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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

NOTH WEST DIVISION, MAHIKENG

CASE NO: 357/15

In the matter between

B M obo E N                                                                                    PLAINTIFF

and

ROAD ACCIDENT FUND                                                            DEFENDANT

 

JUDGMENT

 

PETERSEN AJ

 

Introduction

[1] The plaintiff instituted an action for damages in her representative capacity of her minor child (“the minor child”) against the defendant in terms of the provisions of the Road Accident Fund Act, Act 56 of 1996 (“the Road Accident Fund Act”). The claim arises from bodily injuries sustained by the minor child in a motor vehicle collision on 02 August 2013 at approximately 14h00pm at or near Lefaragatlhe, Rustenburg. The minor child who was a pedestrian at the time of the collision was knocked down by a motor vehicle driven by the insured driver, Mr David Molatlhiwa Moate.

[2] The issue of liability (merits) was previously settled on 06 September 2017. The issue of quantum remains in dispute. On the first day of trial, 29 October 2018, general damages was settled in favour of the plaintiff in an amount of R400 000.00. The defendant has given a statutory undertaking in terms of section 17(4)(a) of the Road Accident Fund Act for the future medical and related expenses. The issue of loss of earning capacity/future loss of earnings remains in dispute.

 

Agreement on Joint Minutes of Experts and Issues in dispute

[3] The parties agreed to admit the following Joint Minutes of experts of the plaintiff and defendant respectively, without the need to lead oral evidence:

3.1 Orthopaedic Surgeons (Dr SK Mafeelane and Dr TS Bogatsu)

3.2 Neurosurgeons (Dr AB Mazwi and Dr P Miller)

3.3 Occupational Therapists (B Ngwato and S Moagi)

3.4 Industrial Psychologists (KB Ramusi and ME Kheswa)

[4] The joint minutes of the following experts were admitted, subject to leading evidence on issues on which the experts had not reached consensus. 

4.1 Clinical Psychologists (MEC Kalane and SF Mphuthi)

4.2 Educational Psychologists (TA Sepenyane and Y Segabutle)

[5] The Plaintiff called its Industrial Psychologist on two narrow issues, first, related to the entry of the minor child into the open labour market, and second, the applicable postulation if the minor child were to obtain grade 12 with a certificate exemption or grade 12 with no further qualification. The defendant after receiving instructions indicated that no issue would be taken with the plaintiff’s Industrial Psychologist on these issues.  

 

Issues of common cause

[6] The defendant settled compensation in respect of general damages and it is accordingly accepted that the minor child sustained the following serious injuries as agreed between the orthopaedic surgeons and neurosurgeons respectively:

6.1 an open fracture dislocation of the left ankle requiring a wound debridement, open reduction and internal fixation using k-wire fixation;

6.2 a laceration on the chin; and

6.3 mild head injury with no neuro-surgical intervention required and no increased risk of epilepsy.

[7] The clinical psychologists agree that the minor child demonstrated no history of learning disabilities prior to the accident and in fact passed each grade. No pre-morbid cognitive difficulties were evident. Post-accident they noted neuro-cognitive difficulties, postulating differing opinions on the cause.

[8] The educational psychologists considered the personal history and circumstances of the minor child. They essentially agreed that nothing was amiss in the minor child’s developmental milestones pre-morbid, with the child having passed each grade, a comparative analysis showing that at least one of her siblings had completed grade 12 and is currently engaged in university studies towards a degree. Pre-morbid and premised on the academic records of the minor child she would have been able to complete grade 12 in a mainstream school and obtain a pass with admission to degree studies. Post-accident the minor child failed grade 10 in 2017 and was repeating same in 2018.

[9] The occupational therapists agree that the minor child will benefit from occupational therapy and needs to be assessed by a physiotherapist and biokinetist and require assistive devices. Of significance is that she demonstrated limited functional capacity as a result of the orthopaedic injuries which may impact on employment opportunities. They opine that the minor child be exposed to the best possible education with the opportunity to achieve the highest level of education to broaden her employment opportunities.

 

The issues in dispute

[10] Whilst it is not in dispute that the neuro-surgeons alluded to a mild head injury in their assessment of the minor child, this injury along with the injury to the left ankle and the sequelae thereof formed the gist of the difference of opinion between the clinical psychologists.  Each maintains that the neuro-cognitive ability of the minor child post-accident has been impacted either by the mild head injury or the left ankle injury. 

 

The evidence on the merits

[11] The plaintiff relied on the evidence of its Clinical Psychologist, MEC Kalane, Educational Psychologist, TA Sepenyane, and Industrial Psychologist, KB Ramusi. The defendant relied on the evidence of its Clinical Psychologist, and SF Mphuthi and Educational Psychologist, and Y Segabutle.

 

The Clinical Psychologists

[12] Mr Kalane the clinical psychologist for the plaintiff opined that the neurocognitive difficulties and psychological sequelae inclusive of irritability and short temperedness of the minor child is symptomatic of a traumatic brain injury. Notwithstanding the fact that the neurosurgeons describe the injury as a mild head injury with no neuro-surgical intervention required he remained adamant that the head injury was a traumatic head injury. He downplayed the difference between a mild head injury and a mild brain injury, maintaining that it is simply semantics. He further maintained that in his view, albeit not being a pain specialist, that pain that may be occasioned by the left ankle injury would not affect the minor child’s cognitive functioning. He further held the view which was later echoed by the plaintiff’s educational psychologist that psychotherapy will not be of any benefit to the minor child.

[13] Mr Mphuthi for the defendant is qualified as a clinical psychologist and received training as a neuropsychologist. He has extensive experience dealing with children who have suffered head injuries. He opines that the minor child had not suffered a head injury of sufficient severity to have caused cognitive deficits but accepts that the minor child presents with neuro-cognitive deficits which could be attributed to pain and stress response as a result of the left ankle injury. In justifying his opinion he relies on the EEG-Connectivity test he conducted which places the minor child within normal parameters. Mr Mphuthi’s view is that there is a marked difference between a mild brain injury and a mild head injury and that the terms cannot be used interchangeably when they connote two different meanings. The hospital records make no mention of any brain injury or any amnesia or concussion suffered by the minor child.

 

The Educational Psychologists

[14] Ms Sepenyane for the plaintiff opined that pre-morbid the minor child would have been able to complete Grade 12 in a mainstream school with admission to degree studies and proceed to follow a chosen career path. She qualified this with reference to the family background of the minor child which was assessed and premised on least one of her siblings being at university. In her report of 12 March 2017, Ms Sepenyane was of the view that pots-morbid with the interventions recommended by other experts, the minor child would still be able to complete grade 12 but with admission to certificate studies at most. This viewpoint changed drastically in an addendum completed on 24 January 2018 where she concluded that the minor child would not achieve her pre-morbid ability. Post-accident she would best be placed in a remedial school as she would at best complete grade 11, alternatively that she placed at a TVET College to assist with her neuro-cognitive deficits, in which case she could obtain a National Certificate (vocational) which is equivalent to a grade 12 qualification. The basis of the drastic change in opinion was the grade 10 report of 2017 demonstrating that the minor child had failed Grade 10. She remained adamant that the minor child be moved to a TVET College.

[15] Ms Segabutle the defendant’s educational psychologist testified that pre-accident the minor child had performed well in the foundation phase but from the intermediate phase, the period during which the accident occurred and with the transition to multiple teachers there was a marked change in her performance. She was unable to comment on any learning difficulties in Grade 5 prior to the accident as the school report was not availed to her. She conceded that the mathematics marks did reflect inattentive behaviour which was evident even pre-accident. Ms Segabutle on assessment of the minor child utilising various tests found her to perform either below average to average and unable to complete tasks in the requisite time frames.

[16] Having regard to the high school reports, she opines that there are systemic problems with the school which is evident in the grade averages per subject of each learner. According to Ms Segabutle, these issues will be addressed when regard is had to current policy by the Education Department in the minor child’s current school phase, grade 10 to 12. Having already failed once in the phase, the minor child will be promoted until completion of grade 12 with intervention to ensure that she along with her fellow learners who are also performing below accepted standards complete grade 12. The intervention strategy commences in grade 11 and continues into grade 12 and includes, amongst others Saturday classes and school holiday camps. A modularization programme is in place to allow learners to sit twice for exams spread over two years. In appropriate cases concessions are granted for learners with identifiable learning deficits, which affords them extra time to complete examinations. Ms Segabutle diffesr Mrs Sepanyana on removing the minor child from a mainstream school to the TVET College on the basis that she already has grade 9, and holds the view that it would not be in her best interest when regard is had to the interventions available in a mainstream school. Further the minor child would be competing with learners at a TVET College who already have grade 11 or 12 qualifications with no interventions as in a mainstream school which may have a negative effect on her. A further negative of a TVET college is that fees would have to be paid as opposed to certain mainstream schools which are no-fee schools. The one concession readily made is that the minor child will lose two years before entering in to the labour market, the one having failed grade 10 and the other could be lost if modularisation is applied. She on the whole opines that the minor child has the potential to achieve grade 12 with entry to diploma studies. She maintains that notwithstanding the time lapse for medical interventions, ie psychotherapy and physiotherapy, these interventions along with interventions identified by the school she could complete grade 12 and a diploma.

 

The Industrial Psychologists

[17] Mr Ramusi for the plaintiff as indicated above was called to testify on two very narrow issues which his counterpart for the defendant agreed with. The essence of his evidence with which Ms Kheswa agrees and which is set out in their joint minute is as follows. In the pre-accident scenario, they agree that the minor child’s employment and career prospects but for the accident is related to the level of education she attains. They agreed ultimately that the minor child would achieve a degree or diploma. In the post-accident scenario, notwithstanding the difference in opinion of the educational psychologists they agreed on the career path on each of the postulations of the educational psychologists. The fact that the minor child had failed grade 10, inevitably means that she would enter the open labour market one year later. Any future delays would inevitably mean delayed entry into the labour market. On the two narrow issues he was called to testify about; the minor child obtaining a grade 12 with or without a certificate endorsement, he testified in the former instance she would most probably enter the labour market as a skilled worker in the formal sector at Paterson Level B3 with progression assumed until a ceiling at Paterson level C1/C2 at about age 40-45; whilst in the latter instance she would either enter the formal sector at Paterson level A3 with progression to Paterson level B3 at age 40-45 or enter the informal sector at the lower quartile of semi-skilled workers earning R25 000 per annum, progressing to R160 000 per annum in the upper quartile at age 40-50 years.

 

Discussion

[18] The issues in dispute in premised on differing expert opinions. In Schneider NO & Others v AA & Another 2010 (5) SA 203 (WCC), Davis J said at 211J – 212B:

“In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess.”

[19] Whilst in S v Gouws 1967 (4) SA 527 (E) 528D Kotze J said:

“The prime function of an expert seems to me to be to guide the court to a correct decision on questions found within his specialised field. His own decision should not, however, displace that of the tribunal which has to determine the issue to tried.”

[20] In considering the evidence of the clinical psychologists, the evidence of Mr Mphuthi called by the defendant, resonates with the court, when considered against the opinions of the other experts on the issues in dispute. The view of Mr Kalane that the reference to a mild brain injury and mild head injury interchangeably is simply semantics downplays the nature of such injuries. He opts to refer to the injury as a mild brain injury which is not borne out by the hospital reports and is inconsistent with the findings of the neurosurgeons that the injury is a mild head injury with no neuro-surgical intervention required and by implication no adverse sequelae. The view that the neuro-cognitive deficits can be attributed to mild head injury is not supported by collateral expert opinion. The neuro-cognitive deficits appear more likely on the expert opinion to be related, inter alia, to the left ankle injury and discomfort experienced as result of the injury with residual psychological sequelae following the accident resulting in short temperedness and irritability.

[21] Ms Sepenyane’s evidence evinces a sense of blowing hot and cold, with her postulations changing from her initial report to the addendum and her subsequent evidence in court. Ms Segabutle’s evidence, in my view paints a more realistic picture and encapsulates the best interests of the child. Notwithstanding the differing postulations, there is an abiding reality when regard is had to the high school scholastic records of the minor child in that she finds herself in a similar predicament to fellow learners in a school with clear systemic problems. The minor child in my view has shown resilience notwithstanding the bad hand life has dealt her with the accident. She has performed save for failing in grade 10, on a level on par and at times above her peers. The interventions which could be implemented both on a scholastic level and at a medical level, in my view would bode well to boost her confidence in achieving her full potential which the occupational therapists so acutely recognise.

[22] The industrial psychologists in my view have captured the potential of the minor child very succinctly in their initial reports and in their joint minutes. In my view, the evidence considered holistically demonstrates that the minor child, when regard is had to her pre-accident performance and when weighed against the achievements of her sister who is at university and the probable interventions post-accident, is more than capable of completing grade 12 with diploma entry. The court remains mindful of the fact that she has lost one year by failing grade 10 with an ever present likelihood of losing a further year if modularisation is identified based on her current academic performance.

[23] On the postulations of the Industrial psychologists on an attainment of grade 12 with diploma entry and having regard to the loss of potentially two years I am therefore satisfied that the minor child would in an uninjured state have progressed to degree studies and in the post-accident scenario she is more than capable with intervention of achieving a grade 12 with diploma entry.

[24] What remains to be considered is the contingencies that should be applied to the loss of earnings. The contingency deductions must make allowance for the uncertainties of life.

[25] In Southern Insurance Association v Bailey N.O. 1984 (1) SA 98 (A), the court at 117C-D said:

“The generalisation that there must be a ‘scaling down’ for contingencies seems mistaken. All ‘contingencies’ are not adverse and all ‘vicissitudes’ are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets, and ignore the rewards of fortune.”

[26] I can find no reason why the normal contingencies to be applied should not be 10% in the pre-morbid scenario and 25% in post-accident scenario. The calculations of the plaintiff’s actuary Robert Koch are accordingly apposite.

 

Order

[27] In the result is ordered that:

1. The Defendant is ordered to pay the Plaintiff R1 523 712.39 [One million five hundred and twenty three thousand seven hundred and twelve rand and thirty nine cents] which is made up as follows:

GENERAL DAMAGES                        R 400 000.00

LOSS OF EARNINGS                         R 1 123 712.39

TOTAL AMOUNT:                                R 1 523 712.39

in full and final settlement of the plaintiff’s claim into the plaintiff’s attorneys trust account, the details of which are as follows:

CHUEU ATTORNEYS TRUST ACCOUNT

Bank:                       ABSA BANK

Branch Code:          334547

Account no:             […]

TYPE:                      CURRENT ACCOUNT

2. Defendant is not liable for interest on the aforesaid payment if timeously made;

3. Defendant is ordered to furnish Plaintiff with as Undertaking in terms of section 17(4)(a) of the Road Accident Fund Act limited to 100% for the costs of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service to him or supplying of goods to him arising out of the injuries sustained by him in the motor vehicle accident which occurred on 02 August 2013, after such costs have been incurred and upon proof thereof;

4. The Defendant is ordered to pay Plaintiff taxed or agreed costs on the High Court scale as between party and party, which costs shall include the costs of counsel up to and including 25 January 2019;

5. There is no Contingency Fee Agreement.

 

 

_____________________________

AH PETERSEN

ACTING JUDGE OF THE HIGH

COURT OF SOUTH AFRICA

 

 

Appearances

For the Plaintiff: Adv. MI THABEDE

Instructed by: Cheu Attorneys

For the Defendant: Adv. WN SIDZUMO

Instructed by: Maponya Inc

Date of Judgment: 25 January 2019

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