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[2023] ZAFSHC 176
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R.A.M obo R.C.M v Road Accident Fund (801/2019) [2023] ZAFSHC 176 (17 May 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:
801/2019
In the
matter between:
R[…]
A[…] M[…]
obo
R[…] C[…] M[…]
[Identity
number:
0[…]
]
and
ROAD
ACCIDENT FUND
Plaintiff
Defendant
CORAM:
CRONJÉ,
AJ
HEARD
ON:
25 APRIL 2023
JUDGMENT
BY:
CRONJÉ, AJ
DELIVERED
ON:
17 MAY 2023
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 12h15 on 17 May 2023.
I
INTRODUCTION
[1]
The Plaintiff instituted action against the Road Accident Fund (“the
Fund”)
in his representative capacity as father of R[…]
C[…] M[…] (“R[…]”). She was a
passenger
in one of the insured vehicles and approximately 3 years
old. It was pleaded that R[…] suffered a fracture to her left
tibia,
an injury to her right hand, an injury to the right femur, and
a head injury.
[2]
The Plaintiff claimed R200 000.00 for past medical expenses, an
undertaking in
terms of Section 17(4)(a) of the Road Accident Fund
Act, 56 of 1996 (“the Fund Act”), past and future loss of
earnings
and earning capacity in the amount of R2 100 000.00,
and general damages of R900 000.00.
[3]
On 23 August 2022, Zietsman AJ granted an order by agreement between
the parties that
the Fund accepts liability for 100% of R[…]’s
proven damages. The Fund would issue the Plaintiff with an
undertaking
in terms of Section 17(4)(a) of the Fund Act.
[4]
At the trial, I enquired from Ms A Viljoen, for the Plaintiff, about
the note made
by Daffue, J. on 16 January 2023, stating that the
serious injury report was rejected. She conveyed that the HPCSA has
not yet
formally considered the report and that there was a
misunderstanding in this regard. A hearing for this purpose was
convened by
the HPCSA for 28 April 2023. At date of this judgment the
HPCSA already determined that R[…] did not suffer a serious
injury.
I was informed that the Plaintiff intends reviewing the
decision of the HPCSA. This judgment deals with the patrimonial
damages
only.
[5]
When the matter was to be called, Ms J Gouws, for the Fund
courteously informed me
that the Fund does not have sufficient legal
practitioners to represent it on the day. I continued to hear
the evidence.
II
THE EVIDENCE
[6]
Ms Viljoen handed up a bundle containing the original signed
affidavits of the experts
whose reports were already filed. I perused
the affidavits and am satisfied that they contain the necessary
evidence and are admissible.
I compliment Ms Viljoen for assisting me
with written Heads of Argument.
[7]
Dr Anton H Van den Bout is an orthopaedic surgeon who examined R[…]
on 25 September
2019. He notes that she has small scarring in
the hairline on her forehead. From an orthopaedic point of
view, there
will be no patrimonial damage by way of future loss of
earnings or earning capacity. He deferred to a clinical
psychologist’s
opinion in respect of R[…]‘s mental
functioning. He, however, states that she will for the rest of
her life,
need painkillers and non-steroid anti-inflammatory
medication, for pain and discomfort.
[8]
Dr J H Kruger, a neurosurgeon, states that he examined R[…] on
8 December 2021.
R[…] complains of muscle tension
headaches once a week that are aggravated by physical activity.
She also has pain
in the right lower leg, which she only experiences
after the accident. She uses over the counter pain medication
to manage
the pain which gives relief. It is unclear whether
she lost consciousness since the accident but according to her
father,
she was disorientated for a few minutes. He states that
it is impossible to ascertain if R[…] had executive mental
problems as she was approximately 3 years old at the time of the
accident. He defers to the opinion expressed by Ms R Hovsha,
a
clinical psychologist.
[9]
He states that one would not usually expect cognitive mental
problems, executive mental
problems or educational problems as a
consequence of a mild traumatic brain injury. In 15% of
patients, however, long-term
sequelae
may be present.
[10]
In an Addendum to his report, he pointed out that the hospital
records made mention of a bruise
on her left cheek and that such
bruise confirms a blow to her head.
[11]
Ms Rolene Hovsha, a clinical psychologist with a special interest in
neuro-psychology, evaluated
R[…] on 26 September 2019.
She notes that the hospital records showed that R[…]’s
Glasgow coma score
(“GCS”) was 15/15 on admission.
She notes that given the young age of R[…] at the time of the
accident,
she would not have been able to understand questions
relating to orientation and could therefore not have scored 15/15 on
the GCS.
[12]
She confirms that R[…] takes over the counter medication for
pain. R[…] reports
that she suffers from frontal
headaches associated with dizziness and blurred vision approximately
three times per week. R[…]’s
vision is poor, she suffers
from tinnitus, her memory is poor as she forgets instructions, she is
slower in thought processing,
she suffers from receptive language
difficulties, she is fidgety and unable to sit still. She also
suffers from a travel-anxiety
disorder and feels anxious as a
passenger in a vehicle when the vehicle is speeding.
[13]
Her mental control was severely impaired. This task involves
the ability to sustain attention,
recall and understand instructions,
process basic numerical information, recall responses and to give an
appropriate response.
Her error-awareness was poor, as was her
ability to monitor and correct errors that she made. R[…]’s
judgement,
as measured on the comprehension sub-test of the SSAIS,
was below the average range for her age as she only obtained a scaled
score
of 8 with the population’s average being 10. It
indicates that she has difficulties in utilizing practical judgement
and common sense reasoning as well as a poor ability to appreciate
and recall practical information that is utilized in connection
with
sound and intuitive judgement.
[14]
She has an impaired ability to focus on details and also a
below-average visual perception, visual
motor-orientation, visual
concept formation and motor coordination. In respect of her
executive functioning, Ms Hovsha found
a severely impaired
ability to initiate activities, tasks, or general information.
In respect of her emotional functioning,
there were feelings of
insecurity, inadequacy, inferiority, anxiety, depression,
impulsivity, and poor emotional and social adjustment.
She
notes that if a child has suffered a traumatic brain injury at an
early stage, such as R[…] has, all the educational
effects may
not show up immediately. As she is expected to perform
higher-level thinking and more complex cognitive tasks,
particularly
executive functions, she may experience difficulties, as those areas
of the brain responsible for dealing with such
tasks, particularly
the frontal lobes, are likely to have been damaged in the accident or
did not develop properly due to the injury.
She concludes that
as a result of the deficits, R[…] is unlikely to achieve
academically as she would have, had the accident
not occurred, and
this will affect career options and therefore remuneration in the
future. Her career and earning potential have
been significantly
reduced.
[15]
Ms L de Rooster, an educational psychologist, states that the
contents of her report will remain
valid for a period of two years,
thus until 27 January 2024. Ms De Rooster considered the
reports of Ms Hovsha, Dr Van den
Bout and Dr Kruger. In respect
of psychometric findings, she finds low average cognitive
functioning, impaired narrative
memory, distractibility and
concentration difficulties, poor motivation and difficulty with
initiating and monitoring the work,
significant signs of anxiety,
delayed emotional development and significant scholastic delays.
She concludes that R[…]
will probably not be able to complete
Grade 12 (NQF 4) in mainstream education. Her father’s
lack of insight and her
poor socio-economic circumstances should be
taken into consideration. R[…] was repeating Grade 6 (in
2022). Her
recommendations are that R[…] will benefit
from psychotherapy, a tutor and R[…]’s funds should be
protected,
as she is a minor.
[16]
Mr Steven van Huyssteen, an industrial psychologist, considered
R[…]’s pre-morbid
social-economic situation. He opines
that R[…]’s pre-morbid socio-economic situation was
probably below average, which
would have made it difficult for her to
have a post-school education directly after Grade 12. He opines
that, disregarding
the accident and the injuries sustained, with a
Grade 12 qualification she would have entered the non-corporate work
sector wherein
most people are, according to Statistics SA,
employed. In the corporate sector, R[…] would have
worked and progressed
in her field of education in jobs on the
semi-skilled occupation level. Having regard to the accident
and injuries sustained,
he postulates that R[…]’s entry
into the labour market will be delayed by two years as she would have
failed school
grades and would only be qualified to work in the
non-corporate work sector on the unskilled occupational level.
Due to her
cognitive deficits, she will have a flat career trajectory
and therefore will probably earn an income on the median rand value
for an unskilled labourer throughout her work career until retirement
at age 65.
[17]
Dr L A Fine, a psychiatrist, found that she presents with symptoms of
an accident-traffic travel-related
anxiety disorder and probable
accident-related depression, secondary to the effects of her physical
and accident-related injuries.
He concludes that with having
sustained significant organic brain damage at a very young age to her
young and unformed immature
brain, it is anticipated that besides
causing brain tissue and functional damage, there would be impaired
development of the brain
and it would be anticipated that she would
have some permanent and irreversible damage. The functional effects
can be considered
permanent and irreversible and leave her vulnerable
to development of an array of organically based psychiatric disorders
over
her future lifetime, which would require treatment.
[18]
Dr A P J Botha, a physician, states that the only factual evidence of
craniofacial trauma is
that there was evidence of facial bruising,
which was a significant finding. There appears to be consensus that
she has developed
cognitive and psychological symptoms because of a
concussive head injury sustained in the accident.
[19]
Mr G A Whittaker of Algorithm Consultants and Actuaries CC, dated 6
March 2022, calculated the
loss at R3 719 725.00. In
her heads of argument, Ms Viljoen submits that a 40% contingency has
to be applied to
make provision for her social circumstances before
and after the accident, and that the base-number of the pre-accident
scenario
would amount to R3 333 048.00. A 40% contingency
deduction was applied to her post-morbid scenario, which the
Plaintiff
submits is a reasonable contingency deduction, and the
claim for loss of income is then stated to be R2 886 462.00.
[20]
I am satisfied that the minor’s income earning capacity is
impaired as a result of the
accident. I am of the view that the
reports support the claim.
IV
AMENDMENT OF THE CLAIM
[21]
The Plaintiff argued that an amount of R2 886 462.00 (two
million eight hundred and
eighty six thousand four hundred and sixty
two Rand) should be awarded for patrimonial loss. The summons,
however, stated an amount
of R2 100 000.00 (two million one
hundred thousand rand). The amount calculated by the actuary and the
amount which the
Plaintiff now seeks, exceed the amount in the
particulars of claim.
[22]
A Court cannot make an order that exceeds what was claimed in the
pleadings and the Defendant
was not aware that a higher amount would
be claimed. I informed the Plaintiff’s attorneys that an
amendment to the pleadings
will be necessitated if judgement for
higher amount is sought. On 2 May 2023, the Plaintiff filed and
served a notice of intention
to amend the amount. The Fund did not
oppose the notice to amend and the amended pages were filed and
served on 16 May 2023. It
brings the amount claimed in the heads in
line with the pleadings.
V
THE R[…] C[…] M[….] TRUST
[23]
The Plaintiff requested that I make an order that a trust be created
into which the monies should
be paid. A perusal of the reports
of the experts indicate that there is good reason for entrusting the
monies in trust rather
than to the father who is 50 years old, has a
Grade 10 qualification and appears to be unemployed. I was
provided with a
draft Deed of Trust for the R[…] C[…]
M[…] Trust. The appointment of the trustees and the content of
the Deed
will be subject to the approval or the Master of the High
Court.
VI
CONCLUSION
[24]
I am satisfied that the Plaintiff proved R[…]’s loss of
income and earning capacity
in the amount of R2 886 462.00 (two
million eight hundred and eighty six thousand four hundred and sixty
two Rand).
[25]
In respect of the securing and proper administration of monies of
minors, I took note of the
judgment of the Supreme Court of Appeal in
Road
Accident Fund v MKM obo KM and Another; Road Accident Fund v NM obo
CM and Another
[1]
where the Court made orders regarding the creation of a trust and the
payment of monies that are due to minors into a trust. I
give effect
to those directives in my order.
VI
COSTS
[26]
Costs should follow the result.
ORDER:
[27]
I make the following orders:
1.
The
R[…]
C[…] M[…] Trust
is
to be registered by the Master of the High Court and the Trustees to
be appointed by the Master within three months of this order.
The
Trust and Trustees shall be subject to the supervision of the Master
of the High Court and the provisions of the Trust Property
Control
Act, 57 of 1998.
2.
The Defendant is ordered to pay to R[…] C[….] M[….]
the amount of R2 886 462.00 (two million
eight hundred and eighty six
thousand Rand) in accordance with paragraphs 3 and 4 hereunder.
3.
Payment will be made directly into the trust account of the
Plaintiff’s attorneys within one hundred
and eighty (180) days
from the granting of this order: provided that interest shall start
running on the capital amount within
fourteen (14) days of the
granting of this order, the details of which are:
Holder:
Edeling Van Niekerk
Incorporated Trust
Name
of bank: Nedbank Limited
Account
number: 1[…]
Bank
and branch: Western Gauteng
Branch,
Code: 1[…]
Ref:
M[…]
Claim
no:
560[…]
Link
no:
4[…]
4.
Once the Trust is established,
Edeling
Van Niekerk Incorporated
is
ordered to pay to the
R[…]
C[…] M[…] Trust
,
all monies received from the Road Accident Fund, and held in trust on
behalf of
R[…] C[…]
M[…], within 20 days of receipt of the monies.
5.
Edeling Van Niekerk Incorporated
are
ordered to report to the Registrar of the Free State High Court
within 3 months of this order regarding the establishment of
the
Trust and in addition thereto as soon as the payment of the monies is
effected into the Trust as set out in paragraphs 1 and
4 of the order
above.
6.
Interest shall be paid on the
amount of R2 886 462.00
a tempore
morae
calculated in accordance with
the
Prescribed Rate of Interest Act, 55 of 1975
, read with
Section
17(3)(a)
of the
Road Accident Fund Act, 56 of 1996
.
7.
Defendant pays the Plaintiff’s
taxed or agreed party and party costs inclusive of correspondent fees
on High Court scale which
costs will
inter
alia
include the following in the
discretion of the taxing master:
7.1
All costs in obtaining all medico-legal and actuarial reports and
addendums as well as the
Plaintiff’s and minor’s
travelling and lodging costs in attending medico-legal appoints as
well as the travelling and
accommodation of Plaintiff’s
attorney and counsel attending trial on 25 April 2023.
7.2
The costs shall include the cost of the following experts:
(a)
Dr D Irsigdler – general surgeon report, addendum report and
RAF 4;
(b)
Dr A H Van den Bout – orthopaedic
surgeon;
(c)
Dr J H Kruger – neurosurgeon;
(d)
Ms Rhovsha – clinical psychologist;
(e)
Mrs L de Rooster – educational
psychologist;
(f)
Mr S van Huyssteen – industrial
psychologist;
(g)
Mr G A Whittaker – actuary;
(h)
Dr L Fine – psychiatrist;
(i)
Dr A P J Botha – physician.
8.
The determination of the quantum in respect of general damages is
postponed to
the pre-trial roll.
_________________________
PR CRONJé, AJ
Counsel
for Plaintiff:
Adv
A Viljoen
Attorneys
for Plaintiff:
Edeling
Van Niekerk Attorneys Inc.
McIntyre
van der Post Attorneys
Bloemfontein
Appearance
for the Defendant:
Ms
J Gouws – excused
Office
of the State Attorney
Bloemfontein
[1]
(1102/2021)
[2023] ZASCA 50
(13 April 2023)