T.T.M v Road Accident Fund (39038/2017) [2024] ZAGPPHC 1254 (2 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1254 | Noteup | LawCite sino index ## T.T.M v Road Accident Fund (39038/2017) [2024] ZAGPPHC 1254 (2 December 2024) T.T.M v Road Accident Fund (39038/2017) [2024] ZAGPPHC 1254 (2 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1254.html sino date 2 December 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA CASE NO.: 39038/2017 (1)      REPORTABLE: YES / NO (2)      OF INTEREST TO OTHER JUDGES: YES/NO (3)      REVISED. DATE: 2/12/2024 SIGNATURE In the matter between: TT M[...] Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT INTRODUCTION [1] This is a damages action relating to injuries sustained by the plaintiff, who was a pedestrian at the time when she was run down by a motor vehicle on 4 August 2016. At the time, the plaintiff was still a minor and in Grade 6 at school. She sustained a head injury with abrasions on her forehead, an open fracture of the right ulna and radius, a right femur fracture and degloving wounds of her right elbow and forearm. The head injury is classified as a mild head injury (concussion). [2] Following the collision, the plaintiff received hospital and medical treatment in respect of the injuries sustained by her. [3] At the time when the claim was lodged with the defendant (“ the RAF "), the plaintiff was represented by her mother. Summons was duly issued against the RAF. At the time when the minor attained the age of majority she was duly substituted as t plaintiff in terms of Rule 15 of the Uniform Rules of Court. [4] The RAF defended the action, but on 14 August 2023, its defence was struck out by order of this Court. The plaintiff was granted leave to enroll this matter on the default judgment trial roll. [5] The default judgment application was enrolled for 8 April 2024, and it stood down to10 April 2024 for purposes of this Court receiving the viva voce evidence of Ms Maria Frida Masipa (the educational psychologist) and Mr Vuyani Rhulani Molea (the industrial psychologist). [6] When the matter was heard on 10 April 2024, counsel for the plaintiff made application in terms of Rule 38(2) of the Uniform Rules of Court, to present evidence by means of affidavit. I granted that application but directed that the evidence of the educational psychologist and industrial psychologist should testify in Court. This Court had certain concerns regarding the postulations and opinions by those two experts. [7] After hearing evidence and argument, the matter was postponed sine die , so that the educational psychologist could provide a certain questionnaire to which reference was made in evidence and for the record to be transcribed. The record was made available on 11 October 2024. [8] At the time of the collision, the plaintiff was 12 years old. She was a pedestrian and near the vicinity of her school. The officer’s accident report records the insured driver’s version where he admits colliding with the plaintiff, apparently when she was in the process of crossing the street. [9] As the plaintiff was 12 years old, there is a rebuttable presumption that she was doli incapax at the time of the collision. There is no evidence on record to rebut this presumption. [10] This Court is satisfied that the insured driver was the sole cause of the collision, and that the RAF should be liable for all the plaintiff’s proven or agreed damages. [11] The medical evidence clearly demonstrates that the injuries sustained by the plaintiff cumulatively had a material impact on her day-to-day living and some impact on her scholastic performance. Also, the consequences of the injuries sustained by her would have an impact on her earning ability. [12] The report of the educational psychologist suggests that the plaintiff would have been able to study towards a degree of her choice, was it not for the collision. The industrial psychologist based his report on the findings and opinions of the other experts (including the educational psychologist) and concluded that the plaintiff would have achieved a certain earnings trajectory had it not been for the collision. [13] Significantly, however, is that the educational psychologist did not take the following facts into account, or did not attach sufficient weight thereto, at the time when she prepared her two reports: 13.1. despite the collision and the injuries sustained by the plaintiff, she mostly outperformed her classmates in the subjects that she took; 13.2. historically, how many learners, from the plaintiff’s school, enrolled for studies at a university after successfully completing Grade 12; 13.3. which probable career the plaintiff would have followed, had it not been for the collision; 13.4. if the plaintiff would have achieved the admissions requirements for that probable career; 13.5. the attrition rate of first year students at university and how many students that enrolled for a course in fact complete that  course and graduate; 13.6. the reason why the plaintiff was not promoted at the time when she failed Grade 11 for a third time (despite her outperforming her classmates in most of the subjects); 13.7. the possibility that the plaintiff may have opted to follow diploma studies or some other trade, after Grade 12 had it not been for the collision. [14] The impression that this Court formed, having had regard to the educational psychologist and industrial psychologist, is that they have projected the most favorable scenario for the plaintiff’s employment, had it not been for the collision, without considering material factors. [15] The potential loss of earnings that the plaintiff will suffer, based on the postulations of the experts, was calculated by an actuary. The actuarial report is filed on record. [16] This Court accepts the post-collision earning projection as set out in the actuarial report. [17] The problem lies with the pre-collision income potential of the plaintiff. I am not satisfied that the plaintiff proved that she would have, as a matter of probability, studied towards a degree of her choice and that she would have progressed to Patterson Level D as postulated by the industrial psychologist. [18] This Court is not bound by actuarial calculations and may grant an award, based on the facts of the matter and what it deems just and fair compensation. [19] Because of the facts listed above and based on this Court’s assessment of what would be fair and just compensation for the plaintiff, I do not rely on the actuarial calculation, as currently formulated. [20] However, as a general guide, this Court will reduce the uninjured future income (calculated as R13 745 631.00) with 50%, which amounts to a future loss of earnings in the amount of R6 872 815.50. For purposes of this judgment, I will round this loss down to R6 800 000.00.  From this, I will deduct the calculated future loss of income, having regard to the collision (R883 318.00), which leaves a loss of income of R5 916 682.00. [21] In my view, and having regard to the facts of the case, this amount will be fair compensation for the plaintiff’s claim for loss of earnings. [22] Counsel for the plaintiff correctly conceded that this Court cannot grant an award in respect of the claim for general damages. This is so, because the RAF has, to date of this judgment, not conceded that the plaintiff qualifies for general damages, in terms of the provisions of the Road Accident Fund Act, No. 56 of 1996 . That head of damages ought to be separated and postponed. [23] I issue the following order: 23.1. the defendant is liable for 100% (ONE HUNDRED PERCENT) of the plaintiff’s proven or agreed damages, following the injuries sustained by the plaintiff in the collision that occurred on 4 August 2016. 23.2. the defendant shall pay the plaintiff the amount of R5 916 682.00 (FIVE MILLION NINE HUNDRED AND SIXTEEN RAND SIX HUNDRED AND EIGHT TWO RAND) in respect of the claim for loss of earnings. Payment shall be made to the plaintiff’s attorneys of record. 23.3. the defendant shall pay the amount of R5 916 682.00 (FIVE MILLION NINE HUNDRED AND SIXTEEN RAND SIX HUNDRED AND EIGHT TWO RAND) within 180 (ONE HUNDRED AND EIGHTY) Court days from date of this order. 23.4. in the event of the aforesaid amount not being paid timeously, the defendant shall be liable for interest on the amount a tempore morae , calculated 14 (FOURTEEN) days after the date of this Order to date of final payment, as set out in Section 17(3)(a) of the Road Accident Fund Act, No. 56 of 1996 . 23.5.    the defendant shall furnish the plaintiff with an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act, No. 56 of 1996 , for the costs of the future accommodation of the plaintiff in hospital or nursing home or treatment of or rendering of a service to the plaintiff or supply of goods to the plaintiff arising out of the injuries sustained by the plaintiff in the collision that occurred on 4 August 2016, after such costs have been incurred and upon proof thereof . 23.6.     subject to the discretion of the Taxing Master, the defendant shall pay the plaintiff’s taxed or agreed party and party costs, and costs of counsel on Scale C, including counsel’s charges in respect of her full day fee for 8 and 10 April 2024. 23.7.     the claim for general damages is separated from all other issues of quantum and is postponed sine die . JM KILIAN Acting Judge High Court of South Africa Gauteng Division, Pretoria For the plaintiff: Adv M Madula For the defendant: No appearance Date of hearing: 10 April 2024 Date of Judgment: 2 December 2024 sino noindex make_database footer start