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[2014] ZAGPPHC 188
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Patel N.O. obo K.M. v Road Accident Fund (74647/2010) [2014] ZAGPPHC 188 (3 April 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
)
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 74647/2010
DATE:
3/4/2014
IN
THE MATTER BETWEEN
:
ADVOCATE
M. PATEL N. O.
(on
behalf of
K.M.) PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
1.
This is an action for damages instituted by
the plaintiff in his representative capacity as the court-appointed
curator
ad litem
to
K.M. The action arises out of injuries sustained by K.M. in a motor
collision which occurred on the 25
th
of December 2005 on the R25 road between Groblersdal and
Bronkhorstpruit.
2.
K.M. sustained various injuries in the
aforementioned collision and these injuries included:
2.1
A severe diffuse brain injury associated with
focal injuries to the left frontoparietal region with resultant
neurological, neuropsychological
and neurocognitive deficits;
2.2
Contusion to the right frontalparietal brain area,
with resultant neurological, neuropsychological and neurocognitive
deficits;
2.3
Soft tissue cutaneous injuries to the left cheek
and left shoulder area; and
2.4
Soft tissue and neurological injuries to the right
leg and foot.
3.
The plaintiff has sought to recover as
against the defendant, damages in respect of past medical expenses,
future medical expenses,
future loss of earnings / earning capacity
as well as general damages.
4.
The parties have been able to agree to
settle many of the issues in dispute in the following regard:
4.1
The defendant has conceded liability for one
hundred per cent of K.M.’s proved or agreed damages;
4.2
The defendant will provide the plaintiff with an
undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
in respect of future medical expenses that K.M. may
incur; and
4.3
The defendant will pay a sum of R800 000-00
(eight hundred thousand Rand) in respect of general damages.
5.
The only issue in dispute and requiring
determination is the claim in respect of future loss of earnings.
While
the parties are in agreement that K.M. has suffered a loss in earning
capacity, the scope and extent thereof remain in dispute.
6.
In this regard and in particular there is a
dispute in respect of the following related issues:
6.1
The future educational and vocational trajectory
of K.M.;
6.2
Whether the injuries K.M. sustained have rendered
her unemployable, as the plaintiff contends or whether on the
contrary, she retains
a residual capacity to work, a contention made
by the defendant;
6.3
The anticipated retirement age of K.M.; and
6.4
The contingencies to be applied to her claim for
future loss of earnings.
7.
Both parties commissioned various
medico-legal reports and the various experts also met and produced
joint minutes reflecting areas
of agreement and disagreement. This is
a point I will return to later.
8.
The reports of the following experts
commissioned by the plaintiff were by agreement admitted into
evidence:
8.1
Ms M. J. Adan (clinical neuropsychologist);
8.2
Dr B. K. Cheyip (neurologist); and
8.3
Dr C. Penn (speech and hearing therapist)
9.
The plaintiff called three witnesses to
testify in support of its claim. The witnesses were Ms Mita Belili,
the mother of K.M.,
Ms F. van Vuuren, an educational psychologist and
Ms E. Rossouw, an industrial psychologist.
The
defendant called Ms K Pulles, an industrial psychologist.
10.
I now proceed to provide a summary of the
impact of the injuries sustained by K.M.:
10.1
She was a student in Grade in the year of the
collision and was promoted to Grade. She was only able to commence
her studies in
Grade during May 2006 and she failed Grade in that
year. She subsequently passed Grade in 2007, and Grade in 2008 but
she failed
Grade and the supplementary Grade examination she sat for;
10.2
K.M. began to suffer from epileptic seizures in
2010 and she continues to experience these seizures at a frequency of
at least once
a month;
10.3
She experiences frequent headaches, and she
suffers from poor memory and concentration;
10.4
She suffers from right-hand weakness which
interferes with her ability to do ordinary tasks such as washing,
ironing, cleaning and
cooking;
10.5
She is short-tempered, irritable and has attempted
suicide on two occasions; and
10.6
She has become a mother of a young baby but she is
unable to properly care for this child. Her mother has taken
substantial responsibility
for the care and upbringing of the baby.
11.
Returning to the issues in dispute, I
proceed to deal with them as follows:
11.1
Her educational and vocational trajectory
but for the accident
11.1.1
In the joint minute prepared by the industrial
psychologists, they appear to reach an agreement that but for the
accident, K.M.
would have passed matric and embarked on a tertiary
education trajectory. Ms Rossouw says this could have led to
obtaining a diploma
or a degree, while Ms Pulles projects a
certificate or diploma. In her evidence, Ms Pulles took a diploma
projection as being the
‘high road’ – a best case
scenario. I did not understand her to exclude the possibility of this
happening.
11.1.2
Ms van Vuuren in her report and her evidence
formed the view that pre-accident, K.M. would have been of average,
or more likely,
of high average ability and as such should have
managed to complete an academic Grade 12 with the option of tertiary
education
and most probably at a Technikon.
11.1.3
Ms Rossouw has postulated a degree scenario
alongside that of a diploma scenario while Ms Pulles has postulated a
certificate and
possibly a diploma scenario. Ms Adan, the clinical
psychologist, forms the view that given her test performances, it
seems likely
she would have completed matric with sufficient points
for post-school vocational training probably at Technikon Diploma
level.
11.1.4
In my view and when I have regard to the evidence,
a diploma scenario appears to be the most probable pre-accident
trajectory for
K.M. I find little merit in the suggestion by the
plaintiff that it be a degree scenario or a median between a degree
and a diploma,
while at the same time the defendant’s
suggestion that it be a certificate scenario or a median between a
certificate and
a diploma, is not supported by the evidence.
The study and the
financial opportunities now available also are an added factor in
coming to the conclusion that but for the accident,
K.M. would have
passed matric and proceeded to obtain a diploma.
11.1.5
On this aspect, I accordingly conclude that but
for the accident, K.M. would probably have completed matric as well
as a diploma
and that her damages should be calculated on that basis.
11.2
Did the injuries K.M. sustained render her
unemployable or has she retained a residual capacity to work?
11.2.1
The industrial psychologists disagree on this
aspect. Ms Rossouw’s view is that K.M. is unlikely to pass
matric and this has
been borne out by her two unsuccessful attempts
to do so. She takes the view that at best, K.M. would only be able to
cope with
a short practical course.
11.2.2
In this regard however and following a discussion
she had with Ms van Vuuren, she expresses doubt as to whether K.M.,
on account
of her cognitive impairment, would be able to use and to
practically implement the knowledge she would gain from such a short
course.
11.2.3
Ms van Vuuren in this regard expresses the view
that given her fatigue and her on-and-off attention and
concentration, K.M. may
struggle to find and to hold on to jobs.
11.2.4
On this basis Ms Rossouw concludes that K.M. is
limited in the type of work she can perform and will require
structure and supervision
in a sympathetic employment environment.
She is thus of the view that the accident has for all practical
purposes rendered K.M.
unemployable.
11.2.5
Ms Pulles agreed that K.M.’s injuries have
compromised her ability to compete in the open labour market and that
she will
require structure and supervision in a sympathetic
employment environment. However she was of the view that K.M.
retained a residual
work capacity which would enable her to secure
employment in the informal sector on a short contract or via ‘piece’
jobs with long periods of unemployment in between.
11.2.6
When one has regard to the neurophysical and
neurocognitive deficits that have afflicted K.M., coupled with high
levels of unemployment
in the informal sector, the prospects of
securing any employment with a sympathetic employer must be remote.
In this regard she
would be competing with many others who are free
of deficits of the kind she has.
11.2.7
While the prospects of finding a sympathetic
employer do exist, they are so remote in my view that they render
K.M. unemployable.
In addition, the kind of sympathetic employment
that Ms Pulles contemplates has been regarded as largely therapeutic
in nature
with little financial reward.
(See
CORDERIA v RAF
2011 (6A4) QOD 45 GNP
where the Court appeared to have
accepted a conclusion drawn by the industrial psychologists in that
matter in their joint minute
where they characterised both sheltered
employment and employment in a sympathetic environment as follows:
‘
We
however draw attention to the scarcity and unavailability of these
forms of ‘employment’ and reiterate the fact that
these
types of employment are not financially rewarding and therefore their
benefits will largely be therapeutic in nature’.
)
11.2.8
Accordingly and on what is before me, I must
conclude that the injuries K.M. has sustained, bringing with them the
neurophysical
and neurocognitive deficits to which reference has
already been made, render K.M. practically unemployable.
11.3
K.M.’s likely retirement age
pre-accident
Both
industrial psychologists agree that K.M. would probably have
continued to work as long as possible, consideration being had
to her
low-income background. Ms Rossouw accordingly uses sixty-five as her
retirement age while Ms Pulles opines it would have
been dependent on
the company / organisational policy at the time in question.
It is
indeed difficult if not impossible to speculate on what such policy
would have been but in an age of increasing longevity,
my view is
that fixing her likely retirement age at sixty-five is both fair and
reasonable.
11.4
Contingencies
11.4.1
The parties were in agreement that a five per cent
contingency be applied to K.M.’s accrued loss. The plaintiff
suggested
a ten to fifteen per cent contingency on prospective loss,
while the defendant proposed a forty per cent contingency arguing
that
her age, family background and the educational profile of her
siblings, the financial constraints that she would face as well as
poor success rates of black students at tertiary level all point in
the direction of a higher contingency.
11.4.2
The task of determining an appropriate contingency
has correctly been described as gazing into a crystal ball in order
to predict
the future.
In
GOODALL v
PRESIDENT INSURANCE CO. LTD.
1978 (1) SA 389
(WLD)
MARGO J said:
‘
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanac,
is not numbered among the qualifications for judicial office.’
(at 392H-393A)
11.4.3
It is so that K.M. was young at the time of the
collision and that in the determination of an appropriate
contingency, a higher
rate is applied to children. (see the Quantum
Yearbook 2014 (R Koch)).
In addition our Courts
have distinguished between low areas of speculation that are inherent
in determining contingencies in the
areas of unskilled work compared
with understandably higher levels of speculation that would be
involved in higher levels of employment.
(see
SOUTHERN
INSURANCE v BAILEY
1984 (1) SA 98
(AD)
).
11.4.4
Considering the age and the pre-accident
employment trajectory (high level), I would fix the contingency for
prospective loss considerably
higher than fifteen per cent. In doing
so I am not convinced that the family background or the pass rates of
black students should
be a factor in my consideration. Doing so would
simply perpetuate stereotypes that have abounded unchecked for too
long.
My view is that a
contingency at twenty-five per cent would be fair and reasonable in
respect of K.M.’s prospective loss.
11.4.5
I have been provided with an actuarial calculation
prepared by Gerard Jacobson and I have made the necessary adjustments
to it in
line with the conclusions I have reached at and I arrive at
the following award in respect of loss of earnings:
Accrued
Loss
Value of income but for
accident R401 715-00
5% contingency
deduction
R
20 086-00
Net
accrued loss
R381 629-00
Prospective loss
Value of income but for
accident R5 979 994-00
25% contingency
deduction
R1 494 998-50
Net
value of income but for accident R4 484 995-50
TOTAL
NET LOSS
R4866624-50
ORDER
In
the circumstances I make the following order:
1.
The defendant shall pay to the plaintiff the amount of R800 000-00
(eight hundred thousand rand) in respect of general
damages.
1.1
The plaintiff is given permission to accept the amount of R800 000-00
in respect of the claim for general damages.
2.
The defendant shall pay to the plaintiff the amount of
R4866624-50
(four million, eight hundred and sixty-six thousand and six
hundred and twenty four Rand and fifty cents) in respect of the
plaintiff’s
claim for loss of earnings
3.
The amounts referred to in 1 and 2 above shall be paid into
the trust account of the plaintiff’s attorneys of record,
pending
the creation of the Trust, who will hold the monies in an
interest bearing trust account for the benefit of K.M. (‘K.M.’).
4.
K.M., an adult female born on 18 June 1990, is hereby declared to be
incapable of managing the awards in 1 and 2
above.
5.
The plaintiff’s attorney of record is
ordered and authorised to create a trust to,
inter
alia
, administer and / or manage the
financial affairs of K.M., with ABSA Trust Ltd and to sign all
documents necessary for the formation
of the trust which is to be for
the sole benefit of K.M. The aforesaid appointment shall be subject
to the approval of the master
of the High Court.
6.
The trustee to be appointed shall be
required to furnish security to the satisfaction of the Master in
terms of section 6(2) of
the Trust Property Control Act 57 of 1988,
as amended, if so required.
7.
Should the trustee fail to furnish such
security within a reasonable time or vacate his office, the Master is
authorised to appoint
an alternate trustee, alternatively a
curator
bonis
of his own choice to replace ABSA
Trust Ltd.
8.
The defendant shall provide the plaintiff with a undertaking in terms
of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in
respect of the costs of the future accommodation of K.M. in a
hospital or nursing home or treatment of or rendering of
a service or
supplying of goods to her arising from the injuries K.M. sustained in
the aforesaid motor vehicle collision and the
sequelae
thereof
after such costs have been incurred and upon proof thereof.
9.
The aforesaid undertaking shall include:
9.1
The costs of the creation of the Trust referred to and the
appointment of a trustee subject to the proviso that such costs do
not
exceed the reasonable costs of the appointment of a
curator
bonis
;
9.2 The costs of the
trustee in administering the plaintiff’s estate as determined
by
section 84(1)(b)
of the
Administration of Estates Act 65 of 1965
,
as amended, according to the prescribed tariff applicable to
curators.
10.
The defendant shall pay the plaintiff’s costs on the High Court
scale either as taxed or agreed, to date hereof. Such
costs shall
include:
10.1 The costs attendant
upon the obtaining of payment of the amounts referred to in
paragraphs 1 and 2 above;
10.2 The costs of the
previous trial set down on 4 June 2012;
10.3 The costs of the
plaintiff’s expert reports, joint minutes and preparation fees
where applicable, namely:
(a) Dr. Marus
(Neuro-surgeon);
(b) Dr. Chiyep
(Neurologist);
(c) Ms. M. J. Adan
(Neuropsychologist);
(d) Ms E. May
Rossouw( (Industrial Psychologist);
(e) H. I. Shibambo
(Occupational Therapist);
(f) Ms F. van
Vuuren (Educational Psychologist);
(g) Dr. C. Penn
(Speech Therapist and Audiologist); and
(h) G. W. Jacobson
(Actuary);
10.4 The attendance fees
of Ms. Adan and the appearance fees of Ms. van Vuuren and Ms. E
Rossouw; and
10.5 The costs of the
appointment of and the fees of the
curator ad litem
;
11.
In the event that the amount of the plaintiff’s costs is not
agreed upon by the parties, the plaintiff
attorneys will serve the
notice of taxation in regard to the plaintiff’s costs on the
defendant’s attorneys;
12.
The defendant is to make payment of the
plaintiff’s taxed costs within 14 days of taxation;
13.
The Trustee shall pay the plaintiff’s attorneys costs in
terms of the Contingency Fee Agreement entered into between K.M.’s
Mother (Ms. Mita Belili) and the plaintiff’s attorney, duly
ratified by the plaintiff;
14.
The trustee shall be entitled to call for an attorney and own
client bill of costs from the plaintiff’s attorney;
15.
Upon finalisation of the taxation, alternatively should no taxation
be called for, the plaintiff’s
attorneys of record shall be
entitled to deduct all fees and disbursements from the proceeds
referred to in paragraphs 1 and 2
above, and the balance thereof,
together with any costs recovered from the defendant, shall be
forwarded to the trustee to be invested
for the sole benefit of K.M.
or be utilised as the trustee deems appropriate;
16.
The trust instrument contemplated in this order shall make provision
for
inter alia
the following:
16.1 K.M. to be the sole
beneficiary;
16.2 The Trustee of the
Trust to be formed shall take all requisite steps to secure an
appropriate bond of security to the satisfaction
of the Master of the
High Court for the due fulfillment 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 all other interested
parties if so required by the Master
of the High Court;
16.3The duty of the
Trustee to disclose any personal interest in any transaction
involving the Trust property to the Master;
16.4 The termination of
the Trust upon the death of K.M., alternatively with the leave of the
High Court; and
16.5 The Trustee shall be
entitled, if he deems it necessary, to utilize the income of the
Trust for the maintenance of K.M.;
17.
The provisions referred to in paragraph 16.1 to 16.5 above shall, in
accordance with the provisions
of the Trust Property Control Act 57
of 1988, be subject to the approval of the Master of the High Court;
and
18.
This order is to be served by the plaintiff’s attorney on the
Master of the High Court, Pretoria
and the nominated trustee within
15 days of the granting of this order.
N KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
74647/2010
HEARD
ON: 24, 25 & 26 FEBRUARY 2014
FOR
THE PLAINTIFF: ADV S EBRAHIM
INSTRUCTED
BY: RAZIA KHAN ATTORNEYS (ref: B 0030/08)
FOR
THE DEFENDANT: ADV J. H. P. HATTING
INSTRUCTED
BY: TSEBANE MOLABA INCORPORATED (KBM/MAM/RAF644/10)