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[2018] ZAGPJHC 63
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N C OBO N Z v Road Accident Fund (26302/15) [2018] ZAGPJHC 63 (4 April 2018)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 26302/15
In
the matter between:
N
C
Plaintiff
o.b.o.
N Z
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
WILLIS
A.J.:
Introduction
1.
This is an action for damages
brought by Ms C N (“the plaintiff”).  The plaintiff
sues in her capacity as mother
and guardian of her daughter Z N born
on 12 June 2005 (“the minor child”).
2.
Between 06:30 and 07:00 on 22
November 2013 the minor child, eight years old at the time, was a
passenger in a minibus taxi being
driven to school when a collision
occurred with another vehicle on Chris Hani Road, Dlamini, Soweto.
3.
The plaintiff claims against
the defendant in terms of the
Road Accident Fund Act 56 of 1996
as
amended (“the RAF act”).
4.
The merits and degree of
liability of the defendant was settled 100% in favour of the
plaintiff inasmuch as the minor child was
a passenger in the motor
vehicle accident.
5.
Counsel for the parties
confirmed that the defendant had provided the plaintiff with a
section 17(4)(a)
undertaking covering 100% of her future medical
expenses.  There were no past medical expenses or losses.
6.
The issue and quantum of
general damages did not fall to be decided by me as it had been
referred to the Health Professions Council
of South Africa (“the
HPCSA”) for determination and was accordingly postponed
sine
die
.
7.
The plaintiff pleaded that as
a result of the collision, the minor child sustained a laceration of
her tongue and a serious head
injury with neurological, neurophysical
and neuropsychological fallout.
8.
The tongue laceration
suffered by the minor children has on all accounts healed and the
sequelae resulting therefrom will be considered
under the head of
“General damages” by the HPCSA.
9.
What is left for my
determination in this case is the quantum of damages under the head
for future of losses (of: earnings, earning
capacity and
employability) which the plaintiff claims on the minor child’s
behalf in the amount of R7.5 million.
Preliminary
Issue
10.
At the commencement of the
trial action the defendant made application that the issue of future
of losses be postponed and dealt
with by the HPCSA in the same manner
and at the same time as the referral of general damages pursuant to
section 17(4) of the RAF
Act and its Regulations.  The timing of
the application was ascribed to the joint minute only being received
from the experts
on or about the preceding Wednesday 4 October 2017.
Pursuant to argument I gave an
extempore
ruling that the application be dismissed with costs, for the
following reasons.
11.
The grounds for the
application were three fold.  Relying essentially on the grounds
in the rejection letter and the joint
minute of the expert reporting
neurosurgeons, and while it was common cause between the
neurosurgeons that the minor child sustained
a brain injury, mild in
nature (described in different terms by each report), the first basis
was that there is what counsel called
a “fallout between the
neurosurgeons” i.e.  a difference of opinion with regard
to the
sequeli
of the injury.  It was argued that this difference of opinion
impacted the reports of the numerous other experts who reported
on
the
sequeli
from the perspective of their fields of expertise, such as the
educational, industrial and clinical psychologists, who were
allegedly
compromised by the difference of opinion.
12.
Accordingly, so it was
argued, this difference of opinion was best considered and resolved
with the assistance of a third investigation
and report.  It was
argued was that such third investigation and report ought or might as
well be by the panel of doctors
appointed by the HPCSA to deal with
the seriousness of the injury when considering the seriousness of the
injury.
13.
The second basis is better
described as the motivation for the application.  It was argued
that the approach contended for
by the defendant was in the best
interests of the minor child in light of the prejudice she may suffer
if the difference of opinion
between the two Neurosurgeons was not
properly and further investigated.  Counsel specifically alluded
to the court’s
duty as upper guardian of the minor child to
protect her interests.
14.
The third basis was that
there could be no prejudice to the plaintiff if the matter were
postponed.
15.
Counsel for the plaintiff
opposed the application disavowing all grounds and arguments. Four
primary arguments were advanced.
16.
Firstly that it was the role
of the court to consider the expert oral evidence to be tendered and
whether or not objective and persuasive.
Put differently that it is
not the role and function of the HPCSA to inquire into the evidence
in relation to future loss of income,
and for me to refer or defer
this matter as contended for by the defendant would amount to the
HPCSA usurping the function of the
court.
17.
Secondly the seriousness of
an injury is not a pre-requisite for the determination of future loss
of income.
18.
Thirdly the difference of
opinion expressed in the joint minute was identifiable as far back as
9 March 2016 when the report of
the defendant’s expert became
available.
19.
Fourthly there was no
prejudice to the plaintiff in the matter proceeding but definite
prejudice to the plaintiff if the matter
was dealt with as the
defendant contended for.
20.
Regarding prejudice to the
minor child.  In my view, it is not for the defendant to dictate
what the best interests of the
plaintiff are.  In this case the
minor child was represented by her mother, attorneys and experienced
counsel.  I neither
identified nor could I conceive of any sort
of prejudice to the minor child that ought in a proper exercise of my
discretion, to
invoke my duties as the minor child’s upper
guardian, and order a postponement.  The minor child was 12
years of age,
had been assessed by approximately 19 experts in the
approximate four years since the motor vehicle accident and injury
and there
was no good reason to postpone the assessment of whether or
not the minor child would suffer a future loss of income.
21.
Properly construed the
argument advanced by the defendant was more why the plaintiff needed
or ought to have the benefit of a postponement,
or put differently
that the court ought to order a postponement in the best interests of
the plaintiff.   I could discern
no basis for why the
defendant in fact needed and would otherwise be prejudiced in the
absence of a postponement.
22.
It is disconcerting that the
defendant raised these grounds underpinning its application at the
11
th
hour.  Apart from the fact that the defendant’s expert
reports had been available since approximately 9 March 2016,
this
approach could have been adopted at trial certification stage.
23.
I did not understand counsel
for the defendant to be advancing the proposition that as a rule
damages for loss of future earnings
had to be deferred until the
determination of the HPCSA had been received.  The defendant’s
contention as I understood
it was that in the circumstances arising
namely the nature of the expert opinions and the joint minute, the
postponement sought
was justified.
24.
In my view section 17 (1)(b)
read together with (1A) of the RAF Act clearly deals only with
non-pecuniary loss.  There is no
basis to read pecuniary loss in
the form of future loss of income into the wording.  I was not
persuaded that there was any
basis in the Act for the postponement
sought.
25.
As to the difference of
opinion between the neurosurgeons as expressed in their reports and
joint minute, this is nothing new or
extraordinary.   On
the contrary a difference of opinion is often the case if not
expected.  I asked counsel for
the defendant for reasons why the
opinions of the other experts were compromised by the difference in
opinion between the neurosurgeons.
Counsel’s point made
was that these other experts defer to the opinion of the other
experts.  Indeed that may
be so, but those experts are expected
to report on their own investigations and opinions of what they find
in their fields, which
will either support or not support one or more
of the neurosurgeon reports.
26.
I considered two judgements
in this division on substantially the same issue albeit that the
issue arose on a different basis.
I was in full agreement with
these decisions in which I found support for my views.  The
first is by Victor J in JD Botha
v The Road Accident Fund
2015 (2) SA
106(GP)
and the second is by Sutherland J in Yvonne De Bruyn v Road
Accident Fund case number 29608/2014 RTS/B30/B39.
27.
In the result the application
for a postponement of the issue pending the HPCSA’s findings on
the seriousness of the injury
in the context of general damages was
dismissed with costs and the trial continued on the issue of future
of loss.
The
Evidence
28.
The plaintiff called three
experts namely Dr. M. Lewer-Allen, a Neuro-Surgeon; Ms R. Hovsha, a
Neuro Psychologist; and Mrs M. Scott,
an Educational Psychologist.
29.
The defendant called Dr J.
Earle, a Neuro-Surgeon; Ms L Swart, an Educational Psychologist; and
Mr L Roper, a Clinical Psychologist.
30.
All experts gave evidence in
line with their reports and joint minutes.
31.
The narrative in the reports
of some of the expert witnesses called, which was not in dispute
between the parties, was that the
plaintiff mother was called to the
scene of the collision. From there she travelled with the minor child
per ambulance to Chris
Hani Baragwaneth Hospital and the minor child
was admitted sometime around 11:00.  The minor child’s
father also attended
at the hospital in the course of the morning.
The tongue laceration required suturing under anaesthetic for which
the minor
child was eventually taken to theatre at around 22:00 that
night.
32.
In a pre-operative assessment
signed off by the anaesthesiologist it was recorded
inter
alia
that the minor child
had sustained an isolated tongue laceration, head injury and
experienced neck pain.  Of particular interest
was that a glasco
coma scale (“GCS”) reading of 12/15 was measured and
recorded.  It appeared that the minor child
had been
hospitalised for some ten hours prior to the measurement of this
GCS.  Drooling and the swollen tongue were also
recorded. There
was no recordal or evidence of any other GCS measurement.
33.
It is well known that the GCS
severity categorization scale of severity of brain injury rates
severe to lie between 3/8; moderate
between 9/12; and mild between
13/15.
34.
There was no evidence in the
hospital records or narratives recorded by the experts that the minor
child lost consciousness at any
stage.  At best there was
hearsay evidence of the father reporting to Mr L Roper, the
defendant’s Clinical Psychologist,
that the minor child seemed
confused at a stage in the day. There was also no evidence whatsoever
of post-traumatic amnesia (“PTA”).
35.
The plaintiff’s case as
introduced by Dr Lewer-Allen was that the GCS, while a monitoring
indicator and useful to neurosurgeons
and traumatologists to assess
potential severity of brain damage due to a head injury, was merely
an indicator of potential severity
and did not rule out long term
sequelae
after even a mild head injury.  He indicated that while in
general terms GCS scores may be correct in approximately two thirds

(depending on the sample substrate) of mild trauma brain injury
(“MTBI”) cases, there remained one third of MTBI’s

who suffer long term
sequelae
.
Dr Lewer-Allan adopts the view that GCS does not recognise the
diffuse axonal shear type of brain injury where there is
a delayed
loss of cerebral function as the trauma-induced chemical cascade of
axonal degradation and destruction develops in the
hours after the
patient has left casualty.
36.
Dr Lewer-Allan holds that the
true severity of the brain injury is to be measured against the
severity of the neurocognitive and
neuropsychological deficiencies
ultimately proven to exist after maximum medical improvement (“MMI”),
rather than exclusively
according to the criteria as assessed in
casualty by GCS measurement.  Dr Lewer-Allan divides the issue
of severity of a brain
injury into two concepts namely injury
diagnosis (the severity of the injury at hospital level –
accident/casualty diagnosis)
on the one hand, and the outcome
diagnosis (the severity of the outcome after MMI) on the other.
Thus according to Dr Lewer-Allen
the key to understanding whether or
not a given patient has sustained a brain injury depends heavily on
demonstration by psychometric
testing by the Neuro Psychologists, for
the presence or otherwise of neurocognitive and neuropsychological
shortcoming.  Where
such testing confirms deficit and
malfunctioning, if that deficit is shown not to have been present
prior to the accident, and
not to have been caused by any
non-accident related factor, then the damage could be attributable to
the accident.  This was
whether or not one could prove the
natural nature or mechanism of the injuries, and whether or not the
patient complied with the
stereotyped expectation that such patient
must have had a significantly long PTA or reduced GCS before such can
be considered a
candidate for brain damages.  Accordingly the
severity of the demonstrated changes to the patient would describe
the severity
of the outcome diagnosis.
37.
Dr Lewer-Allen explained this
continuous progression of fallout sustained in a brain injury leading
to long-term neuropsychological
difficulties as the “sleeper
effect”.  It was ultimately the defendant’s case
that the only way to deal
with this unknown, taking into
consideration the requirements of the once and for all rule, was to
apply positive contingency deductions
that would not negate these
possibilities and not deny the minor child just compensation.
38.
Ultimately Dr Lewer-Allen’s
conclusions were based on the report of Dr Hovsha the
neuropsychologist who relied on the plaintiff’s
mother’s
reporting (who did not give evidence in the trial) and analysis by
means of psychometric testing.
39.
In so doing Dr Lewer-Allen
concluded that the minor child is shown to be suffering from mild to
moderate neuro cognitive deficits
as well as neuro psychological
deficits in keeping with her being included in the group of MTBI’s
with sequelae.  He
also referred to the educational
psychologist’s reporting and industrial psychologist’s
reporting for an assessment
of the impact of the head injury on the
minor child’s educability and ultimate earning capacity.
In the joint minutes
Dr Lewer-Allen stated that he expected the
aforementioned psychologists to bear in mind possible compromise of
her scholastic abilities
by virtue of the “
sleeper
effect”
.
40.
In the result the evidence of
Dr Lewer-Allen was clearly to lay the foundation and understanding
for why and the degree to which
the plaintiff’s case ultimately
fell to be assessed on the evidence of Ms. Hovsha and to a lesser
degree that of Ms Scott,
the educational psychologist.
41.
Dr Earle on the other hand
testified that the approach of Dr Lewer-Allen and others who
subscribed to this approach, was novel but
not mainstream medical
science.  He testified that brain injuries were diagnosed on
three primary characteristics namely:
loss of consciousness (“LOC”),
PTA and the GCS measurement.
42.
Dr Earle testified that the
probabilities were that the minor child’s GCS was taken when
she was already prepared for theatre
by which stage a sedative had
already been administered and on this basis he concluded the reading
to be inaccurate of her actual
level of consciousness i.e. she had
been more conscious before that.  In other words her true GCS
reading was above 12.
Dr Earle doubted the minor child suffered
a brain injury at all but if anything, it was mild and there was no
basis on which to
expect intellectual or cognitive impairment or
anything that would affect her schoolwork or sustain a claim for loss
of earning
potential.  Dr Earle confirmed his report that
“
Should any further
tests be done and these do show some impairment of intellect it is
absolutely not possible to relate it to this
accident.”
(sic)
43.
Dr Earle takes the position
that applying the results of psychological tests randomly after the
head injury, can in no way supersede
the diagnosis of severity of
brain injury according to primary characteristics as laid down by the
World Health Organization Task
Force on brain injuries.  He said
this is so because no similar prior tests were done on the individual
and secondly similar
tests applied to non-injured piers all show
similar results not distinguishable from those with mild head
injuries.  He opined
that accepting these sorts of statistical
comparisons as modifying severity means relinquishing the scientific
basis of brain injury
totally and leaving the final diagnosis to a
psychologist.
44.
Dr Earle confirmed what he
sets out in the joint minute with Dr Lewer-Allen namely that he
regards the sleeper effect to be a myth
dreamt up by psychologists
which has absolutely no neuropathological basis for its existence.
45.
There was some reference and
discussion around a report by Dr Peché on an EEG test.
Indeed Dr Earle signed this report
by Dr Peché but the report
gives no neuropsychological assessment and in my view took the issues
nowhere.
46.
There was also some debate in
cross-examination of Dr Earle relating to certain collateral
information obtained by Mr Roper (the
defendant’s
neuropsychologist) from the minor child’s father who noted that
he saw his daughter a few hours after the
accident and she seemed
confused and in shock.  In counsel for the plaintiff’s
heads of argument she sought to criticize
Dr Earle and the
reliability of his evidence.  The argument in the heads of
argument did not weigh against my assessment of
Dr Earle as an expert
witness.  Dr Earle indeed testified as an experienced expert
witness but that in my view did not weigh
against him.  On the
contrary he was a calm and collected witness unhinged by fairly
assertive and competent cross-examination.
Dr Earle’s
evidence was quietly assertive, informed and in my view did not fall
to be criticized.  At this juncture
I may also point out that Dr
Lewer-Allen was also competently cross-examined on the issues and
like Dr Earle testified earnestly
and in accordance with his report
and the neuro surgeons’ joint minute.
47.
During the course of the
trial counsel for the parties reached agreement on narrowing the
issues and resolved the dispute in relation
to possible postulations
in respect of the minor child’s future loss of earning
capacity.  The agreed postulation was
to the effect that the
plaintiff would have progressed at the same rate as she would have
progressed had the accident not occurred,
but with a one year delay.
Counsel agreed on a pre-morbid 20% contingency but did not agree on a
post-morbid contingency
above 25%.  Accordingly it fell to me to
consider whether a post morbid contingency higher than 25% falls to
be applied.
48.
As reported in the various
experts’ pre-trial minutes, limited premorbid information on
the minor child was presented at the
hearing.  Non contentious
collateral information from the plaintiff to the experts was as
follows.  Her pregnancy with
the minor child was normal and
without complications.  The minor child was born via natural
vaginal delivery and was healthy
at birth.  All developmental
milestones were within normal limits.  The minor child was in
Grade 3 when the accident
occurred and had passed every grade up to
that point.
49.
Ms Hovsha was of the opinion
that the minor child was of at least average cognitive functioning
pre-morbidly while Mr Roper noted
that given her age at the time of
the accident it was difficult to make any comment on her pre-morbid
level of cognitive functioning,
particularly given that there were no
school reports available to compare her pre and post-accident
academic performance.
He concluded that the available
information did not evidence any obvious pre-morbid cognitive
difficulties.
50.
As recorded in their joint
minute both neuropsychologists deferred to the opinion of the neuro
surgeons with regard to the presence,
nature and severity of any
traumatic brain injury sustained by the minor child.
51.
Based on Ms Hovsha’s
interview with the minor child and the plaintiff, she reported
post-accident complaints of headaches,
neck pain, difficulty with
mathematics at school, impaired memory and concentration, a change in
personality, anhedonia and travel
related anxiety.  As a result
of her investigative assessment, Ms Hovsha opined mild to moderate
cognitive deficits in the
areas of orientation, attention and
concentration, processing/motor speed, visuopraxis, memory and
executive functioning.
In her opinion these deficits are in
keeping with those found in individuals who have suffered a traumatic
brain injury.
52.
Based on his interview with
the minor child, plaintiff and the father, Mr Roper noted the reports
that the minor child is short
tempered and moody and physically
aggressive, suffers from headaches, irritability and impaired memory
and that her teachers reported
that her concentration was poor.
In his assessment Mr Roper found symptoms of increased anxiety
related to walking near vehicles
and concluded that the minor child
has been suffering from mild symptoms of post-traumatic stress
disorder.  Mr Roper found
poor working memory and double
tracking abilities, difficulty distinguishing between different sets
of rote verbal information,
poor forward planning and problem solving
abilities as well as two-dimensional non-verbal reasoning abilities.
Mr Roper was
of the opinion that her mild symptoms of posttraumatic
stress disorder could have impacted negatively on her overall
cognitive
test results.  He was further of the opinion that her
increased anxiety related to her post-traumatic stress disorder and
her ongoing headaches may have contributed to some attention and
concentration difficulties.  Difficulties with attention and

concentration could in turn be expected to have contributed to her
reported forgetfulness in her day to day functioning.
Mr Roper
concluded that the minor child suffered a mild to moderate head
injury due to the accident however given the relative
lack of
severity of her symptoms, any impact in this regard would be
considered fairly insignificant.  He conceded that while
it was
possible for a head injury of this severity to bring about subtle,
but ongoing neuropsychological difficulties, no enduring
cognitive
difficulties were usually expected.  Mr Roper opined nonetheless
that the minor child may be vulnerable to experiencing
some future
academic difficulties as her work becomes more complex.  It
falls to be noted that both experts noted that the
minor child’s
mother did not report that she was experiencing difficulties at
school at present, with the exception of mathematics.
Both
experts deferred to the opinions of the educational psychologists.
Ms Hovsha reported that the plaintiff reported that
while having
difficulty with mathematics at school her marks had not
deteriorated.  Furthermore they both also agreed that
the minor
child would benefit from psychotherapy for her emotional and
behavioural difficulties.
53.
It was argued for the
plaintiff that Ms Hovsha’s findings determined a nexus between
the accident and the minor’s psychological
profile.
However Ms Hovsha said the following:
“
The cognitive deficits
found on the neuropsychological assessment are in keeping with those
found in individuals who have suffered
a traumatic brain injury.
The deficits are in keeping with a mild to moderate traumatic brain
injury.  The writer defers
to the opinion of a neurosurgeon to
give a final opinion as to the presence, nature and severity of any
traumatic brain injury
sustained by Ms N in the accident.”
Discussion
54.
The educational psychologists
were agreed in evidence that presently there are no real indicators
of scholastic performance pre
and post-accident.
55.
In my view of the
circumstances of this case, it was not for Ms Hovsha to establish
pathologically the existence of a brain injury.
Ms Hovsha
looked to Dr Lewer-Allen for this.  Her evidence and the results
of her testing, do not in my view establish a nexus
between the
accident and brain injury on the one hand and the minor child’s
psychological profile and cognitive functioning
on the other.
56.
In the result the following
was apparent from the evidence of the neurosurgeons.  Dr
Lewer-Allen’s opinion was largely,
if not entirely, dependent
on the evidence of the neuropsychologist Ms Hovsha.  Dr Earle on
the other hand was of the opinion
based on recognised criteria for
the assessment of a brain injury and possible sequelae to conclude no
sequelae pursuant to what
could best be described as a mild brain
injury.
57.
I am not persuaded by the
plaintiff’s case against the defendant’s evidence and
argument that the deficits found by
Ms Hovsha and Mr Roper can be
present in individuals who have not suffered a traumatic brain
injury.
58.
In my view Dr Earle and Mr
Roper’s evidence adequately and persuasively dealt with Ms
Hovsha’s findings.
59.
Taking all the available and
presented evidence into consideration, and on a balance of
probabilities, I do not agree with the submission
on behalf of the
plaintiff that the minor child faces a long and unsure future
regarding her studies and subsequent employment
and as such a much
higher post morbid contingency should be applied to allow for just
compensation keeping in the mind the once
and for all rule.
Conclusion
and Order
60.
I do however consider
that given the young age of the minor child at the time of the
accident (keeping in mind children recover
better from brain injuries
than adults do) as well as her young age at the time of assessments
for the trial, the evidence available
to the plaintiff is limited.
While my finding is that the plaintiff failed to establish the
requisite nexus the agreed postulated
delay of one year to conclude
her studies was in my view in and of itself a concession by both
sides.
61.
Indeed the possibility exists
that even the mildest of brain injuries could found difficulties that
could progress as time goes
on.  In
Road
Accident Fund v. Guedes
2006 (5) SA 583
(SCA) 587 A – B
the Supreme Court of Appeal addressing the assessment of compensation
and a Trial Judge’s discretion stated:
“
The court necessarily
exercises a wide discretion when it assesses the quantum of the
damages due to loss of earning capacity and
has a large discretion to
award what it considers right.  Courts have adopted the approach
that to assist in such a calculation,
an actuarial computation is a
useful basis for establishing the quantum of damages.  Even
then, the trial court has a wide
discretion to award what it believes
is just.”
62.
By agreement between the
parties I was placed in possession of a series of actuarial
calculations by the plaintiff’s actuary
Mr G A Whittaker of
Algorithm Consultants and Actuaries CC.  No part of this report
is in dispute.  Nonetheless it remains
my discretion and
responsibility to decide whether the results of these calculations
and evidence accord with what is a fair and
just award in each
particular case.  See
Carstens
v. Southern Insurance Association Ltd
1985 (3) SA 1010
(C) at 1021
B.
The premorbid
contingency has been agreed at a deduction of 20% the oft resultant
allocation of 20% for a child.  See
Goodall
v. President Insurance Company Limited
1978 (1) SA 389
(W)
and
Road Accident Fund v.
Guedes (
supra
)
at 588 D – C
, also
Nonkwali v Road Accident
Fund (771/2004) [2009] ZAECMHC 5 (21 May 2009)
.
Counsel for the defendant submitted the post morbid deduction ought
to be no more than 25%.
63.
An enquiry into damages for
loss of earning capacity is of its nature speculative.  See
Southern Insurance
Association Ltd v. Bailey
1984 (1) SA 98
(A) at 113 H – 114 E.
64.
Notwithstanding my findings
that the plaintiff failed to persuade me on a balance of
probabilities of a nexus between the brain
injury and the minor
child’s cognitive function, the defendant has conceded some
connection between the brain injury and
the minor child’s
psychological profile and cognitive functioning.  The concession
of a 25% deduction is still a 5%
differential.  Arithmetically,
it makes no difference whether the contingency exercise involves
higher or lower contingencies,
as along as the difference remains the
same.  See
Mashaba v.
Road Accident Fund (15683/04)
[2006] ZAGPHC 20
(2 March 2006)
.
Inasmuch as the defendant concedes fallout to the extent it has and
if I am not to be remiss in my duty and not discount
the evidence on
which the defendant based its concession then in order to ensure
justice and that the minor child is not prejudiced
in all the
circumstances of her case, to conclude a higher contingency.
Especially in light of the evidence of Mr Roper that
notwithstanding
his other findings, the minor child may be vulnerable to experiencing
some future academic difficulties as her
work becomes more complex I
am of the view that a 10% differential may be inadequate.
65.
Accordingly I find for a 15%
differential and that a 30% contingency be applied to the value of
future injured earnings.  The
calculation by the actuary on the
capital value of the loss of income sustained by the minor child as a
result of the motor vehicle
accident on 22 November 2013 is R708
249.00 as at 1 October 2017.
66.
I note that counsel for the
parties handed me a draft order with terms I assume were agreed to,
but omitting aspects I was still
to find on.   In the
result I make the following order:
1.
Judgment is granted in favour
of the plaintiff in the amount of R708 249.00 in respect of future
loss of income.
2.
The issue of general damages
is postponed
sine die.
3.
The amount referred to in
paragraph 1 above shall be paid into the trust account of the
plaintiff’s attorneys of record with
the following details:
Rene Fouche Inc, Standard Bank/Trust Acc. Nr: 032956 630, Branch
code: 004305, Ref: N[…]/RM/N203,
who shall, after deduction of
agreed attorney’s fees, costs and disbursements, retain same in
an interest bearing account
in terms of section 78(2A) of the
Attorneys Act, pending the creation of the trust referred to in
paragraph 4 and 5 infra and the
issuing of letters of authority.
4.
In so far as the defendant
has not already done so the defendant shall furnish to the plaintiff
within 14 days of the granting of
this order, an undertaking in terms
of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for
100% of the costs of the future accommodation of Z N (“the
minor child”) in a hospital or nursing home or the
like for
treatment or rendering of a service to the minor child or supplying
of goods to the minor child arising out of the injuries
sustained by
the minor child in the motor vehicle collision which occurred on 22
November 2013, after such costs have been incurred
and upon proof
thereof, including the costs of the administration  of a trust
referred to hereinafter, which shall include:
a.
the reasonable costs of the
creation of the trust referred to in paragraph 4 above and the
appointment of the trustees;
b.
the reasonable costs of the
furnishing of security by the trustees;
c.
the costs of the trustees in
administering the minor child’s estate.
5.
A trust shall be established
and administered on behalf of the minor child, to administer the net
proceeds received from the defendant
(after deducting attorney and
client fees), which shall be paid over to a special trust to be
created with the following provisions:
a.
the minor child is the sole
beneficiary of the trust;
b.
the trustee(s) to provide
security to the satisfaction of the master;
c.
the trust property vests in
the trustee(s) of the trust in their capacity as trustee(s);
d.
at least two (2) but not more
than three (3) trustees will be appointed of which one will be an
independent professional trustee;
e.
the trust will have the
purpose of administering the funds in a manner which will best take
into account the interests of the minor
child;
f.
trust property will be
excluded from any community of property or accrual in the event of
the marriage of the minor child;
g.
the trustees will have the
right to purchase, sell and mortgage immovable property, invest and
reinvest the trust capital and to
pay out so much of the income
and/or capital as is reasonably required to maintain the minor child
(with due regard being had to
the obligations of any person having a
duty to support the minor child, the requirements of the minor child
and the purpose of
the award of damages);
h.
the powers and authority of
the trustees shall not exceed those usually granted to trustees or
special trusts;
i.
procedures shall be set out
to resolve any potential disputes, subject to the review of any
decision made in accordance therewith
by this court;
j.
the composition of the board
of trustees and the structure of the voting rights of the trustees
should be such that the independent
trustee cannot be overruled or
outvoted in relation to the management of the trust assets by any
trustee who has a personal interest
in the manner in which the trust
is managed;
k.
the amendment of the trust
instrument be subjected to the leave of this court;
l.
the termination of the trust
upon the death of the minor child in which event the trust assets
shall pass to the estate of the minor
child;
m.
the minor child shall after
attaining the age of 21 years be assessed by appropriate experts with
a view to determining whether
the minor child is capable of managing
the fund award and, if so, the trust will be terminated and the
trusts assets shall pass
to the minor child;
n.
the trustees shall as far as
possible recover the costs of the creation and administration for the
trust from the defendant in terms
of
section 17(4)(a)
undertaking;
o.
that the trust property and
the administration thereof be subject to an annual audit.
6.
The defendant shall pay the
plaintiff’s taxed or agreed party and party costs of suit on
the High Court scale, such costs
including but not limited to:
a.
The costs of the expert
reports (including RAF4 forms and addendum reports, if any) of Prof.
L.A. Chiat, Dr A.P.J. Botha, Dr C.
Kahanovitz, Dr L Fine, Ms R.
Hovsha, Dr. Lewer-Allen, Ms M Scott, Dr O Guy, Dr A Peché, Dr
J Goosen, Ms A Reynolds, C &
N Diagnostics, Ms N Kotze and Mr
Lottering;
b.
The qualifying and
reservation fees, if any, of Dr Lewer-Allen, Ms R Hovsha and Ms
Scott;
c.
The preparation, qualifying
and attendance fees of Dr Lewer-Allen, Ms R Hovsha and Ms M Scott;
d.
The qualifying fees of all
experts who attended to the preparation of joint minutes;
e.
The costs of counsel for 9
th
,
10
th
,
11
th
,
12
th
,
13
th
and 27
th
October 2017;
f.
The costs of the actuarial
reports of Mr G Whittaker (Algorithm Consulting Actuaries);
g.
Plaintiff’s reasonable
travelling expenses to and from medico legal appointments;
h.
The costs of the preparation
and perusal of the six bundles;  and
i.
The costs of the assessor’s
reports.
7.
In the event that the costs
are not agreed, the plaintiff’s attorney shall serve a notice
of taxation on the defendant’s
attorneys of record.  The
defendant shall be granted a period of 14 days post taxation to pay
the taxed costs.
_______________________
R
S WILLIS
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 27 October 2017
Judgment
Delivered: 4
th
April 2018
APPEARANCES
On
Behalf of the Plaintiff: M Letzler
Instructed
By:
Rene Fouche Inc
35
Keys Avenue, Rosebank
Tel:
(011) 484-4950
On
Behalf of the Defendant: F Magano
Instructed
By:
Kekana Hlatshayo
Radebe Attorneys
31
Princess of Wales Terrace, Parktown
Tel:
(011) 848-4114