Road Accident Fund v Delport NO

• Jurisdiction: South Africa
• Judge: Zulman JA, Van Heerden JA and Ponnan JA
• Judgment Date: 31 March 2005
• Citation: 2006 (3) SA 172 (SCA)
• Docket Number: 183/2004
• Hearing Date: 15 February 2005
• Counsel: P J J de Jager SC (with him J F Grobler) for the appellant. B Pretorius and P E Jooste for the respondent.
• Court: Supreme Court of Appeal

Zulman JA:

[1] The respondent is the curator ad litem of Helen van Rooyen (the patient). The patient suffered horrendous I permanent injuries in consequence of a motor collision which occurred on 16 January 1997. The respondent instituted an action against the appellant for the recovery of damages suffered by the patient following upon the injuries sustained by her. The Pretoria High Court (Hartzenberg J) awarded damages in the total sum of R3 616 697,57, computed as follows: J

Zulman JA

Past medical expenses:R 525 774,58 A

Damages for loss of earning capacity:R1 840 923,00

General damages for pain, suffering - Loss of the amenities of life:R1 250 000,00

[2] The appellant, with the leave of the Court below, appeals to this Court only in respect of the awards for loss of earning capacity B and general damages, contending that the order made by the Court below should be set aside and substituted with awards of R845 212 and R800 000 respectively. The total amount in dispute is thus some R1 445 711.

[3] The injuries sustained by the patient that are set out in C detail in various medico-legal reports tendered in evidence (including a comprehensive report by a Dr Richard Holmes, a psychologist) are not in dispute. The appellant accepts that those injuries have rendered the patient totally disabled and that, from the date of the collision she has not been - nor will she in the future be able to earn any income. It further accepts, as held by the Court below, that the D patient's earning capacity, subject to an adjustment for contingencies, must be calculated on the basis that in 2003 she had a life expectancy of 22 years.

The patient's personal and work history E

[4] The patient was born on 4 November 1960 and was thus 36 years old at the time of the collision. She matriculated in 1977, the year her first daughter was born. Her second daughter was born in 1981. Her first marriage, which was not a success, lasted some four years from 1982 to 1986. She first worked as a personnel clerk at a business called Cremart which became part of Genkem in 1985. She worked there F until 1989 when she obtained a position as a personnel officer at the Rand Mutual Hospital, where she was responsible for the administration of approximately 400 workers. She remained in that position until November 1993 when, together with her present husband, she began work in a restaurant in Melville, Johannesburg. G

[5] Her second marriage, which commenced in 1988, was a particularly successful and happy one. Her daughters accepted her husband as their father and he regarded them as his own children. In his undisputed evidence, her husband described the period which he had spent with the patient, before the collision, as the best nine years of H his life. It is apparent from the evidence that there was a very close and loving relationship between them. They enjoyed a fulfilled and energetic life- style. They bicycled and exercised together, participated (on a competitive level) in Latin-American and ballroom dancing, and took overseas trips together. Their close bond extended into the work place and each manifested a warm enthusiasm for life and I work. They enjoyed a high standard of living and each complemented the other in the skills that they brought to the workplace.

[6] According to the evidence of a friend, a certain Mrs Starck, who was a co-employee at Genkem, the patient then earned approximately J

Zulman JA

R3 500 per month and was an outstanding worker. The personnel manager A at the Rand Mutual Hospital, Mr Richardt, testified that the patient, whom he regarded as an excellent worker, earned approximately R4 500 per month whilst in the employ of the hospital.

[7] The restaurant, which the patient subsequently operated together with her husband, in his words 'as equal partners', could serve 250 persons at any one sitting. It was open approximately 20 B hours a day and was very successful, with a turnover of approximately R2 million a year. Although they had two managers, the patient was responsible for numerous administrative tasks, including the purchasing of supplies and the maintaining of the books of accounts. She played a key role in the management and undoubted success of the restaurant C business, displaying at all times a great capacity for work. The patient's husband testified that the patient drew R6 000 per month from the business although this was not reflected on the books of account of the business.

[8] At the end of 1996, the patient and her husband sold their house in Johannesburg for a profit of approximately R2 million. They D then purchased a house in Seaview, Port Elizabeth, where they intended to relocate. Their plan was to take an overseas holiday for a few weeks in May/June 1997 and, after their return, to purchase and operate a new business. They had already started investigating various business possibilities. Shortly before the collision, a 20% share in the E restaurant business was allocated to the two managers of the business. The remaining 80% was subsequently sold to the two managers for approximately R1,2 million. After the collision, the patient's husband had purchased and operated two restaurants in Port Elizabeth, subsequently selling one of them. F

The accident and its sequelae

[9] The patient was rendered immediately unconscious in consequence of the collision and remained so, without any sign of movement, until her arrival at the Kroonvaal Private Hospital later that same day. The physical injuries suffered by her were a severe head injury (in G association with a loss of consciousness) and widespread injuries to the chest, left wrist, pelvis, left thigh and left lower leg.

[10] At the Kroonvaal Hospital, she required intubation and ventilation. She was admitted to the intensive care unit on the day of the collision and, in due course, various operative procedures had to H be performed on her. On 21 January 2003, she was transferred to the Flora Clinic. She was again admitted to the intensive care unit where her condition was described as 'critical and unsatisfactory'. She still required naso-gastric feeding, intropic support and ventilation via a tracheostomy. Her Glasgow Coma Scale was recorded I as 6/15. She remained in the intensive care unit at the clinic until 31 January 1997, during which time she required several courses of antibiotics for a chest infection. She was then transferred to the neurological high care unit where she remained until her transfer on 27 February 1997, at her husband's request, to the Greenacres Hospital in...