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[2020] ZAGPJHC 231
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N K v Road Accident Fund (00370/2018) [2020] ZAGPJHC 231 (21 September 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:00370/2018
In
the matter between:
K:
N
OBO
Plaintiff
N
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
DIPPENAAR
J
:
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e-mail. The date and time
for hand-down is deemed to be 10h00 on the 21st of September 2020.
[1]
This is a damages action instituted by the
mother and natural guardian of N K in her representative capacity
(referred to as “N”
or “the minor” where
appropriate), who was born on 5 February 2010 and was seven years of
age when he was knocked down
by a motor vehicle whilst he was
crossing a road in Dlamini, Soweto on 22 March 2017. Liability had
been settled between the parties
earlier in terms of which the
defendant accepted 100% liability for the plaintiff’ proved
damages.
[2]
The only issues to be determined at the
trial pertained to the claim for loss of earnings. This entailed a
determination of the
minor’s pre-accident and post-accident
earning capacities as well as the contingencies which are to be
applied.
[3]
Subsequent to the conclusion of the
evidence in the proceedings, the plaintiff sought to amend her
particulars of claim. Although
initially opposed, the defendant
withdrew its opposition and at the commencement of the oral argument,
plaintiff’s application
for leave to amend was granted on an
unopposed basis.
[4]
In argument, the defendant challenged the
collateral information provided by the plaintiff to the various
experts and contended
that such evidence constituted inadmissible
hearsay. It defined the issues as: (1) whether the plaintiff
discharged its onus on
a balance of probabilities that her version is
more acceptable than that of the defendant; (2) if causation has been
proved and
if the actual nexus and primary cause of action has been
established on an acceptable preponderance in the plaintiff’s
favour;
(3) the probative value of the expert reports of the
plaintiff weighed against those of the defendant and the quality of
their
viva voce evidence; (4) the hearsay rule in respect of
collateral information and (5) the best evidence rule in respect of
the
plaintiff’s burden of proof. .
[5]
The evidence centered around the nature of
the injuries sustained by N and its sequelae and the impact thereof
on his future earnings.
It was common cause that there was no past
loss of earnings. The plaintiff led the evidence of five experts: Dr
Seabi, an educational
psychologist; Mr Modipa, a clinical
psychologist; Ms Motsepe, an occupational therapist; Mrs Ngoako, an
industrial psychologist,
and Dr Schneid, an orthopedic surgeon.
[6]
The defendant in turn, led the evidence of
four experts: Ms Hofmeyr, a clinical and educational
neuropsychologist; Dr Coetzee, an
industrial psychologist; Ms
Cilliers, an occupational therapist and Dr Du Toit, an orthopedic
surgeon.
[7]
The respective experts agreed that N
sustained the following accident related injuries: a mild brain
injury, multiple facial bone
fractures involving the left intra
orbital rim and lateral maxillary wall, a fracture of the left
clavicle and multiple abrasions
on both knees. Drs Schneid and Du
Toit disagreed whether there was a shoulder injury, an ankle injury
and a whiplash cervical spine
injury as testified by Dr Schneid.
[8]
The evidence established on a balance of
probabilities that the injuries were related to the accident and that
the necessary causal
link between the injuries and the accident was
established. There was no dispute in evidence that N had been born at
full term
through natural birth with no complications and had
achieved his developmental milestones at an appropriate age. There
was no report
of substance abuse on the part of the plaintiff. There
were no reported developmental, medical or psychological history
prior to
the motor vehicle accident, which was the only accident he
was involved in.
[9]
They further agreed that N had the
following complaints: recurrent headaches, dizzy spells and
nosebleeds, memory loss and concentration
difficulties, behavioural
problems characterised by incontinence, post-traumatic stress,
anxiety and irritability, decreased hearing
in his left ear, residual
pain in his left shoulder and fatigue in his left arm.
[10]
Each
of the expert witnesses set out certain collateral information in
their reports obtained from the plaintiff, who accompanied
N to each
of their respective examinations. In argument, the defendant sought
an adverse inference to be drawn from the plaintiff’s
failure
to testify at the trial on these issues. In response, the plaintiff
sought to invoke the provisions of section 3 of the
Law of Evidence
Amendment Act
[1]
(“the Act”) in terms of which hearsay evidence may be
admitted.
[11]
In the list of issues as defined in the
pretrial minutes the defendant did not challenge the veracity of the
collateral information
provided by the plaintiff as particularised in
the various expert reports. The parties had been requested to
specifically narrow
the issues to be determined at trial and did so,
focusing on the pertinent areas of dispute between them. The
defendant did not
advise plaintiff that it intended challenging the
collateral information and this was not contained in the list of
issues as delineated
by the parties during the pretrial conferences.
[12]
If
regard is had to the collateral information provided to both the
plaintiff’s expert witnesses and the defendant’s
expert
witnesses, such collateral information was substantially the same and
emanated from the minor’s mother. Both parties’
respective expert witnesses had regard to that information in
formulating their respective reports. They all considered such
collateral
information common cause facts
[2]
and none of the information was challenged in evidence. The joint
minutes reflecting the areas of agreement between those witnesses
included the collateral information provided, without raising any
disputes in relation thereto. In those circumstances, I am not
persuaded that the drawing of an adverse inference is justified or
that it is necessary to invoke the provisions of s3 of the Act
to
admit such evidence.
[13]
All
the evidence presented was of an expert nature. It is trite that an
expert witness is required to assist a court and not to
usurp its
functions. Expert witnesses are required to lay a factual basis for
their conclusions and to explain their reasoning
in coming to their
conclusions. A court must satisfy itself as to the correctness of the
expert’s reasoning in order to assess
the cogency of an
opinion
[3]
. The facts on which the expert witness expresses an opinion must be
capable of being reconciled with all other evidence in the
case. For
an opinion to be underpinned by proper reasoning, it must be based on
correct facts
[4]
.
An expert opinion which lacks proper reasoning is not helpful to the
court
[5]
.
Thus, if an expert witness cannot convince a court of the reliability
of the opinion and the report, the opinion will not be admitted.
The
same pertains to the joint minutes concluded by the experts, which
were relied on by both parties in argument
[6]
.
In certain instances, the experts in evidence changed their views as
reflected in the joint minutes. In evidence, Ms Hofmeyr and
Dr Seabi
revised their views regarding N’s pre accident intellectual
ability and agreed it was average, rather than the “low
average” assessment they had previously agreed on. Considering
all the evidence, such amended view can be accepted as reliable.
[14]
The main area of dispute between the
experts pertained to the orthopedic injuries sustained by the minor.
It is apposite to deal
with this evidence first. The orthopedic
surgeons, Drs Schneid and Du Toit agreed that there was a healed
fracture of the left
clavicle with 17 degree superior angulation,
which is firmly united. Their views however differed substantially
regarding remodeling
potential of the clavicle and the nature and
extent of the injuries sustained by N.
[15]
According to Dr Schneid, the joint minutes
of the orthopedic surgeons contained various errors on his part as he
had failed to indicate
his findings regarding a cervical spine injury
and an ankle injury. He found restricted movements to the shoulder
and had more
extensive future prognosis. In his view there would be
problems with the shoulder if treatment was not given and the minor
qualified
under the narrative test as the left shoulder symptoms have
been present for 2 years after the accident and because the shoulder
is mal-aligned and will not adequately remodel. In his view the
shoulder problems would persist for 3 years, if adequately treated.
There was a 50% chance of resolution. However, Dr Schneid appeared to
simply give estimates and did not support his percentages
with any
facts. Dr Schneid identified a shoulder problem which Dr Du Toit did
not. His investigation/examination was more comprehensive
that Dr Du
Toit who merely observed the child interacting with his mother as the
minor had shown an exaggerated response when he
commenced his
examination.
[16]
Dr Du Toit on the other hand did not find
any shoulder injury or future difficulties and was of the view that
under future management
and treatment there was no indication for
orthopedic rehabilitation. His evidence was that the callous
formation and healing injury
of the shoulder contributed to a
positive prognosis. The child was using his arm normally and there
was no loss of feeling or obvious
sign of wasting. The collarbone was
healed and aligned. In his view there was no need for surgery and N
had reached MMI due to
good remodeling potential in a young person
which would allow his collarbone to gradually align itself. In his
view a whiplash
cervical spine injury was unlikely. He could not
account for the variance in their findings. In his view, although the
angulation
would be permanently seen from a radiological point of
view, it rarely has a functional effect on the upper limb shoulder
girdle
and functionality.
[17]
Dr Schneid further identified a whiplash
injury to the cervical spine which Dr Du Toit did not note. The
difference of opinion was
explained by Dr Schneid on the basis that
it may be due to the fact that the child was having a good day and
was not symptomatic.
I am not persuaded that reliable evidence was
presented supporting the existence of a whiplash injury to the
cervical spine. The
same applies to the ankle injury.
[18]
In their examinations of the minor, various
of the other experts, including Mr Modipa, also identified a problem
with N’s
shoulder and pain he was experiencing in that region.
There was no other evidence corroborating the existence of injuries
to N’s
cervical spine or ankle.
[19]
Considering all the evidence, I find that
the plaintiff has illustrated on a balance of probabilities that
there may be a functional
effect on the upper limb shoulder girdle
and functionality and that there was an injury to the shoulder
structures which may restrict
N’s movement. I am not persuaded
that the plaintiff has established the ankle injury or the cervical
spine injury contended
for.
[20]
The clinical psychologist and the
educational psychologists agreed that the minor suffered deficits in
attention and concentration,
working memory and visual perceptual
skills difficulties, which have rendered him vulnerable to develop
long term cognitive deficits.
They further agreed that trauma to the
developing brain in younger children is often associated with
insidious emotional behavioural
and cognitive deficits due to the
inherent vulnerability of a developing brain. N’s scholastic
achievement and career trajectory
are expected to be adversely
impacted should his reported difficulties persist. They agreed that
he would benefit from psychotherapeutic
intervention with clinical
psychologist regarding his post traumatic stress anxiety and
behavioural difficulties between 20 and
30 sessions were recommended.
[21]
Mr Modipa testified that N presented with a
cognitive profile characterised by some deficiencies in a few domains
in his cognitive
functioning. He specifically displayed deficiencies
in sustained attention and memory, in concentration and psychomotor
speed and
inconsistency in visual perception skills in relation to
cognitive functioning. On an emotional level, N presented with
symptoms
of post traumatic stress occasioned by the trauma of the
accident and is sequelae and experienced emotional and behavioural
stimuli
occasioned by the trauma of the accident. He further suffered
from incontinence which was affecting his emotional wellbeing. He
had
chronic pain in his left shoulder, which had psychological
significance in the sense that pain has an interfering effect on
a
person and interferes with the performance of activities of daily
living including sports participation. There was also a loss
of
hearing in the left ear, which emotionally bothered N. He was
conscious of the facial scarring on his left side, which made
him
feel he was different from other children. He concluded that N’s
learning capacity has been adversely affected as a result
of the
difficulties which he experiences, primarily because of the
importance of attention and concentration and memory in learning.
Those key skills of N were affected as a result of the accident.
[22]
Mr Modipa’s opinion was that with
these difficulties in place, N is likely to have difficulties as he
progresses to higher
grades in his schooling and, if they persist,
may affect his career path in due course. Any chronic pain associated
with N’s
orthopedic injuries would likely result in emotional
difficulties due to chronic pain associated therewith. In his view,
therapy
would not have a curative effect as its focus is to
facilitate adjustment to the difficulties that N is experiencing. He
further
alluded to the sleeper effect which occurs when children
experience trauma to the brain at a young age, where in most cases
they
do not show their symptoms and they do not show the full extent
of the impact of the accident until a later age. As a child
progresses
to higher grades, the demands on his cognitive skills
increase, which result in such a child starting to struggle to
perform. He
further testified that the accident was the only
significant event in his life and that the difficulties N is
experiencing bears
a direct connection to the accident.
[23]
After the accident, N regressed from being
fully toilet trained to soiling and wetting himself, this
incontinence had an important
psychological effect on N. In his view,
it was difficult to estimate how long the behavioural and emotional
limitations could last.
As long as pain persisted, other emotional
consequences would arise. The prognosis of emotional difficulties
would also depend
on how far the other difficulties which gave rise
to these emotional difficulties would get resolved.
[24]
Mr Mosipa further testified that as part of
his training he was taught brain functioning as it relates to
behavioural manifestation.
In a child who has difficulties with
attention and concentration , the frontal lobe is involved, which
controls emotions and planning
capacity. Clinical psychologists focus
on the outcome and behavioural manifestation of the impact of the
head injury on the child.
The GCS scale is not definitive. In his
view, while a brain injury of N’s severity is generally not
expected to cause difficult
long terms neurocognitive defects, in
some cases, particularly in young children, such an injury can cause
insidious difficulties,
including headaches, memory and concentration
difficulties.
[25]
The evidence of the neurosurgeon’s
diagnosis of a mild injury is consistent with his own and there are
agreements surrounding
the difficulties experienced by N. The
clinical psychologist in their joint minute were in agreement with
respect of the pre accident
history, the physical emotional
psychological cognitive functioning emotional outcomes and
recommendations made. The opinions
of Mr Modipa was
corroborated by the evidence of various of the other experts and
based on facts. His evidence can be accepted
as reliable.
[26]
The neurosurgeons, Drs Moja and Majeed,
agreed that before the accident N was physically fit and healthy. He
sustained the following
accident related injuries: a mild brain
injury, facial bone fractures, a left clavicle fracture and multiple
abrasions on both
knees. After the accident he complained of
recurrent headaches and memory loss and behavioural problems.
[27]
The hospital records reflected that N
recorded a loss of consciousness for 5-15 minutes. On arrival at the
hospital he was fully
conscious with a Glascow Coma Scale of 15/15,
with no neurological defects. He suffered a head injury with a soft
haematoma on
the occipital region of his head. The CT brain scan
report indicated occipital scalp haematoma, facial injury, bruised
left eye,
bleeding from nostrils, facial bone fracture, fracture left
orbital floor and left maxillary sinus and left maxillary haemosinus.
N was referred to the maxillofacial surgeon for treatment of his
facial bone fractures and was treated conservatively. His left
collar
bone fracture was treated conservatively with a collar and cuff. He
was discharged two days after the accident.
[28]
The occupational therapists, Ms Motsepe and
Ms Cilliers were both reliable witnesses. They agreed that N
presented with attention
and concentration difficulties, perceptual
difficulties, sensory integration difficulties, neurocognitive
difficulties and neurocognitive
challenges. The defendant’s
expert, Ms Cilliers noted that N had below average on the visual
sequential memory and visual
closure, sensory integration
difficulties relating to avoid midline crossing, balance
difficulties, difficulty assuming and sustaining
anti-gravity
positions, motor planning difficulties and bilateral integration
difficulties. They agreed and recommended that N
be placed in a
remedial school as soon as possible with a full team of experts
available, given that his current school does not
have a full
remedial team consisting of occupational therapists, and clinical and
educational psychologists. Ms Cilliers further
identified serious
sensory integration difficulties experienced by N which required
treatment to address the underlying psychological
difficulties.
[29]
The occupational therapists further agreed
on a case manager to provide long term supervision and monitoring to
recommend future
assistance within N’s home, school and work
environment, thus indicating that N’s recovery may not be soon
and of long
duration.
[30]
Ms Cilliers during cross examination
conceded that if treatment was not successful regarding N’s
orthopedic injuries, there
would be limitations in him performing
heavy physical work but he may be able to do light to medium work. In
such instance, N would
not be an equal competitor in the open labour
market with respect of heavy work. If his physical problems
persisted, he may have
to be selective about the choice of work and
could take longer than his peers to secure suitable employment. This
would render
N and unequal competitor in the unskilled labour market.
[31]
The occupational therapists agreed that N’s
potential to enter the open labour market within a sedentary position
was limited
to positions of a concrete and repetitive nature, he
would be best suited to simplistic, less cognitively demanding types
of work
which is performed in a structured environment with
supervision. Mrs Cilliers conceded in evidence that this would amount
to sheltered
employment. Her view was qualified that such would
depend on his response to remedial therapy. His ability to
obtain and
sustain gainful employment would be dependent on the level
of education he manages to secure. It appears from the undisputed
evidence
that if N does not favourably respond to remedial treatment
he would be limited to sheltered employment and would not be an equal
competitor in the open labour market. If his problems persisted into
adulthood N would also be an unequal competitor in semi-skilled
work.
[32]
According to Ms Motsepe, because N now has
cognitive problems, he is no longer reliant on higher cognitive
skills to learn to do
skilled forms of work. This puts him in a
sheltered form of employment because of his cognitive problems. N
will always need assistance
as his challenges are organic. He will
also have a challenge in keeping jobs in the sheltered workplace
environment as he is compromised
by his low neurocognitive and
behavioural challenges in relation to his behavioural problems Mrs
Motsepe explained that N is aggressive
and isolates himself and
angers quickly Fighting with other children was reported by the
plaintiff. As N grows older he will have
problems in the open labour
market as a person who cannot take criticism is a person who will
fail continuously given his low level
of perception and cognition. He
will always be prone to mistakes and will have challenges in
interacting in a formal environment.
[33]
Mrs Cilliers conceded that the emotional
trauma and impact has an impact on his ability to apply his
functional and cognitive skills
in the open labour market. She
further conceded that if he needs breaks to accommodate his lack of
endurance which affect his productivity,
he would not be an equal
competitor. He might not get a job in the semi- skilled structured
work environment if he discloses that
he needs accommodations and
breaks. His risk of being fired if he needs accommodation or doesn’t
disclose this need in a
semi-skilled structured job, his risk of
being fired is greater than others who do not need the accommodation
and in this respect
he is also not an equal competitor. Ultimately,
both experts were in agreement that N would not be an equal
competitor in the labour
market in either the unskilled or
semi-skilled fields of employment. Their opinions are justified by
the facts and can be accepted
on the probabilities.
[34]
Considering N’s attention and
concentration difficulties, which the occupational therapists agree
are issues in both the semi-skilled
and unskilled labour market if
these problems persist If he reaches grade 11 or 12, such problems
will not have such a significant
impact in the work environment.
According to Ms Motsepe, he will not however be on par with his
peers. In his present state, his
performance is at a very low level
compared to his peers. He would be excluded from any job with
administrative, managerial or
clerical work. If he does manual
labour, he will not be a leader. In her view, N has been experiencing
neurocognitive problems
for more than 3 years after the accident. If
there is no immediate intervention within 2 years, progress will be
slow and N will
struggle to reach the minimum standards to catch up
to his peers. There is also a problem with habituation of
neurological symptoms.
Once a person has developed a pattern over 2
years it becomes difficult to break it. Even with treatment, his
problems will not
improve completely. Treatment will be compensatory
rather than focused on improvement.
[35]
Ms Motsepe further commented on N’s
physical problems, notably the
painful
shoulder
left girdle and his hypersensitivity to touch. As a result, N will
avoid contact and will avoid doing things that needs
exertion, a
factor which will compromise his work from a sensation point of view
as he is failing to modulate his senses. This
could emanate from the
brain, resulting in a need for desensitization therapy. In her
examination, she found coordination problems
and headaches which are
a challenge when he concentrates. N further fatigues easily and has
blackouts and disorientation which
compromises him further. If he is
given instructions, he just stares and when he is shaken, he gets
scared and soils himself. This
would be a problem in the open labour
market. In her view, physically he would be placed into sedentary job
below shoulder level
and he is unequal even in an unskilled
environment.
[36]
The educational psychologists, Dr Seabi and
Ms Hofmeyr were both impressive and reliable witnesses. They agreed
that no concerns
were reported regarding N’s emotional,
scholastic and cognitive development prior to the accident. Based on
the information
provided, there was not a likelihood that his
behavioural problems existed before the accident. It was common cause
that the plaintiff
completed grade 10 and was employed as a cashier.
N’s father completed grade 11 and is employed as a builder. N
was enrolled
in grade 1 at the age of 5years 11 months and began
formal schooling early. A psychologist at the end of the year
recommended that
he repeat grade 1 in 2017. He completed the first
term of grade 1 in 2017 prior to the accident and achieved an average
outcome
of substantial achievement.
[37]
They agreed that as he was only six years
old at the time of the accident, he is likely to be more vulnerable
to long terms sequelae
as a result of a head injury even a mild head
injury. This can cause problems in terms of cognitive functioning and
frontal lobe
executive function, working memory, attention and
behaviours. N also fractured his one orbital bone and had bleeding
from the ear
and nose. This could be a problem. According to the
defendant’s expert, Ms Hofmeyr, it is unknown what could be
happening
to the side brain and even a GCS of 15/15 cannot lead to
the conclusion that he did not have internal damage. When children
have
an accident with a head injury at a young age they can and often
do show later behavioural problems and depression and emotional
instability that can cause difficulties with learning. In her
assessment, Ms Hofmeyr found N’s attention problems quite
severe and if they persist there are fears he may just give up
trying.
[38]
According to Dr Seabi, the educational
background of the parents is important as a child is not an island
and to exclusively focus
on him without his contextual or socio
economic backgrounds would be wrong. He emphasised that children
currently perform better
than their parents because of support from
parents wanting a different lifestyle for their children and an
educational system which
is more inclusive and accommodating than it
was in the past.
[39]
In their joint minutes, the experts agreed
that N’s pre morbid estimate was within the low average
intellectual ability range.
In evidence both educational
psychologists changed their evidence to average intellectual ability.
In their view, he would probably
have continued with his competitive
and determined personality to complete grade 12 and a diploma in his
choice of occupation.
[40]
Regarding N’s post morbid learning
potential, they noted that N’s grade 1 (2017) results was above
the grade average.
He completed grade 2 with the results of the first
2 terms above the grade average. They agreed that this level of
performance
in his class was unlikely to persist as N was already
reported to experiencing difficulty with increasingly complex number
problems
in class. His concentration and uncharacteristic behaviour
difficulties have reportedly been worsening. They agreed that his
deterioration
in performance was due to his injuries sustained in the
accident, considering his determined nature to succeed. According to
Ms
Hofmeyr, N’s executive functioning was impaired. The causes
could be emotional related to the brain injury and the problem
is
that the structure of the brain changes with changing emotional
circumstances.
[41]
They agreed that N has been dealing with
substantial psychological and psychiatric sequelae caused by the
accident. He was found
to be suffering from moderate symptoms of
depression and PTSD. They agreed that based on all the information
available his highest
qualification would in all likelihood be Grade
11. According to Ms Hofmeyr without intervention, N may struggle to
get a Grade
9. With intervention, he may get a Grade 12, but he may
only be able to scrape through. Two factors were relevant, first
obtaining
intervention and second, that such intervention proves to
be successful. Ms Hofmeyr also testified that the available schools
which
could assist N were private schools and there was a lack of
remedial schools in his area. I agree with the plaintiff’s
submission
that on a practical level, N will have difficulty being
adequately remediated.
[42]
Considering the evidence of both the
educational psychologists, I am satisfied that the plaintiff has
established on a balance of
probabilities that post morbid, N is
likely to obtain a Grade 11 education with remedial intervention and
that without it, he may
struggle to achieve a grade 9 level of
education. In coming to this conclusion, it is significant that the
defendant’s expert,
Ms Hofmeyr, substantially agreed with the
conclusions reached by Dr Seabi.
[43]
The industrial psychologists, Ms Ngoako and
Dr Coetzee both deferred to the educational psychologist to comment
on N’s highest
pre-accident educational potential, specifically
as N is a minor and they are reliant on the educational
psychologists’ conclusions
regarding the educational ability
and prospective educational attainment.
[44]
Dr Coetzee’s view was that with
referral to school learning remedial assistance and psychological
support, N would be able
to achieve a Grade 12 education after the
accident. However, her evidence regarding N’s pre-accident
learning potential was
at variance with the conclusions reached by
the educational psychologists to which she deferred. In Dr Coetzee’s
view, before
the accident, N would probably have achieved a grade 12
with possible semi-skilled work at best. After she accident,
she
postulated that N would be able to achieve a grade 12 education,
subject to remedial treatment. In evidence she relied heavily on
various employment statistics to justify this view and the existence
of a lot of variables to determine whether N would have achieved
a
diploma. She focused on socio economic circumstances and family
background in evidence.
[45]
Although the existence of such variables is
a factor which must be taken into account in considering the
appropriate contingencies,
on a conspectus of the facts and evidence
of the educational psychologists, the probabilities favour the views
expressed by the
educational psychologists, Dr Seabi and Ms Hofmeyr.
[46]
Dr Coetzee and Mr Ngoako agreed that with a
diploma qualification N could have entered into the open labour
market on Paterson B3/B4
approximately 6-12 months after completing
his studies and was likely to progress to Paterson C3/C4. They agreed
on a normal retirement
age of 65. To benefit from the free education
system NSFAS, N would have to adhere to the requirements of the
institution of higher
education where he applied and would have to
pass all his modules ever year to continue being eligible for
funding. Only 63% of
applicants were eligible for funding in 2020. If
N’s application were to be successful, he would cover a large
portion of
the costs associated with his education but would remain
dependent on his parents for the balance of the costs. Dr Coetzee
opined
that N would have large periods of unemployment due to the
high unemployment rate in South Africa.
[47]
Ms Ngoako’s evidence was that once N
obtained a diploma he would be unemployed for 6 months, whereafter he
would secure employment
and only move once better employment was
secured. In between there would not be large portions of
unemployment. In her view, entering
the labour market with skills
differed to entering it without skills. Unemployment rates for
graduates were lower that for unskilled
people.
[48]
Accepting that N’s highest level of
education would be a grade 11 after the accident, the industrial
psychologists agreed
that he would be restricted to unskilled work in
the non-corporate sector. His initial income would be equivalent to
the current
minimum wage of R3000 per month and he could over time
progress towards the upper quartile scale for unskilled labourers in
the
non-corporate sector.
[49]
They disagreed on N’s potential to
work in a semi-skilled capacity. Ms Ngoako’s view was that with
a grade 11 education
and all the cognitive, aggression,
concentration, poor memory and behavioural problems, N did not have
the potential to progress
to semi-skilled work, which requires a
higher cognitive functioning. She deferred to the other experts who
said N was a candidate
for sheltered employment. In her view, should
N’ continue to experience shoulder pain into adulthood, he may
have to be selective
about his choice of work and could take longer
than his peers to secure employment. The reported behavioural
problems, such as
aggression may also lead him to struggle to retain
employment, thus resulting in him experiencing longer periods of
unemployment
than his peers.
[50]
Dr Coetzee on the other hand followed the
view of Mrs Cilliers that with optimal treatment, N was not
anticipated to experience
any physical limitations in the performance
of any functional tasks, scholastic work or eventually within the
work environment.
Thus her view was that N should be able to cope
with work on an unskilled, semi-skilled or skilled nature. Mrs
Cilliers had however
in cross examination made numerous concessions
that N is an unequal competitor in the open labour market.
[51]
Considering all the evidence, the view of
Dr Coetzee was over optimistic and the probabilities favour a finding
that N would not
be an equal competitor in the open labour market,
nor would he be suitable for semi-skilled or skilled employment.
[52]
Regarding N’s socio economic
background, Ms Ngoako’s evidence was that a lot of children in
South Africa came from environments
where their parents were not
educated as they did not have access to the same opportunities. Just
because of a lack of education,
it cannot be concluded that
cognitively they would not have been capable of achieving more. There
are now more opportunities available
so that even children from poor
socio economic backgrounds can achieve better and people are not
defined by their social background.
Dr Coetzee on the other hand
emphasised numerous statistics including high unemployment rates of
29.1% in South Africa and 30.8%
in Gauteng according to the official
unemployment statistics for the last quarter of 2019. In quarter 3 of
2019, 16.9% of the unemployed
in South Africa had tertiary
qualifications and 6.4% were graduates.
[53]
On the evidence presented I am satisfied
that the plaintiff has discharged the onus to prove on a balance of
probabilities the injuries
sustained by N, with the exception of the
alleged whiplash injury to the cervical spine and the ankle injury.
The plaintiff has
further proved the sequelae of the injuries
contended for on a balance of probabilities. I am also satisfied that
the plaintiff
has established that the injuries and their sequelae
were caused by the accident and that the necessary causal link has
been stablished.
[54]
In
Chakela
v Road Accident Fund
[7]
,
Van Der Linde J considered the issues surrounding loss of earnings
and earning capacity and referred to various pertinent judgments
on
the issue
[8]
.
The correct approach was enunciated thus:
“
There is a conceptual
difference between the question whether a patient has suffered an
impairment of earning capacity and the question
whether a patient
will in fact suffer a loss of income in the future
.
The answer to the former question
is determined on a balance of probability in that patient has the
onus to discharge. The latter
is a question of assessment in respect
of which there is no onus in the traditional sense. This assessment
involves the exercise
of quantifying as best one can the chance of
the loss actually occurring
.
The answer to the former question
is at least theoretically answered affirmatively if the patient will
have established a 51% chance
of impairment being present, the answer
to the latter question is provided by the best match between the
likelihood of a loss been
suffered and the fraction expressed as a
percentage.
[55]
Applying
these principles to the facts, I find that the plaintiff has
discharged the onus to illustrate that N has certain physical
and
other disabilities and suffered an impairment of earning capacity and
that he will suffer a loss of income in the future
[9]
.
What remains is an assessment to quantify the chance of the loss
occurring.
[56]
The
following dictum in
Southern
Insurance Association Ltd v Baily NO
[10]
is apposite in considering appropriate contingencies:
“
Any enquiry into damages for
loss of earning capacity is of its nature speculative, as it involves
a prediction as to the future.
All that the Court can do is to make
an estimate, which is often a very rough estimate, of the present
value of the loss. Where
the method of actuarial computation is
adopted in assessing damages for loss of earning capacity, it does
not mean that the trial
Judge is tied down by actuarial calculations.
The court has "a large discretion” to award what the court
considers right.
One of the elements in exercising that
discretion is the making of a discount for "contingencies"
or the "vicissitudes
of life". These include such matters
as the possibility that the patient may in the result have less than
a "normal"
expectation of life; and that he may experience
periods of unemployment by reason of incapacity due to illness or
accident, or
to labour unrest or general economic conditions.
The amount of any discount may
vary, depending upon the circumstances of the case. The rate of
discount cannot be assessed on any
logical basis: the assessment must
be largely arbitrary and must depend upon the trial Judge's
impression of the case and may be
favourable.
The technique of assessing damages
involves consideration of relevant events which may occur, or
relevant conditions which may arise
in the future. Even when it
cannot be said to have been proved, on a balance of probability
justice may require that what
is called a contingency or allowance be
made for a possibility of that kind…”
[57]
On a conspectus of the evidence, it is
accepted that prior to the accident, on the probabilities, N would
have been completed grade
12 and a diploma and that, having regard to
the accident, it is probable that N may obtain a grade 11 and would
be a vulnerable
employee.
[58]
Various actuarial calculations were
prepared by the plaintiff based on the contents of the joint minutes
of the industrial psychologists.
The defendant also presented certain
actuarial calculations based on the report of Dr Coetzee. Based on
the plaintiff’s calculations,
the pre accident loss of
income without any contingency deduction would be R6 334 754, and the
income but for the accident would
be R1 384 005.
[59]
In
argument, plaintiff relied on
Goodall
v President Insurance Co Ltd
[11]
and
Road
Accident Fund v Guedes
[12]
and argued for a 25% pre morbid contingency. It was argued that
no higher contingency was required considering Ms Ngoako’s
evidence that N would not have large gaps in unemployment, having a
grade 12 and diploma. Plaintiff contended that a 50% contingency
would be appropriate on the post morbid scenario.
[60]
Plaintiff
further placed reliance
M
obo M v Road Accident Fund
[13]
,
Sitholimela
v Road Accident Fund
[14]
,
Smit
NO v The Road Accident Fund
[15]
and
Nkuna obo Nkuna v Road Accident Fund
[16]
.
The
defendant relied on the same authorities and argued that contingency
deductions of 20% pre-accident and 35% post-accident would
be
appropriate
[17]
.
[61]
N, is presently only 10 years old, the
accident having occurred when he was 7 years of age. His available
schooling record is very
limited. N’s anticipated level of
education may be overly optimistic, considering the risks associated
with obtaining a diploma,
the high unemployment rate and a risk of
unemployment for longer periods than those postulated by MS Ngoako,
[62]
These factors in my view require that a
higher contingency percentage than the proposed 25 % should be
applied. In my view and considering
the relevant facts of this
matter, a contingency of 35% should be applied to N’s
postulated pre-morbid career path. This
would be fair to the parties
and would be a just exercise of the discretion afforded.
[63]
Regarding the post morbid scenario, a 50%
post morbid contingency would be appropriate, given that the
envisaged treatment would
not necessarily be curative and considering
his behavioural and cognitive challenges may result in N having
difficulty in maintaining
employment and as he is an unequal
competitor in the labour market and would be vulnerable.
[64]
The calculation of the loss of income of R6
334 754 less a 35% contingency deduction of R2 217 163.90 equals R4
117 590.10. The
value of income having regard to the accident of R1
348 005 less a 50% contingency deduction (R674 002.50 equals R674
002.50. On
this calculation the net future loss is R3 443 587 60.
[65]
I thus conclude that an amount of R3 443
587.60 should be awarded for the injuries sustained by N as damages
for loss of earnings.
[66]
Considering the recommendations by the
various experts it is also appropriate that the defendant provide an
undertaking in terms
of section 17
17(4)(a) of Act 56 of 1996
to pay the costs of future medical treatment and/or the accommodation
of N in a hospital or nursing home
and such treatment, therapy,
services or goods as he may require as a result of the injuries that
he sustained as a result of the
accident which occurred on 22 March
2017, specifically including the costs of the therapies recommended
by the experts, and the
placement of N in a remedial (specialised)
school forthwith as soon as possible The defendant has conceded that
a 100% undertaking
is appropriate.
By agreement,
the general damages are to be postponed.
[67]
The normal principle is that costs follow
the result. There is no reason to deviate from this principle.
[68]
After conclusion of the trial, the parties
were afforded the opportunity to prepare written heads of argument
and to present oral
argument at a later date. I was provided with
comprehensive heads of argument. As N is a minor it is necessary to
protect the funds
awarded to him in trust. I requested the plaintiff
to provide a draft order making provision for the establishment of
such trust.
By consent between the parties, a draft order was
provided, to which the necessary amendments have been made
incorporating the
terms of order I propose to make. In the draft
order, it was recorded that there is no contingency fee agreement
between the plaintiff
and her legal representatives.
[69]
I grant an order in terms of the amended
draft attached hereto marked “X”.
_____________________________________
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT JOHANNESBURG
APPEARANCES
DATES
OF HEARING
04, 05, 06, 07, 08 May 2020 and 06 July 2020
DATE
OF JUDGMENT
: 21 September 2020
PLAINTIFF’S
COUNSEL
: Adv R Kay
PLAINTIFF’S
ATTORNEYS
: Rabothatha Attorneys
Ref:
Mr Rabothatha
DEFENDANT’S
COUNSEL
: Adv B Bodhania
DEFENDANT’S
ATTORNEYS
: Tasneem Moosa Inc
Ms
V Rama
[1]
45 of 1988
[2]
Thomas
v BD Sarens (Pty) Ltd
[
2012]
ZAGPJHC 162 para 12
[3]
Masstores
(Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd
[2015] ZASCA 164
;
2016 (2) SA 586
(SCA) para 15
[4]
Glenn Marc
Bee v Road Accident Fund
[2018] ZASCA 52
(29 March 2018) para 23
[5]
Jacobs v
Transnet Ltd t/a Metrorail
[2014] ZASCA 113
,
2015 (1) SA 139
(SCA)
paras 15 and 16
[6]
Bee v Road
Accident Fund
2018 (4) SA 366
(SCA) para 30
[7]
(33599/2015) [2017] ZAGPJHC 141 (5 June 2017)
[8]
Deysel v Road Accident Fund (2483/09) [2011] ZAGPJHC 242 (24 June
2011); Rudman v Road Accident Fund (370/01)
[2002] ZASCA 129
;
[2002]
4 All SA 422
(SCA) (26 September 2002); Van Heerden v Road Accident
Fund (6644/2011) [2014] ZAGPPHC 958 (8 December 2014) and Prinsloo v
Road
Accident Fund (3579/06)
[2008] ZAECHC 193
;
2009 (5) SA 406
(SE)
(18 November 2008).
[9]
Rudman
v Road Accident Fund 2003(SA 234) (SCA)
[10]
1984 (1) SA 98
(A) from 99-100 i
[11]
1978 (1) SA
389
(WLD) at 393E-G
[12]
2006 (5) SA
583 (SCA)
[13]
(4484/2016)
[2018] ZAGPJHC 451 (18 June 2018)
[14]
2015
JDR2162 (GP) 2015 JDR 2162 p1
[15]
2006 (5B4)
QOD 251 (T) (5B4) QOD p251
[17]
albeit