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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

 

FLYNOTES: LOSS OF EARNINGS – TEENAGER Motor collision – Head injury – Mild neurocognitive disorder – Pre-morbid above average IQ and would have obtained degree – 35 % contingency deduction for pre-morbid considering the prevailing economy and rate of employment.

 

 

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

 

CASE NO: 1044/2018

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/ NO

REVISED: YES/NO

20/10/2022

 

In the matter between:

M[....]2 P[....] M[....] OBO MINOR CHILD                                                    PLAINTIFF

S[....] M[....]

AND

ROAD ACCIDENT FUND                                                                             DEFENDANT

 

JUDGMENT

 

LANGA J

Introduction

[1]        The Plaintiff Ms M[....]2 P[....] M[....] is claiming damages in her representative capacity on behalf of S[....] M[....], a 14-year-old minor who was involved in a motor vehicle collision as a pedestrian. This personal injury claim is against the Road Accident Fund (“the Fund”) for damages arising out of a motor vehicle accident which occurred on 25^th May 2015 near eMbalenhle, Mpumalanga Province. The Fund, which is the Defendant in this matter, is a juristic person established in terms of the Road Accident Fund Act, 56 of 1996 (“the Act”) and is responsible for the compensation of persons in terms of section 17 of the Act.

[2]        The minor, a pedestrian at the time, was knocked down by a car driven by one Njabulo Zulu, (“the insured driver”) and suffered multiple injuries and was admitted to hospital for treatment. According to uncontested evidence the child lost consciousness and regained on the way to Evander hospital where he was admitted for a week. He sustained head injuries in the collision. Although his scalp and forehead was lacerated, however, according to Dr FS Kasiriye, the diagnostic radiologist, the Plaintiff did not sustain any fractures of the skull which was still intact.  He also had no facial abnormalities and the base off the skull also appeared to be normal.  The treatment he received consisted of debridement and the suturing of the scalp. The Plaintiff is claiming general damages and loss of earnings which it is alleged were the result of the accident.

[3]        The merits were settled 100% in favour of the Plaintiff. The only outstanding issue is the quantum in respect of the general damages and loss of earnings. At the hearing of the matter the plaintiff was represented by Advocate D Thumbathi while there was no appearance for the Fund despite the fact that the matter was defended and the Defendant had been properly served with a notice of set down. This matter is therefore essentially before court as an application for default judgment against the Defendant.

[4]        The Plaintiff proceeded to lead evidence in order to prove loss of earning capacity and called in this respect various expert witnesses including the following: Dr B Mosadi, the Neurosurgeon, Ms. E Nagel, the Clinical psychologist, Ms Lesego Mashishi, the Occupational Therapist, Ms Z Gumede, the Educational Psychologist and Ms. M Mathabela, the Industrial Psychologist. The Plaintiff further relied on the report by the Munro Forensic and Actuaries to quantify his claim. The Plaintiff’s evidence was essentially uncontested as the Defendant did not present any evidence at the trial or challenge the evidence presented by the Plaintiff.

[5]        Dr. Bakang Mosadi, the neurosurgeon, basically stated that on examining the minor child he noted a well healed facial laceration. He stated that he sustained a mild head injury and a grade 3 concussion evidenced by chronic headaches, memory problems and history of loss of consciousness.  He testified further that the minor child will experience post-concussion headaches for the rest of his life as a result of the head injuries and may have prolonged neurocognitive impairments as a result of chronic headaches.

[6]        The Clinical Psychologist Elizabeth Nagel testified that as a result of the head injuries the minor child is likely to suffer from cognitive challenges such as learning and memory loss amongst other issues. She further stated that the minor child also suffers from a mild neurocognitive disorder with behavioural disturbances due to the traumatic brain injury. She opined that he has been left psychologically vulnerable and that his behavioural disturbances can impact on the quality of his interpersonal relationships in future. She further stated that the child continues to suffer from headaches with psychological implications.

[7]        Lesego Mashishi, the Occupational Therapist, testified that according to the cognitive and visual perceptive evaluation, the Plaintiff presented with higher mental and executive functions impairments and also has fluctuating concentration, memory problems as well as inadequate visual processing efficiency which will render him prone to making errors and taking more than expected time in completing tasks. The therapist also opined that the minor child possessed residual work capacity to pursue sedentary to medium strength requirement occupations and that in the light of the educational Psychologist’s report, he will probably be suitable for unskilled to semi-unskilled occupations. She testified further that from a functional perspective, the child suffered a probable decline in earning capacity, particularly for occupations requiring mental exertion. The Occupational Therapist opined that the child would therefore in future need reasonable accommodation which will render him an unequal competitor in the open labour market.

[8]        The Educational Psychologist Ms Zethu Gumede testified that her tests revealed that pre-morbid, the child had an above average IQ and would likely have passed grade 12 with exemption and obtained a university degree.  She stated further that although the tests showed that post-morbid he would still have an above average IQ, he however lagged behind in respect of tests conducted in respect of reading, spelling and numerical reasoning which would render him unable to complete grade 12. She added that although he was doing grade 6 at the time of the assessment, he, however, scholastically functioned at the level of a grade 4 learner.  She added that even if he receives remedial interventions these would not bridge the gap between his age appropriate level and actual level of functioning.

[9]        The Industrial Psychologist Ms Meriam Mathabela testified that pre-accident the minor child would have passed grade 12 in 2026 and obtained a degree in 2029 at the age of 21. She further stated that he would have entered the labour market at Paterson grade B4 within the semi-skilled corporate labour market at the age of 24 and would have progressed to Paterson Grade D1 by the time he reaches 45. She stated that post-accident the Plaintiff would struggle to pass grade 12 or NQF level 4 and would probably end up in unskilled to semi-unskilled occupations with earnings fluctuating between the lower quartile to median earnings of the unskilled worker in the non-corporate sector. She opined therefore that the minor child was left with post-accident deficiencies which have compromised his abilities resulting in a decreased in employment opportunities and earning capacity. He would therefore find himself as an unequal competitor in the open labour market when compared to his uninjured counterparts and may therefore be subjected to prolonged periods of unemployment.

[10]      The Actuary Wim Loots postulated the potential earnings of the minor child as below reflecting the total loss after the deduction of 25% contingency in respect of the pre and post morbid scenarios:

            Pre-morbid:                                                   R6 992 150.00         

            Post-morbid:                                                  R   480 190.00

            Total future Loss:                                      R6 511 960.00

[11]      Despite these calculations by the actuary the Plaintiff suggested a 30% contingency deduction in respect of the pre-morbid scenario and submitted that this slightly higher than normal deduction is justified considering that the experts were ad idem that the Plaintiff would have obtained a University degree and that he would have probably entered the labour market later than expected or would have spent longer seeking employment due to the prevailing economic situation and high rate of employment.

[12]      Regarding the post-morbid scenario the Plaintiff suggested a 10% deduction in the light of the fact that the postulated earnings for the rest of the minor child’s life will be conservative and punctuated by intermittent periods of unemployment. It was further submitted that he would in all probability require remedial interventions in order to acquire skills and may further require an accommodative employer. Based on the above the Plaintiff suggested that an amount of R5 949 779.20 (five million, nine hundred and forty-nine thousand, seven hundred and seventy-nine rand and twenty cents) be awarded as future loss of earning based on the following calculations after factoring in the 30% and 10% pre and post morbid, respectively, as stated above:

            Pre-morbid:                                                                           R6 526 006.00

            Post-morbid:                                                                          R 576 227.70 

            Total future loss:                                                                R 5 949 779.20        

[13]      It is trite that the determination of a suitable contingency deduction falls within the discretion of the Court. In Southern Insurance Association LTD v Bailey 1984 (1) SA 98 (A) the court emphasized the advantage of considering the actuarial calculations in this process.

“Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future without the benefit of crystal balls, soothsayers, augers or oracles. All that the court can do is to make an estimate, which is often a very rough estimate2, of the present value of loss. It has open to it, two possible approaches. One is for the judge to make a round estimate on an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try and make an assessment, by way of mathematical calculations on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent. But the court cannot for this reason adopt a non-possum attitude and make no award.”

[14]      It is also clear that a judge is not tied down by inexorable actuarial calculations and that a judge has a large discretion to award what he considers right. The exercise of this discretion must however take into account life contingencies such as the periods of unemployment that the plaintiff may experience, having less than a normal expectation of life etc.   

[15]      Concerning the minor child in this matter, the reports by the experts were not challenged. It can be accepted that based on the report by the Educational Psychologist had the accident not occurred the minor chid would have been able to cope with mainstream schooling up to grade 12 and thereafter obtain a tertiary qualification. The uncontroverted evidence is that although he has reached grade 6 post accident, he however, scholastically functioned at the level of a grade 4 learner. Although his IQ is above average the gap between his age appropriate level and actual level of functioning would not even be bridged by remedial interventions. 

[16]      I am of the view that, taking into account the expert reports, in particular that of the neurosurgeon, the clinical psychologist and the educational psychologist, the application of a 35% percentage contingency deduction to the pre-morbid scenario will be fair and reasonable. A 10% higher contingency deduction in respect of the post-morbid scenario will be justified.

[17]      In the result the calculations will be as follows:

            Pre-morbid income at R9 322 867 less 35% (3 263 004) = R6 059 863-00

            Post-morbid income at R640 253 less 10% (R64 0 25) = R576 228

            Total future loss:                                                                R 5 483 635

I therefore intend awarding the amount of R 5 483 635 (five million, four hundred and eighty-three thousand, six hundred and thirty-five rands) as future loss of earnings.

General Damages

[18]      Regarding general damages the Plaintiff is claiming an amount of R500 000.00 (Five Hundred Thousand Rand). As stated in the previous paragraphs, according to the experts the Plaintiff sustained mainly head injuries with consequent chronic headaches and memory problems. According to Dr Mosadi he will suffer from post-concussion headaches for the rest of his life.   

[19]      The Plaintiff’s counsel relied on inter alia the following previous cases in arguing for the granting of the above amount as damages.

19.1  Maele v Road Accident Fund 2015 (7EA) QOD 1 (GNP) – The Plaintiff in this case suffered brain injury and fractured left tibia and was hospitalised for 5 days. She experienced pain and her leg was placed in POP. The court awarded her (R487 000) four hundred and eighty-seven thousand rand.

19.2  Phasha v Road Accident Fund 2013 (6E4) QOD 21 (GNP)- The plaintiff in this matter was awarded (R658 000) Six Hundred and fifty-eight thousand rand after sustaining head injuries (lacerations) with resultant loss of consciousness and amnesia as well as tibia and fibula fractures, scars, deformities and disfigurement. The left fibula fracture did not heal well and resulted in a shortened left lower leg and concomitant difficulty in walking.

19.3  In Sauerman v Road Accident Fund 2004 (5B4) QOD 190 (AF) the Plaintiff claimed R504 000 thousand for head injuries suffered moderate to severe concussive head injury with a permanent concussive syndrome with behaviour and personality change.  

[20]      The common thread in all the cases above is that the plaintiffs were all seriously injured. Although the Plaintiff in casu sustained a head injury, it was not as serious an injury as in the cases above. He only sustained a laceration to the head with an accompanying concussion. He was hospitalized for a period of a week for treatment where his head laceration was debrided and sutured. Regarding pain and suffering Dr Mosadi reported that the Plaintiff suffered acute pains for a week after the accident and also suffered chronic pains at the time of the examination. Dr Mosadi further reported that the Plaintiff lost the amenities of life during the week of his hospitalization.

[21]      In the light of the cases referred to above and also taking into account the medical reports, I am of the view that an amount of R300 000.00 (Three Hundred Thousand Rand) will suffice as compensation for general damages and therefore intend awarding this amount.

Order

[22]      In the result the following order is made:

1.         The Defendant declared to be 100% liable for all of the Plaintiff’s proven damages;

2.         The Defendant shall pay an amount of R5 783 635 (Five Million, Seven Hundred and Eighty-Three Thousand Six Hundred and Thirty-Five Rands) consisting of R5 483 635 (five million, four hundred and eighty-three thousand, six hundred and thirty-five rands) for loss of future earnings and R300 000.00 (Three Hundred Thousand Rands) for general damages;

3.         The amount R5 783 635 (Five Million, Seven Hundred and Eighty-Three Thousand Six Hundred and Thirty-Five Rands) shall be payable within 180 (One hundred and eighty) days from the date of this order. In the event the said amount is not paid within 180 days, the defendant shall be liable for the payment of interest on such amount, at 7% per annum, calculated from the date of the default to the date of payment;

4.         The Defendant is ordered to provide the Plaintiff with an undertaking in terms of section 17(4) of the Road Accident Fund Act, 56 of 1996 for all of the Plaintiff’s proven future medical expenses;

5.         The Defendant is ordered to pay the Plaintiff’s taxed, alternatively, agreed costs of the suit on a party-and-party, (High Court), scale, which cost shall include, but not be limited, to the following;

5.1  The costs consequent upon the employment of counsel, including all costs in order to attend to and finalise the trial on 06 June 2022;

5.2  The reasonable taxable qualifying, reservation and preparation fees of the Plaintiff’s expert witnesses, as well as the costs of all the reports;

5.3  The reasonable taxable costs and expenses consequent upon attendance of medico-legal examinations and pre-trial conferences;

6.       In the event that the costs mentioned in paragraph 5 are not agreed to:

6.1  The plaintiff shall serve notice of taxation on the Defendant;

6.2  The plaintiff shall allow the defendant (fourteen) 14 calendar days to make payment of the taxed costs;

6.3    In the event of the defendant defaulting on the payment of the costs as ordered, interest shall accrue on such outstanding amount at the rate of 9% per annum from the date of the allocutur to date of final payment;

7        The amounts referred to in paragraphs 2, 3 and 5 shall be paid to the plaintiffs’ attorneys, Komane and Associates Trust Account the details of which are as follows:

Account Holder:                 AM Komane and Associates

Name of Account:             First National Bank

Account Number:              [....]

Branch Name:                                 Centurion

Type of Account:               Trust Account.

8.                   A Trust shall be created by ABSA bank in the name of and for the protection of the minor child beneficiary S[....] M[....] ([....]) in terms of the attached Trust Deed marked “AH1” and the letter of consent by Trustee Mahalia Molefe, which is marked “AH2”;

9.       After the deduction of disbursements due to the Plaintiff’s attorneys and the deduction of the agreed attorney and client fees and the payment of R300 000.00 (Three Hundred Thousand Rand) to the Plaintiff, the net proceeds of the award will be transferred to the Trust established with ABSA referred to in paragraph 8 above. 

 

 

MBG LANGA

JUDGE OF THE HIGH COURT

 

 

DATE OF HEARING:                                            08/06/22

DATE OF JUDGMENT:                                         20/10/22

Appearances:

For the Plaintiff:                                                     Advocate D Thumbathi

Instructed by:                                                         Komane and Associates, Middelburg.

For the Defendant:                                                 No Appearance

 

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 20 October 2022

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