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[2013] ZAGPJHC 258
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Diphoko Obo DN v Road Accident Fund (48040/09) [2013] ZAGPJHC 258 (22 October 2013)
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REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 48040/09
DATE:22/10/2013
In the matter between:
DIPHOKO ALFRED RAMPANE
obo
D N
......................................................................................
Appellant
and
ROAD
ACCIDENT
FUND
.......................................................
Respondent
J U D G M E N T
N F KGOMO, J:
INTRODUCTION
[1] This is an appeal against the whole judgement of my sister, Her
Ladyship Mayat J dated on 2 February 2012 in which she awarded,
among
others, R500 000,00 in respect of the appellant’s claim for
future loss of earnings and/or earning capacity and R400
000,00 in
respect of the appellant’s claim for general damages.
[2] The appellant contends that
the court
a quo’s
award of R400 000,00 in respect of general damages was an
unreasonably conservative award when one has regard to the nature,
extent
and permanent
sequelae
of the appellant’s injuries as canvassed in the variety of
medico-legal reports as read together with the evidence produced
by
or on behalf of the appellant; as well as the nature of the awards
made, particularly by or in this division, in more recent
and
comparable cases.
[3] The appellant submitted that an amount of R1 000 000,00 (before
apportionment) should have been awarded.
[4] In respect of the claim for future loss of earnings and/or
earning capacity the applicant contends that the amount of R3 404
129,60 should have been awarded.
COURT
A QUO’S
JUDGMENT
[5] After thoroughly evaluating
the evidence led and interrogating the expert reports available
and/or utilised during the course
of the trial, the court
a
quo
found as follows
on general damages:
“
79.
It appeared that for the most part on the basis of the cases referred
to me by the defendant’s counsel, that the amounts
awarded by
our courts for general damages in respect of mild, moderate and more
severe head injuries, together with a variety of
other injuries,
ranged from the sum of R135 000,00 to the sum of R500 000,00, in
present value terms, depending of course, on the
severity of the
case.
Against this background, the
plaintiff’s counsel submitted that general damages in the sum
of R800 00,00 was appropriate
in these circumstances and the
defendant’s counsel submitted that the sum of R500 000,00 was
more appropriate. It goes
without saying in this respect that whilst
the awards in other cases serve as a guideline, every case
ultimately depends on its
own facts and circumstances, as it seldom
happens that any case is exactly comparable to another. My view,
after taking into
account all the above facts and circumstances, and
on the basis of the agreed apportionment, that it is fair and
equitable in
these circumstances to award general damages equal to
80% of R500 000,00.
”
[6] As regards the appellant’s loss of earnings or earning
capacity the learned judge put it among others as follows:
“
Loss
of earning capacity
[68] As stated by the Nicholas JA in the well-known matter of
Southern Insurance Association v Bailey NO
1984 (1) SA 98
(AD) at
113G to 114D, in relation to the loss of earning capacity of a young
child:
‘
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.’
[69] It was undisputed that T's orthopaedic injuries would not
interfere with her career path. It must, however, be accepted that
the headaches which caused to stay absent from school, were triggered
by her accident and caused her to fail Grade 10, thus causing
her to
delay her entry in the labour market by one year. Moreover, even
though her mood disorders and related symptoms, described
by many
experts, cannot be elevated to intellectual deficits caused by the
accident, it must also be accepted that, similar to
her experience in
Grade 10, certain psychological and related ailments rooted in her
accident, may affect her future earning capacity.
In these
circumstances, it is my view, that even though the pre-accident
scenario agreed upon by Messers van Huyssteen and Mr Marais,
relating
to T obtaining a Grade 12, and progressing from a Paterson A3 job
grading level, to her career ceiling on the B3 or B4
level, also
applies to the post-accident scenario, it must be accepted that her
career progression in the post-accident scenario,
will be delayed by
at least a year.
[70] On the basis of the abovestated actuarial computations, I am
of the view that it is fair and reasonable in the circumstances
to
postulate that, but for the accident, T would have entered the labour
mrket in 2013 and the value of her earnings up to her
career ceiling
would have been the sum of R2 857 834,00. I am also of the view that
it is fair and reasonable in the circumstances
to postulate that,
following her accident T will probably enter the labour market in
2014, and the value of her earnings up to
her career ceiling will be
the sum of R2 408 996,00.
[71] As regards allowances for contingencies in the context of
both the injured and uninjured scenarios, as Trollope JA stated in
the case of Shield Insurance Co Ltd v Booysens
1979 (3) SA 953
at
965G:
‘
the
determination of allowances for such contingencies involves, by its
very nature, a process of subjective impression of estimation
rather
than objective calculation.’
Thus, allowances have to be made for unforeseen contingencies,
unemployment, errors in the calculation of future earnings, early
retirement and the general hazards of life. Obviously, such
allowances depend on the circumstances of each case and the court’s
impression of the case at hand. It is trite in this regard that the
court retains a large discretion with respect to appropriate
allowances for contingencies in both the pre-accident and the
post-accident scenarios.
[72] Allowances for the general contingencies referred to above
must be made in both the pre-accident and the post-accident
scenarios.
Moreover, in the post-accident scenario, it is my view
that allowances must be made for the possibility that Thando’s
future
academic life as well as her working life may again be
adversely affected by headaches, migraines and/or similar aliments.
Similarly,
it is also possible that Thando will in future have
certain post-traumatic psychological and emotional sequelae, such as
anxiety
and depression in the post-accident scenario. As regards
additional contingencies in the post-accident scenario, whilst Dr
Earle
reported there was no tendency to post-traumatic epilepsy, Dr
Edeling reported that Thando’s brain injury may have resulted
in a marginally increased risk of post-traumatic epilepsy, estimated
at no greater than a 5% risk during her lifetime. It is accordingly
my view that a small contingency allowance for epilepsy is also
appropriate, in the post-accident scenario.
[73] Taking all the above
facts and circumstances into account, it is my view that a
contingency allowance of 15% is appropriate
in the pre-accident
scenario and a contingency allowance of 25% is appropriate in the
post-accident scenario. As such, after allowances
for contingencies,
the value of her earnings in the pre-accident scenario can be
reasonably estimated to be the sum of R2 429 158,90,
and the value of
her earnings in the post-accident scenario can be reasonably
estimated to be the sum of R1 806 747,00. In these
circumstances,
after contingency allowances, 80% of the difference between Thando’s
actuarially computed pre-accident and
post-accident earnings can be
reasonably estimated in these circumstances to constitute a round
figure of R500 000,00.
”
THE PARTIES
[7] The appellant, Alfred Rampane Diphoko is an adult male person of
Orlando East, Soweto. He is acting in his capacity as natural
parent
and guardian of his minor daughter, N P, D(“N”) presently
17 years and 8 months age. Taking her birth date of
25 May 1995, she
would have been 14 years 1 month on the date of the motor vehicle
accident in which she was injured and which
precipitated the action
that led to this appeal.
[8] The respondent, the Road
Accident Fund, is a juristic person and statutory body established in
terms of section 2 of the Road
Accident Fund Act, 1996 (Act 56 of
1996), as amended (“
the
Act
”); which has
as its principal place of business, alternatively its chosen
domicilium citandi et
executandi
, 29
th
Floor, Marble Towers, 208-212 Jeppe Street, Johannesburg.
SHORT RESUMÉ OF RELEVANT FACTS
[9] N was crossing a street at Orlando East, Soweto, when she was hit
by a BMW motor vehicle. It was around 13h30. The accident
scene,
according to her brother who was called to it together with their
mother, is not far from her home, hence they (mother and
brother)
reached the accident scene within a few minutes of the collision.
[10] According to her brother, T,
when they reached the accident scene, they found N crying – in
fact screaming – with
her eyes wide open. She was conscious and
very pugnacious. The car that hit her transported her, the mother and
T to hospital –
some 30 minutes away. Along the way T had to
restrain her as she was agitated. She even bit him in her fight to
free herself from
his grip, all the time saying to him: “
Leave
me! Leave me!
”.
[11] At the hospital she was taken to the casualty ward where she was
restrained and sedated to calm her down. Her father, who
arrived
latter at the hospital confirms this.
[12] The history regarding N’s hospitalisation reveals the
following:
[13] She was brought to Lesedi Private Clinic in Dobsonville, Soweto
on 1 July 2008 after a motor vehicle accident. She was restless
and
crying. Her GCS was 14/15. She had a haematoma of the forehead and an
abrasion of the right shoulder. X-rays of her cervical
spine, chest
and left clavicle were done. So was a CT brain scan. A doctor (Dr
Bombil) identified a skull fracture.
[14] The primary survey revealed a self-maintained airway with
adequate breathing and a stable haemodynamism. The secondary survey
revealed the bruised forehead, racooned right eye and a GCS of 12/5
(i.e. M 5/6 V 3/5 E 4/4).
[15] She was admitted to the ICU on the same day at 16h30 in the
sedated state. She was incubated and mechanically ventilated as
a
precaution for the head injury. The sedation used during her
ventilation was Dormicum, Morphine and Etomine.
[16] Because of her initial restlessness when sedation was reduced,
orders were given to continue the ventilation but gradually
wean her
out of the sedation. These were done under the supervision of a
neurosurgeon, Dr Naidoo.
[17] Her sedation and ventilation were successfully withdrawn on the
morning of 3 July 2008. Her endotracheal tube was removed
at 11h00.
During the assessment that followed she was found to be awake and
alert and with a GCS of 15/15. She was then transferred
to the High
Care ward. The following day, i.e. 14 July 2008 she was transferred
to the general ward. Her GCS was still normal,
i.e. 15/15. Her
shoulder was held or restrained in an arm sling. On 6 July 2008 she
was discharged from hospital and she went home.
Her GCS was still
15/15.
[18] In summary, she was in ICU for less than 48 hours, High Care for
one (1) day and in a general ward for nearly two (2) days.
She was
taking Syndol, a compound analgesic, for the headaches she was
experiencing.
DAMAGES AGREED UPON
[19] The parties hadagreed that
the respondent would be liable for 80% of the proven damages of the
appellant, i.e. in his personal
and representative capacity on behalf
of the minor child, N. They had also agreed that the respondent would
issue an undertaking
in terms of section 17(4)(a) of the Road
Accident Fund Act 1996 (Act 56 of 1996) as amended (“
the
Act
”), limited
to liability for 80% of the costs for future medical and related
treatment of the minor child arising out of the
injuries she
sustained in the accident.
THE EXPERT REPORTS
[20] The court
a
quo
in my view,
adequately and comprehensively dealt with the reports of the various
experts called by either or both sides. It will
serve no purpose to
reiterate or regurgitate what was so well and admirably set out. The
learned judge did a splendid job in my
view and finding when dealing
with the different views and findings therein set out.
GROUNDS OF APPEAL
[21] I have closely scrutinised
the court
a quo’s
judgment
vis-à-vis
the appellant’s grounds of appeal. It is my considered view and
finding that these grounds needs to be fully set out herein
if one is
to comprehend their significance, and. whether there is justification
to interfere with the findings of the court
a
quo
in respect of
general damages and loss of earning capacity.
re
GENERAL DAMAGES
[22] The appellant contends that:
“
1.1
… the award of R400 000,00 was an unreasonably conservative
award, more particularly taking into consideration:
the nature, extent and
permanent
sequelae
of the appellant’s
injuries as canvassed in the variety of medico-legal reports read
with the evidence produced by the
appellant;
the nature of the award made, particularly in this division, in
more recent and comparative cases.
1.2 An amount of R1 000 000,00
(before apportionment) should have been awarded.
”
re
LOSS OF EARNINGS/EARNING CAPACITY
[23] The appellant contends that:
“…
the
trial Court … erred:
by having disregarded the agreement between the parties in
respect of the appellant’s pre-morbid career path and career
earnings, which was placed on record during closing argument at the
trial, more specifically having regard to –
the uncontested evidence of
Mr S van Huyssteen
[Industrial
Psychologist of the appellant]
that
the industrial psychologists were not in possession of the joint
minute of the educational psychologists when they finalised
their
joint minute, and were therefore unaware of the conclusion of the
educational psychologists in their joint minute that
N D
[‘
the
minor
’]
had
the accident not occurred, would have obtained some form of
tertiary qualification;
Mr Van Huyssteen’s
uncontested testimony that, premised on the conclusion of the
educational psychologists aforesaid,
who are expert witnesses
better equipped than the industrial psychologists to determine the
minor’s predicted pre-accident
educational progress, that
the ‘possible scenario’
[‘
Scenario
2
’]
referred
to in the industrial psychologist’s joint minute became the
more probable scenario;
the fact that the evidence of Mr Van Huyssteen aforesaid was
unchallenged in its entirety in cross-examination or in the
testimony
of the respondent’s industrial psychologist, Mr L
Marais;
the industrial psychologist’s pre-accident Scenario 2 in
respect of the appellant’s claim, namely that the minor
would have obtained a post-school certificate or diploma and would
then have progressed from a B2 to a career ceiling on a
C4 –
Mr Van Huyssteen’s C4 career ceiling was uncontested in
cross-examination and Mr Marais did not testify
about the
pre-accident scenario at all;
Basis B in the actuarial report of Mr G Jacobson dated 28
October 2011 to the minor’s prospective earnings, but for
the accident;
the minor’s pre-accident profile and mental and cognitive
abilities premised on speculative and untested matter and/or
evidence, and on the perceptions of lay witnesses (as reported to
medical experts) which are directly in conflict with the
findings
and conclusions of a wide range of expert witnesses;
having found that the minor’s pre- and post-accident
career progressions, apart from a one year delay in her
post-accident
scenario, would be the same, as it directly conflicts
with the overwhelming evidence produced in Court and the
concessions
made by Mr Marais;
having relied upon ‘anecdotal evidence’ of the Court
in respect of an alleged frontal lobe brain injured friend of
the
Court’s, which ‘anecdotal evidence’ fell
completely outside the ambit of the appellant’s knowledge
and
the facts and circumstances exposed and tested in the trial;
having relied
[and/or
referred]
to a number
of alleged similar examples of ‘anecdotal evidence’
within the knowledge of the Honourable Court’s
Registrar;
in her evaluation of the
overall evidence, and in particular in relation to the evidence of
Dr J Earle
[neurosurgeon]
,
more specifically –
to rely on evidence produced by Dr Earle which fell
predominantly outside his field of expertise;
to find that, according to Dr Earle, that the fact that no
psychometric testing was conducted on the minor pre-accident
disables
one to do a comparative study between the minor’s
pre- and post-accident profiles, despite the uncontested evidence
to the contrary of a variety of other expert witnesses in this
regard;
to rely on untested hearsay evidence reported to certain expert
witnesses in respect of the minor’s pre- and post-accident
profiles and abilities;
to disregard the concessions made by Dr Earle in
cross-examination, inter alia, in respect of the extracts in the
medical
literature he was referred to, the fact that a mild brain
injury can result in permanent sequelae, the possible impact of
the Bell principle on the facts in the present case and that
neuropsychological testing falls outside Dr Earle’s field
of
expertise;
to find that Dr Earle’s
testimony in respect of the minor’s brain injury and its
sequelae was more probable than
the testimony of Dr H Edeling
[neurosurgeon
employed by the appellant];
in relying on certain extracts in the minor’s pre-accident
school reports (which constituted hearsay matter and was untested
in evidence) to arrive at definite conclusions about the minor’s
pre-accident profile;
in concluding that the appellant’s counsel suggested to Mr
Marais in cross-examination that the Raven’s test performed
by Mr Marais ‘is of no value’, whereas it was suggested
to Mr Marais in cross-examination that his attempt to water
down
the minor’s bad results on the Raven’s test, attempting
to steer away from his initial evidence that this
test is of
significant importance, would suggest that Mr Marais elects to use
tests ‘which are of no value’;
by having disregarded the recorded conclusion in Mr Marais’
report that the Raven’s test was designed to cover the
widest
possible range of mental ability and to be equally useful with
persons of all ages, whatever their education, nationality
or
physical condition;
by having disregarded that the minor obtained a poor score on
the Raven’s test which is indicative of poor ability, and
that the minor should find it difficult when required to lean
additional and new tasks, will have a poor success rate in this
regard and that her future performance could be limited even though
she may have the desire and motivation to succeed;
not to conclude that the
results in respect of psychometric testing performed by Dr C Angus
[neuropsychologist],
Ms I M Hattingh
[speed therapist]
,
Ms A Crosbie
[occupational
therapist]
and by the
educational psychologists coincide with Mr Marais’ findings
and conclusions in respect of the minor’s
post-accident
ability premised on the Raven’s test results;
by having disregarded the uncontested (and agreed) expert
evidence and opinion that the minor will not be able to live
independently
in future or handle her own money;
by having disregarded Mr
Marais’ evidence in cross-examination that if a person cannot
live independently or handle money
that such a person ‘
cannot
work
’
;
by having disregarded the agreed conclusions reached by the
speech therapists and audiologists in their joint minute that –
2.14.1 the minor is socially isolated and is a vulnerable
individual;
social difficulties will continue into adulthood;
the minor is not coping on an educational level;
during the assessments the minor struggled to consolidate new
learning which will have a negative effect on her ability to
effectively deal with the large volume of work required for Grade
12;
in consequence of the minor’s communication difficulties
she will struggle to impress an employer during the first
interview;
the minor should be able to cope with low level clerical work
but an employer would need to allow additional time for her to
manage new learning, to provide continued assistance to her and
allow for a slower work pace;
the minor will not be able to compete on an equal level with
her peer group on the open labour market;
the minor will struggle to live independently as an adult and
will require supervision and assistance with the more complex
tasks in her world;
the minor will not be able to enter into contracts and all
monies awarded would have to be protected for her own and
exclusive
use;
2.15 by having disregarded the agreements of the industrial
psychologists recorded in their joint minute that –
2.15.1 the minor has difficulties on a cognitive and an emotional
level which would impact negatively on her ability to perform
academically;
the minor is not functioning on a Grade 10 level;
the minor is in need of placement in a FET institution where
she can pursue some vocational training as opposed to academic
learning;
2.16 by having disregarded the uncontested evidence of Ms Crosbie,
particularly in respect of the variety of areas of deficit found
by
her during testing and on examination, more particularly that:
the minor has a variety of delays in her gross motor skills;
the minor has slightly poor static balance;
the minor has slightly deficient dynamic balance;
the minor has poor grading and control of movements;
the minor has poor integration of movements;
the minor tends to fatigue fairly quickly, resulting in her
already poor grading and control of movements worsening;
the minor’s fatigue will negatively influence her gross
motor skills in that she will tire easily, and is unlikely to cope
with sustained gross motor demands such as any work where she
would be on her feet all day, such as a shop assistant, packer
or
on some factory assembly lines;
the minor should do structured, simple routine tasks more
physical in nature, and this will limit the minor in the type of
tasks she would need to carry out in any potential employment;
the minor’s slow work speed and fatigue may exclude her
from any task in the future that require agile eye-hand
co-ordination;
the minor will battle in an office environment should she have
to work on a computer, especially with time demands, or have to
write quickly having to take notes;
the minor will require a case manager who will inter alia
liaise with the trust for any financial needs and other situations
that may arise with the minor;
the minor would be better suited for a lower level office
administrative type of work and will need an understanding
employer
and employees;
ideally the minor’s work environment should be a quiet
one without an open plan office so that she is not in continual
contact with lots of people;
due to the minor’s fatigue time limits should be a
minimum and she will need to use compensation techniques for her
memory difficulties;
2.17 by having failed to find, with reference to the report of Ms
Hattingh and her uncontested evidence, that -
the minor’s communication profile as set out in her
report is compatible with a head injury;
the minor’s head injury is significant in nature with
symptoms of an organic brain dysfunction;
2.18 in failing to find that, on an overall conspectus of the
evidence, in particular also Mr Marais’ final conclusion that
a
person who cannot live independently and who cannot handle his or her
own money cannot work, renders the minor functionally unemployable
in
the South African open labour market;
2.19 by having disregarded the findings and conclusions of expert
witnesses in unopposed expert reports admitted by the respondent;
by failing to find that the uncontested evidence of Ms Crosbie –
2.20.1 established that purely on the minor’s psychosocial
and emotional development, it would appear that the minor has
significant
difficulties with functions that are often controlled by
the frontal lobes of the brain, which is likely to be detrimental for
the minor in any future work prospect;
further revealed that the minor’s lack of motivation and
drive, poor impulse control and lack of overall social graces,
lack of tact and social isolation, will result in her having to be
in a work situation that has an understanding employer,
is fairly
structured and not to rely on any good interpersonal relationship
skills or having to deal with the public more
than on a one to one
basis;
2.21 upon a consideration of the minor’s post-accident
deficits, not to find that the following factors will hamper the
minor
in obtaining and/or maintaining employment -
she will have to compete with healthy equal peers;
the high unemployability rate in South Africa;
the minor’s mood and behavioural problems;
the difficulty in a competitive labour market to find an
understanding and patient employer;
the difficulty in the employment market to find an employer who
is prepared to provide the structure to employees as will be
required by the minor;
the difficulties in the labour market to find an employer who
is prepared to cater for a position of limited interaction with
other employees and to ensure a ‘one on one’ job
position;
Ms Crosbie’s testimony that it is ‘very very
difficult to get job’ of this nature in the South African
Labour
market consequent upon her own experience in respect of
past attempts to place such persons in the labour market;
Ms Crosbie’s evidence that such individuals are at best,
if such positions are available, accommodated by family members
or
the Church;
Legislation that provides for applicants for employment to
disclose their full medical history, which will hamper the minor’s
prospect to obtain employment;
2.22 in failing to find that
the minor has been rendered functionally unemployable in the open
labour market,
alternatively
,
that a contingency deduction in respect of the post-accident scenario
of at least 70% should be applied;
2.23 by failing to find that the minor, post-accident, as per the
testimony of Mr Van Huyssteen, should she be able to obtain
employment,
will work in the non-corporate work sector in a
semi-skilled capacity progressing from the lower quartile value for
semi-skilled
workers to her career ceiling on the average between the
medium and upper quartile values for semi-skilled workers around the
age
of 45 years, with periods of unemployment;
2.24 in applying a 25%
contingency deduction in respect of the post-accident scenario having
regard to the admitted, uncontested
and agreed expert evidence
referred to hereinbefore, and in particular Mr Marais’
testimony that one cannot work if you cannot
live independently and
handle your own money.
”
VALUE OF EXPERTS’ REPORTS TO COURT
[24] It is so that the appellant
and the respondent called a number of expert witnesses and referred
to numerous other expert reports
whose authors were not called as
well as several witnesses to prove or disprove that the appellant
child had undergone a personality
charge by among others becoming
irrational, irritable, depressed and/or negative after the accident
and the injuries she sustained.
It is also so that the trial court is
enjoined to take all the above into account in determining the
general damages and damages
in
lieu
of loss of
earnings and/or earning capacity to be awarded. The specific personal
circumstances of child N are on record herein.
[25] An unfortunate situation has
recently come to the fore where certain expert witnesses have
over-stepped the mark of what is
expected of them by attempting to
usurp the function of the courts by expressing certain “
opinions
”
based on certain facts as to the future employability of claimants
and to express views on probabilities. As Wepener J put
it in
Nicholson Charlene v
RAF
1
:
“
[I]
t
is the function of the court to base its inferences and conclusions
on all the facts placed before it.
”
[26] In
S
v Harris
2
the court held as follows at 365B-C:
“
In
the ultimate analysis, the crucial issue of the appellant’s
criminal responsibility for his actions at the relevant time
is a
matter to be determined, not by the psychologists but by the court
itself. In determining that issue the court – initially,
the
trial court; and, on appeal, this Court – must of necessity
have regard not only to the expert medical evidence but also
to all
the other facts of the case, including the reliability of the
appellant as a witness and the nature of his proved actions
throughout the relevant period.
”
[27] Kotze J (as he was then) put
it as follows in
S v
Gouws
3
:
“
The
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specified
field. His
own decision should not, however, displace that of the tribunal which
has to determine the issue to be tried.
”
[28] I agree with Wepener J in
Nicholson Charlene v
RAF
4
that the tendency to lead expert witnesses to attempt to influence a
court with their “
opinions
”
of the very issue which is to be determined, makes it difficult for
courts to distinguish facts from inferences and opinions.
The court
should be allowed to evaluate all expert opinions and
viva
voce
evidence in the
light of all the circumstances and probabilities and ultimately
arrive at its own decision or findings.
[29] Experts should have sound
factual bases for the opinions they give, which unfortunately have
lately not been the case. This
is what Meyer AJ (as he was then)
warned against in
Mathebula
v RAF
5
at para [13] where he stated the following:
“
An
expert is not entitled, any more than any other witness, to give
hearsay evidence as to any fact, and all facts on which the
expert
witness relies must ordinarily be established during the trial,
except those facts which the expert draws as a conclusion
by reason
of his or her expertise from other facts which have been admitted by
the other party or established by admissible evidence.
”
6
[30] After assessing the expert
evidence led in this matter, I can state, that most of the experts
and/or reports compiled for this
case fell into the category
Mathebula v RAF
7
complained about.
[31] The duties of an expert
witness were clearly set out in
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd
8
as follows:
“
1.
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert uninfluenced
as to form
or content by the exigencies of litigation.
An expert witness should provide independent assistance to the
court by way of objective, unbiased opinion in relation to matters
within his expertise … An expert witness should never assume
the role of an advocate.
An expert witness should state the facts or assumptions upon
which his opinion is based. He should not omit to consider material
facts which could detract from his concluded opinion.
An expert witness should make it clear when a particular question
or issue falls outside his expertise.
If an expert opinion is not
properly researched because he considers that insufficient data is
available, then this must be stated
with an indication that the
opinion is no more than a provisional one. In cases where an expert
witness who has prepared a report
could not assert that the report
contained the truth, the whole truth and nothing but the truth
without some qualification, that
qualification should be stated in
the report.
”
[32] Davis J adopted the above
remarks in
Schreider NO
& Others v AA & Another
9
when he stated as follows at 211J-212B:
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor gives evidence which
goes beyond the logic which is dictated by the
scientific knowledge
which that expert claims to possess.
”
[33] It is unfortunate to note in
this matter also that some of the experts do exactly what should not
be done, especially falling
foul of clause 4 of the
National
Justice V Prudential Assurance
10
case.
[34] It is common cause that the
expert witnesses of the respondent mostly tendered evidence that
contradicted that of the appellant.
The approach to be followed in
such cases where there is conflicting expert evidence was set out in
Michael and Another v
Linksfield Park Clinic (Pty) Ltd and Another
11
as follows at paras [36] and [37]:
“
[36]
That being so, what is required in the evaluation of such evidence is
to determine whether and to what extent their opinions
advanced are
founded on logical reasoning. That is the thrust of the decision of
the House of Lords in the medical negligence case
of
Bolitho
v City and Hackney Health Authority
[1997] UKHL 46
;
[1998]
AC 232
(HL(E)). With the relevant
dicta
in
the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised, they are to the following effect.
[37] The court is not bound to
absolve a defendant from liability for alleged negligent medical
treatment or diagnosis just because
evidence of expert opinion,
albeit genuinely held, is that the treatment or diagnosis in issue
accorded with sound medical practice.
The court must be satisfied
that such opinion has logical basis, in other words that the expert
has considered comparative risks
and benefits and has reached ‘a
defensible conclusion’
.”
[35] Presiding officers in cases
such as the present case are also warned not to follow certain expert
witnesses’ accounts
blindly, disregarding others without much
ado. This danger was alluded to in
Lourens
v Oldwage
12
where the learned judge put it as follows at para [27]:
“
[27]
Confronted with the battery of experts on either side, presenting,
competing and contrasting evidence, the learned Judge preferred
the
evidence of the plaintiff’s experts to that of the defendant
without advancing any basis for doing so. All that he said
was that
the opinions of Professor De Villiers and Dr Parker are based on
logical reasoning but he failed to give any demonstration
of this.
The learned Judge did not give equal credit to Drs de Kock and Stein
and Professor Immelman whose views he harshly dismissed
as being
incapable of logical analysis and support. I do not share these
views. The conclusion reached was clearly wrong. It is
an approach
which this Court has recently decried in
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
where
it was said:
‘
[I]
t
would be wrong to decide a case by simple preference where there are
conflicting views on either side, both capable of logical
support.
Only where expert opinion cannot be logically supported at all will
it fail to provide:
“
the
benchmark by reference to which the defendant’s conduct falls
to be assessed.”’
The uncritical acceptance of
the evidence of Professor de Villiers and the plaintiff’s other
expert evidence falls short of
the requisite standard and the
approach laid down by this Court in
Michael v
Linksfield Park Clinic
.
What was required of the trial Judge was to determine to what extent
the opinions advanced by the experts were founded on logical
reasoning and how the competing sets of evidence stood in relation to
one another, viewed in the light of the probabilities. I
have already
indicated why I found the evidence adduced on behalf of the defendant
to be more acceptable than that of the plaintiff’s
witnesses
and why the conclusion of the trial Court I cannot stand
.”
[36] In this case, I persuaded
that Mayat J clearly warned herself against falling into any of the
pitfalls raised by the courts
in the decisions set out above. It is
my further finding that the learned judge assessed all the expert
evidence adduced and took
into account the precedents set by our
courts in line with the
stare
decisis
principle or
doctrine. Her judgment points to someone who logically and
methodically evaluated the facts and probabilities relevant
to or in
this matter. Her dealing with actuarial computations of probable
damages suffered was also objective, fair and reasonable,
She even
ordered that another actuarial calculation be made, taking into
account the fact that N failed Grade 10 post-accident.
The basis for
this new calculation was that she would consequently enter the labour
market one year later in 2014, unlike the already
computed loss which
assumed her entering the labour market in 2013. Both scenarios were
based on the same career progression.
LOSS OF EARNINGS/EARNING CAPACITY
[37] For example, it was
contended by Dr Edeling, the appellant’s neurosurgeon that N’s
traumatic brain injury was at
least moderate. Dr Earle on behalf of
the respondent testified that N suffered a mild head injury after a
very brief period of
unconsciousness
13
.
The court
a quo
correctly identified the vast differences of opinion between Dr
Edeling for the appellant and Dr Earle, the respondent’s
neurosurgeon.
[38] For instance, Dr Edeling
opined that Noluthando’s initial PTA (unconsciousness) lasted
for three hours or more prior
to her sedation and incubation in the
ICU. On the other hand, the report given to Dr Earle, as supported by
oral evidence, Lesedi
Hospital records and all the probabilities or
surrounding circumstances, was that N was certainly conscious when
her father saw
her within half an hour of her accident. Furthermore,
Dr Edeling further indicated in his report that it was possible that
No’s
non-contiguous PTA persisted for an indeterminable number
of days after sedation. However, hospital records as well as records
given to both Drs Edeling and Earle indicate that she herself
remembers being in hospital, specifically, being tied to her hospital
bed with one of her parents there near her. As such, I cannot find
that the court
a quo
erred in finding that:
“
Thus,
contrary to the suggestion by Dr Edeling relating to the
possibilities in this respect, it is my view that it was more
probable
than not that the initial dense phase of T’s PTA was
more than 23 hours, and her non-contiguous PTA did not persist for
more
than 7 days. In these circumstances, the suggestion that T
possibly sustained a severe brain injury was justifiably not pursued
by Dr Edeling.
”
14
[39] The aspect relating to N’s behavioural traits is also in
my view one of the aspects that are definitive of issues raised
in
this appeal.
[40] In his testimony in court Dr Edeling indicated that certain
behavioural traits manifested by N after the accident, were
consistent
with a brain injury. He was referring to the reports by
the appellant’s experts relating to her personality, mood,
behaviour
and her mental status as well as her ability and
reliability to plan, organise, initiate and complete tasks, as having
been affected
and impaired by her brain injury. This opinion was
contradicted by that of his counterpart on the respondent’s
side, Dr Earle,
who stated that all of the above were as a result of
N’s loss of interest in her work and typical of all teenagers.
[41] After evaluating all the
available circumstances and considering the matter, the court
a
quo
among others
concluded that:
“
[61]
It is my view that Dr Earle plausibly testified that the opinions and
observations of all the experts on record pertaining
to the averred
intellectual deficits suffered by T as a result of her accident were
obviously neutralised by the fact that none
of these experts
previously had the opportunity to assess T in their respective fields
prior to the accident. In addition, there
was nothing to gainsay the
very plausible and probable suggestion by Dr Earle that any averred
changes in T's personality, mood,
behaviour and her mental status
were attributable in large part to changes in mental and behavioural
patterns brought about by
adolescence.
15
[42] The facts and circumstances herein justify the trial judge’s
above findings. There is evidence on record that the irritable
and
moody teenager she was, N defied her mother’s objections to her
having a boyfriend at her age and that she indeed acted
or conducted
herself in the manner described post-accident even before the
accident. Those are character traits peculiarly known
to mothers of
teenagers who have not suffered brain damage. It is also revealing
that Ms Crosbie, the appellant’s occupational
therapist,
justifiably in my view also, conceded during cross-examination that
symptoms such as irritability, fatigue and poor
self-confidence could
also feature in a normal teenager or indeed in young people
generally.
[43] I thus cannot disagree with
the court
a quo’s
finding that in the peculiar circumstances of this case, the
elevation of familiar and common behavioural traits in the
post-accident
scenario by especially both Ms Crosbie and Dr Edeling
to intellectual deficits was improbable. This was particularly so
because
these experts admitted that they had not reviewed and
assessed T’s pre-accident academic reports, which incorporated
a number
of comments relating to her pre-accident psyche and
emotions.
[44] It is thus difficult to
criticise and/or disagree with the court
a
quo’s
findings
that:
“
Thus,
it cannot be ignored that T’s teachers reported at various
stages in the pre-accident scenario that she did not get
on well with
her peers, caused conflict, was
aggressiv
e
and
immature
,
over-reacted and had a
complicated
nature
,
and that she day-dreamed frequently and caused disruptions in class,
lacked critical analysis, and failed to apply and grasp concepts.
She
also did not apply herself, her achievements were
poor
,
and that she seldom met the outcomes in her learning areas.
Significantly, both Ms Crosbie and other experts described T on the
basis of similar terms in the post-accident scenario. It is also
significant in this context that T's mother reported to Mr Van
Huyssteen (appellant’s industrial psychologist) that her
parents did not perceive her differently some three years after
the
accident in relation to her aspirations for her and their
expectations of her.
”
16
The above are some of the aspects which the appellants sought to base
their monetary claims in this matter.
[45] Another aspect that the
court
a quo
had problems with and on which I agree with her, is the fact that
certain experts, especially Dr Edeling, whose experience and
knowledge in his field as a neurosurgeon cannot be disputed, had
certain material aspects of projections too generalised. The educated
doctor stated his projections in absolute terms without any
exceptions. For example, he testified that almost without exception,
brain injured children would be miserable and lonely as adults, as no
relationship would survive a brain injury, apart from that
of a
mother and child relationship. These views were negated as the child
herself reported to the experts who saw her post-accident,
such as Ms
Crosbie and Mr Van Huyssteen that she was generally sociable and
related well with her peers and friends from before
and after her
accident. There is also evidence, uncontroverted, that as in October
2011 she had a boyfriend of some three years
at that stage –
some more than 3 years after the accident.
[46] As regard N’s career
path as informed by her scholastic record, her prospects were not
that bright. On all accounts,
she was not a high achiever before the
accident. Even though she had generally passed in every grade prior
to her accident, her
academic achievements were for the categorised
in her past reports as “
inadequate
”
or “
less than
adequate
”, and
even “
poor
”
in many instances. For instance, in Term 1 of 2008, prior to her
accident in July 2008, comments in her report indicated
that her
results were poor and that she had an apathetic attitude to her work
results, which reflected in the low symbols she had
achieved. Her
results prior to her accident were also described as “
disappointing
”
by her teacher at the time. Her previous reports further reflected
adverse comments relating among others, to her lack of
critical
analytical skills and her failure to grasp and apply concepts; her
concentration levels in class and her attitude, inclusive
of the
period during 2007.
[47] It is so that she passed two
grades following her accident. However, it appears that her reports
in these two grades merely
continued the pattern of average or below
average performance or results as in the years before the accident.
There were no marked
differences in her school performances in the
years preceding her accident and the period spanning 1½ years
after the accident.
I thus agree with the court
a
quo’s
summation
that:
“
In
the circumstances, it is my view that there was no evidence to
suggest that T’s capacity to be educated was somehow impaired
by her accident, as suggested by Dr Edeling. Therefore, contrary to
Dr Edeling’s report, it appeared that Ts scholastic
difficulties were not linked to her accident. It also appeared that
Dr Edeling’s suggestion during cross-examination that
T’s
teachers might have passed her in Grade 9, one year after
[the]
accident,
on sympathetic grounds, was speculative in the circumstances.
”
17
[48] As regards the psychological
and related
sequelae
of the accident, it is significant to note that Dr Grinaker, the
appellant’s psychiatrist, reported that in the absence of
testing, N’s responses to most questions were appropriate, and
that no major clinical difficulties were apparent to him when
he
interviewed her. At a superficial level, his finding in this respect
appears to be more in line with Dr Earle’s testimony
than with
Dr Edeling’s evidence.
[49] The probabilities the
accident was traumatic to N and has resulted in heightened emotions
such as anxiety, panic attacks, a
change in sleep patterns and other
sequelae
that would invariably or possibly compromise her adult life. Evidence
herein also pointed to the accident having obviously triggered
her
headaches, which in turn resulted in her being absent from school for
40 days in 2010 – some two years after her accident.
The above
regardless, it is my view and finding that Dr Earle logically
explained this : He stated that a high absenteeism rate
from school
would invariably have impacted adversely on the performance of any
scholar, more especially a scholar of N’s
ilk and/or
capabilities, who had always performed at an average or below average
level. All parties are agreed that the headaches
are treatable and
once they have been treated, the situation would normalise, leaving
no lasting
sequelae
.
[50] It is so that Dr Earle opined that N’s ability to complete
her education and her capacity to continue in her chosen
field were
unimpeded by her accident. Nevertheless sight should not be lost that
despite her headaches being capable of being treated,
the nature of
the headaches accompanied by similar ailments may on all the
probabilities have a knack of constituting a handicap
to her
educability and consequent employability from time to time in the
future.
[51] I have perused the court
a
quo’s
judgment
and factored in the arguments and submissions made before this court.
I am satisfied that the trial judge logically, systematically
and
convincingly took into account and gave effect to the findings as
justified by the evidence and expert reports. As Nicholas
JA aptly
put it in
Southern
Insurance Association v Bailey NO
18
at 114D:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the court can do is to make an estimate, of the
present
value of the loss.
”
[52] When I went through the
appellant’s grounds of appeal and the heads of argument filed
in respect of this appeal I could
not help but come to the conclusion
that the issues raised in this appeal were indeed also raised in the
court
a quo
.
I come to this conclusion because the judgment in the court
a
quo
comprehensively
dealt with most, if not all the issues now being raised. The manner
in which the points were dealt with by the
trial judge and the
reasoning accompanying the findings of fact and law thereat leads me
to the conclusion that that court did
not err in its findings. The
court
a quo’s
treatment of issues relating to the actuarial calculations as well as
the postulations it arrived at, are in my view and finding
fair and
reasonable.
[53] As regards allowances for
contingencies in the context of both the injured and uninjured
scenarios, I also see no misdirection
that may have been made by the
court
a quo
.
[54] As Trollope JA put it in
Shield Insurance Co Ltd
v Booysens
19
:
“…
the
determination of allowances for such contingencies involves, by its
very nature, a process of subjective impression of estimation
rather
than objective calculation.
”
[55] I am convinced that the
court
a quo
was alive to the cautions inherent in the exercise of its discretion
in the above regard. This is apparent when one have regard,
among
others to what it says in its judgment
20
:
“
Thus,
allowances have to be made for unforeseen contingencies,
unemployment, errors in the calculation of future earnings, early
retirement and general hazards of life. Obviously, such allowances
depend on the circumstances of each case and the court’s
impression of the case at hand. It is trite in this regard that the
court retains a large discretion with respect to appropriate
allowances for contingencies in both the pre-accident and the
post-accident scenarios.
”
[56] I am also satisfied that the
court
a quo
was also alive to the fact that in the post-accident scenario,
allowances had to be made, and were indeed made for the possibility
that N’s future academic life as well as her working life may
again be adversely affected by headaches, migraines and/or
similar
ailments. The court
a
quo
also demonstrated
in its judgment that the possibility existed and did take same into
account, that N will in future have certain
post-traumatic
psychological and emotional
sequelae
,
such as anxiety and depression in the post-accident scenario.
[57] In allowing for an additional contingency for post-traumatic
epilepsy, the trial judge took into account the different opinions
from both sides – Dr Edeling for the appellant and Dr Earle for
the respondent – Dr Edeling had reported that N’s
brain
injury may have resulted in a marginally increased risk of
post-traumatic epilepsy of no more than 5% during her lifetime
whereas Dr Earle reported that there was no such risk.
[58] I consequently find no
misdirection on the part of the court
a
quo
in allowing a
contingency of 15% for the pre-accident scenario and 25% in the
post-accident scenario. The above I believe is in
line with what was
stated in
Southern
Insurance Association v Bailey NO
21
where at 117C-D the learned justice stated the following:
“
The
generalisation that there must be a ‘scaling down’ for
contingencies seems mistaken. All contingencies are not adverse
and
all vicissitudes are not harmful. A particular plaintiff might have
had prospects or chances of advancement and increasingly
remunerative
employment. Why count the possible buffets, and ignore the rewards of
fortune.
”
GENERAL DAMAGES
[59] I agree with the court
a
quo’s
finding on
general damages that N’s injuries included a mild head injury,
soft tissue injuries, a fracture of the right clavicle
as well as
facial and other scarring. She was hospitalised for a week, not two
weeks as she testified. This included two days in
ICU, one day in
High Care and two days in a general ward. She then spent another two
weeks convalescing at home before returning
to school. It is so that
such an accident as she was involved in was a traumatic experience
for her. Whilst she has reported mood
swings, fatigue and low energy
levels following her accident, coupled with difficulties with
remembering and concentrating, she
nevertheless passed two grades
following her accident, performing at similar levels to her
pre-accident scholastic performance.
She has headaches which resulted
in her losing 40 days of schooling in 2010, resulting in her failing
Grade 10. Her right clavicle
is sometimes painful, especially when it
is cold and she has stopped playing hockey since her accident. She
also has a visible,
transverse scar, measuring 2 to 3 cm towards the
upper centre portion of her forehead as well as a faint scarring
under her right
eye, which is less visible. She has verbalised no
longer enjoying life and it appears as if she has lost interest in
certain pursuits
such as reading since the accident.
[60] From the above it is
apparent that N’s accident has caused emotional, physical and
psychological
sequelae
.
[61] The amount to be awarded as general damages:
“…
can
only be determined by the broadest considerations and the figure
arrived at must necessarily be uncertain, depending upon the
judge’s
view of what is fair in all the circumstances.
”
22
[62] Both sides have referred to several reported and unreported
cases in support of their respective submissions. Unfortunately,
most
of them are distinguishable from the present case as they relate to
severe brain injuries and serious orthopaedic injuries,
i.e.
amputation, quadriplegia and permanent loss of vital functions.
Furthermore, many of those cases related to adults whose working
lives were irreversibly curtailed in tragic circumstances. However,
there were those that were helpful in that they were age and
injury
appropriate or there about.
[63] The general trend gleaned
from those cases that the court
a
quo
compared, the
amounts awarded by the courts for general damages in respect of
severe brain injuries together with a range of other
serious injuries
ranged between R400 000,00 and R1 250 000,00 in present value terms.
The severity of the individual injuries informed
the individual
awards.
[64] It deserves to be mentioned
that the respondent’s counsel referred the court
a
quo
to a number of
relatively older cases relating to mild and moderate brain injuries
where the awards in present value terms were
substantially less than
the amounts awarded in the cases of severe brain injuries quoted by
the appellant’s counsel. For
example, a 2003 case relating to
one
Matthews
where a 14 year old girl who had sustained a mild diffuse brain
injury and also suffered from frontal lobe symptoms as well as
behavioural and personality changes, which included difficulties with
speech, was awarded general damages in the sum of R100 000,00,
the
equivalent whereof in present values is R156 000,00. Another case
involving
Mautla
,
a 4 year old child who had suffered mild brain damage with severe
psychological
sequelae
despite never having lost consciousness, was awarded general damages
in the sum of R135 000,00 in present value terms. In a more
recent
case of
Hurter
a 20 year old woman who had sustained serious injuries, including a
baso-frontal brain injury which altered her personality, was
awarded
general damages in the sum of R500 000,00 during 2010.
[65] On the average, according to
the cases referred to the court
a
quo
by the
respondent’s counsel, general damages in respect of mild,
moderate and more severe head injuries ranged from the sum
of R135
000,00 to the sum of R500 000,00 in present value terms, depending of
course on the severity of each case.
[66] The appellants decries the amount awarded as general damages
herein, i.e. R400 000,00 especially in the light of:
“…
the
nature, extent and permanent
sequelae
of
the appellant’s injuries as canvassed in the variety of
medico-legal reports …, and … the nature of the award
made, particularly in this division, in more recent and comparative
cases.
”
They submitted R1 000 000,00 was an appropriate amount. This amount
was downgraded to R800 000,00 during closing argument.
[67] In short, the appellants are saying that of late, this division
of the High Court has tended to grant amounts for higher than
R400
000,00 in comparable cases as the one we are dealing with now.
[68] A number of such cases were relied upon by counsel for the
appellant, notably:
Dibakoane obo Mkhonto v RAF
(per Matojane AJ) (as he was then) delivered on 24 August 2009,
where a 3 year old boy with serious brain injury with devastating
sequelae
was awarded the sum of R900 000,00.
Minnie obo Nhlapo v RAF
(per Bhika AJ) and delivered on 24 August 2010) where a 5 year 11
month girl who had sustained a significant trauma of the
head
resulting in among others, various cognitive deficits, was awarded
the sum of R800 000,00.
Ramatsebe obo Ramatsebe v
RAF
(per Victor J),
delivered on 2 September 2011, where a 3 year, 9 month old boy with
mild to moderate brain injury plus tibial
fracture and
post-traumatic stress was awarded R800 000,00 in general damages.
Smith & Ngobeni v RAF
(per C J Claassen J), delivered on 29 April 2009, where a 27 year
old woman with a moderate to severe brain injury coupled
with right
and left hemisphere deficits and a wide range of executive deficits
affecting working memory, problem solving, abstract
reasoning and
having depression, was awarded R1 000 000,00 in general damages.
Gaxo v RAF
(per Saldulker J), delivered on 16 March 2012, where a 26 year old
male with severe brain injury, chest and upper limb injuries
as
well as fractures of the right humerus, pneumothorax and corneal
laceration, was awarded R900 000,00 general damages.
The
stare
decisis
principle
decrees that a lower court is bound by the decision of a higher
court. It is common cause that the Supreme Court
of Appeal, to
which judgments in the ordinary High Courts are supposed to be
subservient, for want of a better term, has pronounced
itself on
the general direction that quantums for general damages should be
or approximate. It is so, that High Courts have
of late, as alluded
to or illustrated above, have been on a jaunt of their own,
awarding general damages that by far outstrip
the kind of template
the Supreme Court of Appeal has laid down. While I concede that
exceptional circumstances found in individual
cases may justify
such awards that are not in synch with those handed down by the
Supreme Court of Appeal, I find it very difficult
to find such
circumstances in this case.
[70] The court in
De
Jongh v Du Pisane
23
,
when awarding general damages in the amount of R400 000,00, the SCA
stated among others that the tendency towards higher awards
for
general damages in the more recent past can hardly be justified. In
De Jongh
,
the court awarded R250 000,00 general damages in 2005 which equates
R429 000,00 in 2012. I find that in the peculiar circumstances
of
this case, there may be similarities with the case we are dealing
with.
De Jongh
was followed in
Road
Accident Fund v Delport
NO
24
.
[71] I agree with Wepener J when
he stated as follows in the unreported case,
Nicholson,
Charlene v RAF
25
at para [42] thereof:
“…
judges
in this division have given more liberal awards and some have given
conservative awards. I prefer to apply the
stare
decisis
principle,
i.e. that a lower court is bound by the decision of a higher court
and that I am bound by the decision(s) of the Supreme
Court of Appeal
regarding the putting
[of]
[
sic
]
an
end to the tendency by courts to award higher amounts. The liberality
or conservatism of a judge should not play a roll. The
award in
previous comparable cases is but one of the considerations which a
court should take into account when considering the
amount of damages
to be awarded.
”
[72] In any event, it is my view
and finding that the award of damages in respect of both general
damages and for loss of earnings
or earning capacity as assessed by
the court
a quo
in this appeal is beyond reproach. I see no misdirection in the way
in which Mayat J went about her duties that culminated in the
findings and order she made at the end. Nothing in my considered view
also, points to the learned judge in the court
a
quo
having erred as
alleged in the notice of appeal or heads of argument or during
argument in this Court.
[73] The appeal thus stands to be dismissed.
COSTS
[74] There are no extraordinary circumstances that may dictate that
this Court consider a different costs order than the normal
one,
which is, that costs should follow the result.
ORDER
[75] In the circumstances I would make the following order:
The appeal is dismissed with costs.
NF KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree: It is so ordered.
TM MASIPA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
L.WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE APPELLANTS: ADV G.T STRYDOM
INSTRUCTED BY : A.F VAN WYK ATTORNEYS
BOOYSENS, JOHANNESBURG
TELEPHONE NUMBER : 011-680 3406
FOR THE RESPONDENT: ADV J. MAGODI
INSTRUCTED BY : MNS INCORPORATED
SCHREINER CHAMBERS
JOHANNESBURG
TELEPHONE NUMBERS : 011- 422 1901
DATE OF HEARING : 18 FEBRUARY 2013
DATE OF JUDGMENT : 22 OCTOBER 2013
1
Unreported
Case No 07/11453 handed down in the South Gauteng High Court on 30
March 2012 at p 3 thereof.
2
1965(2)
SA 340 (A).
3
1967
(4) SA 527
(EC).
4
Supra
at p 3.
5
(05967/05)
[2006] ZAGPHC 261
delivered on 8 November 2006.
6
See
also
Coopers SA (Pty)
Ltd v Deutsche Gesellschaft fur Schädingsbekampfung MBH
1976 (3) SA 352
(A) at 371G;
Reckitt
& Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd
1993 (2) SA 307
(A) at 315E;
Holtzhauzen
v Roodt
1997 (4) SA
766
(W) at 772I.
7
Supra.
8
1993
(2) Lloyds Reports 68 81.
9
2010
(5) SA 203 (WCC).
10
Supra.
11
2001
(3) SA 1188
(SCA).
12
2006
(2) SA 161
(SCA).
13
Mayat
J’s judgment, paras [59] to [66].
14
Para
[59] of judgment of Mayat J at p 370 of paginated papers.
15
Page
23 of judgment, para [61] at folio 371 of paginated record.
16
Para
[62] of judgment.
17
Para
[64] of judgment at p 24 of judgment (folio 372 of paginated
record).
18
1984
(1) SA 98 (AD).
19
1979
(3) SA 953
(A) at 965G.
20
Para
[71] on paginated page 375 of record.
21
1984
(1) SA 98
(A).
22
Watermeyer
JA in
Sandler v
Wholesale Coal Supplies Ltd
1941 AD.
23
2005
(5) SA 434
(SCA).
24
2006
(3) SA 172
(SCA).
25
Supra
at p 25 of judgment.