Brain Injury Minor Child – What Can You Claim?
One part of our law that I specialise in, is the question of how do our Courts deal with claims for a minor child’s brain injury and functional impairment as a result of an accident? In other words, where the injury can be attributed to the conduct of another party.
Recently an interesting case was published, the matter of P obo LP versus Road Accident Fund  ZAGP JHC 1001.
In this matter, the child was 13 years old when he was struck by a motor vehicle while walking home from school, he sustained brain damage, personality change and walking difficulties, such that he is effectively wheelchair bound. The merits (in other words liability) were conceded and the plaintiff continued with the claim on behalf of the minor child for past medical expenses, general damages of R3 000 000.00 and future loss of earnings R9 165 669,00.
In discussing the aspects of general damages as well as loss of earnings, the Court firstly found an award of R1 850 000,00 for general damages – which relates to a compensatory amount for a person “to put them in the position they were prior to the incident”, in other words, to compensate an individual for the pain, suffering, discomfort, loss of amenities of life and so forth.
With regard to loss of earnings, two scenarios were argued by the plaintiff – the first that the minor child would have completed Grade 12 and obtained a diploma qualification, alternatively, that he possibly could have completed a degree or a similar higher qualification in a career of his choice. The expert reports indicated that the minor child had probably suffered a total loss of earnings which should be calculated from the date when he would enter the labour market until retirement.
In evaluating these arguments, the Court considered that neither of the minor child’s parents had a higher education degree, however his grade 7 reports and progress report of his twin brother indicated his potential. The Court therefore accepted that but for the accident, the minor child would have attained diploma and uses that used that actuarial scenario with 25% post morbid contingency deduction.
The Road Accident Fund was therefore ordered to pay future loss of income in the sum of R6 853 288,50, general damages of R1 850 000.00 and past medical expenses in the sum of R1 660 354,71.
It is therefore of importance to note that if any person (be it a child or adult) is injured as a result of an accident that is not his/her own fault, that you seek legal advice and determine whether you may have a claim for your or your child’s injuries. In this particular instance, the future loss of earnings is substantial and the idea would be for that amount of money to be invested to ultimately to assist the minor child as an adult in being able to be self-sufficient, to have sufficient income to have assistance and so forth.
Michéle Engela is a director at CK Attorneys.
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