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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

4/11/2015

Case Number: 39475/11

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

 

In the matter between

 

TEKI ELISA MATYANA                                                                                         PLAINTIFF

 

and

 

ROAD ACCIDENT FUND                                                                                 DEFENDANT

 

Heard on: 7 August 2015

Delivered on:  04 November 2015

 

JUDGMENT

 

HUGHES J

 

[1] This is a stated case and most of the facts are common cause. The issue of liability was settled at 100% in favour of the plaintiff.

[2] The plaintiff is the mother of the minor child, Nkosana Wilson Ngcongolo, who was involved in a motor vehicle collision on 5 August 2006. The child is currently 15 years of age having been born on 16 February 2000.

[3] The injuries sustained by the child are common cause and are set out below:

'8. As  a result  of  the said  collision,  the minor  child  (NKOSANA)  sustained:  severe  bodily injuries consisting of

8.1. Severe closed head injury characterised by:

8.1.1. Impaired memory and concentration;

8.1.2. Poor mental efficiency;

8.1.3. Persistent debilitating headaches;

8.1.4. Global intellectual depletion.

8.1.2. Neuro- behavioural deficits, involving:

8.1.2.1. A change in personality;

8.1.2.2. Aggressive behaviour;

8.1.2.3. Short temperedness;

8.1.2.4. Irritability.

8.2. Fracture to the proximal radial;

8.3. Brain oedema with left sided pneumothorax;

8.4. Degloving injury of the left leg;'"

[4] Various experts were appointed by both the plaintiff and the defendant. The experts of the same disciplines completed joint minutes in order to assist the court.

[5] What emanates from these expert reports is that the child sustained a mild head injury as a result of the collision. He suffers from continuous  headaches, fatigue, tires easily and is very irritable and restless. The occupational therapist, Ms D Van Wyk,  concluded  that  the  minor  child  is below  visual  discrimination,  below visual sequential memory and sequential memory, his below age spatial relations, visual closure and figure closure were as a result of the collision. This caused a developmental delay   and has affected his school work especially his speed.

[6] Further, as a consequence of his injuries he has cognitive disturbances with poor mental functioning, poor concentration, memory problems and poor problem solving.

[7] Both Dr Y Matlala, for the defendant, and Mr M Kumalo, for the plaintiff, as educational psychologists completed a joint minute that highlighted that which follows.

[8]  The only scholastic information provided by the plaintiff is that the minor child was 6 at the time of the collision in grade 1. That year of the collision he had passed grade 1, however, he failed grade 2 the following year. The plaintiff  notes deterioration in the minor child's school performance after the collision. His concentration and memory difficulties impacted negatively on his learning ability.

[9] With the deficits recorded, the experts are in agreement that he is a candidate for remedial education. However, I must hasten to add that at the time that this matter was heard, the minor child was still in a mainstream school.

[10] The experts are in agreement that had the collision not occurred, the child would have completed grade 12 as the minor child's brother had passed grade 12 and no learning difficulties were recorded. The difficulty that the educational psychologists noted is that he had just commenced school when the collision took place and there is no scholastic records pre-accident with which to compare.

[11] That which could be concluded by the two experts, pre-accident, is that  he would have completed grade 12 and would have been employable. The experts agree, post-accident, that without assistance and intervention, the minor child would not pass grade 12 and thus he would have to find employment in the unskilled labour market.

[12] Both educational psychologists deferred to the industrial psychologist to comment on the child's future career prospects. Only one industrial psychologist was instructed, that being Dr Sugreen, for the plaintiff. This doctor concluded that the minor child,  prior to the collision, would have, at the least, been able to complete grade 12 and entered the labour market as semi-skilled, Patterson level 81 to progress to level C1/2 at ages 40-45. Now that the collision has occurred, he will most likely not complete Grade 12 as he is already a candidate for remedial intervention. He will have to enter the labour market as an unskilled labourer.

[13] This was the stated case.

[14] The plaintiff's counsel, Adv. Kgomongwe,  argued  that  general  damages should be awarded in the amount of R400 000. 00. This, he said, would be in line with that which was awarded in Panane v RAF (7702106) [2007] ZAGPH 397 (1 August 2007).  In this case, the minor child was a four year old when injured. She suffered femur, fracture of the pelvis and laceration of the fore head. There were personality changes, continuous headaches, forgetfulness, she got easily fatigued and could no longer perform her chores. The court awarded R567 000.00 as the current value for general damages. Adv. Kgomongwe sought this court to discount the other injuries in Panane that the child in this case did not endure and award the suggested amount of R400 000.00.

[15] It is trite that a court, in the determination of a quantum for general damages, must have regard to previous comparable cases. See De Jongh v Ou Pisani 2004 (2) All SA 565 (SCA) at 6821. An award made will be fair if it is constant with previous cases of similar facts and law. However, it must be borne in mind that such an approach is never mechanically applied. A court has to exercise its discretion based on the peculiar facts of the case at hand.

[16] Though there were no concessions made by the Defendant that the award for general damages should be R400 000.00 as proposed by the Plaintiff, I will be failing in my duty if I do not adopt the caution sounded out by the SCA in De Jongh.

[17] In exercising my discretion, I take into account the nature of the injuries sustained the minor child and the effect thereof on his day-to-day life, present and future including the effect on his educational and vocational prospects.

[18] In Makupula v Road Accident Fund 2011 (684) QOD48 (ECM), a minor five year old boy who was injured presented the following synopsis of injuries and after effects. He had a mild to moderate diffused axonal concussive brain injury. Neurocognitive deficits with attention deficit hyperactivity disorder, memory dysfunction, uncooperative and aggressive behaviour, poor concentration, poor executive functioning and poor scholastic performance. The court awarded an amount of R399 000.00 in current terms.

[19] In Malle/a v Road Accident Fund 2013 (6C3)QOD 17 (GNP), the synopsis of the injuries and after effects were:

' Plaintiff sustained a small haematoma to her forehead and soft tissue injuries of the neck. After the accident she was taken to hospital where she received painkillers and was discharged. She suffers from headaches, shoulder and neck pains, cannot perform certain household duties and does not take part in sport no longer as a result of her injuries. Plaintiff sustained a loss of work capacity of 3% and a 3% to 4% chance of requiring cervical surgery as a result of the collision exists. Extra effort is needed by Plaintiff to maintain her employment.'

[20] In Mallela, an award of R180 000.00 in current terms was awarded.

[21] The neurosurgeon, Dr. L.F. Segwapa, characterises the minor child's injury as a mild head injury with no loss of consciousness and no neurophysical or neurocognitive impairment.

[22] In the circumstances of this case, the  injuries  of  Makupula  supra  are far severe than that sustained by this minor child.

[23] In another case of this Division, Matthys  NO  v Road Accident  Fund  2013 (6A4) QOD 273 (GNP), the synopsis of the injuries and after effects are recorded as follows:

'Head. Severe brain injury. Also minor orthopaedic injuries. Admitted to hospital with a Glasgow Coma Scale of 10115. CT scan showed diffuse brain swelling with point bleeds in both hemispheres. Unconscious and semi-conscious for a period of 19 days and confused for a further  11 days. Left with significant cognitive deficits.  The list of his (permanent) sequelae is extensive and he has insight into his condition. He has undergone a change in his disposition.. he has become forgetful, angry, temperamental, unsociable, and struggles to express himself clearly. His memory has a/so become poor. When at home he is unclean and unhygienic and isolates himself from family and friends. He suffers  from  fatigue  and  low enerqv levels. He experiences difficulty concentrating and has, as a result, become less productive in the workplace. He will not be able to sustain his current employment and it is unlikely that he will be gainfully employed again.'

[24] In Matthys, an award of R556 000.00 in current terms was made.

[25] The two later cases relate to adult injured claimants,  even so, their  injuries and the sequelae assist to demonstrate the severity, or non-severity, as opposed to this minor child's injuries. I am mindful that the minor child is still in the course of his developmental stages.

[26] The mild injury in this instance without any neurophysical and neurocognitive impairment puts the minor child in that arena similar to Malle/a. Taking into account the age of the minor child and the developmental milestones still to come, the effect on the minor child's current and future educational and vocational prospects, I am of the view that an award of R250 000.00 be awarded for general damages.

[27] There is no real dispute between the parties regarding the basis of calculation of the loss of earnings/earning capacity. The defendant's representatives take issue with the contingencies applied. In the circumstances, I have examined the basis suggested by the plaintiff's counsel as set out in paragraph 12 supra and concur that in these circumstances set out above and postulated by Dr Sugreen, the more realistic approach, as calculated by the actuary, would be the one set out below:

a. Uninjured, the minor child would  have completed  Grade  12 and had the potential to earn R1 204 389.00

b. Injured, the minor child's earning potential is limited to R339 721.00

[28] The plaintiff suggests that a contingency deduction of 40% be applied to the uninjured loss earnings, whilst a 30% contingency deduction is applied to the injured loss of earnings, having regard to the collision.

[29] The defendant's counsel argued that a 50% contingency deduction be applied to the uninjured loss of earnings. He submitted that it should be taken into account that there are no scholastic reports to compare the minor child scholastic capabilities. In addition the minor child's behaviour and capabilities at school could be as a result of the minor not liking school at all, as reported by the mother of the minor child. Lastly, the neurological finding is that the child had a mild traumatic injury with no effect.

[30] The defendant placed reliance on the report of Dr Sugreen where she records under background in her report at page 8 para 6.1 the following:

'In terms of family background and social history, it appears that Nkosana hailed from a below average socio-economic background. He was raised by his parents. His father did piece jobs gardening and currently works as an Assistant Carpenter, and his mother is a housewife. His sister is unemployed, his brother is currently in Creche, and his maternal half-brother works as a factory labourer. None of Nkosana 's relatives have matric and most of them have secured jobs in the non-corporate, unskilled sector of the market. His maternal and paternal aunts are either Housewives, or work as Domestics or Cleaners. His maternal uncles work as Farm Labourers and one works for a Milling Company. His paternal uncle is self-employed as a Carpenter.'

[31] I am mindful of the fact that children today have done and will continue to do much better in education and in the employment sphere than their parents. In this case, what cannot be ignored is that the experts have qualified that prior to the collision and with financial assistance, the child could have progressed. In this case, it is evident that none of the child's siblings or relatives has attained matric and all are employed in the non-corporate and unskilled sectors.

[32] I acknowledge in the calculation of the actuary, he commences by starting the child on a Paterson 81 level, which is a semi- skilled level to end at a skilled level C 1-C2 by age 40-45. With regards to the calculation I also recognise that the earnings applied are that of corporate earnings. In addition I take into account Dr Sugreen's comments on the family back ground set out above.

[33] In these circumstances, I am of the view that a 50% contingency deduction is fair in the circumstance, having given the child the benefit of the doubt in respect to the Paterson levels of earnings applied, in light of the background of the child. The contingency applied to the injured, having regard to loss of earnings was not contested and rightly so, I might add.

[34] Thus, it will reflect the following, with regards to the uninjured loss of earnings. The amount of R1 204 389.00, less the 50% contingency,  which  amounts  to R602 194.50, whilst the injured loss of earnings of R339 721.00,  with  the contingency of 30% applied, will amount to R237 810.00. The total of the two amount being R840 004.50.

[35] It has been agreed that the plaintiff will be provided with an undertaking in terms of section 17 (4) to cover 100% of the child's future hospital and medical expenses.

[36]  Consequently,  the  Defendant  is  ordered  to  pay  the  Plaintiff  the  sum  of R1 090 004, 50 made up as follows:

General damages                                      R250 000.00

Loss of earnings                                        R840 004.50

                                                        Total  R1 090 004.50

[37] The order duly granted is set out below:

1. The defendant is to make a payment in full and final settlement of the plaintiff's agreedIproven damages for the sum of R1 090 004.50, on or before 30 November 2015.

2. The Defendant shall provide an undertaking to the plaintiff in terms of the provisions of section 17(4) (a) of the Road Accident Fund Act, 56 of 1996, for 100% of the costs of the future accommodation of the minor  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 collision on the 5th August 2006 after such costs have been incurred and upon proof thereof.

3. The Defendant is ordered to pay the plaintiff's taxed or agreed party and party costs on the High Court scale which costs shall be inclusive of the reasonable preparation and reservation fee (if any) for  all the  Plaintiff appointed experts.

4. The Defendant is ordered to pay the amount referred to in paragraph 1 and 3 of this order into the trust account of Plaintiff's attorney (MAKHUBELA ZACHARIA ATTORNEYS)

5. In the event that costs are not agreed upon the Plaintiff agrees as follows:

(a)  The Plaintiff shall serve the notice of taxation on the Defendant's attorney of record; and

(b)  The Plaintiff shall allow Defendant ?(seven) days to make payment of the taxed costs.

6. It is recorded that the fee agreement between MAKHUBELA ZACHARIA attorneys and the plaintiff that is regulated by the Contingency Fee Act 66 of 1996 is not compliant and is therefore declared invalid.

7. MAKHUBELA ZACHARIA attorneys shall charge the Plaintiff for the professional services rendered, the normal attorney and own clients fees. Such fees shall not exceed 25% of the capital referred to in paragraph 1.

 

___________________

W. Hughes

Judge of the High Court

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