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[2024] ZALMPPHC 76
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M.O.L obo M.S.G v Road Accident Fund (641/2023) [2024] ZALMPPHC 76 (24 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 641/2023
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: NO
REVISED
DATE:
24-07-2024
SIGNATURE:
In
the matter between:
M[...]
O[...] L[...]
PLAINTIFF
obo
M[...] S[...] G[...]
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
MASHAMBA
AJ
Introduction
[1]
On 07 August 2015,
the minor child M[...] S[...] G[...] (hereinafter referred as
"
the
child') born on the 08th July 2012, was a pedestrian crossing the
road along Seleke Road
,
Limpopo
Province
,
when
knocked by a motor vehicle with registration numbers and letters
I[...]
,
driven
by Mr Maphanga. The child was 4 (four) years old when the accident
occurred. The child was going to a tuck-shop with other
children. The
child is represented by her biological mother Ms M
[...]
O
[...]
L
[...]
(hereinafter referred
as "child
'
s
mother and /or the plaintiff
'
).
child
'
s
mother was not at the scene when the accident took place.
[2]
The claim against the
defendant was lodged on the 07
t
h
September 2018. The
summons was issued on the 27
th
January 2023. The
defendant did not enter his notice of intention to defend. The issue
of merits was settled between the parties
on the 06
t
h
November 2023 being
100 % in favour of the plaintiff and the agreement was made an order
of court. The issues to be determined before
this court are that of
future medical expenses and future loss of earnings. The issues of
general damages are to be referred to
HPCSA.
[3]
The matter was before
this Court in default hearing on the 01 July 2024
.
The plaintiff
claimed the amount of
R
11 000 000
.
00
(Eleven
Million Rand) calculated as follows
;
(a)
future medical
expenses
R 1 000 000
.
00
(section 17(4)(a))
(b)
loss of
earnings
R 9 000 000.00
(c)
General
damages
R 1 000 000.00
[4]
The child was taken to the clinic in Seleka and transferred to
Witpoort Hospital by an ambulance
.
According to
the hospital records the child had a swollen head injury and fully
awake
.
BP=116/68
.
Pulse
rate=55b/min. The child was discharged same day
.
The
Evidence
[5]
In assessing the child loss
of future earnings
,
the Court
c
onsidered
all reports submitted by the plaintiff as follows;
5.1
Orthopaedic Surgeon-
Dr Tsolo
5.2
Neurosurgeon- Dr
Mosadi
5.3
Clinical
Psychologist- Jacqui Van Staden
5.4
Educational
Psychologist- Dr Kekana
5.5
Plastic Surgeon- Dr
Makgofa
5.6
Occupational
Therapist- Sarah Marule
5.7
Industrial
Psychology- Zizile Nkosi
5.8
Actuary- Tsebo
[6]
On the 28
th
June 2023, the child
was examined by an orthopaedic surgeon, Dr Tsolo. The injuries
reported by the plaintiff includes, head injury
with loss of
consciousness, right arm injury and right leg injury. Clinical and
radiological was performed and the child was diagnosed
with multiple
soft tissue injuries. With recommended treatment the child is
expected to recover fully. The child complaints include
chronic
headaches, itching teary eyes, and occasional right arm pain which is
exacerbated by activity. The x-ray was ordered and
done by Ors
Mkhabele and lndunah radiologist and it shows a normal right knee and
right forearm. WPl=4%
[7]
On
29 June 2023, the child was examined by the neurosurgeon
,
Dr
Mosadi. Dr Mosadi reported that according to the clinical records,
the child pulse was 130b/m, her respiratory rate 20b/m and
the child
was fully awake and conscious (Glasgow Coma Scale of 15/15).
According to the neurosurgeon the child loss consciousness
immediately after
the
accident.
The Neurosurgeon opined that as a result of the accident in question
the child suffered grade 3 concussion as a subset
of mild head
injury
.
It
is evidenced by history of loss of consciousness, chronic headache
and memory problems
[1]
.
The child has some neuropsychological problems which need to be
assessed by the clinical psychologist. The child has a same chance
of
developing a late onset post traumatic epilepsy as the general
population
.
The
child
prognosis
is
that she is suffering from post-concussion headaches and the
neurological literature documented that 80% of patients suffering
from post-concussion headaches recover within 2-3 years, however 20%
of patient remain with the chronic symptoms
[2]
.
Neurosurgeon opined that since it is now over 5 years after the
accident, spontaneous resolution of these headaches is not expected
.
The
neurosurgeon calculated WPI = 22
%
[3]
[8]
On
the 29th June 2023, the child was examined by the clinical
psychologist, Jacqui Van Staden
,
who
noted that the child was too young to remember events concerning the
accident. The child did not repeat herself and did not
report that
she generally has problem remembering things
.
The
child was able to recall a series of six numbers on the
"memory
for
digits test" in the straightforward
'r
epeat
as said
'
section
.
This
indicates an above average memory span. The child physical injury to
her head has clearly not had an impact on her motor performance
,
and
she does not experience difficulties in performing activities that
are needed in her daily life
[4]
.
Posttraumatic Stress Disorder that has rendered the child more
psychologically vulnerable than prior to her injury. The clinical
psychologist opined that after the neurocognitive assessment
it
certainly
becomes clear that the child
'
s
abilities have not been compromised by the accident in question
[5]
.
In order to address the posttraumatic stress disorder and psycho
social problems 20 session are recommended which cost R
1285
.
00
according to the present tariffs for psychologist.
[9]
On
the 28
th
June
2023, the child was examined by the educational psychologist
,
Dr
Kekana. The educational psychologist noted that after the accident
the insured driver took the child to Seleka clinic. The child
was
stabilised and an ambulance took her accompanied by her mother to
Witpoort hospital. According to the plaintiff the child had
a brief
loss of consciousness. The plaintiff informed the educational
psychologist that the child has a short-term memory problem
after the
accident. Dr Kekana noted the child outstanding performance
,
the
child is performing so well and she got level 7 (outstanding
performance) in most of her subjects
.
The
child intellectual (cognitive) functioning was tested using Senior
South African Individual Scale Revised (SSAIS-R) and
the child
obtain a Global IQ of 98
,
a
verbal IQ of 93 and a Performance IQ OF 104. The conclusion indicates
that the child
'
s
Intelligence Quotient in general is average. When tasks are complex
and needs abstract reasoning
,
the
child could not complete it with speed
[6]
.
The
child
performance on story memory was low average. The educational
psychologist was informed by the
plaintiff
that
the child has short term memory problem after the accident
[7]
.
According to the plaintiff, the child cannot concentrate and give
attention sufficiently
.
[10]
Dr
Kekana opined that before the accident the child could probably pass
grade 12 and obtain an admission to a bachelor's degree
study, the
child could probably pursue the degree study course of her choice and
obtain a NQF Level 7 qualification
.
The
child could also probably pursue the honours degree study course of
her choice and obtain a NQF Level 8 qualification. Dr Kekana
further
opined that after the accident the child school performance is still
very satisfactory but she will experience learning
challenges due to
her problems as she progresses through this phase, the Senior Phase
(grade 7 to 9) and through the Further Education
and Training (FET)
Phase (grade 10 to 12) where higher order learning skills are called
into operation
[8]
.
Dr Kekana opined that the child is likely that she will probably pass
grade 12 with support and obtain admission to diploma study.
[11]
On the 27
th
June 2023, the child
was examined by the plastic surgeon, Dr Makgofa and in brief the
Doctor noted the main complaint as visible
scars on the
right
elbow and left
knee and that the scars are painful and itching. The scars are
amenable to revision. The cost estimated for future
treatment at
roughly R 80 000.00
.
The scars
rated WPI is 3
%.
[12]
On the 07
th
August 2023, the
child was examined by the industrial psychologist, Zizile Nkosi. The
industrial psychologist opined that if not
due to accident, the child
would likely complete matric in 2030 and likely passed grade 12 with
a bachelors pass endorsement. The
child would likely proceeded with
university degree where she would have obtained NQF 7. The child also
had the potential to progress
within her studies to Honours level
with an NQF 8 qualification. The industrial psychologist postulated
the pre-accident potential
of the child and further considered the
contrast with the post-accident scenario as opined by the educational
psychologist who
has opined that the child will not reach her
pre-accident potential but will only obtain grade 12 and likely be
admitted to diploma
study and obtain a NQF level 6 qualification
.
[13]
On the 15
th
September 2023, the
plaintiff appointed Tsebo Actuaries, to
calculate
the future
loss of income suffered by the child as a result of the accident in
question.
The
actuaries
calculated the child future loss of earnings based on the 1st and 2nd
scenarios. The first scenario
,
the actuaries
considered the uninjured postulations made by the Industrial
psychologist
,
that the child
would likely obtain bachelor's degree. The second scenario is that
the child
would
likely
obtain honours
degree
.
The
actuaries further considered the child pre-accident earning
postulated scenario that the child might obtain grade 12 and likely
be admitted to diploma study and obtain a NQF level 6 qualification.
The actuaries applied the following contingencies
,
20% uninjured
and 50% injured.
[14]
Scenario 2:
Honour's Degree
Uninjured
income (R)
Injured
income (R)
Loss
(R)
Future
loss
17
618 939
8 281
534
Future
contingencies
(3
534 788) 20%
(4
140 767) 50%
Net
14
095 151
4 140
767
9 954
384
Impact
of a cap
(989
378)
Net
Total
8 965
006
[15]
The plaintiff
submitted that considering the conclusion of all medical experts
discussed above the child has been adversely affected
by the
accident. The plaintiff further indicated that considering the
seriousness of the head injury and neurological challenges
experienced by the child
,
the amount of
R
8 965
006.00
in
respect of the child future loss of earnings after the contingency's
deductions of 20 % uninjured and 50 % injured
,
will be
reasonable. The plaintiff relied their submissions to the heads of
argument which was handed over to this Court.
The
Law
[16]
Regarding
the evaluation of credibility and reliability of expert evidence
,
Wallis
JA (Fourie and Koen AJJA concurring) in
Pricewaterhouse
Coopers Incorporated and Others v National Potatoe Co-operative Ltd
and Another [2015] 2 All SA 403 (SCA)
[9]
referred
to
Wightman
v Widdington (Successon de)
2013 QCCA 1187
CanLII)
where
it was remarked thus
:
"Legal
principles and tools to assess credibility and reliability
[326]
"
B
e
fore
any w
e
ight
c
a
n
be given to
a
n
ex
p
e
rt
'
s
opinion
,
the
f
a
ct
s
upon
whi
c
h
th
e
opinion
is based must be found to exist
"
[327]
"
As
long as there is some admissible evidence on which the expert's
testimony is based it cannot be ignored; but it follows that
the more
an expert relies on facts not in evidence
,
the
weight given to his opinion will diminish
"
.
[328]
An opinion based
on facts not in evidence has no value for the Court.
[329]
With respect to
its probative value
,
the
testimony of an expert is considered in the same manner as the
testimony of an ordinary witness
.
The
Court is not bound by the expert witness
'
s
opinion.
[330]
An expert
witness
'
s
objectivity and the credibility of his opinions may be called into
question
,
namely
,
where
he or she:
•
accepts
to perform his or her mandate in a restricted manner
;
•
presents
a product influenced as to form or content by the exigencies of
litigation
;
•
shows
a lack of independence or a bias
;
•
has
an interest in the outcome of the litigation
,
either
because of a relationship with the party that retained his or her
services or otherwise
;
•
advocates
the position of the party that retained his or her services
;
or
•
selectively
examines only the evidence that supports his or her conclusions or
accepts to e
x
amine
only the evidence provided by the party that retained his or her
services."
[17]
In
Ruto Flour Mills v Adelson (T)
[10]
Boshoff
J stated that a party seeking to introduce expert evidence must
satisfy the court that the witness not only has specialist
knowledge
,
training
,
skill
or experience but that he/she can, on account of these attributes or
qualities, assist the court in deciding the issue, that
he/she is an
expert for the purpose for which he/she has been called upon to
express an opinion
,
[11]
the
witness does not or will not express an opinion on hypothetical facts
that have no bearing on the case or which cannot be reconciled
with
all the other evidence in the case.
[12]
Court
Findings
[18]
The Court has raised
issues which are of great concern
,
the first
issue was the fact that when the accident occurred
,
the child was
crossing the road with other children
.
The plaintiff
was not present when the accident took place and only heard about the
accident. The plaintiff has reported to different
experts that the
child had lost consciousness on the scene. The driver of the insured
vehicle is the one who immediately after
the accident took the child
to Seleka clinic and no loss of consciousness was reported by the
driver
.
No
evidence of the eye witness before this Court who has witnessed the
child loss of consciousness. Medical records submitted before
this
court indicated that the GCS was 15/15
,
the child was
awake and discharged same day. The Court on the balance of
probabilities finds that the child did not lose consciousness
during
the accident
,
therefore
,
the diagnosis
and opinion of all medical experts who noted loss of consciousness
were based on the wrong information and such information
has
influenced their opinion in their respective reports
.
[19]
The
Court further raised concern about the head injury
sequalae
as
opined by neurosurgeon
,
and
educational psychologist. The plaintiff reported challenges such as
headache twice a week and itching teary eyes that has disturbed
the
child at school. The educational psychologist did not investigate the
reported post-accident challenges with the child's teachers
which
would have assisted in verify the child
'
s
current challenges as reported
.
The
educational psychologist opined that although the child is still
performing very well
,
the
child will in future have difficulties when doing higher grades
[13]
.
So
,
according
to the educational psychologist
,
although
no challenges that affect the child's school performance now
,
the
challenges will manifest in the future. The plaintiff did not provide
medical expert evidence regarding the causes of the child
itching
teary eyes at school and how it is related to the accident in
question
.
The
Court on the balance of probabilities finds that
,
whatever
,
challenges
noted by the educational
psychologist
which
are currently not affecting the child school performance
,
would
likely not have any adverse impact on the child school performance
even in the future
.
[20]
The Court had informed the
plaintiff legal team that it would be prudent to wait until the
highest grades as opined by the educational
psychologist in order to
assess how the child's performance drops but the legal team submitted
that the court should decide the
issues of the future loss of
earnings not later than now because the accident occurred in 2016
which makes it approximately 7 years
after the accident. The Court
requested the counsel to confirm the instructions and he indicated
that he holds such instructions
,
therefore
,
the Court will
proceed to evaluate the balance of probabilities of all evidence
before this Court, in order to decide the child's
future loss of
earnings as a result of the accident in question
.
[21]
The
court noted that several medical experts referred in supra
,
made
their findings based on the information reported by the child
'
s
mother who has an interest in the matter. The child was 4 (four)
years old when the accident happened
,
the
clinical psychologist indicated that the child did not generally has
problems remembering things
[14]
.
The plaintiff reported to the neurosurgeon and educational
psychologist that the child has memory problem. The clinical
psychologist
indicated that after the neurocognitive assessment it
certainly becomes clear that the child
'
s
abilities have not been compromised by the accident in question.
According to the clinical psychologist the child has an above
average
memory span
.
The
Court on the balance of probabilities finds that the child has no
memory problem nor forgetful. This Court finds that the accident
did
not affect the child
'
s
performance at school.
[22]
The Court had no pre
accident school report to compare with the post-accident school
performance since the accident happened before
the child commenced
with school. The Court is in possession of the child's school
reports
,
the
child performs exceptional well. The Court noted that the child has a
post-traumatic stress disorder as diagnosed by the clinical
psychologist. The court is of the view that the child post-traumatic
stress disorder may not entirely associated with the accident
in
question
,
specially
,
when taking
cognisance of the period of approximately 7 (seven) years before the
child was assessed by the clinical psychologist.
[23]
The
clinical psychologist opinion contradi
c
ts
the neurosurgeon and educational psychologists
'
opinion
regarding memory problem
,
forgetfulness
and the future impact of the head injury
.
The
clin
i
cal
psychologist opined that after the neurocognitive assessment it
certainly becomes clear that the child
'
s
abilities have not been compromised by the accident in question
[15]
.
There is no factual basis which was submitted b
e
fo
r
e
this
c
ourt
to support th
e
educational
psychologist
opinion
that although the child
'
s
school performance is currently satisfactory
,
would
likely struggle in the high grades in future
.
The
Court on the balance of probabilities finds that the child
'
s
injuries as a result of the accident in question will not likely have
any adverse impact on the child school performance nor future
loss
of
earnings
.
[24]
The Court is of the
view that although there is no apparent
loss
of future
income foreseen
,
the child
shou
l
d
be compensated by applying a spread of 5
%
of the
different between the pre and post morbid which are regarded equal.
In doing so
,
the Court
considered the conclusion of the clinical psychologist who opined
that the child has a post traumatic disorder and psycho-social
problems and such may probably have a slight effect in the child
'
s
future income
.
[25]
In consideration of
an actuarial calculations in para 14
supra
,
the court
accepted that the child has a potent
i
al
to obtain an honours degree
,
so scenario 2
has been considered
.
The future
loss of
earnings is made out as follows
;
Scena
r
io
2
Uninjured
income (R)
Injured
income (R)
Loss
(R)
Future
loss
17
618 939
17
618 939
Future
contingencies
(3
523 787
(4
404 734.75) 25%
Net
14
095 151.20
13
214 204.20
880
947
Impact
of a cap
Net
Total
880
947.00
[26]
In the
circumstances,
the Court find
that the
appropriate
amount to be
awarded to the plaintiff in respect of the
future
loss of
earnings capacity should be
in
the sum
of
R 880
947.00
(E
i
ght
hundred and Eighty Thousand
,
Nine Hundred
and Forty
-
Sev
e
n
Rands)
.
[27]
T
he
plaintiff has made out
its
case
,
and the
cost
should follow
the suit.
Order
[28]
In the c
i
rc
u
ms
tan
c
es
,
t
he
fo
ll
ow
i
ng
i
s
t
h
e
O
r
de
r
o
f
this Court
:
1.
T
h
e
defend
ant
sha
ll
pa
y the
p
l
a
i
n
tiff
t
h
e
s
u
m
of
R 880
947
.
00
(Eight
hundred and Eighty Thousand
,
Nine Hundred
and Forty-Seven Rand)
i
n
respect of
fut
u
re
loss o
f
earn
i
ngs
.
2.
The defendant shall
furnish t
h
e
plaint
i
ff
with a
n
undertak
i
ng
i
n
terms of Section 17 (4) (a) of Act 56 o
f
1996 within 30
days from the
d
ate
of delivery of the Court Order
.
3.
The amount in
paragraph 1 above shall be paid into the plaintiff
'
s
attorneys trust account.
4.
The defendant shall
be liable to pay interest on the aforesaid amounts
'
tempore
morae
at
the rate of 11
,
75%
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 B
.
6.
The costs
consequently in the preparation of and obtaining the medico legal and
actuary reports that were served on or provided
to the
d
efendant.
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 reasonab
l
e
taxab
l
e
cos
t
s
o
f n
ecessary
co
n
s
u
ltat
i
ons
with the said experts a
n
d
the reasonable taxab
l
e
traveli
n
g
,
subsistence
and accommodatio
n
costs of the
Plai
ntiff
for
attendi
n
g
the me
d
ico
l
egal
exam
i
nation,
sub
j
ect
to the d
i
sc
r
e
ti
on
of the
t
axing
maste
r
.
9.
The
reasona
ble
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 are refer
E.
MASHAMBA
ACTING
JUDGE OF THE HIGH COURT, LIMPOPO DIVISION
POLOKWANE
APPEARANCES
FOR
THE PLAINTIFF:
ADV
DM MPHAHLELE
INSTRUCTED
BY:
MPHAHLELE
&
MASIPA
INC ATTORNEYS
Email:
info@mminca.com
FOR
THE DEFENDANT:
NO
APPEARANCE
DATE
OF HEARING:
01
JULY 2024
DATE
OF JUDGEMENT:
24
JULY 2024
[1]
Bundl
e
D
,
p
age
7
6
[2]
B
undl
e
D
,
p
ag
e
77
[3]
Bundl
e
D
,
p
age
88
[4]
Bun
dl
e
D, page
100.
Para
6.8
[5]
ibid
,
pa
ge
1
03
,
par
8.
[6]
Supp
l
eme
n
tary
ind
ex
to
bundle
D
,
pa
r
8.
2
.5
[7]
i
b
id
,
pag
e
1
27,
par
4
.7.
1.
[8]
Supp
lem
entary
ind
ex
to
bundle
D
,
page
152
,
par
11
.2.2
[9]
At page 441 para [98]
[10]
19
5
8
(4) SA 235
At
237C-D.
[11]
Goliath
v Fedgen Insurance Company Ltd 1994
(
2
)
PH
F 31 E at 83.
[12]
S v Mkohle
1990 (1) SACR
95
(A) at 100d.
[13]
Supplementary index to
Bundle D, page 153, para 14.2.2
[14]
Bund
l
e
D
,
p
age
99
,
para
6
.
6
[15]
Bundle D, page 103