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
>>
2019
>>
[2019] ZAGPJHC 500
|
|
G T obo E T v Road Accident Fund (A5072/18) [2019] ZAGPJHC 500 (27 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
LOCAL
SEAT, JOHANNESBURG
CASE
NO: A5072/18
DATE:
27 NOVEMBER 2019
In
the matter between:
T,
G obo
APPELLANT
T,
E
and
ROAD
ACCIDENT FUND
RESPONDENT
CORAM:
MABESELE J, WRIGHT J AND KEIGHTLEY J
JUDGMENT
WRIGHT
J
[1] Master E T was born
on […] January 2003. On 26 June 2015, when he was 12 years old
he was knocked over by a motor vehicle.
His father, Mr G T instituted
action against the RAF claiming damages on E’s behalf. The Fund
conceded liability on the merits
to the extent of 90% in favour of E,
entitling E to an undertaking by the Fund under section 17(4) of the
Road Accident Fund Act.
A claim for past medical expenses was
abandoned prior to trial. By agreement, a claim for general damages
was postponed.
The trial proceeded in 2018 when E was 15 years
old only on the question of loss of future earning capacity.
[2] Expert reports were
delivered on behalf of both parties. These reports and joint minutes
form part of the record as do various
other documents like school
reports. After both sides had led evidence and closed their cases and
after argument the learned trial
judge absolved the defendant from
the instance but granted leave to appeal to this full court.
[3] A joint minute
prepared by neurosurgeons for both sides notes agreement that E
suffered a minor concussive
brain injury with loss of consciousness
but that “
long term neuropsychological, neurobehavioral and
cognitive problems are less
likely to occur.”
Also
noted, by agreement is that there are no neurophysical deficits and
that the risk of epilepsy is not increased. They note that
any award
would need to be protected.
[4] A joint minute
prepared by clinical psychologists for both parties notes agreement
that, pre-morbidly no developmental, medical
or psychological
problems were evident. This minute notes that, according to the
educational psychologists for both sides there
may have been learning
difficulties pre-accident. Post-accident, the minute of the clinical
psychologists contains agreement that
E has ongoing physical problems
in the form of headaches and left knee pain. Agreement is further
noted that E presented with neuropsychological
impairments including
with mental tracking and complex attention and concentration problems
and with verbal memory. These experts
agreed that these problems are
compatible with mild traumatic brain injury.
[5] A joint minute
prepared by educational psychologists for both parties notes
agreement that E “
might have had some pre-existing learning
difficulties.”
This joint minute notes that neither parent
of E completed formal schooling and notes further that E has a
younger sibling. This
joint minute notes agreement that E,
pre-accident “
would probably have been able to complete
Grade 12 in the mainstream education system and would probably secure
an endorsement to
continue with a Higher Certificate (NQF level 5) or
Diploma (NQF level 6)”.
Neither educational psychologist
suggests a probability either way as to whether level 5 or level 6 is
more likely or less likely.
The plaintiff has the onus and in
these circumstances it is inappropriate simply to take a position
half way. In my view,
the agreement is to be read as limiting the
pre-accident potential to level 5. The educational psychologists
disagree as to E’s
post-accident functioning. Ms Mattheus, for
the plaintiff notes exceptionally poor marks in Grade 9 during 2017.
Ms Sepenyane,
for the defendant notes that E will achieve his
pre-accident potential. Ms Mattheus notes that E is likely to repeat
some Grades
between Grades 10 – 12.
[6] A joint minute
between the industrial psychologists for both sides records agreement
that E was in Grade 6 during 2015 when
the accident occurred. Ms
Roets, for the plaintiff noted that, had there been no accident, E
would probably have completed a Grade
12 in a mainstream school and
then furthered his studies by obtaining a Higher Certificate after
one or two years of study. Mr
van Blerk for the defendant noted that,
but for the accident it is possible that E would have managed to
complete matric. Mr van
Blerk referred in the minute to the high
unemployment rate in the country and noted that E is not likely to
have found employment
immediately after leaving school. Mr van Blerk
did not note impairment in work prospects because of the accident. Ms
Roets noted
a retirement age, pre-accident of 65 years. Mr van Blerk
suggested 60 – 65 years pre-accident.
[7] An analysis of E’s
school report for 2010, grade 1, shows satisfactory to excellent
results with a conclusion of “
excellent results
”
and promotion to grade 2. The next year led to satisfactory results
and promotion to grade 3. By the end of 2014 E was passing
but was
weak in maths. His marks for life skills were very good. At the end
of March 2015, one term before the accident, E’s
results were
assessed as reasonable but that maths remained a problem. His life
skills mark had dropped. The report at mid-year
2015, that is
immediately before the accident is not available. His report for the
term immediately after the accident, dated 2
October 2015 shows no
significant change to that just before the accident. School reports
for 2017 show pass marks but E appears
to be weakening academically.
[8] School reports
for 2018 show a pass for the year with weak marks in maths. The
reports for 2019 show a weakening in marks.
The 2018-19 reports were
not tendered in evidence at trial and were not the subject of expert
consideration. However, at
the hearing of this appeal it
was common cause that these reports could be read as part of the
record.
[9] A Connors and
Vanderbilt questionnaire, completed by E’s maths teacher, Ms
Tlhapane in March 2016, that is about nine
months after the accident
shows that Ms Tlhapane scored E as restless, overly sensitive to
criticism, made excessive demands for
her time, failed to finish what
he starts, had difficulty learning and the like. However, Ms Tlhapane
noted in conclusion that
E was normal, with no impairment any more
than is expected with a typical child of the same age.
[10]
E’s mother, Ms M T testified. She gave convincing and
essentially unchallenged and un-contradicted evidence that
before the
accident E had started school in Lesotho and had passed Grade 1 in
Lesotho. The family then moved to South Africa and
E repeated Grade
1, not because of any problem or difficulty from his side but only
because of a change in syllabus between Lesotho
and South Africa. Ms
T testified that E never failed a year prior to the accident nor did
she receive complaints from teachers
about him prior to the accident.
E was a normal child without problems before the accident. Ms T
testified that on the day of the
accident E had been playing soccer.
On hearing of the accident she rushed to the scene and found E on the
ground and unresponsive.
It took an ambulance 10–15 minutes to
arrive. A neck brace was placed on E and he was taken to Jabulani
Hospital. Ms T accompanied
E to hospital. On the way to hospital, E
woke up and vomited blood. He did not know where he was. Ms T
testified that the accident
happened during the mid-year school break
and that E went back to school when it re-opened. Ms T testified that
E has changed since
the accident. He is forgetful, has mood swings
and becomes angry. He does not play with his friends like he did
before the accident.
She said that since the accident his
teachers complain about E not finishing his work.
[11]
Ms Tlhapane testified for the plaintiff. She taught E maths in
Grade 6 during 2015, during which year the accident happened
and in
Grade 7 during 2016. Ms Tlhapane gave evidence that E deteriorated
after the accident. She contacted his parents to discuss
the matter.
He did not complete class activities like he had previously. He had
become aggressive and was a different person. MsTlhapane
does
not appear to have been asked to explain the apparent contradiction
between her assessment of E in the Connors test and her
conclusion
therein.
[12]
Various experts testified. No useful purpose would be achieved
by trawling through their lengthy testimonies. The following
synopsis
suffices for present purposes. Pre-accident, E was average and normal
and had a normal life expectation. His repeating
grade 1 was not
because of a problem on his part but solely because of a change in
syllabus. Post-accident, E has problems, described
above which
trouble him now and which will trouble him in the future.
Pre-accident, E was vulnerable to the extent that there is
a high
unemployment rate which would have affected negatively his chances of
finding or sustaining employment. These considerations
remain
post-accident.
[13]
The question is, has the plaintiff discharged the onus of proving on
a balance of probabilities that E is more vulnerable
in the labour
market because of the accident and if so to what extent and more
particularly how does this increased vulnerability
translate into a
damages award ?
[14]
Ms Watts, a clinical psychologist testified for the plaintiff. She
confirmed her observations as set out above in the
relevant joint
minute. Her opposite number was not called to testify in
contradiction. There is no reason to reject her evidence.
[15]
Ms Mattheus, an educational psychologist testified for the
plaintiff. In her report she had concluded that, on the little
information available E would probably have completed grade 12
pre-accident “
with
an endorsement to continue with a Higher Certificate.”
In her report, she concluded, post-accident that E’s
pre-existing learning difficulties, as suggested by the educational
psychologists, could not account for his drop in academic performance
and that any pre-existing learning difficulties were exacerbated
by
the traumatic brain injury sustained in the accident. She went on to
conclude in her report that E will probably finish matric
but take
two years longer to do so. She writes in her report that E is
unlikely to pursue tertiary training given his socio-economic
background. This suggested inability to proceed to tertiary education
applies presumably to both pre and post-accident scenarios.
However,
litigants are effectively bound by pre-trial agreements by opposing
experts at least in the absence of fair warning to
the contrary. See
Bee v RAF
,
a decision of the SCA given on 29 March 2018, at paragraphs 64-79.
The agreement reached between the educational psychologists
that E
would, pre-accident have obtained matric and an NFQ level 5 higher
certificate stands and evidence to contradict the agreement
is
inadmissible.
[16]
Ms Sepenyane, an educational psychologist testified for the
defendant. She said that, in effect, pre-accident E would
have
obtained a matric with an NFQ level 5, that is a higher
certificate, post matric education. This concession, reasonably
made
read with the agreement set out above as to the likely pre-accident
tertiary education scenario calls for a finding that pre-accident
E
would probably have passed matric, albeit one year late because of
the change in syllabus and then have gone on to complete an
NFQ level
5, higher certificate.
[17]
On the question of the post-accident earning capacity of E, Mr Van
Blerk, an industrial psychologist testified for the
Fund. He
reasonably conceded that E will “
have
difficulties academically, behaviourally and occupationally “
[18]
Mr Jacobson, an actuary retained by the plaintiff, prepared a report
dated 9 March 2018. The Fund challenged the pillars
on which the
report is based, rather than the contents other than the pillars.
While the plaintiff contends for a higher case,
which has not been
proved, Mr Jacobson calculated damages, on the proven facts, at
R2 828 970 using 25% contingency deductions
both pre and
post-accident. In my view these deductions are fair given the
circumstances of the case particularly the unemployment
situation and
E’s young age. This amount has to be reduced by 10% given
the agreement on the merits, leaving an amount
of R2 546 073.
[19] Appellant’s
counsel asked us to make a draft order an order of court. It provides
for a trust to be formed to protect
the damages, for costs and
related issues.
19.1
The appeal is allowed with costs including those of senior counsel
where so
employed.
19.2
The order of the trial court is set aside and replaced with an order
in terms of
the draft
marked x as amended.
_____________________________________
G
.
WRIGHT
Judge
of the High Court
GAUTENG LOCAL DIVISION
I agree
___________________________________________
M.
MABESELE
Judge of the High
Court
GAUTENG LOCAL DIVISION
KEIGHTLEY
J:
[20]
I have read the judgment of my learned brother Wright J. While
I do not depart from him in finding that the appeal should
succeed,
in my view, there is a short and simple reason why this should be the
case.
[21]
In her submissions before the trial court, counsel for the Road
Accident Fund accepted in argument that the plaintiff had established
that he had suffered loss: the debate was around which actuarial
scenario presented by the actuary, Mr Jacobson, was better aligned
with the evidence. The trial court did not engage with this
debate between the parties, and instead, absolved the defendant
from
liability
[22]
In her written heads of argument before us on appeal, counsel for the
respondent repeated her concessions made at trial, and
she addressed
the court further in this regard. In her submissions she made
clear the limits of the respondent’s case:
it accepted that the
evidence established that the mild traumatic brain injury suffered by
the minor (the appellant) had, among
other things, neruopsychological
consequences which would impact on his scholastic achievement; it
further accepted that one of
the consequences of this was that his
entry into the employment market would be delayed by two years;
however, it contended that
with psychotherapeutic remedial
intervention, the appellant should retain his ability to achieve
what, but for the accident, he
could have hoped to achieve. In
other words, the respondent contended that the appellant’s loss
was limited to the
two-year period of delay before he would enter the
employment market.
[23]
This, then, was the narrow ambit of the appeal. The respondent
did not contend that the trial judge was correct in absolving
it of
liability. It accepted that the evidence established a loss
pertaining to the plaintiff’s future earnings flowing
from the
cognitive impairments caused by the mild traumatic brain injury.
The question was thus whether this loss should
be limited to, and
quantified based on, the two year delay in the appellant entering the
employment market, as contended by the
respondent, or whether it
extended to cover a loss of income flowing from the fact that the
appellant would not in fact now achieve
his pre-accident academic
level, as contended for by him.
[24]
It is so that in the appellant’s clinical psychologist, Dr
Watts recommended that psychotherapy might assist him to function
better in the workplace. However, the joint minutes of the two
clinical psychologists were clear: they agreed that: “
given
the time which has passed since E’s motor vehicle accident, it
is
unlikely that he will undergo any further physical
recovery for his neuropsychological problems
, although his
emotional/behavioural conditions should be subject to some
amelioration with treatment
.” (my emphasis)
[25]
In my view, this aspect of the joint minute puts paid to the
respondent’s submission. The appellant’s case
was
not that he would suffer a loss of earnings because he would not cope
in the workplace due to the emotional/behavioural problems
emanating
from the accident. His case was that the cognitive impairment
of his brain would prevent him from reaching his
pre-accident
potential of achieving a matric and a NQF level 5/6, and that
for
this reason
his earning capacity was less than it would have been but for the
accident.
[26]
The clinical psychologists agreed in the above-quoted portion of
their joint minute that these cognitive neurological impairments
would not improve, and that psychotherapy would only assist with the
emotional and behavioural aspects. It follows that according
to
both experts, psychotherapy will not solve the problem that the
appellant asserted was the source of his loss of earning capacity,
and hence the basis upon which his damages should be quantified.
In the circumstances, there is no evidence to support the
respondent’s basis for contending that his only loss will be
the two-year delay in entering the employment market.
[27]
This being the only basis on which the respondent ultimately opposed
the quantum of damages claimed by the appellant, the court
on appeal
must uphold the appellant’s claim.
[28]
For these reasons, I would uphold the appeal, and agree with the
order proposed by my learned brother Wright J.
[29]
I should add, in closing, that but for the limited nature of the
respondent’s defence of the appellant’s claim,
both at
trial and on appeal, I would have subjected the plaintiff’s
claim to greater scrutiny. In my view, the evidence
presented
to establish an alleged clear picture of the appellant’s poorer
school performance post-accident was not entirely
convincing.
The school reports show variable results by the appellant both
pre-and post accident. Even his latest school
reports show that
although his marks are poor, they are not out of sync with, and in a
number of instances surpass, the class average.
In my view,
therefore, had the case been run differently from inception, it may
well have been that the appellant would have had
a more difficult
time in establishing that the alleged (and in my view not clearly
demonstrated) drop in his school performance
was caused by his mild
traumatic brain injury. This is particularly so in view of the
fact that the experts agreed that he
may have been afflicted by
pre-accident cognitive difficulties to begin with.
[30]
Furthermore, nobody seems to have paid much attention for purposes of
the trial to other factors that may have affected his
school conduct
and performance: in particular, the onset of teenage years; the
school environment; moving to high school and the
additional demands,
both social and academic, that occur then; and whether the choice of
subjects (including continuing with maths
and not maths literacy; and
physical science) were appropriate to the appellant’s real
aptitude.
[31]
These are all factors that, in my view, it is important for a trial
court to be placed in a position to consider properly,
particularly
in relation to the causation element that lies at the heart of
delictual claims like this one. This is particularly
so in that
Road Accident Fund cases involve the public purse, and while it is
critically important to ensure that victims are compensated,
it is
equally important to ensure that the courts are placed in the best
position to make a proper determination as to the proven
damages.
_______________________________
R
.
KEIGHTLEY
Judge
of the High Court
GAUTENG
LOCAL DIVISION
Appearances:
On
behalf of the Appellant:
Adv
GJ Strydom SC
Instructed
by:
A
F Van Wyk Attorneys
011
– 680 3350
admin@afvanwyk.co.za
On
behalf of the Respondents:
Adv
NA Mohomane
Instructed
by:
TJ
Maodi Incorporated
011 025
4990 / 4991 / 6736 / 6737
admin@maodilaw.com
Date
of Hearing:
27
November 2019
Date
of Judgment:
?
November 2019