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[2024] ZAFSHC 76
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N.A.M obo S.M v Road Accident Fund (3172/2021) [2024] ZAFSHC 76 (8 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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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.: 3172/2021
In
the matter between:
M[…],
N[…] A[…]
o.b.o
S[…] M[…]
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Link
no.: 4311645
CORAM:
VAN ZYL, J
HEARD
ON:
2 & 4 AUGUST
2023; 4 SEPTEMBER 2023
DELIVERED
ON:
8 MARCH 2024
[1]
The plaintiff is the biological mother of S[…] M[…]
(“S[...]”
or “the minor”).
[2]
On 27 December 2015 and in Bronville, Welkom, Free State Province,
the minor was a
passenger on a bakkie when the said vehicle was
involved in an accident. This is an action for damages which the
minor suffered
as a result of injuries she suffered in the accident.
The plaintiff instituted the action in her representative capacity as
the
biological mother and natural guardian of the minor.
[3]
In terms of the particulars of claim S[...] suffered the following
injuries:
“
6.1 head
injury;
6.2
laceration on the forehead;
6.3
lacerations on the right cheek;
6.4 injury to
the right eye; and
6.3 multiple
bodily lacerations.”
[4]
At the commencement of the trial the defendant conceded the merits of
the action hundred
percent in favour of the plaintiff. The
defendant also tendered an undertaking for future medical expenses.
The defendant
rejected the plaintiff’s Serious Injury
Assessment Report and this aspect is to be referred to the HPCSA. The
parties consequently
requested at the commencement of the trial that
an order be granted in terms of Rule 33(4) for the separation of
issues to the
effect that the determination of general damages stands
over for later adjudication. I granted the requested order.
[5]
I am consequently called upon to determine the loss of past and
future income and
earning capacity of the minor. In this regard
the plaintiff is claiming an amount of R9 628 700.00 on behalf of the
minor.
The
evidence:
The
plaintiff:
[6]
The plaintiff testified that S[...] is her child, who was born on
2[…] N[…]
2010. She is consequently currently 13
years old. She has two siblings, 8 years and 17 years old
respectively.
[7]
The plaintiff testified that at the time of the accident she was the
daily caretaker
of S[...]. S[...] was 5 years of age at the
time of the accident and she attended a creche, W[…] t[…]
P[…],
in Johannesburg. They were staying in Johannesburg
at the time and were only visiting in Bronville when the accident
occurred.
[8]
Prior to the accident S[...] was a normal, happy child. She
presented with no
problems at school and she was obedient, had many
friends and played normally with her friends.
[9]
Since the accident S[...] has been showing many changes in her
behaviour. According
to the plaintiff S[...] is not coping at
school, her grades are low and she failed grade 2. Every now and
again is being called
to school regarding S[...] to discuss her bad
performance and the fact that she is violent towards other learners.
At school they
also complain about S[...]’s concentration,
since she easily gets distracted from her schoolwork. S[...] is
currently in
grade 6.
[10]
The plaintiff further testified that since the accident S[...] has
become short-tempered, she
is violent, she uses bad language and
cries out of the blue and for no apparent reason. She is also cheeky
and stubborn.
The plaintiff was very adamant that this is not
how S[...] conducted herself prior to the accident. She is sometimes
bed-wetting
at night, which never occurred previously.
[11]
Since the accident S[...] is suffering from memory problems.
She forgets to do her homework
and when she is requested to perform
chores at home, she also forgets to do same.
[12]
S[...] is also suffering from headaches since the accident. At
times she does not want
to attend school, because of her headaches.
The plaintiff used to take her to the clinic, but since the plaintiff
is now
employed, she is unable to take S[...] to the clinic
regularly. She therefore buys her Panado pills.
[13]
Prior to the accident S[...] did not suffer from any physical
injuries or ailments. She
suffered no complications with
birth. The plaintiff described that the right hip and shoulder
of S[...] locks and that her
left hip also locks. She also
experiences spasms in her hips and thighs which have the result that
she cannot walk for long
distances. She is attending school
nearby. S[...] also has many scars as a result of the accident,
above her right
eye and all over her body. She is being teased
at school because of the scars and when she tells the plaintiff about
the
teasing, she cries about it. The plaintiff also testified
that S[...] is self-conscious as a result of the scars and also
withdraws herself from her friends as a result of her
self-consciousness.
[14]
Prior to the accident she had an excellent relationship with her
peers. Since the accident,
often when she plays with other
children, she becomes moody and simply withdraws herself from them.
[15]
All three of the plaintiff’s children, including S[...], has
one father. The plaintiff
is staying with their father.
He used to be a security guard. The other two siblings of S[...], are
also girls. The
8-year-old is doing well at school and was, at
the time of the trial, in Grade 2. The other sibling was
17-years old at the
time of the trial, but has since turned 18.
She is in Grade 11. S[...]`s two siblings do not show any of
the behavioural
problems which S[...] does, not at school, nor at
home.
[16]
Since the accident, the plaintiff has twice travelled to Welkom with
S[...]. She testified
that S[...] feels uncomfortable in a
vehicle and tends to vomit. She is scared of travelling, more
especially in a taxi.
She becomes anxious in a vehicle.
This was not the position prior to the accident.
[17]
The plaintiff became emotional when she testified that before the
accident she wanted a better
life for S[...], like any parent would.
According to her S[...] would have been able to achieve a better
life, but not since
the accident occurred.
[18]
In cross-examination the plaintiff testified that they live in
Johannesburg, but that she is
working as live-in domestic worker in
Pretoria. However, she goes home every weekend. She
started the said work in
May 2022. Before that she used to work
at a factory in Johannesburg.
[19]
Grade 11 is her highest level of education. Her husband
completed Grade 12 successfully.
[20]
With regard to S[...], she testified that she sometimes takes her to
the clinic and that she
also received counselling there, during which
counselling they advised S[...] and encouraged her. She took
her for the said
counselling because of her bad behaviour, which she
never showed prior to the accident.
[21]
The plaintiff further testified that she is very involved in her
children’s education.
During weekends she helps them with
their homework when she is at home. During the week, when she
is at work, their father
assists them.
[22]
She further testified that S[...] misses approximately 30 days in a
year due to her headaches
and also due to unexpected nose bleeding
from which she suffers since the accident.
[23]
In re-examination she testified that despite the counselling at the
clinic, S[...]`s behaviour
is not improving.
Documentary
evidence:
[24]
As part of the plaintiff`s case, the following expert reports, as
confirmed by affidavits, were
handed in as exhibits:
1.
Mr Talent Maturure, Industrial Psycologist, exhibit “A”.
2.
Prof. Adrian Kelly, Specialist Neurosurgeon, exhibit “C”.
3.
Dr LT Nhlapo, Educational Psychologist, exhibit “D”.
4.
Ms L Grootboom, Neuro/Clinical Psychologist, exhibit “E”.
5.
Mrs René Walker, Occupational Therapist, exhibit “F”.
6.
Ms Julie Anne Valentini, Actuary, exhibit “G”.
[25]
The following joint minutes were also handed in as exhibits:
1. Dr Mpanza and
Prof A Kelly, 15/04/2023, exhibit “H”.
2. Dr LT Nhlapo and
Dr D Kumalo, 15/07/2023, exhibit “J”.
3. Ms S van der
Merwe and Ms L Grootboom, 12/06/2023, exhibit “K”.
4. Mr T.
Maturure and Mr L Marais, 26 – 28/7/2023, exhibit “B”.
[26]
The plaintiff`s Industrial Psycologist, Mr Talent Maturure, testified
after the plaintiff. I,
however, deem it apposite to first deal with
joint minutes of the other experts.
Joint
minute between the Educational Psychologists:
Pre-accident:
[27]
In respect of the pre-accident scenario, the experts noted and agreed
as follows:
1. S[...]’s
delivery and birth were said to be uneventful.
2. No pre-existing
conditions were reported.
3. S[...]’s
gross developmental milestones followed a normal trajectory.
4. S[...]’s
medical history does not include any significant medical illness
prior to the accident.
5. S[...] is
staying with her parents and siblings. Their family
relationships and interactions were reported to be
satisfactory.
S[...] had been a Grade R learner at the time of the accident.
She reportedly did not present with any
cognitive difficulties as
there were no cognitive challenges reported prior to the accident.
6.
S[...] had
the ability to pass matric with a Bachelor Endorsement and the
experts opine that she could have been able to obtain
post-school
qualification at NQF Level 7.
(My emphasis)
Post-accident:
[28]
With regard to S[...]’s post-accident functioning, the experts
stated as follows:
1. They noted and
agreed that S[...] presents with forgetfulness, short memory span and
the inability to comprehend instructions
as expected.
Furthermore, she presents with enuresis, physical and emotional
complaints.
2. They noted and
acknowledged that S[...] failed Grade 2 post-accident.
3. Dr Kumalo noted
that S[...]’s failure in the foundation phase is an indication
of cognitive fall outs and the academic
challenges she is
experiencing, which will characterise her schooling path. She
presented with short attention span, distractibility,
impulsiveness,
lack of planning, lack of comprehension of written text and poor
planning, all of which factors are affecting her
academic progress
negatively. Dr Kumalo opines that S[...] will be classified as
a learner who will need additional support
throughout her schooling
career.
4. Dr Nhlapo noted
that the clinical diagnostic observations indicated that S[...] was
easily distracted, she fatigued quickly
and her thought processing
and response were delayed. Her language usage was impoverished
and her vocabulary was deprived,
both in LOLT and Home language.
She was fidgety, disorganised, impulsive and easily distracted.
Poor planning was indicated.
Teach and re-teach were required.
Her attention span was short and inattentiveness and a lack of
concentration were also
indicated. Her performance was slow
paced.
5. Dr Nhlapo noted
that S[...] will not be able to retain her pre-accident cognitive
function. She further noted that
the accident had a negative
impact on S[...]’s scholastic functioning.
6. Dr Kumalo noted
S[...]’s pre- and post-accident cognitive abilities have not
remained the same and she will need
accommodation and concessions
throughout her schooling. She will benefit from an
Individualised Education Plan (IEP) to cater
for her education needs.
7.
The experts
noted and agreed that S[...] may struggle to complete NQF Level 4 and
her chances to complete same without extensive
specialised
educational support, are limited.
(My emphasis)
8. The experts
noted and agreed that the psychometric test results revealed that
S[...]’s intellectual ability is below
average and that there
is a discrepancy between verbal scale and non-verbal scale.
9. They noted and
agreed that S[...] was still emotionally labile.
10. The experts noted and
agreed that S[...]’s loss of amenities is highly likely.
11. Placement in a
special school for children with mild intellectual disability (MID)
must be sought for S[...]’s cognitive
challenges to be fully
supported in a skills development environment.
12.
The experts agreed
that following the accident and reported cognitive challenges, as
well as the psychometric assessment results,
it is unlikely that
S[...] will still be able to obtain a NQF Level 7 qualification.
She will probably be able to attain
a NQF Level 5 in skills
development sector depending on the correct school placement and
support for her educational needs.
She may need to be employed
by a sympathetic employer and deference is made to an occupational
and industrial psychologist.
(My emphasis)
Joint
minutes between the Clinical Psychologists:
Pre-accident:
[29]
The experts agreed that S[...] had no history of cognitive-,
physical- or emotional challenges
that would have impacted on the
neuropsychological test results.
Post-Accident:
[30]
With regard to the post-accident scenario, the experts stated as
follows:
1.
They referred to records that S[...] sustained a mild traumatic brain
injury, facial abrasions and laceration
to the left forehead.
2.
S[...] repeated Grade 2.
3.
Ms Grootboom’s neuropsychological assessment revealed mild to
significant deficits in the domains
of attention, memory, reasoning
and higher order reasoning (executive function). It was,
however, noted that executive functions
are not yet fully developed
in a child as young as S[...].
4.
Ms van der Merwe noted symptoms of a childhood Post- Traumatic Stress
Disorder and symptoms of a Mild
Depressive Disorder.
5.
Ms Grootboom noted that collateral information provided by her mother
indicates significant mood- and
behavioural disturbances suggestive
of depressive- and post-traumatic stress symptoms. Given
S[...]’s age, it is to
be expected that she would have
difficulty understanding and reporting on her own emotional
functioning. Personality changes
were reported as she is
aggressive to peers and siblings. She is also emotionally
sensitive.
6.
Chronic pain in the form of headaches, emotive dysfunction and facial
scaring will continue to act as
constant reminders of the accident
and the trauma she experienced, thus perpetuating psychopathology.
7.
Additionally, complaints of bed-wetting may be associated with
S[...]`s psychological symptoms as the
projective tests anxiety.
However, a Urologist should be consulted to rule out the possibility
of an organic aetiology.
8.
S[...]’s psychological status is having a significant negative
impact om her ability to fulfil
her academic role specifically with
regards to behavioural difficulties and on her ability to form and
maintain peer relationships.
9.
Should S[...] be placed in a more appropriate schooling system, it is
possible that her psychological
status can improve with the necessary
psychotherapeutic support.
10.
Ms
Grootboom noted that S[...]’s neurocognitive deficits would
affect her academic outcomes.
(My emphasis)
Joint
minutes between the Neurosurgeons:
Post-accident:
[31]
The two experts agreed as follows:
1. S[...] sustained
a head injury in the accident. Both experts suggested a mild
traumatic brain injury as evident by
a Glasgow Coma Scale 15/15 and
no CT brain scan wasperformed. The head injury was treated
conservatively.
2. Since the
accident, S[...] has been complaining of post head injury headaches.
They agreed that the headaches be treated
medically with
non-steroidal anti-inflammatory medication.
3. S[...] complains
of memory problems and in this regard, they deferred to the reports
of the neuropsychologists.
4. She is also
suffering from a mood disorder, and the experts defer to the reports
of the clinical psychologists.
5. S[...] suffered
soft tissue injuries of the right thigh and complains of right thigh
pain.
6. S[...] complains
of facial scarring and scarring of the left forearm.
7. The life
expectancy of S[...] has not been influenced by the accident.
8. Permanent
serious disfigurement is evident.
9.
Severe
long-term mental or severe long-term behavioural disturbance or
disorder are evident.
(My emphasis)
10.
Both experts
suggested that S[...] has a 2 – 3% chance of developing
epilepsy in future.
(My emphasis)
Joint
minute between the Industrial Psychologists:
Pre-accident
performance:
[32]
Both experts agreed that S[...]`s gross developmental milestones
followed a normal trajectory.
She reportedly not presented with any
cognitive difficulties as there were no cognitive challenges
reported.
They agreed that S[...] had the pre-accident ability to
pass Matric with a Bachelor Endorsement and opined she could have
been able
to obtain post-school qualification at NQF Level 7.
(My
emphasis)
Post-accident
functioning:
[33]
Both experts noted and agreed as follows:
1.
Following the accident and reported cognitive challenges, as well as
the psychometrics assessment
results, it is unlikely that S[...] will
still be able to obtain a NQF Level 7 qualification.
She
will probably attain an NQF Level 5 in skills development and sector
depending on the correct school placement and support for
her
educational needs. She may need to be employed by a sympathetic
employer with deference to an Occupational and Industrial
Psychologist.
(My emphasis)
2.
They both noted the contents of the joint minute between the
Neurosurgeons and also the contents
of the joint minute between the
Clinical Psychologist.
Pre-accident:
[34]
The two experts noted and
agreed
as follows:
1. They agreed that
S[...]’s choice of occupation will be determined by the level
of education she achieves, as well
as her interests she develop.
2. They noted that
according to the Educational Psychologists S[...]
would complete
her normal schooling, passing Matric with a Bachelor Endorsement and
opined that she could have been able to obtain
post-school
qualification at NQF Level 7
. (My emphasis)
3.
They further agreed that S[...] would have worked in the open
labour market until the normal retirement age of 65 years depending
on a variety of factors, such as a health status, personal
circumstances, personal preferences and conditions of employment,
etc.
(My emphasis)
[35]
Based on the joint minute of the Educational Psychologists, the two
experts
disagreed
on
the
pre-accident career path
:
1.
Mr Maturure o.b.o the plaintiff:
“
With a
Degree (NQF Level 7) level of education, she would have entered the
open labour market at a Paterson Level B4/B5/C1, reaching
her career
ceiling earning at the upper quartiles of Paterson D1+ level.
Her earnings would have plateau at around 40 –
45 and she would
have received inflation increases, thereafter.”
2.
Mr Marais o.b.o the defendant:
“
With a
B-degree, she would have entered the open labour market, probably as
an intern, and later secure employment, depending on
the degree, at
the Paterson Grade B4 and progressed to a career ceiling of Paterson
Grade C4 or C5, at age around 48 years, due
to the impact of the
global Covid-19 pandemic had on employers and employment trends.
In certain cases, individuals could
progress to higher levels.”
Post-accident
earning potential:
[36]
With regard to her post-accident earning potential they
agreed
that:
1.
Based on the reports at hand, S[...]’s scholastic abilities are
likely to have been negatively
affected as a result of the injuries
she sustained in the accident.
2.
S[...]`s choice of occupation will be determined by the level of
education she receives, as well as her
interests she develop.
3. Based on the joint
minutes between the Educational Psychologists
they agree that
S[...] would only be able to reach a NCQF Level 05 in the skills
development sector
. (My emphasis)
4. They further noted
that according to the Educational Psychologists, S[...] may need
special schooling and they agree that
with special schooling,
employment opportunities and earnings have been reduced.
(My
emphasis)
5.
The experts also
agreed that with psychological limitations and potential health
decline, S[...]’s employability has been
compromised in the
open labour market.
(My emphasis)
6. The Educational
Psychologists opined that S[...] may need to be employed by a
sympathetic employer. They agreed that sympathetic
employment is
rare, thus S[...] has been rendered an unequal competitor and a
vulnerable jobseeker in the open labour market.
She may
experience difficulty securing and sustaining employment in her
injured state.
7. The two experts
suggested that a higher post-accident contingency be applicable to
compensate S[...] as she has been rendered
a vulnerable
employee/jobseeker in the open labour market.
[37]
With regard to S[...]`s post-accident career path and earning, the
two experts
disagreed
:
1.
Mr Maturure o.b.o the plaintiff:
“
She will be
a candidate for semi-skilled employment. She could enter the
labour market as an unskilled labourer earning at
the lower quartiles
of unskilled labourers, reaching a career ceiling earning at the
median quartiles of semiskilled labourers
at around the age 40 –
45, receiving inflationary increases, thereafter. Current
earnings are noted, refer to Appendix
1. Noting the experts’
findings on 6.1.6 above, Mr Maturure is of the view that she has been
rendered practically unemployable
in the open labour market
considering the rarity of sympathetic employment.”
2.
Mr Marais o.b.o the defendant:
“
She will be a
jobseeker with NQF Level 05, and could enter the open labour market
in the semi-skilled occupational group at a Paterson
A3 and progress
to a career ceiling of Paterson B4 to at most a C1.”
[38]
They deferred to the relevant experts regarding early retirement.
Mr
Maturure:
[39]
As indicated earlier, Mr Maturure was called as an expert witness, in
his capacity as an Industrial
Psychologist, on behalf of the
plaintiff.
[40]
In his evidence he repeated what he stated in terms of the joint
minute between him and Mr Marais.
[41]
He testified that should S[...] be able to attain a NCQF Level 05 in
the skills development sector
and should she be able obtain
sympathetic employment, she would enter the labour market as an
unskilled labourer at the lower quartiles
of unskilled labourers.
[42]
In cross-examination and re-examination, Mr Maturure,
inter alia,
testified as follows:
1.
A jobseeker with NQF Level 7, hence with a degree, is not guaranteed
to reach Paterson level D, but D1,
which Mr Maturure used, is entry
level for a person with a degree and that is why he avoided using the
top level like D5.
2.
When asked whether, considering the high unemployment figures, one
may have a degree and still be unable
to obtain employment, which he
confirmed, but testified that people with no qualifications are even
more affected by unemployment.
3.
He testified that NQF level 5 is when a person goes through training
in vocational area with the potential
of obtaining a certificate.
4.
With NQF level 5, S[...] will be a jobseeker, but she will not be
able to compete in the open labour
market, since she will be an
unequal and vulnerable jobseeker.
5.
Although S[...] may have the capacity to reach a NQF Level 05 in the
skills development sector, she will
probably still need to be
employed by a sympathetic employer, due to her neurological and
cognitive deficiencies. She is not on
par with jobseekers who do not
have these deficiencies.
6.
Mr Maturure testified that there is also the possibility of periods
of unemployment in-between.
7.
In re-examination Mr Maturure testified that the possibility still
exists that even with a NQF Level
05 in the skill development sector,
S[...] is still likely to struggle to obtain employment and would
need a sympathetic employer,
which Mr Marais agreed is rare.
8.
Mr Maturure opined that Mr Marais is evaluating the position of
S[...] as though she is fit and well,
which she is not.
Mr
Marais:
[43]
Mr Marais was called as an expert witness, in his capacity as an
Industrial Psychologist, on
behalf of the defendant.
[44]
In his evidence he repeated what he stated in terms of the joint
minute between him and Mr Maturure.
He further testified in his
evidence in chief as follows:
1.
Mr Marais testified that although he agrees that the pre-accident
potential of S[...] was NQ Level 7,
he does not agree with the salary
scales as testified by Mr Maturure. According to him people with
degrees normally enter at Paterson
B4 and progresses to C4/C5.
2. It
usually takes 3 to 5 years to progress from B4 to C4/C5, on average 4
years.
3.
Mr Marais explained that Paterson D4 is management level with fewer
job opportunities. He did not exclude
level D for the pre-accident
scenario for S[...], but, according to him, it is more probable that
she would have reached C4/C5.
4.
Mr Marais testified that he is not disputing that S[...] is an
unequal competitor and a vulnerable jobseeker
in the open labour
market, but he disagrees that she is unemployable. He opined that if
one can obtain a vocational NQF Level 5,
which entails some form of
studying or education, one is marketable in the open labour market.
S[...] could then enter the open
labour market in the semi-skilled
occupational group at a Paterson A3 (unskilled band) and progress to
a career ceiling of Paterson
B4 (semi-skilled band), or at most a
C1.
5.
He conceded that there will be terms of unemployment, possibly with a
delayed entry.
[45]
In cross-examination Mr Marais,
inter alia,
testified as
follows:
1.
He again explained that Paterson D is on managerial level, where job
opportunities are much less, and
although he does not exclude that
S[...] might have reached Paterson D1 in her pre-accident state, but
that the majority of people
who are employed end at C4 or C5 level.
He testified that it is the norm, not the exception. Since there is
no indication that
S[...] was considered to have been a gifted child
pre-accident, she would probably have reached C4 or C5 level as
opposed to D
level.
2.
Mr Marais explained that NQF Level 05 in the “
skills
development sector
” means that it is in the vocational
sector, which entails more practical training to develop skills as
opposed to academic
training, although in includes both theory and
practical training.
3.
It was put to him by Mr Steenkamp, who appeared on behalf of the
plaintiff, that S[...] is practically
unemployable. He denied same,
stating that although employers prefer a non-injured employee, they
do employ compromised employees
too.
[46]
The report of Mr Marais was handed in as an exhibit by Ms Banda, who
appeared on behalf of the
defendant, as exhibit “L1” and
the addendum to his report as exhibit “L2”.
[47]
That concluded the case for the plaintiff and for the defendant. I
arranged with the respective
legal representatives for the filing of
heads of argument, which was done on 18 September 2023 and 3 October
respectively. No replying
heads of argument were filed.
Job
Grading and Salary scales.
[48]
I need to mention that in the expert report of Mr Marais, in the
joint minute between him and
Dr Mataruru and in his evidence, Mr
Marais testified and explained about different scales that can be
used for job grading and
for salary scales. He testified that he
prefers to make use of Peromnes grading system instead of Paterson.
He also prefers not
to make use of Robert Koch`s estimated salary
scales, but rather that of Deloitte. Mr Marais explained his reasons
for his stance.
Mr Mataruru testified that he prefers to make use of
Paterson and Robert Koch`s estimated salary scales.
[49]
I considered the evidence in this regard, especially that an
Industrial Psychologist may choose
which scales to use. In the
circumstances I can find no reason to deal with the different scales
and earnings information. I prefer
to make use of the Paterson
grading system and Robert Koch`s estimated salary scales, like we
have been doing in our Courts for
many years now.
Career
path and loss of future earnings:
[50]
As already evident, there is no past loss of earnings applicable,
only future loss of earnings.
Pre-accident:
[51]
In respect of the pre-accident scenario, it is evident that the
respective experts are
ad idem
that S[...] had the ability to
pass matric with a Batchelor Endorsement and she could have been able
to obtain a post school qualification
at NQF Level 7.
[52]
The Industrial Psychologists are in agreement that S[...] would have
worked in the open labour
market until the normal retirement age of
65.
[53]
The two Industrial Psychologists, however, disagree on the S[...]`s
pre-accident career path.
For the sake of ease of reference, I
again quote the relevant parts from their joint minute:
1.
Mr Maturure o.b.o the plaintiff:
“
With a
Degree (NQF Level 7) level of education, she would have entered the
open labour market at a Paterson Level B4/B5/C1, reaching
her career
ceiling earning at the upper quartiles of Paterson D1+ level.
Her earnings would have plateau at around 40 –
45 and she would
have received inflation increases, thereafter.”
2.
Mr Marais o.b.o the defendant:
“
With a
B-degree, she would have entered the open labour market, probably as
an intern, and later secure employment, depending on
the degree, at
the Paterson Grade B4 and progressed to a career ceiling of Paterson
Grade C4 or C5, at age around 48 years, due
to the impact of the
global Covid-19 pandemic had on employers and employment trends.
In certain cases, individuals could
progress to higher levels.”
[54]
Mr Maturure, on behalf of the plaintiff, testified that a jobseeker
with NQF Level 7, hence with
a degree, is not guaranteed to reach
Paterson level D, but D1, which Mr Maturure used according to him, is
entry level for a person
with a degree and that is why he avoided
using the top level, like D5. However, from their joint minute it
appears that Mr Maturure
in fact postulated S[...]`s pre-accident
career ceiling at “
earning at the
upper quartiles
of Paterson D1+
level
” and not only Level D1.
[55]
According to Mr Marais, on behalf of the defendant, people with
degrees normally enter at Paterson
B4 and progresses to C4/C5. In his
experience the majority of people who are employed, end at C4 or C5
level. He testified that
it is the norm, not the exception. He
explained that Paterson level D is on managerial level, where job
opportunities are much
less, and although he does not exclude that
S[...] might have reached Paterson level D in her pre-accident state,
since there is
no indication that S[...] was considered to have been
a gifted child pre-accident, she would probably have reached Paterson
C4
or C5 level as opposed to D level.
[56]
In light of the totality of the evidence, I find that, on
probabilities, with a Degree (NQF Level
7) level of education, S[...]
would have entered the open labour market at a Paterson Level
B4/B5/C1, and progressed, reaching
her career ceiling earning at the
upper quartiles of Paterson Level C4/C5, at age around 45 years, and
she would have received
inflationary increases thereafter.
Post-accident:
[57]
In respect of the post-accident scenario, it is evident that the
respective experts are
ad idem
that S[...] should be able to
obtain a NQF Level 5 in the skills development sector.
[58]
The Industrial Psychologists are in agreement that S[...] wIll work
in the open labour market
until the normal retirement age of 65
years, depending on a variety of factors, such as health status,
personal circumstances,
personal prefernces and conditions of
employment, etc.
[59]
The two Industrial Psychologists, however, disagree on the S[...]`s
post-accident career path.
For the sake of ease of reference, I
again quote the relevant parts from their joint minute:
1.
Mr Maturure o.b.o the plaintiff:
“
She will be
a candidate for semi-skilled employment. She could enter the
labour market as an unskilled labourer earning at
the lower quartiles
of unskilled labourers, reaching a career ceiling earning at the
median quartiles of semiskilled labourers
at around the age 40 –
45, receiving inflationary increases, thereafter. Current
earnings are noted, refer to Appendix
1. Noting the experts’
findings on 6.1.6 above, Mr Maturure is of the view that she has been
rendered practically unemployable
in the open labour market
considering the rarity of sympathetic employment.”
2.
Mr Marais o.b.o the defendant:
“
She will be a
jobseeker with NQF Level 05, and could enter the open labour market
in the semi-skilled occupational group at a Paterson
A3 and progress
to a career ceiling of Paterson B4 to at most a C1.”
[60]
The main issue between the parties regarding the post-accident
career-path of S[...], is that
according to the plaintiff, she will
be employable on the open labour market, albeit that she will be an
unequal competitor and
vulnerable jobseeker. According to the
defendant S[…] will need to be employed by a sympathetic
employer, which the Industrial
Psychologists agree is rare, and that
S[…] is therefore practically unemployable.
[61]
Mr Marais testified that he is not disputing that S[...] is an
unequal competitor and a vulnerable
jobseeker in the open labour
market, but he disagrees that she is unemployable. He opined that if
S[...] will be able obtain a
NQF Level 5 in the skills development
sector, which entails some form of studying or education, she will be
marketable in the open
labour market.
[62]
From the totality of the evidence, I agree with the opinion of Mr
Marais and is S[...] not to
be considered as practically unemployable
in the open labour market. However, having said that, I do intend to
properly discount
the vicissitudes of life, specifically in respect
of S[...] personally, by means of a reasonable and fair contingency.
[63]
With regard to the post-accident future earnings, after consideration
of all the relevant evidence,
I am of the view that S[...] will be a
jobseeker with NQF level 5 in the skills development sector who could
enter the open labour
market as an unskilled labourer earning at the
lower quartiles of Paterson Level A3 and progress to a career ceiling
earning at
the median quartiles at Paterson Level B4 at around the
age of 40 – 45 years, receiving inflationary increases
thereafter.
Contingencies:
[64]
It is trite that it is for the court to determine the percentage of
contingencies to be applied
in a matter such as this.
[65]
Contingencies discount the vicissitudes of life and it is a method
used to arrive at fair and
reasonable compensation. The determination
of contingencies was dealt with in
Southern Insurance
Association Ltd v Bailey N.O.
1984 (1) SA 98
(A) at 113G and
116G – 117A:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
…
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is ‘tied down by inexorable actuarial
calculations’. He has ‘a large discretion to award what
he considers right’ (
per
HOLMES
JA in
Legal
Assurance Co Ltd v Botes
1963
(1) SA 608
(A)
at 614F). One of the elements in exercising that
discretion is the making of a discount for ‘contingencies’
or the
‘vicissitudes of life’. These include such matters
as the possibility that the plaintiff may in the result have less
than a ‘normal’ expectation of life; and that he may
experience periods of unemployment by reason of incapacity due
to
illness or accident, or to labour unrest or general economic
conditions.
The
amount of any discount may vary, depending upon the circumstances of
the case.
See
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A)
at 114 - 5. The rate of the discount cannot of
course be assessed on any logical basis: the assessment must be
largely arbitrary
and must depend upon the trial Judge's impression
of the case.
…
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz v
Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
‘
It
is a mistake to suppose that it necessarily involves a 'scaling
down'. What it involves depends, not on arithmetic, but on
considering
what the future may have held for the particular
individual concerned... (The) generalisation that there must be a
'scaling down'
for contingencies seems mistaken. All 'contingencies'
are not adverse: All 'vicissitudes' are not harmful. A particular
plaintiff
might have had prospects or chances of advancement and
increasingly remunerative employment. Why count the possible buffets
and
ignore the rewards of fortune? Each case depends upon its own
facts. In some it may seem that the chance of good fortune might have
balanced or even outweighed the risk of bad.’”
[66]
In the judgment of
Gillbanks v
Sigournay
1959
(2) SA 11
(N) the following was stated at 17 E – F in respect
of contingencies in an estimation of a plaintiff`s claim for loss of
earnings:
“
In
any estimate of a person's loss of earning capacity allowance must be
made for all contingencies including the accidents of life
and
certain deductions must be made from the estimated gross income to
allow for unemployment benefits, insurance and so on. These
contingencies would include -
(i)
a possibility that plaintiff's working life may have been less than
sixty-five years;
(ii) a
possibility of his death before he reaches the age of sixty-five
years;
(iii) the
likelihood of his suffering an illness of long duration;
(iv) unemployment;
(v) inflation
and deflation;
(vi) alterations
in the cost-of-living allowances;
(vii) an
accident whilst participating in sport such as hockey or cricket,
or at any other time which
would affect his earning
capacity; and
(viii) any
other contingency that might affect his earning capacity.”
[67]
In the judgment of
Dlamini v Road Accident Fund
(59188/13) [2015] ZAGPPHC 646 (3 September 2015) at paras [29] –
[31] the court dealt with and applied some guidelines referred
to by
Koch in The Quantum Year Book:
[
29] In
his book
The
Quantum Yearbook,
Koch
states that when assessing damages for loss of earnings or support it
is usual for a deduction to be made for general
contingencies
for
which no explicit allowance has been made in the actuarial
calculation.
The deduction is in the prerogative of the court. General
contingencies cover a wide range of considerations which may vary
from
case to case and may include: taxation, early death, loss of
employment, promotion prospect, divorce etc. (My emphasis)
[
30] Koch
refers to the following as some of the guidelines as regards
contingencies:
‘
Normal
contingencies’ as deductions of 5% for past loss and 15% for
future loss.
‘
Sliding
scale’: 1/2 % per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in the middle age and relies
on Goodall
v President Insurance
1978 (1) SA 389.
‘
Differential
contingencies’ are commonly applied, that is to say one
percentage applied to earnings but for the accident,
and a different
percentage to earnings having regard to the accident.
[31] When
a court is called upon to exercise an arbitrary discretion that is
largely based on speculated facts it must do so
with necessary
circumspection. In the absence of contrary evidence, the court can
assume that a reasonable person in the position
of the plaintiff
would have succeeded to minimize the adverse hazards of life rather
than to accept them. Both favourable and adverse
contingencies have
to be taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies
are not always adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been
placed in the position where his
income would have to be the subject of speculation if the accident
had not occurred.”
[68]
Mr Steenkamp submitted that 15% contingency deduction for
pre-accident loss of earnings and 25%
contingency deduction for
post-accident loss of earnings should be applied as being fair and
just. Ms Banda submitted that 35%
contingency deduction for both
pre-accident and post-accident loss of earnings should be applied.
[69]
There appears to be two actuarial reports., The first one is dated 12
April 2022, drafted by
Ms Valentini of Munro Forensic Actuaries, and
which was handed in by the plaintiff as exhibit “G”. The
second “revised”
report was also drafted by Ms Valentini,
also on request of the plaintiff`s attorneys, dated 31 July 2023,
after obtaining the
joint minute between the Industrial
Psychologists, which was not handed in as an exhibit, but is attached
to the heads of argument
of Ms Banda.
[70]
Mr Steenkamp is relying on scenario 3 of exhibit
“G”, where contingency deductions of 15% and
25% were
made and the total loss of future earnings amounts to R9 628 700.00.
[71]
Ms Banda is relying on scenario 2 of the revised actuarial report
where contingencies of 15%
and 25 % were applied and the total future
loss of earnings amounts to R4 266 680.00. However, Ms Band
applied a 35%
contingency for both the pre- and post-accident
scenario and submitted that the total loss of earnings amounts to
R4 266 680.00.
[72]
Be that as it may, since I have made different findings
than those postulated in the five scenarios presented
by the actuary,
new calculations will in any event have to be made.
[73]
With regard to the pre-accident contingency, I have already adapted
the postulated career path
on the basis that S[...], on
probabilities, would have reached only Paterson C5 and not D1+ as
postulated by the plaintiff`s Industrial
Psychologist. In the
circumstances there are only the “usual” v
icissitudes
of life which need to be taken in consideration and therefore, in my
view, a 10% contingency will be reasonable in all
the circumstances.
[74]
With regard to the post-accident contingency, I take the following
relevant information into
consideration in exercising my discretion:
1.
Both Industrial Psychologists suggested that a higher post-accident
contingency be applicable to compensate
S[...] as she has been
rendered a vulnerable employee/jobseeker in the open labour market.
2.
The Educational Psychologists agreed that S[...] may struggle to
complete NQF Level 4 and her chances
to complete same without
extensive specialised educational support, are limited. She will
probably be able to attain a NQF Level
5 in skills development sector
depending on the correct school placement and support for her
educational needs. She may need
to be employed by a sympathetic
employer and deference is made to an occupational and industrial
psychologist.
3.
The Clinical Psychologist,
Ms Grootboom,
noted that S[...]’s neurocognitive deficits would affect her
academic outcomes.
4. The
Neurosurgeons agreed that severe long-term mental or severe long-term
behavioural disturbances or disorders
are evident. Both experts also
suggested that S[...] has a 2 – 3% chance of developing
epilepsy in future.
5.
The Industrial Psychologists agreed that
S[...] will probably
attain an NQF Level 5 in skills development and sector depending on
the correct school placement and support
for her educational needs.
They further noted that according to the Educational Psychologists,
S[...] may need special schooling
and they agree that with special
schooling, employment opportunities and earnings have been reduced.
The Industrial Psycologists
also agreed that with psychological
limitations and potential health decline, S[...]’s
employability has been compromised
in the open labour market. The
Educational Psychologists opined that S[...] may need to be employed
by a sympathetic employer.
The Industrial psychologists agreed that
sympathetic employment is rare, thus S[...] has been rendered an
unequal competitor and
a vulnerable jobseeker in the open labour
market. She may experience difficulty securing and sustaining
employment in her
injured state.
6.
Mr Maturure testified that although S[...] may have the capacity to
reach a NQF Level 05 in the skills
development sector, she will
probably still need to be employed by a sympathetic employer, due to
her neurological and cognitive
deficiencies. She is not on par with
jobseekers who do not have these deficiencies. There is also
the possibility of periods
of unemployment in-between.
[75]
I am consequently of the view that a 50%
contingency for future earnings post-accident will be fair and
reasonable in all the circumstances.
Costs:
[76]
There is no reason why the costs are not to follow the outcome,
including the costs of the relevant
expert witnesses, but excluding
the wasted costs of 4 August 2023, which has already been determined.
Order:
[77]
The following order is consequently made:
1.
The defendant is liable to pay 100 % (Hundred Percent) of the
plaintiff's proven damages.
2. The
defendant shall furnish the plaintiff with an Undertaking, in terms
of Section 17(4)(a) of Act 56 of 1996,
in respect of future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or the rendering of a service
or supplying of goods of a
medical and non-medical nature to the plaintiff (and after the costs
have been incurred and upon submission
of proof thereof) arising out
of the injuries sustained in the collision which occurred on 27
December 2015.
3.
The plaintiff`s attorney of record is ordered to forthwith request
the actuary
to prepare an actuarial
calculation on the following postulations, up to the date of this
order:
3.1
Future loss of earnings pre-accident:
The
minor would have obtained
a Degree (NQF Level 7) level of
education, whereafter she would have entered the open labour market
at a Paterson Level B4/B5/C1,
and progressed, reaching her career
ceiling earning at the upper quartiles of Paterson Level C4/C5, at
age around 45 years, and
she would have received inflationary
increases thereafter. A contingency of 10% is to be applied.
3.2
Future loss of earnings post-accident
The minor should obtain a
NQF level 5 in the skills development sector, where after she could
enter the open labour market as an
unskilled labourer earning at the
lower quartiles of Paterson Level A3 and progress to a career ceiling
earning at the median quartiles
of Paterson Level B4 at around the
age of 40 – 45 years, receiving inflationary increases
thereafter. A contingency
of 50% is to be applied.
3.3
A retirement age of 65 years is to be applied to both the
pre-accident earnings and the post-accident
earnings
4.
Leave is granted to the parties to approach Van Zyl, J in
chambers, once the aforesaid calculation is received, with a draft
order
to obtain a further order for the payment by the defendant to
the plaintiff of the amount calculated as aforesaid.
5.
The aforesaid draft order is to also make provision for:
5.1
An order in respect of costs; and
5.2
The postponement of the issue of general dameges to a pre-trial date.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv.
G.C. Steenkamp
Instructed
by
:
S.B
SeshibeAttorneys
C/O
Matsepes Attorneys
BLOEMFONTEIN
Ref:
Mr Seshibe/RAF171/2021
brian@sbseshibeincattorneys.co.za
sewatabrian@yahoo.com
On
behalf of the defendant:
Ms
N.P. Banda
Instructed
by:
Offices
of the State Attorney
BLOEMFONTEIN
Link
4311645