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[2012] ZAGPJHC 37
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M v Road Accident Fund (09439/2010) [2012] ZAGPJHC 37 (12 February 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 09439/2010
Date:27/02/2012
In
the matter between:
F
T
M
.......................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..................................................................................
Defendant
JUDGMENT
MEYER,
J
[1] The
plaintiff, who was born on 5 March 1993 and presently 18 years of
age, claims the payment of compensation for her damages
as a result
of bodily injuries sustained by her due to an accident that occurred
on 7 August 1993, when she was only five months
old.
The
plaintiff sustained compound fractures of the right hand thumb and
index finger. She was left with a shorter deformed thumb
and her
index finger was amputated. She also sustained a de-gloving injury
to her right forearm that left her with a scar.
[2]
The
issue of liability has already been resolved. The plaintiff will be
entitled to 100% of her proven damages. The parties also
reached
agreement in respect of certain matters relating to the quantum of
damages. It was agreed that the defendant is to pay
to the plaintiff
the sum of R250, 000.00 in respect of her general damages and provide
her with an undertaking in terms of
s 17
of the
Road Accident Fund
Act 56 of 1996
in respect of her future medical treatment
.
The only remaining issue is the plaintiff’s claim for loss of
earning capacity and future loss of earnings.
[3]
The
plaintiff testified. Ms C Tsatsawane, an occupational therapist, and
Mr H van Blerk, an industrial psychologist, who each
prepared a
medico-legal report following their assessments of the plaintiff,
also testified for the plaintiff. Dr LA Fourie, an
industrial
psychologist, who also prepared a medico-legal report following his
assessment of the plaintiff, testified for the defendant.
Joint
minutes were prepared by the occupational therapists for both
parties, Ms. Tsatsawane for the plaintiff and Ms. C Myburgh,
who was
not called to testify, for the defendant; the industrial
psychologists for both parties, Mr van Blerk for the plaintiff
and Dr
Fourie for the defendant; and the educational psychologists for both
parties, Dr WM Kumalo for the plaintiff and Ms L Swart
for the
defendant, neither of whom were called as witnesses. The parties
admitted the actuarial assumptions made by the defendant’s
actuary, Dr RJ Koch.
[4] The
plaintiff testified that her father’s highest educational level
is standard 8. He was a police officer and thereafter
became a motor
mechanic. He now receives a disability pension. Her mother’s
highest educational level is matric. She was
a domestic worker and
is not presently employed. The plaintiff’s only sibling is her
14 year old sister, who is presently
in grade 8. Her father left the
common home during 2007, and the plaintiff resides with her mother.
[5] It
appears from the report of Ms Tsatsawane, which she confirmed when
she gave evidence, that the plaintiff had a normal birth
and that her
milestones were normal. She sat at 6 months, crawled at 7 months,
stood and walked at 10 months, and she was able
to speak before 24
months. The plaintiff started grade 1 in primary school in the year
2000 when she was 6 years and 9 months
old. The plaintiff has never
failed a grade at school. However, she left school during 2010 when
she was doing grade 11 due to
pregnancy and gave birth to her child
on 23 October 2010. She went back to school and was doing grade 11
in 2011. The
communio
opinio
is
that she will probably complete high school successfully with a grade
12 certificate.
[6] It
is common cause that due to the injuries to her forearm and hand, the
plaintiff’s hand function and co-ordination of
her right
dominant hand are significantly affected. The plaintiff will have
difficulty performing activities requiring manual
dexterity with the
right hand. The plaintiff confirmed when she testified that she had
informed the orthopaedic surgeon, Dr SM
Sara, that she has difficulty
doing up buttons, but can otherwise perform most manual activities
including writing. She also
confirmed that she has always coped at
school using her right hand and that she writes 2 – 3 hour
papers with that hand.
The plaintiff testified that she participates
in sports irrespective of her hand disability. She confirmed the
following which
is stated in the medico-legal report of the
educational psychologist, Ms Swart:
‘
Florence
still takes part in Athletics. She does very well and usually ends
up amongst the top three positions. She gets home
after practise,
does her chores and then her homework. Since she had her baby, it is
now difficult to juggle her responsibilities,
taking care of her
chores and her daughter, as well as attending to her schoolwork.’
[7] The
plaintiff testified that she experiences difficulties which are
caused by the unusual way in which she holds a pen without
an index
finger. This slows down her writing. Her hand or finger (presumably
her shortened thumb) pains when she writes for long
and she then
needs to take a break from writing. Her hand sometimes swells. The
plaintiff testified that she particularly experiences
difficulty in
completing examination papers. Ms Tsatsawane performed a writing
speed test on the plaintiff in which she was required
to write or
copy 133 words in 7 minutes. She finished this task in 6 minutes and
22 seconds, which, in the opinion of Ms Tsatsawane,
is indicative of
a good performance. Ms Tsatsawane also commented that the plaintiff
was stretching her muscles after the task.
It is accepted that the
plaintiff’s writing speed is compromised. She experiences
discomfort and probably requires extra
time when writing for longer
periods of time. The occupational therapists agree that she would
benefit from occupational therapy
treatment, including hand therapy.
They agree, however, that due to poor hand function the plaintiff
would have difficulties doing
work that requires fine motor
coordination and the poor dexterity would affect her working speed.
[8] It
also appears from the evidence of the plaintiff, however, that she
has coped thus far by undertaking new dexterities with
her left hand.
She, for example, does needle work with her left hand. She
testified that she uses her left hand for most things
which she
cannot do with her right hand. Ms Tsatsawane expressed the opinion
that needle work requires fine motor-coordination
and that the
plaintiff has fine motor-coordination of the left hand. The
plaintiff was only five months old when the accident
happened and she
has adapted fully to her condition and is coping. She has no
limitation in respect of her personal care, home
chores and
management.
[9] It
is also common cause that the plaintiff experiences emotional
problems as a result of her disfiguring scarring and lack of
an index
finger. The plaintiff has not accepted her condition and feels ‘...
embarrassed about it.’ She testified
that she feels
uncomfortable and prefers to stay at home. The plaintiff, however,
has friends and she participates in social and
sporting activities.
She testified that she wears long sleeved tops to conceal the
scarring and she conceals her hand by keeping
it in a pocket. The
occupational therapists agree that the plaintiff needs psychotherapy
to deal with the
sequelae
of her accident and that she would benefit from therapy with a
clinical psychologist to address her emotional problems. It should
also be noted that the plaintiff testified that the separation of her
parents and the non-involvement of the father of her child
caused her
a lot of emotional distress.
[10] Ms
Tsatsawane conducted certain tests as part of her assessment of the
plaintiff. Presently relevant are the perception test
and the visual
memory, visual closure and visual figure ground subtests. Ms
Tsatsawane defined visual memory as ‘the ability
to recall
information seen or learned earlier’, visual closure as ‘the
ability to identify a whole figure when only
fragments are presented,
and visual figure ground as ‘the ability to focus attention on
specific details from among the many
in view at a given moment’.
Ms Tsatsawane reported that the plaintiff’s performance was
normal in the perception test,
borderline in the visual memory
subtest, and low-average in the visual closure and visual figure
ground subtests. These, according
to Ms Tsatsawane play a key role
in learning and it is necessary that they be addressed as soon as
possible. Ms Tsatsawane expressed
the opinion that the ‘most
likely’ cause of the plaintiff’s perception difficulties
is the absence of her index
finger and deformed thumb. Such, in the
opinion of Ms Tsatsawane, caused her brain not to develop as fast as
other children who
could explore with all their fingers and is likely
to have impacted on the plaintiff’s schooling. Ms Tsatsawane,
however,
conceded that the plaintiff has all her other fingers to
explore, although an index finger plays an important role, and that
touch
is only one of the five senses, the other being sight, hearing,
smell and taste. Any impact which the rate of the plaintiff’s
brain development may have on her scholastic performance is, however,
a matter of mere speculation on the evidence presented.
[11] The
industrial psychologists agreed that as a result of the accident the
plaintiff’s employment opportunities have been
curtailed and
that she may be disadvantaged in terms of efficiency, effectiveness
and productivity compared to healthy individuals
of the same age with
similar types of jobs. It does, however, not necessarily follow from
proof of a physical injury which impaired
the ability to earn an
income that there was in fact a diminution in earning capacity. The
following passage in
Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA), at p 241H – 242B, equally applies to the
fact of this case:
‘
The
fallacy in Mr Eksteen’s criticism is that it assumes that
Rudman suffers loss once he proves that his physical disabilities
bring about a reduction in his earning capacity; thereafter all that
remains is to quantify the loss. This assumption cannot be
made. A
physical disability which impacts upon capacity to earn does not
necessarily reduce the estate or patrimony of the person
injured. It
may in some cases follow quite readily that it does, but not on the
facts of this case. There must be proof that
the reduction in
earning capacity indeed gives rise to pecuniary loss.’
Also
see:
Roe
v Road Accident Fund
,
para 11
((unreported)
case no 16157/2009 delivered on 1 April 2010 by Van Oosten, J in the
South Gauteng High Court) and
Prinsloo
v Road Accident Fund
,
paras [7] – [8],
((unreported)
case no 139/2009 delivered on 25 February 2010 by the Full Court of
the Eastern Cape High Court (Jones J with Pillay
J and Makaula AJ
concurring).
[12] The
plaintiff testified that her aspiration since her third grade at
school had always been to become a police woman. Her
intention is to
join the SAPS once she obtains her grade 12 at school. Her ‘plan
B’ or second ‘option’
is to study law if she is
rejected by the SAPS. Given that the plaintiff’s intellectual
capacity seems to be in the slightly
below average range a career in
law, pre- or post-morbidly, seems improbable. Regrettably, the
industrial psychologists ignored
the plaintiff’s preferred
career path, which pre-morbidly would probably also have been to join
the police force. The plaintiff’s
prospects of employment and
of promotion within the SAPS have not been addressed. Instead,
postulations and assumptions were made
that essentially do not
assist. The plaintiff testified that she researched the requirements
for joining the SAPS, and they are
a matriculation certificate, an
age requirement, and good health. It is not suggested that the
plaintiff is not of good health.
She is an athlete and she will
probably obtain her matriculation certificate without failing any
year at school. The plaintiff
is also a person within the category
of persons previously unfairly discriminated against
inter
alia
on
the basis of race and gender and post accident also being a disabled
person will probably benefit by just employment policies
to redress
and repair past discriminatory practices.
[13] Although
the plaintiff has proved that she had suffered injuries which
physically impaired her ability to perform certain kinds
of work, she
has not proved that she has therefore suffered loss.
[14] Finally,
the matter of costs. I agree with the defendant’s counsel that
it was not necessary for the plaintiff to engage
the services of two
counsel, and that only the costs of the first day of the trial should
be allowed if the plaintiff is unsuccessful
in her claim
for
loss of earning capacity and future loss of earnings since the issues
of general damages and the plaintiff’s future medical
expenses
were only settled shortly before the commencement of the trial.
[15] In
the result I grant judgment in favour of the plaintiff as follows:
1. Payment
of the sum of R250, 000.00 in respect of general damages.
2. Interest on the amount in
paragraph 1 above at the applicable
mora
rate of
interest, presently 15.5%
per
annum
,
calculated from fourteen days of the date of this judgment until date
of payment.
3. The defendant is ordered to
furnish to the plaintiff an undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
for the costs of the future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or rendering of a service
to her or supplying of goods
to her, arising of the injuries sustained by her in a motor vehicle
accident which occurred on 7 August
1993, after such costs have been
incurred and upon proper proof thereof.
4. Costs of suit up to and
including the first day of trial, and such costs to include the
qualifying expenses of Dr Sara, Ms Tatsawane,
Prof Chait, Ms Peta, Dr
Kumalo, Mr van Blerk, and Dr Koch.
P.A. MEYER
JUDGE OF THE HIGH COURT
27 February 2012