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[2014] ZAGPPHC 227
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E.K v Road Accident Fund (2011/46163) [2014] ZAGPPHC 227 (17 April 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: 2011/46163
In
the matter between:
E.
K.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE,
J
:
[1]
The Plaintiff, currently a [……] year old male person,
sustained severe bodily injuries during a motor vehicle
accident on
26 March 2010. The motor vehicle accident occurred under
circumstances that render the Defendant liable to compensate
him
under various heads of damages as envisaged in the
Road Accident Fund
Act No. 56 of 1996
, as amended.
[2]
This matter serves before court with merits having been finalised on
an earlier hearing on the basis that the Defendant will
be liable for
70% of the proven damages of the Plaintiff.
[3]
The question that needs resolution by this court is quantum.
However, the parties have in this regard settled certain
other
aspects of quantum such that the court is asked to decide on the
Plaintiff’s loss of earning capacity only.
[4]
The Plaintiff sustained the following serious bodily injuries:
4.1
A severe axonal
brain injury with intra cranial bleeding;
4.2
Hemopneumothorax and collapsed lung on the right side;
4.3
Severe facial bone fractures; and
4.4
Loss of two front teeth of the maxilla.
[5]
The parties have agreed that the Defendant will compensate the
Plaintiff for the aforesaid injuries under the following headings:
5.1
Past hospital and
medical expenses;
5.2
Future medical expenses; and
5.3
General Damages.
[6]
The Plaintiff having not claimed under the other heads of damages,
the only head of damages that falls for determination by
this court
is loss of earning capacity.
[7]
The Plaintiff argues that prior to the accident he was vigorous,
healthy and bouncy, ready to take on the world. The injuries
that he suffered on 26 March 2010 in the accident have turned him
practically into a worthless and derisory young man totally incapable
of independently venturing into life.
[8] In
an endeavour to establish the accuracy of the above, the Plaintiff
called his parents to give an account of his life both
pre and post
morbidly. The remainder of the witnesses are experts.
[9]
The defendant’s attitude to the claim is essentially that while
the Plaintiff has indubitably sustained severe injuries
during the
accident, for which it has agreed to compensate him, looking at his
pre- and post-morbid academic performance, he should
be able to still
acquire a diploma or even a university degree as predicted.
With a diploma or degree the Plaintiff should
be in a position to
compete and exert himself among his peers in the open labour market.
[10]
In its pursuit to demonstrate this, the Defendant called two expert
witnesses and these are Dr Prag, a remedial and educational
psychologist and Ms Gama, an industrial psychologist.
[11]
Some of the experts compiled joint minutes noting their points of
convergence and those upon which they are at variance.
The
Defendant has also admitted some of the reports of the Plaintiff.
The joint minutes, to a large extent, and the admission
of certain
reports have obviated the need to call those witnesses to take the
stand.
[12]
The first witness who took the witness stand to testify on behalf of
the Plaintiff was his mother, Ms Elizabeth Kotze and she
said:
12.1
She is the Plaintiff’s mother. The accident occurred when
the Plaintiff was [….] years
and […] months old;
12.2
The Plaintiff’s childhood and growth were normal in every
respect.
12.3
During his childhood, the Plaintiff was involved in the following
minor accidents:
12.3.1
He fell off from a step ladder when he was three and sustained a
hairline fracture of his skull. He did not lose consciousness.
She took him to hospital were he was treated and discharged on the
same day;
12.3.2
The Plaintiff’s tonsils were removed when he was four;
12.3.3 He also fractured
his femur but this too did not complicate;
12.3.4
He cut his finger when he was in primary. This too did not have
any impact on his pre-morbid emotional functions;
12.3.5
The Plaintiff was born with squint eyes. For that reason, he
underwent several eye operations to correct them.
12.4
The Plaintiff attended his nursery in Belabela in Limpopo and started
his primary and high school in Florida,
Roodepoort.
12.5
Prior to the accident the Plaintiff was very active in sporting
activities, participating in athletics, rugby
and cycling. He
was particularly outstanding in cycling and was part of the Mr Price
Cycling Club.
12.6
He took part in both road and mountain biking. He trained daily
and participated in virtually every
race. Those races took
place every second weekend.
12.7
Plaintiff became a totally different child after the accident.
Post morbidly the Plaintiff presents
with:
12.7.1
He is now suffering from epileptic seizures, which he controls by
taking Epilim;
12.7.2
He is also irritable and his concentration span is approximately one
hour. He cannot finish any tasks assigned to him;\
12.7.3
He does not take responsibility like before;
12.7.4 He lacks interest
in anything. He is forgetful. He needs to be reminded at
all times and this must be done daily.
For example, she reminds
him to take his epileptic medication whenever it is time to do so;
12.7.5
His behaviour is at times that of an eight year old boy and on other
occasions, he is a normal nineteen year old child.
He fails to
listen and obey instructions;
12.7.6
He works with his father but continues to lack a sense of
responsibility. He comes back home whenever he feels like.
He fails to execute tasks. His ambition was to become a
helicopter pilot but cannot because of his medical condition besides,
he does not have direction in life;
12.7.7
The degree of help by his mother increased tremendously as a result
of his poor concentration span. His mother assisted
him far
more than she did before the accident. She assisted him with
Afrikaans and English and he took extra lessons for
all his other
subjects;
12.7.8
His parents cannot discipline him and they were professionally
advised that people with frontal lobe injuries would normally
get
more confused if scolded or shouted. She cannot leave him in
the care of any other person. If she does, it will
be his
father;
12.7.9
She thinks that his future is doomed as he will not be able to do
anything for himself in the future;
12.7.10
The many friends that he had prior to the accident have deserted
him
because of his strange behaviour and things that he says to them;
12.7.11
He
does not
understand “no” as an answer and continuously repeats
himself with no memory of what he has already said or
done;
12.7.12
He is withdrawn preferring instead to retreat to his bedroom
and
chatting on ‘whatsapp’ or previously, ‘mixit’.
He now communicates by means of those social
media;
12.7.13
His best friend is his brother even though he complains that
the
Plaintiff drives him crazy. His girlfriend has left him as he
keeps on talking about one single thing probably without
realising
that he is boring her;
12.7.14
The doctor diagnosed his withdrawal to be a sign of depression
consequently he prescribed anti-depressants. All these problems
did not manifest themselves pre-morbidly;
12.7.15
He needs close supervision virtually on everything that he does.
He cannot mow the lawn without being supervised. He leaves sections
not mowed and gets angry when confronted with his mistakes;
12.7.16
He is not trustworthy. She cannot even trust him to change
a
tyre without close supervision;
12.7.17
He is completely disinterested in life and nothing whatsoever
motivates him;
12.7.18
Pre-morbidly, he was always interested in his father’s
business
and new machines acquired but after the accident when his father
bought a machine for him to operate, he showed no interest
and just
walked away after a few minutes;
12.7.19
Probably in consequence of the Epilim treatment, he suffers from
extreme fatigue, he has to get to bed early and sleeps 2 to 3 hours
during the day.
12.8
In cross-examination she denied that the Plaintiff was hyperactive
during his childhood. According
to her the Plaintiff was not.
However, he was just as busy as any other child of his age. She
was then referred to
the report of Ms Bubb who noted that the
Plaintiff was hyperactive before his accident;
12.9
She deferred to Ms Bubb herself but in so far as she understood the
explanation was that Ms Bubb was told
by the Plaintiff himself during
the consultation that he was hyperactive but it is not hyperactivity
in the medical sense.
She denied that the Plaintiff fought with
his teachers both prior and after the accident;
12.10
The Plaintiff wrote and passed Grade 12 without any problems.
He got 73% for Civil Technology and 70% for life
Orientation.
It was put to her that his marks were inconsistent with someone with
a concentration span of one hour;
12.11
The Plaintiff went to see a career guidance advisor. The
advisor recommended Business management course but only
if he could
improve his mathematics;
12.12
It was further put to her that the Plaintiff could not have become a
helicopter pilot because his mathematics and physical
science, which
are essential for any person wishing to be a pilot, were extremely
poor;
12.13
It was also put to her that although it is claimed that his
concentration span is very low, he still managed to write
and pass a
learner driver’s license and subsequently passed a driver’s
license. She conceded that he drives but
epilepsy is a
problem. She must at all times ensure that he takes his
medication to avoid an epileptic attack while driving;
12.14
As a matter of rule though, the Plaintiff does not drive for long
distances. At most it is mainly local –
from home to the
mall or to work, which is also not far from home. The Plaintiff
is very conscious of his condition as a
result of which he imposes
self restrictions;
12.15
The Plaintiff was not taken to a special school because both she and
her husband believed that he could make it in a
normal school.
For that reason they exerted every effort to making sure that he made
it through. She conceded that
she is protective as a mother.
[13]
DR DIGBY ORMOND-BROWN, a neuropsychologist testified that:
13.1
He summarised neuropsychology as the study of the effect of trauma on
the capability of the brain to think;
13.2
He conducted certain tests on the Plaintiff. His findings are not
necessarily the result of the tests that
he conducted during his
examination of the Plaintiff. They are also from talking to
people around the Plaintiff. From
his examination of the
Plaintiff he found that:
13.2.1
He is unable to multitask;
13.2.2 He has a
significant problem with attention and concentration. His
delayed recall and recall following interference
falling into the
abnormally impaired range;
13.2.3
Narrative testing revealed that his performance fell within the
abnormally impaired range for both delayed and immediate
recall;
13.2.4
His performance on abstract tasks was defective;
13.2.5
He experienced mild difficulty expressing himself;
13.2.6
He would lose track of what he was saying mid sentence;
13.2.7
He showed some measure of difficulty following multistep commands,
due to difficulties with working memory and concentration;
13.2.8
His mental arithmetic ability was below average;
13.2.9 He established
subtle difficulties with executive brain functioning, with problems
established with shift response set.
His error rate was 4 times
higher than normal;
13.2.10
He was of above average ability prior to the accident.
13.3
The Plaintiff has exhibited several typical emotional changes post
the brain injury including becoming moody and irritable;
13.4
The Plaintiff has vegetative symptoms of a head injury particularly
marked susceptibility to fatigue;
13.5
Following his findings as aforesaid he concluded that it is unlikely
that the Plaintiff will be able to study
further as he would not be
able to cope with the demands of tertiary education in large classes
and where abstract applied thinking
is absolutely necessary;
13.6
Although Dr Ormond-Brown stepped outside of his discipline, he
ventured to state that the Plaintiff’s
neuropsychological
deficiencies, including memory, and other cognitive impairments would
result in a substantially reduced ability
to compete in the open
labour market;
13.7
Brain injury does not mean that one cannot do anything that is brain
related. For example, he can still
learn and obtain high marks
in certain subjects. The injury has therefore affected his
ability to engage at an abstract level;
13.8 He
found him to have had no ability to process numbers. He was
mentally not flexible in a situation
where one would have expected
him to adapt when faced with a challenging scenario. He makes the
same mistakes persistently.
He has therefore a short memory;
13.9
Frontal lobe is the executive management faculty of the brain.
The school results are not a good indication
of how one will apply
himself in practice. Thus, there is not necessarily a
correlation between the results at school or
university, for that
matter, with how well one will do in life;
13.10
He confirmed that the popping out of the Plaintiff’s squint eye
especially after a long concentration span is
a sign that he has a
brain injury problem. The problems with which the Plaintiff
presents now are incurable;
13.11
In cross-examination, Counsel for the Defendant asked him to
reconcile the Plaintiff’s statement to him that since
the
accident he finds it difficult to concentrate at school with the
somewhat good Grade 12 results that he obtained. His
answer was
that his performance has been compromised and that does not mean that
he is incapable of doing anything;
13.12
It was put to him that writing and passing a learner driver’s
license and subsequently successfully obtaining
a license is
completely irreconcilable with a person suffering from a brain
injury. His response was that it is easy to study
and pass a
learner driver’s license but this is not a guarantee that he
has no brain injury. He would advise against
the plaintiff
driving as he could pose a danger to himself and other users of the
road;
13.13
It was also put to him that the evidence before court is that the
Plaintiff can only concentrate for one hour.
That being the
case, it is startling how he managed to pass a three hour Grade 12
paper. He thinks that the extra time that
was allowed to the
Plaintiff on account of his injuries probably permitted him to take
breaks thereby refreshing his brain in between
without standing up
and walking around the examination room though;
13.14
His lack of concentration makes him less favourable to compete for
positions with his peers. His mental disability
does not mean
that he is entirely incapable of doing something meaningful albeit
that it will have to be under micro supervision
to a point of
absurdity;
13.15
It should always be borne in mind that his rate of storing and
retaining information is relatively limited. He
is capable of
learning but the rate at which he forgets is alarming and that makes
him different from other people with no brain
injury. He is
likely to disintegrate when faced with difficult situations and that
will render him unfit in a work environment;
13.16
The above must be distinguished from what one can refer to as
mechanical or automatic functions such as walking, eating
and
driving. However, the evidence is that while he drives he knows
that he cannot do so for long distances as he will run
the risk of
his concentration lapsing;
13.17
He can do certain complicated work but it will take time to get to a
stage when he would be doing it almost automatically.
He will
need an extremely sympathetic and tolerant employer such as his
father;
13.18
He can have a tertiary education but it is remote. Even if he
does, applying it to real life will always be challenging.
He can use
a cell phone and a computer but probably cannot exploit the full
functions of the gadgets;
13.19
From his interview with the parents of the Plaintiff, the skull
fracture was insignificant. None of the current
mental
complications of the Plaintiff can be linked to the accident when he
was three years old;
13.20
An epileptic person should not operate complicated and dangerous
machines. The Plaintiff’s condition cannot
be remedied.
He confirmed that he is not aware of medication or any psychological
intervention that can be of help to the
Plaintiff.
[14]
Mr Kotze was the third witness to testify. His evidence is
that:
14.1
He is the father of the Plaintiff and operates a leasing company for
earth-moving machines;
14.2
His company employs approximately 28 people. He and his wife
did not know what to do with the Plaintiff
after he had completed
matric;
14.3
The Plaintiff works with him. He has observed that the
Plaintiff lacks concentration and interest.
He has tried
various ways of triggering his interest and vigour in life to no
avail. These methods included shouting at him,
becoming angry
with him as well as being extremely polite to him. All these
failed to give him the zeal;
14.4
The Plaintiff remains uninterested. He cannot work for a full
day. He gets tired and loses concentration.
When he gets
a chance, he would go home and retreat to his room where he sleeps.
If the Plaintiff were not his child, he
would not have employed him.
The Plaintiff requires guidance at all times and this is tiring;
14.5 He
has also asked his business associates and friends to try the
Plaintiff but most have turned him down
because they know his
background. He does not think that he will ever work independently.
Prior to the accident, the Plaintiff
was full of energy and showed
interest in the witness’s business. He was no doubt
getting the hang of how the machines
operated even though these are
complicated;
14.6
He could be a strict father but not to the point of being exceedingly
so. He has two other boys who
have been brought up under his
watchful eye and there is no abnormality in their characters.
He confirmed that the plaintiff
needs to be reminded at all times to
take his medicine;
14.7
In cross-examination it was put to him that he was mindful of the
problems that plagued the Plaintiff after
the accident but before
writing Grade 12. His answer was that he did not want to treat
his son as stupid and completely useless
now that he had been
involved in the accident;
14.8
He and his wife have not given up on their son in that they still
believe that he will be cured one of these
days. He was
positive that his son will write and pass Grade 12. However, he does
not have the same confidence that he can
successfully enrol and pass
university or college examinations;
14.9
He did not start by giving him any major and important tasks to do at
work. He instead started him
with simple tasks and he performed
badly. He showed no interest at all;
14.10
He denied that the Plaintiff is performing badly because he was never
trained for what he is expected to do. He
said that training
was and is not the issue but lack of interest is at the centre of all
this;
14.11
He is currently employed as a driver collecting parcels at various
places located in the area. He does it well
but needs close
supervision. For example they first phone the party from whom
he is to collect so that the parcel will just
be handed over when he
gets there;
14.12
He merely collects parcels. He does not know the quantity and
would not have any interest in the actual items
that he collects.
He also seems to do well with shopping lists.
14.13
It was suggested to him that since he asked if he could take a
driver’s license, it means that he showed some
interest.
He and his wife have not given up on the Plaintiff and they will give
him all the support on whatever he wants
to do. They still hope
that he will fully recover.
[15]
Dr Earle is a psychologist and testified as follows:
15.1 He
has co-authored a minute with Dr Segwapa. His testimony will
therefore concentrate on the area of
disagreement with Dr Segwapa;
15.2
Hairline fractures are a common phenomenon in children. The
Plaintiff could not have had a serious
head injury because the injury
did not result in a cognitive malfunction. He could still
recognise his parent almost immediately
after the accident;
15.3
The current problems that manifest themselves as forgetfulness,
withdrawal from everyone else, lack of interest,
irritability,
fatigue, epilepsy, failure to retain friends, etc are attributable to
the brain injury that he sustained in 2010;
15.4
His opinion is that the accident that resulted in the Plaintiff
sustaining a skull fracture at three years
does not have anything to
do with the present deficits;
15.5
Dr Earle relied on the account of the Plaintiff’s parents of
the incident when the Plaintiff fractured
his skull at three years.
He had no reason to doubt what they told him.
[16]
Dr Taylor is a psychiatrist and she gave evidence as follows:
16.1
She examined the Plaintiff and found that the Plaintiff has a Mild
Cognitive Disorder Due to Traumatic Brain
Injury with behavioural
disturbances;
16.2
The brain injury will cause fatigue and the Epilim, which he takes
for his epilepsy will have a negative
impact on his cognitive
function, make him tired, sleepy, socially withdrawn and depressive.
The Epilim will compound his
fatigue. The depression component
to the above is the only one that is treatable;
16.3
She criticised the South African Wesler Adult Intelligence Scale
(SAWAIS) test utilised by Dr Prag because
it is old and unreliable.
The intelligence OR IQ test is just one of many that one EMPLOYS to
test one’s intellect.
The new tests are more accurate.
SAWAIS 3 and 4 are the present ones, which are well regarded in this
area. The Plaintiff’s
intelligence test was average to
above average. However, the question is whether or not he can
function in the real world
with that level of intelligence;
16.4
She said that based on the Plaintiff’s psychiatric and
neuropsychological deficits he could not be
a likely candidate for
tertiary education. In this regard, she strongly differed with
Dr Prag and she emphasised that Dr
Prag’s testing protocol was
too old and out of date. She explained that taking into account The
Plaintiff’s deficits
and the side effects of his education; he
would not be capable of independent learning at tertiary level;
16.5
The reason why the Plaintiff was able to obtain a driver’s
license and pass Grade 12 is that Driver’s
license and Grade 12
matric examinations are more mechanical and structured. That
falls under a different part of the brain
not affected by this
injury;
16.6
The Plaintiff cannot work independently. If he is to do so, he
will need close and constant supervision.
It is in fact safe to
rule out any possibility of this ever happening in his lifetime;
16.7
She denied that his withdrawal symptoms could have been natural.
Assuming that there is a possibility
that it occurred naturally, the
trend since the accident is that his social interaction has been
declining;
16.8
She also denied that the disciplinarian nature of the Plaintiff’s
father and his wish for his son to
succeed in life could have added
to his depressive state;
16.9
She stated that the deficits from which the Plaintiff is suffering
will have a profound impact on all spheres
of his functioning.
His occupational prospects have been drastically become restricted.
[17]
Ms E Bubb is the educational psychologist who took the stand and
testified that:
17.1
She is an educational psychologist with special training in
neuropsychology and its upshots on education;
17.2
The Plaintiff will not be able to obtain a tertiary education.
Even if he were to obtain it, the likelihood
is that he will not be
able to apply it in life given his cognitive deficits;
17.3
The kind of brain injury sustained by the Plaintiff can be likened to
autism. An autistic child can
easily pass Grade 12 but the
challenge is application. This is true of the plaintiff;
17.4
When one wants to establish functionality in a person with brain
injury, one cannot rely exclusively on tests
aimed at testing
intelligence only. The objective of intelligence or IQ tests is
not designed to pick up deficits;
17.5
Both she and Dr Prag found the Plaintiff to have been of average to
higher average in intelligence.
Had the accident not occurred,
the Plaintiff could have obtained Grade 12 and could probably have
enrolled with a college and subsequently
awarded a diploma.
They also agreed that at a later stage he could have studied further
and converted his diploma into a
university degree;
17.6
Commenting on what Dr Prag refers to as unfortunate events in the
Plaintiff’s life, she did not believe
that any of them had any
share in his post accident cognitive functioning. These were
that the Plaintiff sustained a skull
fracture when he was three.
Similarly, she does not think that the fracture of the femur, the
removal of the tonsils, the
cut on his ring finger and the eye
operations to correct his squint eyes would have had any negative
impact on his post accident
cognitive functioning;
17.7
She holds the view that the Plaintiff is not a tertiary education
material. In so far as employment
is concerned she thinks that
he can only survive with an extremely sympathetic employer.
Given the post accident behaviour
of the Plaintiff, such employers
will certainly be far in between to find;
17.8
Asked whether she could reconcile the Plaintiff’s success in
Grade 12 and her view that he will not
succeed at a tertiary level,
she stated that high school education is highly structured.
Tertiary institutions do not keep
a closer supervision like high
schools. They assume that students who come to them are matured
and know what they want consequently
there is less guidance;
17.9
The Plaintiff cannot manage at university especially when one bears
in mind that he has the following challenges:
17.9.1
Working memory;
17.9.2
Struggles to track information;
17.9.3
Cannot focus;
17.9.4
Cannot sustain retention;
17.9.5
Visual and auditory memories;
17.9.6 Expressive and
receptive memories;
17.9.7
Struggles with fatigue;
17.9.8
Struggles with planning;
17.10 All these
cannot co-exist with tertiary education. A person who cannot
plan or structure will need to be closely
monitored just as the
Plaintiff’s parents are presently doing. The close and
unvarying supervision at home will have
to transcend in a work-place
environment;
17.11
Fatigue is the effect of brain injury and it is debilitating and
often misunderstood by parents of children with brain
injuries.
Parents often react angrily and impatiently to children with brain
injuries;
17.12
The SAWAIS test used by Dr Prag is very old going back to 1969.
Its efficacy was questioned even then. Now it
is also regarded as
archaic and outdated;
17.13
Intelligence or IQ changes all the time and the older version of
SAWAIS cannot be appropriate. The most suitable
would have been
SAWAIS 3 or 4;
17.14 Dr Prag
looked exclusively at educational psychology whereas she, in
addition, considered the neuropsychological effect
of the brain
injury. Career guidance test shows that he is below average
even on Dr Prag’s own testing;
17.15
Dr Prag does not make a hype of the epilepsy, which will always be a
problem in the future. She also does not
discuss the brain
injury and its effect on his education;
17.16
The Plaintiff was not hyperactive in the medical sense. If he
were, it definitely had nothing to do with his brain
besides, it was
not hyperactivity as would be diagnosed in the medical sense;
17.17
In cross-examination, she was asked how the Plaintiff possibly
managed to pass Grade 12, write and pass a learner driver’s
license, subsequently obtain a driver’s license and operate a
mobile phone;
17.18
She said that it is pre-existing knowledge, which does not involve
the interpretation and analysis of information.
It is therefore
a different kind of learning that engages a different part of the
brain;
17.19
The evidence is that the Plaintiff can possibly manage employment
that is very structured. She said that the fact
that his social
skills are poor, lacks interest, is withdrawn, forgetful, irritable,
etc means that he will require close supervision,
which an employer,
unless extremely sympathetic, will not tolerate;
17.20
As an above average person, the Plaintiff is likely to get bored,
make mistakes and get even more irritable as a result
of being given
structured work. He is likely to construe it as something that
undermines his intelligence. This is
the paradox about brain
injury. While a person could be intelligent, he may not necessarily
cope in life rendering his achievements
completely misplaced;
17.21
If he is put in structured employment, he will need micro management.
His assessment revealed that he has problems with
sustenance of
attention. A typical example of his intelligence co-existing with
stupidity is writing his bank card pin number on
the back of the very
bank card;
17.22
His father finds it difficult to accept the changed status of his
son. This is generally true of parents.
They find it
extremely hard to deal with a person with a brain injury. The
Plaintiff’s career is extremely limited
as a result of all
these deficits. He struggles to handle himself and
disconnects from his parents;
17.23 The Plaintiff
isolates himself. He dismally fails to retain friends, in fact
those that visit him find him unbearable
and intolerable. He
has now develobed a tendency to tell excessive lies to his parents.
This could be done with the
idea of protecting his space. He
can make decisions but it is doubtful that they will be correct;
17.24
His ability to decode words is fine. A brain injury does not
manifest itself immediately such that the actual
aftermath may occur
3 to 4 years later. In this case the Plaintiff was injured at 15
years and yet 3 years later he wrote and passed
Grade 12 without any
apparent difficulty.
17.25
She indicated that the SAWAIS is outdated and that the Plaintiff’s
results could be exacerbated. It is her
opinion that the
Plaintiff even with a tutor will not manage tertiary education.
It is just too challenging for him.
[18]
Mr Mandelowitz is the industrial psychologist who took the stand and
gave evidence as follows:
18.1
He agreed that pre-morbidly the plaintiff could have written and
passed Grade 12. Thereafter, could
have proceeded to university
of technology or even university. He could have studied
technical courses such as Engineering
in general, boiler making,
motor mechanics, etc;
18.2 He
and Ms Gama, the Defendant’s industrial psychologist, agreed on
the Patterson Scale but failed on
the level of entry and
finalisation. The lowest scale is A and highest is E;
18.3
According to him, the Plaintiff with a diploma would have entered at
C3-C4 and reached a ceiling at a D1
level whose remuneration in the
market starts at R440 000.00 and the ceiling
would be R500 000.00 to
R550 000.00;
18.4
Post-morbidly the Plaintiff would have problems at work because of
behaviour, lack of attention, fatigue,
epilepsy, micro management,
lack of concentration, irritability, expressive problems, etc;
18.5
Asked whether or not there is any work that the Plaintiff can do he
said that the Plaintiff’s assessment
disclosed that he cannot
find a suitable job. He would experience difficulty in finding
a suitable position even if he were
to obtain a tertiary level
education. He would remain less favourable in an open labour
market. No employer can stomach
a person with numerous deficits
such as those of the Plaintiff;
18.6
He was cross-examined on career guidance but the industrial
psychologist clang to his view that the Plaintiff
cannot work with
all his deficits. This marked the end of the Plaintiff’s
case.
[19]
Dr Prag was the first witness called by the Defendant and she
testified that:
19.1
She is a remedial therapist and educational psychologist;
19.2
She acknowledged that there was a brain injury as documented by the
other experts. She noted that the
Plaintiff did well at primary
school but his performance took a dip when he reached Grade 8;
19.3
It is common cause that his academic performance fluctuated
throughout his schooling career. Dr Prag
attributes his
improved marks on other subjects such as mathematics to the
effectiveness of the interventions such as medical treatment
and
extra assistance;
19.4
SAWAIS is an old standardised method of testing intelligence (IQ).
This is the test that she employed
to establish the IQ of the
Plaintiff. According to her, the results of the test should
serve as a guideline only;
19.5
The Plaintiff did not have problems with visual perception, price
controlling being business management.
He appeared average
albeit that he might have struggled with mathematics;
19.6
He was proficient in verbal and non-verbal. He also did well in
copying and recalling designs.
His reading of Afrikaans
material was good. She attributed this to the fact that
Afrikaans is his home language;
19.7
The reading of English however proved to be a struggle.
Spelling was adequate. Spelling
abstractly however
was poor;
19.8
Dr Prag stated that she did not know about the Plaintiff’s
pre-morbid emotional deficits. The
Plaintiff’s
post-morbid emotional shortcomings could have been affected by
various unfortunate pre-morbid events such as
the fractures of his
skull and femur, cutting his ring finger, the removal of his
tonsils and the operations aimed at the
correction of his squint eye;
19.9
In cross-examination it was put to her that all the plaintiff’s
experts were surprised that she used
a 1969 SAWAIS. Her
justification for employing the SAWAIS test is that the outcome
should be regarded as guideline and nothing
else;
19.10
It was put to her that the results of the career guidance test
conducted by her were dismal, surprisingly, she still
thought of him
as a tertiary education material. It was further put to her
that she seems to have completely ignored the
Plaintiff’s
dysfunctional emotional deficits. She said that the pre-morbid
emotional functioning is unknown to her.
She battled to answer
why she failed to probe on his pre-morbid emotional well-being;
19.11
She reported on his low esteem. She seems to have been very
scanty on the other post accident emotional deficits.
She was
given the post-accident deficits but she did not extrapolate the
information thereafter;
19.12
Dr Prag failed to explain why she did not probe for the information.
All she could say was that she had a column
that says, any additional
information in her sheet that the interviewees ought to have
completed prior to the examination;
19.13
Under emotional functioning, she said that she has taken into account
what the parents told her. Strangely, the report
also says that the
Plaintiff’s pre-accident emotional state is unknown to her;
19.14
She repeated that she only reported on documented information
obtained from the parents. She repeated all the minor
pre-accidents
in which the Plaintiff was involved at least about four times.
No emotional well being mentioned as such as
withdrawn, lack of
interest, etc;
19.15
On the effect of Epilim, she acknowledged that the drug has a serious
impact on his future schooling. It was put
to her that she is
not an expert in injuries that involve brain. She confirmed and
added that she never claimed to be;
19.16
She stated that since there is no difference pre and post-morbidly in
the Plaintiff’s academic performance, he
should have no problem
to still acquire a university technology qualification as envisaged.
[20]
Ms T Gama, an industrial psychologist, became the second expert
witness for the Defendant and she took to the witness stand
and
stated that:
20.1
Physically the plaintiff can work and with the obtaining of a
tertiary education he should be able to work
until retirement age;
20.2
Based on the information about school results being Grade 10, 11 and
12, she concluded that he would go to
tertiary and thereafter be
employed;
20.3
Pre-accident he would have commenced at B1 or B2 Paterson Scale and
reached a ceiling at C1 or C4.
This is assuming that he had a
degree or diploma;
20.4
Her opinion does not differ from that of Dr Prag on pre-accident;
20.5
According to her, the scenario for both pre and post-morbid remained
the same because the results are the
same;
20.6
She placed less weight on the brain injury because plaintiff did not
repeat a standard as a result of the
injury;
20.7
In cross-examination, it transpired that Ms Gama had the MMF1 Form,
hospital medical records, Dr Prag’s
report, one report of a
neuropsychologist and those of the two occupational therapists;
20.8
She, like Dr Prag, was not in attendance when the expert witnesses of
the Plaintiff gave evidence.
Moreover she did not have the
benefit of perusing their reports prior to compiling hers.
[21]
Some medico-legal reports and joint minutes were admitted into
evidence without the need of the authors to take the witness
stand.
These were:
21.1
The joint minute of Ms Madelaine Dick and Ms Thabisa Caga;
21.2
The joint minute of
Drs Earle and Segwapa;
21.3
The medico-legal reports of:
21.3.1 Professor Lurie,
the maxilla-facial and oral surgeon;
21.3.2 Dr Barnes, the
orthopedic surgeon.
[22]
The occupational therapists agree that physically the Plaintiff is
well and fit. His emotional and cognitive deficits
fall outside
the realm of their discipline. They have however taken notice
of the continued treatment that the Plaintiff
is receiving.
[23]
While the joint minute of the neurosurgeons have been admitted into
evidence, Dr Segwapa did not sign the subsequent minute
that was
prepared by Dr Earle. For that reason, Dr Earle was therefore
required to testify on the after-effects of the skull
fracture
sustained by the Plaintiff when he was three. His evidence has
already been discussed above and was not in any event
challenged by
the Defendant. The reports of Professor Lurie and Dr Barnes
were admitted without any conditions whatsoever.
[24] Both parties are
agreed on the emotional well being and cognitive functionality of the
Plaintiff pre-morbidly. Differences
however emerge
post-morbidly especially on the likely effect of the brain injury on
the Plaintiff’s ability to relate to
the realities of working
life.
[25]
All the expert witnesses of the Plaintiff are agreed that the
emotional well being, memory and cognitive deficits with which
the
Plaintiff now presents are the
sequelae
of the accident. The Defendant attempted to place emphasis on
the skull fracture that the Plaintiff sustained when he was
three
years old as having a share on the Plaintiff’s post-morbid
deficits. Every expert witness of the Plaintiff to
whom this
proposition was made rejected it out of hand.
[26]
The evidence of the Plaintiff’s witnesses is that the fact that
he obtained a driver’s license and that he wrote
and passed
Grade 12 without any apparent problems post-morbidly is an indication
that he can enrol and obtain a diploma at any
university of
technology. Dr Tailor without any hesitation rejected this
suggestion. She said that matric is extremely
structured and
besides, students receive a lot of attention and that is what the
Plaintiff will not get at tertiary level.
[27]
Dr Omond Brown and Ms Bubb were somewhat polite stating that even if
he were to successfully obtain such tertiary qualification
it will be
useless and meaningless to someone like the Plaintiff. The
Plaintiff will not be able to apply his intelligence
to any work
situation as a result of all the deficits referred to elsewhere in
this judgment.
[28]
The experts are agreed that with close and constant supervision the
Plaintiff should be able to do work that is structured
and
repetitive. Having said so, however, they also warn that this
can be ruled out because he will be irritable, withdrawn,
forever
tired and lacking in concentration. In short, the Plaintiff is
not suited for work on account of all the deficits
brought about by
his brain injury on 26 March 2010.
[29]
Dr Prag assessed the Plaintiff and came to the opposite conclusion –
the accident did not impact on the Plaintiff’s
ability to study
further and therefore he should be in a position to proceed to a
university of technology for a diploma.
The criticism in her
approach is that she, unlike the other expert witnesses of the
plaintiff, looked at the intelligence of the
Plaintiff in isolation.
For that reason, she missed on the effect of the deficits on the
ability of the Plaintiff to work.
[30]
Ms Gama who is the Defendant’s industrial psychologist also
came to a similar conclusion. It was established, however,
in
her case that at the time when she compiled her report she only had a
limited number of documents and reports. It was
thus inevitable
to conclude in the manner she did. Her evidence could not have
been helpful to this court at all.
[31]
It is trite that there are fundamentally two ways in which the court
can approach the subject of loss of earnings and these
are:
31.1
The court may ascertain a practical and realistic amount of loss
based on the verified facts and the existing
circumstances of the
case; or
31.2
The court may, with reference to mathematical computation, determine
an amount made on the demonstrated facts
of the case using such
calculation as a foundation for its award. See in this regard
the case of
Southern Insurance
Association v Bailey N.O.
1984 (1) SA
98
(A).
[32]
At times the court is faced with instances where there exists no
sufficient information. In those cases the “gut
feel”
approach is normally ideal the proviso being that the plaintiff puts
at the court’s disposal adequate evidence
to enable the court
to appraise such financial loss.
[33]
The method referred to in paragraph 31.1 should be adopted. The
court has noted that Mr Jacobson has applied the usual
contingencies
such as:
33.1
The possibility of mistakes having been made in the determination of
the life expectancy of the Plaintiff;
33.2
Accidents which may affect his earning capacity and life expectancy;
33.3
Circumstances which would increase or decrease his cost of living;
33.4
The likelihood of illness, inflation and adjustment for costs of
living allowance;
33.5
The likelihood of the Plaintiff being fired or retrenched.
[34]
The list above of possible contingencies is not exhaustive but it is
merely intended to serve as guidance. However it
is also true
that one cannot always assume that the worst will happen to a
plaintiff. In this regard see
Southern
Insurance Association Ltd v Bailey
1984
(1) SA 98
(A) where Nicholas JA expressed it in the following terms:
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial Judge
is ‘tied down by inexorable actuarial calculations’. He
has ‘a large discretion to award what he
considers right’.
One of the elements in exercising that discretion is the making of a
discount for ‘contingencies’
or the ‘vicissitudes
of life’. These include such matters as the possibility that
the plaintiff may in the result have
less than
F
a
‘normal’ expectation of life; and that he may experience
periods of unemployment by reason of incapacity due to illness
or
accident, or to labour unrest or general economic conditions. The
amount of any discount may vary, depending upon the circumstances
of
the case. The rate of discount cannot, of course, be assessed on any
logical basis: the assessment must be largely arbitrary
and must
depend upon the trial Judge's impression of the case. In making such
a discount for
G
‘
contingencies’
or the ‘vicissitudes of life’, it is, however, erroneous
to regard the fortunes of life as being
always adverse: they may be
favourable.
”
[35]
Having considered all the above I have come to the conclusion that
the contingency deductions on the value of the Plaintiff’s
income having regard to the accident should be 20%. I apply
this contingency mindful that all his experts have found that
he will
have no residual working capacity. The calculations of the
amount to be awarded are therefore as per Mr Jacobson’s
actuarial report the contents of which, I assume, are familiar to
both parties.
[36]
In the circumstances I make the following order:
1)
The defendant pays to the Plaintiff an amount of R4 281 155.66 on or
before 28
May 2014 into the following bank account:
Name of Account holder
:
Type of Account
:
Bank
:
Account
no
:
Branch
code
:
Branch
:
Deposit
ref
:
2)
The attorneys for the Plaintiff, Faber & Allin Incorporated shall
pay the
aforesaid amount, after deducting agreed fees and
disbursements, to THE E. K. SPECIAL TRUST to be established as per
the trust
deed attached hereto marked Annexure “A”;
3)
The defendant shall pay for the costs of the administration and
management of
said E. K. SPECIAL TRUST at a rate equivalent to the
costs of a curator bonis;
4)
The Defendant furnishes the Plaintiff with an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, as
amended as follows: -
4.1
limited to 70%, of proven medical expenses for the costs of the
future accommodation of
the Plaintiff in a hospital or nursing home
or treatment of or rendering of a service to him or supplying of
goods to him arising
out of injuries sustained by him in the motor
vehicle collision which took place on 26 March 2010, after such costs
have been incurred
and upon proof thereof;
4.2
Said undertaking shall specifically include the projected medical
treatment, projected medical
procedures, prescribed medication,
medical consultations, therapy, adaptive equipment and devices,
convenience services and aids,
structural home changes, assistance,
rehabilitation, continuous medical management and transport costs for
medical treatment and
recommendations as set out in medico legal
reports and subsequent joint minutes of the medical experts filed of
record in this
action, including but not limited to: -
i)
Dr Earle;
ii)
Dr. Segwapa;
iii)
Prof. Lurie;
iv)
Digby Ormond S. Brown;
v)
Mrs. Madalein Dick;
vi)
Ms Elleonor Bubb;
vii)
Dr. J. Taylor
5)
The Defendant shall pay the Plaintiff’s taxed and/or agreed
party and party
costs on the High Court Scale, 14 (fourteen) days
after settlement and/or taxation thereof, which costs shall
specifically include:
-
5.1
the preparation and consultation fees of Plaintiff’s Counsel
with the Plaintiff, Plaintiff’s
attorney, expert witnesses and
factual witnesses;
5.2
the day and/or trial fees of the Plaintiff’s Counsel and
instructing attorney for
a total of 13 days;
5.3
the fees of Counsel in preparing heads of argument;
5.4
the disbursements paid for medico-legal and actuarial reports;
5.5
the disbursements paid in obtaining joint minutes of expert
witnesses;
5.6
the reservation, preparation and qualifying fees of Plaintiff’s
expert witnesses,
having testified at trial;
5.7
the Plaintiff’s transport costs in respect of attending
medico-legal appointments
of the defendant’s experts witnesses;
5.8
any costs attendant upon obtaining payment of the total amount
referred to in paragraph
1.
6)
The Plaintiff shall file a notice of intention of taxation together
with the
proposed bill of costs prior to enrolling the bill of costs
for taxation and shall comply with the Rules of Court and time
periods
specified therein for the taxation of costs.
__________________________________________
B
MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF: Adv. M Van den Barselaar
INSTRUCTED
BY: Faber and Allin Inc Inc. Attorneys
COUNSEL
FOR THE DEFENDANT: Adv. T Nyandeni
INSTRUCTED BY:
Kunene Ramapala Botha Inc.
DATE
OF HEARING: 10/02/2014
DATE OF JUDGMENT:
17/04/2014