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[2019] ZAGPPHC 483
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Mtshulana obo S v Road Accident Fund (76476/15) [2019] ZAGPPHC 483 (8 April 2019)
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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SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE
NO: 76476/15
8/4/2019
In
the matter between:
N.
MTSHULANA obo S
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
This
is an action wherein the Plaintiff claims damages arising from
injuries sustained by her child as pedestrian
(“the
minor”).
in a collision which
occurred on 17 September 2012. At the time of the collision, the
minor was 6 years old and at present is 12
years old.
2.
In
the particulars of claim at paragraph 6 thereof, the Plaintiff
alleges to have sustained the following injuries:
6.1
Moderately sever diffuse axonal
head injury with a focal brain injury and a frontal skull fracture;
6.2
Multiple facial and scalp
lacerations;
6.3
Soft tissue injury to the knee
with abrasions.
3.
Furthermore, at paragraph 7 thereof the
plaintiff alleges as follows:
"As a result of the aforesaid
injuries Plaintiff has suffered damage and is entitled to damages in
the sum of R5 967 594, 00
made up as follows:
7.1
Past medical/ Hospital expenses R10 000,
00
7.2
Future medical expenses-Undertaking in
terms of Section 17(4) (a) Act 56 of 1996
7.3
Past and future loss of earning capacity
R4 757 694, 00
7.4
General Damages R1 200 000, 00"
4.
At
the commencement of the proceedings and at the request of the
parties, the court was requested to record the following:
4.1
That
the issue of liability has become settled on the basis that the
Defendant shall pay 100% of the Plaintiff's agreed or proven
damages;
4.2
That
the Plaintiff was abandoning his claim in respect of past medical
expenses;
4.3
That
the Defendant would provide the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Act, in settlement of the
Plaintiff's claim in respect of future medical expenses;
4.4
The
Defendant admitted the contents and correctness of the Plaintiff's
Actuarial report, handed in and marked as exhibit B;
4.5
By
agreement between the parties the contents and correctness of the
joint minutes prepared by the experts, were handed in and marked
as
exhibits A
5.
The
parties were further in agreement that they will merely argue the
matter on the pleadings and various expert reports filed of
record
without the need call such experts. In this regard they further by
agreement handed into the record exhibit C, setting out
all facts
agreed upon.
DISPUTED
ISSUES
6.
This
court had to determine the extent of the Plaintiff's past and future
loss of earning capacity. The court was also called upon
to determine
the Plaintiff's general damages.
INJURIES
7.
As a result of the injuries sustained by
the minor, he suffered the following sequelae:
[1]
Brain
injury-regular
headaches, memory concentration and slow mental functioning.
Behavioural and emotional changes with defiance tendencies
and
changes in temperament which is directly associated with his frontal
lobe impairment. The plaintiff is now emotionally vulnerable
with
compromised social and recreational interaction. He also now suffers
neurocognitive and intellectual impairments. As per the
report of Dr
Hoffman,
[2]
a plastic, reconstructive and cosmetic surgeon, the minor suffered
disfigurement
in
the form of scarring to his face and left knee which is permanent and
has affected the minor's self-image.
8.
A
claim for general damages as stated in the matter Road Accident Fund
v Marunga
2003 (5) SA 164
(SCA) at 23, is a claim which comprise of
pain and suffering, disfigurement, permanent disability and loss of
amenities of life.
9.
The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived at
must
necessarily be uncertain depending on what is considered fair and
reasonable by the trial court in all the circumstances of
the case.
As mentioned
supra,
the
Plaintiff claimed general damages in the amount of R1 200 000, 00. In
the joint minute prepared by the clinical psychologists
the following
common factors were noted:
9.1
The
minor suffered no emotional and physical challenges pre-accident.
9.2
Post-
accident, he experienced significant difficulties from the start of
his scholastic career and failed Grade 1 and 4.
9.3
Memory
concentration and slow mental functioning were reported.
9.4
The
experts agree, that the minor sustained a neurocognitive impairment
which can be attributed to a brain injury sustained at a
vulnerable
young age.
[3]
9.5
The
report of Dr Hoffman as mentioned before further notes that scars
from a variety of sources can have long-term emotional effects
in
addition to physical discomfort and marring of the skin. Furthermore,
that scarring on a person's face, such as in the present
matter, can
lead to negative connotations being made about that person. This may
as a result potentially lead them to be ostracized
from society or
may even prevent them from entering a relationship.
[4]
Ms Grootboom, the Clinical Psychologist instructed by the Plaintiff,
further opines that the minor's quality of life has been reduced
by
cognitive, psychological and physical sequelae.
[5]
10.
In considering an
award in respect of general damages, I remain mindful of the opinion
expressed by the court in De Jong v Du Pisanie
N.O.
2005 (5) SA 547
(SCA), wherein the court concluded that the principle remained that
an award should be fair to both parties; that it must give
just
compensation to the Plaintiff, but not pour our largesse from the
horn of plenty at the defendant's expense. It has also been
said that
the court has a wide discretion and that there are no hard and fast
rule of general application requiring the court to
consider past
awards.
11.
Having
regard to decided cases, Mr Marx appearing on behalf of the Plaintiff
submitted to the court, that an award of R1 250 000,
00 should be
awarded as general damages as this amount would be fair in the
present circumstances. Mr Vermaak appearing on behalf
of the
defendant adopted a more conservative approach and requested the
court to award an amount of R 750 000, 00 having regard
to the
moderately severe head injury and scarring sustained by the minor and
the decided cases referred to in counsel's heads of
argument.
12.
Considering
that an award of general damages is a highly inexact science and
given the tender age of the minor, I consider an award
R1 000 000, 00
to be an appropriate amount for general damages under the
circumstances.
EXPERT
EVIDENCE
13.
In
their joint minute, the Neurosurgeons recorded as follows:
13.1
That
the Plaintiff's current complaints consist of headaches having
sustained a moderately severe diffuse axonal head injury with
a focal
brain injury and a frontal skull fracture in the accident.
13.2
As a result of the injury, the minor has
struggled academically at school and has an increased risk of
developing epilepsy in future
(between 3% -10%).
13.3
Furthermore,
that the life expectancy of the minor has not been influenced by the
accident that he was involved in.
[6]
14.
The Clinical Psychologists in their
joint minute made the following observations:
[7]
14.1 The
collision in question was the first collision that the minor was
involved in and that he had no known
emotional nor physical
challenges prior thereto.
14.2
As a result of the collision, the
minor displayed memory, concentration and slow mental functioning.
14.3
Facial scarring was also noted
and behavioural and emotional changes were reported.
14.4
They further both agreed that the
minor's neurocognitive impairment is attributed to a brain injury
sustained at a vulnerable age.
15.
The
Industrial Psychologists Dr A. Strydom and Mr Oosthuizen also
individually filed expert reports. During their joint meeting
as
experts they recorded that they had at their disposal several other
expert reports filed in the present matter.
Pre-accident
they were in agreement that if the
court was to accept the opinion of the Plaintiff's educational
psychologist then the minor would
have been able to complete Grade 12
with an exemption. If, however, the court was to accept the opinion
of the defendant's educational
psychologist, then it can be accepted
that the Plaintiff if not placed in a remedial school, would probably
only have progressed
during his foundation, intermediate and senior
phases.
Post accident
they
agreed that the minor would have continued to work until normal
retirement age of 65 years or as long as his health permitted.
The
experts further reached consensus that post- accident the minor would
not be able to reach his pre-morbid potential. Furthermore,
that as a
result of the collision, the minor would be restricted to unskilled
and semi-skilled employment and that he would not
be able to perform
sedentary, administrative type of work given his neuropsychological
sequelae. The experts were further in agreement
that as his future
prospects are not all guaranteed, a higher post morbid contingency
deduction should be considered.
16.
The
Occupational Therapists met on 6 November 2017. During such meeting
they agreed that at the time of the collision the minor
was 6 years
old. The experts agree that at the time of their report the only
complaint reported was that he suffered from headaches
post-collision. As for his residual work capacity, they agreed that
as a result of the collision he would find it increasingly
more
difficult to cope with the demands of his grades. That the minor
remains employable within the open labour market, despite
the
accident. Furthermore, that he would be best suited for sedentary
work within the semi-skilled or unskilled domains until retirement
age and that his biggest challenge would be to progress beyond the
low semi-skilled level. If in future he was to develop epilepsy,
he
would be unable to be employed as a driver, or work in an environment
with machinery.
[8]
17.
The
Educational Psychologists met on 9 November 2018 and recorded the
following in their joint minute produced concerning such meeting:
17.1
The
minor was a healthy child pre-accident with his birth and development
uneventful.
17.2
Post-accident,
the Plaintiff is probably a candidate for remedial school and would
benefit from remedial intervention and in all
probability, he would
have managed the demands of Grade 12. Ms Moller on behalf of the
Plaintiff opines that the minor pre-accident
would have progressed to
a NQF5 level with Ms Van den Heever suggesting an NQF4 level together
with the completion of a basic skills
course at a college.
17.3
Post-accident,
the experts agreed that within the remedial school environment with
extra concessions, that the minor in all probability
would have been
able to complete Grade 9 (NQF1) with a slight possibility of a
condoned Grade 10 and that his brain injury would
result in him
struggling to find secure employment.
EVALUATION
18.
Now
in determining the Plaintiff's post and future loss of earning
capacity this court has to determine whether post-accident and
as a
result of the
sequelae
of
the collision, he would have been able to reach his full career
potential.
19.
Pre-accident
the experts agreed that the minor was a healthy child with his birth
and development uneventful. Post-accident the
experts agreed that he
minor now would have to go to a remedial school and would only be
able to obtain a condoned Grade 10.
20.
In
Bridgman NO v Road Accident Fund
2002 (1) ALLSA 1
(CPD) the court
held that "in order to claim compensation for patrimonial loss a
Plaintiff must discharge the onus of proving
on a balance of
probabilities that such loss has indeed occurred. That does not
necessarily mean that the Plaintiff is required
to prove the loss
with mathematical precision however the Plaintiff is required to
place before the court all evidence reasonably
available to enable
the court to qualify the damages and to make an appropriate award in
his favour."
21.
In
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at para [36] and [37] the following is stated
relative to expert evidence and opinions of expert witnesses:
"[36] That being so what is
required in the evaluation of such evidence is to determine whether
and to what extent their opinions
advanced are founded on logical
reasoning. That is the thrust of the decision of the House of Lords
in the medical negligence case
of Bolitho v City and Hackney Health
Authority
(1997) UKHL 46
[199] AC 232 [HL(E)]. With the relevant
dicta in the speech of Lord Browne Wilkinson we respectively agree.
Summarized they are
to the following effect.
[37] The court is not bound to
absolved a defendant from liability for allegedly negligent medical
treatment or diagnosis just because
evidence of expert opinion,
albeit genuinely held is that the treatment or diagnosis in issue
accorded with sound medical practice.
The court must be satisfied
that such opinion has a logical basis in other words that the expert
has considered comparative risks
and benefits and has reached 'a
defensible conclusion."'
22.
In
making an assessment on the conclusions opined by the experts and the
weight to be attach to their opinions expressed and applying
the
above principles
in casu
I
have had regard to the undisputed facts in the matter. I list them to
be the following:
22.1
That
the minor was injured in a motor vehicle collision on 17 September
2012.
22.2
At
the time of the collision, that he was only six years old.
22.3
Following
the collision, the minor requires remedial schooling and would only
be able to achieve condoned Grade 10. In all likelihood
that he would
be able to obtain employment but that same would be limited to a low
semi-skilled level until retirement age 65 years.
23.
On
behalf of the plaintiff, Mr Sauer, prepared an actuarial report. Same
was marked Exhibit 8 page 1 - 12. In terms of the said
report the
actuary approved contingency deductions of 25 % on his pre-morbid
future earnings totalling R 3 390 709, 50. This amount
the Defendant
was in agreement with. Post morbid earnings the actuary
postulated in his report an amount of R1 211 151, 00
in respect of
which this court was called upon to deduct an appropriate
contingency. Given the totality of the evidence presented
before this
court, I am of the opinion that a contingency deduction of 50% would
be fair and reasonable under the circumstances
as I am satisfied that
the plaintiff has discharged his
onus
of presenting reliable evidence in
proving his loss of earning capacity.
24.
Having
regard further to the decision Goodall v President Insurance
1978 (1)
SA 389
(W) and the sliding scale method laid down in this decision I
am of the opinion that the percentages contingency deductions as
alluded to above would be both fair and equitable and will serve to
balance the interest of both parties under the circumstances.
ORDER
25.
In the result, the following order is
made:
25.1
The
merits have been settled 100% in favour of the plaintiff;
25.2
The
Defendant shall pay the Plaintiff the total amount of R4 996 284, 50
(Four Million Nine Hundred and Ninety-Six Thousand Two
Hundred and
Eighty-Four Rand and Fifty Cents) in respect of both his loss of
income as well as his general damages;
25.3
The
said amount to be paid into the Plaintiff's attorneys Trust Account
No: [….] Absa Business Bank Hillcrest;
25.4
Interest
on the above amount at a rate of 10,25% per annum from a date 14 days
after the date of judgment to date of payment;
25.5
The
Defendant is ordered to furnish the Plaintiff with an undertaking in
terms of
section 17(4)
(a) of the
Road Accident Fund Act 56 of 1996
in respect of future accommodation in a hospital or nursing home or
treatment of and or rendering of a service or supplying of
goods to
him arising from injuries sustained by him in a collision which
occurred on 17 September 2012 only after the costs have
been
incurred.
25.6
The
Draft marked X dated and signed and further annexed hereto is hereby
made an order of Court.
COLLIS J
JUDGE
OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
For
the Plaintiff
: Adv. D.J. Marx
Attorney
of the Plaintiff
: Van
Zyl Le Roux Inc.
For
the Defendant
: Adv. H. Vermaak
Attorney
for the Defendant
: Maponya Inc.
Date
of Hearing
: 30 November 2018
Date
of Judgment
: 08 April 2019
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
Case num: 76476/2015
8
April 2019
Before
the Honourable Justice
COLLIS
J
(IN
COURT 4C)
In
the matter between:
N
MTSHULANA obo S
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
DRAFT
ORDER
AFTER
HAVING HEARD EVIDENCE AND ARGUMENT BY COUNSEL, IT IS ORDERED THAT:
1.
1.1
The Defendant is to pay the Plaintiff’s Attorneys the sum of
R
(
)
in respect of Loss of Income and
General Damages and in full and final payment;
1.2
The Plaintiff's Attorney's trust account
details are as follows:
ACCOUNT
HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH CODE:
632005
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
[….]
1.3
In the event of default on the above
payment, interest shall accrue on such outstanding amount at 10.25%
(at the mora rate of 3.5%
above the repo rate on the date on this
order, as per the
Prescribed Rate of Interest Act, 55 of 1975
, as
amended) per annum calculated from due date until the date, as per
the
Road Accident Fund Act, of payment
;
2.
The Defendant shall make payment
of the Plaintiff's taxed or agreed party and party costs on the High
Court scale, including the
costs of the instructing and correspondent
Attorneys, which costs shall include but not be limited to the
following:
2.1.
All
reserved cost to be unreserved;
2.2.
The
fees (preparation, and day fee) of D Marx a Senior Attorney with the
right of appearance in the High Court, appearing as counsel;
2.3.
The
reasonable taxable costs of obtaining all medico legal/expert, RAF 4
Serious Injury Assessment, actuarial reports and any other
report of
an expert nature from the Plaintiffs experts, of whom notice had been
given, including but not limited to the reports
which were furnished
to the Defendant and/or its experts;
2.4.
The reasonable preparation,
qualification, reservation and attendance fees, if any, of all the
Plaintiffs experts of whose reports
had been furnished to the
Defendant and / or its experts;
2.5.
The reasonable taxable accommodation and
transportation costs (including toll and e-toll charges) incurred on
behalf of or by the
Patient (including his parents, having to
accompany him) in attending medico legal consultations with all
experts, consultations
with the legal representatives and the Court
proceedings, subject to the discretion of the Taxing Master;
2.6.
The reasonable cost for an interpreter's
attendance at court on the trial dates and at the medico legal
appointments for translation
of information;
2.7.
The
reasonable costs of a consultation between counsel, the patient's
attorneys, the patient's family and the experts, in preparation
of
the hearing and discussion of settlement and the terms of this order;
2.8.
The
above-mentioned payment with regard to costs shall be subject to the
following conditions:
2.8.1.
The
Plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the Defendant's attorney of record;
and
2.8.2.
The
Plaintiff shall allow the Defendant 14 (fourteen) calendar days to
make payment of the taxed costs;
2.8.3.
In
the event of default on the above payment, interest shall accrue on
such outstanding amount at the mora rate of 3.5%above the
repo rate·
on the date of taxation /
settlement
of the bill of cost, as per the
Prescribed Rate of Interest Act, 55
of 1975
, as amended, per annum, calculated from due date until the
date of payment;
2.8.4.
The
above costs will also be paid into the aforementioned trust account.
3.
By agreement between the parties
the award to the plaintiff shall be protected by means of it being
entrusted to a trust to be formed
for the benefit of the patient.
4.
Until such time as the
Trustee
still to be appointed and the trust to be erected, is able to
take control of the capital sum and to deal with same in terms of
this order, the Plaintiff's attorney of record:
4.1
Shall be prohibited from dealing with the capital in any other manner
unless
specifically authorised thereto by the Court, subject to
paragraph 4.2 - 4.6 hereunder;
4.2.
Are
authorised to invest the capital amount in an interest-bearing
account with a registered banking institution in terms of Section
78
of the Attorney's Act, 53 of 1979, to the benefit of the patient and
will only be allowed to pay such monies over to the
Trustees
of the trust to be created in terms
of paragraph 4 of this order, once the Master of the High Court has
issued the
Trustees
with
the necessary letters of authority;
4.3.
The
Plaintiff's attorneys are further authorized to pay the costs to set
security of the funds held in trust to the Master of the
High Court
by the
Trustees
of
the trust to be created, which costs in turn must be refunded by the
Defendant to the Plaintiff in terms of paragraph 9;
4.4.
Are
authorised and ordered to make any reasonable payments to satisfy any
of the patient's needs that may arise and that are required
in order
to satisfy any reasonable need for treatment, care, aid or equipment
that may arise in the interim;
4.5
Are authorised to make payment of the attorney and own client' costs,
being
fees, disbursements and interest on unpaid disbursements, of
the Plaintiff's attorneys;
4.6.
Are authorised to make payment of such other amount(s) that may
reasonably be indicated
and/or required for the wellbeing of the
patient and/or in his interest which a diligent
Trustee
would have paid had such
Trustee
been appointed.
5.
It is noted that the amount in
paragraph 1 above is to be paid into the trust account of the
Plaintiff's attorney and that after
deduction of the attorney and
client fees the balance is to be paid to the
Trustee
to be
appointed.
6.
The Plaintiff's attorneys of
record shall attend to the creation of an
inter vivos
trust in
order to protect the awarded funds to the exclusive benefit of the
Plaintiff.
7.
That the trust to be erected for
the benefit of the patient on these papers, duly amplified with the
powers recommended by the Master
of the High Court of South Africa,
which powers shall include (but not be limited to) the powers as
referred to in the Trust Deed
attached hereto as
Annexure"
A"
and are regarded as incorporated into
this order.
8.
Jeanne Helen Rabie
will
be the Trustee as per the signed consent attached hereto marked as
Annexure "B".
9.
The Defendant is ordered to pay
the costs in respect of the creation and future administration of the
said trust, to be formed in
order to manage and administer the
compensation payable to the patient as referred to in paragraph 1 of
this order, which costs
will include the fees of the trustees, and
which costs of administration shall be limited to the amount of costs
and fees chargeable
by
Curator Bonis
in terms of the
Administration of Estates Act, Act 66 of 1965, as amended.
10.
The
Trustee
is ordered to
furnish security to the satisfaction of the Master of the High Court.
11.
There exists a Contingency Fee
Agreement between the Plaintiff and Plaintiffs attorneys, which is
complies with the terms set out
in the Contingency Fee Act.
By Order of the Court
REGISTRAR
For
the Plaintiff:
VZLR Inc- 012 435 9444,
Adv D Marx - 082 828 0629
For
the Defendant:
MAPONYA Inc
- 012 342 0439,
Adv
[1]
Exhibit C p 2
[2]
Exhibit D p 279-299
[3]
Exhibit C p 7-11
[4]
Exhibit D P 293-294
[5]
Exhibit A p 11
[6]
Exhibit A p 25- 26
[7]
Exhibit A p 7-11
[8]
Exhibit A p 1-6