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[2020] ZAGPPHC 21
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Q.M obo N v Road Accident Fund (47979/2018) [2020] ZAGPPHC 21 (21 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No. 47979/2018
21/2/2020
In
the matter between:
Q[….]
M[….] obo N[….]
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MILLAR,
A J
1.
The
plaintiff is the guardian of her minor child who at the age of 10
suffered injuries in a passenger motor vehicle collision.
I was
informed by counsel for the parties that the liability has been
conceded and also that the claim for both future medical
expenses has
been settled. The claim for general damages is not before the court.
2.
The
only issue for determination between the parties is the quantum of
the minor’s future loss of income. No evidence was
led by
either party. The argument in respect of the two issues was made with
reference to the reports filed and the agreements
reached by the
experts.
3.
It
was common cause between the educational and industrial psychologists
who examined the minor, prepared reports and then met that:
3.1
the
minor was still at school when the collision occurred;
3.2
the
minor would but for the collision have attained a grade 12 with a
further 3 to 4-year degree qualification;
3.3
pre-collision
the minor would have completed her studies and started working
earning R267 000 per annum which would have increased
uniformly to
R889 092 over a 20-year period and thereafter remained constant apart
from inflationary increases until retirement
at age 62,5.
3.4
post-collision
the minor having only obtained a grade 12 with a diploma start
earning R144 617 per annum which will increase uniformly
to R257 663
per annum at age 45 and thereafter remain constant apart from
inflationary increases until retirement at age 62,5.
4.
The
first issue between the parties relates to whether the minor would in
the post-accident scenario, notwithstanding the agreement
of the
experts have only reached an income ceiling of R257 663 and secondly
how contingencies are to be applied.
5.
The
plaintiff argued that the pre and post morbid scenarios agreed by the
expert who examined the minor should guide the court in
the
determination of the loss of income. The defendant argued that
because certain experts did not have all the school reports
of the
minor child, it was not possible for them to have properly assessed
the minor and come to the agreement that they did as
set out in
paragraph 3 above.
6.
I
was referred to the decision of the Supreme Court of Appeal in the
case of Road Accident Fund v SM
[1]
as authority for the proposition that I ought not to rely on the
reports of the experts who did not have all the school reports.
This
argument was directed at the reports of both the educational and
industrial psychologists instructed by the defendant.
7.
Save
for the above no basis was laid for the impeachment or for that
matter the repudiation of the findings and opinions of the
particular
experts. The present matter is distinguishable from Road Accident
Fund v SM in that in the present case by agreement
no evidence was
led and I am not in a position to express any view on the opinions of
the experts save to say that they did conduct
interviews with the
minor, examine her and prepare reports. The reports express similar
views to those of the experts who did have
access to the school
records and so I must accept that their independent testing was
accurate at least insofar as the identification
of the sequelae to
head injury and its financial consequences.
8.
The
second issue between the parties was the manner in which the
contingencies were to be applied. The plaintiff argued, given the
minor child’s age that an appropriate contingency deduction in
the pre-collision scenario was 30% and that in the post-collision
scenario was 35%. The defendant argued that a contingency allowance
of 10% should be allowed from the pre-collision earnings to
accommodate this head of damages.
9.
It
is trite that the determination of contingencies is a matter for the
trial court and that such contingencies may be either negative
and
applied by way of a deduction or positive, applied by way of an
addition to the actuarial calculations.
10.
In
the present matter I am of the view that the damages should be
calculated based on the pre and post collision scenarios agreed
by
the experts. In regard to contingencies however, given that the child
has only suffered a loss of capacity, it seems to me that
given her
young age, the deduction for a contingency for the general hazards of
life will be the same in respect of both scenarios.
The true loss is
the difference between the scenarios.
11.
I
am of the view that a 30% deduction in respect of both scenarios is
appropriate.
12.
The
pre-collision earnings were calculated at R10 329 666 and less 30% is
R7 230 766. The post-collision earnings were calculated
at R3 365 397
and less 30% is R2 355 777. The difference between the aforementioned
figures is R4 874 989 and this is the amount
I intend to award.
13.
The
parties handed up a draft in which their agreement in regard to costs
was set out. Provision was also made for the establishment
of an
inter vivos trust to protect the minor’s award. The plaintiff
was in court and confirmed that she agreed to the establishment
odf
such trust.
14.
In
the circumstances, I make the draft order marked “XYZ” an
order of court.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
19 FEBRUARY 220
JUDGMENT
DELIVERED ON:
21 FEBRUARY 2020
COUNSEL
FOR THE PLAINTIFF:
ADV DP MOGAGABE
INSTRUCTED
BY:
K MOKALE ATTORNEYS
REFERENCE:
MR
K MOKALE
COUNSEL
FOR THE DEFENDANT:
ADV F KOKELA
INSTRUCTED
BY:
MAC NDHLOVU INC.
REFERENCE:
MS
J NYATHI
[1]
(1270/2018)
[2019] ZASCA 103
(22 August 2019)