About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 452
|

|

S v Road Accident Fund (11024/16) [2018] ZAGPJHC 452 (28 June 2018)

Links to summary

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:  11024/16
Reportable
No
Of
interest to other Judges   No
Revised:
Yes
Date:
28/6/ 2018
In
the matter between:
S.,
R. S. A.
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J
U D G M E N T
MAIER-FRAWLEY
AJ:
Introduction
1.
On
22 January 2014, the plaintiff was involved in a motor vehicle
collision in which she sustained various bodily injuries. The

plaintiff was 14 years old at the time, having just commenced her
first year of high school in grade 8 (standard 6).
2.
Following
the accident, an action for damages was instituted on behalf of the
plaintiff against the defendant arising out of the
injuries sustained
by her in the accident. By the time the matter came to trial, the
plaintiff had turned 18 years of age. The
defendant accepted
liability to compensate the plaintiff in respect of the damages
sustained by her and the trial proceeded on
a determination of the
quantum of the plaintiff’s damages.
3.
At
the outset of the hearing, the court was informed by the parties that
they had reached agreement on several issues but as the
trail
progressed, further agreements were arrived at, resulting in only the
following outstanding issues requiring determination:-
3.1.
The
amount of general damages to be awarded; and
3.2.
The
plaintiff’s pre-morbid qualification, more particularly,
whether the plaintiff would have obtained an NQF5 or an NQF6

qualification, had the accident not occurred.
4.
The
parties handed in a signed written agreement delineating certain
common cause facts. These are mentioned below.
[1]
During the course of the trial, the parties also reached consensus in
regard to the plaintiff’s actuarial calculations pertaining
to
her claim for future loss of earnings as computed in both the pre and
post-morbid scenarios. The agreed computation regarding
the
plaintiff’s postulated loss in the pre-morbid scenario was
based on one of two possible outcomes, the one ultimately
to be
applied depending on the court’s finding on the issue outlined
in paragraph 3.2 above.
[2]
Agreement was also reached in regard to applicable contingency
deductions in both the pre-and post-morbid scenarios.
Agreed
common cause facts
5.
The
plaintiff sustained the following injuries in the collision:
5.1.
Mild
to moderate traumatic brain injury (“TBI”) with a base of
skull fracture;
5.2.
Bleeding
from the right ear and an injury to the left ear;
5.3.
Lacerations
of the left elbow and distal left arm;
5.4.
Injury
to the left leg.
6.
As
a result of the collision and injuries, the plaintiff suffers from
the following
sequelae:
6.1.
Neuropsychological
deficits to such a degree that the brain injury would be classified
as moderate (on an outcome basis). The plaintiff’s

neuropsychological dysfunction will persist in adulthood and
ultimately have a negative impact on her capacity to function in the

workplace;
6.2.
A
serious mood disorder that includes post-traumatic stress disorder
(“PTSD”) and a major depressive disorder (“MDD”);
6.3.
A
form of epilepsy with seizures, which, coupled with the TBI, PTSD and
MDD, creates a complex neurological interaction;
6.4.
Impaired
interpersonal relationships and reduced self-esteem;
6.5.
Headaches;
6.6.
Change
in behaviour;
6.7.
Bilateral
hearing loss (loss of hearing in both ears);
6.8.
Impairment
in memory;
6.9.
High
levels of anxiety;
6.10.
Neurocognitive,
neurobehavioural and neuro psychiatric changes;
7.
The
plaintiff’s early development was noted as normal, except that
she did not crawl.
8.
The
plaintiff’s pre-accident school reports indicate that she
experienced learning difficulties at primary school.
9.
But
for the accident, the plaintiff was probably of average to
high-average intelligence and would have obtained a grade 12 level
of
education as well as a higher post-grade 12 qualification.
10.
Having
regard to the accident, the plaintiff will only obtain a grade 12
level of education. The parties agreed in this regard that
the
plaintiff will probably:
10.1.
obtain
a grade 12 qualification in 2018;
10.2.
will
thereafter have difficulty in securing employment for a period of 30
months;
10.3.
will
likely secure employment in the non-corporate sector at the median
salary for unskilled workers, progressing in a straight
line to the
upper notch of salaries for semi-skilled workers over a period of 11
years, receiving inflationary increases thereafter.
11.
The
joint minutes of the experts were admitted as evidence in respect of
all issues on which the experts reached agreement.
Evidence
at trial
12.
The
plaintiff called her mother, Ms. J. S. as well as an expert
educational psychologist, Ms. Elenor Bubb to testify on her behalf.

The defendant called an expert educational psychologist, Ms. Sonet
Van den Heever to testify on its behalf. The credentials of
the
experts were not in dispute.
13.
It
was common cause on the evidence that a NQF4 qualification is the
equivalent of a matric. A NQF5 qualification is the equivalent
of a
higher certificate, involving one year of study post-matric, whilst a
NQF5 qualification is the equivalent of a diploma, involving
3 years
of study post-matric.
14.
The
experts agreed that the plaintiff would have studied further after
matriculating had the accident not occurred, although they
disagreed
about the level of further study she would likely have attained.
According to Ms Bubb the plaintiff would have attained
a NQF6
qualification, whilst Ms Van den Heever was of the view that the
plaintiff would have attained a NQF5 qualification.
15.
According
to both experts, the plaintiff’s pre-morbid IQ (intelligence or
intellectual aptitude) was that of average to high
average.
Evidence
of Ms J. S.
16.
Ms.
S. testified that she works half days as a grade R school teacher.
She is a single mother. She holds the equivalent of a NQF5

qualification at present. Although she has registered for a NQF6
equivalent diploma, she has not been able to pursue her studies
due
to a lack of finances.
17.
Prior
to the accident, she looked after the plaintiff in the afternoons and
assisted her with homework, when required. She described
the
plaintiff as an average student, albeit a lazy learner. The plaintiff
admittedly experienced learning difficulties in primary
school, which
necessitated her having to attend extra lessons at school. The
plaintiff’s school reports reflected the plaintiff’s

marks as being below the class average in certain subjects. Mrs S.
conceded under cross-examination that factors such as frequent

absenteeism from school, recurring bouts of illnesses
[3]
and an emotionally unstable home environment
[4]
could have impacted the plaintiff’s schooling negatively and
could have contributed to the plaintiff’s under achievement
at
primary school.
[5]
18.
Ms.
S. testified about the high value she places on education and the
financial sacrifices
[6]
she has willingly made to enable the plaintiff to achieve the best
possible outcome in her education after the accident. According
to
Ms. S., her efforts would not have differed had the accident not
occurred. She was adamant that she would have encouraged the

plaintiff to study further after matric and would have done whatever
was required to enable the plaintiff to realize her full potential
in
obtaining a higher education.
19.
Mrs. S. was criticized by the
defendant’s counsel as being subjective and unreliable. I
cannot agree therewith. Mrs S. impressed
me as a credible witness who
tendered her evidence without exaggeration. She readily made
concessions where required, for example,
when she was shown to be
mistaken in her recollection of certain facts and events, and
although she did not always remember facts
that had occurred several
years ago, she remained a primary source of information as to the
plaintiff’s overall progress
in her capacity as the plaintiff’s
primary caregiver.
[7]
Evidence
of Elenor Bubb
20.
As indicated earlier, Ms.
Bubb is of the opinion that had the accident not occurred, the
plaintiff would probably have attained
grade 12 and studied further
at an FET college, obtaining the equivalent of an NQF6
qualification.
[8]
21.
Her reasons for arriving at
such conclusion are that:
21.1.
the plaintiff possessed the
requisite intellectual capacity to achieve such higher level
qualification;
[9]
21.2.
Although the plaintiff’s
primary school reports evinced a pattern of learning disabilities, in
circumstances where there was
nothing to suggest that the plaintiff’s
higher order cognitive skills were affected,
[10]
the plaintiff continued to pass each year,
[11]
having received limited extra help at school (although no remedial
help as such), and despite her struggles with ill health, emotional

difficulties, and even with her record of excessive absenteeism from
school each year;
21.3.
The plaintiff’s marks
in English showed some improvement over time
[12]
(up until grade 7) and scholastic testing
[13]
also revealed some improvement, indicating that basic word fluency,
reading, comprehension and spelling skills, which had posed
early
learning difficulties (pre-accident), were in fact established;
[14]
21.4.
The plaintiff’s
mother’s influence as a role model.
[15]
22.
Ms. Bubb explained that one
cannot look at a person’s overall potential based only on
school achievement, as school performance
is only a part of one’s
potential (‘potential’ being that which a person is
capable of producing). Therefore,
school achievement cannot and
should not be looked at in isolation. If a child suffers from
developmental learning difficulties,
[16]
this means that the child would ordinarily struggle more than the
average child, but if the child is motivated enough to achieve
an
education and puts in some extra work, the chances are good that he
or she would succeed.
Evidence
of Sonet Van den Heever
23.
Ms. Van den Heever is of the
opinion that the plaintiff would not have achieved anything more than
an NQF5 qualification, had the
accident not occurred.
24.
According to Ms. Van den
Heever, when account is taken of the plaintiff’s family
background; the qualifications and occupations
of her parents; the
plaintiff’s academic progress and difficulties; a lack of
support and dedication to school work; and
the plaintiff’s
pre-exisiting vulnerabilities, the plaintiff ‘was an
underachiever at school and her home circumstances
and lack of
effective support and stability probably stifled utilising of her
portential. Considering her post-accident academic
progress and the
fact that she is already attending grade 12 in a home schooling
program, despite academic challenges experienced
pre-morbidly, if she
remained motivated and focussed, she seems to have had the learning
capabilities to have completed grade 12,
as well as a higher
certificate course (NQF5)’.
[17]
25.
During evidence, it appeared
that Ms. Van den Heever’s reasoning was based on the following
factors: (i) that the plaintiff’s
mother only currently
possesses a NQF5 qualification
[18]
(although Ms. Van den Heever  was unsure about the father’s
qualification); (ii) the plaintiff’s educational profile
that
signified extreme absenteeism from school;
[19]
(iii) ongoing illnesses that the plaintiff experienced in primary
school;
[20]
(iv) panic attacks/anxiety which the plaintiff’s mother had
suffered from (in 2012) and which, according to Ms. Van den Heever,

signified that ‘life is overwhelming’ and that the
plaintiff’s mother ‘likely also struggled to cope;’
[21]
(v) reports made by third parties to the effect that the plaintiff
was an insecure child who lacked confidence, including a report
by
the plaintiff’s grade 3 teacher to the effect that the
plaintiff had stayed home (in her grade 3 year) whenever the work
was
too difficult for her;
[22]
(vi) indications that the plaintiff’s grandfather, great
grandfather and aunt had suffered from depression and indications

that the plaintiff was being raised in a ‘stressful’ home
atmosphere, by adults who ‘often feel overwhelmed.’
[23]
26.
According to Ms. Van den
Heever, the plaintiff was ‘a clever girl’ whose potential
did not materialise during primary
school. The plaintiff possessed
the requisite intellectual capability (IQ) to overcome her learning
difficulties, yet she continued
to underperform throughout her
primary school career. According to Ms. Van den heever, this
indicated that the plaintiff was not
academically inclined. This
coupled with the fact that the plaintiff would have missed out on a
‘significant part of the
curriculum’ due to absenteeism
each year and would have entered high school with ‘backlogs in
reading, writing, spelling’,
meant that she would likely have
struggled to coped with the greater cognitive demands required of
learners in the higher grades.
On the same basis, Ms. Van den Heever
reasoned that the plaintiff would not have coped with the academic
challenges of higher studies
such as a NQF6 diploma, which would
ordinarily require more ‘concentrated learning’ as
opposed to a NQF5 certificate
course, which is not as challenging
academically.
Evaluation
of evidence concerning Plaintiff’s pre-accident progression
27.
Given the divergent views
expressed by the two experts on the question of the pre-accident
level of education the plaintiff would
likely have achieved, I bear
in mind the principles that have evolved over the years concerning
expert evidence, as set out in
cases such as
Rv
Jacobs,
[24]
Twine and Another v Naidoo
and others
,
[25]
Karani v Karani NO and
Others,
[26]
Nienaber v Road Accident Fund,
[27]
Sv M,
[28]
and
S
v Road Accident Fund
.
[29]
28.
In
Louwrens
v Oldwage,
[30]
the following was said:
‘
What was
required of the trial Judge was to determine to what extent the
opinions advanced by the experts were founded on logical
reasoning
and how the competing sets of evidence stood in relation to one
another, viewed in the light of the probabilities’
.
29.
The plaintiff’s
educational psychologist impressed me as an objective witness who
testified in a convincing and credible manner,
proffering logical
reasons for her conclusion that the plaintiff would have progressed
to a NQF6 qualification, had the accident
not intervened.
Cross-examination did little, if anything, to debunk the irrefutable
facts
[31]
on which the reasoning was based. Her conclusions were based on facts
uncovered after extensive investigation of all the circumstances

pertaining to the plaintiff’s schooling, including a lengthy
and meaningful consultation that was held with the plaintiff
as well
as her mother.
30.
The opinion of the
defendant’s educational psychologist, which was more
pessimistic, was that the plaintiff would not have
progressed beyond
the level of a NQF5 certificate. The opinion was based primarily on
the unstable environment which the plaintiff
was subjected to prior
to the accident, (characterised by friction and emotional distress
that eventuated from an unhealthy relationship
which the plaintiff’s
mother had maintained over a 6 year period, as well as ‘an
insecure individual [plaintiff] being
exposed to people with
psychiatric vulnerabilities [plaintiff’s family] which
obviously contributed to her [plaintiff’s]
functioning’.
31.
Under cross-examination, it
was demonstrated that Ms. Van den Heever had reached conclusions
without having herself investigated
any of the factors which she took
into account or the extent of the impact that each may have had on
the plaintiff’s academic
achievement. Ms Van den Heever
concluded that the plaintiff’s home circumstances could have
had a major impact on the plaintiff’s
school performance, yet
she conceded that she did not herself investigate the plaintiff’s
home circumstances in detail before
compiling her report.
Moreover, Ms. Van den Heever conceded that she had merely conducted a
cursory telephonic discussion
with the plaintiff’s mother,
(which could hardly be categorised as a meaningful interview within
any professional context)
and that she had relied on reports that had
been made to other experts (including Ms. Bubb) in arriving at her
conclusions, without
having investigated the veracity
[32]
thereof herself.  For example, Ms. Van den Heever concluded that
anxiety/panic attacks that were experienced by the plaintiff’s

mother, which she opined, were indicative of pre-existing
‘instability,’ had contributed to the stressful
atmosphere
in which the plaintiff grew up and would have adversely
impacted upon the plaintiff’s self esteem and security, which
in
turn would have negatively affected the plaintiff’s learning
ability and academic results at school.
[33]
However, Ms. Van den Heever could not say what had caused the panic
attacks or for how long a period they had endured or
even what the
mother’s current position is.
[34]
Several further examples that illustrated Ms. Van den Heever’s
failiure to investigate the factors
[35]
on which she had relied in reaching her conclusions, were exposed
during cross-examination. It is not necessary to repeat them
all
herein, for they are a matter of record.
32.
Ms. Van den Heever also made
several assumptions concerning the plaintiff without having conducted
any investigations into any underlying
facts. For example, her
assumption that the plaintiff’s illnesses during her primary
school years were indicative of ‘neglect’
lacks factual
foundation and accordingly amounts to nothing more than inadmissible
conjecture or speculation.
[36]
33.
Ms van den Heever however
made a significant concession under cross-examination, namely, that
if the adverse personal circumstances
of the plaintiff were to have
changed for the better, this in itself would have placed the
plaintiff in a favourable position to
have achieved a NQF6
certificate of study. The evidence revealed that the plaintiff’s
circumstances
did
change
for the better, thereby effectively neutralising Ms. Van den Heever’s
evidence concerning such factor.
34.
It is clear, from a
consideration of the totality of the evidence, that the plaintiff
possessed the intellectual capability to meet
the demands of higher
study prior to the accident– that much was common cause –
she also possessed the scholastic skills
to enable her to pass each
grade before the accident – that much is evident from the
school reports. The objective facts
show that the plaintiff retained
the motivation to study and progress to grade 12, despite her
symptomology
[37]
- there is nothing to suggest that she would not have been so
motivated in the absence of such impediments, had the accident not

occurred. The plaintiff’s home circumstances had changed for
the better, even before the accident and it is apparent from
Ms. S.’s
evidence that the plaintiff had indeed received the necessary care
and support from her mother during her formative
years.
[38]
35.
The plaintiff’s mother
was criticized by Ms Van den Heever for not having taken the
plaintiff to occupational therapy or remedial
therapy whilst at
primary school. In my view, the criticism was unfairly levelled. As
Ms. S. explained, no significant problem
had manifested in primary
school that necessitated that type of intervention. The mother had
attended teacher-parent meetings and
the plaintiff had been sent for
extra lessons at school. The plaintiff also never failed a grade in
primary school- rather, she
had seemingly managed the demands of each
grade, despite her having experienced certain learning difficulties
in certain subjects.
36.
On a consideration of the
totality of the evidence, the overall problem that I have Ms Van den
Heever’s prognosis in the pre-accident
scenario is that the
plaintiff would have attained grade 12 as well as a higher education
up to the level of the NQF5 certificate,
(1 year further study) –
this despite all the difficulties that were relied on by Ms Van den
Heever - yet, she would not
have progressed to the level of NQF6
study. This begs the question that if she would have studied for one
year post-matric in order
to aquire a NQF5 certificate, what would
have prevented her from studying for a further two years in order to
acquire the NQF6
qualification?
[39]
37.
Having had the benefit of
hearing the evidence that was given by the plaintiff’s mother,
I have no doubt that she would have
encouraged the plaintiff to
progress academically so as to achieve her maximum potential and
goals, as any caring parent would
have done. The plaintiff’s
mother will in all probability herself obtain a NQF6 certificate as
and when her financial position
improves.
38.
In my considered view, the
probabilities support a finding that the plaintiff would have
progressed to a NQF6 qualification in the
pre-accident scenario.
General
damages
39.
In assessing an award for
general damages, the plaintiff’s pain and suffering, loss of
amenities of life and any disability
are to be taken into account.
The Court is required to exercise a wide discretion in order to award
what it considers to be fair
and adequate compensation, having regard
to all the relevant facts and circumstances connected with the
plaintiff, as well as the
nature of the injuries sustained by her,
the permanence thereof, and the severity and the impact on her
lifestyle.
40.
Due to the difficulty in
calculating an amount to be awarded for non-patrimonial damage,
considerations of fairness and reasonableness
always play determining
rolls in the assessment of such damages. The Supreme Court of Appeal
has cautioned that whilst fairness
and reasonableness mean that a
claimant must be sufficiently and properly compensated for the injury
he/she has suffered, care
must also be taken to ensure that the award
is fair to the defendant.
[40]
41.
The plaintiff and the
defendant’s counsel provided me with a list of authorities in
respect of general damages that were awarded
in comparative matters.
However, it has been said more than once that no two cases are
identical and at best, the authorities are
merely a guideline in
assisting the court in arriving at an award.
42.
The authorities relied on by
the Plaintiff are:
Mofokeng
v Road Accident Fund
[41]
and
Mngomezulu
v Road Accident Fund
[42]
and
Silberbauer
v Santam Insurance Co. Limited and another.
[43]
In
Mngomezulu
,
the plaintiff, who was 25 years old at the time of the injury,
suffered a moderate head injury as well as compound right
tibia-fibula
fractures and a chest injury with lung contusion, and
was awarded R600 000.00 in respect of general damages (present
day value:
R850 000). The award is on the higher spectrum of the
scale and a reading of the judgment reveals that the learned judge
inclined
towards viewing the orthopaedic and brain injuries as
seperate injuries, thereby awarding a higher cumulative globular
amount in
respect of the distinct injuries. The
sequelae
of the injuries
,
more particularly, the
cognitive fallout experienced by the plaintiff in
Mngomezulu,
which effectively
prevented him from pursuing tertiary education, were in my view, more
severe in nature and effect than in the
present case.  In
Mofokeng,
the
plaintiff suffered a mild to moderate brain injury involving
behavioural, motivational and cognitive fall-out as well as a neck

and back injury, and was rendered permanently unemployable. The court
awarded R700 000.00 as general damages (present day
value:
R871 000.00). In my view, the
sequelae
of the injuries in
Mofokeng
were
somewhat more severe than in the present case. In both cases, the
court appears to have been motivated to grant higher awards
based on
a recognition of a tendency by courts in modern times to grant higher
awards than those that were granted in the past,
[44]
without consideration of the cautionary warning sounded in
De
Jongh supra.
In
Silberbauer,
the
plaintiff sustained a head injury with a fracture to her skull but
suffered no resultant cognitive impairment, although she
suffered
deafness as a result of the injury. She was awarded R 4 800.00
as general damages (present day value: R398 000.00).
The
sequelae
in
Silberbauer
were in my view, less severe than in the present case.
43.
The authorities relied on by
the defendant are:
Sterris
v Road Accident Fund,
[45]
Vukeya v Road Accident Fund
,
[46]
and
Bikawuli v Road
Accident Fund.
[47]
In
Sterris,
(decided in 2010) the
plaintiff, who was 37 years old at the time of the accident,
sustained a moderate brain injury and fractures
of the femur,
scapular and clavicle. She was awarded R135 000.00 as general
damages (present day value: R404 000.00).
In
Vukeya,
(decided in 2014) the plaintiff suffered a mild to moderate brain
injury as well as various orthopaedic injuries. She was awarded

R330 000.00 as general damages (present day value: R436 000.00).
In
Bikawuli
(decided
in 2010) the plaintiff, a 16 year old boy, suffered a moderate brain
injury with cognitive fallout, memory impairment,
behavioural
changes, fatigue, headaches and dizziness. He was awarded R135 000.00
as general damages (present day value: R218 000.00).
In
these cases, the injuries and their
sequelae
were in my view, less severe in nature than that sustained by the
plaintiff in the present matter
44.
The plaintiff’s
sequelae
have been listed in paragraph 6 above. On the evidence of Ms. S., the
plaintiff has remained motivated to continue learning and
to lead as
productive a life as is humanly possible, having regard to the
limitations and set-backs she has experienced after the
accident. If
she allows her current positive attitude to determine her altitude in
life, I have little doubt that she will succeed,
even though she will
continue to face struggles and challenges due to the numerous
neuro-psychological deficits that she will have
to cope with.
Treatment will no doubt alleviate some of the symptoms. She is
greatly supported by her family and her IQ at least,
has remained
extant.
[48]
She remains teachable, and is completing matric this year. She also
remains employable, albeit at a lower scale. Whilst the parties

agreed that the plaintiff also suffers from a ‘form of
epilepsy’, the evidence established that the plaintiff
experiences
tremors but has not been formally diagnosed with epilepsy
as such. I also take into account that the plaintiff would have
suffered
significant pain due to the head injury and that she has by
virtue of her injuries, lost significant amenities in life, not least

of all, a loss of hearing in both ears. In my view an appropriate
award, which would be fair to both parties in this matter, is
the sum
of six hundred thousand rand (R600 000.00).
Claim
for future loss of earnings and contingency deductions
45.
The parties are in agreement
that contingency deductions of 25% in the pre-morbid scenario and 45%
in the post-morbid scenario should
be applied. The figures appear to
me to be appropriate and consonant with the facts of the matter.
46.
According to the joint
minutes of the actuaries, the agreed value of income but for the
accident, is the sum of R7,820, 172.00.
The agreed value of income
having regard to the accident is R2,868,556.00, yielding a gross loss
of income in the amount of R4,951,616.00.
These figures are based on
a computation of the plaintiff’s pre-morbid loss on the basis
of a postulated outcome that she
would have obtained a NQF6 level of
qualification.
47.
After deduction of
contingencies, the value of income but for the accident, as
actuarially assessed, is the sum of R5 865 129.00
whilst
the value of income having regard to the accident is R1 577 705.80,
yielding a nett loss of R4 287 423.20.
48.
The plaintiff, as successful
party, is, as a general rule, entitled to her costs. On the facts of
this matter, I see no reason to
depart therefrom.
49.
In
the circumstances, I make the following order:
1.
The plaintiff is awarded the sum of R4,287,423.20 in respect of loss
of income;
2.
The plaintiff is awarded the sum of R600 000.00 as general
damages;
3.
The defendant is to pay the costs of trial;
4.
The parties are given leave to present to me, within 14 days from
date hereof, a more specific
draft order relating to costs, should
they deem it fit to do so.
________________
MAIER-FRAWLEY
AJ
Date
of hearing:

8 and 11 June 2018
Judgment
delivered

28 June 2018
APPEARANCES:
Counsel
for Plaintiff:

Adv
.
D. Combrinck
Attorneys
for Plaintiff:

Erasmus De Klerk Incorporated
Counsel
for Defendant:

Adv. N. Adams
Attorneys
for Defendant:

Sarasvathi Sagathevan Attorneys
[1]
In paras 5 to 11 of the judgment
[2]
The parties agreed that in the event of the court finding that the
plaintiff would likely have obtained an NQF5 qualification
had the
accident not occurred, then scenario 1 set out in paragraph 1.4 of
the joint minutes of the Industrial Psychologists
would apply. In
the event of the court finding that the plaintiff would have
obtained a NQF6 qualification had the accident not
occurred, then
scenario 2, set out in paragraph 1.5 thereof, would apply.
[3]
The plaintiff experienced recurring bouts of flu, stomache pains,
sinusitis, tonsillitis, and hearing difficulties in her left
ear due
to wax build up from time to time during her primary school years.
[4]
The plaintiff was involved in a romantic relationship with a
gentleman, who was referred to as ‘an addict’, for a

period of 6 years whilst the plaintiff was at primary school. The
plaintiff and her partner frequently argued over money, with
the
plaintiff witnessing her mother being anguished and upset on several
occasions. Ms Schollij’s described her then partner
as a
disciplinarian who did not show much love and affection towards the
plaintiff, someone with whom the plaintiff did not get
along.
[5]
At one stage, the plaintiff’s teacher
suspected that she might be suffering from ADHD (attention deficit
disorder) as she
was struggling to concentrate in class.
Mrs
Schollij took the plaintiff to see the school psychologist at the
teacher’s suggestion but no such diagnosis was made.
The
plaintiff was instead placed on a course of vitamins which seemed to
improve her ability to concentrate in class.
[6]
Mrs Schollij spends almost half her salary each month on home
schooling the plaintiff by way of private tutoring, as the plaintiff

could not cope with mainstream schooling or in any large class
setting after the accident. The plaintiff’s school reports
for
grade 8 indicate that she was failing in the first three terms
following the accident. She however managed to pass grade
8,
notwithstanding that she continued to experience
inter alia,
headaches, loss of concentration, difficulties with processing tasks
and an inability to cope with the workload.
[7]
The uncontested evidence was that the plaintiff has always lived
with her mother, and it is the plaintiff’s mother, more
so
than anybody else, who has witnessed the plaintiff’s progress
throughout her schooling career, both before and after
the accident.
[8]
According to Ms. Bubb, the plaintiff would have coped with the
requirements of a three year diploma
[9]
This was b
ased on the plaintiff having an
average to high average intellectual capability, as indicated by her
IQ (as was common cause between
the parties).
[10]
There was nothing to indicate or suggest that the plaintiff’s
brain was impacted prior to the accident.
[11]
The plaintiff’s work output was never so poor that she failed
any grade, and the plaintiff coped despite the learning disabilities

that she experienced at primary school.
[12]
As reflected on the school reports.
[13]
These were tests that were performed by
Ms.
Bubb during her assessment of the plaintiff. These tests revealed
that the plaintiff’s reading and comprehension ability
was
average, despite all the
sequelae
experienced by the
plaintiff with an impaired brain, indicating that the plaintiff
possessed at least the basic skills post-accident,
and which skills,
Ms. Bubb opined, would undoubtedly have been better pre-accident
(without the
sequelae
and brain injury).
[14]
The plaintiff’s learning disabilities
manifested in subjects such as reading and spelling (literacy/life
skills) and maths.
According to Ms. Bubb, there was a definite
albeit limited improvement in basic skills by the time the plaintiff
reached grade
7.
[15]
The mother, being an educationalist herself, holds a definite value
of education, evidenced particularly by her efforts to support
her
daughter in attaining an education after the accident when
significant cognitive and other challenges were noted.
[16]
Or learning difficulties that manifest due to the child experiencing
or being influenced by emotional problems in the home.
[17]
Para xv11 of her report at p.116 of the papers.
[18]
This factor was ostensibly relied on to support the theory that
children do not usually surpass the level of qualification attained

by their parents, Ms Van den Heever even having pointed out that the
plaintiff’s extended family members (grandparents)
themselves
only achieved a grade 12 qualification.
[19]
This factor was relied on for the notion that the plaintiff would
have entered higher grades of study with an inability to make
up for
backlogs that would have persisted because the plaintiff would have
missed a significant part of the school curriculum
through
absenteeism.
[20]
This factor was relied on for the assumption that the plaintiff was
neglected by her mother. According to Ms. Van den Heever,
ongoing or
recurring illnesses were ‘signs of neglect.’
[21]
This is dealt with in para 30 below.
[22]
The reports constitute inadmissible evidence, upon which no reliance
can be placed.
[23]
The difficulty is that Ms. Van den Heever did not consult with these
persons, nor did she investigate what impact, if any, these
factors
had had on the plaintiff’s learning as such.
[24]
1940 TPD 142
, where, Ramsbottom J stated
inter alia
that
experts ‘…
are
not the judges of fact in relation to which they express an
opinion.’
(at 146-147)
[25]
[2018] 1 ALL SA 297
(GJ) paras 18 and 33-36, where Vally J cautioned
inter alia,
that ‘
expert
testimony should only be introduced if it is relevant and reliable.
Otherwise it is inadmissible. It should, therefore,
only be
introduced if there is a possibility of it assisting the court in
(i) understanding a scientific or technical issue,
or (ii)
in
establishing a fact either directly or by using inferential as
opposed to speculative reasoning. Testimony that falls outside
the
scope of either of the two is superfluous.
(para  [18](c))
and
‘
while
they are entitled to make assumptions, they should avoid basing
their opinions on conjecture or speculation for once they
do so they
place their evidence at risk of being disallowed
’
(at
[18](h)).
(emphasis
added)
[26]
[2018] 1 ALL SA 156
(GSJ) para 33.
[27]
(A5012/11) [2011] ZAGPJHC 150 (27 October 2011)
at para 4 where Van Oosten J sated that ‘…
The
evidence of expert witnesses cannot be allowed to usurp the function
of the Court. It is for the Court to ultimately decide
whether an
expert’s opinion is to be relied on or not and to determine
what weight, if any, has to be afforded to it. The
Court must not
blindly accept expert testimony. It is obliged, even where expert
evidence is so technical that the average judicial
officer would not
be able properly to reach an unassisted conclusion, still to decide
whether it would be safe to accept the
opinion or not
.’
[28]
1991
(1) SACR 91
(T)
at 100a, where the court stated that “
The
cogency of the evidence should be weighed ‘
in
the contextual matrix of the case with which (the Court) is
seized’.
”
[29]
[2016] 3 ALL SA 637
(GP) paras 47-51 where
Fabricius J summarised the relevant case law under the rubric ‘
How
does a court evaluate conflicting medical expert evidence?’
[30]
2006 (2) SA 161
SCA at 174 H (with reference to the decision of
Michael and Another v Linksfield Park Clinic (Pty) Ltd and
Another
2001 (3) SA 1188
SCA at 1201)
[31]
These were that: (1) development of the brain and the expansion of
executive functioning develops at between ages 12-13 (Ms.
Van den
Heever did not disagree with such proposition), which meant that the
plaintiff would have increased her capacity for
higher level
learning; (2) scholastic testing after the accident showed that the
plaintiff’s reading skills, spelling and
writing ability
remained adequate, (this, notwithstanding the brain injury),
indicating that these skills had already become
established
notwithstanding that they had proven problematic in the earlier
years; (3) the plaintiff’s home circumstances
had changed
favourably even before the accident – her mother was no longer
involved in an unhealthy romantic relationship
with a person whom
the plaintiff did not like; (4) sometime thereafter the plaintiff’s
mother became involved in a loving
and stable relationship with a
gentleman who was supportive and whom the plaintiff liked;  (4)
the plaintiff thereafter
remained living together with her mother
and in a supportive and stable environment with no indicators of
tension or conflict
being prevalent in the home; (5) the plaintiff’s
mother provided the means for the plaintiff to receive extra
remedial
help at school when real and significant problems
manifested, such as when the plaintiff failed three consecutive
terms in grade
8; (7) the plaintiff had never failed any grades
prior to the accident, whilst at primary school, and was able to
pass with limited
extra lessons and notwithstanding ill health,
absenteeism, learning difficulties and emotional struggles that she
had experienced
whilst at primary school and (8) there was
absolutely nothing to show that the same level of support would not
have been provided
to the plaintiff had the accident not occurred.
[32]
Either the t
ruth, reliability or
legitimacy thereof.
[33]
Ms. Van den Heever’s evidence was that “when a child is
growing up with an ‘overwhelmed’ parent, it impacts
on a
child’s whole sense of security.”
[34]
Ms. Van den Heever conceded that she had not investigated the
psychological profile of the plaintiff’s mother. She had
not
either enquired about the mother’s work history or her
financial struggles or how the father’s abandonment of
the
plaintiff had affected the plaintiff.
[35]
The factors are mentioned in paras 23 and 24 above.
[36]
Ibid fn 22 above. As Lord Wright observed in
Caswell v Powell Duffryn Associated
Collieries Ltd
1939 (3) All ER 722
at
733: ‘
Inference must be carefully
distinguished from conjecture or speculation. There can be no
inference unless there are objective
facts from which to infer the
other facts which it is sought to establish. . . . But if there are
no positive proved facts from
which the inference can be made, the
method of inference fails and what is left is mere speculation or
conjecture.
’ see also:
R
v Blom
1939 AD 188
at 202-203 and
Joel
Melamed & Hurwitz v Cleveland Estates
1984 (3) 155 (A) 164G-165C.
[37]
T
he
set of symptoms characteristic of a medical condition or exhibited
by a patient – being the PTSD, mood disorder, brain
injury,
form of epilepsy, deafness and depression experienced after the
accident.
[38]
Ms. Van den Heever’s suggestion to the contrary was
unsupported by fact and was, at best, based on speculation or
conjecture
in the light of her failure to conduct a meaningful
investigation into the prevailing circumstances surrounding the
factors that
would have influenced the plaintiff’s under
performance at school at the relevant time.
[39]
Any suggestion by Ms Van den Heever to the effect that the NQF6
demands some form of higher cognitive learning can immediately
be
discounted by the accepted fact that the plaintiff possessed the
intellectual ability to cope therewith.
[40]
In
De Jongh v Du
Pisanie N.O
.
2005 (5) SA 547
(SCA)
para 60, the court, after noting the tendency towards increased
awards in respect of general damages in recent times, re-
affirmed
conservatism as one of the multiple factors to be taken into account
in awarding damages. The court concluded that the
principle remained
that the award should be fair to both sides, it must give just
compensation to the plaintiff, but not pour
out largesse from the
horn of plenty at the defendant’s expense, as pointed out in
Pitt v Economic Insurance Co ltd
1975
(3) SA 264
(N) at 267.
[41]
(2009/11101) [2014] ZAGPJHC 160 (1 July 2014).
[42]
(
04643/2010)
[2011] ZAGPJHC 107 (8 September 2011).
[43]
1966 CPD, reported in volume 1 of Corbett and Buchanan.
[44]
In which regard, see
Road Accident Fund v Marunga
2003 (5) SA
164
(SCA) at 170 F-G
[45]
(6B4) DOD 26 (WCC).
[46]
(7B4) QOD 1 (GNP).
[47]
(6B4) QOD 17 (ECB).
[48]
The plaintiff has retained the intellectual capacity to achieve the
NQF6 qulaification.