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[2012] ZAGPJHC 295
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Mashiloane v Road Accident Fund (09439/2010) [2012] ZAGPJHC 295 (27 February 2012)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 09439/2010
In
the matter between:
FLORENCE
TSHEPISO MASHILOANE
….............................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...................................................................
Defendant
JUDGMENT
MEYER,
J
[1]
The plaintiff, who was born on [..] M[…] 1[…] 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