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[2022] ZAFSHC 251
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I.G.M v Road Accident Fund (2549/2018) [2022] ZAFSHC 251; 2023 (1) SA 573 (FB) (29 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
LOSS OF EARNINGS – SYMPATHETIC EMPLOYMENT
Motor
collision – Severe brain injury – Demoted to store
assistant from underground mine worker – Fund contending
that the actuarial calculations be based on his sympathetic
employment – This at risk of deterioration of sequelae
–
Court accepting postulations and calculations of industrial
psychologist and actuary for plaintiff.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: 2549/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
IG
M
Plaintiff
a
nd
THE
ROAD ACCIDENT
FUND
Defendant
Coram:
Opperman,
J
Heard:
25
February 2022, 10 May 2022 & 2 August 2022
Delivered:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and release to SAFLII
on 29 September 2022.
The date and time for hand-down is deemed to be 29 September 2022 at
15h00
Summary:
Quantum
-
past and
future loss of income - “sympathetic” employment
JUDGMENT
[1]
Quantum
of past and future loss of income lies before court for adjudication.
[2]
Plaintiff
claims an amount of R7 289 454.00
[1]
for past and future loss of earnings. If awarded; the monies will be
administered in a Trust on behalf of the plaintiff.
[3]
The defendant opposed the claim on the
basis that the pre – morbid contingency deductions of 5%/10%
and post – morbid
5%/0% deductions are inappropriate. They
focused their argument on:
a)
The pre – morbid contingency
deduction on future earnings,
b)
Plaintiff’s future post –
morbid earnings (the “sympathetic employment”), and
c)
The
post – morbid contingency deductions on future earnings.
[2]
[4]
The claim of the plaintiff on Notice of
Motion was as follows:
Past
medical expenses
R6
135.73
Future
medical treatment
Undertaking
Past
and future loss of income
R9 000 000.00
General
damages
R1 500 000.00
[5]
Every aspect of the case was in dispute
until the parties settled on the 25
th
of February 2022. The settlement was made an order of the court. The
crux thereof is that:
1.
The defendant is
liable
to compensate the plaintiff for 100% (Hundred Percent) of his proven
or agreed damages.
2.
The defendant shall pay the plaintiff
the sum of R1 000 000.00 (One Million Rand), in respect of
General Damages
.
3.
The awards to the plaintiff shall be
protected by means of it being entrusted to a
Trust
to be formed for the benefit of the plaintiff.
4.
The defendant is ordered to furnish the
Trustee appointed in respect of IG M (the patient) an
Undertaking
in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of
1996
, for the costs of the future
accommodation of the patient in a hospital or nursing home or the
treatment of or the rendering of
a service or the supplying of goods
to the patient arising out of injuries sustained by him in a motor
vehicle collision on 26
April 2016 in terms of which Undertaking the
defendant will be obliged to compensate the Trustee in respect of the
said costs after
the costs have been incurred by either the patient
or by the Trustee or by any party on behalf of the patient and on
proof thereof.
The defendant is ordered to pay the reasonable
travelling costs and accommodation for the patient and his caretaker
to and from
the location where he is to receive treatment covered
under the Undertaking. A case manager may be appointed, as per the
discretion
of the trustee of which the cost of such appointment (if
necessary) is covered under the
Section 17(4)(a)
- Undertaking.
5.
The issues of merits and
quantum
are separated in terms of
Rule 33(4)
and that the issue of
quantum
(
Loss of Income and Past Medical
Expenses
) was postponed to 10, 11 &
13 May 2022.
[6]
The claim of
R9 000 000.00 for past and future loss of income was amended to R7
289 454.00 after the calculations were amended on
instruction by the
plaintiff to the actuaries.
[7]
The
plaintiff also abandoned his claim for past medical expenses.
[3]
[8]
The week before the trial was to
commence on 10 May 2022 the defendant apparently maintained that
there was not to be any settlement.
All the plaintiff’s experts
were reserved and requested to clear their diaries and to attend
court and to prepare to give
viva
voce
testimony in court. The trial
was to last for three days.
[9]
Moments before the trial was to start
counsel for the defendant indicated that she received instructions to
admit the plaintiff’s
expert reports by mere submission thereof
to the court.
[10]
Counsel for the defendant conceded that
the only matter that was at issue was the contingencies applied by
the Actuary and the calculation
as to the influence of the CAP
thereon. The fact that the plaintiff was still sympathetically
employed was also a factor that counsel
for the defendant wanted to
be phased into the calculations.
[11]
I regress to refer to the experts’
evidence that lies before the court for the plaintiff and unopposed
and undisputedly so.
They are:
1.
L. Grootboom (Clinical Psychologist).
2.
Dr D.K. Mutyaba (Neurosurgeon).
3.
L van Zyl (Occupational Therapist).
4.
Dr L van der Merwe (Ophthalmologist).
5.
B Moodie (Industrial Psychologist) dated
01 July 2020 and updated on 5 May 2022.
6.
J
Sauer (Actuary) dated 07 July 2020
[4]
in respect of Loss of Income and his addendum reports dated 10 May
2022.
[12]
The defendant elected not to adduce or
submit any evidence to gainsay that of the plaintiff; they closed
their case forthwith.
[13]
This
is the case for the plaintiff on the facts that caused him to be
sympathetically employed. B Moodie, the Industrial Psychologist,
supplied the court with a comprehensive and well corroborated report
referring to the other experts’ findings and updated
to May
2022.
[5]
1.
The plaintiff was born in 1986 and 29
years old at the time of the incident on 26 April 2016.
2.
He enjoyed good general health before
the incident.
3.
On the day of the incident the plaintiff
was a passenger involved in a motor vehicle accident. He was
unconscious after the collision.
He was transferred to the Bongani
Hospital by ambulance. His Glasgow Coma Scale upon arrival was 9/15.
On the same day he was transferred
to the Pelenomi Hospital where he
stayed for three months, until the 31
st
of July 2016. He was then transferred back to Bongani Hospital for a
further four months, until November 2016. His Glasgow Coma
Scale had
by this time improved to 13/15.
4.
The plaintiff’s injuries were
severe:
i.Laceration
on the left eyelid;
ii.Deep
laceration forehead;
iii.Dilated
right pupil;
iv.Severe
traumatic brain injury with severe neuro cognitive and
neuropsychological deficits in addition to the physical effects
such
as headaches and visual problems;
v.Epidural
hematoma;
vi.Subdural
collection;
vii.Scar
tissue both eyes;
viii.Severe
central retinal damage of the right eye;
ix.Severe
reduced to no vision in the right eye, the right eye deteriorated to
blind;
x.Attention
deficit, concentration deficit, cognitive deficits, verbal and
learning impairments, significant depressive features,
anxiety and
post-traumatic stress disorder symptoms, behavioural changes and
adjustment difficulties. He has lost his sense of
smell and taste and
have weekly nosebleeds. He experiences confusion at times and
lability of emotions.
5.
His career and education evolved as
follows:
i.He
obtained grade 12 after he repeated grade 9;
ii.Post
school he obtained Electrical Studies N1, Electrical Studies N2,
Engineering Studies N3, Engineering Studies N4 and Engineering
Studies N5. He commenced with his studies in Engineering N6 but the
examination on the certificate was in May 2016 shortly after
the
accident. In 2018 he completed the Chamber of Mines Certificate in
Radiation.
iii.He
was employed at Joel Mine from 2008 to 2009 until his contract ended,
in 2010 at Marais Spruit Mine until the mine closed
down, 2013 to
2016 he was employed as a general worker underground until the
accident. He was immediately demoted to a position
above ground as a
store assistant when he returned to work. He experienced a
significant decrease in salary and benefits. According
to the HR form
the plaintiff suffered a total loss of earnings of R20 143.32 for the
six months absent from work for his recovery.
iv.Imperative
is that even if the accident did not happen there would not have been
any promotional possibilities for him and he
would have remained a
general worker underground. He did however have benefits such as
overtime, housing allowance, medical allowance,
pension allowance and
a performance bonus.
v.His
current (2022) supervisor reported that he is forgetful; instructions
must be repeated. He is accommodated in his present
position by
providing him with assistance when he struggles with a task and by
repeating instructions. He suffered loss of overtime
payments and a
decrease in salary.
vi.The
Occupational Therapist reported that the plaintiff will never be well
matched to his previous work demands.
He
is, as a matter of fact, not entirely well suited for his current
position.
[6]
vii.The
experts opined that should the plaintiff continue to be employed
where work demands exceeded his maximum capacity, the cognitive
or
neuropsychological decline expected could evolve into post-traumatic
epilepsy, dementia or Alzheimer’s disease.
Early
retirement is expected.
[7]
viii.B
Moodie reported in May 2022 that notwithstanding noting that the
plaintiff remained employed in the same work capacity to
date, he
maintains the opinion in his initial report. This is further
supported by the letter from TWC Mining (Pty) Ltd dated 4
May 2022
wherein it was stated that the continuous employment of the plaintiff
at the company is out of sympathy. Furthermore,
does Moodie express
the opinion that the plaintiff is not being accommodated permanently
due to the probability of restructuring
of management staff or for
any other reason. He can for all practical reasons be rendered as
unemployable in the open labour market
due to the fact that it is
highly unlikely for the next employer to want to have someone on the
payroll that is not functioning
independently.
[14]
Plaintiff’s counsel’s
argument is solidly based on the facts, opinions, postulations and
calculations by the experts.
Defendant’s counsel was perturbed
by the fact that, according to her, the plaintiff is in reality
permanently employed in
sympathetic capacity and that the actuarial
calculations must be based on his continued employment. Her argument
is that the best
predictor of future behaviour/success, is past
behaviour/success. There is, according to her, no indication that he
would have
progressed with his career as was opined by the experts.
It is her opinion and not that of an expert.
8.1.6
Plaintiff’s postulated career progression by his
Industrial Psychologist (in 2019 and in 2022) is based on the
presumption that the economy and employers will prosper and thrive.
It disregards what is deemed to be a third world war, and it
makes no
mention of the effect of the COVID-virus on employers, employees and
employment possibilities. The COVID-virus alone,
is a reminder that
wholly unpredictable events can supervene, causing delays in career
progression.
[15]
The argument of counsel for the
defendant is frustrated by the fact that they have not submitted any
expert evidence or any evidence
at all on the issues she raised. On
her word from the bar, it remains pure and mere speculation. The
court shall not take cognisance
thereof for the mere vagueness,
generalness and unsubstantiated nature thereof. The unyielding,
unambiguous and factually corroborated
evidence of the Industrial
Psychologist remained that the continued employment of the plaintiff
in his current environment and
faced with the real fears of the
deterioration of his
sequelae
is
on unstable foundations.
[16]
It is trite that it is vital that the
evidence pinioned by an expert is solid. “Solid” supposes
veracity of the facts
of the particular case, expertise on the issue
and an opinion that makes legal sense based on the facts combined
with the expertise.
Neither the Industrial Psychologist that
instructed the Actuary, nor the Actuary can be faulted on their
postulations and calculations.
[17]
In
Southern
Insurance Association v Baily NO
1984 (1) SA 98
(A) that was supported in
Adv
Johan Malherbe Kilian N.O Plaintiff in his capacity as Curator Ad
Litem to Jansen Van Rensburg: Andre Abraham Petrus Le Grange
v Road
Accident Fund, The High Court of South Africa (Gauteng Division,
Pretoria)
Case No. 34116/2016 Judgement 15/9/2016 Gauteng Division, Pretoria it
was held that:
[1]
Any enquiry into damages for loss of earning
capacity is of its nature speculative, because it involves a
prediction as to the future, without the benefit of crystal balls,
soothsayers, augurs or oracles. All that the court can do is
to make
estimates, which is often a very rough estimate, of the present value
of loss. It has open to it, two possible approaches:
One is for the
judge to make a round estimate of an amount which seems to him to be
fair and reasonable. That is entirely a matter
of guesswork, a blind
plunge into the unknown. The other is to try to make an assessment,
by way of mathematical calculations,
on the basis of assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the
assumptions, and these may vary from
the strongly probable to the speculative.
[2]
It is manifest that either approach involves guesswork to a greater
or lesser extent. When it
comes to scanning the uncertain future, the
Court is virtually pondering the imponderable, but must do the best
it can, on the
material available even if the result may not
inappropriately be described as an informed guess, for no better
system has yet been
devised for assessing general damages for future
loss.
[6]
I must however emphasise that because of the
speculative nature of the enquiry, when parties elect
to approach the
court on a stated case and lump sum of money is claimed, as in the
present case, R6 653 636.00 from the public
coffers, it is incumbent
on the parties to place before the court sufficient evidence in the
form of admissions and other admitted
format.
[18]
The case of
National Justice Compania Naviera S.A v Prudential
Assurance Co Ltd
1993 (2) Lloyds Reports 68-81 set out the duty
and role of an expert.
1.
Expert evidence presented to the court
should be, and should be seen to be, the independent product
of the
expert uninfluenced as to form or content by the exigencies of
litigation.
2.
An expert witness should provide independent
assistance to the court by way of objective, unbiased opinion
in
relation to matters within his expertise. An expert witness should
never assume the role of an advocate.
3.
An expert witness should state the facts or
assumptions upon which his opinion is based. He should not
omit to
consider material facts which could detract from his concluded
opinion.
4.
An expert witness should make it clear when
a particular question or issue falls outside his expertise.
5.
If an expert opinion is not properly
researched because he considers that insufficient data is available,
then this must be stated with an indication that the opinion is no
more than a provisional one. In the case of where an expert
witness
who has prepared a report could not assert that the report contained
the truth, the whole truth and nothing but the truth
without some
qualification, that qualification should be stated in the report.
[19]
In
Schneider NO & Others v AA & Another
2010 (5) 203
WCC Davis, J stated at paragraph 211J-212B:
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusions of the expert, using his or her
expertise, are in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based
on his or her
expertise, as far as possible. An expert should not be a hired gun
who dispenses his or her expertise for the purpose
of a particular
case. An expert does not assume the role of an advocate, nor gives
evidence which goes beyond the logic which is
dictated by the
scientific knowledge which that expert claims to possess.
[20]
In
RAF v Zulu
[2011] ZASCA 223
the court dealt with the
approach to expert evidence that has to be adopted by the courts. The
court reaffirmed the principles
set out in
Michael v Linksfield
Clinic (Pty) Ltd
2001 (3) SA 1188
(SCA) that:
[14]
What is required in the evaluation of such evidence is to determine
whether and to what extent their opinions advanced
are founded on
logical reasoning.
[21]
The common theme is that courts must jealously protect their role and
powers. Courts are the
ultimate arbiters in any court proceedings.
The facts that caused the expert opinions in this case are vital. It
was supplied by
the plaintiff and corroborated by experts and
surrounding evidence. It is logic and sound.
[22]
The just and equitable calculation on the
quantum
for
the loss of past and future income of the plaintiff is to be found at
pages 279 to 283 of the Expert Notices, Volume 3 and dated
10 May
2022 to be R7 241 045.00.
[23]
Counsel
[8]
for both parties were
vocal and piercing on their sentiments regarding costs and the manner
in which the case was conducted. It
was to the extent that there was
even a dispute over the definition of the word “counsel”.
[24]
I share the frustrations of both counsel for the plaintiff and the
defendant that are in fact
frustrated by the same bureaucratic
system.
I will weigh in and conclude
on the discontent by stating that t
he
constitutional piety and virtue of litigation; or access to court and
justice, is a precious commodity.
[25]
Cases of this nature must be subjected and opened to settlement
negotiations and dispute resolution much earlier than at the door
of
the trial court. This abhorrent practise has implanted and rooted
itself into the justice system at an alarming and disgusting
cost to
the administration of justice and the depletion of the coffers of the
fiscus. It has become a tributary money-spinning
atrocity that must
be stopped.
[16]
Organs of state are not free to litigate as they please. The
Constitution has subordinated them to what Cameron J, in
Van
Niekerk v Pretoria City Council
, called ‘a new regimen of
openness and fair dealing with the public’. The very purpose of
their existence is to further
the public interest and their decisions
must be aimed at doing just that. The power they exercise has been
entrusted to them and
they are accountable for how they fulfil their
trust.
[17]
It is expected of organs of state that they behave honourably
– that they treat the members of the public with
whom they deal
with dignity, honestly, openly and fairly. This is particularly so in
the case of the defendant: it is mandated
to compensate with public
funds those who have suffered violations of their fundamental rights
to dignity, freedom and security
of the person, and bodily integrity
as a result of road accidents. The very mission of the defendant is
to rectify those violations,
to the extent that monetary compensation
and compensation in kind is able to. That places the defendant in a
position of great
responsibility: its control of the purse-strings
places it in a position of immense power in relation to the victims
of road accidents,
many of whom, it is well-known, are poor and
‘lacking in protective and assertive armour’.
[9]
[26]
ORDER
In
light of the above the following order is made:
1.
The defendant shall pay the plaintiff
the sum of R7 241 045.00 (Seven two four one zero four five million
rand) for his total past
and future loss of earnings.
2.
The payment shall be dealt with
mutatis
mutandis
by the plaintiff’s
attorneys as was ordered in the order by this Court dated 25 February
2022; to be protected and administered
in a Trust for the benefit of
the plaintiff.
3.
The defendant shall pay the plaintiff's
taxed or agreed party and party costs on High Court scale, inclusive
of the cost reserved
on 10 May 2022 and for the hearing on 2 August
2022 until date of this order; including but not limited to the costs
set out hereunder:
3.1
The reasonable attendance, preparation/qualifying and reservation
fees and expenses of the following experts, if any:
3.1.1
Dr L van der Merwe (Ophthalmologist);
3.1.2
Dr DK Mutyaba (Neurosurgeon);
3.1.3
L Grootboom (Clinical Psychologist);
3.1.4
Ms L van Zyl (Occupational Therapists);
3.1.5
Mr Ben Moodie (Industrial Psychologist); and
3.1.6
Mr J Sauer (Actuary).
4.
Payment of the capital amounts shall be made directly into the trust
account of the plaintiff's
attorneys of record by means of electronic
transfer, the details of which are the following:
ACCOUNT
HOLDER
:
VZLR
INC
.
BRANCH
:
ABSA
BUSINESS
BANK HILLCREST
BRANCH
CODE
:
632005
TYPE
OF ACCOUNT:
TRUST
ACCOUNT
ACCOUNT
NUMBER
:
[....]
Ref:
MAT 118200
5.
Interest shall accrue at the prevailing statutory rate per annum, on
date of this order,
compounded in respect of:
5.1
The capital of the claim, calculated at 90 (ninety) days from date of
this order;
5.2
the taxed or agreed costs, calculated at 90 (ninety) days from date
of taxation, alternatively date of settlement of such
costs.
M.
OPPERMAN, J
Appearances
For
plaintiff:
Mr. D. J. Marx
Instructed
by:
VZLR Attorneys
c/o Du Plooy Attorneys
Bloemfontein
corneb@vzlr.co.za/claudine@vzlr.co.za
MAT118200/V596
For
defendant:
Ms. J Gouws
Instructed
by:
State Attorneys, Free State
Bloemfontein
c/o The Road Accident
Fund
johandig@raf.co.za
Gouws/Matlabe G
[1]
Paragraph 10
of the Heads of Argument of the plaintiff dated 12 May 2022.
[2]
Paragraph
6 of the Heads of Argument of the defendant.
[3]
Paragraph
1.2 of the Heads of Argument of the plaintiff dated 12 May 2022.
[4]
Expert
Notices Bundel, Volume
3
(Dated 27 July 2022) at
pages
243
to 252 and at pages 271 to 283.
[5]
Expert
Notices Bundel, Volume 1 (Dated 12 May 2022) at pages 126 to 173 and
Volume 3 (Dated 27 July 2022) at pages 253 to 262.
[6]
Expert
Notices Bundle, Volume 3 (Dated 27 July 2022) at page 214 paragraph
6.6.
[7]
Expert
Notices Bundle, Volume 3 (Dated 27 July 2022) at page 226 paragraph
11.6.
[8]
Synonyms for
counsel: advocate, attorney, attorney-at-law, counselor (or
counsellor), counselor-at-law, lawyer, legal eagle at
https://www.merriam-webster.com/thesaurus/counsel
on 23 September 2022.
[9]
Mlatsheni
v Road Accident Fund
(418/2005)
[2007] ZAECHC 108
;
2009 (2) SA 401
(E) (6 December 2007).