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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

“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: RAF363/2015

REPORTABLE

In the matter between:-

J S                                                                                                                              Plaintiff

And

ROAD ACCIDENT FUND                                                                                      Defendant

JUDGMENT

GUTTA J.

 

A. INTRODUCTION

[1] Plaintiff instituted an action against the Road Accident Fund (RAF) in her representative capacity as the mother of her minor child, M S (M) for damages sustained in a motor vehicle collision that occurred on 15 February 2015 at Mabopane.

[2] It is alleged that a motor vehicle with registration number […]573 GP, driven by one Seduma Jabu (the insured driver), collided with a motor vehicle with registration number […]573GP in which vehicle M was a passenger. M sustained injuries as a result of the collision.

[3] At the onset of the trial, counsel for plaintiff and defendant informed the Court that the following issues had been settled between the parties:

a) Merits were settled 100%, in favour of plaintiff;

b) Defendant made an undertaking to pay 100% of all M’s future medical costs; and

c) Defendant was to pay general damages in the amount of R350 000.00.

[4] The only issue for determination is M’s loss of earning capacity.

 

B. COMMON CAUSE

[5] The following are common cause facts:

5.1 M was 2 years and 6 months old when the accident occurred.

5.2 M was enrolled at a crèche for a month when the accident occurred.

5.3 M sustained the following injuries in the collision:

a) head injury;

b) depressed skull fracture;

c) multiple scalp and left arm abrasions.

[6] The parties agree that the following experts are ad idem with each other and that their viva voce evidence will not be necessary, namely:

a) Orthopaedic Surgeons.

b) Occupational Therapists.

c) Neurosurgeons.

d) Clinical Psychologists.

e) Industrial Psychologists (Tentatively).

f) Plastic and Reconstructive Surgeon.

C. JOINT MINUTES

[7] The parties relied on the joint minutes of the various experts. These joint minutes are summarized hereinbelow as they curtail the issues between the parties.

[8] The neurosurgeons, Dr Segwapa and Dr Mazwi agreed on the following:

a) M sustained a mild head injury and scalp abrasions;

b) There is no need for further neurosurgical intervention;

c) The risk of epilepsy is not increased;

d) M’s longevity has not been affected.

[9] The plaintiff’s and defendant’s clinical psychologists, Katjene and Mphuthe agreed on the following:

a) M’s post-morbid challenges include post concussion symptoms in his functioning indicative of neurocognitive, emotional and behavioural challenges which have affected his social and academic functioning.

b) M has reached maximum medical improvement with regards to his neuropsychological status and functioning.

c) M’s overall clinical presentation and performance can be attributed to a combination of neurocognitive deficits as well as emotional, psychological and behavioural challenges post-accident.

d) M has been rendered vulnerable to long term challenges at emotional, behavioural and neurocognitive levels.

[10] In the joint minutes of the educational psychologists dated 17 February 2017, Tau and Van den Heever:

10.1 Pre-accident they agreed that, M’s developmental milestones were normal. M grew up as a healthy child with no serious illnesses.

10.2 Post-accident, they agreed that M was assessed using Junior South African Individual Scale (JSAIS) and the results reveal that he is within average range and that his concentration and attention fluctuates. They agreed that his current complaints are headaches, anger and aggression.

10.3 Tau notes that it was reported that:

a) M developed epilepsy in 2015. He had 3 episodes, the last one was in May 2016.

b) M is forgetful.

c) He gets angry and suffers from nose bleeds.

d) He is moody.

[11] On the 23 and 24 March 2017, Tau and Van den Heever filed a second joint minute wherein they said the following:

Pre-accident

11.1. Van den Heever said that, one can assume that M would probably have performed better than his parents and may have been able to complete Grade 12 considering the current educational system in South Africa.

11.2 Tau is of the opinion that, “M was an average learner considering his post-accident 3 cognitive highest scores. In the present assessment his highest scores range from above to average scores and also that his developmental milestones were reported normal. Based on the above M was going to reach his Grade 12 studies in the mainstream school should the accident in question not have happened. He may then have furthered his education with a diploma course”.

11.3 Tau and Van den Heever agree that, “At the time of assessment it was reported that M has twin sisters who were 13 years old. One sister was a grade 8 learner and one was repeating grade 7. He has a brother who was 7 years old and who was a grade 2 learner. The father completed grade 11 and sells vegetables at a supermarket.

Tau notes that: “M’s mother highest level of education is grade 10 and unemployed”. Van den Heever noted that: “M’s mother completed grade 9 and is unemployed. M resides in a 2 bedroom brick house with his family. The house is equipped with electricity and water is obtained from a tap in the yard. He shares a room with his siblings”.

Post-accident

11.4 Tau notes that, “M developed epilepsy in 2015 and had 3 episodes and the last one was in May 2016 and medically that has not been attended to as reported by his mother. Van den Heever notes that “no epilepsy was reported to her and deference is given to the Neurosurgeons in this regard”.

11.5 Van den Heever notes that, “he needs to be re-assessed when he completed grade 4 (intermediate phase) to determine if cognitive difficulties develop or presents when he is in formal school”. “His current pre-academic assessment indicates that he currently has the potential to complete grade 12 as he was successful in completing the above expectations for most of his tasks”.

11.6 Tau notes that, “It is unlikely that M will manage to reach Grade 12 in a mainstream school without any difficulties due to this emotional and cognitive profile. Future assessment will be useful to determine learning difficulties at school”.

11.7 Tau notes that according to M’s mother, the practitioners at crèche called M’s mother complaining about M’s behaviour, Tau noted further that:

· The principal Ms Khosana telephonically on 2016/10/27 confirmed that M is aggressive and fights with other children.

· He becomes easily angry.

· M shows potential in his class work, but that depends on his moods to participate and cooperate. He can decide not to co-operate and refuse to do tasks.

· According to Dr Matthews Katjene in his report indicated that Ms Khosane indicated that M has become slow in learning path since the accident in question and his general behaviour and demeanour/attitude has also drastically changed.

· Post-morbidly Tau suggested that scarring and epilepsy might also be contributing to his negative behaviour as well as his self-concept. M will benefit from psychotherapy/play therapy due to his emotional challenges”.

[12] The industrial psychologists, Katjene and Kheswa prepared two joint minutes. The second was an addendum after receiving the joint minutes of the plaintiff and defendant’s educational psychologists (Mr Tau and Van den Heever). In their addendum report they state the following:

Pre-morbid

12.1 They note Van den Heever’s opinion that “assumptions can be made that he would probably have performed better than his parents and may have been able to complete Grade 12”, and Tau’s opinion that “he was going to reach his Grade 12 studies in the mainstream school, should the accident in question not have happened, he may then have further his education with a Diploma Course”.

12.2 They agree that the level of education, M would have reached would determine his employability in the labour market. If the Court agrees with Tau’s opinion they agree “in the event of acquiring a recognised Diploma (NQF level 06), M would likely have entered the open labour market earning a level of job complexity and remuneration commensurate with Paterson Grade B3/B4 and progressed to that of C31/C4 by age 45 where he would have reached his career ceiling”. If the Court agrees with Van den Heever’s opinion, they agree “in the event of acquiring a recognised Grade 12 qualification, it could have taken M about 2 – 3 years to secure work. For the next 3 – 5 years he could have opted for any fragmented work available, earning on a Paterson level A1/A2. After this period he could then have entered the labour market on the lower quartile of Paterson A3 level, reaching his occupational ceiling at age 45 years earing at Paterson B3 media quartile, basic salary”.

12.3 They agree he would have worked up until retirement age of 65 years.

Post-morbid

12.4 They agree that there are neurocognitive challenges in M’s functioning.

12.5 They agree that M’s overall clinical presentation and performance can be attributed to a combination of neurocognitive deficits as well as emotional, psychological and behavioural challenges which have affected his social and academic functioning.

12.6 They agreed that he reached maximum improvement with regard to his neuropsychological status and functioning.

12.7 They agree that M’s emotional and psychological challenges are most likely to impact his academic performance in the long run. It is reasonable to postulate that M is thus rendered functionally vulnerable within the labour market. Because of the difference in opinion between the educational psychologists, they agreed that the level of education he would reach will determine his employability in the labour market.

12.8 They further acknowledged Success Moagi, the occupational therapist’s opinion that should M’s neurocognitive symptoms persist, he may be a candidate for less cognitive demanding occupations in the open labour market, and might be a vulnerable competitor in the open labour market with regards to competitiveness, efficiency, and effectiveness compared to uninjured peers. They noted that the expert recommends a follow-up evaluation at the age of 18 years when M becomes ready to enter the open labour market. They further noted that Thabane Ncwane, the occupational therapist reported that M scored within severely impaired to profound impairment with perceptual evaluation. This would have a negative impact with his ability to learn in the classroom. It would affect his ability to read and write within the classroom and at home when doing homework. His concentration levels and memory were below average. He will need extra assistance with regards to his school performance from a tutor or remedial teacher to reach his maximum potential within the school context.

12.9 They opined that should the Court agree with Tau’s opinion, then they agree, that “without a Grade 12 formal qualification, M will be employable in the unskilled categories of employment. He would be able to progress to the upper quartile band when he reached 45 years. According to Koch (2018), unskilled workers earn between R8 700 – R25 500 – R73 000 per year. They said if the Court agrees with Van den Heever’s opinion, they agree that with a matric certificate, it could take M about 2 – 3 years to secure work. For the next 3 – 5 years he could opt for any fragmented work available, earning on a Paterson level A1/A2 (basic salary). After this period he could then enter the labour market on the lower quartile of Paterson A3 level, reaching his occupational ceiling at age 45 years earing at Paterson B3 median quartile, basic salary”.

[13] In the joint minutes compiled by the occupational therapists, Ncwane and Moagi:

13.1 Ncwane noted the discrepancies between the experts’ opinions regarding the risk of developing epilepsy. His future occupational choice will be further curtailed if he develops epilepsy.

13.2 They agreed that M will benefit from occupational therapy and physiotherapy.

13.3 They agreed to defer to an industrial psychologist for quantification of M’s possible loss of earning.

13.4 Ncwane notes and concurs with the conclusion by the educational psycholoigist, Tau who states that, “The results obtained from the different tests, the interview, collateral information and clinical observations indicate that M’s future educational and occupational/work life and thus earning potential has been compromised by his physical, cognitive and emotional difficulties. As such his career options and ability to earn an income one day, has been curtailed, for which he should be compensated, as calculated by the industrial psychologist”

Ncwane notes and concurs with the conclusion of Dr Katjene, who performed neuropsychological evaluation that, “He presents with moderate and severe neurocognitive challenges which are linked to accident-related injuries that are likely to impact his future’s scholastic performance”.

13.5 They both agree that M would benefit from assistive devices and equipment and that M presents with increased educational needs and will require remedial teaching and therapy to meet the requirements of the educational system.

13.6 They agree that M suffered a loss of amenities retating to the accident and the injuries sustained.

13.7 They recommended that M be provided with additional educational support in order to assist him in reaching his maximum potential.

13.8 They agree that:

“the client’s educational and future vocational opportunities are limited and render him an unsuitable candidate for the open labour market occupations that require formal training at tertiary institutions. He would not meet the neurocognitive and neurobehavioural abilities to realize his future aspirations. It is agreed that he would meet the demands of an FET College to pursue other career paths”

“It is further agreed that the client’s future work prospects may be limited to those of a semi-skilled level”

“It is agreed that an educational psychologist and occupational therapist should support the client in making any future occupational decisions whilst an industrial psychologist should be consulted for an opinion regarding the impact of the accident on the client’s future learning potential and the projected loss of income associated with the injuries sustained in the accident, if any”

 

D. EVIDENCE

[14] The first witness for plaintiff was Audrey Patricia Tau (Tau), an educational psychologist since 2009. Prior to that she was a teacher for 30 years. She prepared her report in 2016. She said M was accompanied by his mother during the consultation. The mother confirmed the accident and the injuries that M sustained as confirmed in the RAF 1. She told her that since the accident, M, has the following:

a) headaches;

b) is forgetful;

c) behavioural problems and is aggressive and does what he wants to do.

[15] Tau conducted 3 assessments namely, cognitive, emotional and educational, using the JSAIS for children aged 3 to 8 years. M was 4 years 1month old at the time. She said currently there are no tests for young children who are 3 to 8 years in the black language. Van den Heever used the same test as she did. She said she considered collateral information in compiling her report while, Van den Heever did not comment on M’s pre-accident.

[16] She said post-accident, M’s intellectual capacity is average level and with some tests and scores there were deficits for example, Visuomotor integration, concept formation, verbal expressive language, spatial orientation, attention, concentration, memory, and auditory processing.

[17] M’s cognitive function is at average level rating. He has cognitive potential and the ability to learn. However she said you may have a child with an average and superior level but when it comes to academic performance, there are distractibility issues such as concentration and behaviour.

[18] M’s mother told her that M had 3 episodes of epilepsy. She said if it continues it may affect his learning and she deferred to a neurosurgeon or neurologist. She opined that it is unlikely that M will reach Grade 12 in a mainstream school without any difficulty due to his emotional and cognitive profiles. She spoke to his teachers and they reported that he is bullied at school and he gets angry. This behaviour will affect M’s learning coupled with cognitive and scholastic deficits. One can close the gap in a special or remedial school and she recommended that M be put into a remedial school.

[19] She was asked to comment on Van den Heever’s opinion that as there were no pre and post-accident academic records, that M should be re-assessed at the end of Grade 4 should cognitive impairment develop and that Van den Heever opined that M’s test results suggest that he has the potential to complete Grade 12 as he was able to successfully complete expectations for a child his age. She replied that M should be assessed at foundational and not intermediate level. He should be assessed now at formal education level and not in Grade 4 because if there are problems at this stage they should be addressed now, and it will reduce problems in the higher grades. She opined that M requires immediate remedial intervention.

[20] Under cross examination she admitted that she made an assessment without the neurosurgeon report and she deferred to a neurosurgeon. She said when she consulted with M he was at a crèche day care. She contacted the teacher and the principal at the crèche and also conducted tests. She said M was unwilling to work and was uncooperative unlike a normal child who is not distracted and follows instructions. Intervention may assist but it will depend on the therapist and the frequency of the sessions.

[21] When she assessed M he was in Grade 00 in 2016, she contacted the school and spoke to the Grade R educator. He progressed from Grade 00 to Grade 0 and to Grade 1 in 2018. The teacher reported that M is aggressive and fights with other learners and bleeds through the nose, he is short tempered and has learning difficulties.

[22] She said she assessed M in totality, she looked at his history, type of birth, developmental milestones, language and family. She said the family history collateral information was important to establish M’s behaviour at school. It is important to look at his concentration and memory. If his concentration is poor, it will affect his performance. With the educational assessment he performed below his level of age because of the behaviour and emotional challenges.

[23] The defendant called Sunette Van den Heever (Van den Heever), the educational psychologist. She holds a masters in educational psychology, honours in B.Education, certificate in forensic psychology and certificate in psycho legal work. She is employed as an educational psychologist in Pretoria.

[24] She consulted with M when he was 3 years and 11 months with the assistance of a Tswana interpreter. She perused the neurosurgeon report and saw that the CT scan was normal and it was a mild head injury. She said the reports of the occupational therapist and neurosurgeons are important because M was very young when he was involved in the accident.

[25] She considered M’s pre and post morbid, complications at birth, development, personal circumstances, families’ education level and school records. She denied that she did not consider collateral information and said she spoke to M’s mother, obtained the hospital records and other expert’s reports which are all collateral. She said, M’s academic records are important. When she consulted with M he was at a day care. Day care is more structured stimulation to a crèche. She was not provided with the contact details of the owner of the day care centre. She said M’s mother did not give her the name of the school that he is presently attending or the name of his teacher.

[26] She conducted the same test as Tau, namely the JSAIS which is the test for standardised English and Afrikaans speaking children aged 3 to 8 years. She said her and Tau’s test results correlate and that M has average IQ. The only difference is that Tau found his short term memory slightly lower than normal and Van den Heever one month before Tau tested M found that he performed well and that M also added his own narration.

[27] She said she considered M’s hearing, listening and processing skills and found that M could follow instruction and his behaviour was age appropriate. At the stage she and Tau assessed M, he was not used to formal education. She said remedial school is to assist children who cannot read or write and the department won’t accept children into remedial school if they are 3 to 5 years old. There were no difficulties with M’s visual motor and perception ability. Pre-academic, he was age appropriate. He could count and knew his shapes. Children with brain injury have challenges with, numeracy, visual perception, potential to read, write and recognise numbers. She couldn’t test him academically as he couldn’t read or write. The test results showed that he has the potential to complete Grade 12 based on his average performance.

[28] She said with a mild head injury there was no long term sequelae.  She did not find that the accident affected M’s potential significantly. When asked whether it is fair to assess M based on the information received on that day, she replied that, “its speculation because he was not attending school” and that his parents are refusing to allow her to interact with the school and teachers and did not allow her access to M. She said he needs to be re-assessed at the end of Grade 4. The CT scan showed mild head injury and his development was age appropriate. Children with difficulties present with problems at Grade 4 where there are different teachers for each subject. Van den Heever could not find any significant cognitive deficits. M’s mother also said his speech developed normally. According to his age he should be in Grade 1.

[29] Under cross examination she was asked when did she request information from M’s mother. She replied that it was the previous Monday when they were in Court. She also said she enquired from M’s mother at Court what Grade he was in and she said M was at school but couldn’t say if he was in Grade R or Grade 1. She said she requested M’s academic records in 2017 and 2018. She said she didn’t find anything to suggest that M needs learning support. She said Tau was under the impression that M was epileptic but this was dealt with by the neurosurgeon who said the risk of epilepsy is not increased. Epilepsy was ruled out.

[30] She reiterated that from the profile that she and Tau found, they did not find cognitive, behavioural or emotional difficulties. The only issue that M’s mother reported to her was that he is aggressive. She observed M as he sat in Court from 10am until 4pm and there were no difficulties. If children can sit still, it is unlikely that they have behavioural difficulties. She said that she and Tau used the same test and came to the same results but their conclusions are different. Tau’s test results do not correlate with her finding that problem areas were identified. Although the test is not standardized to M’s age and cultural background, it is used as guideline and one look at the spread and based on this, she make a finding.

[31] In response to the Court’s question she said the only difference in her and Tau’s test results, are those set out below which did  not affect the global picture:

a) Short-term memory Tau’s result was just below average and her test results were normal.

b) Word association – M scored a 7 with her and 4 with Tau. Tau explained that in some instances M did not want to respond. Other test scores that test the same component were the same.

c) Informed discrimination – there was only a slight difference between her and Tau’s results.

E. SUBMISSIONS

[32] Counsel for plaintiff, Mr Moneri, submitted that Van den Heever did not consider the clinical psychologist’s report that M’s post-morbid, has neurocognitive challenges and that both psychologists agreed that M, has been rendered vulnerable. Plaintiff’s occupational therapist opined that M will require remedial teaching and therapy. Van den Heever said M will not require learning support while Defendant’s clinical psychologist and occupational therapist both support plaintiff’s version that M will require learning support. Van den Heever agreed that the tests conducted on M are standardized for English and Afrikaans speaking children and that they rely on assumptions. The test conducted between Tau and Van den Heever differ in respect of memory and motor visual.

[33] Mr Moneri stressed that defendant’s expert did not obtain collateral information. He said although defendant filed a notice in terms of Rule 35, they did not pursue further discovery. Mr Moneri abandoned any reliance on epilepsy. He submitted that defendant’s expert evidence is improbable when considering the mountain of evidence that M’s capability has been affected. He referred to plaintiff’s actuarial calculation and submitted that the defendant’s actuary is not helpful as he did not make any postulations. Mr Moneri submitted that there is no authority to support a postponement of case until M reaches Grade 4 and that this will defeat the interest of justice.

[34] Counsel for defendant, Ms Sidzumo submitted that the issue is whether M can be assessed at this point in time and whether the matter should be postponed to a future date. She submitted that Van den Heever tried to obtain collateral information from the mother and the school but it was not forthcoming. She submitted that plaintiff failed to discharge the onus to prove that M will suffer loss of earnings. She conceded that the clinical psychologist found that M will be vulnerable to long-term challenges at emotional, behavioural and neurocognitive levels.

[35] She stressed that Tau did not have the neurosurgeon report and did not provide a basis for saying that M’s emotions will affect his employability. Emotional challenges can be catered for by intervention. She persisted that M should be reassessed when he is in Grade 4 and again at 18 years of age.

[36] The two central issues in dispute between the educational psychologists, Tau and Van den Heever are:-

a) Pre-accident – Tau opines that M would have completed Grade 12 and proceeded to do a diploma. Van den Heever postulated that he would have completed Grade 12.

b) Post-accident – Tau opined that he will not complete his Grade 12 in a main stream school because of his emotional and cognitive profile which will render him compromised in the workplace. Van den Heever did not find any cognitive deficits and opined that M can complete his Grade 12 and would not require learning support.

 

F. EVALUATION

[37] The evidence of an expert witness is required whenever his/her skill is greater than that of the Court and when the Court can receive appreciable assistance from the opinion of the witness[1]. The expert witness is required to provide a foundation for his opinion and support his opinion with valid reasons. In Menday v Protea Asssurance Co Ltd[2], Addelson J said:

“In essence the function of an expert witness is to assist the Court to reach a conclusion on matters on which the Court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the Court that, because of his special skill, training or experience, the reasons for the opinion which he expresses are acceptable. There are dangers inherent in expert testimony. Nonetheless the Court, while exercising due caution, must be guided by the views of an expert when it is satisfied of his qualification to speak with authority and with the reasons given for his opinion. However eminent an expert may be in a general field, he does not constitute an expert in a particular sphere unless by special study or experience he is qualified to express an opinion on that topic. The dangers of holding otherwise – of being overawed by a recital of degrees and diplomas – are obvious; the Court has then no way of being satisfied that it is not being blinded by pure “theory” untested by knowledge or practice. The expert must either himself have knowledge or experience in the special field on which he testifies (whatever general knowledge he may also have in pure theory) or he must rely on the knowledge or experience of others who themselves are shown to be acceptable experts in that field”.

[38] The SCA in Michael and another v Linksfield Park Clinic (Pty) Ltd and another[3], relying on the decision by the House of Lords in the Scottish case of Dingley v The Chief Constable, Strathelyde Police 200 SC (HL) 77 at paragraph 36 said “ what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the decision of the House of Lords, the medical negligence case of Bolitho v City and Hackrey Health Authority [1997] UICHL 46”.

[39] A claim for future loss of earnings/earning capacity requires:

39.1 a loss of earning capacity as a result of a damage causing event; and

39.2 an actual patrimonial loss of income as a result of the abovementioned loss of earning capacity, in which case either the one or the other may be claimed for the same amount[4].

[40] Thus, the onus is on the plaintiff to prove that M’s earning capacity has been compromised as a result of the accident and then to prove that his patrimony has been diminished as a result of the compromised earning capacity.

[41] In Rudman v Road Accident Fund[5], the Court said the following:

“where a person’s earing capacity has been compromised, that incapacity constitutes a loss, if such loss diminishes the estate (Rumpff CJ in the above quotation from Dippenaar’s  case) and “he is entitled to be compensated to the extent that his patrimony has been diminished” (Smalberger JA in President Insurance Co Ltd v Mathews). (The emphasis is from the trial Judge’s judgment). In his view. Rudman’s disability giving rise to a diminished earning incapacity was proved, but the evidence did not go further and prove that his incapacity constituted a loss which diminished his estate.

I believe that this conclusion is correct. The fallacy in Mr Eksteen’s criticism is that it assumes that Rudman suffers loss once he proves that his physical disabilities bring about a reduction in his earning capacity; thereafter all that remains is to quantify the loss. This assumption cannot be made. A physical disability which impacts upon capacity to earn does not necessarily reduce the estate or patrimony of the person injured. It may in some cases follow quite readily that it does, but not on the facts of this case. There must be proof that the reduction in earning capacity indeed gives rise to pecuniary loss”.

[42] The evidence of the education psychologists should not be considered in isolation. It is necessary for the Court to consider the totality of the evidence which includes the joint minutes filed by the various experts.

[43] Both plaintiff and defendant’s clinical psychologist, Katjene and Mphuthe agree that M’s overall clinical presentation and performance can be attributed to a combination of neurocognitive deficits as well as emotional, psychological and behavioural challenges post-accident and that he has been rendered vulnerable to long-term challenges at emotional, behavioural and neurocognitive levels. They agree that funds should be set aside for psychotherapy to address the current and future psychological and behavioural challenges. They agree that M has reached maximum medical improvement with regards to his neuropsychological status and functioning.

[44] Plaintiff and defendant’s occupational therapists, Ncwane and Moagi agreed that M will benefit from occupational and physiotherapy and defer to the industrial psychologist for quantification of M’s possible loss of earnings. They agreed that M’s educational and vocational opportunities are limited and render him an unsuitable candidate for the open labour market occupations that require formal training at tertiary institutions. They agreed that his future work prospects are limited to the semi-skilled level.

[45] The industrial psychologists, Katjene and Kheswa acknowledge the clinical psychologists aforesaid opinion and further take cognisance of the fact that given M’s age at the time of injury which is in a critical developmental stage, he is highly susceptible to brain injury and developing neuropsychological fall-out which may only manifest at a later time. They agree that there are neurocognitive challenges and M’s emotional and psychological challenges will most likely impact his academic performance/progress in the future. That it is reasonable to postulate that M is rendered functionally vulnerable within the labour market.

[46] Although Tau and Van den Heever in their joint minutes dated 17 February 2017 agree that M is within the average range, they both agree that his concentration and attention fluctuates and they noted the complaints to include aggression. Van den Heever opines that M needs to be reassessed at Grade 4 to establish if cognitive difficulties develop or present itself at formal school, while Tau opines that M’s concentration and behavioural problems will affect his academic performances.

[47] From the aforegoing, it appears that the clinical psychologist, occupation therapist and industrial psychologist are ad idem with Tau that M, post-accident has neurocognitive, emotional and behavioural challenges which affect his social and academic functioning and render him functionally vulnerable within the labour market. The enquiry does not stop there and the question remains whether M’s emotional, behavioural and cognitive challenges can be catered for by intervention and whether the plaintiff proved a loss which diminished M’s estate. In other words, did the plaintiff prove a reduction in M’s earning capacity giving rise to a pecuniary loss. The occupational therapist deferred to the industrial psychologist’s opinion regarding the impact of the accident on M’s future learning potential and the projected loss of income associated with the injuries sustained in the accident. The industrial psychologists agree that the level of education M will reach will determine his employability within the labour market. They postulated two possible scenarios regarding M’s future work prospects based on Tau and Van den Heevers respective opinions. The level of education that M will reach is found in the evidence of the educational psychologists.

[48] The first issue to consider is M’s pre-accident intellectual ability, Tau opined that M was an average learner. She based this finding on M’s post-accident cognitive test scores and said that his highest scores ranged from average, high average to above average. She said based on the above, “the writer is of the opinion that M was going to reach his Grade 12 studies in the mainstream school should the accident in question not have happened. He may then have furthered his education with a diploma course”. (own emphasis)

[49] From the aforegoing, it is clear that her finding that M could reach his Grade 12 studies and further his studies with a diploma was based solely on his post-accident test results. Unlike Van den Heever who said the following:

“In determining M’s pre-morbid functioning one needs to take his milestone development, family and personal background, educational environment as well as environmental aspects into account. Available information suggests normal birth and milestone development; normal speech- and language development, as well as adequate fine and gross-motor development till the age of 2 years. According to available information, prior to the accident he was a healthy and active baby.

In terms of his family background and environment it appears that M’s mother completed Grade 9, was a domestic worker and is currently unemployed. His father completed Grade 11 and works as general worker at the supermarket. He has twin sisters of whom one is in Grade 8 and the other one is repeating Grade 7. He has a brother who is in Grade 2. M lives with his family in a 2 bedroom house which is equipped with electricity, and water is obtained from a tap in the yard. The children share a bedroom and there are 6 people living in this house. Socio-economic circumstances are poor”.

[50] I am of the view that Tau’s opinion that M would have furthered his education with a diploma is not founded on logical reasoning. In her own words she say M “may” have furthered his education with a diploma. Hence her opinion is based on speculation. Accordingly, I accept that M’s pre-accident would have completed Grade 12.

[51] Turning to M’s post-accident intellectual ability, Tau and Van den Heever conducted the same tests on M and arrived at the same test results, namely that M is within the average range. Tau in her report states “in the present assessment, the overall cognitive tests results reveal that, his intellectual functioning is within the average range”. However in Tau’s report she identifies “possible problem areas that will hamper his ability to learn in a formal learning situation”, namely. (own emphasis)

· “attention and concentration;

· neuro motor integration;

· verbal concept formation;

· verbal expressive language;

· auditory processing and memory;

· Spatial orientation; and

· Emotional challenges”.

[52] When considering that both Tau and Van den Heever had similar test results, then I agree with Van den Heever that, Tau’s finding that M’s intellectual level is of average level does not support the conclusions she arrives at, that M, is “unlikely to reach Grade 12 in a mainstream school without difficulties due to this emotional and cognitive profile”. Tau relies on alleged collateral information she received from M’s school which constitutes hearsay evidence and cannot be relied upon. Tau was not in possession of the neurosurgeon’s report when she formulated her opinion and defers to a neurosurgeon to check the severity of M’s head injury. She also relied on information she received from M’s mother that M had 3 epilepsy episodes. The neurosurgeon’s report ruled out epilepsy and said M suffered a mild head injury. Plaintiff’s counsel conceded that they don’t rely on epilepsy.

[53] Tau states in her report as stated supra, that the areas she identified are “possible problems” areas. ”Possible problems” fall below the required benchmark of proof on a balance of probabilities. Tau’s opinion is in my view not well found. I am of the view that more weight can be attached to Van den Heever’s opinion as they are based on a strong foundation, namely the outcome of the test results which she and Tau agreed upon. Van den Heever also considered the neurosurgeon and occupational therapist’s reports. She also stated that M has progressed from Grade 00 to Grade 0 and now to Grade 1 which is consistent with both Tau and Van den Heever opinion that M is of average intelligence.

[54] Tau’s evidence is also contradictory as she states under pre-accident that M’s post-accident cognitive tests scores “ranged from average, high average to above average”. She relied on this fact to postulate that M will complete Grade 12 as well as a two year diploma. There is no evidence that M’s emotional, behavioural and cognitive problems identified by the experts have affected his ability to complete his Grade 12. Tau was also not able to state whether M could complete Grade 12 with remedial intervention and said it depends on the learner.

[55] Plaintiff actuary, Munro notwithstanding the fact that they rely on the industrial psychologists’ opinion that M is rendered functionally vulnerable within the labour market, calculated M’s loss in their first report dated 1 June 2017 on the basis that both future uninjured and injured income are the same, namely that M completes his matric with Grade 12 and 2 year diploma, and progresses to Paterson B3/B4 and then at age 45 to Paterson C3/C4 at R510 500 until retirement age 65.  They suggested that losses be addressed via contingencies, namely uninjured 15% on future income and injured at 25% on future income, arriving at a total loss of income of R514 150.00. I cannot rely on this report for the following reasons. Pre-accident, I accept that M would have completed Grade 12 and not progressed to a diploma and post-accident, there is no evidence that M would after completing his Grade 12 complete a two year diploma. This is also not plaintiff’s case.

[56] In a second report dated 8 December 2016 prepared by plaintiff’s actuary, Munro, the actuary prepared its calculation for future injured income from information he received from the attorney that M will not earn any income in the open labour market. This calculation is flawed as there is no foundation for the contention that M suffered a total loss of capacity. This scenario was not opined by any of the experts. Hence I have not attached any weight to the second actuary report.

[57] Defendant’s actuary, Rosewood also considered the joint minutes of the industrial psychologists dated 15 February 2015 and the occupational therapists. They said the industrial psychologists, Kheswa stated that M’s pre-accident ability was unclear and his earnings would be in accordance with the level of education he attains. Hence they did not do any pre-morbid calculations. With regards to post-morbid scenario, they said that as the occupational therapist said M is functionally vulnerable and recommended a follow up education at age 18,  they were not sure that “functionally vulnerable” implies a loss of earnings and therefore did not do a calculation. There is in my view merit in this statement as it doesn’t follow from proof of physical injury, which impaired the ability to earn an income, that there was in fact diminution in earning capacity[6].

[58] I accept the proposition by Van den Heever that M pre and post-accident would complete his Grade 12. As stated supra, the experts are in agreement that the level of education that M reaches will determine his work prospects. Both plaintiff and defendant’s industrial psychologists postulated a scenario based on the Court accepting Van den Heever’s opinion and said that M after obtaining his matric would take about 2-3 years to secure work earning on a Paterson A1/A2 and thereafter progressing on a lower quartile Paterson A3 level.

[59] Accordingly, I am of the view that plaintiff failed to discharge the onus of proving actual patrimonial loss.

 

G. ORDER

[60] In the result,

1) Defendant is to furnish plaintiff with an undertaking in terms of Section 17(4) of the Road Accident Fund Act 56 of 1996 for the costs, limited to 100% of the future accommodation of plaintiff in a hospital or nursing home for treatment or the rendering of a service or the supplying of goods to him after such costs have been incurred and on proof of payment hereof.

2) Defendant to pay plaintiff an amount of R400 000.00 for general damages;

3) Defendant to pay plaintiff’s cost incurred prior to 26 February 2018, on a party and party basis on a High Court scale.

4) Plaintiff’s claim for future loss of income is dismissed.

5) Plaintiff is to pay defendant’s costs of suit from 26 February 2018, on a party and party basis on the High Court scale, including the qualifying fees of the following defendant’s experts and the preparation of their medico legal reports:

i. Dr. SF Mphuthi (Clinical Psychologist)

ii. Dr. Moipone Kheswa (Industrial Psychologist)

iii. Dr. Sunette Van den Heever (Educational Psychologist)

iv. Dr. Success Moagi, occupational therapist; and

v. Dr. Mazwi (Neuro Surgeon)

vi. Dr. HL Moloto (Orthopedic Surgeon)

vii. Rosewood Techonologies (Actuaries)

 

 

________________

N. GUTTA

JUDGE OF THE HIGH COURT

 

 

APPEARANCES

DATE OF HEARING: 24 APRIL 2018

DATE OF JUDGMENT: 28 JUNE 2018

ADVOCATE FOR PLAINTIFF: ADV MONERI

ADVOCATE FOR DEFENDANT: ADV SIDZUMO

ATTORNEYS FOR APPLICANT: MOKHETLE INC.

(Instructed by Dibakwane Attorneys)

ATTORNEYS FOR RESPONDENT: MAPONYA INC.

 

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