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[2024] ZAFSHC 278
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P.K.D.T v Road Accident Fund (4033/2013) [2024] ZAFSHC 278 (3 September 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable / Not
reportable
Case no:
4033/2013
In
the matter between:
P[…]
K[…] D[…] T[…]
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
LINK
NUMBER: 2920204
Coram:
Cronjé, AJ
Heard:
16 August 2024
Delivered:
03 September 2024
Summary
:
Motor vehicle accident – moderate head injury at age 4 –
quantum of damages – general damages – loss of
past and
future income – impairment of neurocognitive, neurobehavioral
and neuropsychiatric functioning – whether plaintiff
can obtain
an NQF 7 qualification – improbable that she will qualify
beyond NQF 6.
ORDER
1.
The defendant is liable
for payment to the plaintiff in the amount of R600 000.00
(six
hundred thousand rand and zero cents) in respect of the plaintiff's
claim for general damages resulting from a motor vehicle
collision
that occurred on 11 March 2005.
2.
The defendant shall furnish the plaintiff with an undertaking in
terms of
section 17(4)
(a)
of the
Road Accident Fund Act 56 of
1996
, for 100% of the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the treatment of or the
rendering
of a service or the supplying of goods to the plaintiff
arising out of injuries sustained by the plaintiff in the
aforementioned
motor vehicle collision, in terms of which undertaking
the defendant will be obliged to compensate the plaintiff in respect
of
the said costs after the costs have been incurred and on proof
thereof.
3.
The defendant is liable
for payment to the plaintiff in the amount of R3 993 875,00
(three
million, nine-hundred and ninety-three thousand, eight-hundred and
seventy-five rand and zero cents) in respect of the plaintiff's
claim
for past and future loss of income resulting from the aforementioned
motor vehicle collision.
4.
The defendant is to pay
the plaintiff's taxed or agreed party-and-party costs on the
High
Court scale until the date of this order, including but not limited
to the costs set out hereunder:
4.1
The reasonable qualifying and reservation fees of the following
experts:
4.1.1
Dr A van Aswegen (neurosurgeon).
4.1.2
Ms. R du Plessis (counselling psychologist).
4.1.3
Ms. S Gouws (occupational therapist).
4.1.4
Ms. A Stroebel (occupational therapist).
4.1.5
Dr E J Jacobs (industrial psychologist).
4.1.6
Munro Forensic Actuaries.
4.1.7
Ms. L Swart (educational psychologist).
5.
The cost of senior counsel as on scale C.
6.
The payment provisions in respect of
the aforegoing are ordered as follows:
6.1
Payment of the amounts referred to in paragraphs 1 and 3 above
(hereafter collectively referred
to as the ‘capital amount’)
shall be made without set-off or deduction within 180 (hundred and
eighty) calendar days
from the date of the granting of this order,
directly into the trust account of the plaintiff's attorneys of
record by means of
electronic transfer, the details of which are the
following:
Honey
Attorneys - Trust Account
Bank
- Nedbank,
Maitland
Street, Bfn
Branch
Code - 110 234 00
Account
No. - 1[…]
Reference
- HL Buchner/vch/J03110
(quote
the reference at all times)
7.
Payment of the taxed or agreed costs shall be made within 180
(hundred and eighty)
days of taxation and shall likewise be effected
into the trust account of the plaintiff's attorneys of record.
8.
Interest shall accrue at 11.75%
(the statutory rate per annum), compounded, in respect of:
8.1
the capital amount of the claim, calculated from
14 (fourteen) days from the date of this order;
8.2
the taxed or agreed costs, calculated from 14 (fourteen) days from
the date of taxation,
alternatively the date of settlement of such
costs.
JUDGMENT
Cronjé,
AJ
Introduction:
[1]
P[…]
T[…]’s father instituted a claim against the Road
Accident Fund (RAF) in his representative capacity as
father and
natural guardian when she was still a minor. She is now 23 years old,
and the judgment is in her name.
[2]
On 11 March
2005, at approximately 13:40, an accident occurred wherein the
insured vehicle collided with P[...] who was a pedestrian.
P[...] was
four years and three months old at the time of the accident.
[3]
The standard
grounds of negligence are alleged, with addition of an allegation,
namely that the insured vehicle failed to allow
sufficient space
between the insured vehicle and a stationary taxi offloading children
when the insured vehicle passed by.
[4]
The heads of
damages are past and future medical and hospital expenses, past and
future loss of income, and general damages. The
total claim is R5 517
985.00. The parties settled the claim for general damages on
R600 000.00.
[5]
The defendant
denies negligence and alleges that P[...] entered the road when it
was inopportune to do so, failed to take reasonable
care, failed to
take cognisance of the insured driver’s action or intended
actions. It pleads that P[...]’s claim be
reduced in accordance
with the Apportionment of Damages Act 34 of 1956.
[6]
On 30 August
2016, Zietsman AJ granted an order in which the RAF accepted
liability for 100% of P[...]’s proven or agreed
damages. I need
to determine the quantum of her loss.
[7]
Although the
rule 37 minute records that no proof is to be produced by way of
affidavit in terms of rule 38(2), the parties agreed
that the bundle
of expert notices be accepted as evidence. This concession is
qualified to the extent that a dispute exists on
whether P[...] would
have obtained a diploma at NQF 6 level or could obtain a degree at
NQF 7 level. The contingencies are also
subject to the Court’s
discretion.
[8]
The only
aspect in dispute in the reports of Mrs L Swart (educational
psychologist) and Dr E.J. Jacobs (industrial psychologist)
is the
post-career path of P[...].
Evidence
of P[...]
[9]
She studied
towards a three-year media practices qualification at Boston Media
House in Pretoria for one year but failed some modules
as the work
was too much for her. She did not want to sit at home, and her father
paid for her studies. She did not have a specific
outcome in mind and
still does not know what she will eventually achieve by studying.
She, therefore, studied for a diploma in
Performing Arts at TUT,
having yet to find a specific outcome in mind, and succeeded in
obtaining the qualification. It was practice
orientated, and she
never had to open a textbook. She wanted to do acting, voice-over,
and voice in video production. She sent
her curriculum vitae to
various institutions but could not secure work. After that, she
applied to ALX Africa for a 12-month online
software engineering
course. She failed to complete it as she could not understand coding
language. After that, she registered
for a post-graduate certificate
in education, which complements her performing arts qualification.
She commenced with it in 2024
and will complete it over a period of
two years. When asked why she took this course, she said she wanted
to do something and did
not want to sit at home. She failed a few
tests, and is now required to use textbooks. She, however, wants to
avoid becoming an
educator.
[10]
In
cross-examination, she stated that she aspires to be qualified in the
medical or construction industry. She attempted to register
at
various nursing universities but could not recall the outcome. She is
interested in quantity surveying (QS), gynaecology or
geography. She
took the course in media practice as it was the only one to which she
was accepted. She still needs to decide what
career to pursue. She
has not recently attempted to register for a baccalaureate degree and
had no reason not to do it.
Evidence
of Mrs Linda Swart (Educational Psychologist)
[11]
Mrs Swart
found that P[...] has an average short-term memory for auditory
material as she initially could only recall 26/43 facts.
After a
timed delay, she could only recall the same 26 facts. Her performance
on the Digits subtests ranged between below to low
average. P[...]’s
spelling ability is functional and below the requirements for her
chronological age. She sometimes spells
phonetically and
mispronounces words. Her visual-motor integration skills are delayed,
which will harm her reading, spelling, and
writing abilities.
Applying various tests, she found that P[...] does not experience
symptoms of anxiety and depression.
[12]
She concluded
that, but for the accident, and taking P[...]’s background and
the qualifications of her parents and sibling
into account, P[...]
would have proceeded to obtain an NQF 7 qualification. Based on all
available information, it is clear that
P[...] will not be able to
achieve according to her pre-accident ability.
[13]
She referred
to the report of Mrs. Rita Du Plessis (Neuropsychologist), who
concluded that a healthy neuropsychological status requires
healthy
and unaffected neurocognitive, neurobehavioral and neuropsychiatric
functioning. According to Mrs. Du Plessis, P[...] presents
with
problems in all these areas. Cumulative interference with these
components leaves her with a compromised neuropsychological
status.
[14]
According to
Mrs Swart, P[...] is not functioning in her pre-morbid state, which
impacts her academic ability. The diploma in performing
arts would be
her highest level of education. Her present course in software
engineering would not supersede her diploma and she
does not foresee
that P[...] would progress from an NQF 6 to an NQF 7 qualification as
she would need at least an APS score of
28, whereas she only obtained
21. This would not assist her in being accepted for an undergraduate
qualification. P[...] shies
away from theoretical content, suffers
headaches and fatigue and has difficulty concentrating. This needs to
be better for obtaining
a degree. She does not seem to have executive
functioning, including planning abilities. As such, she will need to
be directed
in order to give effect to her desire to be
constructive.
[15]
In
cross-examination, Ms Bornman asked whether P[...] could improve her
grade 12 results to increase her APS score. Ms Swart opined
that
P[...] would have to repeat Grade 12 and increase her marks by 10% to
improve her university admission chances. It is possible
to obtain a
B.Tech degree and then convert to an academic qualification at the
university level. She is unsure that her performing
arts
qualification would lead to a degree.
[16]
In
re-examination, she stated that the demands of a B.Tech degree are
the same as a course at university level. A combination of
parental
pressure and P[...]’s lack of direction, combined with the
impairment of her executive functioning, is prodding
her in a
direction but nothing specific. The picture P[...] paints is not that
of laziness but a result of her suffering from a
moderate head injury
and attendant deficits of such an injury.
Report
of Dr. Van Aswegen (Neurosurgeon)
[17]
Dr Van Aswegen
states that P[...] was hospitalised with a head injury with a
laceration to the forehead. Her initial Glascow
Come Scale
(GCS) score was 9/15, and she was extremely irritable. Her GCS after
that improved to 11/15, and a CT scan of the brain
showed a skull
fracture and an underlying neurocranium. She complains of daily
headaches which do not follow a specific pattern.
Using aspirin
brings mild relief. She also complained of impaired memory by
forgetting to do chores and homework. On the memory
and effect test,
she scored 30/30. Her higher cognitive functions tested 30/30.
[18]
He summarised
her World Health Organisation Disability Assessment Schedule (WHODAS)
2.0 score at a 40.63% disability. He concluded
that the possible
long-term consequences of the head injury poses an epilepsy risk of
1.2-4.2%, delayed neurocognitive development
disorders, and possible
attention deficit disorder with or without hyperactivity. The
complaints of headaches, impaired memory
and lack of concentration
can directly be ascribed to the head injury that she sustained.
Report
of Mrs Simone Gouws (Occupational Therapist)
[19]
Mrs Simone
Gouws applied the
Repeatable
Battery for the Assessment of Neuropsychological Status
(RBANS) test and
found that P[...]’s immediate memory was average,
visual-spatial/construction was average, language and delayed
memory
was low- average and her attention to be average. Her total
index score was low-average. The total index score is
a good
indicator of a person's general cognitive functioning. Low scores on
this index strongly suggest general cognitive impairment,
even when
some individual subject scores may have been within normal limits.
[20]
Applying the
Thurstone questionnaire, she concluded that P[...]’s work speed
was faster than the norm, and her work accuracy
was within the
acceptable amounts of errors on the first two sections of the test.
However, as time progressed, she started making
an increased amount
of errors, subsequently making an acceptable amount of errors on the
last two sections of the test.
[21]
On the
Beery-Buktenica developmental test of visual-motor integration,
P[...] scored below average for visual-motor integration
and
development of visual perception. Her test of motor coordination was
average.
[22]
She notes
limitations with expressive language, limitations in attention,
concentration and visual perceptual skills.
[23]
She concludes
that in the event that P[...] pursues a tertiary qualification, it
should be noted that these cognitive and visual
perceptual
limitations will increase the possibility that she will not complete
future studies within the allocated period.
[24]
In her
opinion, P[...] is at risk of making more errors than her peers in
jobs requiring a high amount of sustained attention and
concentration, a higher amount of accuracy, and high demands on
memory. This may result in her becoming a vulnerable employee in
future.
Actuarial
Report of Munroe Forensic Actuaries
[25]
The actuarial
report is dated 5 September 2023. The total loss of earnings,
considering the contingencies applied, is R4 615 405.00.
Legal
precedent
[26]
In
Ralph
v Road Accident Fund
[1]
Molitsoane
J summarised the approach to contingency calculations, referring to
various decisions, including
Oosthuizen
v Road Accident Fund.
[2]
It
was held that matters that cannot otherwise be provided for or cannot
be calculated exactly but that may impact the damages claimed
are
considered contingencies and are usually provided for by deducting a
stated percentage of the amount or specific claims. Contingencies
include any relevant future event that might cause damage or a part
thereof or may otherwise influence the extent of the plaintiff’s
damage. Contingencies have also been described as unforeseen
circumstances of life.
Conclusion
[27]
I am mindful
of the fact that P[...] was injured when she was very young. It is
difficult to determine how a child will develop
at that stage as many
factors play a role. Bearing in mind the educational environment
P[...] grew up in, what appears to be a
stable family environment,
she would have had the potential to achieve more than she presently
has. I am also mindful that P[...],
during various occasions in her
evidence, and as also captured in some of the expert reports,
indicated that she does not know
what she would like to become. Her
evidence left the impression that she would rather do something than
sit at home. This is part
of what Mrs Swart states to be part of the
neurocognitive outfall.
[28]
Mr Zietsman
argues for a 40% contingency on Munroe Actuaries’ calculation
of R6 215 300.00. This leaves a loss of past and
future income of R3
993 875.00. I am satisfied that this amount represents the best
estimation one can achieve.
Costs
of the experts
[29]
I am satisfied
that the experts of whom reports were submitted were necessary and of
assistance to determine the merits and the
quantum and their fees
should be allowed.
Costs
[30]
There is no
reason why the costs should not follow the result. I am satisfied
that the services of senior counsel were justified
and that the costs
should be taxable on scale C.
ORDER
[31]
Therefore, I
make the following order:
1.
The defendant is liable for payment to
the plaintiff in the amount of R600 000.00 (six hundred
thousand rand
and zero cents) in respect of the plaintiff's claim for general
damages resulting from a motor vehicle collision
that occurred on 11
March 2005.
2.
The defendant shall furnish the plaintiff with an undertaking in
terms of
section 17(4)
(a)
of the
Road Accident Fund Act 56 of
1996
, for 100% of the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the treatment of or the
rendering
of a service or the supplying of goods to the plaintiff
arising out of injuries sustained by the plaintiff in the
aforementioned
motor vehicle collision, in terms of which undertaking
the defendant will be obliged to compensate the plaintiff in respect
of
the said costs after the costs have been incurred and on proof
thereof.
3.
The defendant is liable for payment to
the plaintiff in the amount of R3 993 875,00 (three million,
nine-hundred and ninety-three thousand, eight-hundred and
seventy-five rand and zero cents) in respect of the plaintiff's claim
for past and future loss of income resulting from the aforementioned
motor vehicle collision.
4.
The defendant is to pay the
plaintiff's taxed or agreed party-and-party costs on the High Court
scale until the date of this order, including but not limited to the
costs set out hereunder:
4.1
The reasonable qualifying and reservation fees of the following
experts:
4.1.1
Dr A van Aswegen (neurosurgeon);
4.1.2
Ms. R du Plessis (counselling psychologist);
4.1.3
Ms. S Gouws (occupational therapist);
4.1.4
Ms. A Stroebel (occupational therapist);
4.1.5
Dr EJ Jacobs (industrial psychologist);
4.1.6
Munro Forensic Actuaries;
4.1.7
Ms. L Swart (educational psychologist);
5.
The cost of senior counsel as on scale C.
6.
The payment provisions in respect of
the aforegoing are ordered as follows:
6.1
Payment of the amounts referred to in paragraphs 1 and 3 above
(hereafter collectively referred to as
the ‘capital amount’)
shall be made without set-off or deduction within 180 (hundred and
eighty) calendar days from
the date of the granting of this order,
directly into the trust account of the plaintiff's attorneys of
record by means of electronic
transfer, the details of which are the
following:
Honey
Attorney - Trust Account
Bank
- Nedbank,
Maitland Street, Bfn
Branch
Code - 110 234
00
Account
No. -
1[…]
Reference
- HL Buchner/vch/J03110
(quote
the reference at all times)
7.
Payment of the taxed or agreed costs shall be made within 180
(hundred and eighty) days of
taxation and shall likewise be effected
into the trust account of the plaintiff's attorneys of record.
8.
Interest shall accrue at 11.75% (the
statutory rate per annum), compounded, in respect of:
8.1
the capital amount of the claim, calculated from
14 (fourteen) days from the date of this order;
8.2
the taxed or agreed costs, calculated from 14 (fourteen) days from
the date of taxation, alternatively
the date of settlement of such
costs.
CRONJÉ,
AJ
Appearances:
For
the Plaintiff:
Adv.
PJJ Zietsman SC
Instructed
by:
Honey
Attorneys
Bloemfontein
For
the Defendant
:
Ms
C Bornman
Instructed
by:
State
Attorney
Bloemfontein
[1]
Ralph
v Road Accident Fund
[2023]
ZAFSHC 76
para 26.
[2]
Oosthuizen
v Road Accident Fund
2015 JDR 1717 (GJ).