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[2018] ZAGPJHC 451
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M obo M v Road Accident Fund (4484/2016) [2018] ZAGPJHC 451 (18 June 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
4484/2016
REPORTABLE:
/ NO
OF
INTEREST TO OTHER JUDGES: /NO
In
the matter between:
M.
T. A.
PLAINTIFF
OBO
M., K.
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MIA,
AJ
[1]
The plaintiff, T. A. M., is acting in her capacity as guardian of her
minor daughter K.M., who was born on [...] 2004. The minor
child was
8 years old when the collision occurred on 6 April 2013 at
approximately 15h20 at the intersection of the Golden Highway
and
Welgevonden Road Evaton, Vanderbilpark. The plaintiff was a
passenger in the vehicle when the collision occurred between
motor
vehicles with registration numbers [X...] driven by Mr David Maredi
and a motor vehicle with registration number [C...],
driven by
Mr Victor Sifiso Sambo. She instituted an action for damages against
the defendant in terms Section 2 of the provisions
of the Road
Accident Fund Act, Act 56 of 1996 (“the Road Accident Fund
Act”) arising from injuries that she sustained
as a result of
the collision.
[2]
The issue of liability and quantum were separated at a pretrial
hearing. The issue of liability (merits) was conceded
100% in favour
of the plaintiff. The defendant also undertook to furnish an
undertaking in terms of section 17(4) (a) of the Road
Accident Fund
Act in respect of future hospital and medical costs. The issues which
remained unresolved between the parties and
which I am required to
determine are those of the quantum of the plaintiff’s general
damages and the plaintiff’s loss
of earnings. The plaintiff
claimed R1 500 000 as general damages and R5 000 000 for loss of
earnings.
[3]
The matter came before me on the basis that neither of the parties
would lead oral evidence. The parties agreed that the contents
of the
various medico- legal reports obtained on behalf of the parties and
joint minutes compiled by the overlapping experts obtained
would
serve as proof of the injuries and their sequelae. The neurosurgeon
experts agree that the plaintiff suffered a mild concussive
brain
injury with an associated laceration and a haematoma of the forehead.
They agree that she suffers with post traumatic headaches
which must
be compensated for. They agree also that she has a visible ugly scar
on her forehead on the left side which qualifies
for non-pecuniary
loss due to it being visible and ugly. Whilst she did not suffer
neurophysical deficits, she experiences cognitive
functional problems
and personality changes. This has had a major neuropsychological
impact on her mental status. They found further
that she suffers from
post-traumatic stress disorder and has depressive disorder symptoms.
[4]
The clinical psychologists accepted the neuropsychological profiles
and the accompanying impairments including the plaintiff’s
problems with psychomotor speed, memory and executive skills.
Problems were also identified with regard to verbal reasoning,
error
proneness when completing arithmetic computations and visual spatial
organisation and integration. In addition the clinical
psychologists
noted that the plaintiff has become socially withdrawn and has poor
self-concept and self-regulation problems that
manifest as reduced
control of her temper and irritability and aggression towards other
children and increased e-987ating. The
symptoms of a depressive
disorder and persistent Post Traumatic Stress Disorder symptoms were
present. The aforementioned appear
to be resultant from the brain
injury and the trauma and physical pain she experienced. The
plaintiff’s psychiatrist
Dr Larry Grinker noted
that following even a mild head injury such as sustained by the
plaintiff, individuals are at
risk of developing a range of
organically based psychiatric syndromes and comorbid psychiatric
disorders which include mood disorders
and impulse control.
[5]
The industrial psychologists opine that the depressive disorder and
posttraumatic stress disorder may have an impact on her
educational
potential in that it may reduce her potential and her future
occupational functioning. They refer to the educational
psychologists
findings who agree that post the accident she will
“
be
able to complete Grade 12 but that her achievement will probably be
lower and that she would only be able to secure an endorsement
to
continue with a Higher Certificate/Diploma (NQF level 5/6) as it is
expected that the impact of the cognitive difficulties would
become
more visible in the senior phase where more emphasis is placed on her
own effort.”
They
envisage that she ought to be able to cope with work of a Light to
Medium category. Her psychological, behavioural and cognitive
profile
however may render her vulnerable as an employee in the future within
the open labour market. They agree that
“
regardless
of employment she will remain a vulnerable individual in employment
as well as in the open labour market.”-
[6]
In view of the above findings Mr Strydom, appearing for the
plaintiff, submitted the plaintiff’s position must be viewed
in
the context of the South African labour market which currently
experiences a 27 % rate of unemployment. In the event that the
plaintiff does complete Grade 12 and succeeds in completing a
Higher Certificate or Diploma she will firstly face difficulties
finding employment as her educational performance is no longer the
same as prior to the accident. He referred to Ms Hattingh the
speech/language pathologist and audiologist who found that the
plaintiff had central auditory processing difficulty which resulted
in a slower pace of work. Ms Hattingh also found that she struggled
to sustain auditory focus and had auditory discrimination
difficulties that affected her understanding of information. The
plaintiff’s mother also reported to various experts
that her
daughter appeared to experience difficulty hearing.
[7]
Mr Strydom submitted that the plaintiff would not cope with the
pressures of her employment with the neuropsychological, behavioural
and cognitive difficulties she experiences. He submitted further that
it was foreseeable that the pressures arising during employment
may
aggravate her condition resulting in further frustration. She may
either leave her employment or be dismissed but ultimately
may change
employment frequently to avoid the pressures resulting in a poor work
history and a poor work profile and would be an
unsuitable candidate
for employment as compared to the many other persons she will be
competing against for the same position.
LOSS
OF EARNINGS
[8]
On the basis of the joint minute of the industrial psychologists, two
post morbid scenarios were envisaged. The first scenario,
without
intervention and support, was that the plaintiff will complete a
higher certificate and work for two years in contract
positions
earning within the Paterson A1 level basic salary. Thereafter it is
envisaged she could progress from Paterson A3 to
Paterson C1 by age
40 to 45 following the straight line approach. It is envisaged that
she will only earn inflationary salary increases.
[9]
The second scenario which envisages intervention and support as well
as therapy envisages that the plaintiff could complete
a diploma.
They note however that given her psychological, cognitive, emotional
and behavioural vulnerabilities they consider the
plaintiff has a
risk of reduced career growth potential and she may only reach a
career peak of a level LL/KJ Paterson C1 according
to the plaintiff’s
experts and HVE/DJ Paterson C3 according to the defendant’s
experts but agree on a Paterson C2 as
the middle ground.
[1]
The experts agree regardless of employment that she will remain a
vulnerable individual. They agree that this reduced career earning
potential should be compensated for and that her continued
vulnerability should qualify her for a higher than usual contingency
deduction.
[10]
The aforegoing translated into an actuarial calculation by the
plaintiff’s actuary Gerard Jacobson Consulting Actuaries
considered two scenarios in terms of which the loss of earnings of
the plaintiff was calculated on the basis of two possible scenarios.
The first scenario postulates the plaintiff’s loss of income
where she obtains a 3 year diploma after completing Grade 12.
The
second scenario postulates a case where the plaintiff obtains a 3
year degree having completed Grade 12. The actuaries worked
on a 25%
contingency however Mr Strydom submitted and the defence did not
dispute that 20% was the more appropriate percentage
to deduct in the
circumstances.
[11]
It was projected that the plaintiff’s premorbid income post
grade 12 with a Diploma would be R7 238 685, applying a 20%
contingency deduction results in an amount of R5 790 948. The
plaintiff’s post-morbid income was projected at R 3 815 219.
Applying a 40 % contingency yielded a figure of R2 289 131. This
results in a future loss of income of R3 139 883. In the second
scenario the plaintiff’s pre-morbid income post Grade 12 with a
degree is projected at R 9 416 106, applying a 20% contingency
results in a figure of R7 532 884. Her post morbid income is
projected at R 3 815 219. A 40% contingency applied results in a
figure of R2 289 131. In the final calculation Mr Strydom submitted
that it would be equitable to the plaintiff that her pre morbid
income be determined by taking the average of the degree and diploma
scenarios after the 20% contingency deduction. This would
be the
average of two amounts R5 790 948 and R7 532 884 which yields a
figure of R6 661 837 being the pre morbid projected income.
[12]
In respect of the loss of earnings Ms Hlabyage submitted that
paragraph 8.1 of the industrial psychologist’s reports
was more
applicable and realistic when applied to the present circumstances
that the plaintiff would complete a Diploma or Higher
Certificate.
The defendant had no difficulty with the application of the second
scenario where the defendant with interventions
obtained a
degree and or obtained a Diploma or Higher Certificate. The
defendant accepted that a higher contingency
was applicable which Ms
Hlabyage submitted was adequately catered for in the event that the
Court applied a 30% contingency. She
referred the court to their
actuarial calculation from GW Jacobson Actuaries (Pty) Ltd
where the pre morbid income with a
Diploma amounted to R 7432 294.
Applying a 20 % contingency having regard to the plaintiff’s
age resulted in an amount of
R5 945 835. Her post morbid
income based on the plaintiff achieving a Higher certificate
per the actuarial report
amounted to R 5246 340. Applying a 30%
contingency resulted in an amount of R 3 672 438. The difference thus
results in the plaintiff’s
loss being R 2 273 397.
[13]
Ms Hlabyage referred to the second scenario projection in the
actuarial calculation which was based on the plaintiff
achieving a diploma pre and post the accident. In the latter scenario
the premorbid income was R 7432 294 with a 20% contingency
resulting in the amount of R5 945 835. The post morbid income
was projected at R5 581 909 applying a 30% contingency resulted
in an
amount of R3 907 336. The difference results in a future
loss of income being R2 038 499.
[14]
In considering the experts views regarding the plaintiff’s
future prospects, her ability to work in the open labour market
is
clearly fraught with difficulty due to her being vulnerable and
regardless of her employment it is envisaged she will encounter
difficulties and remains ‘a vulnerable individual’.
I accept the experts’ opinions that this will
impact her
earning potential and that she should be compensated for this
reduced earning potential. This reduced earning
potential and
her continued vulnerability on the various grounds referred to above
thus qualify her in my view for
a higher than usual
contingency deduction.
[15]
In my view the first scenario which projects that the plaintiff will
achieve a Higher certificate or Diploma is more realistic
in view of
her psychological, cognitive, emotional and behavioural
vulnerabilities and how it may impact on her learning abilities
according to Ms Hattingh whose report is not contested. The scenario
wherein the plaintiff obtains a three year diploma with intervention
appears to be optimistic in view of the experts’ findings and
taking into account that she has Post Traumatic Stress Disorder
which
has not been treated to date. She will be dealing with therapy as
well as increased academic challenges as she proceeds to
higher
academic levels with limited time and it is not clear that she will
have adequate support and intervention. The
defendant conceded that a higher contingency was applicable with
regard to the post morbid contingency. I am persuaded that 30%
adequately addresses the complexity of the impact that her
vulnerability exposes her to in the long term and the difficulties
the plaintiff will be subjected to. I have noted that a 70%
contingency referred to by Mr Strydom was applied in similar
matters. However I am not persuaded that I should apply a contingency
as high as 50 % as submitted by Mr Strydom notwithstanding
the 70%
contingency referred to in
Msimanga v RAF
.
[16]
In
Msimanga
above Baqwa AJ (as he was then) applied a
70% contingency because it was accepted that the plaintiff was
functionally unemployable
and the experts in the matter
were of the view that the plaintiff in
Msimanga
above would
not reach the Patterson C levels. In the present matter there was
agreement that the plaintiff would reach Patterson
level C2. In
addition, in
Msimanga
above there was the additional factor
that the plaintiff would suffer seizures whereas in the present
matter the plaintiff’s
risk of suffering epileptic seizures
fall within the normal range as for the rest of the population and
has not increased as a
result of the collision. Consequently I
have applied a 30% contingency to the post morbid income and accepted
the defendant’s
calculation on the second scenario where
the premorbid income was R 7432 294 with a 20% contingency
resulting in the
amount of R5 945 835. The post morbid income
was projected at R5 581 909 applying a 30% contingency resulted in an
amount
of R3 907 336. The difference results in a future
loss of income being R2 038 499.
[17]
I am mindful that merely following the trend to grant high awards
slavishly does not take cognisance of the view of Holmes
J in
Pitt v Economic Insurance Co Ltd
1957 (3) SA 284 (D)
at 287E–F that:
“
[T]he
court must take care to see that its award is fair to both sides –
it must give just compensation to the plaintiff,
but it must not pour
out largesse from the horn of plenty at the defendant’s
expense.”
I
am also cognisant of the view expressed in
Hulley
v Cox
1923 AD 234
at 246:
“
we
cannot allow our sympathy for the claimants in this very distressing
case to influence our judgment”.
[18]
Mr Strydom at the outset referred to the decision of
Southern
Insurance Association v Bailey NO
1984 (1) 98 AD. Two
approaches were identified in the above matter that can be used to
determine future loss of earnings
at pp113 to 114C-D, by Nicholas JA:
“
One
is for the Judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely a matter
of guess
work, a blind plunge into the unknown. The other is to try to make an
assessment by way of mathematical calculations,
on the assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions,
and these may vary from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork to a greater
or lesser extent.”
GENERAL
DAMAGES
[19]
I turn now to the general damages which is claimed in the amount of
R1 500 000.00.
[20]
Mr Strydom submitted that the amount of R1000 000.00 was a
reasonable amount even though the plaintiff claimed the amount
of
R1500 000.00. By way of comparison he referred to a number of
decisions to illustrate that the amount was
indeed reasonable
he referred to
Msimanga v RAF
where in 2011 the amount was
R800 000.00. was awarded to a minor. This amount was agreed to
between the parties unlike in the present
matter where the amount is
not agreed. In the unreported judgment of
Nhlapo v RAF
Bhikha
AJ stated at paragraph [22] that:
“
The
award for general damages is to compensate for pain and
suffering, discomfort, disfigurement and loss of amenities
of life”
.
An
award of R800 000.00 was made where the plaintiff suffered a brain
injury with severe sequelae. There was significant trauma
to the head
and a degloving injury requiring multiple operations. In
Ramatsebe v RAF
Victor J awarded a minor with a head injury the amount of R800
000.00 in 2011.
[21]
In all the matters referred to by Mr Strydom the awards were to
plaintiffs younger or about the same age
as the
plaintiff when the collision occurred. They all suffered some kind of
brain injury with sequelae that were similar or more
serious. Many of
the cases overlapped in that the long term impact on the plaintiffs
affected their cognitive, psychological and
behavioural functioning
and resulted in depression and a reduced quality of life. They were
unhappy and not sociable and were socially
isolated or marginalised
as a result their injuries or the scarring due to their injuries. In
the present matter the plaintiff
sustained a cut on her forehead
which was sutured. She developed a haematoma and was admitted
to hospital for three days
to drain the wound. As a result the
plaintiff has an ugly scar on her forehead. The plaintiff also
suffers from Post Traumatic
Stress Disorder. The plaintiff’s
injuries however did not appear to be as serious as those referred to
in the cases referred
to by the plaintiff.
[22]
Ms Hlabyage submitted that the plaintiff only qualified for
compensation for the scar under general damages. She submitted
further that the neurosurgeons did not indicate that she qualifies
for general damages and thus the only damages applicable
were
the damages for the minor disfigurement of her face as a result of
the scar which she submitted ought to be awarded in the
amount of
R200 000.00 having regard to the case of
Mohloboli v
Ralethohlane and Another
654 QOD 1 FSHC where the plaintiff
sustained a minor head injury and was awarded R145 000. She referred
also to
Macle v RAF
2015 7E4 QOD 1GNP where the plaintiff
sustained a mild concussive injury and was awarded R 359 000.00. In
Fawkes v Guardian Co. Ltd
1951 194 QOD 293 E the plaintiff
suffered jaw and facial disfigurement and was awarded an amount
of R213 000.00. In
Schmidt v Nel
1961 194 QOD 290 O the
plaintiff with a permanent scar was awarded the sum of R210 000.00 .
Ms Hlabyage submitted that based on
the above case law an amount of
R210 000 to R213 000 was applicable for the scar and R400 000 in
total as a cumulative amount
for general damages was
appropriate. Thus the order in total ought to be R400 000 plus R2 038
499 bringing the total award to R
2438 499.
[23]
Having regard to the case law, referred to by Mr Strydom the
plaintiff’s scars will remain unless treated by a plastic
surgeon. She suffers Post Traumatic Stress Disorder which is on-going
and this impacts her quality of life. The cases referred
to by the
defendant are instructive herein. I have indicated that the injuries
in
Msimanga
above appear to be more serious in nature than the
present matter. I have taken into account the physical injury as well
as loss
of amenities of life as a result of depression and am
satisfied that the amount of R 400 000 is a reasonable amount for
general
damages.
[24]
In view of the above the sum awarded is thus an amount of R400 000
for damages and R2 038 499 for loss of earnings which
results
in a total award of R 2438 499. The amended order attached
marked X, is duly incorporated into the judgment, with
the insertion
of the amount of R 2438 499.
_________________________________________________
S C MIA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances:
On
behalf of the plaintiff
: Mr
Strydom
Instructed
by
: AF Van
Wyk Attorneys.
On
behalf of the Defendants
: Adv
Hlabyage
Instructed
by
: Moloto Stofile
Attorneys
Date
of hearing
: 28 May 2018
Date
of judgment
:
18 June 2018
[1]
Ibid,p18,
para 8.2