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[2019] ZAFSHC 21
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Van Rooyen obo S H v Road Accident Fund (216/2016) [2019] ZAFSHC 21 (28 February 2019)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 216/2016
In
the matter between:
BC
VAN ROOYEN N.O. obo S
H
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
19, 20 and 22 FEBRUARY 2019
JUDGMENT
BY:
JORDAAN, J
DELIVERED
ON:
28 FEBRUARY 2019
[1]
The plaintiff, in his capacity as curator at item, claims damages on
behalf of the patient, a minor girl, resulting from injuries
she
sustained in a motor vehicle accident when she was a pedestrian and
hit by a motor vehicle. The incident occurred on 22
nd
of June 2011 when the patient when was six years of age.
[2] The injuries
sustained were recorded in the joint minutes of the occupational
therapists and agreed to by the parties. They
can be summarised as
follows;
-
compound fracture of the left tibia/fibula
-
fracture of the distal femur
-
degloving injury of the forehead with skull exposure
-
abrasion to the left medial ankle
-
laceration of the lip
-
laceration above the right elbow
[3]
As a result of the head injury she suffered a resultant concussive
brain injury and post-traumatic loss of hearing. The fracture
of the
left femur healed with a slight varus deformity and the fracture of
the tibia healed with a slight valgus deformity. She
has a slight leg
length discrepancy, has permanent visible scarring of the forehead
and right arm and the brain injury resulted
in her being cognitively
and intellectually handicapped.
[4] Liability was
conceded on behalf of defendant. The only issues remaining concern
the scope and amount of damages. The claim
for past medical and
hospital expenses was abandoned. In respect of future medical,
hospital and related expenses, the defendant
tendered an undertaking
terms of section 17 (4) (a). The only remaining issues related to
loss of income potential and general
damages.
Loss of income
potential.
[5]
At the time the accident occurred, the patient was in her third year
at preschool. The next year she was enrolled at primary
school in
grade 1 but however had to repeat grade 1 in 2013. From 2014 she was
placed in a remedial class. She was later transferred
to a special
school from 2018.
[6]
Various expert witnesses testified on behalf of plaintiff. The
defendant chose not to tender any evidence except that of the
occupational therapist contained in the joint minute.
[7] It is not necessary
to deal with each and every witness, especially due to the fact that
no contradicting evidence has been
tendered. The relevant evidence
may be summarised as follows;
-
psychometric tests done on the patient indicate that, pre-morbidly,
she was intellectually regarded as falling into the upper
limits of
the below average class. The psychological experts however conclude
that she would have been able to obtain grade 12.
- As
to her socio economic background, the evidence shows that the
patient’s mother fell pregnant when she was in grade seven
where-after she left school. The father remains unknown and is
suspected to have absconded. The patient’s mother passed away
when the patient was still very young. Her grandmother was also
deceased so that she grew up in the home of her grandfather who
also
testified in this matter. The grandfather has three other children
besides the patient’s mother who passed away. According
to the
evidence of the grandfather, the two elder sons attained grade 10.
The youngest one is still at school but attending school
irregularly
and shows to be unreliable and unruly. Neither the grandfather nor
any other family members attained grade 12. The
grandfather is
uneducated.
[8]
It is evident from the aforesaid that the postulation by the experts
to the effect that the patient would have been able to
attain grade
12, is somewhat favoring the patient.
[9]
Part of her post-morbid problems at school were caused by the fact
that she was rendered significantly deaf due to the laceration
of
both eardrums and damage to the inner ear in the accident. According
to the Ear Nose and Throat specialist, her hearing can
most probably
be restored to normal by means of surgical intervention. The
psychologists however opine that her loss of hearing
for several
years during the most important development phase of her life led to
her development falling behind to such an extent
that the restoration
of her hearing at this stage will not enable her to make up for the
loss in her development. In any event,
according to the experts, the
patient’s cognitive and intellectual abilities were permanently
compromised by the brain injury
to such an extent that she would not
be able to be sufficiently educated and will remain unemployable in
the open labour
market.
[10]
Although the patient may benefit from vocational training in a
special school, that may only enable her to be employed in a
sympathetic and protected environment with a potential income
amounting to no more than pocket money, which cannot be regarded
as
gainful employment.
[11]
Based on the postulation that the patient would have been able to
attain grade 12, the industrial psychologist concluded that,
premorbidly, she would have entered employment at that level and
would have remained employed as such for the rest of her life,
only
receiving inflationary increases.
[12] The actuary did his
calculations based on the aforesaid scenario. Because of the
conclusion that she has been rendered unemployable,
he accepted that
she will not earn any income post-morbidly. The actuary did two
calculations, the first based on a normal life
expectancy and the
second based on a life expectancy of 40 years. The second calculation
is based on the evidence to the effect
that the patient was, at a
very young age already diagnosed as being HIV positive and most
probably born as such.
According
to the actuary, Mr Sauer, the life expectancy of 40 years is based on
reliable research conducted and compiled by formidable
experts in the
field. I therefore have to accept that the calculation based on a
life expectancy of 40 years is the most appropriate
in the present
circumstances.
[13]
On this basis the actuary calculated the capitalized premorbid income
potential of the patient to be R3 534 440.00. He
then deducted a
20% contingency which he regards as the normal contingency. He
however conceded that the patient’s HIV status
posed a high
risk of her falling ill and become unemployable, at least
intermittently. That would call for a higher contingency
to be
applied.
[14] I have already
referred to the patient’s socio-economic background, in view of
which I found the postulation that she
would have obtained grade 12
to be favoring her. In my view a contingency factor of 35% is more
appropriate in the circumstances
of this matter. In applying that,
the patient’s net capitalised loss of income potential
amounts to R2 297 386.00.
General damages.
[15]
I have been referred to various decisions and the awards made in
those matters in respect of general damages. Of those that
I have
been referred to, I am of the opinion that
Mohale
v RAF
,
2015 (7A4) QOD 15 (GNP) is the most comparable. In that matter the
claimant was a 10 year old girl who suffered a brain injury
as well
as injuries to her neck and back, resulting in regular headaches, a
slightly increased risk of developing epilepsy and
neurocognitive
changes leading to her being unemployable in the open labour
market. The award of R650 000.00 amounts
to a present value of
approximately R820 000.00.
[16] From my own
research, the matter of
GB v RAF
2017 (7B4) QOD 31 (ECP) also
shows significant similarities. The claimant suffered a degloving
scalp injury with resultant scarring
and fractures of both mandibles.
She also suffered resultant brain damage described as follows;
“
The
reported symptoms are suggestive of more serious long-term sequelae
of a mild traumatic brain injury. The significant post-morbid
decline
in the global intellectual performance of plaintiff supports
suspicions of damage to the “frontal” brain structures
causing a major neurocognitive disorder”
She
was also regarded as unemployable. The award for general damages of
R500 000.00 in 2017 equates to a present value of some
R540 000.00.
[17] No comparable case
is similar in all respects. In
GB v RAF
(supra) the plaintiff
was much older than the present patient and suffered less orthopedic
injuries. In the
Mohale v RAF
matter, the sequelae of the
brain injury appear to be somewhat more serious than the present
matter.
[18]
Taking into account all relevant circumstances in this matter, I am
of the view that an award for general damages in the amount
of
R750 000.00 is apposite.
[19]
It appears to be common cause that any award made to the patient
should be safeguarded and administered in a Trust for that
purpose.
Pending the establishment of such Trust, the award should be held in
trust for the benefit of the patient by the plaintiff’s
attorneys. For that purpose, the plaintiff’s attorneys
submitted a draft order for which I am indebted. In some respects
however, the draft order is unnecessarily detailed and inter-alia
includes specific orders as to what costs are to be included,
thereby
usurping the duties of the taxing master.
[20] In the result I am
of the view that the patient is entitled to be paid the following;
1.
Loss
of income: R2 297 386.00,
2.
General
damages: R750 000.00.
[21] In conclusion the
following orders are granted:
1.
The
defendant is ordered to pay the plaintiff the amount of R3 047 386.00
(Three million, forty seven thousand, three
hundred and eighty six
rand).
2.
The
aforesaid capital amount and costs shall be payable into the trust
account of VZLR Inc. attorneys, ABSA Business Bank, Hillcrest,
branch
code 632005, account number […].
3.
In
default of payment within the respite afforded by the Road Accident
Fund act, interest shall accrue at the mora rate as per the
Prescribed Rate of Interest Act, 55 of 1975
.
4.
Defendant
is ordered to furnish the trustee appointed in respect of S H an
undertaking in terms of section 17(4)(a) of the Road
Accident Fund
Act 56/1996 within 30 days from the date of this order, for the costs
of future accommodation of the patient in a
hospital or nursing home
or the treatment of or rendering of a service or the supply of goods
to the patient arising out of injuries
sustained by her in a motor
vehicle collision on 22 June 2011, in terms of which undertaking the
defendant will be obliged to compensate
the trustee in respect of the
said costs after the costs have been incurred by either the patient
or by the trustee or by any party
on behalf of the patient and on
proof thereof. The undertaking shall include the reasonable costs of
the formation of an inter-vivos
trust for the benefit of the patient
and the costs of administration of the said trust by the trustee,
including the costs attendant
upon the provision of security by the
trustee, provided that such costs shall not exceed the costs which
would otherwise be payable
in law in respect of a curator bonis.
5.
The
defendant shall pay the plaintiff’s party and party costs of
suit, including the qualifying, reservation and attendance
fees and
expenses, where applicable, of the following experts:
-
Ben
Moodie
-
Lida
Moller
-
Johan
Sauer
-
Anel
Booyse of Rita van Biljon occupational therapists
-
Rita
du Plessis
-
Dr.
Danie Hoffman
-
Dr.
D.K.Mutyaba
-
Dr.
H.B. Enslin
-
Dr.
J.F. Ziervogel
-
Dr.
J.A. Smuts
-
Dr.
J.W. Callaghan
-
Thea
Pretorius
6.
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.
7.
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:
7.1
shall be prohibited from dealing with the capital in any other manner
unless specifically authorised thereto by the court, subject
to the
following sub paragraphs;
7.2 is
authorised to invest the capital amount in an interest- bearing
account with a registered banking institution,for 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 this order
once the
Master of the High Court has issued the trustees with the necessary
letters of authority.
7.3
plaintiff’s attorneys are further authorised to pay the costs
for the provision of security of the funds held in trust
to the
master by the trustees of the trust to be created, which costs in
turn must be refunded by the defendant.
7.4 is
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.
7.5 is authorized to make
payment of the attorney and own client’s costs, being fees,
disbursements and interest on unpaid
disbursements of the plaintiff’s
attorneys.
7.6 is
authorised to make payment of such other amounts as may reasonably be
indicated and/or required for the well being of the
patient and/or in
her interest, which a diligent trustee would have paid had such
trustee been appointed.
8. The plaintiff’s
attorney 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 patient.
9. The
trust to be erected for the benefit of the patient shall include (but
not be limited to) the powers as referred to in the
trust deed
attached hereto as annexure A and regarded as incorporated into this
order, subject to the directives and requirements
of the Master of
the High Court.
10. The trustee is
ordered to furnish security to the satisfaction of the Master of the
High Court, if required.
________________
A.
F.
JORDAAN, J
On
behalf of Plaintiff
:
Adv.
M.C. Louw
Instructed
by: Van Zyl le Roux Inc.
c/o
Du Plooy Attorneys
49
Parfitt Avenue
Parkwest
BLOEMFONTEIN
On
behalf of
Defendant:
Adv. Mopeli
Instructed
by: Maduba Attorneys
2
nd
Floor, 77 Kellner Street
Bloemfontein