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[2021] ZAGPPHC 246
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L.T.N obo S.N v Road Accident Fund (8935/19) [2021] ZAGPPHC 246 (6 May 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA.
(GAUTENG DIVISION,
PRETORIA)
CASE
NUMBER:8935/19
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
06 MAY 2021
In the matter between:
L
T N[…] OBO S
N[…]
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
TLHAPI J
[1]
The
plaintiff has instituted action on behalf of her minor son who was a
pedestrian at the time and was injured in a motor vehicle
collision
on 6 June 2014. The minor child was […]years and […]
months old at the time and was in Grade R.
The
collision occurred at […] in the KZN Province.
[2]
Counsel for
the plaintiff confirmed that the final notice of set down for trial
on 9 November 2020 had been served on the defendant’s
attorneys
and that commencing
the 30
October 2020 up to 4 November 2020 the plaintiff's attorneys had
engaged with the defendant’s claims handler at
JacobR@raf.co.za
and
Sarahma@raf.co.za
where documents were exchanged in an attempt to settle the matter.
The parties having failed to settle, the plaintiff approached
the
court for a judgement by default and failed an affidavit in that
regard. It was contended that the minor child was at the time
dolus
incapax.
The
defendant had not conceded liability.
[3]
The plaintiff’s claim in the amended particulars of claim was
in the amount
of R12 200 000.00 made up in the following manner: (i)
amount of R200 000.00 for past medical expenses; (ii) a claim for
future
medical expenses to be secured by a section 17(4)(a)
Undertaking, (iii) General Damages for R2 000 000.00 and (iv) a claim
for
loss of earnings /earning capacity in the amount of R10 000
000.00. The minor was treated in a state hospital and there was no
medical aid and no medical expenses incurred. In the initial
particulars of claim general damages was in the amount of R1 000
000.00
and R4 000 000.00 for loss of earnings /earning capacity.
[4]
The minor child, a […] year old was a pedestrian when the
collision
occurred at [...] Hostel, in KwaZulu Natal, between the
said minor and a motor vehicle with registration numbers […]
driven
by one Mzwakhe Mchunu. The defendant tendered no evidence to
dispute the mental capacity of the claimant, the minor child.
[5]
The minor suffered the following injuries:
-
A left distal tibia fracture;
-
Left ankle injury;
-
Mild brain injury;
The minor was assessed by
the following experts:
Drs L F Oelofse and MB
Deacon (orthopaedic surgeons)-
the patient did not undergo surgery
but received conservative treatment,
a
plaster of paris was
applied on his left lower leg,
- Complaints
-experiences pain
when standing and walking for
a
prolonged period,
Diagnosis
-
residual ankle pain- widening
of the distal
metaphysis with cortical remodulation due to previous injury,
treatment conservative with anti-inflammatory drugs
and analgesics
recommended across the patient’s lifespan-
Productivity-the
injury had an impact of his amenities of life and productivity,
however, he will do better following successful treatment- the injury
will not have
a
detrimental effect on the patient’s life
expectancy.”
Dr Okoli (neurosurgeon)-
Hospital records -
GCS 15/15;
Complaints-
bi
frontal headaches-he is moody
he cries
a
lot;
Opinion: “
It has been 5years since the accident. He
sustained
a
head injury which has been evaluated under the
following factor: He had no open wound to the head-he has no
recollection of events
after the accident until he came to his senses
inside an
ambulance on the way to the hospital from the
clinic, the mother saw him at the clinic and described S[…]
drowsy -no CT scan
was done- history
is consistent with
a
mild brain injury-
DR Mureriwa (clinical
psychologists)- Activities of daily living “
Functional
Mobility is disrupted by pain. He cannot participate in sport
as before. Academic activities are affected by cognitive problems
(poor concentration/forgetful and pain, Interpersonal relationships
are affected by irritability. S[…] requires more assistance
with heavy tasks than before
the accident.
Overall
Clinical Impressions:
Alert and cooperative, but easily distracted
... Could perform both the auditory and the visual go-no-go tasks
which suggests
a
normal capacity to inhibit responses and
sustain attention. He appears to have mild abstract thinking
deficits. Appeared anxious,
but there were no signs of depression,
delusions or hallucinations
Summary of
Neuropsychological test: “
The
overall test
result is
a
significant drop from pre-accident average
neurocognitive capacity. Consistent with the
mild brain
injury diagnosed by Dr Okoli, neurosurgeon. Non-brain injury factors
which probably contributed to poor test performance,
persistent
discomfort.
Opinion of diagnosis:
Permanent impairment evaluation:
The clinical features summarised
here place S[…] in Class 2 (15% WPI) . When combined with the
3% WPI calculated by Dr Okoli
for headaches the final WP/ becomes
18%.
Qualification for general
damages:
Even
though
only 18% WPI was
calculated calculated,
my
assessment
is
that S[…]
qualifies
for general damages. Family history suggests that he was of at
least average neuro cognitive capacity prior to the accident.
The reported symptoms of irritability, poor concentration
forgetfulness and distractibility are consistent with
a
history
of traumatic head injury, especially at
a
young
vulnerable age. As
a
result of these symptoms, he is unlikely
to attain his full pre-accident educational, occupational
and
social
potential.
I
defer
to the educational
psychologist.
Dr Laauwen: Educational
Psychologist: (overall prospects pre-accident)
when
considering his pre-accident profile, his socio-background and
his pre- accident IQ an average
‘IQ would have
provided him with sufficient cognitive
potential to
pass grade 12 and possibly have qualified for a degreed study
dispensing on his motivation and the available resources.
(overall
prospects post accident)
On the assessment of his IQ now lay
within the low average range. In 2019 he failed term 3 according to
his mother due to playfulness.
The teacher’s comment of this
term was: he needs to work harder to get better results. The writer
notes that S[…]’s
performance
has been
declining as he progresses to higher grades... Dr Okoli opined that
the history of his injury is consistent with
a
mild head
injury. The writer opines that due consideration must be given to
sleeper effects in children as their brain is still
developing. This
is the situation in which the effects of
a
head
·.
injury
are
not
manifest
initially,
but
only
emerge
so
m
,e
years
later
when
the child’s brain fails to mature
at the expected rate due to the injury. His current complaints
included headaches and inability
to hear properly in his left ear and
experiences pain when standing and walking for
a
prolonged
periods and
when it is cloudy.
The family background
indicated that the father passed grade 10 and was a driving
instructor and the mother grade 12 as a cook /chef.
His half brother
obtained a grade 10 and his uncloses and aunts between grade 11 and
12 two were unemployed ages 32 and 35, one
was a packer and uncle a
security guard.
Ben Moodie and Mark Day
Industrial Psychologists: (no psychometric tests were conducted due
to age of the minor and reliance was
placed on the opinion of the
educational psychologist. Pre-Accident income potential:..
.considering that Dr Laauwen concluded that but for the accident
S[…] would have had potential to complete an (NQF7) the writer
opines that but for the accident after completing Grade 12 level of
education he would have in all probability gone on to pursue
a
degree or similar (NQF7)
studies.
... -
after
completing
a
3 year degree he would have in all probability
engaged in temporary contractual work earning in the region of R3
500.00 to R4 000.00.
After securing permanent employment he would
have entered into
this post earning on par with the
lower Quartile of Paterson level C1/C2 annual guaranteed packages and
he would have progressed
his career ceiling around 40-45 earning on
par with the median Paterson level D1/D2 depending on which degree he
completed and
the applicable salaries as depicted in the April 202
survey by PE Corporate Services.
Post accident income potential:
... a
note is taken of the fact that Dr Oelofse and Dr Deacon
concluded that Siyamthanda’s level of productivity
continues to be adversely affected as
a
result of the injury
sustained to his ankle the writer also notes
that he sustained
a
mild brain injury.....and that his WPI translates to 18% S[…]
would have had potential to complete
a
degree (NQF7) whereas
post-accident even with therapeutic support, he would at best
complete
a
higher certificate (NQF5) in order to factor in the
probable periods of unemployment which he will experience during the
period
an apportionment of 50% should be applied for the periods that
he would have to
work versus that of
a
50%
apportionment for the periods he will be unemployed and looking for
work ..... .on securing permanent employment
he will
probably start of on par with the lower level of Paterson Level A3
annual guaranteed packages…. And will in all likelihood
progress onto reaching his career ceiling at around the age of
40-45….with inflationary increases until he reaches the
retirement age of 65.
[6]
I asked that Dr Laauwen the educational psychologists and Mr Day
the
industrial psychologist be called as witnesses to deal with aspects
of their report stated above and in particular concerning
the career
path of the minor and the postulations pre and post- morbid and
having regard to the sequelae of the accident.
LIABILITY
[7]
The minor child was dolus incapax at the time of the collision and
the
defendant is held liable to compensate such minor child as
represented by the plaintiff a 100% of all proven damages suffered.
GENERAL DAMAGES
[8]
The practice of having regard to previous awards in determining
general
damages, is helpful as a guideline only, since no cases are
similar and such awards cannot be subjected to a mathematical
exactitude;
of importance is to give an award that is reasonable and
fair to both sides having regard to the circumstances. The purpose of
the award is to compensate ‘a
claimant for the pain
suffering discomfort and loss of the amenities of life to which he or
she has been subjected to”,
Van Dyke v Road Accident Fund
2003 (SE8) OD 1 AF. Our courts have never prescribed any methodology
to be followed in considering
the circumstances and in the
determination of an appropriate award, Rabie P J v Road Accident Fund
18422/08 (North Gauteng dated
17 February 2010, Southern Insurance
Limited v Bailey NO 1984(1) 98 (AD) at 119 F-G. In Protea Assurance
Co. Ltd v Lamb
1971 SA 530
at 536 A-B where the following was stated:
“
Comparable cases
when available should rather be used to afford some guidance in a
general way towards assisting the Court in arriving
at an award in
broadly similar cases, regard being had to all the factors which are
considered to be relevant in the assessment
of general damages. At
the same time it may be permissible in an appropriate case to test
any assessment arrived at, upon this
basis by reference to the
general pattern of previous awards, in cases where the injuries and
their sequelae may have been either
more serious or less than those
in the case under consideration.”
[9]
Counsel for the plaintiff made reference to several cases and I also
referred to others.
1.
In Tlou v Road Accident Fund (17225-2011)[2016] ZAGPPHC 31 (25
January
2016)(09 November 2020) C1-C14 R600 000,00 was awarded where
the claimant suffered a ‘head injury with loss of
consciousness,
laceration above her right eye, injury to her right
shoulder and soft tissue to the right knee and ankle.”
2.
In Mkhonta v Road Accident Fund (20703-12)[2018] ZAGPPHC 471(29
March
2018) (09 November 2020) C15-C32 the claimant suffered an
intra-articular of the left wrist, an injury to the cervical
lumbar
spine and left hand, an injury to the left crista aliaca; a minor
concussive head injury. In this matter at paragraph 12
the court
emphasized the importance of assessing the injuries initially
sustained together with the resulting sequelae. A post-
accident
examination conducted by an orthopaedic surgeon, who also ordered a
radiological examination revealed further sequelae
to the accident in
the form of serious long-term impairment loss of body function and
permanent disfigurement. In this matter an
amount of R950 000.00 was
awarded as general damages.
2.
In Mngomezu.lu Zamokwahe Comfort v Road Accident Fund (9 November
2020) (C33-C94) Claimant had compound right tibia fibula
fractures, a closed chest injury with lung contusion, a 30cm
laceration
on the right thigh and a moderate head injury. Having also
examined what the experts said regarding the sequelae R600 000 was
awarded
as general damages.
3.
In Mohapi Jacob v Road Accident Fund 22595/2017 Johannesburg
High Court, 20 February 2010 the claimant was awarded R1 200 000
where he suffered a moderate brain injury; a C7 vertebral fracture;
facial and orthopaedic injuries with a 40% WPI. In this matter
reference was had to Suit MO v Road Accident Fund 2006 (SB4) where
a
12 year old who had suffered a severe axonal brain injury resulting
in intra-cerebral bleeding, cerebral oedema, multiple facial
lacerations, fractures to the right humerus and left ulna and
extensive scarring to the forehead and she was awarded R600 000.
4.
In N P Yimba v Road Accident Fund 44866/2017 dated 19 September
2019
Kubushi J awarded R700 000 where the 39 year old claimant had
suffered a mild to moderate brain injury, with skull fractures,
a
fractured lumbar vertebra and long term neuro- psychological and
cognitive difficulties.
5.
On 3 November 2020 I awarded the plaintiff R1 200 000 in general
damages in the matter of Choles obo Anthony Tayler David v Road
Accident Fund 21245/2018. The minor an 11 year old was in an
unconscious
state when admitted to hospital, underwent neuro surgery
and was in an induced coma in ICU for three weeks. He had suffered
multiple
fractures to the head and face, a degloving occipital
injury, a fractured left patella and tibia. After discharge from
hospital
he had to be referred to a facility for rehabilitation.
6.
In NO Mbele v Road Accident Fund 83985/207 (9 November 2020)
I
awarded R900 000 to a minor who was 1 year old when the accident
occurred and 8 years old on assessment. A CT scan found a fracture
to
the base of the skull without intra cranial bleeding but it caused a
leak from the left ear and, soft tissue injury to the cervical
and
thoracic spine but no significant serious injuries, the sequelae of
the brain trauma revealed significant neuro-cognitive and
psychiatric
impairment.
[10]
Counsel contends that in this matter an appropriate award for general
damages would be in the
amount of R1 100 000.00. While I agree that
an award for general damages, is justified in the circumstances, I am
not in agreement
with the amount proposed. In my view what should be
considered is that the minor’s GCS after the accident was
measured at
15/15; no head injuries were identified at the time and
no CT scan was taken. The X-rays revealed a left distal fibia
fracture
and injury to the left ankle which was conservatively
managed by application of plaster of paris and no surgery was
required. X-rays
on assessment by Drs Oelofse and Deacon established
that there was a residual distal metaphysis of the ankle which can be
managed
by analgesics and anti-inflammatory drugs no future surgery
was suggested.
[11]
What came to light as a result of the mother’s reports was that
the minor was experiencing
headaches. There is opinion that this is a
sequelae of the accident and, according to Dr Mureriwa this would
result in an increase
in the 3% WPI previously determined to an 18%
WPI. An 18% WPI falls far short of the 30% WPI required to identify
the injury suffered
as a serious one in terms of the guidelines.
Without being critical of the certain expert opinion it is my view
that statements
such as the minor ‘’cannot participate in
sports as before or that his interpersonal relationships are affected
by
irritability or that the minor requires more assistance to do
heavy tasks than before do not fit the sequelae of this minor child
in particular. The minor was five years old at the time of the
accident, what type of sport could he previously been participating
in, what heavy tasks would he been engaged in before, would a five
year old have an understanding that his irritability has an
effect on
interpersonal relationships.
[12]
I am of the view that reasonable and fair award for general damages
would be in an amount
of R650 000.00.
LOSS OF EARNINGS/ EARNING
CAPACITY
[13]
The report of the actuaries Munro was compiled on information given
by the claimant’s
attorney and on the report of the Industrial
Psychologist. It is agreed that the Paterson figures relating to
earnings were those
relied upon by the Industrial Psychologist and
may not be applicable to the claimant. The key assumptions rely also
on information
that the claimant failed grade one and it was assumed
that it was as a result of the accident.
[14]
Due to his minority and when the accident took place no past loss of
earnings were suffered.
In as far as his future uninjured loss was
concerned it was assumed that he would attain a grade 12 during 2026
and proceed to
enrol for a 3 year degree commencing 2027. He was then
placed at a lower PatersonC1/C2 salary scale which would progress to
a Paterson
01/02 at age 42.5 and with inflationary rates allowing for
retirement at age 65.
[15]
His future injured earnings assumed that after obtaining
his grade
twelve he would enrol for a 1 year certificate placing him on a
Paterson A3 lower salary scale which would progress to
a Paterson C1
at age 42.5 and with inflation on earning up to age 65.
[16]
Counsel relied on a few cases and illustrated the contingencies
applied In Southern Insurance
Association Ltd v Bailey Ltd v Bailey
1984 (1) SA 98
( A) at :113H-114E. Nicholas JA dealt with the two
possible approaches in assessing loss of earnings, the round
estimation
by a judge which seems to be fair and reasonable which is
based on speculation and on the other hand also speculative
mathematical
calculations. In relation to these two processes and
against the actuarial calculations based on the facts vailed to the
court
and he states:
“
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
at to what is fair and reasonable is
nothing more than a blind
guess.”
At 116 G it was still
emphasized that the court retained a discretion on the circumstances
of the case to award what is appropriate.
What is important is for
the postulations by the actuary to be of assistance to the court. The
practice is like in this case, that
the actuary will be given
instructions by the claimant’s attorneys on what to consider in
calculations and the court relies
on these calculations and on the
evidence as presented in deciding what weight to give to the
contingencies suggested.
[17]
Relying in particular on Bailey
supra
a 20% contingency is
recommended to the claimant’s uninjured future earnings as he
was a minor. In Robert Koch’s quantum
year book who supports a
“sliding scale of½ %per year to retirement i.e 25% for a
child 20% for a youth and 10% in
middle age” which was applied
in Goodall v President Insurance
1978 (1) SA 389
(W). In this
instance the claimant was five years old at the time of the
accident. I do not find any reason, given the circumstances
of this
case whey the sliding scale applicable to a child of 25% as
recommended by Robert Koch should not be applied to the uninjured
future loss of earnings.
[18]
In the heads of argument counsel deals with the calculations on the
loss of earnings as
stated in the actuarial report, the cap not being
applicable; with a 20% contingency applied of the loss of uninjured
earnings
of R11 223 700.00 and a 60% contingency on the injured
earnings. I am of the view that a 25% contingency on the uninjured
earnings
of R11 223 700.00 and; and a 70% contingency on the injured
earnings of R 5 454 100.00, be applied. To the amount is to be added
general damages of R650 000.00. A draft order as appears on case
lines 072-1 is to be completed and filed for signature.
TLHAPI V V
(JUDGE OF THE HIGH COURT)
MATTER HEARD ON:
09 NOVEMBER 2020
JUDGMENT RESRVED
ON:
09 NOVEMBER 2020
ATTORNEYS FOR THE
PLAINTIFF:
GODI ATTORNEYS
ATTORNEYS
FOR THE DEFENDANT:
THE ROAD ACCIDENT FUND