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[2022] ZAMPMBHC 12
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Z.N.N v Road Accident Fund (A104 / 2019) [2022] ZAMPMBHC 12 (10 March 2022)
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THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: A104 / 2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
10
March 2022
In
the matter between:
Z[....]
N[....]
N[....]
APPELLANT
and
ROAD
ACCODENT
FUND
RESPONDENT
Coram:
RATSHIBVUMO J (MASHILE J AND ROELOFSE AJ CONCURRING)
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email. The date and time for
hand-down is deemed to be 10H00 on 10 March 2022.
J
U D G M E N T
RATSHIBVUMO
J:
[1]
Background.
This
is an appeal against the judgment of Ndlokovane AJ (
court a quo
)
of this Division in which she awarded damages for future loss of
earning capacity to the Appellant, in favour of the minor child
who
was involved in a motor vehicle collision, in the amount of
R1 677 121.00 plus interest at 10.5%. Costs were also
awarded in the Appellant’s favour. At the heart of the appeal
is the contention that the court
a quo
erred in making
reference to expert report authored by an Educational Psychologist
(Dr. Pitsoane) who was not called as a witness.
Had the court
a
quo
excluded this evidence as it should have done, so goes the
argument, it would have awarded the damages in line with the scale
recommended
by the Appellant’s experts which was higher than
what the Respondent’s experts had recommended. For reason that
Dr.
Pitsoane did not give oral evidence, the Appellant argues that
her evidence should have been ruled inadmissible for being hearsay.
[2]
It is
apposite therefore to unpack how the said evidence or report was
dealt with during the trial. Mr. Shai represented the Respondent
while Mr. Moeti appeared for the Appellant. The following appears
from the record of proceedings after a brief adjournment:
[1]
Mr. Shai:
My Lady I have conferred with my briefing attorney on the issue of
the Educational Psychologist
and the brief that I received from them
is to make an application for the calling of Dr. Pitsoane, and Dr.
Pitsoane My Lady is
not available up until 12
th
of July.
Then if it is permissible,
we will actually move for a
postponement for us to call Dr. Pitsoane. And then alternatively My
Lady, the report by Dr. Pitsoane
is in and we will make an
application for us to be allowed to use the contents of that report
My Lady in our argument
if the postponement is going to be
refused My Lady.
Court:
Mr. Moeti.
Mr. Moeti:
As the court pleases My Lady. I think my learned friend has just made
two submissions to the court
and on the very same breath I think he
has retracted on the first proposition the one of postponement which
means that the only
proposal that stands is the later that he
referred to as going to argue on the said educational psychologist
report My Lady. And
as such My Lady and if that is the stance my
learned friend want to take
, I am happy to take it as well so that
they can argue on the particular report.
Court:
You do not have any objection
to him…
(intervenes)
Mr. Moeti:
No objection
if My Lady we may proceed.
Court:
You do confirm that that report was not (indistinct) in court,
it
came you are aware of it, you have been given a proper notice?
Mr. Moeti:
That much I can confirm My Lady. However, My Lady, that does not on
its own mean that (inaudible).
It is there before court however it
does not necessarily mean that the Plaintiff accede to the said
(inaudible).
[My emphasis].
[3]
The
acceptance of reports without their authors giving oral evidence in
court is not unheard of in civil trials. In fact, the Appellant’s
counsel alerted us in his heads of argument that a number of expert
reports were to be admitted on record as evidence without their
authors testifying, with the exception of a few.
[2]
This agreement may have been reached just before the commencement of
the trial as it appears nowhere in the pleadings or in the
transcribed record. In fact, what appears in the pre-trial minutes
held some three months prior to the trial date paints a different
picture where under paragraph 6, the following is recorded:
[3]
“
6. Which experts
witness does the Defendant require the Plaintiff to subpoena for the
trial on 25 March 2019?
Whichever experts the
Plaintiff deems fit to prove her case. [This points to the fact that
he experts referred to above would be
called to testify]
[4]
The source for the practice whereby parties dispense with the need
to
call witnesses to give oral evidence could be rooted in Rule 38(2) of
the Uniform Rules which provides,
“
2. The witnesses
at the trial of any action shall be orally examined, but a court may
at any time, for sufficient reason, order
that all or any of the
evidence to be adduced at any trial be given on affidavit or that the
affidavit of any witness be read at
the hearing, on such terms and
conditions as to it may seem meet: Provided that
where it appears
to the court that any other party reasonably requires the attendance
of a witness for cross-examination,
and such witness can be
produced,
the evidence of such witness shall not be given on
affidavit
.” [My emphasis].
[5]
Dr. Pitsoane’s report does not meet the requirements in Rule
38(2) above and as such, the Appellant could have challenged its
admissibility just on this rule alone. For reasons that will be
uncovered hereinafter, the Appellant chose not to do so. First, like
all other reports handed in as evidence in this trial, it
is not an
affidavit as it was not made under oath. For the Appellant to turn a
blind eye on this reasoning either during trial
or now on appeal is
comprehensible as this would have similar impact on its own reports
too. That would mean that all those reports
for which the authors did
not give oral evidence should be excluded, and this was not viable
for the Appellant.
[6]
Secondly, the Appellant could have opted to exercise its right to
cross examine the witness. Once a party in a litigation makes it
clear that it wants to cross examine the witness, the court is
obliged not to accept the affidavit (and in
casu
, the report)
made by him/her. There was an application for a postponement by the
Respondent in order to secure the presence of
Dr. Pitsoane,
alternatively for her report to be admitted and counsel for the
Appellant was given an opportunity to respond. In
response, counsel
for the Appellant indicated that he had no objection to the admission
of that report, choosing rather to present
an argument on the content
thereof. The Appellant did not argue against the admission of the
report or advance the hearsay theories
before the court a quo. These
were only argued for the first time now on appeal.
[7]
It was for
that reason that the court a
quo
concluded in its judgment that “the report in question [by Dr.
Pitsoane] forms part of the Defendant’s bundle before
[it] and
it was not objected to by the Plaintiff, and that the only objection
only related to the witness who attended court [Mr.
Makahane].”
[4]
Had the Appellant raised the objections it raises now on appeal or
indicated the desire to cross examine the witness before the
court
a
quo
,
chances are that the matter would have been postponed to allow the
witness to be present in court. Failure to raise these at an
opportune time is unfair to the Respondent who would now miss the
opportunity to call this witness. It is therefore my respectful
view
that the court
a
quo
cannot be faltered in making reference to this report as it did.
[8]
On the other hand, the exclusion
of the contended report would not bar the trial court from evaluating
evidence that was properly
before it to reach the conclusion as it
did. It appears from the report of the Appellant’s Educational
Psychologist, Dr.
Phetla, that the child was in Grade 2 when the
accident happened in 2014. Then, she was nine years old. She did her
Grade 1 in
2012 and repeated it in 2013. No school results for her
performance prior to the accident were made available in the report.
Her
older siblings dropped off from school in Grade 10, 8, 7, and 6
respectively, and like their mother, they are all unemployed. Only
two siblings are still studying and doing fairly better. One is a
15-year-old doing Grade 9 and a 22-year-old who is in tertiary.
No
details about his studies were provided. Information such as the name
of the institution, the field of study or his performance
in various
grades, remains unknown. I am of the view that even on the
Appellant’s expert’s reports including the supplementary
reports, the court
a quo
’s conclusion and the award
granted were properly reached when one looks at the role of the court
when it comes to experts’
evidence.
[9]
The court’s
approach to experts’ evidence has been described by Nicholaas
JA in
Southern
Insurance Association Ltd v Bailey NO
[5]
as follows,
“
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 an estimate, which is
often a
very rough estimate, of the present value of the 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. It is manifest that either
approach involves guesswork to a greater
or lesser extent. But the
Court cannot for this reason adopt a
non possumus
attitude
and make no award. See
Hersman
v
Shapiro &
Co
1926 TPD 367
at 379
per
STRATFORD J:
‘
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 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’
[10]
In
Michael
and Another v Linksfield Park Clinic PTY LTD
[6]
it was
held,
“
[I]t
is perhaps as well to re-emphasise that the question of
r
easonableness and negligence is
one
for the Court itself to determine on the basis of the various, and
often conflicting, expert opinions presented. As a
rule, that
determination will not involve considerations of credibility but
rather the examination of the opinions and the analysis
of their
essential reasoning, preparatory to the Court's reaching i
ts
own conclusion on
the issues raised.”
This essential difference between the scientific and the judicial
measure of proof was aptly highlighted
by the House of Lords in the
Scottish case of
Dingley v The
Chief Constable, Strathclyde Police
200
SC (HL) 77 and the warning given at 89D - E that:
‘
(o)
ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead of assessing, as a Judge must do, where the
balance of
probabilities lies on a review of the whole of the evidence.’
[11]
It would
appear that the court
a
quo
was
alive to its role when it quoted
[7]
and relied on
MS
v Road Accident Fund
[8]
where Fisher J held
“
36. The evaluation
of the amount to be awarded for the loss does not involve proof on a
balance of probabilities. It is a matter
of estimation. Where a court
is dealing with damages which are dependent upon uncertain future
events - which is generally the
case in claims for loss of earning
capacity - the plaintiff does not have to provide proof on a balance
of probabilities (by contrast
with questions of causation) and is
entitled to rely on the court’s assessment of how he should be
compensated for his loss.
39. Actuaries rely on
look-up tables which are produced with reference to statistics. Such
statistics are derived,
inter alia,
from surveys and studies
done locally and internationally in order to establish norms,
representativeness, and means. From these
surveys and studies,
baseline predictions as to the likely earning capacity of individuals
in situations comparable to that of
the plaintiff are set. These
baseline predictions are then applied to a plaintiff’s position
using various assumptions and
scenarios which should properly be
gleaned from proven facts.
40. The general approach
is to posit the plaintiff, as he is proven to have been in his
uninjured state and then to apply assumptions
as to his state with
the proven injuries and their sequela. The deficits which arise
between these scenarios (if any) are then
translated with reference
to the various baseline means and norms used. These exercises are
designed with the aim of suggesting
the various types of employment
which would hypothetically be available to the plaintiff in both
states. The loss would then be
calculated as the difference in
earnings derived between the pre- accident (or pre morbid state as it
is often called) and post-
accident or post morbid state.
41. In this exercise,
uncertainty as to the departure from the norms, such as early death,
the unemployment rate, illness, marriage,
other accidents, and
countless other factors unconnected with the plaintiff’s
injuries which would be likely, in the view
of the court, to have a
bearing both on the established baseline used by the actuary and on
the manner in which the plaintiff,
given his particular
circumstances, would fare as compared the established norm are dealt
with by way of “contingency”
allowances. Given the
purported mathematical and percentage based inquiry of the actuarial
assessment, these contingencies are
expressed in percentages which
are brought to bear on the mathematical reflections which have been
derived from the assumptions
used. In essence the platform for
assessment is no more than one a technique which is offered to the
court in a bid to allow it
to exercise its discretion. This mechanism
should not be understood as being prescriptive or confining of the
assessment that the
court is called on to make. The court has a wide
discretion as to the assessment of loss. This task is judicial and is
founded
to a large extent on experience, intuition, and general
right-thinking.”
[12]
Given the above, I am of the view that the court
a quo
did not
misdirect itself in evaluating the evidence before it. It follows
therefore that the appeal should be dismissed. There
shall be no
costs order as the appeal was unopposed.
[13]
For these reasons I propose the following order
14.1 The
appeal is dismissed.
14.2
No order as to costs.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree
H
ROELOFSE
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
B
MASHILE
JUDGE
OF THE HIGH COURT
FOR
THE APPELLANTS
: ADV TSHAVHUNGWA
INSTRUCTED
BY
: NGOMANA & ASSOCIATES ATTORNEYS
NELSPRUIT
FOR
THE RESPONDENT:
: NO APPEARANCE
DATE
HEARD:
: 04 FEBRUARY 2022
JUDGMENT
DATE:
: 10 MARCH 2022
[1]
See p.270-272 of the transcribed record.
[2]
See para 1.2 of the Appellant’s heads of argument.
[3]
See p.336 of the paginated bundle.
[4]
See para 10 of the court a quo’s judgment.
[5]
1984 (1) SA 98
(A) at p.113G-H and p.114A-B.
[6]
2001 (3) SA 1188
(SCA) para 34 & 40.
[7]
See para 13 of the court
a
quo
’s
judgment.
[8]
[2019] 3 All SA 626
(GJ) para 36-41.