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[2023] ZAFSHC 295
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M.P.L obo R.I.M v Road Accident Fund (1371/2019) [2023] ZAFSHC 295 (2 August 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:
1371/2019
In the matter between:
MP L obo RI M
and
ROAD ACCIDENT FUND
PLAINTIFF
DEFENDANT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
19
MAY 2023
DELIVERED
ON:
The judgment
was handed down electronically by circulation to the parties’
legal representatives by email and release to SAFLII
on 02 AUGUST
2023. The date and time for hand-down is deemed to be 02 AUGUST 2023
at 11h30.
JUDGMENT
[1]
The
Plaintiff’s child, six years old at the time, was involved in a
motor vehicle accident on 7 March 2016. The plaintiff,
acting in a
representative capacity, claims payment of damages arising from the
injuries sustained by the said child in that collision.
She has
abandoned her own claim against the defendant.
[2]
On 10 March 2020, this Court ordered that the defendant was liable
for 100% of the Plaintiff’s proven or agreed
damages. The Court
also ordered that the defendant provide an undertaking in terms of
s17(4)(a)
of the
Road Accident Fund, Act 56 of 1996
as well as
payment of R950 000.00 in respect of general damages.
[3]
The only remaining issue is the adjudication of the amount payable
for future loss of income.
[4]
During the hearing of this matter, the parties agreed that the expert
reports of the plaintiff attached to their respective
affidavits be
handed in as evidence in terms of
Rule 38(2).
Counsel for the
Defendant also admitted on behalf of her client the correctness of
the contents of the reports aforesaid. No expert
reports were handed
into evidence on behalf of the Defendant.
[5]
According to the neurosurgeon, Dr Van Aswegen, the CT scan of the
minor child showed a linear skull fracture and underlying
extradural
haematoma on the right side. There was also a diffused brain
swelling. The upper thorax on the CT scan showed pulmonary
contusions. On admission, the child’s chest X-rays showed
bilateral pneumothoraxes. According to the Dr, a follow-up
CT scan
initially showed a slight increase in the size of the extradural
haematoma, but with the improvement of the brain oedema.
A further CT
scan after the child was discharged from the hospital, showed a
complete resolution of the extradural haematoma. In
brief, the child
accordingly sustained the following injuries: head injury with
extradural haematoma, linear skull fracture, and
brain oedema. She
also sustained lung contusions with bilateral pneumothoraxes.
According to the Dr, she also sustained soft tissue
injuries, and
abrasions on the scalp, the back, and flanks.
[6]
Dr Van Aswegen opines that the child suffered a traumatic head injury
that can be classified as moderate to severe based
on the initial
admission Glasgow Coma Scale of 8/15. According to the doctor,
‘
traumatic brain injuries do not always have to be
associated with structural damage to the brain parenchyma as seen on
the initial
CT of the brain (only swelling of the brain was seen), as
the sequelae of traumatic brain injuries can become apparent years
from
the initial injury especially in the paediatric age group.’
[7]
Me Elmarie Prinsloo, an educational psychologist opines, with
reference to the pre-morbid scenario, that the child would have
been
able to complete Grade 12(NQF4) with diploma endorsement had the
accident not occurred. According to her, passing grade 12
would have
given her the opportunity to complete a three-year diploma thus
enabling her to obtain an NQF6 qualification with which
to function
in the labour market. According to Me Prinsloo, having regard to her
poor social economic standard, after attaining
Grade 12, she would
have entered the labour market and thereafter proceeded to study
part-time towards qualifying for a diploma.
She further opines that
she may take longer to complete her tertiary studies and at least one
further year should be added before
she would have been able to
function in the labour market with a diploma.
[8]
Following an injury, Me Prinsloo observed that the child presented
with physical, cognitive, and psychological symptoms as well
as
personality and behavioural changes. She had an unsightly scarring on
her face and experienced regular headaches, pain on her
sides, and
red and painful eyes. With regard to her behaviour, personality, and
psycho-emotional functioning, she had become withdrawn,
presented
with poor interpersonal skills, was short-tempered, and displayed
symptoms of post-traumatic stress disorder. She also
experienced
narrative memory, comprehension, and what the expert call
higher-order reasoning. Me Prinsloo opines that the child’s
borderline language functioning will increasingly hinder her academic
progress as the work becomes more complex and higher order
reasoning
and comprehension skills becomes more complex and higher order
reasoning and comprehension skills are required.
[9]
The Occupational therapist, Ms Liebenberg, avers that the minor child
presented with some concerns pertaining to cognition,
perception, and
attention. According to her, the child presented with regular
headaches and psycho-social concerns (anger and mood
swings). She
opines that from the emotional and cognitive perspective, as well as
considering regular headaches, the child’s
school performance
is compromised. She further noted that the child has not repeated a
grade at school but there was a decline
in her performance and that
indicted that she was experiencing difficulty in meeting the
requirements of each grade. She also opines
that with the necessary
intervention, the child is likely to cope in the main stream school
and become an equal competitor for
employment.
[10]
Dr Jacobs, an industrial psychologist also evaluated the child.
Seeing that the child was about six years at the time of the
accident
and was still in school, he opines that there could be no talk of
loss of income. I agree with the sentiments expressed
and nothing
more need be said about past loss of income. According to Dr Jacobs
the following information gleaned from the accepted
expert reports
provides guidance in the determination of the child’s loss of
earning capacity: that the child sustained no
orthopaedic injury;
that she suffered a moderate to severe brain injury; was able to
achieve a NQF6 uninjured but will only be
able to obtain NQF3 level
in her injured capacity; she presents cognitive, emotional and
behavioural difficulties that affect her
ability to participate in
the labour market.
[11]
Dr Jacobs observes that with an NQF6 level Grade 12 and a diploma in
the uninjured scenario, the minor would have earned R140 000.00
at the age of 25 and R262 000.00 at the age of 49 in the formal
sector.
[12]
With reference to the injured scenario, Dr. Jacobs opines that the
child will most likely remain unemployed for the majority
of her
life. According to him, the child would at best have been employed on
rare occasions in sympathetic jobs. According to him,
the accident
had detrimentally affected her capacity to earn income. His forecast
was that her income would probably not be more
than R27 000.00
per month in 2020. He submits that this figure should be interpreted
bearing in mind that the child cannot
equally compete for unskilled
work.
[13]
Instructed to calculate the child’s loss of earnings, Munro
Forensic Actuaries calculated the loss of earning at R3 056 280.
They arrived at this figure by applying a 20% contingency deduction
on the uninjured scenario and 50% contingency deduction on
the
injured scenario.
[14]
In the Heads of Argument, Counsel for the defendant attacks the
process, findings and the conclusions made by the experts of
the
plaintiff and argues at the end that a pre-morbid contingency
deduction of 40% is more realistic and appropriate. It is further
argued on behalf of the defendant that ‘
Although
Koch mentions the sliding scale for a child to be 25%
[1]
,
it is …submitted that the unmotivated pitching of the minor at
the entry and peak levels and quartiles, combined with factors
listed
above, calls for a higher contingency deduction to be applied.
[2]
”
[15]
It is submitted on behalf of the defendant that the application of
50% contingency deduction to be applied by the plaintiff’s
Actuary on the post morbid scenario is extremely high and without
motivation. According to the defendant, normally the post morbid
contingency deduction in this regard is 15%.
[16]
As a starting point, the first issue to deal with would be the status
of the reports of the plaintiff as accepted by agreement
into
evidence.
Rule 38(2)
is instructive in this regard and provides as
follows:
"38(2)
The witnesses at the trial of any action shall be orally examined,
but a court may at any time, for sufficient reason,
order that all or
any of the evidence to be adduced at any trial be given on affidavit
or that the affidavit of any witness be
read at the hearing, on such
terms and conditions as to it may seem meet: provided that where it
appears to the court that any
other party reasonably requires the
attendance of a witness for cross-examination, and such witness can
be produced, the evidence
of such witness shall not be given on
affidavit."
[17]
Mr Pohl SC referred this court to the unreported judgment of this
court in ZVS obo SRM v Road Accident Fund
[3]
.
In my view that case is on all fours with the case before me. I align
myself with the reasoning in that case and I refer liberally
to Van
Zyl, J where she says:
What is of utmost
importance is that if the parties agree that the deponent to the
affidavit will not be cross-examined, like the
parties did
in
casu,
the factual allegations in the affidavit stand unchallenged
and, accordingly, no dispute of fact in respect thereof, arises. In
Esorfranki (Pty) Ltd v Mopani District
Municipality
2022 (2) SA 355
(SCA) the Supreme Court of Appeal pronounced on
this issue at paras [23], [27] and [28] of the judgment, the crux of
which is contained
at para [27]:
"The status of the
affidavits before the High Court
[23] ... To the
contrary, it is clearly recorded that the affidavits were received as
evidence before the trial court. It
was accepted by Mopani that the
deponents need not be called since there was to be no cross
examination of them. It was on
this basis that Esorfranki closed its
case. It was accordingly simply wrong to suggest that Esorfranki did
not present evidence
to support its pleaded case. The evidence it
presented in the trial was, by reason of the failure to cross-examine
witnesses or
to lead evidence in rebuttal, uncontested. As will be
seen hereunder, this is of considerable significance in the outcome
of the
appeal.
[24] ...
[25] ...
[26] ...
[27]
There is no
procedural impediment to the reception of evidence, by a
trial
court. by way of affidavit. If the parties agree that facts may be
placed
before a court by way of affidavit and agree that the
deponent will not be
cross-examined, then the factual
allegations contained in the affidavit stand
unchallenged.
Where that occurs, no dispute of fact arises.
[28] It must be
emphasised that Mopani was not obliged to accept the manner in which
the evidence was placed before the trial
court. It was entitled to
challenge the evidence by subjecting the witnesses to cross
examination. Not only did it not do
so, it also elected not to
present any evidence at all, despite being possessed of affidavits
which had been presented in the review
application and in the
numerous interlocutory applications. The upshot of this was that the
only evidence before the trial court
was the extensive allegations of
fact presented by Esorfranki's witnesses." (Own emphasis)
[18]
What is palpably clear in my view is that the defendant chose not to
put in issue or cross-examine the experts on whose
affidavits the
plaintiff relied upon. The affidavits and the evidence contained
therein were handed by agreement.
Rule 38(2)
does not oblige a party
to accept the evidence by way of an affidavit. In this case, not only
did the defendant allow for the admission
of the expert reports in
terms of
Rule 38(2)
, but the correctness of the said reports was
pertinently accepted.
[19]
The only evidence before the court about the issue in dispute is the
evidence as led by the plaintiff. Having this in
mind, one has to
remind oneself that once evidence has been led, it calls for a reply.
If no evidence in rebuttal is adduced, such
evidence becomes
conclusive proof and the party giving it discharges the onus
[4]
.
[20]
Visser and Potgieter, Law of Damages
[5]
authoritatively deal with the role played by expert opinion as
follows:
“
An
actuary is an expert- witness whose opinion is merely a part of all
the other evidence before this court, to be given greater
or lesser
weight according to the circumstances of the case the
calculation and evidence of an actuary often plays an important
role.”
[21]
In adjudicating the liability of the defendant towards the minor
child in respect of the future loss of earning capacity,
it is
necessary for this Court to consider all the evidence as well as the
fact that the defendant led no expert evidence in rebuttal.
[22]
It is undisputed that the child was at the time of the accident 6
years of age when she sustained, according to Dr Van
Aswegen, a
neurosurgeon, a traumatic brain injury that can be classified as
moderate to severe. Ms Prinsloo, commenting on the
pre-morbid
education and training opines that the child would have been able to
complete Grade 12(NQF4) with diploma endorsement.
According to Ms
Prinsloo this qualification would have provided the child with the
opportunity to complete a three-year diploma
course with success,
resulting in an NQF 6 qualification with which to function in the
labour market.
[23]
According to Ms Prinsloo, following the accident the child presented
with physical, cognitive, and psychological symptoms
as well as
personality and behavioural changes. According to her, the child
presented with post-cognitive skills and capabilities.
She opines
that the child’s intellectual potential has been adversely
affected. She further opines that the child will in
all likelihood
struggle to cope with the demands and workload in high school.
[24]
The industrial psychologist opines that the minor will be restricted
to unskilled work. Much as she has not sustained
an orthopaedic
injury, she has a moderate to severe brain injury.
[25]
The report on the calculations by the actuary is based on the
information supplied by the plaintiff’s attorney
as well as the
report of the industrial psychologist Dr Jacobs in order to quantify
the future uninjured earnings and the injured
earnings taking into
account
that
had the child is not expected to reach the suggested pre-accident
career potential and might suffer losses that are not directly
quantifiable and should be addressed via contingencies
[6]
.
[26]
It is contended on behalf of the defendant that the child had
presented with type 1 diabetes and that “
it
follows that these health condition(s), disregarding the accident,
may have affected and/delayed her academic and career
progression
”
[7]
.Clearly,
this health issue is one of the vicissitudes of life. As indicated in
the above paragraph, the actuary took it into account
when assessing
the loss of income. It follows that it cannot again be discounted
after the final calculation.
XIII
THE PRINCIPLES APPLICABLE TO SENTENCING
[27]
I am in agreement with the suggested contingency deductions by the
plaintiff’s actuary in discounting the loss
of income of the
child that in the uninjured scenario a contingency deduction of 20%
should be applied and in the injured scenario
a 50% deduction should
be made. As there is no past loss of earnings the total loss of
earnings should thus be:
Uninjured
earnings
Injured
earning
Loss of
earnings
Future
R4 232
100
R640 800
Minus
contingencies
20%
50%
R 385 680
R320 400
R3 065
280
Total loss of
earnings
R 3 065
280
[28]
The
costs
will naturally follow the cause.
ORDER
1. The defendant is
liable for payment to the plaintiff in the sum of
R 4,015,280.00
(FOUR MILLION AND FIFTEEN THOUSAND TWO HUNDRED AND EIGHTY RAND)
[hereinafter referred to as “the capital amount”],
which amount is compiled as follows:
1.1
R 950 000.00
in respect of general damages; and
1.2
R 3,065,280.00
in
respect of loss of income
resulting from a motor
vehicle collision that occurred on
7 March 2016
. The said
amount is to be administered in trust as provided for in paragraph 6
hereunder.
2. The defendant shall
furnish the plaintiff with an undertaking in terms of
Section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for 100% of the
costs of the future accommodation of the minor child
in a hospital or nursing home or the treatment of or the
rendering of a service or the supplying of goods to the plaintiff
arising
out of injuries sustained by her in the motor vehicle
collision mentioned above, in terms of which undertaking the
defendant will
be obliged to compensate her in respect of the said
costs after the costs have been incurred and on proof thereof.
3. The defendant shall
pay the plaintiff's taxed or agreed party and party costs on the High
Court scale, until date of this order,
including but not limited to
the costs set out hereunder:
3.1 The reasonable
qualifying and reservation fees of the following experts:
3.1.1 Dr A van Aswegen
(neurosurgeon);
3.1.2 Mrs E Prinsloo
(educational psychologist);
3.1.3 Mrs L Liebenberg
(occupational therapist);
3.1.4 Dr EJ Jacobs
(industrial psychologist);
3.1.5 Munro Forensic
Actuaries.
3.2 The cost of senior
counsel.
4. The payment provisions
in respect of the aforegoing are ordered as follows:
4.1 Payment of the
capital amount shall be made without set-off or deduction, within 180
(one hundred and eighty) calendar days
from date of the granting of
this order, directly into the trust account of the plaintiff's
attorneys of record by means of electronic
transfer, the details of
which are the following:
Honey Attorneys -
Trust Account
Bank - […]
Branch Code - […]
Account No. -
[…]
Reference -
[…]
(please quote the
reference at all times)
4.2 Payment of the taxed
or agreed costs shall be made within 180 (one hundred and eighty)
days of taxation, and shall likewise
be effected into the trust
account of the plaintiff’s attorney.
5 Interest shall accrue
at 11.25% (the statutory rate per annum), compounded, in respect of:
5.1 the capital of the
claim, calculated 14 (fourteen) days from date of this order.
5.2 the taxed or agreed
costs, calculated 14 (fourteen) days from date of taxation,
alternatively date of settlement of such costs.
6.
6.1 A trust to be known
as the “
RI M TRUST”
(hereinafter referred to as
“the trust”) for the purposes of administering the award
herein for the benefit of R I
M (identity number:[…])
[hereafter referred to as “the beneficiary”] as the sole
capital and income beneficiary,
shall be established to administer
the award and undertaking made in paragraphs 1 and 2 above.
6.2
Celeste du Plooy in her capacity as representative of Standard Trust
Limited (hereinafter referred to as “the corporate trustee”)
is to be appointed
trustee of the trust with the power of substitution.
6.3 The trustee(s)
outlined in paragraph 6.2 above are to have the following powers:
6.3.1 to receive,
take care of, control and administer all of the assets of the
beneficiary;
6.3.2 to carry on
or discontinue, subject to any law which may be applicable, any
trade, business or undertaking of the beneficiary;
6.3.3 to acquire,
whether by purchase or otherwise, any property, movable or immovable,
for the benefit of the beneficiary;
6.3.4 to let,
exchange, partition, alienate and for any lawful purpose to mortgage
or pledge any property belonging to the
beneficiary, or in which she
has an interest;
6.3.5 to perform
any contract relating to the property of the beneficiary entered into
by her before the date referred to
in paragraph 1 above;
6.3.6 to exercise
any power to give any consent required for the exercise of such
power, where the power is vested in the
beneficiary for her own
benefit or the improvement or the maintenance of her property;
6.3.7 to raise
money by way of mortgage or pledge of any of the immovable property
of the beneficiary for the payment of her
debts or expenditure
incurred or to be incurred for her maintenance or otherwise for her
benefit or provision for the expenses
of her future maintenance or
the improvement or the maintenance of her property;
6.3.8 to apply any
money for the maintenance, support or towards the benefit of the
beneficiary;
6.3.9 to incur
expenditure in respect of the improvement of any property of the
beneficiary by means of building or otherwise;
6.3.10 to expend
any monies belonging to the beneficiary on the maintenance, education
or advancement of any relative of her
or any other person wholly or
partially dependant on her, to continue such other acts of bounty or
charity exercised by the beneficiary
as the Master of the High Court,
having regard to the circumstances and the value of the estate of the
beneficiary, considers proper
and reasonable;
6.3.11 to institute
proceedings which may be necessary for the interest of the
beneficiary or for the due and proper administration
of her estate;
6.3.12 to, as far
as possible, ensure that the beneficiary is, by the payment of the
capital amount awarded above and any
other figures payable in terms
of this order, and by the use to which the payment is put, protected
from the consequences of the
injuries sustained by her in and is as
far as possible enabled thereby to obtain such financial well-being
as he would, were it
not for the injuries and sequelae thereof, have
been able to obtain;
6.3.13 to incur
expenditure in order to ensure that the beneficiary is properly cared
for;
6.3.14 to
administer the beneficiary’s undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
6.4 The corporate trustee
is to furnish security to the satisfaction of the Master of the High
Court.
6.5 The costs of
furnishing such security shall be borne and paid for by the trust;
only in the event that these costs are not recovered
or recoverable
from the Road Accident Fund.
6.6 In the event that the
corporate trustee resigns or passes away his/her position must be
filled by a corporate trustee (who is
properly qualified to
administer the trust assets) who will be required to furnish security
in accordance with paragraph 6.4 above.
6.7
In
the event that the trustees cannot agree on any decision with regards
to the administration of the trust then and in that event
such
dispute will be referred to the Master of the Free State High Court.
6.8 Any amendment of the
approved trust deed will be subject to the leave of the Court.
6.9 The trustees shall
not make any charge in relation to the receipt of the initial payment
to the trust as a result of the proceeds
of the litigation.
6.10 The trust property
is excluded from any community of property or accrual in the event of
marriage of the beneficiary.
6.11 The trust assets
will be deemed to have vested in the beneficiary, who is the only
beneficiary of the trust, one day before
the death of the
beneficiary.
7. The costs of
establishment and administration of the trust, set up in terms of
this order (referred to in paragraph 6) [including
the costs of the
furnishing of security], which costs will include the remuneration of
the trustees, will be paid out of the undertaking
in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, after such costs
have been incurred and upon proof thereof, subject to those costs not
exceeding the amount or amounts that would
have been payable in the
event that a
Curator Bonis
had been appointed to the
plaintiff.
P.
E. MOLITSOANE, J
On
behalf of the Plaintiff:
Adv.
L. LE R. Pohl SC
Instructed
by
Honey
Attorneys
BLOEMFONTEIN
Ref
HL BUCHNER/ldm/J03899
On
behalf of the Defendant:
Ms
J. Gouws
Instructed
by
State
Attorney
BLOEMFONTEIN
Ref
Gouws I L obo Minor I 4436144
[1]
Koch, The Quantum Yearbook,2022, page 121.
[2]
Defendant’s Heads of Argument page 10 para 5.11.
[3]
(5489/2019)
[2023] ZAFSHC 99(31 March 2023).
[4]
Ex parte Minister of Justice: In re R v Jacobson and Levy
1931 AD
466
at 478.
[5]
Potgieter JN; Steynberg and Floyd (3
rd
ed) 2012 at 467.
[6]
Expert report by Munro Forensic Actuaries, paginated record page
150.
[7]
Defendant’s Heads of Argument, page 7.