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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
GAUTENG DIVISION, PRETORIA
Case Number: 35770/2018
(1) REPORTABLE: NO
(2) OF INTREST TO OTHER JUDGES: NO
(3) REVISED: NO
9 January 2025
In the matter between:
T[…] T[…] M[…]
obo M […] P[…] M[…] Plaintiff
and ROAD ACCIDENT FUND Defendant
JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
Introduction
[1] The plaintiff instituted action in her representative capacity as mother of the
minor, M[…] P[…] M[…], born on 17 January 2007 (“the minor”), against the
defendant for the payment of damages the minor suffered as a result of a motor
vehicle collision that occurred on 12 July 2015.
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[2] The defendant was not represented during the trial and the trial proceeded
on a default basis. Both the merits and quantum of the minor’s claim against the
defendant is in dispute and in order to facilitate the introduction of evidence into the
record, an order in terms of the provisions of rule 38(2) allowing the affidavits pertaining to the merits and the medico legal reports of various medical experts to be admitted into evidence, was granted.
Merits
[3] On 12 July 2015 a collision occurred on the R528 between Haenertzburg
and Tzaneen between a motor vehicle driven by B N Mokoena and a motor vehicle
driven by G S Ngobeni. The minor was a passenger in the vehicle driven by
Mokoena. For purposes of liability the minor needs to proof that one or both of the
drivers were 1% negligent and that such negligence caused the collision.
[4] From the fact that a collision did occur, I am satisfied that one or both of the
insured drivers were 1% negligent in that one or both of them failed to take any or
adequate steps to avoid the collision when by the exercise of reasonable care and
diligence, he or they could and should have done so.
[5] In the result, the defendant is liable for the damages suffered by the minor as
a result of the collision.
Quantum
[6] At the time of the trial, the defendant had not yet made a decision in respect
of the seriousness of the injuries suffered by the minor during the accident. Consequently, the issue of general damages was separated from the issue of loss of earning capacity and postponed sine die.
[7] It appears from the medico- legal reports that the minor will require future
medical treatment and
an order directing the defendant to provide an
undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, will follow.
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Loss of earning capacity
[8] The minor was admitted to Van Velden hospital and according to the hospital
records the minor suffered a head injury and an injury to the right eye during the accident. The minor was 8 years old and a grade 2 learner at the time of the accident.
[9] Dr Mazwi, a specialist neurosurgeon, examined the minor on 7 May 2024
and reported that the minor had difficulty with concentration and poor recall due to
the head injury he suffered during the accident.
[10] In order to determine the impact of the head injury on the minor’s earning
ability, the plaintiff presented the evidence of an educational psychologist, Ms Masipa.
The minor was accessed by Ms Masipa on 7 May 2024. He was 17 years of age at the time of the assessment and in grade 11. Insofar as the minor’s educational history is concerned he passed grade 3 to 10 after the accident. He, however, failed
grade 11 in 2023 and was repeating the grade at the time of the assessment.
[11] Based on the assessment, Ms Masipa opined that pre- accident the minor
had the ability to pass grade 12 within the mainstream schooling system and would
have been eligible to study towards a NQF Level 7 Qualification. Post-accident the
minor is unlikely to pass grade 12 and will remain with a grade 11 as his highest educational attainment.
[12] The findings of Ms Masipa proof on a balance of probabilities that the head
injury suffered by the minor during the accident has had a negative impact on the minor’s scholastic abilities and will in turn impact on his earning ability.
[13] The evidence of an industrial phycologist, Ms Lowane- Mayayise was
presented to provide an opinion on the probable career paths of the minor pre- and
post- accident. Ms Lowane- Mayayise opined that the minor would have obtained a
degree but for the accident and would most probably have secured employment within
the formal sector of the labour market as a semi -skilled worker earning on a grade
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C2/C3 median range total cost to employer and thereafter progressed through to a
junior managerial functioning level earning on a grade D1/2 medium quartile total
cost to the employer level by the age 45.
[14] Insofar as his post -accident scenario is concerned, Ms Lowane- Mayayise
opined that with a grade 11 as his highest educational attainment, it is highly likely that the minor will attain employment as an unskilled labourer within the open labour
market. Ms Lowane- Mayayise also discussed a further scenario in which the minor
would have improved his academic attainment to a Level 3 Vocational Qualification.
[15] Ms Lowane- Mayayise’s opinion was referred to Mr Mureriwa, an actuary.
Based on the opinion of Ms Lowane- Mayayise, Mr Mureriwa calculated the minor’s
pre-accident income to be R 10 709 864, 00. According to the calculations, the minor
will earn R 1 084 857, 00 with a grade 11 qualification and R 1 461 565,
00 with a Level 3 Vocational Qualification. Having applied 15% pre- and- 25% post -
accident contingency deductions and the prescribed cap, the minor’s loss of earning
capacity amounts to R 7 858 744, 00 and R 7 685 484, 00 respectively.
Discussion
[16] Both the opinions of Ms Masipa and Ms Lowane- Mayayise is problematic
insofar as they considered only one pre-accident scenario, to wit that the minor would
have obtained a degree. It is not clear from their respective reports why other
scenarios were not considered. The minor’s mother has a grade 11 highest level of
education and although Ms Lowane- Mayayise indicated that the father’s highest level
of education is unknown, Ms Masipa indicated that the minor’s father obtained a grade 12. It is common cause that the minor’s father worked as general worker prior to his demise in 2007. The minor’s sister was condoned to grade 12 and have a grade 12 qualification.
[17] I am alive to the fact that a family history in itself does not necessary impact
on the scholastic and career potential of a minor. It is, however, a factor to take into account when venturing on an opinion in respect of the probability of a minor’s scholastic and career potential.
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[18] Furthermore, there is no indication in the minor’s pre- accident scholastic
performance that the most probable pre- accident academic path would have been
that of obtaining a degree. In order to arrive at a balanced pre- accident academic
and career path other options such as grade 12, a diploma and so forth should at least, in view of the facts at hand, have been considered.
[19] Not every child in South Africa that has the ability to obtain a grade 12
qualification automatically proceed to obtain a degree. Even if a degree is obtained,
the minor’s career path envisaged by Ms Lowane- Mayayise in her report is not a
given. In short, there are no facts that support the opinions of Ms Masipa and Ms
Lowane- Mayayise.
[20] I raised these concerns with Mr Baloyi, counsel for the plaintiff, during the
hearing of the matter. Instead of addressing the court’s concerns, Mr Baloyi simply
obtained a further actuarial calculation based on the same pre-accident scenario. In
the result the further calculations amounted to R 7 778 877, 00 and R 7 623 002,00
respectively. This places the court in the inevitable position of having to determine
the minor’s loss of earning capacity without sufficient facts.
[21] Having had regard to the minor’s family history, the lack of any facts that
establishes the minor’s probable pre- accident scholastic and career path coupled
with a balanced and more realistic approach to the career path of a person that obtains a grade 12 qualification, I deem it fair and just to deduct 50% from the pre -
accident future income. This amounts to R 6 299 920,00. After having applied the
suggested 15% contingency deduction, the minor’s pre- accident future loss of
earning capacity amounts to R 5 354 932, 00.
[22] I am satisfied with the post -accident calculation in the amount of R 1 084
857, 00 and when deducted from the pre- accident calculation the total loss of
earning capacity amounts to R 4 270 075, 00.
ORDER
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In the result, I grant the following order:
1. The defendant is ordered to pay the minor’s proven damages.
2. The issue pertaini ng to general damages is separated from the issue
pertaining to loss of earning capacity and postponed sine die .
3. The defendant is ordered to pay an amount of R 4 270 075, 00 to the
plaintiff in respect of the minor’s loss of earning capacity.
4. The defendant is ordered to furnish the plaintiff with an undertaking for
the costs of the future medical expenses of the minor that arises from the injuries he
sustained in the accident that occurred on 12 July 2015.
5. The defendant is ordered to pay the costs of suit.
JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT DIVISION, PRETORIA
DATE HEARD:
25 October 2024
DATE DELIVERED:
9 January 2025
APPEARANCES
For the Plaintiff: Adv Baloyi M
Instructed by: Molefe Machaka attorneys Inc
For the Defendant: No appearance