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[2015] ZAGPJHC 258
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Sendzela obo S v Road Accident Fund (2014/18257) [2015] ZAGPJHC 258 (30 October 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2014/18257
DATE: 30 OCTOBER 2015
In the matter between:
SISANDA SENDZELA obo [I……]
[S..…….]
...................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...............................................................................................
DEFENDANT
J U D G M E N T
WRIGHT J
1. Mr Godfrey Malumane was appointed
curator ad litem to the minor child [I……]. [I…..]
was born on 8 August
2009. On 31 December 2012, at the age of three,
she was injured in a car accident. Her mother and aunt were killed in
the accident.
The facts in this case are common cause. The claim is
for general damages and future loss of earnings. It is agreed,
correctly,
between the parties’ legal representatives and their
actuaries that the claim for general damages is not capped. [I……]
is now six years old.
2. Prior to the accident [I……]
was a normal child. [I……] lost consciousness in the
accident. Her GCS
reading was 6/15 on admission. She was hospitalized
for 15 days. She suffers from nose-bleeds, bed-wetting, headaches,
some memory
loss to the extent that she will probably not be able to
earn when she grows older, scarring on her forehead, lumbar back-pain
and cervical pain. It is unknown whether or not ( apart from the
memory loss) these problems will resolve themselves over time.
She is
in grade R at school. She plays normally with other children. There
is a 15% chance that she will develop epilepsy. Ms Boikanyo
for [I……]
suggested that R950 000 to R1 000 000 would be fair compensation for
general damages. Mr Gama, for the
Fund, argued for R500 000. In my
view R800 000 meets the justice of the case.
3. Both sides filed actuaries’
reports. Both actuaries moved from the premise that [I……]
will not earn in the
future. This correct assumption is based on the
reports of educational and industrial psychologists. Both sides
assumed, correctly,
that [I……] would, but for the
accident have obtained matric and entered the workplace as a
semi-skilled person. The
actuary for [I…..] assessed her claim
at R3 112 294. He assumed a starting work age of 24 but for the
accident. He assumed
retirement at age 65. He assumed a starting
salary of R314 000 per year. He did not provide for a deduction for
contingencies.
The Fund’s actuary assumed a starting work age
of 19. She assumed a retirement age of 65. She assumed that [I…..]
would have started working at an annual salary of R18 600. The
significant difference between the two actuaries is the starting
salary. It is to be noted that the Fund’s actuary, Ms Wiggill,
relies on the well-known work by [I……]’s
actuary,
Mr Koch. Neither side led any evidence. In my view, taking into
account the facts before me, including a 25% deduction
for
contingencies, the sum of R2 025 000 is an accurate assessment of
damages for future loss of earnings. It seems to me that
[I……’s]
actuary may have been a little over-optimistic in his assessment of
the future starting salary. By
the same token, Ms Wiggil, I think has
underestimated the starting salary. Neither counsel could suggest any
reason why my assessment
is wrong.
4. I was seized with a similar case
earlier this week. I gave an unreportable judgment in the matter of
Maswawatla, Jeremiah obo
Phindani, Thandazile, case number
13964/2013. The facts were similar although in the present case the
injuries and sequelae are
slightly more severe, justifying a higher
award for general damages. In both cases a young girl suffered
similar injuries in a
car accident and lost a parent. Both would, but
for the accidents have gone on to obtain matric. Both would have
entered the labour
market at the same level without a tertiary
education. The sum I intend awarding in the present case for future
loss of earnings
is the same as that awarded in the other case.
5. The parties have provided me with a
draft order catering for a certificate to be provided by the Fund to
cover future medical
costs, costs of suit and the formation of a
trust.
6. I make an order in terms of a draft
order marked X.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
On behalf of the Plaintiff: Adv M
Boikanyo
Instructed by: Mkhabela Inc
011 331 3147
On behalf of the Defendant: Adv N
Gama
Instructed by: Mayat Nurick Langa
Attorneys
011 442 4250
Date of Hearing: 30 October
2015
Date of Judgment: 30 October
2015