Mkhwanazi v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 20 October 2022
• Docket Number: 1044/2018
• Hearing Date: 08 June 2022
• Citation: 2022 JDR 3275 (MN)

Langa J:

Introduction

[1]

The Plaintiff Ms Mbali Pertunia Mkhwanazi is claiming damages in her representative capacity on behalf of Sphamandla Mkhwanazi, a 14-year-old minor who was involved in a motor vehicle collision as a pedestrian. This personal injury claim is against the Road Accident Fund ("the Fund") for damages arising out of a motor vehicle accident which occurred on 25th May 2015 near eMbalenhle, Mpumalanga Province. The

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Fund, which is the Defendant in this matter, is a juristic person established in terms of the Road Accident Fund Act, 56 of 1996 ("the Act") and is responsible for the compensation of persons in terms of section 17 of the Act.

[2]

The minor, a pedestrian at the time, was knocked down by a car driven by one Njabulo Zulu, ("the insured driver") and suffered multiple injuries and was admitted to hospital for treatment. According to uncontested evidence the child lost consciousness and regained on the way to Evander hospital where he was admitted for a week. He sustained head injuries in the collision. Although his scalp and forehead was lacerated, however, according to Dr FS Kasiriye, the diagnostic radiologist, the Plaintiff did not sustain any fractures of the skull which was still intact. He also had no facial abnormalities and the base off the skull also appeared to be normal. The treatment he received consisted of debridement and the suturing of the scalp. The Plaintiff is claiming general damages and loss of earnings which it is alleged were the result of the accident.

[3]

The merits were settled 100% in favour of the Plaintiff. The only outstanding issue is the quantum in respect of the general damages and loss of earnings. At the hearing of the matter the plaintiff was represented by Advocate D Thumbathi while there was no appearance for the Fund despite the fact that the matter was defended and the Defendant had been properly served with a notice of set down. This matter is therefore essentially before court as an application for default judgment against the Defendant.

[4]

The Plaintiff proceeded to lead evidence in order to prove loss of earning capacity and called in this respect various expert witnesses including the following: Dr B Mosadi, the Neurosurgeon, Ms. E Nagel, the Clinical psychologist, Ms Lesego Mashishi, the

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Occupational Therapist, Ms Z Gumede, the Educational Psychologist and Ms. M Mathabela, the Industrial Psychologist. The Plaintiff further relied on the report by the Munro Forensic and Actuaries to quantify his claim. The Plaintiff's evidence was essentially uncontested as the Defendant did not present any evidence at the trial or challenge the evidence presented by the Plaintiff.

[5]

Dr. Bakang Mosadi, the neurosurgeon, basically stated that on examining the minor child he noted a well healed facial laceration. He stated that he sustained a mild head injury and a grade 3 concussion evidenced by chronic headaches, memory problems and history of loss of consciousness. He testified further that the minor child will experience post-concussion headaches for the rest of his life as a result of the head injuries and may have prolonged neurocognitive impairments as a result of chronic headaches.

[6]

The Clinical Psychologist Elizabeth Nagel testified that as a result of the head injuries the minor child is likely to suffer from cognitive challenges such as learning and memory loss amongst other issues. She further stated that the minor child also suffers from a mild neurocognitive disorder with behavioural disturbances due to the traumatic brain injury. She opined that he has been left psychologically vulnerable and that his behavioural disturbances can impact on the quality of his interpersonal relationships in future. She further stated that the child continues to suffer from headaches with psychological implications.

[7]

Lesego Mashishi, the Occupational Therapist, testified that according to the cognitive and visual perceptive evaluation, the Plaintiff presented with higher mental and executive functions impairments and also has fluctuating concentration, memory problems

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as well as inadequate visual processing efficiency which will render him prone to making errors and taking more than expected time in completing tasks. The therapist also opined that the minor child possessed residual work capacity to pursue sedentary to medium strength requirement occupations and that in the light of the educational Psychologist's report, he will probably be suitable for unskilled to semi-unskilled occupations. She testified further that from a functional perspective, the child suffered a probable decline in earning capacity, particularly for occupations requiring mental exertion. The Occupational Therapist opined that the child would therefore in future need reasonable accommodation which will render him an unequal competitor in the open labour market.

[8]

The Educational Psychologist Ms Zethu Gumede testified that her tests revealed that pre-morbid, the child had an above average IQ and would likely have passed grade 12 with exemption and obtained a university degree. She stated further that although the tests showed that post-morbid he would still have an above average IQ, he however lagged behind in respect of tests conducted in respect of reading, spelling and numerical reasoning which would render him unable to complete grade 12. She added that although he was doing grade 6 at the time of the assessment, he, however, scholastically functioned at the level of a grade 4 learner. She added that even if he receives remedial interventions these would not bridge the gap between his age appropriate level and actual level of functioning.

[9]

The Industrial Psychologist Ms Meriam Mathabela testified that pre-accident the minor child would have passed grade 12 in 2026 and obtained a degree in 2029 at the age of 21. She further stated that he would have entered the labour market at Paterson grade B4 within the semi-skilled...