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[2011] ZAGPJHC 103
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Kgomo v Road Accident Fund (25846/10) [2011] ZAGPJHC 103 (2 September 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
REPORTABLE
CASE
NO: 25846/10
DATE:02/09/2011
In
the matter between
ALFRED
KGOMO
on behalf
of
........................................................................
PLAINTIFF
L
M K
and
ROAD
ACCIDENT
FUND
.............................................................................
DEFENDANT
Injured
person:
14-year-old
boy, learner at school, knocked down by motor vehicle while jogging.
Damages
for bodily injuries arising from accident – quantum of –
14-year-old boy at time of accident - brain injury
and soft tissue
injuries to shoulder elbow and pelvic area – future loss of
employability and earning capacity – assessment
of –
pre-accident prospects of employment – unemployable post
accident – contingency deduction – factors
affecting –
20 percent deduction allowed.
General
damages – recent awards in similar matters – modern
tendency enunciated by SCA in RAC v Marunga
2003 (5) SA 164
(SCA) –
awards made prior to 2003 overtaken by modern tendency of awarding
higher amounts – in casu award of R800 000
appropriate.
Costs
– Defendant’s liability for costs of trust to be created
and administration thereof confirmed.
Issues
to be resolved (merits having been settled on basis of defendant
accepting liability for 90 percent of proven damages):
Loss
of earning capacity,
General
damages.
Summary
of compensation awarded:
Past
hospital and medical
expenses
............................................................
R
124 071,30
Loss
of earning capacity
…...........................................................................
R
1 458 956,00
General
damages
,..........................................................................................
R
800 000,00
TOTAL
..............................................................................................................
R
2 383 027,30
J
U D G M E N T
VAN
OOSTEN J:
[1] In this action the plaintiff claims
damages in his personal and representative capacity as father and
natural guardian of his
son (M), arising from bodily injuries M
sustained on 12 October 2006, when he was knocked down by the insured
vehicle while jogging
alongside the road. The issue of negligence was
settled between the parties prior to the commencement of the trial on
the basis
of the defendant accepting liability to pay 90% of the
plaintiff’s duly proven damages. The defendant moreover agreed
to
furnish an undertaking in terms of
s 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
in regard to future medical treatment. Finally,
agreement was reached between the parties concerning the necessity of
and formalities
relating to the creation of a trust and the
appointment of a trustee to administer the award made to M which are
all reflected
in the order I propose to make at the end of this
judgment.
[2] The matter proceeded before me on
quantification of the remaining heads of plaintiff’s damages.
The plaintiff called three
witnesses to testify: firstly, Dr
Versveld, an orthopaedic surgeon, secondly, Ms Jamotte, an industrial
psychologist, and lastly,
the plaintiff, Mr Alfred Kgomo. The
defendant did not call any witnesses. The reports by and calculations
of the actuaries were
not in dispute. At the conclusion of the
evidence the amount of the plaintiff’s claim in respect of past
hospital expenses
(R137 857 less 10%=R124 071,30) was accepted as
having been duly proven and was therefore no longer in dispute. The
remaining heads
of damages I am accordingly required to determine are
firstly, M’s future loss of earnings and, secondly, general
damages.
[3] Before I delve into the monetary issues
some background facts are necessary: M was 14 years old at the time
of the collision.
He grew up in a stable family background. He was a
learner at the Bosmont Primary School in Grade 7. He suffered from a
learning
disability and his progress as a student, was average. He
was good at sport. After the accident he remained off school for the
remainder of 2006 as well as the whole of 2007. He returned to school
in January 2008 and although struggling to cope, passed Grade
8. The
next year he failed Grade 9. In 2010 he entered for Electrical
Engineering at Whitestone College, but failed. He is presently
repeating Grade 9 at the RW Fick Secondary School.
[4] As a result of the accident M primarily
sustained a severe head injury with progressive extra-dural
haemorrhage resulting in
compression of the brain. Treatment
consisted of intubation, ventilation and emergency CT scanning. The
scan revealed the presence
of a haematoma and an emergency craniotomy
was performed in an attempt to evacuate the haematoma. Ventilation
was initially provided
through a endotracheal tube and subsequently
by a tracheostomy with complications resulting to the sub-glottic
stenosis and eventually
damage to the vocal cord. M recently
developed breathing problems requiring the insertion of a T-tube to
assist with breathing,
which is still
in
situ
but will probably be
removed later this year. The secondary injuries M sustained were
abrasions to the left shoulder and soft tissue
injuries to the left
shoulder, right elbow and left pelvic area. Dr Versveld testified as
to the orthopaedic injuries and their
sequelae
,
which he said
inter alia
resulted in mild spasticity and distortion of the pelvis causing M to
walk with a subtle ataxia or sway of the left leg.
[5] After the accident M was taken by
ambulance to the Chris Hani Baragwanath Hospital, where he was
admitted and treated. The treatment
included physiotherapy and
occupational therapy. He was discharged from hospital on 1 February
2007 and by then he was able to
walk for short distances. Repeated
admissions of short duration followed thereafter essentially for
treatment of the ventilation
problems.
[6] The
sequelae
of the injuries sustained include neuro-cognital deficits and
neuro-psycological difficulties, manifesting in attention deficits
both verbally and visual, an inability to plan and organize and
difficulty inhibiting unwanted responses. His memory has deteriorated
both visually and verbally. He presently experiences tiredness from
walking with a drag, has difficulty in adapting to unnatural
inactiveness and gets cramps while writing.
[7] This brings me to the plaintiff’s
claim in respect of M’s future loss of employability and
earning capacity. From
the joint minutes of the educational
psychologists, occupational therapists and industrial psychologists
it is common cause that
M will not benefit further from mainstream
schooling and that practically it is unlikely that he will ever be
employed in the open
labour market in the future or generate any
meaningful earnings during the course of his adult life. He will
probably require some
level of care and/or supervision. Provision for
psychotherapy is advised. The industrial psychologists are in
agreement that pre-accident
he probably would have obtained at least
an N2, if not an N3 qualification at a Technical College and that he
would have qualified
in a trade. They further agree that in the
but-for
scenario he would have obtained at least a Grade 9 level of
education. Ms Jamotte however, was of the view that he would have
embarked on technical studies that would have enabled him to progress
to an N2 if not an N3 level for technically orientated work.
Initially, she testified, he would have worked, at the semi-skilled
level in the non-corporate sector where according to the Quantum
Year
Book, 2011, earnings range from R14 200 – R38 400 – R110
000 per annum. Having worked in that sector for a number
of years,
she was of the view he could have entered the open labour market at
more competitive wages. That would have placed him
within the
manufacturing and operations category with earnings ranging from the
A2, to at best, the B4 level.
[8] The defendant’s industrial
psychologist has expressed divergent views recorded in the joint
minute as to M’s pre-accident
prospects of employment and
earnings. The defendant, however, did not call her to testify. That
of course leaves the evidence of
Ms Jamotte uncontroverted. Only
certain minor aspects, all of doubtful relevancy, were dealt with in
cross examination of Ms Jamotte.
It is only necessary to refer to one
thereof, by way of an example. It concerned Ms Jamotte’s view
that M’s stable
family background and the achievements of his
immediate family members in their various fields of employment
provided relevant
considerations in assessing the pre-accident
probabilities of M successfully entering the labour market and
obtaining employment.
I can find no fault with the approach adopted
by Ms Jamotte. The general approach she adopted in the evaluation and
assessment
in any event was on the conservative side, and I
accordingly do not hesitate to accept her evidence as a basis for
awarding damages
under this heading.
[9] The plaintiff’s actuary, in a
revised report which has been admitted, based his calculations on the
conclusions arrived
at by Ms Jamotte, to which I have already
referred. The pre-accident earnings values he calculated, at four
year intervals, from
1 January 2012 being the assumed date of
commencement of employment, until 2040, starting at the lower
quartile non-corporate income
level and increasing to finally the
Paterson B4 median package. A contingency deduction of 20% has been
factored into the computation.
Counsel for the defendant contended
for a contingency deduction of 25% which she submitted was justified
by making allowance for
periods of M’s possible future
unemployment. Ms Jamotte dealt with this aspect in her evidence and
was of the view that the
possibility of unemployment could be
discarded as M would have had some form of education and
qualification upon entering the labour
market which would have
elevated him above the ordinary high incidence of unemployment in the
unskilled labour market. I am satisfied
that a contingency allowance
of 20% is reasonable and appropriate in the circumstances of this
case (see
Southern Insurance
Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 116G-117A;
Road
Accident Fund v Guedes
2006 (5)
SA 583
(SCA)) I accordingly accept the calculated net loss in respect
of M’s future loss of employability in the sum of R1 621 063
and the amount awarded, having allowed for the defendant’
s 90%
liability, accordingly is R1 458 956.
[10] With regard to general damages,
counsel for the plaintiff submitted that the facts of this matter are
almost identical to those
in
Grobler
v Road Accident Fund
(GSJ) (case
no 2008/9231, dated 29 April
2010
)
where
Tsoka J awarded general damages in the sum of R800 000 (the inflation
adjusted current value is R834 400). In that matter
a child aged 15
years sustained a head injury with severe traumatic brain injury as
well as a fractured pelvis and fractured tibia
and fibula. The child
suffered from permanent educational disability, permanent employment
disability with a permanent loss of
amenities of life. The
sequelae
of the injuries suffered by M, in my view, are remarkably similar,
although regard must be had in his case, to the pre-existing
learning
disability he was suffering from. In the light of these
considerations a fair and just compensation in respect of general
damages in my view, will be R800 000. Counsel for the plaintiff by
way of comparison also relied on awards in respect of general
damages
made in the following cases that dealt with brain injuries:
Webb
and Another v Road Accident Fund
(GSJ) (case number 03/13786, dated 14 June 2006): general damages
awarded R500 000 (inflation adjusted current value: R698 000);
Torres
v Road Accident Fund
2007 (6A4)
1 (GSJ): general damages awarded (brain damages only)
R600 000
(inflation adjusted current value: R800 400) and
Van
der Mescht v Road Accident Fund
2010
(6J2) QOD 42 (GSJ): general damages (moderate brain damage) awarded
R400 000 (inflation adjusted value R417 000).
[11] Counsel for the defendant contended
for a lesser award of R600 000 in respect of general damages. In
support of the contention
counsel relied on a number of judgments
delivered prior to the SCA judgment in
Road
Accident Fund v Marunga
2003 (5)
SA 164
(SCA), where the modern tendency to award higher quantum of
damages was taken into account in the making of an award for general
damages. In my view the awards made in the cases relied upon by
counsel for the defendant have been overtaken by the modern tendency
of awarding higher amounts, as is reflected in the recent awards I
have referred to above.
[13] As to costs, I requested counsel to
address further argument on the defendant’s proposed liability
(set forth in a draft
order prepared by counsel for the plaintiff) in
respect of the costs relating to the creation of the trust I have
referred to,
the administering thereof and the furnishing and
renewing of security. Counsel for the plaintiff in supplementary
heads of argument,
has addressed this aspect fully and referred me to
the leading case of
Reyneke NO v
Mutual and Federal Insurance Co Ltd
1992
(2) SA 417
(T) where Van Dijkhorst J held that those costs indeed
form part of the total award of damages. Counsel for the defendant
very
properly conceded the defendant’s liability for those
costs and referred me to the order made by Msimang AJ in
Arendse
NO v Road Accident Fund
[2002] 1
All SA 436
(C)
,
to
the effect that the defendant’s liability included the payment
of the attorney’s trust-administration costs.
[12]
In the result I make the following order:
1. Defendant is ordered to pay to the
first plaintiff the sum of R 124 071,30.
2. The defendant is ordered to pay to the
second plaintiff, L M K, (“the patient”), the sum of R 2
178 956.
3. The patient is declared to be incapable
of managing his own affairs, and Martha
Prinsloo of Absa Trust, 28
th
Floor, Volkskas Centre, 230 Van der Walt Street,
Pretoria, is appointed as trustee to
the patient, who is to provide security to the
satisfaction of the Master of the
High Court for the due fulfillment of her obligations
in terms of the Trust Property
Control Act 57 of 1988, as amended.
3.1 The trustee’s remuneration shall
be limited to the amount payable to curators as is reflected in
Government Gazette Notice
R1602 of 1 July 1991, specifically
paragraphs 3(a) and 3(b) of the Schedule thereto.
4. Defendant shall furnish the trustee
and/or the patient with an undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, to pay 90 percent of the costs of
the future accommodation of the patient in a hospital or nursing
home, or treatment of or rendering
of a service or supplying of goods
to him, arising out of the injuries he sustained in the motor
vehicle collision on 12 October
2006, and the
sequelae
thereof, after such costs have been incurred and upon proof thereof.
5. The undertaking referred to in
paragraph 4 above shall include the payment of:
5.1 the costs of the creation of a trust
and the appointment of the trustee, to
inter
alia,
protect, administer and/or
manage the capital amount referred to in paragraph 2 above and
5.2 the costs of the trustee in
administering the patient’s estate and the costs of
administering the statutory undertaking
furnished in terms of
s
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, such costs to be
limited to the prescribed tariff applicable to Curators as reflected
in Government Notice R1602 of 1 July 1991,
specifically paragraphs
3(a) and 3(b) of the Schedule thereto; and
5.3 the costs of the trustee furnishing
annual security and obtaining an annual security bond to meet the
requirements of the Master
of the High Court in terms of the Trust
Property Control Act 57 of 1988, as amended.
6. The plaintiff’s attorneys of
record shall cause a trust to be created on behalf of the patient
to,
inter alia
,
protect, administer and/or manage the capital amount referred to
in paragraph 1 above.
7. The defendant is ordered to pay
plaintiff’s taxed or agreed party and party costs on the
High Court scale, such costs
to include:
7.1 the costs attendant upon the obtaining
of payment of the full capital amount referred to in paragraph 2
above; and
7.2 the costs of the medico-legal reports
and qualifying fees of Dr G Marus, Mr BR Mallinson, Dr GA Versfeld,
Ms E Bubb; Ms A Lamotte
and Mr NJ Morland of Alison Crosbie Inc; and
7.3 the costs of the radiological report of
Dr P Wilson; the actuarial report of Algorithm Consultants &
Actuaries CC; the expert
joint minutes; and
7.4 the costs consequent upon the
employment of senior counsel.
8. Plaintiff shall, in the event that the
costs are not agreed upon, serve the notice of
taxation on defendant’s attorneys of
record and the defendant is allowed seven days after taxation of the
plaintiff’s
bill of costs to make payment thereof.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE PLAINTIFF
…....................
ADV JN
DE VOS SC
PLAINTIFF’S
ATTORNEYS
…..............................
JOSEPH’S
INC
COUNSEL
FOR THE DEFENDANT
....................
ADV
(Ms) N MABENA
DEFENDANT’S
ATTORNEYS
…..........................
SHAI
& MNGOMEZULU INC
DATE
OF HEARING
................................................
24
& 25 AUGUST 2011
DATE
OF JUDGMENT
….......................................
2
SEPTEMBER 2011