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[2017] ZAGPPHC 345
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Mangolele obo L.N.M v Road Accident Fund (13758/13) [2017] ZAGPPHC 345 (1 March 2017)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
01/03/2017
CASE
NO: 13758/13
In
the matter between:
ADVOCATE
MOSUPI S MANGOLELE
obo
L. N.
M
.
Plaintiff
and
ROAD
ACCIDENT
F
UND
Defendant
JUDGMENT
TEFFO,
J
:
[1]
L. N. M.
("the minor child')
was knocked down by a
motor vehicle, a black Nissan bakkie with registration letters and
numbers [W...] there and then driven by
one Papi Bosega
("the
insured vehicle")
on 16 January 2010 at approximately
16h00 while she was a pedestrian at the time. The collision occurred
at or near Mamkele Street,
Watville, Benoni, Gauteng.
[2]
She sustained the following injuries:
Head
injury with multiple facial abrasions and lacerations; multiple soft
tissue injuries; shock and psychological trauma.
[3]
Advocate M S Mangolele instituted a claim against the Road
Accident Fund on behalf of the minor child in a representative
capacity
as a curator
ad
litem
for damages suffered as a result of the injuries sustained in the
collision based on the negligent driving of the insured vehicle.
[4]
The head of damages that is for determination is the future
loss of earnings or loss of earning capacity.
[5]
The minor child was born on […] 2005 and at the time of
the collision she was only 4 years and 2 months old. She was
attending
a creche.
[6]
The matter was argued on the basis of the medico-legal reports
compiled by both parties' experts. The following joint minutes formed
part of the parties' arguments and submissions:
6.1
Neurosurgeons (Prof P L Lekgwara and Dr Jaap Earl);
6.2
Educational Psychologists (Mr Matome Khumalo, Mr J Singh (JS) and Dr
Geeta
M Prag (GMP);
6.3
Clinical Psychologists (Ms Narropi Sewpershad and Ms Elfriede Tromp)
6.4
Industrial Psychologists (Ms Sandra Moses (SM), Ms Fungiwe Dlakavu
(FD)
and Dr W Pretorius (WP), Mrs A Matthee (AM);
6.5
Munro's actuarial calculations; and
6.6
Actuarial calculations by Alexander Forbes Financial Services.
[7]
In their joint minutes, the neurosurgeons agree that
pre-accident the minor child enjoyed good general physical health and
that
she sustained a mild traumatic brain injury (Grade 3 concussion)
as a result of the accident. As regards her post-accident status
Prof
Lekgwara opined that the minor child has some neuropsychological
problems which need to be assessed by a clinical psychologist.
Dr
Earl's view is that the minor child is not doing well at school but
whatever her marks show, it is not the result of this accident.
[8]
The clinical psychologists agree that pre-accident the minor
child had an uneventful birth and that developmental milestones had
been attained within normal limits up to the time of the accident.
She was never involved in any prior accidents and no prior injuries
were reported. They agree that post- accident the minor child
demonstrated significant neurocognitive difficulties that were
not in
keeping with her age-related expectations. They consider the deficits
to be consistent with a mild traumatic brain injury
(or concussion).
[9]
The following is noted in their joint minutes:
"5.
(c)
We agree recovery from
a
mild head injury can be
influenced by
a
number of factors, including accident-related
causes, family background, and the very young age at which she
sustained the head
injury, with
a
poor prognosis
suggested.
(d)
Thus, L.’s difficulties are likely to be
compounded by the reported arousal difficulties of the autonomic
system, headaches,
and poorly integrated psycho-social
development.
(e)
Psychologically, she presented with premorbid
vulnerability as
a
result of her social circumstances and
being abandoned by her biological father and virtually orphaned at
a
fairly young age following the death of her mother in
2012.
(f)
Collateral information from her sister suggests that
she is an aggressive child, she prefers to isolate herself, has
difficulty
in relating to her peers and authority figures and she has
a
low tolerance for frustration. This would be an indication
of changes in emotional and behavioural functioning, post-accident.
Such
changes are undoubtedly going to affect the quality of her
interpersonal relationships, her social functioning and her schooling
to
a
significant degree. Her emotional and behavioural
difficulties would need to be appropriately diagnosed and managed by
a
psychiatrist.
(g)
Agreed that the residual difficulties are considered of
a permanent
nature.
(i)
We defer to the Educational Psychologists' assessment
for detailed discussion and recommendations with regard to
appropriate placement
and necessary
intervention.
(j)
We defer to the opinion of an Industrial Psychologist
regarding pre- and post-accident employment potential and potential
loss of
earnings.
(k)
In addition to psychiatric intervention, agreed that L.
should receive psychotherapy from
a
Psychologist experienced
in
working
with children with deficits associated with traumatic brain injury."
[10]
The educational psychologists given her age at the time
of the accident, agreed there is no scholastic
history
for her pre-accident to compare to her post-accident functioning. Mr
Khumalo, who is also a remedial therapist, opined
that she
would have been able to obtain a Grade 12 level of education and
continue to further her studies either at a college or
university. JS
and GMP's views are that the family schooling history and employment
should be taken into account in order to arrive
at a reasoned
guideline in respect of the minor child's probable pre-accident
academic functioning. They took into account that
none of her
siblings completed a grade 12 level of education and the family's
socio-economic circumstances that caused her siblings'
learning
challenges. In their view, also considering Dr Earl's opinion that
she is not doing well at school but whatever her marks
show, is not
the result of this accident, she would have failed a grade or two
(like her siblings) and would have experienced learning
challenges in
her schooling career. She would have pre-accident
benefitted from intervention
and (giving
her the
benefit
of the doubt), she would have most probably completed grade 9 or 10
and subsequently have gained entrance to study at a
FET College (1st
scenario).
[11]
They also gave a second scenario that should the relevant experts
find that the minor child was significantly affected by the
accident
in respect of her health and cognitive functioning, then she would
have had the opportunity to complete at least a grade
11 level of
education (higher than her siblings) and would have benefitted
from attending a FET College and after completing
these courses, she
would have been able to seek employment.
[12]
According to Mr Khumalo the minor child's vocational prospects will
depend on her scholastic achievements. She is a candidate
for a
specialized remedial school and with remedial support she will
probably achieve a grade 11 level of education.
[13]
The plaintiff's industrial psychologists, SM and FD agree that based
on the above experts' joint minutes, the minor child has
been
compromised by the injuries sustained in the accident. Their view is
that pre-accident no reason existed for the minor
child not to
have been able to complete grade 12 and continuing further studies at
a tertiary level. They postulated two scenarios
for the minor child's
post-school career path with a matric and a further tertiary
qualification: According to them should the
minor child have achieved
a grade 12 qualification and not pursue tertiary education, she would
have entered the open labour market
at an unskilled level and with
training and development progressed to a team leader level at B3 and
later to a supervisory at a
C1 Paterson level by the age of 45 years.
Should she have proceeded to tertiary she would be able to enter the
labour market at
a higher semi-skilled level of B1 Paterson scale
progressing to a more senior supervisory level C4 Paterson level by
the age of
45 years. They further state in their joint minute that
the rate of progression is difficult to judge as that is dependent on
vacancies,
personality traits, the economy, etc. A reasonable
yardstick would be between 3-5 per level, thereafter receiving annual
inflationary increases until retirement age.
[14]
On the other hand the defendant's industrial psychologists who relied
on JS and GMP's opinions are of the view that considering
the
academic performance of her siblings, her mother's death, the fact
that her biological father left the family and the general
socio-economic circumstances of the family, the chances of her
qualifying for formal learning at a tertiary institution (like a
university or university of technology) maybe theoretically possible
and practically unlikely. This view is also supported by the
opinion
of N Sewpershad (the clinical psychologist) to the effect that
non-accident related factors thus impacted on the minor
child's
educational and work capacity.
[15]
They also postulated two scenarios which they support as follows:
Scenario
1: completed grade 9 or 10 or possibly at least a grade 11 (higher
than her siblings) and would have benefitted from attending
a FET
(Further Education and Training) College:
They
agree that she would have probably experienced two or three failures
before completing grade 9/10/11 between the age of 18
and 20. She
would then struggle to find permanent employment for the first five
years and would secure employment in the non-corporate
or informal
sector on a short contract or piece job basis with long periods of
unemployment. They placed her around the Median
for
Koch's 2016 unskilled worker scale
[R19 500 per annum] although they maintain that
her earnings
are likely to be less considering that she would probably not have
employment 12 months of the year. After five years
she would probably
secure more permanent type of employment, should she be able to
secure an opportunity for vocational directed
learning (at FET
College or similar). They state that it can be expected that her
earnings could grow from R56 000 in a more or
less straight line to
earn around the Koch 2016 value of R99 500 to R143 000 at age 45 as
earnings pinnacle. Inflationary increases
to retirement age of
between 63 and 65 years.
Scenario
2: Obtains a certificate NQF5 level of education:
If
it is accepted that she could have completed grade 12 at age 18 to
19, have been unemployed for one year searching for learning
and
employment opportunities and then secured a learnership opportunity.
Got training as a learner (18 to 24 months) learning equivalent
of a
NQF5 qualification as well as doing practical training at earnings of
between R3 500-R4 000 per month during that period.
Assuming that she
then secured employment in the corporate sector at a Paterson A2/3
job grade [between R7 772 and R9 004 per month
(50th Percentile Basic
- PE Corporate 2016)]. Her career would have grown in a straight line
to a Paterson B5/C1 job grade earning
between R225 474 and R256 864
per annum [50th Percentile Annual Basic Salary- PE Corporate 2016] by
the age of 45, earnings growth
with annual CPI adjustments until the
likely retirement age of between 63 and 65 years.
[16]
The defendant's industrial psychologists state that despite the minor
child's educational potential one also have to take into
account
other socio economic factors such as her home environment and
financial ability to afford further tertiary training,
as these could
limit the extent to which her educational potential is realized. In
their view due to the many uncertainties an
appropriate pre-accident
contingency should be applied. They also noted the difference in
opinion between the educational psychologists
and suggest that
an agreement should be reached regarding the minor child's pre- and
post accident educational potential.
[17]
Post-accident WP/AM agree that the minor child has been limited in
terms of her educational potential and will most likely
not reach her
earnings potential. As per the report of GMP she will require
remedial support. Their view is that she has been negatively
affected
from an educational perspective by the accident. Relying on the
opinion of Ms A Phasha (the occupational therapist) that
from a
physical point of
view,
the minor child will be able to engage
in her choice of employment but will however struggle with headache
during extreme weather
conditions (hot/cold), that due to her
reported cognitive, learning and psychological limitations, she will
most likely only be
able to perform work of an unskilled or
semi-skilled nature after completing school. It is however expected
that she will likely
have to work under supervision to ensure she
performs adequately, will likely struggle to manage stressful
situations and this
could ultimately impact her promotional
opportunities. The fact that her current communication and speech
difficulties would
likely affect her school as well
as work performance and have direct effect on her
self-esteem. According
to them and relying on N Sewpershad's opinion
that the minor child's below average cognitive ability is consistent
with her severe
head injury, she has been negatively affected as her
cognitive limitation could increase her risk to make mistakes if she
does
not work under supervision and her psychological limitations
(mental and behavioural disorders 10% WP) could affect her
relationships
with others as well as her work performance. Her work
performance and ability to compete for employment, retain employment
as well
as the ability to grow her career and earnings have been
severely limited.
[18]
In their view and also taking into account the conflicting opinions
of the educational psychologists, should the minor child
enter the
labour market with a remedial school education (comparable to a grade
10) she is likely to struggle between 2 to 3 years
to find
employment. She is likely to start doing
"contract/piece job"
work to gain some work experience and earn an income. As an
unskilled worker she is likely to earn between the lower quartile (R7
700 per annum) to the median (R19 500 per annum). They accept that 5
years after school she is likely to remain employed in the
non-corporate sector as an unskilled or lowly-semi-skilled worker.
They accept that her accident-related learning, neuropsychological
and psychological difficulties would limit her ability to grow her
earnings.
Scenario
3(a): Accept that from the age of 35 her earnings would likely
fluctuate between the 2016 values of R37 750 and R46 875
per annum)
during her career. Scenario 3(b): Taking into account GMP's opinion
that she would benefit from completing certificate
courses from FET
College, she would be able to learn some vocational skills. As a
semi-skilled worker she could grow her earnings
from the median of
the Koch, 2016 scale for semi-skilled workers to somewhere between
the median (R56 000 per annum) and upper
quartile value (R143
000 per annum). They opined that even in this scenario her earnings
growth will be limited considering her
reported accident-related
learning, psychological and neuropsychological limitations.
[19]
SM and FD, the plaintiff's industrial psychologists, are of the
opinion that should the minor child leave school with a grade
9 level
of education, her occupation choices in the open labour market will
become severely limited and she will struggle
to secure
employment in the open labour market due to the scarcity of the
sedentary type jobs for individuals who do not possess
relevant
qualifications. She will then remain unemployed after leaving school.
In their view her occupational choices, employability
and earning
potential in the open labour market have been adversely compromised
as a result of the injuries she sustained in the
accident. Without a
high level matric and further studies to obtain some form of
sedentary type of qualification, she is likely
to remain unemployed.
Such a possibility exists considering her current challenges.
[20]
In their opinion the minor child will not fit into the workplace on a
sustainable basis as her emotional and behavioural functioning
post-accident will further impact on her employability, even with
reasonable accommodation form of sympathetic employment. She
will
remain in lower level positions as her future promotional
opportunities will also be curtailed due to interpersonal challenges.
According to them the minor child suffers a loss of earnings which is
the difference between her pre- and post-accident earning
capacity.
[21]
WP/AM, the defendant's industrial psychologists accept that the minor
child has been limited from a psychological and neuropsychological
perspective (such as her speech and language difficulties as well as
her headaches). They also accept that she has been limited
in terms
of her work choices as she would probably have to work under
supervision and compete for such employment with her
neuropsychological
and psychological limitations. They note that
supervised employment is limited and due to her restrictions she
might have difficulty
to compete and secure such employment.
They accept that should she secure such employment, she would
probably have difficulty
to retain it due to her limitations, her
risk of unemployment and that her ability to grow her earnings has
been affected in this
regard. They proposed the application of
appropriate higher post-accident contingencies for the increased risk
that she will not
reach her postulated earnings. They recommended
that she should be compensated for the loss between the postulated
pre- and post-accident
career and earnings prospects (compare
scenarios 1 and 2 but for the accident) and scenario 3
having regard to the
accident and that an appropriate higher
post-accident contingency be applied to compensate her for the risk
for loss of earnings
due to increased risk of unemployment, decrease
in earning levels and the rate of earnings growth
as
a
result of the accident.
[22]
It was argued on behalf of the plaintiff that taking into account the
experts' opinions, scenario 1 as per Munru's actuarial
calculations
with the application of 25% contingency deduction on the award will
appropriately be a fair compensation for the minor
child's future
loss of earnings. It was submitted that according to Mr
Khumalo, the plaintiff's educational psychologist,
the minor child
would have passed matric pre-accident and furthered her studies.
Given her age at the time of the accident, there
were no school
reports to compare her school progress pre-accident with her post
accident progress. The experts had to deal
with probabilities. It
was submitted that the experts are agreed that the minor child
has been failing her grades post-accident,
the clinical psychologists
agree that the minor child's situation at the time of the accident
was vulnerable but it worsened as
a result of the accident. Counsel
for the plaintiff did not agree with the calculations as proposed and
recommended by the defendant's
experts. He submitted that it would be
unfair to compare the minor child's educational progression to that
of her siblings
and her career potential to that of her parents in
that children differ and the circumstances of the parents were
different then.
Currently there are support structures
available to assist learners to reach their highest educational
potential.
[23]
Counsel for the defendant submitted that given the conflicting
opinions of the parties' experts, neurosurgeons, educational
psychologists regarding the pre-accident situation of the minor
child, her socio-economic circumstances at the time, her
vulnerability
as a result of being abandoned by her biological father
shortly after the death of her mother and the accident, the fair
compensation
in this regard should be the difference between
scenarios 3 and 4. They also proposed the application of higher
appropriate pre-
and post contingencies because of the
uncertainties in the minor child's situation pre accident and
the increased risk
post-accident that she will not reach her
postulated earnings.
[24]
It is correct that as at the date of the collision, the minor child
was still at the creche and there were no school reports
available to
enable the educational psychologists to compare her educational
progress pre-accident to that post-accident. It is
important to note
that the clinical psychologists who are competent to comment on the
neurocognitive and neuropsychological effects/
sequelae
of the
injuries the minor child sustained as a result of the accident agree
that post-accident, she demonstrates significant neurocognitive
difficulties not keeping with her age-related expectations and they
consider these deficits to be consistent with a mild traumatic
brain
injury (or concussion). They agree that pre-accident the minor child
had a normal birth and no prior injuries or accidents
were reported.
They also noted that psychologically she presented with vulnerability
as a result of her social circumstances and
being abandoned by her
biological father and orphaned at a young age following her mother's
death. The neurosurgeons agree that
the minor child sustained a mild
brain injury as a result of the accident although Dr Earl who accepts
that she is not doing well
at school post-accident, is of the view
that whatever her marks show, it is not as a result of the accident.
[25]
Mr Khumalo, the educational psychologist and remedial
therapist for the plaintiff states in his report that
the minor
child was described as a healthy child pre-accident. No problems were
experienced with her at school or at home. He states
further that it
was reported to him that post-accident
she was a different child who developed memory
problems, became
forgetful, temperamental, short-tempered and irritable, started
isolating herself, assaulted other children
and experienced
headaches at least two episodes a week. Considering the different
opinions of the parties' Educational Psychologists,
I accept and note
that in order to arrive at a reasoned guideline in respect of the
minor child's probable pre-accident academic
functioning, her family
schooling history, employment, and socio-economic circumstances that
caused her siblings' learning challenges
should also be taken into
account. It should be borne in mind that these are not the only
factors. It is also commonly
accepted that children
achieve better than their parents, they are different and are also
not gifted the same. Taking into account
that there is nothing to
compare the minor child's school performance pre-accident to that
post-accident and the evidence presented
it is more realistic that
she could have attained a matric and not proceeded further after
matric. In my
view
the postulation by the plaintiffs
industrial psychologists, SM and FD, that should she have
obtained a matric and not pursue
tertiary education, she would have
entered the open labour market at an unskilled level and with
training and development progressed
to a team leader level at 83 and
later to a supervisory at C1 Paterson level by the
age of 45 years, accords
with the evidence. I agree given the
above non-related factors pre-accident that
the chances of her
qualifying for formal learning at a tertiary
institution like a university or university of technology would have
been practically
unlikely.
[26]
As regards her post-accident scenario both parties' industrial
psychologists are agreed given the evidence that the minor child
has
been limited in terms of her educational potential and will most
likely not reach her earnings potential. The plaintiff's industrial
psychologists' view is that she will not fit into the workplace on a
sustainable basis as her emotional and behavioural functioning
post-accident will further impact on her employability, even with
reasonable accommodation form of sympathetic employment. She
will
remain in lower level positions as her future promotional
opportunities will also be curtailed due to interpersonal challenges.
They maintain that she suffers a loss of earnings which is the
difference between her pre-and post accident earning capacity.
[27]
The defendant's industrial psychologists accept that supervised
employment is limited and that due to her restrictions, discussed
above, she will have difficulty to compete and secure such employment
and should she secure it, she will have difficulty in retaining
it.
They proposed a higher post accident contingency deduction.
[28]
Having considered the evidence as presented by the experts in their
medico-legal reports and their joint minutes, I am of the
view that
scenario 1, is a better scenario to compensate the plaintiff for the
loss suffered by the minor child. I am persuaded
that a higher
contingency fee deduction of 35% should be applied to the award
under the circumstances. I find that the amount
thereof will fairly
and appropriately compensate the plaintiff for the minor child's
future loss of earnings/loss of earning capacity
in this regard.
[29]
The award to be made is calculated as follows:
Future loss of income
R3 870 300
Less 35% contingency
R1354605
Total
R2 515
695
[30]
Accordingly I grant judgment in favour of the plaintiff against the
defendant as follows:
30.1
Payment of the amount of R2 515 695,00 for the minor child's future
loss of earnings/loss of earning capacity.
30.2
Interest on the said amount of R2 515 695,00 at the rate of 15,5% per
annum 14 days from date of judgment to date of final payment.
30.3
The defendant is further ordered to pay the plaintiff's costs on
the
High Court scale either as taxed or agreed, to date hereof such costs
to include the costs of counsel and quantifying and reservation
fees,
if any of the following experts:
30.3.1
Prof Lekgwara;
30.3.2
W M Khumalo;
30.3.3
Narropi Sewpershad;
30.3.4
Adelaide Phasa;
30.3.5
Sandra Moses;
30.3.6
Munro Forensic Actuaries.
___________________________________
M
J TEFFO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
COUNSEL
FOR THE PLAINTIFF
AC MALULEKA
INSTRUCTED
BY
MPHELA & ASSOCIATES
COUNSEL
FOR THE DEFENDANT P
TSHAVHUNGEZI
INSTRUCTED
BY
TSEBANE MOLABA ATTORNEYS
DATE
OF JUDGMENT
1 MARCH 2017