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[2021] ZANCHC 51
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L.O.V.G obo O.G v Road Accident Fund (1999/2016) [2021] ZANCHC 51 (15 October 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 1999/2016
Date
heard: 08-10-2020
Date
delivered: 15-10-2021
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
LOV
G[....]
Plaintiff
obo
O[....] G[....] (The patient)
And
The
Road Accident
Fund
Defendant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
The plaintiff in this matter is Ms LOV
G[....] who is claiming damages on behalf of her minor daughter
O[....] G[....] who was injured
in a motor vehicle accident on 17
January 2014 when she was 9 years old. The merits were previously
conceded in favour of the plaintiff
and the only issues to be
determined in the trial on quantum are claims for future loss of
income and general damages.
2.
The trial on quantum was set down for 6 to
8 October 2020 but only proceeded on 8 October when negotiations
between the plaintiff’s
attorneys and the defendant’s
(the RAF) claims handlers/managers collapsed. When the trial
proceeded there was no appearance
for the RAF, it having terminated
the mandate of their erstwhile attorneys some months prior to the
trial. I allowed the plaintiff’s
experts’ evidence to be
admitted on affidavit and the only
viva
voce
evidence led was that of the
plaintiff herself.
The
Plaintiff
3.
Ms G[....] testified that she and O[....]’s
father separated when she was pregnant with O[....]. She stated that
O[....] was
born normally, was healthy and reached her milestones
normally. Before the accident she was a friendly outgoing child who
interacted
very well with everyone. There were no complaints from
school about O[....] and she loved her schoolwork. O[....] was not
very
good at athletics but participated in netball. At the time of
the accident she was in Grade 4.
4.
O[....] lived with her maternal grandmother
in Taung and attended school in H[....] some 30 kilometres away. She
travelled to and
from school in a mini-bus which transported learners
together with her best friend Neo. The accident happened while
O[....] was
a passenger in the mini-bus.
5.
Ms G[....] testified that when she got to
the hospital after being notified of the accident she was informed by
the doctors that
there was a child who did not know her name. Ms
G[....] identified O[....] whose head was bandaged only by her nose
which was visible.
Ms G[....] was informed that the prognosis for
O[....] was not good and that should she survive she would be
severely brain damaged.
6.
O[....] was transferred from Taung Hospital
to Kimberley Hospital where she was operated on for 3 hours.
According to Ms G[....]
she was in a coma for about 10 days. During
this time she suffered from fits and Ms G[....] asked the hospital
staff to tie her
hands to the bed to prevent her from hurting
herself.
7.
O[....] was discharged from hospital on 6
February 2014. During early March 2014 Ms G[....] noticed water
coming from her nose.
Further tests were performed at the Kimberley
Hospital where it was found that the membrane covering O[....]’s
brain was
torn – a situation which went unnoticed during her
initial hospitalisation.
8.
A further operation was performed on
O[....] on 20 March 2014 where according to Ms G[....] plugs were put
down the front of O[....]s’
face, in the nose area, to stop the
watering. An incision was made across the top of her head to
facilitate the plugging. This
incision went through bone and has
caused an alice band-like scar across O[....]’s head - in
addition to a scar going down
her forehead to the middle of her
eyebrows which was caused in the accident.
9.
O[....] was discharged after the second
operation on 28 March 2014 and returned to school on 31 March 2014.
10.
Ms G[....] testified that after the
accident O[....] struggled to come to terms with the death of her
friend Neo in the same accident.
Neo had been sitting next to O[....]
in the mini-bus and had died on the scene. O[....] had been rendered
unconscious and fortunately
did not witness the gruesome injuries
sustained by Neo.
11.
After returning to school O[....]’s
teachers reported that she was not concentrating in class and would
often be staring into
space. As a result Mr G[....] arranged that
O[....] attend six sessions with a psychologist. O[....] has however
still been battling
to cope with her schoolwork. Her marks have
dropped substantially. She did not pass grade 7 but was progressed to
grade 8. The
same applies to grade 9. At the time of the trial Ms
G[....] was doubtful that she would be able to pass that grade.
12.
At home O[....] displays a similar lack of
concentration. She forgets the instructions given to her. O[....]
also has no friends
outside of the family. The scarring on her head
and face has affected her self-confidence. She does not feel pretty
anymore. She
complains that people ask her a lot of questions about
the scarring and that she does not want to relive what happened. She
suffers
from mood swings – happy one moment and crying the
next.
13.
O[....] has previously indicated to Ms
G[....] that she wanted to become a lawyer but she has now shown an
interest in the agricultural
environment. Ms G[....] herself is
employed by the South African Police Service as Human Resource
Support Head. She obtained a
BA Education degree in 1998, her Honours
in Psychology during 2012 and is currently studying towards a BA in
Police Practice. O[....]’s
father has a diploma in Human
Resources Management and is studying towards his degree in Police
Management. He is also employed
as Human Resource Head at SAPS.
The
experts
14.
The reports of the plaintiff’s
experts, Dr. R L Melvill a neurosurgeon, Ms Letitia Delport on
occupational therapist, Mr Ben
Janecke a neuropsychologist, Dr E
Jacobs an industrial psychologist and Ms Michelle Barnard an actuary
were annexed to the Particulars
of Claim served on the RAF during
2016. Updated reports were received from Mr Janecke, Dr Jacobs and Ms
Barnard during 2020. Dr
Japie Vos, an eye, specialist, also deposed
to an affidavit confirming his report.
15.
Dr Melvill
assessed O[....] on 7 July 2014, 6 months after the
accident. His main conclusions were briefly as follows:
“
O[....]
G[....] sustained a very severe head injury when she was involved in
a motor vehicle accident on 17 January 2014. This resulted
in
significant skull and orbital fracture. The skull fracture was
complicated by the development of a cerebrospinal fluid leak
that
required a second operation. There is evidence that there was
significant frontal lobe injury at the time of the accident
and that
this may have been aggravated by the presence of the delayed
occurrence of local infection that was identified at the
time of the
second operation to correct a cerebrospinal fluid rhinorrhoea. The
patient has therefore sustained significant frontal
lobe injury.
Disfigurement
The
vertical forehead laceration has resulted in significant cosmetic
disfigurement. This should receive the expert attention of
a cosmetic
surgeon in the hope that the scarring can be corrected.
Cerebral
injury
1.
Cognitive and behavioural dysfunction
The
frontal lobe injury in all probability, has resulted in cognitive and
behavioural abnormality that should be assessed by a clinical
psychologist with particular reference to past and present scholastic
achievements.
2.
Schooling
Appropriate
measures to assist with school performance should also be undertaken.
3.
Epilepsy
.
. . There is about 15% chance of developing post traumatic epilepsy
in the long term.
4.
There is a very small risk of recurrence of the cerebral spinal fluid
rhinorrhoea, and intracranial infection.”
16.
Ms Delport
assessed
O[....] during April 2015. The purpose of her report was to evaluate
the impact of the injuries on O[....]’s physical,
psychosocial
and functional abilities, to comment on the necessity of assistive
devices and special equipment and to comment on
loss of amenities and
the impact of the injuries on working abilities.
17.
In short Ms Delport’s assessment
showed that O[....] did not present with any marked impairment
regarding physical function.
She had adequate strength, balance and
joint range. The impairments experienced by O[....] relate mainly to
her cognitive ability
and her school work. She struggled with
subjects such as mathematics. Impairments in concentration were
present in the form of
distractibility and a slow speed of work
performance.
18.
Ms Delport opined that O[....] will
experience challenges in completing her schooling up to grade 12 and
will need special attention,
tutoring and extra classes in order to
cope. Although O[....] was still very young at the time of the
assessment Ms Delport considered
it possible that she would remain
cognitively impaired regarding certain aspects for the remainder of
her life, which would affect
her ability to perform certain work
types within the open market.
19.
Mr Jancecke
has
extensive experience as educational advisor and has headed the
Multi-disciplinary Clinic for Neurologically Disabled Children
at
Martie du Plessis School for Specialized Education for more than 20
years. His first report is dated February 2015, a little
more than a
year after the accident. O[....] was assessed by means of clinical
interviews with her and Ms G[....]. Various tests
were administered
and O[....]s school reports for 2011, 2013 and 2014 were also
available to Mr Janecke.
20.
After the initial assessment Mr Janecke
concluded that O[....] had “
a
severe TBI (traumatic brain injury) and that her difficulties were
unlikely to show any significant improvement. Because she had
frontal
lobe injuries, some of her impairments would only become apparent in
her 20’s. Her demonstrated impairments that
were the result of
frontal brain injuries would have a significant impact on her future
achievement and job opportunities.”
21.
He had found that neuropsychological
testing showed that O[....] was functioning intellectually at a
borderline level. She had
inter alia
the following neurocognitive problems: symptoms of an attention
deficit disorder and a learning disability; her processing speed
at
desk top tasks is at an extremely low level; working memory, verbal
concept formation, logical reasoning, phonemic fluency and
ability to
learn lists of words are at a borderline leverl. Her verbal memory
after interference or delay is at an extremely low
level; she has
symptoms of major depression together with a mild to moderate anxiety
disorder; and she has a moderate to severe
impairment with her
participation in society.
22.
Mr Janecke prepared an addendum to his initial report during
September 2020 relating to
O[....]’s recent scholastic
functioning according to her school reports for grade 9 and 10.
23.
O[....]’s 2019 school report (grade 9) indicated that her
mathematics fell from an
“
adequate”
level to a
“
not achieved level”.
Her achievement levels in
Mathematics generally was far below the average grade level. Her
achievements in Natural Science and Technology
were also far below
the average grade level. Because she did not achieve an adequate
level in Mathematics, she did not pass grade
9 and was progressed to
grade 10. The available school reports for 2020 showed that her
results for Life Sciences and Mathematics
Literacy which was at a
“
not achieved level”
were poor. Mr Janecke was of
the opinion that it was unlikely that O[....] would be able to
progress to a grade 12 level.
24.
Mr Janecke concluded that “
Given her reported pre-accident
functioning and the functioning of her family members, it is probable
that had the accident not
occurred, she would probably have been able
to progress normally in a mainstream school and achieve approximately
the same level
of functioning as her siblings. Because of the
injuries she had sustained, she cannot progress at the same level as
her family
members during her school career and her future job
opportunities would be restricted. She should be referred to an
industrial
psychologist for an opinion regarding her future earning
capacity, job opportunities and loss of income.”
25.
Dr Jacobs
, clinical psychologist, completed his initial report
during June 2016 and submitted an addendum to this report after
receiving
the addendum report of Mr Janecke and further telephonic
information from Ms G[....].
26.
His uninjured career recommendations for O[....] remained the same.
Taking into account
the qualifications of her parents he allowed 3
years of tertiary education after leaving school. Thereafter she
would have earned
on a Patterson B1 scale R162 000, 00 per annum
at age 22, reaching her plateau on a Patterson (C2 (medium package)
of R482 000,
00 per anum at age 50. Her retirement would be at
age 65.
27.
With regard to her injured career path, Dr Jacobs took into account
that O[....] did not
perform well at school since his previous
assessment. He considered it unlikely that she would pass grade 12
and would in all likelihood
only be able to do unskilled work. The
equivalent earnings which Dr Jacobs sourced from Koch’s Annual
Income Tables were
R21 600, 00 (lower), R37 900, 00
(median) and R86 000, 00 (upper) in 2020. Dr Jacobs was of the
view that O[....]
would not earn more than the median on this scale
i.e. R37 900, 00 per annum.
28.
Past loss of income is not applicable since there was no past
pecuniary loss.
29.
Dr Jacobs is of the opinion furthermore that considering O[....]’s
frontal lobe injury,
her behaviour could present problems in a work
environment. According to Dr Jacobs it is well-documented that
workers with mental/behavioural
problems struggle to maintain and
keep jobs. They are often prone to conflict, absenteeism,
insubordination, misconduct, ignoring
procedures and other forms of
unwanted behaviour. He states in his report that although these
problems may not necessarily prevail,
the risks of it cannot be
ignored.
30.
Ms Barnard
, the actuary has prepared an actuarial report based
on the reports of Dr Jacobs. Taking into account suggested
contingencies of
15% pre-morbid earnings and 25% post-morbid earnings
up to age 65 the figures are as follows:
Pre-morbid
income R4 986 488, 00 less 15% contingencies of R747 973,
00 equals R4 238 515, 00;
Post-morbid
income R553 759, 00 less 25% contingencies of R138 437, 00
equals R415 313, 00 The total loss of income
amounts to
R3 823 202
, 00 (pre-morbid income less post-morbid
income).
31.
The contingencies taken into account by Ms Barnard were suggested by
the plaintiff’s
legal representatives and argued before me by
Mr Botha as being fair and reasonable in the circumstances. The 15%
pre-morbid contingency
is the normal percentage applied and the 25%
post-morbid contingency makes provision for the risks pertaining to
O[....]’s
future employment alluded to by Dr Jacobs. I am
satisfied that these contingencies are reasonable.
32.
Dr Vos
assessed O[....] during 2016 after complaints of double
vision. No addendum report was filed and no evidence in this regard
presented
by the plaintiff. I will therefore assume that the double
vision has abated.
General
damages
33.
In her particulars of claim the plaintiff claimed an amount of R1.1
million in general damages.
In support of the claim for general
damages in this amount, Mr Botha referred me to two comparable cases.
34.
Firstly, the matter of
Mofokeng v Road Accident Fund
2015
(7B4) QOD12 (GSJ), where a 23 year old female phone booth operator
sustained a soft-tissue injury of the neck, a lower back
injury and a
moderately severe head injury in a motor vehicle accident. The brain
injury was characterised by an effective disconnection
between the
frontal lobes to a lesser or greater degree. The sequelae of the
injuries included forgetfulness, personality changes,
lumber range of
movement impaired and pain when walking and standing.
Neuro-psychological deficiencies and pain in the lower back
rendered
the plaintiff unemployable. General damages were awarded in the
amount of R700 000, 00, which in 2020 equated to
R940, 000, 00.
35.
Secondly, the matter of
Smit NO v The Road Accident Fund
2006
5QOD B4 251 (TPD) where a 12 year old schoolgirl sustained a
severe diffuse axonal brain injury resulting in intra-cerebral
bleeding and cerebral oedema, multiple facial lacerations, fractures
of the right humerus and left ulna, bilateral ankle fractures,
a
fracture of the pelvis and multiple soft tissue injuries. The young
patient was discharged after a month in hospital. She received
physiotherapy for 2 months. She had extensive scarring of the
forehead, the site of a tracheotomy and on the left wrist. She
suffered
from intellectual impairment and personality changes. She
could not cope with her schoolwork due to a lack of concentration and
obtained bad grades despite the services of a tutor. She suffered
from depression periodically. Future employment was found to
be
limited to sympathetic employment. The plaintiff was awarded
R600 000, 00 in general damages which converted to R1.3 million
in 2020.
36.
Whilst no two matters can be similar and the above cases unlike the
present involve orthopaedic
injuries sustained, they do serve as a
useful guideline.
37.
There can be no doubt that O[....] suffered pain, discomfort,
disability and loss of amenities
of life and as a young girl will
suffer the effects of the accident for a very long time. In addition
to the serious brain injury
which has left O[....] with a lack of
concentration, learning disabilities and a personality change, the
resultant facial scarring
has had an enormous impact on her life in
general. She has lost her self-confidence, has become an introvert
and unsociable, suffers
from bouts of depression and no doubt, as
argued by Mr Botha, the disfigurement would have an impact on her
romantic and marriage
prospects.
38.
In the circumstances of this matter the amount of R1.1 million
claimed for general damages
will in my view be fair and adequate
compensation in this case.
39.
Mr Botha has provided me with written heads of argument and a draft
order in this matter.
There are just a few issues in relation hereto
that I need to deal with.
40.
Firstly the contention is that the plaintiff, Ms G[....], is a
competent well-educated parent
and will be able herself to administer
any funds awarded to O[....]. Ms G[....] testified to this effect as
well, stating that
she has been taking care of O[....] financially
all along and that she will be able to invest and administer any
monies awarded
to her.
I
have no doubt that Ms G[....] is a competent parent. O[....] will
reach the age of majority soon. Should there appear to be any
problem
in the management of the funds awarded, an application can be made
for the appointment of a
curator bonis.
41.
The second issue is that of future medical expenses. The plaintiff
sought a fixed amount
under this heading in her particulars of claim.
The amount had been updated by Ms Barnard in her addendum report. Mr
Botha however
requested that I order that the RAF give an undertaking
in terms of
s17
(4) (a) of the
Road Accident Fund Act 56 of 1996
in
this regard. There can be no prejudice to the RAF if such an order is
made.
42.
The final aspect which needs to be addressed is that of the costs of
the action. Mr Botha
has argued that the RAF be ordered to pay the
costs on the attorney and client scale since it had failed to take
any steps to properly
prepare for trial; it had failed to instruct an
attorney, it had not instructed any experts to advise on quantum; it
had no defence
against plaintiff’s case on quantum; and the
trial on quantum should have been settled before the trial.
43.
It is common cause that the RAF terminated the mandates of their
panel of attorneys during
early 2020. Since then and until recently
it had attempted to settle claims directly with the plaintiffs legal
representatives.
In this Division a judgment monitor of the RAF, Mr A
Rakgwale, assisted in facilitating inter action between the RAF’s
claims
handlers and the plaintiffs in RAF matters, which he has also
done in this matter. As I understand from Mr Botha settlement
negotiations
between the parties took place over the first two days
that this matter was on the roll. The RAF, I am informed did make an
offer
which was not acceptable to the plaintiff, hence the ensuing
trial on quantum.
I
cannot in these circumstances find that the RAF’s conduct was
malicious, vexations or blameworthy to the extent that a punitive
cost order be imposed.
The
following order is made:
1.
The defendant shall pay to the
plaintiff the sum or R4 923 202, 00 (four million nine
hundred and twenty three thousand
two hundred and two Rand) as
damages awarded to the plaintiff on behalf of the patient O[....]
G[....].
2.
In the event of default on the above
payment, interest shall accrue on such outstanding amount at the
current prescribed statutory
rate, calculated from the due date in
accordance with the
Road Accident Fund Act 56 of 1996
until date of
payment.
3.
The defendant shall pay plaintiff’s
taxed or agreed costs on the High Court scale, which costs are to
include:
3.1
The reasonable qualifying fees and the reservation fees of 6 October
2020 of the following experts;
Dr
E Jacobs
Dr
Roger L Melvill
Ben
Janecke
Letitia
Delport
Michelle
Barnard
3.2
The reasonable qualifying fees of Dr J Vos;
3.3
The reasonable travelling costs of the plaintiff and the patient from
H[....] to Cape Town and Bloemfontein
and back to consult with the
plaintiff’s experts, in the discretion of the Taxing Master.
3.4
The costs of plaintiff’s counsel for 6, 7 and 8 October 2020.
4.
The plaintiff shall in the event
that costs are not agreed serve the Notice of Taxation alternatively
the Notice contemplated in
Rule 70
(3B) of the Rules, whichever is
applicable, on defendant.
5.
The plaintiff shall allow the
defendant 14 (fourteen) court days in which to make payment of the
taxed costs.
5.1
In the event of default on the above payment, interest shall accrue
on such outstanding amount at the prescribed
statutory rate
calculated from due date until the date of payment.
6.
The defendant shall supply the
plaintiff with an undertaking in terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
for the costs of the future
accommodation of the patient in a hospital or nursing home or
treatment of or rendering of a service
to her or supplying of goods
to her arising out of the injuries sustained by her in the motor
vehicle accident after such costs
have been incurred and upon proof
thereof.
7.
The defendant shall pay the amounts
mentioned in this order into the trust account of the plaintiff’s
attorney, the details
thereof to be supplied to the defendant in
writing.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv. C Botha
Elliot
Maris Wilmans & Hay
For
Respondent: No appearance