Brief Summary

Damages — Loss of earning capacity — Claim for damages arising from a minor child's brain injury and fractured leg sustained in a motor vehicle accident — Plaintiff contending that interim award of R1,500,000 insufficient — Expert evidence regarding child's academic performance discredited due to lack of disclosure of prior academic failures — Court finding that injuries did not compromise child's intellectual potential — Interim award deemed sufficient to cover potential loss of earnings.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a delictual damages action arising from a pedestrian motor vehicle accident, in which the plaintiff, M.Z. acting on behalf of a minor child (Y), claimed compensation from the Road Accident Fund for damages allegedly sustained as a result of the collision.

The matter came before the High Court of South Africa, Free State Division, Bloemfontein, and was decided by Daniso J, with the hearing taking place on multiple dates during August 2022, November 2022, and January 2023, and judgment delivered electronically on 15 June 2023.

The procedural history reflected that the parties reached a partial settlement on 21 April 2022. The defendant conceded the merits at 100% in favour of the plaintiff in respect of proven or agreed damages, agreed to pay general damages of R800,000, paid an interim award of R1,500,000 in respect of loss of earning capacity, and tendered a statutory undertaking for future medical expenses under section 17(4)(a) of the Road Accident Fund Act 56 of 1996. The remaining dispute concerned whether the plaintiff had proved entitlement to additional compensation for loss of earning capacity over and above the interim amount.

The dispute was located in the assessment of loss of earning capacity for a minor child, premised on the plaintiff’s contention that the child suffered a mild traumatic brain injury and associated neurocognitive sequelae that impaired academic performance and future vocational prospects. The defendant disputed that the evidence established that the accident-related injuries compromised the child’s intellectual potential and earning capacity to the extent alleged.

2. Material Facts

The court accepted as common cause that on 8 March 2020 the minor child was involved in a pedestrian motor vehicle accident and sustained, at least, a mild traumatic brain injury and a fractured tibia and fibula of the right leg. It was also common cause that the defendant’s liability had been settled on the basis of 100% merits, and that payments and undertakings were made as recorded in the settlement of 21 April 2022, including the interim award for loss of earning capacity.

The plaintiff’s case on factual causation and impact was advanced primarily through the plaintiff’s testimony and expert evidence. The plaintiff testified that the child was in Grade 4 at the time of the accident and that there was a noticeable change in behaviour thereafter, including aggression, forgetfulness, delayed responsiveness, resistance to schoolwork, and an alleged decline in academic performance culminating in failure of Grade 4. The plaintiff further described social consequences (teasing about a scar), diminished interest in soccer, reluctance to attend school, and a threat of self-harm if compelled to attend.

On the plaintiff’s version as presented to certain experts, the child had not repeated any grades prior to the accident, and the post-accident academic decline was therefore attributed to accident-related neurocognitive impairment. The plaintiff’s clinical psychologist and educational psychologist both proceeded from this premise, linking poor academic outcomes and reduced educational/vocational prospects to the accident injuries.

A significant portion of the material facts, however, concerned pre-accident academic performance and background, which emerged through the evidence of the school principal and through cross-examination. The principal of the child’s school, H[...] P[...] Primary School, testified that the child transferred from another school during February 2019 (while in Grade 3). The principal explained that the child failed the first two terms after transfer, improved in the third term, and passed at year end. In 2020, the child failed the first term, and after the accident and school disruptions caused by the COVID-19 pandemic, the child later failed and was progressed to the next grade on the aggregate of other learners rather than merit. The child then failed again at the end of 2021, and by January 2023 had progressed to Grade 6.

The principal attributed the initial poor performance at the new school to adjustment difficulties arising from a change from a smaller village school to a larger school environment, and testified that teachers observed the need for academic support and interventions. The school reports placed before the court were treated as corroborative documentary material regarding academic struggles and the nature of comments recorded by educators.

The court further treated as material the fact that, under cross-examination, it emerged that the plaintiff did not disclose to her experts that the child had failed grades prior to the accident. In addition, the plaintiff did not inform the experts that the child had lived with grandparents in the Eastern Cape at an earlier stage, that he had suffered from fits, and that he had experienced emotional difficulty connected to the death of a grandfather regarded as a father figure. The plaintiff also conceded she had no personal knowledge of the child’s academic performance in Grades 1 and 2 because the child lived with grandparents then. The plaintiff’s experts indicated they were not apprised of this information and had relied on the plaintiff’s account.

The defendant’s case was advanced through expert reports delivered under affidavit, including the educational psychologist and industrial psychologist. Those experts opined that, even without certain early school reports, the available information suggested pre-accident intellectual functioning that was already below average, with repetition of a grade before the accident, and that the child’s pre- and post-morbid intellectual functioning and likely educational and career trajectory remained essentially the same.

3. Legal Issues

The central legal question was whether the plaintiff discharged the onus of proof to establish that the minor child’s accident-related injuries caused neurocognitive and academic deficits that compromised his intellectual potential and consequently resulted in a quantifiable loss of earning capacity exceeding the interim amount already paid.

A further issue concerned the evidentiary footing of expert opinion in circumstances where material background facts were not disclosed to experts. This required the court to evaluate the reliability and weight of expert evidence that was based substantially on the history supplied by the plaintiff, and to determine whether that evidence was sufficiently corroborated by objective material such as school reports.

There was also a procedural/evidentiary issue relating to the admission of the defendant’s expert evidence under Uniform Rule 38(2), in circumstances where the defendant sought to rely on affidavits rather than oral testimony, and the plaintiff objected.

The dispute primarily concerned the application of law to fact in the assessment of damages for loss of earning capacity, including a value-based assessment of whether the factual foundation justified the substantial additional quantum sought.

4. Court’s Reasoning

The court proceeded from the principle that the plaintiff bears the duty to place before the court sufficient information to enable a just and equitable assessment of the damages alleged, particularly in a claim for loss of earning capacity. The court considered that, when assessing whether a minor child’s intellectual ability has been compromised, the inquiry must take account of relevant background, including family history, personal background, and pre-morbid intellectual ability.

On the procedural issue under Uniform Rule 38(2), the court held that the plaintiff’s objection to the admission of the defendant’s experts’ affidavits was unreasonable. The court’s reasoning emphasised that the objection was based on the defendant’s experts not having certain school reports when compiling their reports, while the same limitation applied to the plaintiff’s experts. The court regarded the onus as resting on the plaintiff to prove the alleged neurocognitive sequelae and their consequences for earning capacity, and accordingly overruled the objection and admitted the defendant’s expert affidavit evidence.

Turning to the merits of the loss-of-earning-capacity claim, the court found that there were material discrepancies in the evidence advanced by the plaintiff concerning the child’s pre- and post-morbid intellectual functioning. Although the plaintiff and her experts sought to present the child as having had unremarkable academic progression prior to the accident and as having deteriorated thereafter due to accident-related injury, the court treated the school reports for the three years preceding the accident as demonstrating that the child had already been struggling academically before the collision.

The court was not persuaded that the post-accident academic difficulties could be attributed to an accident-caused impairment of intellectual potential on the evidence presented. It held that the struggle continued after the accident and characterised it as attributable to unwillingness rather than inability to do schoolwork, on the basis of the material before it, including the school reporting and the principal’s evidence regarding interventions and support.

A key aspect of the court’s evaluation concerned the quality and basis of the plaintiff’s expert evidence. The court held that the expert opinions were tainted and discredited because they lacked corroborating evidence and were grounded substantially in what the experts were told by the plaintiff, where the plaintiff had not disclosed material facts such as prior grade failures and other relevant background. In support of this approach to evaluating expert evidence, the court referred to authority emphasising that expert conclusions must be properly supported and not merely adopted from untested premises supplied by a party.

On the totality of the evidence, the court concluded that it had not been established that the injuries sustained in the accident compromised the minor child’s intellectual potential. Because that causal link and impact were not proved to the required standard, the court held that the plaintiff was not entitled to the additional loss-of-earning-capacity award sought beyond the interim payment already made.

5. Outcome and Relief

The court dismissed the plaintiff’s claim for additional compensation for loss of earning capacity, thereby refusing the further amount claimed over and above the interim award of R1,500,000 already paid pursuant to the settlement.

The court granted a costs order in favour of the defendant, awarding the defendant costs with effect from 21 April 2022.

Cases Cited

S v Mngomezulu 1972 (1) SA 797 (A) at 798–799.

R v Turner [1975] 1 All ER 70.

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(4)(a).

Rules of Court Cited

Uniform Rule 38(2).

Held

The court held that the plaintiff did not discharge the onus of proving that the minor child’s accident-related injuries compromised his intellectual potential so as to justify an additional award for loss of earning capacity beyond the interim payment already made.

The court further held that the plaintiff’s opposition to the admission of the defendant’s expert evidence on affidavit under Uniform Rule 38(2) was unreasonable in the circumstances, and the affidavits were admitted.

The plaintiff’s additional loss-of-earning-capacity claim was dismissed, and the defendant was awarded costs from 21 April 2022.

LEGAL PRINCIPLES

A claimant who seeks damages for loss of earning capacity bears the burden of placing before the court sufficient and reliable information to enable a fair and equitable assessment of that loss. In claims involving minors and alleged neurocognitive sequelae, the court may consider contextual factors including pre-morbid intellectual functioning and educational history when determining whether accident injuries caused the alleged impairment.

Expert evidence must be assessed with regard to its factual foundation and corroboration. Where expert opinions materially depend on a party’s account and that account is shown to be incomplete or inaccurate on material issues, the probative value of the expert conclusions may be diminished. The court may regard such evidence as unreliable where it is not supported by objective material and is based primarily on what experts were told by an interested party.

Under Uniform Rule 38(2), a court may admit evidence by affidavit when sufficient reason exists, but where a party reasonably requires attendance for cross-examination and the witness can be produced, affidavit evidence should not be used. The reasonableness of an objection to affidavit evidence is assessed in context, including the parity (or lack thereof) in the evidentiary position of the parties and the nature of the information said to be missing from expert assessments.

M.Z obo Y v Road Accident Fund (487/2021) [2023] ZAFSHC 242 (15 June 2023)