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[2013] ZAGPPHC 416
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Ngcama v Road Accident Fund (26620/11) [2013] ZAGPPHC 416 (11 November 2013)
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REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 26620/11
DATE:
11 NOVEMBER 2013
In
the matter between:
BHEKISENZA
ELLIOT NGCAMA
.........................................
Plaintiff
and
ROAD
ACCIDENT
FUND.
...................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI
J:
1.
The
plaintiff, acting on behalf of his daughter, B……
F…….N…… ("B……"),
has instituted a claim for damages against the respondent as a result
of injuries B….. sustained in a motor vehicle collision
which
occurred on 29 June 2008. At the time of the collision, B……
was 11 months old.
In
the amended particulars of claim the plaintiff states that his
daughter suffered thefollowing damages:
General
damages R 600 000.00
Future
medical treatment R 95 000.00
Future
loss of earnings
R2 000 000.00
Total
R 2 695 000.00
3.
The
parties have reached agreement on the merits in terms of which the
defendant has admitted liability and that it will compensate
Plaintiff for 100% of her proven damages.
4.
On
28 January 2013 Judge JW Louw granted an order, by agreement between
the parties, inter alia, on the following terms:
4.1
The
defendant shall make an interim payment of R280 000.00 to the
plaintiff on or before 28 February 2013 (paragraph 2);
4.2
The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4)(a) of the
Road
Accident Fund,
No
56 of 1996, for 100% of the costs of the plaintiff's future
accommodation in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to the plaintiff arising
out of the injuries sustained by the plaintiff in the motor vehicle
collision as detailed in the plaintiff's medico-legal reports, after
such costs have been incurred and upon proof thereof(paragraph
3).
5.
The only issue to be determined is the quantum of damages, in
particular, the court has to determine whether:
5.1
B….
suffered any injury to her brain, and if so, whether the injury
caused B…. to suffer loss of future income or
future earning
capacity.
5.2
If
the court finds in favour of the plaintiff:
5.2.1
the
prepared actuarial report should be admitted; and
5.2.2
the
agreed upon award for general damages should be
R
450000.00.
6.
It
is common cause that on 29 June 2008 at about 23h00 a collision
occurred between a motor vehicle, bearing registration number
NUR
24301 and driven by the plaintiff, and an unidentified white LDV
motor vehicle driven by an unknown driver, along the R612
Ixopo
Road. After the accident B….. was admitted to the JG Crookes
hospital and was discharged after a day or two
7.
At
the time of collision, B…. and others, were passengers in the
motor vehicle driven by the plaintiff.
8.
The
hospital record that B…. has an uncomplicated head injury.
9.
The first witness for the plaintiff is Mrs Linda De Rooster ("Mrs
De Rooster"), an educational psychologist. Her evidence
is that
at the time she assessed B…, she came to the conclusion that
B…. sustained a brain injury and that due to
the injury and
the
sequelae
thereof, B… would not be able to complete Grade 12 in a
mainstream school. She was also of the opinion that pre-morbid B…
was of average intelligence. She recommends that B…. should be
placed in a remedial school because of development difficulties
which
have arisen as a result of the injuries she sustained, which
difficulties could lead to her struggling in a mainstream school.
Mrs
De Rooster indicates that she came to this conclusion, based on Dr Du
Troveau's (the neurosurgeon) report and after conducting
certain
relevant tests. She also indicated that although she was provided
with B….'s school report, which indicates that
she was in
Grade R, she disregarded the report in her assessment as the report
was not reflective of a foundation phase report.
It is Mrs De
Rooster's opinion that B….. has developmental difficulties in
that she is at a lower level, in terms of abilities,
than children
her age. She testified that B… could, for instance, not write
her name or draw, remember her birthday or where
she stays, as
expected from a child her age.
10.
In
cross-examination Mrs De Rooster indicated that B…. had
deficits in certain areas of her innate abilities, indicative
of
developmental delay.
11.
In
their joint minute, Mrs De Rooster and Ms Masindi Nethavhani, a
research psychologist for the defendant, agree that:
11.1
before
the accident, B….'s developmental milestones appear to have
been normal and that she would, but for the accident,
have passed
Grade 12 in a mainstream school.
11.2
B….would
benefit by being placed in a remedial school.
12.
The
second witness was Dr Michael Dennis Du Trevou ("Dr Du Trevou"),
a neurosurgeon. He consulted with B… on 13
April 2011. Dr Du
Trevou testified that in his opinion B… has sustained a severe
brain injury as a result of the accident.
He testified that, although
the hospital's clinical notes reflected that B… had a head
injury and appeared normal, he was,
however, concerned about another
note in the hospital records indicating that after the accident, B…
had been unresponsive.
In his opinion this indicates a significant
impact to the brain and that cognitive problems could be anticipated.
As a result,
he recommended that B… be referred to an
educational psychologist. He opined that even if it was diagnosed
that B…
had a mild concussion, as concluded by Dr Segwapa, the
defendant's neurosurgeon, this would also have long term sequelae. Dr
Du
Trevou discounted the Glaxo-Coma score of 14/15, done by the
hospital staff when B…. was admitted. In his opinion the
Glaxo-coma
score does not work with children under the age of 5 years
in that you cannot assess their orientation and awareness as they
cannot
verbally respond to questions.
13.
In
cross-examination Dr Du Trevou explained that the Glaxo-coma score
tests a patient's eye-openings; motor function and orientation;
and
speech. He further indicated that a Glaxo-coma score of 15/15
indicates that the patient is fully conscious. Furthermore, that
if
the score is 8/15 or less, this is an indication that the patient is
in a coma. According to Dr Du Trevou, a score of 14/15
in an adult
indicates that the patient is either disorientated or confused.
14.
The next witness was Mrs Marylyn Jane Adan ("Mrs Adan"), a
neuropsychologist, who also consulted with B…. Mrs
Adan
testified that children who sustained brain injury experience delayed
development compared to normal children at that age.
She was of the
opinion that the age at which B… was at the time of the
collision (11 months), is a critical stage at which
children's motor,
speech and language skills kick in. She further testified that if a
child sustains a brain injury at that stage,
the
sequalae
of such an injury is delayed development in that their brain is not
fully developed. She was of the opinion that a child who sustains
an
injury to the right hemisphere, which relates to vision, perceptual
and construction areas, such injury would impact on the
child's
schooling, for instance, her ability to learn to write and read. It
is Mrs Adan's evidence that the sequelae of an injury
to the brain
include motor functioning, cognitive functions and social skills
deficits. In the case of B…., she found that
she had delays in
fine motor skills development in that there was in-coordination, she
struggled to draw shapes, was easily distracted
and inattentive, and
her literacy and numeracy skills were not well developed. She was
further of the opinion that B…. suffered
from residual trauma
in that she still wets her bed. Furthermore, she corroborated Dr
Trvou's evidence that the Glaxo-coma score
done on B… at the
hospital was not appropriate. In her view it should have been done by
a paediatrician.
15.
In
cross-examination Mrs Adan denied that she used Dr Du Trevou's report
as her starting point. She testified that B… displayed
signs
indicative of a brain injury. With regard to a comment made in Dr
Trevou's report that B… shows "uneventful progress",
Mrs Adan testified that in her opinion that indicates that B…
had further complications (like medical consequences) but
that does
not mean that there were no further neuropsychological consequences.
With regard to B….’s Glaxo-coma score,
Mrs Adan was of
the opinion that as there is evidence that she was comatose at some
stage after the collision and the fact that
she was only admitted to
hospital 4 (four) hours after the collision, the fact that her eyes
were open indicates that her level
of unconsciousness had reduced.
She reiterated that the Glaxo-coma score of 14/15 was an indication
that B… was not fully
conscious. Further she reiterated that
at the time she assessed B… she was showing areas of deficit
in that she could not
draw, colour or assemble puzzles properly.
16.
At
the end of Mrs Adan's evidence, Mr Oosthuizen, counsel for the
plaintiff, intimated an agreement reached between the parties.
The
parties agreed that in the event of the court accepting the evidence
of Mrs De Rooster and Ms. Adan in respect of the injuries
sustained
by B…. and the sequelae thereof, the report of Mr Bernard
Oosthuizen, the industrial psychologist for the plaintiff,
is
accepted by the defendant. Further, that the joint minute of the
occupational therapists, M Makgato and S De Freitas, would
not be in
dispute. Furthermore, that the court could have regard to the
agreements parties have in the available joint minutes.
17.
Thereafter
plaintiff closed its case.
18.
The
defendant closed its case without leading any evidence as its expert
witnesses were not available.
19.
The
following facts are common cause:
19.1
that
collision occurred on 29 June 2008.
19.2
that
B…. was admitted to the GJ Crookes hospital and that the
hospital records indicate the following:
19.2.1
that
at some stage after the accident, B….. was said to be
unresponsive;
19.2.2
that
her Glaxo-coma score was 14/15;
19.2.3
that
B… had a head injury though uncomplicated;
19.2.4
that
she was discharged from hospital after a day or two.
20.
According to the evidence of Dr Du Trevou the head injury recorded in
the hospital records resulted in B…. sustaining
a severe brain
injury leading him to refer B…. to an educational
psychologist. From the findings of Mrs De Rooster and Mrs
Adan, there
is confirmation that B… is sustained a brain injury which
resulted in some form of developmental deficits which
have
compromised her cognitive abilities. It is the opinion of both
experts that as a result of the brain injury, B… will
be more
compatible in a remedial school than in a normal school. The evidence
of the three experts remains uncontroverted. I am
satisfied that
there is sufficient evidence to show that B…. has suffered
some brain injury whose sequelae has affected
her educational
development and negatively impacted on her potential earning
capacity.
21.
According
to Mr Oosthuizen's report, the industrial psychologist, as a result
of the injuries, it is anticipated that B….
will enter the
open labour market at a Peromnes Level 19 or Paterson Level A1
(median basic package per annum), reaching a career
plateau and
earning potential at Peromnes Level 17 or Paterson Level A2 (median
basic package per annum). She may advance in her
career in intervals
of between three and five years before reaching a career plateau and
earning potential and that she will work
until she reaches the normal
retirement age.
22.
The
occupational therapists (Makgato and De Freitas) are agreed that
B….is likely to be able to perform work of an unskilled
or
semi-skilled nature once she leaves school.
23.
With
regard to future loss of income I accept the report of the industrial
psychologist, Mr Oosthuizen.
24.
An actuarial report of Wim Loots has been handed in by agreement and
the calculations therein, with regard to loss of income
is accepted
by both parties. In this report Mr Loots has calculated the
plaintiff's future income, having regard to the collision,
to be R1
699 354.00.
25.
There
is no doubt that the plaintiff has suffered loss of amenities of life
and needs to be compensated for such. As the parties
have reached an
agreement, the amount to be awarded to the plaintiff as general
damages is R450 000.00.
26.
With
regard to costs, the plaintiff is entitled to his costs. The
plaintiff is also entitled to recover the costs attendant to the
reports of:
26.1
Mr
S De Freitas (occupational therapist);
26.2
Mrs
L De Rooster (educational psychologist);
26.3
Dr
MD Du Trevou (neurosurgeon);
26.4
Mr
B Oosthuizen (industrial psychologist);
Mrs
A Adan (neuro-psychologist).
27.
Accordingly the following order is made:
1.
That the defendant to pay the plaintiff the amount of R1 699 354.00
for future loss of income;
That
the defendant to pay the plaintiff the amount of R 450 000.00 as
general damages;
That
the defendant to pay the plaintiff's costs as well as costs incurred
to obtain the report and preparation and attendance
in court (where
indicated) of the following experts:
3.1
Mr S De Freitas;
3.2
Mrs L De Rooster (including attendance in court);
3.3
Dr MD Du Trevou (including attendance in court);
3.4
Mr B Oosthuizen;
3.5Mrs
A Adan (including attendance in court).
NP
MNGQIBISA-THUSI
Judge
of the High Court
Appearances:
For
the Plaintiff : Adv B Roux SC
Instructed
by : Du Toit Attorneys
For
the Defendant : Adv Combrink
Instructed
by : Tsebane Molaba Inc