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[2015] ZAGPJHC 54
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Hlalele Obo Hlalele v Road Accident Fund (41304/2013) [2015] ZAGPJHC 54 (26 March 2015)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 41304/2013
DATE:
26 MARCH 2015
In
the matter between:
HLALELE MATSHEDISO JUSTINA O.B.O
K.................
H....................
...........................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
Summary:
Claim for loss of
earning capacity and future loss of earnings – six year old
child now twelve - akin to fortune telling where
there is little or
no factual information upon which to even guesstimate the future -
one industrial psychologist relies upon ‘family
history’
which is not inappropriate in the old South Africa where futures were
determined by race, gender and class but is
not always of assistance
in a transforming society - possible that the accident and damages
paid may advantage this boy and enable
him to achieve great things.
An award made of R 500 000 (five hundred thousand rand).
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
Plaintiff is the grandmother of a 6 year old boy
(‘K.........’) who was injured in a road accident and
now, on his behalf,
sues the Road Accident Fund for damages in
respect of injuries sustained. A curator
ad
litem
was
appointed in this matter but the grandmother still appears as
plaintiff.
2.
The parties have agreed on a number of issues:
a.
Defendant is liable for 100% of K.....’s
agreed or proven damages;
b.
Defendant will deliver an undertaking in terms of
section 17(4) of the Act to compensate in respect of all future
treatment.
c.
K........ has suffered general damages in an
amount of R 500 000 (five hundred thousand rand).
d.
K........ has sustained no damages in respect of
past medical expenses or past loss of income.
3.
The issue in dispute which this court is called
up on to decide is that of loss of earning capacity and future loss
of income. The
parties are in agreement as to the contents of the
joint minutes prepared by orthopaedic surgeons and occupational
therapists.
Each party has utilized the services of an industrial
psychologist and it is the basis upon which each has calculated
K............’s
future employment prospects and applied
contingencies thereto that this court is to determine.
THE
ACCIDENT AND INJURIES
4.
Kananelo was a pedestrian when he was injured in
a road accident on 17
th
March 2009. He was then six years old.
5.
It is common cause that he sustained a “serious
long term impairment” described as
“
a
degloving injury and fractures of the tarsal bones on the right
foot”. There is now a “deformed right foot”
(joint
minute of orthopaedic surgeons Gantz and Heyns).
6.
More specifically Dr Heyns detailed flexion
in knee joints, extension of the toes, found “no movements of
the lesser
toes at all due to injury to the dorsal tendons” and
that “the mid tarsal and subtaler joints are fixed” with
“fixed supination of the right foot” and “fixed
flexion contractures of the 3
rd
,
4
th
and 5
th
lesser toes”.
[1]
This was all occasioned by spontaneous fusions. Not only is there
“severe disfigurement caused by scarring” but also
pain
and discomfort and severe impaired movements of the right foot and
toes.
7.
Dr Gantz also specified his findings as including
“an altered gait on the right foot”, that the right leg
is shorter
by about 1cm on the medial side and that the right foot is
held in marked supination.
[2]
There has been resulting mild atrophy of the right thigh muscles and
wasting of the right calf muscles. He too, commented on the
supination of the midtarsal joint and the lack of extension or
flexion in the toes.
8.
K......... was treated at public state hospitals.
9.
He is an orphan and lives with grandparents and
extended family which is either unemployed or underemployed. The
family is poor
and unskilled.
THE
FUTURE
10.
Notwithstanding that the future remains
unpredictable, this court is still required to calculate and award
compensation based on
the unknown future –in respect of lives
which may or may not be lived or in respect of disabilities which may
or may not
eventuate or persist or in respect of damages which may or
may not eventuate. We do the best we can knowing that the future in
the Republic of South Africa has not, in our lifetime, always been
determined by the past and that change and transformation are
all
around us.
11.
The injuries and future treatment being agreed,
one can accept that the section 17(4) undertaking furnished to
K........... will
be a meaningless piece of paper unless he (or
curator) pays for necessary treatment upfront and then attempts to
recoup such healthcare
costs from the RAF. Fortunately, K...........
has the benefit of a sum awarded as ‘general damages’
which is not, of
course, meant to be utilized for healthcare expenses
but is the only source of funds which he may use to attain healthcare
and
treatment in the private sector. Daily we read that the state
sector is more and more strained and less and less able to assist
patients. If these funds are used to pay upfront for healthcare,
K......... may be less disabled. If these funds are used to ensure
an
education for him, he may remain more disabled. That will be a
decision for the curator or trustee.
12.
The Industrial psychologists’ reports were
handed in to court. The essential dispute appears to be that each
industrial psychologist
lives in a different dreamland. A joint
minute of their agreed and disagreed opinions was handed in.
13.
The one anticipates that K.......... would have (
if the accident had not taken place) completed grade 12, been
unemployed for 12
to 18 months, then would receive on the job
training, and he would have progressed up to the B3/4 median level of
employment. The
other anticipates that (if the accident had not taken
place) K......... would have matriculated, have had piece jobs for a
number
of years, worked as an unskilled employee for a number of
years, progressing until he would qualify as a semi-skilled employee.
Both are in agreement that retirement age would have been 65. The
first industrial psychologist bases this prognosis on ‘family
history’ whilst the second hoped for “perseverance”
at school. (Joint Minute of Strydom and Kgosana).
14.
Now that the accident has taken place, both
industrial psychologists are somewhat at a loss. Neither have any
pre-accident reports
– after all why should they. Both refer to
K........’s failure of grade 5 but this indicates nothing more
than lack
of application. Neither refer to the current economy and
its challenges. It is extremely difficult to know, what (if any) are
the
factors upon which this differently anticipated future is based.
15.
Both acknowledge that K............ is a
less competitive and more vulnerable jobseeker in the labour market
as a result of the
accident and that he is likely to suffer longer
periods of unemployment than other more able- bodied workseekers.
Neither refer
to the current rate of unemployment amongst young black
matriculants in South Africa or whether this is changing or may
change.
The relevant portion of their joint minute reads:
“
AS: based on the expert opinions to hand,
K............. is thus regarded a less competitive and vulnerable
jobseeker in the open
labour market and he is likely to suffer longer
periods of unemployment in comparison with pre-morbidly. He would
always have to
analyse his future employment opportunities and as he
is still young, there are no guarantees that he would be an ideal
candidate
for sedentary/administrative type of work. It is mostly
found that people without tertiary education normally resorts in
manual,
physical and ambulatory type of work, which AS would have
also expected in the case of K................. There are no
guarantees
that K............... would be permanently employed and he
may only secure ad hoc or contractual type of work. There are also no
guarantees that he would be employed in the corporate sector and
employment in the non-corporate or informal labour sector would
become a reality.
In view of the earnings as set out in AS’ report,
and in absence of a head injury, we would still consider
K.............
to complete Grade 12 but AS indicated that his
earnings, for working on an ad hoc basis or contractual basis, would
probably range
between R 18600 and R 53500 per annum. Given the
current difficulties reported at school, AS cannot foresee
K............ securing
a sedentary/administrative position, and the
chances of him securing same pre-morbidly, would have also seemed
unlikely. K............
should thus be compensated for suffering the
above losses. MK notes that there was no reported head injuries and
the psychological
effects of pain are colloquially treatable, making
the limitations temporary.
MK: Considering the conclusions of the orthopaedic
surgeons, K..............’s productivity in his future
employment will
be affected negatively by the injuries sustained
during the accident”.
[3]
16.
Regrettably, there is nothing substantial or
factual in this minute or in either reports. K............ is now
severely impaired
which renders him more vulnerable in the workplace.
This may have had little impact upon the earning capacity of a child
whose
family history and status in life may have exposed him or her
to the possibility of training as a neurosurgeon or a commercial
lawyer. However, it is presumed to be totally determinative of a
child whose family history and status in life reveals no more
opportunities than that of little education and manual labourer.
17.
What is apparent to me is that the plaintiff sees
financial advantage in claiming for a worse and less remunerative
employment future
by reason of the accident than does the RAF which
sees financial advantage in claiming for a less deleterious prognosis
because
of the accident. Neither gives convincing or factual reasons
for their prognosis prior to accident or post-accident. That is not
really their fault – this is, after all, just guessing the
future. And who would have thought that a herdboy would have become
the first President of a democratic South Africa??
18.
The difference between the parties is enormous:
plaintiff claims R 2 122 022 (two million one hundred and twenty two
thousand and
twenty two rand) for loss of income and the defendant
suggests R 282 981 (two hundred and eight two thousand and nine
hundred and
eighty one rand) for loss of earning capacity
[4]
.
19.
Dr Geeta Prag is an educational psychologist who
prepared a report at the instance of the RAF. She too, referred to
the absence
of information, which would enable an informed decision.
However, her report does deal in some detail with the child himself.
His
level of intellectual functioning and his verbal IQ fell within a
superior range whilst his performance IQ fell within an above
average
range.
20.
What is apparent to me is: K......... comes from
a disadvantaged family background; his grandparents have managed
(against great
odds) to retain employment and provide a family home
for their family members; K........... has himself shown great
perseverance
and responsibility in continuing at school when he is
less mobile than other children, not provided with any assistance to
attend
school by the RAF and has excuses which would enable him to
have simply ‘dropped’ out. He is a commendable child.
21.
K........... has continued at school. He failed
grade 5 – which apparently had nothing to do with his mental
ability or the
accident and everything to do with high spirits and
lack of application. But he continues. This is greatly to his credit.
We can
only hope that he continues to study, attains his matric and
is then able to find employment as more than a manual labourer.
22.
It is possible that K............. may study more
than he plays - because of his disability; it is possible that
K......... may
obtain more successful matric results than if he had
been able to play soccer and socialise with his peer group –
because
of his disability; it is possible that K......... may study
beyond matric, that he may be offered financial assistance or use his
general damages for this purpose But these “possibilities”
are as dreamlike as anything else proposed by the Industrial
Psychologists.
23.
I accept that, by reason of the accident and
injuries sustained and their long term effects, he is a more
vulnerable workseeker
in the laboring community. I hope that the
damages which he is awarded can be utilized to give him advantages in
life which are
superior than those offered to his siblings and which
will enable him to rise above the laboring future which might have
been all
that was available to him pre-accident.
24.
Having regard to those other judgments which I
have been able to find dealing with the difficulties of assessing
damages in respect
of loss of earning capacity and loss of earnings
for a young child and the awards granted in those cases, I have
decided to make
an award of R 500 000 (five hundred thousand
rand).
25.
I propose to speak to the intended Trustee of the
Trust to be created for the benefit of K............. or to the
Curator or Curators
Bonis who may be appointed. I wish to find out
about the extent to which his financial affairs can be managed to his
advantage
– not only his benefit. Can he be furnished with a
better education than the one currently on offer? Can he be given the
opportunity to study further than matric should he reach that stage?
It may be that the order which I propose making in respect
control of
his financial affairs will be amended.
ORDER
1.
The Defendant is liable to the Plaintiff in the
sum of:
1.1.
R 500 000 (five hundred thousand rand) as
general damages; and
1.2.
R 500 000 (five hundred thousand rand) for
loss of earning capacity and loss of income.
2.
The Defendant is liable for 100% of the
Plaintiff’s agreed and proven damages.
3.
The Defendant will deliver an undertaking to the
Plaintiff in terms of Section 17(4) of the Act to compensate the
Plaintiff in respect
of 100% of the costs of all future accommodation
in a hospital or nursing home or treatment of or rendering of a
service or supplying
of goods to him due to his injuries sustained in
the accident on 17 March 2009 and which shall include, but not be
limited to ,
those treatments identified or anticipated in the
various medico-legal reports, after such costs have been
incurred an upon
proof thereof.
4.
The capital amount referred to in paragraph 1
above shall be paid into the trust account of the Plaintiff’s
attorney of record,
who will hold the monies in an interest bearing
trust account for the benefit of the minor child namely HLALELE
PATRICK KANANELO
pending the creation of a trust or the appointment
of a Curator or Curators bonis as set out hereunder.
5.
The Defendant undertakes to pay costs which shall
include:
5.1.
Costs of junior counsel and costs of suit, such
costs to include the preparation expenses of the Plaintiff’s
experts, Dr D.
Heyns, Dr G. Van Heerden, Dr L. Gordon, Ms T. Nape, Dr
A. Strydom and Ivan Kramer, as may be agreed or allowed by the Taxing
Master;
5.2.
The reasonable costs of the creation of a Trust
and the appointment of a trustee subject to the proviso that such
costs do not exceed
the reasonable costs of the appointment of a
curator alternately the appointment of a Curator or Curators bonis.
5.3.
The Defendant shall be liable for the costs of
the trustee or the Curator(s) bonis in administering the minor’s
estate as
determined by
Section 84(1)(b)
of the
Administration of
Estates Act 65 of 1965
, as amended, according to the prescribed
tariff applicable to curators.
6.
The necessary steps shall be taken by the
Plaintiff’s attorney of record with a view to appointing a
trustee and forming a
trust or the appointment of a Curator or
Curators bonis
,
to
inter alia
, administer
and or manage the financial affairs of the minor child, within two
(2) months of the date of this order. The aforesaid
appointment and
terms of appointment shall be subject to the approval of the above
Honourable Court.
7.
The trustee or Curator(s) to be appointed shall
be required to furnish security to the satisfaction of the Master in
terms of Section
6(2) of the Trust Property Control Act 57 of 1988,
as amended, if so required.
8.
The Defendant shall pay the Plaintiff’s
party and party costs on the High Court scale either as taxed or
agreed to date hereof,
including any costs attendant upon the
obtaining of payment referred to in paragraph 1 above.
9.
The Plaintiff’s attorneys shall pay all
monies held in trust by them for the benefit of the Plaintiff, to the
Trust or to
the Curator(s).
10.
The trust instrument or the Curator(s) ‘s
terms of reference contemplated in paragraph 5 above shall make
provision
for the following:
10.1.
That the minor child HLALELE PATRICK KANANELO is
to be the sole beneficiary of the trust or the sole recipient of the
funds administered
by the Curator or Curators;
10.2.
That the trustee(s) or Curator(s)are or is to
provide security to the satisfaction of the Master;
10.3.
That the ownership of the trust property vest in
the trustee(s) of the trust in their capacity as trustees or
shall vest in
the minor child subject to the control and
determination of the Curator or curators.
10.4.
Procedures to resolve any potential disputes,
subject to the review of any decision made in accordance therewith by
this Honourable
Court;
10.5.
That the trustee(s) be authorized to recover the
remuneration of, and costs incurred by the trustee(s), in
administering the undertaking
in terms of Section 17(4)(a) of Act 56
of 1996 in accordance with paragraph 3 above;
10.6.
The exclusion of any community of property in the
event of the minor’s marriage;
10.7.
The suspension of the Plaintiff’s
contingent rights in the event of cession, attachment or insolvency,
prior to the distribution
or payment thereof by the trustee(s) to the
minor child;
10.8.
That the amendment of the trust instrument or the
terms of reference of the Curatorship be subject to the leave of this
Honourable
Court;
10.9.
The termination of the trust or the curatorship
upon the death of the minor child, in which event the trust assets
shall pass to
the estate of the minor child;
10.10.
That the trust property and the administration
thereof and the Curatorship be subject to an annual audit.
11.
The Plaintiff’s attorney shall render an
attorney and own client statement of account to the trustee or
Curator(s) aforesaid
within one month of their appointment. The
trustee or Curator shall be entitled to call for a taxation of the
said account within
one month of receipt of the account.
12.
Upon finalization of the taxation, alternatively
should no taxation be called for, the Plaintiff’s attorneys of
record shall
be entitled to deduct all fees and disbursements from
the proceeds referred to in paragrpah1 above, and the balance
thereof, together
with any costs recovered from the Defendant, shall
be forwarded to the trustee or Curator(s) to be invested for the
benefit of
the Plaintiff’s minor child or be utilized as the
trustee or Curator(s) deems appropriate subject to the terms of the
trust
deed.
DATED
AT JOHANNESBURG 26
th
MARCH 2015
SATCHWELL J
Counsel
for Plaintiff: Adv I S Ngwetjana
Attorneys
for Plaintiff: Mkwanazi Attorneys
Counsel
for Defendant: Adv T Nyandeni
Attorneys
for Defendant: Mohlala Attorneys
Dates
of hearing: 13
th
and 17
th
March 2015
Date
of judgment: 26
th
March 2015
[1]
Plaintiff’s Expert Reports Bundle pg 6.
[2]
Defendant’s Expert Reports Bundle pg 5.
[3]
Joint Minutes Bundle pg 8.
[4]
The actuarial calculations can do no more than take the prognosis of
the industrial psychologists and prepare the calculations.