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[2020] ZAGPJHC 274
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M N v Minister of Police (A5051/2019) [2020] ZAGPJHC 274 (19 October 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
no: A5051/2019
In
the matter between:
M
N
Appellant
and
MINISTER
OF
POLICE
Respondent
Case
Summary
:
Delict – Damages – Bodily injuries – Future medical
expenses.
Evidence
– Expert evidence – Joint minutes - Whether
requirements laid down in
Glen
Mark Bee v Road Accident Fund
2018
(4) SA 366
(SCA) that when a court itself is for any reason
dissatisfied with the matters agreed to by experts or is minded to
reject their
opinion, litigants should be alerted to the court’s
dissatisfaction or of a possible rejection of the agreed opinion
timeously
so that they can consider adducing further evidence on the
agreed material.
JUDGMENT
MEYER
J (LAMONT J and HARRISON AJ concurring)
[1]
This is an appeal against part of the judgment and order made by the
High Court, Gauteng Division, Johannesburg (Sutherland
J) on 22
August 2019 in a delictual action instituted by the appellant, Mr M
N, against the respondent, the Minister of Police,
for damages
arising from an unlawful shooting which shattered the appellant’s
right arm with debilitating consequences.
Liability had been
determined in a preliminary hearing and the respondent was held to be
liable in such sum of damages as shall
be proven. The trial
court was then seized with the computation of those damages.
[2]
The heads of damages which the trial court was required to determine
were the appellant’s general damages for pain, suffering
and
loss of amenities of life, future medical expenses, and future loss
of earning capacity. To facilitate the determination
of each of
these heads of damages, the parties agreed not to lead any oral
evidence. Factual evidence had been obtained from
the medical
experts who submitted reports on the condition of the appellant.
The medical experts had, where appropriate,
given joint minutes
setting out their agreements, and the parties agreed to use the
respondent’s actuarial computations.
Having been
addressed by counsel for both parties the trial court reserved its
judgment. In a fully reasoned judgment that
was subsequently
handed down the trial court awarded a total amount of R4 309 000 in
damages to the appellant, which amount was
made up as follows:
R1 559 000 in respect of his future medical expenses; R750 000 in
respect of his general damages; and
R2 000 000 in respect of his loss
of earning capacity.
[3]
In determining the appellant’s future medical expenses in the
total amount of R1 559 000, the trial court rejected most
of the
recommendations of the occupational therapists. In this regard
Sutherland J said the following:
‘
[18] The only remaining
controversy is whether all the recommendations of the occupational
therapists ought to be accepted as necessary.
Some comments on
the list provided and the thought that went into compiling the list
are warranted. The impression made on
me in reading the list is
that every conceivable aid has been recommended, without regard to
lifestyle of the plaintiff or a genuine
investigation into whether he
has, in the period that has elapsed since sustaining the injury,
coped without these aids.
In the absence of concrete evidence
to substantiate a material disadvantage if these aids are not
supplied, the opinion dictating
the recommendations is unconvincing.
Many items are ordinary household devices which would be acquired in
any event.
In my view the list is nothing more than a blatant
attempt to inflate the quantum of damages, conduct in which both
occupational
therapists are culpable. It is an abuse of the
role that medical practitioners are expected to play in litigation.
[19] I accept that the recommendation
for occupational therapy is appropriate (item no 34) R18 284.00, but
for the balance, the
items are wholly unsubstantiated or
unconvincingly alluded to in the reports. On the premise that
the plaintiff is likely
to acquire some devices for strictly personal
use to ameliorate the clumsiness he must experience, I shall make a
lump sum allowance
of R50 000.00. That sum added to the sum
recommended for therapy
per se
, I shall round up the gross
figure for occupational therapy to R70 000.00.’
[4]
The appellant applied for leave to appeal against the court
a
quo’s
allowance of only an amount of R70 000.00 for future
medical treatment in respect of occupational therapy and assisted
devices,
inter alia
contending that the court
a quo
‘erred
in fact and/or law . . . [i]n not warning the legal representatives
of the parties, prior to judgment, that the Court
does not accept the
joint opinion of the experts and in not allowing the parties the
opportunity to lead oral evidence in
this regard.’
In support of his contention the appellant relied on the judgment of
the Supreme Court of Appeal in
Glen Mark Bee v Road Accident Fund
(093/2017)
[2018] ZASCA 52
(29 March
2018) (2018 (4) SA 366
(SCA).
[5]
In
Bee
the question as to the effect of an agreement recorded
by experts in a joint minute was considered. Rogers AJA
inter
alia
said this in the majority judgment:
‘
[71] I would add that
even where the agreed matter is one of opinion, fair play will, as I
have said, generally require that
a possible rejection of the
agreed opinion be timeously raised. This is for the reason that
litigants will quite properly
not spend their resources on
establishing matters of expert opinion which are not in dispute.
Indeed, they would rightly
be upbraided for wasting court time by
doing so. If a court is minded to reject the opinion on the
available evidence, the
litigants should be alerted to this so that
they can consider adducing further evidence.
. . .
[73] My colleague has cited a
number of local and foreign cases dealing with the assessment of
contested expert testimony.
I agree that in such cases a court
must determine whether the factual basis of a particular opinion, if
in dispute, has been proved
and must have regard to the cogency of
the expert’s process of reasoning. Matters are quite
different, in my respectful
opinion, where experts in the same field
reach agreement. In such a case, as I have said, a litigant
cannot be expected to
adduce evidence on the agreed matters.
Unless the trial court itself were for any reason dissatisfied with
the agreement
and alerted the parties to the need to adduce evidence
on the agreed material, the trial court would, I think, be bound, and
certainly
entitled, to accept the matters agreed by the experts.
In the present case the trial court did not require the parties to
lead further evidence on the matters on which the experts agreed.
The trial court was perfectly entitled to act as it did.
In
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schälingsbekämpfung mbH
1976 (3) SA 352
(A) Wessels JA
foreshadowed that an expert’s bald opinion, if uncontroverted,
might carry weight (371G). All the more
so, where experts for
the opposing parties share the same opinion.
[6]
In his judgment granting leave to appeal to this full court,
Sutherland J
inter alia
said the following:
‘
It has been argued by Mr
Pieterse that, in the first place, no alert was given by me that I
was not going to accept the opinion
of the occupational therapists.
There is a nuance to this submission. It would obviously be
inappropriate in the course
of a hearing to commit oneself to a view
one takes before having heard all of the evidence and the argument.
And so it is perfectly correct
that I have at no time announced unequivocally that I had rejected
the opinion of the occupational
therapists.
So much for that. As to whether
or not the parties had proper notice that they were at risk of me not
accepting the opinions,
I have a clear recollection of a vigorous
debate taking place in respect of these very issues.
In the first place Ms Makopo, on
behalf of the defendant, sought to repudiate the agreement recorded
in the joint minutes, because,
as she argued, the recommendations
which were generous by any measure, were unjustified. I
expressed my scepticism about
the recommendations and expressed my
scepticism about whether any expertise by the experts was evident in
their conclusions that
the recommendations for these amenities are
necessary.
It does not appear, as I understand
the argument presented now, that any dispute exists that such
exchanges took place. What
is suggested is that what is
required in terms of the
Glen Mark Bee
case is that there be
an unequivocal alert by the Court to a party that the opinions are
unconvincing and that evidence should be
led. The question
arises whether or not that threshold was met or not. That is
the first ground upon which leave to
appeal is sought.
If indeed the proper threshold is that
some degree of formality is required to announce or indeed pronounce
that a particular expert
agreement is being rejected in advance of
the conclusion of the case, then clearly that was not what I
announced.
In my view, at the relevant time, it
was sufficient to alert the parties to the fact that, as I was
entitled to do, as the trier
of fact, to express my dissatisfaction
with the opinion and were it the intention or desire of any party, in
respect of that exchange
and the debate, to adduce further evidence
that was open to that party, and it could have been done at the
time.’
[7]
Sutherland J concluded in saying this:
‘
In my view the question of how
a Court should conduct itself in these circumstances warrants
clarification. It may well be
that some degree of formality
rather than simply a substantive alert is an appropriate procedure to
impose upon a Court.
On that point I am inclined to grant
leave to appeal to the Full Court for that question to be explored
and, if necessary, a clear
indication be given of the threshold which
is contemplated in paragraphs [73] and [74] of the
Glen Mark Bee
case.’
[8]
The crisp question on appeal before us is whether the trial court met
the threshold contemplated in
Bee
in its rejection of the
agreement of the occupational therapists. If the question is
decided in favour of the appellant, the
trial court’s award of
the amount of R70 000 in respect of occupational therapy and assisted
devices as a component of the
award for future medical treatment
should be set aside and the matter referred back to the trial court
to alert them of its dissatisfaction
with the agreement of the
occupational therapists or that it is minded to reject their opinion
on the available evidence so that
they can consider adducing further
evidence on the occupational therapists’ agreed material.
Should the question be
decided against the appellant, then
cadit
quaestio
(the dispute is at an end).
[9]
A reading of the record of the proceedings clearly shows that the
trial court in no uncertain terms expressed its dissatisfaction
not
only with the agreement reached by the occupational therapists but
also by the agreement reached by the industrial psychologists
and
that it was prepared for the parties to lead evidence on the agreed
material. The trial court was of the
prima facie
view
that their agreed opinions were not founded on facts relevant to the
appellant in this case. A few examples of the interactions
between the trial judge and counsel for the appellant relating to the
agreement of the occupational therapist during his argument
suffice:
COURT:
Is a proper case made out that he cannot manage without these
services?
MR
PIETERSE: Yes.
COURT:
I mean this looks pretty extravagant to me.
MR
PIETERSE: It is
agreed in the joint minutes Your Lordship will see that . .
.
[intervenes]
.
. .
COURT:
Well they would agree, but it is unconvincing.
MR
PIETERSE: M’Lord,
that is the evidence before Your Lordship.
COURT:
Well I do not have to accept it.
.
. .
COURT:
If OT’s come together and they say you should have home based
care services. I mean what is the factual foundation for
that.
MR
PIETERSE: They say
so … [intervenes]
COURT:
They just suck it out of their thumbs, do they not?
MR
PIETERSE: No M’Lord.
COURT:
Take me to the OT’s report and show me what the factual
foundation for that is.
MR
PIETERSE: Your
Lordship will find the joint minute on pages 3 to 10.
.
. .
COURT:
It is pretty waffle, is it not; and this is cut and paste stuff.
I mean where do they address the actual circumstances of
this person,
the home environment, the cultural practices and so forth, to provide
R1.5 million of daily care. He is not
an invalid.
.
. .
COURT:
No. I accept that that it is what it will cost, but where is the
basis for suggesting that it is an actual need?
MR
PIETERSE: M’Lord,
after any operation that he will undergo, he will not
be able to
dress himself, he will not be able to feed himself, he will not be
able, he will be immobile.
COURT:
No that must be an exaggeration, he has one good hand, he can feed
himself with that.
MR
PIETERSE: How do you
dress, how do you bath, how do you shower, he will need
care and
assistance and that is what they allowed, but … [intervenes]
COURT:
But, but, but just think about the foundation for the opinion.
The fact that you got one limb out of commission, does not
mean to
say you cannot dress yourself . . . I have had personal
experience in having my right arm out of commission for six
weeks.
I did not have to have somebody else to dress me. I just
dressed myself with difficulty. You know the
assumptions about
total incapacity are exaggerated.
MR
PIETERSE: M’Lord,
if your Lordship is in disagreement with the common
cause facts which
are agreed between the parties, then this is something …
[intervenes]
COURT:
But there are no facts, that is the problem, sorry to interrupt you.
The problem with these reports as is often the case,
is there are no
facts. It is a thumb sucked opinion, so the two OT’s
agree on an opinion neither of which is founded
in fact. And
then I am expected just to swallow that.
.
. .
MR
PIETERSE: Yes.
M’Lord, may I on this aspect during the adjournment
I will take
an instruction, because both the occupational therapists and the
plaintiff are available to take instructions and I
will take
instructions on the facts as they were and as they are.
COURT:
Well, why are the facts not in the report. The facts are now
going to be produced ex post facto. If they did not inquire
into the facts in order for them to form their opinions, what facts
are there now to be gained?
MR
PIETERSE: I will . .
. [intervenes]
COURT:
Unless
you want to have this matter to go to evidence?
MR
PIETERSE: No,
M’Lord, I will simply make an inquiry as to whether there
was a
home visit and whether any of this that Your Lordship queried was
taken into account when the experts were employed by the
parties.
COURT:
But, but surely it would have been put in the report. I mean
you are welcome to do that in the adjournment.’
[10]
Later on during counsel for the appellant’s address on the
question of the appellant’s loss of earning capacity
the trial
court in no uncertain terms expressed its dissatisfaction with the
agreement reached by the industrial psychologists
as was the case
with its dissatisfaction with the agreement reached by the
occupational therapists and that it was prepared for
the parties to
lead evidence on the agreed material. For example:
‘
COURT:
But
you see you have the same problem as with the OTs, the IPs
frankly let down the litigants. I would have expected if you
were
going to give an expert opinion on the career trajectory of a
man who between 21 and 25 was a rigger, you would have some research
on what the age profile are of riggers over time, whether as a matter
of course there are any still doing rigging by the time they
get to
40. What sort of other roles do they evolve into, instead of
which you get this generalised nonsense? Now it
is no rebuke of
the legal representatives, you are reliant on these experts, but in
fact there is no factual substratum to their
findings.
.
. .
MR
PIETERSE: Now,
in a case such as this whether there is agreement between
the
industrial psychologists that he would have ceilinged at Paterson C2,
but for the incident, then there is no need to present
those facts in
court, because it is uncontested and how satisfactory or not
satisfactory they are, those are the facts placed before
Your
Lordship by agreement. And I submit Your Lordship should accept
those facts.
COURT:
But is there not, is there not a danger in that, is there not a
danger in that. I am not bound by any of these expert reports,
even when you agree. The fact that they share an opinion and I
cannot find a factual foundation in either of them for their
opinion,
I am talking generically now, does not mean to say that I am somehow
obliged to defer to the litigants’ agreement
about their
opinion. I am at large to reject it.
MR
PIETERSE: But if it
is envisaged that a court will always disregard an agreement
between
experts, then a plaintiff will not approach a matter on this basis .
. . So I hear Your Lordship’s difficulty in
general, but in a
matter such as this, I submit that if for instance it was contested
and if for instance Your Lordship at the
beginning of the trial
stated that although the parties accept the agreement reached between
the experts and the joint minute,
the court does not accept them,
then we will tender evidence and bring those facts to enable Your
Lordship to weigh up the opinion
of the experts having regard to the
facts. But now, none of that has happened, so therefore …
[intervenes]
COURT:
Well it is happening now. I am pointing out deficiencies in the
reports that you are relying on.
.
. .
MR
PIETERSE: My
submission to Your Lordship is twofold, one, because of the
agreement
reached between the experts and because of the agreement reached
between the parties, Your Lordship should be bound by
that agreement
and accept that agreement and if Your Lordship indicates to the
parties that Your Lordship, because of a lack of
facts in the reports
themselves, are not willing to accept the basis as agreed between the
industrial psychologists, then I submit
Your Lordship should inform
the parties. Because then I will take instructions, but then
the plaintiff would want the opportunity
to call the employer and the
people at the employer and the people that work with the
plaintiff on a daily basis, pre- and
post- accident to indicate to
Your Lordship the possibilities of where his career path could and
would in all probability have
ended.
COURT:
That is perfectly sensible, and I have raised my difficulties in
accepting these views for want of substantiation. So is
that
what you would like to do?
MR
PIETERSE: If
Your Lordship indicates to the parties that Your Lordship
is not
going to accept the agreement between the industrial psychologists
who agree but for having regard to career path, then
I submit that is
what the plaintiff would have to do.
COURT:
Well, my prima facie view is that the opinions are based on an
unsubstantiated factual strata. And therefore the opinions
are
compromised. So what would you like to do in the light of that
observation?
MR
PIETERSE:
M’Lord, then we would like to place the facts before Your
Lordship regarding … [intervenes]
COURT:
So you would like to call evidence? You are perfectly entitled
to ask for that opportunity.
MR
PIETERSE: Well,
M’Lord, I would like to ask for a 5 minute adjournment
to
discuss it with my learned friend and take instructions . . .
.
. .
MR
PIETERSE: I am
indebted to Your Lordship for the short adjournment.
M’Lord,
we discussed the issue. The parties accept the agreement
reached between the industrial psychologists and by
agreement between
the parties. . . . ‘
[11]
The rule laid down in
Bee
is that the trial court is generally
bound, and entitled, to accept the matters agreed to by the experts,
unless the trial court
itself is for any reason dissatisfied with the
agreement or minded to reject the opinion. The litigants should
be alerted
to the trial court’s dissatisfaction or of a
possible rejection of the agreed opinion timeously so that they can
consider
adducing further evidence on the agreed material. I
respectfully agree with Sutherland J that it would obviously be
inappropriate
in the course of a hearing for a judge to commit to a
view before having heard all the evidence and the argument.
That certainly
is also not what the rule in
Bee
requires, nor
does it require some degree of formality for the trial judge ‘to
announce or indeed pronounce that a particular
expert agreement is
being rejected in advance of the conclusion of the case’.
[12]
Furthermore, the requirements laid down in
Bee
in cases where
the trial court is dissatisfied with the agreement of experts or
minded to reject their opinion are clear and unambiguous.
It
was, with respect, not necessary for the Supreme Court of Appeal to
give any further indication ‘of the threshold which
is
contemplated’ in its judgment. The litigants should be
alerted to the trial court’s dissatisfaction or of
a possible
rejection of the agreed opinion timeously so that they can consider
adducing further evidence. Whether those requirements
were met,
and whether they were timeously complied with, will depend upon the
particular circumstances of each case.
[13]
In this instance the trial judge alerted the parties to his
dissatisfaction with the agreed matter of the occupational
therapists,
that he is not bound by their agreement, and, as he
correctly stated in his judgment when he granted leave to appeal,
‘were
it the intention or desire of any party, in respect of
that exchange and the debate, to adduce further evidence that was
open to
the party, and it could have been done at the time’.
In my view the trial judge clearly met the requirements laid down
in
Bee
.
[14]
In many, if not most cases in this division, the trial judge does not
get the opportunity to read the expert reports and expert
joint
minutes prior to the commencement of the hearing, and is confronted
with the material during the course of the hearing and
closing
argument. In such instances the trial judge may become
dissatisfied with the agreement or agreements of experts or
minded to
reject their opinion or opinions during the course of the trial, or
closing argument, or even when the judge considers
the matter in
depth and writes the judgment. Whenever that occurs, (and
obviously before delivering judgment) is the moment
that the trial
judge must alert the parties to the need to adduce evidence on the
agreed material.
[15]
In the result the following order is made:
The
appeal is dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Judgment:
05 November 2020
Heard:
19 October 2020
Appellant’s
counsel:
Adv JC Pieterse
Instructed
by:
Logan Naidoo Attorney, Houghton, Johannesburg
Respondent’s
Counsel: Adv N Makopo
Instructed
by:
State Attorney, Johannesburg