Brief Summary

Tort — Road Accident Fund — Claim for damages arising from motor vehicle collision — Plaintiff involved in accident due to insured driver's negligence — Plaintiff's vehicle struck while proceeding through green traffic light — Defendant conceded liability for 50% of general damages but alleged contributory negligence by plaintiff — Court found insured driver failed to keep a proper lookout, resulting in collision — Plaintiff not found to be contributorily negligent — Claim for general damages and future loss of earning capacity upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a delictual damages action brought in the South Gauteng High Court, Johannesburg, arising from a motor vehicle collision and pursued against the Road Accident Fund in its capacity as the statutory compensator for loss caused by the negligent driving of an insured driver.

The plaintiff, Ms Oloff Marie O’Brian, was employed as a Technical Regulatory Specialist. The defendant was the Road Accident Fund. The claim concerned compensation for bodily injuries sustained in a collision on 6 November 2007 at the intersection of the K101 and Old Pretoria Road.

The matter proceeded to trial after the parties admitted various expert medical reports by consent. The parties’ actuaries did not testify, but their actuarial reports were placed before the court as evidential aids in determining the plaintiff’s alleged future loss of earning capacity. Certain heads of damage were agreed in quantum, but the court was required to determine issues relating to negligence and contributory negligence, and to resolve how the plaintiff’s future patrimonial loss should be calculated and adjusted for contingencies.

The general subject-matter of the dispute was therefore twofold. First, it concerned the apportionment of liability for the collision (particularly whether the plaintiff was contributorily negligent). Second, it concerned the assessment of diminished earning capacity, including which assumptions about the plaintiff’s likely career trajectory were supported by the evidence and what contingency deductions were appropriate.

2. Material Facts

The collision occurred at a traffic-light controlled intersection between a truck (motor vehicle WDM 658 GP) driven by E. Van Wyk (the insured driver) and the plaintiff’s vehicle (motor vehicle FWY 313 GP) driven by the plaintiff. The plaintiff alleged that the insured driver’s negligent driving was the sole cause of the collision.

In respect of damages not dependent on the merits, the parties agreed that the plaintiff’s general damages amounted to R800,000.00, and that her past hospital and medical expenses amounted to R606,960.52. At the start of the trial, the defendant accepted that the insured driver was liable for 50% of the plaintiff’s general damages, contending that the plaintiff was equally contributorily negligent.

On the merits of the collision, the plaintiff herself had no recollection of how the accident occurred. The court therefore relied materially on other eyewitness evidence and on what was either admitted or left undisputed.

A key eyewitness, Mr Van Rensberg, described the plaintiff’s vehicle as travelling in the left lane, following two vehicles, with two vehicles behind her. He placed the insured driver’s vehicle in the right lane, behind those vehicles. He stated that the traffic lights were green in the plaintiff’s favour as the vehicles entered the intersection within the speed limit. On his version, the truck approached from the opposite direction, entered the intersection, and then turned right across the plaintiff’s path of travel, attempting to “take a gap” in front of her vehicle but failing to do so, resulting in a collision between the truck’s right front portion and the right side of the plaintiff’s vehicle. He expressed the opinion that there was nothing the plaintiff could have done to avoid the collision, and he testified that the insured driver said he did not see the plaintiff’s vehicle because he was talking to his wife.

Another witness, Mr Venter, was stopped at a red light on the K101 and recalled seeing a truck collide with the plaintiff’s vehicle within the intersection. He also recalled that the insured driver said he did not see the plaintiff’s vehicle.

The insured driver, Mr Van Wyk, testified that his traffic light turned green in his favour and that an arrow indicated he could turn right. He stated that he proceeded to turn and only saw the plaintiff’s vehicle when he was effectively “on top of it”. He conceded that he told the police after the accident that he did not see where the plaintiff’s vehicle came from. The court treated as material the insured driver’s concession, on his own version, that he only saw the plaintiff’s vehicle at the moment of collision and did not observe other vehicles travelling through the intersection in the opposite direction.

On the future loss claim, the material background facts concerned the plaintiff’s educational and employment history and her post-accident functioning. She obtained a Master’s Degree in Mycology in 1996, worked as a lecturer, and thereafter worked at the Agricultural Research Council – Plant Protection Institute (as Senior Research Technician and later Researcher). In January 2006 she joined Villa Crop (Pty) Ltd as a Technical Regulatory Specialist. Before the accident she found her work boring and wanted a change, preferring research to administrative regulatory work. She testified that post-accident she had concentration and memory difficulties, required more time and effort for tasks, sometimes made errors, and sometimes worked extra time to complete work; her employer was aware of her reduced performance compared to pre-accident.

The court also treated as material that the plaintiff had not pursued certain further studies (such as an MBA or PhD) prior to the accident, and that evidence about her likely move to a multi-national corporation was not supported by concrete pre-accident steps or applications. The court placed weight on evidence indicating that research and development vacancies in multi-national companies were scarce, and on the plaintiff’s employment record, which the court interpreted as not demonstrating an established pattern of aggressive career advancement into the “uppermost” corporate science roles.

3. Legal Issues

The first central issue was a merits question involving both fact and the application of legal standards to fact: whether the collision was caused solely by the insured driver’s negligence, or whether the plaintiff was contributorily negligent, justifying a 50/50 apportionment as contended by the defendant. This required the court to evaluate mutually destructive versions concerning the state of the traffic lights and to decide which version was more probable on the evidence as a whole.

A second central issue concerned the quantification of patrimonial damages, specifically future loss of earning capacity. This was primarily an application-of-law-to-fact exercise informed by predictive and discretionary judgment: the court had to determine which hypothetical “but for” career scenario was supported by the evidence, how to compare that scenario to the plaintiff’s likely earnings post-injury, and which contingency deductions were appropriate given uncertainties and “vicissitudes of life”.

A further issue embedded in the damages enquiry was the evaluative question of how expert evidence should be weighed, including whether particular opinions were founded on logical reasoning rather than speculation, and how far actuarial calculations should be treated as determinative given the court’s discretion.

4. Court’s Reasoning

On the merits, the court approached the case on the basis that the onus rested on the plaintiff to prove, on a balance of probabilities, that her version was true and that the insured driver’s version was false or mistaken. It referred to the approach applicable where versions are mutually destructive and probabilities may be evenly balanced, emphasising that the plaintiff can succeed only if the court accepts her version as probable and true and rejects the opposing version.

The court also applied the principle that a vehicle entering a traffic-light controlled intersection does not have an absolute right of way, and that drivers have a duty to keep a proper lookout. Against that background, the court placed decisive weight on the insured driver’s own concessions and on the aspects of the eyewitness evidence that were not disputed.

Although the plaintiff could not recall the collision, the court found that the defendant did not dispute important parts of Van Rensberg’s evidence, including that the insured driver was talking to his wife while turning, and that he said he did not see the plaintiff’s vehicle before impact. The court considered it significant that, on the insured driver’s own version, he only saw the plaintiff’s vehicle when he was essentially on top of it, which supported the conclusion that he failed to keep a proper lookout.

The court accepted Van Rensberg’s evidence that the insured driver attempted to “take a gap” in front of the plaintiff while her vehicle was in close proximity to the vehicles ahead, and it reasoned that this demonstrated an unsafe and ill-timed crossing of the plaintiff’s path of travel. On that basis, the court rejected the insured driver’s evidence as unreliable and false, accepted Van Rensberg’s account as the only cogent explanation for how the collision occurred, and concluded that the defendant had not established any contributory negligence by the plaintiff. The court also relied on the fact that Van Rensberg’s view that the collision was unavoidable for the plaintiff was not challenged, reinforcing the conclusion that contributory negligence was not shown.

On future loss of earning capacity, the court began from the orthodox delictual premise that diminished earning capacity constitutes patrimonial loss if it diminishes the plaintiff’s estate, and that quantification requires constructing and comparing two hypothetical earnings models: what the plaintiff would have earned “but for” the injury, and what she is likely to earn while handicapped by the injury. It further noted that such an enquiry is inherently speculative and that courts may either make a broad estimate or use actuarial calculations based on assumptions, subject always to adjustment for contingencies and to the court’s discretion.

The court described the proper judicial approach to expert testimony by stressing that the relevant question is whether the opinion advanced is based on logical reasoning. The court then examined the competing industrial psychology and actuarial assumptions regarding whether the plaintiff would probably have left Villa Crop for a multi-national company, the level at which she would have entered such an organisation, and whether she would have worked beyond retirement as a consultant.

In evaluating the plaintiff’s educational and employment history, the court found that the plaintiff was an above-average student and likely functioned in the average to above-average intellectual range prior to the accident, but it did not accept that she was proven to be in the “superior” echelon described as the typical “crème-de-la-crème” targeted by multi-national corporations. The court placed weight on the plaintiff’s actual career choices after obtaining her Master’s degree, including that she did not seek employment with a multi-national company and had not applied for such positions, as well as on the limited evidential support for the proposition that she had a clear, concrete plan to move into a multi-national corporation in the near future.

The court rejected as speculative the assumptions underlying actuarial calculations premised on the plaintiff moving rapidly into a multi-national corporation at a very high quartile remuneration level and later working as a consultant post-retirement. In particular, it found that the opinion that such a corporate move was “natural” for the plaintiff was insufficiently substantiated and not supported by enquiries into vacancy availability or objective evidence demonstrating that she would likely have secured such a post.

At the same time, the court did not exclude the possibility that the plaintiff might have left Villa Crop while still marketable. It reasoned that, having regard to the fact that she left the ARC after seven years, it was reasonable to assume that if she were to leave Villa Crop, this might occur at around age 42. The court accepted actuarial projections (by Whittaker) relating to the plaintiff remaining at Villa Crop and reaching a ceiling by age 55 with earnings at a Paterson D4 level, finding these projections reasonable and based on logical assumptions.

For the hypothesis of entry into a multi-national company, the court adopted a more conservative projection than that advanced by the plaintiff’s case. It reasoned that, given factors including scarcity of research vacancies, affirmative action and equity considerations, the plaintiff’s age, her average educational qualifications, and lack of multi-national research experience, it was reasonable to assume entry at around the 50th quartile of Paterson D3/D4 rather than at the upper quartiles suggested. It then exercised its discretion on contingencies by applying a 30% contingency to the plaintiff’s projected future loss of earning capacity commencing from November 2012 (the assumed point at which she would be earning R35,000 per month in the alternative scenario), and by directing that the plaintiff’s projected future earnings at Villa Crop be subject to a 15% contingency, with the latter deducted to reach the net assumed loss.

Consistently with its view that the evidence did not establish a probable post-retirement consultancy career, the court rejected a model that built in further earnings between ages 65 and 70 on a consultancy basis, describing that proposition as speculative and unsupported by factual evidence.

5. Outcome and Relief

The court found in substance that the insured driver’s negligence caused the collision and that the defendant had not shown contributory negligence on the plaintiff’s part. It therefore made orders reflecting the parties’ agreed heads of damage without an apportionment in the plaintiff’s general damages and medical expenses beyond deductions for amounts already paid.

The court ordered the defendant to pay the plaintiff the agreed general damages of R800,000.00, less R400,000.00 already paid, and the agreed past medical and hospital expenses of R606,960.52, less R300,000.00 already paid. It further ordered the defendant to provide the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996.

On costs, the court ordered the defendant to pay the costs of suit, including the costs of the reports of the plaintiff’s listed experts and specified qualifying fees.

On future loss of earning capacity, the court did not itself state a final lump-sum figure in the order as reproduced, but instead directed a method of calculation. It ordered that the plaintiff’s assumed projected future loss of earning capacity be assessed from 7 November 2012, on an assumption of earnings of R35,000.00 per month with uniform increases to age 55 and inflationary increases to retirement at age 65, with a 30% contingency applied. It further ordered that, to determine the plaintiff’s actual assumed future loss, the plaintiff’s projected future salary at Villa Crop (to a ceiling at age 55 with inflationary increases to age 65) should be calculated, reduced by a 15% contingency, and then deducted from the amount determined in the first calculation. The parties were granted leave to approach the court within 14 days to argue any issue regarding the calculation of the projected future loss of earning capacity.

The court ordered interest on the amounts awarded at 15.5% per annum, calculated from a date 14 days after the date of the judgment to the date of payment.

Cases Cited

National Employer’s General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).

Doorgha and Other v Parity Insurance Co Ltd 1963 (3) SA 365 (DCLD).

Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A).

Union and National Insurance Co Ltd v Coetzee 1970 (1) SA 295 (A).

Prinsloo v Road Accident Fund 2009 (5) SA 406 (SECLD).

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA); [2002] 1 All SA 384 (SCA).

Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 (HL (E)).

Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) 77.

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).

Legal Assurance Company v Botes 1963 (1) SA 608 (A).

Van der Plaats v Southern African Mutual Fire and General Insurance Company 1980 (3) SA 105 (A).

Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(4)(a).

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that the insured driver’s evidence was unreliable and fell to be rejected, and that the undisputed and accepted eyewitness account established that the insured driver failed to keep a proper lookout and turned across the plaintiff’s path while attempting to “take a gap”. On the accepted evidence, the plaintiff could not reasonably have avoided the collision and the defendant did not establish contributory negligence on her part.

The court held that, while the plaintiff experienced post-accident difficulties affecting efficiency, the evidence did not justify the more ambitious and highly remunerative “but for” career path advanced through certain expert assumptions, particularly the proposition of imminent entry into a multi-national corporation at high quartile earnings and post-retirement consultancy work. The court adopted a more conservative approach, directing that future loss of earning capacity be calculated using specified assumptions and by applying contingency deductions of 30% and 15% to reflect uncertainty and vicissitudes of life.

LEGAL PRINCIPLES

A plaintiff bears the onus of proving negligence and causation on a balance of probabilities, and where versions are mutually destructive the plaintiff succeeds only if the court finds the plaintiff’s version probable and the opposing version false or mistaken, assessed with reference to probabilities and credibility as a whole.

A driver entering a traffic-light controlled intersection does not enjoy an absolute right of way and remains under a duty to keep a proper lookout; failure to observe traffic in the intersection and to avoid turning across oncoming vehicles may constitute negligence.

Under the lex Aquilia, the defendant must compensate the difference between the plaintiff’s estate as it is after the delict and as it would have been but for the delict; a person’s capacity to earn forms part of the estate, and impairment of that capacity may constitute patrimonial loss.

Quantification of future loss of earning capacity is inherently speculative. A court may employ actuarial calculations as a useful basis, but it is not bound by them and retains a wide discretion to award what it considers just, including by adjusting for contingencies reflecting the uncertainties and vicissitudes of life.

Expert evidence is evaluated by examining whether the opinions expressed are founded on logical reasoning and adequately supported by the evidence; speculative assumptions not grounded in objective facts may be rejected when constructing “but for” and post-injury earnings scenarios.

O'Brian v Road Accident Fund (2008/36388) [2010] ZAGPJHC 66 (2 September 2010)