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[2009] ZAGPPHC 380
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B obo B v Road Accident Fund (11619/07) [2009] ZAGPPHC 380 (9 November 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE COURT OF SOUTH AFRICA /ES
(NORTH
GAUTENG HIGH COURTPRETORIA)
CASE
NO: 11619/07
DATE:
09 NOVEMBER 2009
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
IN
THE MATTER BETWEEN:
OS
B. obo O.
B. PLAINTIFF
AND
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
SERITI,
J
1.
INTRODUCI ION
This
matter came to Court by way of an action.
The
Plaintiff, acting in his personal capacity and in his capacity as
father and legal guardian of his minor child O. B., instituted
an
action against the Defendant, in which action he claims certain
amounts of money for delictual damages:
(a)
past medical, hospital and related expenses. R240,10;
(b)
estimated future hospital, medical and related expenses: R150 000,00;
(c)
future loss of earnings and earning capacity: R850 000,00;
(d)
general damages: R450 000.00
The
minor child on 23 February 2001 was a passenger in a motor vehicle
driven by the Plaintiff which motor vehicle was involved
in an
accident with another motor vehicle and the minor child sustained
certain physical injuries.
At
the beginning of the hearing, the Court was advised that the merits
of the case were settled on the basis that the Defendant
would pay
60% of the Plaintiffs proven damages. Plaintiffs Counsel further
advised the Court that the dispute between the panics
is the nature,
extent and
sequelae
of the injuries sustained by the minor
child.
2.
PLAINTIFFS EVIDENCE
Ms
V. B., the minor child's mother, testified that the minor child was
born on [….] and was injured in the accident mentioned
above.
She was injured on the right side of the head and on the face. The
child was taken to hospital by ambulance and according
to the
hospital records the following is noted "MVA - No neuro deficits
- no open wounds - X-ray NAD".
She
further testified that the child was crying and at that time the
child was about [..] years old. Her pregnancy was normal and
the
child was delivered at full term - no significant illness nor injury
prior to the accident. After discharge from hospital the
child was
crying, fearful and not sleeping properly. She was complaining about
headaches, painful neck and right arm.
A
few days after the accident and on 25 February 2001, she look the
child to Dr Combrinck, and in his report the doctor noted the
following:
"Pasient
het groot haematoma regs parietaal 4x5 - baie pynlik - geen ander
beserings nie."
When
the child started school, she was still complaining about headaches,
painful neck and right arm and being unable to sit down
in class for
too long - she gets irritated easily and always bit her younger
sibling - when given instruction she forgets easily.
Under
cross-examination she testified that after the accident X-rays were
taken. They were concentrating on head injuries and she
is not sure
if other injuries were checked. At that time the child could not
speak and she was just crying. Now that the child
is at school she
helps her with her home-work and the child has problems with reading.
The child complains about headaches three
to four times a week.
Dr
Mazabow, a clinical psychologist, also testified on behalf of the
Plaintiff. He assessed the minor child on 3 March 2009. The
minor
child was accompanied by her mother. At the time of the assessment he
had the following documents: RAF form, casualty records,
letter from
Dr Combrinck dated 25 February 2001, report prepared by a
neurosurgeon Dr Du Plessis dated 11 February 2009 and school
reports
for 2004, 2007 and 2008 and alter the assessment he prepared a full
report dated 5 March 2009.
He
confirmed the contents of his report. In his report he staled that
the mother of the child informed her that the pregnancy of
the child
was uncomplicated and that the birth was full term and via normal
delivery with birth weight of 2,6kg. All developmental
milestones
were attained appropriately.
The
report further notes that Dr Combrinck, in the note dated 25 February
2001 (two days post accident) states that O. had a large
haematoma in
the right parietal region, which was very painful with no other
injuries. He referred to the report of Dr J du Plessis
a
neurosurgeon. In his report the latter expert wrote
'Injuries
sustained - she sustained an isolated injury according to the
clinical documentation.
A
subcutaneous scalp haematoma was noted in the right parietal area ...
Based on this information one would be reluctant to postulate
a
significant concussive head injury. She probably sustained mild
concussion."
Dr
Mazabow stated that it is not possible to determine the precise
severity of the concussion on the available information, given
the
fact that the injured was less than [….] years of age at that
time. In 2004, when the child was [….] years old,
it was
reported by the nursery school teacher that the child was
"unfriendly", complained of headaches and was very tearful.
The child had reading problems at school although the mother was
assisting her. He commented that an educational psychologist should
conduct an evaluation of the child's specific scholastic skills,
including reading comprehension and also interview her present
and
former teachers. The minor child reported to him that she experiences
neck pain and backache when she bends forward and she
has pain and
weakness in her right arm when writing for long or when playing
netball. The mother of the child informed him that
the child tends to
be irritable and cheeky at home, refuses to carry out tasks and
lights with her little brother. She experienced
nightmares and was
fearful of motor vehicles for some six months after the accident, but
these symptoms have since resolved.
After
performing several tests. Dr Mazabow wrote as follows:
"O.'s
particular pattern of test scores is strongly suggestive of focal
brain dysfunction involving the right parieto-frontal
region, which
is the precise location of the head injury sustained in the accident.
It
would appear that O.’s areas of focal neuropsychological
difficulty have not affected her scholastic functioning thus far,
although the possibility that these may have more significant effects
in future (as she progresses to higher grades) should be
investigated
by an educational psychologist.”
During
his oral testimony Dr Mazabow testified that during his testing of
the minor child in March 2009, the child demonstrated
a pattern of
scores that is compatible with focal injury to the right parietal
frontal region, which area is the precise point
of impact on the
head. It suggests that impact was unaccompanied by compression of the
underlying tissues. He then referred to
a report prepared by Dr G
Capitani where the following is stated:
"In
conclusion, her current neurocognitive test profile may possibly be
associated with the presence of a minor brain injury
with a right
hemisphere focal brain injury in the temporo-parieto-occipital area."
He
further stated that although the child is coping at school, she might
not cope with her studies when she reaches higher grades.
Non-verbal
functioning is the child's main problem. Her main areas of
difficulties are focal and include visuographic reproduction,
visuospatial organisation and non-verbal concept formation, etc.
The
next witness to testify was Dr Louis Linde, an industrial
psychologist. He assessed the minor child on 25 February 2000 and
he
was in possession of all the reports filed in this matter. In his
report, he noted the complaints of the child as noted by previous
expert, the family's background, minor child's relationship with her
siblings and that she struggles to read. Psychometric test
was not
used to assess minor child's general level of cognitive and
psychosocial functioning as the child had been extensively
tested by
the Educational Psychologists. Professors Swanepoel and Skuy and the
clinical psychologist. Dr Mazabow.
During
the interview, the minor child communicated with good English
pronunciation and understanding and was confident in her approach.
In
the report, it is also staled that Professor Swanepoel is of the
opinion that the minor child may have had the potential to
have
completed Grade 12 in mainstream education comfortably, even tertiary
education. He agrees with the said view and postulated
the following
two scenarios.
Scenario
1 is entering open labour market with a three years National Diploma
through a University of Technology. After Matric,
she would have
undertaken full time three years study program at University of
Technology and she would have entered the open labour
market within
the Paterson B1-level. With time she would have progressed to a
position within the Paterson C3 level. Because of
scarcity of jobs,
she would have started with temporary position probably for three
years and thereafter a permanent position.
Scenario
2. A possibility exists that after obtaining a Diploma, she could
have continued and obtained a B Tech. Duration of the
said degree is
one to two years full lime studies. She would have entered the open
labour market within the Paterson B3 level -
she could have
progressed to the Paterson C4/C5 levels.
In
his view, scenario 1 is the most probable scenario. She would retire
at the age of 65. The minor child has suffered a potential
future
loss of earnings and earning capacity.He referred to the report of
Professor Swanepoel where it is stated that the minor
child would
encounter difficulties academically as she progress through the
higher grades and may find it difficult to complete
Grade 12 with
university entrance requirements. She would not be able to reach her
full potential.
The
report of Dr Linde further states that writer was also concerned to
note that Dr Mazabow identified rapid fatigue upon his testing;
the
Occupational Therapist noticed slow work speed and the Educational
Psychologists found fall-out in reading ability which was
also
reported by her mother. These reduced abilities will have a
significant impact on her future employability and may influence
her
ability to function in a higher level or cognitive more challenging
positions. During his oral evidence he confirmed his findings
as
contained in his report.
The
next witness to testify was Professor Swanepoel, counselling and
Educational Psychologist. She confirmed the contents of her
report.
In her report it is stated that she consulted with the minor child
and her mother on 16 June 2009 and also carried out
certain tests.
She had at that time reports from Drs Mazabow, Du Plessis,Professor
Skuy (Clinical and Educational Psychologist),
CJ Nel (Industrial
Psychologist) and MMF1 medical report. She also had school reports
for the following years: 2004, 2007, 2008
and 2009.
Her
report states that according to the MMF1 form she sustained a large
haematoma on the right parietal area. The minor child was
complaining
of back and neck pains when she sits tor long periods. She was told
by the minor child that she does not enjoy reading,
although she
enjoys technology and mathematics. The child was psychometrically
evaluated - the minor child told her that she wants
to be a teacher.
Her
tests revealed that on the whole she scents to be functioning above
average and on an age appropriate level she docs not like
reading on
the full scale she is average to high average and also her non-verbal
score is also average to high average. Her verbal
intelligence index
is below average and her non-verbal reasoning index is average.
The
report further states that -
"The
results in both intelligence tests suggest that her non-verbal
intelligence is higher than her verbal intelligence. This
may he due
to a lower functioning on her reading abilities. On the other hand
the lower verbal intelligence may lead to lower reading
abilities."
The
report further states that she has been doing well academically and
she has never failed a grade. She is achieving above average,
but her
poor reading and comprehension ability will obviously have a
detrimental impact on her scholastic performance. Her functioning
suggests that she may have had the potential to have completed Grade
12 in mainstream education comfortably even tertiary education.
Indications are that as the demands in higher grades increase, she
may find it difficult to complete Grade 12 with university entrance
requirements. Her head injury in the accident seems to be a direct
contributing factor. Remedial education and therapy is suggested.
Under
cross-examination she testified that the minor child has deficits as
a result of the head injury and that treatment will help
her to deal
with the deficits but will not take them away. She cannot attain a
Diploma. Her comprehension is not what it should
he because she
cannot read properly.
The
next witness to testify was Ms Santie Gropp, an occupational
therapist. She confirmed contents of her report dated 12 January
2009
- she perused, prior to completing her report, reports by Drs
Combrinck, Du Plessis, Mazabow and Professor Skuy. She interviewed
the minor child and her mother.
In
the report the family background of the family is noted including
school history of the minor child. School reports were perused.
According to the said report the following complaints were brought to
her attention: painful neck and forearm when minor child
writes, back
pain when she has to bend or sit for long and that she finds it
difficult to throw when playing netball. It also recorded
that she is
slow to learn spelling or reading, but there are no particular
complaints from school. Formal tests were performed.
The report
further states that: Her conclusion is that although she performed
well in the tests, she experienced physical discomfort,
displayed
some postural control difficulties - her mother reported that she has
had a slow start at school which necessitated them
to put extra
effort into her work. Report further states that it appeared that she
responded to this and her work improved, but
she still has some basic
perceptual, perceptual motor and sensory motor delays that slow her
progress - the fact that she responded
to the extra effort and
improved, indicates that she would therefore have the necessary
potential to benefit front further and
appropriate interventions.
Certain occupational therapy was recommended.
Plaintiff
closed his case.
3.
DEFENDANTS EVIDENCE
The
first witness to testify on behalf of the Defendant was Dr G
Capitani, a Clinical Psychologist. She testified that she saw the
minor child on 16 October 2008 and produced a report on 4 September
2009. She confirmed the contents of her report. When preparing
her
report she had reports from various experts including Professor Skuy.
In
the report history of the family is set out and the school history of
the minor child. Medical history of the minor child is
noted and the
interview with the mother is also noted.
Certain
tests were performed and report states that her English reading was
variable, some reading was good but site misread other
words which
she did not understand fully. Her work pace and speech pace were good
and there was no evidence of mental slowing.
Her reading ability
suggested some problem, possibly involving a visual perceptual
problem or alternatively related to English
as her second language
which is her medium of education. In the report it is also stated
that "Her English reading showed
some difficulty ... This
suggests a pre-morbid difficulty and/or associated with the start of
her education and scholastic development
in her second language
and/or possibly alternatively a focal right hemisphere injury
involving the temporo-parieto occipital region."
During
her oral evidence she testified that she is presently coping at
school but if her English does not improve she will struggle
at high
school.
Under
cross-examination she disputed the possibility of head injury and
insisted that her poor reading ability has nothing to do
with head
injury. She also testified that the minor child will not experience
any difficulty at high school.
Under
re-examination she testified that there are no signs of focal
dysfunction.
The
next witness called by the Defendant was Dr Du Plessis a
neurosurgeon. He confirmed the contents of his report dated 11
February
2009. In the report it is stated that the minor child
sustained an isolated head injury according to the clinical
documentation.
A subcutaneous scalp haematoma was noted in the right
parietal area. It measured 4x5cm. No neurological deficit was noted.
Other
complaints are noted. The report further states that based on
the available information, one would be reluctant to postulate a
significant concussive head injury. She probably sustained a mild
concussion.
In
his oral evidence he testified that it is possible that a person can
sustain focal brain injury and the MR scan might not detect
it, but
normally such brain injury will be minor. In his view, mild or minor
injury in this case is not ruled out.
The
last witness to be called by the Defendant was Ms Cecile Nel Venter
an industrial psychologist - she confirmed the contents
of her
report. At the time she prepared her report, only reports of Dr
Mazabow and Professor Skuy were available.
She
testified
inter alia
that in the absence of a MR scan she
cannot express an opinion about the possible existence of a head
injury.
Defendant
closed its case.
4.
FINDINGS
In
his report Dr Du Plessis slated that according to clinical
documentation the minor child sustained an isolated head injury .
A
subcutaneous scalp haematoma was noted in the right parietal area l
he report further states that the minor child probably sustained
a
mild concussion.
In
his oral evidence he stated that in his view mild or minor head
injury in this case is not ruled out. The note of Dr Combrinck
dated
25 February 2001 stated that the minor child had a large haematoma in
the right parietal region.
The
evidence mentioned above indicates that the minor child had mild
physical head injury.
lDr
Mazabow in his report stated that the test results are suggestive of
focal brain dysfunction involving the right parieto frontal
region.
He also confirmed said point during his oral evidence. Professor
Swanepoel who also prepared a report and testified in
Court, during
cross - examination stated that the minor child has certain deficits
which are a direct result of her head injury.
Her conclusions in the
report and during oral evidence are or were well motivated I cannot
find any reason not to rely on her report
and evidence. The same
applies to Dr Mazabow.
On
the other hand Dr Capitani, who testified on behalf of the Defendant,
disputed the fact that the minor child had any head injury
she ruled
out that possibility despite the fuel that in her written report she
did not rule out such a possibility. I do not believe
that the Court
can rely on her evidence. Her evidence was not satisfactory at all.
Dr
Mazabow testified that although the minor child is coping well at
school, she might not cope with her studies when she reaches
higher
grades. Professor Swanepoel expressed the same opinion.
I
find that although she is coping at school presently, she will find
studies difficult when she goes to higher grades.
Professor
Swanepoel testified that hut for the accident, the minor child had
potential to pass Grade 12 in mainstream education,
even tertiary
education. Dr Linde agreed with the view of Professor Swanepoel.
There is no reason not to accept the said evidence.
Dr
Linde postulated two scenarios, namely the minor child entering the
open labour market with a three year National Diploma and
the second
scenario where the minor child enters open labour market with u
degree. He testified that scenario 1 is the most likely
scenario and
I agree with his view on this point, as it is clear to me that the
minor child's earning potential is compromised
On
the facts of this case, my view is that the question of future loss
of earnings should be dealt with on contingency basis as
suggested by
Dr Linde – pre- morbid and post- morbid contingency deductions
of 20% and 50% will be fair in the circumstances
of this case.
In
the Heads of Argument, the Plaintiff's Counsel submitted that an
award of R400 000.00 for general damages will be a fair award.
On
the other hand, the Defendant's Counsel submitted that an award of
R60 000,00 will be fair in this case.
My
view is that the amount suggested by the Defendant's Counsel is too
low and on the other hand the amount suggested by the Plaintiffs
Counsel is too high.
During
oral argument 1 was not referred to any comparable case nor could I
find any. My view is that an award of R260 000,00 for
general damages
will be a fair award in this ease.
As
far as future medical expenses are concerned, the Defendant has
offered an Undertaking in terms of section l7(4)(a) of the Act,
which
undertaking I believe will adequately cover the future medical
expenses.
The
past medical expenses are not in dispute.
As
stated earlier, merits were settled 60/40 in favour of the Plaintiff.
The
Court therefore makes the following order:
The
Defendant is ordered to pay the Plaintiff by way of delictual
damages the sum of R633 612.00 directly into the trust account
of
the Plaintiffs Attorney of Record.
The
Defendant is ordered to furnish the Plaintiff with an undertaking in
terms of section 17(4)(a) of Act 56 of 1996 in favour
of O. B.
limited to 60% of such costs.
The
Defendant is ordered to pay the Plaintiffs taxed or agreed part and
party costs of suit to date hereof including the costs
of the
reports of and consultations with, as well as the preparation,
qualifying, reservation and attendance fees, if any, of
the
following expert witnesses; Santie Gropp, Dr M Mazabow, Prof E M
Swanepoel, Louis Linde, G W Schwalb; plus the travelling
subsistence
costs and loss of income, if any, for attending at court of the
Plaintiff and his wife, both of whom are declared
necessary
witnesses and the costs of senior counsel
W
L SERITI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON: 3
rd
NOVEMBER 2009
FOR
THE PLAINTIFF: BPGEACH SC
INSTRUCTED
BY: WAKS SILENT & GEACH ATTORNEYS
FOR
THE DEFENDANT: A FROSCH
INSTRUCETD
BY: MOTHLE JOOMA SABDIA INC