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[2021] ZALMPPHC 62
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Kganyago v Road Accident Fund (HCAA 18/2019) [2021] ZALMPPHC 62 (16 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO: HCAA 18/2019
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
KGANYAGO:
MG o.b.o KGANYAGO KGABO
APPELLANT
and
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
TSHIDADA,
AJ
1.
This is an uncontested appeal against the judgment and order of
Semenya J, upon
which the learned Judge granted leave to appeal to
the Full Court of this division on the 13
th
of
August 2019. The Order was granted on the 28
th
of
June 2019 in respect of the future loss of earnings amounts awarded
to the minor child in the matter.
[1]
2.
The Appellant legally represented by Mashabela Attorneys Incorporated
instituted
a personal injuries claim on behalf of her minor child
against the respondent (the “Road Accident Fund”), in her
representative
capacity as a biological mother and natural guardian
of Kganyago Kgabo, herein referred to as the minor, born on 19
December 2006.
3.
The Appellant instituted a claim to recover damages suffered by her
minor child
and/or for compensation of her minor child by the
Respondent for damages suffered as a result of the injuries the minor
sustained
when he was knocked down by a motor vehicle which was then
driven by Mafonko Moetjie on the 3
rd
April 2012, whilst
the minor was a pedestrian.
4.
It is apparent from the record that prior to the
court a quo
dealing with the issue in dispute herein, the Respondent had already
conceded the issue of liability 100% in favour of the Appellant.
The
Respondent had also resolved the issue of the minor’s future
medical treatment expenses by issuing him with a Section
17(4)(a)
undertaking certificate. However, a dispute was declared in respect
of the minor’s general damages claim, which
claim by agreement
between the parties was then referred to the Health Professions
Council for further adjudication.
5.
In support of its case and claim for the minor’s future loss of
earnings,
the Appellant filed and served the medico legal reports
before the
court
a quo
from which reports and consideration of counsel submissions, Semenya
J wrote a judgment with an ancillary order forming the subject
matter
of this appeal.
[2]
6.
The undermentioned medical experts filed their medico-legal reports
on behalf
of the minor herein respectively;
[3]
6.1 Dr
P.W.S Williams – Orthopaedic surgeon
6.2.
Dr M.E Thobejane – Neurosurgeon
6.3. S
Molepo – Clinical psychologist
6.4.
Dr R.J Phetla – Educational psychologist
6.5.
Ms T Maitin – Industrial psychologist
6.6.
Independent Actuaries and Consultants – Actuary
7.
This appeal is premised on the fact that the Appellant contends that
the learned
Judge erred and misdirected herself in making the
following factual and legal findings:
7.1.
relying on an Orthopaedic surgeon’s opinion that the minor did
not suffer any loss of earnings and
capacity, whilst the above expert
was in no position to provide expertise or an opinion on the minor
relating to loss of earnings,
productivity and functional work
capacity.
7.2.
concluding that there was no evidence from the reports to conclude
that the minor’s inability to cope
with complex tests were as a
result of the accident.
7.3.
concluding that the hospital records were not made available to
neither the court nor Dr Phetla, yet same
was made available.
7.4.
concluding that there was no evidence to compare the minor’s
school performance pre-accident and post-accident.
7.5.
finding that there was no evidence that proves that the minor child
sustained brain injury.
7.6.
concluding that the Educational Psychologist’s report cannot be
relied upon on the basis that it is
not supported by objective facts
and that it has incomprehensible shortcomings.
7.7.
finding that there was no evidence from the reports that proves that
the minor suffers from poor health
affecting his learning abilities.
7.8.
concluding that the minor’s post-accident effects may be
related to anything other that the accident.
7.9.
finding that the conclusion that the minor may not succeed
academically due to various disabilities caused
by the accident, is
not supported by the findings of other experts.
7.10. finding that
there is a contradiction between the Clinical Psychologist and
Educational Psychologist in so far as the
minor’s intellectual
disability and learning disorders are concerned.
7.11. not relying
on the Industrial Psychologist and Actuarial reports filed, instead,
simply assuming that the minor will
suffer minimum loss of future
earnings due to headaches that responds to medication, however,
failing to consider that, the minor’s
injuries have reached
maximum medical improvement (MMI) which only means that the injuries
and sequelae are permanent and are likely
uncurable because of its
chronic nature.
7.12. lastly, that
the learned Judge erred and misdirected herself in applying a round
estimate method on minor’s future
loss of earnings award,
instead of applying contingencies she would have deemed necessary on
the actuarial calculations which were
before court.
8.
The main issue contended by the Appellant herein and as it were
before the
court a quo
is that, due to the injuries sustained
by the minor from the accident under discussion and the resultant
deficits or sequelae,
the minor child’s school performance is
said to have deteriorated to an extent that the minor’s
post-accident health
condition, that is his moderate to severe
neuro-psychological impairment as well as his alleged intellectual
disability will negatively
affect his academic progress in future. As
a result, he will be excluded from achieving his expected
pre-accident academic achievements
and employment potential.
9.
Therefore, it has been projected that the minor will suffer potential
future
loss of earnings of a difference between what he would have
earned had the accident not occurred to what he would earn having
regard
to the accident as set out on the Appellant’s actuarial
report, subject to application of contingency deductions that the
court would have deemed reasonable and appropriate.
10.
It is inconceivable that in matters of this nature, I emphasise that
there has to be a clear
nexus between the injuries sustained by the
claimant, proven sequelae of the said injuries post-accident and the
projected claim
for future loss of income, before an award for future
loss of earnings can be entertained by the court. The aforegoing
cannot be
separated. It is happening frequently that some claimants
are found exaggerating in an appalling manner, the nature and
severity
of injuries they sustained in order to inflate their loss of
income claims against the respondent (“the Fund”). I am
therefore not for a moment suggesting that it is or was the case in
the current matter.
[4]
11.
This court is summoned to decide whether there is a substantial
variation or notable disparity
between the award made by the
court
a quo
on the minor’s future loss of income, and the award
which this court considers reasonable and fair, and that which ought
to have been pronounced after consideration of the circumstances of
this case having had regard of the expert’s evidence presented
before court.
12.
The significant and cardinal principle governing the appeal court is
that the appeal court should
be slow in interfering with the findings
and awards granted by the trial court to the extent necessary. The
appeal court has a
reciprocal duty, entitled and obliged to interfere
with the trial court finding, order and award, provided it is
satisfied that:
12.1. there has
been an irregularity or misdirection by the court, either by being
too generous in making a contingency allowance
or that the decision
was based on inadequate facts;
12.2. where the
appeal court is of the view that no sound basis existed for the award
to be made by the trial court;
12.3. or where
there is a clear substantial variation or striking disparity between
the award made by the trial court, with
that which the appeal court
considers ought to have been made and/or that which the appeal court
would be inclined to make.
[5]
13.
It has been projected
in
casu
that
the minor will suffer potential future loss of earnings of a
difference of what he would have earned had the accident not occurred
to what he will now earn having regard to the accident.
[6]
14.
I now proceed to summarise the Appellant’s expert’s
opinions and findings from the
assessment conducted on the minor
herein. In the same breath, I propose to simultaneously deal with the
crucial issues raised against
the court a quo’s finding by the
Appellant on this appeal interchangeable and where necessary.
15.
The minor was approximately 6 years old at the time of the accident
attending Grade R. He had
just started with his academic life when he
was involved in an accident. It is stated in the reports that he was
only able to return
to school to finalise his Grade R after 4 months
of recuperating at home.
16.
According to the copies of the attached school report, he managed to
pass his Grade R, regardless
of the accident and was accordingly
promoted to Grade 1 at the end of that school year. The available
school reports which are
up until the year 2018 reflect that the
minor has never repeated any Grade post-accident, despite fluctuating
marks and results.
At the time of filing the school reports under
scrutiny, it is evident that in 2018 the minor was enrolled and doing
Grade 6.
17.
On this note, I agree with the learned Judge a quo’s finding
that there was indeed no objective
evidence or school records in
order for the Educational Psychologist to make a comparison on when
it came to the minor’s
pre-accident educational performance to
enable the expert to determine if there has been any decline or
improvement of the minor’s
performance.
18.
It is apparent from the medical experts’ report that from the
accident, the minor sustained
a head injury with post-concussive
headaches, which head injury was classified as mild head injury by
the Neurosurgeon. He also
sustained a mid-shaft right femur fracture
with lateral angulation.
19.
During the evaluation of his orthopaedic injuries in 2014, the minor
complained of pain and cramps
exerted on his leg when picking or
carrying heavy objects. He complained of his reduced endurance to
stand for long periods as
well as unable to run or walk fast. The
expert opined that the minor is not totally disabled save for
limitation when conducting
physical intense activities. No future
medical treatment recommended. The orthopaedic surgeon concluded that
no future loss of
income is anticipated as a result of orthopaedic
injuries sustained by the minor herein.
[7]
20.
In light of the aforegoing, this court is satisfied that the
assertion by the court a quo that the
minor did not suffer any loss
of earnings, in no uncertain terms could have only been with
reference to the outcome of the minor’s
orthopaedic injuries
assessment as clearly stated by the expert and alluded to in the
preceding paragraph.
21.
With regards to the head injury, the head injury experts recorded
that the minor complained of frequent
headaches which usually occurs
3 to 4 times a week and treated by pain medication. The minor was
also reported to be forgetful.
Complaints have already been received
from his school teachers regarding his inconsistencies and poor
performance. The experts
concluded that the reported learning
difficulties could most likely be related to amnesia, poor
concentration and memory problems
which also form part of post
concussive syndrome.
22.
This court accepts that the minor appears to have suffered a head
injury from the accident
in casu
. Its impact, magnitude and
extent in my view remains minimal when one has regard to the absence
of pre-accident educational record
and the post-accident educational
performance.
23.
This court takes judicial notice that the mild head injury sustained
by the minor to some extent, seem
to have impacted on his learning
abilities such that from the available school reports, the minor’s
school marks and performance
are noted to be fluctuating between
average and above average level of performance. Of significance is
that the minor has been
able to perform and pass each grade up to
Grade 6 maintaining the standard described above.
24.
The educational psychologist assessed the minor back in 2018 and also
evaluated his school reports
from the year of accident until 2017
when the minor was in Grade 5.
25.
This court has also evaluated the attached summaries of the minor’s
school reports. Having had
regard to same and comparatively speaking,
the performance is as described in paragraph 20 above save for Term 1
in Grade 5 where
and when for the very first time the minor obtained
levels one and two of Grade 5 school results. However, the minor
improved his
performance back to the usual the very same year in
terms 3 to 4 wherein he gained promotion to Grade 6 at the end of the
year.
26.
I therefore find it imprudent for the psychologist to suggest and
conclude that given the minor’s
momentary drop in performance
to levels one and two once in Tem 1 of Grade 5, that that alone was
enough to suggest a possibility
that if such a once off downward
trend continues, the minor may only obtain a matriculation and a
tertiary qualification up to
a diploma provided he is given
professional assistance, whereas had it not been for the accident,
the minor could have passed matric
with a tertiary qualification that
could have included a degree.
27
I am of the view that the psychologist’s opinion is
speculative, selective and opportunistic and
a clear attempt to build
a narrative that the minor’s educational performance is likely
to deteriorate without objective
facts.
28
The opinion is selective simply because the projection of the minor’s
potential future loss of
income is based solely on the poor results
of term 1 of Grade 5. The minor however appears to have improved his
performance in
terms 3 and 4 which led to his promotion to Grade 6.
Strangely there is no mention or analysis of the other years’
school
results in the educational psychologists discussed in the
report.
29.
This court is not convinced and persuaded that the minor’s
fluctuating school performance can
necessarily be attributed to the
accident only, when considering the minor’s assumed and
unaccounted pre-accident learning
ability.
30.
I am therefore inclined to agree with the court a quo’s finding
that, the aforegoing expert conclusion
cannot be relied upon for lack
of its objectivity and for the reasons I have already stated above.
Least said about the assertion
and/or suggestion of the minor’s
deteriorating school marks which from the record appears to be the
same. This court finds
no basis for this conclusion more so because
it has been conceded that there has been no pre-accident school
performance results
for the expert to compare with when dealing with
the post-accident performance.
31.
However, this court does not negate the possibility that the
sustained head injury might have
possibly impacted on the minor’s
learning ability. The question that remains to be answered is the
severity of the injury
and the extent of its impact. Without
certainty from the medical experts, the courts have historically and
over the years addressed
similar cases by adopting a method of
contingency deductions approach to resolve these kinds of matters.
32.
In light of the above, I conclude that the current matter is no
exception for application of contingency
deduction to the computed
loss of income in order to compensate for the minimal expected
residual loss of future income by the
minor herein.
33.
I therefore find it unnecessary to comment on the industrial
psychologist’s report simply because
it is largely based on the
unsubstantiated opinion of the educational psychologist’s
report on which this court has already
made a finding on.
34.
In the matter of
Road Accident Fund Tribunal & Others v
Gouws & Another [2017] ZA SCA, 188 [2018] 1 ALL SA 701 (SCA) para
33,
the court said:
“
Courts are not
bound by the view of any expert. Courts make the ultimate decision on
issues on which experts provide an opinion.”
35
It is trite that an expert witness is required to assist the court
and not to usurp the function
of the court. Expert opinion must
therefore be capable of being reconciled with all proven evidence in
a particular case. The court
must guard against the risk of immersing
itself in every detail and opinions of the expert.
36.
It is needless to reiterate that the Road Accident Fund Act was
legislated to compensate victims
of motor vehicle accidents for their
loss or damage caused by the driving of an insured motor vehicle by
an insured driver.
37.
The appropriate award can only be determined by taking into account
all the relevant evidence
in a case not necessarily restricted to the
experts opinion and findings.
38.
Ignorance of reliable and credible evidence placed before court will
undermine the purpose and
objective of the Road Accident Fund.
39.
The general principle applicable to the assessment of the damages for
loss of earnings capacity
is that the claimant must prove that the
reduction in earning capacity gives rise to the pecuniary loss.
40.
In
Prinsloo
v RAF
[8]
,
in
dealing with this principle, Chetty J stated the following:
“
A person’s
all-round capacity to earn money consists, inter alia, of an
individual’s talent, skill, including his/her
position and
plans for the future and, of course external factors over which a
person has no control, for instance in casu, consideration
of equity.
A court has to construct and compare two hypothetical models of the
plaintiff’s earning after the date on which
he/she sustained
the injury. In casu, the court must calculate, on the one hand, the
total present monetary value of all that the
plaintiff would have
been capable of bringing into her patrimony had she not been injured,
and on the other, the total present
monetary value of all that the
plaintiff would be able to bring into her patrimony whilst
handicapped by her injury. When the two
hypothetical totals have been
compared, the shortfall in value (if any”) is the extent of the
patrimonial loss. At the same
time, the evidence may establish that
an injury may in fact have no appreciable effect on earning capacity,
in which event the
damage under this would be nil.”
41.
It was held in the matter of
Southern
Insurance Associate Ltd v Bailey NO
[9]
,
that:
“
Any enquiry
into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future
without benefit of crystal balls, sooth sayers, augers or oracles.
All that the court can do is make an estimate which is often
a very
rough estimate of the present value of a loss.”
42.
Matters which cannot otherwise be provided for or cannot be
calculated exactly, but which may
impact upon the damages claimed,
are considered to be contingencies, and are usually provided for by
deducting a stated percentage
of the amount on specific claims.
Contingencies include any possible relevant future event which might
cause damage or a part thereof
or which may otherwise influence the
extent of the claimant’s damage.
43.
In
Van
der Plaat’s v Southern African Mutual Fire & General
Insurance Co
[10]
it
was held that:
“
Contingency
deductions allow for the possibility that the plaintiff may have less
the normal expectations of life and that he may
experience periods of
unemployment by reason of incapacity due to illness, accident and
labour unrest or even general economic
conditions.”
44.
It is therefore my considered view that, having considered the
expert’s opinion and had
regard to the cumulative evidence
herein that this is one matter capable of resolution by application
of contingency deduction
which the court deems fit.
45.
In the matter of
Sethole
v Road Accident Fund
[11]
,
Kganyago J reaffirmed that it is settled law that contingency
deduction is a matter which falls with the discretion of the court.
A
court may be entitled, in quantifying an amount of damages, to form
an estimate of the plaintiff’s damages, to form an
estimate of
the plaintiff’s changes of earning a particular figure. This
figure will not have to be proven on a balance of
probability but
will be a matter of estimation.
46.
It is inevitable that contingencies, whether negative or positive are
an important control mechanism
to adjust the loss suffered to the
circumstances of the claimant in order to achieve equity and fairness
to the parties. There
is therefore no hard and fast rule regarding
contingency allowances.
47.
The court has accepted applying higher contingencies in exceptional
circumstances as highlighted
in the matter of
Mutual
Assurance Association v Maqula 1978
[12]
.
48.
I therefore find that there are exceptional circumstances in this
appeal as discussed from paragraph
23 to 27 of this judgment
justifying application of 50% contingency deduction in terms of the
principles enunciated in the matter
of Maqula referred to above.
Application of 50% contingency deduction befits the cumulative
evidence and circumstantial factors
in this matter.
49.
Under the circumstances, this court finds it justified to interfere
with the award made by the
court a quo
and substitute it with
an award which the court is of the view ought to have been awarded.
50.
In the result the following order is made:
ORDER
50.1. The appeal is
upheld with costs.
50.2. The order
granted on 28 June 2019 by the court a quo is set-aside.
50.3. The order is
substituted with the following order.
50.3.1.
Judgment is granted in favour of the appellant on behalf of the minor
against the respondent for:
(a) Payment of the
amount of R1 726 174.50 in respect of the minor’s residual
future loss of earning capacity.
(b) Costs of suit.
T C TSHIDADA
ACTING JUDGE
LIMPOPO DIVISION,
POLOKWANE
I
agree,
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
I
agree,
L
G P LEDWABA
ACTING JUDGE
LIMPOPO DIVISION,
POLOKWANE
It
is so ordered
APPEARANCES:
For
the Appellant
Mr M
D Mashabela
Instructed
by
Mashabela
Attorneys Inc, Polokwane
For
the Respondent
No
appearance
Respondent
Road
Accident Fund
Menlo
Park, Pretoria
Date
of hearing
20
th
August 2021
Judgment
delivered on
16
September 2021
[1]
See
page 52 of Index and Pagination, Vol. 1 (Judgment)
[2]
See page 39
of Index and Pagination: Vol. 1 (Judgment)
[3]
See
plaintiff’s experts Index and Pagination: Volume 2
[4]
My
emphasis
[5]
RAF v GSO
Guedes (2006)(5) SA 583 (SCA)
[6]
See
page 95 of Index & Pagination, Vol. 2 (actuarial report)
[7]
See
Page 9 Index and Pagination: Volume 2
[8]
2009 (5) SA
406
SE
[9]
1984 (1) SA
98
AD
[10]
1980 (3) SA 105 (A)
[11]
(1487/2014) [2018]
ZALMPPHC 11 (17 April 2018)
[12]
(1) SA 805 (A) at
811 A-E and 813 C-E