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[2014] ZAGPPHC 3
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Nogcantsi v Road Accident Fund (7775/2009) [2014] ZAGPPHC 3 (16 January 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 7775/2009
DATE:
16 JANUARY 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
IN
THE MATTER BETWEEN
NOXOLO
NOGCANTSI
...................................................................
PLAINTIFF
ON
BEHALF OF S N
AND
ROAD
ACCIDENT
FUND
........................................................
DEFENDANT
JUDGMENT
SITHOLE.
AJ
(A)
INTRODUCTION
[FJ
The plaintiff, Noxolo Nogcantsi, has instituted action against the
defendant, the Road Accident Fund.
(a)
in her personal capacity in respect of hospital and medical expenses
incurred for and on behalf of her minor child S N (hereinafter
referred to as "the minor child"); and
(b)
in her representative capacity as mother and natural guardian of the
minor child in respect of future medical expenses and general
damages.
[2]
The claim arises from a motor vehicle collision which occurred on 1
April 2001 at the Dumbeni turn-off in the Mbangweni location,
Tabankulu (hereinafter referred to as "the collision"). The
minor child was a pedestrian at the time when the insured
vehicle
being driven by one B Mbambo collided with her.
[3]
The matter was heard by me on 5 March 2013 and after hearing argument
on the matter, 1 reserved judgment.
[4]
There has been a somewhat slight delay on my part in giving judgment
in this matter, on account of the fact that soon after
hearing it I
had to leave for Mpumalanga to preside over the Eastern District
Circuit Court.
[5]
Any inconvenience experienced by the parties and their legal
representatives as a result of the delay is hereby deeply regretted
and 1 express a sincere apology for it. Suffice it to say that my
considered judgment in this matter is given below.
[6]
At the hearing of the matter both parties were legally represented,
the plaintiff by Adv H Kriel and the defendant by Adv G
R Eagan, both
whom I am indebted to for their comprehensive heads of argument.
(B)
FACTUAL BACKGROUND
[7]
According to the plaintiffs particulars of claim the impact of the
aforementioned collision was severe as a result of which
the minor
child sustained the following severe bodily injuries:
7.1
a brain injury/head injury - bruising left forehead; and
7.2
a fracture of the left femur.
[8]
As a result of the aforesaid injuries and sequelae thereto the minor
child was hospitalised at Mount Ayliff hospital for a period
of one
month where she received treatment in the form of a skin traction for
the fractured femur. She was discharged after spending
one month in
hospital.
[9]
As a further result, the minor child experienced and continued to
endure and will in future experience pain and suffering, disability,
disfigurement and loss of enjoyment of the amenities of life. Further
that the minor child will in future require additional medical
treatment.
[10]
The plaintiffs claim, in her representative capacity and as a result
of the injuries the minor child sustained and the sequelae
thereto,
is, as amended, reflected as follows:
10.1
estimated future medical expenses R 100 000,00
10.2
general damages R 500 000,00
10.3
loss of earnings/earning capacity R1 439 259.00
TOTAL
R2 039 259,00
[11]
At the time of the collision the minor child Sithembilc was three
years and four months old.
[12]
The issue of liability previously became settled between the parties
on the basis that the defendant is liable to compensate
the plaintiff
for 100% of her proven or agreed damages.
[13]
The court is called upon to determine and decide issues relating to
the quantum of the plaintiffs claim.
(C)
ISSUES WHICH ARE COMMON CAUSE
[14]
During the course of the trial the parties agreed to the admission of
the following expert reports in evidence without the
need for oral
testimony from the expert witnesses themselves:
14.1
On behalf of the plaintiff, the reports of:
14.1.1
Dr M Jelbert (orthopaedic surgeon) (exhibit "A", pi);
14.1.2
Prof A Schepers (orthopaedic surgeon) (exhibit "A", pi 2);
14.1.3
Mr G J Mitchell (clinical psychologist) (exhibit "AM, p95);
14.1.4
Ms K Kaveberg (occupational psychologist) (exhibit "A", p
117);
14.1.5
Ms C du Toit (industrial psychologist) (exhibit "A", pi
36); and
14.1.6
Mr I B Kramer (actuary) (exhibit "E”).
14.2
On behalf of the defendant, the reports of:
14.2.1
Dr R L Stein (orthopaedic surgeon) (exhibit "B" pi);
14.2.2
Ms C J Nel (industrial psychologist) (exhibit ”B" p32);
14.2.3
Ms E Jacobs (occupational therapist) (exhibit "BM p48); and
14.2.4
Mr H L M du Plessis (actuary) (exhibit "F").
[15]
The parties further agreed to be bound by the agreements concluded by
the respective opposing expert witnesses and minuted
in their joint
minutes. These were the agreements concluded between:
15.1
Prof Schepers and Dr Stein (orthopaedic surgeons) (exhibit "AM p
187);
15.2
Ms Moller and Ms Mills (educational psychologists) (exhibit "A"
pp 155-158);
15.3
Ms Kaveberg and Ms Nieuwoudt (occupational therapists) (exhibit "CM
pi);
15.4
Ms Du Toit and Ms Nel (industrial psychologists) (exhibit "C"
p5).
[16]
The common cause and/or undisputed facts relevant to the present
enquiry are:
16.1
the minor child was a pedestrian when she w^as knocked down by a
vehicle on 1 April 2001:
16.2
she sustained a fractured left femur and an associated head injury;
16.3
she was borne prematurely and while it was reported to the various
experts by the plaintiff that she estimated the birth to
have been at
six and a half months, she was not sure of the proper due date for
the birth of the minor child;
16.4
although the minor child was about two months behind her peers in her
initial childhood development, she caught up and her
developmental
milestones were within normal limits for her age;
16.5
prior to the collision, the minor child was physically healthy as a
baby and toddler;
16.6
regarding her post accident functioning the minor child struggles
academically with reading, writing and arithmetic, and that
she has
neuro-psychological sequelae that will influence her academic
progress at later grades;
16.7
the minor child failed grade 8 in 2012 (the influence of her
neuro-psychological sequelae thus manifesting themselves):
16.8
the minor child has been rendered a more vulnerable individual who
will probably continue to function on a low'er level than
before the
accident.
(D)
ISSUES WHICH ARE IN DISPUTE
[17]
The following issues are in dispute in this matter:
17.1
Did the minor child sustain a brain injury in the collision?
17.2
If the minor child did sustain a brain injury »n the collision,
is there a nexus between such brain injury and the cognitive,
educational and neuro¬psychological deficits/sequelae identified
by the experts?
17.3
Will the minor child require future medical treatment?
17.4
What is an appropriate amount of compensation for future loss of
earnings, if any?
17.5
What is an appropriate amount of compensation for general damages, if
any?
(E)
THE ONUS OF PROOF
[18]
In terms of our Law of Evidence, the incidence of the burden of proof
rests on the
plaintiff
to prove:
18.1
that the minor child sustained a brain injury in the collision;
18.2
that there is a nexus between such brain injury (if proven) and the
cognitive, educational and neuro-psychological deficits
{sequelae;
and
18.3
that, in the event that the nexus is proven, that the cognitive,
educational and neuro-psychological deficits/sequelae will
result in
the minor child suffering a future loss of earnings.
It
may be mentioned, en passant, that as regards the proof of any
pre-existing
conditions
(e.g. complications with the premature birth of the minor child)
which
contributed
to her current functional limitations, the burden of proof rests on
the defendant. As it is aptly recorded in paragraph
17 of the
relevant pre-trial minute of the parties:
"It
is agreed that the plaintiff bears the duty to begin and onus of
proof in respect of those issues to which the onus of
proof accrues
to her in terms of the pleadings. The defendant has the onus to prove
any pre-existing injury."
(F)
EVIDENCE PLACED BEFORE THE COURT
f
19]The evidence which was placed before the court and which is
recorded herein is specifically directed to the issues in dispute,
so
as to shed light thereon or to provide answers thereto, and will
therefore not assume the form of a resume of all the testimony
given
by each witness. It is composed of documentary, lay and expert
evidence.
19.1
Documentary evidence
The
first documentary evidence is contained in an RAF form 1 statutory
medical report which was completed by T3r A Arbeg on 25 October
2001.
In this report the doctor notes that he first treated the minor child
on 1 April 2001 (ie the date of the accident) where
she presented
w'ith a minor head injury and severe lower limb injury. According to
him the injuries included bruises to the left
forehead and a fracture
of the left femur. The hospital records confirm the injuries as set
out in the medical report and
specifically
note that there were no neuro-vascular defects present on the date of
the collision. Further no problems were noted
- the head or
neurological system, with particular reference to the minor child's
level of consciousness, pupil reaction and orientation.
19.2
Lay evidence
The
plaintiff, who is the biological mother of the minor child, was the
only lay witness who tendered evidence to the court, more
particularly in that she was an eye-witness to the collision.
Recalling the collision, she stated inter alia that she had been
with
the minor child at a bus stop. The minor child's cousin approached
and thereafter walked with the minor across the road in
order to
greet some people. At a certain point the minor child turned away
from her cousin and ran across the road, being struck
by a passing
vehicle in the process.
19.2.1
Immediately after the incident the minor child is reported to have
fallen and the plaintiff went to her where she confirmed
the minor
child still to be breathing. She saw bruises on the minor child's
forehead. She further testified that she received no
response from
the minor child who remained unconscious until some thirty minutes
later when she regained her consciousness and
started crying en route
to the hospital.
19.2.2
The plaintiff also testified that in grade 7 the minor child was
assessed by a school psychologist who concluded that the
minor
child
could not cope, had problems reading and would not complete grade 12.
19.3
Expert evidence
19.3.1
Ms Lida Moller, an educational psychologist, was the first expert
witness to testify on behalf of the plaintiff. She, inter
alia,
stated that there was uncertainty whether the minor was in fact born
prematurely, as the reported birth weight of 2.5kg appeared
normal.
19.3.2
She testified that the head injury sustained in the collision had
negatively influenced the minor's performance and learning
ability.
19.3.3
During cross-examination Ms Moller stated that the minor child had
sustained a focal injury of the brain in the collision.
When it was
put to her that she was in fact not qualified to diagnose brain
injuries, Ms Moller refuted the suggestion and asserted
that her
experience qualified her to identify a focal brain injury based on
the outcome of her assessment.
19.4
Ms Madelien Mills
, an educational psychologist, gave evidence on
behalf of the defendant. She identified certain cognitive weaknesses,
typical of
a moderate brain injury such as a concussion, through her
assessment. She testified, inter alia, that the cognitive,
educational
and neuro¬psychological defichslsequelae identified
were typical of a moderate brain injury and that the available
documentation
noted only a minor head injury sustained in the
collision. She, however, contended that, in the event that a
neurologist or neuro-surgeon
confirming or having confirmed, at the
time of the assessment, that a moderate brain injury was suffered by
the minor in the collision,
she would be forced to reconsider her
opinion as to the cause of the cognitive, educational and
neuro-psychological d efi cits
t sequelae.
19.5
The joint minute prepared by the educational psychologists
Ms
Lida Moller (on behalf of the plaintiff) and Ms Madelien Mills (on
behalf of the defendant) indicates, inter alia, the following:
19.5.1
That the minor child sustained a head injury and a lower limb injury.
The two experts deferred to the opinions of the relevant
experts (ie
orthopaedic surgeons, neuro-surgeon/neurologist and occupational
therapist) with regards to the minor child's injuries
and physical
sequelae.
19.5.2
Both experts agree that the minor child was physically healthy prior
to the collision; that the minor child currently struggles
academically with reading, writing and arithmetic. She has
neurological sequelae that will influence her academic progress
negatively
in later grades; that the minor child has been rendered a
more vulnerable individual and that she will struggle in the open
labour
market.
19.6
Ms Bev van Zyl,
a neuro-psychologist, gave evidence on behalf of
the plaintiff. She, inter alia, opined further that despite coping in
her early
years of schooling, the minor child, given her
neuro-psychological profile difficulty, is probably going to manifest
itself in
the higher grades. She found that a neuro-psychological
deficit is confirmed on assessment. She stated that if the deficit is
not
shown to have been present prior to the accident and not to have
been caused by any non-accident related factor, then the damage
will
be attributable to the accident.
19.6.1
In cross-examination, Ms Van Zyl conceded that she was not qualified
to make a diagnosis of brain damage, this being the
competence and
presence of neuro-surgeons and neurologists and that she did not in
fact seek to do so. She remained steadfast in
her opinion, however,
that she was suitably qualified to state that her results were
consistent with a diagnosis of a moderate
brain injury should such a
diagnosis be made. She went on to state that it often happens that
such medical experts make their diagnosis
of brain damage contingent
upon the results of neuro-psychological assessment. In short, Ms Van
Zyl opined that the minor child
presented with neuro-psychological
difficulties of both a diffuse and focal nature, and that these were
consistent with a diffuse
axonal injury and would support a moderate
brain injury diagnosis.
19.7
A joint minute
prepared by Dr R J L Stein (for the defendant)
and Prof A Schepers (for the plaintiff) as orthopaedic surgeons
indicates, inter
alia, the following:
19.7.1
Both experts are in agreement that the minor child was a pedestrian
and fractured her left femur in the collision; that there
was an
associated head injury and both experts defer to the relevant
specialists in this regard.
19.7.2
Both experts, inter alia, note that the minor child has been assessed
by an educational psychologist and, notwithstanding
such, defer to
the neurologists with regards to the head injury aspects of this
case.
19.8
A joint minute prepared by occupational therapists
Kim
Kaveberg (on behalf of the plaintiff) and Alice Nieuwoudt (on behalf
of the defendant) indicates, inter alia, the following:
19.8.1
both agree that should the minor child’s genu valgum and
pesplanus be deemed accident-related, she would benefit from
consultation with an orthotist;
19.8.2
both agree that allowance should be made for all past and future
accident related costs for medical appointments at prevailing
AA
rates; that a re-assessment is necessary once the minor child enters
the labour market;
19.8.3
both defer to an expert opinion regarding the relation of the
accident in question with the minor child's suggested cognitive
difficulties.
19.9
A joint minute which was prepared by industrial psychologists
Christa du Toit (on behalf of the plaintiff) and Cecile J Ne! (on
behalf of the defendant) indicates, inter alia, the following
information in respect of the minor child's sequelae of the head
injury:
19.9.1
Ms Du Toit takes note of Gareth Mitchell's opinion on emotional,
psychological and psychiatric problems. Mitchell, a clinical
psychologist (on behalf of the plaintiff) assessed the minor child on
18 January 2012, stated that physically there is the possibility
of
neuro-psychological/cognitive sequelae as a result of the accident
which may affect the minor child's ability to achieve an
education
and find gainful employment in future. The injury rendered her
vulnerable. He also diagnosed on adjustment disorders
with depressed
mood and some features of Post Traumatic Stress Disorder ("PTSD").
19.9.2
Ms Du Toit further notes Bev van Zyl's opinion that the head injury
will prevent the minor child from achieving her full
pre-morbid
occupational potential.
19.9.3
Both industrial psychologists agree on applicable pre- and
post-accident contingencies, to be determined by the court.
19.9.4
G J Nel is of opinion that a re-assessment, with all the information
available be done and recommends that neurologists should
be
appointed.
19.10
Mr Gareth Mitchell
, the clinical psychologist referred to
above, compiled a report after assessing the minor child. His report
is not opposed and
his findings are not contested by the defendant.
19.10.1
Mr Mitchell found that, given the accident, the minor child's life
has been negatively affected both emotionally and physically.
Physically, there is the possibility of neuro¬psychological/cognitive
sequelae which may affect the minor child’s ability
to achieve
an education and to find gainful employment in the future.
19.10.2
Emotionally, the minor child has developed an adjustment disorder
with depressed mood as well as some features of PTSD,
however the
post traumatic stress symptoms were not sufficient to warrant a full
diagnosis of PTSD.
19.10.3
The minor child's subjective emotional pain and suffering is adjudged
to have been moderate to severe.
(G)
EVIDENCE ANALYSIS AND FINDINGS OF THE COURT
[20]
In our law the evidence of expert witnesses may be received because
by reason of their special knowledge, and skill, they are
better
qualified to draw inferences
than
the trier of fact. There are some subjects upon which the court is
not usually quite incapable of forming an opinion unassisted,
and
others upon which it could come to some sort of independent
conclusion, hut the help of an expert would be useful. (See Coopers
(SA) (Pty) Ltd v Deutsche Ge seise haft fur Schadings- bekdmpfung mbH
1976 3 SA 352
(A).)
[21]
This is one case in which the testimony of experts has, indeed, been
useful, especially in respect of the issues in dispute.
All the
experts who tendered oral or written evidence before the court, made
a determined effort to address the issues in dispute
to the best of
their expertise and experience, notwithstanding the fact that some of
them used the terms "head injury”
and "brain injury"
interchangeably while others made startling submissions and
concessions. This was, at times, somewhat
confusing. Suffice it to
say that most of them deferred to neurologists, who were conspicious
by their absence, with regards to
the head/brain injury aspects of
the case. In the absence of any testimony from neuro-surgeons and
neurologists, one will have
to make do with the evidence placed
before the court and arrive at findings on the basis of a balance of
probabilities.
[22]
Before one does so, however, it is necessary to make findings in
respect of evidence tendered by the educational psychologists,
Lida
Moller and Madelien Mills. Whereas Ms Moller explained to the court
the manner of testing she conducted and the various outcomes
of each
test, when confronted with the contention that she had tested the
plaintiff in an inappropriate medium, English as opposed
to Xhosa or
Zulu, she stated that she had done so at the request of the
plaintiff. Ms Mills, on the other hand, stated that her
assessment
was conducted with the assistance of an interpreter, in English,
Xhosa and Zulu. She stated that due to the fact that
a more
appropriate language was used and the tests contained appropriate
cultural references, the minor child's results were of
a higher level
than the results in the English test conducted by Ms Moller. It is.
in my view, significant to state that the use
of a multiplicity of
languages through an interpreter, in most cases, does not achieve the
desired results. Ms Mills actually used
four languages to communicate
with the interpreter, plaintiff and the minor child. She testified in
chief, inter alia, as follows:
"...
1 also talked to them in English and sometimes in Afrikaans if I see
the Afrikaans is better just to see how their English
functioning is
and 1 also comment on it in my observations ..."
I
am constrained to arrive at a finding that the minor child's results
after assessment by Ms Mills cannot necessarily become higher
by
virtue of the use of four languages.
[23j
Besides, in her whole testimony Ms Mills tended to indulge in
prolixity and tedious verbosity when answering simple questions.
For
example, when asked in what language the assessment was, she w?ent to
great lengths explaining how' English is not the language
of the
minor child and how' Zulu is not far from the minor child as it seems
inter-related to Xhosa and how she still considers
it more reliable
to do the testing in the home language. This prompted the court to
say to
her:
"I notice you give very lengthy answers to questions. Please
listen to the question and answer." In response thereto
she
said: "Yes, okay, I will try to be more [brief] ..." Ms
Moller, on the other hand, was able to provide well-reasoned
and
well-motivated answers to all propositions put to her during cross-
examination.
[24]
Further, Ms Mills opined that the minor child's premature birth and
the surrounding circumstances may have resulted in undocumented
complications which could cause the types of cognitive, educational
and neuro-psychological sequelae identified in the minor. She
testified further that the minor child's problems are typical of the
difficulties experienced by children who were subjected to
pre-natal
problems and/or premature birth. She thus concluded that it would be
more probable that the minor child was subjected
to complications
associated with pre-natal problems and/or premature birth. Jn this
respect, it is necessary to quote from the
transcript, in particular
what counsel for the plaintiff, Mr Kriel, said:
"Let
me wind up my cross-examination as follows. I understand you to say
that the effect of your evidence is if I understand
it correctly that
you consider it probable that Sithembile’s difficulties are as
a result of birth problems, am I correct?
— As well as other
facts. The factors that her problems were not addressed timeously.
Let
us, we will get to that. The birth problems. — Mainly birth
problems.
By
the same token your opinion is that this motor vehicle accident and
the injuries she sustained there had, it is not probable
that they
are a result of her current deficiencies? — Yes, M'Lord, it is
not probable.
I
am going to argue, Ms Mills, and you can comment on it if you wish. I
am going to argue at the end of this case that your evidence
is not
reliable because it is founded upon speculation. Indeed your opinion
does not, I will argue, find support in a proper line
of reason. You
seem to grab your opinions out of the air and it is not based upon
facts. Do you have any comment on that? —
M'Lord, I do not
agree with that statement."
[25]
Lastly, it is necessary to allude to the startling concession made by
Ms Mills about the nature of her opinions. The following
extract from
the transcript is apposite:
"COURT:
You have a tendency
of giving a lengthy peroration about simple questions. You know
instead of meeting the questions yes and no
you add this, you add
that. You add this and you say so and so said this. So and so said
this. In the end you say we cannot be
scientific in our opinions
which means your opinions are unscientific. Is that what you mean? —
I say all our three psychologists
here are in the same boat. We do
not have enough evidence to come to a conclusion. So if the advocate
says if he brings into, he
says my witnessing is not credible I am
sorry but it is not something that I can just answer with a yes or no
because we were all
in the same boat. Wc all had a lack of
information to come to conclusions but we were pressed to go on
probabilities and so and
I did have no choice to go on my experience
and the probabilities and my opinion. That is all I could do.
Well
it is an interesting concession that your opinions are not scientific
you know. It is a very, very, I find that very interesting.
—
M'Lord, what should we do if we do not have the information? I think
the lawyers should have got the proper information.
It is the first
time that I had to testify in a case where there was not a
neuro-surgeon involved. The head injury is the most
important thing.
I think at the beginning it was about the orthopaedic and then it
went to the head injury and then they should
appoint a neuro-surgeon
otherwise it should not go on trial because that is the medical
evidence we need."
What
is more, Ms Mills ended up putting the blame on the defendant's
lawyers for not placing proper information at her disposal.
[26]
I am left with no choice but to agree fully with counsel for the
plaintiffs submission that Ms Mills was a particularly poor
witness
given to the adoption of unsubstantiated speculation, and untenable
methods of reasoning in arriving at her opinions; that
her
unwillingness to concede the most obvious of propositions
unfortunately raises doubt about her impartiality and objectivity
as
a witness and as an expert; that she was an unreliable witness whose
testimony and opinions cannot be accepted. This leads me
to findings
on the balance of probabilities in respect of the issues on which
each party bears the burden of proof.
(H)
THE PROBABILITIES
[27]
Reference has already been made in paragraph 18. supra. to the
incidence of the burden of proof in respect of each party. In
the
light of the foregoing evidence the
balance
of probabilities favours the following findings in respect of the
issues on which the plaintiff bears the burden of proof:
27.1
that in the collision of 1 April 2001, the minor child was run down
by a motor vehicle while she was a pedestrian;
27.2
that as a result of this collision she sustained a fracture of her
left femur and that this injury was associated with a head
injury;
27.3
that the impact which caused these injuries, specifically that to the
head, was such as to result in the minor child sustaining
a loss of
consciousness for approximately 20 to 25 minutes;
27.4
that objective assessment by relevant experts has confirmed that the
minor child suffers from neuro-psychological deficits;
27.5
that no evidence of such deficits has been found being present before
the collision in question;
27.6
that as a corollary, no evidence has been found of such deficits
having been caused by any non-accident related factor;
27.7
consequently, the only reasonable inference to be drawn from these
facts is that the minor child suffered a moderate brain
injury in the
collision in question, as Ms Moller and Ms Van Zyl found, and that
objective neuro¬psychological assessment shows
the sequelae of
this injury to be consistent with a moderate brain injury.
[28]
In so far as the issues on which the defendant bears the burden of
proof, the balance of probabilities favours a finding that
the
defendant has not provided any objective evidence that the premature
birth of the minor child was associated with any neuro-psychological
deficits prior to the collision of 1 April 2001.
[29]
Having said that, w'hat remains for the court is to determine and
decide what it considers to be an appropriate quantum of
damages in
the circumstances of the case.
(I)
THE QUANTUM OF THE PLAINTIFF'S CLAIM
(a)
The plaintiffs future loss of earnings
[30]
By agreement between the parties the actuarial reports of Mr I B
Kramer for the plaintiff (exhibit "E") and Mr H
L M du
Plessis for the defendant (exhibit "F") were given in
evidence without the need for oral testimony. In exhibit
"E",
Mr Kramer sets out the bases and assumptions upon which actuarial
calculations were made. A concise summary of these
calculations is as
follows:
30.1
In the pre-accident scenario
two bases have been calculated,
namely-
30.1.1
Basis A
wherein it is assumed that the minor child would have
completed grade 12 (matric) and would have entered the formal labour
market.
30.1.2
Basis B
wherein it is assumed that the minor child would have
completed matric and would have entered the informal labour market as
a semi-skilled
labourer.
30.1.3
In each case a rate of progression in earnings commensurate with
generally accepted norms was used with a career ceiling
being reached
at age 42.5.
30.1.4
The retirement age was assumed to occur between 60 and 65 with 62.5
being adopted for purposes of calculation.
30.2
In the post-accident scenario
the following assumptions were
made in the calculations:
30.2.1
that the minor child would only complete a grade 10 level of
education;
30.2.2
that she would work until retirement at the age of 62.5.
30.3
In the calculations contingency deductions of 25% were applied to
both bases A and B on the pre-accident scenario, while a
contingency
deduction of 20% w'as applied in the post-accident scenario.
[31]
The plaintiffs calculations show the minor child's loss of
earnings/earning capacity to come to:
31.1
R1 439 259,00 on basis A; and
31.2
R877 773,00 on basis B.
[32]
Although it is submitted on behalf of the plaintiff that basis A
would have been the more probable scenario which the minor
child
would have followed had the accident in question not occurred, my
considered view is that the more probable scenario which
the minor
child would have followed had the accident not occurred would have
been basis B, and that the amount calculated thereon
represents a
fair level of compensation for the losses she suffered under this
head of damages.
(b)
Future hospital and medical expenses
[33]
Future hospital and medical expenses to be incurred by the minor
child have been set out in the various legal reports. In my
humble
opinion, these special damages are not contentious because even
counsel for the defendant hardly deals with them in his
heads of
argument. Suffice to say that the plaintiffs anticipation that this
head of damages will be provided for in accordance
with a statutory
undertaking as contemplated in section 17(4)(a) of the Road Accident
Fund Act, is justified. These damages are
recoverable for plaintiffs
patrimonial loss.
(c)
General damages
[34]
In our law general damages cater for the compensation of
non-patrimonial loss to the plaintiff for pain and suffering,
disability,
disfigurement, loss of amenities of life, etc. (See
Practitioner's Guide by H B Klopper, Lexis N ex is Durban 2009 at
pD-3 issue
23.) The award of such damages does not lend itself to
precise
mathematical
calculation and falls exclusively within the discretionary
determination
of the court.
[35]
Regard being had to, inter alia, the following:
35.1
the plaintiffs testimony that she noticed changes in the minor child
after the collision in that she became aggressive and
had severe
(inappropriate) mood swings;
35.2
the evidence of Gareth Mitchell, the clinical psychologist, that
given the accident the minor child's life has been negatively
affected both emotionally and physically because there is the
possibility of neuro¬psychological cognitive sequelae which may
affect the minor child's ability to achieve an education and to find
gainful employment in the future; and emotionally because
the minor
child has developed an adjustment disorder with a depressed mood as
well as features of PTSD.
35.3
The opinion of Ms Moller, the educational psychologist, when invited
to express an opinion on the severity of the brain injury
sustained
by the minor child, that on the basis of her assessment, the deficits
were consistent with a moderate brain injury.
35.4
The contents of the expert report, exhibit "A" at p 115,
which states that the minor's fractured leg, while it has
by all
accounts recovered fully, the union has resulted in a rotational
deformation (an outwards angulation of the left foot) w'hich
presents
her with some difficulty at present and will continue to do so for
the remainder of her life.
It
is my considered opinion that a relatively substantial award for
general damages is warranted and recoverable in this matter.
(J)
CONCLUSION
[36]
In the light of the aforegoing analysis of the evidence before court
and the findings thereon, I make the following order:
1.
1.1 That the defendant pay to the plaintiff the amount of RI 277
773,00 on or before 28 February 2014. 12 Payment of the amount
referred to in paragraph 1.1 supra be made into the trust account of
Levin van Zyl Incorporated as follows:
Name
of account holder: Levin van Zyl Incorporated
Bank
name: Nedbank
Bank
branch: B……… N….
Account
type: Trust account
Account
number: 1…………….
Branch
code: 1………
1.3
The defendant shall pay interest on the amount referred to in
paragraph I above at the rate of 15,5% per annum fourteen days
from
date of judgment/settlement to date of final payment.
2.
The defendant furnish the plaintiffs attorneys, Levin van Zyl
Incorporated, with an undertaking as envisaged in terms of section
17(4)(a) of Act 56 of 1996, in respect of the costs of the future
accommodation in a hospital or nursing or treatment of or rendering
of a service or supplying of goods to the plaintiff as a result of
the injuries that she sustained as a result of the collision
on 1
April 2001, after such costs
have
been incurred and on proof thereof, which shall include the
following, namely:
2.1
The reasonable costs incurred in the establishment of a trust as
contemplated in paragraph 5 below and the appointment of a
trustee(s).
2.2
The reasonable costs incurred in the administration of the award.
2.3
The reasonable costs incurred in providing security to the
satisfaction of the Master of the High Court of South Africa for
the
administration of the award and the annual retention of such security
to meet the requirements of the Master in terms of section
77 of the
Administration of Estates Act.
3.
The defendant to pay the plaintiffs attorneys the plaintiffs costs to
date hereof to be agreed upon or taxed, as between party
and party,
which costs shall include:
3.1
the costs of counsel;
3.2
the costs attendant upon the obtaining of the payment of the capital
amount referred to in paragraph 1.1 supra;
3.3
the costs of the medico-legal reports and the reasonable preparation
fees, if any, of the experts in respect of whom notice
was given,
including:
3.3.1
orthopaedic surgeon. Dr M Jelbert and Prof A Schepers;
3.3.2
occupational therapist, Ms K Kaveberg;
3.3.3
industrial psychologist, Ms C du Toil:
3.3.4
neuro-psychologist, Ms B van Zyl;
3.3.5
educational psychologist, L Moller;
3.3.6
clinical psychologist, Mr G Mitchell;
3.3.7
actuary, Mr I Kramer.
4.
The attorneys for the plaintiff, Levin van Zyl Incorporated, are:
4.1
to cause a trust (hereinafter referred to as "the trust")
to be established in accordance with the Trust Property
Control Act,
Act 57 of 1988;
4.2
to pay all monies held in trust by them for the benefit of the
plaintiff, to the trust.
5.
The trust instrument contemplated in paragraph 4 above shall make
provision for the following:
5.1
that the plaintiff is to be the sole beneficiary of the trust;
5.2
that the trustee(s) are to provide security to the satisfaction of
the Master;
5.3
that the ownership of the trust property vests in the trustee(s) of
the trust in their capacities as trustees;
5.4
procedures to resolve any potential disputes, subject to the review
of any decision made in accordance therewith by this Court;
5.5
that the trustee(s) be authorised to recover the remuneration of, and
costs incurred by the trustee(s) in administering the
undertaking in
terms of section 17(4)(a) of Act 56 of 1996 in accordance with the
certificate
of undertaking to be provided by the defendant in accordance with
paragraph 2 supra;
5.6
the suspension of the plaintiffs contingent rights in the event of
cession, attachment or insolvency, prior to the distribution
or
payment thereof by the trustee(s) to the patient;
5.7
that the amendment of the trust deed be subject to the leave of this
Court;
5.8
the termination of the trust upon the death of the plaintiff, in
which event the trust assets shall pass to the estate of the
plaintiff;
5.9
that the trust property and the administration thereof be subject to
an annual audit.
6.
The establishment of the trust is subject thereto that the trustee
take all the requisite steps to secure an appropriate bond
of
security to the satisfaction of the Master of the High Court for the
due fulfilment of the trustee’s obligations and ensuring
that
such bond of security is submitted to the Master of the High Court at
the appropriate time as well as to all other interested
parties. An
appropriate letter of consent has been secured from Absa Trust and it
confirms their willingness to accept the establishment
of a trust and
the appointment of Absa Trust as the trustees.
7.
The capital amount referred to in paragraph 1.1 supra shall be paid
into the trust account of the plaintiffs attorneys of record,
Levin
van Zyl Incorporated, for the benefit of the plaintiff:
7.1
pending the establishment of a trust to be established in accordance
with the Trust Property Control Act, Act 57 of 1988, Levin
van Zyl
Incorporated shall be required to invest the capital amount after
deduction of the plaintiffs attorney and own client costs
in
accordance with the provisions of section 78(2)(a) of the Attorneys
Act, Act 53 of 1999, and any interest accruing thereon shall
be for
the benefit of the plaintiff;
7.2
to pay all monies held in trust by them for the benefit of the
plaintiff to the trust.
8.
The defendant shall deliver the statutory undertaking referred to
supra to Levin van Zyl Incorporated, to be dealt with in accordance
with the appropriate directives to be given by the trustee(s) of the
trust to be established.
9.
9.1 The party and party costs referred to supra shall be paid by the
defendant directly into the trust account of Levin van Zyl
Incorporated.
9.2
Levin van Zyl Incorporated shall be entitled to deduct the fee of any
legal cost consultant whom they may elect to appoint for
the drafting
of an appropriate party and party bill of costs and for attendances
pertaining to the settlement or taxation of such
costs, as well as
any further attorney and own client fees or disbursements, whereafter
the balance of the party and party costs
referred to shall be paid
into the relevant investment account referred to supra or into such
other account as may be directed
by the trustee to be appointed, and
for the benefit of the plaintiff, including any interest which may
accrue thereon.
10.
The plaintiffs attorneys, Levin van Zyl Incorporated, shall be
entitled to payment from the capital amount upon receipt thereof,
of
their attorney and own client fees, costs, disbursements and VAT,
which shall include payment of the disbursements incurred
in respect
of the accounts rendered by the experts referred to supra and
counsel, subject thereto that the trustee(s) will ensure
that the
payment of the amounts referred to was fair and reasonable, and the
Master of the High Court and/or trustee(s) may insist
on the taxation
of an attomey-and-owai-client bill of costs.
11.
This order be served by the plaintiffs attorneys on the Master of the
High Court within fifteen days of date of this order.
MNS
Sithole
Acting
Judge of the North Gauteng High Court
HEARDON:
4 MARCH 2013
FOR
THE PLAINTIFF: ADV H KR1EL
INSTRUCTED
BY: LEVIN VAN ZYL INC
FOR
THE DEFENDANT: ADV G R EAGAN
INSTRUCTED
BY: GILDENHUYS LESSING MALATJ1 INC