FORM A FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT

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1 FORM A FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT PARTIES: Dorina N. Nkatsha VS RAF Case No.: 423/06 Magistrate: High Court: EASTERN CAPE HIGH COURT, MTHATHA DATE HEARD: 29 May 2009 DATE DELIVERED: 13 th August 2009 JUDGE(S): Dawood J. [Dhlodhlo, Sandi JJ concurring] LEGAL REPRESENTATIVES Appearances: (1) for the Applicant : Mr. Dutton (2) for the Respondents Mr. Ntsaluba Instructing attorneys: (1) Applicant: Nonxuba Inc c/o Mgxaji Inc. (2) Respopdent (s): Messers Potelwa & Co CASE INFORMATION - Nature of proceedings : Appeal Damages. 1

2 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE HIGH COURT: MTHATHA) In the matter between: CASE NO. 423/06 DORINA NTOMBEKHAYA NKATSHA APPELANT AND ROAD ACCIDENT FUND RESPONDENT APPEAL JUDGMENT DAWOOD, J: 2

3 [1] This is an Appeal against the Road Accident fund, hereinafter referred to as the Respondent. [2] At the commencement of the Appeal, the Respondent made the following concessions:- a) That the general damages awarded ought to have been the sum of R as opposed to R b) That the Actuary had correctly computed the future loss of earnings and that his figures could accordingly be relied upon in determining the damages to be awarded to the Appellant, in respect of the minor child's claim for future loss of earnings. c) That the contingency to be applied to the "uninjured" loss of earnings should be 25%. [3] The Respondent s counsel during argument even conceded the issue of costs of Appeal in favour of the Appellant. [4] The only issue accordingly before the court of Appeal is the following:- What contingency should be applied to the minor child's claim for "injured" future loss of earnings? 3

4 [5] It is trite that the application of contingencies is a discretionary power exercised by the court seized with the matter. [6] The contingency to be applied in each case is to be considered on the facts of that particular case. [7] The usual considerations include inter alia:- (a) The possibility of errors in the estimation of the Plaintiff s life expectancy, (b) The likelihood of illness and unemployment which would have occurred in any event or which may in fact occur, (c) (d) (e) (f) Inflation or deflation in the value of money, Tax, Alterations in the cost of living allowances; and Accidents or other contingencies which would have affected the Plaintiff s earning capacity in any event. [8] In the Quantum Yearbook 2009, at page 100, Koch states as follows:- "It has also become customary for the Court to apply the socalled sliding scale to contingencies which entails that half a 4

5 percent for every year to retirement age i.e. 25% for a child, 20% for a youth and 10% in middle age. (see Goodall v President Insurance Company Limited 1978 (1) SA 389 (W) [9] Due cognizance has been taken of the minor child's injuries and the impact it will have on her ability or inability to secure employment in the open labour market, when considering the contingency to be applied to her future income now that the accident has occurred, that is her "injured income," in addition to the usual factors. [10] In accessing the impact of the injuries due consideration has been given to the findings of the experts in their medico-legal reports. (a) Ms Jane Brainbridge, the occupational therapist stated inter alia as follows in her report:- She presents with difficulties in various areas of visual motor integration, demonstrates weak spatial appreciation, weak bilateral integration, motor planning and weak upper limb speed and dexterity. Should core deficits be found to be permanent features, and have an impact upon her scholastic ability, it is likely that her scholastic progress may be affected. She is likely to have more difficulties 5

6 achieving excellence than she would have done but for the accident. Hinging on her level of schooling achieved will be her future vocational training ability and occupational choices, both likely to be narrowed by a combination of factors. Definitive comment in this regard is extremely difficult and a follow up assessment at later stage is recommended, as with increased demands at school, and with age, inherent difficulties may become more obvious.(my highlighting) (b) Ms Khumalo states inter alia as follows:- On the basis of these findings evidence exists to suggest neuropsychological deficits consistent with severe effects of a brain injury. Evidence from the testing suggests that the patient presents with diffuse damage. It is now four years post trauma and Ms. Nkatsha still experiences problems related to the head trauma. Although her mother has reported an improvement in functioning over the years and the patient is relatively young, however, the patient s current neuropsychological status and neurocognitive deficits favour a poor prognosis. 6

7 The clinical and psychometric picture is consistent with a diagnosis of post traumatic stress disorder together with mild depressive features as well as behaviourial changes and a below average academic performance, a need for remedial education, and neuropsychological deficits consistent with a neurocognitive disorder all of which adversely affect her school career or future scholastic adjustment and employment possibilities in the open labour market. (My highlighting) (c) Mr. Gideon De Kock, a Forensic Industrial Psychologist states:, it is found that her results were falling between the 50 th and the 75 th percentile, indicating a converted IQ range of IQ points. This level of general intellectual functioning is caterorised as Average-to High Average. This means that Thulisile s post morbid level of general intellectual functioning should enable her to pass Grade 12 through the normal schooling system. The above results have indicated that Thulisile has a post-morbid average to high average range of General Intellectual functioning. 7

8 The latter will also be an indication of her pre-morbid intelligence, suggesting that she, despite her family background, probably had the potential to complete Grade 12 and to acquire some form of tertiary education (one or two year certificate or possibly a nursing diploma) that would have made her employment at the semi skilled to skilled level. However, her neuropsychological deficits, as explained by Zanele Khumalo (clinical psychologist), will moderate her intellectual- and learning abilities to the extent that it will adversely affect her scholastic aptitude and render her occupationally disadvantaged in an open labour market. Her neuropsychological deficits will probably become more noticeable as she progresses towards secondary schooling and will probably prevent her from completing her secondary schooling. Currently she is coping adequately at school, but her neuropsychological deficits will probably become more noticeable as she progresses towards secondary schooling and will probably prevent her from completing her secondary schooling. However, she also 8

9 seems to have suffered alterations in emotional, personality and behavioural functioning, which may, even after treatment, lead to significant anti social behaviour when she gets older. Her impaired executive functions exacerbate her behavioural difficulties, resulting in her possibly being unable to function in the open labour market, or holding down employment. Since the accident had happened, she probably will not be able to complete schooling at Grade 10 level successfully, and will only be able to perform work of a low complexity and manual nature at the unskilled level until normal retirement age. Thulisile has a post-morbid average to high average general intellect. However, her neuropsychological deficits will moderate her intellectual- and learning abilities to the extent that it will adversely affect her scholastic aptitude and render her occupationally disadvantaged in an open labour market. The minor child has been compromised post-morbidly. 9

10 Having due regard to all the relevant factors and the personal circumstances of the minor child a higher than normal contingency is warranted. (My Highlighting) [11] There is some uncertainty regarding the minor child's postmorbid level of functioning with Ms Khumalo reflecting the minor child as being of below average intellect and in need of remedial education whereas Mr De Kock places her in the average to above average intellect. [12] Mr De Kock however does state that her neuropsychological deficits will moderate her scholastic aptitude and render her occupationally disadvantaged in an open labour market. [13] The inquiry into the contingency to be applied, due inter alia to the age of the minor child, is of necessity a speculative one, in addition to all the other uncertainties. 10

11 [14] It is however evident looking at this matter as a whole that an application of a higher than normal contingency is warranted in respect of the minor child's post morbid prospective income. [15] Having regard to all the relevant factors an application of a 35% contingency to "injured income" is deemed to be appropriate. [16] The minor child will accordingly be entitled to the sum of R as special damages for future loss of income calculated as follows:- Uninjured Income: R less 25% (R ) = R Injured Income: R less 35% (R ) = R Net Future Loss of income =Uninjured income Less Injured income: R less R Net Future Loss of Income = R [17] The judgment of the court a quo accordingly ought to be set aside in respect of damages and replaced with the following order:- 11

12 (a) The Plaintiff is awarded, on behalf of the minor child, the sum of R in respect of general damages. (b) The Plaintiff is awarded the sum of R for future loss of earnings of the minor child. (c) The Respondent is directed to pay the costs of the Appeal. [18] The order in its totality as altered by this court will accordingly read as follows:- [A] The Defendant is directed to pay to the Plaintiff on behalf of the minor child: (i) The sum of R as general damages. (ii) The sum of R in respect of future loss of earnings. (iii) The costs of the action including the reasonable qualifying expenses of the following expert witnesses:- a. Dr Basil Mackenzie; b. Ms Jane Brainbridge; c. Ms Grace Huges; 12

13 d. Dr Sameer Nadir; e. Ms Zanele Khumalo; f. Mr. Gideon de Kock; and g. Mr. Ivan Kramer [B] The Defendant is directed to furnish to the Plaintiff an undertaking in terms of Section 17(4) (a) of Act 56 of 1996 for future medical costs and expenses of Thulisile arising from the injuries sustained by her in the collision referred to in the particulars of the Plaintiff s claim. [C] The Respondent/Defendant is directed to pay the costs of the action and the Appeal. F.B.A DAWOOD JUDGE OF THE HIGH COURT I agree and it is so ordered:- 13

14 DHLODHLO JUDGE OF THE HIGH COURT ACTING DEPUTY JUDGE PRESIDENT I agree:- B SANDI JUDGE OF THE HIGH COURT DATE HEARD - 29 MAY 2009 DATE JUDGMENT HANDED DOWN - FOR THE APPLICANTS - MR. DUTTON APPLELLANT S ATTORNEY - NONXUBA INC. LOCAL REPRESENTATIVE BY :- MGXAJI INC. 14

15 FOR THE RESPONDNET - MR. NTSALUBA RESPONDENT S ATTORNEY - MESSRS POTELWA & CO 15

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