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[2023] ZAFSHC 366
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D.A.R obo B.R v Road Accident Fund (394/2021) [2023] ZAFSHC 366 (26 September 2023)
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
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
394/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
D[…]
A[…] R[…]
PLAINTIFF
Obo
B[…] R[…]
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
31 MAY 2023
DELIVERED
ON:
26
SEPTEMBER 2023
[1]
A 12-year-old minor child (the minor) was
injured in a motor vehicle accident. Her mother and guardian
instituted a claim for damages
arising out of injuries sustained by
the minor. The defendant conceded liability on the basis that it
shall pay 100% of the plaintiff’s
proven or agreed damages.
Prior to the hearing before me, the Court had granted an order to the
effect that the Defendant is to
pay the amount of R800 000 in
respect of the Plaintiff’s claim for general damages. The Court
also ordered the defendant
to furnish the Plaintiff with an
undertaking in accordance with section 17(4) of the Road Accident
Fund.
[2]
On the date of the hearing, the Plaintiff brought an interlocutory
application on an unopposed
basis in terms of which this Court
granted the following relief:
a)
That the Plaintiff is granted leave to
present her evidence and that of her expert witnesses by way of
affidavits in terms of Rule
38(2);
b)
That this Court admits into evidence in
terms of
section 3(1)
of the
Law of Evidence Amendment Act 45 of 1988
the following:
b.a)
The Applicant’s hospital and clinical records;
b.b)
the collateral evidence provided to the applicant’s expert
witnesses.
[3]
The effect of this order is that the defendant waived its right to
challenge the evidence of the
Plaintiff’s expert witnesses and
thus accepted it. The parties are further in agreement that the minor
child does not have
a loss of income/ earning capacity.
[4]
Dr Sher, an orthopaedic surgeon also confirmed the injuries as noted
by Dr Makua. He confirmed
that the head injury was treated
conservatively. Dr Townsend, a neurologist indicated that from the
available medical records,
the minor child had evidence of an injury
to her head and her Glasgow Coma Scale Score(GCS) was 15/15. A brain
CT scan revealed
a comminuted parieto occipital skull fracture and a
punctate intracerebral haemorrage. According to Dr Townsend, after
the accident,
the minor child complained of posttraumatic headaches,
a deterioration in her academic performance at school, and occasional
pain
in her genital area. Dr Townsend, ultimately concluded that the
minor child sustained moderate primary diffuse brain injury.
[5]
Ms Talito Costa, a clinical psychologist opines that the minor child
was left with significant
neuropsychological impairments that
negatively impacted on her cognitive, emotional, and behavioural
functions. She further opines
that the minor child was left with
moderate traumatic brain injury resulting in neurocognitive deficits
as a result of the accident.
When dealing with the prognosis going
forward, she opines that the minor child will not likely be able to
return to pre-accident
levels of mental functioning due to cognitive
deficits and physical pain. She also opines that the minor will
struggle to maintain
employment in the open labour market in her
adult years due to neuropsychological, neurocognitive, neurophysical,
and neurophysiological
deficits.
[6]
Alet Mattheus, an educational psychologist also consulted with the
minor child and compiled a
report. According to her, the pre accident
school reports reflect that she experienced some difficulties with
mathematics. She
opines that she would probably have been able to
complete a Grade 12 level of education with an endorsement and would
then have
had the capacity to complete a Higher Certificate (NQF
Level 5). On the post-accident scenario, she indicates that the
educational
assessment results reveal that the minor child presents
with severe cognitive difficulties that most probably can be ascribed
to
a combination of the sequelae of the injuries sustained.
[7]
Ms Fletcher, an occupational therapist opines that the minor child
needs placement in a vocational
skill (NQF level 2) which would
assist her in seeking sheltered employment. She further opines that
the minor would be disadvantaged
when competing against individuals
without cognitive, visual perceptual or cognitive difficulties in a
competitive open labour
market.
[8]
Mr Lee Leibowitz, an industrial psychologist evaluated the minor
child in order to determine the
effect and impact of the accident
related injuries to predict the employability of the minor child. He
alludes to the fact that
when postulating the career paths of minor
children, the industrial psychologists are guided by the indication
of learning potential
as per the opinion of the educational
psychologist. In this case he refers to the opinion of Ms Mattheus
where she opines that
the child would probably be able to complete a
Grade 12 level education with an endorsement and would then
have
had the capacity to complete a Higher Certificate (NQF level 5), if
given the opportunity to do so before attempting to enter
the open
labour market. Mr Leibowitz confirms that there are many
uncertainties when dealing with minors, and thus pre-morbid
contingencies must be applied.
[9]
With reference to the post morbid scenario, Mr Leibowitz opines that
the minor child has been
negatively affected and that her educability
as well as her employment prospects have been negatively affected.
According to him
it would appear that the accident and related
sequelae have rendered the minor child vulnerable and as postulated
by the educational
psychologist, will not attain the ultimate level
of education provided for in the pre-morbid postulation, i.e. a
Higher Certificate/
NQF 5 level. He further opines that the child
would remain limited to basic unskilled work (Paterson A level),
however her ability
to function effectively in any work environment
has been undermined given the cumulative impact of her injuries. Of
further importance
the industrial psychologist is of the view that
‘realistically speaking, the minor child would likely remain
unemployed and
would thus be not attain her pre-accident earning
level.
[10]
Wim Loots, an actuary was instructed to perform actuarial
calculations, in the pre-morbid scenario, on the
assumption, inter
alia, that the minor injured child was to complete Grade 12 and a
tertiary qualification with retirement age
being 65 years. The
actuary was instructed to apply the contingency deduction of 20% on
the pre accident scenario. It is submitted
on behalf of the minor
child that a 20% contingency deduction will be just, fair and
reasonable in the circumstances. In the post-morbid
scenario, he was
instructed that the child was unemployable and he therefore assumed
that the child would have nil earnings.
[11]
It is submitted on behalf of the defendant that the evidence does not
support the notion that the minor child
was unemployable rather that
she might struggle to find employment. The defendant attacks the
findings and conclusions of the plaintiff’s
experts in the
Heads of Argument. By way of illustration, the following is
submitted:
That no EEG’s were
done to present evidence to the effect that the minor has already
developed post-traumatic epilepsy;
ii
“There’s no evidence that the minor was sent to be
assessed by an Optometrist to monitor her visual acuity, as well as
her visual tracking, which may be influencing her overall visual
perception skill”
[12]
The defendant further attached to the Heads of Arguments the
statistics in the 2021 report of the Department
of Higher Education.
The approach sought to be followed by the defendant does not assist
it as I illustrate below.
[13]
In
M.P.L
obo RIM v Road Accident Fund
[1]
this court had the opportunity to deal with the status and/ or
evidential value of the expert reports accepted into evidence by
agreement in terms of
Rule 38(2).This
Court said the following:
“
[16]
As a starting point, the first issue to deal with would be the
status of the reports of the plaintiff as accepted by
agreement into
evidence.
Rule 38(2)
is instructive in this regard and provides 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:
provided 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."
[17]
Mr Pohl SC referred this court to the unreported judgment of this
court in ZVS obo SRM v Road Accident Fund
[2]
.
In my view that case is on all fours with the case before me. I align
myself with the reasoning in that case and I refer liberally
to Van
Zyl, J where she says:
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)
[18]
What is palpably clear in my view is that the defendant chose not to
put in issue or cross-examine the experts
on whose affidavits the
plaintiff relied upon. The affidavits and the evidence contained
therein were handed by agreement.
Rule 38(2)
does not oblige a party
to accept the evidence by way of an affidavit. In this case, not only
did the defendant allow for the admission
of the expert reports in
terms of
Rule 38(2)
, but the correctness of the said reports was
pertinently accepted.
[19]
The only evidence before the court about the issue in dispute is the
evidence as led by the plaintiff. Having
this in mind, one has to
remind oneself that once evidence has been led, it calls for a reply.
If no evidence in rebuttal is adduced,
such evidence becomes
conclusive proof and the party giving it discharges the onus
[3]
.”
[14]
In my view, the remarks as quoted above hold true
in the matter before me. The defendant chose to allow
the plaintiff
to adduce evidence by invoking the procedure as laid out in
Rule
38(2).
This can clearly be seen when the defendant chose not to
oppose the interlocutory application in this regard. There was
no
obligation on the part of the defendant to accede to this
procedure. It is impermissible to accept the evidence to go through
only
to attack same in the Heads of Argument when the other party can
no longer such attacks. Such conduct goes to the heart of the
fairness of the procedure in litigation. The defendant had the right
and opportunity to dispute the findings of the plaintiff’s
experts but chose not to do so. At the end of the day, the expert
reports as well as the collateral information as accepted by
the
defendant is the only evidence before court.
[15]
The defendant also attached evidential material in the form of
Annexures A and B to the Heads of Argument.
It should become clear to
the defendant that such approach would clearly be prejudicial to the
plaintiff. Firstly, it is introduced
only during the address or the
filing of the Heads of Argument, the stage at which it cannot be
interrogated or disputed by the
Plaintiff by way of evidence.
Secondly, it should also be clear that while the Heads of Argument
deal in a summary manner with
the evidence adduced and the applicable
law, they (the Heads of Argument) themselves, do not constitute
evidence. I agree with
the sentiments expressed in
Maboho
v Minister of Home Affairs
[4]
as referred by Counsel for the Plaintiff in the reply to the
defendants Heads of Argument. The court in
Maboho
said the following:
“
Argument
is not evidence and it is not given under oath. It is merely
persuasive comment by the parties or legal representatives
with
regard to questions of fact or law. Argument does not constitute
evidence, and cannot replace evidence.”
[16]
The defendant cannot thus impermissibly ‘
adduce evidence’
in the Heads of Argument to the prejudice of the plaintiff. Absent
any evidence to rebut the evidence of the plaintiff, the only
evidence this Court has to grapple with, is that of the plaintiff.
Seemingly based on the attack in the Heads of Argument, the
defendant
is of the view that a contingency of 50% in ‘
the but for’
scenario should be applied and 75% in ‘
the having regard to’
scenario.
[17]
It is settled that a trial Court has a wide discretion to award what
it considers fair and adequate compensation
to an injured claimant.
[18]
The difficulty a Judge has in the application for the proper
contingency to be applied cannot be over-emphasised.
The simple
reason is that the future is uncertain and a Judge has no benefit of
a ‘
crystal ball to look into the future’
and come
to a decision. The contingencies to be applied is not merely a matter
of mathematical calculation. The uncontested evidence
is that
according to Dr Townsend, the child has an increased risk of
developing late post traumatic epilepsy. The attack on this
finding
by the defendant holds no water where it is said the Plaintiff led no
evidence of EEG’s performed. Had the defendant
not allowed this
kind of evidence, then such questions would have been put to the
witness and I suppose the bases of the finding
properly explained.
The attack on the finding of the neurologist is unfair and has no
merit.
[19]
I take note of the evidence that the minor child struggled with
mathematics and English. This, in my view
cannot be an indicator that
she will not attain Grade 12 or even a tertiary education. The
converse may on the other hand hold
true if we accept the assumption
aforementioned, namely, the mere fact that a child passes mathematics
and English well does not
necessarily mean that, such a child will
pass Grade 12 or even obtain a tertiary qualification. The
uncontested evidence by Ms
Mattheus regarding the minor is that “the
educational results reveal that she presents with severe cognitive
difficulties
that most probably can be ascribed to the combination of
the sequelae of the injuries sustained.” It is common cause
that
the minor child suffered no loss of earnings. The Industrial
Psychologist, after having considered the reports of other experts,
opines that the minor child will not meet her pre- accident earning
level.
[20]
I however agree with the submissions on behalf the defendant that the
evidence does not suggest that the
minor child is not employable. In
my view, the experts hold the view that but for the accident, a
possibility existed that the
child could get employment having passed
grade 12 with a possibility of gaining a Higher Certificate at
tertiary level, but that
has been rendered an illusion due to the
injuries sustained and their sequelae.
[21]
I am unable to comprehend why the actuary was instructed to perform
calculations only on the basis that the
minor child was unemployable.
The opinions of the Plaintiff’s own experts hold otherwise. The
Plaintiff’s educational
psychologist, on whose opinion, the
other experts rely upon is that the minor child “needs
placement in a Vocational School
where she will be able to attain a
vocational skill (NQF level 2) which would assist her in seeking
sheltered employment. Her Occupational
therapist opines that should
the minor child be placed at the Vocational school she would be able
to obtain a (NQF 2). She further
agrees with the educational
psychologist that this would assist her in seeking sheltered
employment.
[22]
With reference to the future loss of earnings, the Industrial
psychologist holds the view that the minor
child will not meet her
pre-accident level. He goes on to say that should this Court accept
the opinions of the educational psychologist
and occupational
psychologist, then in that event he also opines that the minor child
would be dependent on sheltered employment.
He goes on to say that it
is ‘accepted that there are very limited opportunities for
gaining entry in a sheltered work environment.
Without any inkling of
the evidence to back up his opinion he holds the view that
realistically speaking the child would likely
remain largely
unemployed. In my view, that opinion runs against the opinions of the
educational psychologist and the occupational
therapist on whose
opinion he relies upon. If the opinion is based on the fact that
there are limited opportunities for gaining
entry on sheltered work,
then in that case, there is no evidence to back up the opinion.
The end result is that, the supposition
that the minor child is
unemployable stands to be rejected. I hold the view that but for the
accident the child is employable,
albeit as a vulnerable individual
who cannot compete equally in her level of employment.
[23]
During the preparation of this judgment I requested the Plaintiff to
request her actuary to perform other
calculations, based on the
assumption that the Plaintiff was employable and could be
accommodated on the sheltered environment.
In the first calculations
(where it is assumed that the child would be unemployable), the loss
of earnings had the accident not
occurred, was calculated as of 1
August 2022 and it amounted to R5 902 080.00. The actuary
applied 20 percent contingencies
on the pre-accident scenario and nil
percentage on the post-accident scenario. In the second calculations
(where it is assumed
the minor child will find employment in the
sheltered environment) the loss of earnings had the accident not
occurred was of 1
November 2023. It was calculated at R 6 637 539.00
with 20% contingencies to be applied on the pre-morbid scenario and
40% on the post morbid scenario
[24]
I am of the view that the 20% contingency to be applied as suggested
by the plaintiff is appropriate. I also
agree that the 40 %
contingencies applied on the post-morbid scenario is appropriate. The
evidence led does not suggest that the
minor child is not employable.
It is also clear that she also had issues with schooling, like
language barriers even before the
accident. On the other hand, the
contingencies suggested by the defendant are extremely high and
suggested without any basis having
regard to the remarks I made
above. Accordingly, the damages awarded to the minor child are
computed as follows:
FUTURE
Earnings
had accident not happened
R
6 637 539.00
Less:
Contingencies( 20%)
R
1 327 508.00
Subtotal
R
5 310 031.00
Earnings
having regard to accident
R
2 463 826.00
Less
Contingencies( 45%)
R
1 108 721.70
Subtotal
R
985 530
LOSS
OF EARNINGS
R
3 831 735.00
ORDER
1.
The Defendant is to pay the Plaintiff the
sum of
R3 831 735.00( Three
million eight hundred and thirty –one thousand seven hundred
and thirty-five Rands)
in respect of
the Plaintiff’s claim for loss of income.
2.
Payment of t
he
capital amount referred to in paragraph 1 above, will be paid by the
Defendant directly into the trust account of the Plaintiff’s
Attorneys of record, Mokoduo, Erasmus, and Davidson Attorneys, for
the benefit of the Minor
, within
180 days from the date of this order, the details are as follows:
Holder:
Mokoduo
Erasmus Davidson Attorneys Trust Account
Bank
and Branch:
First
National Bank (FNB), Rosebank
Account
number:
6[…]
Code:
253305
Ref:
R80
3.
Interest
a
tempore-morae
shall be calculated in
accordance with the Prescribed Rate of interest Act 55 of 1975, read
with
section 17(3)(a)
of the
Road Accident Fund Act 56 of 1996
, one
hundred and eighty (180) days
from
the date of this order.
4.
The Defendant is to pay the Plaintiff’s
agreed or taxed High Court costs as between party and party of the
action, trial costs
and any further costs incurred up until and
including the date on which this order is made, such costs to include
inter alia:
4.1.
The costs attendant upon the obtaining of payment of the capital
amount referred
to in paragraph 1 above;
4.2.
The preparation, reservation, and
attendance fees of counsel, up until 31 May 2023, and including fees
of counsel for written heads
of argument.
4.3.
T
he qualifying fees, if any, as may be agreed
or allowed by the Taxing Master of the plaintiff’s experts,
including but not
limited to the Plaintiff’s reports and
addendum reports inter alia by: -
4.3.1.
Dr Makua (General Practitioner);
4.3.2.
Dr Scher (Orthopaedic Surgeon);
4.3.3.
Dr Taniel Townsend (Neurologist);
4.3.4.
Talita da Costa (Clinical Psychologist);
4.3.5.
Alet Mattheus (Educational
Psychologist);
4.3.6.
Sharilee Fletcher (Occupational
Therapist);
4.3.7.
Lee Leibowitz (Industrial Psychologist);
4.3.8.
Wim Loots (Actuary).
5.
The Plaintiff’s attorneys shall serve the notice of
taxation on the Defendant’s attorneys and shall allow the
Defendant
180 (one hundred and eighty) days within which to make
payment of such costs.
6.
The party and party costs, as agreed or taxed referred to in
par. 4 above, shall be paid by the Defendant directly into the trust
account of Mokoduo, Erasmus, Davidson Attorneys for the benefit of
the Minor / Plaintiff.
7.
It is recorded that
in the order dated 23
rd
of November 2022 by this Court, it was provided that a trust be
established for the benefit for the minor child, B[…] R[…].
8.
Mokoduo, Erasmus,
Davidson Attorneys will invest the capital amount less the reasonable
attorney and client fees and disbursements
in terms of
Section 86(4)
of the
Legal Practice Act 28 of 2014
, with First National Bank,
Rosebank, for the benefit of the Minor, the interest thereon,
likewise accruing for the benefit of the
Minor which investment shall
be utilized as may be directed by the trustee of the Trust.
9.
The Plaintiff has
entered a Contingency Fee Agreement with her Attorneys.
P.
E MOLITSOANE, J
On
behalf of the Plaintiff:
Adv.
Ilze Sander
Instructed
by:
MED
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Ms
Johandi Gouws
Instructed
by:
Road
Accident Fund
BLOEMFONTEIN
[1]
[1]
(1371/2019[2023] ZAFSHC (2 August 2023).
[2]
(5489/2019) [2023] ZAFSHC 99(31 March 2023).
[3]
Ex parte Minister of Justice: In re R v Jacobson and Levy
1931 AD
466
at 478.
[4]
2011 JDR 104 (LT) at para 12.