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[2020] ZAGPJHC 120
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N obo N v Road Accident Fund (41442/2015) [2020] ZAGPJHC 120 (8 April 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
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: 41442/2015
In
the matter between:
N[….]:
L[….] obo
Plaintiff
N[….]: O[….]
and
THE
ROAD ACCIDENT FUND
Defendant
HEARD ON:
12 FEBRUARY 2020
JUDGMENT
MIA, J
INTRODUCTION
[1]
This
matter came before me as a stated case.
[2]
In
view of the facts placed before me and having in mind the purpose of
Rule 33(4) of the Uniform Rules of Court, aimed at facilitating
the
convenient and expeditious disposal
of matters I adjudicated the matter by way of
the stated case as agreed between the parties. I was
thus
only requested to determine the quantum based on the appropriate
contingency deductions to be applied to the minor’s
pre-accident and post- accident postulated earnings.
[3]
The
plaintiff in her capacity
nomine
officio
,
acting on behalf of the minor and defendant agreed that
the dispute be adjudicated on the following agreed facts
in the
stated case as follows:
3.1 The plaintiff instituted action against the defendant in terms of
the Road Accident Fund Act, 56 of 1996, (the Act) for injuries
sustained by the minor child. The minor child was injured on 2
February 2015 when a bus drove over her. She was a pedestrian waiting
with her fellow school mates for her lift to transport her home. Her
friends, whilst jostling, accidently pushed her into the path
of an
oncoming bus which drove over her.
3.2It was recorded the minor child was examined by the following
experts:
DISCIPLINE
PLAINTIFF
DEFENDANT
3.2.1 Neurosurgeon
Dr Ntimbane
Dr Chula
3.2.2 Orthopaedic surgeon
Dr Kumbirai
3.2.3 Psychiatrist
Dr Vorster
3.2.4 General Surgeon
Dr Molati
3.2.5 Educational Psychologist Ms
Gibson
Ms Monyela
3.2.6 Neuropsychologist
Ms Gibson
Ms Moloisane
3.2.7 Occupational Therapist
Ms Mahlangu
3.2.8 Actuary
Munro Actuaries
Joint minutes were filed where the parties instructed experts in the
same disciple, namely the neurosurgeon, neuropsychologist
and
educational psychologist.
3.3 Dr Z Shaik, an Industrial
Psychologist report latter two scenarios were to be considered
out of
the four scenarios she proposed in respect of the employment
prospects of the minor child.
3.4 The experts agreed that the
minor child was physically fit and healthy prior to the accident
and
she had no previous head injury. They agreed further that she
sustained a severe traumatic brain injury. She required emergency
resuscitation and was admitted to the intensive care unit where an
intercostal chest drain was inserted. She has memory impairment,
neurocognitive deficits and post traumatic chronic headaches. Her
risk of post traumatic epilepsy has increased to between 10%-15%
which is three times more than the risk the average person faces.
3.5 She also suffered blunt chest trauma which fractured her ribs and
right haemo-pneumo-peritoneum; a close fracture of the left
humerus
and an open book pelvic fracture. Whilst the fracture is united, she
experiences pain in her left hip which is exacerbated
by prolonged
standing and walking. There is also shortening of her right lower
limb. She sustained a diaphragm injury and a diaphragmatic
repair was
effected. She also sustained a serosal tear at the recto-sigmoid and
a liver laceration was packed. It is envisaged
that she may
require a procedure for small bowel obstruction as a result of the
laparotomy procedure which was performed.
3.5 In terms of an order dated 8
November 2017, the defendant previously acknowledged its liability
100% to compensate the minor child for all proved or agreed damages
arising out of the accident which occurred on 2 February 2015.
The
issue of general damages in the amount of R900 000.00 was resolved
previously and the defendant was directed to furnish an
undertaking
in terms of Section 17(4) of the Act. The formation of a Trust in
favour of the minor child was also authorised and
the Trustee
appointed with the approval of the Master. The Trust has been
registered.
[4]
The
parties agreed that the following issues serve to be adjudicated
during these proceedings:
1.
Whether
the minor child would have obtained a Grade 12 education and a 2 year
Diploma(NQF 6) or whether she would have obtained
a Grade 12
education and completed a 3 year degree (NQF 7);
2.
The
appropriate contingency to be applied to the pre- and post -accident
earnings;
3.
Whether
the defendant is liable for punitive costs including costs
de
bono propiis
for its obstructionist attitude since case management.
[5]
The
plaintiff's case, as set out in the stated case is that:
5.1 The minor child was rendered
unconscious and taken to Lenasia South Hospital before being
transferred to Chris Hani Baragwanath Hospital where she regained
consciousness after three days. The minor child was hospitalised
for
a period of two and a half months and was at home thereafter
recuperating for most of the academic year given the nature of
her
injuries.
5.2 The educational psychologists
agreed that the minor child had above average intellectual
abilities
prior to the accident and her parents did not have any intellectual
difficulties. It was thus likely that she would have
been fully
employable had it not been for the injury. They confirm what the
neuropsychologists find with regard to the negative
impact of the
accident which is likely to derail her social, affective and
scholastic functioning and intellectual area. Further
that it will
increase as she progresses into higher grades and impact on her
educational limits. They foresee her only reaching
an NQF 4 level at
a TVET College.
5.3 The Industrial psychologist
proposed four scenarios and having regard to the child’s
academic history, the two most probable optimistic scenarios are the
following. The first scenario proposed that the minor child
would
reach matric and achieve a tertiary diploma (NQF 6). She would then
enter the open market at Patterson Level B2/B3 and qualify
for
specialised or senior supervisory positions at Patterson Level B3/B4.
In the second scenario the minor child would obtain a
matric with a
degree level (NQF 7) and enter the labour market at Patterson Level
B3/B4 and qualify for employment at Patterson
D1 Plus Level. Her
earnings would plateau at around age 40 years old after which she
would only receive inflationary increases.
She would have worked
until the normal retirement age of 65 years if the accident had not
reduced her working capacity.
[6]
Plaintiff’s
Counsel argued among others that :
In respect of the first question to be determined that in taking into
account the assessment of the experts, the minor child was
of above
average intelligence prior to the accident with a bright future ahead
of her. Given that both her parents were educated
and had no
educational difficulties and her father completed grade 11 it was
likely that she would achieve a higher level. She
argued that there
was a changing landscape with opportunities being created for young
students and especially for women by NGO’s
as well as the
State. It was thus more likely in view of her above average academic
ability before the accident and the opportunities
being created for
women that the minor child would have obtained a matric with a
Bachelors Pass and would then have obtained a
degree as opposed to a
diploma. She referred to the decision in
Southern Insurance
Association v Bailey
N.O.
1984(1) SA 98 (A) which held that
a court could calculate damages either by making an
estimate depending on what is
fair and reasonable or utilise
mathematical calculations both of which amounted to guesswork.
Regarding this decision she argued
that Courts did not consider the
inequities present within society and the position of the girl child
or the opportunities being
presented to advance women when that case
was decided.
[7]
She
argued further that in light of the above the Court should consider
that not all contingencies were adverse. A particular plaintiff
might
have had prospects of advancement and in considering the
contingencies the Court ought not ignore the rewards of fortune.
Therefore she argued a contingency of fifteen percent should be
applied to the minor’s pre-accident earnings which would
reduce
her earnings by almost 55 months. This did not take into
account the downward adjustments for mortality, inflation,
taxation
and capitalisation in the actuarial calculation. This would translate
into a pre-accident loss of R8 703 187.60 calculated
as R10 239
044.00-15 %( R1 535 856.60) = R8 703 187.60.
[8]
In
the alternative, she argued that if the Court adopted the alternative
contingency deduction of half a percent per year for each
year of the
remaining working life of the plaintiff the contingency applicable
would be twenty one and a half percent (21.5%) based
on the Koch
Quantum Yearbook. The loss of earnings would thus be calculated as
R10 239 044.00 - 21.5% (R2 201 394.40) = R 8 037
650.00. If the
contingency amount were rounded off to 20% the loss would be R8 191
235.20.
[9]
Ms
Docrat argued that the injuries were common cause and it was evident
from all the experts’ reports that the minor child
had serious
injuries resulting in extended hospitalisation and recuperation at
home. She only returned to school the following
year when she
re-enrolled in Grade 2 having lost most of the previous year. She has
serious neuropsychological and cognitive deficits
due to the serious
traumatic brain injury which affects all aspects of cognitive and
mental functioning. This impacts her academic
progression as she will
at best now only realise a Grade 8 (NQF4) at a TVET College or a
Special Education School due to the cognitive
and psychological
difficulties which impede her progress.
[10]
This
has implications for her career and earning progression as well. She
will not be equipped for skilled labour. She has a leg
length
discrepancy affecting her ability to stand for long periods which
limits her choice of employment. She has a 3-5% greater
chance of
developing epilepsy than the general population which precludes her
from a range of work such as working with children,
on roads, driving
and working with sharp objects or with heat.
[11]
She
argued further that the physical injuries sustained as well as the
cognitive and psychological difficulties she experiences
will impede
her progress and she will not progress as she would have had
the accident not occurred. Her increased risk of
epilepsy and
declining health compromise her employment prospects on the open
market. She may be prejudiced by having to take time
off from work to
attend treatment more frequently than had the accident not occurred,
such as to adjust the shoe raise from time
to time or psychotherapy
when she realises the limits of her cognitive difficulties emanating
from the accident.
[12]
Ms
Docrat argued that due to the above factors and having regard to the
employments statistics of disabled persons it is unlikely
that the
minor child will secure continuous employment and suggested a higher
contingency suggested by Dr Shaik be applied at between
60% - 70%.
There is only a 30%-40% prospect that she will secure any form of
unskilled labour over a working life of 49 years.
She is 12.5 years
old in Grade 5 and will likely leave school in Grade 8 having
attended a Remedial School. Her post accident loss
of earnings is
thus calculated as R2 018 173.00 – 70 %( R1 412 721.00) = R605
452.00. The total pre-accident and post-accident
loss would thus be R
8 703 187.60 – R 605 452.00 = R8 097 735.60.
[13]
The
defendant's case as set out in the stated case is that:
13.1 The facts as set out above are not in dispute.
The defendant agreed to pay 100% of the plaintiff’s
proven or
agreed damages. The only issue in dispute at this point is the
contingencies applicable. The defendant argues that such
contingencies are within the prerogative of the court.
13.2 The contingencies above will entail the court
considering life expectancy, likelihood of illness, accident
or
unemployment that would have occurred and affected the minor child’s
life.
13.3 The defendant relies on a contingency of 25%
for children (see
Bailey NO
1984(1) SA (A) and
Road Accident Fund v Guedes
2006 (5) SA 583
SCA)
and 20% for youth. The defendant’s
view is nothing in the case warrants a departure from the normal
contingencies because
the injuries have not impeded the plaintiff’s
development and enjoyment of life to the point where she is dependent
on ventilation
for her existence and was coping with Grade 5 at an
average level.
13.4 According to the minor child they had not commenced
multiplication and division in Grade 3 and she would have required
support
to cope with academic work. It was not conclusive that the
negative assessment could have been due to a pre-existing need. This
rules out an entitlement to a higher contingency post the accident.
13.5 The defendant also challenged the placement in a remedial school
to provide an educational intervention as it is contrary
to what
their expert advised independently and because the advice does not
appear in the plaintiff’s expert’s report.
[14]
It
was argued on behalf of the defendant that it cannot be accepted that
the minor child would obtain a degree. It was necessary
to be
realistic having regard to the current schooling environment the
minor child was in. The child reported to the educational
psychologist, Ms Monyela that they had not yet commenced with
multiplication and division in Grade 3. This did not take account
of
her own performance but was a reflection of the standard of education
available in the community the minor child lived in which
would
influence her future prospects.
[15]
Ms
Magano argued further that the Court could not ignore that the minor
child hailed from a poor community. Whilst the argument
made on
behalf of the plaintiff was that student bursaries were available
which would enable her to pursue a tertiary education,
media and news
broadcasts indicated that students were not receiving funds as
envisaged from NSFAS. Where students were receiving
funds this
covered academic tuition and parents were still required to cover the
cost of books, and food and that there was a fifty
percent dropout
rate of students.
[16]
Ms
Magano did not distinguish between pre-accident and post-accident
loss of income. She argued that the defendant agreed that having
regard to the two probable scenarios proposed by the industrial
psychologist it was more likely that the minor child would obtain
a
diploma. The experts agreed she would require remedial tuition and
she argued this she could obtain at the school she attended
and in
doing so improve her results. She pointed out that it was
contradictory for the educational psychologist to suggest that
the
minor child would drop out of school earlier in Grade 8 but then
maintain that she would achieve an NQF 4 level. She withdrew
her
submissions regarding the minor child’s change in quality of
life based on Professor Fleming’s report as the report
had not
been filed.
[17]
Ms
Magano proposed an alternative manner to determine the child’s
loss of earnings. She provided the table below as the proposed
calculation. This entailed taking the average of the loss between the
two scenarios proposed by Dr Shaik and applying a 25% contingency
to
the median and then using the Munro Actuary post-accident
projected loss and applying 25% yielding a total loss
of earnings of
R
5 204 839,88
.
Defendant’s
Actuarial Calculation with Contingency Deduction
Scenario
4 – Grade 12 and Degree
R10
239 044
Scenario
3 – Grade 12 and Diploma
R
7 676 875
Subtotal
R
17 915 919,00
Median
amount
R
-8 957 959,50
Pre-morbid
Earnings (Had Accident not occurred)
Future
Loss of Earnings
R
8 957 959,50
R
8 957 959,50
Less
Contingency
25,00%
R
-2 239 489, 88
Total
Pre-morbid Earnings
R
6 718 469,63
Post-morbid
Earnings (Having regard to the Accident)
Future
Loss of Earnings
R
2 018 173,00
R
2 018 173,00
Less
Contingency
25,00%
R
-504 543,25
Total
Post-morbid Earnings
R
1 513 629,75
TOTAL
LOSS OF EARNINGS
R
5 204 839,88
[18]
In
attempting to determine the appropriate contingencies to apply this
Court must have regard to the basic principle that the compensation
must be assessed so that it places the minor child in the
position she would have been in had the accident not occurred.(see
Sandler
v Wholesale & Coal Supplies Ltd
1941
AD 194.)
In
Road
Accident Fund v Guedes
2006 (5) SA 583
SCA the Court held at p586:
“
It
is trite that a person is entitled to be compensated to the extent
that the person’s patrimony has been diminished in consequence
of another’s negligence. Such damages include the loss of
future earning capacity ….
By
its nature such an inquiry is speculative, and a court can therefore
only make an estimate of the present value of the loss that
is often
a very rough estimate (see, for example,
Southern
Insurance Association v Bailey
N.O.
1984
(1) SA 98
(A). The court necessarily exercises a wide discretion when
it assesses the quantum of damages due to loss of earning capacity
and has a large discretion to award what it considers right.”
[19]
In
RAF
v Marunga
[2003] All SA 148
SCA at para [27] the Court referred to the
difficulty and usefulness in considering the awards in
previously cases
“
[27
]
I
n
the
Wright
case (
Corbett
and
Honey
Volume 4 E3-36) Broome DJP stated:
"
I
conside
r
tha
t
whe
n
havin
g
regar
d
t
o
previou
s
award
s
on
e
mus
t
recognis
e
tha
t
ther
e
i
s
a
tendenc
y
fo
r
award
s
now
to be higher than they were in the past. I believe this to be a
natural reflection of the changes in society, the recognition
of
greater individual freedom and opportunity, rising standards of
living and the recognition that our awards in the past have
been
significantly lower than those in most other countries."
[28
]
Th
e
Wright
case (
supra
)
at E3-34 to E3-37 is instructive. The learned trial Judge considered
all the relevant circumstances and set out in detail the
reasoning
that motivated the award.”
[20]
The
fund had already agreed to its liability 100% on the agreed or proven
damages and on the basis of the facts before me I am required
to
apply the contingencies applicable to the pre-accident and post
-accident projected income as determined by the actuarial calculation
which the parties have agreed upon determined by Munro Actuaries.
[21]
In
deciding the first issue in dispute I have had regard to the
defendant’s submissions that the NSFAS has experienced
difficulties.
Without Ms Magano making submissions on the reasons for
these problems and that they are insurmountable it would be too
speculative
to extrapolate the teething problems experienced to a
date in the future. States and Non Government Organisations endeavour
to
realise the 3
rd
Millennium Development Goal which is “to realise equality and
empower[ment] of women”. Funding is crucial to this goal
and
the present problems cannot be extrapolated to the future without
identifying the problems and indicating that there is no
solution. It
is also short-sighted to assume that this would be the only source of
financial assistance in view of the opportunities
being made
available for young students and women.
[22]
Regarding
the finding by Ms Monyela that the child was not yet taught certain
parts of the mathematics syllabus in Grade 3; I am
of the view that
this is a reflection of the Grade or particular teacher or school and
not the minor child’s ability. With
the opportunities for extra
tuition available online accessible through local libraries it is
possible that the minor child could
seek to improve her results
through extra tuition at school, online or locally in the community.
In applying herself she could
improve her results so as to obtain her
matric with a Bachelors Pass entrance. South Africa like many third
world countries has
undertaken, despite the scarcity of resources, to
take steps to realise the 3
rd
Development Goal which speaks to promoting gender equality and
empowering women. In view hereof it is likely that the minor child
would have been the recipient of some form of assistance from the
State or a Non-Governmental Organisation toward realising this
goal
of empowerment of women with regard to achieving equality. It is thus
possible that she would have received the necessary
financial and
other assistance to obtain a degree.
[23]
In
assessing the compensation to be awarded, on the facts before me, I
must consider what is just and equitable having regard to
the various
contingencies. The 25 % contingency which is applied by the defendant
on the pre-accident calculation submitted by
Ms Magano is usually
applied to children and 20% to youth based on Koch’s Quantum
Yearbook. The alternative calculation of
(.5%) half percent per year
brings the contingency calculation to 21.5% on the plaintiff’s
calculation. At the age of 12
years old the 21.5 % contingency is
appropriate having regard to all the factors namely her background,
schooling and the challenges
in the education system highlighted by
Ms Magano.
[24]
The
defendant’s application of the combination of the income of two
scenarios is not useful as it does not take cognisance
of the view s
of the experts who are agreed in their joint minutes on the child’s
prospects. The defendant relies on the
plaintiff’s
post-accident income but does not apply a higher contingency as
indicated by the industrial psychologist. The
calculations
proposed by the defendant thus do not adequately address the
contingencies in a fair and equitable manner sufficiently
as the
median between two scenarios and the 25% contingency does not
reflect her ability prior to and post the collision.
On the other
hand Ms Docrat argues for a 70% contingency deduction on the
post-accident income. The industrial psychologist’s
findings
support a higher post-accident contingency because of the minor
child’s reduced abilities which impact on her future
earning
potential negatively. I am of the view that 70% is too high a
percentage as the reports do not indicate that the
minor child
is completely unemployable, consequently I have applied a
contingency of 60% which calculates the post-accident
future loss of
earnings as R 2 018 173.00- (50%) R1 210 903.80 = R 807 269.20. This
brings the total future loss of earnings to
R 8 037 650.00- R 807
269.20= R 7 230 380.80.
COSTS
[25]
Lastly
the issue of costs.
[26]
On
the issue of costs, Ms Docrat submitted that the defendant had been
obstructionist throughout the course of the matter. It is
on record
that the presiding judge at the case management conference identified
this attitude of the defendant as one of the issues
and ordered it to
show reasons why it should not be liable for a punitive costs order.
The defendant’s attorney was to indicate
before 6 February 2020
whether the issues identified at case management were resolved and
they had failed to do so until the matter
was allocated. The
defendant’s failed to do so until the matter was allocated on
11 February 2020. The Court noted the defendant’s
attorney had
arrived late on the 12 February 2020; counsel was not present when
the matter called. The matter had to stand down
for forty five
minutes while the defendant’s team sought to ascertain whether
Dr Fleming’s report had been filed. The
report had not been
filed. It could hardly be relied on. It showed a lack of
preparation. This conduct, counsel for the plaintiff
submitted
warranted a punitive costs order on an attorney client basis. She
abandoned her initial request for costs
de
bonis propriis.
[27]
Counsel
for the defendant submitted that a cost order
de
bono propriis
could not be granted where there was no written case made out to
which the defendant’s attorney could respond to. According
to
instructions she received, her instructing attorney did contact the
plaintiff’s attorney as instructed by the presiding
judge in
the pre-trial conference. The defendant had made the necessary
concessions as advised by counsel. The further difficulties
experienced, she submitted, were due to both counsel not being able
to meet the undertaking made in chambers because of reliance
on
typists, traffic and family responsibilities.
[28]
It
is trite that costs are within the discretion of the court and the
party who is successful is entitled to costs. Ms Docrat abandoned
her
request for a costs order
de
bonis propriis
despite
her views on the conduct of the defendant’s legal
representatives set out earlier in this judgment. In my view, the
communication between both counsel was difficult and strained which
would have impacted on the ease with which the matter could
have
proceeded. None of parties nor the public purse should have to bear
the costs for the difficulties counsel relied on for the
delay in
dealing with this matter as speedily as it was supposed to be. The
reasons are private and should not have been allowed
to have crept
into dispensing justice speedily, even if counsel agreed on them. I
however do not believe that a punitive cost order
even on the
attorney and client scale is necessary.
ORDER
[29]
In
the result, I grant the following order.
1.
Judgment
is granted in favour of the plaintiff for payment of the sum of R 7
230 380.80.(Seven million, and two hundred and thirty
thousand, three
hundred and eighty rand, and eighty cents)
2.
The
defendant to pay the costs on the party and pay scale.
S C MIA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant
:
Adv.
F.F. Docrat
Instructed
by
:
B Segaole Attorneys
segoaleb@webmail.co.za
On
behalf of the respondent
:
Adv. F.
Magano
Instructed
by
: Z & Z Ngogodo
Attorneys Inc.
chepape@njhblaw.co.za
Date
of hearing :
11& 12 February 2020
Date
of judgment
: 8 April
2020