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[2019] ZAGPJHC 84
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M S v Road Accident Fund (10133/2018) [2019] ZAGPJHC 84; [2019] 3 All SA 626 (GJ) (25 March 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 10133/2018
In
the matter between:
M
S
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
FISHER
J,
SUMMARY
Actions
against the RAF are routinely treated by the parties as being
sui
generis
and thus not subject to the usual rules of evidence and
procedure.
Courts
are often told that expert reports relating to the claim are
“admitted” or “not in dispute”
or that “the
Merits” or “Liability” has been settled/conceded.
Rule 33 prescribes the correct procedure
for recording of admissions
or a statement of issues. Compliance with these rules should be
insisted on by courts, unless compelling
reasons exist for departing
therefrom in a given case.
An
admission as to “the Merits” or “Liability”
should not be construed as an admission that the negligence
of the
driver caused the loss. Such an admission can mean no more than an
admission that the insured driver caused the accident.
The former
construction will lead to a failure to prove causation of loss.
The
inquiry in RAF actions is best undertaken in Four Stages:
First
: Did negligence of the insured
driver cause the accident? (i.e. the Merits Inquiry)
Second
:
Did the plaintiff sustain the alleged injuries in the accident?;
Third
: How have these proven injuries affected
the plaintiff? (both the First and Second Stages are Causation
Inquiries)
Fourth
: How should the
plaintiff be remunerated for the effects of such injuries? ( i.e. the
Quantum Determination).
It
is important to discern where the inquiry as to Causation ends and
the evaluation of Quantum begins.
The
evaluation of the quantum does not involve proof on a balance
of probabilities, as is required in the other three stages,
but is a
matter of estimation which is a Judicial task in which the judge, on
the basis of the case as proved, determines
how the plaintiff
should be compensated for his loss. It involves the application of
experience, intuition, and general right-thinking
and is a matter
where the court has a wide discretion.
Actuarial
Calculations are merely an aid to this evaluation process and
should not be regarded as being prescriptive of or
limiting the
court’s discretion.
An
insufficiency of evidence of causation of loss cannot be remedied by
the application of contingencies to reduce quantum. If the
case is
not proved there can be no damages and thus the Quantum Determination
stage is not reached at all.
INTRODUCTION
[1]
This is a claim against the Road Accident Fund
(RAF) for damages for personal injury arising out of a motor vehicle
accident. The
RAF is the Statutory Insurer for claims of this nature
and is sued as such. By a large percentage, the most trial actions
brought
in South Africa are personal injury claims brought against
State entities.
[2]
These claims, presumably because of their sheer
volume, have become something of an industry among legal
practitioners and experts
who specialise in these matters. The cases
are generally handled by the plaintiff’s attorneys on the basis
that the attorney
earns his fee from the award and often on the basis
that the attorney takes a percentage of the damages award in lieu of
his fee.
The matters are fought on a “no win no pay basis”
as far as the plaintiffs’ attorneys are concerned. I assume
that this fee arrangement impacts on the payment of experts used in
the preparation of the matters. There is, in this model, the
incentive to deal with the matters in a manner which yields payment
as soon as possible and with the application of least resources.
The
plaintiffs are often vulnerable individuals who are not exacting as
to the conduct of their cases. The matters are thus conducted
without
any real instruction. These features have resulted in a situation
where, by and large, the litigation is treated in a rote
and
formulaic way. Judges are routinely told that “the
merits have been agreed”; that reports of experts
are
“admitted” or “not in dispute”; and that that
only “quantum” is left for determination.
It is not
unusual for a lazy and cavalier approach to be taken in the conduct
of the matters. This in turn has the potential to
result in the
matter not being properly determined.
[3]
In seeing fit to carve up the issues for separate
consideration, the parties often fail to pay heed to the fact that a
separation
of issues can take place only if an order is granted in
terms of rule 33(4) on the basis that it is determined by the court
that
the separation is convenient to the parties and the court. It
seems often to be assumed that the parties, as of right, may agree
to
such separation. Often a separation will be sought only because the
parties or one of them is not ready to proceed on certain
issues on
the trial date allocated. If permitted, this can lead to inconvenient
separation and part heard trials. It is common
in these matters for
costs to be sought by attorneys notwithstanding that the matter is
stands part heard for months or years thereafter.
[4]
In this
matter, I was initially told by the plaintiff’s counsel Mr
Louw, that no evidence would be led on various of the expert
reports
which “were not in dispute” and that these reports would
“stand as evidence”. This, too,
is a common
approach in RAF matters and one which is not in line with the law of
evidence or the rules of court aimed at
facilitating the proper
conduct of trials. Rule 33 deals with the correct manner for the
recording of admissions or statement of
issues
[1]
.
Compliance with these rules should be insisted on by courts unless
compelling reasons exist for departing therefrom. Lack of formality
leads to a slipshod approach to the conduct of the trial, which
serves only to pander to the wont of many legal representatives
to
get in and out of court with as little trouble to themselves as
possible and maximum returns.
[5]
Mr Mfazi on behalf of the RAF said that the
admissions as to the expert reports were not as presented by Mr Louw
but were
confined to the following: The clinical findings contained
in the reports of the plaintiff’s Ear, Nose and Throat Surgeon
and Neurologist. In relation to the reports of the plaintiff’s
Clinical Psychologist, Occupational Therapist, and Industrial
Psychologist he made no admissions save that the reports were what
they purported to be. Mr Louw was resistant to this approach.
He said he had been taken by surprise because he had believed that
the admission was broader and that all that needed to be interrogated
was the opinion evidence of the Industrial Psychologist and then to
determine the qantum. This dissent shows the problems which
can arise
where there is a lack of formality as to the determination of issues.
In any event the approach taken by Mr Louw could
not be countenanced
and he eventually agreed that the case should proceed on the
admissions as stated on behalf of the RAF.
[6]
The approach of the RAF was to conduct the case
with reference only to the clinical findings admitted by it and the
testing of the
evidence of the other experts and that of the
plaintiff by way of cross examination. It led no expert or other
evidence in its
defence.
[7]
It is helpful, at this stage, to restate the
inquiry for a claim under the
Lex Aquilia
with specific application to a RAF claim.
APPROACH
TO DELICTUAL CLAIMS UNDER THE RAF
[8]
Liability
generally depends on the wrongfulness of the act or omission relied
on by the plaintiff. Wrongfulness, in these cases
is inferred from
the fact that the third party negligently caused the accident.
[2]
The statutory nature of the liability is such that the RAF insures
the third party “
for
any loss or damage which the third party has suffered as a result of
any bodily injury to himself … if the injury …
is due
to the negligence or other wrongful act of … the insured
driver”
[3]
.
[9]
Thus, once negligence of the third party driver
is proved, wrongfulness is generally assumed. It must then be shown
that the loss
suffered by the claimant is due to the
negligent/wrongful act in issue. This is when the causation phase of
the enquiry begins.
[10]
In
Lee v Minister
of Correctional Services
[4]
(per Nkabinde J
for the majority) recognised that the ‘but for’ (or
sine
qua non
)
test as stated in
International
Shipping Co (Pty) Ltd v Bentley
[5]
was the
most frequently employed theory of causation but found that it was
not always satisfactory when determining whether a specific
omission
caused a certain consequence. In finding that there was a need for
flexibility in the causation assessment
[6]
she had the
following to say:
“
Indeed
there is no magic formula by which one can generally establish a
causal nexus. The existence of the nexus will be dependent
on the
facts of a particular case”.
[11]
In cases of
claims for personal injury, the plaintiff must show that the injuries
were sustained in the accident and that these
injuries have had
certain effects on the person of the claimant. Once these effects are
established, the court can move to determine
how such effects
translate into loss.
[7]
The assessment as to quantum does not require proof of facts. Instead
it is based on an acceptance of the facts proved in the causation
inquiry.
A
FOUR STAGE INQUIRY
[12]
To my mind, the inquiry is best approached in
four stages:
First
:
Did the negligence of the third party driver cause the accident? if
both plaintiff and the third party driver were negligent
blame
may be apportioned on the basis of a percentage allocation in terms
of the Apportionment of Damages Act
[8]
. (I shall call this first phase the Merits Inquiry).
Second
:
Did the plaintiff sustain the pleaded injuries in the accident?
(This is the First Causation Inquiry).
Third
:
How have these proven injuries have affected the plaintiff? (this is
the Second Causation Inquiry).
Fourth
:
How should the plaintiff be remunerated for the effects of such
injuries on the plaintiff. (this is the Quantum Determination
stage).
The
Merits Inquiry (the First Stage)
[13]
A concession by the RAF as to “the
Merits” cannot, unless otherwise specifically agreed, denote
anything more
than that the RAF admits that the negligence of the
insured driver caused the accident. Thus, such concession or a
determination
of the Merits in favour of the plaintiff is no
more than a finding that the insured driver was negligent and,
given
that the claim is for personal injury under the Act, of the
assumed wrongfulness element as well
.
The
First Causation Inquiry (the Second Stage)
[14]
The focus in personal injury claims is on the
evidence of expert witnesses. Reports which purport to make
pertinent clinical
findings as to the physical and mental state of
the plaintiff are obtained from clinicians who are said to be expert
in their particular
disciplines such as orthopaedic,
neurological, occupational, psychiatric, and actuarial
.
In forming their opinions, the experts, other
than the actuaries (who work from assumptions drawn from the
reports of
Industrial Psychologists or made on instruction)
generally conduct an examination of the plaintiff and are furnished
with documentation
such as hospital records and reports of other
experts. A statement is usually taken from the plaintiff as to his
personal history,
the manner in which the accident occurred, the
injuries which the plaintiff says he sustained in the accident, and
the complaints
of the plaintiff as to how these injuries affect his
life and/or are likely to do so. In the case of children, this
information
is taken from a parent or guardian.
[15]
As happened in this case, it is not unusual for
the plaintiff to argue that the fact of the injuries as reported by
the plaintiff
to the expert, taken with the fact of the clinical
findings, establishes the necessary causation for the
loss contended for by the plaintiff. Information gleaned
from
hospital records and the say-so of the plaintiff or guardian to
the expert are often sought to be treated as definitive of
the
injuries and courts are invited, in the absence of any formal and
specific admission to have regard to this material in determining
issues which are not even properly framed. This is a lazy approach
and in some cases, deliberately specious. Whether facts
in
reports are indeed admitted and on what basis should be a matter of
scrutiny by the court and exactitude by the parties.
[16]
In the case of more obvious injuries, such as
coma, broken limbs or open wounds, which have received emergency
treatment in hospitals
pursuant to the accident and which are thus
usually a matter of record, a court will more readily accept that the
injuries were
sustained in the accident and the RAF will generally
admit this. It is in cases where the injuries relied on are not so
obvious
or so obviously caused by the accident that more care is
required as to this inquiry.
The
Second Causation Inquiry (the Third Stage)
[17]
Once
(and only if) the first causation hurdle has been cleared by the
plaintiff in respect of the alleged injuries or any of them,
the
second presents itself: The plaintiff must now work to establish that
this proven injury has resulted in the deficits relied
on for the
claim.
It
is only causal negligence that can give rise to legal
responsibility.
[9]
This
enquiry is often put on the basis that these are “sequela”
of the proven injury.
[18]
This
stage of the inquiry can be tricky. The “
but
for
”
inquiry is less helpful at this stage as it has already been
accepted in the context of the First Causation inquiry
that, but for
the accident such injury would not have occurred . The enquiry at
this second stage is what the effects of the injury
are likely to be.
It must thus be shown that the proven injuries probably resulted in
the effects.
[19]
Nugent
JA’s assessment as to causation in
Minister
of Safety and Security v Van Duivenboden
[10]
is apposite here. He stated as follows:
“
A
plaintiff
is not required to establish the causal link with certainty, but only
to establish that the wrongful conduct was probably
a cause of the
loss, which calls for a sensible retrospective analysis of what would
probably have occurred, based upon the evidence
and what can be
expected to occur in the ordinary course of human affairs rather than
metaphysics.”
[11]
[20]
Often,
concussive brain injury is raised as a cause of loss as to the
capacity to earn an income. Traumatic brain injuries
range from
a slight bump on the head to catastrophic injury which results in
profound disability. A brain injury, if mild,
is not likely to
have long term neurological sequela. This was accepted by the
plaintiff’s Clinical Psychologist in this
matter. Loss of
earning capacity is generally the largest head of damages in monetary
terms and generally runs to millions of Rands.
A court is called upon
in this inquiry to determine how the injury will be likely to affect
the long term functioning of the plaintiff.
In
the fields of neurology and psychology, diagnosis and prognosis is
often difficult to establish with any certainty. In cases
such as
this, opinion evidence should ordinarily be looked at together with
reference to the plaintiffs evidence and other relevant
facts.
If this background evidence is not presented, which regrettably is
common practice in these cases, the matter can
be difficult of
determination.
[21]
In
S
v
S
v Mthethwa
[12]
the
court, in dealing with the limitations of the opinions of experts
stated as follows:
“
The
weight attached to the testimony of the psychiatric expert witness is
inextricably linked to the reliability of the subject
in question.
Where the subject is discredited the evidence of the expert witness
who had relied on what he was told by the subject
would be of no
value.”
[22]
In
the same vein, in the oft cited English decision of
R
v Turner
[13]
Lawton
LJ found:
“…
that
the report put forward by the defendant as to his psychological
condition and specifically his susceptibility to provocation
contained hearsay character evidence which was inadmissible”.
He stated further that “[B]efore a court
can assess the
value of an opinion it must know the facts upon which it is based. If
the expert has been misinformed about the
facts or has taken
irrelevant facts into consideration or has omitted to consider
relevant ones, the opinion is likely to be valueless.”
[23]
The
approach taken in the conduct of this case highlights the potential
difficulties which can arise where brain injury is in issue.
The
report of the Plaintiff’s expert Neurologist, Dr Mudau is
commendably succinct. After examining the plaintiff,
he
reported that in his opinion there was “[N]o negative change in
income” arising from the alleged injuries.
[24]
The
Plaintiff’s representatives were not content with this finding.
They
thus sought further opinion evidence from a Clinical Psychologist, Ms
Chamisa-Maulana
She conducted what she termed a “Neuropsychological
Assessment”. In this she employed
a
series of tests to assess various areas of cognition such as memory,
attention, learning, processing speed, and abstract reasoning.
She
also tested mood and behaviour.
[25]
In general
populations one finds naturally occurring incidences of strengths and
weaknesses in mental and psychological functioning.
People develop
and decline over their lives by virtue of a multitude of factors,
including physical, genetic, sociological, economic,
and emotional.
Neuropsychology is a relatively new branch of interest in the
field of clinical psychology.
[14]
It deals with the relationship between behaviour and the mind on the
one hand and the brain, on the other.
[15]
The opinion evidence of psychologists who have an interest in
neuropsychology is often relied on by litigants in this field to
interrogate the effects of concussive brain injury where an expert
neurologist has found no discernible injury to the brain or
that the
injury is mild. It must be emphasised that this field of
interest does not replace the currently accepted branches
of
psychological specialisation – being Clinical, Educational, and
Industrial but is a field of study which is undertaken
in the context
of these specialisations. Neuropsychology is, in some quarters,
regarded is experimental and research centred.
[26]
This is not to say that Neuropsychological
testing and examination does not, in
appropriate
cases, yield compelling evidence of brain injury. It should, however,
be acknowledged that the opinion evidence in this
field is not
necessarily conclusive of the fact that the brain injury in issue has
caused the deficits complained of. Such deficits
must be examined
on a conspectus of the evidence as whole – which will include
reference to factors such as
the severity of the injury,
whether there was loss of consciousness or coma, the presence of
epilepsy, and the level of cognitive
functioning of the plaintiff
before as opposed to after the accident.
[27]
Mr Louw’s approach was less comprehensive.
He argued that I should find that any departures from the average as
set out as
standard in terms of the tests was indicative of the brain
injury contended for. This approach ignores the fact that the
Clinical
Psychologist acknowledged that the head injury was “mild”
and that the plaintiff’s problems could have been exacerbated
by “emotional difficulties”.
[28]
From a general perspective in this field, opinion
evidence in reports and otherwise is often framed in a manner which
is tendentious
to either one or the other side’s position.
Experts often work exclusively for plaintiffs or for the defendant.
This has
the potential to cause a particular bent and often yields
diametrically opposed opinions which arise from the same injuries.
This
is regrettable if not inevitable and can make the task of the
judge an intractable one.
[29]
Concerns as
to the integrity and independence of experts has been a phenomenon
worldwide. In 1996, Lord Woolf, then the Lord Chief
Justice of
England and Wales, published his “Access to Justice”
report.
[16]
In it he noted that the civil justice system was slow and expensive
and that the prolific use of expert witnesses was one of the
contributing factors. The conduct of expert witnesses was
further scrutinized in the landmark case of
Jones
v Kaney
,
which resulted in the expert’s immunity from being abolished by
the Supreme Court of UK.
[17]
[30]
In 2010,
Jackson LJ of the UK Appellate Court produced a Crown commissioned
report
[18]
in which he concluded that the cost of appointing experts was
becoming disproportionate.
[19]
The report highlighted the need for greater control of judicial case
management. One method recommended was concurrent expert evidence
(also known as ‘hot-tubbing’). This method was developed
in Australia in the 1980s. It involves experts being sworn
in at the
same time before the judge, who will then put forward a series of
questions aimed at identifying the real issues and
at reaching
agreement on certain expert matters. In essence, this would be
equivalent to a joint conference of experts presided
over by the
court.
[31]
The
reformed Civil Procedural Rules (CPR) in the UK”
[20]
,
introduced in the wake of the Woolf Report, gives the court the power
to direct that a single expert give evidence in a particular
case in
lieu of testifying experts.
[21]
Where the parties fail to agree on an expert to be appointed, the
court is given the power to decide how such experts are
to be
appointed, either from a list prepared by the parties, or in such
other manner as the court specifies.
[22]
In Ireland, section 20 of the Civil Liability and Courts Act 2004
permits the court to appoint an independent expert witness in
personal injury cases. In similar vein, in the US, there are a number
of cases where the lack of independence of experts has led
to the
outright rejection of their evidence - e.g. in the case of
Finkelstein v Liberty Digital Inc.
[23]
,
the Judge with some distaste said the following:
“
These
starkly contrasting presentations have, given the duties required of
this court, imposed upon trial judges the responsibility
to forge a
responsible valuation from what is often ridiculously biased ‘expert’
input’.”
[32]
Proper case management by judges, preferably
prior to the incurring of substantial costs as to the employment of
experts, could
serve to alleviate some of the pitfalls in this type
litigation. Indeed, as a matter of course, it would be prudent
for matters
in which the quantum is relatively high or the issues
complex, to be judicially managed. Mediation is also a
possibility
for resolution of issues, which is often overlooked.
[33]
It is only once the two tiers of the causation
inquiry have been established by the plaintiff, that the
evaluation of the
amount to be awarded for the plaintiff’s loss
can ensue. If causation is not established the enquiry ends and the
plaintiff
must fail.
[34]
It is
accepted that the inquiry is not always clear-cut. The
assessment described by Colman J in
Burger
v Union National South British Insurance
Company
[24]
is instructive as to the application of the stages of inquiry:
“
It
was pressed upon me that, as the burden of proof was on
the plaintiff, it would be for her to prove the effects of the
collision,
and that she was entitled to compensation only for those
effects which she proved. In so far as that submission relates to
pure
questions of causation, I accept it, as other Courts have done
in such cases as Ocean Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(AD). It is on that basis that I exclude from
consideration the black-outs, which have not been shown to my
satisfaction to be
causally related to the collision. I disregard for
the same reason the plaintiff’s theory or suggestion that the
collision
was the primary cause, or a cause, of her matrimonial
troubles. I do not think, however, where the available evidence
established
a likelihood of some fact, situation or event as a
consequence of the collision which is incapable of quantification
within narrow
limits, that I am obliged, because the onus is on the
plaintiff, to act on the possibility least favourable to her.
Causation is one thing and quantification is another,
although I readily
concede that it is not always
possible to distinguish clearly between them in cases like the
present one
. It has never, within the range of
my knowledge and experience, been the approach of our Courts, when
charged with the assessment
of damages, to resolve by an application
of the burden of proof such uncertainties as I have referred to. I am
not dealing with
a case in which the plaintiff could have called
evidence to remove the uncertainty, but neglected to do so. I am
referring to cases
like Turkstra Ltd v Richards
1926 TPD 276
, in
which the plaintiff has laid before the Court such evidence as was
available, but that evidence has necessarily failed to remove
uncertainties with regard to matters bearing upon the quantum of
damage. The Court, in such a case, does the best it can with the
material available. If it can do no better, it makes the ‘informed
guess’ referred to by Holmes JA in Anthony and Another
v Cape
Town Municipality
1967 (4) SA 445
(AD)
.”
(Emphasis added.)
[35]
This analysis underscores the importance of
determining where the inquiry as to causation ends and the assessment
of quantum begins.
It recognises also that there can be some
difficulty in separating out the effects of the injury and the
assessment of how these
effects should be translated into
compensation.
Quantum
(the Fourth Stage)
[36]
The evaluation of the amount to be awarded for
the loss does not involve proof on a balance of probabilities. It is
a matter of
estimation. Where a court is dealing with
damages which are dependent upon uncertain future events - which is
generally
the case in claims for loss of earning capacity - the
plaintiff does not have to provide proof on a balance of
probabilities
(by contrast with questions of causation) and is
entitled to rely on the court’s assessment of how he should be
compensated
for his loss.
[37]
The parties routinely seek to assist the court in
this assessment of the amount payable by resort to the expertise of
an actuary.
This is not an obligatory approach to the quantification
of damages and a court should be careful not to treat these reports
as
if they are scientific data and the approach directive.
[38]
It can been seen from what is set out above, that
often the approach of the plaintiff is to shift the focus away from
causation
and onto this determination. It was initially
submitted by Mr Louw, that, in light of the admissions contended for
by him,
all that was left to be determined was the contingency
allowance which should be applied with reference to the plaintiff’s
actuarial calculations. Such an approach is nothing less than an
attempt at hoodwinking.
[39]
Actuaries rely on look-up tables which are
produced with reference to statistics. Such statistics are derived,
inter alia,
from
surveys and studies done locally and internationally in order to
establish norms, representativeness, and means. From these
surveys
and studies, baseline predictions as to the likely earning capacity
of individuals in situations comparable to that of
the plaintiff are
set. These baseline predictions are then applied to a
plaintiff’s position using various assumptions
and scenarios
which should properly be gleaned from proven facts.
[40]
The general approach is to posit the plaintiff,
as he is proven to have been in his uninjured state and then to apply
assumptions
as to his state with the proven injuries and their
sequela. The deficits which arise between these scenarios (if any)
are then
translated with reference to the various baseline means and
norms used. These exercises are designed with the aim of suggesting
the various types of employment which would hypothetically be
available to the plaintiff in both states. The loss would then
be calculated as the difference in earnings derived between the pre-
accident (or pre morbid state as it is often called) and post-
accident or post morbid state.
[41]
In this exercise, uncertainty as to the departure
from the norms, such as early death, the unemployment rate, illness,
marriage,
other accidents, and countless other factors unconnected
with the plaintiff’s injuries which would be likely, in the
view
of the court, to have a bearing both on the established baseline
used by the actuary and on the manner in which the plaintiff, given
his particular circumstances, would fare as compared the established
norm are dealt with by way of “contingency” allowances.
Given the purported mathematical and percentage based inquiry of the
actuarial assessment, these contingencies are expressed in
percentages which are brought to bear on the mathematical reflections
which have been derived from the assumptions used. In essence
the
platform for assessment is no more than one a technique which is
offered to the court in a bid to allow it to exercise its
discretion. This mechanism should not be understood as being
prescriptive or confining of the assessment that the court is
called
on to make. The court has a wide discretion as to the
assessment of loss. This task is judicial and is founded to
a large
extent on experience, intuition, and general right-thinking.
[42]
The
locus
classicus
as to the value of actuarial expert opinion in assessing damages is
Southern
Insurance Association Ltd v Bailey
NO
[25]
where Nicholas JA said the following :
“
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial Judge
is ‘tied down by inexorable actuarial calculations’. He
has ‘a large discretion to award what he
considers right’.
One of the elements in exercising that discretion is the making of a
discount for ‘contingencies’
or differently put the
‘vicissitudes of life’. These include such matters as the
possibility that the plaintiff may
in the result have less than a
‘normal’ expectation of life; and that he may experience
periods of unemployment by
reason of incapacity due to illness or
accident, or to labour unrest or general economic conditions. The
amount of any discount
may vary, depending upon the circumstances of
the case”
[26]
.
[43]
Zulman JA,
with reference to various authorities including
Southern
Assurance
said as follows in
Road
Accident Fund v Guedes
[27]
:
"
The
calculation of the quantum of a
future amount,
such
as
loss of earning capacity
,
is
not, as
I
have already indicated
,
a
matter of exact mathematical calculation. By its
nature,
such an enquiry
is
speculative and
a
court
can therefore only make an estimate of the present value of the loss
that
is
often
a
very rough estimate
(see, for example, Southern Insurance Association Ltd v Bailey NO)
Courts have adopted the approach that, in
order to assist in
such
a
calculation, an actuarial computation is a
useful basis for establishing the quantum of damages
”
THE
PLAINTIFF’S CASE
[44]
I now turn to deal more specifically with the
plaintiff’s particular facts and the manner in which his case
has been presented.
[45]
Mr Louw initially indicated that the plaintiff
would not be called. This approach was duly reconsidered and
the plaintiff
gave evidence. I assume that this change in the
planned conduct of the trial was occasioned by the fact that
the “admissions”
as Mr Louw purported to cast them would
not be accepted as such, that I was sceptical of the approach which
Mr Louw sought to adopt,
and that I would not be content merely to
assess the claim for general damages for disfigurement on the opinion
of the plastic
surgeon alone.
[46]
The plaintiff is a young man who was involved in
the collision in issue under circumstances where he was a passenger
in a taxi.
The plaintiff pleads that he sustained
“multiple bodily injuries which include a head injury,
facial injury
and neck injury…” . The summons was issued
on 13 March 2018. The claim was for R 2 050 000 which
comprised:
future medical expenses of R 450 000;
past loss of income of R 200 000; future loss of income
of
R 650 000 and R 750 000 for general damages.
[47]
The RAF
raised a special plea to the effect that its obligation in
relation to non-pecuniary loss ( i.e. general damages )
was limited
to the consequences of “serious injury”
[28]
and that the court should find that there was no serious injury
sustained.
[48]
There was no replication delivered by the
plaintiff. However, it emerges that an injury report was compiled by
Professor L Chait,
a plastic surgeon on 5 October 2018 – some
six weeks before the hearing. This report describes injuries to the
plaintiff’s
face in the form of lacerations to the
forehead, left cheek, nose, and right upper lip. The report states
that the “symptoms
and complaints” are that the scars are
“painful” “thick irregular and stretched.” In
terms of the
report it is then opined by Prof. Chait that the injury
has resulted in “permanent serious disfigurement”.
[49]
The plaintiff testified that he was born in
March 1996. He is thus 23 years old. He is employed as a store
assistant at Ackerman’s
Retail Store in Vosloorus and has been
since shortly after the accident. His job involves
working at the tills and
unpacking stock which is mainly clothing. On
9 December 2016 the taxi in which he was being conveyed as a
passenger was involved
in an accident. He sustained facial
lacerations. In relation to his alleged loss of earning capacity he
complained that he
experiences neck pain and was forgetful at times.
An example of such forgetfulness, he said, is that he will sometimes
forget to
return things borrowed at work, such as a ladder and that
on one occasion he forgot to lock up the store when charged with this
responsibility. He also reported nose bleeds and headaches, which
symptoms he said became more intense when it was very hot or
very
cold. There was, however, no suggestion that these latter complaints
would affect his earning ability. He matriculated in
December 2015
and found a job as a metered taxi driver in January 2016. He
was so employed at the time of the accident. After
the accident he
was employed in his present position. He explained this employment on
the basis that it was “sympathetic”,
meaning that his
employer took account of what he referred to as his
“condition”. He said that a certain Mr Baloi,
a manager
at Ackerman’s, who was a friend , had arranged that he be thus
employed notwithstanding his condition. This friend/
manager was not
called. It was explained, belatedly in the proceedings, from the Bar
by Mr Louw that Mr Baloi was on a management
course and thus
unable to attend court. Mr Louw explained that it had not been
realised that his evidence would be necessary. No
other evidence was
led as to any special facility being offered to the plaintiff by
Ackerman’s either by the
Human Resources Department or a
co-employee. The plaintiff testified that he planned to study further
for a tertiary qualification
such as a certificate or diploma. He
suggested that, had he not been involved in the accident, he would
have been studying already.
He said it was still his wish to pursue
his studies.
[50]
The plaintiff’s evidence came across as
contrived. He seemed intent on suggesting that he was subject to
severe disability
when all the proven facts were to the contrary. He
went as far as to state that, if he lost his present position, he
would be unlikely
to find another as in his words: “nobody will
hire a cripple”. That he was far from disabled to the
extent suggested
was not seriously in dispute. I deal with his
alleged injuries below.
The
Neck Pain
[51]
The plaintiff obtained the expert report of Dr
Bryan Malakou, an ear, nose and throat surgeon. Dr Malakou examined
the plaintiff
on 18 September 2018, which was about a year and 9
months after the accident. He found that his left ear had severe
impacted wax.
This was removed by Dr Malakou. Dr Malakou found
further that there was a significant
otitis
externa
(an inflammation of the external ear)
underlying the impacted wax. He was of the opinion that this was a
possible cause of the
pain which the plaintiff said radiated down the
left side of his neck.
[52]
A few weeks later, on 05 October 2018, the
plaintiff was examined by an Occupational Therapist, Ms Macheke of
Rehab Works Consulting
.
She also reported that the plaintiff complained of neck pain which he
said was exacerbated by cold weather and the lifting
and carrying of
heavy objects. She found that he had slightly limited neck lateral
flexion to the right with pain which she described
as “a mild
occupational impairment”. Ms Macheke was of the opinion, after
conducting a full physical assessment, that
the plaintiff was
completely normal, save for some atrophy of the right lower limb
which was a pre-existing condition and not accident
related.
Importantly, Ms Macheke stated that she deferred to an orthopaedic
surgeon for diagnosis and prognosis of the neck
complaints.
Thus, this report took the matter no further than that of the
assessment by Dr Malakou. Despite Ms Macheke’s
deference to an
orthopaedic expert, none was consulted or if there was such a
consultation this was not divulged.
[53]
On the same day as the assessment of Ms
Macheke, the plaintiff was also assessed by an Industrial
Psychologist,
Ms Chamisa-Maulana of
Workbench
Consulting
which is situated at the same
business premises as that of Ms Macheke.
[54]
Ms Chamisa-Maulana purports to have relied on the
findings of Ms Macheke in compiling her report. However, Ms Macheke,
on the dates
which emerge from the face of the report, only produced
her report after that of Ms Chamisa-Maulana. This suggests that Ms
Chamisa-Maulana
was privy to a draft report of Ms Macheke in
compiling her report. This was not however raised in the evidence of
these experts.
From the reports, it appears that these experts
have worked closely together in the compilation of their respective
reports.
Thus the findings of the Industrial Psychologist are
based on the findings of the Occupational Therapist as to the
plaintiff’s
alleged neck injury. These findings of the
Occupational Therapist were, in turn, based on the complaints of the
plaintiff made
to her and a finding of “a slightly limited neck
lateral flexion” on examination.
[55]
In summary: this neck problem is not shown to
have been caused by the accident. In fact, the plaintiff’s
own Ear, Nose
and Throat expert in his report suggests that a
possible cause is the ear inflammation which he found on examination.
Thus there
is objective evidence of a possible cause of the neck pain
which is unrelated to the accident.
[56]
On all the evidence, it appears that the
case for the neck pain and its alleged sequela is one which has been
conjured up
with resort to supposition and speculative findings,
which on analysis are found to have no probity.
The
Cognitive Problems
[57]
On 11 September 2018 the plaintiff was assessed
by a Neurologist, Dr M R Mudau for the purposes of getting an expert
opinion as
to the alleged brain injury. After undertaking a
neurological examination it was Dr Mudau’s opinion that there
was
no negative change in loss of earning capacity. He concluded that
a fair award would be for ”pain and suffering only”
–
i.e. general damages.
[58]
The Occupational Therapist conceded that it was
generally accepted that a mild concussive head injury was not
generally associated
with long term sequela.
[59]
A Clinical Psychologist, Ms Modipa was engaged to
conducted what she referred to as “a neuropsychological
assessment”
on 25 October 2018. She recorded that the plaintiff
reported headaches which were aggravated by hot weather and emotional
stress.
He said that these headaches were treated using over- the-
counter analgesics.The main compliant of the plaintiff to Ms Modipa
was that he experienced forgetfulness. He also expressed
emotional difficulties which he related to his scarring and worries
about his health and future functioning.
[60]
Ms Modipa conducted tests directed at determining
the plaintiff’s mental state. In relation to the tests for
attention and
concentration, she reported that he showed adequate
motor speed and comprehension of instruction. She reported, also,
that
the results derived from the tests were
inconsistent: Some suggested average results and some results that
were below average.
In relation to memory functioning and learning
capacity the results were also mixed and inconsistent. In
relation to perceptual
motor and construction skills the tests
revealed that he was average. His processing skills and executive
functioning also showed
inconsistent results. In relation to verbal
fluency and language skills the tests showed a below average result.
Ms Modipa also
noted that the plaintiff showed mild symptoms of
depression.
[61]
The conclusion of Ms Modipa was to the effect
that the clinical findings were not necessarily attributable to the
accident and could
have had other causes such as emotional causes or
depression. Ms Modipa excluded malingering in the case of the
plaintiff but testified
that inconsistent results could, in some
circumstances, suggest a bid to tailor performance. To her
credit, Ms Modipa, was
careful to explain that the tests she used
were not standardised for persons falling into the category into
which the plaintiff
fell but were designed, in certain respects, for
English and Afrikaans speakers (whereas the plaintiff’s first
language is
isiZulu) Other test she conceded were based on
international standards which were not necessarily applicable in a
South African
context.
[62]
On all this evidence, the plaintiff has not
established a brain injury which was caused by the accident and even
if I am wrong and
such injury was established, he has failed to
establish that such injury has had the sequelae contended for.
The
Report of the Industrial Psychologist in Relation to the
Actuarial Assessment of Quantum
[63]
Industrial
Psychology is
a study of employees, workplaces, organizations and
organizational behaviour. The findings of an industrial
psychologist
are, in matters such as this, often used to found the actuarial
assessment of the loss. In most cases, as in
this, the Industrial
Psychologist relies on the finding of other experts to posit the
scenarios as to the likely performance of
the plaintiff in the
workplace and his ability to compete in the job-market.
[64]
There is the potential that suppositions or assumptions
which are transported from the reports of other experts could
erroneously
be presented to the court as fact through the actuarial
report. Indeed an actuary is instructed on the assumptions on which
he
should base his projections and calculations.
[65]
Relying on the Industrial Psychologist’s report,
the plaintiff’s Actuary, Mr T Chinowona posited two
post
morbid scenarios, the first being the assumption that the
plaintiff would have gone on to study and the second being that he
would
not go on to study. The former assumption yielded a projected
loss of R 1 453 790 and the latter, a loss of R4 730
000.
[66]
It is clear from a proper analysis of the
reports, that these substantial projected losses bear no
scrutiny. They have been
determined without any foundation
whatsoever. This notwithstanding, they were presented as being
central to the plaintiff’s
case. Indeed, the suggestion
on behalf of the plaintiff was that all that was left for the court
to determine was which of
the calculations posited was most apposite
on the evidence. This is obviously an untenable and irresponsible
submission.
[67]
In response to the assertion that no neck pain or
cognitive deficiencies were established to have been caused by the
accident, Mr
Louw argued that any weaknesses in the plaintiff’s
case in this regard “should be taken account of by the
application
of contingencies”.
[68]
This argument reveals a profound lack of
appreciation of the nature of the causation enquiry on the one hand
and the quantum determination
on the other. If it has not been
established on a balance of probabilities that the injuries
complained of caused the loss
contended for, this lack of causation
cannot be cured by the application of a contingency allowance.
The
Claim for General Damages
[69]
The plaintiff sought general damages for
disfigurement. He relied on the expert evidence of a
Plastic Surgeon, Prof.
Chait who examined the plaintiff and came to
the conclusion that the disfigurement was serious. He thus completed
a form ( RAF
4) which reflected such opinion and thus let in a claim
for general damages.
[70]
Lord Justice Lawton in
Turner
(supra) described what has come to be known as the
Turner
Rule as follows:
“
If
on the proven facts a judge or jury can form their own conclusions
without help, then the opinion of an expert is unnecessary.”
He
went further and cautioned that
:
“
[I]
n such a case if it is given dressed up in scientific jargon it may
make judgment more difficult. The fact that an expert witness
had
impressive qualifications does not by that fact alone make his
opinion on matters of human nature any more helpful than the
jurors
themselves; but there is a danger that they may think it does”
[29]
.
[71]
Disfigurement is, to a large extent, in the eye
of the beholder. It is not purely a matter of expert
determination and indeed,
there are cases where expert opinion is of
little assistance or no assistance in this assessment. To my mind,
this is one such
case. I insisted that I see the disfigurement
complained of by the plaintiff . It seems to me that it would be
untenable for a
court to be called upon to assess disfigurement on a
mere description thereof. The plaintiff’s scarring
was not
immediately apparent to me. Closer scrutiny showed a
fine scar around the left nostril which was well healed and hardly
noticeable.
The alleged scarring on the neck was not apparent to me
on very careful inspection and this despite the fact that the
plaintiff
sought to point it out to me on being prompted to do so by
Mr Louw.
[72]
I must, in my assessment of the scarring differ
with the view of Prof. Chait as to the disfigurement being of a
serious nature.
Indeed, to my mind, the scarring is so subtle as to
be barely noticeable. Thus, I do not regard the plaintiff as
suffering from
a serious disfiguring injury as contemplated in
the Act. The Defendant is thus not obliged to make payment of general
damages
and there is no basis made out for such payment.
DISCUSSION
[73]
This case demonstrates the nature of the inquiry
which has to be undertaken in matters such as this. It reveals also
the potential
pitfalls. This case was initially presented by
the plaintiff’s counsel as one where there was little in
dispute. Indeed
Mr Louw indicated that it would take less than a day.
The Actuarial report was relied for the proposition that either
one
or the other figure was apposite depending on the scenarios
accepted. But this is a sleight of hand. On a proper assessment
of the matter the assumptions on which the actuarial calculations
proceeded are fallacious.
[74]
What has become clear when the plaintiff’s
case is subjected to the scrutiny of this Four Stage Inquiry,
properly undertaken,
is that a purported case for substantial
damages has been conjured out nothing more than the fact that
the plaintiff
was involved in a motor accident in which he suffered
some facial cuts. The plaintiff has not shown that these
injuries resulted
in the loss which he has contended for in these
proceedings.
[75]
In my view, this is not case where there has been
an insufficiency of evidence. The plaintiff clearly had no basis to
bring the
claim in the first place. Thus the proper order would be
the dismissal of the claim.
COSTS
[76]
Mr Mfazi, magnanimously, conceded that the expert
reports, save that of the Plastic Surgeon, Prof. Chait, had served a
purpose in
the litigation and that these experts should thus be
entitled to recover their reasonable fees from the RAF.
[77]
In relation to the plaintiff, he argued that the
plaintiff’s legal representatives should, given the conduct of
the case,
not be entitled to recover any costs. He did not however
press for costs against the plaintiff given the nature of the matter
being one of contingency as to payment, and on the basis that he may
have been given limited, if any, advice as to the conduct
of the
case. I agree with these contentions.
[78]
I must, however, caution that precious public
funds are at stake not only for the payment of claims but also for
the costs of the
legal representatives and the experts whose
expertise is acquired at great expense. More often than not, the RAF
is called upon
to fit the bill on both sides in relation to the
wholesale expenditure which takes place in relation to the
preparation of matters
such as these. Courts should be alert to a
lack of circumspection in the briefing of experts and the employment
of other resources
in the conduct of a case, on the basis that it is
assumed that the RAF will absorb all the costs as a matter of
course. It
should not hesitate to disallow the recovery of
costs from the RAF where necessary. In appropriate cases, it should
not shrink
from ordering costs
de bonis
propriis
against the legal representatives.
In this matter I considered this avenue, but in the end, and given
the concessions made as to
costs by Mr Mfazi, I decided that there
had not been enough ventilation of the facts relating to such an
order. It may be that
in fillting circumstances attorneys should be
called apon to appear and show cause as to why they should not
personally bear the
costs of the action or portion thereof.
[79]
In my view, the RAF 4 report drawn by Prof. Chait
for the plaintiff served only to mislead. He should thus not be
entitled to recover
his fees from the RAF. This pronouncement has no
bearing on the contract between the plaintiff’s attorneys and
Prof. Chait
in relation to the services rendered and the terms of
payment.
ORDER
I
thus order as follows:
1.
The plaintiff’s case is dismissed.
2.
The following experts may recover their
reasonable fees directly from the defendant:
a.
Dr
M Mudau – Neurologist
b.
Dr
B Malakou – ENT Surgeon
c.
Dr
T Mehl – Audiologist
d.
Ms
L Modipa – Clinical Psychologist
e.
Ms
N Macheke – Occupational Therapist
f.
Ms
F Chamisa- Maulana – Industrial Psychologist
g.
Mr
T Chinowona - Actuary
3.
The plaintiff’s legal representatives are
not permitted to recover any costs in the matter from any person or
entity, save
in relation to any previous orders of this court as to
costs.
________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION
Date
of Hearing: 19 - 20 February 2019
.
Judgment
Delivered: 25 March
2019.
APPEARANCES:
For
the plaintiff
:
Adv D Louw.
Instructed
by
:
C.H Oguike Attorneys.
For
the Defendant
:
Adv L Mfazi.
Instructed
by
:
Z & Z Ngogodo Inc.
[1]
Rule 33(1)
The
parties to any dispute may, after institution of proceedings, agree
upon a written statement of facts in the form of a special
case for
the adjudication of the court.
(2) (a) Such statement shall set
forth the facts agreed upon, the questions of law in dispute between
the parties and their contentions
thereon. Such statement shall be
divided into consecutively numbered paragraphs and there shall be
annexed thereto copies of
documents necessary to enable the court to
decide upon such questions. It shall be signed by an advocate and an
attorney on behalf
of each party or, where a party sues or defends
personally, by such party.
(b) Such special case shall be set
down for hearing in the manner provided for trials or opposed
applications, whichever may be
more convenient.
(c) If a minor or person of unsound
mind is a party to such proceedings the court may, before
determining the questions of law
in dispute, require proof that the
statements in such special case so far as concerns the minor or
person of unsound mind are
true.
(3) At the hearing thereof the court
and the parties may refer to the whole of the contents of such
documents and the court may
draw any inference of fact or of law
from the facts and documents as if proved at a trial.
(4) If, in any pending action, it
appears to the court mero motu that there is a question of law or
fact which may conveniently
be decided either before any evidence is
led or separately from any other question, the court may make an
order directing the
disposal of such question in such manner as it
may deem fit and may order that all further proceedings be stayed
until such question
has been disposed of, and the court shall on the
application of any party make such order unless it appears that the
questions
cannot conveniently be decided separately.
(5) When giving its decision upon any
question in terms of this rule the court may give such judgment as
may upon such decision
be appropriate and may give any direction
with regard to the hearing of any other issues in the proceeding
which may be necessary
for the final disposal thereof.
(6) If the question in dispute is one
of law and the parties are agreed upon the facts, the facts may be
admitted and recorded
at the trial and the court may give judgment
without hearing any evidence.
[2]
Minister van Polisie v
Ewels
1975
(3) SA 590
(A;
Minister of Law and Order v
Kadir
1995 (1) SA 303.
[3]
Road Accident Fund Act 1996 (as amended): S 17(1); This analysis is
confined to a personal claim and not a dependant’s
claim. The
manner in which the assessment should be undertaken is however
similar.
[4]
2013 (2) SA 144 (CC); 2013 (1) SACR 213 (CC).
[5]
1
990
(1) SA 680
(A).
[6]
Ibid
at
[41].
[7]
In the case of the death of a provider it needs be shown only that
the injuries sustained in the accident caused the death. There
would
then be an enquiry as to what the loss of income to the dependant
was and the quantum inquiry would rest on what was established
in
this regard. This matter is one for personal injury of the plaintiff
and the loss of support aspect is not considered in this
matter. It
suffices to state that this cause of action enjoys the same
constraints in the determination of negligence and wrongfulness
as
in the case of personal injury sustained by the plaintiff.
[8]
Act 34 of 1956.
[9]
Minister
of Police v Skosana
1977
(1) SA 31
(A) at
34 D-E.
[10]
2002
(6) SA 431
(SCA).
[11]
Ibid at [24].
[12]
[2017]
ZAWCHC 28
at [98]
.
See also:
S
v Mngomezulu
1972
(1) SA 797
(A)
at 798-799
;
S
v Shivute
1991
(1) SACR 656
(Nm)
at 661H; and T
wine
and Another v Naidoo and Another
[2018] 1 All SA 297
(GJ) at
[18] and [19].
[13]
[1975] 1 All ER 70.
[14]
The
modern science of cognitive neuropsychology is said to have emerged
during the 1960s stimulated by the insights of the
neurologist
Norman
Geschwind
. The
other stimulus to the discipline was the "Cognitive Revolution"
and the growing science of
cognitive
psychology
which
had emerged as a reaction to
behaviourism
in
the mid 20
th
century see Miller, G. A. (2003). The cognitive revolution: a
historical perspective. Trends in Cognitive Sciences, 7(3),
141-144.
doi: 10.1016/s1364-6613(03)00029-9.
[15]
Cognitive neuropsychology can be distinguished from
cognitive
neuroscience
, which
is also interested in brain damaged patients, but is particularly
focused on uncovering the neural mechanisms underlying
cognitive
processes.
Schacter,
Daniel L. (2000). "Understanding Implicit memory: A cognitive
neuroscience approach". In Gazzaniga, M.S.
Cognitive
Neuroscience: A Reader
.
Wiley.
ISBN
978-0-631-21659-9
. The
term cognitive neuropsychology often connotes a purely functional
approach to patients with cognitive deficits that
does not make use
of, or encourage interest in, evidence and ideas about brain systems
and processes.
[16]
Accessible at
http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil
/final/contents.htm.
[17]
Jones v Kaney
[2001] UKSC 13.
[18]
Accessible at
http://www.judiciary.gov.uk/NR/rdonlyres/8EB9F3F3-9C4A4139-8A93-56F09672EB6A/0/jacksonfinalreport140110.pdf.
[19]
Ibid, 27, P379, para 3.2.
[20]
Accessible at
http://www.justice.gov.uk/courts/procedurerules/civil/rules/part35/pd_part35#rule11.1
.
[21]
CPR r. 35.7 which provides: 35.7 Court‘s power to direct
that evidence is to be given by a single joint expert (1)
Where two
or more parties wish to submit expert evidence on a particular
issue, the court may direct that the evidence on that
issue is to
given by one expert only.
[22]
CPR r. 35.7.3.
[23]
Harold Finkelstein and Marilyn Finkelstein v Liberty Digital Inc
[2005] C.A.No 19598.
[24]
1975 (4) SA 72(W)
at 74F-75F.
[25]
1984 (1) SA 98 (A).
[26]
Ibid
at
116G-117A
.
See also
Shield
Insurance Co Ltd v Booysen
1979 (3) SA 953 (A).
[27]
SCA at 586 H - 587 B.
[28]
See:
S
17(1) (b) of the Act.
[29]
Turner
(supra)
at 84 J.