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[2024] ZAMPMBHC 62
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N.S obo A.S v Road Accident Fund (4441/2023) [2024] ZAMPMBHC 62 (5 September 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION
MBOMBELA
Case No: 4441/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
DATE: 05/09/24
SIGNATURE
In
the matter between:
N[...]
S[...] OBO
A[...]
S[...]
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
Msibi
AJ
Introduction
[1]
In this, is an action for the recovery of damages by the plaintiff on
behalf of a minor child following
her being run over by an insured
motor vehicle. The plaintiff sues for general damages, loss of income
and future medical expenses.
The merits were settled with the
defendant accepting 100% liability of the plaintiff’s proven
damages. The action is defended
by the Road Accident Fund (RAF). At
the commencement of the proceedings, the plaintiff brought an
application in terms of Rule
38(2) of the Uniform Rules of Court. The
application was granted. The defendant did not present any expert
evidence.
[2]
The minor child, A[...] S[...] N[...], was a pedestrian along
Schoemansdal Road in Nkomazi, Mpumalanga
Province, when a tractor
lost control and went to hit and run over her on 29 June 2021. As a
result of the accident, the minor
child sustained head injuries,
multiple lacerations on the head and face and an injury on the left
shoulder. In pursuance of the
claim, the plaintiff submitted the
following expert reports:
(a)
Orthopaedic surgeon
(b)
Neurosurgeon
(c)
Clinical Psychologist
(d)
Occupational Therapist
(e)
Educational Psychologist
(f)
Industrial Psychologis
(g)
Actuary
Plaintiff’s
Expert Reports
Orthopaedic
Surgeon: Dr Kekeletso Tsolo
[3]
The Orthopaedic Surgeon examined the child on 25 April 2023 and noted
that she was 8 years of
age and doing grade 4 at the time of
assessment. She was 6 years old at the time of the accident. The
plaintiff reported a pelvic
fracture and a vaginal laceration. The
following injuries were observed by the expert; back lumbar spine
injury, right iliac bone
fracture, left ischial fracture displaced;
and a perineal tear. She had a short limb gait and a deformity of the
hyper lordotic
spine. Following the accident, the plaintiff was
hospitalised for 3 weeks. She attended follow up appointments as an
outpatient
for 4 months. As a result of the accident the child
suffered from insomnia, frequent headaches as well as chronic pelvic
and back
pain which was aggravated by activity and inclement weather.
The orthopaedic surgeon qualifies her on a 24% WPI on the narrative
test.
Neurosurgeon: Dr M
P Seroto
[4]
The neurosurgeon examined the child on 25 April 2023. The expert
recorded that the child was healthy
and fully abled before the
accident. She was never involved in a motor vehicle accident before.
At the time of her assessment,
the child complained of forgetfulness
that started after the accident, poor academic performance, short
temperedness, signs of
post-traumatic stress disorder (anxiety,
nightmares, and morbid fear of motor-vehicles), poor concertation,
and fatigue. The child
suffers from chronic headache and memory
impairment. She has reached maximal medical improvement.
[5]
The neurosurgeon qualified the child on a 12% WPI based on the AMA
guidelines 6
th
edition.
Clinical
Psychologist: M P Mokwala
[6]
The expert assessed the child on 25 April 2023. She considered all
previous reports pertaining
to the child and noted that she could not
stand for extended periods of time and tires easily at school as well
as when she is
playing. Her energy levels have dropped. She is also
forgetful of what she learns at school. She has stopped participating
in school
athletics following the accident due to her inability to
run like before. With regard to the pelvic fracture, the chid will
most
probably always have pelvic pain and spasms, even with
successful treatment a full recovery is not possible. She experiences
occasional
sleeping difficulties due to pain in her leg and pelvis.
[7]
The expert assessed the child’s memory and attention span and
noted that both ranged between
impaired and below average memory and
concentration. This means that she will struggle to perform well on
tasks that will require
her mental focus. With regard to working with
numbers, she demonstrated a below average short term audit memory.
She has been rendered
cognitively more vulnerable as a result of the
accident. These cognitive sequelae are due to a complex combination
of brain injury,
persistent pain and psychological distress following
the accident and its aftermath. Thus the accident and its aftermath
are considered
to have had a significant impact on her cognitive,
interpersonal relationships, and occupational prospects as well as on
her quality
and enjoyment of life.
The Educational
Psychologist: DR D Mawila
[8]
The expert assessed the child and her mother and also considered the
child’s medical records,
school reports and reports by other
experts. The child never repeated her grades after the motor vehicle
accident. Even though
she is currently performing well at school, her
educability will probably be reduced as she proceeds to higher grades
wherein she
will be faced with higher demands on her higher cognitive
function. The child’s learning abilities have been compromised
by the accident. Areas of weakness are her found in her attention,
concentration and memory span. The writer opines that despite
her
mental and educational challenges, the child is likely to pass grade
12 and obtain NQF level 5 at a TVET college.
The
Occupational Therapist: Ms Khalipha Yaca
[9]
In her assessment of the child, the expert found that the child
presented with; impaired concentration,
impaired memory, difficulty
following instructions, experiences of headaches; and pelvic pain.
All the impairments that she has
identified will require occupational
therapy as well as other therapies to assist her to cope in the
classroom setting and in preparation
for the next phase of her
educational career.
[10]
The child’s future employability is directly related to the
level of education that she will be able
to attain. The expert
concluded that the injuries sustained in the accident will have a
negative impact on the child’s career
advancement, employment
prospects and vocational ability.
The Industrial
Psychologist: Ms Christina Badalani
[11]
The expert compiled the report based on her interview with the child,
her mother and the contents of all
relevant reports. The expert
assessed the child with the purpose of evaluating her pre-accident
and post-accident prospects of
employability and earning potential.
She noted that the child has difficulty concentrating and recalling
information in class.
Her impaired cognitive abilities and her
experience of pelvic pain are likely to have a negative impact on her
learning abilities,
her ability to participate in sporting
activities, and her future ability to obtain and sustain employment
in the open labour market.
She will need a sympathetic employer who
will give her work that will not aggravate her injuries. Seeing that
such employers are
hard to come by, she will therefore be restricted
in her employment options.
[12]
Had the accident not occurred, the child would probably have
completed grade 12 and continued to obtain an
honours degree level of
education. She was 6 years of age at the time of the accident, as
such she did not suffer past loss of
earnings. The child will not
reach her pre-morbid career potential. She will continue to suffer
loss of earning potential until
she reaches her career ceiling.
[13]
The expert recommended that higher than normal post-morbid
contingency deductions should be applied based
on her assessment and
conclusions.
The Actuary: Namir
Waisberg
[14]
In both pre-morbid and post-morbid scenarios the expert anticipated
that the plaintiff will work until the
age of 65 years. At scenario
1, the expert applied a 10% contingency spread and arrived at an
amount of R5 836 349 as
total loss of earnings.
Submissions
[15]
Counsel for the plaintiff submitted that the facts that have to be
considered are; the effects of the injuries
sustained by the child,
that she will best be accommodated by a sympathetic employer, and
that she is not an equal competitor in
the open labour market. The
argument for the plaintiff is that the amount arrived at by the
actuary is reasonable and fair.
[16]
Counsel for the defendant referred this court to the matter in
D.
B
obo
N.O.B v Road Accident Fund
,
[1]
where the court remarked as follows:
“
It is practise to
consider the intellect of a minor child’s parents and the minor
child’s immediate family to attempt
to predict the future
potential of the minor child. The practise is equally applied to the
minor child’s parent’s income
in an attempt to quantify
the future earning potential of the minor child.”
[17]
Counsel further submitted that the child’s father’s
highest standard of education is grade 8.
He works as a cleaner. Her
mother’s highest standard of education is grade 12, but she is
currently unemployed. The family
survives on social grants received
on behalf of the children. The defendant submitted that a total loss
of income of R1 477 510.50
is fair and reasonable.
The law
[17]
In relation to the assessment of damages for loss of earnings, the
following was said in
Southern
Insurance Association v Bailey NO
:
[2]
“
Any enquiry into
damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to the future,
without the
benefit of crystal balls, soothsayers, augurs or oracles. All that
the Court can do is to make an estimate, which is
often a very rough
estimate, of the present value of the loss. It has open to it two
possible approaches. One is for the Judge
to make a round estimate of
an amount which seems to him to be fair and reasonable. That is
entirely a matter of guesswork, a blind
plunge into the unknown. The
other is to try to make an assessment, by way of a mathematical
calculations, on the basis of the
assumptions resting on the
evidence. The validity of this approach depends of course upon the
soundness of the assumptions, and
these may vary from the strongly
probable to the speculative. It is manifest that either approach
involves guesswork to a greater
or lesser extent. But the Court
cannot for this reason adopt a
non
possumus
attitude
and make no award.”
[18]
The object of RAF is to give prejudiced plaintiffs the fullest
possible compensation by placing them, in
so far as possible, in the
same position in which they were before the damage causing event.
[3]
Loss of earnings
[19]
Only reports the plaintiff submitted reports in proving its claim. It
is clear from the reports that because
of the accident, the plaintiff
experiences challenges and due to pain and her physical livelihood,
school and work performance
will be negatively affected. It is not in
dispute that she is presently suffering limitations despite her good
school performance.
She will not be able to achieve her maximum work
potential in future as such she should be fairly compensated;
applying fair, just
and reasonable contingencies. There are
considerably more uncertainties in relation to the application of
general contingencies
to the loss of earning capacity for a minor
child. His or her true abilities are not known until later in
development, whereas
those of a mature adult are more predictable. In
my view higher than normal contingencies applied to the first
scenario suggested
in the actuarial report is appropriate. The
contingencies applicable (25% on pre-morbid and 35% on future income)
are fair and
reasonable. The plaintiff’s total loss of earning
capacity is therefore adjusted as follows:
But for the
accident:
R 9,850 070
Less
25%:
R2, 462 517
Total future value of
loss of income: R7 387 553
00
Having regard of the
accident:
R3, 381 614
00
Less
35%:
R1183 565 00
Total future value of
loss of income: R2, 198 049
00
Total value of loss of
income:
R 5, 189 503 00
General Damages
[20]
In
Litseo
v Road Accident Fund
,
[4]
the court held that:
“
In considering the
amount to be awarded for general damages it is acceptable to have
regard to awards issued in comparative cases,
although it is
immediately recognised that it is hardly possible to find a case or
cases that are on all fours with a particular
set of facts.
Ultimately, in determining general damages a broad discretion is
exercised by the court based on what it considered
fair and adequate
compensation. The nature, severity and permanency of the injuries
sustained, together with pain and suffering,
disfigurement, permanent
disability and the effects thereof on the person’s lifestyle
are aspects to be considered.”
[22]
The RAF does not dispute the injuries suffered by the child, the
extent thereof and her claim on general
damages. The defendant only
contends the quantum. The defendant referred this court to the matter
in
M
obo M v Road
Accident
Fund
,
[5]
wherein the plaintiff, a minor child, had suffered mild concussive
brain injury, lacerations and haematoma of the forehead. She
suffered
from post-traumatic headaches. She also experienced cognitive
functional problems and personality changes. She also suffered
post-traumatic stress disorder and depressive disorder symptoms. The
plaintiff was awarded R400 000.00 for general damages.
In the
matter at hand the defendant submits that the amount of R400 000.00
is reasonable.
[23]
The plaintiff prays for an amount of R1 400 000 00 in
damages. It is true that the above mentioned
matter by the defendant
is relatable to the matter before me. However, the child in this
matter sustained a pelvic fracture and
leg injury. Her injuries have
a potential of improvement through medical treatment, with no
permanent recovery. She will have to
live with the pain for the rest
of her life. An amount of R800 000.00 is a fair and reasonable
compensation for general damages
suffered by the child.
Order
[24]
Consequently, the following order is made:
1.
The defendant is ordered to pay the following amounts:
Loss of
earnings:
R5 189 503.00
General
Damages:
R800 000.00
Total amount
payable: R5 989 503.00
2.
The defendant shall be liable for interest thereon at the applicable
rate 14 days after this
judgment to the date of payment.
3.
The defendant shall furnish the plaintiff with an undertaking in
terms of section 17(4)
(a)
of the Act, 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 the injuries sustained by him in the
motor-vehicle collision which
occurred on 29 June 2021; after such
costs have been incurred and upon proof thereof.
4.
The defendant is ordered to pay the plaintiff’s costs at a
party and party scale.
S
MSIBI
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION MBOMBELA
Appearances
For
the plaintiff:
Mrs
Vicky Mboweni
Instructed
by:
Mboweni
& Partners, Mbombela.
For
the defendant:
Advocate
Cassiem
Instructed
by:
Office
of the State Attorney, Mbombela.
[1]
[2023]
ZAGPJHC 1218 para 36.
[2]
1984(1)
SA 98(A) at 99A-C.
[3]
Pretorius
v Road Accident Fund
2013 JDR 1096 (GNP) para 38.
[4]
[2019] ZAFSHC 52
para 25.
[5]
[2018] ZAGPJHC 451.