A high court judge has highlighted the predicament faced by judges in determining the amounts to be awarded to negligence victims, comparing it to predicting the future without the benefit of crystal balls, soothsayers or oracles.
Delivering judgment in the case of 19-year-old Andre Le Grange Jansen van Rensburg – who as a 14-year-old sustained serious brain damage in a car accident and will never be able to work again – Judge Francis Legodi said an enquiry into damages for loss of earning capacity was speculative, and all the court could do was to make an often very rough estimate of the value of the loss.
The North Gauteng High Court judge awarded Van Rensburg more than R6.2 million for his future loss of earnings, which will be administered by a trust. He also ordered the Road Accident Fund to give an undertaking that it will pay for 100% of the costs of Van Rensburg’s future accommodation in a hospital or nursing home and for all the treatment, services and goods he would require.
A curator acting on behalf of Van Rensburg instituted a claim of millions of rands against the Road Accident Fund for the damages the schoolboy (at the time) sustained in a car accident near Standerton in 2011.
The young man suffered serious head injuries and had a collapsed lung, resulting in organic brain syndrome. He could not complete his schooling and was rendered unemployable.
According to experts, Van Rensburg would have studied further, obtained a BTech degree and worked as an engineer.
The judge, however, said the rate of unemployment in South Africa was shocking, especially with regard to the young qualified generation, and no facts were placed before the court to show the demand for persons with BTech degrees, what type of engineer Van Rensburg might have become or in which country he would possibly have worked.
He highlighted the problem with determining the amount that should be deducted for contingencies, such as possible future retrenchment or unemployment due to illness, saying the court was asked to “plunge into the unknown with both eyes covered”.
Although the Fund argued for a 50% contingency deduction, the judge allowed a 35% deduction.