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[2023] ZAECMKHC 114
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N.U.C obo D.D.C v Road Accident Fund (2213/2020) [2023] ZAECMKHC 114 (24 October 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
no: 2213/2020
In
the matter between:
N[…]
U[…] C[…] obo D[…] D[…] C[…]
Plaintiff
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
Bloem
J
[1]
What needs to be determined is the quantification of the loss of
earnings that
the plaintiff’s minor son, D[…] C[…]
(D[…]), suffered, particularly the contingencies to be
applied.
The plaintiff’s claim arises from a motor
vehicle collision which occurred on 29 March 2018 on the national
road between
Gqeberha and Cradock. As a result of the
collision, D[...] sustained severe bodily injuries, inclusive of a
traumatic brain
injury. His mother, the plaintiff, instituted
action against the Road Accident Fund, the defendant, for damages
suffered
by her in her personal capacity as well as in her
representative capacity as D[...]’s mother and natural
guardian.
On 6 March 2023 the defendant conceded liability for
such damages as the plaintiff could prove arose from the collision.
On 30 May 2023 this court ordered the defendant to pay the
plaintiff R1.2 million in respect of D[...]’s general
damages.
[2]
In her amended particulars of claim the plaintiff claimed R10 872 389
for D[...]’s loss of earnings. The facts upon which the
issue must be determined were largely unchallenged. D[...]
was
born on […] J[…] 2012. His mother testified that,
because D[...] was a very inquisitive child, she and
his father
decided to let him attend a crèche before he reached the age
of four. After a few weeks at the crèche,
his teacher,
Sophileen Bond, called her and D[...]’s father and
recommended that, because D[...] was very bright, he
be promoted to
grade RR. With their consent he was promoted to grade RR in
2016. At the end of that year, Ms Bond informed
them that,
despite his age, D[...] was ready for grade R. She testified
that Ms Bond expressed the fear that, if D[...]
was kept in
grade RR during 2017, he would be bored because, in her view, he was
more advanced than children who were a year or
two older than him.
According to Ms Bond, he was doing things and thought about things
that his peers did not. They
successfully applied for his
admission at Alexandria Primary School where he attended grade R in
2017. During 2017 he was
assessed to be ready for grade 1.
He commenced with grade1 at the beginning of 2018.
[3]
Edwina Coltman was D[...]’s grade 5 class teacher in 2023.
Before
he attended Alexandria Primary School in 2017 she used to see
him running around at rugby games over weekends. He appeared
to
be a normal lively boy who participated in all activities of daily
living associated with boys of his age. She taught
him only
since 2022. She testified that during 2022 learners of grade 4
and 7 shared the same class. It was with the
assistance of
those learners that D[...] scored an average of 60% in the June 2022
class tests. He would have failed had
it not been for that
assistance. D[...] has also learnt to copy from others.
His listening and concentration skills
are not what they should be.
For example, when learners are given work, D[...] would first look
what others do before he
does likewise. When he copies from
others, he is unable to copy a full word. He would write down a
few letters of a
word, look at the word again and then write the
remaining letters of the word. He reads very slowly. In
addition, his
reading is without comprehension. He has a friend
who assists him to move from one class to the other because D[...]
cannot
read his class roster. He also does not know which book
to take out for a particular subject at the commencement of a
lesson.
In her view, D[...] is unable to work on his own.
[4]
Ms Bond was employed as a teacher by the Eastern Cape Department of
Education
for 33 years until she resigned during 2015. She had
observed for a long time that most children in grade R did not have
the necessary skill values. She became self-employed in 2016.
She became the owner of a school in 2017 where they accommodate
children between the ages of 3½ and 4½ who they will
prepare for grade R. She taught D[...] for the first time
in
2016 when she was his Sunday school teacher. He was three,
turning four, years old at the time. She saw him as an
eager,
outspoken and inquisitive boy who asked questions after lessons.
He could recite Bible verses from memory and compete
with children
aged 6 and 7. He showed leadership skills at a young age,
albeit that in most cases, he was self-appointed
as a leader.
She said that intellectually D[...] was above his age group. He
stood out and saw everything as a challenge.
He was quick to
grasp new concepts. Academically he was very sound. He
also enjoyed playing sports, particularly rugby
and soccer. He
was an allrounder.
[5]
After the collision, the plaintiff requested her to accommodate
D[...] at her
school. After the necessary permission had been
obtained from the Eastern Cape Department of Education, D[...]
attended her
school. It became clear to her that he was not the
same brilliant boy that he used to be before the collision.
Instead
of being the first to solve a problem, as was the position
before the collision, he resorted to copying from others, who were
too
keen to assist him. He now no longer plays with boys older
than him or his age. He plays with either girls or with boys
younger than him. After a few months of D[...] being at her
school, she told the plaintiff that, because D[...] has changed
in
many respects, he should be reintegrated in the mainstream of
education. She entertained the fear that he was living in
a
cocoon at her school where his classmates and other learners felt
sorry for him and being protective of him.
[6]
Ian Meyer, a
registered practising clinical and neuropsychologist subjected D[...]
to a neuropsychological evaluation during 2020.
He compiled a report
after obtaining information from the plaintiff and his great-aunt.
Based primarily on his premorbid scholastic
achievements,
psychometric testing, professional educational assessment,
underpinned by the educational achievements of his family
and
extended family,
[1]
he predicted
that D[...]’s premorbid IQ was probably in the high average to
superior category of intellectual classification.
In his view,
D[...] would in all probability have completed matric, an
undergraduate degree and would have had the ability to achieve
a
postgraduate qualification. Since the collision, D[...] needs
to be reminded of instructions to complete tasks and needs
supervision of simple tasks of daily living. He struggles to
execute not only complex but also simple instructions.
D[...]
is unable to assume independent responsibility. He no longer
initiates homework. Either the plaintiff reminds
him of his
homework or he does it in aftercare with the supervision of a
teaching assistant. He no longer performs routine
tasks that he
managed independently before the collision without being reminded.
He is inclined to become angry when the
plaintiff insists on him
performing specific tasks and is inclined to have temper tantrums.
In his view, D[...] presents
with persistent, significant
neurocognitive and neurobehavioural sequelae secondary to his severe
traumatic brain injury, consisting
of permanent cognitive,
socioemotional, executive and physical deficit. Due to D[...]’s
major neurocognitive disorder,
Mr Meyer is of the view that he
will be unable to be employable in the open labour market. The
above deficits will undermine
his ability to cope in the real world
and competently apply any acquired knowledge.
[7]
Gerhardt Goosen is an educational psychologist who assessed D[...] on
17 November
2021 after which he compiled a report. Based
on the interview, assessment, academic achievements of his parents
and extended
family and D[...]’s faster than average scholastic
progress, Mr Goosen estimated D[...]’s premorbid intellectual
abilities
to have been within the high-average to superior range. He
agreed with Mr Meyer that D[...] would in all probability have
attained
a postgraduate qualification. His current intellectual
functioning is significantly lower than before the collision.
In his view, D[...] is not expected to make significant scholastic
progress and may prove to be a candidate for a school catering
for
learners with special educational needs. He is of the view that
D[...] is trainable but not educable. His dependence
on the
plaintiff’s care in several areas of daily living makes it
doubtful whether he would be capable of independent living.
He
is unable to perform a task without supervision, but even if he
completed a task, he is unable to stand back and evaluate the
performed task.
[8]
Lani Martiny is an industrial and organisational psychologist.
He interviewed
the plaintiff, D[...], his aunt, Ms Bond and Ms
Coltman and compiled reports based on those interviews and D[...]’s
school
reports. He also had access to the reports of inter alia
Messrs Meyer and Goosen. Mr Martiny acknowledged that it was
impossible to be specific about the career D[...] would have followed
had he not sustained the severe traumatic brain injury.
He
accordingly used a general career path after completing his
postgraduate qualification in 2033, starting to work in 2034 at
the
age of 21 at a trainee/intern/clerical level in the semi-skilled
band, probably at the Paterson B2-B3 level. He would
thereafter
probably have advanced to the skilled band starting off at the
Paterson C1 level, gradually advancing to the Paterson
D3 level
(middle management level) at the age of approximately 45. He
would thereafter probably have continued working, with
average annual
increments of CPI+ between 1-3% up to the retirement age of 65.
D[...]’s premorbid intellectual and
scholastic performance as
well as the academic achievements of his parents and extended family
indicated that it is probable that
he would have been able to secure
employment paying full package salaries. The injuries that
D[...] sustained in the collision
have rendered him unable to be
employed in the open labour market. They have reduced his
earning capacity to zero.
[9]
The plaintiff also called Annamarie van Zyl, an occupational
therapist, who
assessed D[...] on 9 November 2021 and compiled a
report. Therein she stated inter alia that ‘it is
unlikely that D[...]
will be able to enter the open labour market in
the future, other than in a sheltered situation’ and that
‘D[...] is
unemployable on the open labour market’.
[10]
The plaintiff closed her case. The defendant did not lead any
evidence. The evidence adduced
by the plaintiff was not seriously
challenged. The qualifications of all the plaintiff’s
expert witnesses were admitted.
Regard being had to their
experience and content of their evidence, I accept the opinion
evidence given by each of the plaintiff’s
expert witnesses.
The objective opinions expressed by them were based on collateral
facts provided by the plaintiff, Ms Coltman,
Ms C[...] and Ms
Bond as well as the results of the tests performed by them. In
summary, the evidence adduced by plaintiff
and her witnesses
demonstrated that, had D[...] not sustained the traumatic brain
injury in the collision, he would probably have
obtained a post
graduate qualification in 2033 at the age of 21, advanced to middle
management level at the age of 45 and thereafter
continued working
with the above average annual increments until he reached the
retirement age of 65. Now that D[...] has
sustained the
traumatic brain injury, he has no earning capacity.
[11]
The quantification
of a person’s future loss of income is not a matter of exact
mathematical calculation. It is speculative
and the court can
therefore only make an estimate of the present value of the loss that
it often a very rough estimate. Courts
have adopted the
approach that, in order to assist in such a calculation, an actuarial
computation is a useful basis for establishing
the quantum of
damages.
[2]
[12]
The plaintiff employed Nilen Kambaran, an actuary of Arch Actuarial
Consultancy, to quantify the value
of D[...]’s loss of earnings
resulting from the injuries that he sustained in the collision.
Mr Kambaran compiled a
report which was based largely on the probable
career path that Mr Martiny suggested that D[...] would have followed
had he not
sustained those injuries. He then calculated the present
value of D[...]’s future income in his uninjured state.
From
the calculated amount he made deductions on the basis of the
standard earnings inflation, future CPI inflation, a discount rate,
taxation and the mortality rate. He calculated that, after
those deductions, D[...] would have earned R14 999 352
by
the time he retired. The defendant has admitted the correctness of
the content of Mr Kambaran’s report.
[13]
In the light of all the evidence, the only issue to be decided is the
contingency deduction to be applied
to the claim for D[...]’s
future loss of income because of the absence of his earning
capacity. It was submitted on
behalf of the plaintiff that a
20% contingency deduction should be applied to D[...]’s future
loss of income. Ms Jeram, attorney
for the defendant, suggested that
a contingency on a sliding scale of half a percent per annum should
be applied from date of employment
to date of retirement. That
sliding scale is suggested in the 2023 edition of the
Quantum
Yearbook
by Robert J Koch. If the suggested sliding scale
is applied to the facts of this case, a general contingency of 21½%
should be applied, since D[...] would probably have commenced
employment in 2034 and would have retired in 2077 at age 65, having
worked for 43 years. Without realising the effect of her
submission if applied to the facts of this case, Ms Jeram concluded
her submissions that a contingency deduction of between 30 and 35%
would be fair. It means that, on the one hand, she submitted
that a
contingency of 21½% would be fair while, on the other hand,
she submitted that a contingency deduction between 30 and
35%
would also be fair.
[14]
The assessment of
an appropriate allowance for contingencies is arbitrary and
subjective. It cannot be accurately calculated.
In
Goodall
v President Insurance Co Ltd
[3]
it was held that:
‘
In the assessment
of a proper allowance for contingencies, arbitrary considerations
must inevitably play a part, for the art or
science of foretelling
the future, so confidently practised by ancient prophets and
soothsayers, and by modern authors of a certain
type of almanack, is
not numbered among the qualifications of judicial office.’
[15]
The rate of
contingency deductions various from case to case. It cannot be
assessed on any logical basis. It is largely
arbitrary and must
depend on the trial judge’s impression of the case.
[4]
[16]
I have had regard
to previous awards to assist with the determination of an appropriate
contingency deduction. In
Wright
v Road Accident Fund
[5]
the plaintiff, who was 21 years of age at the time of the motor
vehicle collision in which he sustained severe bodily injuries
which
rendered him unemployable, intended to embark upon a career as an
artisan where working conditions were necessarily more
hazardous than
a career behind a desk. The court was of the view that a
15% premorbid contingency deduction was appropriate
in that
case. In
M v Road Accident
Fund
[6]
a minor, who was 13 years old at the time of the collision and in
grade 9, sustained a severe injury which caused the amputation
of his
right leg above the knee. Before the collision the minor had
not failed a grade. After the collision, he was
condoned to the
next grade. The court accepted the educational psychologist’s
evidence that premorbidly the minor had
an above to superior
intelligence. A contingency deduction of 20% was applied to the
minor’s future premorbid loss
of income. In
Vakata
v Road Accident Fund
[7]
a three-year-old girl sustained a moderately severe brain injury with
a scalp fracture and probable diffuse injury. Cognitive
deficit
in the form of limited ability to learn new information, impairment
of executive functioning, disinhibition and lack of
control of
emotions, limited insight and behavioural difficulties presented
themselves after she had sustained the above injuries.
Her
intellectual abilities fell within the range of mild retardation and
rendered her unemployable in the open labour market.
The court
applied a contingency deduction of 20% to her claim for future loss
of income. In
Khoza
v MEC for Health, Gauteng
[8]
the agreed loss of future earnings of the appellant’s minor son
was R1 783 958, subject to an appropriate contingency
deduction. The minor boy suffered severe brain damage during
labour caused by negligence of the staff at the hospital where
he was
born. The High Court made a 35% contingency deduction from
that amount. The basis for that percentage deduction
was the division
of the difference between the contingency contended for on behalf of
the minor (20%) and the Road Accident Fund
(50%). The
percentage deduction was one of the grounds of appeal. The
Supreme Court of Appeal was critical of the way
the High Court
arrived at a contingency deduction of 35%, stating that it was devoid
of any rational connection between how the
decision was made and the
result of the decision-making process. It set aside that
percentage deduction and, considering
the facts of that case,
replaced it with a contingency deduction of 20%.
[17]
In my view, a
contingency deduction of 20% should be applied in this case, regard
being had to the fact that D[...] was ahead of
his age cohort at
school; he showed leadership qualities from a young age; he
demonstrated empathy and emotional maturity beyond
his years; and he
came from a family of well-educated persons who valued education. The
R14 999 352 should accordingly
be subjected to a
20% contingency deduction, which places the plaintiff’s
claim in this regard at R11 999 482.
The claim is
subject to the limitations placed on the defendant’s liability
by
section 17(4)
(c)
of the
Road
Accident Fund Act 56 of 1996
. That section sets a monetary
limit on the plaintiff's claim for loss of income.
[9]
After the application of the limitation contained in
section
17(4)
(c)
,
the plaintiff’s claim amounts to R10 872 389.
[18]
Regarding costs, the plaintiff was successful and is accordingly
entitled to the costs of establishing
her claim for loss of income.
Those costs include the costs and expenses relevant to the attendance
of Messrs Meyer, Goosen
and Martiny, but exclude the attendance costs
and expenses relating to Ms van Zyl. When it was enquired why
there was a need
for Ms van Zyl to testify, counsel for the plaintiff
pointed out that the defendant had not admitted her report, which
made it
necessary for her testify. I do not agree. The
only issue before this court was the plaintiff’s claim for loss
of income, particularly the contingency deductions to be applied.
Ms van Zyl could not have been anticipated to make
any
contribution to that head of damages. It was accordingly
unnecessary to call her.
[19]
In the result, it is ordered that:
1.
The defendant shall pay to the plaintiff, in her representative
capacity on behalf
of D[...] C[...], the sum of R10 872 389
for his future loss of income.
2.
Payment of the amount in paragraph 1 above shall be made directly
into the trust
account of the plaintiff’s attorney of record,
Meyer Inc, the details of which are as follows:
Name:
Meyer
Inc.
Bank:
Standard
Bank
Branch:
Port
Elizabeth
Branch Code:
50017
Account Number:
080[…]
3.
The defendant shall pay interest on the amount in paragraph 1 above
at the prevailing
prescribed interest rate calculated from a date 14
days after the granting of this order, in accordance with
section
17(3)
(a)
of the
Road Accident Fund Act 56 of 1996
.
4.
The defendant shall pay the plaintiff’s costs of suit from 31
May 2023
up to and including 11 October 2023, as taxed or
agreed, such costs to include:
4.1
The costs of the report of Dr K L F Cronwright.
4.2
The costs of the supplementary reports of:
4.2.1
Mr I Meyer;
4.2.2
Mr L Martiny;
4.2.3
Arch Actuarial Consulting.
4.3
The costs of the joint minutes of Mr G Goosen.
4.4
The qualifying fees, expenses and reservation costs
of:
4.4.1
Mr I Meyer;
4.4.2
Mr G Goosen;
4.4.3
Mr L Martiny;
4.4.4
Arch Actuarial Consulting.
4.5
The attendance and testifying fees of:
4.5.1
Mr I Meyer, for 9 October 2023;
4.5.2
Mr L Martiny, for 9 and 10 October 2023;
4.5.3
Mr G Goosen, for 9 and 10 October 2023.
4.6
The costs of the trial for 9, 10 and 11 October
2023.
4.7
The costs of consultations between the plaintiff’s
counsel,
plaintiff’s attorney, plaintiff and witnesses in preparation
for the trial date set down for 9 October 2023.
4.8
The travelling costs of air tickets, return and
the accommodation
costs and expenses incurred on behalf of plaintiff in respect of the
attendance at trial in respect of Mr L Martiny.
4.9
The costs and disbursements associated with plaintiff’s
examination by defendant’s expert witnesses, in the absence of
rule 36(2)
notices, shall be borne by defendant.
4.10
The plaintiff, Mrs Bond and Mrs Coltman be and are hereby declared
as
necessary witnesses.
4.11
The costs of six trial bundles for the trial date set down for
9 October 2023.
4.12
The costs of the interpreter employed on 9 and 10 October 2023.
4.13
The costs of two counsel, where so employed, including the costs
of
counsel’s preparation for trial set down for 9 October 2023.
5.
The defendant shall pay interest on the plaintiff’s taxed or
agreed costs at the prevailing prescribed interest rate per annum
calculated from a date 14 days after
allocatur
or written
agreement to date of payment.
6.
The plaintiff’s claim in her personal capacity for past medical
and hospital expenses be and is hereby postponed
sine die
.
GH
BLOEM
Judge
of the High Court
Appearances
For
the plaintiff:
Mr A
Frost with Ms B Westerdale, instructed by Meyer INC, Gqeberha and
Netteltons Attorneys, Makhanda.
For
the defendant:
Ms V
Jeram of the State Attorney, Gqeberha and Whitesides Attorneys,
Makhanda.
Date
heard:
9, 10
and 11 October 2023
Date
of delivery:
24
October 2023
[1]
D[...]’s father obtained a four-year degree in education and
was a qualified primary school teacher. His mother,
the
plaintiff, is a matriculant who intended studying to qualify as a
teacher in 2019 after her fiancée, D[...]’s
father, had
taught for at least one year. D[...]’s maternal
grandfather is a retired captain in the South African
Police
Service, his uncle a qualified quantity surveyor and his mother’s
cousin a practising medical practitioner.
[2]
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA) para 8.
[3]
Goodall
v President Insurance Co Ltd
1978 (1) SA 389
(W) at 392H-393A.
[4]
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) at 116H-117A.
[5]
Wright
v Road Accident Fund
2011
(6A3) QOD 19 (ECP).
[6]
M v
Road Accident Fund
,
an unreported judgment of the Northen Gauteng High Court delivered
on 7 February 2014.
[7]
Vakata
v Road Accident Fund
2014 (7A4) QOD 1
(ECP).
[8]
Khoza v
MEC for Health, Gauteng
[2018]
ZASCA 13.
[9]
Road
Accident Fund v Sweatman
2015 (6) SA 186
(SCA).