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[2019] ZAGPPHC 1092
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Prinsloo v Road Accident Fund (6481/2017) [2019] ZAGPPHC 1092 (10 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
(3)
REVISED.
11/6/2019
CASE
NO: 6481/2017
In
the matter between:
RAYRLEE
PRINSLOO
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
NEUKIRCHER
J:
1.
This
is a claim against the Road Accident Fund in respect of a motor
vehicle accident which occurred on 10 October 2015 on the N1,
near
the Mall of the North, Polokwane, Limpopo. The plaintiff was a
passenger in the motor vehicle at the time.
2.
The
merits were settled during May 2017, 100% in favour of the plaintiff
and the defendant has provided the plaintiff with a section
17(4)(a)
certificate in respect of future medical expenses.
3.
The
only issues that were left for me to adjudicate were (a) the
quantum
of the general damages to be awarded
to the plaintiff and (b) the amount of the plaintiff's future loss of
income.
4.
I
was provided with joint minutes of the following experts:
4.1.
the neurosurgeons;
4.2.
the ear, nose and throat specialists;
4.3.
the industrial psychologists; and
4.4.
the educational psychologists.
5.
I
was informed that, for various reasons, the joint minutes of the
neuropsychologists had not been signed by them. I instructed
the two
experts to discuss the draft minutes that had already been prepared
and, if they agreed to the contents reflected, to sign
it. Shortly
before argument was finalised, I received those signed minutes. This
facilitated a settlement in respect of the
quantum
of general damages and thus the only
remaining issue was that of the loss of earnings.
6.
Dr
Miller and Dr Lewer-Allen are the two neurosurgeons. In their joint
minutes they agree that the plaintiff suffered a head injury
which
they classified as
"mild to
moderate".
A brain scan showed
no intercranial pathology, but revealed a complex right temporal
brain fracture into mastoid air cells and to
the middle ear cavity.
The plaintiff also injured his right hand. He has a right-sided
facial weakness and compromised hearing
in the right ear, which
necessitates the use of a hearing aid. They agree that the plaintiff
would be expected to have some cognitive
changes and problems, which
are almost certainly present but appear to be relatively mild. The
plaintiff has become forgetful and
has had a change in personality
since the accident.
7.
Whilst
Dr Miller is of the view that the plaintiff will suffer cognitive
defects, he is also of the view that these will be relatively
mild
and would be easily overcome with extra time, extra effort and extra
enthusiasm so that the plaintiff may still achieve the
same results
as his peers.
8.
Dr
Lewer-Allen however says that, given the psychometric assessment
results reported by the neuropsychologist, Mrs Jonker - in which
several test results fell in the below average to impaired; impaired
and severely impaired ranges especially in the domains of
concentration, visual mental tracking, mental processing speed, rate
verbal and narrative memory, mental flexibility, as well as
verbal
fluency and concept generation - the plaintiff's educability, work
and earning capacity would have to be assessed by the
neuropsychologist, occupational therapist, educational psychologist
and industrial psychologist.
9.
The
industrial psychologists are Shuaib Jeewa and Vuyo Nako. In drafting
their joint minute they took only the joint minutes of
the
neurosurgeons and the ENT specialists into account (save for Mr Jeewa
who also took into account the neuropsychologist's report).
This is
truly lamentable as the results of especially Mrs Jonker are
particularly relevant to the facts of this matter and the
sequelae
of the injuries reported by the
plaintiff.
10.
Mr Jeewa was of the view that, based on
the findings of the educational psychologist the plaintiff would not
possess the necessary
potential to cope within a tertiary setting and
would be unable to acquire a NQF6/7 level of education. Furthermore,
his decreased
motivation combined with his emotional difficulties
will affect his ability to further his level of education and with
his neuropsychological
deficits he will be unable to compete on an
equal footing with his peers.
11.
Ms
Vuyo disagrees. She is of the view that the plaintiff passed Grade 11
and 12
"with no noted
difficulties"
and that the
educational psychologist Sepenyane found that the plaintiff retained
his pre-accident potential postulated as up to
NQF7. She opined that
the plaintiff could return to school if he wished to and would be
able to participate in the open labour
market without difficulty.
12.
What
Ms Vuyo fails to take into account is that the plaintiff passed Grade
11 achieving less of an average than he achieved in Grade
10 and his
third term marks (in 2016 after the accident) in Grade 12, had fallen
by approximately 9%. He did much better in his
final exams in 2016
because he was given extra time and he also had to make extra effort.
There is no indication in this joint
minute that Ms Vuyo has taken
the neuropsychologists' tests results into account which places the
plaintiff in the below average
to impaired, impaired and severely
impaired ranges. In my view, this will certainly impact on his
ability to study further and
compete in the open labour market.
13.
The
educational psychologists are T.A. Sepenyane and K. Trollip. They
agreed that the plaintiff retained his pre accident potential
of NQF6
and is still trainable and educable although it will be harder to him
and require extra effort from him.
14.
The
joint neuropsychologists' minutes of I Jonker and E Tromp was handed
up to me during argument. They agree that:
14.1.
the
plaintiff displays difficulties across several cognitive domains on
the neuropsychological tests;
14.2.
it
is unlikely that the plaintiff will complete further studies in light
of his cognitive fallouts;
14.3.
the
plaintiff's neuropsychological shortcomings have rendered him more
vulnerable and will likely compromise his future career opportunities
and earning capacity.
15.
Given
these findings, it appears to me that the findings of the educational
psychologists do not pass muster nor do those of Ms
Vuyo, the
industrial psychologist.
16.
The
question then is, what contingencies should be applied to determine
the plaintiff's future loss of income? In February and March
2018,
the plaintiff worked as a contract centre operator earning R 9 000.00
per month, but resigned because of the noise levels.
Since April
2018, he has worked at Pal Screw Products doing internal sales and
presently earns R 6 000.00.
17.
The
parties, and the experts, are all in agreement that were it not for
the accident, the plaintiff would have studied further and
obtained a
diploma. Thus, Mr Kramer
[1]
postulated a scenario that is based on this. His calculation is as
follows:
17.1.
Gross prospective value of income
R 8 451 303.00
17.2.
Less contingency (15%)
R 1 267 695.00
17.3.
Net prospective value of
income
R 7 183 608.00
18.
Mr
Zidel has submitted that a 25% spread across the contingencies is
appropriate given the fact that the plaintiff was unemployed
from the
time he matriculated at the end of 2016 until approximately February
2018 and that the neuropsychologists agree that it
is unlikely he
will complete further studies and that the accident has compromised
his future career opportunities and earning
capacity.
19.
Ms
Ramela submits that a 15% spread is more appropriate as the experts
agree that the plaintiff would have studied further had he
had the
money and given all the facts of the matter.
20.
I
agree with Mr Zidel that a 25% spread is appropriate given all the
opinions and especially those of the two neuropsychologists
in this
matter. This then puts the value of the plaintiffs loss of income at
R 2 112 827.00.
21.
As
stated, the parties have agreed on the amount of general damages1
which is the amount of R 450 000.00.
22.
Thus,
the total
quantum
to
be awarded to the plaintiff is R2 562 827.00.
23.
The
parties have handed to me a draft order leaving the award blank. I
have completed that. The remainder of the draft is in order.
Order
24.
Thus, the order I make is the following:
24.1.
The draft marked "X" is made
an order of Court.
NEUKIRCHER
J
JUDGE
OF THE HIGH COURT
Date
of hearing: 10 June 2019
Date
of judgment: 10 June 2019
For
the plaintiff
:
Adv I Zidel SC
Instructed
by De Broglio Inc
For
the Defendant:
Adv P Ramela
Instructed
by: Marivate Attorneys
“
X”
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 6481/2017
In
the matter between:
RAY-LEE
PRINSLOO
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
DRAFT
ORDER
On
10
th
of June 2019 before the Honourable Justice
Neukircher, J; having heard counsel; it is ordered:
1.
The
Defendant shall pay to the Plaintiff the capital amount of R
2 562 827 – 00
in
respect of
General Damages and Loss
of earnings
together with interest
a
tempore morae
calculated in
accordance with the Prescribed Rate of interest Act 55 of 1975, read
with section 17(3)(a) of the
Road Accident Fund Act 56 of 1996
.
2.
Payment
will be made directly to the trust account of the Plaintiff's
attorneys with fourteen
(14) days:
Holder
De
Broglio Attorneys
Account
Number
[….]
Bank &
Branch
Nedbank
- Northern Gauteng
Code
198 765
Ref
51263
3.
The Defendant is ordered in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
to
reimburse 100% of the Plaintiff for the costs of any future
accommodation of the Plaintiff in a hospital or nursing home, or
treatment or rendering of service to him or supplying goods to him
arising out of injuries sustained by Plaintiff in a motor vehicle
accident on which the cause of action is based, after such costs have
been incurred and upon proof thereof.
4.
The Defendant is to pay the Plaintiff's
agreed or taxed High Court costs as between party and party, such
costs to include the costs
of 15th February 2019 and 10 June 2019,
the costs of preparation and qualifying and reservation fees of the
experts, inclusive
of the time spent by Experts for preparation for
and of the draft joint minute, drafting of proposed joint minute and
time spent
in finalizing joint minutes consequent upon obtaining
Plaintiff's reports, the Plaintiff's reasonable travel and
accommodation
costs to attend the Defendant's and own experts, and
senior counsel. All past reserved costs, if any, are hereby declared
costs
in the cause and the Plaintiff as well as subpoenaed witnesses
are declared necessary witnesses.
5A.
The Plaintiff shall, in the event that the costs are not agreed serve
the Notice of Taxation on
the Defendants Attorney of record; and
5B.
The Plaintiff shall allow the Defendant fourteen (14) days to make
payment of the taxed costs.
6.
There is a contingency fee agreement in existence between the
Plaintiff and his
Attorneys.
COUNSEL
FOR PLAINTIFF
: I Zidel, SC
Tel:
083 271 0456
ATTORNEY
FOR PLAINTIFF
:
Nikita Nagel
Tel:
011 442 4200
COUNSEL
FOR DEFENDANT
:P
Ramela
Tel:
084 705 7581
ATTORNEY
FOR DEFENDANT
:
Ms L. Ndlovu
Tel:
079 031 5688
BY
ORDER
REGISTRAR
OF THE HIGH COURT
[1]
The plaintiffs actuary