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[2023] ZAFSHC 169
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Baloyi-Mbembele obo N.M v Road Accident Fund (1104/2021) [2023] ZAFSHC 169 (18 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: 1104/2021
In
the matter between
:
ADV.
MAPULE CONSTANCE BALOYI-MBEMBELE
obo
N[…] M[…]
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM
:
MPAMA, AJ
HEARD
ON
:
22
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 09h00 on 18 May 2023.
FACTUAL
BACKGROUND
[1]
The plaintiff, Adv Mapule
Constance Baloyi-Mbelembele, is suing the defendant in
her
representative capacity as
curator ad litem
(appointed on 27
October 2022) of the minor child, N[…] M[….] born on 10
June 2006 to whom I shall refer as the minor.
[2]
On 17 December 2014,
the minor was involved in an accident when she was hit
by a motor
vehicle whilst she was a pedestrian. At the time of the accident the
minor was 8 years 6 months old. She sustained the
following\g
injuries:
(i)
Head injury with loss of consciousness;
(ii)
Left forehead soft tissue injury;
(iii)
Abrasion on the right shoulder;
(iv)
Abrasion on the left knee;
(v)
Dislocated right patella.
[3]
As a result of the
accident, the plaintiff instituted this claim under the
following
heads:
(i)
Future medical expenses;
(ii)
Future loss of earnings;
(iii)
General damages.
[2]
The defendant has
accepted liability and tendered an undertaking for future
medical
treatment in terms of
section 17(4)
of the
Road Accident Fund Act 56
of 1996
. The claim for general damages has been rejected by the
defendant and is to be referred to the HPSCA for determination. The
remaining
issue for adjudication by the court is that of future loss
of income.
[3]
The parties did not
present any
viva voce
evidence. It was agreed between the
parties that numerous reports compiled by their experts were to be
presented by way of affidavits
in terms of
Rule 38(2)
0f
the Uniform
Rules.
EXPERT
REPORTS
[5]
Several experts’
reports were handed in by both parties in order to assess
the
seriousness of the minor’s injuries. The following
reports were handed in by the plaintiff: Dr TL Nhlapo (Education
Psychologist), Dr G Fredericks (Medical Practitioner), Dr A Kelly
(Neurosurgeon), Dr M Bongobi (Orthopaedic Surgeon), Drs Verster
en
Vennote Inc (Diagnostic Radiologist), Ms L. Grootboom (Clinical
Psychologist), Ms Rene Walker (Occupatoinal Therapist) and Munro
Forensic Actuaries (Actuarial report). The defendant filed the
following reports: Dr S. Makhure (Specialist
Neurosurgeon),
Dr R D. Kgabu (Specialist Orthopaedic Surgeon), Dr GB
Bokaba (Clinical Psychologist), MP Seloane (Industrial Psychologist)
There
were joint minutes filed by Educational Psychologists and
Industrial Psychologist and herein under I refer to certain salient
features
of these reports.
PLAINTIFF’S
EXPERTS
i)
Dr TL Nhlapo: She assessed the
minor on 7 June 2021 in order to
gain a better understanding of the injuries that were caused by the
accident and to further determine
the impact and extent of these
injuries on the minor’s intellectual potential/ functioning and
academic prospects. For the
purpose of her assessment she received
reports from the other experts who examined the minor. Dr Nhlapo
received the following
complaints from the minor: physical -chronic
headaches, epistaxis, knee problems, dizziness and fatigue. Cognitive
complaints:
extreme forgetfulness, academic decline, poor
concentration, short memory span and inability to comprehend
instructions as expected.
The
Dr reported that the minor’s birth was not characterised by any
complications and it was uneventful. The minor achieved
developmental
milestones and was a fine child before the accident.
She
concluded that the minor had a slow pace performance, a short span of
concentration and attention to details. Her thought process
was very
slow and her responses were delayed. The minor was unable to tolerate
the demands of the assessment activities.
The
Dr further recorded that at the time of the accident the minor was in
Grade 1, she passed Grade 1 but failed and repeated Grade
2. At the
time of the assessment she was in Grade 8 and did not achieve in the
first term of Grade 8. Her conclusion was that the
minor presented
with cognitively handicapped IQ, borderline perception, scholastic
backlog/gaps/decline, sunken emotions and psychological
complaints.
The minor would pre –accident have been able to
attain a Grade 12 and a higher certificate.
ii)
Orthopaedic Surgeon: He examined the minor
on 28 May 2021. The minor
at the time of examination reported that she was experiencing pain in
the right knee and the pain is
exacerbated by the inclement weather
and physical exertion. The minor’s knee dislocates when playing
and as a result she
uses a knee guard. His conclusion was that from
an orthopaedic perspective the injuries were not so serious to
qualify for general
damages.
iii)
Clinical Psychologist: The minor complained of
chronic headaches,
nose bleeding and pain in the knee. The minor was given a range of
neuropsychological tests which covered several
cognitive functions
including attention and concentration, memory, visuo-spatial and
construction ability, reasoning formation
as well as executive
functioning. He recorded that the tests revealed mild to
significant neurocognitive implicating left-hemispheric
functions
(verbal learning and memory). He concluded that the minor presented
with residual post-traumatic stress symptoms and
difficulty adjusting
to her altered circumstances.
iv)
Specialist Neurosurgeon: He assessed the minor
on 28 May 2021.
He observed that the minor had memory problems. Her recent and remote
memory were impaired and recommended
that the minor be assessed by a
neuropsychologist. He completed RAF 4 and concluded that the minor
did not suffer any serious long
term impairment.
v)
Specialist Orthopaedic assessed the minor
on 28 May 2021. The
minor was complaining of physical pain in the knee. On examination he
detected Osgood Schlatter (an inflammation
of the area just below the
knee) which had no direct relationship with the accident. Further
investigations revealed that the minor
suffered from pain of the
right knee and that full recovery is expected. He concluded that the
accident had a minimal impact on
the minor’s life amenities and
enjoyment of life and she has not suffered any serious long term
impairment.
vi)
Occupational Therapist: The interview was
conducted on 12
August 2021. She concluded the minor presented with mildly
compromised agility related to pain in the right knee
and compromised
load handling due to pain this will preclude the minor from jobs with
heavy physical demand where agility and heavy
load handling is
required. Her employability will be directly related to her
educational level.
vii)
Industrial Psychologist: He recorded that prior the
accident the
minor reported a good health status as a result she was likely to
have coped with the requirements of her studies.
He reported that in
all probability the minor would have completed Grade 12 and pursued a
career of her choice at tertiary level,
depending on motivation,
pre-accident educational potential and support. He noted 3
pre-accident scenarios :
(a)
The minor obtaining a Higher Certificate (NQF 4)
level of
education, she would have entered open labour market at a Patterson
Level B2, reaching her career ceiling earning at the
upper quartiles
of Patterson C2 level.
(b)
With a Diploma (NQF 6) level of education, she would
have entered the
open labour market at a Patterson level B2/B3, reaching her career
ceiling earning at the upper quartile of Paterson
C4 level.
(c)
With a degree (NQF7) level of education, she would have
entered the
open labour market at a Patterson Level B4/B5/C1, reaching her career
ceiling earning at the upper quartiles of Patterson
D1+ level and
that she would have worked in the open labour market until the normal
retirement age of 65 years depending on a variety
of factors such as
health status, personal circumstances and conditions of employment
market.
He
concluded that with physical and psychological limitations, the minor
has been rendered an unequal competitor and vulnerable
job seeker in
the open labour market. The minor will be negatively affected
due to compromised scholastic abilities and curtailed
employment
opportunities.
viii)
The Actuary: The reports filed by the actuary are based on the
opinion and scenarios contained in the Industrial Psychologist’s
report.
DEFENDANT’S
EXPERTS
[6]
Specialist Neurosurgeon: He conducted the assessment on 07 June 2022.
He noted that the minor experiences occasional headaches which are
well controlled with water and has a poor memory. He concluded
that
the risk of the minor developing seizures in the future is not higher
than that of the general population at 3%.
[7]
Orthopaedic Surgeon: The date of examination was 24 April 2022.He
recorded
that the minor’s physical complaints as follows:
-
Inability to walk long distances
-
Intermittent pains on the right knee
-
Intermittent right elbow pain.
He
concluded that the minor had soft tissue injuries of both her right
knee and elbow, her prognosis is good as she can mobilise
without
crutches and she can participate in her normal activities.
[8]
Neuropsychologist: The report is dated 8 July 2022. It is reported
that
the minor still suffers from physical pain. She experiences
memory problems, is overly forgetful and her concentration span has
increasingly diminished. He concluded that the minor presents with
signs of mental and behaviour challenges. Her attention and
concentration fluctuated and demonstrated working memory challenges.
[9]
Industrial Psychologist: The child was seen on 17 June 2022.
Having
taken into consideration the reports filed by other experts he
came to the conclusion that the minor’s current cognitive
profile would have an increasingly significant impact on her
educational progress and subsequently her occupational potential in
future.
JOINT
MINUTES
[10]
Neurosurgeons: They agree that the minor sustained a minor head
injury and her life
expectancy has not been affected.
[11]
Orthopaedic Surgeon: They agree that the minor was in good health
before the accident
and had no physical restrictions and that the
minor must be assessed by the occupational therapist and industrial
psychologist
for further discussion on future work capacity and
employability.
[12]
Clinical psychologists: They agree that the current cognitive profile
of the minor
would have an increasingly significant impact on her
educational progress and subsequently her occupational potential in
future.
[13]
Industrial Psychologists: They agree that the minor’s
scholastic abilities
have been negatively affected as a result of the
injuries she sustained in the accident.
[14]
Educational Psychologists: They agree that the minor would have
passed Grade 12 and
probable obtain a certificate but disagree as to
her obtaining a diploma.
[15]
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 adduce evidence of her income in order to enable
the
court to assess her loss of past and future earnings. In
addition, the plaintiff must prove the amount of income she will
reasonably lose in the future as a result of the injury. The
following was stated in
MVUNDLE v RAF
(63500/2009) [2012]
ZAGPPHC 57(17 April 2012) an unreported North Gauteng High Court
judgment case:
“
It
is trite that the damages for loss of income can be granted where a
person has in fact suffered or will suffer a true patrimonial
loss in
that his or her employment situation has manifestly changed. The
plaintiff’s performance can also influence his or
her current
job and /or be limited in a number and quality of his or her choices
should he or she decides to find other employment”.
[16]
In order to determine a plaintiff’s claim
for future loss of income the court must compare what the
plaintiff
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 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”.
[17]
The court as stated above is called upon to adjudicate only the
minor’s claim for loss
of earnings. The plaintiff must
establish on evidence that she would have earned an income but for
the injuries sustained. The
crisp issue to be decided is the
amount of damages that the court should award for future loss of
income. The reports of the Educational
Psychologists, Industrial
Psychologists are instructive in this issue. The Industrial
Psychologists agree that the minor’s
scholastic abilities have
been negatively affected by the accident. The plaintiff’s
Industrial psychologist has noted that
the minor’s physical and
psychological limitations have rendered her an unequal competitor and
vulnerable job seeker in the
open labour market and there is no
evidence to rebut this. The Educational Psychologists also
agree regarding the negative
effects of the accident on the minor.
Furthermore,
both parties have submitted that the minor has suffered loss of
income but strongly disagree on the following
aspects: Whether the
minor would post Grade 12 have progressed to a certificate, diploma
or degree, at which Paterson level would
the minor have entered
the open labour market and at which level would her career peak. The
notion that the minor would, but for
the accident obtain a Grade 12
and a higher certificate finds support from the plaintiff’s and
defendant’s Educational
Psychologist. They have acknowledged
that the minor would pre-accident achieve more than Grade 12. It is
my view that the minor
would, but for the accident obtain her Grade
12 and a diploma. I make this finding having taken into account the
minor family’s
educational background (even though the parents
of the minor did not advance in education, the minor’s uncle is
a professional
and working for the municipality), that the minor was
an average learner prior the accident and acknowledging that the
children
achieve more than their parents academically and
vocationally.
[18]
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.
[19]
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.
[20]
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.
Having
considered the evidence and submissions made by both parties I am
satisfied that a fair and reasonable compensation is as
follows:
Earnings
uninjured
R9 407 300.00
Less
15% contingencies
R1 411 095.00
Subtotal
R7 966 205.00
Earnings
injured
R 720 900.00
Less
25% contingencies
R 180 135.00
Subtotal
R 540 765.00
R7
455 530.00 represents the total loss of earnings and is a fair
and reasonable amount in the circumstances of the minor.
ORDER
[21]
In the result I make the following order:
21.1
The defendant is ordered to pay the
plaintiff a sum of R 7 455 530.00 in respect of future
loss
of earnings plus costs.
21.2
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
future medical expenses arising out of the injuries sustained by the
minor in the motor vehicle accident that occurred on 17
December
2014.
21.3.
The plaintiff shall prepare a draft order within 4
days from the date of this judgment to be made an order
of the court.
__________________
L.
MPAMA, AJ
On
behalf of the plaintiff:
Adv.
TC Maphalale
Instructed
by:
Messrs
S.B. Seshibe Inc Attorneys
c/o
Matsepes
Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
Ms
J. Gouws
Instructed
by:
Office
of the State Attorneys
BLOEMFONTEIN