Judge nails it after refusing mom’s claim of R5m for child’s injured toe

A JUDGE put his foot down after he was faced with a claim of more than R5 million instituted by a mother on behalf of her son who lost the tip of his big toe in a car accident.

The child was aged 6 weeks at the time of the accident, and is now almost 12 years old.

Apart from refusing to issue an order that the Road Accident Fund (RAF) pay the amount to the mother, Judge Rean Strydom, sitting at the high court in Joburg, also refused to grant an order for it to foot the legal bills of the medical experts.

The experts were called by the mother to try to justify why the tip of her son’s toe was worth more than R5m.

The mother is not being identified as her son is still a minor.

The court heard that although his toe was injured in the accident, the child loved playing football and suffered no major lasting effects following the accident in 2010.

The child was a passenger with his mother in a vehicle that was involved in an accident.

The child suffered injury to his foot and toes, resulting in a portion of his left toe being amputated.

Since the mother instituted a damages claim against the RAF in 2012, future loss of earnings capacity escalated from R500 000 to R5 411 949.

The court was told the liability of the RAF was settled and was not an issue as it was prepared to provide the undertaking for future medical expenses.

The court also heard the general damages were settled between the parties in an amount of R550000.

The only outstanding issue for decision was to determine whether the minor child was entitled to be compensated for future loss of earnings and incapacity due to his toe.

The plaintiff called an orthopaedic surgeon, who examined and assessed the child in February last year.

This was more than 10 years after the collision.

Her examination confirmed the left foot injuries and the amputation at the joint level.

She also confirmed reconstructive surgery done by a plastic surgeon some two years after the collision.

The X-ray examination revealed that the remaining bony elements of the foot appeared intact and suggested further conservative treatment which included the possibility of orthopaedic devices, such as special shoes, should there be a need for that.

No future surgical treatment was envisaged.

According to the report, the minor child’s mother reported a further event of trauma suffered by the minor child.

According to her, he was hit by a taxi while crossing the road in 2020.

His mother reported a brief loss of consciousness.

He incurred a collar bone fracture and multiple bruises.

This incident, however, has no bearing on the claim for the loss of the tip of his big toe.

Regarding the toe, the mother said this would hamper her child in future when he has to work, thus she claimed for loss of future earnings.

The experts who testified on her behalf, could merely speculate on this happening.

The expert said the child was now afraid of cars, had anger issues and did not perform well in school.

But the court said there could be numerous reasons for this and it was not proven that it could be attributed to his toe.

Judge Strydom said it was expected of the plaintiff to prove on a balance of probabilities that the injuries sustained by the child during the collision more than 10 years ago caused his speculative diminished earning capacity.

“In my view, the plaintiff has failed to prove as the experts called by her relied too heavily on inference and speculation to support the claim of the child.

“The court has not been convinced and the plaintiff failed to prove, on a balance of probabilities, that the injuries sustained by the minor child have diminished his future earning capacity and the claim in this regard should be dismissed,” Judge Strydom said.