Brief Summary

Tort — Road Accident Fund — Claim for loss of earnings — Appellant's claim for loss of earning capacity dismissed by court a quo — Appellant, a minor at the time of the accident, sustained injuries but was deemed capable of completing studies and competing in the job market — Legal issue regarding the nexus between the accident and the appellant's academic difficulties — Court a quo found no causal link between the accident and the appellant's cognitive deficits, leading to dismissal of the claim — Appeal upheld, with the court finding that the dismissal was incorrect and that the appellant's psychological vulnerability warranted consideration in the assessment of damages.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal to the Gauteng Division of the High Court, Pretoria, against an order of the court a quo (Phahlane J) which had dismissed the plaintiff’s claim for past and future loss of earnings / loss of earning capacity arising from a motor vehicle accident.

The appellant was Mr Dail Nathan Jonker, the plaintiff in the court a quo. The respondent was the Road Accident Fund (RAF), the defendant in the court a quo. The appeal was pursued with leave and was not opposed, as the RAF was not represented at the appeal hearing.

The procedural history reflected that the RAF had previously conceded the merits of the claim. General damages were settled in the amount of R450 000.00, and the RAF furnished an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 in respect of future medical expenses. The only remaining dispute that reached final determination in the court a quo concerned loss of earnings / loss of earning capacity, which was dismissed on 22 July 2019, prompting the present appeal.

The dispute fell within the general subject-matter of delictual damages against the RAF, specifically the quantification and proof of future loss of earning capacity where the claimant alleged that accident-related psychological sequelae affected educational progression and labour market participation.

2. Material Facts

The material facts began with a motor vehicle accident on 24 September 1999. At the time, Mr Jonker was five years old and a passenger in the insured vehicle. It was not in dispute that the RAF conceded liability on the merits, and there was no dispute that he sustained injuries in the accident.

It was common cause from the expert material that Mr Jonker sustained a minor head injury with loss of consciousness, and fractures to the left tibia and right distal tibia. The joint minutes of the orthopaedic surgeons recorded agreement that these injuries and their physical or psychological sequelae would not hamper him from completing studies and competing as an IT specialist.

The experts were also agreed, in the joint minutes of the clinical psychologists, that Mr Jonker presented with symptoms consistent with a major depressive disorder related to the accident and symptoms of post-traumatic stress. They agreed that he had been rendered psychologically more vulnerable as a result of the accident and its sequelae, and that these difficulties contributed to a diminished quality and enjoyment of life.

The neurosurgeon’s assessment (October 2016) recorded that Mr Jonker completed each grade at school, achieved two distinctions in Grade 12, and was studying a BSc Information Technology degree, having failed certain subjects in 2016. The neurosurgeon concluded that, from a neurosurgical perspective, the accident would not influence life expectancy, workability in the labour market, or retirement age.

The occupational therapists’ joint minutes (2016) recorded that Mr Jonker was in his third year of a BSc IT degree with one subject remaining at the time of assessment, that he met the physical demands of his employment as a software developer, and that he might experience lower back pain while working.

The educational psychologist’s report was material to the dispute because it addressed the relationship between the accident and academic performance. She recorded that, given the absence of a significant head injury, one would expect his cognitive abilities and academic potential to have remained essentially unchanged, and that his academic difficulties were most likely related to psychological factors. She further recorded that his involvement in the accident and its psychological impact possibly played at least some role, although the academic difficulty was not considered directly related to the accident.

A further material fact concerned the parties’ procedural agreement regarding expert evidence. In a pre-trial minute, the parties agreed that where joint minutes had been compiled, the matter would be argued on those joint minutes and the parties would be bound by them in accordance with the principles articulated in Glenn Marc Bee v The Road Accident Fund. Where the industrial psychologists disagreed in their joint minute, the parties led viva voce evidence from those experts.

The key disputed factual issue, as it emerged through the industrial psychologists’ evidence and the court a quo’s findings, concerned whether Mr Jonker’s delay in completing his degree and his delayed entry into the open labour market were causally connected to accident-related sequelae, and how such risks should be accommodated through contingency deductions.

3. Legal Issues

The central legal question was whether the court a quo was correct to dismiss the claim for loss of earnings / earning capacity, given the expert joint minutes and the evidence led, and in particular whether the court a quo properly treated the agreed expert evidence and properly assessed the probability of accident-related impact on earning capacity.

This required the court to address issues involving the application of law to fact and a value judgment inherent in quantifying future loss. The appeal engaged (i) the legal effect of joint minutes and the extent to which a court may disregard matters recorded as agreed between experts, (ii) the proper approach to evaluating expert opinion, and (iii) the principles governing the quantification of future loss of earnings, including the discretionary determination of contingency deductions in an inherently speculative enquiry.

4. Court’s Reasoning

The appellate court approached the matter by emphasising established principles on the assessment of expert evidence. It restated that the general principle is to determine whether, and to what extent, expert opinions are founded on logical reasoning, and whether the judicial standard of proof has been met. In this connection, the court referenced authority cautioning against undue reliance on isolated expert statements and emphasising that expert evidence must be weighed as a whole, with the final evaluative decision remaining the court’s responsibility.

A further critical component of the reasoning concerned the binding nature of expert joint minutes. Referring to Glenn Marc Bee v The Road Accident Fund, the court highlighted the principle that where experts meet and agree upon facts, a litigant may not repudiate that agreement unless it does so clearly and timeously, and that in the absence of such repudiation, agreed facts in joint minutes have the same status as facts common cause on the pleadings or agreed in a pre-trial conference. The appellate court considered this principle relevant because the parties had expressly agreed that they would be bound by joint minutes and would argue accordingly.

Against that framework, the court examined the court a quo’s approach. The court a quo had concluded that there was no nexus between the accident and the alleged cognitive deficits and memory difficulties, and that the delay in finalising university studies and entering the job market could not be attributed to an accident that occurred 19 years previously. The appellate court, however, considered that the court a quo had correctly recorded the parties’ agreement to argue on joint minutes but nonetheless disregarded a material aspect of the industrial psychologists’ joint position, namely their agreement that Mr Jonker had psychological vulnerability due to the accident, and that the effect of such vulnerability on earnings capacity could be addressed through an appropriate contingency deduction.

The appellate court then situated the dispute within the broader law of damages for loss of earning capacity. It reiterated that the enquiry is inherently speculative, involving prediction of future events. It relied on authority recognising that even where actuarial calculations are used, the court is not bound by “inexorable actuarial calculations” and retains a large discretion to award what it considers right, including by making discounts for contingencies and vicissitudes of life. It also noted judicial recognition that the assessment of contingencies necessarily includes an arbitrary element because the future cannot be foretold with certainty.

Applying these principles, the court accepted that there was a considerable degree of speculation in quantifying Mr Jonker’s future loss, particularly given the educational psychologist’s view that academic difficulties were most likely related to psychological factors, and that the accident possibly played some role. The court nonetheless identified factors it considered relevant to the contingency assessment: Mr Jonker’s young age at the time of the accident and at trial, the assumed working life remaining to retirement, and the diagnosis and symptom profile recorded (including mood disorders, irritability, memory and anxiety difficulties, psychological vulnerability, truncation of career options, possible time off work for treatment, and possible delay in entering the open market). The court also considered that Mr Jonker had not received intervention or treatment for the major depressive disorder and post-traumatic stress disorder since the accident.

From these considerations, the court reasoned that a “normal” contingency deduction (using the sliding scale approach mentioned in argument) would be 20% in the uninjured scenario. Having regard to the identified risk factors and the industrial psychologists’ recommendation for a substantially higher post-accident contingency, the court selected a post-accident contingency deduction of 40%, resulting in a contingency differential of 20%, which it characterised as conservative and appropriate in the circumstances. On that basis, the court determined that the amount of R1 338 752.52 constituted fair compensation for future loss of earning capacity.

5. Outcome and Relief

The appeal was upheld.

The order of the court a quo dismissing the claim for loss of earnings / earning capacity was set aside and substituted with an order directing the RAF to pay R1 338 752.52 to the appellant in respect of future loss of earning capacity.

The RAF was further ordered to pay the appellant’s costs of the appeal.

Cases Cited

Glenn Marc Bee v The Road Accident Fund 2018 (4) SA 366 (SCA).

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA).

Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA).

Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A).

Legal Assurance Company Limited v Botes 1963 (1) SA 608 (A).

Goodall v President Insurance Co Ltd [1978] 1 All SA 101 (W).

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(4)(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the court a quo’s dismissal of the claim for loss of earning capacity was incorrect in circumstances where the parties had agreed to be bound by expert joint minutes and where the industrial psychologists’ joint position recorded that the claimant’s accident-related psychological vulnerability could appropriately be addressed through contingency deductions.

The court held further that, given the inherently speculative nature of predicting future earnings, the appropriate approach was to determine fair compensation by exercising a discretion informed by the expert material and by applying suitable contingencies, rather than dismissing the claim outright. On the facts identified as material, a post-accident contingency deduction of 40% (and a differential of 20%) was found to be conservative and appropriate, justifying an award of R1 338 752.52 for future loss of earning capacity.

LEGAL PRINCIPLES

The evaluation of expert evidence requires scrutiny of whether the opinions expressed are founded on logical reasoning, and expert evidence must be weighed as a whole, with the court retaining responsibility for the final evaluative determination.

Where experts engaged by the parties meet and reach agreement recorded in joint minutes, and where there is no clear and timeous repudiation, the agreed matters stand as binding, enjoying the status of facts common cause or agreed at a pre-trial conference, and the litigation is conducted on that basis.

The quantification of damages for loss of earnings / earning capacity is inherently speculative, involving a prediction of future events. Even when actuarial calculations are presented, the court is not bound by them and retains a wide discretion to award what is considered fair, including by making allowances for contingencies and the vicissitudes of life, with the appropriate discount varying according to the circumstances of the case.

Jonker v Road Accident Fund (A43/2021) [2022] ZAGPPHC 460 (27 June 2022)