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[2016] ZAGPPHC 563
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V Obo V v Road Accident Fund (65063/12) [2016] ZAGPPHC 563 (12 May 2016)
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Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No. 65063/12
DATE:
12 MAY 2016
In
the matter between:
V
,
N L
Obo
V, L
P
.........................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI
J:
[1]The
plaintiff, in her capacity as curator ad
litem, acts on behalf
of L Prudence V ("L
"), a minor.
Plaintiff instituted a claim for damages against the defendant for
loss of earning capacity and general damages
against the defendant
("the RAF").
[2]
The
cl
aim arises from injuries L
sustained
on 21 May 2012 at or near Temba, when as a pedestrian, she was
knocked down by a motor vehicle whose registration number
is unknown
to the plaintiff. As a
result of the collision, L
susta
ined a fractured fibula. L
was
taken by ambulance to Jubilee Hospital for treatment. She was
discharged on the same day.
[3]In
the particulars of claim, the plaintiff seeks the following as
damages:
3.1
past medical expenses - R 1000.00
3.2
future medical expenses - R 200 000.00
3.3
future loss of earnings - R 600 000.00
3.4
general damages - R 400 000.00
[4]In
its plea the defendant , inter alia, deni
es
that L
suffered a serious injury as contemplated in section 17(1A) of the
Road Accident Fund Act
[1]
("the Act") and that she is entitled to be compensated for
non-pecuniary loss in the form of general damages.
[5]
On
29 November 2013, the parties reached a settlement with regard to the
merits on a 75%/25% basis in favour of the plaintiff. For
future
medical expenses, the defendant will furnish the plaintiff with an
undertaking in terms of section 17(4)(a) of the Act.
[6]
The
parties also agreed that due to the findings of th
e
defendant's panel that L
did not pass the 30%
threshold of the narrative test and the determination that she has
not sustained a serious injury qualifying
her for general damages,
the issue of general damages should be postponed
sine
die.
The plaintiff intends
appealing the panel's finding at the Appeal Tribunal.
[7]
Furthermore,
the parties agreed that the plaintiff's discovered documents will,
without further proof, serve as evidence of what
they purport to be
subject thereto that only document(s) discovered that were identified
and referred to in evidence by a witness
may be used in argument.
[8]
The
defendant had no overlapping expert reports except that of an
orthopaedic surgeon, Dr Van den Bout, and admitted the plaintiff's
expert reports.
[9]
The
only i
ssue to be determined is L
's
future loss of earning capacity due to the injuries sustained.
[10]
At th
e time of the collision, L
was 14 years old and in grade 8.
[11]
Ms Tabisa Caga, an occupational
t
herapist, consulted with L
on 18 June
2014.
Her assessment was that L
suffered
no major cognitive problems as a result of the collision except for
decreased numerical skill. Ms Caga testified that
due to
the
injuries sustained, L
would in future not cope
with manual activities in that she will not be able to stand for long
periods due to the pain experienced
in her right knee and ankle and
potential further pain if she develops osteoarthritis. Ms Cag
a
is of the opinion that L
was best suited for
sedentary and light work. Ms Caga f
urther testified that if L
,
who is currently in grade 11, does not pass grade 12, her employment
options will be limited.
[12]
The next witness called by the plaintiff
was Dr Imran Khan, an orthopaedic su
rgeon who consulted with L
on 03 May 2013
. Dr Khan testified that L
sustained a fracture to her right ankle involving both malleoli. A
plaster cast was applied to her right leg
. Dr Khan testified
that L
complained about pain in her right knee,
which becomes painful when she walks long distances or s
tands
for a long period. L
also complained that her
right ankle is occasionally painful. Dr Kha
n further testified
that L
's x-rays indicate that her right ankle
has an old fracture to the medial malleolus that has not united. That
the right ankle displays
a slight deformity. He testified that in his
opinion, the typ
e of injury sustained by L
,
would
not re-model even though L
was
still a child. Further, in Dr Khan's opinion, as a result of the
injury sustained,
L
will develop
osteoarthritis of the right ankle and will suffer pain. In Dr Khan's
opinion, as
a result of her injury, L
has a 10% whole person impairment.
[13]
The next witness called by the plaintiff
was Ms Esther Sempane, an industrial psycholog
ist, who
consulted with L
on 09 September 2009. She
testified that L
has a residual working
capacity deficiency and will in future have problems with selection
of employment. Ms Sempane was of the
opinion th
at without her
injuries, L
would have entered the job market
with a matric, at a minimum wage of R3 500 to R4 000 per month. In Ms
Sempane'
s opinion, with a matric L
could
eventually have reached career ceiling B3/B4 on the Paterson scale in
the formal sector. Ms Sempane testified
that, with her
injuries, L
would struggle getting a job even
if she attained grade 12 in that she would be competing with
physically able-bodied persons as
a result of the pain in her knee
and ankle.
[14]
The defendant closed its case without
leading any evidence.
[15]
With regard to L
's future loss of
earning capacity, the uncontroverted evidence of the occupational
therapist, the orthopaedic surgeon and the industr
ial
psychologist is that L
, as a result of the
injury sustained, has suffered loss of earning capacity. Dr Khan and
Ms Caga are in agreement that, with the
sequelae
of her injury, L
will not be able to cope with
work of a physical nature in that she cannot walk long distances and
cannot stand for long periods.
[16]
The following facts are common cause:
16.1
that collision occurred on 21 May 2012.
16.2
that the injuries L
sustained in the
collision were treated in hospital and she was discharged on the same
day.
16.3
that L
sustained a fracture to the
fibula.
16.4
That as result of the injury sus
tained,
L
has problems standing for long periods and
that, as per the occupatio
nal therapist's opinion, L
will be best suited to a sedentary type of job. However, there was
agreement bet
ween the experts that if L
does not pass her matric, she would find it difficult to find
employment in the formal sector.
[17]
An actuarial report of Mr Gerard
Jacobson, dated 22 June 2015 was, by agreement, handed in. In the
report, a contingency deduction
of 15% in respect of the pre-morbid
and 25% in respect of post morbid scenarios was made. The resultant
calculation of loss of
income was R279 130.00. The calculation was
based on the supposition made by the indu
strial psychologist
that L
's entry level income into the job market
would have been R4 000.00
per month with L
reaching a career ceiling at 45 years of age at the B3/B4 Patterson
level.
[18]
There
is no mathematical process of determining what is an appropriate
contingency percentage to be employed at any given instant.
It
depends on the individual circumstances of each case
[2]
.
[19]
I have taken in
to account the
fact that L
, in spite of her injury, will be
able to work until retirement at the age of 65. I am of th
e
view, having regard to L
's age and the limited
options she would have in the job market if she does not pass grade
12, and despite Mr Badenhorst's suggestion
that a higher contingency
differential should be applied, that the contingency deductions
employed by Mr Jacobson are fair and
reasonable. I am therefore of
the view that the calculated amount for future loss of income of R279
130.00 is fair and reasonable.
[20]
Costs must follow the event. The
plaintiff is also entitled to the costs of employing counsel and to
recover the costs attendant
to the reports, the preparation and
reservation fees, if any, of the following experts: Dr Imran Khan; Ms
Tabisa Caga; and Ms Esther
Sempane.
[21]
Accordingly the following order is made:
1.
That the defendant is to pay the
plaintiff an amount of R279 130.00 as future loss of income.
2.
That the defendant pays interest at
15.5% per annum on the amount of R279 130.00 from the date of this
order.
3.
That the defendant is directed to
furnish an undertaking in terms of
Section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
.
4.
That the defendant to pay the
plaintiff's costs as well as costs incurred to obtain the report and
preparation and attendance in
court (where indicated) of the
following experts:
4.1
Dr Imran Khan;
4.2
Ms Tabisa Caga; and
4.3
Ms Esther Sempane.
NP
MN&QIBISA-THUSI Judge of the High Court
Appearances:
For
the Plaintiff: Adv Badenhorst
Instructed
by: Lekalakala Attorneys
For
the Defendant: Adv Sokhulu
Instructed
by: Dyason Incorporated
[1]
Act.56 of 1996.
[2]
_De
Jongh v Du Pisanie N.
0
2005 (5) SA 457
(SCA) at 472.