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[2021] ZAGPPHC 461
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Advocate Viljoen N.O v Road Accident Fund (A76/19) [2021] ZAGPPHC 461 (19 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO
: A76/19
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
Date:
19 July 2021
In
the matter between:
ADVOCATE
ALIZA VILJOEN
N.O.
APPELLANT
In
her representative capacity as
curatrix
ad
litem
to SKYE HEUER
and
ROAD
ACCIDENT
FUND
RESPONDENT
JUDGMENT
Van
der Schyff J (Mabuse J
et
R Matthys AJ concurring)
Introduction
[1]
The appellant appeals the judgment and
order of Nkosi AJ dated 6 September 2018. The appeal follows with the
consent of the court
a quo
.
It exclusively concerns the quantification of the damages suffered by
the patient, who is represented by the
curatrix
ad litem.
The parties are referred to
as in the court
a quo.
Parties'
submissions
[2]
The plaintiff avers that although the court
a quo
correctly held that the injuries suffered by the patient caused a
reduction in her patrimony, the court erred in awarding a lump-sum
in
respect of loss of earnings. According to the plaintiff, the court
a
quo
materially misdirected itself and
awarded an amount strikingly different to what should be ordered on
appeal. The court disregarded
certain relevant proven facts and
applied an over-conservative approach to quantification. The court
awarded loss of earnings and
earning capacity by means of a lump-sum
while the proven and cogent facts and opinions directed that an
actuarially quantified
award was probable, fair, and reasonable. The
court
a quo
correctly held in the judgment that 'it naturally flows that the
trial court is bound by the actuarial calculations' and 'the court
is
bound to consider the actuarial calculations very carefully: this
would entail the pre-morbid and post-morbid scenarios which
is
already on record and has been considered as presented', but then
awarded a lump-sum after holding that 'the court is to weigh
and
determine a fair and reasonable quantum having regard to comparable
previous court decisions as guidelines.' The plaintiff
submits that
the court
a quo
paid lip service to the agreed-on or proven facts and the expert
opinions which provided for the following:
i.Before
the collision, the patient would probably have obtained at least a
four-year degree or an LLB. She would probably have
joined the labour
market in 2015 at the median of the Patterson B4/C1 total package
income and progressed to Patterson D1 total
package (during) 2035 by
means of real linear increases. Her income would have progressed from
this level of income by means of
further inflationary increases up to
retirement at the age of 65. The contingencies should not be
increased due to parental divorce
or maternal cancer.
ii.Post-collision,
the patient suffers from serious primary diffuse and secondary focal
injuries with permanent uncontrollable neuropsychiatric
deficits and
lack of insight, the inability to accept responsibility for tasks of
basic living and employment, requiring assistance
in all spheres of
living and employment, impaired speech, and language commensurate
with the severity of the brain injury, and
a static and curtailed
career path of no more than ten years.
[3]
As a result of the above submissions, the
plaintiff argues for a substitution of the R2 500 000 awarded by the
court
a quo
with an amount of R 6 896 252 before consideration of the interim
payment of R420 000 made by the defendant in terms of a court
order
dated 6 March 2013.
[4]
The defendant disputes the plaintiff's
argument and seeks that the appeal be dismissed. The defendant urges
the court to assess
the damages based on all the evidence and not
just the plaintiff's experts and compare it to that of the court
a
quo
. The defendant submits that the
amount suggested by the plaintiff is excessively high in the
circumstances and is not supported
by the evidence of the educational
psychologists. The defendant argues that the Industrial
Psychologist's report on whose basis
the actuary made its
calculations is inconsistent with the findings by the educational
psychologist and that the IP's assumptions
and postulations are not
informed by the crucial evidence pointing to a lesser serious head
injury than assumed, plus pre-existing
difficulties. The defendant
avers that the court
a quo
misdirected itself when it concluded that the diagnosis of a severe
primary diffuse brain injury and a secondary focal brain injury
was
the correct one. The court should have considered that the patient
managed, post-collision, to pass her matric with some distinctions.
The court
a quo
also misdirected itself in disregarding the effect that the
pre-existing psychological conditions and traumas had on the patient.
Despite these misgivings, the defendant did not lodge a cross-appeal.
Legal
principles – interference by a court of appeal
[5]
In
a delictual context, general damage is usually that damage presumed
to flow from an unlawful act. In the case of delictual liability
for
bodily injuries, all non-patrimonial loss and all future loss are
classified as general damages. All pecuniary loss suffered
before the
trial qualifies as special damages.
[1]
The relevance of this distinction relates to the assessment of the
damage. A direct correlation exists between special damages
suffered
and the award made by the court. The quantification of general
damages, inclusive of prospective loss, entails to a lesser
or
greater degree depending on the heads of damages concerned, a
speculative process that requires the exercise of a discretion.
Where
the amount of damages is capable of accurate calculation, as is the
case with special damages, a court of appeal will interfere
if it
differs with the trial court on the exact amount of the award.
[2]
Where the quantification of the damages is, however, a matter of
estimation rather than calculation, the court has a wide discretion
to award what it considered in the particular circumstances to be
fair and adequate compensation.
[3]
In such circumstances, an appeal court is generally slow to interfere
with the award by the trial court. A court of appeal cannot
simply
substitute its own award for that of the trial court.
[4]
The Supreme Court of Appeal referred with approval to Erasmus and
Gauntlet's exposition of the proper approach of an appeal court
in
appeals against awards of damages:
[5]
'
The
appeal court will interfere with the award of the trial court:
(i)
where there has been an irregularity or misdirection (for
example, the court considered irrelevant facts or ignored relevant
ones; the court was too generous in making a contingency allowance;
the decision was based on totally inadequate facts).
(ii)
where the appeal court is of the opinion that no sound basis
exists for the award made by the trial court.
(iii) where
there is a substantial variation or a striking disparity between the
award made by the trial court and the award
that the appeal court
considers ought to have been made. To determine whether the award is
excessive or inadequate, the appeal
court must make its own
assessment of the damages. If, upon comparison with the award made by
the trial court there appears to
be a ‘'substantial variation''
or a 'striking disparity', the appeal court will interfere.'
[6]
It is trite that once it has been concluded
that interference is justified in terms of the principles set out
above, a court of
appeal is obliged to interfere. Considering the
grounds of appeal raised by the plaintiff, the plaintiff contends
that there exists
no sound basis for the award made by the court
a
quo
and that there is a substantial
variation or striking disparity between the award made by the trial
court and the award that an
appeal court would consider ought to have
been made.
Analysis
of the court
a quo
's
judgment
[7]
The plaintiff does not take issue with the
factual findings made by the court
a
quo
. Although not filing a
cross-appeal, the defendant took issue with some of the factual
findings made by the learned acting judge
during argument. The
general principle is that parties are bound to the confines of a case
as set out on paper. Where no cross-appeal
was filed to which the
plaintiff could adequately answer, alleged grounds of cross-appeal
cannot be raised in argument. Therefore,
this court accepts that the
court
a quo
's
factual findings are not disputed, and that the plaintiff only takes
issue with the quantification of the patient's claim. The
actual
injuries are, in any case, only relevant in conjunction with the
sequelae
thereof.
[8]
The learned acting judge meticulously
evaluated the evidence presented by the respective expert witnesses
and indicated why he accepted
some experts' evidence and some not. He
explained that he did not consider the impact of the patient's
parent's divorce and the
mother's cancer on the patient. The
defendant had not shown how or where the same would have impacted the
loss of earnings or earning
capacity. He found that the patient, who
was 16 when the accident occurred, would have obtained a four-year
degree pre-accident.
Post-collision, the patient will only be able to
obtain an NQF level 4 qualification. He also found that the
sequelae
of the patient's injuries caused a
severe and substantial curtailment and reduction in her potential
career prospects and earnings
and that she would not be able to
sustain her employment in the long term.
[9]
The following utterances of the learned
acting judge are relevant to indicate how he went about quantifying
the patient's damage:
i.He
correctly stated that damages for loss of earning capacity are
speculative. It involves a prediction about the future, '[i]t
naturally flows that the trial court is bound by the actuarial
calculations.
ii.He
then indicated that in the exercise of judicial discretion in
assessing the quantum, the court must discount certain contingencies
or the "vicissitudes of life".
iii.
Later in the judgment, the learned acting judge
again reiterated that –
'Having
regard to the opinions of all experts who testified either for or
against the seriousness of the brain injury and the
sequelae
and subject to the appropriate contingencies the court is bound to
consider the actuarial calculations very carefully this would
entail
the pre-morbid and post-morbid scenarios which are already on record
and been considered presented.
The
court is to weigh and determine a fair and reasonable quantum having
regard to comparable previous court decisions as guidelines.
There is
no evidence that the Plaintiff has lost her job because of the
sequelae
following the collision except for the permutation of
possibilities.'
iv.He
held – '[a]n apportionment of 85 15 should be applied to the
total damages considering or minus the R420 000-00 already
paid to
the Plaintiff".
v.The
learned acting judge then ordered that an amount of R2 500 000-00 be
paid in respect of the loss of earning capacity.'
[10]
It is unfortunate, but the judgment as it
pertains to the quantification of the damages is unclear. It is not
evident how the court
approached assessing the patient's claim
relating to the loss of income potential. While referring to
contingencies, it is not
evident that the learned acting judge
exercised his discretion by utilizing the figures provided by the
actuary as the basis for
the calculation and then discounted
contingencies or awarded a lump-sum. The fact that the learned acting
judge referred to an
"apportionment of 85 15" does not
assist, the calculations do not add up.
[11]
Considering the above, it is justified for
this court to quantify the damages suffered by the patient regarding
loss of earning
capacity.
Legal
principles – quantification of damages for loss of earning
capacity.
[12]
Hartzenbeg
J writing for the Full Court explained in
Road
Accident Fund v Maasdorp
[6]
that:
'The
question of loss of earnings and loss of earning capacity is a vexed
one and is often considered by our courts. Usually, the
material
available to the court is scant, and very often, the contentions are
speculative. Nevertheless, if the court is satisfied
that there was a
loss of earnings and/or earning capacity, the court must formulate an
award of damages. What damages the court
will award will depend
entirely on the material available to the court.'
[13]
When
a claimant's loss of earning capacity is assessed, courts essentially
use one of two methods.
[7]
The
first is establishing a reasonable and fair amount based on the
proven facts and the prevailing circumstances. This entails
the
determination of a lump-sum that the court regards to be fair and
just in the given circumstances. The second approach is to
establish
an amount by a mathematical calculation based on the proven facts of
the case. Millard
[8]
opines that
courts are likely to follow the first approach in circumstances where
it is impossible to make a mathematical calculation,
for example,
where the claimant is a minor who has not yet embarked on a career
path.
[14]
This court must take into consideration the
fact that the plaintiff did not testify in person. There was no
direct evidence from
her. Her evidence would have been valuable in
assessing what the future might hold for her. This, however, does not
mean that the
court cannot consider the evidence of the expert
witnesses. It does, however, impact on the quantification method that
will be
utilised. It is impossible to accurately determine the
patient's post-morbid progression without evidence of how the
claimant sees
and experiences her future unfolding. In the claimant's
absence, insufficient light was shed on the reason for her failing
her
first year and why she did not consider another study field. Due
to the patient's failure to testify, a considerable measure of
uncertainty prevails. This disregards the application of a purely
mathematical model, even if higher than normal contingencies
are
applied. It is trite that in these circumstances, the court may
decide to fix a lump sum as compensation, although it considers
the
actuarial calculations as one of the factors in determining the
award.
[15]
Even in determining a lump-sum, the court
is guided by the evidence before it. The evidence establishes that
although the claimant
was a minor at the time when the accident
occurred, she was 16 and in Gr 11 at the time of the accident. She
was an able scholar
and considered studying law. After the accident,
she completed Gr 12 and passed Mathematical Literacy with
distinction. She enrolled
for a four-year degree at the university.
She dropped out after failing her first year. The educational
psychologist testified
that she and her counterpart concluded that
their test results showed a pattern of cognitive deficits, including
memory and attention
deficits. They also identified emotional factors
that would complicate the learning process. These deficits and
patterns were compatible
with the results seen in learners' cognitive
profiles after a significant head injury. The plaintiff's family
history shows that
her brother did not complete his tertiary studies,
her mother and father matriculated, and her sister completed a
two-year hospitality
qualification. Post-accident the educational
psychologist opined that the patient would be left with her matric
qualification.
The accident rendered her a candidate for sheltered
employment. The plaintiff's speech and language pathologist testified
that
the patient's language and speech profile is consistent with a
significant brain injury. The plaintiff's psychiatrist's evidence
highlighted the ongoing impact of the accident on the patient,
particularly on her inability to study or sustain employment in
the
long term. The updated actuary’s report reflects the damages as
calculated by the plaintiff as an amount between R 6
765 557-00 and R
6 819 201-00.
[16]
After considering the evidence placed on
record, we are of the view that it would be fair and reasonable to
both parties if a lump-sum
of R4 000 000-00 is awarded. This is also
in the region acknowledged by counsel to be fair and reasonable.
Order
In
the result, the following order is granted:
1.
The appeal is upheld, with costs.
2.
Paragraph [30].1 of the order
granted on 6 September 2018 is set aside and substituted with the
following:
"For
loss of earning potential payment of R 4 000 000-00, less any interim
payment previously made.”
E
van der Schyff
Judge
of the High Court
PM
Mabuse
Judge
of the High Court
R
Matthys
Acting
Judge of the High Court
Delivered:
This judgment is handed down electronically by
uploading it to the electronic file of this matter on Case Lines. As
a courtesy gesture,
it will be sent to the parties/their legal
representatives by e-mail. The date for hand-down is deemed to be 19
July 2021.
Appearances
Counsel
for the appellant:
Adv P Uys
Instructed
by:
Yvonne Kruger Inc
c/o
Scholtz Attorneys
Counsel
for the respondent:
Adv T Pillay
Instructed
by:
Tsebane Molaba Inc
Date
of the hearing:
21 April 2021
Date
of judgment:
19 July 2021
[1]
JM
Potgieter, L Steynberg and TB Floyd
Visser & Potgieter Law of Damages, 3
rd
ed. 2012, JUTA, 23.
[2]
See, eg,
Administrator-General,
SWA v Kriel
1988
(3) SA 275
(A) at 289.
[3]
See, eg,
Commercial
union Ass Co of SA v Stanley
1973
(1) SA 699
(A) at 703. In this case the court of appeal was of the
view that the award by the trial court was too high, but it
nevertheless
declined to interfere. See also,
Van
der Plaats v South African Mutual Fire and General Insurance Co Ltd
1980
(3) SA 105
(A) at 114G-115D, and
RAF
v Delport
2006 (3) SA 172 (SCA).
[4]
RAF v
Guedes
2006 (5) SA 583 (SCA).
[5]
Guedes
(supra)
at
587D-H.
[6]
(1552/1999)
[2003] ZANCHC 49
(21 November 2003).
[7]
Southern
Insurance Association v Bailey NO
1984 (1) SA 98.
[8]
D
Millard, ‘Loss of earning capacity: The difference between the
sum-formula approach and the ‘somehow-or-other’
approach’,
Law,
Democracy & Development
2007,
vol 11:1.