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[2018] ZAWCHC 17
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Savage v Road Accident Fund (A86/2017) [2018] ZAWCHC 17 (15 February 2018)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No: A86/2017
Before
The Hon. Mr Justice Bozalek,
The
Hon Mr Justice Samela and
The
Hon Ms Justice Savage
Hearing:
2 August 2017
Judgment
Delivered: 15 February 2018
In
the matter between:
DAVID
JOHN
SAVAGE
Appellant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
BOZALEK
J
[1]
This
is an appeal, with the leave of the Court
a
quo
,
against a judgment handed down on 17 October 2016 awarding limited
damages to the appellant arising out of injuries which he suffered
in
a motor vehicle collision in Cape Town on 8 March 2005.
Background
[2]
The
appellant, a British citizen, together with his wife, was involved in
a motor vehicle accident on 8 March 2005 while holidaying
in South
Africa. At that stage he was almost 57 years old. The appellant and
his wife were passengers in a taxi when an ambulance
drove into its
side at an intersection. The appellant had no independent
recollection of the accident or of being assessed or admitted
to
hospital. His memory only resurfaced the day following the accident.
He suffered a number of physical injuries including:
·
a
mild concussive head injury with post traumatic amnesia, facial
fractures and lacerations including a deep upper lip laceration
resulting in the slight flattening of his right cheek;
·
dental
trauma;
·
a
chest injury involving the lower left side of his chest with a rib
fracture on the right side;
·
a
fracture of his jaw, bruises to the left shoulder and front of the
right knee.
[3]
The
appellant’s case was that he also suffered what can loosely be
termed a neck/spinal injury and it is the existence or
otherwise of
that injury which was the focal point both of the trial and this
appeal.
[4]
The
appellant was admitted and treated at the Cape Town Medi-Clinic and
discharged on 11 March 2005. He returned to the United Kingdom
on 19
March 2005 where he sought further treatment for his accident related
injuries.
[5]
Summons
was issued in 2008 with the appellant claiming past medical and
hospital expenses incurred in South Africa, £9 603.07
worth of such expenses incurred in the United Kingdom, some
£290 415.00 in respect of past and future loss of earnings
or earning capacity, general damages for disfigurement, pain and
suffering as well as interest and costs.
[6]
The
respondent only admitted liability for appellant’s proven or
agreed damages on 30 January 2013 and a trial on the quantum
of
damages commenced on 3 September 2015. Prior to this the appellant
had returned to Cape Town on March 2010 to undergo medico
legal
assessments for the purposes of his claim. Dr J Reid, a neurologist
engaged by the appellant’s attorneys to assess
his injuries,
arranged for an MRI (Magnetic Resonance Imaging) of the appellant’s
spine and it was discovered that he had
suffered a central disc
prolapse at the level of C7/T1 of the spine with displacement of the
spinal cord and irritation of the
C7 root (‘
the
disc prolapse’
).
The appellant was advised to undergo surgery immediately for fear of
drastic consequences if the extruded disc were to impinge
further on
the spinal cord. He returned to the United Kingdom and underwent
surgery there in May 2010, which involved a discectomy
of the
affected cervical disc as well as a fusion (‘
the
surgery’
).
The operation was successful, although the appellant was left with
some residual occasional pain and disability.
[7]
It
was the appellant’s case that the disc prolapse, although
discovered late, occurred as a result of the accident and further
that the problems of residual neck pain and stiffness after his
surgery were similarly a result of the accident. His case was further
that the neck pain which he suffered between the accident and the
surgery and which continued thereafter, although in diminished
form,
had affected him both physically and psychologically to such an
extent that he suffered reduced work and earning capacity
and took
early retirement.
[8]
The
respondent disputed any link between the appellant’s disc
prolapse and the accident in 2005. Its case was that if it were
found
that the appellant had suffered any neck injury it was no more than
‘
whiplash’
which had only temporary
sequelae
.
The respondent’s expert witnesses expressed the view that at
the time of the accident the appellant had been suffering from
cervical spondylosis (this was common cause), that this worsened
between the accident and 2010, and that the disc prolapse would
have
occurred irrespective of whether the appellant had been involved in
the accident or not. Its case was further that, whether
or not the
disc prolapse had been caused by the accident, its
sequelae
were not the reasons why the appellant left full-time employment in
2011, scaling down his working hours, and therefore his claim
for
loss of earnings also had no merit.
Award
and Grounds of Appeal
[9]
The
trial proceeded over a number of days during September, October and
November 2015. Judgment was delivered by the Court
a
quo
on 17 October 2016.
[10]
In
its order the Court
a
quo
awarded the appellant:
a.
R5,414.67
worth of medical expenses he incurred South Africa;
b.
50%
of certain further medical costs incurred by the appellant in the UK
which I take to be costs of the surgery which he underwent
there in
2010 after his disc prolapse was diagnosed;
c.
the
sum of R180 000.00 for general damages;
d.
an
undertaking in terms of
sec 17
(4)(a) of the
Road Accident Fund Act,
56 of 1996
in respect of future medical expenses.
[11]
Finally,
the Court
a
quo
issued a detailed instruction to an actuary to calculate his earnings
lost during the period August 2007 to June 2008, i.e. between
his
resignation from the Jardine Group and commencing employment with
Cooper Norwich. It awarded him 50% of this amount. The Court
a
quo
then made a costs award in favour of the appellant in the usual
terms.
[12]
The
appellant noted an appeal against the whole of the judgment and order
of the Court
a
quo
citing forty one separate grounds. Only two of them proved relevant:
firstly, that the Court
a
quo
erred in finding that only 50% of the
sequelae
experienced by the appellant arose as a result of the accident and;
secondly, in finding that the appellant’s conversion
from
fulltime to part-time employment was not as a consequence of the
accident. It later transpired that post-judgment the Court
a
quo
had corrected its award to reflect general damages of R230 000.00,
the amount it had intended to award, as was reflected in
para 236 of
the judgment. This correction was only drawn to our attention well
into the appeal hearing. With not inconsiderable
difficulty it was
then established at the appeal hearing that the appellant wished to
appeal only those parts of the order where
the appellant was awarded
50% of his past medical costs and 50% of certain post-accident loss
of earnings, as well as the finding
that he enjoyed no claim for his
past or future loss of earnings following his scaling down to
part-time work in April 2011.
The
Judgment
[13]
Early
in its lengthy and detailed judgment the Court
a
quo
identified the matter as involving three issues:
1.
whether
there was a causal link between the 2005 accident and the disc
prolapse in 2010 and whether the appellant’s neck injuries
caused and/or contributed to his psychological condition;
2.
assuming
the necessary causal link was established, whether the appellant had
suffered a loss of past and future earnings; and
3.
general
damages.
[14]
After
reviewing the authorities in regard to the question of causation and
the testimony of expert witnesses the Court set out a
comprehensive
review of the evidence under the headings of:
The
General Evidence, Cervical Spondylosis, Disc Prolapse, Neck Pain
Discomfort and Stiffness, Arm Pain Paraesthesia, Post-Operative
Condition 2010, Physical and Psychological
.
In this section of the judgment the Court dealt with the evidence of
the appellant and his expert witnesses who comprised Dr J
Reid, a
neurologist; Dr Z Domingo, a neurosurgeon; Dr R Jaffe, an orthopaedic
surgeon; Dr M Ostrofsky, a maxillo facial and oral
surgeon; Ms R
Bester, an occupational therapist; Mr Carter, an employment
consultant and Ms M Coetzee, a clinical psychologist.
The evidence
presented by the respondent comprised that of Dr F Badenhorst, a
neurologist; Dr R Marks, an orthopaedic surgeon;
Ms J Andrews, an
occupational therapist; and Mr L Loebenstein, a clinical
psychologist.
[15]
In
the section reviewing the evidence the Court made various
observations regarding the credibility of the evidence, but the bulk
of its findings are to be found in a section entitled ‘
Conclusions
to be drawn from the aforegoing evidence’
which runs from paras [171] – [174]. The Court’s main
findings centred around the evidence of the expert witnesses,
none of
which was rejected in totality but it was found that the evidence of
the appellant’s witnesses could not be preferred
to that of the
respondent’s ‘
and
vice versa’
.
The Court then set out detailed findings in relation to the medical
evidence amongst which the most important were that:
‘
173
…
173.13 On balance
(the Court was) unable to definitively select one cause for the disc
prolapse. It cannot be definitively excluded
that the accident may
have exacerbated/accelerated the natural cervical spondylosis or that
both the accident and cervical spondylosis
caused, contributed to,
exacerbated or accelerated the disc prolapse;
173.14 Though
given the presence of cervical spondylosis and plaintiff’s
symptomatology the accident was certainly not the
sole cause of
plaintiff’s condition and pain experienced but it cannot be
excluded as having contributed to plaintiff’s
pain at the very
least the whiplash;
173.15 It is not
possible to determine the exact extent of the contribution of the
whiplash, disc prolapse and cervical spondylosis
– the latter
being a pre-existing condition;
173.16 On a
balance of probability the impact of the accident together with
ongoing multi-level cervical spondylosis over a period
of time caused
plaintiff’s condition and pain to worsen over time so much so
that by 2008 plaintiff’s pain worsened
so much that it
necessitated lifestyle changes but not sufficiently to require
medical attention;
…
173.20 In light
of what is stated above in relation to plaintiff’s
psychological state I am not of the view that plaintiff’s
decision to work part-time in 2011 can be attributed to a
psychological impairment arising solely from the 2005 accident and
its
sequelae.
174. For purposes
of quantification I am of the view that 50% of his condition should
be attributed as having arisen as a consequence
of the accident and
that all the other medical conditions experienced by plaintiff,
unrelated to the accident cannot simply be
ignored. On balance the
remaining 50% should be attributed to those factors’.
[16]
The
Court then dealt with the appellant’s claim for loss of
earnings/earnings capacity reaching the following conclusions:
‘
[206]
After having regard to the conspectus of evidence from plaintiff and
the respective witnesses, some of which was been detailed
above I am
not convinced that it has been proven on a balance of probabilities
that the accident in question directly caused plaintiff
to reduce his
employment to that of two days a week …
[206.2]
Plaintiff’s conversion from fulltime employment to part-time
employment is not as a consequence of the accident
and its sequelae
especially as plaintiff was fulltime employed for a considerable
period after the accident.
[206.3]
Accordingly save as indicated below there is no other claim for past
and future loss of earnings.
[207] Mr
Bhoopchand accepted that if plaintiff succeeded on the question of
causation then defendant would be liable for any loss
of earnings
suffered in the period from leaving the employ of the Jardine group
and being employed by Cooper Norwich.
[208] Having
established that 50% of the sequelae experienced by plaintiff arose
as a consequence of the accident, it follows that
if it is
established that any loss of income arose, as a consequence of
plaintiff’s injuries, then the defendant would be
liable for
50% thereof’.
[17]
The
Court issued an instruction to the appellant’s actuary to have
regard to the earnings calculated by the appellant’s
expert
witness, Mr K Carter, relating to the appellant’s employment
between
August
2007 and June 2008
.
It assessed the appellant’s loss of income on the basis that it
would amount to 50% of that sum. This is a puzzling aspect
of the
Court’s judgment since there is an irreconcilable contradiction
between finding (as per para [206.2] that the appellant’s
conversion to part-time employment was not as a result of the
accident and its
sequelae
and awarding him a portion of earnings lost during this period.
[18]
It
is, with respect, difficult to follow the reasoning of the Court
a
quo
in the findings set out above. In para 173.13 two scenarios are set
out which the Court stated could not be ‘
definitively
excluded’
.
It appeared thus to accept that the accident was, what I will term, a
causative factor and much the same thread of reasoning is
evident in
para 173.14, although differently stated. In para 173.15 the Court
bundled together whiplash (an injury sustained in
the accident) with
cervical spondylosis (a pre-existing condition) and the disc
prolapse, the disputed
sequela
to the accident, thereby adding to the confusion. Similarly, in para
173.16 the Court, now referring to the probabilities, identifies
‘
the
impact of the accident’
as (partly) causing ‘
plaintiff’s
condition and pain to worsen over time’
.
[19]
In
para 174 the Court makes its key finding, namely, that 50% of the
appellant’s ‘
condition’
should be considered as having arisen as a consequence of the
accident and that ‘
all
other medical conditions experienced’
by him contributed the remaining 50% to ‘
his
condition’
.
It would appear that it was on the basis of this last finding that
the Court limited the plaintiff’s special damages to
only 50%
of the costs of the surgery which he underwent in the United Kingdom
in 2010 to repair his disc prolapse. Similarly, it
would appear that
this finding was used to limit part of the appellant’s claim
for loss of earnings but I will revert to
this at a later stage.
[20]
In
my view the reasoning of the Court as set out above reflected
conceptual confusion between the elements of causation and fault
in
finding that:
‘
(f)or
purposes of quantification I am of the view that 50% of his condition
should be attributed as having arisen as a consequence
of the
accident (but) that all the other medical conditions experienced by
plaintiff, unrelated to the accident cannot simply be
ignored. On
balance the remaining 50% should be attributed to those factors’.
[21]
The
issue of causation, involving two elements, namely, factual and legal
causation was explained in
International
Shipping Co (Pty) Ltd v Bentley
[1]
as follows:
‘
The
first is a factual one and relates to the question as to whether the
defendant's wrongful act was a cause of the plaintiff's
loss. This
has been referred to as “factual causation”. The enquiry
as to factual causation is generally conducted
by applying the
so-called “but-for” test, which is designed to determine
whether a postulated cause can be identified
as a causa sine qua non
of the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably
would have happened but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the
wrongful conduct and the substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon
such an hypothesis plaintiff's loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was
not a cause of the plaintiff's loss
…
On the other
hand, demonstration that the wrongful act was a causa sine qua non of
the loss does not necessarily result in legal
liability. The second
enquiry then arises, namely whether the wrongful act is linked
sufficiently closely or directly to the loss
for legal liability to
ensue or whether, as it is said, the loss is too remote. This is
basically a juridical problem in the
solution of which considerations
of policy may play a part. This is sometimes called “legal
causation”.
[22]
More
recently, in the matter of
Za
v Smith and Another
[2]
it was held that:
‘
[30]
The criterion applied by the court a quo for determining factual
causation was the well-known but-for test as formulated, eg
by
Corbett CJ in International Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) ([1989] ZASCA 138) at 700E – H
.
What it essentially lays down is the enquiry — in the case of
an omission — as to whether, but for the defendant's
wrongful
and negligent failure to take reasonable steps, the plaintiff's loss
would not have ensued. In this regard this court
has said on more
than one occasion that the application of the “but-for test” is
not based on mathematics, pure
science or philosophy. It is a matter
of common sense, based on the practical way in which the minds of
ordinary people work, against
the background of everyday-life
experiences. In applying this common-sense, practical test, a
plaintiff therefore has to establish
that it is more likely than not
that, but for the defendant's wrongful and negligent conduct, his or
her harm would not have ensued.
The plaintiff is not required
to establish this causal link with certainty. (See eg Minister of
Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) ([2002]
3 All SA 741
;
[2002] ZASCA 79)
para 25
;
Minister of Finance and Others v Gore NO
2007
(1) SA 111
(SCA) ([2007]
1 All SA 309
;
[2006] ZASCA 98)
para 33. See
also
Lee
v Minister for Correctional Services
2013
(2) SA 144
(CC)
(2013 (2) BCLR 129
;
[2012] ZACC 30)
para 41
.)’
[23]
The
distinction between the causation and the fault elements in a
delictual action is thus clearly expressed in the ‘
but
for’
test with its reference to ‘
a
cause’
of the plaintiff’s loss.
[24]
It
is this application of the but-for test in the determination of
causation that I find absent in the Court
a
quo
’s
reasoning. Implicit in the findings which I have quoted is that the
respondent’s wrongful act – the negligent
driving of the
insured taxi driver – formed an integral part of the chain of
causation which resulted in the appellant’s
condition, namely,
the neck/spinal injury, which was either an immediate but undetected
sequela
of the accident or a
sequela
which manifested later. This being the case, the finding that other
medical factors unrelated to the accident also played a role
in the
development of the appellant’s medical condition could not
justify an apportionment of the damages suffered by the
appellant. On
the evidence the only other factor, not being a direct result of the
accident, was the appellant’s existing
cervical spondylosis.
But this was a pre-existing condition not an expression of fault on
the part of the appellant which could
justify an apportionment of his
damages.
[25]
The
incorrect approach adopted by the Court
a
quo
is most starkly illustrated by the disallowance of the appellant’s
claim for costs of surgery relating to his disc prolapse.
If it
found, as I consider it did, that the accident was a causative factor
of the appellant’s disc prolapse, the true enquiry
then was
whether, but for the accident, the appellant would nonetheless have
suffered the disc prolapse and required remedial surgery
in 2010.
This question is neither directly raised nor answered in the
judgment. Instead, a finding that a pre-existing condition
of
spondylosis also contributed to the disc prolapse (or could not be
excluded as contributing to this condition) was used as a
basis to
award only 50% of these costs to the plaintiff.
[26]
In
my view the Court
a
quo
was required to determine whether, but for the accident, the
appellant would have suffered the pain, suffering and disability
arising out of his neck/spinal injury which he did from 2005 onwards
and which ultimately led to the surgery. Similarly, in relation
to
the plaintiff’s claim for loss of earnings the enquiry which
the Court
a
quo
should have conducted was the extent, if any, to which the
neck/spinal injury suffered by the appellant caused him to alter his
working career in such a way that he suffered a loss of past or
future income.
[27]
Applying
this approach it appears to me that this appeal must be considered on
the basis of whether the Court
a
quo
’s
specific findings in relation to the appellant’s special
damages were justified or not (since it transpired that
this
appellant was satisfied with the award of general damages which he
received). It appears implicit in the Court
a
quo
’s
findings that the appellant’s neck/spinal injury was caused by
the accident (even if his pre-existing cervical spondylosis
rendered
him more susceptible to the injury). In any event even if this is not
what the Court intended to convey in its findings,
this was the
effect of its judgment in awarding the appellant 50% of his damages
in relation to the costs of surgery and some damages
under the head
of loss of income. Furthermore, there is no cross-appeal by the
respondent and this precludes this Court from any
finding that the
accident played no part in the appellant’s disc prolapse and
thus that the appellant suffered no damages
at all in lieu of lost
income.
[28]
In
the view I take of the evidence, the appellant’s pre-existing
condition of cervical spondylosis brought him into the category
of
so-called eggshell cases (the
talem
qualem
rule) i.e. where, because of an existing physical weakness, he
suffered a more serious injury as a result of the respondent’s
(insured driver’s) conduct than would have otherwise been the
case. In these circumstances, depending always on the facts
of the
case, the wrongdoer takes his victim as he finds him (generally
speaking), the question being whether in the light of all
the
circumstances of the case the damage should reasonably be attributed
to the defendant.
[29]
Through
its finding that 50% of his condition should be attributed as having
arisen as a consequence of the accident the Court
a
quo
in effect found the necessary causative link between the wrongful act
and the appellant’s loss. I am further of the view
that the
test for legal causation has on the facts of this matter, been
satisfied inasmuch as the wrongful act ‘
is
linked sufficiently closely or directly to the loss for legal
liability to ensue’
.
In these circumstances I consider that strictly speaking it is not
necessary to re-evaluate the evidence to establish whether
causation
was proven.
[30]
In
any event I am satisfied that on the evidence the appellant succeeded
in establishing that the injuries which he sustained in
the accident
caused the disc prolapse, which, in turn required the surgery which
he underwent in the United Kingdom in 2010. In
order to justify this
conclusion I will briefly review the evidence which was led. Given
the full recounting of this evidence in
the judgment of the Court
a
quo
a detailed account is unnecessary.
[31]
Before
embarking on evaluation of the evidence some regard must be had to
the basis upon which a Court of Appeal can interfere with
the
findings of a lower court and upon which the evidence of expert
witnesses must be evaluated. The principles in relation to
the former
are well established and were definitively set out in
Rex
v Dhlumayo
.
[3]
Amongst them are that, inasmuch as the trial court has the advantage
of seeing and hearing the witnesses, an Appeal Court will
not readily
upset the findings of the trial judge but, equally, an appellant is
entitled as of right to a re-hearing as a matter
of law and this must
not be made illusory. Sometimes, however, the Appeal Court may be in
as good a position as the trial judge
to draw inferences, either
where they are drawn from admitted facts or from the facts as found
by the trial judge.
[32]
It
is trite that where a court is faced with opposing views expressed by
experts it is not open to it to decide the issue by simple
preference. The Court must determine which, if any, of the opinions
to accept based on the reasoning and reliability of the various
expert witnesses. In this regard objectivity is the central
prerequisite for his or her opinions.
[4]
As in all cases of factual disputes the Court is also required, as a
final step, to determine, in accordance with the guidelines
set out
in
Stellenbosch
Farmers Winery Group Ltd v Martell et Cie
,
[5]
whether
the party burdened with the onus of proof has succeeded in
discharging it.
The
Evidence and a discussion thereof
[33]
In
their joint minute Drs Reid and Badenhorst agreed that the accident
may have included a neck injury without immediate symptoms.
[34]
Dr
Reid expressed the opinion that the disc prolapse was causally
related to the accident and should be regarded as a delayed
consequence.
He provided four reasons why the symptoms experienced by
the appellant were delayed and/or why he delayed in reporting pain or
symptoms:
·
the
fact that his facial and dental injuries were the main or sole focus
of attention immediately after the accident;
·
the
disc prolapsed centrally (and midline back) and thus, initially at
least, did not impinge directly on the nerves with the result
that
certain symptoms (mainly radicular pain) were not felt immediately;
·
the
appellant’s stoical nature;
·
the
prolapse occurred at the C7/T1 level where the canal through which
the spinal cord runs is at its widest and therefore less
prone to
immediate symptoms or pain.
[35]
Dr
Reid expressed the firm view that the trauma suffered was most likely
the cause of the disc prolapse rather than some unidentified
event in
the years thereafter until the surgery.
[36]
Dr
Domingo, a neurosurgeon, testified that the impact involved in the
vehicle accident would have caused acute, sudden and unexpected
hyperflexion, hypertension and lateral flexion of the neck causing
injury to the muscle, ligaments and the facet joints. Having
regard
to the appellant’s medical history he expressed that view that
the disc prolapse was a direct result of the accident.
[37]
Dr
R Jaffe, an orthopaedic surgeon, upon examining the appellant in
March 2010 shortly after an MRI revealed that the disc prolapse
at
C7/T1, similarly expressed the view that it was probably as
result of the accident taking into account that, notwithstanding
his
pre-existing degenerative changes at the C5/6 level, the appellant
had been completely asymptomatic.
[38]
The
medical experts called on behalf of the respondent expressed
different opinions on the underlying cause of the appellant’s
eventual disc prolapse.
[39]
Dr
Badenhorst, a neurologist, stated that in his opinion the accident
was not the sole cause of the disc prolapse, was also not
a
precipitating cause and at best could possibly be seen as a
‘
contributory
cause’
.
In his further view the disc prolapse or ‘
condition’
would probably have developed even without the accident.
[40]
In
his report Dr Badenhorst noted that the appellant gave an excellent
history ‘
without
exaggeration or elaboration’
.
What he described as the pillars of his opinion were the delayed
development of symptoms post-accident, the plaintiff’s
failure
to himself connect these symptoms to the accident and the ongoing
progression of the cervical spondylosis over the intervening
5 years.
[41]
Dr
Marks, an orthopaedic surgeon, expressed the view that the disc
herniation could not be attributed to a single traumatic event
‘
where
evidence of nerve root involvement emerges 5 years after the
accident’
.
He endorsed Dr Badenhorst’s views regarding the causation of
the disc prolapse. Dr Marks testified that linking such a neck/spinal
injury to a traumatic event such as an accident would require the
neurological symptoms to be ‘
relatively
immediate’
– up to a four to six weeks after the event. His opinion was
based on no such symptoms being present within that time frame.
[42]
Be
that as it may, Dr Marks conceded that if the appellant had an
acutely painful neck as the time of the injury with radiculopathy
i.e. pain radiating into the lower extremity directly along the
course of a spinal nerve. He would have ‘
no
hesitation’
in attributing the eventual disc prolapse to an acute injury at that
time.
[43]
It
was put to him that in fact it was the appellant’s evidence
that already in hospital he had a stiff neck, pain going down
his
back and across his shoulder and was given pain relief. His evidence
was further that over the ensuing years the neck pain
became steadily
worse and more debilitating. The appellant also testified that at
best he could remember the pins and needles he
felt was intermittent
but started about eight weeks (‘
fairly
soon’
)
after the accident. Although initially intermittent, the pins and
needles were ‘
obvious’
and ‘
evident’
and were continuous from 2007/2008.
[44]
Dr
Marks stated that if the Court accepted this evidence he would have
‘
no
problem with that’
and referred with approval to a medical article of a survey of
specialists and which article accepted that typical symptoms of
a
herniated disc appearing up to four to six weeks after the event
would be reasonable to establish causation.
[45]
This
brings the two conflicting viewpoints closer to each other.
[46]
The
importance of the appellant’s evidence cannot be underestimated
bearing in mind the reliance placed upon, and the importance
of, the
medical history he provided. Also relevant in this regard is that an
expert’s opinion must be based on certain facts
or data, which
are either common cause or established by his own evidence or that of
some other competent witness.
[6]
[47]
The
appellant testified that he woke up in hospital wearing a neck brace
and immediately complained that his neck ached badly and
of back
pain. The neck pain radiated between his shoulders. The pain did not
subside but he did not associate it with anything
serious assuming it
was a result of banging his head in the accident. He was also
experiencing very severe pain as a result of
his facial and dental
injuries. The appellant’s fractured rib and cheek bone were
diagnosed only after he was discharged.
His doctor in the United
Kingdom diagnosed his neck pain as probably ‘
whiplash’
.
[48]
The
pain and discomfort in the appellant’s neck involved pain in
his shoulder and pain radiating into his arms and pins and
needles
into two fingers of his left hand which he had never experienced
before. The pins and needles began approximately 8 to
10 weeks after
the accident. The pain worsened and by 2008 was unbearable. The pins
and needles were intermittent but not debilitating.
[49]
Prior
to the accident the appellant never had neckache. He had been a
regular squash player but stopped playing after the accident.
The
appellant’s work attitude changed and he found he became
aggressive, unable to cope with pressure, irritable and
short-tempered.
Whereas previously he had loved driving he no longer
did so because of his neck pain. He decided to take a job closer to
home but
his inability to fully cope at work continued. The neck and
associated pain got worse and had a marked effect on his sleeping
pattern.
He did not seek medical advice, all the while assuming that
the pain would get better and go away and also because his character
was such as not to complain, but rather ‘
to
get on with things’
.
[50]
The
surgery in 2010 had provided him with tremendous relief but he still
had residual pain in his neck, between his shoulder blades,
and he
experienced some pins and needles.
[51]
Dr
Marks was taxed with the plaintiff’s evidence that even before
the interview commenced he told the appellant that he did
not believe
for one minute that his neck injury was a result of the accident. His
response was that he could not recall saying
that and would leave it
to the Court to determine. He added that it was possible that he had
communicated to the appellant what
he probably felt. In short he
could not recall saying what was alleged but he could well have said
so.
[52]
The
appellant’s evidence of Dr Marks’ stance even before the
examination or consultation commenced was not seriously
disputed, and
Dr Marks’ evidence when cross-examined on this score suggested
that this is indeed what transpired. Even assuming
that Dr Marks
retained an open mind on the question of causation throughout, his
immediate expression of his opinion prior to interviewing
the
appellant tends to cast doubt over his objectivity as an expert
witness in this instance.
[53]
Coming
back to the (apparently) opposing views expressed by Drs Reid and
Domingo on the one hand and Dr Badenhorst (supported by
Dr Marks) on
the other, both were logical and supported by reasoning.
[54]
In
my view the issue is best determined by the Court taking a wider view
of the evidence as a whole and the probabilities. I regard
the
following factors as carrying particular weight:
1.
The
appellant’s evidence that he was asymptomatic before the
accident and his evidence of neck and associated pain immediately
thereafter and in the ensuing months and years.
2.
The
appellant’s evidence that he suffered no significant traumatic
event post-accident which might have caused his disc prolapse.
3.
The
ample evidence of the appellant’s generally stoic and
uncomplaining nature which led him to suffer in silence, so to speak.
4.
The
appellant’s belief that the pain would eventually go away and
the advice when he received in the UK upon his return that
it was a
consequence of ‘
whiplash’.
5.
The
lack of any thorough examination which might have revealed the
cervical prolapse e.g. by way of MRI, until 2010 at the behest
of Dr
Reid.
6.
The
marked changes, post-accident, in the appellant’s functioning,
in and attitude towards work, driving and participation
in sport.
7.
Dr
Reid’s explanation, as described above, of the mechanism of the
central disc prolapse and why this would not have been
immediately
apparent or symptomatic other than through MRI.
8.
The
considerable force or trauma which the appellant would have
experienced in the accident in head/neck region as evidenced by
the
maxillo-facial injuries which he sustained. In this regard I do not
consider that the observations made Dr Domingo in this
regard, and
supported by other expert medical witnesses, fall outside the realm
of his or their expertise or medical common sense
and therefore were
inadmissible
9.
The
sub-standard medical care which the appellant received at Medi-Clinic
following his admission after the accident. In this regard
very
limited reliance can be placed on the fact that the Medi-Clinic notes
made no direct reference to the appellant having suffered
a cervical
injury. Not only were the appellant’s maxillo-facial injuries
the main focus of attention during his hospitalisation
but other
injuries undetected by the hospital staff suggest that he enjoyed
less than optimal medical care during this period.
[55]
Upon
closer examination, two of the ‘
pillars’
upon which Dr Badenhorst founded his opinion do not necessarily carry
a great deal of weight. In the first place Dr Badenhorst
relied upon
the appellant being asymptomatic for an extended period of time
post-accident. If one accepts the appellant’s
evidence that
this was not the case, albeit that he sought no medical advice from
another source after his doctor in the UK ascribed
his neck pain to
nothing more than whiplash. Secondly, Dr Badenhorst’s reliance
on the appellant not connecting his ongoing
neck pain to the accident
in my view is not a factor which can carry any weight. The appellant
had no medical knowledge or experience
and relied on what advice he
received – good or bad or indifferent – and was a man
with a stoical nature.
[56]
It
bears emphasis that the mechanism and aetiology of the appellant’s
cervical disc prolapse is significant in the broader
picture of when
it became symptomatic and was eventually diagnosed. The most common
cervical disc prolapse is to the back and side
(posterolateral) where
the fibrous ring is widest. The appellant’s central disc
prolapse caused extrusion midline back towards
the spinal cord where
the canal is at its widest, with the result
inter
alia
that radicular pain is not an immediate consequence. The appellant’s
complaint of neck pain and pain going into his shoulder
blade was a
specific indicator of injury at the C7/T1 level.
[57]
Taking
all these factors together, I consider that the evidence of the
appellant’s expert witnesses as to the causation of
the
appellant’s central disc prolapse viz that it was a consequence
of the accident as opposed to an inevitable result of
the progression
of his cervical spondylosis must be accepted as proven on balance of
probabilities.
[58]
For
these reasons, over and above my finding that the Court
a
quo
also found causation established (but
inter
alia
incorrectly apportioned certain of the appellant’s
consequential medical damages and part of his claim for loss of
earnings),
I find that the appellant is entitled to his full medical
damages. This I understand to be the balance (50%) of the costs of
the
spinal surgery which he underwent in the UK in 2010.
Loss
of earnings
[59]
The
second issue upon which the Court
a
quo
’s
causation finding impacted was the appellant’s claim for loss
of earnings caused by the effect of his disc prolapse
on his
employment career.
[60]
In
order to make sense of the appellant’s claim under this head a
brief history of the appellant’s post-accident (i.e.
as at
March 2005) employment record is necessary:
1.
Prior
to and after the accident the appellant, born on 13 March 1948, was
employed by the Jardine Group as an after sales manager
and
consultant;
2.
At
the end of
August
2007
the appellant resigned from Jardine because, according to him, he
found the lengthy travelling to and from work too arduous as
a result
of his neck/spinal injury;
3.
He
obtained employment closer to home in
September
2007
until
March
2008
with John Gross when he resigned, again according to him as a result
of health problems arising from the accident;
4.
There
follows a period of unemployment between
March
2008
and
June
2008
when he secured employment with Cooper Norwich.
5.
In
April
2011
the appellant reduced his working week to part time i.e. two days per
week until a ‘
retirement’
in
May
2013
(at age 65);
6.
In
November
2014
he came out of retirement, returning to the Cooper Group working for
approximately two days per week.
[61]
The
Court
a
quo
’s
main finding in relation to this head of damages was that the
appellant had failed to prove that the accident ‘
directly
caused the plaintiff to reduce his employment to that of two days a
week’
.
[62]
However,
on the basis of the respondent’s acceptance that if ‘
causation’
was proven the appellant would be entitled to any earnings lost
between his leaving the Jardine Group and his employment by Cooper
Norwich (August 2007 – June 2008) (see para [207] and [208] in
para 15 above) and in the light of its finding that the injuries
sustained in the accident had to be taken as causing 50% of his
losses, the Court
a
quo
awarded the appellant half of this loss. More accurately, it
instructed the actuary to calculate the appellant’s loss of
earning on the aforesaid basis with a view to an order being made
thereafter. It follows from the findings that I have already
made that, at the least, the appellant is entitled to 100% of his
loss of earnings during that period and this must be the instruction
to the actuary.
[63]
This
does not dispose of the appellant’s claim for loss of earnings,
however, since it extended well beyond the period ending
in June
2008.
[64]
The
issues in dispute were identified by the Court
a
quo
as whether the appellant, pre-injury, would have continued in full
time employment (as opposed to moving into part time employment
in
April 2011) and, if so, at what age he would have retired.
[65]
The
primary finding made by the Court
a
quo
,
in relation to the appellant’s claim for loss of earnings was
that the appellant’s decision to work part time was
unrelated
to his accident injuries. It reasoned that he had continued to work
full time from after the accident in March 2005 until
April 2011
notwithstanding that his pain and discomfort were at their greatest.
Thereafter, when the successful spinal surgery
in April 2010 gave him
considerable relief from his pain and discomfort he nonetheless
decided, just less than a year later, to
scale down to part time
work. The Court
a
quo
was also critical of Dr Reid’s evidence who, according to it,
expressed contradictory views on the appellant’s ability
to
work following the discectomy surgery.
[66]
The
cross-examination of the appellant and his witnesses as well as the
argument on behalf of the respondent set out to show that
the
appellant had scaled down his working hours and would have retired
well before the age of 68 largely as a result of various
non-accident
related health problems including a cancer scare over the last decade
or more.
The
Evidence
[67]
In
my view the evidence relevant to these issues was that of the
appellant together with that of Ms Bester, Ms Coetzee and Mr Carter,
all of whom were called on behalf of the appellant, as well as that
of Mr L Loebenstein, and Ms Andrews, who were called by the
respondent.
[68]
The
appellant testified that but for the accident he would have continued
to work for the Jardine Group full time probably until
he was 68 if
not until he was 70 because he had been devoted to his job. He
testified further that, post-accident, his changes
of employment and
decisions to work part time and early retirement were all a
consequence of the pain, discomfort, changed personality
and
psychological stress and strain he had suffered as a result of the
neck pain which underlay his disc prolapse.
[69]
Ms
Bester expressed the view that post-morbidly the appellant had been
able to continue employment only because he worked part-time.
She
endorsed that picture the appellant painted of himself as someone who
pre-accident had been passionate about his work and intended
to
continue until the age of 70.
[70]
By
contrast Ms Andrews’ view was that notwithstanding the accident
the appellant would be or was able to resume his pre-accident
work
until he chose to retire.
[71]
Much
of the dispute regarding the appellant’s ability to work
fulltime turned around his psychological state. There was indeed
uncontroverted evidence of him experiencing psychological
difficulties in the years after the accident, seeking professional
help
and of being prescribed medication.
[72]
Most
significantly, the joint minute concluded by the clinical
psychologists, Ms Coetzee and Mr Loebenstein, recorded the following
agreement:
1.
That
as a result of his pain and discomfort following the accident and his
apprehension regarding the damage to his cervical spine
(the
appellant) developed a major depressive disorder in 2010;
2.
That
at the time of Mr Loebenstein’s assessment the appellant had
benefitted from an operation on his cervical spine but that
he
continued to display some depressive symptomology which had affected
his self-confidence and his ability to work in fulltime
employment
and enjoy the amenities which his improved physical status could
offer.
[73]
Although
the content of this agreement does not appear to have carried much
weight with the Court
a
quo
,
it is in my view powerful evidence in support of the appellant’s
version that he would have worked fulltime until he was
at least 68
years. His case was that, notwithstanding the technical success of
the surgery which he underwent in 2010, by that
time the cumulative
effect of the physical and psychological consequences of the injury,
together with some residual discomfort
and disability he sustained in
the accident (and had stoically borne for many years) had depleted
him to the extent that he was
no longer able to continue working
fulltime.
[74]
Dr
Marks, one of the respondent’s principal expert witnesses,
himself conceded that, notwithstanding the successful spinal
surgery
the appellant underwent, he was left with reduced earning capacity as
a result of residual disability, discomfort and an
associated
‘
significant
psychological overlay’
together with his onset in years.
[75]
Other
evidence relevant to this issue was that of Mr Carter, a United
Kingdom based employment consultant. He produced a comprehensive
report and expressed the opinion that, pre-accident, it was likely
that the appellant would have worked to at least 68 ‘
and
very likely closer to 70’
.
He also produced a table projecting the appellant’s
pre-accident earnings matched against his actual post-accident
earnings. He further opined that the appellant had been well regarded
by his past and current employers and that as it was his
intention to
work longer he was unlikely to have found any barriers to this.
[76]
I
consider the appellant’s evidence on the impact of the accident
on his employment record as of central importance. Generally
speaking
he was the best source of when and what symptoms he suffered as a
result of the accident, his attitude towards these impediments
and
difficulties and their role in his working career. I should add that
there were little, if any, suggestion that the appellant
was not a
credible witness. On a reading of his evidence there is nothing to
suggest that he was not open and honest in all the
testimony that he
gave.
[77]
Although
stated in the context of determining the facts of an accident the
following observation of Eksteen J in
Motor
Vehicle Assurance Fund v Kenny
[7]
is relevant:
‘
(d)irect
or credible evidence of what happened in a collision must to my mind
generally carry greater weight that the opinion of
an expert, however
experienced he may be, seeking to reconstruct the event from his
experience and scientific training.’
[78]
I
accept that the appellant had suffered health problems over and above
those arising from the accident in April 2005 over the period
in
question but on an overall evaluation of his evidence and the
probabilities, these do not appear to have been the underlying
reasons for all the changes in his working life between August 2007
and 2015 and, specifically, for the appellant to have curtailed
his
pre-accident working life. Whilst these other health problems may
have played a role it seems clear that it was the years of
pain and
discomfort arising from the appellants’ neck injury and the
associated psychological consequences that were the
predominant
reason for the appellant’s diminished appetite for his work and
his ability to perform as his job required. I
find the appellant’s
evidence that his work and his wife were central to his life credible
and persuasive as also that he
was always determined to work till at
least age 68.
[79]
Significantly,
even when the appellant resigned from a position post-accident his
‘
retirement’
or inactivity did not last long before he took up another position,
full time or part-time. This stands as confirmation of his
zeal for
his job, bearing in mind also that there was no suggestion that he
had any financial need to continue working.
[80]
In
my view, looking at the evidence as a whole, it is indeed more
probable than not that, but for the accident, the appellant would
have worked fulltime, probably up to the age of 68 years. His
evidence that pre-accident he experienced his job as very fulfilling
and enjoyable is not in dispute. Absent the effect of the accident on
his physical and mental health there is little to explain
why the
appellant should change from a man who relished his job and saw
himself as carrying on at least until his late sixties
to one who
found increasing difficulty in coping with the position’s
requirements other than for the physical and psychological
reasons
associated with the injury which he sustained as a result of the
accident.
[81]
It
follows that the appellant is entitled to claim the difference
between his projected pre-accident earnings and what he in fact
earned up to his projected retirement age, whether he was in full or
part time employment.
[82]
The
appellant’s claim was formulated on the basis that,
pre-accident, between the age of 68 and 70 years of age he would have
scaled down his working days to three and then to two. In his own
evidence the appellant was not specific about when he would retire,
referring to ‘
at
least 68 or 70’
.
Carter testified that the appellant would have been entitled to
retire at age 68 and draw a pull pension. He had no financial
need to
work past age 68.
[83]
It
is also so that other factors in the appellant’s life could
have influenced him, pre-accident, to have retired earlier
than 70
such as other health problems he suffered, diminishing energy levels,
the increasing burden of age or simply to spend more
time with his
wife.
[84]
Having
regard to all these factors and the evidence as a whole I regard it
as more probable than not that pre-accident the appellant’s
employment would not have extended beyond March 2016 when he turned
68 years of age and could retire and draw a full pension.
Actuarial
assumptions
[85]
In
argument and as part of the order sought by the appellant the
following relief: ‘…
the
Rand equivalent as calculated on the date of payment of the sum of
£9603.07 in respect of appellant’s past medical
expenses
as incurred in the United Kingdom’
.
[86]
Under
this head the Court
a
quo
awarded the appellant £4168.35 being 50% of £8337.30.
Before us no explanation was given for the increase of some £1200.00
but neither was there an objection from respondent and thus I assume
this figure is not in dispute. Subject thereto, that part
of the
order sought can be made.
[87]
The
draft order then sought an instruction to the appellant’s
actuary to calculate his loss of earnings, injured and uninjured
on
certain assumptions contained in a report by the appellants’
actuary. These assumptions relate to the date of calculation,
net
discount rate, the inflation and exchange rate all as at 10 October
2015. Apart from the fact that the calculation date may
be outdated
these assumptions are unexceptionable.
[88]
The
further assumptions relate to the uninjured income scenario and the
appellant’s injured income and I deal firstly with
the latter.
Two assumptions are that no contingency deduction is to be applied
and the second is that the appellant would retire
with effect from
December 2015. Given the appellant’s evidence that he would
retire at age 68 and my findings in this regard,
the latter
assumption is well founded. Furthermore, since the appellant has now
earned all his injured income no contingency deduction
should be
applied. That leaves, on the injured scenario, a final actuarial
instruction viz that he must have regard to a table
in Mr Carter’s
report reflecting the appellant’s actual income. These facts
appear to be correct, are not to my knowledge
disputed and therefore
that assumption can stand.
[89]
Turning
to the uninjured scenario the assumptions sought by the appellant to
inform the actuary’s calculations are firstly,
to assume that
by between the age 68 and 69 the appellant would have worked 4 days
per week, then three days per week the following
year before
finally retiring at the end of his 70
th
year.
[90]
As
stated above I find it unlikely that the appellant would have
continued working past the age of 68 and therefore that assumption
cannot be accepted.
[91]
The
second assumption is that a contingency of 2.5% is to be applied to
past uninjured income and 5% to future uninjured income.
The latter
is no longer applicable since the appellant’s income must be
regarded as having ceased as at March 2016 as per
the findings above.
[92]
As
far as the contingency rate applicable to past uninjured income is
concerned, the respondent contended that this should be much
higher –
in the region of 20 – 25%. Bearing in mind that the period in
question has elapsed and that the appellant
continued working on and
off until shortly before he turned 68, the contingencies would
include his having parted ways with the
Jardine Group for some reason
and having been unable to find employment or finding only less
remunerative employment or, notwithstanding
his assertions, had he
retired early, including for health reasons. In this regard confident
assertions that one will work until
an advanced age can prove to be
unduly optimistic or unrealistic as one’s health, enthusiasm or
energies wane with the passing
of the years. Since any of these
contingencies, not least an early retirement (i.e. prior to age 68
years), could well have arisen,
I consider a more realistic
contingency rate would be 20%.
[93]
The
final assumption contended for was that the appellant’s career
and earnings would have progressed as per a table in Mr
Carter’s
report where he projected the appellant as remaining with his
pre-accident employer until the end of his working
career and
projected his earnings for that period after bench-marking them
against suitable comparators.
[94]
Here
again I regard the assumption as realistic and probable and the
projected earnings to be entirely feasible and not exaggerated.
Subject to the contingency factor discussed above, this assumption
can be accepted.
Costs
[95]
Although
the appellant only used one counsel in the trial senior counsel was
drawn in for the appeal and thus the costs of two counsel
were sought
but opposed on behalf of the respondent. Reasons advanced included
the complexity of the issues, the amount involved
and the length of
the record.
[96]
The
central medical issue elicited opposing views from the experts called
by the respective parties and the trial court itself remarked
that
its evaluation of the conclusions of the various experts was not ‘
an
easy endeavour with ready-made and easy answers’
.
In the circumstances I consider that the appellant is entitled to the
costs of two counsel on appeal.
[97]
A
further issue was whether the appellant would be entitled to the
costs of a supplementary note which was filed shortly before
the
hearing. This was opposed by the respondent which also contended
that, if successful, the appellant should be denied the costs
of the
second day of the appeal since his legal representatives had failed
to distil the issues on appeal and had in effect replaced
their
unsatisfactory initial heads of argument with another set contained
in the ‘
supplementary
note’
.
[98]
There
is much to be said for the submission that the appeal was ineptly
dealt with, at least initially. The notice of appeal purported
to
list 41 grounds of appeal but comprised much repetitive argument and
lacked any focus. The issue of causation, central to this
judgment
was not identified by either party. The heads of argument from the
appellant which were similarly unfocused and unhelpful
to the Court.
The situation was remedied firstly by the Court requiring the
appellant to distil its grounds of appeal i.e. eliminate
superfluous
grounds, and through the appellant filing its supplementary note.
This comprised a 66 page document which in effect
replaced the
earlier unfocused and somewhat unhelpful head of argument.
[99]
In
my view the appellant is clearly not entitled to the costs of
preparing both his heads of argument and the ‘
supplementary
note’
.
I do not consider it necessary to make a specific order in this
regard but merely to draw the Taxing Master’s attention
to
these remarks since it properly lies within his/her discretion to
allow the appellant a reasonable fee for the preparation of
heads of
argument i.e. one which does not unquestioningly accept that the
appellant is entitled to the costs of both the heads
of argument and
the supplementary note.
[100]
Even
if the appeal had been satisfactorily dealt with it is unlikely that
argument would have been concluded in one day. Accordingly
it would
not be appropriate to deprive the appellant of the costs of the
second day of the appeal hearing.
Order
[101]
In
the result the order is made:
1.
The
appeal is upheld with costs, including the costs of two counsel;
2.
Paragraphs
245.1.2 of the Court
a
quo
’s
order dated 17 October 2016 is set aside and substituted with the
following:
‘
the
Rand equivalent as calculated on the date of payment of the sum
£9603.07 in respect of appellant’s past medical
expenses
and related expenses as incurred in the United Kingdom’;
3.
Paragraph
250.4 is set aside and substituted with the following:
‘
The
Appellant’s actuary is instructed to calculate the capital
value of the loss of actual and assumed earnings of the Appellant
as
follows:
(i)
The
actuarial assumptions to be used in determining the capital values of
loss of earnings are to be made with reference to an award
in pounds
sterling as at February 2018 and, in relation to the rate of
inflation and interest rate, having regard to prevailing
economic
conditions in the United Kingdom;
Uninjured
Income
(ii)
the
actuary is instructed to assume that the Appellant’s career and
income would have progressed as per ‘The Jardine
Group”
earnings as contained in appendix 2 of Mr Keith Carter’s
addendum medico-legal report (Volume 2, page 204 of
the paginated
Appeal Record);
(iii)
the
actuary is to assume that the Appellant would have worked full time
until he retired upon reaching the age of 68 years;
(iv)
a
contingency deduction of 20% is to be applied to past uninjured
income.
Injured
Income
(v)
the
actuary is instructed to have regard to the post–accident
income column and ‘actual income’ as contained in
appendix 2 of Mr Keith Carter’s addendum to his report (Volume
2, page 204 of the paginated Appeal Record);
(vi)
the
actuary is instructed to assume that the Appellant retired with
effect from December 2015;
(vii)
no
contingency deduction is to be applied.
4.
The
parties may approach the Court for directions in the event that some
element of the actuarial exercise or the award requires
clarification
or determination (for which purpose the Court specifically reserves
its powers) or for the purposes of making a final
order.
____________________
BOZALEK J
I
agree.
____________________
SAMELA
J
I
agree.
____________________
SAVAGE
J
For
the Appellants :
Adv JW Olivier (SC)
Adv
P Eia
As
Instructed by
: DSC
Attorneys
For
the 1
st
& 2
nd
Respondents
: Adv A
Bhoopchand
As
Instructed by
: Riley
Incorporated
[1]
1990 (1) SA
680
(AD) at 700E – 701C.
[2]
2015 (4) SA 574 (SCA).
[3]
1948 (2) SA 677
(A) at 705 –
706.
[4]
Stock v
Stock
1981 (3)
SA 1280
(A) at 1296F.
[5]
2003 (1) SA 11
(SCA) at para
[5].
[6]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft fÏr
Schadlingsbekampfung mbH 1976 (3) SA 357, 371.
[7]
1984 (4) SA 432
(ECD).