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[2015] ZAGPPHC 65
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F.Z.P obo J.H v Road Accident Fund (54766/12) [2015] ZAGPPHC 65 (6 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No: 54766/12
Date: 6 February
2015
Not reportable
Not of interest to
other judges
In the matter
between:
F[...] Z[...]
P[...] & OBO J[...]
H[...]
......................................................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
...............................................................................................................
Defendant
JUDGMENT
VAN DER
WESTHUIZEN, AJ
[1] On 2 September
2010 at or near Eloff, a collision occurred between two vehicles, one
being driven by the plaintiff and in which
her daughter, J[...]
H[...] (H[...]), was a passenger. Both were injured in the collision.
At the time of the collision, the daughter
was 8 years old.
[2] The plaintiff
instituted action against the Road Accident Fund for compensation in
respect of the damages and injuries suffered
by the plaintiff
personally and on behalf of her minor daughter, H[...], in respect of
those suffered by H[...].
[3] The matter was
set down for trial on 28 January 2015.
[4] Prior to the
hearing of the matter, the defendant conceded the merits on a 70/30%
basis in favour of the plaintiff.
[5] In respect of
the plaintiffs claim in her personal capacity the claims were settled
and the parties agreed upon the apportionment
of the various rubrics,
the issue of costs and ancillary relief and collated in a draft order
that I shall incorporate in the order
I propose to make.
[6]
With regard to the plaintiffs claim on behalf of the minor daughter,
the only issue in dispute related to the alleged future
loss of
earning capacity on the part of the minor daughter as a result of the
sequelae
of
the accident. The dispute is limited to whether in fact H[...]
suffered a loss in her earning capacity in future due to the
sequelae
resulting
from the accident.
[7] The balance of
the plaintiffs claims in respect of her minor daughter were settled
between the parties and contained in a draft
order prepared by the
parties and which I shall incorporate in the order that I propose to
make.
[8] It is common
cause that the defendant had submitted no independent expert reports
and had accepted those submitted by the plaintiff
in respect of the
minor without qualification.
[9] At the trial the
plaintiff, on the issue in dispute, led the evidence of two expert
witnesses, that of Mr Leon Roper, a clinical
psychologist who
specialises in neuropsychological effects due to trauma, and Dr
Yvette Wilms, an Industrial Psychologist. Both
had submitted clinical
reports prior to the hearing of the trial. The defendant admitted the
reports by Mr Roper and Dr Wilms without
qualification.
[10] The plaintiff
submitted further clinical reports prepared by other experts in their
respective fields and the defendant also
admitted those reports
without qualification. All the aforementioned reports were contained
in a bundle handed in as Exhibit B.
Both plaintiff and defendant
referred to reports by other experts as contained in Exhibit B and in
particular those of:
(a) Dr Anton H van
den Bout, an orthopaedic Surgeon (dated 27 September 2012);
(b) Dr Piet
Engelbrecht, an Orthopaedic Surgeon (dated 5 November 2014);
(c) Susan Verhoef,
an Occupational Therapist (dated 24 November 2014);
(d) Madelien Mills,
an Educational Therapist (dated 3 December 2014).
[11] The plaintiff
also relied on an actuarial report prepared by Human & Morris
Actuaries dated 14 January 2015. In argument
the defendant’s
counsel referred to the actuarial report in respect of the
defendant’s alternative defence, namely
that relating to the
monetary value, should the plaintiff succeed in proving the claim
relating to the issue in dispute.
[12] The defendant
tendered no independent expert reports in evidence, nor did it lead
any evidence of expert witnesses in support
of its contentions. The
defendant was content on relying on the reports of the expert
witnesses submitted by the plaintiff and
the cross-examination of Mr
Roper and Dr Wilms. The defendant closed its case without leading any
evidence.
[13]
When the reports mentioned above are considered, a golden thread runs
through each of those reports, namely, that H[...] suffered
and
continues to suffer
sequelae
of
the accident that relates particularly to post-traumatic stress
symptoms which impact negatively on the minor’s functioning
interpersonal and scholastical.
[14]
The plaintiff called Mr Roper, a clinical psychologist. He assessed
H[...] approximately four years after the accident and
prepared a
report. He confirmed his report. In his evidence in court, Mr Roper
expanded on his report and explained that due to
the accident,
certain
sequelae
presented
that could have a negative impact upon the future earning capacity of
H[...].
[15] Mr Roper
testified that after the accident, H[...] suffered full-blown
post-traumatic stress disorder of which some symptoms
abated over
time, whilst other symptoms remained. In this regard Mr Roper
testified that the headaches that H[...] continues to
suffer since
the accident cause severe discomfort resulting in H[...] requesting
leave from the school to return home. Mr Roper
testified that such
severe physical discomfort thus sustains to some extent the
post-traumatic symptoms. Mr Roper further testified
that as a result
of the accident, H[...] suffers from anxiety, increased levels of
irritability and hypervigilance in respect of
her vulnerability
whenever travelling in a motor vehicle or when a situation arises
that might cause her physical harm.
[16]
At the time of assessment of H[...], Mr Roper testified that she
suffered from
subsyndromal
Posttraumatic Stress symptoms
as
evidenced by the admitted symptoms of: avoidance, intrusion and
increased arousal, all relating to the documented anxiety and
hypervigilance, the latter especially relating to injury and
travelling in a motor vehicle.
[17] Mr Roper
further testified that a neuropsychological assessment of H[...] was
undertaken which revealed neuropsychological
deficits such as
fluctuating attention abilities and verbal and visual memory
difficulties. The neuropsychological deficits that
presented leads to
a reasonable conclusion that H[...] has post-morbid been left in a
psychological more vulnerable state than
pre-morbid. Mr Roper pointed
out that although H[...] presented an intact self-esteem, consistent
negative feedback resulted in
increased levels of irritability and
aggressive behaviour and could over the long term negatively impact
upon her self-esteem and
interpersonal functioning.
[18] Mr Roper
concluded that all the aforementioned factors would in the work place
require more effort on the part of H[...] that
would inevitably
result in fatigue and hence affect motivation if constantly exposed
thereto.
[19]
None of the aforesaid evidence by Mr Roper was challenged. However,
during cross-examination it was put to Mr Roper that in
the reports
it was stated that pre-morbid, H[...] suffered psychological
disability and vulnerability due to her mother being deaf.
Mr Roper
testified, that being correct, the
sequelae
of
the accident would have exacerbated those disabilities.
[20]
The next witness called by the plaintiff was Dr Wilms, an Industrial
Psychologist. Dr Wilms assessed H[...] during October
2014,
approximately 4 years after the accident and prepared a report. She
confirmed her report and elaborated thereon. Dr Wilms
testified that
she had personally conducted the assessment interview founding the
report and had co-signed the report together
with a Kobus Prinsloo.
The assessment was conducted specifically with a view to determine
the extent and impact of the accident
and the resulting
sequelae
on
H[...]’s future earning capacity in respect of pre-morbid and
post-morbid employability and earning capacity, bearing in
mind that
H[...] is still a scholar and not yet employed.
[21] Although Dr
Wilms’s report refers to two scenarios, a first scenario that
is a probable one and a second scenario that
is a possible one, the
plaintiff relies specifically on the first scenario only, i.e. the
one indicated by Dr Wilms as the more
probable one.
[22] Dr Wilms
referred to the report by Ms Mills, an Educational Therapist and
agreed that both pre-morbid and post-morbid H[...]
was still able to
progress at school satisfactorily and obtain a Grade 12 Certificate
with exemption for further studies. Dr Wilms
further testified that
although H[...], pre-morbid and post-morbid, could obtain an NQF 7
level qualification the more probable
scenario would be that H[...],
pre-morbid and post-morbid, could obtain an NQF 6 level
qualification.
[23]
Due to the accident
sequelae,
Dr
Wilms testified that H[...] would suffer some diminished personal
productivity that can negatively impact on her scholastic and
future
career performance. These would translate into H[...] having to make
an extra effort to compete with her peers resulting
in greater
fatigue and thus affecting motivation. Dr Wilms testified that the
latter having a direct influence on the possible
promotion that would
require travelling in a motor vehicle.
[24] As a
consequence, Dr Wilms proposed that a contingency that is “higher”
than the normal pre-morbid contingency
deduction be applied in order
to account for the several difficulties H[...] may face in reaching
her full potential. Accordingly,
Dr Wilms was of the view that any
loss in future earning capacity on the part of H[...] should be
addressed by way of a higher
post-morbid contingency.
[25] In
cross-examination Dr Wilms was referred to paragraphs 10.2.1 and
10.2.2 of her report. These paragraphs read as follows:
“
10.1.1
Past Loss of Earnings
None.
H[...] was a scholar at the time of the accident.
10.2.2 Future
Loss of Earnings
None.
Any future loss of earnings suffered by H[...] as a result of the
accident in question should be addressed by way of a higher
post
morbid
contingency deduction (see point 9.3.2)”
[26] It was put by
defendant’s counsel to Dr Wilms that the word “none”
in paragraph 10.2.2 was an acknowledgement
that H[...] suffered no
future loss of earnings and hence no loss of future earning capacity.
Dr Wilms explained that in context,
the first sentence related to a
direct loss, whilst the second sentence related to a loss in the
future earning capacity and in
that context there is a loss in the
future earning capacity.
[27]
In respect of the latter, it is trite that such was a separate and
distinct rubric to found a claim separate from that of “general
damages”. See in this regard the unreported judgment of
Botha
v Road Accident Fund 2014 JDR
2357
(GJ).
[28] Counsel for the
plaintiff submitted that the fair percentage value in determining the
loss in future earning capacity would
amount to five percent based
upon the reports by Dr van den Bout who suggested between 2% to 10 %
and Mr Roper who suggested a
5%.
[29] In response
thereto, counsel for the defendant submitted that H[...] had suffered
no loss in future earning capacity with reference
to paragraph 10.2.2
of the report of Dr Wilms, and hence that the plaintiff has failed to
discharge the onus in respect of the
issue in dispute.
[30]
In this regard, counsel for the defendant referred to the report by
the Occupational Therapist, Ms Verhoef. The particular
passage that
was referred to, dealt with the report by Dr Engelbrecht and in
particular his conclusion where it was stated that
H[...] “
should
be able to complete schooling and join the open market normally, work
until normal retirement age. ”
[31]
Counsel for the defendant further relied upon the report by Dr
Engelbrecht. The passage referred to by counsel in that re0<fir
contained a similar statement to that of Dr Wilms.
[32] The defendant’s
counsel further relied upon Ms Verhoefs concluding summary in her
report in respect of the rubric “Loss
of Income” in
support of his aforementioned submission. Counsel for the defendant
omitted to refer to the last paragraph
under this rubric which reads,
“
Dr.
L. Roper indicated that these symptoms could negatively impact on her
interpersonal and scholastic functioning. The Writer defers
to the
relevant experts regarding the full impact of the above mentioned
symptoms.”
[33]
It is trite that when interpreting a document, whether a statute, or
a contract or other document as in this case a report,
the contextual
approach should be followed. See in this regard
Fundtrust
(Pty) Ltd (In Liquidation)
2003(1)
SA 155 (SCA) at 157G.
[34]
It follows that the aforesaid submission by counsel is wrong. Dr
Engelbrecht dealt in the passages referred to with H[...]’s
physical ability, taking into account her orthopaedic injuries, to
complete her schooling and joining the open market. Dr Engelbrect
and
by parity of reasoning, Ms Verhoef, was not in those passages
commenting on the psychological ability of H[...] to compete
with her
peers in future taking into consideration the admitted
sequelae
of
the accident. Dr Engelbrecht in fact, in respect of her psychological
sequelae,
deferred
to other relevant experts. Furthermore, when Ms Verhoefs concluding
paragraph is read in context of the whole paragraph
under the rubric
“Loss of Income”, it is clear that the symptoms listed by
Mr Roper could negatively impact on H[...]’s
interpersonal and
scholastic functioning.
[35] The reports by
the various experts submitted by the plaintiff were admitted in their
entirety without qualification and the
defendant cannot isolate
certain passages that suit it and rely thereupon out ot context of
the whole report.
[36] It is clear
from the reports and the evidence of Mr Roper and Dr Wilms that
H[...]’s future earning capacity has been
compromised due to
the accident.
[37]
Counsel for defendant submitted that should the court find that the
plaintiff had proven that H[...] suffered a future loss
of earning
capacity due to the
sequelae
of
the accident, then the defendant’s alternative defence was that
a fair and reasonable percentage to be applied in respect
of that
contingency would be 2,5%.
[38] I am of the
view that the 5% proposed by counsel for the plaintiff is closer to
the mark. Accordingly, the damages suffered
in respect of the future
earning capacity of H[...] due to the accident amount to R256 995.00
[39]
It follows that the plaintiff has proven that H[...] has, due to the
accident and the consequent
sequelae
dealt
with above, suffered a loss in her future earning capacity.
[40] Accordingly, I
grant the following:
Plaintiffs claim in
her personal capacity:
(a) An order in
terms of the draft marked “ZFP” agreed upon and prepared
by the parties;
Plaintiffs claim in
respect of the minor child:
(b) An order in
terms of the draft marked “ZFH” agreed upon and prepared
by the parties and as completed in respect
of the amount in paragraph
1 thereof.
C J VAN DER
WESTHUIZEN
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION
On behalf of
Plaintiff: R C De Alcantara
Instructed by:
Savage Jooste & Adams Inc
On behalf of
Defendant: F Matika
Instructed by: Tau
Phalane Inc.
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO. 54766/2012
In the matter
between:
Z.F[...] P[...] &
obo J.H.
….................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
.............................................................................................
DEFENDANT
DRAFT COURT ORDER
BY
AGREEMENT
between the parties in respect of
Z.F[...]
:
1.
The Defendant is ordered to pay an amount of
R1
933.00 (ONE THOUSAND NINE HUNDRED & THIRTY THREE RAND
)
which
amount shall be paid within 14 days to the credit of the trust
account of the Plaintiff’s Attorneys of record, Savage
Jooste
& Adams Inc, Pretoria, whose trust account details are as
follows:
Nedbank name: NEDCOR
- ARCADIA
Account type: Trust
account
Branch code:
16-33-45-07
Account no: [...]
REF: MR HAYES/RB478
2.
The Defendant is ordered to furnish the Plaintiff with an Undertaking
in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, No 56 of
1996
,
limited to
70%
,
to compensate Plaintiff for the cost of future accommodation in a
hospital or nursing home, or treatment of, or rendering of a
service,
or supplying of goods
(as
per the expert reports listed in par 3.2 below)
,
to Plaintiff resulting from injuries sustained by her as a result of
an accident that occurred on the 2
nd
of September 2010;
3. 3.1 The Defendant
further tenders, the Plaintiffs taxed or agreed party and party costs
of the action, on the High Court scale,
including costs up until and
including 28 January 2015, and the costs of making this Order an
Order of Court, including the reasonable
costs of one consultation
with Plaintiff to consider this offer, the costs incurred to accept
this offer and to obtain payment
of the amount.
3.2 The costs will
include the costs of the following expert reports, addendum reports
{if any) and joint minutes (if any), and
the preparation fees (if
any), as the Taxing Master may, upon taxation, determine the
following:
3.2.1 Dr Liebenberg,
Orthopaedic Surgeon, and Radiologist;
3.2.2 Susan Verhoef,
Occupational Therapist;
3.2.3 Kobus
Prinsloo, Industrial Psychologist;
3.2.4 Dr Naidoo,
Psychiatrist;
3.2.5 Leon Roper,
Clinical Psychologist;
3.2.6 Dr van den
Bout, Orthopaedic Surgeon, and Radiologist (in respect of the RAF4).
3.3 The costs
consequent upon the employment of counsel, including the costs of
attending the pre-trial conference, excluding appearance
fee.
3.4 The costs of
attending the pre-trial conferences.
3.5 The reasonable
travelling costs for the client to attend all medico-legal
appointment.
4. No interest will
be payable on the capital sum, provided that payment is made 14 days
after the Court Order. Should payment not
be made timeously, the
Defendant will pay interest at the rate of 9% per annum from due date
to date of payment.
5. The party and
party costs are payable within 14 days of date of
settlement/taxation, whereafter interest will be charged at 9%
from
the aforementioned date to date of payment.
6. Following
agreement on or taxation of the costs, the Plaintiff shall allow the
Defendant fourteen (14) Court days after the allocator
has been made
available to the Defendant’s Attorneys, to make payment of the
taxed or agreed party and party costs, whereafter
interest will be
charged at 9% per annum from date of the stamped allocator to date of
payment.
BY ORDER
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO. 54766/2012
In the matter
between:
Z.F[...] P[...]
& obo J.H.
…..............................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
.........................................................
DEFENDANT
DRAFT COURT ORDER
AFTER
HAVING HEARD COUNSEL in respect of
J.H.
F[...]
:
1.
The Defendant is ordered to pay an amount of R 256 995.00 (Two
Hundred and fifty six thousand on nine hundred and ninety five
rand)
the which amount shall be paid within 14 days to the credit of the
trust account of the Plaintiff’s Attorneys of record,
Savage
Jooste & Adams Inc, Pretoria, whose trust account details
are as follows:
Nedbank name: NEDCOR
- ARCADIA
Account type: Trust
account
Branch code:
16-33-45-07
Account no: [...]
REF: MR HAYES/RB478
2. The Defendant is
ordered to furnish the Plaintiff with an Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
, to
compensate Plaintiff for the cost of future accommodation in a
hospital or nursing home, or treatment of, or rendering of a
service,
or supplying of goods (as per the expert reports listed in par 3.2
below), to Plaintiff resulting from injuries sustained
by her as a
result of an accident that occurred on the 2
nd
of
September 2010;
3.
3.1 The Defendant is further ordered to pay, the Plaintiffs taxed or
agreed party and party costs of the action, on the High
Court scale,
including costs ud until and including 29 January 2015.
3.2 The costs will
include the costs of the following expert reports, addendum reports
(if any), joint minutes (if any), and the
reservation fees (if any),
as the Taxing Master may, upon taxation, determine the following:
3.2.1 Dr
Engelbrecht, Orthopaedic Surgeon, and Radiologist;
3.2.2 Susan Verhoef,
Occupational Therapist;
3.2.3 Kobus
Prinsloo, Industrial Psychologist;
3.2.4 Madelien
Mills, Educational Psychologist;
3.2.5 Leon Roper,
Clinical Psychologist;
3.2.6 Dr van den
Bout, Orthopaedic Surgeon, and Radiologist (in respect of the RAF4);
3.2.7 Human
& Morris, Consulting Actuaries.
3.3 The costs
consequent upon the employment of counsel, including the costs of
attending the pre-trial conference and the costs
of Counsel for 28
January 2015 and 29 January 2015.
3.4 The costs of
attending the pre-trial conferences.
3.5 The reasonable
travelling costs for the client to attend all medico-legal
appointments.
3.6 The reasonable
travelling costs for the client and attorney of record, Nico Brits,
to attend court on the day of trial.
4. No interest will
be payable on the capital sum, provided that payment is made 14 days
after the Court Order. Should payment not
be made timeously, the
Defendant will pay interest at the rate of 9% per annum from due date
to date of payment.
5. The party and
party costs are payable within 14 days of date of
settlement/taxation, whereafter interest will be charged at 9%
from
the aforementioned date to date of payment.
6. Following
agreement on or taxation of the costs, the Plaintiff shall allow the
Defendant fourteen (14) Court days after the allocator
has been made
available to the Defendant’s Attorneys, to make payment of the
taxed or agreed party and party costs, interest
will be charged at 9%
per annum from date of the stamped allocator to date of payment.
BY ORDER