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[2023] ZAFSHC 99
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Z.V.S v Road Accident Fund (5489/2019) [2023] ZAFSHC 99 (31 March 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 5489/2019
In the matter between:
Z
V S obo S R M
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CLAIM NO: […]
LINK NO: […]
CORAM:
VANZYL,
J
HEARD ON:
27 SEPTEMBER 2023
DELIVERED ON:
31 MARCH 2023
[1] In this matter the merits, future
medical costs, general damages and costs up to 30 August 2022 were
settled between the parties.
On 30 August 2022 I granted an order by
agreement between the parties with regard to the aforesaid issues.
The said order also
made provision for the creation of a Trust for
purposes of the administration of the minor child's estate.
[2] In paragraph 16 of the aforesaid
order of 30 August 2022 the following order was made, also by
agreement between the parties:
"16. The plaintiff's
claim for loss of income/earnings is postponed
sine die
for
judgment by this Honourable Court, after consideration of the Heads
of Argument filed by the plaintiff's and defendant's legal
representatives, which Heads of Argument shall be served and filed as
follows:
16.1
Plaintiff's Heads of Argument to be served and filed no
later
than
9
September
2022.
16.2
Defendant's Heads of Argument to be served and filed no later
23 September 2022."
[3] Pursuant to the aforesaid order
the plaintiff's heads of argument were indeed filed on 9 September
2022. The defendant duly
filed its heads of argument on 16 September
2022. Thereafter, and with my leave, the plaintiff filed further
heads of argument
in reply to the defendant's heads of argument on 23
September 2022. Subsequent thereto and upon the defendant's request,
I granted
the defendant leave to file short further heads of argument
in response to issues raised in certain paragraphs of the plaintiff's
replying heads of argument, which further heads of argument were
filed on 27 September 2022.
Interlocutory
application:
[4] Due to an issue raised in the
defendant's heads of argument pertaining to alleged hearsay evidence
regarding the minor child
contained in the expert reports, the
plaintiff, as applicant, filed an interlocutory application for leave
to re-open the plaintiff's
case and that a confirmatory affidavit of
the plaintiff, dated 22 September 2023, be admitted into evidence. Ms
Bornman, who is
representing the defendant, addressed an email, dated
26 September 2022, to Ms Hattingh-Boonzaaier, who is representing the
plaintiff,
and to my Registrar, in which she indicated that she
received instructions from the defendant that it does not oppose the
request
that the aforesaid confirmatory affidavit of the plaintiff be
admitted into evidence.
[5] I consequently accept the
confirmatory affidavit of the plaintiff, dated 22 September 2022,
into evidence as exhibit "X".
[6] The essence of the affidavit is
that the plaintiff confirms the facts contained in the medico-legal
reports and supporting documents
as correct insofar as it relates to
her.
Background:
[7] The plaintiff is claiming damages
for loss of earnings on behalf of her minor son, S R M ("the
minor child"), who
was involved in a motor vehicle collision on
12 March 2019 at approximately 07h40 along Slovo Park Road,
Phuthaditjhaba, Free State
Province. The minor child was a pedestrian
at the time of the collision, which involved a motor vehicle with
registration number
[…].
[8] The minor child was born on 9 July
2012.
[9] As a direct result of the accident
the minor child suffered the following injuries:
several
lacerations and abrasions to the face
and head and a traumatic
brain injury
.
[10]
I
am now called upon to determine the amount of damages the minor child
suffered, if any, in respect of his loss of earnings, which
include a
determination of
the contingencies
to be applied.
[11] The plaintiff filed reports by
the following experts: General Practitioner: Dr Makua
Neurologist: Dr Townsend
Clinical Psychologist: T Da Costa
Occupational Therapist: S
Fletcher Educational Psychologist: A Matheus Industrial Psychologist:
L Leibowitz Actuary: W Loots
[12] By agreement between the parties,
the plaintiff filed confirmatory affidavits by all of the aforesaid
experts, which affidavits
are received as exhibits A-G. The
plaintiffs expert reports are consequently received into evidence in
terms of Rule 38 by agreement
between the parties.
[13] Both Ms Hattingh-Boonzaaier and
Ms Bornman filed well researched, well-reasoned and thorough
heads of argument, which
were very helpful and for which I express my
sincere appreciation. The high standard of their respective heads of
argument is indicative
of the strong work ethic of both legal
practitioners.
[14] Moreover, the relevant pleadings,
expert reports, notices and all other papers filed in the action,
including the respective
heads of argument, were duly and properly
filed and indexed in a strong, neat and user-friendly binder. The
effort and time which
the plaintiffs attorneys, being the attorneys
responsible for placing a matter before a presiding Judge, put into
producing same
are highly appreciated.
Past loss of
earnings:
[15] There is no past loss of earnings
applicable in this matter.
Future loss of
earnings:
Approach to the evidence:
[16] In paragraph 6 of the defendant's
heads of argument the following is stated:
"6. It appears that
Defendant's consent that affidavits may be filed (which merely
facilitates the tendering of the evidence
and shortens the
proceedings), is misconstrued or interpreted by some Plaintiffs as
the Defendants "admitting" the evidence
(which means that
it would be common cause and later argument will be nonsensical).
Logically, this cannot make sense, and Defendant
is still entitled,
inter alia,
to highlight issues arising out of the evidence,
refer to contradictions between witnesses, and deal with
improbabilities. This
issue was also discussed with Plaintiff's
counsel prior to the agreement that the reports may be handed up by
means of affidavit.
[17]
Under the heading
"Evaluation of the expert evidence
on loss
of earnings"
in the defendant's heads
of argument the following contentions are,
inter alia,
made:
"47.
The
matter
in casu
-is a
prime example of the danger of hearsay evidence being regarded by the
experts, without testing the veracity thereof.
In
this case, the ripple effect could
have dire
consequence for the minor's claim.
48. The so-called golden thread
that runs through all the expert reports, from the Neurologist, to
the Industrial Psychologist,
is the untested, hearsay evidence of the
minor and his mother.
49. The ripple effect starts
with Dr Townsend, the Neurologist, who makes diagnosis of
posttraumatic epilepsy as well as
severe posttraumatic
neurobehavioral disorder, seemingly based merely on the saying-so of
the minor and his mother. The Court should
disregard her report based
on the following reasons:
(a) In support of diagnosis of
posttraumatic epilepsy as well as severe posttraumatic
neurobehavioral disorder, Dr Townsend refers
back to information
provided by the mother and the minor and not to any test that she had
performed.
(b)
(c)
(d)
(e) Dr Townsend then further
speculates that the minor might have suffered a frontal lobe injury,
which could possibly have been
picked up by an MRI, but instead of
sending the minor for an MRI to turn speculation into fact, she
proceeds to conclude that the
minor suffered a moderate traumatic
brain injury.
(f) Without running any tests
for epilepsy, she concludes that the minor suffers from posttraumatic
epilepsy, based on the
say so of the mother and minor. It
deserves special mention that Dr Townsend does not prescribe any
treatment for the epilepsy,
nor does she mention any treatment or
medication that the minor is receiving for the epilepsy, She also
does not defer to any other
expert to either assess or treat the
alleged epilepsy.
50. The diagnosis by Dr
Townsend is not based on test results or other facts, but on
speculation and hearsay, and it is therefore
submitted that it should
be disregarded as a whole.
51. ...Ms De Costa, who relies
on the diagnosis of epilepsy and neurobehavioral disorder made by Dr
Townsend....
52. Both Ms Mattheus and Ms
Fletcher, take specific note of the diagnosis made by Dr Townsend,
which had a direct and adverse
effect on their postulations for the
minor's post-accident academic and ultimately employment career.
53. Mr Leibowitz, the
Industrial Psychologist, quotes the reports and findings of the other
experts, and does not seem to
have any independent opinion. He
postulates only one pre-accident scenario for the minor, one where
the minor would have entered
the labour market and more specifically
the corporate sector with a NQF 5. There are at least two other
possibilities (1) that
the plaintiff would have obtained his senior
certificate without further studies, due to financial or other
reasons, and (2) that
the minor, much like his mother and father,
would not have completed Grade 12.
56. The postulation by
the Industrial Psychologist is clearly biased and misleads the Court
by not indicating that
only 25% of the total workforce in the country
is represented by the corporate sector surveys. He further fails to
state the percentage
of chance of achieving the postulated level of
earnings, which considering the statistics, the minor's current
economic background
and level of education of parents, is highly
unrealistic and improbable. The Industrial Psychologist failed to
show honour and
integrity to the administration of justice in
preparation of this report, and his report should be disregarded and
his fees should
be disallowed.
57. The last report under
scrutiny, is that of the actuary. Mr Loots received specific
instructions to only calculate
one pre-accident scenario. He was
further instructed to use the corporate sector's surveys, which as
stated above, places the Court
at risk to overcompensate a plaintiff.
The instructions provided, detracts from the actuary's neutrality,
used merely as a 'calculator'
and as such, his report is not based on
his expertise, but is merely a computer generated product based on
instructions.
60.
The basis on which the postulations are made, has not been
proven. There is no proof before Court of any test done to justify a
diagnosis of posttraumatic epilepsy, nor neurobehavioral disorder. In
amplification of no diagnosis being made, there is not treatment
plan
discussed for the minor's alleged epilepsy, or deference to any other
expert to assess and to treat the minor's alleged epilepsy.
The only
reasonable inference to be made is that the epilepsy does not exist.
61.
In
Radebe v Road Accident Fund (2457/2017) 2020 ZAFSHC
(unreported).
the
Court held:
'[24] The common theme is
that courts must jealously protect their role and powers. Courts are
the ultimate arbiters in any court
proceedings. The facts that caused
the expert opinions in this case are vital. It was supplied by the
plaintiff.
[25] It is not for the opposing party
to prove the true facts of the plaintiff's case; it is the onus of
the plaintiff.
[26] Only if the expert's opinion
based on the correct facts is questioned could it be expected that a
countering expert should
be called. It is the expertise that will
then be at issue and not the accuracy of the facts on which it is
based. Counsel must
identify and separate the two aspects. The
argument of the actuary in this case that the failure to call an
expert in the defendant's
case is tantamount to a default judgment is
wrong. It is not the expert's veracity that is in dispute; it is the
facts on which
he based his calculations. Experts must assist the
court not a party to the dispute.'
65. It is the defendant's
submission that the Court cannot come to a fair decision based on the
speculative, hearsay evidence before
it, and that the loss of
earnings component of the minor's claim should be dismissed with
costs."
[18] In the plaintiff's heads of
argument which were filed in reply to defendant's heads of argument,
the following contentions
are,
inter alia,
made:
"21. The defendant,
without having filed any expert reports of their own, now at this
stage, allege that the reports filed
by the plaintiff's experts are
based on hearsay evidence as a result of evidence received from the
minor child and his mother and
their 'say-so'.
22. It is indeed
correct that the parties agreed to submit the expert reports by way
of affidavit and then
ex /ege
agree that the defendant will be
able to build an argument based on the plaintiff's expert reports and
will be able to dissect the
said expert reports. However, once an
expert report is admitted into evidence there is no room for
submissions that the expert
reports are now hearsay evidence and are
thus inadmissible. Submissions regarding the law of evidence and
admissibility of evidence
must be done before expert reports are
admitted into evidence and marked as exhibits. Had the issue been
raised from the outset
same would have been addressed in the heads of
argument from the beginning or by way of calling all of the relevant
witnesses.
31. The defendant relies
quite heavily on certain judgments which were referred to by
Honourable Judge Opperman in
the matter of MR v Road Accident Fund
(2457/2017)
[2020] ZAFSHC 24
, the said judgments can be found from
paragraphs 34 to 38 of defendant's heads of argument. It is of vital
importance to point
out that the matter of MR v Road Accident Fund is
based on a completely different set of facts and are thus not
applicable to the
matter
in casu.
The aforesaid matter refers
to
viva voce
evidence of the plaintiff and the discrepancies
between the evidence led and that of the report filed by the
Industrial Psychologist.
32. In the matter at hand
there was no
viva voce
evidence led and no factual
discrepancies therefore came about as a result of testimony led. I
humbly submit that the case law from
paragraph 34 to 38 of
defendant's heads of argument are taken out of context and are thus
not applicable to the matter before this
Honourable Court.
33. It seems that it is
not mere hearsay being put forth but the credibility of the
plaintiff's witnesses. It must
be borne in mind that there was no
cross-examination put forth affording the experts an opportunity to
defend their opinions, the
defendant has foregone the right and/or
opportunity to do so. The Constitutional Court in
President of
the
Republic of South Africa and Others v South African
Rugby
Football Union and Others
2000 (1) SA 1
(CC) made the following instructive remarks pertaining to the
cross-examination of witnesses which is of utmost importance in this
matter:
"[61] The
institution of cross-examination not only constitutes a right; it
also imposes certain obligations. As a general
rule it is
essential,when it is intended to suggest that a witness is not
speaking the truth on a particular point, to direct the
witness's
attention to the fact by questions put in cross-examination showing
that the imputation is intended to be made and to
afford the witness
an opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending
his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled
to
assume that the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our
courts."
34. ... One cannot simply
attack the credibility of an expert witness in heads of argument when
there was no cross-examination
done affording the witness an
opportunity to defend his own opinion and his/her character.
48.
The submissions made by defendant in the heads of argument
regarding the views of STATSSA and that there should be more than one
pre-morbid scenario are unfortunately not corroborated by the expert
evidence of an industrial psychologist or an actuary from
the side of
the defendant, which would have assisted to rebut the evidence of the
plaintiffs industrial psychologist and actuary.
49.
The defendant is allowed to once again dissect the report of
the actuary and that of the industrial psychologist and make out an
argument regarding what the loss and contingency should be. But
making submissions regarding which survey should be used and the
amount of pre-morbid scenarios applicable is for an industrial
psychologist and actuary to decide as they- are the experts in the
field."
Consideration of the
aforesaid submissions:
[19] Rule 38(2) determines as follows:
"38(2) The witnesses
at the trial of any action shall be orally examined, but a court may
at any time, for sufficient reason,
order that all or any of the
evidence to be adduced at any trial be given on affidavit or that the
affidavit of any witness be
read at the hearing, on such terms and
conditions as to it may seem meet: rovided that where it appears to
the court that any other
party reasonably requires the attendance of
a witness for cross-examination, and such witness can be produced,
the evidence of
such witness shall not be given on affidavit."
[20] What is of utmost importance is
that if the parties agree that the deponent to the affidavit will not
be cross-examined, like
the parties did
in casu,
the factual
allegations in the affidavit stand unchallenged and, accordingly, no
dispute of fact in respect thereof, arises. In
Esorfranki (Pty)
Ltd v Mopani District
Municipality
2022 (2) SA
355
(SCA) the Supreme Court of Appeal pronounced on this issue at
paras [23], [27] and [28] of the judgment, the crux of which is
contained
at para [27]:
"The status of the
affidavits before the High Court
[23] ... To the contrary, it is
clearly recorded that the affidavits were received as evidence before
the trial court. It was accepted
by Mopani that the deponents need
not be called since there was to be no cross examination of
them. It was on this basis that
Esorfranki closed its case. It was
accordingly simply wrong to suggest that Esorfranki did not present
evidence to support its
pleaded case. The evidence it presented in
the trial was, by reason of the failure to cross-examine witnesses or
to lead evidence
in rebuttal, uncontested. As will be seen hereunder,
this is of considerable significance in the outcome of the appeal.
[24] ...
[25] ...
[26] ...
[27]
There is no procedural
impediment to the reception of evidence, by a
trial court. by
way of affidavit. If the parties agree that facts may be placed
before a court by way of affidavit and agree that the deponent
will not be
cross-examined, then the factual allegations
contained in the affidavit stand
unchallenged. Where that
occurs, no dispute of fact arises.
[28] It must be emphasised that Mopani
was not obliged to accept the manner in which the evidence was placed
before the trial court.
It was entitled to challenge the evidence by
subjecting the witnesses to cross examination. Not only did it
not do so, it
also elected not to present any evidence at all,
despite being possessed of affidavits which had been presented in the
review application
and in the numerous interlocutory applications.
The upshot of this was that the only evidence before the trial court
was the extensive
allegations of fact presented by Esorfranki's
witnesses." (Own emphasis)
[21] As correctly submitted on behalf
of the plaintiff, the circumstances and facts in
M R v Road
Accident
Fund
(2457/2017)
[2020] ZAFSHC
24
(5 February 2020) (to which judgment the defendant referred as
Radebe v Road Accident
Fund)
were
different to the matter
in casu
and the two matters should
consequently be distinguished. However, the following principles
enunciated therein are, in my view,
also applicable to the present
matter (which I quote again for the sake of ease of reference):
'[24]
The
common theme is that courts must jealously protect their role and
powers. Courts are the ultimate arbiters in any court proceedings.
The facts that caused the expert opinions in this case are vital. It
was supplied by the plaintiff.
[25) It is not for the
opposing party to prove the true facts of the plaintiffs case; it is
the onus of the plaintiff.
[26] Only if the expert's
opinion based on the correct facts is questioned could it be expected
that a countering expert should
be called. It is the expertise that
will then be at issue and not the accuracy of the facts on which it
is based. Counsel must
identify and separate the two aspects. The
argument of the actuary in this case that the failure to call an
expert in the defendant's
case is tantamount to a default judgment is
wrong. It is not the expert's veracity that is in dispute; it is the
facts on which
he based his calculations. Experts must assist the
court not a party to the dispute.'
[22] A distinction is to be drawn
between the facts upon which an expert's opinion are based, on the
one hand, and the expert's
opinion as such, on the other hand. It
appears that the defendant is attacking the veracity of both these
aspects of the evidence
placed before court by the plaintiff.
[23] The defendant was not obliged to
agree to the evidence being placed before court by means of
affidavits. This includes the
evidence of the plaintiff, specifically
with regard to the facts pertaining to the sequelae of the minor
child's injuries. If the
defendant wanted to dispute the alleged
facts, it should not have agreed to the evidence being placed before
court by means of
affidavits.
It
should have insisted that the plaintiff present her case in the
normal manner, being by means of
viva voce
evidence.
The
defendant
would
then
have
been
entitled
to challenge
the evidence,
especially
also that of the
plaintiff
with regard to the minor child's
condition, by subjecting the witnesses to cross-examination.
However, as correctly submitted on behalf of the
plaintiff, the defendant has agreed to forfeit that opportunity.
[24] It is not open for the defendant
to now attack the admissibility of the evidence on the basis that it
constitutes hearsay evidence.
The same goes for the credibility of
the witnesses.
[25] The facts conveyed by the
plaintiff to the respective experts, what the defendant refers to as
the so-called
"say-so"
of the plaintiff, are
consequently accepted as having been properly proven by the
plaintiff.
[26] Insofar as the defendant is
attempting to discredit the expert witnesses with regard to their
respective opinions based on
the aforesaid facts and their own
respective evaluations, that cannot be done now either, without
having cross-examined the said
experts in order to have given them
the opportunity to defend their respective opinions and without and
without having called countering
expert witnesses of its own.
[27] I completely agree with the
submissions on behalf of the plaintiff that the defendant is
attempting to attack the veracity
of the experts' opinions by,
inter
alia,
referring to the view of STATSSA and that that provision
should have been made for more than one pre-morbid scenario etc.,
which
cannot be done without the corroboration thereof by evidence of
counter expert witnesses.
Evaluation of the
expert evidence:
[28] In
Coopers (South Africa)
(Pty} Ltd v Deutsche Gesellschaft
Fur
Schadlingsbekampfung Mbh
1976 (3) SA 352
(A) the following
was stated at 371:
"As I see it, an
expert's opinion represents his reasoned conclusion based on certain
facts on
data,
which are either common cause, or established
by his own evidence or that of some other competent witness. Except
possibly where
it is not controverted, an expert's bald statement of
his opinion is no of any real assistance. Proper evaluation of the
opinion
can only be undertaken if the process of reasoning which led
to the conclusion, including the premises from which the reasoning
proceeds, are disclosed by the expert."
[29] The following relevant principle
was reiterated in
Road Accident
Fund v Zulu and
Others
(50/11)
[2011] ZASCA 223
(30 November 2011):
"[14] I have already
alluded to the fact that the learned judge in the court below relied
heavily on the evidence of Dr Holmes,
an expert witness. A useful
guide to the approach of expert evidence is found in
Michael v
Linksfield Park Clinic (Pty) Ltd
where the court stated:
'... what is required in
the evaluation of such evidence is to determine whether and to what
extent their opinions advanced are
founded on logical reasoning."'
[30] I do not intend dealing with the
detail of the expert reports. I have considered the contents of the
said reports, in conjunction
with the respective heads of argument.
[31] I will, however, shortly refer to
the report of the Neurologist, Dr Townsend, dated 11 December 2021.
She performed a general
examination, a neurological examination,
ancillary tests and she also considered the medical records of the
minor child, as well
as information gathered from an interview with
the minor child and with the plaintiff, which interview was conducted
in English
with a translator.
[32] Dr Townsend stated,
inter
a/ia,
the following with regard to the minor child's prognosis:
"10. As more than
two years have passed since the accident, S's deficits would be
considered stable and permanent as the natural
window for spontaneous
recovery has lapsed "
Dr Townsend recorded th.e
following with regard to the minor child's present disability:
"10.2.1 S has
persistent posttraumatic headaches, symptoms of posttraumatic
epilepsy and has severe neurobehavioral problems,
which include
non-epileptic events.n
Dr Townsend concluded as
follows regarding the neurological outcome:
"11. ... Although on
surface level it might appear he sustained a mild traumatic brain
injury (TB!), the accident injury has
resulted in a severe
neurobehavioral disorder and posttraumatic epilepsy. These
sequelae
are more in keeping with at least a moderate TBI."
[33] When I apply all the principles I
have dealt with above, there is, in my view, no basis upon which I
can or should reject the
evidence and expert conclusion of Dr
Townsend.
[34] There was consequently also no
impediment for the other experts to have relied upon the conclusions
of Dr Town.send.
[35] In my view it is also evident
from the other expert reports, as submitted in paragraph 50 of the
plaintiffs replying heads
of argument, that the relevant experts
"have set out reasoned conclusions based on certain facts or
data (being the medical records, interviews and information received
from the minor child and his mother), which are indeed established by
their own evidence (their own tests/assessments and investigations
completed) or the evidence relied upon by the various other experts
involved'.
[36] I consequently accept their
respective expert opinions, including that of Ms Leibowitz, as
properly proven by the plaintiff.
[37] The Industrial Psychologist, Ms
Leibowitz, having also considered the Educational Psychologist's
postulation, concluded as
follows in paragraph 7.1.10 of his report
with regard to the minor child's
pre-accident scenario:
"7.1.10 Had S
entered the labour market with a Higher Certificate (NQF level 5), he
may have been eligible for roles
at around the Paterson 81/82 level
(10th percentile, basic only). With time, experience and the
acquisition of additional skills
(which may be obtained through on
the job training), he may have progressed further in his career, and
reached his career ceiling
by age 45. Upon reaching his career
ceiling, he may have been earning at around Paterson C1 levels
(median total package). See
Appendix B. Thereafter, he would have
received annual inflationary related increases until retirement at
age 65."
[38] For purposes of the
post-accident
scenario,
Ms Leibowitz took all of the respective expert reports
into consideration and he concluded as follows in paragraphs 7.2.6 -
7.2.1O
of his report:
"7.2.6 In view
of the above, it would be fair to acknowledge that S has been
rendered vulnerable, and that the accident
related sequelae have
had significant implications for his educability, future
employability, and overall functioning.
7.2.7
It is the writer's opinion that due to the difficulties
identified by the various experts, S will face significant challenges
in
educational and work contexts, and he ultimately will not be able
to secure and sustain gainful employment in the open labour market.
7.2.8
With regard to Ms Mattheus' and Ms Fletcher's reference that S
would need sheltered employment, the writer notes that relatively
few
people with disabilities manage to secure this type of employment
given the scarcity of sheltered employment factories (SEF)
in South
Africa. There are also extensive waiting lists for placement in these
facilities. Moreover, the writer notes that even
if S were fortunate
enough to be placed in a sheltered employment facility, people who
work in SEF are unable to obtain gainful
employment in the open
labour market because of their disabilities. Thus, if an individual
is eligible for placement in SEF, that
individual would be precluded
from qualifying for gainful employment.
7.2.9
Having taken all of the available information into
consideration, the writer anticipates that in all probability S will
not be able
to secure and sustain gainful employment, and that for
all intents and purposes he will remain largely unemployed."
[39] Based on the aforesaid findings
and postulation in the report of Ms Leibowitz, which I have already
indicated I accept as properly
proven by the plaintiff, the
plaintiffs actuary made an actuary calculation based on the
aforesaid. He furthermore made provision
for a 20% contingency in the
said calculation. The calculation amounts to R4 276 988.00.
Determining the
contingency to be applied in respect of the future loss
of
earnings
:
[40] It is trite that it is for the
court to determine the percentage of contingencies to be applied in a
matter such as this.
[41] Contingencies discount the
vicissitudes of life and it is a method used to arrive at fair and
reasonable compensation. The
question of contingencies was dealt with
in
Southern Insurance
Association Ltd v Bailey
N.O
.
1984 (1) SA 98
(A) at 113G and 116G-117A:
"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.
Where the method of
actuarial computation is adopted, it does not mean that the trial
Judge is 'tied down by inexorable actuarial
calculations'. He has 'a
large discretion to award what he considers right'
(per
HOLMES
JA in
Legal Assurance
Co Ltd v Botes
1963 (1) SA 608
(A)
at 614F). One of the elements in exercising that discretion
is the making of a discount for 'contingencies' or the 'vicissitudes
of life'. These include such matters as the possibility that the
plaintiff may in the result have less than a 'normal' expectation
of
life; and that he may experience periods of unemployment by reason of
incapacity due to illness or accident, or to labour unrest
or general
economic conditions. The amount of any discount may vary, depending
upon the circumstances of the case. See
Van der Plaats v South
African
Mutual
Fire
and General
Insurance
Co
Ltd
1980 (3) SA 105
(A)
at 114 - 5. The rate of the
discount cannot of course be assessed on any logical basis: the
assessment must be largely arbitrary
and must depend upon the trial
Judge's impression of the case.
It is, however, erroneous
to regard the fortunes of life as being always adverse: they may be
favourable. In dealing with the question
of contingencies, WINDEYER J
said in the Australian case of Bresatz
v Przibil/a
[1962] HCA 54
;
(1962) 36
ALJR 212
(HCA) at 213:
'It is a mistake to
suppose that it necessarily involves a 'scaling down'. What it
involves depends, not on arithmetic, but on considering
what the
future may have held for the particular individual concerned... (The)
generalisation that there must be a 'scaling down'
for contingencies
seems mistaken. All 'contingencies' are not adverse: All
'vicissitudes' are not harmful. A particular plaintiff
might have had
prospects or chances of advancement and increasingly remunerative
employment. Why count the possible buffets and
ignore the rewards of
fortune? Each case depends upon its own facts. In some it may seem
that the chance of good fortune might
have balanced or even
outweighed the risk of bad."'
[42] In the judgment of
Gillbanks
v Sigournay
1959 (2) SA 11
(N) which was referred to in the
plaintiffs heads of argument, the following was stated at 17 E - F in
respect of contingencies
in an estimation of a plaintiffs claim for
loss of earnings:
"In any estimate of
a person's loss of earning capacity allowance must be made for all
contingencies including the accidents
of life and certain deductions
must be made from the estimated gross income to allow for
unemployment benefits, insurance and so
on. These contingencies would
include -
(i)
a possibility that plaintiff's working life may have been less
than sixty- five years;
(ii)
a possibility of his death before he reaches the age of
sixty-five years;
(iii)
the likelihood of his suffering an illness of long duration;
(iv)
unemployment;
(v)
inflation and deflation;
(vi)
alterations in the cost-of-living allowances;
(vii)
an accident whilst participating in sport such as
hockey or cricket, or at any other time which would affect his
earning capacity;
and
(viii)
any other contingency that might affect his earning
capacity."
[43] In the judgment of
Dlamini
v Road Accident Fund
(59188/13) [2015] ZAGPPHC 646 (3
September 2015) at para the court dealt with and applied some
guidelines referred to by Koch in
The Quantum Year Book:
"[30) Koch refers to
the following as some of the guidelines as regards contingencies:
'Normal contingencies' as
deductions of 5% for past loss and 15% for future loss.
'Sliding scale': 1/2 %
per year to retirement age, i.e. 25% for a child, 20% for a youth and
10% in the middle age and relies on
Goodall v President Insurance
1978 (1) SA 389.
'Differential
contingencies' are commonly applied, that is to say one percentage
applied to earnings but for the accident, and a
different percentage
to earnings having regard to the accident.
[31) When a court is
called upon to exercise an arbitrary discretion that is largely based
on speculated facts it must do so with
necessary circumspection. In
the absence of contrary evidence, the court can assume that a
reasonable person in the position of
the plaintiff would have
succeeded to minimize the adverse hazards of life rather than to
accept them. Both favourable and adverse
contingencies have to be
taken into account in determining an appropriate contingency
deduction. Bearing in mind that contingencies
are not always adverse,
the court should in exercising its discretion lean in favour of the
plaintiff as he would not have been
placed in the position where his
income would have to be the subject of speculation if the accident
had not occurred."
[44]
It was submitted on behalf
of the plaintiff that a 20% contingency would be just and reasonable
in the circumstances, especially
when considering the age of the
minor child, being 10 years of age. Taking into consideration that
the sliding scale of 0,5% per
year would amount to a contingency of
17,5 %, it was submitted that 20% would be appropriate and fair.
[45] It was submitted that in the
alternative a contingency of 30% can be applied, should I deem it
necessary to take into account
and make provision for the possibility
of the minor child obtaining sheltered employment.
[46] Considering the conclusions of Ms
Leibowitz with regard to the improbability of the minor child
obtaining sheltered employment,
and should he be able to do so, he
will on probabilities be unable to obtain gainful employment in the
open labour market, considered
with the other relevant contingencies
and the calculation of sliding scale approach, I deem a contingency
of 20% just and fair
in the circumstances.
Conclusion on future
loss of earnings:
[47] I consequently conclude that the
defendant is to pay the plaintiff the amount of R4 276 988.00 in
respect of the future loss
of earnings of the minor child.
Costs and other
outstanding issues:
[48] With regard to the costs of the
action since the previous costs order contained in the court order of
30 August 2022, the defendant
will be responsible for such costs,
considering the outcome of this part of the action.
[49] A detailed draft order was
previously placed before me with regard to,
inter a/ia,
the
issue of costs, which I then included in the court order of 30 August
202. I deem it appropriate and in the interest of both
parties that a
draft order again be prepared and that I be approached in chambers
for an order by agreement with regard thereto.
[50] The court order of 30 August 2022
made provision for the creation of a Trust for purposes of the
administration of the minor
child's estate. In paragraph 6 of the
said order it was agreed between the parties that an amount of R200
000.00 of the amount
awarded for general damages was to be paid to
the plaintiff and would not be subject to the discretion of the
Trust.
[51] I was not addressed in the heads
of argument regarding a similar type of order with regard to the
payment of the award for
damages which stands to be made in terms of
the present order. I would prefer for the parties to take
instructions in this regard
and to then also make provision in a
draft order for any similar or other agreement, if any, with regard
to the manner in which
the payment of the award for damages in terms
of the present order is to be made.
Order:
The following order is
consequently made:
1.
The defendant is ordered to pay the plaintiff the amount of R4
276 988.00 (FOUR MILLION TWO HUNDRED AND SEVENTY-SIX THOUSAND NINE
HUNDRED AND EIGHTYEIGHT RAND) in respect of loss of earnings.
2.
The aforesaid payment will be made directly to the trust
account of the plaintiff's attorneys of record, the details of which
are
as follows:
Account Holder:
Mokoduo
Erasmus
Davidson
Attorneys Trust Account
Bank and Branch:
[…]
Account No:
[…]
Code:
[…]
Ref:
[…]
3.
The parties are granted leave to approach the presiding Judge
in Chambers for an order by agreement pertaining to the costs of the
action since 30 August 2022 and with regard to any possible further
order, if any, pertaining to the arrangements with regard to
the
payment of the aforesaid amount considering the Trust referred to in
the order of 30 August 2022.
C.VAN ZYL, J
On
behalf of the plaintiff:
Adv.
D.C. Hattingh-Boonzaaier
Instructed
by
:
MED
Attorneys BLOEMFONTEIN
On
behalf of the defendant:
Ms
C Bornman
Instructed
by
:
The
State Attorney BLOEMFONTEIN