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[2021] ZAGPJHC 379
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LLM on behalf of DM v Road Accident Fund (2015/02218) [2021] ZAGPJHC 379 (29 June 2021)
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: 2015/02218
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED.
29 June 2021
In the matter between:
LLM
obo
DM
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
The plaintiff sues as mother and natural
guardian of her minor son who was injured in a motor vehicle accident
on 15 October 2013
when the child was two months short of turning
three
years old. He is now ten and a half
years old. The child had been sitting on the pavement when a car
reversed onto him and dragged
him for a distance. He also lost
consciousness at the time.
2.
The parties have settled the merits and
both past and future medical, hospital and similar expenses. The only
outstanding issues
are general damages and loss of future earning
capacity.
3.
Several of the issues concerning the
factual underpinning to the general damages claim were resolved at
the case management meeting
of 11 March 2020; the defendant admitted
the relevant hospital records and the expert reports of the plastic
and reconstructive
surgeon, the neurologist, the urologist and the
specialist physician.
The
court also ruled that the neurosurgeon and orthopaedic reports of Drs
Ntimbani and Omojawa were to be excluded from the trial
proceedings
as was the RAF Form 4 which had been completed by the latter.
THE
INJURIES
4.
It is common cause that the child sustained
a mild head injury with loss of consciousness as a consequence of the
accident. In addition
he sustained occipital abrasions, a genital
injury, extensive abrasions and a degloving of his left leg with
debridement. The child
had however sustained an earlier head injury
some 17 months earlier when he had fallen off an adult’s
shoulder and lost consciousness.
The skull X-Ray and Cat- scan taken
at the time of the first injury were both normal
THE
SEQUELAE
5.
The child has effectively recovered from
the orthopaedic injuries. However the head injury, the genital injury
as well as the permanent
scarring have resulted in long term
sequelae. There is a huge scar over the posterior aspect of the left
thigh and a scar over
the medial aspect of the other thigh. He also
continues to suffer nose bleeds, has bowel problems and suffers from
nausea, and
he experiences numbness in his hands and legs especially
of it is cold. He is also easily fatigued
6.
As a result of the injuries the child
incurred post-traumatic epilepsy, suffers from impaired cognitive
functions and has permanent
scarring. The cognitive impairment
displays itself in severe difficulties with concentration and memory.
He also suffers from long
term behavioural disturbances including
personality changes, depression and moodiness. These have also
affected his scholastic
results with remedial and occupational
therapy as well as psychotherapeutic intervention being recommended
because of the risk
of psychological deterioration. It is accepted
that the child presents with significant cognitive, perceptual and
psychological
difficulties.
.
7.
The educational psychologists
differed as to the level of education the child would have obtained
but for the accident. The plaintiff’s
expert contending for a
Bachelor’s degree while the defendant’s expert claiming
the attainment of not more than a Diploma
/ NQF 6. Post-accident the
former considered that the child will reach Grade 11/NQF 3 and the
latter Grade 12/Higher Certificate.
Although he had not failed a
year, it was accepted that in the higher levels at school he would
struggle and remedial schooling
was considered. There was a dispute
as to whether his occupational choices would be limited. However it
was accepted that both
his further schooling and occupation would be
affected by his emotional and psychological difficulties, behavioural
issues including
aggressiveness and a compromised cognitive
functioning. Unless resolved epileptic seizures and headaches would
also contribute
to these risks.
8.
The child’s father attained grade 12
and worked as a security guard. He had passed away when the child was
two years old.
The mother attained grade 9 and is a domestic worker.
It is however possible that opportunities may not have been available
to
them at the time but this was not explored. I am however not
prepared to make findings by reference to the educational or
occupational
levels attained by either parent. The eldest sibling was
still in grade 9 at 18 years of age while the eleven year old sibling
was in grade 6 which is the expected level at that age.
9.
The occupational psychologists were agreed
that irrespective of the actual pre- morbid status the child has been
disadvantaged in
the open labour market due to his cognitive
limitations post-accident and their effect on both his academic
prospects and occupational
choices.
10.
Prior to the accident he was describes as a
lively child but since then he suffers from depression, is withdrawn
and is aggressive
while also exhibiting feelings of guilt. He
continues to experience bed wetting and has nightmares. His
personality disorders affect
his interaction with others. It is
however accepted that this might improve if successfully treated.
11.
It is accepted that he endured acute pain
after the accident and that he will endure chronic pain in both
thighs as well as headaches
which he will continue to endure on a
regular basis (reports indicate twice a week).
12.
He did have a genital injury and he still
finds it painful urinating and sometimes urinates blood. He has
episodes of incontinence
and there is also a concern that he may
suffer erectile dysfunction, although it is too early to provide a
diagnosis. This is in
terms of the specialist urologist report of Dr
Feilat
13.
The child is acutely aware of the
disfiguring scar on his thigh and plastic surgery is to be provided
for.
14.
His enjoyment of life is further restricted
by his inability to participate actively in sport although he is able
to walk, play
socially and is healthy
15.
Finally, according to the plaintiff’s
expert, the child’s life expectancy is estimated to be reduced
by some 15% or
by 5 to 10 years whereas the defendants’ expert
considers it to be nominal. However all are agreed that any reduction
in
life expectancy would be as a result of his epilepsy. At present
he continues to experience seizures and suffers panic attacks
SUMMARY
16.
The child endured acute pain and suffering
as a result of the accident and now presents with serious cognitive,
perceptual and psychological
disabilities. While the perceptual
sequelae may be ameliorated, and he will be entitled to receive
treatment for them as part of
the award, the cognitive impairment
will impact both scholastically and occupationally. While treatment
may also assist in alleviating
the current psychological sequelae the
limitations arising from the cognitive sequelae occasioned by the
accident may result in
a different range of psychological issues
manifesting themselves.
17.
The child sustained multiple injuries
with a broad spectrum of sequelae ranging from physical to
psychological, from cognitive to
potentially sexually limiting.
Moreover some sequelae are clearly chronic and long term while others
may be alleviated, whether
significantly or only to some extent by
medication and surgical intervention (such as plastic surgery).
QUANTUM
18.
It is not my intention to analyse in great
detail cases dealing with quantum. The reason is twofold. Firstly the
parties are effectively
ad idem
regarding the injuries and their sequelae, with the defendant being
prepared to make concessions regarding the risk of certain
long term
sequelae eventuating. Secondly the parties rely on cases which
generally fall within a relatively narrow band. While
the plaintiff
did suggest that cumulatively quantum should be assessed at R1.9
million no case or number of cases can achieve such
a result even if
the injuries and their sequelae were to be added up individually. The
defendant produced cases such as
S v RAF
(a decision of Maier-Frawley AJ (at the time) in 2018) where the
award was R600 000 for a moderate head injury which resulted in
serious mood disorders, depression, impaired interpersonal
relationships and a form of epilepsy with seizures; but there were no
potential sexual dysfunctional issues and the girl’s
pre-accident scholastic results showed that she was already
experiencing
learning difficulties.
19.
In
M v RAF
,
a 2017 decision of Moshidi J, the plaintiff also suffered serious
head injuries which were more severe than in the present case.
The
award made was R700 000.
20.
In a case involving erectile dysfunction
(
Masemola v RAF
of 2017) an award of R850 000 was made but there it was accepted that
the likelihood of erectile dysfunctioning in the foreseeable
future
would occur due to the extent of the pelvic injuries, moreover the
physical injuries were of a far more serious nature than
in the
present case as they included injuries to the tibia and pelvis with a
pubic fracture.
21.
Erasmus AJ in the 2019 case of
Sohaba
v RAF
was concerned with cognitive
impairment and psychological sequelae. There an amount of R850 000
was awarded. The was however no
issue of epilepsy or the possibility
of sexual impairment.
22.
In my view the best the court can do is
provide for a reasonable contingency for the risk of erectile
dysfunctioning.
23.
In all the circumstances I consider that an
appropriate ward is R925 000 for general damages.
LOSS
OF EARNING CAPACITY
24.
The parties agreed on presenting two
scenarios to the actuary. The one adopting the most favourable
pre-accident scenario which
would have been that the child would have
received a tertiary education while the other assumes that he would
have obtained a post-matric
Diploma.
25.
I am uncomfortable adopting either basis
because there remains a contingency factor to be taken into account
that he would better
the lower qualification or not obtain the higher
one. It is not a one or the other approach as neither party can be
dogmatic as
to whether or not the child will only attain a
post-matric Diploma or will qualify with a degree. I say this
because, to have reference
to either parent’s own educational
or occupational history, without more, would overlook the greater
disadvantages and lack
of opportunities they and their own parents
were likely to have suffered.
26.
On the evidence before me either outcome
(basis 1 or basis 2) has an equal probability of occurring.
For
these reason, I will adopt a 50% contingency. The effect is that
basis 1 and basis 2 will be added together and divided by two.
Basis
1 yielded a net loss of R2 853 304 whereas the figure applying Basis
2 is R 3 928 009, the median being R3 390 657
ORDER
27.
In the result the following order is
made:
a.
R925 000 in respect of general damages for
pain and suffering and loss of amenities of life:
b.
R 3 390 657 in respect of future loss of
earnings and earning capacity
c.
The balance of the order will follow the
draft order provided by the parties and which need not be repeated.
SPILG, J
Electronically
submitted therefore unsigned
Delivered: This
judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email. It will also be
released for publication on SAFLII. The date for hand-down
is deemed
to be 29 June 2021.
DATE OF JUDGMENT:
29 June 2021
FOR
PLAINTIFF:
Adv N Mabena
NT
Mdlalose Inc
FOR
DEFENDANT:
Adv. H Mpe
Borman
Duma Zitha Attorneys