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[2022] ZAFSHC 342
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Dorcas v Road Accident Fund (543/2020) [2022] ZAFSHC 342 (5 December 2022)
HEADNOTE:
JUDGE
– LOSS OF INCOME – EXPERT WITNESS
Motor
collision – Serious bodily injuries – Experts relying
on plaintiff’s version – Industrial
psychologist not
following up on reasons for departure from employment – No
evidence injuries affecting retirement
age – Current
employment status better than before injuries – Diminished
earning capacity of 10%.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
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
Case
number: 543/2020
In
the matter between:
MARAMBA
NYASHA DORCAS:
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
16
AUGUST 2022
CORAM:
MATHEBULA, J
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the
parties’ legal representatives by email and release to SAFLII
on 05 DECEMBER 2022. The
date and time for hand-down is deemed to be
05 DECEMBER 2022 at 13H00.
[1]
In this matter the plaintiff sustained serious bodily injuries in a
motor vehicle collision on 7 August
2017. As a result, the plaintiff
instituted a claim for damages under different headings. A
substantial part of the claim was settled
before my brother Loubser
on 4 May 2022. The only issue for determination is the value of the
plaintiff’s claim for future
loss of earnings and earning
capacity. I pause to mention that the defendant has made an interim
payment under this heading which
must be taken into consideration in
the final calculation of the appropriate award. Agreeing to pay in
this regard is an acceptance
of liability and that the plaintiff has
established entitlement thereto.
[2]
The plaintiff gave evidence concerning the circumstances leading to
her injuries and their effect in
daily life activities. This is
largely common cause between the parties. Especially the effect on
her productivity as an employee.
The onus is therefore on her to
prove that she is entitled to the amount of damages claimed. I will
proceed to set out in some
detail her evidence and that of experts
called to fortify her assertions.
[3]
At the time of the collision the plaintiff was twenty-five (25) years
old and employed by One World
Media as a Public Relations Specialist.
Her duties were mainly media relations of her employer which
constituted eighty (80) percent
and twenty (20) percent were
meetings. Her job required extensive travelling both locally and
internationally. Because she was
employed at a medium sized firm, she
functioned without an assistant. She was hands on. Her main goal was
working to become an
independent consultant in the future.
[4]
The injuries sustained and treatment received is
also common cause. After the collision her employer was
supportive.
She simply stated that she went back to her employer but never got
her job back after spending about four (4) months
on sick leave. She
could not fulfil her duties anymore. This important aspect was not
dealt with adequately and will be discussed
at length in the
succeeding paragraphs. As a result, she was unemployed for a period
of two (2) years. Her monetary claim under
the heading past loss of
earnings was admitted by the defendant. During this period, she
enrolled for and acquired a Digital and
Marketing Certificate offered
by Google.
[5]
She is currently employed as a Digital Campaign Manager by Media 24
with effect from 1 July 2019. The
contract of employment clearly
stipulates that it will continue until the retirement age of sixty
(60) or until it is terminated
for other reasons. At her current
position, ninety (90%) percent of her duties are performed while
sitting down in front of a computer
screen. She described her work
environment as a fast paced, pressurised and desk bound job in-front
of a computer screen. Since
her employment she has been working from
home in line with the Covid-19 policies of her employer. This changed
about two (2) months
ago as they were required to physically report
at the office twice a week. The changed circumstances have negatively
impacted her
situation because she cannot sit over long periods and
rest her leg.
[6]
As previously stated the plaintiff called experts who examined and
assessed her on different occasions.
Their evidence is to a
significant extent a repetition of what is contained in their
reports. They seem to rely extensively on
what the plaintiff narrated
to them. They dealt with her prospects for promotion and that
although she intended to work until age
of sixty-five (65), she will
now not do so primarily because of her injuries sustained from the
accident. The one aspect that stand
out is that those reports are
fairly old and somehow the plaintiff did not see the need to refresh
them for the purposes of this
hearing. They were both sourced about
three (3) years ago about a collision that occurred in 2017.
[7]
The evidence of the plaintiff about the circumstances that led to the
termination of her employment
at One World Media is somewhat
unsatisfactory. This is important because the plaintiff carries the
burden to show that the employment
relationship was terminated as a
direct result of the collision and her injuries. She simply testified
that she went back and did
not get her job back. This aspect was also
not followed by the Industrial Psychologist primarily from collateral
sources. Counsel
for the plaintiff downplayed it as a factor that it
does not advance or detract anything from her case. It does. It has
an important
bearing on the case to demonstrate the extent to which
her injuries served as an impediment to her continued employment at
the
aforementioned entity. Her version on this aspect is
unsatisfactory and did not possess a ring of truth, candour and
frankness.
This court is not satisfied that evidence shows that she
left her employment because of the injuries she sustained.
[8]
This brings into the fore the consideration whether the injuries she
sustained did have any effect on her
retirement age. The evidence and
surrounding circumstances shows that they played no role at all. The
plaintiff is a confident,
well-read and spoken person with great
ambitions for her future life. She is pursuing academic
qualifications with determination
and passion in her chosen field.
It is safe to conclude that in this
environment the plaintiff could not
have continued working beyond the
retirement age of sixty (60) as stipulated in clause 1.2 of her
employment contract. There is
no conclusive evidence that she finds
it impossible to comply with the intensity of work. There is no
independent evidence that
the genesis thereof is the injuries she
sustained. In clause 7.1 of the aforementioned employment contract
the plaintiff confirmed
that she is medically fit to comply with the
requirements of the job. Either she lied then or she is doing so now.
Somehow the
plaintiff shied away from presenting evidence of her
appraisal performance at her current employment. This could have
assisted
to shed some light about her current difficulties to perform
her duties.
[9]
There is also no evidence that she is in some kind of sheltered
employment. Her evidence is that she
has been able to hide away her
injuries from her employer for fear of appraisal. This far she has
been able to get away with it.
If her injuries were so intense, they
would have given her away in many ways. As to why she would go into
this elaborate dishonest
venture boggles the mind. It cast a dark
cloud over her as a witness. This conduct is plain disingenuous.
Evidence about her performance,
unacceptable absence from work due to
illness and physical ability to attend to work are all aspects that
are missing in her case.
The plaintiff rather conveniently, in her
papers, left out the payslips of One World Media and attached those
of her current employer.
They too, indicate that her emoluments
particularly commission earned increased instead of dwindling. That
speaks to good performance.
[10]
What stand out is that the plaintiff must prove on a preponderance of
probabilities the causal link between the
accident and the damages.
The pertinent question is whether the defendant must compensate the
plaintiff for her loss of income
or earning capacity. It was agreed
between the parties that the report of Dr Versfeld pertaining to her
present condition and prognosis
would be tendered in evidence without
proof.
[11]
The vital role of an expert in our law is well-known. It is to assist
the court to come to a just decision. The
opinion of an expert must
make legal sense and be based on the facts. This passage in
Schneider
NO and Others v AA and Another
is illustrative of the approach
followed in our courts. It reads as follows: -
“
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 conclusion of the expert, using his or her
expertise, is 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 possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes 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”.
[1]
[12]
The two (2) experts that were called seemed to be leaning exclusively
on the side of the plaintiff. It is the duty
of the plaintiff to put
before her experts all relevant information before them so that a
proper evaluation can be made. An opinion
can only be underpinned by
proper reasoning if the facts are correct. Despite being confronted
by these, the experts found it difficult
to concede. The court
ventures to say that if proper facts
inter alia
about her age
of retirement were put before experts, their opinion on this aspect
would have been different.
[13]
Counsel for the defendant contended that the plaintiff has failed to
establish that she suffered any loss of future
earnings. The
defendant correctly conceded the existence of diminished earning
capacity. The legal position is trite that the capacity
to earn is
part of a person’s estate. Therefore, a person must be
compensated for the loss or impairment if it has the effect
of
diminishing his/her estate.
[2]
In order to qualify it simply means that the capacity to earn must no
longer be there.
[14]
This court agrees with the contention above for the reasons that were
enumerated in the analysis of the mosaic
of evidence on behalf of the
plaintiff. It has already been stated that in assessing the expert
evidence, there must be satisfaction
that his/her opinion had a
foundation in logical reasoning.
[3]
A court must be content that the expert has considered comparative
rules and benefits and has “reached a defensible conclusion”.
On this aspect and because of the paucity of the facts, that is not
the case with the experts called for the plaintiff. Despite
clear
pointers that their conclusions were also based on wrong facts, the
two experts were hell-bent to rely on their reports.
[15]
The point is that despite her injuries, the plaintiff has not allowed
it to hinder her from progressing in her
work. Her academic
achievement is unaffected and there is no evidence that it will be in
the future. The plaintiff is already doing
work of sedentary nature.
With her ever improving qualifications, it can be accepted that she
will not have to do work which requires
physical strength. Even in
her previous employ, she only did that because of the size of her
company. The evidence shows that it
is not the case with her
counterparts who are employed in much bigger companies.
[16]
It is trite that once the plaintiff has established that her injuries
have somewhat compromised her earning capacity,
she is entitled to
damages. The approach of the court quoted in a long line of cases was
articulated in
Herman v Shapiro & Co
in the following
terms: -
“
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”.
[4]
[17]
When it comes to the actuarial assessment report which largely serve
as a tool to assist the trial court, Nicholas
JA in
Southern
Insurance Association Ltd v Bailey NO
said the following: -
“
Where the method
of actuarial computation is adopted, it does not mean that the trial
Judge is "tied down by inexorable actuarial
calculations".
He has "a large discretion to award what he considers right"
(per HOLMES JA in Legal Assurance
Co Ltd v Botes
1963
(1) SA 608
(A)
at
614F). One of the elements in exercising that discretion is the
making of a discount for "contingencies" or the
"vicissitudes of life". These include such matters as the
possibility that the plaintiff may in the result have less
than a
"normal" expectation of life; and that he may experience
periods of unemployment by reason of incapacity due to
illness or
accident, or to labour unrest or general economic conditions. The
amount of any discount may vary, depending upon the
circumstances of
the case. See Van der Plaats v South African Mutual Fire and
General Insurance Co Ltd
1980
(3) SA 105 (A)
at
114 - 5. The rate of the discount cannot of course be assessed on any
logical basis: the assessment must be largely arbitrary
and must
depend upon the trial Judge's impression of the case”.
[5]
[18]
This brings us to the controversial issue of contingencies. In
Goodall v President Insurance Co Ltd
the court said the
following: -
“
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanack,
is not numbered among the qualifications for judicial office”.
[6]
[19]
It is trite that the court has a wide discretion on this issue and
contingencies cover a wide range of considerations
peculiar to each
case. Some of the factors to be considered include loss of
employment, promotion, career path but for the injury
and career path
having the injury, the age of retirement. These must be taken into
account in making deductions in the injured
and uninjured earnings.
The exceptional circumstances of this case is that she has made full
recovery. She is no longer at risk
to develop major thrombo-embolic
complications. It is a fact that the injuries have not affected her
life expectancy. Her current
employment status is better than before
her injuries with more remuneration and she is not in sheltered
employment. There are,
of course, some minor capacity loss sustained
as a result of her injuries. Given all the factors enumerated above,
I agree with
counsel for the plaintiff that her diminished earning
capacity must be calculated at only ten (10%) percent.
[20]
In the light of all the evidence, the following Order is made: -
20.1.
The Defendant shall pay to the Plaintiff
the capital amount of R 1 318 266.40 (One million, three
hundred and eighteen
thousand, two hundred and sixty-six rand and
forty cents only) in respect of the balance of the Plaintiff’s
claim for delictual
damages sustained, which is calculated as
follows:
20.1.1.
Past loss or earnings: R 356 081.00
20.1.2.
Future loss of earnings:
R 1 962 185.40
TOTAL: R
2 318 266.40
20.1.3.
Less interim payment in respect of loss:
R 1 000 000.00
TOTAL: R
1 318 266.40
20.2.
Payment shall be effected within 180 (one
hundred and eighty) days from date of this order being granted.
20.3.
Defendant shall pay the Plaintiff’s
taxed or agreed High Court party and party costs to date, which will
include the following,
but will not be limited to, subject to the
taxing master’s discretion:
20.4.
The costs in respect of the preparation of
the medico legal reports of the following experts, served in terms of
the High Court
Rules:
20.4.1.
Dr. Botha (Internis / Specialist
Physician);
20.4.2.
Ms. Basson (Occupational Therapist);
20.4.3.
Ms. Grove (Industrial Psychologist);
20.4.4.
Mr. Whittaker (Actuary).
20.5.
The costs relating to the reservation,
preparation, travelling, accommodation and consultation with legal
representatives including
counsel and attendance at court of the
following experts on the 16
th
of August 2022:
20.5.1.
Ms. Basson (Occupational Therapist);
20.5.2.
Ms. Grove (Industrial Psychologist);
20.6.
The costs of counsel for trial on the
16
th
-
17
th
of August 2022.
20.7.
Any costs attendant upon the obtaining of payment of the
capital amount and the taxed costs.
20.8.
Subject to the following conditions:
20.9.
The Plaintiff shall, in the event that costs are not agreed,
serve the notice of taxation on the Defendant’s attorney of
record;
and
20.10.
The Plaintiff shall allow the Defendant 14
(Fourteen) court days to make payment of the taxed costs.
20.10.1.
No
interest will be payable, except in the event of default of payment
of such costs, in which case interest will be payable
tempora
morae
at the prevailing rate of interest in terms of the
Prescribed Rate of Interest Act from date of taxation.
20.11.
The capital and the taxed or agreed costs shall be paid
directly to the Plaintiff’s attorneys of record with the
following
particulars:
NAME OF ACCOUNT:
Munro Flowers & Vermaak Trust Account
BANK:
Nedbank
BRANCH CODE:
187505
Universal
branch Code:
198765
BRANCH:
Northern Gauteng
ACCOUNT NO:
[....]
REFERENCE:
MS K Vermaak/tgb/MARAMBA (M.4750)
M.A.
MATHEBULA, J
On
behalf of the Plaintiff:
Adv. H. Schouten
Instructed
by:
Munro, Flowers & Vermaak Attorneys
C/O
Webbers Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Ms. J. Gouws
Instructed
by:
STATE ATTORNEY
BLOEMFONTEIN
\TKwapa
[1]
2010
(5) SA 203
(WCC) at 211J – 212B.
[2]
Dippenaar v Shield Insurance Co Ltd
1979 (2) SA 904
(A) at 917B.
[3]
Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE).
[4]
1926 TPD 367
at 379.
[5]
1984 (1) SA 98
(A) at 116G – 117A.
[6]
1978 (1) SA 389
(W) at 392H – 393A.