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[2022] ZAFSHC 245
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M v The Road Accident Fund (128/2018) [2022] ZAFSHC 245 (12 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 128/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
WP
M
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
(CLAIM
NO: 560/12522085/1075/0 & LINK NO: 4127045)
CORAM:
OPPERMAN,
J
HEARD
ON:
19
& 20 July 2022 and 29 July 2022
DELIVERED
ON:
The judgment was
handed down electronically by circulation to the parties’ legal
representatives by email and
release to SAFLII on 12 September 2022.
The date and time for hand-down is deemed to be 12 September 2022 at
15h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Failure of the plaintiff to prove the
nexus
between
the
quantum
claimed
and the injury for a claim of past and future loss of income
JUDGMENT
INTRODUCTION
[1]
It is trite that patrimonial damages, that is
also called “special damages”, allow for a claim of the
monetary equivalent
of the
actual
loss
suffered. The claimant must be
placed in the same state or situation that would have existed if it
was not for the injury or damage
suffered; the financial
status
quo
before the injury occurred, must
be restored by the order of the Court.
[2]
There must be a nexus between the injury and
the loss and the
quantum
of the loss
.
[3]
The restoration of what is just must be
ordered; nothing more and nothing less should be ordered by a Court
for effective justice
to prevail. Parties must come to Court on trial
with the best evidence. This is the constitutional decree to serve
the administration
of justice and give credence to the Rule of Law.
[4]
A
claim for past and future loss of income due to an unlawful act of
another is an example of patrimonial damages. This very alleged
loss
of past and future income due to the loss of earning capacity of the
plaintiff and the
quantum
thereof, caused by the injuries sustained in a collision on
7
August 2015
,
serves before Court for adjudication.
[1]
[5]
The peculiarity of this case is that the
plaintiff caused his own loss of income by resigning from his job
.
There is a lack of evidence on the
causal
link
between the injuries and the
loss;
the resignation caused the loss
not the injuries
.
[6]
The fact that the resignation caused the loss
is common cause between the parties.
The
reason
for the resignation is in
dispute, vague and unsubstantiated. I will deal with the issue in
detail hereunder. There are also the
pre-existing
physical impairments
of the
plaintiff that was not calculated in the
quantum
of the loss.
[7]
The
basis on which the claim was calculated by the actuaries was that the
claimant
had
to
resign in August 2017,
only
managed to secure lower paying jobs
from October 2017 to end of 2019 and is
expected
to remain unemployable
in the future.
[2]
This is not
the complete reality.
[8]
The above instruction by the Industrial
Psychologist to the actuaries is patently wrong on the proven
evidence before Court. This
caused the outcome of the calculations to
be mistaken.
[9]
There is a real difference between earning
capacity and loss of earnings. It is common cause that the plaintiff
is for the most
part unemployable after the incident with very little
earning capacity at this point in time. It is not that he is unable
to work;
it is unlikely that he will obtain a job on the objective
factors that prevails in the labour market area. He is limited to
sedentary
work with early retirement predicted to be 3 to 5 years
from said sedentary work. The Industrial Psychologist found that:
In
my opinion it is
highly
unlikely
that he will obtain and sustain a sedentary position requiring some
administrative capacity or skills. He is already 54 years old
and it
will be difficult for him to reskill himself and compete with better
qualified people in this market area. He only has grade
10 and
technical qualification. It was not his career intention to do
sedentary work. He does not fall in the equity group and
it is very
difficult to see where he will find suitable sedentary work.
[3]
THE
DISPUTE
[10]
Counsel
for the plaintiff argued in their Heads of Argument that the only
matter to be adjudicated is the narrow issue of the contingencies
to
be applied in the calculations of the past and future loss of income
based on the evidence of the Industrial Psychologist and
the other
experts.
[4]
[11]
In his opening statement he, in so many words,
alluded to the reasons for resignation by the plaintiff to be in
dispute and that
Counsel for the Road Accident Fund does not accept
the contingencies and basis for the calculations applied by Munro
Actuaries
for the plaintiff due to the erroneous scenario suggested
by the Industrial Psychologist. He is correct.
[12]
Counsel for the plaintiff is correct when he
indicated in their Heads of Argument that the plaintiff’s
career paths are not
in dispute. He worked for 30 years at the
Department of Public Works (the Department) and resigned in 2017. He
became self-employed
for two years when his son resigned and the
business did not continue in 2019. After the collision he was
gainfully employed at
the Department for two years and he ran a
business for another two years afterwards. His son resigned and that
is how the business
ended.
[13]
The issue is where does the loss of income lie
and on what basis must the calculations be made. The calculations of
Munro Actuaries
were correct but based on an erroneous basis.
In
fact, there is not any loss of income that can be attributed to the
injuries as the evidence stands. The income at the Department
of
Publics Works may not be used as foundation to calculate the loss of
income and the business venture of the plaintiff also not.
[14]
The defendant argued that:
38.
The Honourable Court is called upon to determine what amount of loss
can be attributed to the accident in
question, and which the
Defendant will ultimately be liable for.
39.
The Plaintiff was not referred to a Clinical Psychologist and no
diagnosis of depression or other cognitive
fall outs have been made.
His version that he resigned due to his emotional state and that he
was incapable of making an informed
decision as a result thereof,
should be disregarded. In all probability, the Plaintiff, employed on
middle management level and
therefore fully conversant with the
polices of his employer by virtue of his position, elected to resign
to pursue his own business
endeavours. This is supported by his
testimony that he advised his employer that the reason for his
dismissal is to start his own
business. Logic dictates that a person
who resigned because of injuries sustained which prevent him from
doing his work, would
indicate such to his employer. If the Plaintiff
truly had no other option, it would have been reflected by exhausting
his sick
leave, long absences from work other than recouperation
after the accident and for his surgeries. It would have been
reflected
in steps taken by his employer for incapacity or ill-health
retirement steps at the initiative of the employer. Contrary to his
testimony that he assisted his son who was running a business, the
Plaintiff advised the Occupational Therapist that his son was
his
employee, and that he had plans to continue with and grow his
business.
40.
Item 10 of the Code of Good Practice: Dismissal in Schedule 8 (The
Code) draws a distinction between a permanent
and temporary
incapacity as follows: Incapacity on the grounds of ill health or
injury may be temporary or permanent. If an employee
is temporarily
unable to work in these circumstances, the employer should
investigate the extent of the incapacity or the injury.
If the
employee is likely to be absent for a time that is unreasonably long
in the circumstances, the employer should investigate
all the
possible alternatives short of dismissal.
41.
Item 11 of Schedule 8 to the Code states that any person determining
whether a dismissal arising from ill
health or injury is unfair
should consider— a) whether or not the employee is capable of
performing the work; and b) if the
employee is not capable— i)
the extent to which the employee is able to perform the work; ii) the
extent to which the employee’s
work circumstances might be
adapted to accommodate disability, or, where this is not possible,
the extent to which the employee’s
duties might be adapted; and
iii) the availability of any suitable alternative work.
42.
The Labour Relations Act clearly places specific duties on the
employer when it relates to ill health and
injury, and Government
Institutions are even more regulated by collective agreements with
organised labour. The Occupational Therapist
indicated that the
Plaintiff still has residual work capacity, and that he can perform
sitting tasks for majority of the day, with
standing, walking and
stair climbing up to 33% of the day and elevated work, forward bend
work and kneeling limited to 5% of the
work day. Dr Oelofse further
made provision for 3 years early retirement.
43.
Had the Plaintiff therefore engage his employer on the difficulties
he was facing with doing his job as a
result of the injury, which in
fact was an injury on duty, he might have been accommodated, and the
outcome would have been very
different.
44.
The report of Dr Jacobs, with respect, is merely a regurgitation of
other expert opinions and the version
of the Plaintiff. His
explanation that other scenarios cannot be considered, simply because
it did not transpire in that way, does
not assist the Court in fairly
assessing the loss attributable to the accident in question. Dr
Jacobs admitted during cross-examination,
that he should have
considered ill-health retirement.
45.
The Plaintiff wants the Defendant to compensate him for his loss
amounting to R 4 621 300.00, according to
the report of Munro
actuaries.
46.
It is the submission of the Defendant, that it cannot be held liable
for the loss suffered by a person who
in no manner mitigated, but in
fact exasperated his loss. The evidence which flows from the
Plaintiff’s own testimony in
Court, cannot simply be ignored,
and only be addressed by contingencies. The Defendant respectfully
submit that the only fair outcome
would be to instruct the Actuary
Counsel to do the following calculations:
1)
Had the Plaintiff follow internal remedies and the employer have
accommodated him, and he continued working on the same salary
and
postulations and before the accident, with 3 years early retirement;
2)
Had the Plaintiff’s services been terminated on the basis of
ill-health retirement;
52.
(sic) A fair outcome would lie in the median between the
above-mentioned calculations.
53.
Should the Honourable Court not be inclined to make such an order,
then it is important to note that Dr Oelofse
apportioned only 50% of
the sequelae of the cervical spine injuries as attributable to the
accident. He also only attributed 50%
of the sequelae of the knee
injury to the accident, considering pre-accident Osteoarthritis,
which was also present in the injured,
right knee. The Lumber spine
injury and fusion occurred prior to the accident.
54.
It would then be the submission of the Defendant that much higher
contingencies be applied to the uninjured
scenario.
55.
Dr Jacobs did not in any manner verify the Plaintiff’s alleged
post accident income, by requesting bank
statements or tax returns.
This should also be considered by the Court when applying
contingencies.
[15]
Contingencies shall only be applied and
considered if the causal link between the injuries and the loss was
proved; when the incident
and loss was proven to be causally
connected. The injuries were not the cause of the alleged effect of
R4 621 300.00.
Contingencies shall
not be used to fix a broken case.
[16]
Crucial is what the primary issue in this
case is not about. It is not about the plaintiff’s duty, or
not, to mitigate his
losses. That said; claimants may not be reckless
with their fate and circumstances and expect that the Road Accident
Fund must
remedy the situation.
[17]
Courts must apply the same diligence when
adjudicating matters wherein the Road Accident Fund is a party as in
other cases; the
fact that the coffers may be deep does not permit
that sympathy for the plaintiff must cause warped law and dubious
justice. The
parties, the expert witnesses and all involved must show
due honour and integrity to the administration of justice when they
prepare
and present their case.
[18]
The judgment, to give perspective to the above,
will first depict the facts and evidence and thereafter the findings
thereon. The
law will then be portrayed followed by the conclusion.
THE
FACTS
Introduction
[19]
The plaintiff was 49 years old when the
incident happened. He is married with two children. His wife is a
dentist. Both the plaintiff
and his wife are breadwinners for the
household. In
2019
his 24-year-old son helped him run his handyman business and his
17-year-old son was still in school. In the meanwhile, his oldest
son
has started his own business. It is not known what his youngest son’s
circumstances are currently.
[20]
At the time of the accident and
for
two years afterwards
, he was
gainfully employed by the Department of Public Works as a
Construction Project Manager
.
He was on middle management level (MMS).
[21]
The plaintiff, on his admission during
viva
voce
evidence, resigned
thoughtlessly and impulsively in
2017
,
two years after the incident; after 30 years of service. He realised
his mistake and endeavoured to retrack the resignation but
could not.
[22]
His
income, hereafter, dropped significantly from R586 392.00 per year in
December 2015 and an estimated R687 171.00 per year in
April 2017
[5]
to about R3000.00 to R4000.00 per month in 2017 and he ended up
unemployed in 2019 and until the time of the trial in 2022.
[23]
The Industrial Psychologist conceded, also
during
viva voce
evidence, that the plaintiff should have considered negotiations with
his employer for sedentary sympathetic duties or ill-health
retirement and should not have resigned as he had given his
circumstances.
[24]
There is not any evidence on record that the
plaintiff was forced to resign due to his injuries.
The
incident & the loss of income
[25]
The
collision, in August 2015, occurred when the plaintiff was driving on
the Dewetsdorp – Zastron road and he collided with
a trailer of
a vehicle that made a sudden U-turn in front of him. He drove himself
to the hospital after the accident but the queue
was too long and he
went home.
[6]
[26]
He reported to his Occupational Therapist that
due to the fact that it was an injury on duty, his boss required from
him to attend
the hospital and that he returned to the hospital a few
days later where x-rays were taken of his left knee, right shoulder
and
back. The diagnosis of that day is unknown. He was sent home with
pain medication.
[27]
His Counsel informed from the bar that he did
not receive any benefits awarded in terms of the Compensation for
Occupational Injuries
and Diseases Amendment Act, Act 61 of 1997 for
the injury sustained on duty. It was accepted by the defendant.
[28]
There is not any indication that his employer
was dissatisfied with his performance
for
two years notwithstanding his injuries and capacity to work.
[29]
The plaintiff indicated a final warning against
him in regards untoward conduct against a co-worker(s) by the
plaintiff. This is
the only evidence about it and no corroboration or
detail were submitted to the Court. I will discuss this later again
when I depict
the evidence and give reasons for the evaluation of the
evidence and the final finding.
[30]
The admission of the Industrial Psychologist
during
viva voce
testimony that the plaintiff should have explored his options within
the Department of Public Works; his employer, and not just
resigned
on a whim to start a business and the evidence of all the witnesses
indicate that the most likely outcome would have been
that the
plaintiff could have been placed on ill - health pension with all the
benefits such as medical aid and pension that would
have continued.
He could also have negotiated for his duties to be adapted to
sedentary work and he could have been employed up
to the age of
62-years-old.
[31]
His resignation caused an immense loss of
income and benefits.
[32]
A statement from the erstwhile employer in
this instance would have solved the whole case. It just does not make
sense that it was
not forthcoming. One cannot speculate on the
reasons for the fact that the employer was not called to testify or
statements adduced.
The plaintiff will have to carry the consequences
if findings to his detriment eventuate.
[33]
At paragraph 8.1 of the report of the
Industrials Psychologist (page 5 of the report and page 165 of the
Bundle “Expert Notices”)
the plaintiff noted that:
“He
was satisfied with his job and his employer.”
[34]
The mistake that Industrial Psychologist made
not to consult with the employer resulted in the situation that the
Court was not
privy to all the material evidence and could not rely
on the calculations of Munro Actuaries. The Industrial Psychologist
did not
consult the erstwhile employer, did not obtain evidence on
the reason for the resignation, why the resignation was not permitted
to be withdrawn and what the situation would have been if the
plaintiff did not resign. The only evidence available on the issue
is
that of the plaintiff. He is vague and inconsistent on the issue.
[35]
The uninjured calculations were not supposed to
be based on the income from the Department. The injuries did not
cause the loss
of income from the Department. The plaintiff was not
forced to resign.
[36]
He chose the “lower paying job” to
be a business venture that he and his son started. The plaintiff was
not forced to
take a lower paying job. The business could have
evolved successfully but the son resigned. The plaintiff reported to
the experts
that he wanted to expand the business.
The
Court did not receive any evidence on the circumstances of the
business itself.
The evidence is
contradictory and vague as to the reason for the business not
continuing.
It came to a standstill
because his son resigned; not because he cannot do sedentary work as
he had done when his son was still
working for him and keep the
business going by appointing another employer or partner
.
No evidence was adduced by way of bank statements or other
corroborating evidence as to what the real income of the plaintiff
was after he resigned. It is also not clear how this income was
included in the final calculations.
[37]
The plaintiff joined the GEPF on 17 February
1987 and he was entitled to and paid a retirement lump sum of R3 168
790.00 that the
actuary spread on an actuarially neutral basis on a
monthly basis not to be allocated to a single year loss.
[38]
The Orthopaedic Surgeon indicated the Plaintiff
had pre-existing spondylosis of his cervical spine and
only
50% of his symptoms can be attributed to the accident
.
He had an unspecified lumbar spine injury prior to the accident,
he
has a history of backpain
,
spondylosis and underwent a previous L4 – S1 fusion
.
Conservative treatment was prescribed for this injury. Treatment for
the shoulder injury should focus on long-term rehabilitation
to
regain as much function as possible.
From
the x-rays, it is apparent that the plaintiff also had Osteoarthritis
of his right knee which was not injured in the accident,
he already
had degeneration in his left knee prior to the accident and therefore
50% of his symptoms relating to his knee is apportioned
to the
accident. This was not included in the calculations of the actuaries.
The Industrial Psychologist or legal representatives
did not give
them any instructions on this vital aspect.
[39]
The
statement by Counsel for the plaintiff in their Heads of Argument
that the plaintiff was pain-free before the incident is not
correct.
[7]
It did apparently
increase but not to the extent that he could not do sedentary work.
THE
EVOLVEMENT OF THE CASE AND THE EVIDENCE
[40]
Justice delayed is justice denied. The reality
is that the seven years it has taken to bring the matter to trial on
the issue of
loss of income weakened and complicated the evidence and
justice. The question may also be asked as to why all the evidence
relevant
to the adjudication of the case was not collected in the
seven years. I realise that Counsel for both the plaintiff and the
defendant
was mandated later in the proceedings.
[41]
The Particulars of Claim reads as follows in
regard to the nature of the claims and the quantum:
7.1
Past medical and hospital expenses
(As
per claims schedule received
from
government employee medical
scheme
attached hereto as Annexure “B” R313
796.42
7.2
Future medical and hospital expenses
(Annexure
“A”)
R1 448 100.00
7.3
Past and future loss of income
(The
calculation of which appear from
the
report by Munro Forensic Actuaries
dated
31 March 2021 attached hereto
marked
Annexure “C”) R4
621 300.00
7.4
General
damages R500
000.00
TOTAL R6
883 196.42
[42]
The
quantum
and the merits of the plaintiff’s claim was separated and on 25
April 2019 Mathebula, J granted judgment on the merits in
favour of
the plaintiff with costs. The matter again served before Mathebula, J
on 15 and 16 March 2022 and he postponed to the
pre-trial roll of 4
April 2022.
[43]
On 4 April 2022 Daffue, J made an order by
agreement between the parties which settled the plaintiff’s
claim for general damages
(R400 000-00), future hospital and medical
expenses in terms of an undertaking in terms of section 17(4)(a) for
100% of the costs
and he ordered and interim payment of R1000 000.00
(one million) in respect of the plaintiff’s claim for past and
future
loss of earnings.
[44]
It seems as if the defendant was
ad
idem
to the fact that the plaintiff
suffered a loss of past or future income of, at least, R1000 000.00
due to the interim payment agreed
to in April 2022. The reasons for
the interim payment were not made known to the Court in the instance.
[45]
The plaintiff’s claim for past hospital
and medical expenses was also separated to be adjudicated in future.
This will be
after the issue of past and future loss of income was
adjudicated
in casu.
[46]
The parties, during the trial that commenced on
19 & 20 July 2022 before myself, agreed that the following expert
reports shall
serve as evidence before Court and that the information
contained therein is admitted as true and correct
but
for the issues with the Actuarial Report
:
Exhibit
A: Dr JJ Schutte (General Practitioner) (RAF
4)
Exhibit
B: Dr LF Oelofse (Orthopaedic Surgeon)
Exhibit
C: Dr LF Oelofse & Dr MB Deacon
(Orthopaedic Surgeons)
Exhibit
D: L van Zyl (Occupational Therapist)
Exhibit
E Mr C du Plessis and Mr W Boshoff and
Ms J Valentini (Munro Forensic Actuaries)
Exhibit
F: Dr E Jacobs (Industrial Psychologist)
Exhibit
G: Curriculum Vitae Dr E Jacobs
[47]
The plaintiff and Dr Jacobs rendered
viva
voce
evidence.
[48]
The defendant did not adduce any evidence and
closed their case as such.
[49]
Counsel argued their cases on 29 July 2022 and
I am indebted to them for their contributions.
[50]
The evidence itself
1.
In essence,
the
plaintiff
, on his own version,
caused his unemployment and resultant loss of income because he
resigned recklessly. That said; it is a fact
common to the litigants
that he suffered from chronic pain and
sequelae
that made it difficult for him to do his job. The evidence of the
plaintiff is also that he resigned because he wanted to start
a
business with his son. The experts indicated that he is able to do
sedentary work to up until 60 to 63 years of age.
2.
There is not any evidence that the
plaintiff had to resign
. The
Industrial Psychologist’s instruction to the actuaries that the
plaintiff had to resign is patently wrong. (See paragraph
2.1 of
their report at page 189 of the Bundle: “Expert Notices”)
3.
He has been employed at the Department
of Public Works for almost 30 years at the time of his resignation
and his reasons; or lack
thereof, for not negotiating and acquiring
more sympathetic work conditions or ill-health retirement at his
employer are concerning.
He just did not do it. He gave the
reason for resignation to his employer to be to start a business.
4.
On questions by the Court, he indicated
that he did want to retract his resignation but the employer did not
want to accept it.
He could not obtain a reason for their refusal.
From his evidence it is not clear if he did indeed do a proper
inquiry on the issue.
He was a member of the Public Servant’s
Association but did not call in their assistance for possible unfair
labour treatment.
He was vague on the issue. Again, evidence from the
employer on the issue is vital.
5.
The plaintiff, in the witness doc,
presented as a man with little drive and interest in his fate and
future. His evidence must be
labelled as lacking veracity and
immensely vague.
6.
Although
the plaintiff denied during his testimony in Court that he was ever
diagnosed with depression;
he
clearly lied to Occupational Therapist about it
.
The plaintiff phoned her the day after their consultation and
informed her that he was not honest about his emotional state as
he
felt embarrassed. He reported that he in fact struggle with his
emotions; he becomes upset about the smallest things and experience
road rage. He feels depressed and has a dry mouth and also struggles
with intimacy.
[8]
This was in
June 2019 not 2017 when he resigned. The cause of the depression is
uncertain and the depression could have developed
after his
resignation in 2017.
7.
He was referred to a Clinical
Psychologist but at the time of the trial he did not testify that he
received any treatment and testified
that he had not been diagnosed
as such. As indicated, he did not impress as a person that will
endeavour to improve himself and
his circumstances.
8.
Evidence of an expert on the psychology
of the plaintiff at the time of his resignation in 2017 was not
adduced by the plaintiff.
9.
The evidence of the Industrial
Psychologist supports the finding of the Court that the conduct of
the plaintiff to resign was unacceptable
in the circumstances. The
Industrial Psychologist conceded that the plaintiff should have taken
steps to mitigate his circumstances
by implementing either his
employer’s assistance to be moved to sedentary duties that
would accommodate the
sequalae
of his injuries or implemented the option of ill-health pension
benefits. He maintained that the plaintiff is for all purposes
unemployable.
10.
That said; the fact that this witness as
expert did not obtain evidence from the erstwhile employer before
forming his opinion and
instructing the actuaries is disappointing.
11.
The fact that the plaintiff did not
adduce the evidence of the employer; the Department of Public Works,
is more so disappointing
and frustrating. It is a failure of the
administration of justice.
Litigants
may not expect from Courts to speculate on their behalf or to the
detriment of the taxpayer’s interest when adjudicating
cases of
this nature. Monies in the coffers of the Road Accident Fund must
never be deemed to be easy money. Claims must be proven
with
diligence and integrity.
12.
The fact that no evidence was adduced as
to the emotional state of the plaintiff when he resigned is fatal for
the plaintiff’s
case. The Court may not speculate on his
behalf. There is not any evidence such as absenteeism from work or
other factors that
can assist the Court in this regard.
There
was not any mention to the Industrial Psychologist of any emotional
impediments
. The witness reported
that the plaintiff was satisfied with his work and his employer.
13.
The Industrial Psychologist
assessed the plaintiff on 11 June 2019
and 16 October 2020 and opined at pages 13 to 14 of his report that
the plaintiff would have
been able to do sympathetic sedentary work.
It is clear from this opinion that if the plaintiff did not resign,
he could have been
considered to be employed to do “sympathetic”
duties at the Department of Public Works or be retired on ill-health
pension.
14.
The plaintiff was able to run a business
for two years after his resignation and the reason why he could not
proceed is either because
he was not physical able to or it was
because his son resigned. The plaintiff made different remarks to
different experts on the
issue. He even remarked that he wants to
develop the business.
15.
The plaintiff was part of a medical
scheme, pension fund and housing and motor scheme according to the
Industrial Phycologist. According
to the plaintiff’s payslips
he earned a salary of an average of R38 000.00 and more per month.
His handyman business brought
it down to between R3000.00 to R4000.00
per month. The Industrial Psychologist stated that:
“
Mr.
M’ injured career can be stipulated as the following:
a)
The following guidelines were made known
by the experts: (1) he is assessed as not suitable for his
pre-accident job as project
manager Public Works or his post-accident
job as supervisor/handyman (2) he should do sedentary work only (3)
early retirement
is expected from sedentary work.
b)
The medical experts are expecting
degeneration of his injuries.
c)
Early retirement of 3 years is expected
from light/friendly work (Dr Oelofse and Dr Deacon)
d)
We know he resigned from Public Works as
a result of his injuries and also terminated his role as
supervisor/handyman (also as a
result of the injuries and low
compensation).
(
This
is incorrect and contradictory to the information supplied by the
plaintiff himself at different occasions. The record will
show that
the evidence of the plaintiff on this issue is very unstable.)
e)
Dr Oelofse and Dr Deacon is of the
opinion that he should not perform any physical work.
f)
He is not regarded as suitable for any
physical job (including that of a supervisor/handyman).
g)
The question is therefor whether he can
do sedentary work.
h)
In my opinion it is
highly
unlikely
that he will obtain and
sustain a sedentary position requiring some administrative capacity
or skills. He is already 54 years old
and it will be difficult for
him to reskill himself and compete with qualified people in this
market area. He only has grade 10
and technical qualification. It was
not his career intention to do sedentary work. He does not fall in
the equity group and it
is very difficult to see where he will find
suitable sedentary work.
i)
Although the orthopaedic surgeons
suggest 3 years early retirement a more likely scenario in my opinion
is that he will remain unemployed
for the remainder of his career. He
may at best be able to secure a few rare occasional sympathetic jobs.
This income will however
be sympathetic in nature and insignificant.
16.
It is important to emphasize that during
October 2017 the plaintiff received a Government Employees Pension
Fund pay-out of R 3
168 790.00.
17.
Dr Oelofse, Orthopaedic Surgeon’s
evidence is that:
a)
According to the plaintiff he had no
loss of consciousness during or directly after the accident.
b)
He was able to drive himself to the
National Hospital.
c)
The plaintiff experienced pain in his
head with left parietal bruising, pain in the neck, pain in his lower
back, pain in his right
shoulder and pain in his left knee.
d)
The exact diagnosis of the plaintiff on
the date of the accident is not known.
e)
According to the plaintiff he received
conservative treatment; that is pain medication and was discharged
later the same day of
the collision and was given pain medication.
f)
The plaintiff reported that he was
booked of for approximately three months due to the incident and the
injuries.
g)
The plaintiff sustained injuries to his
cervical spine, lumber spine, right shoulder and left knee. He
suffers chronic headaches,
pain and muscle spasm.
h)
The plaintiff had pre-existing
spondylosis of his cervical spine and only 50% of his symptoms can be
attributed to the accident.
He had an unspecified lumbar spine injury
prior to the accident,
he has
a history of backpain
,
spondylosis and underwent a previous L4 – S1 fusion.
Conservative treatment is prescribed for this injury.
i)
Treatment for the shoulder injury should
focus on long-term rehabilitation to regain as much function as
possible.
j)
From the x-rays, it is apparent that
the plaintiff also had Osteoarthritis of his right knee which was not
injured in the accident,
he already had degeneration in his left knee
prior to the accident and therefore 50% of his symptoms relating to
his knee is apportioned
to the accident.
k)
If accommodated in a permanent light
duty position, then provision must be made for three years early
retirement. Under financial
implications on page 5 of his report at
1.4 he reported that the patient was able to continue his employment.
This was on 15 March
2017; the date of the examination.
l)
The plaintiff attended approximately 20
to 30 physiotherapy sessions.
m)
He underwent 3 surgeries as a direct
result of the injuries he sustained in the accident. In March 2016,
shoulder surgery; the exact
nature thereof unknown. An Arthroscopy of
the left knee and a second unknown surgery (possible secondary
suturing/joining) of his
shoulder in February 2017.
n)
The plaintiff experienced severe pain
after the surgeries but pain medication received in hospital offered
sufficient pain relief.
The pain will however prevail and increase in
intensity to be chronic.
o)
Dr Deacon confirms the report. The
medication for the pain and discomfort may have serious side effects
such and medication that
will counteract or minimise the effects will
be beneficial to the plaintiff.
18.
The diagnosis of Dr JJ Schutte the
General Practitioner is soft tissue injury of the cervical spine of
pre-existing spondylosis
with residual symptoms, soft tissue injury
of the lumbar spine, pre-existing spondylosis with residual symptoms,
injury of the
right shoulder necessitating surgery with residual
symptoms, multiple surgeries, rotator cuff weakness and PTOA and soft
tissue
injury of the left knee joint, residual symptoms and PTOA.
19.
The plaintiff indicated to the
Occupational Therapist on 27 September 2019 that:
a)
He is married with two children. His
wife (48 years old) is a dentist. His 24-year-old son helps him run
his handyman business and
his 17-year-old son is still in school.
Both the plaintiff and his wife are breadwinners for the household.
He earns very little
and uses some of his pension.
b)
He drove himself to the hospital after
the accident but the queue was too long and he went home.
c)
He reported to the therapist that the
fact that it was an injury on duty, his boss required him to attend
the hospital and that
he returned to the hospital a few days later
where x-rays were taken of his left knee, right shoulder and back.
The diagnosis is
unknown.
d)
He was discharged the same day with pain
medication and referred to a private Orthopaedic Surgeon and
Physiotherapist.
e)
Physiotherapy treatment was assisting
with pain in his left knee. Pain in his left knee was only
experienced during physical evaluation
which included walking, stair
climbing, kneeling and attempting to squat/crouch.
f)
He does however experience pain daily.
It is the narrative of the plaintiff that when he returned to work
after the incident, he
struggled to execute his work-related tasks
particularly when he was doing inspections on building sites, with
tasks such as climbing
ladders and getting into a roof, using his
hands above his head when inspecting ceilings and lifting heavy loads
when doing tile
sampling due to pain in the right shoulder. He also
struggled to concentrate especially with administration work, due to
daily
headaches.
g)
Again; this was not verified with the
employer.
The evidence of the
plaintiff lacked veracity as to his information to the experts and
the Court.
h)
At paragraph 4.5 of the 2019-report the
plaintiff reported that he plans to continue with and possibly grow
his business. He reported
that his son, who is his only employee,
would like to emigrate, and that he would have to employ someone new
when it happens. Ideally,
he would like to become more involved in
his business should he receive effective treatment for his neck and
left shoulder. At
4.4.2 the witness reported that the plaintiff can
do supervisory duties with intermittent rest breaks. He was able to
sit for 2
hours and 35 minutes during the interview.
i)
During assessment, the plaintiff was
found to have a slight limitation when sitting, some limitation when
walking and some limitation
when doing standing work.
j)
This witness concluded that
the
plaintiff is currently suited for sedentary to occasional light work
demands. Sitting can be performed frequently, with walking
climbing
and stair climbing to be limited to 33% of a work day. Elevated work,
forward bend standing and kneeling should be restricted
to 5% of the
work day.
The plaintiff’s
pre-accident work as Construction Project Manager can be classified
as predominantly light work with aspects
of medium work, but not
daily.
k)
The plaintiff started his own business
with his son, with him exercising a supervisory role which can be
classified as work within the
sedentary to light parameters.
l)
The evidence shows that the plaintiff
can still work.
20.
From the above it is clear that by the
end of 2019, two years after his resignation, the plaintiff
terminated his business as supervisor/handyman
because his son
obtained alternative work and the plaintiff is not capable of doing
the work himself. The fact that his son obtained
alternative work and
that he has been unemployed since December 2019 has no direct causal
link to the injuries sustained in the
collision of 2015. The fact
remains that the plaintiff was able to work from 2017 to 2019 in a
sedentary capacity.
21.
Corresponding to the above, the
plaintiff had the benefit of a state medical scheme that could have
perpetuated if he remained in
a sedentary sympathetic work
environment or was placed on ill-health pension by the Department of
Public Works. He could have received
medical treatment that would
have enhanced his ability to continue to be employed appropriately.
Evidence from the employer would
have been helpful.
22.
His future hospital and medical
expenses in terms of an undertaking in terms of section 17(4)(a) for
100% of the costs will ensure
that his physical condition is
contained. He is able to work.
CONCLUSION
AND FINDINGS ON THE EVIDENCE ADDUCED
[51]
The plaintiff failed to prove a causal link between his injuries
sustained during the collision
and the loss of income by resigning to
start a business two years after the fact.
There
is not a link between the injuries and the
quantum
of
R 4 621 300.00
as it was calculated by the actuaries.
The
novus
actus interveniens
was the
thoughtless resignation of the plaintiff
.
The income at the Department should not have been used to do the
calculations on past and future loss of income.
[52]
The fact remains that the plaintiff did not prove on a preponderance
of probabilities, or at
all, that the
quantum
of his loss of
income was linked to his injuries sustained during the collision and
caused by the insured driver. On the evidence
before Court; he
resigned from his job at the Department of Public Works freely and
voluntarily; he did not have to resign as the
Industrial Psychologist
instructed the actuaries. His business was terminated because his son
obtained alternative employment,
the business was not worth the while
and this has nothing to do with the injuries sustained.
[53]
Due to the fact that material evidence was not adduced by the
plaintiff as to the reason for
his resignation and what his income
status afterwards was, the Court has many obstacles to overcome
before a just and equitable
finding in service of the administration
of justice can be made. The applicable law now becomes crucial.
THE
LAW
[54]
The onus is on the plaintiff to prove the loss of income and the
quantum
on a preponderance of probabilities. This means that
the plaintiff must prove that he has more likely than not suffered
the damage
and he must also prove the amount of damages that should
be awarded to compensate for that loss; as well as the cause of the
damages.
[55]
There must be a proven causal link between the damages claimed and
the injury. The plaintiff
must prove this link to exist in law and in
fact. The plaintiff must prove the absence of any
novus actus
interveniens
.
[56]
Novus
actus interveniens
is Latin for a "new intervening act". In the
Law
of Delict
,
6th Edition, Neethling stated that a
novus
actus interveniens
is: "an independent event which, after the wrongdoer's act has
been concluded; either caused or contributed to the consequence
concerned".
[9]
[57]
Often this is an aspect that is overlooked or only established at a
much later stage during litigation.
It is essential that proper
investigations are done before a case is brought to trial.
[58]
In
MEC for Health, Eastern Cape v Mkhitha and Another
(1221/2015)
[2016] ZASCA 176
(25 November 2016) the Supreme Court of
Appeal held that:
[13]
It is trite that causation involves two distinct enquiries:
factual and legal causation. Generally, the enquiry
as to
factual causation is whether, but for the defendant’s wrongful
act, the plaintiff would not have sustained the loss
in question;
whether a postulated cause can be identified as a causa sine qua non
of the loss. The second enquiry, legal
causation, is whether
the wrongful act is linked sufficiently closely or directly to the
loss for legal liability to ensue; or
whether the loss is too remote.
[14]
Whilst it is correct that the plaintiff would not been
hospitalised but for the negligent driving of the insured vehicle,
as
regards legal causation, the evidence clearly establishes that there
was a novus actus interveniens, namely the negligent treatment
of the
plaintiff by the medical staff at BOH after she sustained the
injuries in the collision, which significantly contributed
to the
consequences of those injuries.
[59]
It is not on the defendant to prove that the claimant did not suffer
the loss or the
quantum
of the loss or that there is not a
causal link to the injury suffered and the damages claimed. This was,
rightly so, ruled to be
the law in
Van der Merwe v RAF
(GP)
(42358/15) [2018] ZAGPPHC 374 (16 March 2018)).
[60]
In the
Van der Merwe v RAF
- case the following arguments by
the plaintiff; that is in line with the arguments of the plaintiff on
the mitigation of damages
– argument of the defendant, in their
Supplementary Heads of Argument
in casu
, was correctly
dismissed:
An
argument that firstly, the plaintiffs’ Counsel submitted that
the defendant’s entire argument on this score stemmed
from one
passage in the industrial psychologist’s medico-legal report.
Secondly, the argument went, the defendant’s
Counsel had failed
to cross-examine the plaintiff and her two experts hence the
defendant could not raise the issue of a
novus
actus interveniens
.
Thirdly, the defendant had not raised a substantive defence of
novus
actus interveniens
and had not adduced any evidence in that regard. Finally, the onus of
proving a
novus
actus
rested on the defendant.
[10]
[61]
The information of the conduct of the plaintiff was known to the
parties when the trial commenced.
The issues were known to the
plaintiff and the onus is on them to prove the claim on all its
elements. There was a discovery of
expert witnesses by the defendant
that raised the issues. The report of the actuary for the defendant;
although not evidence before
Court, was known to the plaintiff.
[62]
In
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA
680
(A) the presiding officers that were Corbett CJ, Botha JA, Hefer
JA, Smalberger JA and Friedman AJA ruled on the importance of
causation in the law of delict. Causation and the question of the
remoteness of damages was crucial here. An auditor was sued by
a
financing company for loss caused by negligent misstatements
contained in a report by the auditor of a group of companies. This
report was misleading: It did not give an accurate picture of the
bleak financial situation of the group for which the company
was
providing financial facilities. The Court found that the auditor had
acted negligently and unlawfully, and so established factual
causation. On appeal, however, it was held that the company's loss
was too remote for the auditor to be held liable. The judgment
set
out the factors relevant to determining whether or not a loss is too
remote.
[63]
In
Mafesa v Parity Versekeringsmaatskappy Bpk
1968 (2) SA 603
(O) the Court held that the defendant was responsible for the damage
sustained as a result of the collision, but that a fall afterwards
had been caused by the plaintiff's own carelessness. The defendant
was not liable for the damage caused thereby: The fall was an
intervening cause which broke the causal effect of the original
negligence.
[64]
In
Road Accident Fund v Russell
(656/98)
[2000] ZASCA 66
;
2001
(2) SA 34
(SCA)
[2001] 1 All SA 160
(A) (24 November 2000) it was
ruled that:
[25]
The question raised by the present appeal has as yet not been
considered by this Court. However, even though the deceased’s
act of suicide may be said to have been deliberate, the weight of the
evidence proves on the probabilities that the deceased's
mind was
impaired to a material degree by the brain injury and resultant
depression. Consequently, his ability to make a balanced
decision was
deleteriously affected. Hence his act of suicide, though deliberate,
did not amount to a
novus actus interveniens
. It is
unnecessary for the purpose of this case to determine whether the
question of
novus actus interveniens
is properly a
consideration material to legal causation or, rather, factual
causation and that question is accordingly left open.
[65]
As recently as in April 2022 in
LM & LM obo CM and JM v Road
Accident Fund
(Judgment delivered electronically on 14 April
2022, in the High Court of South Africa, Western Cape Division, Cape
Town, Case
No: 468/2018) it was ruled that the plaintiff did not
prove that the suicide of the person injured in a collision years
after the
collision did not constitute a
novus actus interveniens
and the claim was denied.
There was not any evidence before the
Court that the deceased was depressed due to the collision and that
any of the alleged depression
caused the suicide
.
In casu
the reason for his resignation and discontinuation of his business
was not proven to be due to the injuries or any depression.
[66]
Harms
[11]
concluded with
reference to case law
[12]
that
where the burden of proof is on the one party, there is no
evidentiary burden on the other party to testify unless the party
on
whom the burden of proof rests has established a
prima
facie
case. A distinction is drawn between the concept of the burden of
proof and the concept of the duty of adducing evidence. The incidence
of the burden of proof is a matter of substantive law.
It
denotes the duty which is cast on a particular litigant of finally
satisfying the Court that he is entitled to succeed on his
claim or
defence, as the case may be. The burden of proof never shifts.
[67]
In
Road
Accident Fund v Guedes
2006 (5) SA 583
SCA at 586H-587B the Supreme Court of Appeals
ruled
that it is trite that a person is entitled to be compensated to the
extent that the person’s patrimony has been diminished
in
consequence of another’s negligence
.
The Court exercises a wide discretion when it assesses the
quantum
of damages due to loss of earning capacity, and has a large
discretion to award what it considers right. Though Courts rely on
actuarial computations, it still exercises a wide discretion as to
what is just.
[13]
[68]
The Road Accident Fund of South Africa
is
responsible for providing appropriate cover to all road users within
the borders of South Africa; rehabilitating and compensating
persons
injured as a result of motor vehicles in a timely and caring manner;
and actively promoting the safe use of all South African
roads.
[14]
[69]
It is not a get - rich - quick opportunity and claimants must
diligently and with integrity ensure
that their costs are limited and
proven to be the damages caused by the incident.
[70]
I ruled in
Radebe v Road Accident Fund
[2020] JOL 46803
(FB)
that the deeper dispute than numbers, turn on the evidence of the
actuary that was based on the evidence of the Industrial
Psychologist
that was based on the evidence of the plaintiff. It is the case for
the defendant that the narrative of the plaintiff
cannot be trusted
due to contradictions therein and evidence that was not adduced. The
defendant
in casu
is correct.
[71]
The indolence of plaintiffs to prove their loss of income and
circumstances and a practise to
settle on the word of experts alone
cannot be good law. It causes prejudice to the veracity of the
justice system and the experts.
Courts and the Justice System are
blamed for failure of justice whilst the plaintiff wants for the
Court to make mammoth
quantum
orders against the fiscus that
is already marred with unsubstantiated claims starved of evidence to
justify the orders.
[72]
In
Donough v Road Accident Fund
(8962/06) [2010] ZAGPJHC 100
Mbha, J as he then was, struggled with the same frustrations as
in
casu
. He said:
I
find it totally unacceptable that the plaintiff’s experts….
omitted to contact the plaintiff’s employer’s
post
‐
accident,
to corroborate their opinions. Clearly their opinions are merely
based on the say
‐
so
of the plaintiff.…To show the court’s displeasure in the
manner in which these experts conducted their investigations,
I have
decided that they should not be entitled to their full qualifying
fees.
[73]
It is established law that in civil trials if, in a case where the
burden of proof lies on the
plaintiff, the Court, after hearing all
the evidence, cannot decide to its satisfaction on which side the
truth lies, the proper
judgment is absolution from the instance. The
Court may on the evidence, also find against the plaintiff.
[74]
When the Court contemplates, after having heard the evidence of the
plaintiff and the evidence,
if any, adduced by the defendant, whether
or not to grant absolution from the instance, the question to be
asked is whether a reasonable
man should (or ought) to give judgment
in favour of the plaintiff.
[75]
Where absolution from the instance is granted after close of a
defendant’s case, the plaintiff
may proceed afresh on its claim
without first obtaining the Court’s leave to do so. If,
however, the plaintiff seeks to proceed
again on the same papers, it
is required to obtain the Court’s permission to do so.
[76]
If the probabilities are evenly balanced in the sense that they do
not favor the plaintiff’s
case any more than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is
satisfied that his evidence is true
and that the defendant’s version is false.
[15]
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version
is true and accurate…
If, however the probabilities are evenly balanced in the sense that
they do not favor the plaintiff's
case any more than they do the
defendant's, the plaintiff can only succeed if the Court nevertheless
believes him and is satisfied
that his evidence is true and that the
defendant's version is false.
[16]
[77]
It also is recognised practise in cases of this nature; as was
recommended in the instance by
both Counsel for the plaintiff and the
defendant, to request a recalculation by the actuaries of the
quantum
on alternative proven scenarios. There is nothing to refer back to
the actuaries because there is not a link between the loss of
income;
past and future, and the
quantum
claimed.
There happened a
novus actus interveniens
and the income during
his employment at the Department may not be used as basis for the
actuarial calculations if it is not proven
that the injuries caused
the resignation
.
[78]
The Court will always endeavor to do justice to both parties. The
plaintiff may not be penalized
and castigated because he, with the
advantage of legal aid of esteemed and experienced Counsel, neglected
to adduce evidence that
will also serve the constitutional duty and
purpose of the Road Accident Fund to
provide
appropriate cover to all road users within the borders of South
Africa when such case has been proven.
[79]
If the defendant asks for it and the evidence warrants it, judgment
may be given in the defendant’s
favor. Then again, the Court is
never bound to grant absolution from the instance in a case where it
is deciding on the merits
after hearing all the evidence, but in
certain circumstances the Court has a discretion.
[17]
[80]
In
Damont, NO v Van Zyl
1962 (4) SA 47
(C) at page 52 Bloch, J
was faced with a similar conundrum as in this case.
I
am inclined here to do no more than give a judgment for absolution
from the instance with costs as the plaintiff may possibly
have other
defences which might be open to him under the Prescription Act. I am
not even certain as to whether the agreement between
the parties has
been gone into in sufficient detail to be sure in my mind that it
might not be unfair to close the door finally
upon the plaintiff's
case. It looks to me extremely unlikely that the plaintiff can find
any way of overcoming this disability
of the Prescription Act but I
think that the door should not be shut finally. It seems to me,
therefore, that in all the circumstances
the case requires no more
than a judgment of H absolution from the instance with costs. The
special plea will be upheld and there
will be a judgment of
absolution from the instance with costs.
[81]
Steynberg stated in an article based on case law:
"Fair"
mathematics in assessing delictual damages
[18]
at footnote 18 in the text that: “
The
principle applicable to the assessment of damages has as its ratio
the policy that the wrongdoer should not escape liability
merely
because the damage(s) he caused cannot be quantified readily or
accurately.
The
underlying premise upon which the principle rests is that the victim
has, in fact, suffered damage(s) and that the wrongdoer
is liable to
pay compensation or a solatium.”
[82]
The Court must do its best with the evidence at hand.
Unfortunately,
the plaintiff did not adduce the best evidence.
In
Hersman v
Shapiro & Co
1926 TPD 367
at 379 it was ruled that:
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use 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 is certain
that pecuniary damage
has been suffered, the Court is bound to award damages.
It
is not so bound in the case where evidence is available to the
plaintiff which he has not produced; in those circumstances the
Court
is justified in giving, and does give, absolution from the instance.
But where the best evidence available has been produced, though it is
not entirely of a conclusive character and does not permit
of a
mathematical calculation of the damages suffered, still, if it is
best evidence available, the Court must use it and arrive
at a
conclusion based upon it. (Accentuation added)
[83]
Steynberg
supra
suggests the following legal process to assess
damages:
a)
The Court should choose the method of assessment carefully, knowing
that the method so chosen will
influence the use of actuarial
calculations and the manner in which contingencies will be taken into
account.
b)
In the assessment of the contingency adjustment, the Court should
take note of the objective factors
present,
inter alia
logic
and common knowledge,
the proven factual circumstances of the
plaintiff,
the expert and other evidence, etcetera.
c)
In applying subjective considerations, the Court should exercise its
wide judicial discretion
with caution, especially when making a
specific contingency adjustment.
d)
The Court should give reasons for deviating from the actuarial
calculations and should refrain
from making its own mathematical
calculations or amending the actuarial calculations of an Actuary
Counsel.
e)
Finally, the Court should function as the caretaker of the damage
assessment process, and not operate as the bully who uses its wide
discretion to simply overrule the Actuary Counsel and to usurp the
whole assessment process as if it is the sole domain of the
Court.
The old saying that justice must be seen to be done also applies
here. In assessing delictual damages, it is the duty of
the Court,
within its wide discretion, to ensure that both objective and
subjective factors are considered in such a manner that
the
assessment could be regarded as an application of "fair"
mathematics.
CONCLUSION
[84]
The plaintiff in this case did not prove the facts on which he wants
for the mathematics to be
done. The case may therefore be concluded
with a dismissal of the claim.
[85]
The second option is to order absolution from the instance with costs
and with leave to the plaintiff
to proceed afresh on his claim on the
same papers duly amplified.
[86]
The other option is a recalculation of the loss by the actuaries. The
problem is that there are
many unproven scenarios that might be
speculated on. The outcome may still be in dispute between the
parties afterwards. It is
not known if the plaintiff would have been
placed on sedentary and more sympathetic duties or ill-health pension
and what the effect
on the plaintiff’s salary would have been.
Only the employer can attest to that.
[87]
The reason for resignation by the plaintiff is also still
speculation. Evidence as to his mental
and emotional condition might
alleviate the elusiveness, vagueness and ambiguity surrounding the
issue.
[88]
The aspect of the fact that only 50% of the
sequalae
of the
injuries was due to the collision as indicated by the Orthopaedic
Surgeon, also taints a just and effective finding by the
Court.
[89]
The plaintiff will receive constant medical treatment on the account
of the Road Accident Fund
and his health will be contained if he
co-operates. If he was able to run a business with his son for two
years, he will be able
to employ somebody to help him in accordance
with his future plans expressed to the experts. This causes a third
scenario to be
regarded.
[90]
I cannot comply with Draft Order B of the plaintiff to: “Upon
receipt of the actuarial
calculation the parties are to approach
Court to make the actuarial calculation of the plaintiff’s
claim for past and future
loss of earning capacity an order of
Court.”
There might still exist a dispute on the
quantum
to be adjudicated due to the fact that the basis on which the
calculation must be made is in shambles.
[91]
The plaintiff must adduce evidence that the injuries sustained during
the collision caused him
to resign and discontinue his business. The
effect of his pre-accident physical condition on the loss of past and
future income
must be specified and calculated.
[92]
The parties will have to pay their own costs. The issues of the case
have only been realised
when this case started on trial and both
parties could have contributed to a more effective trial.
[93]
ORDER
1.
Absolution from the instance is ordered.
2.
Leave is granted for the plaintiff to proceed on his claim on the
same papers duly amplified
should he be so inclined.
3.
Each party to pay their own costs.
4.
The plaintiff’s claim for past medical and hospital expenses is
postponed to the pre-trial
roll of 24 October 2022: 14h15.
M
OPPERMAN, J
APPEARANCES
On
behalf of the plaintiff
ADVOCATE
PJJ ZIETSMAN SC
Chambers
BLOEMFONTEIN
Mr.
HL Buchner
Attorney
for the plaintiff
HONEY
ATTORNEYS
Honey
Chambers
Kenneth
Kaunda Street
BLOEMFONTEIN
Ref:
HL BUCHNER/eo/J03699
On
behalf of the defendant
ADVOCATE
C BORNMAN
State
Attorney, Bloemfontein
c/o
Road Accident Fund, Bloemfontein
REF:
560/12522085/1075/0
charleneB@raf.co.za
[1]
Paragraph
2.1 of the Heads of Argument of the Plaintiff dated 22 July 2022.
[2]
See paragraph 2.1 of their report at page 189 of the Bundle: “Expert
Notices”.
[3]
Paragraph
3 at (h) of his report on page 13 of the report and page 173 of the
Bundle “Expert Notices” (Exhibit E).
[4]
Paragraph
2 of the plaintiff’s Heads of Argument dated 22 July 2022.
[5]
Estimation
by the actuaries for the plaintiff whose evidence on this issue was
admitted to be true and correct by both parties.
The calculations
were true and correct. See paragraph 4.1 of Exhibit E: Munro
Actuaries Report. The plaintiff adduced salary
slips to the
Industrial Psychologist only up until 2015. It is not clear why the
salary earned until 2017 was not adduced by
way of the same; a
salary slip.
[6]
Paragraph
3.2.2 of the report by the Occupational Therapist on page 6 of the
report and page 105 of the Bundle “Expert Notices”
(Exhibit D).
[7]
Paragraphs
6.2 and 6.3 of the Heads of Argument.
[8]
Paragraph
7 of the report of the Occupational Therapist at page 29 of the
report and page 128 of the Bundle: “Expert Notices”.
[9]
Mashile, T:
To
prove or not to prove? Novus actus interveniens in third-party
claims,
December
1st, 2018 Van der Merwe v RAF (GP) (unreported case no 42358/15,
16-3-2018) (Ranchod J), De Rebus in 2018 (Dec) DR 33,
https://www.derebus.org.za/to-prove-or-not-to-prove-novus-actus-interveniens-in-third-party-claims
.
[10]
Mashile
supra.
[11]
Civil Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 39 TRIAL, Conduct of Trial, Last
Updated: July 2022 - SI 74 at
https://www.mylexisnexis.co.za/Index.aspx
30 August 2022.
[12]
Groenewald
v Minister van Justisie
1972 (4) SA 223
(O),
Intramed
(Pty) Ltd v Standard Bank of SA Ltd
2004 (6) SA 252
(W).
Burchell
v Anglin
2010 (3) SA 48
(ECG) paragraph 20,
Munsamy
(also known as Naidu) v
Gengemma
1954 (4) SA 468
(N);
Mobil
Oil Southern Africa (Pty) Ltd v Mechin
1965 (2) SA 706
(A);
HA
Millard & Son (Pty) Ltd v Enzenhofer
1968 (1) SA 330
(T),
Aegis
Insurance Co Ltd v Consani NO
1996
(4) SA 1
(A),
Macleod
v Kweyiya
(365/12)
[2013] ZASCA 28
(27 March 2013) at [10] and
Goliath
v MEC for Health, Eastern Cape
2015 (2) SA 97
(SCA) at [10].
[13]
Duma v
Road Accident Fund
[2019] JOL 41486 (KZP).
[14]
https://nationalgovernment.co.za/units/view/152/road-accident-fund-raf.
[15]
National
Employers’ General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440H–I,
Stellenbosch
Farmers’ Winery Group Ltd v Martell et Cie
2003 (1) SA 11
(SCA) at 14–15,
Dreyer
NO v AXZS Industries (Pty) Ltd
[2006] 3 All SA 219
(SCA) at 228c–h and
Oosthuizen
v Van Heerden t/a Bush Africa Safaris
2014 (6) SA 423
(GP) at 430F–J.
[16]
National
Employers’ General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440H–I.
[17]
Corbridge
v Welch
(1892)
9 SC 277
at 279,
Damont
NO v Van Zyl
1962
(4) SA 47 (C)
at
52, followed in
Mills
Litho (Pty) Ltd v Storm Quinan t/a ‘Out of the Blue’
1987
(1) SA 781 (C)
at
786I. Also see
Liberty
Group Ltd v K&D Telemarketing CC
2019
(1) SA 540
(GP) at 543G–546D, confirmed on appeal in
Liberty
Group Ltd t/a Liberty Life v K&D Telemarketing CC
(unreported, SCA case no 1290/18 dated 20 April 2020).
[18]
Potchefstroom Electronic Law Journal (PELJ), On-line version ISSN
1727-3781, PER vol.14
n.2 Potchefstroom Jan. 2011,
http://dx.doi.org/10.4314/pelj.v14i2.1
on 30 August 2022.