The Road Accident Fund (RAF) has been ordered to pay a Lavender Hill teenager nearly R5 million for severe injuries he sustained in a bicycle accident about seven years ago.
The Road Accident Fund (RAF) has been ordered to pay a Lavender Hill teenager nearly R5 million for severe injuries he sustained in a bicycle accident about seven years ago.
Acting Judge Ajay Bhoopchand of the Western Cape High Court also had harsh words for the RAF when awarding the 16-year-old boy R4.9m, saying the boy’s township education did not mean he could not have had a promising career if he had not suffered the traumatic brain injury.
The case stems from an accident when the now teenager suffered injuries to his head as an 8-year-old.
A neurosurgical assessment revealed that he had sustained a mild traumatic brain injury and he was diagnosed with post-head injury syndrome a month after the accident. Judge Bhoopchand said the boy’s claim for future loss of earning capacity had been quantified.
“This court will not perpetuate past patterns of exclusion and poverty in justifying higher general contingency deductions or making further specific adjustments for children attending township public schools unless objective evidence is provided to support contentions of this nature.
“The constitutional order and the explosion in career choices and job opportunities have introduced new dynamics in predicting the unforeseeable future for children from disadvantaged backgrounds.
“A disadvantaged school child has a greater chance to rise above adversity, select from expanded career choices and live a satisfying existence. One needs to look around and note the emergence and growth of a burgeoning middle-class in our society, many of whom have blossomed despite a township education,” said Judge Bhoopchand.
The RAF had contended for a specific contingency deduction over and above the 22% deduction that would apply in this case.
“(RAF) argued that the extent of the patient’s educational vulnerability before the accident only became apparent once the defendant-appointed educational psychologist accessed the patient’s school reports.
“The latter is incorrect, as the experts who read the speech therapist’s report would have been aware of the uncertainty relating to the patient’s schooling before the accident. The speech therapist’s report was completed sometime in 2021. The defendant-appointed educational psychologist commented on a fuller set of school reports on the eve of the scheduled trial.
“The patient’s educational vulnerability had already been identified before then and factored into the actuarial assumptions,” said Judge Bhoopchand.
According to the judgment, the parties had settled the claim for general damages; however, the only claim remaining to be determined was for future loss of earning capacity.
“A delictual claim for earnings is premised upon a complex interplay of the claimant’s history, the circumstances concurrent with the injury-causing event, the circumstances at the time of deliberation, and an exercise of foresight into the future.
“As fraught as the latter is with uncertainty, it must be harnessed to do justice to a worthy claim. The actuary uses, among other means, mortality tables, interest rates, rates of inflation, consumer price index and the net discount rate to compute the current capital value of earnings based upon a set of assumptions provided by the instructing party or discerned from the relevant expert reports,” the judgment read.
“The days of making rough estimates involving judicial guesswork or manual arithmetical calculations in personal injury matters have largely dissipated into the annals of our jurisprudence.”
Enquiries to RAF were not answered.
Cape Times