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[2020] ZAGPJHC 299
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MN obo O v Road Accident Fund (7489/2015) [2020] ZAGPJHC 299 (18 September 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
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 7489/2015
In the matter between:
M[…]: N[…]
O.B.O O[…]
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGEMENT
ALLY AJ
INTRODUCTION
[1]
This is a representative personal injury claim by Plaintiff for
damages arising from
injuries sustained by the minor child, O[…],
in a motor vehicle collision on 7 September 2013 in which the minor
child was
a passenger.
[2]
At the outset the Court was informed that the merits in this matter
had been settled
previously 100% in favour of the Plaintiff.
[3]
The following heads of damages were also previously settled
[1]
:
3.1.
Future medical and hospital expenses; and
3.2
General damages
[4]
The Court was accordingly only
required to deal with the issue of future loss of earnings.
[5]
At this point it is apt to mention that the Defendant was not
represented although
there were Attorneys on record. These Attorneys
were aware of set down and had not withdrawn as Attorneys of record.
The less said
of this conduct, the better.
[6]
I had requested Counsel for the Plaintiff to liaise with officials of
the Defendant
to ascertain their position in the matter. I was
informed that an offer would be emailed to Plaintiff’s
representatives and
the matter stood down for this purpose.
[7]
After reconvening, Counsel for the Plaintiff indicated that an
official dealing with
the matter had made an offer within her mandate
but that said offer was rejected and that Plaintiff intended
proceeding with its
case. The matter thus proceeded without
representation of the Defendant.
[8]
Plaintiff’s Counsel requested the admission into evidence of
all medico-legal
reports as well as the Joint Minutes of the
overlapping expert witnesses, which was then admitted into evidence.
FACTUAL
MATRIX
[9]
The minor child, sustained the following injuries:
9.1
Moderate to severe traumatic brain injury with a possible increased
risk of late onset post
traumatic epilepsy;
9.2
preserved cognitive abilities and deficits.
[10]
Plaintiff’s Counsel called one witness on behalf of the
Plaintiff which was Ms Elzette
Keenan, an Industrial Psychologist and
expert witness. The crux of Ms Keenan’s evidence, is that,
based on the Addendum Joint
Minute of the Educational Psychologists,
Lida Mȍller and Lisa Swart
[2]
,
the minor child would have attained a qualification of NQF Level 5
pre-morbid and a qualification of NQF level 3 post-morbid.
EVALUATION
AND ANALYSIS
[11]
Ms Keenan was questioned as to the differences between her report and
that of Defendant’s
Industrial Psychologist, Mr Henry Van
Blerk. The main difference, in my view, arises from reports prepared
by the Educational Psychologists
for the Plaintiff and Defendant.
[12]
However, it must be pointed out that as reflected above, the
Educational Psychologists agreed
on the pre-morbid post-morbid
qualifications of the minor child.
[13]
Counsel for the Plaintiff submitted that reliance should not be
placed on the report of Defendant’s
Industrial Psychologist for
the reason that,
ex facie
his report, he had not considered the Joint Minutes of the various
experts and importantly the Joint minute of the Educational
Psychologists. Counsel further submitted that Mr van Blerk’s
report be rejected
in toto
.
[14]
In my view, the correct approach, in this matter would be to accept
the views expressed by Ms
Keenan where they differ from that of Mr
van Blerk. The ultimate purpose of experts, in these circumstances,
is to express opinions
on the facts as relayed to them and on an
assessment of expert reports outside of their fields of expertise.
Accordingly, where
the opinion of Mr van Blerk accords with common
sense and logic, it will be accepted.
[15]
Accordingly, if one has regard therefore to the evidence of Ms Keenan
as read with the medico-legal
reports admitted, one must accept the
opinion of the Education Psychologists in respect of the
qualifications pre-morbid and post-morbid
of the minor child as
expressed above.
[16]
This brings the Court to the assessment of the minor child’s
loss of earnings as a result
of the injuries sustained and the
resultant educational and employment opportunities.
[17]
I have accepted the calculations provided in the Addendum Actuarial
report
[3]
of the Plaintiff. However, as is trite
[4]
,
the Court is vested with determining the contingencies to be applied
in the given circumstances.
[18]
The Court accepts that the minor child would have retired at the age
of 65 years and earned
R6 552 350
– 00
pre-morbid. In respect of
the post-morbid position, the minor child would have earned an amount
of
R671 929 - 00.
[19]
In applying contingencies in this matter, I have taken into
consideration the present economic
situation, which includes the
availability or not of corporate sector employment, as well as the
COVID 19 pandemic as factors influencing
the ultimate percentages to
be applied. In so doing I am of the view that it is fair and
reasonable in the circumstances to apply
the percentages represented
hereunder.
CONCLUSION
[20]
In the result I have decided to apply a 25% contingency pre-morbid
and a 30% post morbid which
amounts to the following:
Pre-morbid:
R6 552 350 – 00
Less:
R1 638 088 – 00
Total:
R4 914 262 – 00
Post-morbid:
R671 929 – 00
Less:
R201 579 – 00
Total:
R470 350 – 00
Total
loss of future earnings: R4 914 262 – 00 –
R470 350 – 00 = R4 443 912 – 00
COSTS
[21]
There is no reason why costs should not follow the result in this
matter.
Accordingly,
the following Order will issue:
a)
Defendant to pay the Plaintiff the amount
of
R4 443 912 – 00;
b)
Interest thereon at the prescribed rate
from date of judgment to date of payment;
c)
Defendant to pay the Costs of suit.
_______________________
G
ALLY
Acting
Judge of High Court
Gauteng
Local Division, Johannesburg
APPEARANCES
HEARD
: 30 July
2020
DELIVERED
:
18
September 2020
Applicant
:
Adv. B.
Mologoa
Mathopo
Attorneys
Legae
La Ditlou
Crown
Gardens
tshepo@mathopo.co.za
082 643
5831
Respondent
:
No
representation
[1]
Caselines:
074-1
[2]
Caselines
011-3
[3]
Caselines
005-23
[4]
Southern
Insurance Association v Bailey NO
1984 All SA 98
at 113G