About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 346
|
|
J.K.M obo P.M v Road Accident Fund (2084/2023) [2024] ZAFSHC 346 (25 October 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
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable / Not
reportable
Case Number:
2084/2023
In
the matter between:
J[…]
K[…] M[…]
Identity
Number 9[…]
(On
behalf of
P[…] M[…]
)
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Neutral
Citation:
J[…] K[…] M[…] obo P M[…] v RAF
2084/2023
Coram:
Reinders J
Heard:
26 April 2024
Delivered:
This judgment was handed down in open court on 25 October 2024
and distributed to the parties via electronic mail communication.
Summary:
Motor
vehicle accident – bodily injuries including severe traumatic
brain injury sustained by a minor – claim for damages
with
qualification of plaintiff’s future loss of earnings and
general damages
ORDER
As set out in paragraph
32 of the judgment
JUDGMENT
[1]
On 18 May 2019 P[…] M[…] (P[…]), aged seven
years and four months at the
time, was a passenger in a motor vehicle
that was involved in an accident in Witsieshoek, Free State Province.
The plaintiff is
the mother and natural guardian of P[...] and as
such sues in her representative capacity and claims damages from the
defendant
as a result of the injuries sustained by P[…].
[2]
The defendant conceded liability for 100% of plaintiff’s proven
or agreed upon damages with
the quantification of plaintiff’s
claims for future loss of earnings, general damages and future
medical, hospital and related
costs to be determined. The latter was
settled by way of an undertaking by defendant in terms of
s 17(4)
of
the
Road Accident Fund Act 56 of 1996
. I was called
upon
to adjudicate the two outstanding issues, namely the plaintiff’s
claim for general damages and loss of future earnings,
with reference
also to the contingencies to be applied.
[3]
It is not in dispute that P[...] sustained bodily injuries
as
a consequence of the accident.
These included a
traumatic concussive head/brain injury, degloving injury to the head,
right subgaleal heamatoma with pneumocrania,
severe depressed
comminuted frontal and parietal skull, underlying cortical injury and
contusion, brain herniation of the right
parietal lobes into the
subcutaneous tissues, lacerations and hemiparesis (slight, right arm
and leg).
[4]
As is evident from the plaintiff’s particulars of claim, P[…]
received medical treatment,
amongst others, craniotomy for elevation
of the depressed skull fracture, skin graft, post-craniectomy for
skull fractures, debridement
of necrotic skin flap, cranioplasty for
skull defects and physiotherapy for hemiparesis.
[5]
From the evidence tendered before court and upon a holistic reading
of the plaintiff’s expert
reports the
sequalae
of the
injuries sustained mainly entails a slight hemiparesis (right arm and
leg), slight limp, neuro-cognitive difficulties, neuro-physical
difficulties, neuro-behavioural difficulties (psychiatric complaints)
and headaches.
[6]
The plaintiff filed expert reports of
Dr JH Kruger
(neurosurgeon); Dr M Mazabow (clinical and neuropsychologist); Dr BA
Longano (psychiatrist); Ms L Wheeler (occupational
therapist); Dr L
Berkowitz (plastic and reconstructive surgeon); Ms A Mattheus
(educational psychologist); Ms L Theron (industrial
psychologist) and
Mr R Immermann (consulting actuary).
At the commencement of
the trial, I granted leave to the plaintiff to present her evidence
and that of her medical experts by way
of affidavits in terms of
Uniform
Rule 38(2).
It is common causes that the
defendant did not employ any experts nor did it call any witnesses.
Defendant accepted the reports,
save for that of Mesdames Mattheus
and Theron.
[7]
I deem it apposite at this juncture to deal in more detail with the
uncontested evidence of the
experts as mentioned, and can do no
better than quoting verbatim the nub thereof as summarised by the
plaintiff in her heads of
argument:
‘
7.1
Dr Kruger (neurosurgeon)
interviewed
and examined
P[...]. The plaintiff reported to Dr Kruger that she was with P[...]
in the vehicle and that P[...] was rendered unconscious
immediately
after the accident. According to the plaintiff's reporting P[...] had
an initial dense phase of post-traumatic amnesia
("PTA”)
of seven days. Seven days after the accident, at the Universitas
Academic
Hospital ("the Universitas
Hospital”)
, P[...] recognised her
surroundings and the people around her. P[...] has no recollection of
the accident. P[...] was stabilised
at the scene of the accident and
taken by ambulance to the Qua-Qua Hospital, where she was treated for
a few hours and thereafter
transferred by ambulance to the Pelonomi
Academic Hospital where she was treated for two days and then
transferred to the Universitas
Hospital where she was treated in the
Department of Neurosurgery. She was discharged from the Universitas
Hospital on 28 June 2019.
7.2
A consideration of the clinical records that were made available to
Dr Kruger revealed that
P[...] sustained a traumatic brain injury in
the accident. Her initial GCS was recorded as 12/15 and thereafter a
single GCS score
of 11/15 was made. CT scanning revealed a severe
depressed skull fracture on the left-hand side with underlying
contusional haemorrhages.
On 20 May 2019 P[...] was taken to theatre
where a debridement and elevation of the skull fractures were
performed. A skin flap
was also turned, which flap later became
septic requiring a further debridement. A skin graft was then placed
in position. The
clinical records also revealed left sided
hemiparesis which was treated conservatively. After P[...]'s
discharge from hospital
she was re-admitted when a cranioplasty was
performed. The plaintiff reported that P[...]
had a right sided
hemiparesis involving the right arm and the right leg
(the
clinical records refers to left sided hemiparesis). P[...] had a
single episode of epilepsy at the Universitas Hospital in
2019 after
the surgery performed to elevate the depressed skull fracture.
7.3
In Dr Kruger's opinion P[...] sustained a
severe
traumatic
brain injury, evidenced by the fact that she sustained a blow to the
head, was unconscious immediately after the accident,
had an initial
dense phase of PTA of seven days and had an initial GCS score of
12/15 which deteriorated to 11/15. The brain injury
was complicated
by focal brain injuries, including a severely depressed skull
fracture on the left side of the skull with underlying
cerebral
contusional haemorrhages.
7.4
Immediately after the accident P[...] was unable to attend to
activities of daily living.
Assistance was initially provided by the
Hospital personnel. At home assistance was provided by the family.
P[...]'s right sided
hemiparesis was treated by means of
physiotherapy and occupational therapy. Dr Kruger found a slight
weakness in her right arm
and right leg. P[...] currently writes with
her left hand although she is right handed. She has a slight limp on
the right hand
side.
7.5
It was reported to Dr Kruger that since the accident P[...]
"sometimes"
struggled with cognitive mental
problems. She sometimes forgets conversations held and instructions
given to her. She sometimes
struggles to concentrate for longer than
thirty minutes. The plaintiff reported that since the accident P[...]
had a change in
personality. She has become angry and struggles with
impulse control. She regularly has conflict with other people.
7.6
In Dr Kruger's opinion, in consequence of the severity of the brain
injury sustained by
P[...], she has a 15% prospect of developing
epilepsy in future. Since the accident she also struggles with muscle
tension headaches
(once a week). These headaches are aggravated by
psychological stress. Dr Kruger suggests that the headaches be
treated medically
with non-steroidal anti-inflammatory medication.
7.7
In Dr Kruger's opinion P[...]'s whole person impairment, from a
neurosurgical perspective, equates
to 25%. In terms of the
Narrative
Test
P[...]'s injuries qualify as
serious injuries,
namely
serious long-term impairment or loss of body function, permanent
serious disfigurement and severe long-term mental or severe
long-term
behavioural disturbance or disorder. Due to the sequelae of the brain
injury sustained by P[...] Dr Kruger is of the
opinion that if a
large sum of money is awarded to the plaintiff it should be protected
in a trust.
7.8
Dr Mazabow (clinical and neuropsychologist)
, interviewed and
assessed P[...]. The plaintiff reported to Dr Mazabow that P[...] had
no significant illnesses or injuries prior
to the accident in
question. There is also no reported personal or family history of
psychiatric / psychological illnesses or treatment.
She attended a
creche from the age of 3 or 4. In Grade RR in 2016 she was at the
Lerato Learning Centre. She remained in this school
in 2017 for Grade
R, where no difficulties were reported. In 2018 P[...] moved to
Sannieshof in the North West Province to reside
with her maternal
grandmother and attended the Refethuto Primary School where she
passed Grade 1. In 2019 she returned to reside
with her parents in
Eikenhof and again attended the Lerato Learning Centre for Grade 2.
The accident occurred in May 2019.
7.9
P[...] has a single
"island memory"
of being at the
scene of the accident, when someone summoned an ambulance. Her next
memory is arriving at a hospital. She then
has no further recall
until being taken for surgery (which the plaintiff reported to be in
June). P[...]'s memory is only continuous
after her discharge from
hospital, more than a month post-accident. The plaintiff reported to
Dr Mazabow that P[...] was rendered
immediately unconscious after the
accident and that
"everyone thought
she was gone".
She started crying approximately ten minutes later when being removed
from the wreckage of the vehicle. She was very drowsy and
did not
appear to recognise her parents. The plaintiff reported that
"they
tried"
to keep P[...] awake but she remained drowsy at the
Manapo Hospital from where she was transferred immediately to the
Pelonomi
Hospital. She did not appear to recognise her parents at
that time. Three days later at the Universitas Hospital P[...]'s face
was swollen and she did not appear to recognise the plaintiff. She
only appeared to recognise the plaintiff for the first time the
following day, but was confused and believed that she was 6 years
old. According to the plaintiff P[...]'s mental status improved
approximately a week after her arrival at the Universitas Hospital.
P[...] was re-admitted to the Universitas Hospital in December
2020,
early in 2021 and in May 2021. Thereafter once again in October 2022
for a cranioplasty.
7.10
Dr Mazabow had access to the same clinical records that Dr
Kruger
did, and made similar recordals therefrom.
Dr Mazabow notes that it is evident from the clinical records that in
May 2021 a diagnosis
was made in the Department of Neurosurgery of a
severe depressed comminuted skull fracture in the frontal and
parietal regions,
with a significant cortical injury (lacerations and
contusions). Dr Mazabow concludes that the recordals in the clinical
records
suggest a significant blow to P[...]'s head. He is of the
opinion that P[...] sustained a severe paediatric traumatic brain
injury
comprising of diffuse and focal damage at a vulnerable age of
7 years and 5 months
. One would expect
significant and persisting psychological deficits of an
organic nature following this injury
.
7.11
The plaintiff reported that P[...] returned to school in September
2019. The wounds over her head and face
had not fully healed at the
time and she had to wear a hat to conceal and protect these. She
walked with a marked limp because
of the weakness in her right leg.
Her right arm and hand were also weak which prevented her from
writing. She started to use her
left hand to write in compensation.
In 2021 P[...] did not attend school for the first few months because
she was admitted to hospital
on several occasions for surgery to her
skull and for resultant complications. She only returned to school in
April 2021. Shortly
thereafter she was admitted to hospital again for
the cranioplasty and thereafter only returned to school in June 2021.
In 2023
(Grade 6) P[...] failed Terms 1 and 2. All her scores were
below the respective grade averages. P[...]'s parents were called to
the school at the end of the second term and informed by the teachers
that P[...] was the only pupil who was struggling in the
class and
recommended that she attends a special school from 2024. Dr Mazabow
notes that P[...] has little insight into her difficulties,
reporting
no problems at school and saying that she wants to become a medical
doctor or a psychologist.
7.12
P[...] reported to Dr Mazabow that she fatigues rapidly since the
accident. The plaintiff suspects
that P[...] has a sleep disturbance
as she is often awake when the plaintiff enters her room at night
(P[...] denies this). P[...]'s
feet become swollen when she runs. The
plaintiff reported that P[...] complains of lower back pain after
walking or standing for
long and is short-tempered and aggressive
towards her siblings. P[...] states that she is irritable. The
plaintiff reports that
P[...] has a poor memory and forgets
instructions, which is confirmed by P[...]'s father. In respect of
P[...]'s right hemiparesis
her right arm and leg remain weaker than
the left. She complains of headaches approximately three times a week
and uses Panado,
Disprin and Grandpa powders for the headaches.
P[...] has unsightly scarring on both sides of her head with loss of
skin tissue
on the left temporal area and resultant hair loss. She
also has scarring over the right temporal region and across her
forehead
and on the right forehead. There is further scarring over
her right thigh which was the site of the skin graft.
7.13
Dr Mazabow notes that P[...] presented as a co-operative, friendly
and polite child, although she appeared
somewhat immature for her age
during their interaction. P[...] was distractible and fidgeted during
the interview, presenting with
mild impulsiveness in the test
session. Her concentration fluctuated. She used her left hand
throughout and has established fair
pen control with that hand. Her
work pace was variable but her affect was euthymic.
7.14
Dr Mazabow's neuropsychological assessment revealed that P[...],
pre
morbidly,
was a child of at least average cognitive intellectual
potential. However, the assessment revealed that P[...] had below
average
performances on tests of fine motor speed / dexterity (for
both hands, but especially for the right hand), simple
visuomotor tracking speed, sustained attention / vigilance, working
memory / double mental tracking, visual reasoning, arithmetic
reasoning, forward planning and self-monitoring. P[...]
had marked
variability in her immediate span of attention in her narrative
memory. Qualitatively P[...] had variable concentration
and variable
work pace, with impulsive responses
. In Dr Mazabow's opinion
P[...] sustained a severe brain injury at a vulnerable age with
significant and persisting neuropsychological
(neurocognitive and
neuro-behavioural) deficits of an organic nature. In Dr Mazabow's
opinion, having assessed P[...] more than
four years after the
accident, and given the severity of the brain injury,
her
neuropsychological status is permanent
.
7.15 In Dr Mazabow's
opinion P[...] is likely to experience increasing psychological
disturbances in future (principally depression)
as the effects of her
neuropsychological difficulties and cosmetic disfigurement become
more salient. According to Dr Mazabow it
is likely that P[...]
will
develop a significant mood disturbance as she enters adolescence and
the teen years,
when her marked cosmetic disfigurement will
likely become a source of low self-esteem and self-confidence (in
addition to the likely
worsening of her scholastic performances as
she progresses to higher grades).In Dr Mazabow's opinion, from a
neuropsychological
and clinical psychological perspective, the
history of scholastic deterioration and the requirement for remedial
/ special schooling
is in keeping with the expected
sequelae
of
a
significant paediatric traumatic brain injury.
P[...] also
demonstrated problems, particularly in the domains of sustained
attention / concentration (with variability in her
immediate span of
attention and in her narrative memory), self-monitoring / error
vigilance, forward-planning, attention to visual
details / visual
reasoning, working memory / double-mental tracking, and fine motor
speed / dexterity with fatiguability
and low frustration
tolerance of functions that are critical for effective progress in
the classroom.
These identified neuropsychological difficulties
are expected to become more salient as she progresses to the higher
grades, especially
from Grade 10 onwards.
In Dr Mazabow's opinion
the recommendation for remedial or special schooling is
appropriate.32 P[...]'s cognitive and behavioural
difficulties as
well as her neuro-physical deficit (right sided hemiparesis) will
also limit her vocational functioning in future.
Adding her reported
lower back pain and chronic headaches, her ability to perform
efficiently in positions of a physically demanding
nature will be
limited and will restrict the scope of potential jobs. Her
neurocognitive and neuro-behavioural disturbances will
limit her
ability to cope in more sedentary positions.
7.16 In Dr Mazabow's
opinion P[...]'s whole person impairment, from neuropsychological
perspective, equates to 24%, to which her
residual right sided
hemiparesis and very severe cosmetic disfigurement should be added,
with a final combination that will
"certainly surpass 30%".
7.17
Dr Longano
(psychiatrist)
interviewed and assessed P[...]. Dr Longano also
concludes that according to the entries in the hospital records
P[...] sustained
a significant head injury. Severe daily headaches
were reported to Dr Longano, necessitating P[...] to lie down. At
school she
will go to the sickbay. The headaches improve when she
drinks water and Panado. The plaintiff reported that P[...] becomes
moody
at home and is irritable "
about being given
instructions
". She gets annoyed very easily. She used to
like soccer a lot but now feels that she cannot play like before. She
gets tired
quickly when walking. When P[...] gets home her feet are
swollen.
7.18
In Dr Longano's opinion P[...]'s neurocognitive deficits are at least
moderate, but probably of major
severity. Psychologically her
injuries can be described
as life changing in terms of physical
disfiguration and emotional dysregulation.
7.19
Ms Wheeler (occupational therapist
)
interviewed and assessed P[...].
The
plaintiff reported to Ms Wheeler that P[...] had all her inoculations
up to date and did not have any adverse reactions to any
of those.
She was healthy and strong before the accident. She reached all her
milestones within normal limits. She had no childhood
diseases and
has not been hospitalised for anything pre-accident.
7.20
Ms Wheeler noted the following physical deficits -
7.20.1
Neurological
systems:
Poor
proprioceptive
processing; functioning in this affects
P[...]'s ability to control pressure when writing, during ball skills
and to maintain balance
with her eyes closed;
7.20.2
Sensory
systems:
An increased use of proprioceptive feedback which can be
seen when P[...] presses hard during pen and paper tasks;
7.20.3
Sensory
motor development:
Slightly inadequate posture due to low
postural tone, poor pencil grip for a child of her age, slightly
inadequate prone
extension, slight impairment in motor planning
difficulties (bilateral asymmetrical tasks) and poor balance with
eyes closed;
7.20.4
Perceptual
motor:
P[...] scored below average on the TVPS sub-tests in
respect of spatial relations and visual figure ground. She scored
very low
on form constancy. Ms Wheeler agrees with Dr Longano that
this is probably due to her visuospatial problems as a result of the
brain injury. On VMI P[...] also scored below average on both
sub-tests and in the Visual Motor Integration test.
7.20.5
Academic tasks
:
P[...] has very poor mathematical skills, scored very low on drawing
a person and has poor / inadequate pencil grip.
7.21
In Ms Wheeler's opinion P[...] may need placement in a remedial
school where the necessary concessions can be made for her
possible
dyscalculia (a learning disorder that affects a person's ability to
understand number-based information and maths). In
Ms Wheeler's
opinion further it is anticipated that P[...] would struggle in a job
with any kind
of mathematical demands.
From a physical perspective only it is projected
that P[...] should be able to
participate in work of a medium work
demand with allowance for change in position. This is due to
P[...]'s lower postural
tone, having demonstrated physical fatigue
and reduced levels of physical endurance during the
assessment.
7.22
Dr Berkowitz
(plastic and reconstructive surgeon)
interviewed and examined
P[...]. Dr Berkowitz concluded that P[...]'s whole person impairment
due to skin disorders equates to
25%.44 In terms of the
Narrative
Test
P[...]
suffered permanent serious disfigurement.
7.23
Dr Berkowitz took photographs of P[...]'s
scarring. Dr
Berkowitz examination revealed
–
7.23.1 a scar
measuring 270 mm x 6 mm extending horizontally across P[...]'s
forehead and ending at her left temporal hairline;
7.23.2 a skin graft
measuring 150 mm x 80 mm overlying P[...]'s left lateral parietal
scalp;
7.23.3 a curved
scar measuring 100 mm x 15 mm extending from just above P[...]'s
right ear in a curve running anteriorly over
her right lateral
parietal scalp;
7.23.4 a scar
measuring 40 mm x 4 mm extending centrally and posteriorly from the
apex of the curve of her last mentioned
scar;
7.23.5 a curved
scar measuring 170 mm x 4 mm overlying P[...]'s right
temporo-frontal scalp;
7.23.6 a scar
measuring 50 mm x 25 mm overlying the right side of P[...]'s
forehead;
7.23.7 a skin graft
donor site measuring 220 mm x 130 mm on P[...]'s antero-lateral
aspect of her right thigh.
7.24
In Dr Berkowitz opinion P[...] requires a number of reconstructive
procedures. During the first operation
scars 1, 3, 4, 5 and 6
referred to hereinbefore will be revised. The surgery will be carried
out under general anaesthesia and
P[...] will remain in hospital
overnight for bed rest. Dr Berkowitz emphasises that the surgery
should not be carried out until
P[...] has reached the age of 17
years and completed her growth. At least one year later a second
procedure will be carried out
where tissue expanders will be placed
medially and laterally adjacent to skin graft number 2. Ten days
later the first injections
of saline will be placed in the tissue
expanders and this will continue at ten day intervals for a period of
approximately three
to four months. Once maximum tissue expansion has
been achieved P[...] will be taken back to theatre, when the tissue
expanders
will be removed and an estimation will be carried out
regarding the degree of tissue expansion which has been achieved and
a suitable
amount of skin graft (if possible) will be excised and
replaced by the advancement of the expanded normal scalp. P[...] will
also
need to use Aqueous Cream as an emollient in order to ameliorate
scar maturation as well as a Factor 50 sunblock to prevent
hyperpigmentation
of the revised scars for a period of at least 24
months following the surgery.
[8]
The defendant in turn highlighted in its heads of argument the
following aspects evident from
the plaintiff’s expert reports:
‘
3.
‘NEUROSURGEON
3.1
From a neurosurgical perspective, the accident the minor was involved
in, will not influence
her ability to work in the open labour market,
or her retirement age.
3.2
Muscle tension headaches should be treated with medically with
non-steroidal anti-inflammatory
medication.
3.3
The hemiparesis involving the right arm and the right leg recovered
well and by October
2022 the minor only had a
slight
weakness
in the right hand/arm as well as the right leg.
3.4
The minor mobilizes with a slight limp on the right-hand side.
4.
OCCUPATIONAL THERAPIST
4.1
There is no finding/opinion to be found by Plaintiff’s
Occupational Therapist, to
the effect that the injuries resulted in a
physical impairment
which would hinder the minor from
obtaining employment.
4.2
Important to note is the following comments contained in the report,
pertaining to the information
obtained from the assessment during
September 2022:
4.2.1
There are 38 children in the minor’s class.
4.2.2
The minor’s language skills seem to be preserved. (Also opined
to by Plaintiff’s Psychiatrist.)
4.2.3
The minor’s mother refers to her as ‘lazy’ on more
than one occasion.
4.2.4
The minor and her family share one room, and the minor shares a bed
with her sister (from the reports as
a whole it is clear that there a
5 people in the household). This is noteworthy when one
considers remark by Plaintiff’s
Clinical Psychologist that the
minor did not fatigue rapidly during the session, ‘as she slept
for 9 hours the previous night’.
4.2.5
The minor’s mother appears to be coddling her, resulting in her
not being as independent as she could
be.
4.2.6
Reference is made to the fact that the minor attended 3 different
primary schools in her early primary school
years.
4.2.7
It is recommended that the minor be assessed and that (own emphasis):
‘
The
treating therapist would have to do a full dominance assessment and
establish whether it may be beneficial for P[...] to rather
write
with her right hand (as she did pre-accident).
Then
the therapist will have to establish
if
she has visual perceptual difficulties
as a result of the (forced) change in dominance
or
if it is
related to her
head injury
’
.
And further: ‘
For the possible
dyscalculia she will need to be referred to a therapist who has
completed post graduate training and have the ability
to administer
the correct diagnostic testing
.
Such a therapist can be sourced from RADA…
’.
4.2.8
It is recommended that the minor attends physiotherapy sessions.
5.
CLINICAL
& NEURO PSYCHOLOGIST
5.1
Plaintiff’s Clinical Psychologist conducted testing and the
following comment, in
contrast with evidence by Plaintiff’s
Educational Psychologist, is worth mentioning (own emphasis):
‘
Comment
on norms
. Wherever possible
efforts were made
to ensure that
the norms utilized approximate most closely to P[...]’s
particular cultural/ethnic and educational background
(including the use of the Senior South African Intelligence Scale –
Revised, and the use of the
Individual
Scale for Southern Sotho-Speaking Pupils
),
and efforts were also made to use a diverse range of norm-sources
(both local and international), in order to ensure that the
findings
are broadly, as well as specifically, applicable.
All
tests were administered in P[...]’s home-language, Southern
Sotho
.’
5.2
Plaintiff’s Clinical Psychologist finds that the minor was of
at least average premorbid
cognitive-intellectual potential.
5.3
The minor presented with
several areas of preserved cognitive
function
, within the
average range
.
5.4
The minor is not experiencing significant depressive moods symptoms,
but may likely experience
depression, anxiety and mood disturbances
in future, and in this regard extended
psychotherapy
is
recommended.
5.5
Plaintiff’s Clinical Psychologist opines that the minor’s
future employment
possibilities
may
be limited as a result if
the
sequalae
of the injuries. In his discussion of this
opinion, he advances in main the cognitive difficulties,
neuro-behavioural difficulties,
neuro-physical deficits and chronic
headaches, as reasons why the future employment difficulties will be
limited.
5.6
The following is of importance:
5.6.1
Cognitive difficulties
. The question as to whether the
minor’s personal circumstances, as well as the schooling system
may be at least in
part be to blame for the perceived academic
decline/difficulties, is discussed later herein.
5.6.2
Neuro-physical deficits
. This relates to the right-sided
hemiparesis, which the Plaintiff’s Neurosurgeon already in 2022
indicated to be slight
in nature. Plaintiff’s
Occupational Therapist also recommended physiotherapy.
5.6.3
Chronic headaches
. Plaintiff’s Neurosurgeon
recommended anti-inflammatory medication to assist in this regard.
5.6.4
Neuro-behavioural disturbances
. This aspect, as well as
treatment options, are dealt with by Plaintiff’s Psychiatrist
below. Plaintiff’s
Clinical Psychologist himself
recommends psychotherapy for possible depression, anxiety and mood
disturbances.
6.
PSYCHIATRIST
6.1
Important to note from the report by Plaintiff’s Psychiatrist,
is the following:
6.1.1
‘
There was also a suggestion of visuospatial impairment, in
that while she copied intersecting figures, the figures were
significantly
distorted. Whether this was due to
a purely
visuospatial issue
,
or
to
constructional dyspraxia
due to an assumed
laterality
or
actual brain damage
,
is not clear
.’
6.1.2
Her visual memory function appeared to be intact, but she has
difficulty with sustaining concentration.
The minor’s personal
circumstances and living arrangements can, in respect of her
concentration, not be disregarded.
6.1.3
The minor can benefit from anticonvulsant type of mood stabilizer to
assist with mood dysregulation, medication
to improve concentration
and also anti-depressants.’
[9]
What is evident is that the plaintiff sustained a severe traumatic
brain injury with the sequela
as alluded to and these common cause
facts would have an effect on her future employability to the extent
as indicated by the experts.
[10]
The plaintiff presented, at the instance of the defendant, the
evidence of Mesdames Mattheus (education psychologist)
and Theron
(industrial psychologist).
[11] Ms
Mattheus confirmed her expert report filed and the conclusions
reached by her.
But for
the accident, and ‘given the
very limited information available’, the minor would have
completed mainstream education
until Grade 12, and if given the
opportunity to pursue tertiary studies, she would have been able to
attain a Higher Certificate
(NQF5) or a Diploma (NQF6) before
entering the open labour market.
Having regard to
the accident, she opined that Plaintiff will only obtain a NQF2
qualification.
[12] Ms
Mattheus was cross-examined on issues such as a possible genetic
disposition in respect of mathematics
(dyscalculia), a neglect of
P[...] in Grade 1 staying with her grandmother causing the required
"building blocks to not be in place",
a perceived
below average-to-average pre-morbid intellectual potential, parents
who did not obtain Grade 12 qualifications and
a lack of support and
assistance in respect of homework. Defendant alluded thereto that Ms
Mattheus had conceded as to the most
probable postulation regarding
P[...]’s tertiary education, would be that in Scenario 1(the
NQF5 qualification-a certificate)
and not the NQF6 (diploma)
qualification. It was ultimately submitted by defendant that
but
for
the accident, the minor is postulated at a very high level.
Conversely,
having regard to
the accident, the minor is
pitched at a very low level, as well as very low earnings (almost
half of the earnings of a domestic
worker earning at minimum wage).
In fact, considering the high contingency deduction, she is
essentially postulated as unemployable.
[13]
According to the plaintiff, the
cross-examination of Ms Mattheus did not disturb her expert
findings in any way, and it was
suggested that the only
issue
for consideration should be whether Ms Mattheus unconditionally
conceded that the most probable but for the accident academic
achievement would have been a matric, with a certificate tertiary
qualification. Although conceding that Ms Mattheus did testify
at
some point as such, it was submitted that the cross-examination was
premised on certain facts and circumstances proposed to
her as stated
in paragraph 12 above. This opinion was therefore expressed on a
"worst case scenario".
Ms Mattheus did not express an opinion in her reports regarding
P[...]'s estimated pre-morbid intellectual potential, as did Dr
Mazabow. Plaintiff submitted that Ms Theron was a reliable and
credible expert witness, and that there is no basis upon which to
question the foundation upon which she arrived at her final
conclusions, or her conclusions itself. Plaintiff further alluded
thereto that:
‘
Ms
Mattheus further testified that in arriving at her conclusions she
also relied on
a "fair amount"
of expertise having worked with
"these
children"
as a teacher.
Having
regard
to the
sequelae
of the injuries sustained in the accident, Ms Mattheus emphasised
that P[...] is a candidate for vocational (special) schooling,
from
the age of 13 years. In this instance she will at best progress to an
NQF2 level. Further, that one cannot get to a Grade
12 at a
vocational school. At a LSEN facility (accommodating learners with
moderate to severe cognitive difficulties) she will
complete her
schooling at the age of 18.’
[14]
Ms Theron confirmed her expert report and
conclusions reached therein
.
In
respect of P[...] having obtained both a
Higher
Certificate (NQF5) or a Diploma (NQF6), she concluded that P[...]
would have commenced earning on the Paterson A1 lower quartile
level.
Thereafter she would have progressed earning consistently at the
median of the proposed Paterson earning levels, with a
retirement age
of 65.
[15] In
cross-examination Ms Theron testified that she was not in a position
to opine on the chance of the minor
actually reaching a particular
scale. Ms Theron conceded that none of the experts opine that the
minor is unemployable as a result
of the injuries sustained.
[16]
It was submitted by plaintiff that despite Ms
Theron being extensively cross-examined, likewise never deviated from
any of the conclusions
expressed in her report. Indeed, Ms Thereon
was taken through her future earnings projections recorded in her
main report. She
explained that she prefers the work of 21
st
Century Remuneration to that of the works of Robert Koch, as 21
st
Century is premised on ongoing research in respect of small, medium
and large companies. This study uses better scales obtained
from live
data of real organisations that is updated every day. Ms Theron
testified that the progression as opined by her, is generally
accepted and is reasonable, and thus used by most organisations.
[17]
The defendant did not introduce any evidence to suggest the contrary.
It was explained by Ms Theron that
in arriving at her final-post
morbid scenario she concluded that P[...] had been rendered a
vulnerable and unequal competitor in
the open labour market, as:
·
‘
she
will
find it difficult to function in the workplace due to concentration,
attention and memory difficulties. She will be more error
prone. She
stated that the current overall unemployment rate in South Africa
equates to 32.1%, however, at the level at which P[...]
will have to
compete in the open labour market, the unemployment rate equates to
50.6%.
·
will have grave difficulty, not only in
obtaining employment, but also in maintaining employment. In
obtaining employment her physical
appearance will constitute an
obstacle, but more importantly, upon revealing her medical history
potential employers will be hesitant
to employ her. In the interview
room she will also have to compete with able bodied candidates.
·
Cognitively she will not be a candidate for
sedentary occupations, and will have to rely on more "physical"
occupations.
In this regard P[...] is confronted by right sided
hemiparesis of her upper and lower limbs, consequent upon the brain
injury sustained.
She suffers of ongoing debilitating headaches
requiring medication. Fatigue presents as a real challenge, as found
in assessments
by the experts and confirmed by her parents.
Concentration attention and memory also pose real difficulties.’
[18]
Ms Theron testified that with P[...]'s anticipated
highest post-morbid qualification and accompanied challenges, she
would have
to rely on sympathetic employment, namely a very
understanding employer who would be prepared to oversee mistakes and
shortcomings
in her performance.
[19]
Having considered the testimony and expert report of plaintiff’s
educational psychologist, I am satisfied
that the proposed
postulation regarding P[...]’s tertiary education, namely that
of both Scenario 1 (the NQF5 qualification-
a certificate) and the
NQF6 (diploma) qualification, is well-founded. The postulations of Ms
Theron in respect of the applicable
Paterson scales, are likewise
accepted by me, as well as her testimony as per paragraph 17 herein
above.
[20]
The plaintiff, in my view responsibly so, suggested
that a
fair and reasonable assessment of P[...]’s
loss would be to determine the average of the duly capitalized
amounts in respect
of the certificate and diploma levels in order to
arrive at the plaintiff’s final net loss of earnings on behalf
of P[...].
The proposal finds favour with me in principle. However,
sight should not be lost of the fact that the calculations included
contingency
deductions which must still be adjudicated by my herein
below.
[21]
Mr Immerman in his actuarial report indicates that he was instructed
to calculate the plaintiff’s
future loss of income based on the
information provided to him by the plaintiff’s attorneys of
record. The basis of his calculations
was that P[...] would retire at
the age of 65. Mrs Theron postulated two possible scenarios in
respect of the calculations to be
done respectively in the income but
for the accident and income having regard to the accident. Basis I is
premised on a certificate
level of education, whilst basis II deals
with a diploma level of education. This included an instruction
to apply contingency
deductions on the value of plaintiff’s
income “but for the accident” scenario at 25% and in
respect of the value
of the income “having regard to the
accident” at a 70% deduction.
[22]
Although the assessment of contingencies is arbitrary and depends
upon a court’s impression of the
case, such discretion should
remain a judicial discretion. In
Southern
Insurance Association Ltd v Bailey N.O.
[1]
the
following principles were enunciated:
·
Any enquiry into damages for loss of
earning capacity is of its nature speculative, as it involves a
prediction as to the future.
The Court can only make an estimate,
which is often a very rough estimate, of the present value of the
loss.
·
Where the method of actuarial computation
is adopted in assessing damages, it does not mean that the trial
judge is tied down by
actuarial calculations. The court has a large
discretion to award what the court considers right.
·
In exercising that discretion one of the
considerations is the making of a discount for "contingencies"
or the "vicissitudes
of life". These include such matters
as the possibility that a plaintiff may as a result have less than a
"normal"
expectation of life, may experience periods of
unemployment by reason of incapacity due to illness or accident, to
labour unrest
or general economic conditions.
·
Depending on the circumstances of the case,
the amount of any discount may vary. The rate of discount cannot be
assessed on any
logical basis: the assessment must be largely
arbitrary and must depend upon the trial judge's impression of the
case and may be
favourable or less favourable to a plaintiff.
[23]
In respect of the of the 25%
but
for
the accident contingency deduction proposed for by the plaintiff, my
attention was drawn to cases referred to by plaintiff wherein
the
courts applied a 15%
but
for
the accident contingency deduction for the proposition that the 25%
is in fact even higher than what was applied in these cases
.
[2]
[24]
The defendant submitted that the only education lever to be
considered by the court is that in scenario I, namely a certificate
level of education. It was argued that
a holistic
consideration of all the issues mentioned herein above, warrants a
higher-than
normal contingency
deduction to be applied. A contingency deduction of 50% was suggested
to be appropriate in the
but for
the accident scenario.
[25]
In
respect of the 70% contingency deduction applied in the having regard
to the accident scenario, the plaintiff's counsel placed
reliance on
two cases which he submitted is very comparable in terms of
post-morbid long-term sequelae suffered:
25.1 The
following summary was given on the case of
Minnie
:
‘
The
Court accepted the evidence that the minor child's head injury and
the
sequelae
would become more obvious and problematic as the demands for abstract
thinking and reasoning increased in the upper grades, that
the minor
child has an extensive disfiguring indented scar over her
frontotemporal and parietal regions of her skull resulting
in teasing
and being self-conscious which she will probably have to bear for the
rest of her life, that the minor child was already
and will continue
to be socially and in other ways stigmatised, that children who
sustain brain injuries at an early age can suffer
damage to brain
structures that subserve more mature neuro-developmental problems
which may only become apparent in later years
(the so-called "
sleeper
effect
"), that the minor child
will have to attend a special school to develop basic skills to be
used in a sheltered workshop, that
the minor child will be vulnerable
all her life and that the minor child has been rendered functionally
unemployable in the open
labour market and would only qualify for
sympathetic or sheltered employment.
25.2
Msimanga
v RAF
[3]
concerned
a young girl aged 9 who had suffered comparable injuries with similar
sequelae as P[...]. Likewise, the court concluded
a 70% post-morbid
contingency deduction to be appropriate.
[26]
The defendant argued that, in the scenario
having
regard to
the accident, P[...] is
pitched at ‘extremely low level, with the application of
higher than usual contingency deduction’ with the income at
which P[...] is postulated being ‘even lower than what a
domestic worker would earn at minimum wage’. I was
respectfully invited by defendant to call for a recalculation at a
different income than the postulated one used, but, in the event
that
the court not
be inclined to call for such a
re-calculation, it ‘may merely consider the contingency
deductions already applied.’
[27] I
have duly considered the evidence before me and the submissions made
by the parties.
Plaintiff submitted that,
considering the sum total of P[...]'s
cognitive,
neuropsychological and physical deficits
and shortcomings, it does not require expert opinion to recognise the
massive obstacles
she will be faced with in order to obtain and
maintain employment. This is correct. Having considered the evidence
before me, I
am of the view that there is no need for the
contingencies as applied, to be amended.
[28] In
respect of an award for general damages, the defendant in its heads
of argument made the following submissions:
‘
13.1
Important to note in respect of the injuries sustained, is that
Plaintiff only filed
one RAF4 serious
injury assessment report
, being that of
the Plastic & Reconstructive Surgeon. No RAF4 was filed in
respect of the brain injury which the minor
suffered. It
follows therefore that the focus of Plaintiff’s claim for
general damages is the scarring to her scalp
(the injury qualified as
serious). The balance of the injuries will not and cannot be
disregarded, but should be considered
in combination with the
scarring. The scarring, as well as the head injury with
subsequent medical treatment, caused the
minor pain and suffering and
loss of amenities.
13.2
It is submitted that although the minor suffered additional injuries
apart from the scarring referred
to, the
sequelae
of the
injuries must be distinguished from the injuries themselves, in order
to avoid “double compensation”.
Although Plaintiff,
for example, suffered a traumatic brain injury, the
sequalae
thereof affects her future earnings and as such is compensated in the
form of the claim for loss of earnings. The
sequalae
does not cause pain and suffering, but the future loss of earnings.’
[29] In
my view there might be merit in the aforementioned contentions by the
defendant. However, the case law
relied upon by both parties are in
fact those that deal with brain injuries and I therefore considered
it on this basis. I was
presented with several case law by both
parties. It is noteworthy that in most instances the case law
referred to by the parties,
the average amount granted in respect of
general damages amounted to roughly R 1 500 000-00. I have duly
considered the facts and
circumstances of this case and perused the
case law to which I was referred to reach a conclusion on what would
constitute a fair
amount in respect of general damages. Having done
so, I am of the view that an amount of R 1 800-00 would constitute a
just and
fair amount.
[30]
The plaintiff annexed to her heads of argument a draft court order
which include, amongst others, an order
directing plaintiff’s
attorney of record to cause a trust to be established for the benefit
of P[...] as suggested by her
experts. The orders prayed for in
respect of the envisaged trust instrument, was set out
comprehensively in the draft order. Included
in the draft order is a
paragraph requesting that an interim payment, pending the trust to be
instituted, be authorised to the
plaintiff to cater for P[...]’s
needs. I am in principle not opposed to such a request, but the
plaintiff did not make out
a case for the requested amount and I am
of the view that an amount of R 100 000-00 would suffice for the
purpose it is intended
for. I was informed that Plaintiff and her
attorneys concluded a contingency fee agreement, which I was
requested to confirm in
the order that I grant. I am not inclined to
do so.
[31] It
is trite that costs should follow the event, and I am satisfied that
the plaintiff’s employment
of a senior counsel warrants such
costs of counsel to be on Scale C. Counsel for plaintiff however
pressed on me to grant a punitive
cost order against the defendant,
with costs to be on a scale as between attorney and own client. In
essence counsel for plaintiff
contended that the legal representative
for the defendant caused unnecessary costs by “engaging on a
fishing expedition’
in respect of plaintiff’s Industrial
and Educational psychologists. In my discretion I do not intend
making such an order.
In my view the legal representative for the
defendant acted neither vexatious nor reprehensible.
[4]
To the contrary, it was patently clear from her comprehensive,
thorough and meticulously drafted heads of argument that she had
properly perused all the expert reports of the plaintiff and was
entitled to have tested the evidence of plaintiff’s educational
and industrial psychologist in respect of their reports. Moreover, it
is common cause that the defendant did not oppose plaintiff’s
Rule 38 application and accordingly the bulk of plaintiff’s
expert reports was not attacked in any way whatsoever. Apart
from the
monetary amounts for future loss of earnings and general damages, the
defendant did not take issue with any of the orders
requested by
plaintiff in the draft order provided to court and the defendant.
[32] In
all the circumstances indicted herein above, I make the following
order:
1.
The Defendant shall make payment to the
Plaintiff, in her representative capacity on behalf of P[...] M[…]
(‘
the minor”
’)
,the amount of
R6 018 475-00
calculated as follows:
1.1.
Future Loss of Earnings
:
R4 218 475-00
1.2.
General Damages
:
R1 800 000-00
together with interest
calculated in accordance with the Prescribed Rate of Interest Act,
Act 55 of 1975, read with
section 17(3)(a)
of the
Road Accident Fund
Act, Act
56 of 1996.
2.
Payment will be made directly into the
Trust account of the Plaintiff’s attorneys, such payment to be
made within 180 (one
hundred and eighty) days from date of this
order, the details of such Trust account being as follows:
Holder
AF Van Wyk Mabitsela Williams
Inc
Account Number
6[…]
Bank & Branch
First National Bank –
Southdale
Code
254205
Ref
M298/19/AVW
3.
The defendant is ordered to furnish to
P[...] M[…]
,
born on
1[…] of D[…] 2011
,
Identity Number
1[…]
(hereinafter
referred to as ‘
P[...]’)
an undertaking in terms of
section 17(4)
(a)
of the
Road Accident Fund Act, Act
56 of 1996 (as amended), for
reimbursing
100%
of the future accommodation of
P[...]
in a hospital or nursing home or treatment or rendering of a service
to
P[...]
,
or the supply of goods to the plaintiff, arising out of the injuries
sustained by
P[...]
in the motor vehicle collision on
18
th
of May 2019
, after such costs have been
incurred and upon proof thereof, inclusive of the costs in respect of
the formation of a trust;
4.
The Defendant is ordered to pay the
Plaintiff’s agreed or taxed party-and-party costs of 16, 17 and
26 April 2022 on a High
Court scale, such costs to include: -
4.1
The costs occasioned by the employment of the following expert
witnesses’ reasonable qualifying
and preparation fees:
4.1.1
Dr Kruger (neurosurgeon);
4.1.2
Dr Mazabow (clinical and neuropsychologist);
4.1.3
Dr Longano (psychiatrist);
4.1.4
Ms. Wheeler (occupational therapist);
4.1.5
Dr Berkowitz (plastic and reconstructive surgeon);
4.1.6
Ms. Mattheus (educational psychologist).
4.1.7
Ms Theron (industrial psychologist); and
4.1.8
Mr. Immermann (consulting actuary).
4.2
Costs of Senior Counsel on Scale C.
5.
The Plaintiff’s attorney is ordered
and directed to cause a Trust to be established and is authorized to
sign all documents
necessary for the formation of the Trust for the
benefit of the minor child, such Trust to be held by Uberrima Phoenix
(Pty) Ltd,
in accordance with the written consent, dated 09 April
2024, annexed hereto as Annexure ‘
A
’.
6.
The Trust instrument, attached to this
court order as Annexure ‘
B
’,
shall
inter alia
make
provision for the following:
6.1
that
P[...] M[…]
, be the sole beneficiary of the trust;
6.2
that the Trustee(s) are appointed with those powers and duties as set
out in Annexure ‘
B
’;
6.3
that the Trustee(s) of the Trust to be formed shall take all the
requisite steps to secure an appropriate
bond of security to the
satisfaction of the Master of the High Court for the due fulfilment
of his/her obligations and to ensure
that the bond of security is
submitted to the Master of the High Court at the appropriate time as
well as to all other interested
parties if so required by the Master
of the High Court;
6.4
the duty of the Trustee(s) to disclose any personal interest in any
transaction involving the Trust
property;
6.4.1
the termination of the Trust shall occur upon the minor child
attaining the age of 21 (twenty-one), otherwise
subject to the leave
of the High
Court upon application,
the costs of any such application which shall
be costs
in the main action herein, and for which purposes notice of
such application is to be given to the Defendant.
6.4.2
the Trustee(s) shall be entitled, if he/she deems it necessary, to
utilize
the income of the Trust for the maintenance of the minor child,
6.4.3
that the Trustee(s) provide security to the satisfaction of the
Master of
the High Court;
6.4.4
that ownership of the Trust property shall vest in the Trustee(s) of
the
Trust in their capacities as Trustee(s);
6.4.5
procedures to resolve any potential disputes, subject to the review
of
any decision made in accordance therewith by this Court;
6.4.6
that any amendment of the Trust instrument be subject to approval
and leave of
the Master of the High Court and/or this Court;
6.4.7
in the event of the death of the minor child, the Trust shall
terminate,
and the Trust assets shall pass to the estate of the minor child;
6.4.8
that the Trust property and the administration thereof be subject to
an
annual audit;
6.4.9
that the provisions of such Trust Deed shall be in accordance with
the
provisions of the Trust Property Control Act, Act 57 of 1988, subject
to the approval of the Master of the High Court.
7.
The Plaintiff’s attorneys of record
are authorized to deduct and/or pay from the capital payment received
from the Defendant,
pending the formulation of the Trust, the
following:
7.1.
to the Plaintiff, in her representative
capacity, an amount of
R100 000.00
to
be utilised by the Plaintiff for the maintenance and care of the
minor child, pending the formation of the Trust;
7.2.
the attorney-and-client bill of costs of
A.F. Van Wyk Mabitsela Williams Incorporated, including
disbursements, subject to the review
and/or taxation thereof by the
Trustees to be appointed and/or the Taxing Master of the High Court.
8.
The Plaintiff shall, in the event that
costs as envisaged in paragraph 4 above
are not agreed between
the parties, serve the Notice of Taxation on the Defendant’s
Attorneys of record and
allow the Defendant 180 (one hundred and eighty) days to
make payment after
service of the taxed bill of costs.
C REINDERS, J
Appearances
On
behalf of the Plaintiff
Adv
GJ Strydom SC
Instructed
by:
Williams
Inc Attorneys
c/o
Webbers Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Ms
J Gouws
Instructed
by:
State
Attorneys
BLOEMFONTEIN
[1]
Southern
Insurance Association Ltd v Bailey N.O.
1984
(1) SA 98 (A).
[2]
See
Minnie
NO v RAF
2012
(6A4) QOD 82 (GSJ); [2010] LNQD 36
;
Dibakoane obo Mkhonto v RAF
(Case
no. 06/13913 GSJ).
[3]
Msimanga
v RAF
(Case
number 28881/2010 GSJ, delivered on 3 October 2011).
[4]
See in this regard
Mkhatshwa
and Others v Mkhatshwa and Others
[2021] ZACC 15
;
2021 (5) SA 447
(CC).