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[2014] ZAGPPHC 66
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Van Den Berg N.O. v Road Accident Fund (10528/2011) [2014] ZAGPPHC 66 (17 February 2014)
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA)
CASE NO:
10528/2011
DATE: 17 FEBRUARY
2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ADV JOHAN PETRUS
VAN DEN BERG N.O
…………………………………
..
PLAINTIFF
OBO JT M[…]
and
THE ROAD ACCIDENT
FUND
………………………………………………
DEFENDANT
JUDGMENT
CARELSE J:
[1]
The
plaintiff in this matter was appointed as a curator ad litem on
be
half
of a minor child (“J[…]
”).
The plaintiff claims damages arising out of a motor vehicle
collision which occurred on 27 April 2008. The issue of liability was
settled 100% in favour of J[…]. The parties agreed
to argue
the issue of quantum on the reports of the various experts. I pause
to mention that the defendant did not file any reports
and argued on
plaintiff’s expert reports. The claim falls within the ambit of
the Road Accident Fund Act 50 of 1996 (The
Old Act”).
[2]
The
issue of future medical expenses was settled. There are only two
issues,
I
am required to determine in this matter. They are, plaintiff’s
future loss of earnings and general damages. Counsel for
the
defendant submitted that plaintiff is entitled to general damages as
well as loss of earnings. It is the amount plaintiff seeks
that is in
dispute.
Background Facts
[3]
At
t
he
time of the accident J[…]
was nine years
’
old and in grade four.
He
was knocked down by a taxi,
driven
by the insured driver. H
e
is currently fourteen
years’
old and in grade seven. H
e
is an orphan. His mother died and he was abandoned by his father. Fie
lives with his grandmother who is eighty-two years’
old. His
grandmother is also taking care of seven other children.
[4]
J[…]
was crossing the road when he was hit by a taxi. As a
result
of the collision J[…]
was taken to hospital where he was treated for a fracture of the
tibia. He was operated on for fixation of the f
racture
by means of a tibia
nail. A plaster of paris cast was applied twice. He received fluid
therapy, physiotherapy a
nd
had to use crutches. J[…]
remained in hospital for a period of six months. I
t
bares mentioning that J[…]
did not sustain any head injuries.
[5]
J[…]
’s
injuries are not in dispute. The plaintiff’s expert Dr Shevel,
a psychiatrist, in his report gave the
following diagnosis of J[…]
:
“
CHRONIC
PSYCHOLOGICAL ADJUSTMENT DIFFICULTIES (with features of intermittent
depression and anxiety) SECONDARY TO PHYSICAL INJURY
(fractured right
tibia) AND PROBABALY AGGRAVATED TO SOME EXTENT BY PROLONGED PERIOD OF
HOSPITALISATION”
Having
regard to the aforegoing, it appears that
J[...]
suffers from psychological sequelae.
Current complaints and
sequelae
of
J[...]
[6]
The
plaintiff submitted several expert reports mentioned herein below
which are not in dispute.
[7]
According
to Mr Wessel’s, the i
ndustrial
psychologist, J[…]
experiences pain in his right lower leg, especially when he stands or
exercises for extended periods. He also struggles to run
and limps
when the symptoms are aggravated. He experiences pain in both
shoulders when lifting heavy objects.
[8]
According
to Dr Birrell, t
he
orthopaedic surgeon, J[…]
’s
right leg is 1.5cm longer than his left which has a good chance of
levelling to at least 1cm or less.
[9]
According
to Dr White, the plastic and
reconstructive
surgeon, J[…]
has scarring of the right leg that can be improved with further
surgery. He further st
ates
in his report that J[…]
complains of on-going pain of the right lower leg which is ag
gravated
by cold wet conditions.
[10]
According
to Dr Mazabow, the
clinical
psychologist, J[…]
has poor memory. He has difficulty with concentration. As
a result of which J[…]
is pron
e
to careless mistakes. J[…]
suffers from depression and anxiety. He experiences post-traumatic
stress disorder which has persisted o
ver
5 and a half years. J[…]
experiences learning difficulties over the past 5years which has
resulted in him repeating grades four and five.
[11]
According
to Dr Mazabow these difficulties can be attributed directly to his
depression and anxiety. Dr Mazabow is of the view that
children who
experience chronic depression will present in declining performance
in the
classroom
impacting on J[…]
’s
motivation, attention and concentration which includes behavioural
and inte
rpersonal
difficulties. J[…]
wets his bead, suffers with cramps and has undergone a personality
change. He tires easily and his psychomotor skills are slow.
Future medical treatment
[12]
All
the experts agree
that J[…]
will require the following future medical treatment particularly,
long term psychotherapy. According to Mrs Purchase, the educational
psychologist,
J[...]
will require a short course of anti-depressants for a period of two
years. This should be monitored. The anti-depressants should
help
contain the intermittent anxiety and depression.
[13]
According
to Dr Shevel, J[…]
has sustained a considerable loss o
f
amenities of life. J[…]
’s
injuries will result in a decline in his scholastic achievements. He
will require plastic surgery for his scars. This may
result in him
being away from school for a further two weeks.
[14]
I
turn to deal firstly with the issue of gene
ral
damages suffered by J[…]
.
The
defendant
concedes that J[…]
is entitled to general damages. However, what is in dispute is the
amount. Counsel for the defendant submits that an amount of
R440
000.00 is appropriate. Whereas, counsel for the plaintiff submits
that an amount of R600 000.00 is appropriate.
[15]
I
have been referred to a number of cases dealing with general damages
by both counsel for the plaintiff and the defendant. It must
be borne
in mind that no two cases are identical and the cases to which
I
have
been referred to, serve merely as a guide (See De Jongh v Du Pisanie
N.O
2005 (5) SA 457
at page 458).
[16]
Counsel
for the plaintiff referred this court to several cases inter alia,
Thwala v Road Accident Fund 2010 QOD D4 -1. Plaintiff
in the
aforegoing case suffered orthopaedic injuries where an open reduction
and internal fixation was performed resulting in non-union.
The
plaintiff received R250 000 for general damages in 2010. The
equivalent in 2014 is R 311 000. In Nkhosi v Road Accident Fund
2009
6 QOD J 2-16 the plaintiff suffered chest injuries, rib fractures and
fractures of third and fourth metacarpals of the right
hand,
concussion and laceration of the head. The plaintiff received R250
000 for general damages in 2009. The equivalent in 2014
is R325
000.In Torres v Road Accident Fund QOD A4-1 The plaintiff, a twenty
four old male suffered a severe diffuse brain injury,
a soft tissue
injury to the neck, face and chin. Plaintiff suffered behavioural
deficits associated with concentration, working
memory, impulse
control and abstract reasoning. This resulted in depression and
adjustment disorder. He received an award of R
600 000 for general
damages in 2007. In Cordeira v Road Accident Fund QOD A4-45, the
plaintiff, a teenage boy suffered a severe
primary head injury with
right side hemiparesis making walking difficult and his speech was
affected. He had severe neurocognitive
and neuro behavioural deficits
associated with poor memory, lack of energy, mental agility inter
alia. He received an award of
R 800 000 for general damages in 2010.
Having regard to the aforegoing cases, counsel for the plaintiff
submitted that an amount
of R600 000 for general damages is
appropriate.
[17]
Counsel
for the defendant referred this court to several cases, in De Wet AT
v Road Accident Fund 2003 5 QOD E4-13 (AF), the plaintiff,
a twenty
six year labourer fractured his left tibia and fibula which resulted
in a non-union. The plaintiff received R95000 in
2003, the equivalent
being R163 000. In Mautla v Road Accident Fund 2001 5 QOD B3-1 (T)
the plaintiff suffered a diffused head
injury with mild brain damage.
He suffered poor concentration, restlessness and bad tempers. He
received R 90 000 in 2001 for general
damages, the equivalent being
R178 000. Having regard to the aforegoing plaintiff for the defendant
submitted that on the facts
of this case an amount of R250 000 for
the orthopaedic injuries and R190 000 for the psychological sequelae
should be awarded.
The total being R 440 000 for general damages
[18]
Having
regard to the aforegoing cases and on the facts of this case, I am of
the view that general damages in the amount of R500
000.00 is a fair
and reasonable amount.
[19]
Turning
to the question of loss of earnings. It
is
not in dispute that J[…]
started school in 2005 passing grade 1, 2 and 3. He repeated grade
four and five. A
ccording
to Dr Birrell, J[…]
lost a whole year academically because of the sequelae of the
accident.
[20]
I
understand counsel for the defendant’
s
submission to be that J[…]
’s
scholastic ability is exaggerated and that in all probability with
the nece
ssary
medical treatment J[…]
could possibly complete matric. Counsel for the plaintiff submitted
that the industrial psychologist has presented two scenarios
and that
a fair and reasonable approach would be to find the average between
the two scenarios. Counsel for the defendant submitted
that such an
approach could very well cater for the likelihood of an exaggeration,
if any. In my view such an approach is fair
and reasonable.
J[…]’s pre-
accident work capacity
[21]
Dr
W
essel’s
postulates that J[…]
would have entered the working world after completing grade 12 in or
about 2016. He
further postulates that J[…]
would have followed a period of unemployment or partial employment
for an approximate period of 24 mon
ths.
During this period J[…]
would have been either unemployed or performed piece jobs or
part-time work. Ac
cording
to Dr Wessel’s, J[…]
would probably have been remunerated between the Lower Quartile and
the Median of the unskilled worker category.
[22]
Dr
We
ssel’s
anticipates that J[…]
would have worked in a temporary capacity for a fu
rther
two years (2020). J[…]
would probably have been remunerated between the Lower and the Median
of the Semi-Skilled worker category. Thereafter, Dr Wessel’s
postulates that
J[...]
would have commenced with formal employment at the Paterson Job grade
A3 level (25
th
percentile)
by the age of forty five years. This is the first scenario. On the
aforegoing basis his preaccident scenario was
calculated in the
actuarial report which was completed by Dr Whittaker in which the two
scenarios are canvassed.
[23]
The
second scenario postulates that
J[...]
would have remained in the informal sector. I reiterate that none of
the plaintiffs expert reports are in dispute.
[24]
Turning
to scenario one contained in the actuarial report where it is
postulated that
J[...]
would have completed grade 12 and enter the formal sector.
J[...]’s post-accident
work capacity
[25]
According
to Ms Brown, the occupational therapist,
J[...]
would be best- suited to work in a sedentary, light, medium to heavy
category of work. According to Ms Purchase, the educational
psychologist,
J[...]
’s
cognitive deficiencies will probably result in increased difficulties
at school. If
J[...]
’s
cognitive difficulties are as a result of living with chronic pain
and emotional trauma improvement may be expected after
intervention.
However, where a scholastic decline has already occurred, which it
has in
J[...]
’s
case, some permanent lags may remain.
[26]
According
to Ms Brown,
J[...]
’s
intellectual and cognitive potential is below average. Any difficulty
J[...]
is currently experiencing is likely to increase as the volume of and
complexity of work increases. She states in her report that
J[...]
is unlikely to cope in mainstream education for much longer and
advises that he be placed in a remedial school. According to Ms
Brown,
J[...]
is unlikely to pass Grade 12.
[27]
Dr
Mazabow in his report states that notwithstanding any interventions
J[...]
’s
scholastic lag may be permanent.
J[...]
’s
work capacity has been negatively affected. According to the various
experts
J[...]
’s
traumatic accident and his six month stay in hospital at the age of
nine has led to many of
J[...]
’s
psychological symptoms.
[28]
In
so far as the application of contingencies are concerned plaintiff
conceded that contingencies apply. Plaintiff recommends the
contingencies applied in its actuarial report. Before dealing with
contingencies it would do well to remind ourselves that contingencies
allow for the general hazards of life which include the extended
period of general unemployment, possible loss of earnings due
to
illness, savings in relation to travel to and from work now that the
accident has occurred, risk of future retrenchment as well
as the
general vicissitudes of life.
[29]
When
deciding on contingencies ‘the trial court exercises a
discretion, and attempts to achieve the best estimate of a
plaintiff’s
loss’ (See Southern Insurance Association v
Bailey N.O
1984 (1) SA 98.)
In so far as the contingency to be
applied both counsel for the plaintiff and defendant submitted that a
contingency postulated
by Dr Whittaker in his report was appropriate
on the facts of this case. That being so, in my view in the pre-
accident scenario
one a contingency of 20%, and 15% for scenario two
is appropriate. Further in my view in the post- accident wok
capacity, a contingency
of 40% be applied to both scenario one and
two.
[30]
Calculations
Scenario 1 -
Grade 12 with formal sector employment
Future loss
Value
of income
uninjured
.......................................................
R
2, 558,281
Less
contingency deduction
.....................
20%
….....................
(R
511,656)
Total
1
...............
R
2,046,625
Value
of income
injured
..............................................................
R
478,003
Less
contingency deduction
...................
40%
..........................
(R 191,201)
Total
2
.................
R 286,802
Total
1
......................................................................................
R2,
046,625
Total
2
…...............................................................................
(R
286, 802)
Total net loss R 1, 759,824
Scenario 2 - Grade 12 with
informal sector employment
Future loss
Value
of income uninjured
................................................
R 1, 696,055
Less
contingency
....................
15%
.....................................
(R 254,408)
Total
1
.............................
R 1,
441,647
Value
of income
injured
.......................................................
R
478, 003
Less
contingency
....................
40%
....................................
(R 191201 )
Total
2
.....................................
R
286,802
Total
1
...................................................................................
1,441,647
Total2
................................................................................
(R
286, 802)
Total net
loss
.....................................................................
R
1,154,846
The
average between scenario one and two is an amount of R 1, 457,335
which in my view is a fair and reasonable amount for loss
of
J[...]
’s
earnings.
In
the result the following is appropriate:
Loss
of earnings:
R1, 457,335
plus
General damages :
R 500, 000
Total: R 1,957,335
[32]
Johannes
Petrus Van den Berg was appointed as curator ad Iitem at a very early
stage in the proceedings on behalf of the minor.
At the hearing the
curator ad litem submitted his report to me and recommended that a
trust be set up in the interest of
J[...]
.
Counsel for the defendant submitted that in principle the defendant
was not opposed to the setting up of a trust, save for the
issue of
costs associated with the administration of a trust.
[33]
It
bares mentioning that the curator ad litem was appointed well before
the finalisation of the matter. Mr Van den Berg submitted
that
J[...]
is a minor and once he is a major he will be able to manage his own
affairs. Mr Van den Berg further submitted that leaving the
funds in
the Guardian fund is not feasible because his grandmother who is 82
years’ old and cares for 7 other children, lives
in Klerksdorp.
For her to attend the offices of the Guardian Fund would prove to be
costly and inconvenient.
[34]
To
answer Counsel for the defendant’s concerns about the issue of
costs in so far as the administration of the trust is concerned
Mr
Van den Berg submitted that the normal fees and reasonable expenses
apply. The trust is audited annually and the reports are
submitted to
the Master. I agree that on the facts submitted by Mr van den Berg a
trust is the appropriate vehicle in which to
administer the funds of
J[...]
.
[35]
In
the result the following order is made:
1.
The
Draft order marked X dated 17 February 2014 is made an order of
court.
Carelse J:
Judge of the
Gauteng Division Appearances
For the
plaintiff: Adv Ferguson
Instructed by:
Adams & Adams Attorneys
For the
defendant: Adv Mphela
Instructed by:
A.P Ledwaba Inc