- The boy broke his thigh bone and suffered a mild traumatic brain injury when a vehicle hit him in September 2020.
- School records showed he had trouble focusing and struggled in class before the accident.
- The judge applied a 60 percent deduction to his projected pre-accident earnings and ordered the Road Accident Fund (RAF) to pay R1,778,118.70.
A child’s poor school performance before a road accident has significantly influenced the compensation awarded for his future loss of earning capacity.
Judge D Greyling-Coetzer of the High Court in Bloemfontein found that although the accident contributed to the boy’s reduced educational and employment prospects, his academic difficulties had already been documented before he was injured.
The claim was brought by his mother against the Road Accident Fund (RAF) after he was struck by a motor vehicle on 22 September 2020, when he was seven years old. He suffered an open fracture of his left thigh bone, underwent surgery at Pelonomi Hospital and spent about two weeks in hospital. He also has permanent scarring.
His mother argued that he had suffered a mild traumatic brain injury, resulting in difficulties with memory, concentration, behaviour and school performance. But evidence before the judge showed that his developmental and academic difficulties started before the accident.
A creche report from June 2018 recorded problems with his attention span, concentration, language-based activities, fine motor skills and ability to complete tasks. A clinic sister had also raised concerns about his speech development.
His Grade 1 school reports showed he failed two terms before the accident, with marks well below the grade average in English, Afrikaans and mathematics.
He had missed Grade R because of financial constraints and started Grade 1 during the COVID-19 pandemic. Although he did not meet the required academic standards, he was promoted to Grade 2 under the pandemic progression policy.
His difficulties continued in later grades, with teachers raising concerns about his concentration, reading and performance in core subjects.
Experts’ assessments questioned
The child’s experts first thought he would have earned a three-year diploma, equal to an NQF Level 6, if the accident had not happened. But Judge Greyling-Coetzer said this did not properly consider his earlier learning problems, language barriers, disrupted schooling and home situation.
The educational psychologist, Dr Naicker, admitted under cross-examination that she did not know the boy had missed Grade R or that his Grade 1 results showed he failed two terms before the accident. She also had not spoken to his teachers when looking at his potential.
The judge found that a Grade 12 or NQF Level 4 qualification was the most likely outcome if the accident had not happened. After the accident, an NQF Level 3 qualification was seen as the most likely. The judge also looked at the evidence for the mild traumatic brain injury.
Hospital records had no clear record of a head injury; no CT or MRI scan was done, and his Glasgow Coma Scale score was not recorded. Still, the judge accepted that causation was proven, but only on what she called “the narrowest of evidential margins.”
60% deduction for pre-existing risks
When working out the payout, Judge Greyling-Coetzer applied a 60 percent deduction to the boy’s projected earnings if the accident had not happened. This deduction took into account his earlier learning problems, language barriers, missed early schooling, family circumstances and the general uncertainty about his future studies.
The judge then applied another 15 percent deduction to his projected earnings after the accident, noting that he still had his physical abilities and could work in other jobs. This meant his net pre-accident future earnings were R3,637,730 and his net post-accident earnings were R1,859,611.30. The difference of R1,778,118.70 was awarded for future loss of earning capacity.
The judge also criticised some of the expert reports and did not allow payment for extra reports that did not add much value. A quarter of the industrial psychologist’s report costs was also not allowed.
The RAF was ordered to pay the award into an existing trust that protects the minor child’s interests.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
