Nogcantsi v Road Accident Fund (7775/2009) [2014] ZAGPPHC 21 (16 January 2014)

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[2014] ZAGPPHC 21
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Nogcantsi v Road Accident Fund (7775/2009) [2014] ZAGPPHC 21 (16 January 2014)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE NORTH GAUTENG
HIGH COURT. PRETORIA
/ES
(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
[1] 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, I 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 I 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 S[…] 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", p1);
Prof
A Schepers (orthopaedic surgeon) (exhibit "A", p12);
14.1.3
Mr
G J Mitchell (clinical psychologist) (exhibit "A
”
,
p95);
14.1.4
Ms
K Kaveberg (occupational psychologist) (exhibit "A", p
117);
14.1.5
Ms
C du Toit (industrial psychologist) (exhibit "A", p 136);
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" p1);
14.2.2
Ms
C J Nel (industrial psychologist) (exhibit ”B" p32);
14.2.3
Ms
E Jacobs (occupational therapist) (exhibit "B
”
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 "A
”
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 "C
”
p1
);
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:
the minor child was a
pedestrian when she was knocked down by a vehicle on 1 April 2001:
16.2
she
sustained a fractured left femur and an associated head injury;
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;
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 lower 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 in the collision,
is there a nexus
between
such brain injury and the cognitive, educational and
neuro­psychological 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
[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 with 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.
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 Möller
,
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 neuro­psychological
deficits/
sequelae
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 deficits
/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 Zy
l,
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
pes
planus
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 neuro­psychological/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 Geselschaft fur Schadings-
bekampfung
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 Möller 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:
"... I 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.
[23] 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 went 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
Möller,
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
deficits/
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, in 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 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. We 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
neuro­psychological 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, what 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;
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% was 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
neuro­psychological 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 R 1 277 773,00
on or before 28 February 2014.
1.2 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: Business
Northrand
Account type: Trust
account
Account number: 1[…]
Branch code: 146-905
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 Toit
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.
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.
This order be served by
the plaintiffs attorneys on the Master of the High Court within
fifteen days of date of this order.
M N S SITHOLE
ACTING JUDGE OF THE NORTH GAUTENG HIGH COURT
HEARD ON: 4 MARCH 2013
FOR THE PLAINTIFF: ADV H
KRIEL
INSTRUCTED BY: LEVIN VAN
ZYL INC
FOR THE DEFENDANT: ADV G
R EAGAN
INSTRUCTED BY: GILDENHUYS
LESSING MALATJI INC