About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 82
|
|
M.F.M obo M.M v Road Accident Fund (14915/2012) [2014] ZAGPPHC 82 (7 February 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
REPUBLIC
OF SOUTH ARICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 14915/2012
DATE:
7 FEBRUARY 2014
REPORTABLE
In
the matter between:
M[…]
M[…] F[…]
…………………………………………………………………………………………………
Plaintiff
obo
M[…] M[…]
and
ROAD
ACCIDENT FUND
………………………………………………………………
Defendant
JUDGMENT
MAKHAFOLA,
J:
[1]
The
plaintiff issued summons in her representative capacity as a mother
of her minor child M[…], a male of 17 years of age
claiming
damages from the defendant. The claim arises from the injuries M[…]
had sustained after having been knocked down
by motor vehicle driven
by Nakampe Isaac Moshole (the insured driver). The collision occurred
on 15 June 2011 when M[…]
was 13 years of age and was doing
grade 9 at school.
[2]
The
merits of this matter have been disposed of and liability on the part
of the defendant has been resolved on the basis of 100%.
Future
medical expenses have been resolved by being catered for by S17(4)(a)
of Act 56 of 1996 certificate. All other claims have
been settled
except the loss of future earnings. The settled claims form part of
the agreements between the parties.
THE
DISPUTE
[3]
The
only dispute remaining is the loss of earning capacity of M[…]
the last- born child, a son of the plaintiff. This is
the dispute I
must decide upon. As it will emerge hereinafter and in the bundle of
the joint minute of the experts the core of
the dispute is between
two educational psychologists.
CASE
FOR THE PLAINTIFF
[4]
M[…]
F[…] M[…] is the mother of M[…] who was involved
in a collision with a motor vehicle on 15 June
2011. On account of
this collision M[…]’s right leg was amputated above the
knee. She thinks that had it not been
for the accident her son would
have gone far in his schooling.
[5]
Inclusive
of M[…], the plaintiff has four children namely: D[…]
the first-born male who was born in 1[…], V[…]
L[…]
the second-born f[…] who was born in 1[…], Refilwe, the
third-born female who was born in 1[…];
and M[…], the
last- born male who is currently 17 years old.
[6]
D[….]
attended school until grade 10. He had to leave school because his
father was not working well and as a result there
were no funds to
finance his further studies. He is presently a driver of a combi
which transports pre-school children. L[…]
who they normally
call V[…] is the person referred to in exhibit “A”
which embodies a senior certificate, National
Introductory
Certificate (N4), the National Certificate (N5) and the Pick and Pay
payslip no: 2,646 which depicts her position
as that of a Cashier as
at 25 July 2013. This stands as a proof that her daughter did attend
school.
[7]
She
further confirmed that R[…] did attend school beyond grade 12.
She confirmed that exhibit “B” refers to R[…]
and
that the Exhibit embodies 1= a senior certificate, 2= Diploma in
police and Traffic Law Management and 3=Abridged birth certificate.
R[…] has since become a mother and her child is N[…]
whose father is no longer with R[…].
[8]
The
plaintiff testified that she did attend school until standard 5. She
left school because her father had passed away and her
mother was a
domestic worker who did not afford to finance her schooling. His
father was employed by the South African Railways
and he passed away
in 1965.
[9]
She
(the plaintiff) was employed at the age of 20 years doing temporary
jobs at NTS. When she left school she still had the desire
to
continue with her studies. Because she failed to continue with her
schooling she decided to send her children to school so that
they may
later have good life and also support her.
[10]
When
D[…] could not continue with his studies this hurt her. It
reminded her of her own situation after her father had died.
[11]
She
and M[…] consulted doctors about 11 times. They also consulted
with Rencken-Wentzel in Roodepoort. She remembers her
precisely
because during the consultation she (the plaintiff) emphasised the
fact that M[…] needs to be given a proper artificial
leg.
[12]
Her
mother tongue is Sepedi. During her interview with Recken-Wentzel a
lady who works as a tea-lady in her office acted as an interpreter.
This lady was talking in Venda whilst she was talking Sepedi and
these languages are two different languages. She (plaintiff) does
understand Venda here and there.
[13]
She
testified that what Recken-Wentzel wrote in her report that her
children D[…], V[…] and R[…] are illiterate
is
not true. The report saying that D[…] is unemployed is also
not true and she disagrees with her report relating to V[…]
not being employed. She denied that the academic picture of the
family is bleak as recorded in the report because her children
had
attended school. M[…] was getting somewhere in his education.
[14]
M[…]
went to school at the age of 5 years and has never failed except
after the accident. Before the accident he liked attending
school and
playing soccer. He has never failed any class before the accident
even grade 8. After the accident he was condoned to
grade 10. After
the accident M[…], became withdrawn and he forgets easily. He
does not talk about the accident. He was very
close to his father
John who passed away in 2009. M[…] was deeply disturbed by his
father’s death because he saw him
when he was very ill for
three months.
[15]
She
and her family live in a brick house which has 3 bedrooms, a kitchen,
and a dining room which was built by her late husband.
He was
employed at the Municipality in the plumbing section since 1982 until
his death. The house is fitted with electricity and
running water.
[16]
When
her husband passed away his pension was split into two between
herself and the other wife because he had two wives. She does
not
receive any government grant. She makes a living from selling cold
drinks which she has been selling for the past 3 years.
Her children
still reside with her and do assist her by buying groceries only. She
was told by M[…] that after completing
matric he wanted to do
Personal Management and do business. He still wanted to be a soccer
player. Had he not been involved in
an accident and had been able to
complete matric, his after-matric studies would have been cared for
by V[…] who was going
to take a loan for his studies.
NTOMBIZETHU
GUMEDE
[17]
She
is an educational psychologist and her qualifications were not
disputed by the defendant. She has had access to other reports
of the
psychologists relating to M[…].
[18]
She
has dealt with the qualifications of M[…]’s siblings.
She communicated with M[…] in English but they could
not
understand each other. She had to robe in an interpreter. The
assessment she made indicated that prior to the accident M[…]
would have been able to go through matric and proceed to a tertiary
institution. Pre-morbidly, his condition was normal and he
would have
coped scholastically with post-matric studies.
[19]
M[…]
started school at the age of 5 years and has progressed without
failing until grade 9. He was a child above average
to superior. She
then summarised the premorbid school functioning level of M[…].
His intellectuality was premorbidly assessed
as follows:
He
would have probably managed to function at a ‘further-up’
within the above average to superior range of intelligence
based on
the grounds that:
(i)
He
scored below average on the vocabulary subtest of ISNS-SP;
(ii)
His
highest subtest scores on the protocol are for mazes (20), Blocks
(15), and Pattern Completion (15). His highest scores range
are above
average to very superior;
(iii)
There
is a significant difference of 50 points between his scores on the
verbal and non-verbal scales of the iSNP-SP. And this is
consistent
with a history of traumatic head injury.
(iv)
He
reportedly passed every school grade prior to his accident at the
first attempt; and
(v)
He
suffered a minor head injury. He was young (15 years 3 months old) at
the time of his accident and this is likely to have had
repercussions
in the form of costing his ability as he grew.
[20]
According
to the report of this witness as sketched above educationally, M[…]’s
pre-morbid estimate of superior intellectual
ability (and his current
above average ability) is consistent with functioning at a level
where he could have progressed through
the mainstream school system,
matriculated and proceeded to obtain a tertiary qualification, at
least a degree.
SONET
VOS
[21]
She
compiled a joint minute with Moipone Kheswa as Industrial
Psychologists. She has indicated the difference between basic salary
and total package. The basic salary does not contain added benefits
whereas the total package includes all benefits: medical and
pension.
A person employed after passing matric would qualify for benefits and
the total package will also be relevant.
[22]
In
the joint report they stated that a basic salary should be considered
because at that stage of compiling the report the educational
psychologist’s report was not available. They considered the
basic package only.
CASE
FOR THE DEFENDANT
[23]
Anne-Marie
RENCKEN-ENTZEL is an educational psychologist whose report relating
to M[…] M[…] is part of the bundle
of the defendant’s
expert reports. Her qualifications are not in dispute and are
admitted by the plaintiff. She consulted
M[…] and her mother
separately and both are sotho speaking. She made use of a facilitator
and translator who is duly qualified
and registered. His home
language is Sesotho.
[24]
During
consultation M[…]’s mother gave her information about
her other children and their ages. She further testified
one teacher
gave information that M[…] was lazy before being involved in
the accident.
[25]
According
to her the psychological impact on M[….] was his loss of limb.
Trauma per se
does
not inhibit people to progress. It is not a disability per se
because
there is need for support and mentorship. Other people cannot accept
a loss of limb.
[26]
In
evaluating M[…] she stated that he has a low verbal intellect
and that he struggles psychologically. Considering grade
8 results,
it will be impossible for him to attain grade 12 and proceed to
tertiary level. This is based on what a teacher told
her that M[…]
was lazy.
THE
LAW
[27]
1.
In Sgatya v Road Accident Fund 2001 (5A2) QOD 1 (E) where a 29 year
old teacher was involved in a collision and became permanently
unemployable 20% contingency was applied.
2.
In
Road Accident Fund v William Travers Reynolds2005 (5D3) QOD 1 (W) the
court left in tact the exercise of discretion by the trial
court
relating to the award.
3.
In
Bartlett v Mutual & Federal Versekeringsmaatskappy1989 (4A4) QOD
20 (T) the court applied 15% of general contingency deduction
where
the claimant was 17 years oid at the time but was 23 years old at the
time of the trial.
4.
In
Wright v Road Accident Fund 2011 (6A3) QOD 19 (ECP) a 21 years old
was paralysed in a motor accident whilst doing Grade 11 at
school.
His injuries reduced him to be permanently unemployable. He also
wished to return to school to complete Grade 12. The court
applied a
15% pre-morbid contingency deduction.
EVALUATION
AND ANYLYSIS
[28]
The
facts before court are undisputed that M[…] was involved in a
motor collision and was rendered a casualty.
[29]
The
evidence of M[…]’s mother-M[…] F[…]- is
clear that all her children had gone to school. She went
as far as
standard 5.
[30]
I
have no reason to reject the joint minute of the industrial
psychologists. Their report is objective and is consisted with the
facts at the disposal of the authors. The court accepts this in terms
of the authors’ expertise.
[31]
Ms
Gumede is an educational psychologist whose assessment of facts
relating to M[…] is objective. She has relied on her findings
on documented facts regarding M[…], his sisters and a brother.
She described M[…]’s pre-morbid condition as
normal and
that had he not been involved in the accident, he would have
scholastically coped with post-matric studies.
[32]
She
had assessed M[…] as a child who began school at the age of 5
years who had progressed without failure until Grade 9.
He was a
child who was above average to superior.
[33]
Her
findings were in stark contrast to those of her colleague Anne-Marie
Renken-Wentzel. Renken-Wentzel’s findings were reached
without
full facts and are also inaccurate. She concluded that D[…],
V[…] and R[…] were illiterate without
having been told
that by their mother, the plaintiff. Where she had obtained this
information from is unknown. Moreover, she had
unprofessionally used
her tea- servant as her interpreter during her consultation with
M[…]’s mother.
[34]
The
same tea-servant did not speak the same language as M[…]’s
mother. The plaintiff speaks the Sepedi dialect of (Selobedu)
whereas
the interpreter was speaking in Venda. The plaintiff testified she
could hear and understand venda here and there. This
evidence was not
controverted.
[35]
This
is clearly a damning factor against the report of Dr Rencken-Wentzel.
If there had been a communication breakdown between the
interpreter
who did not speak Sepedi or Selobedu how could she have interpreted
accurately, into English?
[36]
Dr.
Rencken-Wentzel was very evasive during a lengthy cross-examination.
She testified, in general terms literally failing to stick
to
specifics. She was asked if she would have changed her opinion about
M[…]’s family members being illiterate if
she had more
reports. She said no. She was asked if she required more time to
consider the documents that rendered her report to
found negative
findings. She said: no.
[37]
This
cannot be professional, if Dr. Renken-Wentze! had made findings on
insufficient information and documentation one would expect
her to
concede that she required more time to consider new information in
order to make an informed finding in her report. She
was adamant that
her findings were correct despite having lacked documents proving
that the M[…] family was literate.
[38]
I
find this absurd and disturbing for an expert to give negative and
obstructive reports to the court relying on insufficient
documentation
and false or inaccurate facts, as here.
[39]
The
report by Dr. Renken-Wentzel is not helpful to the court for its lack
of objectivity. It is, therefore, rejected as obstructive
to the
findings this court strives to arrive at. The shortcomings of the
report could have been cured by her own testimony by conceding
to
salient facts that cannot be denied. Her report is biased for the
defendant and biased against the plaintiff.
APPLICATION
OF THE LAW
[40]
The
actuarial report by G.A Whittaker dated 3 September 2013 reflects an
objective and fair capitalised value of loss of income
of M[…]
M[…]. It is also in line with the findings of the above-cited
cases as far as contingency deductions apply.
The contingency
calculations differ according to the facts of each case.
FINDINGS
[41]
The
above having been said I find as follows:
1.
That
the defendant has failed to put up a defence to disprove the
plaintiff’s quantum of any scenario suggested by the actuarial
report of and by GA Wittaker.
2.
That
the plaintiff has succeeded to prove the quantum as summarised in
scenario 2 of the actuarial report on a balance of probabilities.
ORDER
:
[42]
Draft
Order marked “RAF” is made an order of court reflecting
the amount payable to the plaintiff on or before 28
th
February 2014.
KHAMI
MAKHAFOLA
JUDGE
OF THE HIGH COURT
JUDGMENT
DELIVERED : 07 FEBRUARY 2014
FOR
THE PLAINTIFF : M Hugo
INSTRUCTED
BY : Mushwana INC
FOR
THE DEFENDANT: D Westebaar
INSTRUCTED
BY : A.P Ledwaba INC
/mu
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
On
5 September 2013 before the Honourable Justice Makhafola, Court 6C
CASE
NUMBER: 14915/2012
In
the matter between:
M[…]
M F[…] obo M[…]
M[…]
.............................................................................
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
..........................................................................
DEFENDANT
DRAFT
ORDER
Having
heard counsel on behalf of the parties and having considered the
evidence to this matter, an order in the following terms
is issues:
1.
The
Defendant is ordered to pay the Plaintiff the amount of R5,526,988.00
less 20% Contingency deduction of R1,165,397.00 the total
is
R4,661,5590.00 on or before 28 September 2013;
2.
The
capital amount shall be paid to the Plaintiffs attorney of record,
MUSHWANA INCORPORATED, and into the following trust account:
Mushwana
Inc,Attorneys
Branch
Code: 260,349
Bank:
First National Bank
3.
The
Defendant shall issue an undertaking in terms of Section 17(4)(a) of
the Road Accident Fund Act, Act 56 of 1996, to the benefit
of M[…]
M[…], with date of birth 2[…] February 1[…], for
the costs of the future accommodation of M[…]
M[…] in a
hospital or nursing home or treatment or rendering of a service to
M[…] M[…], or supply of goods
to M[…] M[…],
and for the costs of the establishment of a trust and costs of the
trustees thereto as set out in paragraph
8 here below, arising out of
the injuries sustained by M[…] M[…] in the motor
vehicle accident on 15 JUNE 2011, after
such costs have been incurred
and upon proof thereof;
4.
The
Defendant is ordered to pay Plaintiff’s taxed or agreed party
to party costs on High Court scale, until date of this order,
including but not limited to:
4.1
The
reasonable taxable preparation and reservation fees, if any, of all
the experts that Plaintiff has given notice of, including:
a.
Dr
V Close (orthopedic surgeon):
b.
Dr
Theo Enslin (medical practitioner):
c.
Mrs
Zethu Gumede (educational psychologist)
d.
Mrs
T Sodi (clinical psychologist):
e.
Mrs
S Sebapu (occupational therapist);
f.
Mrs
S Vos (industrial psychologist);
g.
Mrs
G Whittaker (actuary).
4.2
The
costs of obtaining such reports form the above and / or other
experts;
4.3
The
reasonable travelling and accommodation costs of the Plaintiff and
M[…] M[…] attending to the expert medico-legal
examinations of the Plaintiffs and the Defendant’s experts;
4.4
The
costs of counsel;
4.5
The
reasonable travelling and accommodation costs of the Plaintiff and
M[…] M[…] and V[…] M[…]
;
who are declared necessary witnesses, in attending the trial at
Pretoria on 30 August 2013 to 5 September 2013:
4.6
The reasonable traveling and accommodation costs of MRS Z GUMEDE and
MRS S VOS and / or any other expert of who the Plaintiff
gave notice
of, in order to attend the trial at Pretoria on 30 August 2013 to 5
September 2013;
5.
The
Plaintiff shall, if the costs are not agreed, serve a notice of
taxation on Defendant’s attorneys of record; and
5.1
the
Plaintiff shall allow Defendant 7 (seven) court days, after the
allocator
has
been made available to Defendant, to make payment of the agreed or
taxed costs.
6.
The
Plaintiffs attorney is ordered to cause a trust to be established and
is authorized to sign all documents necessary for the
formation for
the trust for the benefit of M[…] M[…], with Identity
Number 9[…], such trust to be held by
ABSA TRUST in accordance
with the written undertaking, dated 28 August 2013
;
hereto attached as ANNEXURE “A."
7.
The
Defendant is ordered to pay. for so long as the trust remains in
existence;
7.1
The
costs of the appointment of the trustee;
7.2
The
costs, remuneration and disbursements of the trustee in the
administering of the trust; and
7.3
The
costs of furnishing annual security.
8.
The
Defendant’s liability for such costs as stipulated in Paragraph
[7] here above shall not exceed the costs of the appointment
and
remuneration of a curator ad bonis.
9.
The
trustee is to pay the Plaintiff’s attorney costs in terms of
the contingency fee agreement entered into between the Plaintiff
and
the Plaintiffs attorneys.
10.
The
trustee shall be entitled to call for an appropriate taxation of the
Plaintiff’s attorney’s (attorney-and-own-client)
costs
disbursements if deemed necessary.
11.
The
trust instrument contemplated in Paragraph [6] supra
shall
make provision for inter alia.,
the
following:
11.1
That
M[…] M[…] be the sole beneficiary of the trust;
11.2
The
trustee(s) of the trust to be formed shall 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 his/her
obligations and to ensure that the bond of security is submitted
to
the Master of the High Court at the appropriate time as well as to
ail other interested parties of so required by the Master
of the High
Court;
11.3
The
duty of the trustee(s) to disclose any personal interest in any
transaction involving the trust property;
11.4
The
termination of the trust shall occur when M[…] M[…]
reaches the age of 23 (twenty three) years; and
11.4.1
subject
to the leave of the High Court upon application, for purposes of
which the appointed trustees shall cause the appointment
of a curator
ad litem,
the
costs of which shall be costs herein, and for which purposes notice
of such application is to be given to the Defendant;
11.4.2
The
trustees and / or the curator ad litem
to
be so appointed shall be entitled to appoint the relevant experts for
purposes of preparing a report on the appropriateness of
the
termination of the trust when M[…] M[…] reaches the age
of 23 (twenty three) years:
11.4.3
The
costs of so appointing the required curator ad litem
and
experts shall be costs awarded in this action.
11.5
The
trustee(s) shall be entitled, if he/she deems it necessary, to
utilize the income of the trust for the maintenance of M[…]
M[…];
11.6
That
the trustee(s) to be appointed to provide security to the
satisfaction of the Master of the High Court;
11.7
That
ownership of the trust property shall vest in the trustee(s) of the
trust in their capacity as trustee(s):
11.8
Procedures
to resolve any potential disputes, subject to the review of any
decision made in accordance therewith by the Honourable
Court; That
amendment of the trust instrument be subject to the approval and
leave of this Honourable Court;
11.9
In
the event of the death of M[…] M[…], such trust shall
terminate and the trust assets shall pass to the estate of
M[…]
M[…];
11.10
That
the trust property and the administration thereof be subject to an
annual audit.
12.
The
provisions referred to in Paragraphs [11.1] to [11.10] here above
shall in accordance with the provisions of the Trust Property
Control
Act, Act 57 of 1988, be subject to the approval of the Master of the
High Court.
13.
This
order is to be served by the Plaintiffs attorney on the Master of the
High Court, Pretoria, and the nominated trustee(s), within
15
(fifteen) days of the granting of this order.
BY
ORDER:
REGISTRAR