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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Pretoria

 Case no.  22252/05                   DELIVERED: 19 JUNE 2007                              

                                   

                                                                       

In the matter between:

REGINAH SHIKWAMBANA obo FREDDY

 FULLBERT NGOBENI                                                                    Plaintiff

and

THE ROAD ACCIDENT FUND                                                       Defendant     

                                                                                                                                   

JUDGMENT

                                                                                                                                   

Judgment reserved:  08/06/2007

Judgment handed down: 19/06/07

LEGODI, J

1. INTRODUCTION

1. In this matter, the plaintiff, Ms Reginah Shikwambana, in her capacity as the mother and natural guardian of a minor,  F.F.N. (hereinafter referred to as the minor child), instituted civil proceedings against the Road Accident Fund (the defendant), in terms whereof the plaintiff claims for payment of a total sum of R1 770 000 as amended, made up as follows:

• Past and future expenses    = R70 000

• Future loss of earning           = R120 000

• General damages                 = R500 000

B.        BACKGROUND

 

2. On the 26 May 2004 at or near Mariveni – Letsitele district Ritavi, the minor child, who was a pedestrian at the time, was knocked down by a motor vehicle with registration number FFY 604 N.

3. As a result of the collision, the minor child suffered injuries and in particular, concussive head injury of a moderate degree which resulted in sequela.

4. During or about July 2005, the plaintiff instituted the present proceedings in terms whereof a total amount of R250 000 was claimed against the defendant.  On the 28 March 2007 a notice of amendment was served on the defendant’s attorneys in terms of which the plaintiff claimed a total amount of R1 270 000 against the defendant.  This amount was on the hearing of this matter and by agreement further amended as referred to earlier in paragraph 1 of this judgment.

5. When this matter was heard before me on Friday the 8 June 2007, by agreement, a bundle of documents marked Exhibit A was handed in.  Exhibit A consists of the following expects’ reports:

• Defendant’s neurosurgeon report by Dr Van Der Muelen.

• Defendant’s neuropsychological report by Dr Gibson

• Plaintiff’s neuropsychological, medico-legal report by Bev van Zyl

• Plaintiff’s industrial psychological report by P C Diedericks

• Certificate of value by Dr Robert J Koch

1. The contents of the reports and correctness thereof were not placed in issue.  The arrangement between the parties was that the reports should therefore be used for evidential value.  In the light of this arrangement, parties agreed that it was not necessary to lead any viva voce evidence by either party.

7. The defendant had conceded to the merits of the case.  The matter was therefore brought before me for determination of quantum and costs.  As regard future medical expenses, the defendant offered an undertaking in terms of Article 17.

C.  EVIDENCE AS PER REPORTS

8. Dr Van Der Meulen in his report found the minor child to have sustained concussive head injury which resulted in a sequela.  According to him the minor child’s loss of earnings would be very much dependant on his educational attainments.  For this purpose, Dr Meulen proposed a referral to an educational psychologist. 

9. Dr Gibson, a psychologist specializing in educational assessment identified diverse and significant difficulties faced by the minor child associated with the accident.  The minor child is said to display poor general store of knowledge and poor ability to benefit from repetition.  The mind shows variable attention at times and mini lapses which affect his learning and general task efficiency.  He displays some areas of severe difficulty, including verbal and non verbal problem solving as well as numerical reasoning, all of which are considered to be higher cognitive abilities.  These areas are said to be so weak that it could safely be predicted that the minor child would have significant difficulty with school progress.  However, B Van Zyl, a neuropsychologist, estimates the minor child’s pre-morbid intellectual ability, based on the results of her testing to have been low average to average prior to the accident.  She is also of the opinion that the minor child had the intellectual ability to probably attain a Grade 12 level of education.  Having considered a number of factors, other reports, including the fact that current education opportunities and overall educational environment have improved dramatically over the last ten years, P C Diedericks, came to the conclusion that the normal entry level to the labour market and progress made by people holding a Grade 11 or Grade 12, be used for calculation of the minor child’s likely pre-morbid earnings.  These are:

Qualification                  Entry level                Career ceiling

Grade 11                          Paterson A2              Paterson B3

Grade 12                          Paterson A3              Paterson B3/4/5

These figures are reported per annum as follows:

Paterson A2;

Basic salary:        R39 400 - R55 800

Total package:    R56 800 - R83 900

Paterson A3;

Basic salary:        R44 100 - R60 000

Total package:    R61 400 - R83 900

Paterson B3

Basic salary:        R66 500 - R88 200

Total package:    R94 200 - R124 200

Paterson B4/5

Basic salary:        R79 200 - R106 800

Total package:    R114 200 – R156 400

10. Using the formula referred to above, but excluding general contingencies, Dr Koch in his actuarial report having regard to the fact that the minor child’s life expectancy has not been affected, came to the conclusion that earnings escalated in time with inflation to age 65 to be:

Results:                          Uninjured                 Injured           Net value

Grade 11                          R                                 R                     R

Future income                 1 432 955                  924 236          508 319

Results:                          Uninjured                 Injured           Net value

Grade 12                          R                                 R                     R

Future income                 157 3906                   924 236          649 670

11. Regarding general damages, Dr Van Der Meulen describes the pain and suffering as of a moderate degree.  The minor child is said not to have lost any amenities due to injuries sustained in the accident. He has suffered no disfigurement as a result of the injuries sustained in the collision.  On semi-structured interview, and of relevance the following information was provided to Dr Gibson:

The minor child does his homework under pressure from his grandmother.  He complains of being tired if asked to do a job.  He has fainted three times when he has gone to climb the mountain with other children.  Absences and epilepsy have not been diagnosed or noted.  He does not sleep during the day.  He sleeps well.  He is active during the day and tired by the time he goes to bed.  He sometimes goes to the spaza shop and understands money.  He will report if he has spent any extra money.  He is not very difficult to discipline and will apologize in order to avoid punishment.  His educators are not complaining about learning problems.

4. ISSUES RAISED

12. The issue relating to future medical expenses having been settled, that is, a certificate in terms of Article 17 having been offered and accepted, there are two issues that remain to be considered.  These relate to the amount which must be paid for loss of earning and for general damages.

E.  DISCUSSIONS, SUBMISSIONS AND FINDINGS

13. The initial general damages claimed as amended, was R500 000.  During the discussion, counsel for the plaintiff submitted that R350 000 should be found to be appropriate.  Counsel for the defendant suggested around R300 000.  A trial court has a discretion in deciding on the quantum for general damages.  Such a discretion to be exercised judicially having regard to all relevant factors for example, pain and suffering, disfigurement and amenities of life.

14. In his submission, counsel for the plaintiff urged me to have regard to pages 21, 22, 34 and 43 of exhibit A, that is, bundle of documents handed in by agreement.  Pages 21, 22 and 34 relate to comments by Dr Gibson.  I have earlier in this judgment under paragraph 11 dealt with some of the comments by Dr Gibson.  In my view, there are no major negative indicators conveyed to Dr Gibson during the semi structured interview.  For example, the child forgets what he has been instructed to do and will return and ask for the instructions to be repeated.  This, in my view, does not have a relevant bearing on the issue relating to general damages.  This might have a bearing on his educational achievement.  It is in any event, not uncommon to experience this kind of behaviour relating to children of the age of the minor child.  He is said not to want to play with his cousin, who is seven months old.  He just runs away around the back of the house and plays with his own friends.  According to Dr Gibson, this sounds like a normal reaction of nine year old child.  In my view, therefore, this will have no significant bearing on his loss of amenities of life.  He is said to eat very little, despite encouragement.  Quite very often children of the age of this minor child find it hard to eat unless forced to do so.  I do not think that the fact that he eats very little could be attributable to the accident.  Secondly, I do not think that such less eating could play a significant role in the assessment of general damages.  Since the accident, he has become erratic, unless lifted.  Sure, this should have a bearing on general damages and in particular loss of amenities of life.  He may have a hearing problem as he returns for repeated instructions.  This could have a bearing on both his educational achievement and thus loss of earning and on his loss of amenities of life and thus general damages.  For example, he may not be in a position to participate equally in sporting activities due to his poor hearing.  He has fainted three times when he has gone to climb the mountains in the rural area where he leaves.  Although he has not been diagnosed of presence of epilepsy, the fainting could be indicative of possible presence of epilepsy in the future. This in my view, is a factor to be taken into consideration.  I should be concerned about the fainting which could have a bearing on the minor child to participate in any physical or sporting activity on an equal footing with his peers.  In my view, the fact that he does not nap during the day or that he sleeps at about 20h00 to 21h00 is not indicative of any problem calling for consideration in the assessment of general damages.  Remember, according to Dr Van Der Meulen, the minor child has not lost any amenities due to the injuries sustained in the collision, lastly, he suffered no disfigurement.

15. However, Bev van Zyl, on pages 43 to 44 deals with current complaints as divulged to her by the minor child’s grandmother.  He is said to be a fussy eater.  This I do not think should have a bearing on general damages.  The minor child is said to be having a problem with fainting, especially when it is hot.  Remember, Tzaneen area where the minor child is staying is often hot.  The minor child is said to be afraid of moving cars.  Since the collision he is said to be getting allergic reactions, his nose bleeds and his face gets swollen and he gets a rush for about two weeks.  He gets headaches, almost everyday especially when he plays with the other children and gets angry.   He has nocturnal enuresis and wets the bed every night.  He is said to sleep much more than before and it is difficult to wake him up.  All these factors, should indeed having a bearing on general damages.  Whilst the plaintiff is entitled to general damages, the issue is the amount which must be awarded for general damages.  Having regard to all these reports, an amount of R250 000 in my view, should be found to be appropriate.

16. I now turn to deal with loss of earning.  The first issue is whether such loss of earning should be on the basis that the minor child would attend school up to Grade 11 or up to Grade 12.  I am in total agreement with the industrial psychologist, P C Diedericks,  that the current education opportunities and overall educational environment have improved dramatically over the past ten years for previously disadvantaged people.  It would be unfair and unrealistic in my view, to match up randomly the possible educational level or qualifications of the children of today with that of their parents who were previously greatly disadvantaged educationally.  According to P C DIedericks’ estimates, the minor child’s qualification would probably have been higher than that of his father and mother and that he would study or have studied until at least Grade 10 but, more probable to Grade 11 or Grade 12.  Remember, his mother holds a standard seven qualification.  His mother’ sister holds a standard nine qualification.  I am prepared to accept that the minor child would study or would have studied till up to Grade 12.  His loss of earning should therefore be calculated on a Grade 12 qualification.  Quantification of his loss of earning based on the formula referred to in paragraph 9 of this judgment, is calculated by Dr Koch, indicated in paragraph 10 above as follows:  Uninjured R1 573 906, Injured R924 236 and Nett value R649 670.  Counsels for the plaintiff and defendant did not agree about the percentage deductions to be made for contingencies which had not been included in the figures given by Dr Koch.  Counsel for the plaintiff suggested 80% and 20% contingency consideration whilst counsel for the defendant suggested 75% and 25% respectively.  I cannot describe the minor child’s injuries and impairment as severe.  Neither of the experts is suggesting this.  Contingencies as suggested by the counsel of the plaintiff in my view, does not accord with the opinions expressed by the experts, that is, the risk involved is pushed a bit high.  I am inclined to agree with counsel for the defendant regarding percentage contingencies to be considered by this court.  For this reason without making the actual calculation, in this judgment and using the formula as suggested, the plaintiff should be entitled to be paid R949 370 for loss of earning capacity of the minor child.

4. COSTS

17. As indicated previously in this judgment, the plaintiff accepted the contents and correctness of the experts’ reports sanctioned and submitted by the defendant.  Mainly, counsel for the plaintiff in his submission relied on these reports.  On the other hand, the defendant produced nothing to rebut the suggestion and opinions by the plaintiff’s experts as in exhibit A, that is, bundle of documents handed in by agreement.  However, the defendant still was reluctant to ensure that every effort was taken to reach a settlement with a view to curtail legal costs.  I have been made to believe that despite all efforts made by the defendant’s attorney and counsel to persuade the defendant to settle the matter, this has fallen onto deaf ears.  It is most unfortunate that despite ailing financial situation of the defendant, very often attempts are not made in earnest by the defendant to avoid costs even where by diligence is possible to do so.  Time and again, the Road Accident Fund, is reminded that it is dealing with public funds.  I am not suggesting for a moment that the Road Accident Fund ought to be settled in each and every case.  In the instant case for example, the defendant conceded merits of the case 100%.  Secondly, expert reports as per exhibit A were by agreement handed in to serve as evidence.  I must express my displeasure to the defendant’s attitude in this regard.  Most fortunately, however, counsel for the plaintiff did not ask for a punitive costs order against the defendant and for this reason I do not intend making such an order.

G.  CONCLUSION

18. A draft order has been prepared and handled in for the convenience of the court.  I am greatly indebted thereto.  Consequently I make the following order:

18.1          The defendant to pay the plaintiff the sum of R1 199

370.00 made up as follows:

18.2          General damages = R250 000

18.3          Loss of earning capacity = R949 370.00

4. The said amount shall be paid to the Guardian Fund after all the

expenses, fees and costs shall have been paid.

4. The defendant shall furnish to the plaintiff a certificate in terms

of section 1 article 17 (4)(a) of the Road Accident Fund Act 56 of 1996 for the injuries of the minor child sustained in the collision that occurred on the 26 May 2004.

4. The defendant shall pay the plaintiff’s costs on a party and party

scale including costs of two counsels, costs of the experts, preparation and qualifying fees if any, to the plaintiff’s experts whose reports are in possession of the defendant.

LEGODI M F

                                                          JUDGE OF THE HIGH COURT

KLAGSBRUIN DE VRIES & VAN DEVENTER

(Plaintiff’s Attorneys)

3^rd Floor, Hatfield Plaza

1122 Burnett Street

HATFIELD, PRETORIA

TEL:  012

T M CHAUKE ATTORNEYS

(Defendant’s attorneys)

3^rd Floor, Eastwing

Sammy Marks Square

312 Church street

PRETORIA

Tel no.  012 326 8711/2

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