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[2019] ZAGPPHC 205
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S.M obo O v Road Accident Fund (74353/2016) [2019] ZAGPPHC 205 (5 June 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: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
Case
No: 74353/2016
5/6/2019
In
the matter between:
S[...]
M[...] OBO O[….]
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
RANGATA
AJ,
Introduction
[1]
This claim is for damages arising from a
Motor Vehicle collision that took place on the 28 July 2015. The
Plaintiff is claiming
in her representative capacity as the mother of
the minor child, O[….] M[….]. The minor child,
hereinafter referred
to as O[….] was injured in the accident
in question. An amount of R6 000 000.00 is claimed for damages
suffered as a result
of the said accident. The amount comprises of
the following heads of damages:
[1.1]Estimated
Past Loss of Earnings:
R400 0000.00
[1.2]Estimated
future loss of earnings:
R5 000 000.00;
[1.3]Estimated
Future Medical Expenses:
R500 000.00
[1.4]General
damages:
R100 000.00.
[2]
The merits have been conceded 100% in
favour of the Plaintiff by the Defendant. The claim for General
damages has been abandoned
by the plaintiff. The only outstanding
head of damages that the Court is called upon to decide is the loss
of earnings.
[3]
Both parties have referred O[….]
for medico legal examinations and the experts are in agreement
regarding the extent of the
injuries he sustained. The Educational
Psychologists are not in agreement as to the injured's academic
performance pre and post-accident
i.e. academic qualification and
career progression.
Background
[4]
As a result of the aforementioned motor
vehicle collision, O[….]allegedly sustained a mild head injury
as well as soft tissue
injury to the pelvis. At the time of the
accident O[….] was 12 years 09 months old, repeating grade 5
at Central Primary
School. He lives with his mother and stepfather in
Brits. His parents are not married; they separated when he was one
year old.
[6]
The parties agreed to lead evidence of
the Educational Psychologists only. From the educational background
provided O[….]
started grade R at Mamogale Primary School
being a quintile 1 school, in 2008. He passed the subsequent years,
except grade 4 which
he failed and repeated in 2013. He started Grade
5 at Central Primary school (quintile 4 school) in 2014, which grade
he failed
and repeated in 2015. The accident occurred whilst he was
repeating grade 5. It was submitted by the plaintiff that the injured
failed grade 4 as he was playful. He was then moved to Central
primary school, an English medium school. It was further submitted
that the reason the injured struggled in the English medium school is
because he came from a school where he was taught in Setswana
and he
struggled to adjust to learn in the new medium of instruction. The
Defendant's representative submitted that from 2015 O[….]
never failed a grade; instead, his performance was average almost on
par with the grade average.
Expert
Evidence
[7]
Ms Naicker, the Educational Psychologist
for the plaintiff at the time of compiling her updated report she
relied on the information
extracted from the school reports by the
Defendant's Expert for the period 2015, 2016, 2017 and 2018. She
tested the minor child
using the WAIS-IV testing method. The Expert
submitted that O[….]'s cognitive functioning fell within the
low average range
of functionality. Further that he lacks in his
reading, comprehension, spelling and mathematics. Having considered
collateral information
provided by the injured's family, information
about his individual functioning at home, school and community, the
evaluation and
assessment and expert findings, she concluded on page
26-27, paragraph 15.2 of the report that:
"He
struggles to sustain attention on task,
has
poor working memory, slow psychomotor
and processing speed and struggles with abstract reasoning. He
has
sustained
a
mild head injury and exhibits
neurocognitive deficits. Reference
is
made to L Grootboom (clinical
Psychologist) that neurocognitive deficits are evident and that his
cognitive, emotional and psychosocial
functioning appears to have
been compromised with future scholastic and occupational functioning
likely to be negatively affected.
The injured has experienced trauma,
pain and discomfort due to the accident. With the
necessary
support, rehabilitation and
remediation to scaffold his learning, he
is
likely to obtain
a
matric certificate
pass.
"As
the school load increases, it becomes more complex at higher
grades. He will have memory problems, which will make it difficult
for him to achieve his pre accident potential. The profile of his
parents suggests that his father obtained grade 12 and his mother
has
N6 qualification in electrical engineering".
He
further concluded that the injured's intellectual ability was
probably in the average range of functioning pre-morbidly. He is
likely to have obtained Matric with an endorsement for a diploma /
NQF6 and is likely to have obtained one.
[8]
Ms Van Der Heever, the Defendant's
Educational Psychologist provided background on the injured's
scholastic performance. She discussed
the school reports from the 1
st
and 2
nd
term grade 5 in 2015, which showed that the injured did not achieve
the required marks to pass the grade. The comment on the 1
st
term report was that he is playful and mischievous. The 2nd term
report showed that he requires much encouragement. The expert
obtained the yearly reports for the period 2016, 2017 and 2018 which
showed that the injured performed on average, more on par
with the
grade average.
[9]
The expert reported the following
findings, page 24 paragraph xvi of the report:
"Processing
speed which indicated the cognitive ability that defines the time
that it takes an individual to do a mental task
was found to be age
appropriate. His practical skills were more advanced than his verbal
abilities. He portrayed an adequate ability
to solve problems using
visual reasoning.
Intellectual
and cognitive assessment, Receptive and expressive language abilities
were below the expected age norm
as
was his verbal reasoning abilities.
This suggests that his ability to think, reason and solve problems of
a verbal nature was below
his age. This would lead to academic
difficulties and difficulties formulating his ideas. Social reasoning
presented as a possible
weakness. Fluctuations in attention and
concentration were noted which affected his short-term memory,
long-term memory as well
as working memory. When focused and with
sufficient effort and reception he is able to memorise information.
Verbal memory was
below the norm and visual memory and visual earning
abilities were adequately developed.
Academic
and scholastic assessment presented challenges in the numerical
reasoning abilities".
[10]
She concluded that given the assessment performance, normal milestone
development, circumstances, parent's
qualifications and occupations
as well as academic performance, Pre-morbid potential the injured is
estimated to be at least in
the average range. He failed grade 4 and
grade 5 prior to the accident. He presented with learning potential
to have completed
grade 12 as well as a NQF5 qualification in a more
inclined field in line with both his parents. The expert attributed
the pre-morbid
academic performance to factors unrelated to the
accident such as attention difficulties and language based
difficulties. It is
further noted that post-accident O[….]
remains with symptoms of trauma, which is likely to improve with
effective psychotherapy.
Post-accident he retains the potential to
complete grade 12, to progress with further qualifications such as an
NQF5 level qualification
in a more practical inclined field.
[11]
Ms Van Der Heever testified that
although the Clinical Psychologists agreed that the minor child
suffered from neurocognitive deficits,
his scholastic performance
shows an improvement compared to the pre-morbid scenario,
notwithstanding the impairments observed.
She further submitted that
with his impairments he managed to perform on par with his peers. She
cannot see why the injured should
not complete matric and obtain NQF5
qualification.
Joint
reports of the orthopaedic Surgeons
[12]
Dr Kumbirai (Orthopaedic Surgeon for the
Plaintiff) and Dr Theron (for the Defendant), agrees in their joint
minutes that O[….]
sustained injury to the left hip with no
abnormal clinical findings. The orthopaedic injuries did not result
in serious long-term
impairments or loss of body function. The joint
minutes of the Neurologists, Dr Manyane (Plaintiff's) and Dr Mudau
(Defendant's)
states that the injured sustained head injury, facial
injuries and injury to the left hip. He sustained mild concussive
head injury
with posttraumatic headaches with no neurocognitive
impairment.
The
Joint minutes of the Clinical Psychologist
[13]
The experts notes that the injured
sustained facial lacerations, head trauma with nosebleed as well as
soft tissue injury (pelvic
pain). Lindelwa Grootboom (for the
Plaintiff) made reference to the report of Dr Manyane, Neurologist
who diagnosed mild head injury
with posttraumatic headaches as well
as soft tissue injury with residual pain. Elfriede Tromp (Defendant's
Clinical Psychologist)
notes the diagnosis of mild head injury by Dr
Ntimane, specialist neuro surgeon. The experts agree on the following
issues:
(a)
Comprised working memory, visual
scanning and psychomotor speed, executive functioning, and rote
verbal learning;
(b)
Verbal fluency and language difficulties
as well as variable attention and concentration;
(c)
Inadequate verbal abstract reasoning,
visual memory and narrative memory.
(d)
Attention and memory functioning could
be affected by psychological difficulties such as depression.
(e)
The injured presented with symptoms of
depression, anxiety and disorder. He is prone to mood changes and
behavioural problems. He
has been rendered psychologically vulnerable
as a result of the accident. His neurocognitive outcomes would
negatively impact scholastic
functioning and render him prone to
making mistakes. Pain would also impact on his academic performance.
Deference is made to the
educational assessment and intervention.
Issues
[14]
The Court has to deal with the following
issues:
(a)
Establish the lnjured's scholastic
performance pre-morbid and postulate his pre-morbid performance,
scholastic and career progression
(b)
Whether post-morbid his academic
performance has been affected by the accident
(c)
The injured's academic performance now
that the accident took place.
The
Law
[15]
In assessing damages for loss of
earnings reference is made to the matter Southern Insurance
Association v Bailie
1984 (1) SA 98
(A) at 112E-114 F, wherein
Nicholas JA stated the following:
"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.
All that the court can do is to make an estimate,
which
is
often a very rough estimate, of the
present value of the loss. It has open to it two possible approaches.
One is for the Judge to
make a round estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of
guesswork, a blind
plunge into the unknown. The other is to try to
make an assessment, by way of mathematical calculations, on the
basis
of assumptions resting on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions, and
these may vary from the strongly
probable to the speculative. It is manifest that either approach
involves guesswork to a greater
or lesser extent. But the Court
cannot for this reason adopt a non possum
us
attitude and make no award..."
Analysis
[16]
The parties agreed that they will not be
calling all the experts that they have referred the injured child for
examination and have
consulted with the minor to give evidence. They
agreed that the joint minutes of the experts shall be used as the
basis for argument.
Further that they will only lead the evidence of
the Educational Psychologists. The Educational Psychologists in their
testimony
placed more emphasis on the method of testing applied. The
experts used two different test methods in assessing the injured's
intellectual
and cognitive functioning; WAIS-IV was used by Ms
Naicker and SSAIS-R was used by Ms Van Der Heever. Ms Van Der Heever
submitted
that WAIS-IV test is not recommended for the injured and
that SAISS is more appropriate test for the injured. It is further
submitted
that SAISS is for English and Afrikaans speaking learners,
hence the assessment was translated in Tswana.
[17]
After consideration of the different
method of testing, the testing outcome with regard to the cognitive
functioning, attention
and concentration were almost similar. In the
joint minutes compiled by the experts, Ms Naicker concluded that the
injured's intellectual
functioning is in the low average range of
functioning. She further found that the injured exhibits cognitive
decline due to the
accident. Ms Van Der Heever concluded that the
injured obtained a full IQ score that fell in the low average range.
Further that
the significant discrepancy between the verbal and
non-verbal scales suggested that his strengths are in the
non-verbal/practical
domain. Although much emphasis was made in
establishing the relevant method of assessment, this fact is not
taking the matter further
as the results for both experts are not
differing materially.
[18]
The injured was 12 years 9 months old
doing grade 4 at the time of the accident. The school records show
that the year preceding
the accident, he was repeating grade 4. For
the court to analyse the performance of the minor child, it will be
guided by the available
collateral information, including but not
limited to the information provided by the school teachers, family as
well as the school
reports. Both Educational Psychologists reported
difficulties experienced in obtaining the previous school reports. Ms
Naicker
submitted that she had sent a letter to the school requesting
information regarding the injured and she did not receive a response.
[19]
The Defendant's Educational Psychologist
was able to obtain more school reports unlike the Plaintiff's
Educational Psychologist.
It is expected that the plaintiff should be
in possession of the injured's school reports and that they would
have at least furnished
their expert with more information so that
she can have a holistic view on the matter. The parties to a larger
extent relied on
the school reports as provided by the Defendant's
Educational Psychologist. The school report for the 1st and 2nd term
of grade
5 in 2015 shows that the injured did not achieve the
requirements to pass the grade. He passed grade 5 at the end of 2015.
Thereafter
he passed the subsequent grades, mostly on par with the
grade.
[20]
Considering the available information as
to his academic performance and the teachers' comments in his pre
accident report, it is
my view that the injured experienced
difficulties in passing his grades, prior to the accident. The
submission by the Plaintiff's
representative that the injured's
pre-morbid academic performance should not be used against the
injured as cannot be established
in the absence of the complete
school reports as to whether such failure could be attributed to the
injured or his educators cannot
be accepted. It is clear from the
teacher's comments on the grade 4 report that the injured was
playful.
[21]
Ms Naicker postulates that disregarding
the accident the injured retained the ability to pass matric as well
as NQF6. This she basis
on the fact the injured had intellectual
ability to progress as such and further that his family background,
in particular his
mother would have motivated him to study further.
[22]
The submission by Ms Van Der Heever that
the injured's academic performance remains unaltered pre and
post-accident is also not
acceptable. The expert had conceded that
the injured performed below the expected age norm on intellectual
cognitive and memory
assessment. The expert further found that the
injured presented with fluctuating attention and concentration on
execution of tasks.
All these will contribute negligently to his
learning capabilities, more especially as he progresses through the
higher grades.
[23]
The court notes the submission by the
Defendant 's representative that having considered the evidence of
the experts; they concede
that post-accident there is a possibility
that the injured might not reach his pre accident potential. It is
therefore accepted
that post-accident the Injured will be able to
achieve Matric certificate as his highest qualification.
[24]
The lnjured's future income, in an
uninjured scenario as calculated by Munro actuaries in his report
dated 6 March 2019 is referred
to. The projected income pre accident
is accepted as per Scenario 2 of the actuarial report, with the
Injured obtaining a Certificate
after matric. He would have completed
matric in 2022 and enrol for a one year certificate in 2023. He would
have entered the open
labour market at Paterson 82/83 at R230 000 per
year, progressing to Paterson C1/C2 at R421 000 per year at age 45.
Thereafter
his earnings would have increased with earnings inflations
until retirement age 65.
[25]
Given the accident and its sequelae, the
Injured will not be able to progress further than obtaining a Matric
certificate. His future
income having regard to the accident is taken
at scenario 1 of Munro Actuarial calculations, at paragraph 4. He
would complete
Matric in December 2022. After which he would have 75%
chance of entering the non-corporate sector, earning an amount of
R3500.00
per month. He would have progressed to semi-skilled (upper
quartile) at the age of 45. His chances of entering the corporate
sector
are at 25%, which would have allowed him to earn at the region
of Paterson A2/A3 (R151 500.00) per annum. He would have progressed
to Paterson B3/B4 at R263 500.00 per year. His earnings would have
increased with earnings inflation until retirement age 65. I
have
applied a premorbid contingency of 25% and 35% post morbid
contingency. I therefore confirm that the lnjured's loss of income
as
outlined above is calculated at an amount of
R2
569.610.
[26]
The Defendant's representative submitted
in their heads of argument that the amount payable to the Plaintiff
should be subjected
to a deduction of an interim payment made in the
amount of R100 000.00. Although this aspect was not submitted at
Court, I am of
the view that same should be deducted upon
confirmation with the Plaintiff's representatives. Below are the
calculations for the
lnjured's loss of earnings:
Future
Total
Earnings
had accident
not
occurred( as per Scenario 2,
5.1
of Munro actuarial
calculation
R6
023.200
Less
Contingencies (25%)
R1
505.800
Subtotal
R4
517.400
Earnings
having regard to
accident
( as per scenario 1 '
4.1
of Munro actuarial
calculation)
R2
996.600
Less
Contingencies (35%)
R1
048.810
subtotal
R1
947.790
Loss
of Earnings
R4
517.400- R1 947.790
R2
569.610
[27]
I therefore make the following order:
(a)
The defendant shall pay to the Plaintiff
the amount of R2 569.610.00 for future loss of income (subject to
interim payment, if any)
(b)
The defendant shall pay the Plaintiff's
taxed or agreed party and party costs.
B.
RANGATA, AJ
ACTING
JUDGE OF THE HIGH COURT
Heard
on
07
May 2019
Date
of Judgement:
05
June 2019
Counsel
for the Plaintiff:
Advocate
D. Mogagabe
Counsel
for the Defendant:
Advocate
P. Nonyane