About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 6
|
|
Pohl S.C N.O obo M.R.P and Another v Road Accident Fund (1472/2017) [2022] ZAFSHC 6 (20 January 2022)
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
Case no:
1472/2017
In
the matter between:
LOUIS
LE ROUX POHL S.C N.O obo
First
Plaintiff
M[....]
R[....] P[....]
C[....]
P[....]
Second
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
C L PAGE AJ
HEARD
ON:
20 October 2021.
DELIVERED ON:
20 January 2022
[1]
These are action proceedings instituted against the Road Accident
Fund for damages arising from bodily
injuries sustained by a minor
arising from a motor vehicle accident which occurred on 21 June 2011
within the jurisdiction of this
court.
[2]
The Second Plaintiff, a minor is represented by the First Plaintiff
in his capacity as curator ad litem.
[3]
The findings of all experts as per the expert bundle are admitted by
the Defendant.
[4]
It is common cause that the Second Plaintiff was a 5-year-old boy at
the time of the motor vehicle accident.
He sustained a head injury,
right hip injury and psychological trauma.
[5]
The merits in the matter are admitted by the Defendant and the only
issues for adjudication are the
determination of general damages and
future loss of income in respect of the Second Plaintiff.
General Damages:
[6]
In determining general damages it is trite that the nature, severity
and permanency of the injuries
sustained, as well as the pain and
suffering, disfigurement, permanent disability and the effect of
these factors on the person’s
lifestyle should be regarded.
[7]
Dr van Aswegen, a neurosurgeon, describes the injuries of the Second
Defendant as a mild traumatic injury.
[8]
Dr Oelofse, an orthopaedic surgeon, diagnosed the Second Plaintiff
with “ Final Stage Necrosis
of the right Femur with advanced
hip joint damage secondary to a Salter Harris fracture of the femoral
head”. The condition
is described to be “cellular death
(necrosis) of bone components due to interruption of blood supply”.
The expert
opines that this disease is at an advanced stage. It is
recommended by the expert that a total hip replacement be done when
the
symptoms reach a level where the quality of life is affected. The
condition is described as painful and could lead to arthritis.
The
expert further found that the right leg of the Second Plaintiff was
about ½ cm shorter than the left leg. Dr Oelofse
examined the
Second Plaintiff again in 2018 and confirms the same diagnosis. He
noted that the Second Plaintiff’s right leg
is now noticeably
shorter by 2 cm.
[9]
Counsel has referred to various comparable caselaw in their heads of
argument and oral arguments. I
have considered these cases in my
determination of general damages.
Loss
of Future Earnings:
[10] The
expert evidence by the relevant experts stands uncontested and
includes a final evaluation by Ms E Prinsloo,
a psychologist, that
the Second Plaintiff will only succeed to level 4 in a special school
which would best allow the Plaintiff
to do physical work which he is
quite clearly not able to do in the light of his serious orthopaedic
injuries and the consequences
of his head injury.
[11] The
industrial psychologist, Dr Jacobs opined that the Second Plaintiff
will in all likelihood remain unemployed,
due to the findings by the
experts that a consequence of the head injury is diminished cognitive
ability which will not allow him
to do sedentary work, which is the
only possible work he may have qualified for had he not sustained the
serious orthopaedic injuries.
[12] The
contingency percentage deduction which needs to be deducted from the
Second Plaintiff’s uninjured income
projection stands to be
decided. It is suggested that a 22.5% contingency deduction be
implemented by the Second Plaintiff’s
legal representative.
This is the deduction implemented by the actuarial expert report
which stands uncontested.
[13] In Road
Accident Fund v Guedes 2006(5) SA (SCA) ON P 586 PARA(8), the court
held as follows:
“
It is trite that
a person is entitled to be compensated to the extent that the
person’s patrimony has been diminished in consequence
of
another’ negligence. Such damages include loss of future
earning capacity…The calculation of the quantum of a future
amount, such as loss of earning capacity, is not, as I have already
indicated, a matter of exact mathematical calculation.
By its
nature, such an enquiry is speculative, and a court can therefor only
make an estimate of the present value of the loss
that is a very
rough estimate…The court necessarily exercises a wide
discretion when it assesses the quantum of damages
due to loss of
earning capacity and has a large discretion to award what it
considers right. 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. Even
then, the trial
court has a wide discretion to award what it believes is just..”
[14] Per
Henochsberg J in Gillbanks v Sigourney
1959 (2) SA 11
(N) 14H:
“ …
any
enquiries 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
rough estimate, of the present value of the loss. 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 and 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 on
the soundness of
the assumptions, and these may vary from the
strongly probable to the speculative…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 reward…in
cases
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 actuarial computations may be no more than “
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” as to what is fair and
reasonable is nothing more than a blind guess…Nevertheless, I
do not think
that even in such a case it is wrong in principle to
make an assessment on the basis of actuarial calculations.”
[15] Per
Nicholas JA in Southern Insurance Association LTD v Baily NO
1984 (1)
SA 98
at 113 G-114 E, the following was said:
“
The trial judge
retains nonetheless a large discretion to award under the
circumstances he considers right. He may be guided but
is certainly
not tied down by exorable actuarial calculations.”
[16] Having
evaluated the evidence and having heard arguments from both parties,
I make the following order:
1. Payment by
the Defendant to the Plaintiff in the sum of R 3 293 120.00
which amount is calculated as follows:
1.1
Future Loss of Income: R
2 443 120.00
1.2
General Damages: R
850 000.00
2. Payment of
the total amount under 1. is ordered to be made within 180 days from
the date on which this order is made,
failure of which, the Defendant
will be liable for payment of interest at the prescribed rate
compounded and calculated as from
14 days from the date of this
order.
3. The
Defendant is ordered to pay the party and party costs of the Second
Plaintiff as determined on the High Court
Scale.
4. The
Defendant is ordered to pay, subject to the discretion of the taxing
master, the reasonable and qualifying fees
of the following experts:
4.1
Dr A van Aswegen
4.2
Dr JJ Schutte
4.3
Dr LF Oelofse
4.4
Drs van Dyk and Partners
4.5
Mrs A Jansen
4.6
Mrs R du Plesis
4.7
Mrs E Prinsloo
4.8
Dr EJ Jacobs
4.9
Munro Forensic Actuaries.
5. After
receipt by Plaintiff’s attorneys of the capital amount,payment
of such capital amount minus the taxed
costs as per 3. of this order,
is ordered to be paid by Second Plaintiff’s legal
representatives into the trust known as
“ M[....] R[....]
P[....] Trust” established by means of the court order by
Jordaan J dated 2 July 2020.
6. The
curator ad litem, Advocate Le Roux Pohl SC’s action is ratified
and he is discharged from office.
7. The cost
of the appointment of the curator ad litem as well as the costs of
his report is ordered to be paid by the
Defendant.
Per: C
L PAGE AJ
ON
BEHALF OF SECOND PLAINTIFF:
Counsel:
H
E De La Rey
Instructed
by:
HONEY
ATTORNEYS
HONEY
CHAMBERS
NORTHRIDGE
MALL
KENNETH
KAUNDA ROAD
BLOEMFONTEIN
ON
BEHALF OF DEFENDANT:
State
Attorneys, Bloemfontein
11
th
Floor, Fedsure Building
49
C[....] Mxexe Street