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[2019] ZAGPPHC 1097
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Mantentshi v Road Accident Fund (3708/2015) [2019] ZAGPPHC 1097 (29 April 2019)
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 JUDGE:
YES
/NO
(3)
REVISED.
2/5/2019
CASE NO: 3708/2015
In the matter
between:
JJ
MATENTSHI
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
NEUKIRCHER
J:
1.
On
7 April 2012 the plaintiff was a passenger at the back of an open
bakkie when the driver lost control of the vehicle. The vehicle
overturned and she was ejected from the back of the vehicle. She
sustained a concussive head injury, facial injuries, arm contusions
and bruises on her legs.
2.
The
plaintiff has sued the defendant for damages pursuant to the injuries
sustained by her in this accident and when the trial commenced,
I was
informed by both Mr Mhlanga (for plaintiff), and Mr Tshitaka (for
defendant} that the merits have been settled a hundred
percent in
favour of the plaintiff, as well as the principal and quantum of the
general damages to be awarded to her.
3.
The
only issue before me in this matter is the issue of the plaintiff's
loss of earning capacity. It is the plaintiff's case that
her
injuries resulting from the collision have rendered her unable to
function as she would have prior to the accident and that
she is
permanently unemployable.
4.
The
main issue in dispute was whether or not the plaintiff would be
permanently employable as a result of her injuries.
5.
It
was common cause that:
5.1.
the
plaintiff was 23 years old
[1]
at the time of the accident and attempting to pass Grade 11 for the
third time;
5.2.
she had repeated Grade 4 once, Grade 8
twice, Grade 9 once and Grade 11 twice. She was trying to pass Grade
11 when the accident
occurred;
5.3.
after the accident, a week later, she
enrolled at the Zaaiplaas ABET Centre for L4 Classes (Grade 9
equivalent). She passed her
course in Ancillary Healthcare but failed
her Sepedi and Economics courses;
5.4.
she dropped out of school because she
was pregnant and did not return;
5.5.
although she struggled in the mainstream
school, she persisted and
was a
determined young woman.
6.
The
plaintiff called five expert witnesses and the defendant conceded
their expertise from the outset of each witness testimony:
6.1.
Gladys Maluleke, a clinical
psychologist;
6.2.
Zethu Gumede, an educational
psychologist;
6.3.
Yvonne Raganya, an occupational
therapist;
6.4.
Esther Sempane, an industrial
psychologist; and
6.5.
Edward Joseph Theron, an actuary.
7.
The
defendant closed its case without calling any witnesses and thus this
matter must be decided based on the evidence presented
by the
plaintiff.
8.
Mrs
Maluleke,
the
clinical psychologist conducted several tests to determine
inter
alia
the plaintiff's cognitive
functioning, her verbal abilities, her memory skills and her
processing and learning skills.
9.
She
came to the conclusion that:
9.1.
the plaintiff suffered from moderate
depression and severe anxiety;
9.2.
that although her pre-morbid scholastic
progress was problematic, there could have been a number of
environmental and other issues
that had impacted on her progress at
school;
9.3.
that pre-morbid, the plaintiff was
persistent with regard to her scholastic progress and this expert was
of the view
that she would eventually
have completed Grade 12, even if she had had to repeat it and would
do a certificate which would have
improved her employability;
9.4.
post-morbid the evidence was that the
plaintiff suffered from poor memory and behaviour changes, the former
of which Mrs Maluleke
testified would only worsen as the plaintiff
aged;
9.5.
the evidence was further that sometimes
a minor brain injury does not always recover in three months, which
is the norm - Mrs Maluleke
was of the opinion that the plaintiff's
case was an example of this;
9.6.
as a result, she was of the opinion that
although she eventually complete Grade 12, the plaintiff would never
go on to receive a
diploma or degree, and that she would be a
vulnerable employee her entire life. Her employment prospects would
minimise the older
she gets as her problems will become more
conspicuous;
9.7.
unfortunately, Mrs Maluleke did not
apply the AMA guidelines in her testing, which would have given a
more accurate picture of the
post-morbid effect of the accident on
the plaintiff, given her pre-morbid scholastic difficulties.
10.
Mrs
Maluleke was adamant that psycho-therapy would not reverse the
plaintiff's condition.
11.
Zethu
Gumede
,
the
educational psycholigst, assessed the plaintiff a year after Mrs
Maluleke, i.e in 2016 and conducted more or less the same tests.
She
assessed her verbal function and her intellectual abilities. Apart
from the vocabulary test, the plaintiff underperformed in
all the
other tests conducted by Mrs Gumede, and scored below average. In
general, she performed at the level of an eight year
old (Grade 2).
12.
Mrs Gumede opined that pre-morbid the
plaintiff had to repeat several grades and that she would have passed
Grade 12 after repeating
it and be vocationally trained. However, the
accident exacerbated her learning difficulties. As a result, she is
unable to reach
her pre-morbid level of functioning.
13.
She was of the view that pre-morbid the
plaintiff would have benefited by leaving school after Grade 1O and
going for vocational
training. However, had she continued to Grade
12, she would have eventually passed, but with low marks, and become
a semi-skilled
person. None of this is possible post morbid. If
the plaintiff does get employment it will be sympathetic employment.
14.
She is of the view that the plaintiff is
not a candidate for remedial intervention because of her low IQ.
15.
She was also of the opinion that
although the plaintiff had learning difficulties pre-morbid, the
accident exacerbated those issues
and as a result, she dropped out of
school. It was put to her in cross-examination that other factors had
led to the plaintiff
dropping out of school: her pregnancy, her
mother passing away and financial issues had prevented the plaintiff
from returning
to her studies. Mrs Gumede conceded that these were
all factors to be considered and the reason plaintiff gave during the
interview
conducted, but her view was that the true reason for the
plaintiff not returning to her studies was the fact that she would
not
have passed and this is solely attributable to the accident.
16.
Yvonne Raganya
the occupational therapist, examined the
plaintiff during the course of an entire day and she was required to
assess the plaintiff's
fitness for the open labour market and to see
how she would perform when she is working in a normal employment
environment.
17.
Her findings after performing various
tests, including those aimed at cognitive function, physical
capacity, psychological and perception
tests and tolerance
(endurance) tests were that:
17.1.
the plaintiff struggled with completing
and performing most of the administrative tests;
17.2.
her physical tolerance for standing,
sitting or doing light physical tasks (example packing shelves or
filing) was restricted and
the plaintiff struggled with keeping pace
and was easily fatigued performing her tasks;
17.3.
the plaintiff complained of back pain,
leg and arm fatigue and shoulder pain, all of which is directly
attributable to the injuries
sustained when she was ejected from the
vehicle.
18.
She testified that for a person to be
employable within the open labour market, one looks at factors such
as their ability to go
to work every day, to take instructions and
remember what those are without having to be prompted or reminded,
the interaction
with others in the work environment and to work
without unnecessary errors or without causing unnecessary errors.
19.
Her opinion was that given the tests she
conducted, the results and her observations of the plaintiff, the
plaintiff does not meet
those criteria - for example she cannot carry
out instructions without making numerous errors, so she would need to
be supervised
in all her tasks. She stated that an employer requires
an employee to be productive, even one
in the informal employment sector, which the plaintiff is not.
Accordingly, only sympathetic
employment would be an option for the
plaintiff, but even there she has restrictions as she is unable to
work a full day.
20.
Under cross-examination she stated that
generally with injuries such as those which the plaintiff suffered,
she is given approximately
two years to benefit from intervention.
After this period, any therapy is rehabilitative to help the
plaintiff cope as the brain
will not adjust or improve much more
after two years. Furthermore, any physical problems will only get
worse over time and the
plaintiff will experience more pain.
21.
Esther Sempane
,
the industrial psychologist then
testified that she had collated the reports and she was of the
opinion that given these, the treatments
and the sequelae of the
injuries, the plaintiff would struggle with both sedentary and
physical work and she was therefore unemployable.
22.
As
regards
the plaintiff's pre-morbid employability, Ms Sempane sketched two
scenarios:
22.1.
the
first scenario was if she achieved her Grade 12 (with low marks) and
continued with vocational training;
22.2.
the second scenario was if she achieved
her Grade 12 and was employed after approximately one year in the
unskilled open labour
market.
23.
As regards each,
[2]
she stated:
23.1.
in respect of scenario 1: with a one
year post-matriculate certificate the plaintiff could have entered
the open labour market at
the B1 level and she may have reached the
B5/C1 level and retired at age 65;
23.2.
in respect of scenario 2: she would have
remained unemployed for approximately a year before securing a job
and could have started
earning approximately R4 000.00 to R5 000.00
per month. She would have reached her career ceiling at the 83 level
at age 45 and
thereafter inflationary increases would have applied
until she retired.
24.
Edward
Joseph Theron,
is
the actuary who compiled the report containing the calculations of
the plaintiff's past and future loss of earnings. It was not
placed
in dispute that his report was based on the report of Ms Sempane and
also took into account the joint minutes filed by her
and the
industrial psychologist appointed by the defendant, a Mrs Kheswa.
25.
He
postulated four scenarios in his report:
25.1.
scenarios 1 and 2
were based on Mrs Sempane's report and scenarios 3 and 4 took into
account Mrs Kheswa's views.
[3]
25.2.
Mr Tshitaka abandoned reliance on
scenarios 3 and 4 and therefore nothing further need be said
regarding them.
26.
As regards scenario 1, the following is
relevant:
26.1.
Uninjured earnings (gross):
-
December 2013: completes Grade 12
-
January 2014: no earnings for one year
-
January 2015: R 4 500.00 to R 5 000.00
per month increasing to
-
November 2034 (age 45): Paterson B3 at
R242 000.00 per year (2019 terms),
and
her earnings would have increased with inflation until her retirement
at age 65.
26.2.
Uninjured earnings (gross):
She has not earned any income
since the accident and will not earn an income in future
26.3.
Contingencies were applied of:
Uninjured
- 15% on future earnings
Injured
- 25% on future earnings.
27.
Thus, the plaintiffs total loss of
earnings is:
Past Loss:
R 309 700.00
Future
Loss:
R 3 871 300.00
Less
Contingency 15%
=
R
3 290 605.00
R
3 290 605.00
+
R 309 700.00= R3 600 305.00
28.
As regards scenario 2, the following is
relevant:
28.1.
Uninjured earnings (gross):
-
December 2013:
completes Grade 12
-
January 2014:
completes Certificate
-
January
2015:
Paterson 81
at R 192 000.00 per annum increases to
-
November 2034 (age
45): Paterson 85/C1 at R366 000.00 per annum,
and her earnings would have
increased with inflation until her retirement at age 65.
28.2.
Uninjured earnings (gross):
She has not earned any income
since the accident and will not earn an income in future.
28.3.
Contingencies were applied of:
Uninjured
- 15% on future earnings
Injured
- 25% on future earnings.
29.
Thus, the plaintiff's total loss of
earnings is:
Past Loss:
R 684 900.00
Future
Loss:
R 5 883 900.00
Less
Contingency 15%
=
R
5 001 315.00
R 5 001 315.00 + R 684 900.00= R5
686 215.00
Summary
of evidence:
30.
All five witnesses made a good
impression. They presented their evidence in a clear and logical
manner and were comprehensible and
remained firm in their views under
cross-examination. Mr Tshitaka argued Ms Raganya exaggerated slightly
regarding the extent of
the plaintiff's injuries post-morbid for
example her back pain and the level of her fatigue in performing
tasks. He argued that
she also came across as a bit of a
11
know-it-all".
31.
l must disagree - Ms Raganya was an
impressive witness, she was clearly very thorough in her examination
of the plaintiff and took
care to spend time with her in conducting
what she considered to be all the necessary and relevant tests in
order to make a considered
recommendation to this Court. She was
clearly very well prepared and knew not only the content of her
report, and why and how she
reached her conclusions and
recommendations, but also knew the content of the report of her
counterpart, Ms Kheswa and where they
differed.
32.
This being so, the defendant failing to
present any expert witness to counter the evidence provided by any of
the plaintiff's experts,
and cross-examination not shaking any of the
plaintiff's witnesses evidence, I must accept the plaintiff's version
that she is
unemployable post-morbid.
33.
The only question that remains is
whether the plaintiff would have eventually persisted in achieving
Grade 12 had she had the financial
means to continue with her studies
and also, whether she would have then gone further to study for a
certificate.
34.
Mr Mhlangu has argued that although the
plaintiff has experienced learning difficulties pre-morbid, the
evidence shows that she
was persistent and a determined person. This
is also demonstrated by the fact that shortly after the accident, she
enrolled at
her ABET school. He argues that she probably would have
passed Grade 12, enrolled for a certificate and secured employment
and
thus scenario 2's calculations are the most appropriate. He
argues that were one to take into account the experts' opinions,
scenario
1 would not put the plaintiff in a position she should have
been in to adequately compensate her.
35.
Mr Tshitaka argues that scenario 1 is
the most appropriate in the present circumstances. He argues that
given the Plaintiff's pre
morbid learning issues and the
difficulty she had in passing her grades, the postulated scenario
that she would not only have passed
Grade 12, but received a one year
certificate is unlikely
and far-fetched.
36.
He says that is even more unlikely when
taking into account that the plaintiff not only failed two of her
courses after the accident,
but that she has yet to return to her
studies.
37.
It is my view that scenario 1 of Mr
Theron's calculation is the most appropriate, given the pre-morbid
issues the plaintiff suffered:
although a determined scholar, her
academic performance was not without its severe setbacks: she was
unable to pass Grades 4, 8,
9 and 11 on her first attempt, which
clearly indicate that she had learning difficulties, whatever their
cause, pre-morbid. I will
accept that she was determined enough to
eventually pass Grade 12 post-morbid, but in my view it is highly
unlikely and improbable
that she would have studied further. It is
more probable that she would have entered the open unskilled labour
market and my view
is also strengthened by the fact that by then she
would have been in her mid- to late twenties and she be competing in
the same
market with much younger people the longer it took her to
complete her education. It would thus be important for her to secure
employment as soon as possible.
38.
Given the fact that I have found that Mr
Theron to be a sound and
reliable
expert, I also have no reason not to accept the contingencies he has
applied in his scenario 1 calculation.
39.
Counsel agrees that costs of the action
should follow the result.
40.
A draft order leaving out the amount of
the award was presented to me by both counsel and I will insert the
amounts in that and
make it an order of Court.
Order:
41.
Thus,
the order I make is the following:
41.1.
The
draft, marked "X" as amended, is made an order of Court.
NEUKIRCHER J
Date
of hearing: 23-25 April 2019
Date
of judgment: 29 April 2019
“
X”
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
ON
2 MAY 2019
BEFORE
HER LADYSHIP JUSTICE NEUKIRCHER
COURT
8E
CASE NO: 37508/15
In
the matter between:
JOHANNA
JABULILE MATENTSHI
PLAINTIFF
AND
ROAD
ACCIDENT FUND
DEFENDANT
DRAFT
ORDER
HAVING
heard counsel of the parties, the following order is made an order of
court:
1.
The Defendant is ordered to
pay the
Plaintiff
a capital amount of
R 3 600 305
(three million six hundred thousand three hundred and five rand
)
In respect of loss of earnings into the
following
bank account on or before the 28
th
May 2019:
ACCOUNT
HOLDER
: J M MODIBA ATTORNEYS
BANK
NAME
: STANDARD BANK
BRANCH
CODE
: 010545
ACCOUNT
NO
: [….]
TYPE OF ACCOUNT
: TRUST ACCOUNT
2.1
Costs of Senior Junior Counsel.
2.2
And the Defendant is further
ordered to pay Plaintiff’s party and party cots on High Court
Scale including costs of the 23
rd
,
24
th
and 25
th
April up to date of this order, such costs to include but no limited
to the costs of the experts reports, namely:
•
DR SELAHLE (Plastic & Reconstructive
Surgeon)
•
DR
DIPPENAAR
(Ophthalmic Surgeon)
•
PROF MOKGOKONG (Neurosurgeon)
•
GLADYS MALULEKE (Clinical Psychologist)
•
ZETHU GUMEDE (Educational Psychologist)
•
YVONNE RAGANYA (Occupational Therapist)
•
ESTHER SEMPANE (Industrial Psychologist)
•
MUNRO (Actuary)
2.3
The
Defendant is ordered to pay the reasonable taxable costs of the
Plaintiff incurred
in
respect of the attendance of
medico legal examinations and accomodation.
2.4
And the preparation, reasonable
travelling and subsistence fees and qualifying full appearance fees
and reservation fees of the
experts subject to the Taxing Master's
discretion and upon proof thereof.
DATED AT PRETORIA ON THIS THE
23
RD
DAY OF APRIL 2019.
BY
ORDER OF THE COURT
PLAINTIFF'S
COUNSEL: ADVOCATE MHLANGA (079
235
6030)
DEFENDANT'SCOUNSEL
:
ADV TAKALANI
TSHIKAKA
073 731 6941
[1]
She is now 29
years
old .
[2]
And these were used by the actuary for purposes of his calculation
[3]
She was of the view that the plaintiff was employable and therefore
did not have any future loss of earnings. As she was not
called, her
view is not relevant to these proceedings.