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[2020] ZAECPEHC 34
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Mafongosana v Road Accident Fund (3673/2018) [2020] ZAECPEHC 34 (11 September 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
no: 3673/2018
Date
of Hearing: 07/09/2020-10/09/19020
Date
of Judgment: 11/09/2020
In
the matter between:
BABALWA
JULENDA MAFONGOSANA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
NAIDU
AJ:-
INTRODUCTION:
[1]
This is an action for damages by the Plaintiff, a 26 year old female
against the Defendant,
arising out of a motor vehicle collision that
occurred on the 15
th
February 2016. The Plaintiff was a
pedestrian on the day in question.
[2]
The matter had been set down for
hearing on the 3 August 2020 in respect of both merits
and
quantum.
The Defendant on such date was afforded a further opportunity to
consider settlement proposals to the Plaintiff’s attorney.
On
the 25 August 2020 the only issues which the Defendant had settled on
were the merits of the matter and the furnishing of a
Certificate in
terms of Section 17(4) of the Act, in respect of the Plaintiff’s
future medical and hospital expenses.
[3]
In light of the Defendant’s
failure to settle the
quantum
aspects of the Plaintiff’s claim as well as the Defendant’s
supine actions to finalize the matter and refusal to make
any
admissions in respect of Plaintiff’s expert evidence, Deputy
Judge President Van Zyl granted an order on the 25
th
August 2020,
inter alia
,
that the trial would commence on 7 September 2020. It is common cause
that the Defendant had by this stage failed to submit any
expert
reports of its own in respect of countenancing the Plaintiff’s
expert report.
[4]
It is further common cause that on 28 August 2020 the Defendant
admitted that the Plaintiff’s
expert reports are what they
purport to be and admitted the correctness of the information therein
as well as the opinion therein
and that the reports could be admitted
into evidence without the necessity of calling the expert witnesses
to prove their findings
and opinions. Shortly thereafter the
Plaintiff’s claim for general damages in the amount of
R1 000 000.00 became
settled between the parties. A draft
order in this regard was handed in by
Mr Frost
on behalf of
the Plaintiff on the 07
th
September 2020. The draft order
marked ‘’X’’ was made an order of court.
[5]
The Defendant failed to appear at the hearing of the matter and made
no representations
regarding the finalization of the matter. The
Defendant’s conduct in this matter is extremely perturbing and
warrants censure.
[5]
Thus the only issues for
determination by me are the Plaintiff’s claim for loss of
earnings/earning capacity and the costs, including the costs of two
counsel (where so employed).
THE PLAINTIFF”S
INJURIES:
[6]
The Plaintiff sustained the following severe injuries:
6.1
a brain injury;
6.2
Multiple abrasions to the chest, scalp, both thighs, back, lower leg
and right knee;
6.3
left pneumothorax;
6.4
right knee dislocation and ligament injury;
6.5
blow- out fracture of the right supra-orbital bone;
6.6
Multiple rib fractures.
[7]
The Plaintiff provided
viva voce
evidence to the Court, and
her evidence is summarized as follows:
7.1 The Plaintiff
submitted that she had obtained a matric certificate with university
entrance in 2013;
7.2
In 2014, she cared for her terminally ill grandmother;
7.3
In 2015 she attended the Dower College and passed her N4 in Human
Resources;
7.4
At the time of the collision, she had been studying towards her N5/N6
in Human Resources;
7.5
After her discharge from hospital she returned to her studies at
Dower College. She was
then readmitted to hospital in May 2016 for a
further operation to her knee and then returned to her studies in
June/July 2016.
The Plaintiff could not cope with her studies and
left Dower College in August/September 2016.
7.6
In 2017 Plaintiff re-enrolled at Dower College but did not attend any
classes;
7.7
In 2017, and through Ubuntu Pathways (a skills development NGO),
Plaintiff was placed at
Engen Garage Shop as a cashier. She did not
cope with this employment due to long periods of standing and her
inability to perform
weight bearing activities and left after two
months. Ubuntu thereafter placed her at McDonalds as a cook/hostess.
She left McDonalds
after five months.
7.8
In 2018 she enrolled at the Nelson Mandela University George Campus
for a one year bridging
course. She failed this.
7.9
In 2019 she enrolled at the Cape Town Peninsula College of Technology
for a marketing diploma.
She failed her first year and returned home
to Port Elizabeth;
7.10
She has remained unemployed since.
[8]
The Plaintiff’s evidence
was that she was very ambitious prior to the collision and
it was her
intention to study further and to get a formal qualification. At High
School, she was Head of Interact club, Captain
of the Debating Team
and was the school librarian. She used to enjoy being involved in
society and being involved on a social level.
Her reasoning for
embarking on her N levels was so that she could obtain better points
to study for the degrees which appealed
to her (such as law or
something similar). She wanted to work in a corporate environment
upon completion of her studies. She is
able to speak fluent English,
Afrikaans and Xhosa. Plaintiff testified that her mother always
encouraged her to study and further
herself in life.
[9]
The Plaintiff testified that she was far more resilient and able to
cope with anything
life presented to her prior to the accident. After
the accident however, any traumatic event brings back all the
emotions associated
with the collision and she cannot cope like she
used to.
[10]
Previously she would experience an epileptic seizure once every 6 to
8 months and they never
impacted on her studies. Since the accident
however she can experience 5 to 6 fits per month. In addition she has
migraines on
a daily basis. She has suicidal tendencies (and has
already attempted suicide on one prior occasion) stating that she is
a failure,
has no reason to wake up in the morning and has nothing to
live for anymore. She is pre-occupied with her scarring and this
affects
her well-being and self-confidence. This is in direct
contrast to the person she was prior to the collision.
[11]
The Plaintiff submitted that she has
realized that she will not be able to complete her tertiary studies
as would have been prior to the collision. She also pointed out the
difficulties she would face in the labour market as she was
of the
view that no employer would want to employ an employee who was absent
from work due to fits or had to be hospitalized due
to migraines. She
further submitted that she could not cope with stress, and could not
recall and remember as she used to.
[12]
The Plaintiff’s mother, Notntsikelelo Mofongosana is currently
50 years old and holds a National
Diploma in Supply Chain Management.
After obtaining her N4/N5 in 1994/1995 from Technical College she
commenced employment with
the Department of Education as a Budget
Control Assistant. Shortly thereafter she obtained a job at Portnet
(now Transnet) as a
temporary data capturer. She studied part time
whilst working and in 2000 was made a permanent employee at Transnet
as a Goods
Receiver at the Transnet National Port Terminal. Through
experience and skills development she worked herself up through the
ranks
and is currently operating as a Vendor Master and has been in
this position for the last five years. This position attracts an
annual basic salary of R 439 000.00.
[13]
The Plaintiff’s older sister holds an N4 in Tourism and is
currently employed at the municipality
in the position of supervisor.
Plaintiff’s brother is currently attending a Technical High
School where he is focusing on
Electrical Engineering. Plaintiff’s
youngest sister is at Lawson Brown High School and upon completion of
her high school
education, wishes to study accounting.
[14]
The Plaintiff’s mother financially assisted all of her children
in the furtherance of their
studies. She encouraged them to study
further as in her opinion education is very important.
THE EVIDENCE OF
LAETITIA STRAUSS:
[15]
Ms Strauss, Occupational Therapist testified that at the time of
preparing her initial opinion
she was not in possession of a
confirmed diagnosis in respect of the Plaintiff’s head injury
and acquired cognitive deficits.
On testing, it was apparent that
Plaintiff’s cognitive abilities fell within the extremely low
range which then necessitated
Ms Strauss advising that the Plaintiff
be referred for a neuropsychological assessment by a Clinical
Psychologist. From a physical
perspective, Ms Strauss initially found
the Plaintiff to be suited to completely sedentary work and even then
she would have difficulties
as she cannot sit for long periods of
time and would be deemed a vulnerable employee. Upon receipt of Mr
Bilué Moolman’s
report and diagnosis of a Neurocognitive
disorder due to TBI, Severe Depression, mild PTSD and Somatic Symptom
Disorder, Ms Strauss
opined that the culmination of injuries
(physical and psychological) and the
sequelae
,
as well as the evidence of the Plaintiff and her mother regarding how
quickly the Plaintiff has deteriorated since Ms Strauss
last assessed
her, had resulted in the Plaintiff being unemployable in any
capacity.
THE EVIDENCE OF LANI
MARTINY:
[16]
Mr Lani Martiny, the Industrial Psychologist testified that based on
the evidence provided about
her own and the family achievements,
especially in regard to her mother, father and older sister’s
achievements, it is clear
that there is a strong work ethic in
Plaintiff’s family and that there is a trend to obtain a
tertiary qualification. Mr
Martiny predicted the following premorbid
career progression:
16.1
2016:
She
probably would have qualified with an N6 qualification in Human
Resources. Considering her motivation and her strong orientation
to
work with other people she was probably well suited to this kind of
work.
16.2
2017:
She
would have been able to apply for work in formal organizations which
employ qualified human resource people.
She
would have probably started off work as a trainee for 1 – 2
years at the Paterson B2/B3 levels. Thereafter career growth
would
probably require further development and attendance of courses or of
obtaining further qualifications as well as experience.
16.3
2019:
She
would then have been able to advance from a Paterson B2/B3 level to
Paterson C1 level. Thereafter to account for salary increases,
changes of jobs and possible promotions a straight line can be drawn
up to scenario 1 and scenario 2.
16.4
Her scholastic performance and academic performance prior to the MVA
are very important aspects in deciding on using scenario
1 and/or
scenario 2.
Scenario
1: By the time she reached the age of 45 years she probably would
have been able to advance up to at least Paterson C3
level.
Scenario 2: By the time
she reached the age of 45 years, she probably would have been able to
advance up to the Paterson C4 level
or the Paterson C5 level.
Average
annual increments of approximately 7% per annum would then apply up
to the normal retirement age of 65 years.
16.5
Her intentions were to work in a large organization such as Transnet,
or in a corporate organization. With her background there
is a good
chance that she could have done so.
[17]
After listening to the oral testimony of the Plaintiff and her
mother, Mr Martiny was of the
opinion that
scenario
2
is the more probable one considering
the Plaintiff’s achievements at school (Head of Interact,
Captain of the Debating Society,
opening a Library, tutoring other
students), her motivation and dedication towards furthering herself
(even in her injured state
she continued to make attempts towards
qualifying herself), the fact that her family are all educated with
her mother already earning
on the Paterson C level despite not having
a degree, Plaintiff was involved in volunteer work, Plaintiff had
the ability
to obtain a BTech qualification, she is an African
female and thus a candidate for affirmative action; and Plaintiff is
trilingual
therefore she would be an asset to most corporate
companies. Plaintiff was a well-rounded individual with a lot to
offer.
[18]
With regards to his initial opinion on Plaintiff’s post morbid
career progression, Mr Martiny
advised that he wished to alter his
opinion. After hearing the evidence of the Plaintiff and her mother,
as well as the evidence
of Ms Strauss regarding the Plaintiff being
unemployable and the fact that Plaintiff’s condition has
deteriorated very quickly,
Mr Martiny is of the opinion that the
Plaintiff will not find employment in the future.
[19]
Mr Martiny testified that he set out certain salary figures to be
used by the actuaries in calculating
the Plaintiff’s claim. In
order to address the difference in salaries across corporations, Mr
Martiny suggested the Actuary
use the average between the medians of
the basic and full package salary survey scales for corporate
employment in Koch’s
Quantum Yearbook.
[20]
Mr Bilué Moolman, a Clinical Psychologist, conducted a
psychological assessment of the
Plaintiff and found as follows:
[1]
‘’
The
Plaintiff’s performance on psychometric testing indicated that
the Plaintiff’s premorbid level of functioning has
been
altered. Considering that the Plaintiff would be graded as an average
student prior to the MVA her performances on the psychometric
testing
and her academic record post MVA indicate that there has been
acquired cognitive deficits…….it seems that
variable
processing speed performances make it difficult for her to grasp
information quickly with her low mood, PTSD and pain
symptoms
compounding and affecting her performances…..she struggles to
reason out problems therefore making it difficult
for her to
understand a topic and learn from mistakes.
The
following DSM V diagnosis describes Plaintiff’s sequelae:
Mild
Neurocognitive Disorder due to TBI;
Major
depressive disorder, severe with melancholic features;
Post
Traumatic Stress Disorder, mild;
Somatic
Symptom Disorder with predominant pain (pain disorder).
The
examiner is of the opinion that the Plaintiff’s current
prognosis is poor. She has been unable to complete several courses
she has attempted to study and it looks unlikely that she will be
able to pass her current course. The examiner is also of the
opinion
that the combination of her neurocognitive deficits and physical
sequelae will result in her struggling to find work……With
all of this considered, the Plaintiff also has to deal with the fact
that her seizure episodes have increased……In
all
likelihood her employment opportunities in the open labour market
have been hampered. ‘’
[21]
In Mr Moolman’s supplementary report of 31
July 2020, it was noted that the Plaintiff had suffered a
miscarriage
,
had not passed
the 2019 academic year of studies and
had
attempted suicide
.
Now
that she no longer has any of her previous protective factors, the
Plaintiff is at high risk of self-harming behaviour. In addition,
the
scarring across her body significantly affects her self-esteem. She
is reluctant to form a new intimate relationship as she
is afraid of
revealing her scars. It also affects what she wears. The Plaintiff
noted that in her culture, when scars are on display
the community
tend to assume that she is a tsotsi and their initial reaction is to
treat her like a criminal. Therefore to avoid
judgment the Plaintiff
purposefully chooses to wear clothes that cover all of her scars.
The
examiner is quite confident that the Plaintiff will continue to
struggle with tertiary education. She is also at a significant
disadvantage in the open labour market from a psychological
perspective.
[22]
Mr Moolman has in his affidavit handed in to Court dated 8 September
2020 brought to the Court’s
attention that in light of his
diagnosis and the Plaintiff’s exacerbated conditions, he is of
the opinion that her award
should be protected.
[23]
I have had due regard to the content of the various medico-legal
reports and consequent supplementary
reports (where so provided) of
the following experts which were admitted by the Defendant:
201.
Dr P A Olivier;
20.2
Dr C G Apostolis;
20.3
Laetitia Strauss;
20.4
Bilué Moolman;
20.5
Lani Martiny;
20.6 G
Whitaker.
ACTUARIAL CALCULATION:
[24]
Plaintiff’s claim for loss of
earnings/earning capacity has been actuarially calculated by
Algorithm Consultants and Actuaries
in their report of 7 September
2020. Plaintiff’s claim is based on scenario 2 of Mr Martiny’s
report.
Past loss
Uninjured
income
R 768 333.00
Less 5%
contingency
(R 38 417.00)
R 729 916.00
Injured
income
R 22 967.00
Less 5%
contingency
(R 1 148.00)
R 21 819.00
Net Past
Loss
R
708 097.00
Future
Loss
Uninjured
Income
R 10 515 563.00
Less 25% contingency
(R 2 628 891.00)
Net future
loss
R 7 886 672.00
TOTAL NET LOSS (after
application of the loss limit)
Past
loss R637 241.00 and Future loss R7 856 382.00 =
R 8 493 623.00
[25]
Mr Frost has inveigled me to apply a 25%
contingency as set out in the above calculations. It is trite
that
the contingencies are a matter that falls within the discretion of
the court when a court weighs up what Nicholson JA called
‘’
the
vicissitudes of life’’.
[2]
He held further ‘’
the
rate of the discount cannot of course be assessed on any logical
basis. The assessment must be largely arbitrary and must depend
upon
the trial Judge’s impressions of the case.’’
[26]
In my view having regard to the conspectus of the evidence as a whole
and argument proffered by Mr
Frost for the Plaintiff I make the
following order:
26.1
the order marked ‘’X1’’ is made an order of
court.
__________________________
V NAIDU
ACTING
JUDGE OF THE HIGH COURT
[1]
Pages
73-91 of the Index to Expert Reports
[2]
Southern
Insurance Association v Bailey NO
1984 (1) SA 98
(A) at 116-117