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South Africa: Eastern Cape High Court, Bhisho
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[2022] ZAECBHC 41
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S.J obo S.J v Road Accident Fund (718/2019) [2022] ZAECBHC 41 (11 November 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
FLYNOTES:
LOSS OF INCOME – SLIDING SCALE
Motor
collision – Child – Brain injury – Contingency
for loss of income – Attention deficit and unlikely
to pass
Grade 12 – Sliding scale approved as based on solid
reasoning and experience – 25% contingency.
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– BISHO)
CASE
NO.: 718/2019
Matter heard on: 25
th
October 2022
Judgement
delivered on: 11 November 2022
In
the matter between: -
S[....]1
J[....]
Plaintiff
obo
S[....]2 J[....]
and
ROAD
ACCIDENT
FUND
Defendant
REVISED.
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
JUDGMENT
SMITH
J:
[1]
The plaintiff’s minor child sustained injuries in a motor
vehicle collision
which occurred on 7 May 2016 at Qumza Highway,
Mdantsane. The plaintiff issued summons against the Road Accident
Fund (RAF) on
behalf of the child, and the parties subsequently
agreed to an order in terms of which the RAF must pay to the
plaintiff 100% of
whatever damages she may prove arising from the
accident.
[2]
The parties also agreed on general damages in the sum of R500 000,
and the defendant
has tendered an undertaking as contemplated in
s 17
(4) (a) of the
Road Accident Fund Act, 56 of 1996
, in respect of the
minor child’s future hospital and medical expenses.
[3]
The only issue that remains for determination is the future loss of
income and the
contingency to be applied to it. On 27 October 2022,
the parties filed a further pre-trial minute recording their
agreement that
the court will only be required to determine the
percentage of general contingency that should be applied to Dr Koch’s
quantification
of the future loss of income, which is the sum of
R4 336 169.
[4]
Mr.
Clark
, who
appeared for the plaintiff, relying on
Bailey
v Southern Insurance
1984 (1) SA 98
(See
also; Koch Quantum Yearbook (2022), at page 121), submitted that
there is no reason why the general contingency of 25% should
not be
applied to the minor child’s claim for future loss of earning.
Mr. Gona, who appeared for the RAF, on the other hand,
has submitted
that a contingency of 35 to 45%, pre-morbidly and 15% post-morbidly,
would be fair and reasonable.
[5]
The reports and opinions of the plaintiff’s experts are
undisputed. The orthopaedic
surgeon, Dr Olivier, determined that the
child sustained a head injury in the accident. A scan demonstrated
the presence of a diffuse
axonal injury. Although he was of the
opinion that from an orthopaedic point of view the accident did not
result in long term sequelae,
the diffuse axonal injury did result in
long-term sequelae, namely compromised attention and ability to
concentrate.
[6]
The plastic surgeon, Dr Solomons, found that the scar on the child’s
scalp is
easily visible and cosmetically disfiguring. He was of the
opinion that when applying for a job, prospective employers may
assume
that he had been in a fight.
[7]
The clinical psychologists, Ms Hill, has confirmed that the brain
injury resulted
in secondary attention deficit and that the child
will probably not pass Grade 12.
[8]
The industrial psychologists, Mr Pretorius, has presented two
pre-morbid scenarios
with an equal probability. In the first
scenario, the minor child would have obtained a Grade 12 and in NQF5
qualification and
progressed from Paterson B2 to C2 over the course
of his career. In the second scenario, the child would have obtained
a Grade
12 and an NQF5 qualification and progressed from Paterson B3
to C4 over the course of his career. He was of the opinion that
post-morbidly,
the minor child will not pass Grade 12 and will be
employed in the informal sector at the unskilled level.
[9]
The actuary, Dr Koch, has determined the child’s claim for
future loss of income
in the above mentioned sum, but has left the
determination of contingencies to the court.
[10]
It is trite that the percentage of a contingency discount cannot be
assessed on a calculated
basis. It is largely arbitrary and will
always depend upon the judge’s impression of the case. In
De
Jongh v Gunther and Another
1975 (4) SA 78
(W), at 85F, Nicholas J, as he then was, cautioned that, ‘[I]n
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art of or science
of foretelling the future, so confidently practiced by ancient
prophets or in soothsayers, and by modern authors of a certain type
of almanac, is not numbered among the qualifications for judicial
office’. It should also be borne in mind that not all
contingencies or vicissitudes of life are negative or harmful.
[11]
It has become customary for the court to apply the so-called ‘sliding
scale’ to contingencies,
which entails half a percent for every
year to retirement, namely 25% for a child, 20% for a youth and 10%
in middle age. (
Goodall v President Insurance
Company Limited
1978 (1) SA 389
(W)). The
minor child in this case was born on 19 May 2005.
[12]
Even though it would be wrong to apply the above-mentioned sliding
scale as a matter of course
without any regard to the circumstances
of the case under consideration, it does provide a rational basis on
which the court can
base its assessment of an appropriate
contingency. That standard has developed over a number of years and
is based on solid reasoning
and experience.
[13]
Mr Gona has not been able to advance any reason as to why the court
should deviate from that
contingency, neither could I find any
grounds for applying a higher contingency .
[14]
I am accordingly of the view that a 25% contingency should be applied
to the minor child’s
claim for future loss as determined by Dr
Koch namely, R3 252 126.75 (R4 336 169 x 75%).
[15]
In the result the following order issues:
15.1.
The defendant shall pay the plaintiff the sum of
R3 252 126.75 in respect of the minor child’s loss of
income within
180 calendar days of date of this order;
15.2.
The defendant shall pay the plaintiff the sum of
R500 000 in respect of the minor child’s general damages
within 180
calendar days of date of this order;
15.3.
The defendant shall pay the plaintiff interest on
the above sums at the prevailing prescribed legal rate from 14
calendar days of
date of this order to date of final payment;
15.4.
The defendant shall furnish the plaintiff with an
undertaking as contemplated in
section 17
(4) (a) of the
Road
Accident Fund Act 56 of 1996
for 100% of the costs of the future
accommodation of the minor child in a hospital or nursing home or
treatment of or rendering
of a service to the minor child or
supplying of goods to the minor child arising out of the injuries
sustained by the minor child
in the motor vehicle accident of 7 May
2016 after such costs have been incurred and on proof thereof;
15.5.
The defendant shall pay the plaintiff’s
costs of suit on the High Court tariff, which costs shall include:
15.1.1.
The qualifying expenses, if any, of orthopaedic surgeon Dr P A
Olivier, plastic surgeon Dr D Solomons, clinical psychologist
Ms P
Hill, industrial psychologist Mr Pretorius and actuary Dr R J Koch;
15.1.2.
Counsel’s fees including but not limited to an advice on
evidence,
preparation for trial consultations (one day), preparation
for case management conference, drafting of confirmatory affidavits
(one hour per affidavit), memorandum to the defendant re settlement,
drafting of answering affidavit, drafting of heads of argument,
and
day fees;
15.1.3.
Mr R Berg’s sketch plan and photographs.
15.2.
The defendant shall pay the plaintiff interest on the costs of suit
at the prevailing prescribed legal rate from 14 calendar
days of date
of
allocatur
to date
of final payment.
15.3.
The defendant shall make payment of the above sums into the following
trust bank account of the plaintiff’s attorneys
of record:
NAME
OF ACCOUNT : I C CLARK INC.
BANK
: ABSA BANK
ACCOUNT
NO.
:
[....]
BRANCH
CODE
: 632 005
REF
: J05765
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Plaintiff
:
Mr. Clark
:
I C Clark Inc.
25
St Luke’s Road
Southernwood
EAST
LONDON
(Ref.
Mr Clark/pda/CJ471)
Counsel
for the Defendant :
Mr. Gona
:
State Attorneys
17
Fleet Street
Spoornet
Building
EAST
LONDON
(Ref.:
J[....]. S/Z05/SG/bx)
Link:
4369753