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[2021] ZAECPEHC 24
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S.W.G v Road Accident Fund (2114/2018) [2021] ZAECPEHC 24 (13 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
CASE
NO. 2114/2018
Date
heard: 13 April 2021
In
the matter between:
S[…]
W[…] G[…]
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
REASONS
FOR ORDER
RUGUNANAN,
J
[1]
This
matter served before me on 13 April 2021. It involves an action for
damages following a collision between a motor vehicle and
a motor
cycle on 25 November 2015 in Kurland Road, Port Elizabeth. The
plaintiff, a machinist by occupation, was the driver of
the motor
cycle and as a result of the collision, he sustained multiple bodily
injuries.
[1]
[2]
In a report dated 5 July 2020, Actuary Wim
Loots calculated the present value of the potential loss of earnings
suffered by the
plaintiff due to the injuries he sustained. The
report incorporates calculations in respect of the plaintiff’s
pre- and post-accident
earnings scenarios. In the pre-accident (or
uninjured) scenario the report reflects the plaintiff’s past
and future loss
as respectively amounting to R457 539, 00 and
R9 707 059, 00 after so-called “normal contingencies”
of 5% and 15%, were applied.
[3]
Premised on the views adopted by its expert
in a joint minute concluded between the industrial psychologists
engaged by the parties,
the defendant’s stance is that higher
than normal contingencies ought to have applied to the calculation of
the plaintiff’s
past and future loss in the uninjured scenario.
[4]
In the circumstances, the issue I am
required to determine is whether the calculation by actuary Loots
ought to be accepted. I should
mention at the outset that the report
is not disputed insofar as it incorporates the calculation of the
plaintiff’s post-accident
(or injured) earnings, the
plaintiff’s demographic information, the underlying assumptions
made by the actuary and the agreed
pre-accident career and earnings
progression jointly charted by the parties’ expert industrial
psychologists, namely Dr Michelle
Nobre for the plaintiff, and Dr
Dirk Pretorius for the defendant.
[5]
When
the matter was called for trial the defendant was in default of
appearance for want of legal representation. In the course
of his
opening address counsel for the plaintiff, Mr Schubart SC, handed up
a bundle of documents.
[2]
Among
the items contained therein are court orders issued at various
intervals since 1 June 2020 when the matter appeared on the
trial
roll and on which date the defendant conceded liability on the merits
and settled the plaintiff’s claim for general
damages in the
amount of R1 100 000 with provision being made for an
undertaking in accordance with section 17(4)(a)
of the Road Accident
Fund Act
[3]
.
[6]
Apart from the contents of the exhibit
indicating that the matter was at all times postponed and retained on
the trial roll of cases,
the relevance of the court orders is that
they provide a timeline – all indications from which are that
officials of the
defendant dealing with the matter (and at whose
instance the postponements were requested), had knowledge of the
issues affecting
the matter and had known of the trial dates in the
drift of events since June 2020 which culminated in the matter
proceeding to
trial on the aforementioned date.
[7]
Before proceeding to address the issue, it
is considered appropriate to recapitulate, only insofar as is
necessary, the contents
of an order issued out of this court on 8
December 2020, this with a view to lending substance to the timeline:
“
5.
The matter was enrolled for hearing on 05 November 2020 in respect of
claims for past hospital and medical
expenses and past and future
loss of earnings.
6.
… the matter is capable of settlement in that a joint minute
was prepared between
the industrial psychologists dated 22 June 2020.
8.
That the matter stood down, from time to time, at the request of the
Defendant.
9.
The matter was postponed on 17 November 2020 at Defendant’s
request until 2 December
2020, Defendant to pay the costs occasioned
by the postponement.
10.
The matter has again been postponed because no offer was forthcoming
from the Defendant.
11.
That the trial in respect of the aforesaid issues in dispute is
postponed until 15 March 2021 for trial
and for the hearing of
evidence and the determination of the aforesaid issues in dispute
between the parties.
15.
That the plaintiff file a memorandum, summarising the issues in
dispute and the evidence required to
prove the quantum of the
outstanding claims in dispute, including the issues which may affect
the amount of such damages and contingencies
on or before 22 February
2021.
18.
That should the Defendant seek further postponement of the matter, it
shall deliver a substantive application
for such postponement by 12
February 2021”
[8]
In a rule 37 minute concluded between the
parties on 11 February 2021, the defendant
inter
alia
, recorded the following:
“
4.
Defendant admits the correctness of the contents and opinions
expressed
by experts, Dr Nobre and Dr Pretorius, industrial
psychologists, as per their joint minute dated 22 June 2020 and agree
(sic) that
the joint minute can be received into evidence without the
necessity of Dr Nobre and Dr Pretorius having to testify.
5.
Defendant admits the correctness of the contents and opinion
of the
expert actuary, Wim Loots, as per his reports dated 4 February 2020
and 5 July 2020 and agree (sic) that the reports can
be received into
evidence without the necessity of Mr Loots having to testify.
6.
The defendant admits the quantum of the claim in respect of
past
hospital expenses in the sum of R344 831,53.
7.
The defendant admits the quantum of the claim in respect of
past
medical expenses in the sum of R166 941, 28.”
[9]
On 22 February 2021, and in compliance with
paragraph 15 of the order of 8 December 2020, the plaintiff filed a
memorandum which
summarised the remaining issues in dispute and
incorporated material extrapolated from the pleadings and various
expert reports.
The defendant raised no issue with its contents, nor
did the defendant indicate if it intended to supplement the
memorandum in
any material respect.
[10]
Reverting to the conduct of the
proceedings, Mr Schubart called one witness, Dr Nobre, an industrial
psychologist. It is unnecessary
to recapitulate her qualifications
and professional experience. I am satisfied that she has been
properly qualified to give expert
testimony. Dr Nobre confirmed that
a joint minute was concluded between herself and Dr Pretorius, this
in relation to the plaintiff’s
pre-accident career and income
progression, as well as his post-accident income earning potential.
[11]
The essential aspects of the experts’
joint minute has been summarised as follows in the memorandum by Mr
Schubart:
(i)
2015 to 2016 earning a total of
R121 774,00;
(ii)
2017 to 2020 similar earnings;
(iii)
2021, earning R198 162,45 per annum
plus overtime;
(iv)
From 2022 to 2040 earnings increases on a
straight line; by age 45 earning R415 000,00 per annum together
with overtime;
(v)
Retirement at age 65;
(vi)
There would be annual increases of CPI plus
1% per annum for actuarial purposes.
[12]
As previously mentioned, Actuary Loots
produced a calculation into which he factored the material contained
in the joint minute.
In oral evidence, Dr Nobre stated that the
plaintiff’s pre-accident earnings ought to attract normal
contingencies only and
not higher than normal contingencies. Her
reasons are set out in a brief report read into the record, as
follows:
“
At
the time of the MVA, the claimant was 20 years of age and had
progressed well in a noticeably short period of time, showing a
positive and upward career trajectory. This suggests high levels of
motivation and a good work ethic. It is thus envisaged that
this
upward career trajectory would have continued.
The
claimant was in the process of acquiring sought after skills. As a
qualified artisan his skills would have been in high demand
in the
labour market.
He
had positive career role models, which would have positively
influenced his approach to work and career. His father was a business
owner, one brother was a draughtsman (skilled occupation) and the
other held a management position.
The
claimant had achieved grade 12 with endorsement to further studies on
a National Diploma or Higher Certificate level. His grade
12 marks
are suggestive of at least average to above average intellectual
functioning.
[4]
Clinical Psychologist Annandale opines at least a high average
intellect. The claimant is thus likely to have coped well with the
demands of successfully completing a trade, would have enjoyed upward
career mobility and would have been a highly regarded and
desirable
employee.
His
experience at Welfit Oddy provided him with marketable job skills and
valuable work experience within the practical and manufacturing
environment. This would have enhanced his employability and
competitiveness as well as training and development opportunities
allowing him to increase his employability in the labour market.”
[13]
I
accept that the determination of an appropriate contingency deduction
cannot be done with mathematical precision and is a matter
of
judicial discretion. So-called normal contingencies, however, usually
entail deductions of 5% for past loss and 15% for future
loss.
[5]
For illustrative purposes, Mr Schubart referred to a judgment by
Plasket J (as he then was) in the matter of
Michael
Deyzel v Road Accident Fund
[6]
in which 15% was applied as a normal contingency deduction against a
claim for future loss of earnings. Although the facts in
Deysel
are distinguishable, the basis of comparison lies in the plaintiff
being a dependable individual with a positive and upward career
trajectory. Accordingly, on the information before me, and regard
being had to the uncontested evidence by Dr Nobre, I find no
reason
to apply higher than normal contingencies and accept the report by
actuary Loots in its entirety (incorporating, as does,
the statutory
limitation or “cap” as it is otherwise known).
[14]
At the conclusion of the proceedings Mr
Schubart handed up a draft order reflecting a total award of R 9
773 679, 81. This
amount represents the sum of the admitted past
hospital expenses of R344 831, 53; the admitted past medical
expenses of R166
941, 28, and the contingency adjusted amounts of
R457 539, 00 and R9 707 059, 00.
[15]
Consequently, the draft order marked “X”
which is attached to this judgment is made an order of this court.
____________________________
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Reasons
handed down electronically on 16 April 2021 at 10h30.
Appearances:
For
the Plaintiff:
Adv. L. A. Schubart. SC
Instructed
by:
Johan Cronje
Attorneys
c/o
Heine Ungerer Attorney
25
Cape Road
Port
Elizabeth
(Ref:
JTC/G200:HU/Geyser)
Tel:
041 374 3773
Email:
jtc@jcalaw.co.za
For
the Defendant:
No Appearance
[1]
These
being in the nature of a comminuted fracture of the distal femur; a
comminuted and compound tibial fracture; a fracture
involving the
base of the thumb of his left hand; and Psychiatric injuries in the
form of a post-traumatic stress disorder and
a major depressive
disorder.
[2]
Exhibit
“A”
[3]
Act
56 of 1996, as amended
[4]
On
average 57%. His mathematical literacy mark was 73%
[5]
R
J Koch Quantum Yearbook 2020 page 118
[6]
Unreported
Case No 1886/2013 (ECHCPE) delivered 14 August 2014