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[2020] ZAGPPHC 101
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L.T obo L.T v Road Accident Fund (2018/4415) [2020] ZAGPPHC 101 (20 February 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2018/4415
In
the matter between:
L[…]
T[…] obo L[…]
T[…]
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
MOKOSEJ
[1]
The plaintiff, in her capacity as the mother and natural guardian of
a boy who was
born on 13 September 2006 ( the minor child")
instituted an action against the defendant, a juristic persona in
terms of the
provisions of Act 56 of 1996 ("the Act")
pursuant to a motor vehicle accident between a motor vehicle bearing
registration
number NP176996 and the minor child on 20 March 2017,
the result of which the minor child was injured.
[2]
It is alleged in the particulars of claim that the accident was
caused by the sole
negligence of the insured driver, the result of
which the minor child sustained a laceration on the back of the head,
bruises on
the lower back and a blunt chest injury. A claim was
instituted against the defendant for past and future medical
expenses, general
damages and future loss of earnings and earning
capacity. The issue of merits was settled 100% In favour of the
plaintiff.
[3]
The issues relating to the quantum of damages w s narrowed as a
result of an agreement
which was reached between the parties prior to
commencement of the trial. In particular, the parties agreed that the
defendant
would provide the plaintiff with a certificate in terms of
Section 17(4)(a) of the Act in respect of Mure medical expenses.
[4]
The Issue this court Is called upon to
determine Is that of general damages and future loss of earnings or
earning capacity.
[5]
The defendant conceded that It has no
evidence, information or expert reports to rebut the factual
allegations and opinions contained
in the expert notices relied upon
by the plaintiff. It is also notable from the pre-trial minute that
the defendant had undertaken
to revert to the plaintiff in that
respect. Accordingly, counsel for the plaintiff was of the view that
the matter should proceed
as a stated case, which was disputed by
counsel for the defendant.
[6]
The
role of a judge is more than to accept a matter as a stated case
where no expert reports have been submitted by the defendant.
A trial
court must have before it, a stated case in which both facts and
issues are crisply and clearly set out in order for proceedings
to be
truly curtailed. Absent a clearly drafted and articulated stated
case, the very purpose of Rule 33 would be defeated.
[1]
[7]
No statement as intended by Rule 33 was
presented to the court by the plaintiff. Counsel for the plaintiff
merely suggested that
the matter should proceed as a stated case.
Counsel for the defendant was however of the view that the matter
could not proceed
as a stated case even where the defendant had no
evidence to rebut that of the plaintiff.
[8]
It is evident from the pre-trial minute
dated 30 September 2019 which I note is unsigned by the legal
representative of the defendant,
that admissions and agreements were
concluded by the parties. In view of the absence of expert reports
for the defendant and a
clearly drafted and articulated case, I come
to the conclusion that this matter could not be heard as a stated
case.
[9]
It is trite that an expert witness le
employed to assist the court in deciding issues In which the court
does not have the ordinary
and requisite expertise. Furthermore, the
opinion of an expert witness must be well grounded and reasoned. The
determination of
the probable value and weight of an expert witness's
evidence is not always about credibility; and that judicial officers
should
be careful not to allow the opinion of an expert witness to
take the place of their own finding of fact.
De
Jongh CJ obo De Jongh KC
[2]
[10]
Davis J in the matter of
Schneider
NO and Others v AA and Another
[3]
said:
"In
short, an expert comes to court to give the court the benefit of his
or
her
expertise. Agreed, an expert is called by
a
particular party, presumably because
the conclusion of the
expert
using
his or her expertise, is in favour of
the
line of argument
of
the particular party. But that does
not absolve the expert from providing the court with
as
objective and
unbiased
an opinion, based on his or her
expertise, as possible. An expert is not a hired gun
who
dispenses his or her expertise for
the purposes of
a
particular
case.
An
expert does not
assume
the
role
of
an advocate, nor gives evidence which goes beyond the logic which is
dictated by the scientific knowledge which that expert claims
to
possess.•
[11]
Theron
JA in the matter of
McDonald
v Young
[4]
put
beyond doubt by saying:
"It
is settled that uncontradicted
evidence
is not necessarily acceptable or
sufficient to discharge an onus.
”
[12]
According to the hospital records the
injuries sustained by the minor child are a laceration on the
posterior central parietal area,
right pneumothorax, superficial
abrasions on L3 to L5 and mild abrasions on the lower limbs. The
hospital records do not state
loss of consciousness and also note his
GCS was 15/15 on admission to the hospital.
[13]
According to the mother's report, post
concussion symptoms experienced by the child are mild light
sensitivity, headaches, poor
concentration, irritability and fatigue.
She also reported deteriorating scholastic performance and low
endurance asthma which
he did not have prior to the accident. This
resulted in functional mobility being impaired by chest pains. His
personal relationships
were also impaired by his irritability and
aggression.
[14]
According to the report of the
orthopaedic surgeon, Dr Oelofse, the injuries sustained by the minor
child not result in a 30% Whole
Person Impairment {WPI). The injuries
were listed as non-serious injuries in the AMA guidelines. He
deferred to the neurologist,
educational psychologist and clinical
psychologist pertaining to whether the minor child would qualify for
the narrative test.
[15]
Dr Okoli, the neurosurgeon was of the
view that the minor child had a WPI of 18%, Dr Okoli reports that the
minor child told him
that he had no direct recollection of the
impact. He merely found himself in an ambulance with his mother. Dr
Okoli noted in his
report that the minor child had walked to the
ambulance. His mother confirmed that the child was confused and
failed to recognise
her. He came to his senses whilst in the
ambulance. The child was admitted to hospital for 6 days where a
chest drain was inserted.
Dr Okoli also notes that there were no
difficulties with the child's memory and that his attention span was
normal, having been
sustained throughout the Interview. Dr Okoll's
opinion was that the child had sustained a soft tissue injury with a
laceration
to the parietal area of the head which had been sutured in
hospital. The injuries were consistent with a mild brain injury.
[16]
Dr Mureriwa, the clinical psychologist
concurred with Or Okoli's calculation of the WPI however, he was of
the view that the minor
child qualifies for general damages having
considered the persistent pain and discomfort which is a source of
serious and long
term psychological distress that he will continue to
experience, Dr Mureriwa stated in his report that from the mother's
narration,.the
child was unconscious after the accident. Dr
Mureriwa's findings were that the child was alert and co..operative
during the assessment
but easily distracted, fidgety and restless
with mild anxiety. He opined that the child was at risk for conduct
problems.
[17]
Mr Masindi Nethavhanl the educational
psychologist, noted that the minor child had been promoted from Grade
5 to Grade 6 in 2017,
that being the year he had had the accident. He
was also promoted in 2018. In 2019 he failed term 1 and 2, indicating
a declining
scholastic performance. No reports for Grades R to 4 were
available to enable him to determine the child's scholastic progress
prior to the motor vehicle accident.
[18]
Mr Nethavhani found that the minor child
was 3 years behind his peers with reading, 2 years behind his peers
in spelling and 4 years
behind his chronological age in arithmetic.
His cognitive performance was within the low average range and his
scholastic performance
inadequate suggesting challenges with short
term auditory verbal memory. He opined that the minor child was
likely to experience
difficulties recalling orally presented
information in a learning situation.
[19]
Mr Ben Moodie, the Industrial
psychologist in determining the minor child's pre- accident
income took into consideration his
age, his family's educational
qualifications and occupations and the findings of Mr Nethavhani
regarding his pre-accident educational
potential. The minor child was
the last of three siblings.
[20]
His father had completed Grade 11 level
of education and owned taxis and worked as a taxi owner/driver. His
mother had completed
Grade 12 level of education as well as a diploma
in nursing. She was currently employed as a registered nurse at
Margate Hospital.
His brother Luyanda who was 27 years old had
completed Grade 12 level of education and was unemployed. His brother
Mthunzi who
was 21 years old had completed Grade 11 level of
education and was currently employed as a taxi driver and was
employed by his
father.
[21]
Mr Moodie postulated that taking into
account the level of education of the minor child's parents and
siblings, he would at least
have obtained a Grade 12 level of
education. However, he concluded further that his mother would have
encouraged him to pursue
tertiary studies taking into consideration
the fact that she herself had completed a nursing diploma. He
concludes that based on
the findings of the educational psychologist,
the minor child would have in all likelihood pursued a diploma (NQF6)
studies or
a degree (NQF7).
[22]
Counsel for the plaintiff was of the view that the minor child would
have completed a degree,
but for the accident. This view is based
upon the opinion of the educational psychologist that it is widely
accepted that children
achieve better qualifications than their
parents. Counsel for the defendant on the other hand, disagreed but
had no reports to
contradict the evidence of the plaintiff.
[23]
The general approach to assessing loss of earnings was stated in the
matter of
Southern
Insurance Association
Ltd
v
Bailey NO
[5]
where
the court acknowledged that 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. The court can only
make an estimate
which is often a very rough one of the present value of the loss.
[24]
Matters which cannot otherwise be provided for or cannot be
calculated exactly, but which may impact
upon the damages claimed are
contingencies and are usually provided for by deducting a stated
percentage of the amount or specific
claims.
[6]
A trial judge, in assessing compensation has a large discretion to
award what he considers just and equitable. He may be guided
by but
not tied down by inexorable actuarial calculations.
[7]
[25] A
career path was postulated by the industrial psychologist based upon
the information furnished,
but for the accident.. The actuarial
report prepared by Munro Forensic Actuaries provided two scenarios,
which calculation was
based on the industrial psychologist's report
dated 7 October 2019. The first scenario is where the minor child
obtains a diploma
or NQF6 qualification and the second Is where the
minor child obtains a degree or NQF7 qualification. No contingencies
were applied
to the figures.
[26]
I am inclined to disagree with the counsel for the plaintiff that the
minor child would have
completed a degree, but for the accident. The
reason Is that there Is no evidence of the child's performance from
Grade R to Grade
4, the plaintiff having been unable to obtain
duplicate copies of the child's reports. It appears
that the Industrial
psychologist has based his finding on
the fact that it is widely accepted from studies that children
achieve better than
their parents without taking into account
the fact that no evidence has been furnished about the
child's performance
in his early years of school.
[27]
Having heard submissions by both counsel for the plaintiff and
counsel for the defendant on the
issue of contingencies, I am of the
view that a pre morbid contingency of 35% and a post morbid
contingency of 50% are to be applied
and are fair and reasonable in
the circumstances.
General
Damages
[28]
The plaintiff claims the sum of R850 000
in respect of general damages. Counsel for the defendant was of the
view that the amount
claimed was excessive and that an appropriate
amount in view of the injuries and the pain and suffering experienced
by the plaintiff
is the sum of R400 000.
[29]
The
purpose for the award of general damages is to compensate a claimant
for pain, suffering, discomfort and loss of amenities of
life to
which he has been subjected as a result of the particular injuries
that were sustained. Awards in previous cases can only
offer a broad
and general guideline as there are no scales upon which the court may
weigh pain and suffering and loss of amenities
of life. The broadest
general consideration and the figure arrived at will necessarily be
uncertain depending on the judge's view
on what is fair In all the
circumstances of the case.
[8]
[30]
A just and fair award must be made by
the court. The evidence on hand suggests that the minor child
suffered a mild head injury.
Dr Oelofse, the orthopaedic surgeon
found that no abnormalities could be detected on the thoracic spine
and that movements were
normal despite the minor child complaining of
pain in the thoracic spine, lumbar spine, abdomen, right hip, pelvis
and lower legs
which pain continued after the accident but dissipated
over time. Furthermore, Dr Oelofse suggests that if the discs
adjacent to
the fracture develop spondylosis as reported by the
radiologists as a 'slight anterior wedging of mid dorsal segment
probably T6
and TT', the minor child will develop symptoms and
radiological changes of degeneration of the adjacent levels. If he
does not
respond to conservative treatment, then he will have to
undergo surgery for a thoracic fusion.
[31]
Taking the above Into consideration and
taking past awards Into account, I am of the view that the sum of
R550 000 would be a Just
and reasonable ward in the circumstances.
[32]
In the premises, the following order Is granted:
(i)
the defendant shall pay the sum of R4
458 535,00 in respect of general damages and loss of earning capacity
within 30 days of date
hereof;
(ii)
interest shaU be charges on the amount
at the prescribed rate of interest per annum calculated 30 days of
judgment to the date of
payment;
(iii)
The above amount shall be paid into the
attorney's trust account, the details of which are as follows:
Name
of Bank
Account
holder
Account
Number
Branch
Cod
Standard
Bank of South Africa
Godi
Attorneys
411[…]
010145
(iv)
the defendant must furnish the
plaintiff with an undertaking in terms of Section 17(4)(a) of
the Act
in respect of the costs of future accoimodation of the minor child
MOKOSE
J
Judge
of the High Court of South Africa,
Gauteng
Division, Pretoria
For
the Plaintiff:
Adv.
P M Leopeng
Instructed
by:
NH
Zangwa
For
the Defendant:
MS
B Sibiya
Instructed
by:
Lekhu
Pilson Attorneys
Date
of Hearing: 23 October 2019
Date
of Judgment: 20 February 2020
[1]
Delislle Mbhele v MEC Health Gauteng Province
(2016) ZASCA 166
at
para
21
[2]
Unreported Case No 2013/01470 dated 16 September 2016
[3]
2010 (5) SA 203
(WCC) at 211
[4]
2012 (3) SA 1 (SCA)
[5]
1984 (1) SA 98
(Al at 113G
[6]
De Jongh v Gunter
1975 (4) SA 78
(W) at 80F
[7]
Legal Insurance Company v Botes
1963 (1) SA 608
(A) at 614F--G
[8]
Sandler v Wholesale Suppliers Ltd
1941 AD 194
at 199