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[2024] ZALMPPHC 55
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H.P.M obo J.M v Road Accident Fund (282/2018) [2024] ZALMPPHC 55 (23 May 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 282/2018
(
1)REPORTABLE:NO
(2)OF INTEREST TO
THE JUDGES: YES/NO
(3)REVISED
DATE: 23 - 05 -2024
SIGNATURE
In the matter between:
H[…] P[…]
M[…] obo J M[…]
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
MASHAMBA AJ
INTRODUCTION
[1]
The Plaintiff acts on behalf of her minor child
namely J[…] M[…], a male minor born
on
the
25th
October
2006,
to
whom
I
shall
refer
as
a Plaintiff.
The Plaintiff
was 10
(ten) years old when the accident
occurred
and currently 18 (eighteen) years of age, at Grade 9.
[2]
On the
28th
day
of August 2016, at Moletjie, Ga-Legodi Village along Ga
Ramongwana
public road, the Plaintiff was a passenger in a Mahindra Balero
Bakkie with registration number […], at the time
driven by
Morukhu Mahlogonolo Sylvester, when the accident happened. The said
vehicle lost control and rolled. As a result, the
Plaintiff sustained
head injury. The Plaintiff was unconscious
for
2
(two)
days and in pain. The emergency services attended the scene and the
Plaintiff was taken to Seshego
Hospital
for medical treatment.
[3]
The merits were finalised on the 28th March 2021,
by an order granted by Naude AJ, and the quantum was postponed
sine
die.
[4]
The Plaintiff has sued the Defendant for a total
amount of R 12 000 000,00 (Twelve Million) which amount was
calculated as follows;
4.1
Past Medical
expenses
R 100 000.00
4.2
Future Medical
expenses
R 900 000.00
4.3
Future Loss of
Earning
R 6 500 000,00
4.4
General
Damages
R 4 500 000,00
[5]
The Plaintiff abandoned the claim for past medical
expenses since there were no proves
of
invoices and the Plaintiff
submitted
that
the Future
Medical
Expenses should
be substituted
by a section 17
(4)(a)
-(b)
of the Road
Accident
Fund 56 of 1996, as amended, ("the
Act") undertaking certificate.
[6]
The Plaintiff submitted that the Court should
decide on the two heads of damages, the first for the Plaintiffs Past
and Future Loss
of Earnings and the second, General damages.
[7]
The above Court has no Jurisdiction to deal with
general damages in this matter, since the Defendant
has
not yet taken a decision to accept nor reject the seriousness
of the Plaintiffs injuries as required in terms of
regulation
3(3) of the Road Accident Act,
therefore, the issues of general damages should be postponed
sine
die.
[8]
The matter was set down for trial on the 06th
May 2024, and the matter was allocated
for
trial Judge
on the 08th
May
2024.
the
matter
was undefended.
So, the Court allowed the Plaintiffs counsel to proceed with his
submissions based on the experts' reports filed
before Court.
PLAINTIFF'S EVIDENCE
[9]
The Plaintiff relied on the following medical
experts reports to prove his case;
9.1.
Dr Johan J Viljoean (Neurosurgeon)
9.2.
Ronel (Audiologist & Speech Therapist)
9.3.
Dr Mokgadi Setwaba (Clinical Psychologist)
9.4.
Mabote (Occupational Therapist)
9.5.
VP Cloete (Educational Psychologist)
9.6.
Mrs Moiponi Kheswa (Industrial
Psychologist)
9.7.
Robert J Koch (Actuaries)
[10]
In
Prince
v
Road
Accident
Fund
[1]
the
Court
held
at
paragraphs
55,
56
and 59
in the evaluation of the probabilities in respect of expert evidence.
"[55} Sufficient
proof is established when an inference can be drawn about the fact in
issue, providing that the inference
is consistent with all the proven
facts. In civil matters, it suffices if the inference is the most
probable inference.
[56] Further, once
prima facie proof or evidence has been provided, that is proof
calling for an answer. This becomes conclusive
proof on the point in
issue usually if no evidence is produced to rebut it. The fact of the
matter is, however, that the Court
must at the end of the case review
all the evidence and evaluate this according to the applicable
primary criterion.
[59]
It must be accepted, of course, that where, for example,
a
Defendant fails to produce evidence,
this does not mean necessarily that the opponent's version in the
case, falls to be accepted.
The acceptance of Plaintiff's case
depends on the probative strength of Plaintiff's case, being whether
it is sufficient to cast,
an evidential burden on the Defendant to
present evidence."
[11]
After the occurrence of the accident the Plaintiff
was evacuated to Seshego Hospital for medical treatment and later
transferred
to Pieterburg Hospital where
he
received
the
following
definitive
treatment
being
unconscious
for two
(2)
days,
GCS
13/15:
CT
scan
revealed
fracture
of
the
right
temporal bone
with
pneumocephalus; Oozing
blood
stained
CSF
from
right
ear
as
a
sign of fracture of base of skull; put on hard neck collar and
hospitalized for more than three (3) weeks, thereafter he was
bedridden for a further 2 (two) months at his home until November
2016.
[12]
The Plaintiff was examined by the Neurosurgeon
on the 22 August 2021, The Neurosurgeon
opined that the Plaintiff sustained
a
moderate
head injury, this is indicated by
the following; by initial Glascow coma scale of 13/15, post
traumatic amnesia
or loss of consciousness
for at least two days, sign of a base
of
skull fracture
with CSF leaking out
of the right
ear and
injury
to the right
tympanic
membrane
right
sided
transient
7th
nerve
palsy
with
facial weakness,
impairment of cognitive functioning and CT-scan of the brain which
revealed pneumocephalus.
[13]
The Neurosurgeon opined that the sequelae of head
injury is post-traumatic epilepsy. The early post-traumatic epilepsy
could have
happened within 7(seven)
days
from date of the injury. The Plaintiff did not develop an early
post-traumatic epilepsy.
Late
post-traumatic epilepsy that might happened after
7
(seven)
days.
Predisposing
factors
to late
post-traumatic epilepsy
in this case, are
as following: prolonged
period of
post-traumatic in this case, signs of a base of skull fracture,
CT-scan of the brain with pneumocephalus, impairment of
cognitive
function.
[14]
The neuro surgeon further opined that although is
difficult to determine what percentage increase of late
post-traumatic epilepsy
in his case in comparison with the normal
population but suggest
figure is in the
region of 7 to 10 %. There
is
an
increased
possibility
of
post-traumatic
epilepsy.
The
Neurosurgeon further opined that it is obvious that the Plaintiff has
impairment of his cognitive functioning and gave deference
to
clinical psychologist as well as an occupational therapist to
determine the exact nature and extent of the impairment of the
Plaintiff cognitive functioning and what effect it will have on his
future.
[15]
The Plaintiff was examined on the 141h
February 2019 and the 22 February 2019 by the
Clinical Psychologist, the following findings were made; it is likely
that Plaintiff
involvement in the accident could have had an impact
on him cognitively and predisposed him poor academic performance; The
head
and back injuries sustained seem to have also impacted
significantly to his neuropsychological difficulties thus, normal
functioning
as a boy difficult thus making
future
prospects
of
work
success
difficult, poor
performance
and failing
grade
5
affects
his
self-confidence and
self-esteem
thus
aggravating his emotional challenges both at
school and in other social settings; The
Plaintiff
quality of life seems to have been impacted significantly since his
involvement
in
the
accident
as
he
has
been
persistently
complaining
of headaches and backaches which have the
potential to affect his daily living activities. The
neuropsychological impairment indicated
by assessment tools used
suggest that the Plaintiff could find himself experiencing academic
challenges making his career advances
tedious.
[16]
The Plaintiff was examined by Ronel (Audiologist
and Speech Therapist)
on
the 15
th
May
2020 who has opined that the Plaintiff has a slight unilateral high
frequency sensory neural hearing loss. Further opined that
a child
with a unilateral hearing
loss may have
trouble
with localization,
which
is important for safety. Further that the Plaintiff may find it
difficult to understand speech in noisy
environment.
Further
opined
that
the hearing
test
results
resembles what was found in a temporal bone
fracture.
[17]
The Plaintiff was examined by Mabote (Occupational
Therapist)
on the 29
th
May
2020, who opined that the Plaintiff performance with regards to
visual perception was average in both memory test. Further that
the
Plaintiff performance at school was reported to be poor. The
plaintiff has residual ear pain which is triggered by running,
He has
reduced hearing in the same ear.
[18]
find that Occupational Therapist report has
confirmed same sequelae that have been concluded by neurosurgeon,
Audio and Speech Therapist
and Clinical Psychologist.
[19]
The Plaintiff was examined by VP CLOETE
(Educational
Psychologist)
on
the 26 June 2020. Pre-accident, Cloete opined that based on the
available information obtained from the biological mother of
the
Plaintiff there was no indicator of ill health or developmental
delays or other accidents before the accident of the 28th August
2016. The available information further suggests normal birth and
milestone development. The Plaintiff repeated grade 3 pre
accident. This could have been an indicator that the Plaintiff could
have had undiagnosed
learning difficulties.
There was probably a child of at least average
intelligence with probably undiagnosed learning difficulties. The
Plaintiff
probably
had
an
ability
to
pass
grade
12
and
probably
the
ability
to pursue
tertiary studies if he would have received the necessary
interventions for his learning difficulties.
[20]
Post-accident, Cloete opined that according to
ISNSSP the Plaintiffs global intellectual ability tests in the
average range. The
Plaintiff performed below average in the following
subtests of the SDAIS-R: Memory digits, this subtest measures
working
memory,
mental
manipulation,
cognitive
flexibility,
attention, and
encoding.
He
scored in the
borderline
range;
Coding, this subtest measures processing speed, short-term visual
scanning ability. Impairments in this subtest could have
an effect on
his working tempo and processing speed. This could affect his
learning ability and possibly affect his ability to
finish the exam
timeously. The Plaintiff reading ability and spelling ability tested
below his chronologic age in which is indicative
of learning
difficulties. The Plaintiff performed below his chronological age in
basic numeracy
which
could
be
indicative
of
learning
difficulties
related
to numeracy. The
Plaintiff had some learning difficulties pre-accident
and
the
head injury sustained probably
exacerbated his learning difficulties. With the implementation of
necessary interventions and support
as indicated in the
recommendations and if
the Plaintiff
responds
positively
to the
interventions, he
could probably complete grade 12. If he is not exposed to the
relevant interventions and support as indicated
in the
recommendations, the Plaintiff might find it difficult to cope with
his academic work and possibly not able to complete
grade
12 and he could, may be follow a qualification
at
a TVET college or other institution.
LOSS OF EARNINGS
[21]
The Plaintiff was examined by the Industrial
Psychologist
(Moipone Kheswa) on the 16
June
20219, who postulated
the
future loss of earning
suffered
by
the
Plaintiff.
The
Industrial
Psychologist
noted
that
the
Plaintiff
repeated Grade
3 prior to his involvement in the motor vehicle accident. The
Plaintiff earning potential
is
likely
to
have
been
determined
by
the
level
of education he
would
have
attained,
and
the
availability
of
employment
at
the
time.
The Plaintiff is
anticipated that he would have worked until he retired at the age of
65 years,
depending on his health and his
employer's retirement policy.
[22]
The Industrial Psychologist further opined that;
Scenario 1, that after
completion
of
matric, probably
in
2025,
it
could
have
taken the Plaintiff
about
1-3 years to secure work. Further that he could have opted for
available fragmented work, earning on a Paterson level A1/A2
(basic
salary). After this period, the Plaintiff could have qualified for an
income on Paterson A3 (also getting benefits such
as a 13th
cheque and provident fund contribution)
reaching his earning ceiling at Paterson level
B4/B5 upper quartile total package
when he
reached 40-45
years. Salary information
for
the above career
paths is provided in the table (Corporate Survey Earnings, Quantum
year book 2020).
[23]
The Industrial Psychologist opined, scenario 2,
that without Grade 12, the Plaintiff
will
mostly
work
in
the
unskilled
category
of
employment.
However, his
reported
challenges
(i.e.
headache,
forgetfulness,
lack
of
concentration and
hearing difficulty)
will impact negatively
on his career progression. Should the Plaintiff
secure
employment
in his injured
state
when
he reaches adulthood, he is likely to
earn at the lower quartile of unskilled non-corporate workers and he
will progress to the
median quartile band (lower quartile of
semi-skilled workers) when the Plaintiff reaches
55 years with applicable inflationary increase thereafter. According
to Koch (2020),
unskilled non corporate workers earn between R
21 600 -
R 37 900- R86 000 per year and
semi-skilled
non-corporate
workers
earn
between
R
37 900-R86000- R
186 000
per
year. The Industrial
Psychologist
further
opined
that
his
ability to
perform
optimally
both
scholastically
and
occupationally
has
been truncated and
he is likely
to
remain
disadvantaged
in the open labour market.
[24]
The Plaintiff used the services of Robert J Koch
Consulting Actuaries and the calculations were done based on the
Industrial Psychologist
report. The calculations are as follows;
RESULTS:
Uninjured
Injury
Net Value
Without
epilepsy
R 6 617 792,00
875 598,00
R 5 742 194,00
With
epilepsy
R 6 617 792
0
R 6 617 792,00
[25]
The
actuarial calculations are useful in that it provides the value of
the loss on some logical basis. In Southern Insurance Association
Ltd
v Bailey, NO,
[2]
the court held:
"Where
the method of actuarial computation is adopted, 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" (per HOLMES JA in
Legal Assurance
Co
Ltd
v Boles
1963
(1) SA 608
(A}
at 614F). 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 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.
See
Van
der
Plaats
v
South
African
Mutual
Fire
and
General
Insurance
Co
Ltd
[3]
.
The
rate of the 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".
[26]
The
Plaintiffs
Counsel
submitted
that
considering
the
Plaintiffs
age, qualification, injuries and the injuries
sequelae, 35% contingency deductions are reasonable.
[27]
I took into account all the medical expert
reports, particularly, the Industrial Psychologist
who
postulated
of
Plaintiffs
future
loss
of
earnings
and
the above
calculations by Robert J Koch Actuarial Consultants. I accept that
the Plaintiffs
risk of epilepsy is
7-10 %
as opined by the
Neurosurgeon. The
Plaintiff
risk
of
epilepsy
is
higher
than
the
normal
population. The Court
accept
the actuarial
calculations
with epilepsy
risk.
The future loss of
earning
after
the
deduction
of
35%
contingency
is
calculated
as
follows;
R 6 617 792,00- 35 % (R 2
316 227,20) =
R 4 301 564,80
[28]
In the circumstances, the following is
the
order of the Court;
1.
The
Defendant
shall pay
to
the
Plaintiff
the
amount
of
R
4 301 564,80
(Four
million, Three hundred and one thousand, Five Hundred and Sixty
four Rand, Eighty Cent) in relation to the future loss
of earnings.
2.
The defendant shall furnish the plaintiff with an
undertaking in terms of section 17(4) of Act 560f 1996 for payment of
100% for
the future accommodation
of the
plaintiff
in a hospital
or
nursing
home, or treatment of or rendering
of a service or supply of goods to her, arising from the injuries
sustained by her in the motor
vehicle collision on 28 August 2016.
3.
The Amount in paragraph 1 above shall be paid into
following Bank Accounts;
NAME OF BANK: […]
ACCOUNT HOLDER: I[…]
P[…] A[…]
ACCOUNT NO: […]
BRANCH CODE: […]
ACCOUNT TYPE: C[…]
ACCOUNT
4.
The Defendant shall be liable to pay interest on
the aforesaid amounts
tempore morae
at
the rate of 7% per annum from 180 days after the date of this order
to date of the payment.
5.
The defendant shall pay the Plaintiff 's taxed or
agreed party and party costs until the date of this order including
costs of a
counsel scale C.
6.
The costs consequently in the preparation of and
obtaining the medico legal and actuary reports that were served on or
provided
to the Defendant.
7.
The reasonable taxable preparation, qualifying and
reservation fees, if any of the Plaintiff's experts for trial of whom
notice
was given to the Defendant.
8.
The reasonable taxable costs of necessary
consultations with the said experts and the reasonable taxable
traveling, subsistence
and
accommodation
costs of
the
Plaintiff
for
attending
the medico
legal examination, subject to the discretion of the taxing master.
9.
The reasonable taxable costs of traveling,
subsistence, accommodation costs of the Plaintiff for attending
court.
10.
The
Defendant
shall
be liable to
pay
interest
on
the
amount
of the
Plaintiff's
costs
of
suit,
as
taxed
or
agreed,
at
7
%
per annum from 14 (fourteen days) of the allocatur
of the taxing master or the
date of the
agreement, whichever
applies, to
date of payment.
11.
The issues of general damages to
be
postponed sine die.
MASHAMBA AJ
JUDGE OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF
: PROF/ADV JLH
LETSOALO
INSTRUCTED
BY
: ISHMAEL PHALA
ATTORNEYS
FOR
THE DEFENDANT
: NO APPEARANCE
INSTRUCTED
BY
DATE
OF HEARING
: 08 MAY 2024
DATE
OF JUDGEMENT
:
23 MAY 2024
[1]
(CA
143/2017) [2018] ZAECGHC 20 (20 March 2018)
[2]
1948
[1) SA 1988 at 1135
[3]
1980
(3) SA 105
(A)
at
114
-
5