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[2023] ZAFSHC 437
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M.M v Road Accident Fund (4124/2017) [2023] ZAFSHC 437 (3 November 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
4124/2017
In
the matter between:
M[…]
M[…]
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
23 AUGUST 2023
DELIVERED
ON:
3 NOVEMBER 2023
[1]
The Plaintiff, thirteen years old at the time
of the accident, instituted an action against the Defendant against
the Defendant
arising out of the injuries he sustained as a passenger
in a motor vehicle accident. The Defendant has rejected the right to
claim
general damages and thus on this aspect, the jurisdiction of
this court was ousted. The issue regarding the future medical
expenses
was conceded. This court is only called upon to adjudicate
the contingencies to be applied on loss of earnings.
[2]
The parties agreed that the experts report filed with the
accompanying affidavits shall serve
as evidence before court.
[3]
Dr Schutte, a general practitioner diagnosed Plaintiff with
mal-united right femoral shaft fracture,
with residual symptoms,
excessive internal rotation, tendonitis and post traumatic
osteoarthritis of the right hip. According to
Dr Schutte the
Plaintiff was treated for occipital abrasions.
[4]
Dr Oelofse, an orthopaedic surgeon confirmed the diagnosis of Dr
Schutte that the Plaintiff sustained
the following injuries;
occipital abrasions and right femur fracture with a deformity.
According to the report of Dr Oelofse, an
open reduction and internal
fixation of the right femur was performed on the Plaintiff. Dr
Oelofse opines that it was not possible
to prognosticate at such
young age what the patient’s productivity will be in the
future. He opines, however, that the right
hip/upper leg injury will
have an impact on his productivity or retirement age, regardless of
the type of employment he chooses.
He is of the opinion that the
accident and accompanying injuries did not have a detrimental effect
on the claimant’s life
expectancy.
[5]
Dr Oelofse hold the view that the Plaintiff is an unfair competitor
in the open labour market due to
the injuries he sustained in the
accident. He opines that it will be difficult to compete with other
healthy abled individuals
to secure employment.
[6]
Dr Van Aswegen, a neurosurgeon, summarised the Plaintiff’s
injuries, as being a traumatic
brain injury, occipital abrasions and
right femur fracture with deformity. According to him the
“
long
term cognitive and emotional consequences of mild traumatic injury
include somatic symptoms such as chronic headaches, cognitive
symptoms such as attentional deficits, reduced working memory and
impaired executive functions, and psychiatric symptoms such as
depressed mood, insomnia, anxiety, poor motivation, social withdrawal
and interpersonal difficulties (Konrad et al., 2011), (Bazarian
et
al., 2009).”
[7]
Dr Shevel a Psychiatrist opines that the Plaintiff suffers from a
chemically held form of post-traumatic organic
brain syndrome. Dr
Shevel opines that children who have sustained a traumatic brain
injury often exhibit what is called the “sleeper
effect”.
This according to Dr Shevel implies that such children can do well in
the lower grades where concrete thought and
rote learning is
required. He however holds the view that with progression to the
higher grades, where abstract thought and conceptual
thinking is
required, academic school performance tends to drop off. This
according to him, seems to be the situation with the
plaintiff.
According to him the plaintiff remains educable but was unlikely to
achieve his pre-accident educational potential.
[8]
Mr Mallinson, a psychologist, also assessed the
plaintiff. He assessed the neuropsychological functioning
of the
claimant. The assessment revealed that the plaintiff had poor
auditory attention; difficulty with working memory and double
conceptual tracking, significant psychomotor showing; poor visual
attention, difficulty with numerical reasoning; poor planning
on an
unstructured problem-solving task. He opines that given the
above-mentioned factors noted in the assessment, it is unlikely
that
the plaintiff’s scholastic performance would reach the level it
was before the accident.
[9]
On the pre-accident scenario, Ms Elmarie Prinsloo,
an educational psychologist opines that the Plaintiff
would have been
able to complete Grade 12(NQF4) with a degree endorsement before the
accident. With reference to his technical/
practical cognitive skills
base considered, Me Prinsloo opines that the plaintiff would probably
have been better suited to follow
diploma studies.
[10]
On the post-accident scenario, she refers to the
factual information which indicates that the plaintiff
passed grade
12 with degree endorsement. He enrolled at TVET College the following
year and completed a three month N1 qualification.
[11]
Dr Jacobs, an industrial psychologist indicates with reference to the
uninjured career of the plaintiff,
that he was a scholar of the time
of the accident. That his educational level could most likely be seen
as NQF6 (Grade 12 + Diploma)
as postulated by Me Prinsloo. That he
would have had some opportunity as any healthy person to study, work
and complete for better
paid position in the labour market.
[12]
On the injured scenario, Dr Jacobs opines that it is highly unlikely
that contrary to the aspiration of the
plaintiff, that he would have
become a lawyer. he notes that the plaintiff would have been able to
perform secretarial work with
reasonable accommodation. He noted with
deference to the opinions of Dr Oelofse and Deacon, that the
plaintiff would have retired
5 years earlier than his retirement age.
According to him, the accident has changed his capacity to learn and
earn.
[13]
Munro Actuaries, calculated the plaintiff’s
loss of income. According to the information provided
to them, it is
indicated that the claimant is not expected to reach the suggested
pre-accident career potential and was expected
to retire early. The
actuaries were also instructed to apply a 20% deduction on the
uninjured future earnings and 50% on the injured
future earnings
[14]
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 and injured earnings.
The actuaries took into
account that the Plaintiff 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.
[15]
I requested the parties to file the Heads of argument in respect of
the contingencies to be applied. Adv. Zietsman
SC, obliged for which
I am thankful. Ms Booysen, on the other hand, only filed two
judgments as well as a document styled “
Loss
of earnings Calculator
”
.
In this document, 25% contingencies were applied on the pre-morbid
earnings scenario while 30% was applied on the post morbid
earnings.
I take it that Counsel for the Defendant handed in the judgments for
this court to consider them in the adjudication
of this dispute. In
the unreported matter handed to Court of
ZWZ
obo SLN v Road Accident Fund
[1]
,
the Plaintiff had sustained a minor head injury and a laceration and
abrasion over the forehead. On the pre-morbid scenario, the
claimant
in that case was considered to be of above average intelligence and
that he could have progressed through the main stream
school system,
matriculated and proceeded to obtain a tertiary university degree.
The experts in that case agreed that for “
the
purpose of settlement
(my
emphasis) the average earning of a diploma and degree be utilised
with a contingency of 25% pre-morbid and 35% post-morbid
[2]
.”
[16]
The second case of
Dlamini Nonhlahla v Road Accident Fund
(Gauteng Case number 21375/2019) also need consideration. In this
case the Plaintiff also suffered a traumatic head injury. An
educational psychologist and neurologist opined that, but for the
accident, the Plaintiff would have been expected to pass Grade
12 and
obtain a degree. The court in that case said:
“
It
is appropriate that 5% contingency be applied to the Plaintiff’s
claim for past loss of earnings, a 20% contingency to
be applied to
the value of the plaintiff’s income, but for the accident, and
a 25% contingency to the value of the Plaintiff’s
income,
regard being had to the accident.”
[17]
If anything, the two cases relied upon by the Defendant illustrate
and fortify the settled principles of
our law. First, that
contingencies are in the discretion of the court. Such discretion
will be eroded if the court will apply the
percentage of contingency
applied in another case without looking into the merits of the case
before it. Each case must be adjudicated
on its own merits. Secondly,
past awards only give guidance and do not become precedents for
future awards. Their impotence lies
in guidance and persuasiveness.
It is important to note that in
ZWZ
(above), unlike in
this case, the contingencies to be applied emanated from the parties’
intent to settle. They were applied
by agreement between the parties
and that helps little the adjudication of this case.
[18]
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 40% deduction should
be made. The actuary had applied 50% deduction in the report as
instructed. I accordingly make
this order:
ORDER
1.
The defendant is liable for payment to the plaintiff in the amount of
R1 677 620.00
(One million six hundred and
seventy-seven thousand six hundred and twenty rand) [hereafter “the
capital”]
in respect of plaintiff’s claim for future
loss of income resulting from a motor vehicle collision that occurred
on
4 September 2015
.
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 to 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 JJ
Schutte (general practitioner)
3.1.2 Dr LF
Oelofse and Dr MB Deacon (orthopedic surgeons)
3.1.3 Van Dyk
& Partners (diagnostic radiologists)
3.1.4 Sandton
Radiology (diagnostic radiologists)
3.1.5 Dr A
van Aswegen (neurosurgeon)
3.1.6 Dr A
Shevel (psychiatrist)
3.1.7 B
Mallinson (neuropsychologist)
3.1.8 E
Prinsloo (educational psychologist)
3.1.9 Dr K
Truter (clinical psychologist)
3.1.10 M Joubert
(occupational therapist)
3.1.11 A Jansen
(occupational therapist)
3.1.12 Dr EJ Jacobs
(industrial psychologist)
3.1.13 Munro Forensic
Actuaries
3.2
The cost of Senior Counsel.
3.
The payment provisions in respect of a foregoing are ordered as
follows:
3.1
Payment of the capital amounts shall be made without set-off or
deduction, within 180 (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
Nedbank, Maitland
Street, Bfn
Branch Code
110 234 00
Account No.
1[…]
Reference
HL Buchner/vch/J03683
3.2
Payment of the taxed or agreed costs shall be made within 180
(hundred and eighty) days of taxation,
and shall likewise be effected
into the trust account of the plaintiff’s attorney.
4
Interest shall accrue at 11.75% (the statutory rate per annum),
compounded, in respect
of:
4.1
the capital of the claim, calculated from 14 (fourteen) days from
date of this order.
4.2
the taxed or agreed costs, calculated from 14 (fourteen) days from
date of taxation, alternatively date
of settlement of such costs.
5.
The plaintiff's claim for general damages is separated in terms of
Rule 33(4) and is postponed
to the pre-trial roll of 27 November
2023.
P.
E. MOLITSOANE, J
On
behalf of the Plaintiff:
Adv.
PJJ ZietsmanSC
Instructed
by
Honey
Attorneys
BLOEMFONTEIN
Ref
HL
BUCHNER/ldm/ J03683
On
behalf of the Defendant:
Ms
M. Booysen
Instructed
by
State
Attorney
BLOEMFONTEIN
Ref
509/12336877/39/2
[1]
(10925/2017)[2013] ZAKZDHC 28(26 May 2023).
[2]
Para 14 of ZWZ supra.