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[2018] ZAGPJHC 590
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N L obo M v Road Accident Fund (38339/2014) [2018] ZAGPJHC 590 (17 September 2018)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO.: 2014/38339
In
the matter between:
N
L obo
M Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
SIBUYI
AJ
INTRODUCTION
[1]
The minor child M N (“M”), was born on 30 August 2006. M
was involved in a motor vehicle accident on 22 March 2012
at about
07h45 at Immink Road, Zone 5 Diepkloof, Soweto, Gauteng Province.
Whilst a pedestrian on his way to school and crossing
a street he was
knocked down by a minibus taxi. He was allegedly in grade R at the
time. He is reported to have had a seizure after
the accident and had
a depressed level of consciousness. M was immediately taken to Chris
Hani Baragwanath Hospital, wherein he
was admitted for day and
discharged the following day. According to the hospital records he
was admitted at 08h45 with pain and
right side head laceration. He
was diagnosed to have had a focal seizure involving the mouth and the
left hand. He had an abrasion
and swelling over the right temporal
area. CT Scan Brain was reported normal. He was discharged the
same day on an anticonvulsant
(Epilim).
[2]
On 26 August 2013, about 1 year 5 months after the accident M was
reported to have had a generalised atonic seizure in the early
hours
of the morning. He was reported to be in Grade 1 and not coping well,
unable to write and reported to loose concentration
easily. It was
reported that his mother was called to M’s school with a
complaint of abnormal behaviour in class and screaming
inappropriately. He was admitted for overnight observation. He was
booked for EEG and referred to Occupation Therapy Department
for
learning challenges. On the 24 October 2013 he was admitted for a EEG
recording. The EEG was reported normal. He was later
admitted for
seizure, fever and recurrent headaches. He is reported to have had a
3 day history of severe headache. He was also
found to have
sinusitis. He was now and then treated and put on medication for the
above symptoms.
[3]
On or about 2 July 2014 Dr. Mika Mokabane diagnosed M to have
suffered a mild traumatic brain injury (a grade 3 concussion),
brief
loss of consciousness, with Glasgow coma scale of 15/15 in hospital
and currently suffering from late onset post traumatic
epilepsy which
needs chronic treatment, post concussion headaches, and memory loss
problems which needed assessment and treatment.
It is common cause
between the parties that M had suffered a mild traumatic brain injury
and is under medication for chronic epilepsy
as a result of the
accident.
[4] On 27 February 2018
the matter came before me and was allocated to run for three days
only. Counsel for both parties informed
me that on 8 September 2015
the matter came before Basson J for the first time, merits,
undertaking and general damages were settled.
In the terms of the
order granted by Basson J dated 8 September 2015, general damages
were settled at R650 000-00 (Six hundred
and fifty thousand
rands) and the defendant undertook to provide the plaintiff with an
undertaking in terms of
section 17(4)
of the
Road Accident Fund Act
56 of 1996
, to pay 100% of the cost of any future accommodation of M
in a hospital or nursing home, or treatment or rendering of service
to
him or supplying of goods to him arising out of injuries sustained
by M in the motor vehicle accident which occurred on 22 March
2012
after such costs have been incurred and upon proof thereof. Hence,
the matter was before me to decide only future loss of
earnings. The
parties had, at roll call, requested allocation for two to three days
to run on factual dispute between Educational
Psychologist and
Industrial Psychologist only. I was informed that the balance of the
expert evidence
vis
Orthopaedic Surgeon, Neurosurgeon,
Neurologist, Clinical Psychologist bore common cause facts which were
contained in the joint
minutes and were not in dispute between the
parties. I must point out at this stage that this approach by
the parties was
ill advised and materially complicated the matter. In
my view the matter was not ripe for a hearing. I deal with this issue
herein
below.
COMMON CAUSE FACTS
The Neurosurgeons
[5] For the sake of
brevity and accuracy, I further summarize the the joint minutes of
Neurosurgeons who agreed as follows:
5.1 Pre-accident, M
enjoyed a good general physical health. During the accident he
suffered a mild traumatic brain injury. As a
result of the accident
he is suffering from post-traumatic epilepsy which will needs chronic
medical treatment. Both Neurosurgeons
agreed with the views of Dr.
Mika Mokabane, the plaintiff’s Neurologist. The Defendant did
not instruct a Neurologist.
The
Clinical Psychologists
[6]
The Clinical Psychologists, Dr L Maseko and Dr L Roper, although they
depart from slight different angles, agreed that the head
injury
sustained is considered to be of sufficient severity to bring about
mild ongoing neuropsychological sequelae. Both noted
similar
neuro-cognitive sequelae and psychological symptoms on M, which
symptoms they observed and measured during his evaluation
and
assessment in their individual reports following the accident in
question. Both experts agreed that the accident related factors
have
potential to impact negatively on his academic functioning and
scholastic progression as already evidenced in his current
school
performance. However, Dr L Roper (For Defendant) noted that the
possible presence of pre-existing cognitive difficulties
cannot be
excluded considering the minor’s reported socio-demographic
context. If present, any such difficulties would probably
have been
exacerbated by the head injury and post-traumatic epilepsy.
[7] They further agreed
that following accident, M also suffered significant symptoms of
post-traumatic stress disorder. Both experts
noted that as a result
of the neuropsychological sequelae, M’s interpersonal
functioning, his enjoyment and quality of life
has decreased since
the accident. It was agreed that he has not yet had the benefit of
treatment for his post-traumatic stress
symptoms and they recommended
psychotherapy and neuropsychological intervention as well as
supportive family therapy. Lastly, they
agreed that M needs to be
fairly compensated for the head injury and symptoms suffered.
The
Occupational Therapists
[8] The Occupational
Therapists agreed that M needed occupational therapy twice per week,
and a routine therapy with an educational
/ clinical psychologist to
monitor and address possible psycho-social deficits. Further, they
agreed that M presents with concentration
deficits, hyperactivity,
delayed learning, reduced gross motor and fine motor skills, visual
perceptual deficits, restlessness,
and impulsive behaviour. His
cognitive, perceptual, coordination, and behavioural deficits, are
likely to result in scholastic
deficits and will influence his future
work competence. Based on his current presentation he will benefit
from placement in a remedial
school where occupational therapy,
psycho-therapy and remedial assistance is supplied on a daily basis.
With remedial schooling
he may be directed towards a more technical /
manual type of employment, which case he will be reliant on his
physical abilities
to earn an income. Both experts noted that M
presents with no neuromuscular limitations preventing him from
pursuing a physical
career, however given the possibility of
post-traumatic epilepsy, he may not be suited for occupations
involving driving or the
use of dangerous machinery, working on
elevated surface or in environments placing him at risk of burns and
scalds. As a result,
he will suffer a loss of employment
opportunities.
The
Educational Psychologists
[9]
The Educational Psychologists, Dr M Mtshali(“Mtshali”)
and Dr M Maseko(“Maseko”) complied a joint minute
on 22
June 2016. Pre-morbid, Maseko noted that scholastically M was
probably going to be able to complete grade 12 without any
additional
specialized educational assistance, Mtshali noted that in the absence
of sufficient pre-morbid history of learning (pre-morbid
academic
records) it cannot be determined with certainty how well M would have
been able to apply his qualities under the circumstances
and one
cannot rule out possibility of pre-morbid learning difficulties
beyond reasonable doubt.
[10]
Post-morbid, under cognitive functioning, Maseko noted that M’s
cognitive functioning fell well below average both verbally
and
non-verbally and Mtshali noted a within average level of functioning.
Nevertheless, they both noted M’s inadequacy in
the areas of
auditory sequential memory, logic memory, attention and concentration
as an interference with his ability to perform
optimally
academically. They further agreed that M’s inattentiveness
could interfere with his future learning especially
when progressing
to next classes as he is currently presenting with learning
disabilities due to poor memory and impaired ability
to retrieve the
bulk meaningful information. Maseko noted that erratic performance
confirms that the accident did impact on M’s
memory as he
appears unable to sustain attention and concentration and
perseverance in task completion. In conclusion, Maseko noted
that M
will probably find it difficult to complete grade 12 as both his
verbal and non-verbal cognitive functioning is impaired
whilst
Mtshali noted that with remedial intervention M may probably complete
grade 12 taking into consideration that he still retains
his average
functioning.
[11]
Post-morbid, under educational functioning, Maseko and Mtshali noted
that scholastically M’s inconsistent and fluctuating
auditory
processing difficulties may interfere with integration of
information. They agreed that attention and concentration
difficulties
may continue to undermine M’s ability to perform
adequately academically.
[12]
Post-morbid, under emotional functioning, Maseko noted that
emotionally and socially, M seems to have experienced major changes.
He currently lacks inhibition and when reprimanded he seems to have
no clue of what kind of a change of behaviour is expected from
him.
The experts agreed that M may benefit from psychotherapy for
emotional trauma and he appears to present with irritability
and
anxiety.
[13] On M’s future
educational prospects the experts agreed that M is a learner with
special needs. Maseko recommended an
epilepsy school and Mtshali
recommended remedial classes in order to meet academic
challenges. Maseko noted that without
the accident, M would have
probably completed grade 12 with entry to a certificate or diploma
qualification post matric. Mtshali
noted that with remedial
intervention M would still probably complete his grade 12 with entry
to a certificate or diploma qualification
post matric taking into
consideration that his head injury is not rated as severe traumatic
head injury.
THE
DISPUTES
[14]
The Educational Psychologists’ latest joint minute compiled on
9 February 2018 tells a totally different story especially
on the
intellectual and educational functioning of M and also his future
prospects. It appears that the recent change in their
views is caused
mainly by the recent school report which suggests that M’s
intellectual ability falls in the high average.
[15]
Maseko is now of the view that M’s intellectual ability falls
in the average range and not below average as per her initial
report.
Maseko noted that M’s memory inconsistency may be due to
psychological trauma suffered in the accident which is likely
to be
aggravated by his concussive post traumatic headache. Based on M’s
recent school report Mtshali is also singing a different
tune. She
now opines that M’s intellectual ability is estimated to fall
in the high average and not average as per her initial
report.
Mtshali noted that based on her initial assessment, M did experience
some memory inconsistency due to the psychological
trauma suffered in
the accident under discussion, but noted that based on his recent
school report M appeared to have recovered
well and the memory
inconsistencies appears not to present anymore.
[16]
On educational functioning Maseko opines that although M seems to
perform adequately academically, and that his teacher’s
comments indicates him to be displaying a positive attitude towards
his learning, the last psycho-educational assessment conducted
on 21
June 2015 revealed impairments in his cognitive functioning with
fluctuation of memory, and abstract reasoning both verbally
and
no-verbally. These weaknesses may continue to interfere with his
executive functions in higher classes where independent learning
is
expected to be applied in learned material by way of processing and
retention. The recent school is but one of the factors to
be taken
into account and cannot be conclusive on the educational functioning
issue. On the other hand Mtshali opines that based
on M’s
latest school reports M has stabilized scholastically/educationally
as he performed in the high average in all areas
of learning,
therefore there are no learning difficulties or challenges which can
be anticipated to reappear in the next or higher
grades.
[17]
On the future prospects Maseko noted and confirmed during her
testimony that M may have had the intellectual potential to have
obtained grade 12 (NQ4) level of education should it had not been the
presence of memory fluctuation. This impairment would probably
continue to undermine his learning potential as post-accident M had
already repeated a grade and suffered secondary epileptic injuries.
She noted further that M may therefore find it difficult to achieve
grade 12 according to his potential due to additional ailments
of
epilepsy, confirmed concussive post headaches and the psychological
trauma suffered in the accident leading to memory fluctuation.
These
deficits would probably continue to interfere with M’s
executive functions in higher grades where bulk of academic
work
would need independent processing and retention of learned material.
The new information from the addendum reports do not
negate the
previous findings of presence of cognitive impairments relating to
memory and poor abstract reasoning abilities. She
further opined that
having reached age 12 M, who was never taken to a remedial school as
per the recommendations, is no longer
a candidate for remedial
schooling. Further, that M cannot cope in a private remedial school
because of his poor English background.
[18] To the contrary,
Mtshali disagreed and testified that based on M’s latest school
report, M appears to be functioning
as his pre-accident potential and
appears to have stabilized scholastically. If M was still
experiencing memory challenges/impairments,
it is most probable that
he could have been still struggling and not coping with his school
work especially from grade 4 and his
recent school reports would have
still indicated some learning challenges, therefore it has to be
agreed that new learning challenges
are not anticipated in the next
or higher grades which can continue to interfere with his executive
functions. Also taking into
consideration that it is almost 6 years
post-head injury but he is still functioning adequately, therefore it
is confirmed that
no learning challenges are anticipated in the next
or higher grades which can continue to interfere with his executive
functions
and M appeared to have stabilised scholastically. Based on
the above factors, Mtshali contended that it has to be agreed that
the
head injury sustained by M in the accident did not have the
potential to cause any long term cognitive challenges/impairments.
The
Industrial Psychologists
[19] The Industrial
Psychologists, Dr M. Malaka (“Malaka”) and Dr O. O.
Sechudi (“Sechudi”) complied a joint
minute on 14
February 2018. The two Industrial Psychologists did not have the
benefit of reading minutes of other experts on the
matter. Hence,
their post morbid views are not based on sound factual basis. They
are out of context and to an extent irrelevant.
I deal with
this issue herein below. I now summarize their pre-morbid
views.
Pre-morbid
prospects
[20]
Malaka reported and testified that, but for the accident, M would
have been able to obtain grade 12 and would have been able
to further
his studies at a tertiary institution. In this context, assuming he
could have obtained a further education qualification
such as a two
years diploma/three years degree, he could have been able to enter
the labour market first as a semi-skilled worker
at R20 600-R59
000-R151 000 per year. In five years or so, given more experience and
even in-house training as well as further
studies, he would have
earned at Paterson C1/C2. In fifteen years or so, he would have
earned at Paterson C3/C4. At the age of
45 years, he could have
earned at Paterson C5. His ceiling would have been at Paterson D1 at
age of 50 years old. At this time,
he could have qualified for
general annual increment until his retirement at the age of 65 years
(Koch: 2017; pages: 129 132)
.
[21] Sechudi reported and
testified that had the accident not occurred, M with the relevant
remedial support, might have performed
better with his academic
studies and be on the right path completing his grade 12. M was going
to have a fair chance to compete
in an open labour market and
securing employment. Upon completion of the studies he would have
started searching for a job. A person
with such a level of
qualification may be considered as an unskilled worker. The claimant
would have spent at least 3 years to
searching for a job equivalent
to the qualification. On securing a job, he would have earned
according to Paterson level A2 with
gradual progression to Paterson
level B3 (Koch, 2017) towards age 45 were he would be reaching his
career ceiling. From the age
46, his earnings would have stabilized
and he would have earned only additional inflationary increases until
retirement age. Sechudi
agreed with Malaka that with B. Degree M’s
earnings might reach Paterson D1.
Post-morbid
employment prospects
[22] Malaka testified
that Maseko is better placed to opine on how far M will go
scholastically. Given the expert medical reports
as well as the
biographical information, it could be indicated that M employment
chances will be based on the following two scenarios:
First
scenario
22.1 In the event where M
is able to receive medical support, remedial education and
developmental support and is able to progress
towards high school
education, chances are that he will not pass grade 12. He might
acquire basic skills which will provide him
with an opportunity to
obtain a low entry technical job. However, he will not be able to
reach his pre-accident potential. In this
respect, he will only be
employable at the unskilled levels of the formal labour market. His
remuneration will be limited to the
to the following unskilled worker
scale at R8 100-R20 600-R59 000 per annum (Koch, 2017: page 132). In
this regard, he will experience
long periods of unemployment. He will
have to depend on his physical capacity to do the job. However, he
will find it hard to compete
for possible job offers, given his
mental physical injuries and limitations. When confronted with the
recent school report, annexure
“E4”, which school report
he never took into account when compiling his report, Malaka
conceded that the recent
school report looks impressive but he
insisted that the recent school report is just but one of the factors
to be taken into account
when considering M’s performance. He
conceded that such results are possible with remedial support.
Second
scenarios:
22.2
In the event where M is not able to find appropriate medical
intervention as well as educational placement in accordance with
his
learning requirements, chances are that he will not be able to
progress developmentally and educationally beyond grade 08 education
or alternatively, he will not be able to acquire skills necessary to
generate a reasonable income in order to live independently.
He will
have to remain in a supervised and protected environment for the rest
of his life. The results of chronic epilepsy is that
M will be on
chronic epilepsy medication for the rest of his life. He can suffer
epilepsy attack at any time. The impact of that
is that he cannot
drive or climb heights. He will be confined to employment chances of
a general labourer or sympathetic work and
not fully spect jobs. The
result being that even on the lower levels jobs, he remains
restricted. Malaka testified that technical
school or jobs may not
assist M as he may blackout whilst working. M can do courses or
jobs that are sedentary inclined like
clerical, admin and filing.
22.3
Sechudi on the other hand reported and testified that M”s
productivity in his future employment is affected but not limited
by
his post-accident health condition. He opined that M may still be
able to pass grade 12. This possibility is based on the fact
that
according to him M is able to return to premorbid levels of
functioning as reported by the defendant’s Educational
Psychologist, Mtshali. Furthermore, it was reported that with
remedial intervention, he would still probably passed grade 12. Thus,
it is possible for M to secure a meaningful job in the open labour
market. It is important to note that should his epilepsy be
uncontrollable in the future, M’s intellectual functioning
might be affected negatively. The post-accident contingency with
health can be invoked. During cross -examination, Sechudi refused to
comment on the views expressed by Malaka above and stated
that he
stand by what he wrote in the joint minute.
[23]
I now return to the ripeness of the matter. From the out set, I must
again say that this matter was not ripe for hearing, but
was rushed
to court and badly presented. The evidence outlined above bear
testimony to my view. Less relevant facts about M were
placed before
this court. There is no explanation why a relevant witness, M’s
mothers was never called by either party to
give relevant pre and
post morbid evidence about M. Nor were his teachers called to
give factual evidence on educational
progress, especially where the
Educational Psychologists for the parties disagreed on the issue and
the recent school report indicated
otherwise. Only one of his school
reports was discovered and used by the defendant to advance its case.
Progressive school reports
were necessary to support the defendant’s
argument’s below on the future prospects. Briefly stated, not
all specific
relevant personal circumstances of M are on record.
[24]
The Educational Psychologists themselves came to court with half
baked opinions. They failed to consider the complete factual
backgrounds upon which they based their opinions. For example,
Mtshali, based on one isolated school report, opines that it has
to
be agreed that the head injury sustained in the accident under
discussion did not have the potential to cause any long term
cognitive challenges/impairments on M. According to Mtshali, M
appears to be functioning as his pre-accident potential and appears
to have stabilized scholastically. On the other hand, Maseko rejects
Mtshali’s view on the bases that although M seems to
perform
adequately academically, and that his teacher’s comments
indicates him to be displaying a positive attitude towards
his
learning, the last psycho-educational assessment conducted on 21 June
2015 revealed impairments in his cognitive functioning
with
fluctuation of memory, and abstract reasoning both verbally and
no-verbally. The recent school report is but one of the factors
to be
taken into account and cannot be conclusive on the issue. She
concluded by stating that an independent holistic psychological
educational assessment was necessary to verify whether or not the
cognitive functioning challenges or impairments identified earlier
were still in existence. However, nobody bothered to conduct such
necessary independent assessment before the matter was set down
for
hearing. There is also no explanation as to why such approach was not
followed. Had they done so, the main dispute on the matter
would have
been narrowed, if not settled by agreement between the Educational
Psychologists.
[25]
An informed view on the above issue was necessary to assist the
Industrial Psychologists and actuaries to give their well balanced
opinions on the future loss of earnings. At this point, the reports
of the Industrial Psychologists and actuaries, which are based
on
incomplete and disputed facts are less helpful to the court. As
Wepener J put it in Nicholson Charlene v RAF
[1]
:
“
[I]t
is the function of the court to base its inferences and conclusions
on all the facts placed before it.”
This Court, in order to arrive at its own decision or finding,
must of necessity have regard not only to the expert evidence
but
also to all the other facts of the case, including the viva voce
evidence, the probabilities and the reliability of the witnesses.
Kotze J (as he was then) put it as follows in S v Gouws
[2]
:
“
The
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specified
field. His
own decision should not, however, displace that of the tribunal which
has to determine the issue to be tried.”
[26]
It is fundamental that experts should have sound factual bases for
the opinions they give. Unfortunately, in this case this
fundamental
rule has not been complied with. Meyer AJ (as he was then) warned
against this in Mathebula v RAF
[3]
at para [13] where he stated the following: “
An
expert is not entitled, any more than any other witness, to give
hearsay evidence as to any fact, and all facts on which the
expert
witness relies must ordinarily be established during the trial,
except those facts which the expert draws as a conclusion
by reason
of his or her expertise from other facts which have been admitted by
the other party or established by admissible evidence.”
[4]
One of the duties of an expert witness is that “
An
expert witness should state the facts or assumptions upon which his
opinion is based. He should not omit to consider material
facts which
could detract from his concluded opinion”
[5]
.
The Educational Psychologists in this matter, as stated above, failed
to observe this rule. They both omitted to consider
material
facts which could detract from their concluded opinions. They both
failed to consider progressive school reports, and
or in the light of
the recent school report used in court, to do a further independent
psychological educational assessment on
M to determine the current
status of his challenges or impairments.
[27]
Instead, each Educational Psychologist, based on incomplete facts,
chose to express a view only favourable to the party that
called
them. In Schreider NO & Others v AA & Another
[6]
Davis J stated as follows at 211J-212B: “
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor gives evidence which
goes beyond the logic which is dictated by the
scientific knowledge
which that expert claims to possess.”
It is common cause that the expert witnesses of the plaintiff that
testified mostly tendered evidence that contradicted that of
the
defendant’s experts. The approach to be followed in a case like
this: where there is conflicting expert evidence was
set out in
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
[7]
as follows at paras [36] and [37]: “
[36]
That being so, what is required in the evaluation of such evidence is
to determine whether and to what extent their opinions
advanced are
founded on logical reasoning. That is the thrust of the decision of
the House of Lords in the medical negligence case
of Bolitho v City
and Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL(E)).
With the relevant dicta in the speech of Lord Browne-Wilkinson we
respectfully agree. Summarised, they are to the following
effect.
[37] The court is not bound to absolve a defendant from liability for
alleged negligent medical treatment or diagnosis
just because
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound
medical practice.
The court must be satisfied that such opinion has logical basis, in
other words that the expert has considered
comparative risks and
benefits and has reached ‘a defensible conclusion’.”
[28]
In this case, I must assess all the expert evidence adduced and take
into account the precedents set by our courts in line
with the
stare
decisis
principle or doctrine. Without any defensible conclusion from the
experts and hard as it is, I must on the facts determine what
will be
an equitable loss of earning capacity. It is generally accepted that
“
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”
[8]
.
I must do the best I can on the material available, “
by
either making a round estimate of an amount which seems to be fair
and reasonable to me (an entirely a matter of guesswork, a
blind
plunge into the unknown) or 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”
[9]
.
I am unable make an assessment, by way of mathematical calculations,
on the basis of assumptions resting on the evidence.
There is simply
not enough evidence to assist in that regard. Instead, I have to make
a round estimate of an amount which seems
to be fair and reasonable
to the court. Counsel for the parties suggested during argument that
I adopt a compromised common ground
approach on deciding what
constitute fair and reasonable figure.
[29]
I now turn to the arguments on quantification of the plaintiff’s
claim for loss of earnings and earning capacity. During
argument
Counsel for both parties agreed that the pre-morbid value of income
uninjured was estimated at R6 566 398.00, as tabulated
in Bundle C,
page 56 thereof, and that this value may be taken as common
cause between the parties. In the light of the facts
of this matter,
I agree with the parties as the the agreement on this figure seems to
be a more reasonable one in the circumstances.
Though I may have
preferred between 23-25%, the actuary’
s 20%
contingency is not
unduly generous. The respective Industrial Psychologists experts were
also not far apart on the pre-morbid values.
As stated above they
agreed on most of the pre-morbid aspects. Serious disputes mainly
arose on the post-morbid scenarios.
[30]
Both the plaintiff and the defendant have filed reports by the their
respective actuaries. However, none of the actuaries testified.
Based
on the plaintiff’s actuary quantification, specifically Basis
II, it was contended on behalf of the plaintiff, that
it will be just
and fair to both parties for the court, to accept, for quantification
purposes, that it is equally likely that
M, pre-morbidly, would have
attained a degree. On the same basis, it was submitted on behalf of
the plaintiff that it will also
be fair to both parties for the court
to accept, for quantification purposes, that it is equally likely
that M, post-morbidly would
have been rendered unemployable. In line
with the actuarial quantification in Bundle C, page 56 and applying
the 20% pre-morbid
and 0% post-morbid contingencies, the net future
loss of earnings must be R5 253 118-00. In the vent of the court
adopting a middle
ground approach, half of this amount plus a
reasonable contingency for epilepsy must be awarded to the plaintiff.
[31]
Counsel for the defendant submitted that based on the defendant’s
expert witnesses, M, except for the R325 542-00 which
represent his
late entry into employment, will suffer no future loss of earnings as
his productivity in the future, though affected,
is not limited by
his post accident health conditions. However, as a compromised common
ground, the defendant will accept a net
future loss of earnings in
the amount of R1 312 297.00, allegedly based on applying the 30%
pre-morbid and 50% post-morbid contingencies.
[32]
In the circumstances I can do no better than award an arbitrary sum,
in fixing which I must try to steer a course between generosity
at
the expense of the defendant and niggardliness at the expense of M.
This being the approach, I must take into account the existing
undertakings and that general damages were fixed and awarded to the
plaintiff separately. Further, the court must guard against
any
overlapping, and a resulting duplication. On the facts of this matter
it is impossible to guess where exactly M will end up
educationally
and or work wise. Should his epilepsy be controllable in the future,
with luck and hard work he might pass grade
12, proceed to obtain a
degree and reach Paterson level D1 earning level. In other words, the
fortunes of life may be favourable
[10]
to him. However, there is no guarantee that this will happen. On the
other hand, should the epilepsy be uncontrollable, his intellectual
functioning might be advisedly affected, making it impossible for him
to achieve higher qualifications and or obtain a degree or
better
employment.
[33]
However, to predict that on the facts of this matter, he will not
pass grade 12 and or that he is rendered unemployable the
Sangoma
will be stretching the prediction too far. This view is myopic,
without any basis, and fails to take into account the mild
nature of
the injury, views of other experts on the impairments, recent
educational progress (including but not limited to the
recent
report), that with proper utilization of medication the headache and
epilepsy may be controlled thereby limiting M’s
challenges and
or impairments.
[34]
On the other hand, to say that M, except for the R325 542-00 which
represent his late entry into employment, will suffer no
future loss
of earnings as his productivity in the future, thought affected, is
not limited by his post accident health conditions,
as argued on
behalf to the defendant, one will be ignoring glaring evidence to the
contrary dealt with herein above.
[35]
In the post-accident scenario, it is my view that allowances must be
made for the possibility that M’s future academic
life as well
as his working life may be adversely affected by headaches,
epilepsy, anxiety and depression and/or associated
aliments. Further,
I am in agreement with the experts who opined that M would find
himself in future precluded from the following
types of work
environment which will expose him to flickering lights and or
Television screens. That certain sounds (such as loud
ringing, some
voices or certain music or monotonous noise, and etc) and sensations
may trigger his epilepsy. Further, that he may
not be suited for
occupations involving driving or the use of dangerous machinery,
working on elevated surface or in environments
placing him at risk of
burns and scalds. It is accordingly my view that a reasonable
contingency allowance for the epilepsy, headache,
and above
limitations is appropriate in the post-accident scenario. The late
entry into employment, epilepsy condition, post concussion
headaches, and tender age, remain significant factors in the
circumstances of this matter.
[36] Taking all the above
facts and circumstances into account, it is my view that an amount of
R2 000 000-00 (“Two Million
Rands”) ought to be awarded
to the plaintiff in respect of loss of earnings and earning capacity.
COSTS
[37] There are no
extraordinary circumstances that may dictate that this Court consider
a different costs order than the normal
one, which is, that costs
should follow the result.
ORDER
[38] In the result the
following order is made:
38.1 the defendant is
ordered to pay to the plaintiff an amount of R2 000 000-00 (Two
Million Rands), in respect of loss of earnings
and earning
capacity.
38.2 the defendant is
ordered to pay the costs of suit, including the costs of experts.
_____________
H.W
.
SIBUYI
Acting
Judge of the South Gauteng High Court, Johannesburg
CASE
NO
.
:
38339/2014
HEARD
ON
:
27 February to 1 March 2018
COUNSEL
FOR THE PLAINTIFF
:
Adv. Mjiba
ATTORNEYS
FOR PLAINTIFF
:
Nkosi Nkosana Inc.
COUNSEL
FOR THE DEFENDANT
:
Adv. Molojoa
ATTORNEYS
FOR THE DEFENDANT
:
Nozuko Nxusani Inc.
DATE
OF JUDGMENT
:
17 September 2018
[1]
Unreported
Case No 07/11453 handed down in the South Gauteng High Court on 30
March 2012 at p 3 thereof.
[2]
1967 (4) SA 527 (EC).
[3]
(05967/05)
[2006] ZAGPHC 261
delivered on 8 November 2006.
[4]
See
also Coopers SA (Pty) Ltd v Deutsche Gesellschaft fur
Sch
ä
dingsbekampfung
MBH
1976 (3) SA 352
(A) at 371G; Reckitt & Colman SA (Pty) Ltd v
S C Johnson & Son SA (Pty) Ltd
1993 (2) SA 307
(A) at 315E;
Holtzhauzen v Roodt
1997 (4) SA 766
(W) at 772I.
[5]
see
National Justice Compania Naviera SA v Prudential Assurance Co
Ltd1993 (2) Lloyds Reports 68.
[6]
2010 (5) SA 203 (WCC)
[7]
2001 (3) SA 1188 (SCA).
[8]
see
Southern Insurance Association Ltd v Bailey No.
[1984] 1 ALLSA 360
(A), at 368.
[9]
see
Bailey supra, at 368-9
[10]
In
dealing with the question of contingencies, WINDEYER, J, said in the
Australian case of
Bresatz
v
Przibilla
(1962)
36 A L J R 212
(H C A) at 213:
“
It
is a mistake to suppose that it necessarily involves a ‘scaling
down’. What it involves depends, not on arithmetic,
but on
considering what the future may have held for the particular
individual concerned . . . . . . . (The) generalisation that
there
must be a ‘scaling down’ for contingencies seems
mistaken. All ‘
contingencies
’
are not adverse: All ‘
vicissitudes’
are not harmful. A particular plaintiff might
have had prospects or chances of advancement and increasingly
remunerative employment.
Why count the possible buffets and ignore
the rewards of fortune? Each case depends upon its own facts. In
some it may seem that
the chance of good fortune might have balanced
or even out-weighed the risk of bad.”