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[2019] ZAGPPHC 248
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Nkanjeni v Road Accident Fund (30307/2014) [2019] ZAGPPHC 248 (27 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
number: 30307/2014
Date: 27/6/2019
In
the matter between:
SEMANGELE REGINA NKANJENI
PLAINTIFF
AND
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
TOLMAY,
J:
[1]
Plaintiff
instituted action against the Road Accident Fund (the RAF) as a
result of an accident that occurred on 22 June 2006 near
Thabong
Village, Welkom, Free State, when a vehicle driven by the insured
driver collided with the Plaintiff who was a pedestrian
at the time.
[2]
The
merits and quantum were separated. The merits were finalised and
conceded in favour of the Plaintiff.
[3]
At
the hearing I was informed by both legal representatives that all the
disputes were settled between the parties and that the
only issue the
Court had to decide was, whether the Plaintiff left school as a
result of the injuries sustained by him and as a
result suffered
future loss of income. Plaintiff's case was that it was as a result
of the injuries sustained during the accident
and Defendant's case
was that it was purely for financial reasons.
[4]
Joint
minutes were filed by most of the experts. The neuro surgeons' joint
minutes reflects that they inter alia agree that:
i)
the
Plaintiff sustained a moderately severe (mild) traumatic brain
injury;
ii)
they
do not expect neurocognitive, neurophysical or neuropsychological
sequelae because of the head injury;
iii) he
sustained multiple cuts and abrasions to the head and the body in the
accident;
and
iv)
that his life expectancy and retirement age have not been influenced
by the accident.
[5]
The
joint minute by the clinical psychologists, Ms Cramer and Ms Tromp
found
inter alia:
(a) evidence of some cognitive impairment; (b) that Plaintiff
retained some mild symptoms of post traumatic anxiety; and (c) that
his academic and occupational potential has been affected to an
extent due to his neuropsychological difficulties.
[6]
Plaintiff
testified that he was about 10 years old when the accident occurred.
He said that he only had a recollection of some of
the things that
occurred on that day. He sustained injuries on his head and back and
lacerations on his legs. He lost consciousness
and only woke up in
hospital. Since the accident he has been struggling with headaches,
pain in his right foot and he also experiences
problems with his left
eye. Before the accident he did not experience any of these problems.
[7]
He
was between grade four and five when the accident occurred. Since the
accident he has been struggling to study. According to
him he did
well at school prior to the accident, but also conceded in cross
examination that he was an average student. He
seemed to have become
very sensitive to noise since the accident, which would trigger
headaches and caused him to loose concentration.
He Said all of the
above forced him to leave school in grade ten. He repeated grade ten
twice, but failed. He then decided to leave
school. He also said that
he did not have money as his father passed away during 2012. He was
his parents' only child, but he has
half brothers and sisters from
his parents' previous relationships. His one sister is a teacher and
his brothers are engineers.
His other sister is presently in grade
twelve.
[8]
Under
cross-examination .he said that he started noticing learning
difficulties when he was in grade seven.
[9]
After
leaving school during 20·13, he enrolled at a Further
Education Training College (FET) to study to become a boilermaker.
He
said he dropped out because of financial reasons. His mother wanted
him to study, but despite her best efforts they could not
afford it.
[10] He
said that school was free, but FET College not and therefore he could
not remain in FET College
and complete his course.
[11]
Plaintiff called Ms Van Jaarsveld, the industrial phycologist, she
and Ms Nel, the industrial psychologist
for the Defendant completed
two sets of joint minutes. In their first joint minutes they
inter
alia
agreed to
defer to the opinion of the educational psychologists, regarding
plaintiff' s pre-accident academic outcomes, and stated
that they
noted that the clinical psychologists indicated that his pre-morbid
intellectual potential based on his educational background
and family
history was estimated to be average.
[12]
Ms Nel reported in the joint minutes
that Plaintiff told her, that he left school because of financial
reasons. She stated that
he would be categorised as an unskilled
worker. Ms Van Jaarsveld on the other hand opined that he would
probably have been able
to complete matric as well as a post school
qualification (NQF 5). Post-accident however she was of the view that
he would only
qualify to perform unskilled labour in the informal
sector of the open labour market and that he will struggle to secure
employment,
as he would require constant supervision. She was of the
view that if he secured employment he would be earning between the
lower
quartile and median of an unskilled labourer and will suffer
from longer stints of unemployment that will increase with age.
[13]
Ms Van Jaarsveld brought out an addendum
report and subsequent to that, on 17 April 2019 Ms Nel and Van
Jaarsveld brought out a
further joint minute dated 17 April 2019. In
this minute they agreed that:
i)
that
Plaintiff was 9 years old when the accident occurred;
ii)
that
they would deter to the educational and clinical psychologists' who
indicated that plaintiff's pre-morbid intellectual potential
was
estimated to be average.
[14] It
was again noted in the joint minute that it was reported to Ms Nel
that Plaintiff left school due
to financial constraints and she noted
that he would have been categorised as an unskilled worker.
[15]
Ms Nel also indicated in this joint
minute that the Defendant should appoint an educational psychologist
so that a joint minute
could be prepared between the educational
psychologists. She stated that only then could a pre and
post-accident educational scenario
be determined with likely earning
levels. She was however of the view that both pre- and post-accident
Plaintiff would probably
have been employed as an unskilled labourer.
Post-accident Ms Van Jaarsveld was of the view that Plaintiff will
struggle to secure
employment and will only qualify for unskilled
labour. If he secures employment it will be with earnings between the
lower quartile
and median of an unskilled labourer and will suffer
from longer stints of unemployment. Despite this the Plaintiff did
indeed secure
employment.
[16]
Ms Nel noted in this joint minute that
the Plaintiff did find employment at Refemathla Cleaning Services on
2 February 2017 as a
surface cleaner at Harmony Gold Mine in Orkney
and earns R3 800-00 per month. She conceded that he has been
compromised to an extent,
but the magnitude can only be specified
when the two educational psychologists deliver their reports and
joint minutes. It must
be noted that Defendant never obtained a
report from an educational phycologist, despite Ms Nel's opinion.
[17] Ms
Van Jaarsveld testified and confirmed her reports and conclusions.
She testified that the FET qualification
are equivalent to grade
twelve and that the Plaintiff, despite his view that he would have
been able to complete this qualification,
would not have been able to
do so post accident, even if he had the required financial
recourses. She said that young adults
have a tendency to overestimate
their abilities.
[18]
The possibility of Plaintiff becoming a
miner like his father was raised. Ms Van Jaarsveld said that to
become a miner one would
require not only physical abilities, but
analytical and other skills, and miners are regarded as semi-skilled
labourers. Plaintiff
could pre-morbidly have been able to become a
semi-skilled labourer, but due to his cognitive and behavioural
impairments will
not be able to do so now.
[19]
Plaintiff then called the educational
psychologist, Dr Van Der Ryst, who confirmed both her report and
addendum thereto. She stated
that school records confirmed that prior
to the accident the Plaintiff was an average student. After the
accident he remained a
low average to average student. In 2011 his
grades deteriorated but he managed to pass grade nine. In 2012 he
failed two semesters
in grade ten and his father also passed away.
She stated that prior to the accident he would have had the potential
to progress
to grade twelve and he could have pursued further to a
NQF 5 level, which is in line with his family members' education,
this would
however have depended on his social and economic
circumstances.
[20] She
said ll1at 1t appears as if the traumatic sequelae of the accident
resulted in cognitive deficits,
which was exacerbated by the death of
his father. She concluded that he could still enrol at an FET college
for practical vocational
training, provided that he receives
psychological support. She was however of the opinion that he will
not perform according to
his pre-morbid potential.
[21]
She testified that his. challenges
became more apparent later during his schooling from grade seven
onwards, because the material
got more difficult and as a result of
this his cognitive impairment became more apparent.
[22]
That was the case for the Plaintiff.
[23]
Ms Nel, the industrial psychologist for
Defendant testified. She confirmed that she was informed by the
Plaintiff that he left school
because of financial constraints and
not because he was struggling. She conceded that she had to defer to
the educational psychologist
regarding he pre and post-morbid
intellectual potential. It would seem that she based her opinion
solely on the fact that she was
informed by Plaintiff that he left
school due to financial constraints.
[24]
A perusal of the expert reports clearly indicates a mild to moderate
concussive brain injury and that Plaintiff's academic
and
occupational potential has been affected to an extent due to his
neuropsychological difficulties. The evidence indicated that
his
father's death must also have contributed to financial and emotional
difficulties, but the injuries and sequelae of the accident
seem on a
balance of probabilities to be the primary reason for the limitation
of his cognitive ability and his ultimate decision
to leave school.
One should also consider the fact that education at school was free
and consequently finances could not have prevented
him to complete
his schooling. The financial impact was mainly felt when he wanted to
enrol in the FET College. The primary reason
for him leaving school,
was due to the impairment of his cognitive abilities, which was
caused by the injuries sustained during
the accident.
[25] As a
result of the Defendant's stance regarding the reason for Plaintiff
leaving school, resulted in
the Defendant's actuary concluding that
Plaintiff suffered no future loss of income.
[26] The
actuary for the Plaintiff, in Basis ·1 of his calculation take
into consideration that the
Plaintiff obtained employment, as the
evidence indicated. As a result the quantum of future loss of income
must be determined on
this basis. The actuary calculated the future
loss of income from 1 February 2017, an income of R45 600 per year
(R3 800-00 X 12
assumed April 2019 terms). Thereafter increasing with
inflation until retirement at age 62 . The actuary applied a 20%
contingency
had the accident not occurred and a 40% contingency
having regard to the accident. He described the method of calculation
as follows:
"
Method of
calculation:
I calculated the present value
of income, had the accident not occurred, by discounting the net
projected income discussed in 1.1
above, allowing for interest and Mr
Nkanjeni's probability of survival. The present value of income,
having regard to the accident,
was similarly calculated by
discounting the net projected income discussed in 1.2 above. The loss
of income was taken
as
the difference
between the above-mentioned present values, aft.er allowing for the
contingency deductions shown in 1.3 above."
[27] It is
trite that contingency is within the discretion of the Court. The
contingencies proposed by the
actuary seem to be reasonable, taking
into consideration all tile circumstances of the case. Basis 1 is
calculated as set out hereunder
by the actuary.
Basis 1
Past
Income
Future
Income
Total
Income
Income
if accident did not occur
Less
contingency deduction
207 923
10 396
197 527
3 868 554
773 711
3 094 843
4 076 477
784 107
3 292 370
Income
given accident did occur
Less
contingency deduction
97 420
-
97 420
1 042 481
416 992
625 489
1 139 901
416 992
722 909
Loss of income
100 107
2 469 354
2 569 461
[28]
In
the light of all the facts I find that the Plaintiff left school due
to the impact that his injuries had on him and as a result
he
suffered a future loss of income as calculated by the Plaintiff's
actuary as set out above. As a result the future loss of income
is
calculated at R2 569 461-00.
[29]
The
following order is made:
1.
It
is declared that the primary reason for Plaintiff leaving school was
as a result of the sequelae of the injuries sustained in
the
accident;
2.
Defendant
is ordered to pay to Plaintiff the amount of R2 569 461-00 for future
loss of income;
3.
Interest
to be paid from 14 days of date of this order at a rate of 10.25% per
annum to date of payment; and
4.
Defendant
to pay the costs of the Plaintiff.
R
G TOLMAY
JUDGE
OF THE HIGH COURT
DATE
OF HEARI NG:
30
APRIL 2019
DATE
OF JUDGMENT:
27 JUNE 2019
ATTORNEY
FOR PLAINTIFF: C J VAN RENSBURG ATTORNEYS
ADVOCATE
FOR PLAINTIF" ADV J HERSHENSOHN
ATTORNEY
FOR DEFENDANT: RAMBEVHA MOROBANE ATTORNEYS
ADVOCATE
FOR DEFENDANT: MR E MOGANE