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[2019] ZALMPPHC 9
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Hlomogang v Road Accident Fund (HCAA01/2018) [2019] ZALMPPHC 9 (14 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: HCAA01/2018
In
the matter between:
MOKGOTHU
JEHEMIA HLOMOGANG
APPELLANT
And
ROAD
ACCIDENT FUND
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
This
appeal, with the leave of the court
a
quo
,
is against the judgment and order of Sikhwari AJ dismissing the
appellant’s claim for future loss of earning capacity. The
question before the court
a
quo
was whether the appellant was entitled to judgment for her claim for
loss of earning capacity and also what contingency deduction
has to
be applied by the Court.
[2]
The background facts are that on the 2
nd
February 2013 the
appellant was a passenger in a motor vehicle that was involved in an
accident with another motor vehicle driven
by the insured driver. The
appellant sustained mild head injuries, soft tissue injury on the
neck, soft tissue injury on the back,
and scars on the forehead as a
result of the accident. At the time of the accident the appellant was
aged 19 years and was still
attending school.
[3]
The appellant instituted action in the High Court against the
respondent for damages. She is alleging
that the accident occurred as
a result of the negligent driving of the insured driver.
[4]
The respondent has filed a special plea and plea on the merits.
However it does not seem that
the respondent has proceeded with its
special plea. On the merits the respondent conceded to the accident
occurring, but denied
that it is liable to compensate the appellant
the amount as set out in her particulars of claim.
[5]
The parties did not lead any oral evidence but agreed to dispose the
matter on arguments. The
court
a quo
dismissed the appellant’s
claim. The court
a quo
was not persuaded that the appellant
has suffered any loss of earning capacity. The basis for that was
that the injuries which
the appellant has sustained will heal and
restore her full premorbid condition if she can follow the treatment
properly. The court
a quo
further held that there is no
evidence based on facts to sustain the suspicion that the appellant’s
inability to pass Grade
12 at once and her challenges at the FET
College are connected to the accident. The court
a quo
further
held that in the absence of her school reports, it was not persuaded
on the evidence before it that the appellant is a
person of average
ability on academic matters. The court
a quo
was of the view
that the actuarial calculations of the appellant were without basis.
In conclusion the court
a
quo
found that the appellant
has failed to discharge its onus of prove, and it accordingly
dismissed the appellant’s claim. Aggrieved
by the dismissal of
her claim, the appellant appeals with the leave of the court
a
quo.
[6]
In this court, counsel for the appellant submitted that the court
a
quo
misdirected itself in fact in finding that Dr Moloto of the
defendant was of the opinion that the appellant was exaggerating her
complaints. According to the counsel for the appellant Dr Moloto in
his medico legal report has recorded that the appellant has
not
overstated her complaints. The counsel for appellant further
submitted that Doctors JA Azhar and AB Mazwi in their joint minutes
have recorded that since the occurrence of the accident, the
appellant complains of poor memory and poor school performance; she
suffered from mild head injury; she is suffering from post-concussion
syndrome, and she has a left frontal; she failed the matriculation
exam after the accident; she managed to start a diploma in electrical
engineering, but she finds it hard to cope with her studies;
to some
extent, her career path has been affected by the accident; and her
whole person impairment according to the AMA guidelines
is 18%.
[7]
In this court counsel for the respondent submitted that the legal
team of the appellant has failed
to put very important evidence
before the court
a quo
and therefore the court
a quo
was legally entitled and correctly held that it was not persuaded
that the appellant has suffered any future loss of earning
capacity.
[8]
The merits of the case were settled in its totality, 100% in favour
of the appellant.
The issue of the future medical expenses was
settled by way of a certificate in terms of section 17(14) (a) of the
RAF Act. The
parties are in agreement that the appellant did not
suffer any past loss of earning. The issue of general damages has
been referred
to the HPCSA. The issue before the court
a quo
was to determine the appellant’s future loss of earning
capacity, if any, and thereafter factor in the appropriate
contingency
deductions.
[9]
At the time of the accident, the appellant was in grade 12. She
failed her grade 12 on her
first attempt and passed it on the second
attempt. Thereafter she enrolled for a diploma in Electrical
Engineering at an FET College.
As at the 22
nd
April 2015 when she consulted the Industrial Psychologist, she was a
first year student at an FET College. It is not clear whether
she has
completed her diploma.
[10]
The purpose of the
Road
Accident Fund
Act 56
of 1996
is to compensate victims of motor vehicle accidents for loss or
damage caused by the driving of a motor vehicle. In
Road
Accident Fund v Guedes,
[1]
it was held that it is trite that a person is entitled to be
compensated to the extent that a person’s patrimony has been
diminished in consequences of another’s damages which includes
loss of future earning capacity.
[11]
In the present case the parties did not lead any oral evidence. The
parties in disposing the
matter relied more on the reports of the
experts. In
Beer
v Road
Accident
Fund
[2]
the court said:
“
[66] …
litigants are required to reach agreement on as many matters as
possible so as to limit the issue to be tried. Where
the matters in
question fall within the realm of the experts rather than lay
witnesses, it is entirely appropriate to insist that
experts in like
displines meet and sign joint minutes. Effective case management
would be undermined if there were an unconstrained
liberty to depart
from agreements reached during the course of pre-trial procedures,
including those reached by the litigants’
respective experts.
There would be no incentive for parties and experts to agree matters,
despite such agreement, a litigant would
have to prepare as if all
matters were in issue…
“
[66]…
Since it is common for experts to agree on some matters and disagree
on others, it is desirable, for efficient case
management that the
experts should meet with a view to reaching sensible agreement on as
much as possible so that the expert testimony
can be confined to
matters truly in dispute. 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 headed.
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
(i.e. fair warning), the other
litigant is entitled to run the case on the basis that the matters
agreed between the expert are
not in issue.”
[12]
In the joint minutes of the Clinical Psychologist of Ms Mokgothu and
Drs’ Molepo and Peta,
they agreed that the appellant has a long
term neuro-cognitive impairments or deterioration to her cognitive
behavioural and psychiatric
functioning. They further agreed that
after the accident she become short tempered, shy and a very sad
person. Their conclusion
was that the appellant’s accident
related injuries are considered to have the potential to impact
negatively on her occupational
functioning and career progression.
[13]
In the joint minutes of Drs’ Azhar and Mazwai who are
neurosurgeons, they are in agreement
that the appellant has suffered
a mild head injury and further that she is suffering from
post-concussion syndrome. They are also
in agreement that to some
extent her career path has been affected by the accident. They
concluded by agreeing that the appellant’s
whole person
impairment according to the AMA guidelines is 18%.
[14]
The Industrial Psychologists could not agree on crucial issues in
their joint minutes. According
to Dr Malaka, the appellant’s
prospects for general employment have diminished in relation to her
able bodied counterparts
and she need to be compensated adequately.
Mr Smith is of the view that the appellant could be exaggerating her
injuries and the
sequelae
thereof in order to substantiate her
claim for compensation and that she has no grounds for a claim.
[15]
It is trite that the courts are not bound by the views of any expert.
The court make the ultimate
decision on issues on which experts
provide an opinion (
See
Road Accident Fund Appeal Tribunal and Others v Gouws and Another
[3]
[16]
The purpose of experts having joints minutes is to try and shorten
the proceedings. It is very
rare that a court will reject an agreed
opinion of experts in their joint minutes. If the court is faced with
conflicting expert
opinions, it must decide which one if any to
accept. It must also make a findings on the reliability of various
expert opinions
(See
Jacobs
v Transnet )
[4]
[17]
According to the court
a quo
the nature and extent of the
appellant’s injuries as well as the opinion of the various
experts, except the appellant’s
industrial psychologist, did
not persuade it to come to the conclusion that the appellant has
suffered any future loss of earning
capacity. The clinical
psychologist and neurosurgeons in their joint minutes were all in
agreement that the accident had the potential
to impact negatively on
the appellants occupational functioning and career progression. It
was only the Industrial Psychologists
who differed on crucial issues.
The respondent’s Industrial Psychologist as I have already
pointed out above in paragraph
14 is of the view that the appellant
could be exaggerating her injuries in order to substantiate her
claim, and therefore, did
not have the ground for a claim.
[18]
The court
a quo
in its judgment has attributed the statement
of the appellant exaggerating her complaints to the opinion of Dr
Moloto. Dr Moloto
in his report has stated that the appellant has not
overstated her complains. It is Mr Smith the Industrial Psychologist
who is
of the view that the appellant is exaggerating her injuries.
In my view, it might have been an honest mistake on the part of the
trial Judge to attribute that statement to Dr Moloto instead of Mr
Smith. In my view, Mr Smith the Industrial Psychologist was
not
competent to comment on whether the appellant was exaggerating her
injuries as that is not within his field. His field
was to
comment on industrial issues and how they will have an impact on the
appellant. It was Dr Moloto the Orthopaedic Surgeon,
Drs Azhar and
Mazwai the neurosurgeons who were competent to make that opinion.
[19]
It is only Mr Smith who is of the opinion that the appellant did not
suffer any loss. The rest
of the experts are of the opinion that the
accident had an impact on the appellant’s occupational
functioning and career
progression. The court
a quo
did not
make any finding on the reliability of the various expert opinions
and the reasons why it did not accept or overlooked
them. In my view
the neurosurgeons and clinical psychologists were objective in their
opinions and were not partisan to the appellant.
Their joint minutes
were therefore reliable and credible and the court
a quo
erred
in rejecting and/or overlooking their opinions in their joint
minutes. According to the joint minutes of the neurosurgeon,
the
appellant’s whole impairment according to the AMA is 18%. The
appellant must therefore be compensated to the extent of
that
impairment. The appeal must therefore succeed.
[20]
What remains is to determine the appropriate contingency deductions
to be applied. It is trite
that the determination of the allowances
for contingencies involves, by its nature, a process of subjective
impression or estimation
rather than objective calculation. In
Road
Accident Fund v Guedes
supra,
it was held that the
calculation of the quantum of a future amount, such as loss of
earning capacity is not a matter of exact mathematical
calculation,
but such inquiry is speculative and a court can therefore only make
an estimate of the present value of the loss that
is often a rough
estimate.
[21]
According to the joint minutes of the neurosurgeons, the appellant
has suffered a mild head injury.
The orthopaedic surgeons in their
joint minutes are of the opinion that the appellant’s injuries
did not result in any serious
long term impairment/ loss of body
function. At the time of the accident the appellant was aged 20
years. The Clinical Psychologists
are of the opinion that the
appellant suffers from moderate symptoms of Post- Traumatic Stress
Disorder, neurocognitive disorder
and somatoform disorders. The
Clinical Psychologists are further of the opinion that the
appellant’s psychological problems
are reactive and she should
benefit from psychological intervention.
[22]
The appellant’s whole impairment has been agreed by the
neurosurgeons to be 18%. It is
below the 30% threshold to be
classified as serious. In my view taking into consideration the age
of appellant and the opinions
of the various experts in relation to
her injuries, it will be appropriate to apply a high contingency
deduction.
[23]
The respondent did not engage the services of an actuary. The only
actuarial report before the
court is that of the appellant. According
to the appellant’s actuarial calculations, the respondent’s
future loss of
earning capacity is an amount of R6 301 646-00. The
appellant is further suggesting a contingency deduction of 5%. As I
have pointed
out in paragraph 22 above that a high contingency
deduction should be applied, in my view an appropriate contingency
deduction
under the circumstances will be 40%. The parties are in
agreement that the appellant did not suffer any past loss of
earnings.
[24]
In my view, the following calculations are fair and equitable:
Future loss of earning
capacity
R6 301 646-00
Less 40% contingency
deduction
R2 520 658-40
Total loss
R3 780 987-60
ORDER
[25]
In the result I make the following order
(25.1) The appeal is
upheld.
(25.2) The order of
the court
a
quo
is
set aside and substituted with the
following:
“
The plaintiff’s
succeed in her claim for compensation against the
defendant. The defendant is to pay the plaintiff the sum of R3 780
987- 60 which represent the plaintiff’s
future loss
of earning capacity. The
defendant to pay the plaintiff’s taxed
or agreed costs.
(25.3) The
respondent is ordered to pay the costs of the appeal.
M.F
KGANYAGO
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION
POLOKWANE
I
Agree
G.C MULLER
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION
POLOKWANE
I
Agree
MV SEMENYA
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION
POLOKWANE
APPEARANCES
FOR
THE APPELLANT
:
ADV.
G.SHAKOANE (SC)
INSTRUCTED
BY
:
MAKGAHLELA MASHABA ATT
FOR
THE RESPONDENT
:
ADV. AP
LAKA (SC)
INSTRUCTED
BY
: PULE
INC
DATE
OF HEARING
: 08
FEBRUARY 2019
DATE
OF JUDGMENT
:
14
FEBRUARY 2019
[1]
2006 (5) SA 583 (SCA)
[2]
(093/2017)
[2018] ZASCA
52
;
2018 (4) SA 366
(SCA) (29 March 2018) at paragraph 65 and 66
[3]
2018 (3) SA 413
(SCA) at para 33
2015(1) SA 139 (SCA) at PARA 14