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[2013] ZAGPJHC 405
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Louw obo Mohono v Road Accident Fund (2011/16477) [2013] ZAGPJHC 405 (6 June 2013)
REPUBLIC OF SOUTH
AFRICA
THE SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
JUDGMENT
Case no: 2011/16477
DATE: 06 AUGUST 2013
In the matter between
ADVOCATE ANTON LOUW OBO
BOITUMELO CHANTA
MOHONO
.........................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
Neutral citation: Mohono B C v RAF
(16477/2011)
Coram: DIPPENAAR AJ
Heard: 6 August 2013
Delivered: 6 August 2013
Supplementary judgment: 12 August
2013
Summary: Damages awarded for minor who
sustained serious neurological and orthopaedic injuries as a
pedestrian in a motor vehicle
collision.
ORDER
Damages are granted in favour of the
plaintiff in an amount of R4.9 million and a curator bonis appointed
in terms of draft order
marked “X”.
SUPPLEMENTARY JUDGMENT
Dippenaar AJ:
[1] On 6 August 2013 I granted judgment
in favour of the plaintiff and awarded damages to the plaintiff in an
amount of R4.9 million
together with ancillary relief as set out in
the draft order which was marked “X” and initialled for
identification
purposes. At the time of my judgment I indicated that
I would give additional written reasons for the judgment in due
course. These
written reasons supplement the judgment and order
granted on 6 August 2013.
[2] Advocate Anton Louw had been
appointed as curator ad litem to the patient, who was an eight year
old minor at the time of the
accident. Merits had been conceded in
the plaintiff’s favour and the defendant accepted liability for
100 per cent of the
patient’s proven damages. The plaintiff’s
claim for damages is set out in para 11 of the plaintiff’s
particulars
of claim. The claim for past hospital and medical
expenses in an amount of R10 000 was abandoned at trial. The
estimated future
hospital and medical expenses were settled between
the parties by means of an undertaking given by the defendant under
s 17(4)(a)
of the Road Accident Fund Act.
[3] The issues which were to be
determined at the trial related to the plaintiff’s future loss
of income or earning capacity
and general damages. I granted an award
in an aggregate amount of R4.9 million in this regard. These reasons
supplement my judgment
for the above finding.
[4] The parties were in agreement that
the patient had suffered a total loss of earning capacity and a total
loss of person of between
59 per cent and 64 per cent. She had been
eight years old at the time of the accident and was presently 13
years old. The nub of
the dispute between the parties was on what
basis the plaintiff’s loss of earning capacity was to be
determined.
[5] On behalf of the plaintiff it was
contended that the patient would have obtained a tertiary education
whereas the defendant
contented she would not have advanced beyond a
grade 12 education. I have already dealt with the reasons for
accepting Ms Gibson’s
views above the views of Ms Prag in this
regard.
[6] The joint minutes of the aforesaid
remedial therapist and educational psychologists reflected the joint
views of Gibson and
Prag and do not reflect any material point of
departure, save for the fact that Prag does not deal with many of the
issues at hand,
but merely urges that cognisance be taken of the
socio-economic circumstances and status of the patient and the fact
that neither
of her parents had attained a grade 12 qualification.
[7] The industrial psychologists, Dr
Kellerman and Dr Du Toit agreed on the basis of the test results
reported in the reports of
Gibson, Prag and Dr Van der Walt that the
patient was of average to above average intellectual functioning
pre-accident. They further
agreed that the patient would have entered
the labour force after completion of grade 12 earning intermittently
for two to three
years on a Paterson derived grade A1/A3 whilst
completing her studies. She would then have been able to earn on a
Paterson derived
grade B1/2 total package and would have progressed
on a grade C3/C4 towards the age of 45 years where she would have
reached her
career ceiling. She would thereafter have received
inflationary increases until retirement at the age of 60 to 65 years.
[8] Du Toit, acknowledging Prag’s
opinion, and whilst agreeing with the views of Kellerman, projected a
second earning scenario
based on the fact that the patient would not
have attained a university education. For the reasons already given
in my judgment
I am of the view that Gibson’s views are to be
preferred above those of Prag and that the views of Prag are not
properly
motivated to such an extent where on the probabilities they
should be taken into consideration.
[9] It was undisputed that the
actuarial calculations of the patient’s loss of earning
capacity, based on the contents of
the joint minutes between the
industrial psychologists, Kellerman and Du Toit, and taking into
account an agreed contingency of
20 per cent, amounted to an amount
of R3 830 011. For purposes of the total award which was made, I
rounded the figure off to R3.8
million. Having regard to the evidence
presented to me, I am of the view that such amount constitutes a fair
compensation for the
patient in relation to her loss of earning
capacity.
[10] The remaining issue which needed
to be determined was an appropriate and fair award in respect of
general damages. I was referred
to two authorities which related to
recent general damages awards for similar and/or comparable injuries
sustained. The parties
were further in agreement that the patient
should be compensated for the consequences of both the neurological
and orthopaedic
injuries sustained by her, both of which were of a
serious nature.
[11] I was referred to Codeiro v Road
Accident Fund 2010 (6) QOD A4-45 GNP Case Number 49639/2008, a
judgment of Webster J in the
North Gauteng High Court during 2010,
referred to in my judgment of 6 August 2013, which related to an
award of R800 000 as general
damages in relation to commensurate
neurological injuries as had been sustained by the patient. It was
common cause between the
parties that a similar award in respect of
general damages would be appropriate in the present instance.
[12] I was further referred to Roe v
Road Accident Fund 201 (6) QOD J2-59 Case Number 16157/09, a judgment
of Van Oosten J in the
Gauteng South High Court, during 2010,
referred to in my judgment, which related to general damages awarded
in relation to the
orthopaedic injuries and their sequelae sustained
by the patient in an amount of R650 000.
[13] Having considered the evidence and
argument presented and the serious nature of both the neurological
and orthopaedic injuries
suffered by the patient, the general damages
award should take the sequelae of both these injuries into account. I
am of the view
that an amount of R1 100 000 would constitute a fair
and reasonable award in the circumstances.
[14] In the circumstances, I am of the
view that an aggregate amount of R4.9 million constitutes a fair and
equitable amount in
relation to both these heads of damages. The
plaintiff and the defendant agreed that this amount would be
appropriate and would
be fair and reasonable to both the plaintiff
and the defendant in the circumstances.
[15] In light of the serious and
permanent brain injuries sustained by the patient, it was further
necessary to appoint a curator
bonis. The draft order provided for
the appointment of a suitable individual with sufficient experience
in these matters, Mr A
Kitshoff who had consented to the appointment.
His appointment was made subject to the normal safeguards and
controls and having
regard to the powers as set out in Ex Parte Du
Toit
1968 (1) SA 33
(T).
[16] The curator ad litem, advocate A
Louw, was present during the proceedings and addressed me on the best
interests of the patient.
[17] I accordingly granted an order in
terms of the draft order marked “X” dated 6 August 2013.
E F DIPPENAAR
ACTING JUDGE
APPEARANCES:
PLAINTIFF: Adv A Louw (curator ad
litem)
Adv JC Prinsloo
Instructed by Renier van Rensburg
Incorporated, Johannesburg
DEFENDANT: Adv OM Moeti
Instructed by Mohlala Incorporated,
Johannesburg