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[2014] ZAGPPHC 381
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S.D.S obo S.A.L v Road Accident Fund (48158/2009) [2014] ZAGPPHC 381 (11 April 2014)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO:
48158/2009
DATE: 11 APRIL
2014
In
the matter between:
S[...]
D[...] S[...]
…................................................................................................................................
Plaintiff
obo
S[...]
A[...] L[...]
and
ROAD
ACCIDENT
FUND
...............................................................................................................
Defendant
JUDGMENT
TEFFO, J:
Introduction:
1] The plaintiff,
Mrs D[...] S[...] S[...], instituted a claim for damages in terms of
Road Accident Fund Act 56 of 1996 (‘the
Act’) against the
defendant on behalf of Mr A[...] L[...] S[...] (“the injured”)
born on [...] in her capacity
as mother and natural guardian. This
claim arises from the injuries sustained by the injured in a motor
vehicle collision which
occurred on 2 July 2006 in Soshanguve when
the motor vehicle with registration letters and numbers C[...] there
and then driven
by Mr Manzini (“ the insured vehicle”)
collided with the injured who was a pedestrian at the time.
2] The defendant
conceded the merits at 90/10% in favour of the plaintiff. It is
therefore liable to pay 90% of the plaintiffs proven
or agreed
damages. The parties have agreed that the defendant will pay the
plaintiff an amount of R120 000,00 less 10% for general
damages. The
defendant has tendered a section 17 (4) (a) of the Act undertaking
which is limited to 90% in respect of future hospital,
medical and
ancillary expenses which the plaintiff has accepted. No claim for
past loss of earnings was made. The head of damages
that remain for
determination is the claim for future loss of earnings or loss of
earning capacity.
3] Medico legal
reports by experts on behalf of both parties were filed and admitted
by consent into the record as evidence.
4] Joint minutes by
the Educational Psychologists of both parties namely Mrs Rencken
Wentzel for the plaintiff and Dr J C Rossi
for the defendant, were
admitted into evidence by consent. This includes the joint minutes of
the Industrial Psychologists, Ms
N Kotze for the plaintiff and Dr L
Fourie for the defendant.
5]
The parties agreed to argue the case for the disputed head of damages
as a stated case on the basis of the admitted facts, medico
legal
evidence and opinions. Accordingly no
viva
voce
evidence
was led by the parties.
6] The injuries
sustained by the injured in the aforesaid accident are summarised as
follows: a severe injury to the head described
as swollen lower lip,
laceration gum and dental alveolar injury, soft tissue injuries to
the mouth and gum, loose teeth of which
4 (four) eventually fell off.
He was hospitalized for 3 (three) days and discharged home.
7] The injured was 8
(eight) years old and in grade 2(two) when he was involved in an
accident. He returned to school 3 (three)
days after the accident. He
passed grade 2 (two) and proceeded to grade 3 which he failed and
repeated. From there he proceeded
to other grades which he passed and
he is currently in high school.
Future loss of
earnings and loss of earning capacity
8] According to para
7 of the plaintiff’s particulars of claim, it is alleged that
at the time of the accident, the injured
was a normal, and healthy
child who performed average to above at school and had the prospects
of a person of his age and status.
As a result of the accident and
the injuries sustained, the injured has suffered a dimension of his
physical abilities, has difficulty
in concentrating during class
sessions and is always sleepy. He developed behavioural changes
resulting in aggressiveness. He suffers
from headaches at least twice
a week. He suffered lowered academic progress and failed 1 (one) year
of schooling which will result
in him entering the labour market 1
(one) year later.
9] The Educational
Psychologists Ms Rencken Wentzel and Dr J C Rossi, in their joint
minute agree that the injured did not sustain
a head injury but
dental and gum injuries. Both of them found some educational,
neuropsychological and emotional difficulties when
they assessed the
injured. They agree that the injured had behavioural and
psychological difficulties probably as a result of family
problems.
As regards his future education and training, they agreed that there
was no difference from pre to post morbid levels
although they
differed with regard to the exact levels of educational achievements.
They both believe that his achieving depends
on remedial assistance
and counselling as there is a chance that he will drop out owing to
his emotional problems. According to
them the injured will benefit
from psychotherapy/counselling and remedial problems.
10] With regard to
the injured’s pre morbid functioning Ms Rencken Wentzen opined
that his scholastic functioning at school
entry is poor. He has not
repeated a year but his results ranged from ‘incompetent’
to ‘partially achieved’.
Her view is that he would have
followed in the steps of his family members even though it is
commonly accepted that children achieve
better than their parents.
Post morbid scholastic problems were noted that could be a result of
the injury if a neurologist confirms
that there are signs of an
injury that impacts on functioning. According to her with his current
scholastic status, without the
priviledge of recent school reports,
taking the opinions of his class teacher of 2007 and his current
teacher, Mr M[...], into
consideration, the injured will in all
likelihood repeat a number of years, but will progress at a slow rate
and in the current
educational climate obtain a Grade 10
qualification.
11] Dr J C Rossi
believes that pre-morbidly, the injured would have been able to pass
grade 12 and proceed to a Technikon. Results
in the assessment
indicate that he would still be able to achieve a mainstream senior
certificate and be able to enroll at a Technikon
if his emotional
difficulties do not worsen and he can achieve remedial assistance.
She opined that he will not be able to cope
at University. According
to her there is a likelihood that he will repeat a grade in his
effort to obtain matric. She is of the
view that there is a chance
that he will drop as he is immature and inclined not to co-operate.
Dr Rossi also noted pre-existing
development difficulties, a
problematic family background, and opined that his poor motivation
and lack of cooperation complicate
the picture.
12] In their joint
minute, the Industrial Psychologists, Ms Kotze for the plaintiff and
Dr L Fourie agree that should there be a
nexus between the injuries
sustained and the injured repeating grade 3 (three) post morbid, he
would enter the open labour market
one year later than expected, but
for the accident. They also noted the view of Ms Painter who opined
that regarding the accident
it seems reasonable to accept that it is
highly likely that the injured repeated a year and is hampered
academically by the same
accident related sequelae. Dr Fourie noted
Dr Okoli (the neurosurgeon)’s opinion that there is no evidence
of an alteration
in his mental status and that the injuries sustained
did not affect his scholastic performance. They agree that based on
the opinion
of Ms Painter, the injured may still reach grade 11
although at a slower pace of progress and be trained by his father
and possibly
proceed to college at a later stage. Relying on Ms
Wentzen’s opinion that the injured will in all likelihood
repeat a number
of years based on his pre-morbid performance and that
he will progress at a slow rate and obtain a grade 10 qualification,
she
accepts that the injured could fail more standards before
completion of his schooling. This implies that his entry in the
labour
market would be delayed even further. Dr Fourie's opinion is
that although it is acknowledged that the injured may from time to
time experience physical pain and discomfort, having to apply added
effort, it is not envisaged that he may have a truncation in
his
future career path; progression and likely earnings, until retirement
age. Ms Kotze opined that based on the reports available
to her, it
seems that he may have sustained a moderate concussive head injury
although deferrence is given to medical opinion in
this regard. She
is of the view that if it is accepted that he did not sustain a head
injury and would still be able to complete
Grade 11, he would
theoretically speaking still be able to earn the salaries as per the
pre- accident scenario. However should
there be any residual
neuropsychological difficulties or reported difficulties of
aggressiveness and tiredness continues, this
could affect his work
performance, resulting in him not being able to perform optimally and
thus outperforming his uninjured counterparts.
She further opined
that taking cognizance of the aforesaid, one has to accept that the
injured would then in all probability earn
on a lower level as he
would not be able to progress at the same rate than anticipated in
the “ but for scenario”.
He could then also even plateau
on a lower level. According to her depending on the severity of his
residual difficulties at that
stage, it could even affect his ability
to sustain employment. She opined that same would best be addressed
by means of a higher
post morbid contingency deduction.
14] According to Ms
A Painter (a psychologist for the plaintiff specializing in
neuropsychology) physically the injured would have
been of similar
appearance but most probably not the dental ailments now observable
to the father. She further opined that neuropsychologically
measured
left hemisphere verbal weaknesses may have existed or may have been
caused by a more significant brain injury if shown
to exist. Unless
shown to emanate from unrelated family circumstances, whether of
organic or non-organic origin, the fact that
he failed his 2007 year
does seem to relate to the accident as with average intellect, he
should have passed. Her view is that
psychologically aggression may
relate to unfortunate family circumstances or may also relate to a
more significant brain injury
if shown to exist. She opined that
bearing in mind mouth injuries it seems highly likely that current
dental ailments emanated
from the accident and together with fatigue
caused by chronic infection, this may even lower academic
achievement.
15] She is of the
view that it is unlikely that the injured would have passed grade 12
pre accident. According to her he may have
progressed to grade 11
without failing the year after the accident. His father may have
trained him successfully in the field of
motor mechanics and once he
had mastered this skill and secured some work with income, as an
academically motivated child he may
have attained proper college
training in this field. Her opinion is that post accident he may
still reach grade 11 at a slower
pace of progress and be trained by
his father and later proceed to college given the fact that it is
highly likely that he is hampered
academically by some accident
related sequelae, if not of organic or non-organic origin such as
problems with dental health but
also headaches.
16] According to Dr
B.A Okoli (the neurosurgeon) who saw the injured on 13 February 2013,
the injured did not sustain a concussive
head injury. He states in
his report that the hospital records at George Mukhari Hospital do
not contain any information on a possible
head injury or alteration
in his mental status. He opined that the injuries sustained should
not affect the injured’s scholastic
performance.
Counsels’
submissions
17] Mr Schreuder on
behalf of the plaintiff submitted relying on Ms Painter's report that
the injured should have passed grade 3
in 2007 (post-accident) head
injury or no head injury. He submitted that the failure of the
injured of grade 3(three) relates to
the accident and that even if
the injured did not sustain a head injury there were other injuries
that affected him. He also submitted
that Ms Painter confirms in her
report that the injured will progress slower after the accident.
18] Mr Schreuder
further submitted that even in the Clinical Psychologist’s
report compiled at George Mukhari hospital it
was reported that the
injured was referred to the hospital as after the accident he
presented with behavioural changes, viz, he
screamed for no apparent
reason, has a blank stare, often looks tired, jumps, plays and dances
during lessons. Further that he
is progressing slowly and his
performance is not satisfactory. He also referred to what the
plaintiff reported to the Clinical
Psychologist that the injured
started to experience difficulties after the accident, that he is not
performing well at school,
he is aggressive towards others and
himself, and does not listen to authority.
19] To support his
submission he also referred to Dr Rossi’s opinion that pre and
post morbidly the injured would have been
able and will be able to
pass Grade 12 mainstream and proceed to a Technikon. Further that
chances are likely that he will need
to repeat another grade and that
his achieving this level is dependent on remedial assistance and
counselling.
20] He submitted
that according to plaintiffs experts the injured would have reached
grade 11 pre-accident while the defendant’s
experts are of the
view that he would attain a grade 12 but the question is after
failing grade 3 post-accident whether or not
he will enter the labour
market one year later. He argued that the injured will have problems
when he enters the labour market
as it cannot be said what he will
earn in 20 years’ time. He prayed that the court should apply
its mind and award the amount
that is reasonable in the
circumstances.
21] Mr P N Mahlangu
for the defendant submitted that the basis of the defendant’s
case rests on the neurosurgeon’s report
and the joint minute of
the Educational Psychologists. Having submitted that it is common
cause that the injured sustained soft
tissue injuries on the mouth
and gums, he argued that all along it was suspected that he had
sustained a head injury until a neurosurgeon,
Dr Okoli, was
appointed. According to Dr Okoli the injuries sustained did not
diminish the scholastic performance of the injured.
He submitted that
based on Dr Okoli’s opinion the fact that the injured failed
grade 3 (three) in 2007 cannot be linked to
the injuries sustained in
the accident. He also submitted that Dr Okoli opined that there was
no evidence of an alteration of his
mental status. Further that he
was unable to associate any scholastic problem with the injuries
sustained. Counsel for the defendant
also submitted that in their
joint minute the Educational Psychologists agree that the injured has
behavioural and psychological
difficulties probably as a result of
family problems. They also agree that there was no difference between
the pre and post morbid
levels of the injured. He therefore submitted
that no loss has been and can be attributed to the plaintiffs
injuries.
22] Rumpff JA in
Dippenaar v Shield Insurance Co Ltd
1979 (2) SA 904
(C) at 917 B-C
said the following with regard to a claim for loss of earning
capacity:
“
In
our law, under the lex Aquilia, the defendant must make good the
difference between the value of the plaintiff's estate after
the
commission of the delict and value it would have had if the delict
has not been committed. The capacity to earn money is considered
to
be part of a person’s estate and the loss or impairment of that
capacity constitutes a loss, if such loss diminishes the
estate”.
23] In Rudman v Road
Accident Fund
2003 (2) SA 234
(SCA) the appellant, a mohair and game
farmer and professional hunter, sustained serious bodily injuries in
a motor vehicle accident
as a result of which he was never again able
to hunt or resume with the same vigour the role of hands-on manager
of various farms.
The farming and hunting business was done through a
‘family’ company behind which the appellant was the
driving force.
The appellant claimed damages for, among others loss
of earning capacity, for which the respondent denied liability. The
trial
court dismissed the claim on the ground that, although the
appellant had proved disabilities which, potentially at any rate,
could
give rise to a reduction in his earning capacity, he had failed
to prove that this had resulted in patrimonial loss since the loss
of
earnings and earning capacity he had suffered was a loss to the
company and not to his private estate. The appellant’s
appeal
to the Supreme Court of Appeal was dismissed. At para 11 of SCA
judgment the following was said:
"
In his (trial
court’s ) view, Rudman’s disability giving rise to a
diminished earning incapacity was proved, but the
evidence did not go
further and prove that his incapacity constituted a loss which
diminished his estate. I believe that this conclusion
is correct The
fallacy in Mr Eksteen’s criticism is that it assumes that
Rudman suffers loss once he proves that his physical
disabilities
bring about a reduction in his earning capacity; thereafter all that
remains is to quantify the loss. This assumption
cannot be made. A
physical disability which impacts upon capacity to earn does not
necessarily reduce the estate or patrimony of
a person injured. It
may in some cases follow quite readily that it does, but not on the
facts of this case. There must be proof
that the reduction in earning
capacity indeed gives rise to pecuniary loss.
24] In Prinsloo v
Road Accident Fund
2009 (5) SA 406
(SE) Prinsloo, a white female
inspector in the South African Police Service (SAPS) had suffered a
soft tissue injury of the lumbar
spine. The accident rendered her
unsuitable to continue in her physically demanding situation in the
SAPS. A sedentary type of
work was recommended. The expert opinion
was that, notwithstanding her placement in a sedentary position,
whatever the prospects
she might have enjoyed for promotion were
substantially reduced, if not entirely negated. That conclusion was
based on the type
of work the plaintiff did, compared to the
sedentary role recommended by medical experts. Her medical expert
testified that in
her post accident condition, she was likely to
advance beyond the level of inspector within the SAPS. The court
rejected that supposition.
The court reasoned that, if relevant
factors such as race, equity and structural requirements were taken
into account, the plaintiff’s
prospects for promotion, as a
white woman, were negligible even pre-accident, as the evidence by
the SAPS had established. The
court therefore concluded that the
claimant had failed to discharge the onus of proving that she
suffered a loss or reduction of
earning capacity as her pre and
post-accident promotion prospects were the same. At paras 5 and 6 the
following was stated:
“
A
person’s all round capacity to earn money consists, inter alia,
of an individual’s talent, skill, including his/her
present
position and plans for the future, and, of course, external factors
over which a person has no control, for instance, in
casu,
consideration of equity. A court has to construct and compare two
hypothetical models of the plaintiff's earnings after the
date on
which he/she sustained the injury. In casu, the court must calculate,
on the one hand, the total present monetary value
of all that the
plaintiff would have been capable of bringing into her patrimony had
she not been injured, and, on the other, the
total present monetary
value of all that the plaintiff would be able to bring into her
patrimony whilst handicapped by her injury.
When the two hypothetical
totals have been compared, the shortfall in value (if any) is the
extent of the patrimonial loss. That
loss is, as adumbrated herein
before, calculated by the actuary on scenarios postulated by Dr
Holmes. At the same time the evidence
may have no appreciable effect
on earning capacity, in which event that damage under this head would
be nil”.
25] It is common
cause between the parties that the injured repeated grade 3 post
accident. Pre accident the injured never repeated
any grade. Looking
at the injured’s school reports pre- accident and taking the
opinion of Ms Wentzel which describes the
injured’s performance
pre-accident as ranging from incompetent to partially achieved, his
scholastic functioning at school
entry having been regarded as poor,
it cannot be said that the injured’s performance pre-accident
ranged from average to
above average as alleged in para 7 of the
plaintiffs particulars of claim. It is correct that most of the
experts used by the parties
to assess the injured suspected a head
injury until Dr Okoli medico-legally examined him and concluded that
he sustained dental
and gum injuries which injuries did not alter his
mental status and should not affect his scholastic performance. It
was submitted
on behalf of the plaintiff that according to Ms Painter
the injured sustained other injuries, viz, neuropsychological related
sequelae
which will affect him in the future resulting in him
progressing slowly post-accident. It was also submitted that the
failure of
grade 3 by the injured is accident related whether he
sustained a head injury or not. If one takes into account the
injured’s
family background and history, in particular, the
level of education of his parents and the fact that his brother has
failed a
number of grades at school, it cannot be concluded that pre
accident the injured could have progressed smoothly at school without
failing. There is evidence from his family and from his own
performance pre-accident that he was not a good scholar at all
pre-accident.
26] It is not in
dispute from the expert reports that the injured will progress at a
slow pace to finish school. This according
to Ms Wentzel is based on
his pre-morbid performance at school which opinion I find realistic
and making sense given the evidence.That
is the reason why the
Educational Psychologists recommended that he should get remedial
assistance and counselling. Although the
Educational Psychologists
found some educational, neuropsychological and emotional difficulties
when they assessed the injured,
they agree that he has behavioural
and psychological difficulties which could probably be as a result of
family problems. While
Ms Wentzel’s view is that the injured
could obtain a grade 10 pre morbid and post morbid although at a slow
pace, Dr Rossi
believes that he would be able to pass grade 12 and
enrol at a technikon pre and post morbid although post morbid there
is a likelihood
that he will repeat a grade in his effort to obtain
matric. The Educational Psychologists agree that there was no
difference from
pre to post morbid levels of injured.
27] Dr Rossi who is
a Neuro and Educational Psychologist noted pre-existing developmental
difficulties, a problematic family background,
poor motivation and
lack of cooperation on the injured and opined that all these
complicate his situation. She opined that there
is a chance that he
will drop as he is immature and is inclined not to cooperate. Ms
Painter opined that aggression may relate
to unfortunate family
circumstances or to a more significant brain injury if shown to
exist. According to her bearing in mind mouth
injuries it seems
highly likely that current dental ailments emanate from the accident
and together with fatigue caused by chronic
infection, this may lower
academic achievement. The head and/ or brain injury is not confirmed
by Dr Okoli, the Neurosurgeon, and
according to him the injuries
sustained should not affect the injured’s scholastic
performance.
28] It is clear from
the reports that the injured had pre-existing developmental
difficulties, behavioural and psychological problems
which could be
as a result of the family problems. Ms Painter concedes that
aggression may relate to the injured’s unfortunate
family
circumstances. Taking all this evidence into account it is my view
that Ms Painter’s opinion that it is highly likely
that the
injured’s mouth and dental ailments together with fatigue
caused by chronic infection may lower his academic achievement
is not
supported by any evidence.
29] It must be
accepted that apart from the accident the injured has lots of
problems as discussed above. He is not a gifted child
academically.
There are problems in his family which also affect his performance at
school. His aggressiveness could relate to
his family circumstances
and his emotional difficulties.
30] Although Ms
Kotze is of the view that if it is accepted that the injured did not
sustain a head injury and would still be able
to complete grade 11,
he would theoretically speaking still be able to earn the salaries as
per the pre-accident scenario, she
further opined that should there
be any residual neuropsychological difficulties or reported
difficulties of aggressiveness and
tiredness continues, this could
affect the injured’s work performance resulting in mind not
being able to perform optimally
and thus outperforming his uninjured
counterparts. I find this opinion unrealistic taking into account
that Ms Kotze only relied
on the opinion of Ms Wentzel and did not
look at the reports of Dr Rossi and Dr Okoli. I accept the opinion of
Dr Fourie as realistic
because he took all the reports into account
when he concluded that it is not envisaged that the injured may have
a truncation
in his future career path progression and likely
earnings, until retirement age. His opinion accounts for all the
evidence tendered.
31] It is therefore
my view that the failure of grade 3 by the injured in 2007 post
accident was not accident related. The injuries
sustained in the
accident were just physical injuries which did not affect his
scholastic performance. Given his performance at
school pre-accident
and taking into account that in the year of the accident, he managed
to pass the grade he was in, I find that
his school performance was
not changed by the accident and that the problems that are discussed
supra which he is now having, existed
pre accident.
32] The plaintiff
has therefore failed to discharge her onus of proving that the
injured suffered a loss or reduction of earning
capacity as her pre
and post-accident situation has been the same.
33] The injured has
therefore suffered no loss of earning capacity or loss of earnings.
34] In the result I
make the following order:
34.1 The defendant
is ordered to pay the plaintiff an amount of R108 00,00 in full and
final settlement within 14 days of this order,
directly into the
trust account of the plaintiff’s attorneys;
34.2 The defendant
will provide the plaintiff with an undertaking in terms of section 17
(4) (a) in respect of future accommodation
of Aaron Lindokuhle Sibeko
in a hospital or nursing home for treatment of or rendering of a
service or supplying of goods to him
to compensate the plaintiff in
respect of the said costs after costs have been incurred and on
tendering of proof thereof limited
to 90%.
34.3 The defendant
will pay the plaintiff’s taxed or agreed party and party costs,
which will include costs in obtaining the
medico legal reports as
well as the reservation and qualifying fees of the following experts:
34.3.1 Anita Painter
(psychologist);
34.3.2 Anne-Marie
Wentzel (Educational Psychologist);
34.3.3 Ben Moodie
(Industrial Psychologist);
34.3.4 GRS Actuarial
consulting (Actuary);
34.3.5 Dr. Odendaal
(Eye Surgeon);
34.3.6 M Manonyane
(Clinical Psychologist);
34.3.7 M Mabongo
(Maxilofacial & Oral Surgeon)
34.3.8 Costs of
counsel and the attendance of the pre-trial conference by counsel.
34.4 The amounts
stipulated in paragraph 1, shall be paid into the trust account of
the plaintiff’s attorney, the details
of which are; Jacobus
Attorneys Trust, Account Number[...], Standard Bank, Pretoria Branch
code:010045, reference: AS0707.
M J TEFFO
JUDGE OF THE HIGH
COURT, NORTH
GAUTENG
Counsel for the
plaintiff : L Schreuder
Instructed by :
Jacobus Attorneys
Counsel for the
defendant : PN Mahlangu
Instructed by :
Fourie Fismer Inc
Date of Hearing : 15
April 2013
Date of Judgment :
11 April 2013