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NOT REPORTABLE

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

WITWATERSRAND LOCAL DIVISION

CASE NO 7702 / 06

DATE:01/08/2007

In the matter between

PENANE, M.A.........................................................Plaintiff

and

ROAD ACCIDENT FUND......................................Defendant

JUDGMENT

1. This is a matter in which the mother and natural guardian of a minor child, a daughter named M B, claims in her representative capacity, damages from the defendant, the Road Accident Fund, arising from injuries sustained by the minor child.

2. When the matter was called I was informed that it was the intention of the defendant to seek a postponement of the trial. This was surprising as I had been informed by both counsel in my chambers half an hour earlier that the matter was ready to proceed. Indeed, when approached by counsel in my chambers at about midday, I was told by counsel of the nature of the claim, that the merits of the dispute had been settled (the defendant accepting liability for such damages as the plaintiff may prove) and that the matter was to proceed on the issue of quantum alone. I was given a bundle of expert reports and told that the plaintiff proposed to call a number of expert witnesses as well as other witnesses. The defendant's counsel stated (in response to my question) that the defendant did not propose to call any evidence. The defendant, I was told, would conduct its case by way of a cross examination of the plaintiffs witnesses and argument based upon that evidence. The central issue was the brain damage allegedly sustained by the minor child. I indicated that I required approximately twenty minutes to read the pleadings, the pre-trial minute and to glance at the expert summary of the first witness which the plaintiff proposed to call. During the half hour delay between the meeting in my chambers and the calling of the matter, the defendant's legal representatives were instructed by their client to apply for a postponement.

3. Ms Makopo, who appeared for the defendant, motivated the application for the postponement from the Bar, submitting that the reason for the postponement sought was the fact that the expert summary of Dr Edeling, a neurosurgeon whom the plaintiff proposed to call, was served on the defendant only on 28 May 2007 (the matter having been allocated to me on 12 June 2007). It was in this report that the brain injury and its sequelae were pertinently raised.

4. I was informed that the particulars of claim originally formulated made out a claim for damages suffered consequent upon orthopaedic injuries and that the allegations relating to the brain injury sustained by the minor child were introduced in an amendment (to which there was no objection), notice of which was given on 16 May 2007. In a report prepared by Dr Shevel, a psychiatrist instructed by the plaintiff, dated 8 May 2007 and served on the defendant on 18 May 2007, possible brain damage was raised, but there was no clarity.

5. Ms Makopo urged me to grant the postponement sought on the basis that the issue of the brain damage sustained by the minor child was raised, as indicated above, during May 2007 and that the defendant required the opportunity to have the minor child examined by medical practitioners appointed by it.

6. When I enquired about the failure by the defendant to assert prejudice at the pretrial conference, which was held on 6 June 2007, ! was told that this was a mistake by the legal representatives of the defendant. In reply I was informed by the defendant's counsel that the defendant's attorney had not at the time of the pre-trial conference received an instruction to have the minor child examined by any experts on behalf of the defendant. A written instruction from the client was required before this could be done.

7.The wasted costs occasioned by the postponement were tendered by the defendant.

8. The application was opposed by the plaintiff. In the course of argument, Mr du Plessis, who appeared for the plaintiff, drew my attention to the following factors:

8.1 The ciaim was one for compensation for a minor child, now aged seven years, who was in need of funds for treatment required by her.

8.2 The collision occurred during 2004. The action was brought expeditiously and prosecuted expeditiously.

8.3 Although the compensation was originally claimed for orthopaedic injuries, when Dr ShevePs report was received it was decided that the question of possible brain damage to the minor child should be fully explored. Other experts in other disciplines were instructed and further reports procured on an urgent basis. Notice was given of an intention to amend the particulars of claim without delay. This happened on 16 May 2007 and the amendment was effected on 29 May 2007.

8.4 A pre-trial conference was held during which the plaintiff adopted an approach aimed at taking all reasonable measures to ensure that the matter proceed to trial on the allocated trial date. An effort was made to forestall any delaying tactics. My attention was drawn to the defendant's responses to questions raised at the pre-trial conference and it was submitted that the responses were not indicative of a litigant engaged in earnest preparation for trial.

8.5 The issue of negligence was only conceded at the last moment before the trial, notwithstanding that the minor child was doli incapax and the defendant had no good grounds on which to dispute liability.

8.6 The plaintiff and minor child would be severely prejudiced if the matter were to be postponed. There would be a delay in procuring a further trial date and the minor child was in need of treatment. No interim payment had been made.

8.7 The plaintiffs expert witnesses were in attendance at court, having been engaged at substantial cost and having put aside their patients and practices in order to be present at court.

8.8 There was no evidence of any endeavour on the part of the defendant to instruct any experts to examine the minor child or to comment on the reports of the plaintiffs expert witnesses.

9. I was referred by Mr du Plessis to three unreported judgments of this division. In Guedes v The Road Accident Fund (case number 13852/03), a judgment by Fevrier AJ dated 12 October 2004, and in Tshabalala v The Road Accident

Fund (case number 22997/03), a judgment by Claassen J dated 5 November 2004, the court in each instance dismissed an application for a postponement in circumstances not dissimilar to those present in this matter. Features of those matters were:

9.1 the poor prospects of the defendant successfully contesting the so-called "merits";

9.2 the merits having been settled on the morning of the day on which the trial was to commence;

9.3 the defendant not being ready to proceed on the issue of the quantum of the defendant's liability because it had not procured expert reports;

9.4 the plaintiffs expert summaries having been filed timeously (although in the one matter at a time close to the trial, but deliberately so, so as to ensure that the reports presented the most recent findings);

9.5 a clear intention to proceed with the trial on the issue of quantum having been conveyed by the plaintiff to the defendant;

9.6 no evidence having been adduced of what efforts had been made to procure
expert opinions;

9.7 no interim payments having been made by the defendant.

10. In Guedes's case, Fevrier AJ held (and in Tshabalala' case Claassen J confirmed) that a proper case for a postponement is to be made out and that a postponement of the thai was not there for the asking.

11. The third authority, a judgment by Willis J delivered on 23 March 2005, in Mkhuma v The Road Accident Fund (case number 795/04), dealt with an application for a separation of issues, but is relevant to the extent that Willis J referred with approval to the principles enunciated in Guedes, supra, and Tshabalala, supra.

12. in reply it was argued that an interim payment and a costs order would alleviate the plaintiffs prejudice. It was also submitted that the extent of the brain damage was unclear from the plaintiffs expert reports. Dealing with this submission immediately, it seems to me not to advance the defendant's cause but, in any event on my reading of the reports, unequivocal evidence of brain injury and its sequelae was foreshadowed. What is more, the defendant made no effort prior to the commencement of the trial to procure expert opinion on the plaintiff's expert reports.

13. But for a distinguishing feature, this matter shares the seven characteristics listed above which were taken into account in Guedes, supra, and Tshabalala, supra. Had it not been for this distinguishing feature I would have had no hesitation at all in dismissing the application based upon the aforementioned authorities. The distinguishing feature is the fact that the issue of the brain injury was only raised just short of four weeks before the date on which the trial was set down to commence. What required careful consideration was whether the recent amendment put the matter on a different footing and justified the indulgence sought. I thought that it did not and following argument on the application for the postponement, I made an order refusing the postponement, stating that I would furnish my reasons later.

14. In my opinion the postponement application was flawed. There was no explanation for the delay in procuring the evidence which the defendant stated, at the time of the commencement of the trial, it wished to procure. There was no suggestion that the opinions expressed by the plaintiffs expert witnesses were in any way open to criticism. There was no basis on which to suggest that any experts which the defendant proposed to approach would in any way contest or contradict the views expressed in the summaries furnished by the plaintiff's witnesses.

15. There was no satisfactory explanation for the attitude taken at the pre-trial conference and for the attitude taken up until a few minutes before the matter was called and there was no explanation for the sudden volte face. The defendant was, from 16 May 2007, apprised of the new allegations and given all expert reports timeously in terms of the rules of court. From the defendant's inaction I can only infer carelessness or an attitude of indifference.

16.As a first step towards motivating a postponement, a satisfactory explanation for the default or delay is required. The defendant faltered at this hurdle.

17. What is more, the prejudice to the minor child, who required treatment, was manifest. The inconvenience to the plaintiff's experts was manifest and the waste of costs egregious.

18. Should these considerations have been ignored because at the eleventh hour the defendant changed its mind and elected to explore whether or not there was a basis to challenge the reports of highly qualified and experienced experts? I do not think so. The defendant's attitude was capricious and its predicament of its own making. It was not enough to say that an interim payment and a costs order would alleviate the prejudice.

19. I was mindful of the substantial impact of the newly introduced claim, but the time for the defendant to have raised prejudice was at or before the time for filing its own expert reports or, at the latest, at the time of the pre-trial conference. By its conduct, it induced in the plaintiff the belief that the matter could and would proceed and, in consequence, the plaintiff secured, no doubt at great expense, the attendance of its various expert witnesses.

20. Had I been told that endeavours had been made to procure evidence on behalf of the defendant and had I been told that there was a basis on which to dispute the opinions expressed by the plaintiff's witnesses, I might have viewed the defendant's plight more favourably. As matters stood, i was satisfied that the indulgence sought should be refused.

21. The collision with the minor child occurred on 5 October 2004, at a time when the child was four years and almost seven months old, her date of birth being 13 March 2000.

22. In the amended particulars of claim it is alleged that the child suffered a fracture of the right femur, a fracture of the pelvis, a head injury resulting in a five centimetre laceration of the forehead and a concussive brain injury. She was hospitalised at the Chris Hani Baragwanath Hospital and received certain medical treatment.

23. Arising from the injuries sustained, damages are claimed under various head of damage. Some of these have been resolved. What I am called upon to decide is, firstly, the claim for future loss of earnings or earning capacity in the sum of R2 million and, secondly, the claim for general damages of R800.000.

24. On behalf of the plaintiff, the following expert witnesses testified:

24.1 Dr HJ Edeling, a neurosurgeon ("Edeling").

24.2 Margaret Anne Gibson, a neuro-psychoiogist ("Gibson").

24.3 Alet Mattheus, an educational psychologist ("Mattheus").

24.4 Ida-Marie Hattingh, a speech / language pathologist and audiologist ("Hattingh").

24.5 Kevin Distiller, an industrial psychologist ("Distiller").

25. The reports of Michael A Scher ("Scher"), an orthopaedic surgeon, and Dr David Shevel ("Shevel"), a psychiatrist, were handed in on the basis that the defendant accepted the opinions expressed therein as if the witnesses had testified to that effect. Lastly, an actuarial report of Mr Whittaker was handed in as evidence on the basis that the actuarial assumptions used were not in dispute, but the defendant contested the factual basis for the calculations.

26. The history of the minor child, relating to her upbringing up until the time of the accident and her development and progress after the accident, as well as the family history, were furnished to the experts by the plaintiff. In order to establish this factual background the plaintiff, herself, testified. She was the penultimate witness.

27. It is true, as pointed out during argument by the defendant's counsel, that the factual account given to each of the experts differed in some respects and that the plaintiffs evidence was not entirely consistent and coherent. I do not see the discrepancies in the information given by the plaintiff to each of the experts as material either to any of the opinions expressed by them, or to the credibility of the plaintiff. The plaintiff impressed me as a loving and caring mother who gave a fair account of her child's background and the progress since the accident. Some of her evidence was obtuse, some of it confusing, but she is not a sophisticated woman and has not had the advantage of meaningful education. The plaintiff was, however, possessed of the necessary insight to recognise the real value of a proper education which was a wish and desire she had for her children.

28. Based upon the plaintiffs evidence which, notwithstanding its blemishes, is sufficiently reliable for the purposes at hand, the history of the minor child and the relevant background are as follows:

28.1The minor child was born on 13 March 2000 in Lesotho. She has two siblings, an older brother, L, and a younger sister, A.

28.2 The level of education achieved by the plaintiff was a Standard III and that achieved by the minor child's father was Standard IV.

28.3The minor child was born a normal, healthy child with no complications either during the pregnancy or at the time of birth. Up until the time of the accident she developed normally achieving the various milestones within the usual parameters. The same applied to her two siblings.

28.4 During early 2003 the minor child, together with her mother, immigrated to South Africa in order to be closer to the minor child's father, who was also the father of the two siblings. It seems that L may have stayed on in Lesotho for a longer period before joining the family in Soweto. This is one of those issues on which there is no clarity, but it is not a material factor.

28.5 The minor child was injured when she was run down by a motor vehicle on 5 October 2004. The plaintiff is unable to give a version of what occurred at the time. She was summoned to the scene of the accident, but fainted in consequence of the shock. The accident occurred on a Thursday and she saw her child only on the Saturday.

28.6 The hospital records, together with the expert testimony, are a reasonably reliable source of information concerning the injuries sustained. However, whilst there was reference to a fracture of the pelvis, this is an injury not addressed in the medico-legal report of the orthopaedic surgeon and, consequently, an injury upon which the plaintiff does not rely for the assessment of damages. It is clear that the minor child sustained a fracture to the femur and a head injury.

28.7 When the plaintiff went to visit the minor child at the hospital, the child was unable to speak and only commenced speaking approximately two weeks later.

28.8 The minor child was discharged from hospital approximately a month after the accident. At that point in time her speech had improved, but was not yet normal. The minor child received some form of speech therapy although the nature of the therapy and the period over which it was administered are not known with any degree of certainty.

28.9 The minor child commenced her schooling in Grade I. She failed Grade I in 2006 and is currently repeating the grade. The plaintiff states that the minor child is now doing well in Grade I.

28.10 According to the plaintiff, the minor child is not the same child that she used to be. She is now naughty, she fights with her playmates and disobeys her mother's instructions. She needs to be told to attend to her personal hygiene otherwise she will ignore it. She frequently suffers from headaches and is continually tired. She is forgetful and no longer capable of performing the chores that she performed for her mother prior to the accident. The orthopaedic injury has left her with residual pain on occasions, particularly when she has been for a walk or is playing with other children. She suffers from pain when the weather changes.

28.11 The minor child lives in a stable environment with her mother and father. Her father has regular employment as a carpenter.

28.12 During 2005 the minor child was struck by a stone on the forehead resulting in an injury which required to be stitched. This injury was of no lasting significance.

28.13 Since coming to South Africa, the plaintiff worked for a time as a domestic worker, but relinquished that employment when she was required to return to Lesotho temporarily when her father passed away.

29. Although aspects of the testimony delivered by each of the expert witnesses were explored during cross examination, the opinions expressed stand uncontested and un-contradicted.

30. The logical starting point is the views expressed by Shevel, which gave rise to the investigation into the brain damage sustained by the minor child.

31. The plaintiff and the minor child consulted Shevel on 4 May 2004. Shevel had the benefit of the MMF1 medical report, a copy of the hospital records and the report of the orthopaedic surgeon, Scher. Having regard to a report from the plaintiff about a loss of consciousness and the hospital ward records noting a history of loss of consciousness, Shevel expressed the view that the minor child "may have sustained a mild concussive head injury". Having been informed that the accident occurred approximately fifteen months before the minor child started school and that the minor child had failed Grade I, Shevel stated:

"There are numerous psycho-social grounds as to why B would not have coped adequately in her first year at school but the effects of a subtle brain injury cannot be totally excluded on purely clinical grounds.

B does present with some ongoing psychological adjustment difficulties related to the accident."

32. Following these remarks, the plaintiffs legal representatives advised that the minor child should be subjected to further analysis. She was seen by Mattheus on 8 May 2007, by Hattingh on 9 May 2007, by Greef on 11 May 2007, by Gibson on 15 May 2007 and by Edeling on 26 May 2007.

33. Edeling, the neurosurgeon, had the benefit of the reports of Shevel, Hattingh and Greef (as well as the report of Scher, the hospital records and the statutory medical report) at the time of his examination. Edeling referred, in his report, to the record of the head injury involving a loss of consciousness, to the laceration of the forehead (although no fractures were reported) and to the report by the plaintiff indicating aphasia (an inability to speak) followed by dysphasia (impaired speech) and commented that "[i]n the context of a four-year-old child who had been struck by a motor vehicle with sufficient force to fracture the pelvis and femur, and in whom a direct blow to the head was evidenced by a laceration of the forehead, it is most probable that her concussive brain injury was complicated by superimposed focal brain injury in the left (dominant) frontal lobe". Edeling concluded, on the basis of the available information, that the minor child most probably suffered a mild primary diffuse brain injury, complicated by a focal brain injury.

34. These opinions were confirmed by Edeling in his evidence, during which he pointed to the corroborating evidence of the other experts contained in their various reports.

35. it seems to me that that the effects of an injury of this nature on the minor child are devastating. During Edeling's evidence he referred to the "Bell curve" and to an article by Dr David S Bell (endorsed by Edeling) in which the following is stated;

"The young improve particularly well during the initial phase of recovery from a head injury. Their resilience gives the impression that the young brain is less vulnerable to injury than the adult brain. The difference in the recovery rates of adults and children is particularly marked at one year after injury ... In the following years, unlike the adult, the young child can continue to show progressive improvement in standard psychometric measures such as the intelligence and memory quotients …

Lengthier follow-up has dashed these optimistic expectations. The remarkable adaptive capacity of the young brain conceals permanent disability, which becomes evident later with the advent of maturity. Not only that, but the remarkable adaptive capacity had drawn attention away from the greater vulnerability of the young brain to injury. The appropriate comparative studies revealed that young children show greater decrements after injury than adolescence or adults ... Similarly, in the age bracket beginning in adolescence, the younger the patient at the time of injury the worse the ... outcome in terms of behavioural and emotional disorder ... the long-term effect of frontal injury in the child can be more debilitating than similar injuries sustained later in life ..."

36. Edeling explained that following an injury to the brain, there is a sharp drop in brain function and an immediate sharp recovery. Within the next six months there is rapid recovery and over the following period until approximately two years from the injury, there is slow improvement. The effect of brain injury is that the brain cells are damaged. The brain only has a certain number of ceils. After the injury the damaged cells either recover or die. The deficit in the brain injured person is represented by the loss of cells. The impact upon the injured person depends upon the area of the brain in which the loss is sustained. Within a period of approximately two years all cells which have survived are fully functional. Problems present themselves in those areas where the cells have died. Even after two years a brain injured child's condition can improve. The further improvement is a function of the living cells learning. This is not a function of further pathological improvement or recovery. The pathological damage is done and irreparable. Notwithstanding that the brain injured child improves and learns until he or she reaches a plateau at between eighteen to twenty five years, the brain injured child progressively falls behind his or her peers and the gap or lag increases until maturity.

37. The diagnosis made by Edeling is as follows:

"Post-traumatic organic brain syndrome with neuropsychological and neuro-psychiatric disorders, as well as dysphasia and neuro-physical impairments", and "Chronic post-traumatic headaches".

Edeling also noted that there was no evidence of pre-existing neurological pathological condition or disability.

38.The prognosis is not good. Edeling states that the post-traumatic neurological disorders have stabilised and become permanent. He expects increasingly apparent mental disability as the minor child gets older. Her mental development is expected to proceed at a slower rate than that of her uninjured peers and the role of the frontal lobes of her brain will become more heavily taxed in higher grades at school. Furthermore, the post-traumatic headaches are expected to persist in variable degree in the long term.

39. Permanent disability in the form of educational disability and employment disability is expected. Edeling expects a significant degree of permanent educational disability and a significant degree of permanent employment disability. Finally, Edeling reports a significant loss of general amenities and enjoyment of life in adulthood. He predicts that the minor child is unlikely to ever develop the mental capacity for fully independent living or for having independent management of her personal, financial or legal affairs. Edeling explained during his evidence the diminution in executive function of the brain and its dire consequences. He talked of significant cognitive impairment and executive mental impairment. Of all the deficiencies the most important is the executive mental dysfunction. Edeling described the minor child's prospects of gainful employment as being characterised by the "S's":

"simple, structured, supervised and sympathetic."

40. The second witness called on behalf of the plaintiff was Gibson, who had performed a neuropsychological assessment. There were some discrepancies between the background information furnished to Gibson and to the other experts, such as the educational level L (the minor child's brother) had achieved and that the minor child played "nicely with her friends" and that she showed some signs of independence, being able to dress herself, brush her teeth and tie her shoelaces. I do not see these issues as being of fundamental significance. Without the benefit of the report of the neurosurgeon, Edeling, Gibson reached the same conclusions as Edeling. On the basis of an interview conducted by her and various tests performed on the minor child, she came to the conclusion that the difficulties experienced by the minor child were consistent with a finding of brain injury. She compared the pre-accident position of the minor child as having probably been of about average intellect and normal cognitive and social functioning with a post-accident position of a minor child experiencing educational difficulties and collateral complaints of difficulty in following instructions, comprehension, memory and naughty behaviour. Gibson reported a number of neuropsychological difficulties which, in the absence of an alternative explanation, were considered to be associated with sequelae to head injury. She recommended provision for remedial education which, while beneficial, was not seen as curative of the brain injury. She considered that it was probable that the minor child would progress as far as the end of primary school "in a stop-start manner (in mainstream) or more efficiently in remedial education, and then probably encounter increased educational difficulty in the junior secondary school phase, at which time limitations would be more evident, as children with brain injury often achieve a premature plateau in cognitive function". In her opinion the minor child was likely to find her educational limit at the end of Grade IX and that with such educational limitation she was seen as having reduced employment potential. In this regard she deferred to the industrial psychologist's opinion. Psychotherapy was recommended in order to ameliorate post-traumatic effects and to assist in future development of the child.

41. Thereafter, the educational psychologist, Mattheus, was called to testify. She based her opinions on the history furnished by the mother, the various medicolegal reports and medical records at her disposal and a series of tests conducted by herself. Mattheus expressed the view that pre-accident the minor child was probably of average intellectual ability and had the potential to complete Grade XII and to pursue some form of tertiary training, which would depend upon the circumstances and opportunities available. Post-accident, she stated that the minor child's cognitive function was poor, the test results reflecting difficulties in attention, memory, visual perceptive skills, visual motor motorical integration skills, auditory skills and processing speed. These factors would all impact negatively upon the minor child's academic performance. Mattheus felt that the minor child would in all likelihood not complete her basic education in mainstream education and that she would probably only manage to obtain a Grade IX level of education at a school for learners with special educational needs. She suggested that the minor child would benefit from immediate placement in such a school where she could receive individual attention and therapy. She recommended individual psychotherapy sessions.

42. The occupational therapist, Greet, was the next witness to testify. Greet stated that at the time of her initial report she had not had the benefit of Edeling's report. She had, however, identified at the time of her assessment significant perceptual and cognitive difficulties, but stated that in the absence of proven organic brain injury that long term supervision and monitoring was not foreseen. It is clear from her initial report that she contemplated the potential consequences of brain injury, but that she recorded that she had no available information confirming the presence of organic brain injury. Following receipt of Edeling's report she filed a supplementary report, noting that the neurosurgeon's report had indicated that the child had suffered a mild primary diffuse brain injury complicated with focal brain injury and that the neuro-psychologist had identified long term neurological sequelae as being expected. In the context of this information Greef recommended long term supervision and monitoring and that consideration should be given to continue education in a remedial or special school environment. Based on the tests which she conducted she came to the conclusion that the perceptual development of the minor child had not continued after the accident. Perceptual development has nothing to do with the ability to see, but rather the ability to integrate information. Without this ability the minor child is not able to find the information and becomes "lost in the information". She concluded that the minor child would in all probability suffer from functional un-employability.

43. Hattingh, the speech / language pathologist and audiologist, concluded that the profile of the minor child based upon the assessment performed by her was compatible with brain damage. She stated that the profile indicated significant deficits that impacted upon the minor child at all times. These deficits were already marked with significant delays and as the minor child became older the gap would become wider as her maturation and development levels do not keep up with her chronological age. She recommended immediate therapy stating that the longer the therapy is delayed the bigger the deficits and the more difficult it would become to develop skills. She suggested that the minor child would benefit from placement in a remedial school, but that ultimately the minor child would require a structured environment with external monitoring and supervision if she is able to achieve academically in a school for learners with learning disabilities. If not, she would be limited to sheltered employment. Furthermore, given her difficulties with communication, the minor child would require supervision if she is to live alone.

44. The industrial psychologist, Distiller, reviewed the opinions expressed by the various experts in their reports and analysed the pre-accident and post-accident prospects of the minor child. From the discussion he stated that the educational potential and the future employment capacity of the minor child had been severely affected by the injuries and related sequelae. It appeared that she would be forced to enter remedial education where she was only expected to be able to reach a Grade IX level of education. The only likely employment options open to the minor child would be in the informal sector or those involving heavy labour activities. In summary and conclusion he stated in his report:

"But for the accident, the indications are that Minor Penane is likely to have completed Grade 12, whereby she would have either found employment in the formal open labour market, or she could have found employment in the informal sector as described above. She may have also been able to obtain some form of formal employment, where her earnings ceiling is likely to have been at a B4/B5 Patterson level.

Subsequent to the accident, her school performance has been affected by her injuries and related sequelae, and she is no longer expected to be able to obtain a Grade 12 level of education, even if she is placed in remedial schooling. Thus, many of the job opportunities that would have been open to her prior to the accident may now be beyond her ability as discussed above."

45. During evidence Distiller expressed the opinion that, based upon the reports of the various experts, and their projections, that the minor child was for all practical purposes unlikely to be able to achieve any gainful employment. He concluded she was functionally unemployable.

46. It is therefore beyond dispute that the minor child sustained the form of brain injury described by Edeling with the many devastating consequences described above. As far as her future education is concerned, it is likely that she will only achieve a Grade IX level of education at a special school. Having regard to her behavioural problems, her cognitive and perceptual deficits, her continual fatigue and executive mental dysfunction, it is unlikely that she will find any form of employment other than that which is simple, structured, supervised and sympathetic. Gainful employment of that type is not a reality.

47.The plaintiff has approached the question of the determination of future loss of earnings or earning capacity by presenting an actuarial calculation based upon various assumptions. The assumptions made concerning the earnings the minor child would have made, had it not been for the accident, are based upon the views expressed by the expert witnesses, in particular, the industrial psychologist Distiller, and other usual assumptions made by actuaries. Whittaker, the actuary, assessed the loss of earnings at a sum of R1,919,754 and applied a contingency deduction of ten percent, arriving at a net loss of R1,727,779.

48. Having regard to guidelines laid down in Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A), it seems to me to be right and appropriate to assess the quantum of the loss with the benefit of the actuarial calculation.

49. Indeed, the defendant's counsel did not suggest otherwise and the attitude taken by the defendant was to accept the calculation and the actuarial assumptions, but reserve the right to challenge the underlying factual grounds. During argument it emerged that the ambit of the dispute was very narrow. The only issue was the contingency deduction I should apply to the actuary's quantification of the loss. Ms Makopo conceded that I should accept that the minor child was a normal child prior to the accident and of average intellect and that, but for the accident the minor child probably would have attained a Grade XII level of education, but she submitted that I should apply a contingency factor to this probability. Ms Makopo submitted that, notwithstanding the accident, there remained some prospect of the minor child obtaining gainful employment and that this prospect should be reflected in the percentage contingency 1 applied to the actuary's computation of the loss of earnings.

50. It was argued that I should apply a forty percent deduction to the actuary's computation. As support for this submission I was referred to Bopape v President Insurance Co Ltd WLD case number 20831/88 delivered on 10 December 1990. On the strength of Bailey's case, supra, it was submitted that a twenty five percent contingency deduction was the starting point.

51. Mr du Plessis contended for a lesser deduction, arguing that twenty percent would be appropriate. He submitted that Bopape was out of step with other decisions, such as Van Eyk v Road Accident Fund case number 00/13245, Megalane v Road Accident Fund WLD case number 2005/8572, Mautia v Road Accident Fund TPD case number 5512/00 delivered on 29 May 2001, and Makangu & Another v Road Accident Fund TPD case number 30137/2003.

52. It is not clear to me why Levy AJ applied a contingency of forty percent in Bopape and not a twenty five percent contingency as was applied in Bailey, and to which Levy AJ had referred.

53. In Mautia, the court was concerned with a minor child aged four and a half years at the time of the collision and thirteen and a half years at the time of the trial. He had suffered a head injury causing mild permanent brain damage, but leading to severe psychological consequences, such as a permanent inability to perform academically. In consequence of the head injury the child suffered from poor concentration, learning difficulties, headaches, restlessness, hyperactivity and bad temper. He became bossy, selfish, inattentive, tearful, forgetful and constantly slept for lengthy periods. He showed a high level of inappropriate activity. It was anticipated that the minor child would attain no higher than a Grade IX level of education in a remedial school. In Mautla, du Toit AJ applied a twenty percent contingency deduction to the so-called "uninjured income". The similarities between that matter and the case at hand, are manifest.

54. In Megalane, a minor child aged eleven at the time of the accident, had suffered a severe head injury with diffuse and focal brain damage, leaving him severely and neurologicaliy disabled. Saldulker J considered a twenty percent contingency deduction to be fair in the circumstances of that matter.

55. In Makangu, Southwood J addressed the situation where a minor child, aged ten at the time of the accident, had suffered a major head injury with permanent loss of sight in her left eye as well as other sequelae. The injuries had left her unemployable in the open labour market. Southwood J considered, inter alia, the judgments in Bopape and Mautla. The learned judge also commented that the circumstances in Bailey's case were broadly similar to those with which he was dealing and concluded that a figure of twenty percent as a deduction would be fair. Another case in which a twenty percent deduction was applied was Van Eyk.

56. From the perspective of the appropriate contingency deduction to apply, I see similarities between this matter and the matters of Megalane, Mautla and Makangu. In all those matters a twenty percent contingency deduction was applied.

57. I am mindful of the fact that the minor child was only four and a half years old at the time of the accident and that the assessment of her intellectual capacity and her ability to achieve a Grade XII level of education is somewhat speculative. There is also an element of uncertainty in the evidence surrounding the achievements of her elder sibling, the consequence of which is that one cannot infer from his progress, the likely progress of the minor child. If anything, it appears that the immigration to South Africa from Lesotho has significantly retarded his progress at school. Notwithstanding the limited material at their disposal, the experts appear to be confident that in all probability a Grade XI! level of education could have been achieved by the minor child but for the brain injury. There was, also, the prospect that the minor child could have done better than that level of education, but that is entirely speculative. The view that the minor child would in all likelihood have achieved a Grade XII level of education, but for the accident, is one which is premised on the fact that the minor child's family had relocated to an urban environment and that the plaintiff would have ensured the attendance of the minor child at school. There is nothing to indicate that anything untoward would have occurred. The family appears to have lived together as a unit for many years, the mother and minor children having followed the father to South Africa, and the father having had regular, stable employment. It is also clear that the plaintiff regards the education of her children as a priority and she walks significant distances each day to ensure the attendance at school of her children.

58. I accept that the evidence is to the effect that the minor child, but for the accident, would probably have achieved a Grade Xll level of education. The evidence shows, also, that the minor child, having regard to the accident, is unlikely to obtain gainful employment. It seems wrong, therefore, to take account of a wishful prospect of the child becoming gainfully employed. I take into account, also, that I am peering into the future, that the probabilities do not predict the future with accuracy and there is a large element of guesswork. Doing the best with the evidence I have, recognising the vicissitudes of life, its unpredictability and vagaries, I consider that I should apply a twenty percent contingency deduction to the actuarial computation of the loss.

59. Accordingly, I assess the quantum of the minor child's loss of earning capacity at the sum of R1,919,754 less a deduction of twenty percent, amounting to R1,535,803.

60. It remains for me to consider the question of general damages.

61. General damages are claimed for pain and suffering, disability, disfigurement and loss of amenities of life.

62. The minor child sustained a head injury, a fracture of the femur and, it seems, a fracture to the pelvis. The head injury involved an injury to the minor child's forehead as well as the brain damage which I have addressed more fully above. The injury to the forehead has resulted in a five centimetre scar, causing some disfigurement. The fracture to the femur was treated conservatively and appears to have healed with no requirement for future treatment. From the plaintiffs account, as indicated above, the minor child experiences residual pain from time to time, particularly after walking long distances. For the reason that Scher's report omits to mention the fracture of the pelvis, it was conceded by the plaintiff that I should not take account of this injury.

63. The minor child was hospitalised for a period of approximately one month. For the first two weeks after the injury she was unable to speak and had continued difficulty with her speech until after her discharge from hospital. This must have been a traumatic experience for her.

64. The brain injury sustained by the minor child is, by far, the most serious of the injuries and the one with devastating consequences. Not only are the consequences of such severity that the minor child is unlikely to be able to find gainful employment, but she also will suffer from the neuro-behavioural problems identified by Edeling, Gibson and Greef. On the topic of residual impairment, Edeling mentioned in his report that the minor child presented with fatigue, headaches, impairments of cognitive and executive mental function, behavioural problems and scholastic difficulties. On the topic of loss of amenities, Edeling stated that the minor child would appear to be protected to some extent from subjective suffering by a lack of insight, as well as by the structured and supervised environments at home and at school. However, he stated that it was inevitable that the organic sequelae of the brain injury would result in a more significant loss of general amenities and enjoyment of life in adulthood. Independent living or independent management of her own affairs, he considered to be unlikely.

65. Apart from the impairments to the minor child's perceptual development, her cognitive and executive mental functioning, Greef testified about the minor child's neuro-physica! impairments characterised by an inability to integrate the use of the upper and lower extremities and a tendency to avoid the use of her left arm, which has affected her posture and muscle conditioning.

66. The defendant's counsel argued that I should award an amount of R25,000 consequent upon the orthopaedic injuries sustained by the minor child and an amount of R125,000 consequent upon the brain injury. The plaintiffs counsel submitted that I should award an amount of R750,000 for general damages.

67. I was referred to a number of cases by counsel. Limited guidance only can be obtained from those cases as none contains a decision on all four with the one at hand.

68. Concerning the minor child's orthopaedic injuries, Mr du Plessis, on behalf of the plaintiff, referred to RAF v Marunga 2003 (5) SA 164 (SCA), in which the court awarded a sum of R175,000 to the respondent, a young man aged nineteen years at the time of the collision, who had sustained a fracture of the left femur, a soft tissue injury in the chest area and bruising on the forehead, left arm and left knee. In that matter the respondent had undergone a surgical procedure the day after the collision when a plate and screws were inserted in his left leg in order to deal with the fracture. He spent five months in hospital recuperating, approximately two of which were spent with his leg in traction and in plaster. After the discharge from hospital he walked with the aid of crutches for approximately five months. Some years later he was re-admitted to hospital for the surgical removal of the plate and screws. In the meantime the plate had moved which caused a mal-union and angulation of the femur resulting in a shortening of the left leg. The respondent spent two weeks in hospital after the plate and screws were removed. Thereafter he was subjected to further treatment from time to time. This severely curtailed his enjoyment of life and caused him considerable discomfort. The injuries precluded him from completing a school year (Grade XI) and he was required to repeat that year. He was also a keen sportsman and, as a result of the injuries, was precluded thereafter from participating in sports. At the time of the trial, some eight years after the collision, there remained the prospect that the respondent would have to undergo further surgical intervention. The envisaged corrective surgery would alleviate the discomfort of walking with a shortened leg, but the disfigurement was permanent.

69. In Marunga, reference was made to Wright v Multilateral Vehicle Accident Fund, a 1997 decision involving a twenty eight year old woman who had sustained an open communited fracture of the right femur with complete division of the quadriceps muscle and loss of substantive quantity of bone which extended into the knee joint. The plaintiff was hospitalised for two weeks during which time she underwent surgical intervention to correct the quadriceps muscle and to apply an external fixator. She was discharged from hospital on crutches. She was re-admitted two weeks later for treatment of infection and later re-admitted for further treatment. Following the removal of the external fixator traction was applied at home for four weeks. The fracture failed to unite and the plaintiff was again hospitalised for a few weeks during which an open reduction was performed for an internal fixation. Thereafter the plaintiff wore a leg brace for several weeks and was left with a limitation of flexion in her right knee. She suffered thereafter from a shortening of the ieg by three and a half centimetres. There was residual pain and recurring infections requiring surgical drainage. The plaintiff had been an outdoors person who was rendered permanently unable to play sport. She was awarded R65.000, which at the time of the Marunga trial (2001) was the equivalent of an award of R81.000. I was told by counsel that the Marunga award of R175,000 was currently worth R243.000. It is clear to me that neither of these judgments is comparable. Both {and in particular Marunga) are more severe cases from an orthopaedic point of view.

70. If Marunga is currently worth approximately R240.000 then, it seems to me, that that case was probably three times as severe as this case insofar as the orthopaedic injuries are concerned. On that rough and ready basis I would arrive at an amount of R80,000. On the other hand the present value of the award in Wright is approximately R110,000. Does this case deserve an award of more than half the amount awarded there? I am not convinced it does. However, having regard to these parameters I have decided that an amount of R55,000 would be appropriate for the pain and suffering, hospitalisation, subsequent discomfort and loss of amenities of life associated with the minor child's orthopaedic injury.

71. The injury of real consequence is the brain injury with the resultant destructive impact which it no doubt will have upon the minor child - which will endure with her for the rest of her life.

72. Mr du Plessis referred to the Megalane matter in which an award of R1 million was made for general damages during December 2006. The consequences of the brain injury in that matter were of tragic proportion. The minor child was left severely mentally retarded, with severe spasticity, impaired speech, impaired executive functions (including frontal lobe disinhibition) and an inability to communicate intelligibly. He was left incontinent, restrained in a wheelchair and, on the probabilities, with insight into his condition.

73. In Megalane the court had regard to Webb & Another v RAF (case number 03/13786, dated 14 June 2006) where an amount of R500,000 was awarded in respect of general damages for a minor child who had suffered a severe head injury as well as multiple skull and facia! injuries. The minor child had also suffered disabling neurological impairments which were severely debilitating. Reference was also made to Mnguni v RAF, a judgment by Claassen J in the Witwatersrand Local Division under case number 810/2005, dated 1 June 2006, in which the learned judge had awarded an amount of R700,000 for genera! damages in respect of a severe head injury and the amputation of the plaintiffs right lower leg,

74. I have had regard to Megalane, a case more severe than the one at hand, Webb, a case roughly comparable (but seemingly more severe) insofar as the sequelae to the head injury are concerned, and Mnguni, a case less severe insofar as the head injury is concerned, but one more devastating in terms of physical disability. In comparing this matter to other decided cases I have had regard to the absence of a clear indication of the likely severity of the minor child's neuro-behavioural or neuro-psychological deficits and to what extent such deficits will adversely affect her life. No doubt Edeling has diagnosed a frontal lobe syndrome, but the full extent of the impact this is likely to have remains somewhat obscure.

75. It seems to me that a sum of R450.000 would constitute fair compensation for the consequences of the minor child's brain injury. The disfigurement to the minor child's forehead appears not to be of a severe nature and I have included compensation for that injury in the round sum of R450,000.

76. Having regard to the substantial sums to be awarded to the plaintiff, it is prudent that a trust be established and a trustee be appointed to administer the trust estate on behalf of the minor child. The order that I propose to make in this regard is with the consent of both parties.

77. I have been asked, when addressing the question of costs, to allow the plaintiff the costs of the preparation of the written heads of argument on the basis that these heads of argument would be useful to me. They have been of use to me and, for that reason, I propose to make an award allowing those costs.

78. I accordingly make the following order:

78.1 The defendant is to pay the plaintiff a sum of R1,535,803 as compensation for the minor child's loss of earnings.

78.2The defendant is to pay the plaintiff the sum of R505,000 as genera! damages
suffered by the minor child.

78.3 The defendant is to furnish the plaintiff with an undertaking in terms of section 17 (4) (a) of the Road Accident Fund Act, 56 of 1996, to compensate the plaintiff for the cost of the future accommodation of the minor child in a hospital or nursing home or treatment of or rendering of a service or supply of goods to the minor child after the costs have been incurred and on proof thereof.

78.4The defendant is to pay to the plaintiff the reasonable costs of the creation of a trust and the appointment of a trustee, the reasonable costs of the furnishing of security by the trustee and the costs of the trustee in administering the minor child's estate, as determined by section 84 (1) (b) of the Administration of Estates Act, 66 of 1965, according to the prescribed tariff applicable to curators.

78.5 The defendant is to pay the plaintiffs costs, such costs to include the qualifying expenses, the costs of the expert reports, the preparation for trial and the attendance on trial of the expert witnesses: Edeling, Gibson, Mattheus, Hattingh, Greet and Distiller, plus the costs of the expert reports of Scher, Shevel and Whittaker, as well as the reasonable costs of the preparation of the plaintiffs heads of argument.

AO COOK

Acting Judge of the High Court 1 August 2007

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