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[2021] ZAGPPHC 424
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Sayed N.O v Road Accident Fund (39463/2019) [2021] ZAGPPHC 424 (28 June 2021)
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
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHERS
JUDGES: YES/
NO
(3)
REVISED
Case
No:
39463/2019
In
the matter between:
ADV.SAYED
N.O
(CURATOR AD LITEM NP K[....])
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
TSATSI
AJ
INTRODUCTION
1.
This application has
been heard in a virtual hearing via Microsoft Teams.
2.
The Plaintiff,
20-year-old adult female, NP K[....] (“the Plaintiff”),
instituted a claim for loss of earnings against
the Road Accident
Fund.
3.
The Plaintiff was born
on 6 November 2001 and was involved in accident on 19 August 2016.
She was 15 Years old at the time of accident.
The Plaintiff was a
passenger at the time of the accident.
4.
The Plaintiff is
represented by Adv. Sayed (“the curator ad litem”) who
was appointed as curator ad litem by way of
a Court dated 2 December
2020.
5.
Both the issue of
merits and quantum remain in dispute.
BACKGROUND
6.
According to the
curator ad litem’s report, the motor vehicle accident
occurred on 19 August 2016 at approximately 16h30,
on the N11 between
Ermelo and Hendrina, Mpumalanga. A motor vehicle collision took
place involving a motor vehicle
with registration letters and
numbers [………. ] driven by T. Cornelius and motor
vehicle with registration letters
and numbers [….] driven by
E.G. Sibeko in which the Plaintiff was a passenger at the time of the
accident.
7.
In its plea the
Defendant denies liability about merits and quantum. The Defendant
even puts the Plaintiff’s locus standi
in her representative
capacity into question.
8.
The Defendant was not
represented. The Defendant filed a plea. However, if the Defendant
wanted to oppose this matter and put its
version before Court it
should have done so but failed.
SUBMISSIONS
ON BEHALF OF THE PLAINTIFF
9.
As a result of the
accident the Plaintiff suffered the following injuries(but not
limited to):
9.1 Severe head injury with GCS of 5/15.
9.2
Structure of the right clavicle necessitating osteotomy and
ORIF.
9.3 Large laceration to head necessitating sutures and
drainage and
9.4 Various contusions and lacerations with
resultant scarring.
10.
Various experts
compiled experts reports. In summary the Plaintiff suffering from
neuro cognitive, neuro behavioral and neuro psychiatric
difficulties. In addition, the Plaintiff is suffering from symptoms
of post-traumatic stress disorder, functional symptoms of a
depressive disorder and mild neuro cognitive disorder due to
traumatic brain injury with behavioral symptoms.
11.
The Plaintiff has
scarring over her right forehead and into her right frontal and
parietal scalp. There is a large 15cm scar that
is visible and very
unsightly. The Plaintiff has also a 15cm X 5 Cm scar on her right
arm. She has a 6.5 cm surgical scar on her
right clavicle.
12.
The Plaintiff has
multiple abrasions and lacerations on both knees. She was pregnant at
the time of the motor vehicle collision
and suffered loss of the
foetus.
13.
Counsel for the
Plaintiff submitted that the scars on the Plaintiff’s face will
affect herself image and confidence. It will
give a bad impression
about her as if she was involved in criminal activities.
14.
The Plaintiff was
pregnant at the time of the motor vehicle accident, and she was 15
years at the time. The Plaintiff’s injuries
resulted in loss of
a foetus. It was submitted on behalf of the Plaintiff that a
claim for loss of a foetus will not be pursued.
15.
It was further
submitted on behalf of the Plaintiff that she struggles to control
her emotions and that she has behaviour difficulties.
16.
The
curator ad litem submitted that the Plaintiff
is
said to be playing truant and not attending school regularly.
The curator ad litem further submitted that the Plaintiff
is
sometimes not staying at home with her mother and disappear for some
time her mother not knowing the Plaintiff’s whereabouts.
This
kind of behaviour by the Plaintiff cause tension between the
Plaintiff and her mother and the two are struggling with relationship
post- accident.
17.
It was submitted that the Plaintiff’s
behavioural change including the tendency of disappearing may be
attributed to the injuries
that she suffered during the motor vehicle
collision. The Plaintiff had taken to drinking and smoking
cigarette.
ISSUES
18.
The issue in dispute is
both merits and quantum and whether the Plaintiff is entitled to loss
of earnings in her representative
capacity.
19.
The issue of general
damages is postponed
sine
die
as the
Defendant is not yet satisfied that the matter is serious.
THE
LAW
20.
In
terms of
section
17
of
the
Road
Accident Fund Act 56 of 1996
the
Defendant is obliged to compensate any person for any loss or damage
which the third party has suffered as a result of any bodily
injury
to himself or herself or the death of or any bodily injury to any
other person, caused by or arising from the driving of
a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle. The RAF Act does not therefore
preclude the Plaintiff from bringing
a claim for loss of
earnings.
21.
The
issue of diminished earning capacity is trite.
The
mere fact of physical disability does not necessarily reduce the
estate or patrimony of the person injured. Put differently,
it does
not follow from proof of a physical injury which impaired the ability
to earn an income that there was in fact a diminution
in earning
capacity
[1]
.
22.
The
principles for an assessment of loss of earnings or earning capacity
were set forth by the then Appellate Division in
Southern
Insurance Association Ltd v Bailey
1984
(1) SA 98
(A):
"
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….”
23.
Contingencies
must be determined by the presiding officer. The parties’ views
play a role in the determination of contingencies.
Those views
however, are not binding. Contingencies are arbitrary and highly
subjective. It is for this reason that a trial court
has a wide
discretion when it comes to determining contingencies
[2]
.
24.
In
a recent judgment of the Supreme Court of Appeal
[3]
, Willis,
JA referred to the normal range of contingencies in respect of future
loss of earnings as between 15 and 20%.
25.
In
M
v Road Accident Fund
(14250/2016) [2020] ZAGPPHC 96 (17 April 2020),
in
2019 a 28 year old woman who suffered
blunt
abdominal trauma; forehead lacerations; and pelvic fracture was
awarded an amount of R486 948.00 for past loss
of earnings and
R6667 532.00 for future loss of earnings.
In
this case the Plaintiff was a passenger and lost a 28 week foetus as
a result of the collision
.
At the time of the accident the Plaintiff was 23 years old.
26.
In
Mohapi v
Road Accident Fund
(2017/22595) [2020] ZAGPJHC
40 (10 February 2020), a 44 year old Plaintiff, f
ollowing
the accident, he sustained a moderate traumatic brain injury and a C7
vertebral fracture, as well as facial injuries, lacerations
to the
forehead, dislocated knee and a fracture of the right acromion (right
shoulder). His orthopaedic injuries are rated at 40%
Whole Person
Impairment (WPI), thus entitling him to a claim for general damages.
The Plaintiff
was
awarded an
amount of R1.6 million for future loss of earnings.
27.
The
Plaintiff a 39 years old woman was involved in a motor vehicle
accident that occurred on 8 July 2016. She was 36 years old at
the
time of the accident and a passenger in the insured motor
vehicle. The plaintiff's neurologist diagnosed a brain injury
of
moderate severity whilst the defendant's neurosurgeon opined that
such injury was of a mild nature. The Plaintiff was awarded
an amount
of R570 506 (Five Hundred and Seventy Thousand Five Hundred and Six
Rand) for loss of earnings ( see;
Yimba
v Road Accident Fund
(44866/2017) [2019] ZAGPPHC
485 (19 September 2019).
28.
In
Berry
NO obo P v Road Accident Fund
(1189/2014)
[2018] ZAFSHC 117
(5 July 2018),
a
claim was instituted by a mother on behalf of her minor son as long
ago as 2014. She was run over by a motor vehicle whilst
eight
months pregnant. She was found to have suffered from
an abruptio
placenta
and an emergency Caesarian section was done. The foetus suffered from
fetal distress and the child was later diagnosed
with cerebral
hypoxia and epilepsy. The live dispute was the percentage of
contingencies to be applied to the claim for loss of
income.
29.
In
Berry NO
obo P v Road Accident Fund(supra)
the
Defendant
was ordered to pay to the Plaintiff the amount of R784 257.00
(Seven hundred and eighty four thousand two hundred
and fifty seven
Rand) together with interest at the prevailing rate from a date 14
(fourteen) days after judgment to date of final
payment.
30.
In
M v Road
Accident
(12601/2017)
[2018] ZAGPJHC 438 (18 June 2018), the Plaintiff, aged 27 at the time
of the motor vehicle accident, his bodily
injuries were
described as follows: As a result of the aforesaid collision,
Plaintiff sustained severe bodily injuries consisting
of:
Severe head injuries characterized by: a period of loss of
consciousness; a period of post-traumatic amnesia; resultant
brain damage; resultant neuro-cognitive deficits involving:
Impaired memory and concentration; poor mental; persistent
dilapidating
headaches. Neurobehavioral deficits, involving: A change
of personality; aggressive behaviour; short temperedness;
Irritability,
multiple lacerations and abrasions.
The
Plaintiff was employed as a stock clerk at Lewis Stores (Bears) at
the time of the accident. He was earning a gross salary of
R4 102.04
per month. The Plaintiff would most probably have continued
working until the retirement age of 60/65 years,
depending on the
employer’s retirement age policy.” He was temporarily
totally disabled at the time of hospitalization.
31.
The
Plaintiff was awarded the sum of R2 129 817, 00 (two
million one hundred twenty nine thousand, eight hundred and seventeen
rand) in respect of loss of earnings and earning capacity.
32.
In
N
C OBO N Z v Road Accident Fund
(26302/15) [2018] ZAGPJHC 63 (4 April 2018)
t
he
Plaintiff in her capacity as a mother and guardian of a minor child,
who was aged 13 years at the time of the motor vehicle accident,
sustained a laceration of her tongue and a serious head injury with
neurological, neurophysical and neuropsychological fallout. Judgment
was granted in favour of the Plaintiff in the amount of R708 249.00
in respect of future loss of income.
33.
In
Mokwena
v Road Accident Fund
(75931/2017) [2020] ZAGPPHC 320 (3 July 2020), the Plaintiff was 37
years old at the time of the motor vehicle accident.
The Plaintiff suffered the
following injuries: a right compound humerus fracture above the
elbow. An open reduction and internal
fixation surgical operation was
performed on the 28
th
of
February 2017. A left closed fibula fracture. An open reduction and
internal fixation surgical operation was performed
on the 28th of
February 2017. A head injury. His GCS was 13/15 and this deteriorated
to 8/15. He was intubated in casualties because
of the low-level GCS.
A CT scan was taken and an angiogram done. Soft tissue neck injury:
The Plaintiff was placed in a Philadelphia
neck collar. The Plaintiff
was awarded an amount of R996. 731 for
future
loss of income.
34.
In casu,
there is no verified specialist radiology report to confirm the
alleged “severe brain damage” allegedly suffered
by the
Plaintiff. The specialist radiology report is the report that
would have been the one confirming the clinical
diagnosis of
the alleged “severe brain damage” allegedly
suffered by the Plaintiff. This report is supposed
to contain
the Plaintiff’s brain images showing the alleged brain damage.
APPLICATION
OF THE LAW TO THE FACTS
35.
In order to have
regard to the Plaintiff’s loss of income,
the
Court must have regard to her status in life, to what she has been
used to in the past and the comforts, conveniences and advantages
to
which she has been accustomed to (see
Wigham
v British Traders Insurance Co
Ltd
1963 (3) SA 151).
36.
There
is no pass loss of earning or earning capacity due to the age
of the Plaintiff. It was not submitted that the Plaintiff
was granted
a bursary prior to the accident. There is no guarantee that the
Plaintiff would have been granted a bursary after the
accident.
37.
The
educational psychologist Dr Seabi, stated on paragraph 5.8.2 of the
report that the Plaintiff only returned to school the following
year and was promoted to grade 10 based on her “excellent
performance”. This is indicative of the fact that the Plaintiff
has a potential to improve her school performance.
38.
Dr
Seabi also indicated that although the Plaintiff did not do well in
the first term in grade 12, she passed grade 12 with an endorsement
for admission to study Bachelor’s degree.
39.
There
is no indication of the name, qualifications and experience of the
specialist diagnostic radiologist who performed the CT-
scan. The
dates when the CT- scan was performed are not indicated on the
radiology reports. It Is not clear when the first and
subsequent CT-
scan were performed. The diagnostic radiologist’s report is not
included on the
curator
ad
litem
’s
report neither is there any affidavit by the diagnostic radiologist’s
report confirming the contents of the CT- scan
report.
40.
I
am of the considered view that it is difficult to consider the
alleged severe brain damage and link same to the motor vehicle
accident without the verified report of a qualified diagnostic
radiologist. I am of the view that the verified report of the
qualified
diagnostic radiologist and or an affidavit by a qualified
diagnostic radiologist confirming the contents of the radiology
report,
confirming the clinical findings, would have assisted the
Court in this regard.
41.
The
verified report of a specialist radiologist would have been
compiled from images verifying the alleged “severe brain
damage”. The name of the specialist diagnostic radiologist is
not contained in the draft order which may be an indication
that such report was not considered.
42.
The
reports of the following specialists contained in the Court papers
were considered: Dr P. Engelbrecht, the orthopaedic surgeon;
Dr TP
Moja, Neurosurgeon; Dr I Jonker, Neuropsychologist; Dr J A Smuts,
Neurologist; Dr M Naidoo, Psychiatrist; Dr J Seabi, Educational
Psychologist; Dr JPM Pienaar, Plastic Surgeon; Dr C Weitz,
Ophthalmologist; Dr Burgin, Gynaecologist; Mr Sissison, Clinical
Psychologist; Dr GM Fredericks, Disability and Impairment Assessor; N
September, Occupational Therapist; B Maritz, Industrial Psychologist
and G Jacobson, Actuary.
43.
In
Road Accident Fund matters an individual who has allegedly sustained
a brain injury and, having been examined by medical specialists
who
are of the opinion she/he is unable to manage his/her affairs may be
represented by a
curator
bonis
preceded by a curator ad litem. In
casu
,
it has been submitted that the Plaintiff has allegedly suffered a
“severe brain injury”, and therefore would need
a
curator
ad litem
to represent her.
44.
The Plaintiff’s
level of education including injuries as indicated, means that she
may not be able to obtain the
highest paying stable
employment. She may only qualify for certain types of
work with concomitant prejudice of
a lower salary and the possibility
of more frequent periods of unemployment.
45.
I am of the view
that the Plaintiff being unemployable does not mean that
she would not obtain employment at all,
but merely that the
employment that she might obtain might be for temporary periods and
on a low remuneration scales, than expected.
46.
It
is trite that contingency deductions are within the discretion of the
Court and depends upon the judge’s impression of
the case.
Having read the papers filed of record, having considered case law
and submissions made by the Plaintiff’s
Counsel and the
curator
ad litem
I am of the considered view that the below order is reasonable.
47.
I
accordingly mark the draft order "X" and it is made an
order of
Court.
E.K TSATSI
ACTING JUDGE OF THE
HIGH COURT
For
the Plaintiff:
Adv
C.M. Dredge
Instructed
by:
Ehlers
Attorneys
For
the Defendant
:
No appearance
Date
of Hearing:
7 June 2021
Date
of Judgment:
28 June 2021
This
judgment was handed down electronically by circulation to the
parties’ representatives via email and by uploading on
case
line
1)
Union & National
Insurance Co Ltd v Coetzee 1970(1) SA 295 (A) at 300A.
2)
RAF
v Kerridge (1024/2017)
[2018]
ZASCA 151
(01
November 2018) at 42.
3)
NK
v MEC for Health, Gauteng
2018
(4) SA 454
(SCA)
at par [16].