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2024
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[2024] ZAFSHC 99
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M.F.M obo N.M v Road Accident Fund (5609/2021) [2024] ZAFSHC 99 (28 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:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no: 5609/2021
In
the matter between:
N[…]
F[…] M[…] obo
N[…]
M[…]
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
29
NOVEMBER 2024
DELIVERED
ON:
28
MARCH 2024
[1]
On 9 February 2018 the plaintiff was a pedestrian on a road in
Kwakwatsi, Koppies when she was
hit by a motor vehicle. She was about
11 years old at the time. She sustained injuries and instituted
damages against the defendant.
The merits were resolved on the basis
that the defendant shall pay 100% of the plaintiff’s proven or
agreed damages. The
damages for future loss of earnings as well as
the general damages remained unresolved
[2]
The defendant was, however, ordered to make an interim payment of
five hundred and seventy-six
thousand and forty-eight rand seventy
cents (R576 048.70) for future loss of earnings. This court is only
called upon to adjudicate
the issue of loss of earnings.
[3]
At the beginning of the trial, the plaintiff brought an application
in terms of which leave was sought
to lead evidence in respect of the
issues of quantum in terms Rule 38(2) of the Uniform rules of this
court, read together with
Section3(1)(c) of the Law of Evidence Act,
45 of 1988. Having considered the application and there being, no
opposition on the
part of the defendant, I granted the application.
The essence of the application was to grant leave to admit the
affidavits of
the applicant’s experts pertaining to the issue
of quantum as well as the collateral facts and information provided
to the
plaintiff’s experts in so far as it constituted hearsay
evidence and as contained in the respective reports.
[4]
Dr Hoffman a plastic surgeon indicated that the plaintiff sustained a
left pelvic fracture and
had sustained abrasions of both thighs.
According to the Dr. the plaintiff presented with a faint pigmented
abrasion scar over
the lateral aspect of the left thigh.
[5]
Dr Marine, an orthopaedic surgeon also consulted with the plaintiff,
Dr Marine confirms the fracture of the pelvis
sustained by the
plaintiff. According to the doctor, both the plaintiff and the mother
informed him that the plaintiff struggled
with walking and/or
standing for prolonged periods of time. The doctor also opined that
due to the nature of the injuries the plaintiff
had sustained, he had
a high possibility of developing osteoarthritis of the right hip
joint. With reference to employability,
the doctor opined that the
child will ultimately enter the work force. The doctor also opines
that the pelvic fracture the plaintiff
had sustained, had a profound
impact on his productivity, working ability and amenities of life and
will continue to do so in future.
The doctor further opines that the
plaintiff will continue to suffer from sequela emanating from the
injuries. He recommends that
the plaintiff should be accommodated and
should not do manual labour. He however holds the view that the
plaintiff will however
be able to work until the retirement age of
65.
[6]
The plaintiff was also assessed by Ms Du Plessis, an educational
psychologist. According to Mrs Du Plessis
opines that on the
pre-morbid level, the plaintiff most probably presented with an
average cognitive ability. On the post morbid
functioning, she found
that the plaintiff had not obtained sufficient knowledge that comes
from pre learning and past experiences.
She observed that the
plaintiff was unable to reason on previously learned verbal
information and to respond to formal educational
stimulation received
within her home, social, academic and occupational environment. When
it comes to non-verbal ability attributes
of the plaintiff, she noted
that the plaintiff showed a significant decrease in ability to reason
independently, to analyse and
synthesise both concrete and abstract
information to solve problems successfully. This attribute becomes
increasingly important
especially on high school and tertiary levels.
[7] The
plaintiff cannot integrate visual stimuli, reason non-verbally and
apply skills to solve problems not
typically taught through formal
learning and is unable to use her innate potential to solve problems
in an abstract manner. Ms
Du Plessis concluded that the plaintiff had
exceptionally weak, general intellectual profile. She presented with
borderline to
poor crystallized intelligence. According to her, the
plaintiff’s below average general intellectual functioning is
likely
to hamper her learning ability. This would be further
compromised by the below average working memory, process in speed and
general
language ability. She noted that there appeared to be a
decline in plaintiff’s post morbid cognitive functioning
compared
to his estimated pre-morbid functioning. According to her,
the plaintiff presented with significant delays in reading, spelling
and mathematics.
[8]
The plaintiff was also assessed by Ms Frezelna Steyn, an occupational
therapist. According to
her the plaintiff presented with a decreased
right hip rotation, slightly decreased muscle strength in the area
surrounding the
hips, and leaping gait pattern. She concluded that
the plaintiff is unsuited for manual occupations, she also holds the
view that
the plaintiff is restricted to sedentary and some light
duties which require minimal mobility demand. According to her, the
plaintiff
may be a vulnerable employee and would be unable to compete
fairly with his peers within the labour market. She further concludes
that if the plaintiff is unable to obtain a grade 12 level of
education, he would struggle to secure employment.
[9]
Ms Trudi Burger, an industrial psychologist also assessed the
plaintiff. She says the plaintiff
informed her that he had frequent
pain in the pelvic area when sitting or walking for prolonged
periods. He also informed her that
at the time of the accident he was
a learner in grade R. Mrs Burger had access to the report of the
educational psychologist and
she opines that the plaintiff’s
future educational and occupational proficiency had been negatively
impacted upon by the
accident and this is expected to have a direct
negative impact on his future employment prospects and earning
potential.
[10]
According to her, his future loss of income would entail calculation
of the difference between the earnings with an NQF
4 and NQF 5 level
of education. She suggested a higher post morbid contingency
deduction to cater for any unknown eventualities,
especially for the
fact that his career choices will be directly linked to the
educational level he obtains. According to her if
the plaintiff is
unable to complete Grade 12, he will be reliant on unskilled type of
occupation which is usually manual in nature.
He will be restricted
to sedentary and some light work with minimum mobility demands. This
would significantly limit his career
options. In conclusion she notes
that the plaintiff could suffer a partial loss of income
[11]
Southern Insurance Association Ltd B Bailey
1984 1 SA 98
(A)
113G -114 gives guidance on the advantages of applying actuarial
calculations. The court in this case said the following:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative…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.
It
has open to it two possible approaches.
It
has open to it two possible approaches. One is for the Judge to make
a round estimate of an amount which seems to him to be fair
and
reasonable. That is entirely a matter of guesswork, a blind
plunge into the unknown.
The
other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence.
The validity of this approach depends of course upon the soundness of
the assumptions, and these may vary from the strongly probable
to the
speculative.
It
is manifest that either approach involves guesswork to a greater or
lesser extent. But the Court cannot for this reason
adopt a non
possumus attitude and make no award.’
…
In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary,
while the result of an actuarial computation may be
no more than an
‘informed guess’ it has the advantage of an attempt to
ascertain the value of what was lost on a logical
basis; whereas the
trial Judge’s ‘gut feeling’ (to use the words of
appellant’s counsel) as to what is
fair and reasonable is
nothing more than a blind guess
.”
(
Footnotes omitted)
[12]
It is common cause that the plaintiff was a minor child at the time
that he sustained the injuries which
are the subject of this
litigation. He was in
Grade R
as far as his formal education
is concerned. It goes without saying that he was unemployed. The
injuries he sustained has resulted
in physical incapacity which
according to the experts has resulted in him being relegated to only
sedentary type of work. If he
manages to obtain
Grade 12
level
of education, he may be able to cope with sedentary work. However, it
is opined that in the event of requiring a revision
hip replacement,
he will struggle increasingly more with sedentary work where he would
constantly seek to sit.
[13]
According to the Clinical Psychologist, Ms Magubane, the plaintiff
presented with a mild neurocognitive disorder.
Ms Magubane opines
that the accident appears to have impacted on her neuropsychological
functioning.
[14]
It is undisputed that the accident has had an impact on the post
morbid career prospects of the plaintiff. The pelvic fracture
has a
significant impact on the productivity, working ability and amenities
of his life and will continue to do so in the future.
[15]
Ms Burger has suggested that a higher post morbid contingency
deduction be applied. According to her, this
would cater for unknown
eventualities, especially the fact that his career choices will be
directly linked to the educational level
he obtains. It has to be
borne in mind that due to the accident, he might not be able to
obtain a
Grade 12
certificate.
[16]
Based on information given to him, the actuary, Nilen Kambaran,
calculated the future earnings of the plaintiff
as follows:
Present value of
future earnings
PRE- MORBID
POST-MORBID
LOSS BEFORE
CONTINGENCIES
R6 891 885
R2 305 768
R 4 586 117
[17]
Mr Cillie has set out in detail different scenarios wherein the
different percentages were applied as contingencies
in order to
calculate the loss. The court appreciates this gesture. He however
submitted, as suggested by the plaintiff’s
actuaries, that a
higher contingency deduction be applied. The defendant did not lead
any evidence to controvert the contention
by the plaintiff. I agree
with the calculation by the plaintiff that on the pre-morbid income
less 27% and culminating in a loss
of R5 031 076.05 less the post
morbid future income at 45% ultimately translates to the total loss
of R3 878 192.05. Much as it
is contended that the appropriate
percentage to be applied should range between 50% and 60% on the post
morbid scenario, I hold
that a contingency deduction of 45% would
adequately compensate the plaintiff. I accordingly make this order:
ORDER
1.
The merits were resolved on the basis that the
Defendant shall pay
100%
of the Plaintiff’s proven or agreed damages.
2.
The Defendant shall pay to the Plaintiff the
sum of
R 3 302
143.35(Three million three hundred and two thousand one hundred and
forty three rand and thirty five cents
), being for loss of
future/earning capacity within 180
(one hundred and eighty)
days hereof, in respect of the Plaintiff's claim against the
Defendant. This amount is made up as follows:
FUTURE LOSS OF
EARNINGS AWARDED:
R 3
878 192.05
LESS INTERIM PAYMENT:
R 576
048.70
TOTAL AWARDED:
R
3 302 143.35
3.
In the event of the aforesaid amount not being
paid on 180 days from
date of this order, the Defendant shall be liable for interest on the
amount at the prevailing interest rate,
calculated from the 15th
calendar day after the date of this Order to date of payment in line
with prevailing legislation.
4.
The Defendant shall furnish the Plaintiff
with an Undertaking in
terms of Section 17(4)(a) of Act 56 of 1996 for payment of
100%
of the costs of future accommodation of the
patient in a hospital or nursing home or treatment of or rendering of
a service or
supplying of goods to the patient resulting from a motor
vehicle accident on
9th February 2018
, to compensate the
patient in respect of the said costs after the costs have been
incurred and upon proof thereof.
5.
The Defendant shall pay the Plaintiff’s
taxed or agreed party
and party costs on the High Court scale in respect of both the merits
and quantum, up to and including
29
th
November 2023
, and notwithstanding, and over and above the
costs referred to in paragraph 5.2.1 below, subject thereto that:
5.1
In the event that the costs are not agreed:
5.1.1
The Plaintiff shall serve a Notice of Taxation on the Defendant’s
attorney of record;
5.1.2
The Plaintiff shall allow the Defendant 180
(one hundred and
eighty)
days from date of allocatur to make payment of the taxed
costs; and
5.1.3
Should payment not be effected on 180
(one hundred and eighty)
days from date of allocatur, the Plaintiff will be entitled to
recover interest at the prevailing interest rate on the taxed or
agreed costs from 15
(fifteen)
days from date of allocatur to
date of final payment.
5.2
Such costs shall include, as allowed by the Taxing Master:
5.2.1
The costs incurred in obtaining payment of the amounts mentioned in
paragraphs 2 and 5 above;
5.2.2
The costs of and consequent to the appointment of counsel, including,
but not limited to the following:
for trial, including, but not
limited to counsel’s full fee for
29
th
November
2023
, and the preparation and reasonable attendance fee of
counsel for attending:
5.2.2.1.
The pre-trial conference held on 2 December 2022;
5.2.2.2.
the Interlocutory Application heard on 16 November 2023.
5.2.3
Pursuant to the court order dated 9
th
May 2023, the
further costs of all medico-legal, actuarial and addendum reports
and/or forms obtained, as well as such reports
and/or forms furnished
to the Defendant and/or its attorneys, as well as all reports and/or
forms in their possession and all reports
and/or forms contained in
the Plaintiff’s bundles, including, but not limited to the
following:
5.2.3.1
Ms N du Plessis, Educational Psychologist (Addendum to previous
report);
5.2.3.2
Dr L Bezuidenhout, Industrial Psychologist (Addendum to previous
report);
5.2.3.3
Ms T Burger, Industrial Psychologist;
5.2.3.4
Mr N Kambaran, Actuary (New calculation based on addendum and new
Industrial psychologist report).
5.2.4
The reasonable and taxable preparation, qualifying and reservation
fees, if any, in such amount as
allowed by the Taxing Master, of the
above experts;
6.
The amounts referred to in paragraphs 2 and
5 will be paid to the
Plaintiff’s attorneys, A Wolmarans Incorporated, by direct
transfer into their trust account,
details of which are the
following:
NAME
OF ACCOUNT HOLDER:
A
WOLMARANS INC
NAME
OF BANK & BRANCH:
ABSA
BANK, NORTHCLIFF
ACCOUNT
NUMBER:
4[…]
BRANCH
CODE:
632 005
TYPE
OF ACCOUNT:
CHEQUE
(TRUST)
REFERENCE:
MS
G VAN ROOYEN
/MAT7160
P.E.
MOLITSOANE, J
For
the Plaintiff
Adv.
Cillie
Instructed
by
Wolmarans
Inc.
BLOEMFONTEIN
For
the Defendant
Ms
Booysen
Instructed
by
The
State Attorney
BLOEMFONTEIN