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[2023] ZAFSHC 497
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E.S.L obo N.O.L v Road Accident Fund (3745/2018) [2023] ZAFSHC 497 (21 December 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
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 3745/2018
In
the matter between:
E[...]
S[...] L[...]
obo
Plaintiff
N.O.
L[...]
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
29, 30 AUGUST 2023 & 01 SEPTEMBER 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment
was handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The
date and time
for hand-down is deemed to be 12H00 on 21 DECEMBER 2023.
[1]
In this matter, the defendant is being sued for damages arising from
the head and
wrist injuries sustained by the plaintiff’s
16-year-old daughter (the minor child) in a motor vehicle accident
which took
place on 23 September 2017. At the time of the accident,
the plaintiff and the minor child were passengers in the motor
vehicle
with registration numbers and letters F[...] 8[...] F[...]
when it was collided into by another motor vehicle with registration
numbers and letters C[...] 1[...] F[...].
[2]
It is common cause that as a result of the injures, the minor child
was transported
from the scene of the accident by an ambulance to
Pelonomi Hospital where she was admitted until discharged on 5
October 2017.
[3]
The defendant has since conceded the merits, 100% of the plaintiff’s
proven
or agreed damages. The only issue that I have to determine is
the quantum pertaining to general damages and loss of earnings
resulting
from the injuries.
[4]
The plaintiff testified and also called Dr Denis Kitavujja Mutyaba a
Neurosurgeon,
Ms. Maria Magdelina Lautenbach an educational
psychologist and Dr Lindelwa Grootboom a clinical psychologist as
witnesses.
[5]
At the time of the accident the minor child was ten years old and in
grade 4. She
was performing well at school averaging between level 6
and 7 and had no behavioural issues. It was the plaintiff’s
testimony
that after the accident, the minor child’s school
marks dropped significantly. She is presently in grade ten and
although
she has not failed a grade as yet, she has failed the first
two grades. Her behaviour has changed. The school has reported at
least
four complaints to the plaintiff regarding the minor child’s
misbehaviour. The minor child is also short tempered, aggressive
and
constantly fighting with her sister. Her memory has also been
adversely affected, she struggles with forgetfulness and lack
of
concentration.
[6]
With regard to her own educational background, the plaintiff stated
that she went
to school up to grade 12 though she did not pass grade
12.
[7]
Dr Mutyaba confirmed that he concluded the joint minutes with the
defendant’s
Neurosurgeon, Dr Maharaj.
[1]
The experts agreed that the minor child’s head injury resulted
in a brain injury but disagreed on its classification for
that
reason, their point of departure in concluding the joint minutes was
the classification of the brain injury.
[8]
Dr Mutyaba diagnosed a severe traumatic brain injury. His conclusions
are based on
the fact that pursuant to the injury, the minor child
was in a coma state. Her Glascow Coma Score (GCS) was recorded as
5/15 and
she subsequently spent about six days in the Intensive Care
Unit (ICU). See page 49 and 65 of the hospital records.
[2]
All these factors indicate a severe brain injury resulting in the
minor child’s current sequelae which include complaints
about
headaches, poor school performance and behavioural changes. Although
Dr Maharaj was of the view that the minor child sustained
a mild
brain injury, he nevertheless confirmed that the injury resulted in
the residual headaches, labile mood, poor memory and
concentration
the minor child is complaining about.
[9]
According to Dr Mutyaba, the sequelae are expected to get worse as
the minor child
gets older. She is now at high risk of developing
post-traumatic epilepsy which triggers seizures. She is also
pre-disposed to
early Alzheimer’s or Dementia, and all these
conditions have an effect on both her future employability and
lifespan which
will be reduced by 5 to 10 years.
[10]
Dr Mutyaba conceded that at the time he assessed the minor child he
was not privy to the CT scans
and the MRI scans. It was his
explanation that CT and MRI scans were not necessary because at the
time he examined the minor child
the haematoma had resolved and all
the necessary information was available from the medical records. He
disputed the contention
that the low GCS might have been caused by
the medication (Midazolam and Morphine) that was administered in
hospital and pointed
out that the medication was necessary to
intubate and sedate the minor child during the mechanical ventilation
to aid brain healing
in any event, the critical GCS readings are the
ones recorded upon admission not in the ambulance or after
admission.
[11]
Ms Lautenbach concluded the joint minutes with the defendant’s
educational psychologist.
[3]
It
was her testimony that both the experts agreed that the injuries had
impacted negatively on the minor child’s academic
ability. They
also agreed that prior to the accident the minor child had no history
of neurological, emotional and structural difficulties
including
learning challenges, therefore, she had the potential of obtaining
grade 12 and a degree at a tertiary level. The defendant’s
expert postulated a grade 12 NQF level 4 whilst she posited as a
grade 12 NQF level 8.
[12]
It was her testimony that her conclusions were based on the fact that
the minor child was not
academically vulnerable pre-accident, her
father was highly educated as a mechanical engineer and genetics play
a role. She also
took into account the minor child’s
outstanding performance as evidenced by the school reports
[4]
indicating that she was averaging between 80 to 90% which is a good
indicator of excellent academic future and her father’s
level
of education. Post-accident, from the last term of grade 4
there was a serious decline on her scholastic progression.
According
to the school reports, the minor child had been performing higher
than her peers since grade 3. Post accident, she started
to struggle
and performed below her peers and this continued onto the next grades
indicating that she will struggle from grade
10 onwards as she will
be required to work independently, consequently, the minor child
would only be able to reach an NQF level
4 and settle for studying at
FET colleges for vocational and practical training.
[13]
Dr Grootboom, assessed the minor child on 18 July 2019 and again on
26 August 2023. She told
the court that the reason for the
re-assessment was because the initial assessment was conducted four
years ago and since then
the minor child’s physical ailments
have worsened.
[14]
It was her testimony that the severe brain injury has left the minor
child with psychological
ailments which include hallucinations, mood
swings, irritability and behavioural changes, poor self-esteem and
anger control which
have an adverse effect on her executive functions
which in turn affects her scholastic performance. The minor child has
also attempted
suicide which can be attributed to the low self-
esteem, she also suffers from headaches and chest pains which could
be linked
to the anxiety of not performing well at school.
[15]
Dr Grootboom agreed that genetics do play a role in a child’s
prospects of succeeding educationally,
however, despite the fact that
the plaintiff failed grade 12 there is no evidence of cognitive
difficulties in the family in fact.
The minor child’s father
has a Diploma and her sibling is performing adequately.
[16]
Thus was in short the plaintiff’s evidence. In addition to the
viva
voce evidence, the plaintiff’s experts’
reports
by
orthopaedic surgeons, Drs L.F. Oelofse and MB Deacon, industrial
psychologist, Texalitrix (Pty) Ltd, actuaries Johan Sauer and
neurologist, Dr L.M. Wynand-Ndlovu were handed
in
by concurrence of both parties for the
matter to be
further determined on the conclusions as expressed in the said
reports.
[17]
The experts agree that there are no present complaints with regard to
wrist injury
and that this injury will not have an effect on the
minor child’s productivity or retirement.
[18]
With regard to the brain injury, the minor child’s enjoyment of
life and quality
thereof has been curtailed by the sequelae from the
accident as the pain and suffering is ongoing. She is battling with
chronic
headaches and chest pains which can be alleviated by pain
medication however, the chronic use of analgesics will put her at
risk
of developing serious side effects. The minor child is still
experiencing periods of “day dreaming” as a result,
further
neurological evaluation is required. Due to her cognitive
challenges, she can no longer dance or draw which are the activities
she enjoyed as a hobby prior to the accident.
[19]
According to the experts, it will be difficult for the minor child to
secure employment
in the open labour market for that reason, the
actuary has suggested an amount of R8 261 143.00 as compensatory
damages in respect
of the minor child’s future loss of earnings
with a contingency deduction calculated at 40%.
[20]
Dr Naledi Mqhayi testified for the defendant’s case. She is a
clinical psychologist
with a neuropsychologist expertise. She
assessed the minor child on 6 October 2022 when the minor child was
15 years old. Although
she agreed that pursuant to the accident, the
minor child suffers from inadequate concentration, below average
performance and
that her attention span is not at an optimum level it
was her view that the brain injury has not caused an adverse effect
on the
minor child’s executive functions because during the
assessment the minor child was able to follow instructions and wait
her turn when spoken to. She was also able to respond when required
to. The minor child is functional, there is no structural damage
to
the brain therefore there is a good chance of rehabilitation.
[21]
With regard to schooling and academic performance, she was adamant
that the brain
injury sustained by the minor child was not so severe
to have an effect on her scholastic performance. She told the court
that
that the minor child simply needs to put more effort in her work
because it’s not that she cannot absorb anything.
[22]
She concluded her testimony by conceding that she did not classify
the head injury
during the assessment and that at the time she
rendered her report she had not had sight of the minor child’s
previous school
reports. She also did not contact the school to
obtain the minor child’s pre-morbid school performance related
information
she simply based her conclusions on the documents
presented to her which include Dr Maharaj’s report.
[23]
The nature and seriousness of the brain injury sustained by the minor
child
is indisputable. It was argued on behalf of the plaintiff that
the amount that would be just and equitable under these circumstances
would be an amount of R1,5 million in respect of the general damages
and an amount of R8 261 143.00 in respect of future loss of
income
with a contingency deduction reckoned at 40% which is fair
considering that the minor child is not faring well at school
and
there are chances of failing when she grows older.
[24]
On the other side, it was the defendant’s submission that the
amount claimed
by the plaintiff is excessive. Counsel for the
defendant insisted that the brain injury was not so severe to
diminish the minor
child’s future earning capacity. The amount
that would be fair in respect of general damages is an amount of
R700 000.00
(seven hundred thousand rand) and for future loss of
earnings is a sum of R2 045 193.75 (two million, forty-five thousand,
one
hundred and ninety three rand and seventy five cents).
[25]
Counsel for the defendant referred to authorities in support of her
argument. I do not deem it
necessary to rehash the submissions made
in that regard because all the authorities referred to are not
relevant to the facts of
this matter. The plaintiffs in those matters
were adults and where a child was involved, the injury involved a
minor brain injury.
[26]
Regarding general damages, it was said in
A
A Mutual Insurance Association Ltd v Maqula
[5]
that
the determination for the award for such damages has never been an
easy task. There is neither a mathematical nor a scientific
formula
to compute the monetary value on pain and suffering, and loss of
amenities of life.
[27]
The plaintiff’s version regarding the impact of the injuries on
the minor child’s
physical, psychological and neurological
effects stands to be accepted as no evidence was proffered by the
defendant in contradiction.
It was expected of Dr Mqhayi to dispel
the plaintiff’s contentions in this regard but her
cross-examination revealed that
she did not only omit to classify the
brain injury, her conclusions were also based on the disputed report
by Dr Maharaj who was
not called as a witness. The veracity of Dr
Maharaj’s conclusions was accordingly not tested under oath.
[28]
Taking into consideration the facts of this matter I find that the
amounts suggested by the plaintiff
as compensatory damages are indeed
excessive. No evidence of permanent disfigurement has been proffered
and in relation to loss
of future earnings, the minor child’s
future physical abilities have not been completely curtailed. On the
plaintiff’s
own version as relayed by her educational expert,
both in the injured and un-injured state the minor child has the
capacity
to
obtain at least a diploma.
She is therefore not
completely unemployable in the open labour market. Based on all these
reasons, I find that the amount that
the amount that would
be
adequate to compensate the plaintiff for the injuries suffered by the
minor child and also
be fair and equitable to both
parties is the amount of R1 000 000.00 (one million rand) in respect
of general damages and R5 000
000.00 (five million rand) for future
loss of earnings.
[29]
In the result I make the following order:
Order
1.
The Defendant
is to pay the plaintiff an amount of
R6
000 000.00 (six million rand)
into the
plaintiff’s attorney’s trust within 180 (one hundred and
eighty) calendar days from date of the granting of
this order.
This
amount incorporates:
1.1.
General damages:
R1 000
000.00 (one million).
1.2.
Future loss of
earnings: R5 000 000.00 (five million).
2.
The defendant to pay the plaintiff’s
taxed or greed party and party costs including the costs the
reasonable qualifying and
reservation fees and expenses (if any) of
the plaintiff’s experts.
3. 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.
4 Interest shall
accrue at 7% (the statutory rate per annum), compounded, in respect
of:
4.1
the capital 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.
N.S.
DANISO, J
APPEARANCES:
Counsel on behalf
of the plaintiff:
Adv. CG Cross
Instructed by:
VZLR INC
C/O DU PLOOY
ATTORNEYS
BLOEMFONTEIN
Counsel on behalf
of the defendant:
Ms. P. BANDA
Instructed by:
Office of the State
attorney
BLOEMFONTEIN
[1]
Exhibit
“B205-209.”
[2]
Exhibit
“A”.
[3]
Exhibit
“G”.
[4]
Exhibit
“I”.
[5]
1978
(1) SA 805
(A)