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[2020] ZAGPPHC 1
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R S v Road Accident Fund (49899/17) [2020] ZAGPPHC 1 (21 January 2020)
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
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 49899/17
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
21/1/2020
In
the matter between:
R
S
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
POTTERILL
J
[1]
The plaintiff, R S ("S"), is claiming from the defendant,
the Road Accident Fund ("RAF") for loss suffered
as a
result of injuries arising out of or caused by the negligent driving
of the insured driver.
[2]
RAF accepted 100 % liability for the loss suffered, but the quantum
pertaining to loss of income and general damages is in dispute.
Loss
of income
[3]
S testified that he started his employment with the National
Department of Rural Development as Director in May 2008 and did
so
until 20 10. He was then promoted to Chief Director in 2011 which
position he held when the accident occurred on the 18
th
of
May 2016.
[4]
S's undisputed evidence was that he had a BSc in Land Surveying as
well as an Honours and Masters' Degree in Land Surveying.
He was a
Board member of the South African Geomatics Council and represented
South Africa at the African Union Conference in 2015.
He lectured at
the University of Natal and still often gave guest lectures at
University. He personally wrote the Geomatics Profession
Act, Act 19
of 2013 ("the Act'') and advised the state law advisor
pertaining to this Act. S' s training, expertise, scarce
skills and
attributes for this high profile job was thus undisputed.
[5]
It was also common cause that S enjoyed his job immensely, so much so
that he used much of his leisure time to work on job files.
Annual
leave was a foreign concept to him; in 10 years he had not taken any.
leave. The once or twice he indicated he would take
leave the Chief
Surveyor-General asked him to defer the leave because there were
matters that only Mr. S could attend to. It is
thus factually
unchallenged that he was passionate, as he testified
"religious"
about his job, was driven and had the right attributes for the
job.
[6]
Before the accident S did not ever smoke or take a drop of liquor. He
went to the gym and jogged and partook in volleyball,
cricket and was
a sprinter. He also assisted in coaching, especially in sprinting.
[7]
He had a partner since 20 0 5. A short period after the accident the
relationship ended. After the accident he was very easily
irritable
and often lost his temper. It was difficult for his partner to
handle.
[8]
He returned to work on the 9
th
of June 2017 and found an
immense amount of work that nobody had attended to and was
uncompleted on his desk. Before the accident
he was at ease to cope
with the amount of work and work related data would come to him
naturally. But after the accident he now
had to look up the data, his
memory failed him and he found the whole situation very distressing.
He also for the first time struggled
to cope with the amount of work.
He worked until retirement and then he received a further contract.
This contract was however
only for six months and not the normal two
years. He suspected that the six months contract was with the purpose
for him to finish
the work and although the Chief Surveyor-General,
who was on suspension at that period, gaye him no reasons why the
contract was
not for the full two years he suspected that it was due
to his personality change that rendered him to lose his temper, be
argumentative
with the personnel and his struggle to cope with the
work.
[9]
Before the accident he would have secured a two year contract because
of the high profile of the job, the scarce skill he possessed
and the
knowledge, expertise and commitment he had. From 6 7, because of his
vast experience in international boundaries, cadastrial
conveyancing,
etc. he would have secured a further three years contract. There was
a need for his expertise, for example, the Department
of Human
Settlements offered him to do surveying on an urgent basis for RDP
housing. Surveying needed to be done for title deeds
to be handed
over to the owners of the property. In the Justice Department there
was a dire need for the jurisdiction of the sheriffs
to be mapped out
which would require intense mapping and consultations. Both these
departments contacted him, he went to meetings
to secure a contract,
but is puzzled as to why he was not contracted. He suspected it was
due to the fact that the accident had
affected him and it had become
known.
[10]
He did not engage with his old Department, Human Settlements or the
Department of Justice as he did not want to debate the
appointment on
contract with them as he hoped he might still secure work from them.
He admitted that he would have to compete for
these contracts, but
could submit that he was definitely the most knowledgeable, trained
and seen as an expert in this field, rendering
him a step above other
competitors.
[11]
S called Ms. Rossouw, the industrial psychologist, to testify. Her
expertise and training was not in dispute.
[12]
She testified that at the time of the accident S's duties included
administrating and managing the South African international
boundaries, the setting and moderating of sectional title
practitioners examinations, and administering and managing state land
surveys as well as land reforms and redistribution projects. S
furthermore managed land advisory and research for various state
and
private clients as well as managing the surveying of legislative
review, including writing the Act. He was a nominated member
of the
South African Development Tribunal and participated as a nominated
member of the South African Geomatics Council.
[13]
She could not obtain collateral information from S's direct
supervisor at the time of the accident due to that supervisor being
on disciplinary suspension. She contacted Mr. Clarke, the Acting
Chief Surveyor-General at the National Department of Rural
Development
and Land Reform, who is seated in the Eastern Cape and in
fact is a typographical surveyor and according to him there was no
complaints
about S's work. It is however common cause that they were
not in the same field, not in the same province and Mr. Clarke was
not
S's direct supervisor.
[14]
In the joint minute of her and Ms. Rossouw, the RAF's industrial
psychologist, it was in fact agreed, in paragraph 1.4 as follows:
"Had
the accident not occurred Mr. S reported that he would have continued
working for the National Department of Rural Development
and land
Reform until the age 65, when he would have been placed on mandatory
retirement, after which time he would have received
an additional
contract, similar to what he received post accident."
"'We
note as per Chapter V (Termination of Service) , Public Services Act
1994./ 16, Section (7) If it is in the public interest
to retain an
officer, other than a member of the services or an educator or a
member of the Agency or the Service, in his or her
post beyond the
age at which he or she is required to be retired in terms of
subsection ( 1), he or she may, with his or her consent
and with the
approval of the relevant executing authority, be so retained from
time to time for further periods which shall not,
except with the
approval of Parliament granted by resolution, exceed in the aggregate
two years.
We
therefore agree
following
his mandatory retirement, working on a contract basis for a period of
time but not exceeding the two years as stipulated
in the
aforementioned (until age 67) for the National Department of Rural
Development and Land Reform within the same position
and same earning
level, but with annual increases that would have been applicable.
We
note
that
post-accident, following his retirement, Mr S worked on a contract in
his same position and same earning level for a period
of 6
months."
[1]
[15]
This witness was in cross-examination adamant that Selig would have
received a further two year contract from his old department
because
the Act allowed for this, his expertise and scarce skill would render
it highly probable, but in any event RAF's own industrial
psychologist also agreed on this scenario.
[16]
In cross-examination she did not deviate from her view that S would
have after the two year period with his old employer, on
the open
market have obtained contract work for the next three years till age
70. She said that it was probable because there was
work out there;
the Departments of Justice's and Human Settlements' approach to S
factually supported this submission. S was the
expert on land
surveying and international borders, he was well-known and although
he may compete with other applicants, he had
above average skills and
S himself would have taught most competitors. S was driven,
hardworking, passionate and had the cognitive
skills pre-accident to
handle the high profile post with ease. The industrial psychologist
of RAF did not pertinently agree with
this, but did not expressly
disagree and gave no reasons why she could disagree.
[16]
Both S and Rossouw made a goo.d impression on the court.
[17]
RAF called their industrial psychologist, Dr. W.J. Coetzer, whose
expertise and training was not in dispute. She agreed with
the two
year contract post-retirement scenario and I need not further address
this. In oral evidence she however disagreed about
the three year
contract period until S reached the age of 70
,
because he
would be competing against other competitors to obtain such contract.
She did take note of the fact that Ors Burkowitz
and Hoffman agreed
that S had been left with extensive, serious, permanent
disfigurements as a result of this accident. She also
took note of
the joint minute of the occupational therapists that the accident
injury had impacted on all spheres of S's life.
She agreed that the
employment of Chief Director in this post required constant (a 67 to
100 % of time) applying persuasion, negotiation,
monitoring, social
perceptiveness, speaking, critical thinking, complex problem solving
as well as judgment and decision-making.
The writers of this joint
report agreed that S retains capacity to cope with tasks and
expectations, but it seems that the deficits
identified on a
cognitive level resulted in slow application of skills and abilities
thus resulting in lower than expected efficacy.
In the joint minute
of the clinical psychologist there were no points of disagreement on
fact and in fact RAF's clinical psychologist
found that the deficits
were as follows:
"4.3.3
On her assessment
Ms Tromp
found the following deficits: below
average simple attention abilities; poor working memory and sustained
attention; below average
visual memory; inadequate auditory narrative
memory abilities; below average visual-spatial and organization and
integration; slowed
psychomotor speed and rote verbal learning.
4.3.4
Ms Tromp
is of the opinion that I light of the
results of the neuropsychological findings, she is of the opinion
that Mr S sustained a severe
head injury.”
In
the final neuro-surgical joint minute both the experts agree that S
suffered a severe head injury.
[19]
It is common cause that the joint minute of the industrial
psychologists were done before they had the joint minutes of the
other experts.
Reasons
for judgment
The
two year contract period after forced retirement
[20]
It
was purely obstructive, but more importantly futile to in
cross-examination of Ms. Rossouw dispute the agreed fact in the joint
minute of the industrial psychologists that S would have received
such two year income on a contract basis. Despite being chastised
by
this court for endeavouring to cross-examine on this fact, counsel
constantly returned to this line of questioning. No evidence
needs to
be led on agreed matters. In the matter of
Thomas
v SD Sarens (Pty)
Ltd[2012]
ZAGPJHC 161 (2012 JDR 1711 (GSJ))
the court found in paragraph 9 that where certain facts are agreed
between the parties in civil litigation, the court is bound
by such
agreement, even if it is sceptical about those facts. This is
especially so were experts who investigate the facts, and
with those
experts then meeting and agreeing upon those facts, a litigant may
not repudiate the agreement
"unless
it does so clearly and, at the very latest at the outset of the
trial.”
[2]
"Thus the facts agreed by the experts enjoy the same status as
facts which are common cause on the pleadings or facts agreed
in the
pre-trial conference.”
[3]
Not
only has this matter been followed widely in this Division it was
also endorsed in the matter of
Glenn
Mark Bee v Road Accident Fund2018
(4)
SA 366 (SCA):
''[65]
...
Effective case management would be undermined ifthere were
an unconstrained liberty to depart from agreements reached during the
course of pre-trial procedures, including those reached by the
litigants' respective experts.
"
In
paragraph [66] of the
Glenn
Mark Bee
matter the
court found as follows:
..
Where, as here, the court has directed experts to meet and file
joint minutes, and where the experts have done so, the joint minute
will correctly be understood as limiting the issues on which evidence
is needed. If a litigant for any reason does not wish to
be bound by
the limitation, fair warning must be given. In the absence of
repudiation (ie fair warning), the other litigant is
entitled to run
the case on the basis that the matters agreed between the experts are
not in issue.”
[21]
It
is thus common cause, with no repudiation to the contrary, that S
would have received a contract from his previous employer for
two
years, “
but
for the accident, S would thus be entitled to a loss of income for
the balance of a two year contract constituting 18 months."
[4]
The
three year period
[22]
Dr.
Coetzee in the joint minute did not expressly disagree with Ms.
Rossouw that S would have obtained further work for three years
until
the age of 70 after the expiry of the two year contract with his old
Department. In fact, Rossouw testified that Dr. Coetzee
did not
express a contrary view. In oral evidence Dr. Coetzee said she
understood that if she said nothing then automatically it
would
constitute a disagreement. An expert not expressing an opinion can
never constitute a disagreement because there is simply
no opinion
expressed and with no opinion expressed there is no reasoning on
which a court can access the cogency of the expert
opinion.
"Absent
any reasoning the opinion is inadmissible.”
[5]
[23]
Dr Coetzee furthermore acknowledged that in her own report she did
not record any discussion with S as to what his future employment
dreams and plans were,
"but for"
the accident.
She accordingly did not investigate the further two year contract of
forced retirement or any other work period. This
lacuna in her report
impacted on the impression she made on the court. Especially as she
admitted that it is the duty of the industrial
psychologist to
ascertain these facts. This lack of detail, coupled with her opinion,
that no opinion is an opinion, rendered this
court to frown upon her
report.
[24]
In her oral testimony she conceded that the accident rendered S
non-suited for the position he held and was in fact unemployable
due
to the severe brain injury. She however opined that since there was
no proof that S would have received another contract for
three years
after the age of 67 appropriate contingencies should be applied.
Reasons
for judgment
[25]
If proof is required of future employment then no plaintiff will ever
be successful in claiming for damages for loss of income
from the
Road Accident Fund. I need not reiterate the trite position that it
is required of the court to look into the proverbial
crystal ball in
many instances in ascertaining damages. But, in this matter, there is
very little wizardry required. S was at the
top of the ladder and his
game. Proof of available contracts were before the court. There was
no evidence that
"but-for"
the accident he would not
have been contracted for a further three year period on the agreed
income figures utilised by the actuary.
[26]
On behalf of the RAF counsel argued that only if this court accepts
that S was unemployable despite having worked after the
accident,
then the court must apply a 50 % contingency because there was no
proof of contracts. Furthermore, a 20 % contingency
on the loss of
earning capacity was also to be deducted.
[27]
The unemployability is common cause. I have already addressed the
"proof' of the contracts and I do not find that it impacts
on
the contingency applied by the actuary. S is currently 67 years old,
yet the actuary applied a 10
%
contingency and not only a 2
%
as normal for the age of between 66 to 70. There is accordingly
an added 8
%
contingency in favour of the RAF. The loss of
earning capacity is common cause and no contingency need to be
applied thereon.
[28]
I am thus satisfied that the loss of income as calculated by the
actuary must be awarded to S.
General
damages
[29]
Pertaining to general damages I was confronted with counsel on behalf
of S and RAF agreeing that this court need not decide
the value of
the general damages, because they are in agreement that the amount to
be allocated for general damages is the amount
of R800 000. This
agreement was based on case law. However, the RAF, had on the morning
of the trial rejected the injury as being
a serious injury and
therefore the matter must be referred to the HPCSA.
[30]
Counsel
for S argued that general damages could not be rejected anymore, as
it was not a timeous repudiation, and was contrary to
the common
cause facts in the joint minute. Reliance for this argument was
placed on the
Bee
matter
supra
wherein
it was found that the purpose of the meeting of experts was to
identify areas of common ground and issues which needed to
be
resolved. The experts' joint minute limited the issues on which
evidence was needed.
"If
a litigant for any reason does not wish to be bound by the
limitation, fair warning must be given. In the absence of repudiation
(ie fair warning), the other litigant is entitled to run the case on
the basis that the matters agreed between the experts are
not in
issue.”
[6]
In
paragraph [69] of the judgment it was found as follows:
"The
limits on repudiation, particularly its timing, are matters for the
trial court. The important point for present purposes
is that
repudiation must occur clearly and timeously."
[31]
Counsel for RAF referred me to my unreported judgment of
JE
Meyer v The Road Accident Fund
case number 52229 / 2011
delivered the 4th of December 2013. In that matter I found that the
court cannot assess whether an injury
is serious. In terms of
Regulation 3 only the HPCSA has that jurisdiction.
[32]
This is still the position; a court does not have the jurisdiction to
decide whether an injury is serious or not. But, in view
of the
Bee
judgment, where there are joint minutes rendering it common cause
that an injury is serious then a court is not assessing an injury
to
be serious. A party must give fair warning, i.e. repudiate this
concession timeously, so that the other party has time to come
to
court prepared with the necessary witnesses.
[33]
In this instance pertaining to the seriousness of the injury the
joint minutes reflect as follows:
33.1
"Drs Berkowitz and Hoffmann agree that the patient has been
left with extensive, serious, permanent disfigurement as a result
of
this accident.”
This joint minute is dated the 29
th
of August 2019.
33.2
The neurosurgical joint minute of Drs. Maharaj and Edeling dated 16
October 2019 states as following:
''His injuries are regarded as
serious according to pargaraphs 5.1 and 5.2 of the Narrative Test."
Both classify the injury as a
"severe head injury.”
33.3
The joint minutes of the psychiatrists being Dr. Matjane and Dr.
Naidoo conclude that S sustained:
"a significant traumatic
brain injury".
33.4
The trial was set down for hearing on the 29
th
of October
2019 and was heard on the 30
th
of October 2019. The joint
minutes were thus obtained timeously with the agreed content that the
injury is serious.
[34]
No
reasons were submitted as to why, on the morning of the trial, the
general damages now had to be referred to the HPCSA and rejected
as
not being serious. What is disturbing is that this rejection on the
morning of the trial by the RAF of the seriousness of the
injury is
not uncommon. In fact, it has become the norm and practice of the
RAF. In this Division Judges are burdened with interlocutory
courts
specifically created for RAF matters, judicial management meetings
held before a Judge and settlement rolls specifically
for RAF matters
to accommodate case management. Yet, on the day of the trial matters
are not finalised because the RAF rejects
the seriousness of the
injury. This results in private and public funds being wasted and
judicial resources stretched even further
and unnecessarily so. The
RAF cannot be encouraged to repudiate agreements for tactical
reasons.
[7]
This practice is to
be stopped. When joint minutes express that an injury is serious and
there is not a timeous repudiation for
good reasons, no matter on the
morning of the trial will be referred to HPCSA for an issue that is
common cause.
[35]
In this matter I find that the untimeous repudiation, on the morning
of the trial when the seriousness was in fact common cause,
serves no
purpose. No reasons were forwarded as to what the purpose for
referral could be. General damages should thus be awarded
in the
amount of R800 000.
[36]
I accordingly mark the draft order "X" and it is made an
order of Court.
___________________
JUDGE
OF THE HIGH COURT
CASE
NO: 49899/17
HEARD
ON: 29 and 30 October 2019
FOR
THE PLAINTIFF: ADV. G.J. STRYDOM SC
INSTRUCTED
BY: De Broglio Attorneys
FOR
THE DEFENDANT: ADV. C.H. BADENHORST
INSTRUCTED
BY: Mkhonto & Ngwenya Inc.
DATE
OF JUDGMENT: 21 January 2020
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Case
No: 49899/2017
Before
the Honorable Justice Potterill; J
On
21 January 2020
In
court 8E
In
the matter between:
S,
R
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
DRAFT
ORDER
By
agreement between the parties and having heard counsel; it is
ordered:
1.
The Defendant is liable to the Plaintiff for 100% of the Plaintiff's
proven damages.
2.
The Defendant shall pay to the Plaintiff the total amount of
R2 578 850. 13 (Two million Five Hundred and Seventy Eight
Thousand Eight Hundred and Fifty Rand and Thirteen cents) In respect
of loss of earnings and damages (together with interest
a
tempora morae calculated in accordance with the Prescribed Rate of
Interest Act 55 of 1975, read with
Section 17
(3)(a) of the
Road
Accident Fund Act 56 of 1996
).
3.
Payment will be made directly to the trust account of the Plaintiff's
attorneys:
Holder
De Broglio Inc. Attorneys
Account Number
1096 451 867
Bank & Branch
Nedbank - Northern Gauteng
Code
198 765
Ref
51305
4.
The Defendant is ordered in terms of
section 17(
4
)(a) of the
Road
Accident Fund Act 56 of 1996
, to reimburse the Plaintiff for 100% of
the costs of any future accommodation of the Plaintiff in a hospital
or nursing home, or
treatment or rendering of service to him or
supplying goods to him arising out of injuries sustained by Plaintiff
in the motor
vehicle accident, after such costs have been incurred
and upon proof thereof.
5.
The Defendant is to pay the Plaintiff's agreed or taxed High Court
costs as between party and party, such costs to include the
costs of
29 October 2019, and the costs of 30 October 2019 on an attorney and
client scale, the costs of Senior counsel, the qualifying
fees of the
experts, consequent upon obtaining Plaintiff's reports as well as the
Plaintiff's reasonable travel and accommodation
costs to attend the
Defendant and own experts examinations.
5A.
The Plaintiff shall, in the event that the costs are not agreed serve
the Notice of Taxation on the Defendants Attorney of record;
and
5B.
The Plaintiff shall allow the Defendant 14 (Fourteen) court days to
make payment of the taxed costs.
6.
The Plaintiff is declared a necessary witness.
7.
The Plaintiff has signed a Contingency Fee Act Agreement.
BY
ORDER
________________________
REGISTRAR
OF THE HIGH COURT
Plaintiff's
Counsel: Adv. G Strydom SC- 076 642 5396
Defendant's
Counsel: Adv C Badenhorst - 083 289 4030
[1]
Paragraph 1.5 of joint minute
[2]
Thomas matter supra para 11
[3]
Thomas matter supra para 12
[4]
Joint minute
[5]
Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd and Another
2016 (2) SA 586
(SCA) para [15]
[6]
Paragraph [66]
[7]
Paragraph [67) of the Bee matter