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IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED.

Case No: 6991/15

 

In the matter between:

NOMPUMELELO MHLONGO                                                                        Plaintiff

and

THE ROAD ACCIDENT FUND                                                                       Defendant

JUDGMENT

SK HASSIM AJ

[1]         This is an action for compensation for bodily injuries sustained by the plaintiff in a motor vehicle collision on 20 July 2014.  There was no appearance for the Road Accident Fund at the hearing of the action, which by then had become an invariable practice.  Needless, to say that this was highly unsatisfactory and unduly burdensome. Not only on the court, but on a fair-minded counsel acting for the plaintiff who was now confronted with the obligation which rests on counsel moving for an ex parte order in motion proceedings.  The court is burdened with having to ensure that notwithstanding the defendant’s absence at the trial that due consideration is given to the reports which had been delivered by the defendant. Apart from everything else this presented evidentiary problems; the defendant’s experts’ reports had not been confirmed by the author thereof under oath.  Fortunately, in this instance the parties’ joint minutes were filed in the case of some of the experts. 

[2]         The plaintiff was 17 years old and a scholar when she was involved in the motor vehicle collision (“the accident”).  Amongst others, she sustained a head injury.  A CT brain scan showed a fracture at the base of the skull.  It has been found that she sustained a moderate to severe brain injury. 

[3]         The defendant’s liability to compensate the plaintiff has been settled.  The defendant has undertaken to pay to the plaintiff 100% of her proven or agreed damages.  In terms of an ordered issued on 21 February 2020 the defendant agreed to provide an undertaking in terms of section 17 (4)(a) of the Road Accident Fund Act, Act No 56 of 1996 (as amended).  In addition to this the defendant has agreed to pay to the plaintiff R900 000.00 for general damages.

[4]         The only issue that is outstanding is the quantum of the plaintiff’s past and future loss of earnings. 

[5]         The plaintiff did not lead any evidence and I am called upon to determine the issue with reference to the reports which have been filed by the plaintiff and the joint minutes.

[6]         Amongst others, the parties delivered reports by an industrial psychologist.  The plaintiff delivered a report by an educational psychologist; the defendant did not. 

[7]         The plaintiff was in Grade 8 when she was involved in the collision.  She went on to complete Grade 12.  She had aspired to pursue a career in tourism.  On the evidence the plaintiff would have obtained a diploma to qualify herself as a tour guide.

[8]         It is evident from the expert reports filed on behalf of the plaintiff that the injuries sustained by the plaintiff have resulted amongst others in cognitive impairment.  She suffers from severe headaches on a daily basis, has lost her hearing in the left ear and her memory is impaired.  In the opinion of the clinical psychologist the injuries which the plaintiff suffered had an “incapacitating impact on [her] neurocognitive, social, emotional and physical functioning. In view of the foregoing, it is clear that [according to the clinical psychologist] that [the plaintiff] might experience difficulties in pursuing her studies in the manner and pace …she desires due to the deficits mentioned …”.

[9]         This is consistent with the opinion of the defendant’s neurosurgeon that “there is objective evidence of mental disturbance” and that “serious neuropsychiatric sequelae [are] likely to affect [the plaintiff’s] social and work life”. 

[10]     A battery of tests had been conducted.  One of them showed that the plaintiff’s intellectual functioning was borderline, and her perceptual reasoning fell within the average range, but her processing speed fell in the below average range.  Her short- term auditory memory fell in the borderline range.  This could be a reflection of the plaintiff’s inability to learn informally.  The plaintiff’s memory and concentration had been impacted upon specifically.  It was opined that the injuries left the plaintiff’s abstract reasoning ability, her memory, concentration and attention and planning ability impaired. 

[11]     Based on the reports filed by the parties’ respective experts the following is common cause:

(a)          The plaintiff’s work choices have been reduced due to the accident.

(b)         Her compromised cognitive and psycho emotional functioning as well as the headaches she suffers from regularly, have reduced her competitive participation in the open labour market. 

(c)          She will have difficulty in carrying out work that requires complex or advanced cognitive skills. 

(d)         She will have difficulty in holding a position which presents medium, heavy to very heavy demands.  She seems more suited to sedentary type work with an accommodating employer.

(e)          As a result of the accident, the plaintiff is considered a vulnerable employee in the open market when compared to able bodied people and uninjured peers.

(f)           It is unlikely that the plaintiff will be able to reach her pre-accident learning and vocational potential.

(g)         Prior to the accident, the plaintiff would probably have been able to work until she reached the normal retirement age of 65 depending on her health and her employer’s retirement policy.

(h)         The plaintiff is now unlikely to progress beyond grade 12 (NQF level 4).  This will be the case even if they were funds for tertiary education because it is unlikely that she will be able to cope with the demands of tertiary education.  

(i)           With a grade 12 education, the plaintiff would only be employable in an unskilled to a semi-skilled position.  In this regard she will probably enter the labour market as an unskilled worker which would require her to be physically fit.  However, it is unlikely that she will be able to cope with a physically demanding job and this would negatively impact on her employability in the open labour market.  

(j)           In the event of the plaintiff securing employment, despite her limitations , she will start earning at the lower quartile of unskilled corporate workers and progress to median quartile of the same band when she reaches the age of 45 with applicable inflationary increases thereafter.

(k)         The plaintiff’s employment potential will further be compromised by her psychological and cognitive difficulties.  To this must be added the possibility of the plaintiff developing epilepsy.  If the plaintiff develops epilepsy, she will be precluded from hazardous work modalities such as working on heights, operating machinery, as well as working in hot weather.

(l)           The accident has had a negative impact on the plaintiff’s overall functional capacity.  She is therefore likely to struggle to enter the labour market and sustain employment.  

(m)       The probability that the plaintiff will experience extended periods of unemployment for most part of her work life is high.

[12]     In assessing the loss of earnings suffered by the plaintiff, the plaintiff’s counsel urged me to disregard the opinion of the defendant’s actuary and to decide the issue on the opinion expressed by the plaintiff’s actuary.  There is merit in this considering that the defendant’s actuary did not have the benefit of a report from an educational psychologist, whilst the plaintiff’s actuary did.

[13]     Of the scenarios postulated by the plaintiff’s actuary, the plaintiff’s counsel submits that I should lean towards the scenario that the plaintiff would have obtained a degree in tourism as opposed to a diploma.  I pause to discuss the evidence in this regard. 

[14]     The plaintiff’s educational psychologist expressed the view that pre-accident the plaintiff was probably a child of average intellectual ability and that it was expected that she would have passed and qualified to study for “a diploma or a degree”.  I can find no facts in her report to support the latter.  This is not surprising considering that the educational psychologist qualified her statement by expressly stating that she deferred to an industrial psychologist on the plaintiff’s pre-morbid career prospects.  Unfortunately, the industrial psychologist overlooked that the educational psychologist deferred to her opinion on whether the plaintiff would attain a degree or a diploma.  The industrial psychologist did not form an opinion independent of the educational psychologist.  Consequently, I am unable to find that the plaintiff would have obtained a degree.  I am though satisfied on the evidence that she would have attained a diploma which would have qualified her as a tour guide. 

[15]     The defendant’s industrial psychologist holds the view that pre-accident, the plaintiff would not have had the financial means to study for a diploma.  This conclusion is based on the plaintiff’s post-accident financial constraints.  She contends that if the plaintiff lacks financial resources now, she would have confronted the same obstacle pre-accident.  I do not agree: The plaintiff could have worked part-time to finance her studies.  She could also have obtained a bursary or other financial support.  I am not persuaded that a lack of means would inevitably have resulted in the plaintiff not pursuing tertiary education and obtaining a diploma.  In my view appropriate deduction for contingencies can cater for this.

[16]     The normal and widely accepted deduction for contingencies is 5% for past loss of earnings and 15% for future loss of earnings. 

[17]     However, insofar as future loss of earnings on the plaintiff’s uninjured income is concerned, I cannot ignore that a lack of financial means may have been an obstacle to the plaintiff pursuing a diploma.  However, I must also consider that she may have received third party funding in the form of a bursary or funding akin to it. 

[18]     I am of the view that a 20% deduction for contingencies for future loss of earnings on uninjured income (as opposed to the accepted 15%) is fair and reasonable in the circumstances. 

[19]     This leaves for me to determine an appropriate deduction for contingencies future loss of income on injured income scenario.  The plaintiff’s counsel suggested a 25% contingency deduction for future loss of earnings on injured scenario.  Considering the limitations on the plaintiff’s ability to secure employment, I am satisfied that the prospects of the plaintiff securing employment are remote. 

[20]     The plaintiff’s actuary is requested to prepare a revised calculation and in doing so a 20% contingency should be allowed for future loss on the uninjured scenario. 

[21]     The actuary’s report is 20 February 2020.  The plaintiff is directed to obtain an updated calculation of the plaintiff’s loss on the first scenario postulated by the plaintiff’s actuary (namely that the plaintiff would have obtained a diploma) taking into account the contingency deductions assessed by me and to prepare a draft order reflecting compensation for past and future loss of earnings.  Section 17(1) of Act 56 of 1996 as amended by Act 19 of 2005, and particularly s 17(4)(c), with effect from 1 August 2008, places a limitation on the amount of compensation payable by the Fund in respect of claims for loss of income. The updated calculation must also take into account this limitation. 

[22]     In summary, I assess deductions for contingencies as follows:

(a)               5% on the plaintiff’s past loss of earnings “uninjured scenario”.

(b)              20% on plaintiff’s future loss of earnings on the “uninjured scenario”; and

(c)               25% on plaintiff’s future loss of earnings on the “injured scenario”.

[23]     The plaintiff is requested to prepare a draft order providing for the following:

(a)               Payment of past and future loss of earnings as recalculated by the actuary on the basis set out in paragraphs 17 and 18 above.

(b)              Payment by the defendant of costs.

(c)               Payment by the defendant of interest at the mora rate on the sum of the compensation 14 days after the draft order is made an order of court.

S K HASSIM AJ

Acting Judge: Gauteng Division, Pretoria

                                                                                                          23 October 2020

 

Appearances:

Plaintiff’s counsel: Adv. I Hlalethoa

 

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