About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2023
>>
[2023] ZAECQBHC 7
|
|
N.D.B obo J.W.K v Road Accident Fund (1100/2020) [2023] ZAECQBHC 7 (10 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 1100/2020
In
the matter between:
NDB
on behalf of JWK
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BANDS
AJ:
[1]
The
plaintiff claims damages on behalf of her minor child, to whom I
shall refer as JWK,
[1]
for
injuries sustained by him consequent to a motor vehicle collision,
which occurred on 22 July 2018 in Accum Street, Gqeberha.
JWK was a
pedestrian at the time.
[2]
The
defendant previously admitted its liability to the plaintiff, which
was recorded in an order of this Court, dated 29 July 2022.
The
order also served to settle the issues of general damages and future
medical expenses,
[2]
and
accordingly, the issue which lies at the heart of this dispute is the
extent of JWK’s loss of earning capacity,
[3]
inclusive of the appropriate contingency deductions.
[3]
It is
common cause that JWK, at the time of the collision, was 7 years of
age and a grade 1 scholar. The injuries sustained
by him
remained in dispute on the pleadings. One court day prior to
the commencement of the trial, the defendant, by way
of written
responses to the plaintiff’s supplementary agenda, admitted the
majority of the injuries sustained by JWK, inclusive
of the
following: (i)
multiple
abrasions to his pelvic region; (ii) an open-book fracture of his
pelvis; (iii) an open fracture of the shaft of his left
femur; (iv) a
large degloving injury to his left thigh with a soft-tissue injury
involving the left thigh, the left knee and the
left calf; and (v)
multiple fractures in his right foot, involving the cuboid bone, the
metatarsals and tarsal bones.
[4]
[4]
As the plaintiff is still a minor, the computation as to his loss of
earnings did not call for an investigation into his past
loss of
earnings.
[5]
In respect of future loss of earning capacity, it is the plaintiff’s
case on the pleadings that JWK will: (i) probably
not complete grade
12 and will discontinue his schooling; and (ii) probably remain
unemployed throughout his life, with no meaningful
earnings.
Accordingly, the principal stance adopted on behalf of the plaintiff
is that JWK retains no residual earning capacity.
With this in
mind, the plaintiff claims an amount of R6,371,800.00 (prior to
contingency deductions) in respect of future loss
of earning
capacity, being the value of his pre-morbid earnings, in accordance
with the updated actuarial report, prepared by Willem
Boshoff and
Julie Valentini, forensic actuaries, in the employ of Munro Forensic
Actuaries, dated 22 July 2022. I return
to this report below.
[6]
Whilst the
defendant’s case, at trial, was that JWK had sustained no loss
of earning capacity,
[5]
it was
correctly conceded during argument by Mr Dala, who appeared on behalf
of the defendant, that such a loss had been sustained
(
albeit
that no concession was made regarding the extent thereof).
[7]
Expert witnesses were engaged by both parties in various disciplines,
with joint minutes being prepared by the parties’
respective
occupational therapists, Nicole Boreham (“
Boreham
”)
and Siyabonga Mkhize (“
Mkhize
”); educational
psychologists, Gerhardt Goosen (“
Goosen
”) and
Cebisa Nkatu (“
Nkatu
”); and industrial
psychologists, Eben Coetzee (“
Coetzee
”) and
Albeter Chikuya (“
Chikuya
”). On a whole, the
joint minutes reflected a large degree of consensus among the
experts, with the most notable differences
being between the
industrial psychologists. A report was prepared by Dr Mahmood
Aslam (“
Dr Aslam
”), an orthopaedic surgeon, on
behalf of the plaintiff and filed pursuant to the provisions of
Uniform Rule 36(9). The
correctness of the content of Dr
Aslam’s report remained in dispute.
[8]
In the
plaintiff’s supplementary pre-trial agenda, dated October
2022,
[6]
the plaintiff requested
the defendant to agree that a copy of the updated actuarial report
may be tendered into evidence without
the need to call an actuary as
a witness, and to admit the correctness of the actuarial calculations
contained therein, without
admitting any factual assumptions or
contingency deductions used by the actuary. The defendant
declined to make such admissions,
which decision was conveyed to the
plaintiff on Friday, 28 October 2022, one court day prior to the
commencement of the trial.
Accordingly, and prior to the
commencement of the plaintiff’s case, an application was made
from the bar to allow evidence
on behalf of the actuaries to be
advanced via an online platform. After hearing argument on
behalf of both parties, and prior
to delivering my ruling, I was
advised by Mr Dala, on behalf of the defendant, that he had received
instructions in the intervening
period to make the admissions sought.
[9]
In determining JWK’s loss of earning capacity, and prior to the
application of contingency deductions, I am called upon
to determine
firstly, whether JWK has been rendered unemployable; alternatively,
whether he has retained some form of residual
earning capacity.
[10]
There is no dispute regarding JWK’s pre-morbid career path and
earnings. JWK would in all probability have completed
grade 12
in 2028 and would have enrolled and completed a National Diploma (NQF
level 6) by 2031. Thereafter, and with reference
to the
Paterson Grading System, JWK would have entered the open labour
market in 2032 as a trainee (alternatively in an internship
position)
for a year earning at least around the salary of a Paterson B1 level,
whereafter he would have commenced in a position
earning around a
Paterson B3 level. His career would have progressed in 4 to
6-year intervals, with him reaching a career
plateau between the ages
of 40 to 50, at the Paterson C2 level. He would have worked up
until retirement at the age of 65.
[11]
The only oral evidence tendered at trial was that of an expert
nature. The plaintiff called four witnesses, namely Dr
Aslam;
Boreham; Goosen; and Coetzee. The defendant restricted its
evidence to that of its industrial psychologist, Chikuya.
The
expertise of the various experts in their respective fields was not
placed in dispute.
[12]
From what I
set out below, and barring the question of whether JWK has retained
some form of residual earning capacity, I am satisfied
that the
factual basis upon which the respective expert witnesses expressed
their opinions, is not in dispute between the parties.
In
determining the above question, I am mindful of the fact that the key
function of the expert witnesses is to guide the court
in its
decision-making process on questions, which fall within the ambit of
the expert’s specialised field of knowledge.
[7]
[13]
Significantly, the evidence of the plaintiff’s witnesses, but
for that of the industrial psychologist, was undisputed.
In the
circumstances, it is difficult to understand why the reports could
not have been placed into evidence by agreement between
the parties.
This is particularly so in respect of the joint minutes drawn up by
the parties’ respective experts.
Prior to dealing with
the evidence, it is perhaps convenient at this stage to comment that
I was favourably impressed by Dr Aslam;
Boreham; and Goosen as
witnesses, who clearly had vast experience in their respective fields
of expertise. Their opinions,
which I accept, were well
reasoned; logical; and consistent with the common
cause facts.
[14]
Dr Aslam met with and examined JWK on two separate occasions, the
first of which was during August 2019 and thereafter during
February
2022. Two reports were prepared by him, dated 9 September 2019
and 28 February 2022 respectively, the content of
which was confirmed
during the course of his evidence. I deal with the most
pertinent aspects of his evidence below.
[15]
With reference to JWK’s
large degloving
injury to his left thigh,
Dr Aslam testified
that
he sustained damage to the medial collateral ligament of the left
knee and medial joint capsule. The soft tissue injury,
involving the left thigh, the left knee and the left calf, was of a
severe nature. It resulted in complete loss of full thickness
skin and damage to the ligaments and other soft tissues deeper to the
skin, including small blood vessels, nerves and veins.
The
severity of the soft tissue injury was to the extent that bone would
have almost been visible to the naked eye. The aforesaid
injury
will, in all probability, result in some degree of permanent muscle
weakness in the left thigh, the left knee and the left
lower leg
region. I pause to mention that the extent and severity of
JWK’s injury, which has resulted in extensive
scarring from
just above his ankle level to just below groin level, was immediately
apparent from the photographs to which I was
referred.
[16]
JWK sustained a grade 3B compound fracture to his
left femur, and accordingly narrowly escaped the amputation of the
limb in question.
Dr Aslam emphasised that whilst JWK is
very fortunate not to have lost his leg, the functional status of the
left lower limb, given
the severity of the injuries, will be
relatively substandard in future with the limitations being of a
permanent nature.
He opined that JWK’s injuries would
have some degree of psychological effect given that he will be
excluded from normal activities
that other children are able to
participate in.
[17]
Consequent to the injury sustained to his right
foot, as more fully described above, JWK suffers from a
post-traumatic deformity
of the right foot, the functional status of
which will likely be relatively substandard in future. There
exists a possibility
that JWK will require surgical intervention in
the form of an arthrodesis.
[18]
JWK currently suffers from a leg length discrepancy, with his right
leg being approximately 1.5 centimetres shorter than that
of his left
leg. This is known to cause abnormal stress on the lower back,
causing lower back pain and pain in the collateral
limb. In the
event that JWK does not outgrown this discrepancy, he will require a
permanent shoe raise.
[19]
Dr Aslam further testified that JWK will in all probability develop
post-traumatic osteoarthritis of the left knee, which will
require
further surgical intervention in the form of a total knee
replacement, which will thereafter have to be revised some 15
to 20
years down the line.
[20]
The pain suffered by JWK is chronic and
progressive in nature. He finds it difficult to stand or walk
for prolonged periods
of time and is unable to participate in sport
related activities.
[21]
Given the above injuries, activities requiring prolonged standing,
walking, running, excessive stairs or steps, both in the
context of
leisure activities and occupational activities, are relatively
compromised. Accordingly, Dr Aslam was of the opinion
that JWK
is better suited to employment in medium to light positions and that
he will find it difficult to cope with jobs which
are physically
demanding and require the use of safety shoes. More
particularly, Dr Aslam testified that:
“
[JWK]
would most probably have difficulty with jobs regarding safety
shoes. He would not be able to go with strenuous physical
jobs/jobs requiring a (sic) long standing and walking in future.
He will probably be also able (sic) for a light office job/sedentary
job in future
.”
[22]
The context of the above comment was later clarified by Dr Aslam
during cross-examination. He stated that his opinion
regarding
the employability of JWK in such positions was to be seen from an
orthopaedic point of view and that other factors, not
falling within
the ambit of his specialised field of expertise such as psychological
factors, could further impact of JWK’s
employability on a
whole.
[23]
As previously stated, Dr Aslam’s evidence was largely
undisputed. Whilst he conceded that JWK’s skeleton
is
still maturing and his leg length discrepancy may normalise, this
will not result in JWK being pain free, nor will it restore
JWK’s
functional capacity given the severity of his injuries. As to
the possible future orthotic and surgical intervention,
Dr Aslam
testified that:
“…
Specially
the left lower limb, unfortunately it will never be normal. No matter
what type of surgery you do, no matter what type
of orthotics you
give him unfortunately it is never going to be a normal left lower
limb. Same thing with the right also. Foot
injury is a known,
multiple foot fractures are known to cause chronic pain for a long
period. There is no doubt about in this case
also that he is going to
have issues, problems for the rest of his life with all the varying
activities irrespective of the treatment.
”
[24]
The
cross-examination as to the content of the reports prepared by Mr
Riaan Knight (“
Knight
”),
[8]
a clinical orthotist and prosthetist, and Mr Ian Meyer (“
Meyer
”),
[9]
clinical psychologist, was of no moment. The defendant elected
not to call either expert to testify.
[25]
Boreham confirmed the content of her report, dated 5 January 2020, as
well as that of the joint minute prepared by her and
Mkhize, dated 14
July 2022. Boreham and Mkhize recorded that in respect of their
respective individual assessments of JWK,
he presented with a similar
cluster of deficits and functional limitations. They further
agreed that his functioning on a
physical and emotional level had
shown a decline. Insofar as the required intervention and
therapy is concerned, they agreed,
inter alia
, that JWK
requires psychological management by a psychologist. He has
incurred a loss of amenities in life secondary to the
injury
sustained in the accident such as loss of good health; he no longer
enjoys the same activities and suffers from low self-esteem;
he no
longer performs the same activities of daily living as he did
pre-morbidly and his educational/career/employment prospects
have
been diminished significantly post-accident.
[26]
More particularly, Boreham and Mkhize agreed as follows:
“
5.1
Both therapists agree that from a physical
point of view he can no longer perform work that falls into the very
heavy, heavy or
medium category.
5.2
The therapists agree that he will be permanently excluded from
performing certain types of work that fall into the light category.
5.3
He will only be able to perform light work in a sympathetic
environment with accommodations to the type of light work he can
perform.
5.4
His ability to perform sedentary work will also be restricted by his
physical injuries and he will require accommodations. His
ability to
perform sedentary work is also affected by his educational potential
which has been addressed by the educational psychologists.
5.5
We agree that because of impaired psychosocial skills, severe
anxiety, irritability, aggressiveness, low self-esteem, stubbornness
and short temper leads to poor cognitive functioning hence further
reducing his odds of sustainable income bearing employment.
5.6
We agree that he will struggle to obtain and retain employment as a
result of the combination of physical, psychosocial, emotional,
behavioral and cognitive deficits that presents (sic) themselves as
sequelae of the accident.
[27]
During cross-examination, Boreham, when pressed to give examples of
the type of employment that JWK will be able to perform
in the
future, stated that all possible positions will require some form of
accommodations. Despite initially suggesting
certain possible
positions in the labour market, she upon reflection and with
well-reasoned responses, ruled them out as not being
viable.
Boreham’s evidence, in all material respects, was undisputed.
[28]
The plaintiff’s educational psychologist, Goosen, confirmed the
content of his report, dated 5 June 2020, as well as
the content of
the joint minute prepared by him and Nkatu, dated 12 July 2022.
Nkatu and Goosen were able to reach agreement
on various aspects,
inter alia
, JWK’s premorbid history; his pre-morbid
scholastic performance; his pre- and post-morbid intellectual
functioning; his visual-perceptual
and visual-motor integration
skills and his estimated future scholastic functioning.
[29]
Whilst JWK’s pre-morbid intellectual functioning was within the
average range, his post-morbid intellectual functioning
is within the
borderline range. Goosen explained that in the average range, a
person’s IQ (Intelligence Quotient) is
in the region of 100,
with a standard deviation of 15 points on either side. IQ
scores falling within one standard deviation
below average are
classified as low average, with those falling within two standard
deviations below average are borderline.
By way of
extrapolation, JWK’s post-morbid IQ falls within the range of
between 55 and 70, which is significantly below average.
[30]
Goosen and Nkatu are
ad idem
in respect of Nkatu’s
findings regarding JWK’s reading; spelling; comprehension; and
mathematical computations.
Goosen unreservedly accepts Nkatu’s
findings in this regard and concurred with the overall scholastic
profile and prognosis
as indicated by Nkatu.
[31]
In short, Nkatu found that JWK’s performance
in the word reading subtest gave him a standard score of 76, placing
his performance
within the very low range. His performance in
the word reading subtest placed him in the 5
th
percentile rank, and accordingly, 95% of his peers performed better
than him His reading skills were assessed to be more akin to
those of
a grade 2 scholar and not those in grade 4. Accordingly, he
does not possess the word reading skills expected of
his current
grade and may exhibit difficulties in reading activities expected of
his curriculum.
[32]
His performance in the spelling subtest gave him a
standard score of 72, placing his performance within the very low
range. His
performance in the spelling subtest placed him in
the 3
rd
percentile rank, meaning that 97% of his peers performed better than
him. In this regard, his performance on this subtest
estimated
his spelling skills to be equivalent to those of an individual in the
seven month of grade 1.
[33]
In respect of the math computation subtest, JWK
attained a standard score of 68, placing him within the extremely low
range. His
performance in math computation placed him in the
2
nd
percentile rank, and accordingly approximately 98% of his peers
performed better than him. His math computation skills were
assessed to be equivalent to those of an individual in grade 2.
[34]
In respect of the sentence comprehension subtest,
his performance gave him a standard score of 74, placing him within
the very low
range. His performance in the subtest placed him
in the 4
th
percentile rank, and accordingly 94% of his peers performed better
than him. His sentence comprehension subtest estimates
his
sentence comprehension skills to be equivalent to those of an
individual in the second month of grade 2. He will accordingly
struggle to comprehend written sentences, which will affect his
school performance.
[35]
Notably, the concluding paragraphs of the joint minute, records as
follows:
“
G
G
indicated that JWK's future scholastic performance will be affected
by his intellectual functioning, emotional and psychological
difficulties, and low performance in reading and basic arithmetic
skills, which probably exert increasingly limiting constraints
to his
functioning at (sic) the school work increases in volume, complexity,
and tempo. GG anticipates that, should he receive
the
appropriate orthodidactic interventions, he may succeed in completing
grade 12.
DN
notes that JWK's intellectual functioning, deficits in literacy and
numeracy may have a negative impact on his ability to meet
the
academic demands of his grades. These deficits may become more
apparent as he progresses to higher grades where more
academic
demands are exerted on him. With appropriate remedial
intervention, he may be able to reach at least grade 12.
”
[36]
Goosen opined that he is not convinced that JWK has the ability to
complete grade 12. He testified that given JWK’s
compromised intellectual functioning, he had initially suspected that
JWK had sustained a brain injury. Goosen attributes
JWK’s
compromised intellectual functioning to his
emotional deficits; residual effects of post-traumatic stress
disorder; and chronic
pain, which is known to reduce a person’s
cognitive function.
[37]
Goosen’s evidence remained consistent during cross-examination
and was, in all material respects, undisputed. In
re-examination, he testified that regardless of the interventions
which could have been provided to JWK in the past, no such
intervention
could have served to have made a large impact on JWK’s
intellectual level of functioning.
[38]
I now turn to deal with the evidence of the two industrial
psychologists.
[39]
In the joint minute prepared by Coetzee and Chikuya, they are in
agreement regarding JWK’s pre-morbid career path and
earnings,
which I have dealt with above. Correctly, they defer to the
opinions of the relevant experts in respect of issues
which do not
fall within the ambit of their specialised field of knowledge,
industrial psychology, and to which I have already
referred.
Significantly, they defer to the opinions of (i) Goosen and Nkatu in
respect of JWK’s post-morbid intellectual
functioning and his
future scholastic performance; and (ii) Boreham and Mkhize regarding
JWK’s decline in functioning; his
loss of amenities; and the
probability of him obtaining and retaining employment, and the
reasons therefor. Having said that,
Coetzee and Chikuya were
unable to agree on JWK’s post-morbid career path.
[40]
Coetzee, on behalf of the plaintiff,
testified
that JWK had sustained significant injuries and that he suffers from
a decline in his psychological functioning and severely
reduced
future work capacity. He is of the opinion that JWK will
probably discontinue his schooling prior to reaching grade
12 and
will accordingly be a significantly compromised individual within a
high unemployment environment. Without a grade
12 or any
meaningful tertiary qualification, JWK will probably not be a viable
candidate for sedentary level work. He will
have restrictions
on his ability to perform light work due to the limitation of his
standing and walking endurance due to the injuries
sustained by him.
In the result, he opined that JWK, given his significantly,
impaired physical status and compromised emotional
well-being, will
probably be unemployable throughout his life.
[41]
At best, and in the event that JWK is able to
complete grade 12, he will enter the open labour market as a
compromised job seeker.
Due to his physical limitations,
psychological deficits and lack of sedentary skills or
qualifications, there will be few
employment options available to him
with his maximum earning capacity being around the national minimum
wage, equating to approximately
R54,222.85 per annum. Over time
with securing sympathetic employment and an accommodative work
environment, his earnings
may increase to around the median for
semi-skilled individuals within the non-corporate sector of
approximately R88,000.00 per
annum at the age of 45 years.
[42]
Having said that, he testified that JWK's
prospects of entering the labour market with a sympathetic employer,
even if he was able
to pass grade 12, were very limited in that the
employ of compromised persons with JWK’s limitations is of no
benefit to
a potential employer. Supportive environments are
more readily available to persons who, at the time of their injury,
already
have a long-standing relationship with their employer by
virtue of their prior employment. The possibility of an
employer
employing an inexperienced job seeker, which requires a
sympathetic environment, is remote. Accordingly, on the
probabilities,
Coetzee opined that JWK would not find employment.
Coetzee remained steadfast in his position during cross-examination,
which
was further highlighted by his explanation that approximately
40% of all grade 12 graduates are currently unemployed in South
Africa
due to an oversaturated labour market.
[43]
The remainder of the issues dealt with in
Coetzee’s cross-examination pertained to aspects which did not
fall within his specific
field of expertise and were aimed primarily
at testing JWK’s
post-morbid intellectual functioning
and his future scholastic and tertiary performance. This of
course falls within the domain
of the educational psychologists, to
which Coetzee correctly deferred.
[44]
Chikuya testified
that
JWK’s school reports post-accident, indicate that he is an
average learner. This of course departs from the opinion
of the
educational psychologists; the accepted facts in the joint minute
prepared by Chikuya and Coetzee; and does not accord with
JWK’s
accepted
post-morbid intellectual functioning. Chikuya
conceded during cross-examination that she is not qualified to give
evidence
in the realm of educational psychology and that she would
have to defer to the opinion of the educational psychologists in
respect
of JWK’s post-morbid intellectual functioning and
scholastic ability.
[45]
She
further testified that according to Nkatu, the defendant’s
educational psychologist, JWK will “
probably
reach at least grade 12
”
and accordingly JWK has the potential of progressing further with his
education. Whilst the possibility exists of
JWK of progressing
past grade 12, one has to consider the probabilities of such
eventuality. It is in any event not correct
that Nkatu opined
that JWK will “
probably
reach at least grade 12
”,
her comments need to be read contextually. Nkatu highlighted
JWK’s compromised intellectual functioning and
his literacy and
numeracy deficits, all of which may have an impact on his ability to
meet the academic demands of his grades,
and which will be
exacerbated as he progresses to higher grades, with the academic
demands becoming more challenging. What
was recorded by Nkatu
in the joint minute is that “
[w]ith
appropriate remedial intervention, he
may
be able to reach at least grade 12
.”
Chikuya
clearly misinterpreted Nkatu’s opinion.
Much
debate ensued during cross-examination as to the meaning thereof,
with Chikuya maintaining that Nkatu had stated that JWK
will
pass at least grade 12. Of course, not only did this not accord
with the undisputed evidence, but on a simple reading of
the comment
in question, contextually,
[10]
this is simply not the case.
[46]
She further considered JWK’s
supportive family structure as a factor and, based on the generally
accepted notion that children
surpass their parents educationally and
occupationally on account of better opportunities and government
support through grants
and bursaries, opined that JWK is likely to
reach his pre-accident scholastic potential. Whilst I cannot
fault such general
notion, there is no evidence before me to support
this proposition in JWK’s case. To the contrary, the
evidence strongly
suggests otherwise.
[47]
Insofar as Chikuya’s assessment of
JWK’s post-morbid functioning is concerned, she attached
significant weight to the
report of Ian Meyer, in which he recorded
that JWK's IQ profile had “
probably
not been compromised by the sequelae of a TBI and it can consequently
be excluded that his scholastic endeavours have been
compromised by
any acquired neurocognitive deficits associated with brain trauma.
”
Whilst it is common cause that JWK did not suffer a TBI, this
does not detract from the fact that JWK’s post-morbid
intellectual functioning has been significantly compromised due to
the factors which I have already addressed, resulting in a
post-morbid IQ within the borderline range, which factors
Chikuya conceded during cross-examination. Clearly the opinion
of
Chikuya was largely driven by the assumption that the lack of TBI
meant that JWK had sustained no cognitive deficits, which is simply
not the case.
[48]
Based on the aforesaid incorrect assumed
set of facts, Chikuya testified that JWK is still able to obtain a
diploma and will be
able to pursue a career in fields such as human
resources; accounting; or information technology and that he would
probably progress
and earn as he would have pre-morbidly. In
the result, she opined that there are no expected loss of future
earnings.
Chikuya was hard pressed to advance any job within
the sphere of human resources; accounting; or information technology,
which
did not require tertiary education beyond that of a NQF level 6
diploma, the latter qualification being the best-case scenario for
JWK
pre-morbidly
.
[49]
Whilst several types of conflicts in expert
evidence may present themselves at trial, in this instance, I am
confronted firstly,
with a conflict in the assumed facts upon which
the respective industrial psychologists based their opinions; and
secondly, a conflict
in the analysis of the established and/or common
cause facts. Where a court is presented with competing
opinions, the underlying
reasoning of the respective experts must
carefully be considered to arrive at a decision as to which of the
opinions to adopt,
if any, and to what extent.
[50]
In
JA
obo DMA v The Member of Executive Council for Health, Eastern
Cape
,
[11]
Van
Zyl DJP (Majiki J and Malusi J concurring) stated as follows:
“
[12] …,
a conflict in the expert opinion may lie in the analysis of the
established facts and the inferences drawn therefrom
by opposing
expert witnesses. A proper evaluation of the evidence in this context
focuses primarily on “
the
process of reasoning which led to the conclusion, including the
premise from which the reasoning proceeds…”
The
reason for interrogating the underlying premise of expert opinion
lies in its nature. In essence it amounts, as in the
present context,
to a statement that established medical opinion, as the expert
witness interprets it, dictates a particular result
under an assumed
set of facts. This requires an assessment of the rationality and
internal consistency of the evidence of each
of the expert
witnesses. “
The
cogency of an expert opinion depends on its consistency with proven
facts and on the reasoning by which the conclusion is reached.”
The
source for the evaluation of this evidence for its cogency and
reliability are (i) the reasons that have been provided
by the expert
for the position adopted by him/her; (ii) whether that reasoning has
a logical basis when measured against the established
facts; and
(iii) the probabilities raised on the facts of the matter. It
means that the opinion must be logical in its own
context, that is,
it must accord with, and be consistent with all the established
facts, and must not postulate facts which have
not been proved.
[13]
The inferences drawn from the facts must be sound. The internal logic
of the opinion must be consistent, and the reasoning
adopted in
arriving at the conclusion in question must accord with what the
accepted standards of methodology are in the relevant
discipline. The
reasoning will be illogical or irrational and consequently
unreliable, if (i) it is based on a misinterpretation
of the facts;
(ii) it is speculative, or internally contradictory or inconsistent
to be unreliable; (iii) if the opinion is based
on a standard of
conduct that is higher or lower than what has been found to be the
acceptable standard; (iv) if the methodology
employed by the expert
witness is flawed…
[14]
Other considerations relevant in this context are (i) the
qualifications and the experience of the expert witnesses with regard
to the issue he or she is asked to express an opinion on; (ii)
support by authoritative, peer-reviewed literature; (iii) the
measure of equivocality with which the opinion is expressed; (iv) the
quality of the investigation done by the expert; (v) and
the presence
or absence of impartiality or a lack of objectivity. What is
ultimately required is a critical evaluation of the reasoning
on
which the opinion is based, rather than considerations of
credibility. Should it not be possible to resolve a conflict
in
the expert opinion presented to the court in this manner, that is,
when the two opposing opinions are both found to be sound
and
reasonable, the position of the overall burden of proof will
inevitably determine which party must fail. It is worth emphasising
that the onus as a determining factor “
can
only arise if the tribunal finds the evidence pro and con so evenly
balanced that it can come to no such conclusion. Then the
onus will
determine the matter. But if the tribunal, after hearing and weighing
the evidence, comes to a determinate conclusion,
the onus has nothing
to do with it, and need not be further considered.”
[51]
The evidence of Coetzee was unambiguous;
clear; well-reasoned; logical; and factually corroborated in all
material respects and
cannot be faulted. On the other hand, and
with respect to Chikuya, the conclusions reached, and the opinions
expressed by
her, were (i) not founded on logical reasoning; (ii)
based on a misinterpretation of the facts; (iii) inconsistent with
the opinions
of the remainder of the experts as well as the agreed
set of facts in the joint minute to which she was a party; and (iv)
in itself,
internally contradictory.
[52]
I accordingly accept the evidence of
Coetzee over that of Chikuya. As previously stated, the
defendant in any event, belatedly
conceded during argument that JWK
had sustained a loss, it is the extent thereof on which the parties
were not aligned.
[53]
Having accepted the conclusions arrived at
by Coetzee, and on a conspectus of the evidence before me, I am not
satisfied that JWK
has, on the probabilities, retained any residual
earning capacity to speak of. The impact of the accident on his
post-morbid
intellectual functioning is vast, compromising his
scholastic advancement as he progresses to higher grades. This
too is
compounded by the fact that JWK suffers from pain daily as
well as from emotional deficits. Even if JWK is able to reach
and pass grade 12, I cannot ignore the harsh reality of the high
unemployment rate faced by many young adults holding grade 12
qualifications and higher. The chances of JWK finishing grade
12; obtaining some form of further education; obtaining suitable
sympathetic employment; and retaining such employment, on the
accepted facts, is simply too remote.
[54]
I accordingly proceed on the basis that the
calculation of JWK’s future loss of earning capacity must be
approached on the
basis that JWK is unemployable.
[55]
As previously indicated, JWK’s future
loss of earning capacity has been calculated by
Munro Forensic
Actuaries, who postulated two scenarios. Scenario one is based
on the assumption that JWK has retained a residual
earning capacity,
whereas scenario 2 is based on the assumption that he has not.
Given my above finding, I need not address
scenario 1.
[56]
But for the issue of JWK’s residual earning capacity,
the assumptions upon which the actuarial calculation is based are
common
cause between the parties and are conservative. Prior to
the application of contingencies, JWK’s future loss of earning
capacity is calculated to be R6,371,800.00, which equates to his
projected pre-morbid uninjured earnings.
[57]
The plaintiff’s counsel submitted that a contingency
deduction of 25% would be appropriate in the circumstances, with 20%
deduction being the rule of thumb in respect of youthful plaintiffs
to allow for the general vicissitudes of life over a long period
of
time, and 5% being in respect of any remote residual earning
capacity, which JWK may have retained. On behalf of the
defendant, it was submitted that such deduction ought to be in the
range of 25% to 40%.
[58]
The
provision for contingencies is a matter of judicial discretion, which
of necessity is a rough estimate.
[12]
They
are arbitrary and highly subjective,
[13]
with the often-quoted passage in
Goodall
v President Insurance Co Ltd
[14]
being illustrative of this fact:
“
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by authors of a certain type
of almanack, is not
numbered among the qualifications for judicial office.”
[59]
What
complicates the present matter is that JWK was only 7 years old at
the time of the collision and is presently 12 years of age.
Accordingly, and as set out in
RAF
v Kerridge
[15]
(
supra
),
the younger the claimant, the more time he or she has to fall prey to
the vicissitudes and imponderables of life, which are impossible
to
enumerate, but which in the context of future loss of earning
capacity include
inter
alia
, a
downturn in the economy leading to reduction in salary; retrenchment;
unemployment; ill health; death; and the myriad of events
that may
occur in one’s everyday life. The court went on to
comment that “
the
longer the remaining working life of a claimant, the more likely the
possibility of an unforeseen event impacting on the assumed
trajectory of his or her remaining career
.”
I remain mindful of this.
[60]
In
Bonesse
v Road Accident Fund
,
[16]
Pickering J concluded as follows in respect of the contingencies to
be applied to a claimant who was 13 years of age:
“
Mr
Van Der Linde submitted… that
given
that Carly was 13 years old at the time of the accident it would be
appropriate to apply a contingency factor of 30% to her
future loss
of earnings. Mr Frost however, submitted that a contingency
deduction of 20% should be applied. He referred
in this regard
to Koch Quantum Year Book 2014 page 114 where the learned author
states that it has become customary for the court
to apply a
so-called sliding scale to contingencies - ie 25% for a child, 20%
for a youth and 10% in middle age. It would
appear that
although contingency factors which have been applied in cases
involving youths and or children range from 15% to 40%
the courts
have generally been inclined to apply a contingency figure of 20% in
respect of youthful plaintiffs in their teenage
years. Having
regard to all the circumstances of this matter, including Carly’s
age, I am of the view that a contingency
factor of 25% should be
applied.
”
[61]
The sliding scale referred to by Koch is stated to be as follows:
“
Sliding
Scale: ½ per cent per year to retirement age, ie 25% for a
child, 20% for a youth, and 10% in the middle age…
”
[62]
Having regard to
Goodall
(supra) upon which Koch relies for a
suggested contingency deduction of 10% in respect of a plaintiff who
was aged 45, and on an
application of the sliding scale to this
matter, it would lead to a contingency deduction of 26.5%.
[63]
On a consideration of the facts particular to the matter at hand, and
taking into account the factors enunciated by the court
in
RAF v
Kerridge
(supra) given JWK’s youthfulness, I am of the view
that the application of a 25% contingency deduction is fair in the
circumstances.
I see no reason as to why a higher continency
deduction ought to be applied. Accordingly, the plaintiff, on
behalf of JWK,
should be awarded R4,778,850.00 in respect of future
loss of earning capacity.
[64]
The statutory cap as provided in
section 17(4)(a)(ii)
of the
Road
Accident Fund Act 56 of 1996
has no impact on the present claim.
[65]
In argument, I was invited on behalf of the plaintiff to award the
costs incurred in calling Dr Aslam; Boreham; and Goosen
at witnesses,
on a punitive scale. Having considered the submissions on
behalf of both parties, I am not satisfied that such
a cost order is
justified,
albeit
that as previously set out by me, it is
difficult to comprehend why, at the very least, the joint minutes
could not have been placed
into evidence by agreement between the
parties, which conduct would have been expected of a responsible
litigant.
[66]
In the result, the following order shall issue:
1.
Judgment is granted in favour of the plaintiff in
her representative capacity as mother and natural guardian of JWK in
the sum of
R4,778,850.00.
2.
The defendant shall be liable to pay interest on
the aforesaid amount
a tempore morae
at the prescribed legal rate of interest from 14 days after the date
of this order to date of payment.
3.
The defendant shall pay the plaintiff’s
taxed or agreed party and party costs on a High Court scale,
including the reasonable
preparation; qualifying; reservation; and
attendance fees of the following experts, if any:
3.1
Dr Mahmood Aslam;
3.2
Nicole Boreham;
3.3
Gerhardt Goosen;
3.4
Eben Coetzee; and
3.5
Munro Forensic Actuaries.
4.
The defendant shall be liable to pay interest on
the amount of the plaintiff's costs of suit, as taxed or agreed, at
the prescribed
legal rate of interest from 14 days of the allocatur
of the taxing master or the date of agreement, whichever applies, to
the date
of payment.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Heard:
31 October 2022 and 1 November 2022
Delivered:
10 February 2023
Appearances:
For
the Plaintiff:
Adv
D Niekerk
Instructed
by:
Jock Walter Inc.
38
3
rd
Avenue, Newton Park, Gqeberha
For
the Defendant
Adv I Dala
Instructed
by:
State Attorney, Gqeberha
29 Western Road, Central,
Gqeberha
This
judgment was handed down electronically by circulation to
the parties' legal representatives by email on 10
February
2023. The date and time for delivery is deemed to be 14h30 on
10 February 2023.
[1]
To protect his identity.
[2]
Albeit
that the undertaking in terms of
section 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
, was only provided to the plaintiff on
1 November 2022, being the second day of trial herein.
[3]
Whilst this head of damages is often referred to as “loss of
income” or “loss of earnings”, it is more
properly
referred to as “loss of earning capacity”, as has
repeatedly been stated by the Supreme Court of Appeal.
See:
Santam Versekeringsmaatskappy v Byleveldt
1973 (2) SA 146
(A)
at 150A-C;
Dippenaar v Shield Insurance Co Ltd
1979 (2) 904
(A) at 917B-D; and
Southern Insurance Association v Bailey NO
1984 (1) 98 (A) at 111D-F.
[4]
The defendant did not admit the following further injuries as
contended for by the plaintiff: (i) an injury to JWK’s scrotum
and testicles; and (ii) a persistent adjustment disorder with mixed
anxiety and intermittent dysphoric mood.
[5]
The plea filed of record was that of no knowledge.
[6]
No specific date is included in the document.
[7]
The
Member of the Executive Council for Health, Eastern Cape v MM obo
ELM
(
supra
)
at para11;
Van
Wyk v Lewis
1924
AD 438
at 477; S v Gouws
1967 (4) SA 527
€ at 528D-F.
[8]
Filed on behalf of the defendant.
[9]
Filed on behalf of the plaintiff.
[10]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA).
Capitec
Bank Holdings Limited and another v Coral Lagoon Investments 194
(Pty) Ltd and others
(470/2020)
[2021] ZASCA 99
(09 July 2021)
at paragraph [49].
[11]
[2022]
2 All SA 112 (ECB); 2022 (3) SA 475 (ECB).
[12]
Road Accident Fund v Guedes
2006 (5) SA 583
(SCA) at paras 5 and 8.
[13]
RAF v Kerridge (1024/2017)
[2018] ZASCA 151
(01 November 2018) at
para 42.
[14]
1978 (1) SA 389
(W) (Goodall) at 392H-393A.
[15]
Para 44.
[16]
2014 (7A3) QOD 1 (ECP)