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[2019] ZAGPJHC 201
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V C obo T N v Road Accident Fund (7972/2015) [2019] ZAGPJHC 201 (11 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 7972/2015
In
the matter between:
C
V (curatrix ad litem to N,
T) PLAINTIFF
AND
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
TWALA
J
[1]
Miss V, an advocate of this Court and a curatrix ad litem in this
case, instituted action on behalf of her Ward, Mr T N (“
the
Plaintiff
”),
for the damages it suffered as a result of a motor vehicle and
pedestrian accident that occurred on the 16
th
of September 2012. The plaintiff sustained serious injuries as a
result of the accident which will appear more fully hereunder.
[2]
On the 11
th
of August 2017 the Court ordered the separation of the issue of
liability and quantum in terms of the provisions of Rule 33 (4)
of
the Uniform Rules of Court. Further, the defendant was ordered to pay
90% of the plaintiff’s proven damages.
[3]
At the commencement of the hearing, the parties placed it on record
that the other heads of damages have been agreed and settled
between
them and that the issue that remained for determination is that of
loss of earnings or earning capacity. For the sake of
completeness,
the parties agreed to settle the other heads of damages as follows:
I
.
That
for future medical and related expenses, the defendant is to issue an
undertaking in terms of
section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
as amended in favour of the plaintiff limited to
90%.
II.
That
the defendant is to pay the plaintiff a sum of R1 012 500
for general damages.
[4]
It is on record that the plaintiff was referred to a myriad of
medical experts who compiled medical legal reports and joint
minutes
which are, by agreement between the parties, admitted in evidence
except for the medical legal report of the plaintiff’s
industrial psychologist. It is noteworthy that at this stage of the
proceedings, I had not had the opportunity to read through
the
medical legal report of the industrial psychologist nor any other
medical legal and joint report of the experts.
[5]
It is not in dispute that as a result of the accident, the plaintiff
suffered the following injuries:
I.
A
severe brain injury with multiple cerebral contusions;
II.
A
right parietal subdural haemorrhage;
III.
A
right parietal skull fracture extending to the temporal region;
IV.
Laceration
of the scalp, and
V.
Fractures
of the T11 and T12 vertebrae.
[6]
The sequelae of the injuries sustained by the plaintiff are summed up
by the experts as having cognitive dysfunction involving
comprehension, concentration, fatigue and tiredness. The plaintiff
suffers from posttraumatic headaches, mechanical back pain,
posttraumatic epilepsy which requires management over the remainder
of his life, mood and psychotic disorder, aggression and symptoms
of
depression. The plaintiff has suffered loss of amenities of life and
his life expectancy had been reduced by between 3 and 5
years.
[7]
Ms Barbara Donaldson, an industrial psychologist, whose
qualifications and expertise was admitted in evidence, testified that
the plaintiff was in grade 6 when the accident occurred. However, he
was promoted to grade 7 on the basis of his performance and
class
marks before the accident. His scholastic problems surfaced in grade
9 when he failed and was promoted to grade 10 after
repeating. But
grades 10 and 11 are impossible because he had not received the
foundations in grades 8 and 9 due to his cognitive
deficits. She
testified further that the plaintiff will not pass grade 12 even if
he were to be placed at a Technical Vocational
and Educational
Training College (TVET), as opined by the educational psychologist
for the defendant, for there is no supervision
of the students at
these colleges making it difficult for the plaintiff who has such
cognitive challenges to achieve anything.
[8]
She testified that many young people who passed grade 12 without
difficulty are struggling to secure employment and the plaintiff
is
in a worse position due to his inhibitions. The educational
psychologists are agreed that, had the accident not happened, the
plaintiff would have completed grade 12 and probably obtained a
bachelor’s degree which would have left him with an NQF7
level
qualification. He would have started work at the salary band at
Paterson grade C level. He would have accepted, for a start
and to
put his foot at the door, a salary in the Paterson grade B4 level in
the lower quartile and would have progressed and reached
a ceiling of
Paterson grade C4 level in the upper quartile. She however,
allowed one year of failure in grade 12 since the
twin sister to the
plaintiff failed and had to repeat two subjects in grade 12. Because
of his physical injuries, the plaintiff
cannot do any physical work
and it would be impossible for him to obtain employment in the open
labour market owing to the injuries
he sustained in the accident.
[9]
She testified under cross examination that she did not take into
account that the plaintiff would not have immediately after
completing his tertiary education secure employment due the economic
conditions in the Republic. However, this can be catered for
by way
of contingencies to be applied.
[10]
In terms of the
Road Accident Fund Act, Act
56 of 1996, the defendant
is liable to compensate litigants who are injured or suffered damages
in motor vehicle accidents fairly
and reasonably. It is trite that,
to succeed, the onus is on the plaintiff to prove its damages on a
balance of probabilities.
[11]
It is trite law that, to claim for loss of earnings or earning
capacity, a plaintiff must prove the physical disabilities and
or
neuro-cognitive deficits resulting in the loss of earnings or earning
capacity and the actual patrimonial loss. Loss of earnings
or earning
capacity is assessed under the Lex Aquilia on the basis that the
defendant must make good the difference between the
value of the
plaintiff’s estate after the commission of the delict and the
value it would have had if the delict had not
been committed. (
See
Rudman v Road Accident Fund 2003 (2) SA (SCA)
and
Dippenaar
v Shield Insurance Co Ltd
1979 (2) SA 904
(a)
).
[12]
In
Southern
Insurance Association v Bailey NO 1984 (1) (AD) 98
the
court stated the following:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss. It has open to
it two possible approaches. One is for the Judge
to make a round
estimate of an amount which seems to him to be fair and reasonable.
That is entirely a matter of guesswork, a bling
plunge into the
unknown. The other is to try to make an assessment by way of
mathematical calculations, on the basis of assumptions
resting on the
evidence. The validity of this approach depends upon the soundness of
the assumptions, and these may vary from the
strongly probable to
speculative. It is manifest that either approach involves guesswork
to a greater or lesser extent.”
[13]
In
Bee
v Road Accident Fund (093/2017) [2018] ZSCA 52 (29 March 2018)
the
Supreme Court of Appeal per Seriti JA stated the following:
“
It is
trite that an expert witness is required to assist the court and not
to usurp the function of the court. Expert witnesses
are required to
lay a factual basis for their conclusions and explain their reasoning
to the court. The court must satisfy itself
as to the correctness of
the expert’s reasoning.
The facts on
which the expert witness expresses an opinion must be capable of
being reconciled with all other evidence in the case.
For an opinion
to be underpinned by proper reasoning, it must be based on correct
facts. Incorrect facts militates against proper
reasoning and the
correct analysis of the facts is paramount for proper reasoning,
failing which the court will not be able to
properly assess the
cogency of that opinion. An expert opinion which lacks proper
reasoning is not helpful to the court.
……
If
an expert witness cannot convince the court of the reliability of the
opinion and his report, the opinion will not be admitted.
The joint
report of experts is a document which encapsulates the opinions of
the experts and it does not lose the characteristic
of expert
opinion. The joint report must therefore be treated as expert
opinion. The fact that it is signed by two or more experts
does not
alter its characteristic of expert opinion. The principles applicable
to expert evidence or reports are also applicable
to joint report.
The joint report before the court is consequently part of evidential
material which the court must consider in
order to arrive at a just
decision. The court, in such instance, will be entitled to test the
reliability of the joint opinion,
and if the court finds the joint
opinion to be unreliable, the court will be entitled to reject the
joint opinion. The court is
entitled to reject the joint report or
agreed opinion if the court is of the view that the joint report or
opinion is based on
incorrect facts, incorrect assumptions or is
unconvincing.”
[14]
I agree with counsel for the plaintiff that I did not indicate to the
parties that I was considering to reject any of the agreements
reached by the parties and do not intend to do so. However, that does
not preclude me from reading the documents filed of record
beyond
those that I am specifically referred to at the hearing. It is
salutary to remind ourselves that the Court has a duty to
exercise
its oversight function in matters where public funds are involved. I
requested the parties to address the two issues as
to how long it
would have taken the plaintiff to obtain his bachelor’s degree
and how long it would have taken him to secure
employment thereafter.
[15]
It is disconcerting to note that the evidence of Ms Donaldson
tendered in Court somewhat differs with what she opined in her
medical legal report. It is further quite disturbing to note that the
defendant, who was served with Ms Donaldson’s report
some time
ago failed to take issue with her evidence in Court. I was of the
view that, since the defendant did not have its industrial
psychologist report, it would make issue on certain aspect on the
report of Ms Donaldson but that was not to be as she somewhat
deviated from her report.
[16]
Ms Donaldson’s conclusions in her report are that the plaintiff
would have obtained grade 12 and thereafter would have
been obliged
to leave school and enter the world of work. He would have entered
the labour market in a position graded at a lower
quartile Paterson
Job Grade A3 level and would have progressed and reached his career
ceiling in a position at a Paterson Job Grade
B4 upper quartile
level. In the event that he had been given an opportunity to attend
further studies at a tertiary institution,
he could then have
achieved a qualification at an NQF6 level which would have taken him
1.5 years to achieve. Then he would have
started his employment at
the Job Grade A3 but would have reached a career ceiling
commensurately higher which is in Job Grade
C3 level. Nowhere does
she mention in her report that the plaintiff would have obtained a
tertiary qualification at an NQF7 level
as she testified in Court nor
did the Ms Van den Heever, the educational psychologist on whose
report she was relying on.
[17]
Ms Van den Heever opined in her report that prior to the accident the
plaintiff was probably a child of at least average capabilities.
He
probably had the potential to have completed grade 12. Depending on
the availability of funds and educational environment, if
offered the
opportunity he probably would have been able to pursue further
studies at a NQF6 level.
[18]
In my view, if Ms Donaldson came across new information which was not
made available to her when she compiled her report, she
should have
prepared a supplementary report and lay the factual basis for her
change of opinion. However, she did not submit any
supplementary
report nor did she tender any cogent reasons for deviating from her
report. In her testimony Ms Donaldson did not
take the Court into her
confidence as an expert who was there to assist the Court but was
more of a witness for the plaintiff.
She even contended that the
plaintiff would have been in a position to apply to NASFAS for
funding of his tertiary education. This
piece of evidence does not
appear anywhere in her report.
[19]
Counsel for the plaintiff contended that the report of Ms Tau, the
educational psychologist, should be discarded since it was
more than
2 years old. However, Ms Donaldson testified that both the
educational psychologists are agreed in their joint report
that the
plaintiff probably would have obtained a bachelor’s degree but
for the accident. However, no factual basis has been
laid before me
as to why the educational psychologists agree in their joint report
that the plaintiff would probably have obtained
a bachelor’s
degree. Ms Van den Heever opined that the plaintiff would
probably have obtained an NQF6 depending on
the availability of funds
and educational environment. The only expert who opined that it was
possible that the plaintiff was going
to reach grade 12 and pass it
with either diploma or bachelor’s is Ms Tau, whose report I am
told to discard for it is old.
There is no evidence before me to show
why Ms van der Heever changed her stance from the plaintiff obtaining
a qualification of
a NQF6 to NQF7 (bachelor’s degree). For the
above reasons, the joint minute of the educational psychologists
falls to be
rejected.
[20]
It is apparent from the report of the actuary that it is based on Ms
Donaldson’s report and “instruction received”.
It
seems to me that the instructions given to the actuary were different
from the opinion of Ms Donaldson. The actuarial report
puts the
plaintiff in a position to start employment at the lower quartile
package of the Paterson B4 level whereas according to
Ms Donaldson’s
report he would have entered the labour market in a position graded
at a Paterson Grade A3 level. The inescapable
conclusion is
therefore, that the actuarial calculation of the plaintiff’s
loss is based on wrong facts and is therefore
unreliable and falls to
be rejected.
[21]
However, I hold the view that it is in the interests of justice that
I invoke the provisions of Rule 33 (5) of the Uniform
Rules of Court
which provides as follows:
“
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 proceedings which may be necessary
for the final
disposal thereof.”
[22]
I am satisfied that the plaintiff suffered the injuries as listed
above in the accident and that he is experiencing the sequelae
as
stated supra. I am further satisfied that the plaintiff
suffered damages which have to be computed based on the report
of Ms
van der Heever in that he probably would have passed his grade 12 and
with the funds permitting and an opportunity prevailing,
he probably
would have obtained a tertiary education which would have positioned
him at the NQF6 level. Both the educational psychologists
although Ms
Tau opines that he would possibly have obtained a bachelor’s
degree, have opined that he would probably have
passed grade 12.
However, it was argued that, according to Ms Van den Heever he
probably would have progressed and obtained some
diploma at tertiary,
with funds permitting.
[23]
It is my respectful view that this matter should be referred back to
the actuary for the calculation of the loss. The actuary
should take
into account that the twin sister to the plaintiff failed and had to
repeal grade 12. It should also consider the reality
of the economic
situation of the Republic regarding youth unemployment and the time
it would take the plaintiff to secure a job
after completing grade 12
and or being engaged as an intern. I am mindful that this aspect of
the claim may be accounted for by
the contingency deduction to be
applied. I am of the considered view therefore that a contingency
deduction of 30% is fair and
reasonable under the circumstances.
[24]
In the circumstances, I make the following order:
I.
The
draft order marked “X” and annexed hereto as amended, is
made an order of Court.
II.
That
the parties obtain an actuarial calculation of the plaintiff’s
loss of earnings on the premise that he would have obtained
his grade
12 and thereafter a tertiary qualification which would have
positioned him at NQF6 level and apply a 30% contingency
deduction;
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 9
th
May 2019
Date
of Judgment: 11
th
June 2019
For
the Plaintiff: Adv. H Van Bergen
Instructed
by: Munro Flowers & Vermaak
Tel:
011 327 5418
For
the Respondents: Adv. N Panther
Instructed
by: Pule Inc
Tel:
011 482 1044