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[2019] ZAGPJHC 95
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L B v Road Accident Fund (36099/2016) [2019] ZAGPJHC 95 (18 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 36099/2016
In
the matter between
:
B,
L Plaintiff
and
Road
Accident
Fund Defendant
J U
D G M E N T
Van
der Linde, J
:
[1]
The plaintiff as mother of her minor son sues the defendant for
damages comprising general damages and future loss of income
arising
from injuries he had sustained in a motor vehicle collision.
The defendant is statutorily liable for those damages,
at least in
principle. As it happens, liability has been conceded by the
defendant and the parties have agreed that the amount
of R700 000.00
is a fair representation of the compensation to which the plaintiff
in her aforesaid capacity would be entitled
in respect of general
damages.
[2]
The only issue that was in dispute was that concerning the future
loss of earnings. In the course of the trial two exhibits
were
handed up and they were received as Exhibits “A” and “B”
respectively. Exhibit “A”
comprised eight expert
reports on behalf of the plaintiff and Exhibit “B” a
number of other documents. Of Exhibit
“B” only item
15, comprising the hospital records at pages 50 to 99 were admitted,
and the rest neither admitted nor
proved. Exhibit “B”
therefore comprises only pages 50 to 99.
[3]
Reverting to Exhibit “A”, the defendant accepted –
towards the end of the trial - the reasoning and opinion
of Dr
Bingle, the Neurosurgeon and also those of Ms C Wolmarans, the Speech
Therapist and Audiologist. So far as concerns
the Actuary, Mr
Whittaker, the defendant accepted the method of calculation and
result, but not the bases used by the Actuary.
In the end, during
closing argument, Ms Pather for the defendant challenged only the
appropriateness of the contingency allowances
which the Actuary made,
but not any of the bases used. In particular, the Actuary applied a
25% contingency in arriving at his
suggested figure for the but for
scenario and 45% contingency deduction in respect of the having
regard to scenario. It was
submitted that these should
respectively have been 27% and 40% so that the differential was 13%
and not 20%.
[4]
The trial therefore involved no witnesses by the defendant, not
factual nor expert. There was no criticism at the end
of the
trial by Ms Pather of the calibre, reasoning and opinion of the
expert witnesses for the plaintiff. The plaintiff’s
witnesses comprised the plaintiff herself; Ms Cramer, a Clinical
Psychologist; Dr Close, a Psychiatrist; Ms De Rooster, an Educational
Psychologist; Ms Burger, an Occupational Therapist; and Mr Jooste, an
Industrial Psychologist.
[5]
From the evidence it appeared that the plaintiff’s minor son
Lian who was born on 20 January 2008 and was in a primary
school
having completed Grade 1, was involved in an accident on 21 December
2015, before he went on to Grade 2. It would
appear that the
driver of the vehicle had lost control and it rolled five or six
times. The boy was not wearing a seatbelt
and was catapulted
through one of the car’s windows. He was hospitalised for
three days. The injuries he sustained
was a head injury with blood on
his brain, including a laceration on the top of his head; a skull
fracture behind his left ear;
left elbow lacerations; a lower back
injury but with no fractures; and possibly a fracture of the left
collarbone.
[6]
The opinion of the Neurosurgeon was that the boy had sustained at
least a mild brain injury with reported loss of recall of
the impact
of the accident. According to Dr Bingle, although ongoing
neurocognitive and psychological
sequelae
are not usually
expected following a mild traumatic brain injury, it appears that the
plaintiff and the minor son reported such
sequelae
and
accordingly the neurosurgeon deferred to an Educational Psychologist,
a Neuropsychologist and a Psychiatric Psychologist.
[7]
However, referring to the CT brain scan Dr Bingle opined “
a
significant cranial impact probably indicative of a more significant
traumatic brain injury than only a mild uncomplicated traumatic
brain
injury (mild to moderate)
”.
[8] It
was a feature of the defence that the cross-examination of the
plaintiff’s expert witnesses sought to establish that
the minor
suffered from a pre-existing condition which either caused the
sequelae
to which the plaintiff’s experts testified, or
at the very least contributed to them. The pre-existing
condition it
was said flowed from two events that caused emotional
trauma in the life of the minor.
[9]
The first event was the separation of his parents when he was one
year old, and the second event occurred a bit later when he
and his
mother came upon the dead body of his mother’s subsequent
partner who had committed suicide.
[10]
The mother was called and testified that in both these instances she,
an overanxious parent, referred the minor to play therapy.
She
testified also that the minor boy did well pursuant to the play
therapy and as far as she was concerned he had fully recovered.
She
also said that after the injuries which he sustained in the motor
vehicle accident, the boy had recovered fully after she had
again
sent him to play therapy. She trusted the lady who conducted the play
therapy and it is for that reason that as a careful
parent she took
the boy back to her after the motor vehicle accident and the head
injury sustained therein.
[11]
The plaintiff testified further that the minor was a completely
ordinary boy, an average achiever, before the accident, with
ordinary
interests and ambitions. He spoke of becoming a veterinary surgeon or
engineer. He fared within mainstream parameters
in a standard
mainstream primary school. He first attended a crèche and then
Grade R at the primary school. He was
promoted from Grade R to
Grade 1. His marks at the end of Grade 1 were within a
mainstream band. The accident occurred in
the December school
vacation after he had been promoted to Grade 2.
[12]
During Grade 2, and soon after the minor boy went back to school, the
problems began surfacing. It appeared that one
of the teachers
lost patience with him and was inclined to scold at him for being
slow, calling him “stupid”.
The plaintiff got
advice from the school that he should be taken out of the school, to
a special school and at the end of Grade
2 that is where she took
him. He did not fail Grade 2 at the mainstream school, but he
was not coping.
[13]
An issue that was raised with not only the plaintiff but the
plaintiff’s expert witnesses was whether the fact that the
boy
could only begin speaking in full sentences between ages 3 and 4,
signified a language impairment which was a function of the
emotional
trauma that he had suffered. The mother’s explanation for the
ostensible delay was that the adults in the home
in which the boy was
growing up as a toddler, spoke both the English language and the
Afrikaans language. The mother thought that
it was because of mixed
languages that the boy was not able to complete sentences fully until
he was between 3 and 4 years old.
[14]
She did not see this as an issue, and when she took him for his
annual check-ups by the paediatrician, it was never suggested
that
this was a problem. She accepted that the boy would never be able to
return to mainstream schooling, much as she would have
liked this.
[15]
Ms Cramer, a Clinical Psychologist, testified for the plaintiff. She
specialises in Neuropsychology. She listed the current
complaints that the plaintiff reported. The boy’s
concentration is very poor; he sleeps poorly, he has severe
anger outbursts; he says that he has difficulty explaining the
information in his head, or writing it down; he is negative
and
depressed; he has a severe reading disability; he loses
interest very quickly; and he is generally quite
anxious.
[16]
Having done tests and having interviewed the mother and the minor
boy, the witness opined that the boy’s neurocognitive
profile
is indicative of a highly variable simple attention, limited as well
as variable complex attention and working memory,
fluctuations in his
psychomotor speed, a reduced speed of mental processing, mild
stimulus resistance difficulties, and basic cognitive
and mental
abilities that are below expectation for his age group.
[17]
In her opinion the minor boy would have scholastic and academic
difficulty given the significant fluctuations in his simple
attention, his limited as well as variable complex attention and
working memory, his mild complex tracking difficulties, his
inconsistent
work speed, and the delays in his mental processing
speed. In her view the boy is suffering from a significant
impact as
a result of the accident and is unlikely to achieve
according to his pre-morbid intellectual potential.
[18]
She could not conceive of any other event that could have caused the
cognitive deficits. She accepted that he had experienced
a traumatic
event pre-accident, but opined that this had been well-managed. The
ostensibly delayed speech development could be
ascribed to the
grommets.
[19]
Dr Close, the Psychiatrist, diagnosed the minor boy as having a mood
disorder due to a traumatic brain injury and chronic pain
with major
depressive like episodes. She also diagnosed him as having attention
deficit hyperactivity disorder, as well as a personality
change due
to the traumatic brain injury. He is not only emotionally but
cognitively challenged; she ascribed his problems as having
been
caused by the accident. He has suffered an organic frontal lobe
injury. He has a cognitive condition, and not a mood disorder.
[20]
She did not think that his problems would improve; they are not
curative. The play therapy was by definition concerned with
the boy’s
emotional well-being. Although the pre-accident emotional event could
have contributed to the current sequelae,
it certainly could not have
contributed to the cognitive sequelae.
[21]
The Educational Psychologist Ms De Rooster, who had been in practice
for 30 years, confirmed her comprehensive report. Her
focus was to
project the minor boy’s likely trajectory but for the accident,
as well as having regard for the accident. She
also obtained
collateral information and subjected the boy to a number of tests.
She summarised her findings and conclusions,
having regard to the
reports of other experts, at page 136 and following. She
recorded that the boy had suffered a significant
cranial impact,
resulting in depression and symptoms of a post-traumatic stress
disorder as well as the development of attention
deficit
hyperactivity disorder.
[22]
She pointed to the fact that both his parents completed Grade 12 and
thereafter obtained post-secondary school diplomas.
In her
view, but for the accident, the boy – who was reported to be of
above average talent in most areas – would have
gone on to
perform similar. He would likely have reached an NQF 6 level. He was
coping well in a mainstream school which was offering
an advantaged,
well-resourced education.
[23]
She does not believe that he will reach his pre-accident potential.
His current poor spelling is evidence of his impairment.
He cannot
write complete sentences, and writes in nonsensical fashion. He tends
to turn letters around. His problems lie in both
the language and the
numeracy spheres. The special school at which the boy was placed as
from Grade 3, being West Rand School,
is a school for learners with
physical disabilities and/or special learning barriers.
[24]
She did not believe that any other event in the boy’s life
barring the head injury could have brought about the sequelae
that
she observed. Although his mother’s partner had committed
suicide and he happened upon the dead body, he received play
therapy
which enabled him to overcome this event which occurred when he was 2
– 3 years old.
[25]
She pointed out that the boy would be allowed to remain in West Rand
School until completion of Grade 7 and said that he will
thereafter
probably be transferred to Pro Practicum School which is a vocational
school with a focus on more practical subjects.
She considered
that he would probably remain at this school until the age of 18
years and would leave school with a Grade 10 (special
school)
qualification. This would be seen on the same level as Grade 8
mainstream qualification, and is not on the NQF rating
system at
all.
[26]
In her view the boy would never be able to return to a mainstream
school. She did not see any improvement to his condition
occurring.
His problems will become exacerbated. Before the accident he was of
average intellect, but now he is borderline. He
does not have the
cognitive ability to complete Grade 12. She noted the opinion of Ms
Burger, the Occupational Therapist, who said
that he was likely to be
limited to employment that is structured with routine practical tasks
and where there is some level of
supervision. In her own opinion, the
boy will not be gainfully employed. He will have problems functioning
in a normal work environment.
This cannot be ascribed to the
emotionally disturbing event that occurred back when he was 2 –
3 years old.
[27]
Taxed about the boy’s ostensibly delayed speech progression,
she ascribed it to the recurrent ear infections he experienced,
resulting in him having to be fitted with grommets. But she thought
this had been fully resolved by the time he got to school.
She
accepted that he was now doing well at school, but she stressed that
this was at a special school. Although he passed Grade
2 at a
mainstream school, she stressed that he would not have been removed
had there not been a problem. His current auditory problems
developed
post-accident. In her view, the accident and the injury there
sustained were the sole cause of the boy’s current
challenges.
[28]
Ms Burger, an Occupational Therapist, conducted comprehensive tests
on the boy. She recorded his behaviour during testing,
his eye
movements, his postural control, his muscle turn, his equilibrium,
and generally his motoric functioning. She tested
his sensory
motor skills. Overall, he appeared slow and lethargic. His
concentration was well below the norm. His eyes converge;
his left
and right eyes are not functioning in sync. This is often related to
a neurological deficiency. His problems are likely
to persist.
[29]
In the opinion of Ms Burger the minor boy will be suited to work that
falls within the light work category. He would
have to be
supervised in the performance of routine, structured, supervised
tasks. His impulse control is a problem. She recommends
that his
lifting ability should be assessed when he is mature and finished
with school before entering the open labour market to
determine the
work category that will be best suited for him.
[30]
Ultimately Mr Jooste, an Industrial Psychologist, was called. He
explained that as regards the minor boy’s pre-accident
potential, and having regard to the expert opinions of the other
witnesses, he concluded that had the accident not occurred the
boy
would probably have been able to cope with mainstream schooling,
obtaining a Grade 12 level of education, and matriculating
with
entrance to National Diploma.
[31]
He accepted the evidence of Ms De Rooster that he would thereafter
have been able to enrol at a tertiary institution attaining
a
National Diploma at the NQF6 level of education and such a diploma
would normally have taken three years of post-secondary school
study. He argued that the boy would then likely have at first
worked in contract positions earning on par with Paterson A1
level as
a basic salary for a period of one to two years before securing
permanent employment.
[32]
Thereafter the boy would have entered the open labour market within
the Paterson B3 level with an annual guaranteed package
and with
experience and healthy work habits, he would then have progressed to
the Paterson C3/C4 levels. For the purposes
of quantification
Mr Jooste followed the straight-line approach and assumed that the
boy would have reached the Paterson C3/C4
levels by the age of 40 to
45 and would thereafter have earned only annual salary inflationary
increases until his retirement at
the age of 65.
[33]
Having regard to the expert opinions of the post-accident potential
of the boy, Mr Jooste accepted that the boy had sustained
a traumatic
brain injury which has resulted in various neurocognitive,
neuro-physical and behavioural
sequelae
, as well as
psycho-social and psycho-emotional difficulties. He accepted
that the experts were of the opinion that the boy
would be unable to
reach his pre-morbid potential academically, ultimately affecting his
occupational tenure.
[34]
He accepted that the boy has been rendered a vulnerable employee in
the open labour market and the opinion of Ms Burger, that
he would be
doing work routine and structured in nature falling within the light
work category. In arriving at a calculation
for the having
regard to scenario, the witness accordingly accepted that the boy
would be able to find menial, light work that
is structured and
sympathetic and that he would earn at the medium of the unskilled
level of R36 300,00 per month with no
prospect for growth.
[35]
He makes provision for annual salary inflationary increases until his
retirement but provides for a relatively high contingency
deduction
under this scenario. Having regard to the Quantum Yearbook 2019
by
Robert Koch
at page 123 the witness referred to the
earnings of an unskilled labourer as within the range of R20 700,00
to R82 000,00
per year with a median at R36 300,00.
[36]
The witness concludes therefore that the calculation, after it had
been limited in terms of
RAF v Sweatman
(162/2143)
[2015]
ZASCA 22
, comes to a net loss of R4 439 346,00. To
this must be added the agreed R750 000,00 in respect of general
damages.
[37]
As noted earlier, there was no attack by Ms Pather on the quality,
assumptions, reasoning, and conclusions of the expert opinions
of
those experts who testified. I believe that this was warranted
since they all had provided comprehensive reports and their
reasoning
– both in the reports and in oral evidence - was, in my view,
lucid, understandable, and their opinions justified.
I
therefore accept them.
[38]
So far as pertains to the agreed amount in respect of general damages
(R700 000,00), having regard to the judgments referred
to by Mr
Louw for the plaintiff I believe this is a fair amount and need not
be reconsidered. The aggregated amount is thus
R5, 139 346.00.
The draft order handed up was not objected to by the defendant. It
provides for the funds to be safeguarded
in an appropriate trust
instrument.
[39]
In these circumstances I make the following order:
An
order is issued in terms of the draft order handed up, marked “X”,
initialled by me, and dated.
WHG van
der Linde
Judge,
High Court
Johannesburg
Dates
trial:
12 to 14 March 2019
Date
judgment:
18 March 2019
For the
plaintiff:
Adv A Louw
Instructed
by:
Joubert Botha Inc
Plaintiff’s Attorneys
Bergzicht Office Park
Building 3, Suite 13
Rooibok Avenue
Allens Nek
Roodepoort
Tel: (011) 475 4196
Fax: (011) 475 4199
Email:
joubertbotha@vodamail.co.za
Ref: M Botha/BRI5/0001
For the
defendant:
Adv N Pather
Instructed
by:
Shereen Meersingh and Associates
Defendant’s Attorneys
15
th
Floor, Marble Towers
208-212 Jeppe Street
Johannesburg
Tel: (011) 333-0274
Fax: (011) 333-0288
Ref: RM/KMD/SM/JHC1295