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[2016] ZAGPJHC 34
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Walton v Road Accident Fund (13/40367) [2016] ZAGPJHC 34 (26 February 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
13/40367
In the matter
between:
WALTON,
GAVIN
ALLAN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
SUMMARY
Damages – action for –
bodily injuries – claim for damages for loss of earnings or
earning capacity – plaintiff
contending that he would have been
employed by company beyond retirement age of 60 – on
consultative basis –
onus
of proof – expert
evidence of Industrial Psychologist – use of the word
“
unemployable
” by expert witnesses –
plaintiff failing to prove his employability after retirement.
J
U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1] The plaintiff,
an adult retired manager, has instituted action against the defendant
for alleged damages. The damages related
to certain injuries
described below, sustained by the plaintiff in a motor vehicle
accident which occurred on the N17 Freeway,
Brakpan, near the
Carnival City, on 10 February 2013.
THE
PLAINTIFF’S CLAIM AND INJURIES
[2] As a result of
the collision, the plaintiff sustained the following injuries:
soft-tissue injuries of the lower cervical spine;
fractures through
the distal shafts of the right tibia and fibula as well as through
the neck of the fibula; a comminuted fracture
of the right distal
femur; and the
sequelae
to
the injuries, which include,
inter alia
,
pain and suffering, shock, loss of amenities, disablement and
disfigurement. For what may become relevant later, in the
particulars of claim, the plaintiff claimed the amount of R4 590
965,00 (four million five hundred and ninety thousand nine hundred
and sixty five rand). The defendant filed the usual plea of
first, denying the plaintiff’s particulars of claim.
In
the alternative, the defendant pleaded contributory negligence on the
part of the plaintiff, and/or that ‘
should
it be found that the plaintiff did sustain the alleged bodily
injuries, in that he received medical treatment, and that the
injuries sustained and their sequelae have given rise to damages,
including non-pecuniary damages as alleged (all of which is still
denied), then in that event the defendant pleads that it is not
liable to compensate the plaintiff for non-pecuniary damages, as
the
plaintiff’s injuries are not of a serious nature
’.
THE
ISSUE FOR DETERMINATION
[3] However, in
spite of the above contestation on the pleadings, by the time the
trial commenced before me, certain developments
in regard to the
settlement of the matter had occurred. The rest of the
plaintiff’s heads of damages, including past
medical expenses
and general damages, as well as the provision of an undertaking by
the defendant as envisaged in sec 17(4)(a)
of the Road Accident Fund
Act 56 of 1996 (“
the Act
”),
if necessary, had been settled between the parties. The only issue
for determination in this trial is the plaintiff’s
claim for
loss of earnings and earning capacity.
[4] In regard to the last-mentioned
head of damages, the parties agreed in exhibit “A”, as to
what was exactly still
outstanding and what the court is called upon
to determine. In this regard, exhibit “A” provides
as follows:
“
1.
The parties are agreed
that the only issues for determination are:-
1.1
whether
the plaintiff but for the accident would have retired at the age of
60 (the normal retirement age at Element Six) or aged
70;
1.2
whether
the plaintiff is presently unemployable or not.
2.
If
the plaintiff should retire at age 60 then the parties accept the
Actuarial Calculation of Mr Minnaar in the sum of R184 264.00.
3.
If
the plaintiff should retire at age 70 then the parties accept the
Actuarial Calculation of Mr Minnaar in the sum of R4 088 264.00.
4.
The
parties are agreed that the medico-legal report of the Orthopaedic
Surgeons and the Occupational Therapist are what they purport
to be
and can be relied upon as those experts have given that evidence in
court.
”
Annexure “A”
is dated 14 October 2015.
THE
PLAINTIFF’S EVIDENCE
[5] Three witnesses
testified for the plaintiff, whilst the defendant called one witness,
as described later below. The plaintiff
himself testified, in
broad outline, as mentioned immediately below.
[6] At the time of
his evidence he was about 55 years old (date of birth being [......]
1960). He holds a National Diploma
in Electrical Engineering,
as well as a Higher National Diploma in Electrical Engineering.
He commenced employment with Element
Six Production (Pty) Ltd
(“
Element Six
”),
the company referred to in annexure “A” above, from 1
April 1982. Element Six was involved in the production
of
synthetic diamond products, ranging from oil and gas drill bits that
are used to drill oil and gas. He was employed as
Capital
Projects Manager. His annual income was about R918 193,00. The
accident in question occurred on 10 February 2013.
[7] The plaintiff’s
employment with Element Six came to an end on 29 May 2015 when he was
retrenched under what appears to
be controversial circumstances.
Prior to the accident, the plaintiff says he had no known ailments.
However, as a result
of the injuries sustained in the accident, he
was unable to perform his duties as before. He became severely
restricted in
performing his duties.
[8] He testified
that although the prescribed retirement age at Element Six was 60, it
was his intention to stay on as a consultant
to his employer.
In his view, staying on was an option since it was a practice at
Element Six for employees who had left
the company, with special and
specific skills to be employed as consultants up to their 70’s
as in age. He disputed
the suggestion that he was retrenched
together with other approximately 300 employees as an operational
matter. He is of
the view that had it not been for the
accident, he would have been employed by Element Six. He was
performing highly skilled and
essential services at Element Six and
he was at the pinnacle of his career at the time of the accident, so
much that upon his departure,
somebody else replaced him. The
replacement is Mr Steven Wood.
[9]
In cross-examination, and when referred to the Retrenchment
Agreement, which he signed in May 2015, the plaintiff conceded that
he was in fact retrenched. It had nothing to do with the accident. It
is significant that clause 1 of the Retrenchment Agreement,
[1]
provides that:
“
The
company and the employee agree that the employment of the employee
with the company will terminate with immediate effect due
to the
employee being retrenched from the company. Accordingly, it is
certified and agreed that the employee’s employment
terminates
due to retrenchment on 29 May 2015.
”
[10] Further, in
cross-examination, the plaintiff conceded that the accepted and
compulsory retirement age at Element Six was 60.
When put to the
plaintiff that the option of employment of employees after 60 years
was dependent entirely on the discretion of
the Board of Element Six,
the plaintiff somewhat disagreed. He said that to the best of
his knowledge employees over 60 years
have been given short-term
contracts pursuant to negotiations with the person in charge of the
projects department at Element Six.
This was done in
consultation with the General Manager. He said that this would
be followed by an agreed short-term contract
signed by all parties
before any form of contractual post-retirement would take place.
The plaintiff was confident that,
like other employees who were given
consulting contracts post-60 years, and up to 70 years, he would have
been offered such employment,
had it not been for the accident. This
would have occurred if and when the need arose within Element Six.
The plaintiff conceded
that he informed his Industrial Psychologist
that the other option he had was probably to work as a sole
proprietor in future.
THE
EVIDENCE OF MR HERSCHEL
[11] The evidence
of the plaintiff’s second witness, Mr Donald R Herschel
(“
Herschel
”),
was somewhat controversial as it appeared to be biased overly, in
favour of the plaintiff. It is significantly opposed
to the
evidence of the defendant’s witness, Ms N Tshabalala, Element
Six’s Human Resources Partner at the time, as
shown later
below. It had associated companies or branches throughout the
world. At the time of his testimony he was
employed by a
company called Mega Enterprises. Before that, he was employed
by Element Six from 2009 in the position of the
Engineering Project
Manager for Zapro site. Zapro was Element Six’s South
African operation.
[12] Herschel
testified that when he joined Element Six, the plaintiff had already
been employed there for several years, doing
site projects. The
plaintiff had good and unique skills in what he was doing. The
plaintiff did not report to Herschel initially
but did so in the last
three years of Herschel’s employment. The plaintiff performed
his duties well, but after the accident,
the plaintiff became
basically desk-bound, performing administrative and consultative
functions only. As a result additional
resources had to be
secured to work with the plaintiff.
[13]
On the issue in dispute in this matter, Herschel conceded that at age
60, the plaintiff would have been placed on mandatory
pension and
entered retirement. However, there was a strong likelihood that
the plaintiff would have been employed by Element
Six on a
contractual basis post-60 years. There were other two employees who
worked in this fashion until the ages of 73 and 68,
respectively.
“
Sometimes
these contracts were yearly contracts. Sometimes they were
month-to-month. Sometimes three months at a time,
”
[2]
he said. The plaintiff was only about 54 years at the time of
the accident. He conveyed his views to the plaintiff’s
Industrial Psychologist, Mrs Van Zyl. Had it not been for his
retrenchment at the end of July 2015, the plaintiff would easily
have
worked until age 70. Pursuant to the retrenchment, somebody
else replaced the plaintiff.
[14] Although he occupied a position
two levels below the CEO at Element Six, Herschel said he had the
requisite power to extend
the plaintiff’s employment beyond age
60. In cross-examination, Herschel was, however, rather evasive
as to when exactly
and for what period the plaintiff purportedly
reported to him. The same applies to his initial assertion that
he had authority
to retain the plaintiff beyond age 60.
However, such extension would still be dependent on approval by the
Managing Director,
who was not Herschel. Herschel conceded that
management regarded the plaintiff as a liability to the company. He
was no longer
employed by Element Six and therefore could not
influence management’s decision to retain the plaintiff
post-accident.
He refuted that he and the plaintiff were
retrenched at the end of July 2015 together with other approximately
300 employees for
operational reasons. He asserted that he
worked for the company until end of August 2015. He had no
evidence at all
that the plaintiff was retrenched because of the
accident. More about the nature of Herschel’s evidence
later.
THE
EVIDENCE OF THE PLAINTIFF’S INDUSTRIAL PSYCHOLOGIST
[15] Mrs J van Zyl,
an Industrial Psychologist, testified on behalf of the plaintiff.
She originally assessed the plaintiff
on 29 August 2014, and brought
out a report during January 2015. She also brought out an
addendum or supplementary report
in October 2015.
[16]
In brief, in her original report, Mrs Van Zyl testified and concluded
that: the plaintiff presented with a high risk
that his
employer may be unwilling or unable to accommodate him in a sedentary
position, or alternatively, that his employment
may be terminated in
future, should the company institute further restructuring,
cost-saving, and retrenchments; and that, for
example, the plaintiff
may be placed on early retirement, as he is presently 54 years.
Should this scenario occur, its is
unlikely that the plaintiff will
secure alternative employment in the open labour market, given his
age and work limitations, as
well the competitive labour market.
[3]
[17]
In regard to the possibility of the plaintiff continuing to work
post-age 60, Mrs Van Zyl made it clear that she relied on
only what
Herschel told her. In this regard, when asked in evidence-in-chief
whether the plaintiff, upon departure from Element
Six, would be able
to be employed elsewhere as a consultant or an electrical engineer at
age 60, Mrs Van Zyl asked the question,
“
In
the open labour market?
”
Then thereafter said: “
My
lord, that is difficult to say. He may have.
”
[4]
It is common cause
that the plaintiff received a retrenchment package.
[18]
Again whilst testifying in evidence-in-chief, Mrs Van Zyl expressed
the view that, in the light of the orthopaedic injuries
the plaintiff
sustained in the accident (a grade 3 compound
supra
condylar
fracture of the right femur and grade 3 compound fractures of the
right distal tibia and fibula), it was unlikely that
he would have
obtained alternative and sedentary employment in the open labour
market.
[5]
I should make the brief observation here that this opinion is clearly
in conflict with the view, or any view, that the plaintiff
would have
worked beyond age 60, up to age 70, as suggested by Herschel.
[19] The above picture became clearer
in cross-examination. Mrs Van Zyl conceded that although she
consulted with Herschel in August
2015, when she made a follow up,
Herschel informed her that he had since left Element Six. She did not
consult a person/s more
senior to Herschel. She did not ask
Herschel whether he was clothed with authority to extend plaintiff’s
employment
post-60 years. Neither did she discuss with Herschel the
full implications of being a consultant for the company
post-retirement.
She gained the impression later that the
plaintiff was selected for retrenchment due to his difficulties to
perform as a result
of the injuries sustained in the accident.
THE
DEFENDANT’S EVIDENCE
[20] The final
witness in the trial was Ms Nhlanhla Tshabalala (“
Tshabalala
”),
who testified for the defendant. She testified as the HR Business
Partner of Element Six. The retirement age at
Element Six was
60. The plaintiff, together with Herschel, and other
approximately 300 employees, were retrenched by the
company for
operational reasons at the end of May 2015.
[21] She testified
that the company had the practice of keeping on employees after
retirement, but this was purely for the purposes
of skills transfer
to the new employee. This would normally last for six months or
twelve months, or depending on the retrenchment
process. The
decision was in the sole discretion of the General Manager. In
her records, there was no employee that
replaced the plaintiff after
his retrenchment.
[22] Tshabalala was
cross-examined. She was first employed by Element Six in
February 2005. Herschel, who was retrenched
in May 2015, and
not August 2015 as he testified, did not have the authority to
influence the decision of management. In
my view, the evidence
of Tshabalala suggests that, when Herschel joined the company in
2009, he found Tshabalala there.
[23] The
defendant’s Industrial Psychologist, R T Ntsieni, did not
testify as he or she was not at court, and could not be
traced when
required to testify for some inexplicable reason. The court
refused to postpone the matter further as there was
no reasonable
likelihood that the witness would come to court, at any stage.
[24]
On the basis of the above evidence, the court was called upon to
decide the issue in dispute as set out in exhibit “A”.
The pertinent issue is essentially whether the plaintiff would
probably have continued working for Element Six as a consultant
post
age 60, on his version, or whether he was retrenched by Element Six,
not due to the injuries sustained in the accident, but
for
operational reasons, as contended by Element Six. In
determining the issue, on which the plaintiff bore the
onus
,
[6]
the probabilities must of necessity be considered. In the end, the
Actuarial Calculation of the plaintiff, depending on the finding,
are
not in dispute as such.
[25]
First, the nature of the plaintiff’s claim of loss of earnings
and earning capacity. In
President
Insurance Co Ltd v Matthews
,
[7]
the court said:
“…
,
he is entitled to be compensated to the extent that his patrimony has
been diminished in consequence of such negligence. This
also takes
into account future loss. His damages therefore include any
loss of future earnings or future earning capacity
he may have
suffered. (See Santam Versekeringsmaatskappy Bpk v Byleveldt
1973 (2) SA 146
(A) at 150A-C.) A precise mathematical calculation of
such a loss is seldom possible because of the large number of
variable factors
and imponderables which come into play. It is
recognised, however, that ‘the monetary value of loss of
earning capacity may
be proved in a variety of ways, depending on the
facts of each case’. (Per Rumpff CJ in Dippenaar v Shield
Insurance Co Ltd
1979 (2) SA 904
(A) at 917F.)
”
RESOLUTION
OF FACTUAL DISPUTES
[26]
In as far as resolving factual disputes, and determining
probabilities, such as in the present matter, one of the classical
cases is
Stellenbosch
Farmers’ Winery Group Ltd v Martell et Cie,
[8]
which,
at the risk of prolixity, I must re-visit:
“
To come
to a conclusion on disputed issues a court must make findings on (a)
the credibility of the various factual witnesses; (b)
the
reliability; and (c) the probabilities. As to (a) the court’s
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias,
latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on
his behalf, or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of
particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incident or evens. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of the assessment of (a), (b) and (c) the
court
will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it. The
hard
case, which will doubtless be the rare one, occurs when a
court’s credibility findings compel it in one direction and its
evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter.
But when all factors are equipoised probabilities prevail.
”
APPLICATION
OF LEGAL PRINCIPLES
[27] In applying
the legal principles to the facts of the instant matter, I am more
than convinced that the plaintiff has neither
discharged the
onus
of proving his assertions, nor on a balance of probabilities, nor
made out a case to show that the balance of probabilities favoured
his case. This, for a number of reasons apparent from the evidence.
[28]
In the first place, the entire basis of the plaintiff’s
contentions and, rather ambiguous aspirations, were premised
on what
Herschel told the plaintiff. There was no official confirmation or
evidence from Element Six to support the contentions
– that the
plaintiff would be granted a contract post the age of 60 – on a
consultative basis. Regrettably, the
aspirations and hopes of
plaintiff without any basis, were conveyed to his Industrial
Psychologist, Mrs Van Zyl, to support in
her reports without
confirmatory collateral and independent evidence. The opinions
and expert evidence of Mrs Van Zyl, based
on the evidence of
Herschel, clearly cannot be sustained. In her summary of her
original report,
[9]
Mrs Van Zyl opined that:
“
Mr
Walton
[the
plaintiff]
was
employed as Projects Manager at Element Six. But for the
accident, Mr Walton would probably have continued with his employment
as Capital Projects Manager, or similar position, at his employer.
He was probably motivated to work until retirement.
On 10
February 2013, Mr Walton was involved in a motorcycle accident in
which he sustained orthopaedic injuries. These injuries
have
resulted in permanent impairment and have significantly curtailed Mr
Walton’s working capacity, as set out in the report
.”
(underlining added)
In addition, in her
supplementary report or addendum dated 8 October 2015, Mrs Van Zyl
opined that:
“
With
regard to Mr Walton’s post-accident employability, the writer
concludes that Mr Walton was probably retrenched from his
employment
at Element Six with effect from 29 May 2015 due to the injuries
sustained in the accident in question. The writer is
of the opinion
that it is unlikely that Mr Walton will secure alternative employment
in the open labour market, given his age and
work limitations, as
well as the competitive labour market. The writer is of the
opinion that Mr Walton has probably suffered
a total loss of earnings
from the date of his retrenchment until the retirement age of 60
years. The writer notes that Mr
Walton received a retrenchment
package. The writer is of the opinion that Mr Walton probably
suffered a loss of potential future
earnings in respect of the
consulting work that he would have been able to undertake at his
employer until the age of 70 years.
”
[10]
The opinion
immediately begs the question why the employer, Element Six, from a
business point of view, and operational reasons,
would be inclined to
continue employing an employee post-retirement age, who is “
unlikely
… to … secure alternative employment in the open labour
market, given his age and work limitations, as well
as the
competitive labour market
”.
Viewed in whatever way, this is highly improbable in the
circumstances. In addition, the expert evidence of
Mrs Van Zyl,
which is flawed, as pointed out above, cannot be allowed to usurp the
function of the court. It is also trite
that the court must not
blindly accept expert testimony. It must be so, despite the
plaintiff’s overstated special
skills as alleged by Herschel.
It must be recalled that the submissions were equally in direct
conflict with the evidence
of Tshabalala who testified for the
company. In my view, the opinions of Mrs Van Zyl came through
as somewhat contradictory
when properly considered. Indeed, in
cases of this nature, expert witnesses often contend that claimants
have become ‘
unemployable
’,
without much ado. In Webster’s
New
World Dictionary
, the word
‘
unemployable
’
is defined as “
not employable,
specific because of severe physical or mental handicaps, outmoded
skills, etc
”, whilst the word
‘
unemployed
’
is defined as “
not employed;
without work, not being used
”.
In “
the Satchwell report: an
analysis of and comment on the findings of the Road Accident Fund
Commission
”, the learned authors
at p 689 state that:
“
Future
loss of earnings or future loss of earning capacity may be described
as the loss suffered where a victim is temporarily or
permanently
precluded from earning what he or she was earning before the
accident.
”
In my view, and
upon a proper construction of the word ‘
unemployable
’,
it was highly unlikely and improbable that Element Six would have
continued to employ the plaintiff post-60 years if he
was truly
unemployable. Based on this finding, the fact that the defendant’s
Industrial Psychologist did not testify in the
end, did not help the
plaintiff’s cause.
FURTHER
PROBLEMS WITH HERSCHEL’S EVIDENCE
[29] There is yet
another reason why on the disputed issues, the probabilities do not
favour the plaintiff’s cause. This is
based on what I prefer to
label as Herschel’s patently unreliable evidence. It is common
cause that at the time of his testimony,
he was no longer employed by
Element Six. He said that he only left the employment of
Element Six in August 2015. There
was no documentary proof of
this assertion. On the contrary, Tshabalala, the Human Resources
Partner of Element Six, testified
that he was part of a group of some
300 employees, including the plaintiff, that were earmarked for
retrenchment, for operational
reasons, with effect from 29 May 2015
already. There was no credible evidence to the contrary in this
regard. Tshabalala
was explicit in her evidence that the
plaintiff was retrenched, and given a retrenchment package, not due
to his post-accident
physical and mental condition, but for
operational reasons only. The plaintiff consented, and indeed,
signed the written
retrenchment package, as mentioned earlier.
He cannot ‘
have his cake and eat
it
’, at the same time.
[30] In any event, Herschel was by
far, not a credible witness. This for a number of reasons. He
was plainly biased in favour
of the plaintiff. He exaggerated
his evidence in large measure. He was evasive on crucial issues,
particularly regarding
the ostensible authority to extend the
plaintiff’s contract beyond 60 years of service. The
overwhelming evidence in
regard to this aspect, is that the ultimate
discretion to extend employees’ employment beyond the official
and compulsory
retirement age was that of the Managing Director of
Element Six. In his unduly aggressive manner, Herschel conceded that
he could
not, and was not authorised to represent Element Six’s
official view and operational policy view on this aspect. The
examples of previous employees, whose contracts were extended by the
company, as conceded partially by Tshabalala, were patchy
and dingy,
to say the least. In the end, I was sufficiently convinced that
the evidence of Herschel, viewed holistically,
was highly improbable.
[31]
The evidence of the plaintiff, coupled with that of its source,
Herschel, was so improbable that it could not prove on a balance
of
probabilities, what they alleged could be the case. In
Miller
v Minister of Pensions
,
[11]
it was said:
“
It must
carry a reasonable degree of probability but not so much as is
required in a criminal case. If the evidence is such
that the
tribunal can say ‘we think it more probable than not’,
the burden is discharged, but if the probabilities
are equal it is
not
.”
See
too,
Ocean
Accident and Guarantee Corporation Ltd v Koch
,
[12]
Pergrine
Holdings.
[13]
In the instant case, the plaintiff’s evidence fell short of
these requirements. The evidence was largely ambitious
and
speculative, which all misled Mrs Van Zyl. The evidence of Tshabalala
cannot be faulted, in spite of its patent unsatisfactory
features.
THE
CASE LAW RELIED UPON
[32] The plaintiff
relied on the usual relevant case law, such as
Southern
Insurance Association v Bailey NO
1984
(1) SA 98
(A), re-enforcing the approach by the courts to the inquiry
into damages for loss of earning capacity. On the other hand,
the defendant referred to unreported cases such as
Nienaber
v Road Accident Fund
(A5012/11) [2011]
ZAGPJHC 150 (27/10/2011) and
Roe v Road
Accident Fund
(2009) 16157) [2010] ZAGP
JHC 19 (1 April 2010). In the latter case, Van Oosten J, found that
the plaintiff failed to prove that
impairment of his capacity to an
income will result in the production of a lesser income in the
future, and therefore pecuniary
loss. In the
Nienaber
case, a decision of a full court of
this division, the Court dealt with an appeal against an award made
by the high court, in respect
of the appellant’s future loss of
earning capacity. The appeal succeeded substantially on an
aspect which is not material
to the present matter. I have had
regard to all the other authorities and case law referred to by both
parties.
[33] Based on the
above I have come to the conclusion that the plaintiff has not proved
that he would have continued to work for
his employer post-age 60, as
he contended. The fact that he sustained injuries in the accident,
and that he was subsequently retrenched,
appear to me to have been
purely incidental occurrences. He would have most probably retired at
the age of 60, the normal retirement
age at Element Six, and not at
age 70. He is presently unemployable on his and Mrs Van Zyl’s
evidence. The Actuarial
Calculation of Mr I J Minnaar, of the
Consulting Firm, Clemans, Murfin and Rolland, should be accepted by
the court. It was
agreed upon by the parties in the amount of
R1 814 264,00, as contained in annexure “A”, and being
the plaintiff’s
claim for loss of earnings in the event of the
above finding. The court was not provided with details of the
settlement regarding
plaintiff’s other heads of damages
(general damages and past and future medical expenses).
However, the court was informed
that these damages were in fact
settled by the parties previously. I need to say no more in
regard to these damages.
COSTS
[34] The costs
should follow the result. The issue in dispute was fully argued
pursuant to the hearing of oral evidence from both
sides.
ORDER
[35] In the result
the following order is made:
35.1
The
defendant shall pay to the plaintiff the agreed amount of
R1 814 264,00 (one million eight hundred and fourteen
thousand two
hundred and sixty four rand), being the plaintiff’s loss of
earnings as a result of the accident on 10 February
2013.
35.2
Interest
on the aforesaid amount at the rate of 15% per annum from 14
(fourteen) days of the date of this judgment to date of payment.
35.3
Costs
of suit, such costs to include the qualifying expenses and costs of
the expert witness, Mrs J van Zyl.
__________________________________________
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF
B ANCER SC
INSTRUCTED
BY
NORMAN BERGER AND PARTNERS INC
COUNSEL
FOR THE DEFENDANT
MS I BOKABA
INSTRUCTED
BY
NINGIZA HORNER INC
DATES
OF HEARING
15-16 OCTOBER 2015
DATE OF
JUDGMENT
26 FEBRUARY 2016
[1]
See
bundle vol 6 pp 541 to 543.
[2]
See
transcript p 24 lines 14-15.
[3]
See
transcript p 7.
[4]
See
transcript p 7.
[5]
See
transcript p 9.
[6]
See
Koster
Ko-op Landboumaatskappy v SA Spoorweë en Hawens
1974 (4) SA 420
(W) at 425 and
New
Zealand
Construction
(Pty) Ltd v Carpet Craft
1976
(1) SA 345 (N).
[7]
1992
(1) SA 1
(A) at 5C-E.
[8]
2003
(1) SA 11
(SCA) at 14 to 15.
[9]
See
vol 3, plaintiff’s index for trial, p 318.
[10]
See
vol 3, plaintiff’s index for trial, p 582.
[11]
1947
(2) All ER 372
at 374.
[12]
1963
(4) SA 147 (A).
[13]
2001
(3) SA 126.