About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 121
|
|
N.M.M obo R v Road Accident Fund (144/2017) [2023] ZAFSHC 121 (19 April 2023)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 144/2017
In
the matter between
:
NM
M[...] obo R
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
MPAMA AJ
HEARD
ON:
23 NOVEMBER 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be
15:00
on
19
APRIL 2023
.
Factual
Background
[1]
The plaintiff, Ms M[...] is suing the
defendant in her representative capacity as the biological
mother of
R[...] born on 4 February 2010.
[2]
On 20 May 2016, R[...] was involved in an accident when she was hit
by a motor vehicle
whilst she was a pedestrian. She sustained the
following injuries:
(a)
A degloving injury on the scalp.
(b)
Abrasions on the back.
(c)
Abrasions on the right foot.
[3]
As a result of the accident, the plaintiff instituted this claim
under the following
heads:
(i)
Future medical treatment.
(ii) Future
loss of earnings.
(iii) General
damages.
[4]
The parties have settled the merits, general damages at an amount of
R650 000.00
(Six Hundred and Fifty Thousand) and the defendant
further agreed to furnish the plaintiff with an undertaking for
future medical
expenses in terms of
section 17(4)
of the
Road
Accident Fund Act 56 of 1996
. The defendant conceded liability for
100% of plaintiff’s proven damages. The issue which remained
unresolved between the
parties is that of future loss of income.
[5]
The plaintiff did not present any
viva voce
evidence. By
agreement between the parties, the plaintiff’s affidavit and
numerous reports compiled by experts were presented
by way of
affidavits in terms of Rule 38(2) of the Uniform Rules.
[6]
In terms of the plaintiff’s affidavit Ms N[...] M[...] M[...]
is the mother
of the minor child. She deposed to an affidavit on 23
November 2022 stating the condition of the minor since the accident.
She
stated that the minor was hit by the car on 20 May 2016, next to
K[...] P[...] S[...], Dewetsdorp. She was taken to hospital where
she
was detained for a week. The minor sustained some injuries on the
head, back and foot. She further stated that the minor still
complains of headaches and for pain management she gives her aspirin.
In addition, the minor complains of pain in her feet and
back when
she is standing or walking for extended periods.
EXPERT
REPORTS
[7]
There were a number of medico-legal experts who assessed the minor
and prepared some
reports. The following reports were handed in on
behalf of the plaintiff and they form part of evidence before this
court. I will
now refer to certain salient features of these reports.
i)
Dr Danie Hoffman: Plastic, Reconstructive and Cosmetic
surgeon
He
examined the minor on 11 October 2016, and completed the RAF 4.
His diagnosis was disfigurement due to scarring of the scalp.
The
minor sustained a degloving injury on the scalp, abrasion on the back
and right foot. He recorded that the minor remains with
a large
alopecic scar over the left tempero-parietal scalp which may improve
over time with treatment. He further stated that the
scar can be
excised and re-sutured in one setting to improve the appearance of
the scar in future. He determined that the minor
qualified for
general damages under the narrative test on the basis of permanent
serious disfigurement.
ii)
Dr LF Oelofetse: Orthopaedic Surgeon
He
examined the plaintiff on 22 May 2018. The plaintiff at the time of
examination reported that she was experiencing chronic headaches,
pain over the area of her skull and inside her head. She was
experiencing these headaches on a daily basis with radiating pain
into her neck. His conclusion was that the injuries sustained from an
orthopaedic perspective have no impact on the minor’s
future
productivity, working ability, amenities of life and expected age of
retirement.
He
examined the minor again on 19 October 2022, and filed an addendum
report. He opined that the minor had a thoracolumbar spine
injury
with secondary mechanical back pain and a left foot with residual
pain. This resulted in a difficulty with sitting, walking,
stooping,
squatting, handling heavy objects, climbing and getting in and out of
a vehicle. His conclusion was that the minor must
be placed in a
permanent light duty and back friendly environment. He noted that the
injury on the head has a profound impact on
her school activities and
other amenities of life, however it will not have a detrimental
effect on the minor’s life expectancy.
However, he deferred to
the opinion of a neurologist regarding the minor’s head injury
and the possible effect this injury
might have on her life
expectancy.
iii)
Ms Lida Roos: Educational Psychologist
Ms
Roos examined the minor on 23 August 2018. In her report she referred
to the reports of Dr Oelofense, Hoffman, and Mr Nhlapo.
Ms Roos
recorded that the minor had an uneventful birth, her development was
normal and there were no concerns raised. She
further stated that no
one in the minor’s family has been diagnosed with any learning
problems, however her family has very
low levels of education. At the
time of accident, the minor was doing Grade one (2016) and at the
time of the assessment she was
in Grade three (2018). She noted that
though the minor has an average range of intellectual potential she
probably would have completed
her school career with a matric
qualification. She recorded that she would have been able to find
some employment in the open market
with her matric qualification.
She noted that her verbal skills measured below average, with
comprehension and memory indicated
as below par. She opined that the
minor is able to access her working memory, her processing and work
speed is adequate. However,
the minor’s regular headaches could
affect her optimal functioning in the classroom and needs to be
medically addressed.
Ms
Roos assessed the minor again on 29 September 2022, to determine if
there was an improvement or deterioration in the minor’s
functioning or circumstances. She recorded that the minor’s
intellectual ability falls in the average range post-accident.
Her
verbal skills measured below par. She concluded that with a severe
head injury and diffuse brain it is highly probable that
the minor
will struggle at later grades as she progresses in school and that if
she develops serious learning problems she might
have to move to a
remedial school and obtain a remedial Grade 12.
iv)
Mr AS Nhlapo: Neuropsychologist
He
examined the minor on 28 June 2019. He found that the minor’s
neurocognitive functions have not been negatively affected
by the
head injury. According to him at the time of examination the minor’s
intellectual functioning fell within the average
and she performed
above average in some tasks. He concluded that it was expected for
the minor to progress well throughout her
school career and tertiary
level.
v)
Ms A Booyse: Occupational therapist
She
assessed the minor on 14 April 2019. On consultation with the minor
it was reported that the minor still suffers from chronic
headaches.
She recorded that the minor tested below the norm in all the subtests
presented to her and was unable to maintain focus
on the task at
hand. These low scores indicated difficulty in almost all areas of
visual perception and they will affect her reading
and writing
abilities in the classroom. She added that if these issues are not
addressed she may fall behind as workloads and difficulty
of work
increase in higher grades. Her conclusion was that this could impact
on her concentration and attention within the classroom
as well as in
tests and exams.
vi)
Dr AC Strydom: Industrial psychologist
He
conducted his assessment on 19 January 2022. At the time of the
assessment the minor was 11 years and 11 months old. In his
assessment he referred to the reports of Ms Roos, Dr Hoffman,
Dr Oelofse and Mr Booyse. He noted that considering the minor’s
premorbid potential, the earnings should be calculated at the median
of an unskilled worker. He recorded that the minor seems to
have
experienced good health prior to the accident and probably had the
capacity to have continued working until the usual retirement
age of
65 years or for as long as her health allows. He concluded that the
minor has been rendered a vulnerable scholar and future
candidate in
the open labour market and needs to be compensated for that.
vii)
Dr DK Mutyaba: Specialist Neurosurgeon
He
examined the minor on 20 May 2016. His diagnosis was that the minor
suffered a mild traumatic brain injury (TBI) with post-concussion
headaches. He recorded that TBI rarely result in significant
neurocognitive and/or psychological deficits and that there were no
expected complications from a neurosurgical perspective.
viii)
Mr AS Nhlapo: Clinical Psychologist
He
assessed the minor on 28 February 2019. In order to establish the
impact of the accident on the minor’s emotional well-being
as
well as general behaviour. The minor was subjected to
neuropsychological screening tests. The results suggested that the
neurocognitive
functions have not been negatively affected by the
head injury, that her intellectual functioning fell within the
average and she
performed above average on some tasks.
ix)
Johan Sauer Actuaries & Consultants:
Mr
Sauer compiled a report on the future loss of earnings to be suffered
by the minor. He based his calculations on the educational
psychologist and industrial psychologists’ reports. He noted
that due to the minor’s age at the time of the accident
she
would not earn an income until 1 April 2030, and would have to earn
an income equivalent to the median income of unskilled
workers as
suggested by the industrial psychologist. According to his
calculations if a contingency in the pre-morbid scenario
of 20% and a
contingency in the post-morbid scenario of 60% is applied the future
loss of earnings is an amount of R1 110 271-00.
If the loss
earnings are calculated by using a 60% contingency differential and
more particularly 20% premorbid and 80% post morbid,
the calculated
loss of earnings is an amount of R 1 665 406 00.
[8]
The undisputed evidence of the plaintiff is that the minor sustained
injuries as a
result of the accident. What remains to be considered
is how these injuries have affected the minor or whether the injuries
resulted
in the
sequelae
as contended by the plaintiff. Both
parties are in agreement that the minor did suffer some future loss
of income. The plaintiff
in her heads of argument referred the court
to several authorities and submitted that a fair and reasonable award
for the plaintiff’s
damages for future loss of income is an
amount R1 110 271-00. The defendant made no contradictory
submission. However,
the defendant contended that the plaintiff bears
an onus to prove her case and the court should exercise its
discretion in the
application of contingencies.
Legal
Framework
[9]
It is trite that the plaintiff must prove the extent of her loss and
damages on a
balance of probabilities. With regard to loss of income
the plaintiff must prove the amount of income she will reasonably
lose
in the future as a result of the injury.
[10]
In order to determine a plaintiff’s claim for future loss of
income the court must compare what
the minor would have earned if it
was not for the accident with what she would likely have earned after
the accident. In
SOUTHERN INSURANCE ASSOCIATION LTD V BAILEY
NO
1984(1) SA 98 AD at 113F -G
it was said:
“
Any enquiry into
damages for loss of earning capacity is to its nature speculative,
because it involves a prediction as to the future
without the benefit
of crystal balls, soothsayers, augers or oracles. All that the court
can do is to make an estimate, which is
often a very rough estimate
of the present value of a loss.”
[11]
In determining what the effects of the injuries are likely to be in
the minor’s education and
career I have had regard of the
expert reports. It is so that according to the neurosurgeon and
clinical psychologist the minor’s
neurocognitive functions have
not been affected by the accident. However, the occupational
therapist, industrial psychologist and
educational psychologist agree
that there is a high probability that the minor’s scholastic
performance and career prospects
will be negatively affected. The
orthopaedic surgeon has also concluded that due to the nature of the
injuries sustained, the minor
must be placed in a permanent light
duty and back friendly environment. All this indicates without an
inch of doubt that the minor’s
future income has been
negatively affected by the accident. Moreover, no evidence to the
contrary was received from the defendant.
[12]
When making an order for future losses, it is expected from the court
to make use of contingency deductions
to provide for any future
circumstances which may occur, but cannot be predicted with
precision.
[13]
Our courts have accepted that the extent of the period over which a
plaintiff’s income has to
be established has a direct influence
on the extent to which contingencies have to be accounted for. The
longer the period over
which unforeseen contingencies can have an
influence over the accuracy of the amount deemed to be the probable
income of the plaintiff,
the higher the contingencies have to be
applied.
[14]
The actuarial calculations are not binding
to this court as the court has a wide discretion to award
what it
considers to be fair and reasonable compensation. The court is not to
be ‘tied down by inexorable actuarial calculations.
[15]
Having regard to the evidence presently before me I am of the view
that an amount of
R1 110
271.00 will be
adequate and fair compensation for
future loss of income.
Order
[16]
I accordingly make the following order:
1.
The
defendant shall pay to the plaintiff the amount of R650 000.00 in
respect of general damages.
2.
The
defendant shall pay to the plaintiff the amount of R1 110 271.00
in relation to the plaintiff’s future loss of earnings.
3.
The
payments shall be made by the defendant to the plaintiff within
180
days
from the date of this order into the trust account of the plaintiff’s
attorneys failing which the defendant shall become
liable to pay
interest a tempore morae on the capital amount aforesaid at a rate of
7% per annum from the date of this order to
date of final payment.
4.
The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4)
of the
Road Accident Fund Act 56 of 1996
, for payment
of 100% for the future accommodation of the plaintiff in a hospital
or nursing home, or treatment of or rendering
of a service or supply
of goods to her, arising from the injuries sustained by her in the
motor vehicle collision on 20 May 2016.
5.
The
defendant shall pay the plaintiff‘s taxed or agreed party and
party costs until the date of this order including costs
of one
counsel. Such costs shall include the following:
5.1
the
reasonable qualifying fees of the following experts:
5.1.1
Dr DK Mutyaba
5.1.2
Dr LF Oelofse
5.1.3
L Roos
5.1.4
Dr D Hoffman
5.1.5
Dr AC Strydom
5.1.6
AS Nhlapo
5.1.7
Anel Booyse
5.1.8
Mr Johan Sauer
6.
The
payments are to be made into the following account:
VZLR
INC – TRUST ACCOUNT
ABSA
BUSINESS BANK HILLCREST
ACCOUNT
NUMBER: 3[...]
BRANCH
CODE: 6[...]
REFERENCE:
M[...]
MPAMA
AJ
On
behalf of the plaintiff:
Adv.
MDJ Steenkamp
Instructed
by:
Messrs
VZLR Inc
c/o
Du Plooy Attorneys
Bloemfontein
On
behalf of the defendant:
Ms P.
Mkhwanazi
Instructed
by:
Office
of the State Attorneys
Bloemfontein