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[2018] ZAGPJHC 41
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Ntombela v Road Accident Fund (209709/2016) [2018] ZAGPJHC 41; 2018 (4) SA 486 (GJ) (19 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
yes
OF
INTEREST TO OTHER JUDGES: yes
CASE
NO: 209709/2016
In
the matter between:
THOKOZANI
NQOBILE NTOMBELA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
Headnote
Personal
injury claim against RAF – sole issue before court was loss of
past and future earnings
On
the facts, found: - that after surgical intervention to reset a
fractured clavicle that had not initially been set properly,
the
pain, discomfort and limitations to the agility of the plaintiff
would be materially alleviated – that the case for a
forfeiture
of promotion prospects at the plaintiff’s employer not proven –
that a case to establish facts upon which
to compute a loss of income
from part-time participation in weekend motor car repairs work not
proven
Only
losses established were past loss of earnings of overtime, forfeited
whilst convalescing, and the risk of future loss of salary
and
overtime during convalescence after surgery to repair the clavicle
malunion – award duly made in respect thereof.
Failure
of expert witnesses to comply with the dictates of the Gauteng Local
Division - Practice Manual Practice manual requires
experts to meet,
and minute their agreements and disagreements and state reasons for
disagreements stipulating whether the disagreement
stems from
clinical observations or opinions based on facts – save one
pair of experts, the rest in default – costs
of such joint
minutes disallowed; also attorneys ordered not to charge clients for
any work done in respect of the joint minutes
Industrial
Phycologists reports woefully inadequate – both composed
reports on the premise of information given about the
promotion
prospects of the plaintiff – the source was a person with no
authority to speak on behalf the employer and in any
event displayed
the attributes of a loyal champion of the plaintiff; a clearly
unreliable source – costs of the reports and
the joint minutes
disallowed.
Sutherland
J
Introduction
[1]
On 7 April 2015, the plaintiff, Nqobile Ntombela (Ntombela,) was
injured in a motor collision. He sued the defendant, the Road
Accident Fund (RAF) for compensation. Several issues have been
resolved by agreement. The RAF conceded that it is liable
to
compensate the plaintiff. An undertaking, as regards future medical
expenses, in terms of section 17(4)(a) of the Road Accident
Fund Act
has been tendered and accepted. A Claim for past medical
expenses is at present being audited, and a decision on
that head of
damages has been deferred. A claim for general damages has been
met with a refusal to certify that the plaintiff
is eligible for such
claim in that there is no serious long-term injury. That claim has
also been deferred, and a decision by the
plaintiff whether or not to
challenge that view remains to be taken. In this trial the only issue
for decision by the court is
whether or not there has been any past
loss of earnings and any loss of future earning capacity, and if so,
the quantification
of damages in respect thereof.
[2]
The core issues are:
2.1.
The exact
nature of the sequelae of the injuries sustained.
2.2.
What the
appropriate sum is to award for time that will be spent convalescing
after remedial surgical intervention.
2.3.
Whether or
not any overtime income stream with his employer, Virgin Active
Health, has been forfeited in consequence of the injuries,
during the
initial period of convalescence, and if so, the quantification
thereof.
2.4.
Whether or
not the career path of the plaintiff within Virgin Active South
Africa (Pty) Ltd, the plaintiff’s employer, has
been inhibited
by reason of any present disability or, in future, by any residual
disability, assuming recommended surgical intervention
achieves its
optimal outcome, which present or future disability, in turn, might
diminish his earning capacity.
2.5.
Whether or
not the plaintiff earned an income as a part time motor mechanic, and
if so, what his earnings were and are, and in turn
whether there is
adequate information thereon to compute a loss.
2.6.
The
computation of damages.
The
sequelae of the injuries
[3]
The plaintiff sustained a mild head injury, a bruised sternum, and a
broken left clavicle in the collision.
[4]
According to the reports of the neuro-surgeons, Dr Earle and Dr Moja,
there is no evidence of there being any lasting effects
from the head
injury. The plaintiff has complained of what he calls some memory
loss. The hard evidence for this is barely
existent, and on the
probabilities, as addressed hereafter, any troublesome memory is
attributable to being distracted because
he is often in pain owing to
the clavicle injury and experiences anxiety about his job security
and prospects. Tests demonstrating
a lack of cognitive deficits
performed by Ms Kok, a clinical Psychologist, substantiate and
corroborate these conclusions. No more
need be said about the head
injury, nor was it seriously pressed in the trial. The Sternum injury
also has caused no adverse long-term
consequences and was not
addressed at all during the trial.
[5]
The important injury is the fracture to the left clavicle. The bone
has not been properly set in place and the malunion is visible
in a
prominent raised position. He experiences ill effects. The
plaintiff’s reports of symptomology to the various
medical
practitioners varies considerably. There is no need to make much of
these variables, as it is clear that he experiences
pain. He has a
slight asymmetry derived from the injured area. He feels radiated
pain to the elbow, suggestive of an impingement
of a nerve in the
neck and shoulder region. He gets a stiff neck and headaches. He
takes Grandpa powders for the headache and no
medication for other
pain, but he does use a warm compress against the neck and shoulder.
All of these experiences of pain can
be found to be genuine. The
ability to go without pain killers, other the Grandpa, is
significant.
[6]
The obvious issue to explore is his range of movement. The
Occupational Therapists, (OTs) Ms Shakoane and Ms Leshika both
performed tests. The tests by Ms Shakoane show that the left arm is
slightly inhibited as to flexion (hands up in air in front,
above the
head) and abduction (arms stretched out laterally alongside the
head). The maximum degree of movement is 180 degrees;
ie parallel to
the body. According to Ms Shakoane, the plaintiff achieved 160
degrees for both flexion and abduction. The test
is a measure of
reach limited by pain. Ms Leshika, also did these tests, but omitted
the details from her report which apparently
reflect that he has
‘full reach’ (ie, supposedly,180 degrees). The report of
the Orthopod, Dr Schepers, states that
he found ‘full range’
in the joints. The difference between 180 and 160 is the difference
between hands right up compared
to not quite right up, akin to a
fascist salute. Pragmatically, the difference is modest. It is the
endurance of such postures
that is the nub of the condition and the
patient’s pain tolerance.
[7]
An important fact is that both OTs contradict Dr Volkersz, the
orthopaedic surgeon, who asserts that abduction above the shoulder
is
not possible for the plaintiff. Dr Volkersz’s movement range
tests has the right arm flex to 160 degrees and abduction
to 160. The
left arm results were 120 and 85 degrees. Volkersz defers to the OTs.
In my view the OTs view is to be preferred. What
influences Dr
Volkersz’s view is his diagnosis that there is rotator cuff
injury, which by its nature is a wearing-away type
of injury that
over time is guaranteed to deteriorate. Dr Schepers, the counterpart
of Dr Volkersz, made no comment about a possible
rotator cuff injury.
Dr Volkersz had a sonargram performed, the supposed source of
the data from which to infer that condition,
Dr schepers did not.
In his report Dr Volkersz says
“
[The
Plaintiff] has also got limitation of abduction of the left shoulder
and ultrasonographically there is evidence of damage to
the left
rotator cuff” .
No
reference was made in evidence to the actual sonar report by Dr F C
Bocchiola of Sunninghill Radiology Department. The report
itself does
not substantiate the conclusion of Dr Volkersz. Much of the report
describes the tendons at the base of the neck which
are impacted by
the asymmetry caused by the malunion of the clavicle. The
remarks relevant to the shoulder joint are these:
‘ …
.
there is no evidence of subdeltoid or sub-acromial bursitis….
The AC joints bilaterally appear maintained” (ie, in
plain
English, the left shoulder joint is normal and there is no
inflammation of the left shoulder joint).
The
accompanying X-ray report notes that the-
‘
AC
joint (part of the shoulder joint) appears intact, the glenohumeral
joint (ie the inner part of the shoulder joint) is intact,
there is
no soft tissue calcification, [and] there is no deformity of the
scapula (top of shoulder bone) which appears intact and
no definite
evidence of fracture demonstrated’
In
short, the evidence for such a condition does not seem to meet the
test of being logically connected to the objective facts.
(See:
Lowrens
v Oldwage
2006 (2) SA 161
(SCA) at [27])
However, equally important is the contradiction with the OTs. I am
unpersuaded that there is convincing evidence adduced that a
rotator
cuff injury exists.
[8]
Both OTs are agreed that in his
present
condition,
the sequelae of the injuries impact negatively on him doing physical
work requiring agility. This is patently correct. Dr
Volkersz
also opined that the plaintiff could expect only to work until 60
years of age owing to the condition, even after remedial
surgery.
This opinion, is in my view, not substantiated by anything more than
an assumption that residual pain will produce such
a decision to
retire early, and the unsubstantiated diagnosis of a rotator cuff
injury. It is pure speculation, and I cannot rely
on it.
[9]
As to the plaintiff’s physical recovery prospects, a reset of
the clavicle is recommended. This intervention can
be expected
to alleviate pain, and also improve agility. It is a substantial
surgical intervention: in Dr Schepers’ report
the details are
described as an “ostetomy’ involving plates and a bone
graft.
[10]
The more important question is how his agility and strength will be
affected over the long term: ie can 100 % recovery be expected?
Dr
Volkersz alone, opines a significant residual disability, regardless
of surgical intervention. Other views tend toward either
a full
recovery or near full recovery, provided the surgery is performed.
The differences of opinion seem to flow from whether
the initial view
is taken that once pain is eliminated, recovery will be ‘full’,
or despite effective management of
pain a residual inhibition will
prevail.
[11]
In my view, it is appropriate to make some allowance for a residual
degree of pain and diminished pain-free range of movement.
The delay
in the remedial intervention, at least 3-4 years after the trauma
may, logically, have left subtle impairment which will
niggle
chronically. The more important issue, for this trial about earning
capacity, is whether that shall result in any
work-relevant-niggle
that cannot be reasonably overcome. In determining the present
condition, Dr Schepers, alone, in the RAF 4 form, suggests a present
3% impairment. Notably, there is no evidence of any muscle wasting,
an important logical factor in the plaintiff’s ability
to
discharge his current duties, a common cause fact.
The
demands of the workplace
[12]
What were the physical demands of his work? This falls into two
parts.
[13]
First, since 2010 he has been employed by Virgin Active. He was at
the time of the collision, a maintenance operator in one
of the
gyms. As such he was one of 4 persons who maintained the
establishment in a given gym. The tasks involved the full
range of
repairs to floor gym equipment, air conditioning, painting, pool
maintenance, and all the incidentals including the moving
of
equipment, some of which was heavy. The postural positions adopted to
undertake these tasks would have included above the shoulder
and
above the head poses, while manipulating tools and moving things,
some of which are heavy. Manifestly, agility is a necessary
attribute
of these tasks.
[14]
After the injuries, he was promoted to maintenance technician. He had
qualified himself in the maintenance of air-conditioning
and in
health and safety regulations. Also, he was by then an experienced
operator. This job involved doing the exact same tasks
but spending
less time directly engaged therein on account of the role requiring
him to oversee 4 other operators and attend to
the administration. He
would assess what needed to be done, and if need be, call in
assistance or expertise to cater for the exigencies
of the moment.
The role is in the nature of a leading hand, ie the senior ‘operator’
charged with guiding the less
experienced workers.
[15]
The industrial Psychologist, Ms Van der Westhuizen, got information
from Karl McGuiness, ostensibly a club manager, who was
at one time
the plaintif’sf direct superior, that 30%-40% of ‘job’
now involved physical work. The value of McGuiness’s
input is
evaluated later. However, on face value, what does this mean? It does
not explain how much
time
is
spent doing physical tasks. The Plaintiff’s own evidence did
not address the time ratio of paperwork/oversight/physical
labour. Ms
Leshika, the OT performed an ‘ergo-science’ set of
assessments. This compares patient performance with assumed
postures
necessary in the job, taken to be of a ‘medium’ character
in the spectrum light-medium-heavy. She reports
that he experiences
pain in lifting a 20L can of paint. He also experiences pain moving a
punch bag; what weight a bag is, is not
stated, but we can accept
that it is notoriously heavy. Indeed, the notion of one person having
to unhitch the punch bag as the
default method is not obvious.
However, the upshot is that he performs all the necessary tasks,
albeit with attendant pain.
[16]
Second, he undertook work as a mechanic in a backyard operation in
his home neighbourhood, when he had free time from work
in the gym.
For present purposes, only, the agility-demands in this role are
addressed. In the main, it involved delving into engines
and the
axillary parts of a car which efforts do not represent a
significantly different set of demands from his day job; ie, leaning,
stretching and twiddling with tools at the end of his reach. One
additional task that was distinctive, however, was the removing
of
engine blocks and replacing them, apparently undertaken without the
aid of a hoist. Plainly, strength and agile posture are
essential. Of
course, this was not done alone, but as one of a number of men, at
least two, perhaps more, depending on the size
of the engine.
[17]
He performs all the tasks of his job at Virgin Active and has not
provoked any performance complaints. However, he cannot perform
the
physical tasks pain free. It is owing to his apprehension about
managerial disapproval of poor performance that motivates him
to
endure the discomforts.
[18]
As to the part-time mechanic job, the plaintiff’s evidence was
that he resumed this work after about one year after the
injury was
sustained. The inability to bear heavy loads on that scale has meant
that he cannot participate in lifting functions.
He gets help.
Otherwise, he perseveres despite the discomfort. But, apparently, he
continues to work as such, though less often
than before the
injuries.
The
Plaintiff’s psychological condition
[19]
The plaintiff reports memory problems and anxiety. The examinations
explored these complaints and their probable causes.
[20]
On Ms Kok’s evidence, clinical depression was ruled out. In Ms
Modipa’s view he had depression. In my view Ms Kok’s
view
is to be preferred. First, no observation from the neuro- surgeons,
Dr Earle and Dr Moja support any presence of mood disorder;
Ms
Modipa’s view is an outlier. The poor memory is a supposed
symptom to consider. But, as alluded to earlier, logically,
if pain
niggles. and the relationship with a new boss causes uneasiness, as
stated by the plaintiff, such circumstances cause distractions
from
the minutiae of the job which requires attention to a range of
disparate issues. Having to plan ahead and make a ‘to
do
list’ is the behaviour of a person who is in control of life,
not a depressive.
[21]
Indeed, in his own evidence and his various reports to the experts,
the plaintiff describes himself in terms of a fully functioning
personality, attuned to his situation, and rationally concerned with
the risk of negative employer views of any fall in optimal
performance. Precisely because of his appreciation of that
circumstance, he exerts himself to maintain performance, despite
enduring
discomfort. Moreover, the curse of chronic pain even if
merely continual rather than continuous, is bound to put a person on
edge.
On Ms Kok’s assessment he remains in essence a positive
person. This is corroborated by my impression of him as a witness.
[22]
Among his concrete allusions in reports to the experts, although no
mention was made in his evidence, is a hyper-cautious approach
to
travelling since the accident and apparently the occasional
flashback. These attitudinal changes and re-visiting of the initial
trauma are not pathological.
The
prospects of recovery after medical intervention
[23]
All opinions strongly advise the surgery referred to above. The
plaintiff indicates he wants it. The failure to have it done
earlier
is not properly explained, but nothing turns on that.
[24]
There cannot be real doubt that the intervention will significantly
reduce, even if not eliminate all pain over time. Naturally,
post-operative treatment in the form of physiotherapy and a lot of
self-discipline in the appropriate strength building exercises
are
crucial to an optimal result.
[25]
In my view, the plaintiff’s present condition is temporary, and
a marked improvement can be expected as a result of the
contemplated
surgery. Dr Volkersz view alone suggests the contrary, and for the
reasons already mentioned, I am of the view that
they are unreliable.
Past
loss of Earnings
[26]
This claim is limited to forfeited overtime for ten months. His
evidence is he worked overtime once in four weeks and was paid
R350.00 per overtime shift. The loss is R3500.00
Future
Loss of earning capacity: Career prospects in Virgin Active Health
[27]
The principal controversy is whether his promotion prospects have
been dented because of his diminished physical agility.
[28]
The plaintiff apparently established a reputation as a reliable and
competent worker. He was promoted once. Are there further
prospects?
[29]
The evidence about the existence of further opportunities is
confused. In the reports to the two Industrial Phycologists, the
plaintiff alluded to the chance to get an ‘operations manager’
job, and his immediate boss, Karl McGuiness gave information
in this
regard. This ‘operations manager’ job was addressed as
being club-size related as to remuneration rates, which
suggested a
location bound post. Yet the plaintiff’s evidence was that the
next rung on the ladder is ‘regional maintenance
manager’(RMM).
The plaintiff’s case before court was based on the latter post.
It involves being in charge of, say
6, clubs and overseeing the
technicians in each, being the trouble-shooter when they cannot
manage an issue and being on permanent
standby to deal with
emergencies. According to the plaintiff this distinctly managerial
sounding role would nevertheless require
him from time to time to do
the physical work on his own without assistance. The pay for the
“operations manager’ which
the industrial phycologists
had to address was in a range of R10, 000 and R16,000 pm. They
translated it to R13,500 to resolve
an argument on a norm to use. The
impression left was that this sum applied to a RMM too, though why
remained unexplained.
[30]
McGuiness is the font of glowing appraisals of the plaintiff’s
work ethic and competence. There is a danger that McGuiness
is a
champion whose effusiveness makes him an unreliable source for the
real career prospects of the plaintiff. The plaintiff was
accommodated by McGuinesss during his convalescence by being excused
physical work and deployed to attend to the administration
of the
work. Upon recovery, fit for work, he was promoted owing, according
to the plaintiff himself, to McGuiness’s intervention,
whose
thorough personal acquaintance of his historical capacity for good
work tipped the scale. This veers towards a measure of
nepotism
contaminating the promotion. Moreover, McGuiness left for
another post in December, and the relationship with the
Plaintiff and
his new immediate superior is not cordial. The Plaintiff has lost his
champion. The champion somewhat vaguely, asserts
that the plaintiff
is the top candidate for operations manager, if a vacancy arises,
within a year. This report is in my view is
wishy-washy and
unsubstantiated. McGuiness is not the person to speak for the
employer, the Human Resources Department were not
contacted nor was
any executive asked to supply information about the structure,
policies, vacancies, recruitment plans and so
forth of Virgin Active.
The reports of McGuiness are unauthorised and unreliable. Moreover,
he did not testify.
[31]
The conclusion to which I must come is that there is no real prospect
of promotion on the near horizon, regardless of any meritorious
credentials, nor is there a concrete basis to infer that a career
path exists within the business at all. Moving up the ladder
is as
much a matter of chance as it is of self-development, and other than
a sort of
spes
,
nothing usable has been put before the court to assess the prognosis
offered. That a diligent competent worker is “promotable”
is a post that can tap his competencies exists or becomes available,
is a logical inference, but not seriously substantiated in
this case.
[32]
Much of what the Industrial Phycologists have addressed is premised
uncritically on what McGuiness has to say. In this respect,
the value
of those prognostications are not stronger than the source upon which
they are based. Both agree in a joint minute that
the plaintiff will
not achieve his pre-morbid earnings level. But no proper
foundation exists to reach this conclusion. The
mere fact that some
degree of pain may be residual does not translate into that
conclusion. This is an example of sloppy thinking.
I shall
address these shortcomings in a discrete part of the judgment
addressing the conduct of the expert witnesses called
in this matter.
[33]
Lastly, it bears mention that the plaintiff states that in order not
to expose himself as physically limited he will not apply
for the
next job up, ie the RMM. I am sceptical about that evidence. It is
equally likely, on common sense principles, that he
is feeling
stretched in the present job. Once the intervention has been
complete, and he experiences less pain and an improved
agility, the
probabilities are he shall be more bullish.
[34]
The plaintiff will risk loss of income during the period of
convalescence after surgery. No proper evidence that is helpful
in
this regard has been adduced. In Dr Schepers’ report, he
suggests a period of 6 weeks off work. I am driven to speculate
from
common sense principles based on what is a serious surgical
intervention. I prefer to err on the generous side. I estimate
that
the recovery period would be 3-4 months, including a period of
physiotherapy and regular exercises. I take four months as
the
yardstick. At his present rate of earnings of R6600 pm his loss would
be R26,400. Overtime loss is 4 shifts at a total of R1400.
Allowing
for a possible waiting time for the surgery of 1 year from now, and
an inflation rated salary increase, I settle on the
rounded off
figure of R 30,000.
The
additional Income stream from car repairs
[35]
I accept that the plaintiff indulges in this sort of work, and that
his physical capacity to carry has been diminished. He
nevertheless
continues from time to time.
[36]
However, the evidence necessary to rationally compute a sum of his
loss is absent. No records exist, nor ever existed. To say
he was
employed is incorrect; he along with others assisted in the repair
work and shared out the profits as payment was received.
There is no
reliable evidence of what was charged for the service still less what
was earned. The sums offered as illustration
by the plaintiff were
double and triple the sums suggested by Theo Ranatshane, the rain
maker of the operation who we are told
dished out sums at his
discretion after each job was complete. This demonstrates the
sheer guess-work in these figures. A
specious guestimate of
“good” and “bad” weeks varying by thousands
was offered, with nothing bar a recollection
and a thumb to suck as
the source of the figures. It seems to me that neither Ranatshane nor
the plaintiff can reliably say what
their average earnings over time
were because they themselves have no genuine idea.
[37]
The evidence exaggerates the frequency of the times he worked,
suggesting that on each of the three weekends a month he had
no
overtime at Virgin Active, he worked with Ranatshane. But there was
not always work according to Ranatshane. The probability
that they
worked seven days a week, endlessly, is slim, however keen they were
for extra income. On the probabilities this venture
responded to
opportunities, and they sprang into action as needs arose. At
times they may have had no work at all and at
others a queue.
[38]
In my view, there is therefore insufficient evidence to establish
what the operation generated in revenue or what sums were
handed over
to the plaintiff. For the purposes of computing any damages this
source has to be ignored.
Conclusions
[39]
In summary I find that:
39.1.
The
plaintiff shall regain substantially his pre-accident agility after
surgery and rehabilitative treatment.
39.2.
No concrete
promotion prospects, such as may exist, have been forfeited.
39.3.
No sum of
damages is quantifiable as arose out of the plaintiff’s weekend
motor mechanic activities.
39.4.
The risk of
some niggling pain is real. However, I am unable on this body of
evidence to conclude that it shall have a material
effect on the
capacity to fulfil the tasks of the job. It does not now, and on the
probabilities, after surgery it will not then.
(
Cf;
Rudman v Road accident Fund
2003 (2) SA 234
(SCA) at
241C- G
)
The
Computation of Damages
[40]
The Damages that I award are as follows:
40.1.
R3,500 for
loss of overtime during his initial convalescence.
40.2.
R30,000 for
the risk of loss of future earnings during convalescence.
The
scandal of unprofessionalism by the expert professionals
[41]
The experts witnesses uniformly did not present their joint minutes
in accordance with the Gauteng Local division Practice
Manual
prescripts. One said she did not know of the prescripts,
another said she did, but in any event did not follow it.
The
directive is plain: tabulate what is agreed, tabulate what is dispute
stating whether the difference of opinion rests on factual
findings
or opinion and explain why the difference exists. The purpose of
joint minutes is to serve as a tool to clarify the issues
for a
court.
[42]
I tabulate the practice manual provisions with due emphasis.
[43]
The provisions in chapter 6.12 at paragraph 14 state:
“
Joint
Minutes of Experts:
14.1
Where there are overlapping experts, the experts shall meet and
produce joint minutes indicating
their
endeavour to settle, and failing settlement, narrowly defining their
differences
, as
contemplated in paragraph
6.5.5
of the Practice
Manual;“
[44]
The provision in Chapter 6.5 at paragraph 5 states:
“
In
all trials in which the parties have opposing expert witnesses, such
opposing expert witnesses
must
meet
and
reduce
their agreements and disagreements to writing
in joint expert minutes, signed by them and which minutes must be
compliant with the prescripts of paragraph 6.15.11 of this manual”
[45]
The provisions in chapter 6.15, at paragraph 9.9 state:
“
Furthermore:
9.9.1
Expert reports must be drafted in a format designed for lucidity,
brevity, and convenient cross-referencing and, to this end,
must be
in numbered paragraphs, and when referring to other expert reports
refer to the numbered paragraphs therein.
9.9.2
Joint minutes must
identify exactly what is agreed and what is not agreed, with reasons
stated why disagreement cannot be achieved,
especially as to whether
the disagreement relates to a fact clinically observed or an
interpretation of facts
.
9.9.3
The attorney responsible for the procurement of the reports shall be
responsible for compliance in this regard; failure to
adhere hereto
may imperil certification.”
[46]
It is plain that the preparation of joint minutes is being treated a
clerical chore. All the experts communicated by email,
and one
claimed to have had a telephone conversation. This is the result of
dereliction not merely by the experts by also by the
attorneys whose
duty it is to prepare court documents in the appropriate form. Save
for the neuro-surgeons, every other pair of
experts is in default of
compliance. Variously, the joint minutes are padded with quotations
and other waffle, fail to engage on
the critical issues, merely state
in circumlocutory terms a difference of view, ignore the
counterpart’s view, and never
interrogate it.
[47]
The purpose of a joint minute is to capture the intellectual input of
two experts who interrogate each other’s views
and lay out for
a court what the issue is that has to decided. To fudge, hedge and
generally obfuscate is counter-productive.
[48]
I propose to disallow all costs for joint minutes and interdict
parties from paying any fees for that work, save for that of
the
neuro-surgeons. Further, the attorneys may not charge their clients
any fees or for disbursements relating to the joint minutes.
The
reason for this is that the attorneys are at fault for either their
own sheer neglect, or their wimpish attitude to the superficial
content of these minutes as presented by their experts. It should
have been patently apparent to any attorney who had read the
practice
manual that they are non-compliant.
[49]
The industrial phycologists’ performance warrant special
mention. Their inadequate and superficial conduct has already
been
alluded to. It appears that persons practising in this field regard
themselves as mere conduits of data which they wrap up
in jargonised
waffle. It is hard to seek out of these reports the aspects in which
the expertise they profess is evident. The entire
edifice of these
reports was built on the say-so of a person who any professional
ought to have appreciated was not in a position
to express the views
that he did, still less that they slavishly and uncritically relied
upon such views. They have short-changed
their clients. I shall
disallow their costs in whole.
[50]
In future, a failure to comply ought to be met with a refusal to hear
the matter at all, on the grounds that the documents
are not in
order. However, more importantly, professionals must behave
professionally and
treat the task of seeking agreement seriously
.
If delinquency persists, punitive measures shall have to be taken.
Attorneys must see to it that there is proper compliance.
The
Costs
[51]
The plaintiff had to come to court to get an order. The degree
of success it has achieved is modest. Most of the four
days on trial
were spent on issues in respect of which he did not succeed. The need
for a fourth day was occasioned by a decision
at the last moment to
apply to reopen the case to call a witness that they had not intended
to call at all until a chance remark
by counsel for the Defendant
pointed out a weakness in their case; ie it relied on hearsay. On the
fourth day the witness was not
called. Accordingly, Plaintiff should
get only one day of trial by way of costs; the defendant, three days.
[52]
For the reasons alluded to above, the whole of the fees of the two
industrial Phycologists are disallowed. For the rest of
the experts,
save Drs Moja and Earle, the fees relating to the joint minutes are
disallowed. The attorneys shall not charge the
parties fees for their
work on these minutes nor debit a fee or recovery any disbursements
in respect of mentioned delinquent report
and the delinquent joint
minutes.
[53]
The actuaries’ Reports made no contribution to the resolution
of the case and no costs shall be allowed for them.
The
Order
1.
The
Defendant shall pay the plaintiff the sum of R33,500.00.
2.
The
Plaintiff is awarded the costs of the first day on trial.
3.
The
defendant is awarded the costs of the second, third and fourth days
on trial.
4.
The
qualifying fees of the experts are allowed as follows:
a.
Dr Moja
b.
Dr Earle
c.
Dr Volkersz
d.
Dr Schepers
e.
Ms Modipa
f.
Ms Kok
g.
Ms shakoane
h.
Ms Lushika
5.
The
attorneys of record shall not charge the parties any fees that relate
to the Industrial phycologists reports nor in respect
of any joint
minutes, save that of Drs Moja and Earle.
_______________________
Roland
Sutherland
Judge
of the High Court,
Gauteng
Local Division, Johannesburg.
HEARD:
6 - 9
March 2018
JUDGMENT:
19
March 2018
For
the Plaintiff:
Adv
M Putuka,
instructed
by Nemavhulani attorneys.
For
the Defendant:
Adv
B D Molojoa,
instructed
by Lindsay Keller.