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[2011] ZAGPJHC 73
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Pietersen v Road Accident Fund (08/19299) [2011] ZAGPJHC 73 (11 August 2011)
IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG (REPUBLIC OF SOUTH
AFRICA)
CASE NO : 08/19299
NOT REPORTABLE
DATE:11/08/2011
In the matter between:
PIETERSEN,
PATRICIA CHARMAINE obo
.........................................
JAY-Z
ST. IVES
Plaintiff
And
ROAD
ACCIDENT FUND
..
Defendant
JUDGMENT
BAVAAJ:
[1] The plaintiff in this matter sues
the Road Accident Fund on behalf of her minor son arising out of a
collision that occurred
on the 27th of October 2007 in Westbury where
the minor was a pedestrian.
[2] The minor was approximately 4
years and 7 months at the time of the collision and when the matter
came before me the merits
were conceded by the Road Accident Fund and
the only outstanding issue related to the quantum.
[3] In the said collision
the minor child sustained the following injuries:
[3.1] head
injury;
[3.2] injury
of both feet;
[3.3]
degloving injury of the buttocks;
[3.4]
degloving injury of the right shoulder;
[3.5]
degloving injury of the right side of the face;
[3.6]
degloving injury of the right forearm;
[3.7]
degloving injury on the right side of the scalp and occiput.
[4] The parties agreed that the
plaintiff's expert reports would be admitted as evidence. The parties
also agreed that the report
of the defendant's industrial
psychologist be admitted as evidence.
[5] Accordingly, the two aspects that
the Court is called upon to give judgment on are:
[5.1] general
damages;
[5.2] the
contingency deduction that is to be applied to the actuarial
calculation.
GENERAL DAMAGES
[6] According to Dr Brian Wolfowitz
the minor was riding a bicycle on the day in question when he was
struck by a motor vehicle
and dragged along by the vehicle. He was
taken to the Garden City Hospital in a dazed state where he remained
for a few hours and
then transferred to the Johannesburg Hospital
where he remained for six weeks.
[7] In the report of the orthopaedic
surgeon Dr K B H Sowersby the minor was attended to by the paediatric
surgeons and plastic
surgeons at Charlotte Maxeke Johannesburg
Hospital, he was admitted on the 28th of October 2007 and discharged
on the 11th December
2007. According to the records, Dr Sowersby
informs, the minor presented with multiple degloving injuries
involving both feet,
buttock, right scapula, right shoulder, right
forearm, right face and right side of the scalp and occiput.
Debridement procedures
were done by the paediatric surgery unit on
28th October 2007 and 1st November 2007. Repeat debridement
procedures and split skin
graft procedures as well as a scalp flap
were done some time late in November 2007.
[8] Further split skin graft
procedures were done to his heels, buttock and occiput on
30thNovember 2007. The minor was discharged
on 112007 and given a
follow up appointment for the 192007.
[9] Dr Sowersby reports that a CT
brain scan was noted to be normal and that x-rays of his cervical
spine were also reported to
be normal. Furthermore, the ultrasound of
the abdomen was also noted to be normal.
[10] Dr Sowersby also indicated that
the minor still has significant cosmetic disfiguring scars and that
when he initially saw the
minor in March 2010 there were complaints
of headaches. In the subsequent examination of the minor Dr Sowersby
notes that on the
24th of May 2011 the minor's mother has still not
taken him to a doctor regarding the headaches but a new complaint has
come to
light, namely, that the minor child suffers from seizures on
almost a daily basis which seizures occur at night.
[11] In Dr Shevel's report he
indicates that the minor was dragged under the motor car for some
distance and as a result of this
dragging the degloving injuries
occurred.
[12] Furthermore there is evidence
that until the accident the minor's development was normal and he
reached his milestones within
the prescribed time periods. Dr Shevel
indicates in his report that the GCS was recorded as being 13/15
after the accident and
deteriorated at one stage to 12/15.
[13] Dr Shevel also indicates in his
report that the minor's mother was told at some stage that the minor
child had a fractured
skull and some bleeding on the brain. The
defendant contends that this is the opinion of the minor child's
mother and it is not
supported by any medical evidence. Defendant is
correct in this regard. However, Dr Karan, the specialist
neurosurgeon, indicated
that:
"The reality is that Jay-Z did
not merely sustain a light bump to the head which on its own can have
serious sequelae. His
injuries were severe and the grim reality is
that time does not heal/address the neurocognitive outcomes that are
resultant of
the injuries."
[14] In the report of Alex
Stipinovich, the speech-language therapist, it is indicated:
"However, having taken these
variables into account, the writer is of the opinion that profile
obtained is in keeping with
cognitive-communicative difficulties
associated with traumatic brain injury as the majority of
difficulties noted are considered
to reflect difficulties with the
cognitive regulation and organisation of communicative behaviour. The
report of the neurosurgeon
is deferred to for information pertaining
to the accident of the head injury."
[15] The reports make mention of the
fact that the minor displays certain difficulties normally associated
with a brain injury and
this is contained in the report of Jeromy
Mostert, the neuropsychologist, who indicated as follows:
"Given his neuropsychological
results, Jay-Z demonstrated global impairment on testing. He
displayed difficulties with attention
and concentration, memory and
learning, psychomotor speed and information processing, verbal skills
and visual ability. His executive
functioning was extremely
compromised."
[16] It was also mentioned in the
report that as a result of the accident the minor child needs to be
placed in a remedial class.
[17] Dr Shevel states in his report
that the head injury suffered by the minor child resulted in organic
brain syndrome - post-traumatic.
Insofar as the severity of the head
injury is concerned Dr Shevel states:
"Jay-Z sustained at least a
moderate head injury and the clinical presentation would be
consistent with the severity of the
head injury sustained."
[18] There was much debate on this
aspect between the plaintiff and defendant and more particularly
relating to the severity of
the head injury. The plaintiff contending
that the head injury was at least a moderate head injury whereas the
defendant argued
that the evidence presented indicates that the
injury was a mild head injury. Dr Karan in the summary indicates:
"Master Jay-Z Pietersen is a
young child who has suffered moderate head injury or traumatic brain
injury at a very young age.
[19] In a more updated report dated 27
July 2011 Dr Karan indicates as follows:
"The findings of the objective
neuropsychometric tests administered by other parag*apb-medical
experts hint at the strong possibility
of Master Jay-Z Pietersen
having sustained a moderate traumatic brain injury as mentioned in my
previous report."
[20] During argument plaintiff's
counsel handed up photographs indicating the extent of the degloving
injuries of the minor. These
photographs show the serious extent of
the degloving injuries suffered by the minor.
[21] In the joint minutes of the
neuropsychologists, the educational psychologists and the industrial
psychologists it is apparent
that:
[21.1] the minor has cognitive
deficits consistent with a significant brain injury;
[21.2] the minor's academic
performance was poor post-accident;
[21.3] the minor will not be
able to pass Grade 12 in the mainstream academic environment;
[21.4] the minor was a vulnerable
candidate in the open labour market;
[21.5] the minor is functioning on a
below average level of intelligence;
[21.6] the minor would benefit from
immediate placement in the School for Learners with Special
Educational Needs.
[22] The degloving injuries are
unsightly and will result in the minor child living with these scars
for the rest of his life. The
degloving injuries to the feet are of a
serious nature that they affect the manner and type of A shoes that
the minor will be forced
to wear and there is no indication that
these unsightly scars will disappear or that they will not affect the
minor as he progresses
through life. Both counsel argued their
propositions and handed up various authorities to support their
propositions in respect
of the claim for general damages. The
plaintiff's contention was that general damages should be awarded in
the sum of R1 200 000,00
and referred to the Nxumalo case in Corbett
and Buchanan Volume IV where the plaintiff was awarded general
damages in that case
in the sum of R237 000,00 relating to
disfigurement to the right leg with degloving injuries. The
plaintiff's counsel indicated
that the current case was more serious
and that a sum of R400 000,00 in that regard would be appropriate.
[23] Insofar as general damages
relating to the head injury is concerned, plaintiff's counsel argued
that the amount of R800 000,00
would be the appropriate award. In
support of this plaintiff relied on the case of Megalane v Road
Accident
[2007] 3 All SA 531
(W), judgment of Saldulker, J, which
deals extensively with the case law relating to general damages and
accordingly it is not
necessary to repeat the principles outlined in
that case with which I am in agreement.
[24] In that case the head injury was
more severe and the injuries that were suffered by the patient in
that case were more extensive
than the current matter. In the current
case the evidence does not suggest what the minor's insight into his
predicament is and
plaintiff's counsel attempted to rely on certain
extracts from the reports but unfortunately could not produce the
necessary evidence
to indicate that the minor has insight into his
predicament.
[25] I was then also referred to the
unreported case of Penane v Road Accident Fund, judgment of Cook, AJ
who awarded R505 000,00
in respect of general damages for a brain
injury suffered by a minor child.
[26] In making an award for general
damages Protea Assurance Company Ltd v Lamb
1977 (1) SA 530
indicates
that the Judge has a large discretion to award what the Judge, in the
circumstances considers to be fair and adequate
compensation to the
injured party for the sequelae of the injuries.
[27] The line of cases quoted by
Salduker J in Megalane v Road Accident Fund to the approach to be
adopted towards awarding general
damages indicate that no hard and
fast rule is set down and that comparable cases should be taken into
account.
[28] Defendant's counsel sought to
argue that the general damages in this particular matter should be in
the vicinity of between
R500 000,00 and R600 000,00 and suggested the
amount should be R550 000,00.
[29] In having heard argument and
considered the matter and the various cases as well as the evidence,
I am of the view that having
regard to the degloving injuries and the
moderate brain injury that the amount of R750 000,00 would be the
fair award in respect
of general damages.
CONTINGENCIES
[30] I have been furnished with an
actuarial calculation by the plaintiff which was prepared by Mr
Whittaker of Algorithm Consultants
and Actuaries CC. It is agreed
between the parties that the calculations made in respect of the loss
of earnings/earning capacity
as contained in that report are correct.
The only difference between the parties is the contingency deduction
that should be applied
in this particular case.
[31] In the case of Southern Insurance
Association Ltd v Bailey NO (1) SA 98 (AD) page 113F-114E it was
stated:
"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."
[32] Stratford J in the case of
Hersman v Shapiro and Co TPD 367 379 stated:
"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."
[33] It is correct that contingency
factors to be applied in each case are to be considered on the facts
of the particular case.
In the Quantum Year book 2009 and at page
100, Koch states as follows:
"It has also become customary for
the Court to apply the so-called sliding scale to contingencies which
entails that half a
percent for year to retirement age that is 25%
for a child, 20% for a youth and 10% in middle age (see Goodall v
President Insurance
Company Ltd
1978 (1) SA 389
(W) ..."be
applied."
[34] In this particular case
plaintiff's counsel argues that a contingency of 20% should be
applied in the particular case having
regard to the circumstances of
the minor child. The plaintiff's counsel indicted that the minor
child's father reached Grade 12
and worked at a call centre and
accordingly that the minor child had at least that potential to
reach. The evidence as to the minor
child's earning capacity appears
to have been a compromised aspect between plaintiff and defendant and
in terms of the joint minutes
of the industrial psychologists it is
noted that insofar as the pre-accident scenario was concerned the
experts agree on a Matric
plus course as the likely earning scenario.
[35] Defendant's counsel, Mr Snoyman,
contends that having regard to the socio-economic conditions that the
minor child has been
brought up in as well as the fact that almost
all of the minor child's immediate and extended family are unemployed
save an aunt
who works for SAA indicates that a high contingency
should be applied in the particular circumstances. Mr Snoyman also
indicates
that a Matric plus course as indicated by the industrial
psychologists on the pre-morbid scenario is not the same as a Matric
certification.
[36] Plaintiff's counsel, on the other
hand, contends that if one is to take the working lifespan of the
minor, as agreed to between
the parties, it would be 46 years and if
one is then to apply half a percent to the 46 years of the working
life one would come
up to a maximum contingency of 23%. Defendant's
counsel indicates that, having regard to the facts, a contingency of
40% would
be appropriate in the current circumstances.
[37] In having considered the facts
and the argument I am of the view that in taking into account the age
of the minor, the socio-economic
conditions and the case law that a
contingency of 30% be applied in the current case.
PAST HOSPITAL AND MEDICAL EXPENSES
[38] At the hearing of the matter
counsel, by agreement, handed up a schedule of past hospital and
medical expenses. This schedule
contains vouchers which have been
agreed upon. The amount agreed to by the parties in respect of past
hospital and medical expenses
is R16 085,96.
DRAFT ORDER
[39] The parties have agreed to
various aspects in the matter and have accordingly prepared a draft
order which was handed up during
the hearing. The only aspect that is
left blank in the draft order is the actual monetary compensation
that the defendant has to
pay to the plaintiff. I was requested that
in determining the quantum in the matter I am to indicate what the
amount is that the
defendant has to pay to the plaintiff. It is clear
from all the reports that the money has to be protected. The Court
order handed
up has such a provision namely for the formation of a
trust for the benefit of the minor child.
[40] The award that I make in the
current case is as follows:
[40.1] General damages in the
sum of R750 000,00.
[40.2] Loss of earnings /
earning capacity (R2 857 825,00 less 30% contingency) equals R2 200
477,50.
[40.3] Past hospital and medical
expenses in the sum of R16 085,96.
ORDER
[41] Defendant is ordered to pay to
the plaintiff the sum of R2 966 563,50.
[41.1] During the hearing I was
presented with a draft order and this amount is to be inserted in
paragraph 1 of the draft
order. The rest of the draft order has been
agreed to between the parties and together with this amount is
accordingly made an
order of Court.
BAVA AJ