occupational therapist testified that she
interviewed and evaluated the plaintiff. She also interviewed his manager
Mr Karantges . According to her the plaintiff’s ability to function in the
workplace is less than 64%, that the plaintiff suffers from severe pain and
does not cope with physical demands of his work.


[18] Her opinion was confirmed by Mr Karantges, the sales manager at
Algoa FM and who is in charge of the sales department where the
plaintiff works. He testified that the plaintiff’s performance at work has
declined. His client base has reduced from 50 to 27. He has not been able
to meet targets for the first six (6) months of the financial year, that is,
October 2006 to April 2007. The plaintiff is not performing as well as
Lesley Ann Fortuin, who started as an account executive at the same time
as the plaintiff. This is apparent from the commission statements being
exhibits “B” and “D” respectively. According to him the plaintiff would
take a considerable drop in salary if he were to move to another
department. He stated that there were no prospects of promotion for the
plaintiff due to his performance.
[19] Dr Richard Holmes, an industrial and educational psychologist
testified that the plaintiff had a good work ethic prior to the collision.
According to him the plaintiff is well suited to the type of work that he is
doing as it is something that he always wanted to do and had shown an
aptitude for that type of work. The plaintiff is working at a slower pace
than he should be. He is unable to cope with the normal workload and his
client base is decreasing. The plaintiff suffered a significant reduction in
the earning capacity for his assumed pre-morbid employment prospects
as opposed to his actual earnings despite considerable growth in Algoa
FM. His income has declined. He currently has a loss of about R8000,00
per month. According to Dr Holmes, this loss will stabilise at about
R13 300,00 per month. If the plaintiff did a more sedentary type of job
he would earn far less than he is currently able to earn.


[20] It is against this background that I have been asked to determine an
appropriate award in casu. The aim of awarding compensation in delict
is to place the plaintiff in a position he or she would have been in had the
delict not occurred. See: Santam Versekeringsmaatskappy Bpk vs
Byleveldt 1973 (2) SA 146 (A) at 150 A-C.


[21] In Southern Insurance Association Ltd v Bailey NO 1984 (1) SA
98 (A) at 113G, Nicholas JA held:-
      “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.”
[22] In my judgment the evidence tendered by the experts as well as the
employer of the plaintiff cannot be gainsaid by the defendant. It is evident
therefrom that the plaintiff has sustained serious injuries which have and
will in future prevent him from working at full capacity. His client
portfolio has decreased. His income generating potential has been
negatively affected and his earnings have declined substantially. The
plaintiff had a very good future predicted for him. He will not be able to
reach his potential due to the collision. Dr Holmes concluded that the
plaintiff’s earning capacity has decreased by 33% whilst Ms Van Zyl
stated that the results of the tests showed that his work rate was at
64,3%. It is clear from exhibits “B” and “D” that Ms Fortuin performed
at 117% of her target in 2006 whilst the plaintiff could only achieve 84%.
It is accordingly evident that the difference of the actual performance of a
direct competitor in his market is 33%. This is the same figure reached
by the experts.


QUANTIFICATION OF DAMAGES
CLAIM FOR PAST LOSS OF INCOME


[23] I am of the considered view that the fairest and most appropriate
manner in determining this claim would be to compare the commission
earned by the plaintiff from January 2006 to April 2007 with that of Ms
Fortuin. This method was also proposed by Mr Schubart and Mr Simoyi.
It is apparent from exhibits “B” and “D” that the difference in
commission earned by these two individuals is the sum of R76 172,06.
This figure thus represents plaintiff’s claim for past loss of income.


CLAIM FOR FUTURE LOSS OF INCOME AND/OR LOSS OF
EARNING CAPACITY
[24] The claim is based on a loss of income (commission) estimated at
R8000,00 per month. I agree with Mr Schubart that this is a conservative
figure when regard is had to the evidence of Dr Holmes. It has already
been accepted that there will be a truncation in plaintiff’s working life of
between 10 to 15 years. The plaintiff again took the conservative figure
of 10 years. The calculation by the actuary is based on a loss of income
per month and truncation of 10 years of working life. The mode of
calculation has been admitted by the Defendant. The Court
accordingly accepts the calculations by Mr Jacobson.        It is apparent
therefrom that the plaintiff’s loss will be in the sum of R2 188 490,00
made up as follows:-
      (a) Loss of R8000,00 per month until the age of 55, being the sum
          of R1 158,833.00 which has been capitalised, and
      (b) Loss that will be suffered as a result of the truncation of
          plaintiff’s working life by 10 years, being the sum of
          R1 029,657.00


CONTIGENCIES
[25] The final issue is the determination of appropriate contingency
deductions.


(a) PAST LOSS OF INCOME
[26] Mr Simoyi argued that a contingency deduction of 5% in respect of
this claim be applied. This argument is in my view without merit and has
to be rejected out of hand as there is no evidence to support such a
contention. In my judgment the plaintiff is entitled to the award of
damages being the sum of R76 172,06.
(b) FUTURE LOSS OF INCOME AND/OR EARNING CAPACITY
[27] Mr Simoyi has argued that a 20% deduction be applied. He relied
on the decision of Road Accident Fund v Guedes 2006 (5) SA 583
(SCA) at 586-587 where a 19,5% deduction was applied in respect of a
26 year old Plaintiff. Mr Schubart on the other hand submitted that a
15% deduction would be reasonable under the circumstances.


[28] The argument by Mr Simoyi has no merit and is based on
speculation. It is trite that no two cases are exactly alike and each case
must be decided on its own facts. I have nevertheless had regard to the
cases referred by Counsel by way of comparison. It has to be borne in
mind that the Court has to look at the current age for purposes of the
assessment. The plaintiff was 30 years of age. There are also other
factors that have to be considered, firstly plaintiff’s condition is not going
to improve but will decline further as well as the fact that he has adopted
a very conservative approach with regard to his claim. In my view a
contingency deduction of 15% in this regard is fair in all the
circumstances. It follows therefore that the figure of R2 188 490,00 will
be reduced to R1 860 216,50.


[29] In the result, the Plaintiff is entitled to an award of damages in the
sum of R2 342 029,00 made up as follows:-
      1. Past Medical Expenses                 :              R 40 787.36
      2. Past Private Hospital Expenses        :              R 64 853.08
      3. Past Loss of Income                   :              R 76 172.06
      4. Future loss of income and/or
         earning capacity                      :              R1 860 216.50
      5. General Damages                       :              R 300 000.00
      6. Future Medical Expenses               :             Certificate____
             TOTAL                                           R2 342,029.00



[30] It is recorded that the defendant has previously made an interim
payment of R104, 105.48. In the result the amount outstanding is the
sum of R2 237,923.52.


[31] In the result, the following Order is granted:-
     1. The defendant is ordered to pay Plaintiff the sum of
        R2 237,923.52.       This amount is in addition to the previous
       interim payment made by the Defendant of R105 104,48. Interest
       is to accrue on the said amount of R2 237,923.52 at the legal rate
       of 15,5% per annum payable as from 14 days from date of the
       Order;
   2. The Defendant is directed to furnish an Undertaking in terms of
       Section 17 (4)(a) of the Road Accident Fund, Act 56 of 1996 for
       the cost of future accommodation of Plaintiff in a Hospital or
       Nursing Home or treatment of or rendering of a service or
       supplying of goods to him arising out of the collision in which he
       was involved on 11 September 2001, after the costs have been
       incurred and upon proof thereof;
   3. The Defendant is ordered to pay Plaintiff’s costs of suit as taxed or
       agreed, on a party and party scale. Such costs are to include:-
          (a) The cost of two Counsel;
          (b) The cost of all Reports, as well as the qualifying expenses,
                if any, of all experts of whom notice has been given by the
                Plaintiff in terms of Rule 36 (9)(a) and (b), either as agreed
                or as allowed by the Taxing Master;
         (c) The cost of consultations between Plaintiff’s Counsel,
             Plaintiff’s attorney and Plaintiff’s experts in preparation for
             the trial either as agreed or as taxed by the Taxing Master.




   4. The Plaintiff is declared a necessary witness.
   5. Interest is to accrue on the taxed costs at the legal rate of 15,5%
      per annum payable as from 14 days after the Taxing Master’s
      allocator.




_________________
N. Z. MHLANTLA
JUDGE OF THE HIGH COURT




DATE HEARD             : 11 MAY 2007
DATE DELIVER

				
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