About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 910
|
|
Molemone v Road Accident Fund (33456/2012) [2016] ZAGPPHC 910 (19 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 33456/2012
19/10/2016
Reportable: No
Of interest to other judges: No
Revised.
In
the matter between
MOLEMONE
VICTORIA obo
ITUMELENG Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
MADIMA,
AJ
Introduction
1.
The plaintiff sues the defendant in her personal capacity as well as
in the stead of her son, ltumeleng ("the minor child"),
born on 20 June 2003. The plaintiff is not married to the minor
child's biological father. The plaintiff does not know his
whereabouts.
The minor child is being looked after by his maternal
grandparents in Tafelkop in Groblersdal while the plaintiff works in
Johannesburg.
2.
The minor child was hit by a motor vehicle as he was crossing Zambezi
Drive on 3 July 2009, when only six years old.
3.
In the particulars of claim, the plaintiff claims that the collision
was caused solely by the negligent driving of one, E.T Mosweu,
the
insured driver of the vehicle bearing registration numbers and
letters XHM 095 GP. The plaintiff alleges that the insured driver
was
negligent
inter alia
when he failed to keep a proper lookout,
did not take adequate steps to avoid the accident when he could have
done so, or failed
to keep the vehicle under proper control, he did
not apply the brakes timeously or give due regard to other road
users.
4.
It was further alleged that the minor child, as a result of the
negligence of the insured driver, sustained severe head injuries
which resulted
inter alia
in forgetfulness, poor school
performance and severe headaches. The minor child has thereby
suffered damages in respect of past
hospital and medical expenses of
R30 000.00. An estimate of future medical expenses in the. order of
R20 000.00 is also claimed
on behalf of the minor child.
5.
In addition to the above the amount of R70 000.00 is claimed for past
and future loss of earnings, general damages of R200 000.00
6.
The defendant filed a special plea which invoked the provisions of
section 17(1) of the Road Accident Fund Act, Act No 56 of 1996,
Regulation 3 and Regulation 3(3)(c), (d), 3(4) to (14). In its plea
the defendant denied that there was a collision, alternatively
that
the insured driver was not negligent in any of the manner alleged.
Instead the defendant alleged that it was the six-year-old
who was
negligent.
7.
The issues around the merits of this matter, general damages and
future medical expenses have become settled by the parties.
This
therefore means that I do not have to make any determination in that
regard. What is before me is a narrow point regarding
life expectancy
of the minor child and therefore the loss of his future earning
capacity.
8.
It is common cause that the minor child was in Grade 1 at the time of
the accident. There is however no record of the minor child's
academic report before the accident. It is therefore not possible to
can accurately determine what the premorbid academic potential
of the
minor child could have been.
9.
The minor child was examined by two Educational Psychologists in
order to determine the pre and post-accident educational potential.
The experts do not agree regarding the pre-accident potential of the
minor child. Dr L Kekana for the defendant testified that
he
personally visited the minor child's primary school in Groblersdal.
He interviewed one Mrs. M.O Rachabane who was the minor
child's Grade
R educator in 2008, as well as Mrs. S.M Sono, the Grade 1 educator.
10.
Mrs. M.O Rachabane's report stated that the minor child's "...school
work was average and he had average intelligence".
Mrs. Sana's
assessment of the minor child was the same as that of Mrs. Rachabane.
"...average and had average intelligence."
It is perhaps
important to state that Mrs. M.O Ratshabane assessed the minor child
and reported that the minor child concentrated
well when doing
something that interested him. His school work was average. He was
popular with peers. He learnt easily. He was
very much the same as
other pupils of the same age. He had an independent spirit. He was
creative. He was also anxious.
11.
Mrs. Sona as already stated above reported similar findings to those
of Mrs. M.O Ratshabane. She added that the minor child was
talkative.
12.
Dr Kekana also interviewed the following educators, namely, Mrs. M.O
Rachabane, the minor child's Grade R educator in 2008. Mrs.
N.L
Molapo, the minor child's Grade 1, English, Sepedi, Mathematics and
Life Skills educator in 2009. Mrs. M.S Morare, Ms P.M Mohlala,
Mr D.M
Ntuli, Mrs. M.E Mashilo and Mr LT Mabelane.
13.
Mrs. M.S Morare was the minor child's Grade 3 Sepedi, Mathematics,
English and Life Skills in 2011. Her report was that the minor
child
was
inter alia,
disorganized, easily distracted, poor
attention, poor memory, performing below potential, has low
intelligence, and importantly
that the minor child might benefit from
placement in a remedial school.
14.
Dr Kekana conducted a psychometric test on the minor child using the
Individual Scale for Northern Sotho speaking pupils. The minor
child's mother tongue is Northern Sotho. In his investigation Dr
Kekana found that the minor child was being looked after by his
grandparents at Tafelkop. His mother worked in Fourways, Johannesburg
in Gauteng Province. His conclusion in this regard was that
the minor
child was not being assisted adequately with regard to his studies.
This because of the lack of any academic qualifications
of the
grandparents. Dr Kekana also looked into the socio economic
circumstances of the grandparents which contributed to
the minor
child's learning difficulties.
15.
Dr Kekana observed that the plaintiff expert used a Scale for
Southern Sotho speaking pupils when the minor child was a Northern
Sotho speaker. This Dr Kekana said attributed to the wrong assessment
of the minor child.
16.
Of further importance are the documents that Dr Kekana looked at and
considered. These are reports by Dr Peter Kumbirai, an Orthopaedic
Surgeon, Dr Ntlopi Mogoru, hospital records from the Steve Biko
Academic Hospital and Dr B.A Okoli, a Neurosurgeon.
17.
Dr Kekana concluded his evidence thus
"If his above average
intellectual ability is taken into account as well as the performance
of his parents at school and looking
at various factors that might
determine the child's educational potential, including family members
(both maternal and paternal)
backgrounds, environmental,
socio-economic factors of the family, it is likely that before the
accident, ltumeleng could probably
pass Grade 12 and obtain an
ordinary Grade 12 pass and not admission to a higher certificate. The
trend now lately is that children
often achieve more than their
parent academically and vocationally. The education landscape has
since changed to support learners
so that most are able to complete
high school education."
18.
Mrs. Sepenyane testified on behalf of the plaintiff. She readily
admitted that she did not personally visit the minor child's school.
She also admitted that she did not have a face to face consultation
with the educators. Instead her evidence was that she relied
on a
questionnaire that she had sent to the educators at the minor child's
school. Mrs. Sepenyane admitted that she used a Scale
for Southern
Sotho speaking pupils with respect to the minor child despite the
fact that the minor child was a Sepedi speaker.
She testified that
there was no difference between the two languages.
19.
The response to one of the questions on the questionnaire referred to
above was that "comments on the learners scholastic
progress
from the time he/she was admitted to your school to present grade"
was the "...he was not performing well".
I bear in mind
that this response was not with regard to the pre accident situation
but post morbid. The experts have already admitted
that there were no
scholastic records of the minor child before the accident. The
educators could not explain to the experts why
this was so.
20.
I am afraid that the plaintiffs expert's testimony was not very
helpful. Most of the evidence was hearsay as she did not personally
interview the educators. Not only that, Mrs. Sepenyane utilized what
Dr Kekana described as the wrong Scale language in the intellectual
assessment test of the minor child. Dr Kekana testified that the
appropriate Scale ought to have been one in the Northern Sotho
language, and not Southern Sotho.
21.
In her report Mrs. Sepenyane stated that "...he started Grade 1
at the age·of 4 years and 6 months, which is two years
younger
than the norm." The minor child was retained in the same class
for a further year, and was still younger than his
peers. Mrs.
Sepenyane conceded that the pre-existing conditions could have
contributed to his poor performance. The accident just
added to the
worsening condition.
22.
Despite all of her findings in this regard Mrs. Sepenyane maintained
that the minor child, but for the accident, would still
have
completed Grade 12 and proceeded to tertiary studies, either a
Technikon or Technical College.
23.
The plaintiffs legal representative pointed me in the direction of an
almost similar matter where Dr Kekana was also an expert
witness for
the defendant, the case of M V Road Accident Fund (5617/11) (2014)
ZAGPPHC 414. In this case another minor of ltumeleng's
age suffered a
serious brain injury with
sequalae
identical to those of the
minor child.
24.
The minor child (M) failed grade 1 in 2007 pre-accident. Dr. Kekana's
assessment was that the child was of average intellectual
capacity
post-accident and had the accident not have occurred, the minor child
would have proceeded to obtain a Grade 12 qualification,
or a
certificate and attend College thereafter.
25.
In the instant matter Dr. Kekana has found that the minor child would
pass Matric but not qualify for College. He testified that
this is
based on his findings of the Individual Scale for Northern Sotho
speaking pupils where the minor child obtained a global
IQ of 110, a
verbal IQ of 103 and Performance IQ of 114. The minor child is of
average intelligence according to the IQ tests.
26.
Mrs. Sepenyane's findings are that the minor child would pass Matric
and go to college. However, Mrs. Sepenyane does not offer
any
scientific evidence to back up her conclusions.
27.
The only question I need to answer given the evidence of the two
experts and their respective reports is whether or not the minor
child would make Matric with or without College.
28.
The two experts agree that the minor child would make Matric.
29.
The plaintiff calculates the minor child's future loss of earnings as
depicted in the Table below:
Details
Pre-Accident
Post- Accident
Total
Gross Loss
R6 127 100
R424 600
Contingency
R1 531 775(25%)
R169 840.00(40%)
Subtotal
R4 595 325.00
R254 760.00
Total loss
R4 340 565.00
30.
I must state that Dr Kekana is a credible witness. Isay this because
he personally visited the minor child's school. He consulted
with the
educators. With regard to Mrs. Sephenyane the obverse is true. She
did not visit the school or educators. She relied on
a questionnaire.
The answers emanating therefrom are not very helpful. I however am
not saying that they are totally without merit.
There is some value
to her evidence.
31.
The Industrial Psychologists secured by the plaintiff and defendant
differ in their findings as well. The expert for the plaintiff
opines
that the career ceiling of the minor child would be at Paterson Level
C1 (R285 000.00 per annum). The defendant's expert
states that the
minor child would only achieve a Paterson Level B3 and B4 (R162
000.00 per annum to R183 000.00 per annum).
32.
In Bailey v Southern Insurance
1984 (1) SA 98
(A) the Court applied a
25% contingency for the claim. The defendant accepts a contingency of
20% for the pre morbid income
and 25% for the post-morbid. The
total payable to the plaintiff acceptable to the defendant is no more
than R1 884 910.40 if one
accepts the defendant's pre and post-morbid
contingencies.
33.
Dr Kekana concluded further that the minor child is being looked
after by his maternal grandparents. Because they did not go
far
academically, it seems that the minor child is not being assisted
with his schooling. This accounts for his poor scholastic
performance.
34.
Dr Kekana states further in his report that the minor child would
require ongoing psychotherapy for a period of two years from
a
psychologist to address his emotional trauma arising from the
accident. He should also be referred to an Educational Psychologist,
and remedial Therapist to assist with language and mathematical
skills so as to be able to cope with post Matric college studies.
35.
There is little doubt that the minor child's life has been affected
adversely because of the accident. I have already stated
above that
because of a lack of scholastic records pre accident, it is
impossible to can accurately determine the minor child's
academic
potential going forward.
36.
Equally is the fact that had the accident not happened, the minor
child stood a chance to make something of his life. I do not
subscribe to the notion that the minor child would not have gone to
college because his parents did not go beyond Matric. Dr Kekana
agrees that it is indeed quiet common that children surpass the
educational levels of their parents.
37.
I therefore proceed on the assumption that the minor child would have
matriculated and entered the open labour market in 2023
and earned a
basic salary in the median quartile between the Paterson levels A3
and B1. This translates to about R104 000.00 per
annum to R112
000.00. the minor child would have reached his career ceiling at the
age of 43 earning a total package salary of
R162 000.00 per annum to
R183 000.00. He would retire at age 65.
38.
The other evidence in this regard puts the minor child in the R285
000.00 per annum bracket using the same salary scales. Like
I stated
earlier, it is not possible to with precision determine the exact
extent of what could have been.
39.
The total full and final amount that the defendant is amenable to
compensating the minor child is therefore in the amount of
R1 884
910.40. This is calculated and depicted as per the Table below.
Past Loss
Future Loss
Total
Uninjured income 20%
R 0.00
R2 594 009.33
R2 594 009.33
Injured income
R 0.00
R253 729.42
R253 729.42
Loss
R 0.00
R2 340 279.91
R2 340 279.91
Impact of contingency
R 0.00
-R455 359.51
-R455 369.51
Loss net of contingencies
R 0.00
R1 884 910.40
R1 884 910.40
Impact of cap
R 0.00
R 0.00
R 0.00
Loss net of cap
R 0.00
R1 884 910.40
R1 884 910.40
40.
I accept the defendant's calculation of what, in its view is a fair
tender. This therefore means that my starting point in the
determination of a fair compensation for the minor child's troubles
is as tendered by the defendant in the amount of R1 884 910.40.
41.
The plaintiff's computation of R4 340 565.00 appears to be a lot more
on the high side. I am more inclined to award damages
somewhere
between. I have stated above that the lack of pre-morbid scholastic
records of the minor child makes it difficult to
determine future
academic potential, and thereby his earning potential. I have taken
into account what the two experts for the
plaintiff and the defendant
have tendered as their evidence. Both experts were very helpful to
the court. I am very indebted to
them for their professionalism and
dignified manner in which they conducted themselves.
42.
No amount of money will unring the bell for the minor child. The life
he would have had, can never be.
43.
Accordingly, I make the following order:
(i) The defendant shall pay the
plaintiff the sum of R2,600 000.00.
(ii) The defendant shall pay interest
on the above amount at 9.25% from a date fourteen (14) days after
judgment to the date of
final payment.
(iii) The defendant shall pay the
plaintiff the taxed or agreed party and party costs including the
costs of the expert(s).
__________________________
TS
MADIMA: AJ
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the Plaintiff:
Adv JHP Hattingh
Instructed
by:
Fourie Fismer INC
Tel:
012 362 1681
E-Mail:
louis@fsf.co.za
On
behalf of the Defendant:
Adv AK Maluleka
Instructed
by:
Baloyi Attorneys
E-Mail
kwkmphahlele@gmail.com
Dates
of Hearing:
24 May 2016 and 19 July 2016
Date
of Judgment:
19 October 2016