About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 81
|
|
Moloi v Road Accident Fund (A110/2023) [2024] ZAFSHC 81 (7 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
case no
:
A110/2023
In
the appeal of:
MANANYANA
JANE MOLOI
and
ROAD
ACCIDENT FUND
Appellant
Respondent
CORAM:
MHLAMBI
J, et MOLITSOANE J et MOTHIMUNYE AJ
HEARD
ON:
27
NOVEMBER 2023
DELIVERED
ON:
07 MARCH 2024
JUDGMENT
BY:
MOLITSOANE,
J
[1]
The Appellant instituted a delictual claim
against the Respondent for damages arising out of the injuries
sustained in a motor vehicle
collision on 07 August 2018. On 21 April
2019, the merits were settled by the parties at 100% in favour of the
Appellant. The general
damages were settled at R800 000. The
court was only called upon to adjudicate the outstanding claim in
respect of the loss
of earnings.
[2]
Having listened to the evidence and submissions by the parties, the
court a quo granted
an order allowing only a claim for past loss of
earnings in the amount of R840 211.00 and costs, but dismissed
the claim for
future loss of earnings. Aggrieved by the order, the
appellant appeals the judgment and order of a single Judge of this
Division.
The appeal is with leave
of
the Supreme Court of Appeal. The Respondent does not oppose this
appeal.
[3]
The Appellant assails the judgment essentially on the following
grounds:
1.
The Court a quo erred in holding that
the Appellant’s case was about the appellant’s earning
capacity as opposed to
adjudicating the issue of loss of earnings,
both past and future;
2.
The court a quo erred in not finding
that the case was about the appellant’s three (3) years’
delay in entering the
labor market and the
concomitant
delay
in career progression;
3.
The court a quo failed to take into
account that the appellant could, pre-morbidly, advance to an income
at the Paterson level D2
at the age of 45 and post-morbidly only
advanced to an income at Paterson level D1 at the age of 45.
[4]
It is appropriate to
reproduce
the
following parts of the judgment of the court a quo as the appeal
revolves around them;
“
[13]
Mr. Immelmann mentioned that Dr Fourie recommended a
higher-than-normal post-morbid contingency deduction for the
Plaintiff
to account for the factors he set out in his report. The
factors mentioned by Dr Fourie originated inter alia from the
outdated
report of me
Stanton
and a report by me. Gibson, an educational psychologist, which is
dated earlier this year. Me. Gibson was not called to
testify, and
her report was merely handed in. As a result, me. Gibson could not be
cross-examined, and this factor obviously reduced
the probative value
of her findings.
[15]
In my view, Dr. Fourie has not given sufficient weight to the fact
that the Plaintiff had obtained a degree some 10 months
ago and that
she is currently a trainee at an auditing firm, while she is
furthering her studies at Unisa. Nor have Dr. Fourie,
me. Stanton and
me. Gibson bothered to interview the current employers of the
Plaintiff to gain information regarding her performance
at the
workplace. In addition, the Plaintiff attended the hearing in Court,
and no scarring or facial injuries could be observed
by the Court
where she sat some 7 to 8 meters from the bench.
.
[16]
Also having regard to Dr. Fourie’s opinion in Court that the
Plaintiff is a woman of potential and that she has a better
chance of
finding employment because she is a woman, I am of the view that the
prognosis for the Plaintiff’s future is far
too pessimistic, as
postulated by Dr. Fourie. Also bearing in mind that the Plaintiff did
not testify while she carried the onus
of proving on a balance of
probabilities that she suffered a loss of earnings as far as her
future career is concerned, I have
to conclude that she has failed to
make out a proper case for future loss of earnings.
[17]
In respect, I emphasize that the Plaintiff’s claim for future
loss of income is premised on her alleged emotional and
cognitive
problems arising from the injuries she sustained in the accident, and
not on the physical injuries themselves. Her present
emotional and
cognitive state is therefore of vital importance in the adjudication
of this matter. There is simply no evidence
before this Court to
sustain a conclusion that her emotional state will have a detrimental
effect on her future career. There is
also no evidence before this
Court to suggest that her present performance at her place of
employment is not up to standard. The
Plaintiff herself did not take
the Court into her confidence by testifying and informing the Court
of any emotional problems she
is currently experiencing in the
workplace and in the furtherance of her studies”.
[5]
The crisp issue for determination is whether the court a quo erred in
dismissing a
claim for future loss of earnings and the final full
costs thereof.
[6]
In order to succeed with a claim for loss of earnings, the Plaintiff
must
adduce
evidence
to enable the court to determine whether, as a result of the injury
sustained, his/her earning capacity has been compromised.
In so doing
the claimant may rely, inter alia, on the expert evidence. In this
regard, the court in
Michael
and Another v Linksfield Park Clinic (Pty)Ltd and another
[1]
said the following;
“
That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinion advanced
are
founded on logical reasoning. That is the thrust of the decision of
the House of Lords in the medical negligence case of Bolitho
v City
and Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E))"
[7]
It is settled law that the Plaintiff bears the onus to prove on a
balance
of probabilities that the injuries sustained have reduced her
earning capacity. That reduction in the earning capacity would lead
to actual loss with reference to the calculations of past and future
loss of earning capacity.
RAF
v Kerridge
[2]
held as follows;
“
Indeed,
a physical disability which impacts on the capacity to earn an income
does not, on its own, reduce the patrimony of an injured
person.
There must be proof that the reduction in the income earning capacity
will result in actual loss of income. However, where
loss of income
has been established but proof of quantum thereof cannot be produced
in the usual manner, the courts have shunned
the non-suiting of a
claimant and have preferred to make the best of the evidence rendered
to give to the finding of proven reduction
in loss of income-earning
capacity. As long as almost a century ago in Hersman v Shapiro the
court said the following;
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and the best it can of the evidence before
it. There are
cases where the assessment by the Court is very little more than an
estimate; but even so, if it certain that pecuniary
damage has been
suffered, the Court is bound to award damages.”
[8]
The Appellant submits that the evidence of the Industrial
Psychologist and the Actuary
established that the Appellant would not
complete her degree in 2018 but only in 2021. The objective fact is
that the Appellant
only entered the labor market in 2022. This
according to the version of the Appellant, constituted a loss in the
potential earnings.
[9]
It is clear from the evidence and the finding of the court a quo that
Dr. Fourie,
had based his conclusions on the reports of Dr. Stanton
and Me. Gibson. The court a quo criticized Dr. Fourie in that it
found
that the said Dr had not given sufficient weight to the fact
that the Appellant had obtained an auditing degree some 10 months
earlier and was currently a trainee at an auditing firm whilst also
still studying at Unisa.
[10]
It is necessary to indicate that the Appellant bears the onus to
prove the damages on a preponderance
of probabilities, much as it is
argued that the court a quo, in this case, erred in holding that the
issue for adjudication was
the loss of earnings as opposed to the
loss in earning capacity, the burden of proof irrespective of the two
issues, still lies
with the Appellant.
[11]
The Appellants’ claim, as held by the court a quo, is not based
on the physical injuries
she sustained but is premised on her alleged
emotional and cognitive problems, which are the sequelae of the
injuries. Dr Stanton,
a Clinical Psychologist assessed the Appellant.
According to her, the objective of the assessment was to determine
the emotional
and overall functioning of the Plaintiff before the
accident and also the emotional and overall impact of the accident on
her current
functionality. She conceded
during
the cross-examination that her assessment was about 4 years before
she gave
testimony in court. It
is
accordingly apt
to
refer to the following parts of her testimony
[3]
:
“
Ms.
GOUWS
: Ma’am, at the outset of your evidence you
indicated that you interviewed the plaintiff herein on 22 May 2018
Ms.
STANTON
: Yes, M’Lord
Ms.
GOUWS
:
Correct. It is more than four
years ago. Is that correct?
Ms.
STANTON
:
Yes,
M’Lord
Ms.
GOUWS
:
I
noted while you testified that you kept on saying that at the time of
the assessment or at the time of the testing this was the
finding or
the conclusion that you reached.
Ms.
STANTON
:
Yes,
M’Lord
Ms.
GOUWS
:
Did
you stress the fact that it was the finding at the time because it
could be that if you reassess the plaintiff the finding may
differ?
Ms.
STANTON
:
Yes,
M’Lord. It was the finding at the time, that was the assessment
conclusions
Ms.
GOUWS
:
So, it is possible that if you
reassess the plaintiff that you could come to another conclusion if
you have to draft a report again.
Ms
STANTON
:
It
is possible. What I want to add is that my assessment was done nearly
two years after the accident. So, at that stage, the symptoms
were
already chronic, but it is possible that if I have to assess her now
it could be different
.
Ms.
GOUWS
:
It could have improved.
Ms.
STANTON
:
It could have improved or it
could have stabilised. Yes, M’Lord.
Ms.
GOUWS
:
But it is possible that it
could have shown improvement.
Ms.
STANTON
:
I cannot really give an
opinion about that. That will be dependent on other factors such as
treatment if ……[intervenes]
Ms.
GOUWS
:
I understand. But in general,
is it possible a plaintiff or a patient, I do not know if you refer
to them as patients, that they
may show improvement over a period of
more than four years?
Ms.
STANTON
:
Generally,
the standard in psychology is that after two years we consider that
to be the plateau if there is no treatment.
“
[12]
The above interactions illustrate that the report of Dr. Stanton was
outdated. In her version,
the condition of the Appellant may have
improved in the later years. Assessment was thus imperative at least
at the time when she
had taken the new employment. At the time of the
hearing of this matter, her current emotional and cognitive state was
unknown.
The court a quo correctly held that the Plaintiff’s
present emotional and cognitive state is of vital importance in the
adjudication
of the loss of earnings. Dr. Fourie took into account
the outdated report of Dr. Stanton and also chose not to seek the
current
collateral information from the current employers of the
Appellant in order to assess the current emotional and cognitive
state
of the Appellant, which is crucial to her case, as the claim is
based on that alleged psychological state.
[13]
It is submitted that pre-morbidly, the Appellant would have entered
the labor market in 2017. This year, 2017,
forms the basis for Dr.
Fourie to say that the Appellant’s entrance to the labor market
was delayed by three years as she
only entered the labor market in
2022. Dr. Fourie
postulated that
pre-morbidly,
was expected that the Appellant would reach her employment peak
at D2 on the Paterson level at the age of 45.
But for the accident,
she would only reach D1 on the same age.
[14]
The Appellant’s contention that her loss of earnings had to be
looked at, through the prism of
the ‘three-year delay of
entering the labor market’ only, is misplaced. In this regard,
it has to be borne in mind
that the loss which she claims, was
calculated over the period of her possible employment. As indicated
above, it is contended
that had the accident not occurred, the
Appellant could have reached her employment peak at D2 on the
Patterson scale when she
reached forty-five years of age. It is now
contented that because of the accident, she would now reach her peak
at the same age
at a lower level of D1. In both scenarios, it
is assumed that she would retire at 65. Her loss can thus not be
confined to
the three-year delay in entering the labor market.
[15]
It is submitted that the reports of the experts were admitted into
evidence and were unchallenged.
It appears that Counsel for the
Plaintiff seems to argue that in the absence of
any contrary
evidence
, such reports must be accepted as they
are. It cannot be correct. The cross-examination was directed to
showing that the reports,
though they might have held truthfulness in
them, were not without criticism. The fact is that they do not take
into account the
changed circumstances of the Appellant as, according
to her experts, her circumstances may have changed. The reports do
not talk
to the present circumstances of the Appellant and for this
reason, they do not provide reliable current evidence to sustain a
conclusion
that the alleged injuries
detrimentally affected
her future career. She chose not to testify as to her current
difficulties or challenges, if any,
in her current employment.
Despite the delay in entering the labor market, there is simply
no evidence before us to back
the allegation that the injury
sustained would prevent the plaintiff from reaching her peak of D2 on
the Paterson scale at the
age of 45. She has accordingly not
convinced us of her loss of earnings. We accordingly hold the view
that the court a quo was
correct in dismissing the claim for future
loss of income.
[16]
It is trite that the award of costs lies in the discretion of the
court. It is further settled
that this discretion must be judicially
exercised in order to achieve fairness on both sides, in our view,
the respondent was successful
in opposing the relief sought. It
cannot thus be
contended
that
the court a quo exercised its discretion in the award of the costs,
arbitrarily or capriciously. We thus cannot interfere with
the
discretion exercised by the trial court, This court on appeal cannot
interfere with the honest exercise of the discretion
[4]
.
[17]
The Respondent did not oppose the appeal, and as such no costs would
be awarded against the Appellant.
We accordingly make the following
order.
ORDER
1.
The appeal is dismissed.
2.
There is no order of costs of the appeal.
P.
E. MOLITSOANE, J
I
agree
J.J
MHLAMBI, J
I
agree
MTHIMUNYE,
AJ
On
behalf of the Appellant: ;Adv.M Mphaga SC
;Adv
N Gama
Instructed
by:;Phatshoane Henney Attorneys
;BLOEMFONTEIN
On
behalf of the Respondent:
Instructed
by;The Road Accident Fund
;BLOMFONTEIN
[1]
2001(3) SA1188 (SCA) at para 36
[2]
2019(2) SA 233 at 239
[3]
Paginated
record page 408 lines 12 et seq. including page 408.
[4]
See
Levin v Felt and Tweeds 1951(2) SA 401 (A) 416.