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[2016] ZAGPJHC 193
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Mahlangu v Road Accident Fund (038823/14) [2016] ZAGPJHC 193 (21 July 2016)
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THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
JUDGMENT
Case no: 038823/14
DATE: 21 JULY 2016
In
the matter between:
MAHLANGU
ELIZABETH
.......................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
....................................................................................................
Respondent
Heard:
28 January 2016 and 29 March 2016
Delivered:
21 July 2016
JUDGMENT
MOLAHLEHI,
AJ
Introduction
[1]
On the last day of the hearing of the oral
evidence in this matter, the parties were directed to file their
heads of argument within
ten days thereafter. The plaintiff complied
with that directive. The respondent has despite several reminders by
my registrar failed
to comply with the directive. I was also informed
at the hearing of the arguments by Counsel for the plaintiff that he
had on several
discussions with the respondent’s Counsel
regarding the same to no avail. The matter was thus determined
without the benefit
of the heads of argument of the respondent.
[2]
The plaintiff in this matter claims
damages, in her representative capacity as the mother and natural
guardian of her son (“hereinafter
referred to as “the
minor child”), arising from bodily injuries he suffered on 26
January 2013, when he was knocked
down by an insured vehicle while he
and his friends were playing in the yard. The car went through the
fence of the yard, killing
two of his friends and injuring the other
two
[3]
The minor child’s twin brother was
one of those who were injured in the accident. The twins were
prematurely born at 35 weeks
and the other twin suffered
complications at birth which seems to have made him weaker and slower
in terms of development. There
is no evidence that the minor child
was not a normal child at the time of the accident.
[4]
At the commencement of the trial, the
parties informed the Court that they had agreed that:
1.
The defendant would be liable for 100% of
the proven damages suffered by the minor child.
2.
The defendant shall furnish the plaintiff
with the statutory undertaking in terms of the provisions of section
17 (4) of the Road
Accident Fund Act number 56 of 1996.
3.
An allowance in the amount of R658 693.76
be made in respect of Past Hospital and Medical Expenses. The
respondent was to verify
that amount.
4.
In relation to the nature, extent and the
severity of the injuries sustained by the minor child, the court may
have regard to:
i.
the joint minutes filed by the experts of
the parties.
ii.
opinions expressed by the uncontested
experts employed by the plaintiff.
5.
The actuarial calculation was done having
regard to the joint minutes of the educational psychologist and the
opinion of the plaintiff’s
industrial psychologist.
6.
The court may request the actuary to do
further calculation should it be necessary.
Common
cause facts
[5]
It is common cause that at the time of the
accident the minor who was six years old, was a Grade 1 learner in
the mainstream school
in Houghton. He sustained severe bodily
injuries consisting of head injuries with a fracture to the base of
the skull with subluxation
of the TM join, resulting in a significant
brain injuries, a fracture of the right clavicle bilateral fractures
of the right and
left femur.
[6]
The joint minutes of the orthopaedic and
the neurosurgeons reveal that consequent to the injuries suffered,
the minor child lost
consciousness, was intubated, ventilated and
remained in coma on medical ventilation in the ICU for about six
weeks and thereafter
was transferred to rehabilitation. His GCS
deteriorated to 7/15 because of the injuries he sustained.
[7]
The orthopaedic surgeons employed by the
parties reveal that the minor child is also suffering from on-going
headaches, shortness
of breath, fatigue and has limited physical
endurance as a direct consequences of the accident. This is likely to
create difficulties
for him as in future, the workload and tempo
increases with his age
[8]
The neuropsychologists are in agreement
that the minor child suffered a severe head injury which has further
complicated the focal
injury to the brain. They also agree that the
injury occurred at the critical point of his development which also
explains the
drastic deterioration in his performance at school. They
further note that due to the brain injuries, the minor child is
unlikely
to perform according his premorbid potential and will
encounter scholastic difficulties and setbacks. This will have a
negative
impact on his sporting and occupational activities.
The
issues in dispute
[9]
The real issue in this matter concerns the
loss of earnings or future earning capacity of the minor child. The
evidence presented
by the parties was limited to this issue. The
plaintiff in this respect presented the testimony of two expert
witnesses, namely,
Ms Prinsloo, the educational psychologist and Mr
Linde, the industrial psychologist.
[10]
The qualification and experience of Ms
Prinsloo was not disputed. In her testimony, she explained in details
her report and the
test she conducted on the minor child and the
reasons for arriving at the opinion as she did.
[11]
In relation to the potential development of
the minor child, Ms Prinsloo testified that had the accident not
occurred, the minor
child had the potential of completing Grade 12
(NQF4), and proceeding thereafter to a diploma qualification (NQF6).
It was further
her opinion that due to the accident, in all
probability the minor will be able to progress to Grade 9 (NQF1) at
the Sparrow School,
where he currently together with his twin brother
are attending.
[12]
In relation to the environment of the
minor, Ms Prinsloo testified that the parents are middle class and
the children have access
to various amenities. The parents have both
Grade 11 and are doing well. The mother is currently studying a
business course. The
elder brother of the minor child failed maths at
Grade 8 but generally did well in the other subjects, obtaining 82%
in one of
the subjects.
[13]
The twin brother who after birth remained
longer in the incubator has learning difficulty. Before and after the
accident, the minor
child performed better than his twin brother.
However, since the accident there has been signs of change in his
performances. It
is noted in the report that since the accident, his
visual memory is low. The drinking problem of the father and the drug
abuse
by the elder brother was also noted by the report.
[14]
The key aspect of the testimony of Ms
Prinsloo which was not seriously challenged during cross examination
is that: Although born
prematurely at 35 weeks, the minor was a
normal, healthy child with an average ability. The premature birth at
35 weeks is not
sufficient reason that he would have had learning
difficulties. A different consideration would apply had he been born
at 28 weeks
or earlier. There were no factors pointing towards
learning disability or attention deficit disorder that he suffered
prior to
the accident. The brain injury suffered is organic and
permanent in nature and that no amount of treatment will cure or
improve
the neuropsychological, neurocognitive and neuro-behavioural
deficit that he is suffering from. The fact that he was made to
repeat
Grade 1 cannot be regarded as a negative in his development.
This was because of his move from an IsiZulu to English teaching
school.
[15]
The second witness for the plaintiff was Mr
Linde, the industrial psychologist whose qualification and experience
was not in dispute.
He testified that in formulating his opinion, he
had regard to the medical opinions and joint expert’s minutes
which were
made available to him.
[16]
Mr Linde testified that it is probable that
the minor has suffered a severe future loss of earnings and earning
potential as a result
of the accident. As concerning prospects in
education, he finds that but for the accident, the minor would have
completed Grade
12 in the mainstream school, and would have furthered
his studies with a three year diploma qualification. This would, in
all probability,
have earned him a Patterson A1 level in the labour
market. He would then have entered the labour market at Patterson B4
level and
progressing further to Patterson C3/C4 levels.
[17]
He testified further that the consequences
of the accident is that due to the injuries sustained, the minor will
probably not attain
his premorbid level functioning and is unlikely
to succeed beyond grade 9 (NQF1).
[18]
The correctness of the conclusion of Mr
Linde was neither challenged nor were alternative scenarios presented
to him during cross
examination to offer him the opportunities to
express an opinion in that regard.
[19]
The defendant called one witness, Ms
Sepenyane, the educational psychologist whose qualification and
experience was not disputed.
She testified that she conducted the
test in IsiZulu and that that approach limit the margins of error
that may arise because of
what may be lost in translation.
[20] In her
testimony, Mrs. Sepenyane, did not dispute the opinion of Ms Prinsloo
regarding the schooling career that the minor
child could, prior to
the accident, have followed; namely, proceeding with his studies up
to Grade 12. She, however, disagreed
that the physical attributes of
the twins, namely, that they were not identical twins was not
critical in the assessment of their
individual future development.
What is important in the assessment in cases of this nature is,
according to her, a holistic approach
which includes the assessment
of the environment in which the child finds himself or herself in. In
this regard, the family environment
plays a critical role. In
applying this approach, she took into account the following in
assessing the minor child:
·
both parents did not complete their matric,
·
the problem of alcohol use by the father,
·
the minor child had to repeat Grade 1,
·
the elder brother was not doing well at school,
·
emotional challenges arising from his mother’s
health relating to cancer. This is informed by the fact that the
children have
been browsing the internet regarding cancer.
[21]
During cross-examination, she conceded that children often
outperform their parents. She also conceded that with appropriate
remedial
measures in place the minor could probably achieve NQF4.
Evaluation
[22]
The case of the plaintiff which was not
seriously challenged during cross-examination is that except, as
stated earlier, for the
fact that the minor child was born
prematurely at 35 weeks, he was a normal child with least average
ability. There is no evidence
that shows that the fact that he was
born prematurely may have made him to suffer any learning
disabilities. In this respect, I
am persuaded by the submission made
by Ms Prinsloo that the risk for premature children occurs when they
are born at 28 weeks or
earlier.
[23]
There is also no evidence that prior to the
accident, the minor child had any problem in his development. He was
always doing better
than his twin brother who is not identical to
him. He also outperformed the twin brother even after the accident.
[24]
It has not been disputed that the brain
injury he suffered was consequent to the accident is organic and
permanent in nature. His
neuropsychological, neurocognitive and
neurobehavioral arising from the accident is incurable.
[25]
In relation to the schooling, it is clear
that the curriculum at the school where he is presently attending is
lower than that of
the mainstream. He will in terms of the present
circumstances attend the school with only Grade 9 (NQF1)
qualification and in all
probability remain unemployed with medial
earnings from part-time employment.
[26]
The industrial psychologist, Mr Linde after
considering all the other experts reports concludes that the minor
has suffered future
loss of earning potential as a result of the
accident. The scenario that he sets out for the minor before the
accident is that
he could have earned a Paterson A 1 level and would
thereafter entered the labour market within Paterson B level and
progressing
further to reach his career ceiling at the age 40-45
years and reaching retirement at the age of 65.
[27]
The scenario outlined following the
accident is that the minor child will not reach his premorbid level
of functioning and is unlikely
to succeed beyond Grade 9 (NQF1). In
general individuals who leave school at this level tend to rely on
their physical abilities
to secure and maintain employment. In the
case of the minor, the evidence indicate that he will only be able to
function in work
of light physical demand. In this respect, he will
have to compete with better qualified and abled bodied persons for
this type
of work. The accident and the injuries that he suffered
consequent thereto has rendered the minor unemployable in the formal
labour
market. The best scenario for him is to generate income
through the informal sector.
[28]
The opinion of Mr Linde was similarly not
challenged. The proposition that he made regarding the scenario of
the minor child following
the accident was not countered with any
alternative career by the respondent. His evidence was clear and
persuasive and thus should
be accepted as the most reliable and
plausible.
[29]
Turning to the evidence of Ms Sepenyane, I
am of the respectful view that, for the brief reasons that follows,
it deserve to be
rejected. The factors that she took into account in
contending that the minor child could, post the accident, obtain
Grade 12 are
not backed by facts. She, during cross examination,
conceded that the minor will probably, as expressed in the opinion of
Ms Prinsloo
obtain a Grade 9 at Sparrow school. It appeared, during
her cross examination, that she had limited experience with brain
injuries
and its consequences on children who has been affected as a
result. She further could not provide any factual basis for the
factors
that she relied on for the purpose of her opinion.
[30]
I find Ms Sepenyane to have been an
unsatisfactory witness and in most instances in this respect avoided
simple questions during
her cross examination.
Conclusion
[31]
It is trite that in considering what
damages to award in a damages’ claim, the court exercises
discretion.
[1]
In doing so, the court has to ensure that the award for damages made
is fair and just. The court is in this respect generally guided
by
decided cases. The decided cases are also relevant to the contingency
deductions to be applied on the actuarial calculated loss
of
earnings.
[2]
[32]
In
Kgomo v
Road Accident Fund
,
[3]
a fourteen year old child was knocked down by a car whilst jogging.
His progress at school was average and he had learning disability.
It
was found that prior to the accident, he had the potential of
obtaining N2 or N3 qualifications. It was agreed that, post the
accident, he would obtain Grade 9 level of education. The court in
that matter awarded damages in the amount of R800 000,00 as
fair and
just compensation and this, it did after taking into account the
previous decisions of the court.
[33]
Having regard to the injuries suffered by
the minor child, I am of the view that a just and fair compensation
for general damages
is R1.1 million.
[34]
As concerning loss of earnings or earning
capacity the actuarial calculation of the current day value of the
minor child’s
lifetime earnings, but for the accident, based on
the assumption that he would have obtained a diploma (NQF6)
qualification is
R5 284 398.00. Applying the 20% contingency
deduction the amount is reduced to R4 60612.00. I agree with the
plaintiff that the
20% contingency deduction is fair, reasonable and
similar to that applied in the
Kgomo
matter.
[35]
In relation to the post-accident income or
earnings based on the assumption that the minor child will be
employed until the age
of 65 years, the probable amount of R767
686.00 is applicable. Applying the 20% higher contingency deduction
post-accident result
in the net loss of R3 766 906.00.
[36]
In the circumstances I find that the
balance of probabilities favours awarding compensation for loss of
earnings or earning capacity
in the amount of R3 766 906.00.
[37]
In conclusion I am persuaded that the
plaintiff has on the balance of probabilities successfully
shown that the amount payable
to the minor child as damages arising
from negligent driving of the insured driver is R5 525 599.00,
calculated as follows:
a.
Past Medical and Hospital Expenses: R 658
693.76
b.
Loss of Earning Capacity: R 3 766 906
c.
General Damages R 1 100 000.00
Total:
R 5 525 599.76
Order
[38]
In the circumstances, the following order
is made:
1.
The
Defendant shall make payment to the Plaintiff of the amount of R 5
525 599.76 (“the capital amount”) into a trust
account of
the Plaintiff’s Attorneys, Joubert Botha Incorporated, for the
sole benefit of the minor child whose identity
number is: 0, pending
the formation of a trust to be formed as contemplated in paragraph 5
hereunder:
1.1
Details
of the trust account aforementioned are as follows;
1.1.1
Account Name: Joubert Botha Incorporated
1.1.2
Bank: Standard Bank
1.1.3
Branch Code: 0
1.1.4
Account Number: 2
2.
Payment
of the aforesaid amount shall be paid within fourteen days of date of
this order failing which interest a
tempore
morae
is payable on the capital amount at the prescribed rate per annum
from the said date to date of payment.
3.
The
Defendant shall forthwith furnish the minor child Bandile Jabu
Mahlangu (born 16 February 206), with an undertaking to compensate
him, in terms of
Section 17(4)(a)
of the
Road Accident Fund Act No.
56 of 1996
, for the payment of 100% (One Hundred per centum) of the
costs of future accommodation of the minor child in a hospital
or
nursing home, or for the treatment of, or rendering of service, or
for the supplying of goods to the minor child, including the
costs
attended ing to the creation of trust to be formed and appointment of
the Trustee(s) thereof, and the services rendered by
such Trustee
(including the costs incurred in providing security to the
satisfaction of the Master of the High Court), after such
costs have
been incurred and upon proof thereof. The undertaking shall further
include the costs of the Trustee(s) in respect of
future
administration of the Trust which costs recoverable from the
Defendant shall be limited to such costs chargeable by a
curator
bonis
as contemplated in the
Administration of Estates Act, No 66 of 1965
as amended as well as the costs of the Trustee(s) in respect of
future administration of the said undertaking.
4.
The
Defendant shall make payment of the Plaintiff’s costs, as
agreed or taxed, which costs shall include;
4.1
The
reservation/qualifying/preparation/join minutes (if applicable) fees
of the following expects:
4.1.1
Dr
H E T Van Den Bout (Orthopaedic Surgeon);
4.1.2
Dr
T Bingle (Neurosurgeon);
4.1.3
Mrs
A Cramer (Clinical/Neuropsychologist);
4.1.4
Dr
M Close (Psychiatrist)
4.1.5
Mrs
E Prinsloo (Educational Psychologist);
4.1.6
Mrs
I M Hattingh (Speech/Language Pathologist & Audiologist);
4.1.7
Mr
L Linde (Industrial Psychologist);
4.1.8
Mrs
K Du Toit (Occupational Therapist);
4.1.9
Mr
G A Whittaker (Actuary);
4.1.10
Dr
D Irsigler-RAF4
4.2
The
cost of Counsel on a scale of senior junior counsel including his day
fee of 28 January 2016, 29 January 2016 and 29 March 2016;
4.3
The
costs incurred by the Plaintiff in respect of the attendance of all
medico legal examinations (to include accommodation and
travel
expenses if applicable);
4.4
Any
costs attendant upon obtaining payment of the capital amount referred
to above;
4.5
Any
costs attendant upon obtaining payment in terms of the undertaking
referred to in paragraph 3 above;
5.
The
attorneys of the Plaintiff, Joubert Botha Incorporated of Block 3,
Suite 13, Bergzicht Office Park, Rooibok Avenue, Allens Nek,
Roodepoort, are ordered:
5.1
To
cause a trust (“the Trust”) to be established in
accordance with the Trust Property Control Act No. 57 of 1998;
5.2
To
pay all monies held in trust by them for the benefit of the Minor, to
the Trust, after deduction of their fees and disbursements,
in
accordance with their mandate and free agreement.
6.
The
Trust instrument contemplated in paragraph 5 above shall make
provision for the following;
6.1
That
the Minor is to be the sole beneficiary of the Trust;
6.2
That
the trustee(s) is/are to provide security to the satisfaction of the
Master;
6.3
That
the ownership of the trust property vest in the trustee(s) of the
rest in their capacity as Trustees;
6.4
That
the powers of the trustee(s) shall specifically include the power to
make payment from the capital and income for the reasonable
maintenance of the Minor, or for any other purpose which the
trustee(s) mat decide to be the Minor’s interest, and if the
income is not sufficient for the aforesaid purpose, that the
trustee(s) may utilise capital;
6.5
Procedures
to resolve any potential disputes, subject to the review of any
decision made in accordance therewith by this Honourable
Court;
6.6
That
the trustee(s) be authorised 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 the
certificate of undertaking t be provided by the Defendant
in
accordance with paragraph 3 above;
6.7
The
exclusion of any community of property in the event of the Minor’s
marriage;
6.8
The
suspension of the Minor’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;
6.9
That
the amendment of the trust instrument be subject to the leave of this
Honourable Court;
6.10
The
termination of the Trust upon the death of the Minor, in which event
the trust asses shall pass to the estate of the Minor;
6.11
That
the trust property and the administration thereof be subject to an
annual audit.
Molahlehi, AJ
Acting
Judge of the South Gauteng High Court
Appearances
For
the Plaintiff: Advocate J C Pieterse
Instructed
by Joubert Botha Inc
For
the Respondent: Advocate Louw
Instructed
by Duduzile Hlebela Inc
[1]
See
Radebe obo TD v Road Accident Fund
[2013] ZAGPPHC 84 (18
March 2013) at para 12.
[2]
Protea
Insurance
Company Ltd v Lamb
1971 (1) SA 530 (A).
[3]
(25846/10)
[2011] ZAGP 103 (2 September 2011).