Kotze v Road Accident Fund
| Jurisdiction | South Africa |
| Judge | Mashile J |
| Judgment Date | 17 April 2014 |
| Docket Number | 2011/46163 |
| Court | South Gauteng High Court, Johannesburg |
| Hearing Date | 10 February 2014 |
| Citation | 2014 JDR 0899 (GSJ) |
Mashile, J:
The Plaintiff, currently a nineteen year old male person, sustained severe bodily injuries during a motor vehicle accident on 26 March 2010. The motor vehicle accident occurred under circumstances that render the
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Defendant liable to compensate him under various heads of damages as envisaged in the Road Accident Fund Act No. 56 of 1996, as amended.
This matter serves before court with merits having been finalised on an earlier hearing on the basis that the Defendant will be liable for 70% of the proven damages of the Plaintiff.
The question that needs resolution by this court is quantum. However, the parties have in this regard settled certain other aspects of quantum such that the court is asked to decide on the Plaintiff's loss of earning capacity only.
The Plaintiff sustained the following serious bodily injuries:
A severe axonal brain injury with intra cranial bleeding;
Hemopneumothorax and collapsed lung on the right side;
Severe facial bone fractures; and
Loss of two front teeth of the maxilla.
The parties have agreed that the Defendant will compensate the Plaintiff for the aforesaid injuries under the following headings:
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Past hospital and medical expenses;
Future medical expenses; and
General Damages.
The Plaintiff having not claimed under the other heads of damages, the only head of damages that falls for determination by this court is loss of earning capacity.
The Plaintiff argues that prior to the accident he was vigorous, healthy and bouncy, ready to take on the world. The injuries that he suffered on 26 March 2010 in the accident have turned him practically into a worthless and derisory young man totally incapable of independently venturing into life.
In an endeavour to establish the accuracy of the above, the Plaintiff called his parents to give an account of his life both pre and post morbidly. The remainder of the witnesses are experts.
The defendant's attitude to the claim is essentially that while the Plaintiff has indubitably sustained severe injuries during the accident, for which it has agreed to compensate him, looking at his pre- and post-morbid academic performance, he should be able to still acquire a diploma or even a university degree as predicted. With a diploma or degree the Plaintiff should
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be in a position to compete and exert himself among his peers in the open labour market.
In its pursuit to demonstrate this, the Defendant called two expert witnesses and these are Dr Prag, a remedial and educational psychologist and Ms Gama, an industrial psychologist.
Some of the experts compiled joint minutes noting their points of convergence and those upon which they are at variance. The Defendant has also admitted some of the reports of the Plaintiff. The joint minutes, to a large extent, and the admission of certain reports have obviated the need to call those witnesses to take the stand.
The first witness who took the witness stand to testify on behalf of the Plaintiff was his mother, Ms Elizabeth Kotze and she said:
She is the Plaintiff's mother. The accident occurred when the Plaintiff was 15 years and 6 months old;
The Plaintiff's childhood and growth were normal in every respect.
During his childhood, the Plaintiff was involved in the following minor accidents:
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He fell off from a step ladder when he was three and sustained a hairline fracture of his skull. He did not lose consciousness. She took him to hospital were he was treated and discharged on the same day;
The Plaintiff's tonsils were removed when he was four;
He also fractured his femur but this too did not complicate;
He cut his finger when he was in primary. This too did not have any impact on his pre-morbid emotional functions;
The Plaintiff was born with squint eyes. For that reason, he underwent several eye operations to correct them.
The Plaintiff attended his nursery in Belabela in Limpopo and started his primary and high school in Florida, Roodepoort.
Prior to the accident the Plaintiff was very active in sporting activities, participating in athletics, rugby and cycling. He was particularly outstanding in cycling and was part of the Mr Price Cycling Club.
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He took part in both road and mountain biking. He trained daily and participated in virtually every race. Those races took place every second weekend.
Plaintiff became a totally different child after the accident. Post morbidly the Plaintiff presents with:
He is now suffering from epileptic seizures, which he controls by taking Epilim;
He is also irritable and his concentration span is approximately one hour. He cannot finish any tasks assigned to him;
He does not take responsibility like before;
He lacks interest in anything. He is forgetful. He needs to be reminded at all times and this must be done daily. For example, she reminds him to take his epileptic medication whenever it is time to do so;
His behaviour is at times that of an eight year old boy and on other occasions, he is a normal nineteen year old child. He fails to listen and obey instructions;
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He works with his father but continues to lack a sense of responsibility. He comes back home whenever he feels like. He fails to execute tasks. His ambition was to become a helicopter pilot but cannot because of his medical condition besides, he does not have direction in life;
The degree of help by his mother increased tremendously as a result of his poor concentration span. His mother assisted him far more than she did before the accident. She assisted him with Afrikaans and English and he took extra lessons for all his other subjects;
His parents cannot discipline him and they were professionally advised that people with frontal lobe injuries would normally get more confused if scolded or shouted. She cannot leave him in the care of any other person. If she does, it will be his father;
She thinks that his future is doomed as he will not be able to do anything for himself in the future;
The many friends that he had prior to the accident have deserted him because of his strange behaviour and things that he says to them;
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He does not understand "no" as an answer and continuously repeats himself with no memory of what he has already said or done;
He is withdrawn preferring instead to retreat to his bedroom and chatting on 'whatsapp' or previously, 'mixit'. He now communicates by means of those social media;
His best friend is his brother even though he complains that the Plaintiff drives him crazy. His girlfriend has left him as he keeps on talking about one single thing probably without realising that he is boring her;
The doctor diagnosed his withdrawal to be a sign of depression consequently he prescribed anti-depressants. All these problems did not manifest themselves pre-morbidly;
He needs close supervision virtually on everything that he does. He cannot mow the lawn without being supervised. He leaves sections not mowed and gets angry when confronted with his mistakes;
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He is not trustworthy. She cannot even trust him to change a tyre without close supervision;
He is completely disinterested in life and nothing whatsoever motivates him;
Pre-morbidly, he was always interested in his father's business and new machines acquired but after the accident when his father bought a machine for him to operate, he showed no interest and just walked away after a few minutes;
Probably in consequence of the Epilim treatment, he suffers from extreme fatigue, he has to get to bed early and sleeps 2 to 3 hours during the day.
In cross-examination she denied that the Plaintiff was hyperactive during his childhood. According to her the Plaintiff was not. However, he was just as busy as any other child of his age. She was then referred to the report of Ms Bubb who noted that the Plaintiff was hyperactive before his accident;
She deferred to Ms Bubb herself but in so far as she understood the explanation was that Ms Bubb was told by the Plaintiff himself during the consultation that he was hyperactive but it is not hyperactivity in the medical sense. She denied that the
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Plaintiff fought with his teachers both prior and after the accident;
The Plaintiff wrote and passed Grade 12 without any problems. He got 73% for Civil Technology and 70% for life Orientation. It was put to her that his marks were inconsistent with someone with a concentration span of one hour;
The Plaintiff went to see a career guidance advisor. The advisor recommended Business management course but only if he could improve his mathematics;
It was further put to her that the Plaintiff could not have become a helicopter pilot because his mathematics and physical science, which are essential for any person wishing to be a pilot, were extremely poor;
It was also put to her that although it is claimed that his concentration span is very low, he still managed to write and pass a learner driver's license and subsequently passed a driver's license. She conceded that he drives but epilepsy is a problem. She must at all times ensure that he takes his medication to avoid an epileptic attack while driving;
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