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[2020] ZAGPJHC 49
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N L obo K L v Road Accident Fund (44466/2018) [2020] ZAGPJHC 49 (10 February 2020)
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 LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
44466/2018
In the
matter between:
L:
N
obo
Plaintiff
L: K
and
THE
ROAD ACCIDENT FUND
Defendant
HEARD ON: 10 FEBRUARY
2020
JUDGMENT
MIA, J
[1] On
10 February 2020, counsel for the plaintiff and defendant handed up
various documents, the first being exhibit 1, being the
agreed facts
and opinions extracted from the expert’s reports; discovered
documents; and pre-trial minutes. The defendants
produced no expert
minutes. The plaintiff’s experts reports were the only reports
on which the matter was to be determined.
The remainder of the
documents related to the contingency fee agreement and an
affidavit to set up a trust for the protection
of the minor. The
plaintiff sued the defendant in terms of the
Road Accident Fund Act,
56 of 1996
, for injuries sustained by her minor child during a
motor-vehicle collision which occurred on 10 March 2018.
[2]
The plaintiff claimed damages from the defendant in her
representative capacity on behalf of her minor child, aged 12 years
and 9 months. The collision causing the damages occurred when the
minor child was 10 years old. The parties agreed that this action
be
determined on the basis of the agreed facts as contained in exhibit
1. The court was also referred to the actuarial calculations
to
assist with the calculation regarding the general damages and future
loss of earnings to be determined.
[3]
The defendant accepted 100% liability to compensate the plaintiff in
her personal and representative capacity for all damages
suffered by
the minor child as a result of the injuries sustained during the
collision. The defendant further undertook to deliver
an undertaking
for future medical and hospital expenses and modalities as envisaged
in
section 17(4
) (a) of the
Road Accident Fund Act.
>
[4] On
the day of the collision the child was on his way home from the
swimming pool. He was crossing the road when he was hit by
a motor
vehicle at around 18h00. He was hospitalised at Charlotte Maxeke and
was in the Intensive Care Unit for a week and transferred
to a
general ward thereafter. He was hospitalised from 10 March 2018 to 19
March 2018. He sustained injuries to his head,
face and his
left hip region. After receiving treatment he still experiences
health and mobility issues. His injuries will
be discussed further
below.
[5] The minor child was
examined by the following experts:
5.1 Dr Read (Orthopaedic
Surgeon);
5.2 Dr G Marus
(Neurosurgeon);
5.3 Ms A Cramer (Clinical
Psychologist)
5.4 Ms L
Jacquire(Occupational Therapist);
5.5 Prof. L.A. Chait
(Plastic Surgeon)
5.6 Ms A Mattheus
(Educational Psychologist)
5.7 Ms M Hough
(Industrial Psychologist)
5.8
Munro Actuaries
[6]
The defendant previously admitted the medico legal reports of the
plaintiff’s orthopaedic surgeon, clinical psychologist,
plastic
surgeon and neurosurgeon but did not admit the severity of the minor
child’s head injury until the 10 February 2020.
The defendant
subsequently admitted the plaintiff’s reports on the
occupational therapist, all the psychologists, including
the
industrial psychologist and the actuarial calculation.
[7]
The court is required to quantify the general damages and the minor’s
future loss of earnings.
[8] According to the
experts the minor sustained the following injuries:
8.1
an
open depressed occipital skull fracture with resultant moderate to
severe brain injury and lacerations to the skull;
8.2
comminuted
fracture of the superior pubic ramus
8.3
left
ear laceration;
8.4
chest
wall abrasions;
8.5
small
amount of free fluid in the abdomen;
8.6
soft
tissue injury to the pelvic region.
The
minor only woke up after a week and remained confused until 17 March
2018 according to nursing staff records. He was kept sedated
on
morphine and Dormicum.
[9]
The child returned to school three months after the collision and his
mother received complaints that he was unco-operative
and preferred
to play outside. He failed his June exams and was condoned at the end
of grade 5 without writing exams. He is prone
to short temperateness,
experiences occasional headaches and has undergone behavioural
changes. He does not like doing homework
and prefers to play outside.
Cold weather aggravates the pain in his pelvis. He also suffers from
impaired balance post the collision.
He has also stopped playing
sport at school.
[10]
The orthopaedic surgeon indicates he will require an annual
consultation to follow up on his pelvic X-rays until he reaches
maturity and provision needs to be made for future surgery. The
neurosurgeon indicates a moderately severe concussive injury based
on
the child’s lack of consciousness for a week and his inability
to recall what occurred and how he got to the hospital.
The
conclusion is thus with the post traumatic amnesia displayed, his
injury appears to be compatible with a moderate to severe
brain
injury. Both his personality change and the poor academic performance
are indicative of the moderate to severe brain injury
according to
the neurosurgeon.
[11]
The occupational therapist indicates he scored below average for
motor co-ordination and will require occupational therapy
to address
this shortfall. The various scars on his knee, shin, scalp and
forehead will also require attention. The plastic surgeon
indicates
that whilst all these can be treated the minor will still be
permanently disfigured, impacting on future recreation and
employment
opportunities. According to the clinical psychologist his
cognitive functioning, memory and concentration is impacted
and this
in turn affects his academic performance. The cognitive difficulties
according to this expert are considered to be related
to the cerebral
damage. The minor is also considered to have suffered losses in
scholastic functioning and academic progress as
a result of the
accident.
[12]
The educational psychologist noted that he had pre-existing learning
difficulties evidenced by his repeating certain grades.
His absence
from school and the head injury impacted on his learning ability
further and on his academic performance. It is concluded
that he
would struggle in a mainstream school and would be best placed in a
vocational school. He would most likely leave this
setting at the age
of 18 years with a NQF level 2 and acquire a vocational skill such as
welding or spray painting, making him
eligible for sheltered
employment.
[13] The industrial
psychologist opines that in the pre-morbid scenario if the minor had
completed the Higher Certificate or Higher
Certificate Courses he
could have entered the semi-formal labour market where he would have
been paid a basic salary according
to the Paterson scales, plus a
13
th
cheque. It is envisaged he would have progressed to
the Paterson level C1 where he would have reached the occupational
ceiling
and would not have progressed further after the age of 45
years old. Increases in his income thereafter would have been
limited
to inflationary increases. The post morbid scenario indicates
that he will only be eligible for sheltered employment. His earnings
and future prospects will be limited and insignificant. There are
limited opportunities for sheltered employment coupled with high
unemployment rates. In view of the above the industrial psychologist
is of the view that the minor will remain unemployable for
the rest
of his life.
FUTURE
LOSS OF INCOME
[14]
An
actuarial report was handed in by agreement between the parties. The
actuary's method of calculations as well as the assumptions
on which
the calculations were based, has not been disputed. The minor’s
income was projected at R172 050.00 per year from
January 2028, with
a ceiling income of R403 300.00 per annum being reached in the year
May 2052. His projected income was estimated
at R 5 402 700.00. A 35
% contingency was applied in view of his back ground. He attends a
school which is overcrowded and does
not receive any extra attention
to address the learning difficulties he experiences, he repeated one
grade three times; he comes
from an impoverished background and his
mother was not able to support him to improve his academic
performance. He lives in overcrowded
conditions in a two bedroom home
with extended family. Counsel for the plaintiff argued that whilst a
20 % contingency would ordinarily
be applicable in view of the above
factors the contingency was increased to 35% to accommodate the above
factors. This results
in a deduction of R1 890 945.00, bringing the
future loss of earnings to R3 511 755.00. The contingency percentage
is appropriately
applied having regard to the factors considered
above.
GENERAL
DAMAGES
[15]
In support of the claim for general damages counsel referred the
court to various cases. In
N.
obo N. v Road Accident Fund (60812/14) ZAGPPHC 1116
(1 November 2016), a thirteen year old boy suffered a brain injury
and lacerations to the head. The brain injury caused irreversible
significant long term neurocognitive sequelae and was described as a
severe brain injury. The minor was awarded R1 400 000.00 bringing
the
current value to R1 600 000.00. In
Minnie
NO v Road Accident Fund
2012 (6A6) QOD 82 (GSJ) the minor would only have been able to work
in sheltered employment after a serious head injury. The court
awarded R 800 000.00 which bears a current value of R 1 271 000.00.
In view of the above awards both counsel agreed that the amount
of R
1000 000.00 was a fair amount.
[16]
I accept the basis for calculations set out in the actuary's report.
I turn to deal with the contingency allowance to be made.
Counsel for
the plaintiff and defendant agreed with the contingency allowance of
35%. The allowance to be made in respect of contingencies
falls
within this Court's discretion. The court has a wide discretion is
evident from the judgment in
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98 (A) at 116G–117A. In the
assessment of the appropriate allowance for contingencies the court
has taken into account plaintiff's tender age, his impoverished
background, his learning difficulties prior to the collision and
subsequently. These factors would have impacted on his future career
prospects. Having regard to these considerations the court
is of the
view that the contingency deduction of 35% is appropriate.
[17]
Having considered all relevant factors and experts reports and the
case law referred to, the court is of the view that the
sum of R1
000 000.00 would constitute fair and adequate compensation in
respect of the plaintiff's general damages and the
amount of R 3 511
755.00 is a fair amount of compensation for the plaintiff’s
future loss of earnings.
[18]
In conclusion, the full amount for general damages and loss of income
is therefore R 4 511 755.00 as provided in the draft
order handed up.
The draft order made provision for the applicable rate of interest,
the undertaking to be furnished in terms of
section 17
(4) (a) of the
Road Accident Fund Act, 56 of 1996
. I have also noted the affidavit
regarding the trust to be set up as well as the contingency fee
agreement which all appear to
be in order.
[19]
Having considered the exhibits and having heard counsel herein I make
the following order:
1.
The draft order marked “ X” is made an order of court.
_________________________________________________
S C MIA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On behalf of the
plaintiff
:
Adv. P.
Uys
Instructed
by
: Kruger &
Pottinger Attorneys
On behalf of the
defendant
:
Adv. V.
Maqethuka
Instructed
by
: Mathipane
Tsebane Attorneys
Date of
hearing
: 10 February
2020
Date of
judgment
: 12 February
2020