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[2019] ZAFSHC 20
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O C v Road Accident Fund (213/2017) [2019] ZAFSHC 20 (17 April 2019)
SAFLII
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THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: 213/2017
In the matter between:
O
C PLANTIFF
and
THE ROAD ACCIDENT
FUND DEFENDANT
Coram:
Opperman, J
Heard:
26-27 FEBRUARY 2019
Delivered:
17 APRIL 2019
Judgement:
Opperman J
Summary:
Loss of earnings – expert
evidence
JUDGEMENT
I
INTRODUCTION
1.
The judgement is seized with the issue of
the plaintiff`s loss of earning capacity/future loss of earnings. The
plaintiff was hit
by a motor vehicle on the 26
th
of December 2015. He was a pedestrian. The defendant has admitted
100% liability on the merits.
2.
On the 13
th
of June 2017 an order was issued against the defendant to pay the
plaintiff an interim amount of R200 000.00 in respect of
loss of
earnings as well as to issue an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in respect of
future medical expenses. The plaintiff`s claim for general damages
was rejected by the defendant and the rejection
was confirmed by the
HPCSA.
II
INJURIES AND RESULTANT PROJECTIONS BY EXPERTS
3.
The plaintiff suffered a fracture of the
left tibia and fibula according to the joint minutes of the
orthopaedic surgeons dated
14 November 2017.
4.
Sequalae are the scars on his legs that can
be addressed by a plastic surgeon. The
section 17(4)(a)
undertaking
will cover this.
5.
Further, the plaintiff could not return to
school because he could not walk for long distances and did not have
the means for transport.
He would however have been able to return to
school by 2017.
6.
The joint minutes of the surgeons state
that:
Mr.
Chakane`s long-term prognosis is relatively benign. His condition
will improve once the internal fixation has been removed from
his
left tibia and the scars have been revised. Dr Bogatsu reported that
Mr Chakane did return to school following the incident.
He walks with
an antalgic gait.
7.
One of the surgeons noted that he was not
provided with any clinical record by the instructing attorney. He was
told that the plaintiff
suffers from mechanical pains. The plaintiff
did not report any cosmetic complaints during his interviews on 9
October 2017. Said
surgeon completed the RAF 4 form and confirmed
that Mr. Chakane has not been left with any serious accident related
impairments.
8.
The other surgeon believed that Mr Chakane
will benefit from removal of the internal fixation from the left
tibia and excision of
the scars.
9.
From the above it is clear that the
plaintiff did not suffer any notable permanent debilitating injuries
or impairments that will
impact on his capacity to make an earning.
10.
This
was confirmed in the joint minutes of the occupational therapists.
[1]
Their findings were that the plaintiff does indeed have residual
physical and earning capacity. They found that his current
employability
has been negatively affected by the accident and that
he is not equal to his uninjured peers currently. They do agree that
because
he is 21 years old, with grade 10 as highest educational
level and his standard of residual physical capacity; he requires
guidance
and treatment in order for him to pursue employment
opportunities.
11.
The joint minutes of the industrial
psychologists compared his pre-accident capacity with the situation
post-accident and they agreed
that he does have the residual physical
capacity for sedentary to occasional light work and that it renders
him unsuited to perform
the majority of unskilled work roles in line
with his level of education at present.
12.
The above must be regarded with the reports
of the orthopaedic surgeons that his condition will improve with
treatment.
13.
These two experts later diverted completely
and concluded that a total loss of income is foreseen. This does not
make sense on the
facts
in casu
.
14.
They do however accede that the
pre-accident likely earnings should be used as a basis to quantify
the claim. They do acknowledge
that the contingency will be the
prerogative of the court.
15.
The
actuary
[2]
based his conclusion
on the findings of the industrial psychologists only and as is the
situation currently; without treatment
accommodated with the
section
17(4)(a)
certificate and as recommended by the orthopaedic surgeons
with a positive outcome of maximum recovery. It does not reflect the
evidence of this case in toto. The facts specific to the case were
not regarded; 25% is a general calculation.
[3]
[18] In the
Quantum
Yearbook
(by Robert Koch, 2017 Edition, p 126) the learned
author points out that there are no fixed rules as regards general
contingencies.
However, he suggests the following guidelines:
"Sliding scale: Yz%
per year to retirement age, i.e. 25% for a child, 20% for a youth and
10% in the middle age.
Normal contingencies: The
RAF usually agrees to deductions of 5% for past loss and
15% for future loss, the so-called
normal contingencies."
[19] I accept that this
approach is only a guideline as contingencies, by its very nature, is
a process of subjective impression
or estimation rather than
objective calculation.
III
THE CLAIMS
16.
The
claim in the Particulars of Claim
[4]
reads that:
Wherefore
the plaintiff claims from the Defendant:
a)
Payment of the total damages amounting to
R950 000.00
b)
Interest on aforementioned damages
calculated at the mora rate of 3,5% above the repo rate calculated up
to the date of payment,
as per the
Prescribed Rate of Interest Act,
55 of 1975
, as amended;
c)
Costs of suit.
17.
The evidence of the actuary and the Heads
of Arguments of the Plaintiff now indicate a claim based on the
matter of
Phalane v RAF (48112/2014)
[2017] ZAGPPHC 759 (7 November 2017)
and with no residual income capacity. It is not contested that the
plaintiff falls under the auspices of “youth”. The
calculations are now as follows:
14. Consequently, it is
submitted that a 20 % contingency should be applied when calculating
Plaintiff`s future loss of earnings.
15. If a 20% contingency
is applied and using the calculations of Sauer, the nett result is
that Plaintiff has suffered future loss
of earnings in the amount of
R1 825 568.80 (R2 281 961.00 – R456 392.20=
R1 825 568.80).
16. In
conclusion it is submitted that Plaintiff is entitled to judgement in
the amount of R1 825 568.80 for future loss
of earnings
together with costs and further orders in terms of the Draft Order
presented to the court.
18.
The defendant agreed with the Draft Order
but for the future loss of income. They opposed the claim and stated
that the plaintiff
does have a residual income capacity on the proven
facts of the case. The following outcome is suggested:
Future loss of
earnings
R2 230 394.00
Less contingency of
60%
R1 338 236.40
Total
R892 157.60
Less
interim
R200 000.00
Total
R692 157.60
Total entitled
to
R892 157.60
IV
EXPERT EVIDENCE
[5]
[6]
19.
The dispute lies in the interpretation of
the experts’ evidence. The defendant claims that the evidence
indicates a residual
earning capacity whilst the plaintiff relies on
the letter of the word of the finding of the experts that he has no
earning capacity
whatsoever.
20.
It is vital that the evidence pinioned by an expert is solid. Solid
supposes veracity of the facts of the particular case, expertise
on
the issue and an opinion that makes legal sense based on the facts
combined with the expertise.
21.
Counsel for the defendant`s argument is
strongly supported by his reference to
Southern
Insurance Association v Baily NO
1984 (1) SA 98
(A)
that was supported in
Adv Johan Malherbe
Kilian N.O Plaintiff in his capacity as Curator Ad Litem to Jansen
Van Rensburg: Andre Abraham Petrus Le Grange
v Road Accident Fund,
The High Court of South Africa (Gauteng Division, Pretoria) Case No.
34116/2016 Judgement 15/9/2016 Gauteng
Division, Pretoria.
[1] 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 estimates, which
is often a very rough
estimate, of the present value of 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.
[2] It is manifest that
either approach involves guesswork to a greater or lesser extent.
When it comes to scanning the uncertain
future, the Court is
virtually pondering the imponderable, but must do the best it can, on
the material available even if the result
may not inappropriately be
described as an informed guess, for no better system has yet been
devised for assessing general damages
for future loss.
[6] I must however
emphasise that because of the speculative nature of the enquiry, when
parties elect to approach the court on
a stated case and lump sum of
money is claimed, as in the present case, R6 653 636.00 from the
public coffers, it is incumbent
on the parties to place before the
court sufficient evidence in the form of admissions and other
admitted format.
22.
National Justice Compania Naviera S.A v Prudential Assurance Co
Ltd 1993 (2) Lloyds Reports 68-81
set out the duty or role of an
expert.
"1. Expert evidence
presented to the court should be, and should be seen to be, the
independent product of the expert uninfluenced
as to form or content
by the exigencies of litigation.
2. An expert witness
should provide independent assistance to the court by way of
objective, unbiased opinion in relation to matters
within his
expertise. An expert witness should never assume the role of an
advocate.
3. An expert witness
should state the facts or assumptions upon which his opinion is
based. He should not omit to consider material
facts which could
detract from his concluded opinion.
4. An expert witness
should make it clear when a particular question or issue falls
outside his expertise.
5. If an expert opinion
is not properly researched because he considers that insufficient
data is available, then this must be stated
with an indication that
the opinion is no more than a provisional one. In the case of where
an expert witness who has prepared
a report could not assert that the
report contained the truth, the whole truth and nothing but the truth
without some qualification,
that qualification should be stated in
the report."
23.
The above duties were reaffirmed in
Nicholson v Road Accident Fund
(11453/2007) 2012 SGHC (unreported)
:
"A number of expert
witnesses called on behalf of the plaintiff overstepped the mark by
attempting to usurp the function of
the court and to express opinions
based on certain facts as to the future employability of the
plaintiff and to express views on
probabilities. It is the function
of the court to base its inferences and conclusions on all the facts
placed before it.”
24.
Mathebula v RAF (05967/05) [2006] ZAGPHC
it was stated
that "An expert is not entitled, anymore more than any other
witness, to give hearsay evidence as to any
fact, and all facts on
which the expert witness relies must ordinarily be established during
the trial, except those facts which
the expert draws as a conclusion
by reason of his or her expertise from other facts which have been
admitted by the other party
or established by admissible evidence".
25.
In
Schneider NO & Others v AA & Another 2010 (5) 203 WCC
,
which was quoted in the Nicholson judgment, Judge Davis stated that
at paragraph 211J-212B: "In short, an expert comes to
court to
give the court the benefit of his or her expertise. Agreed, an expert
is called by a particular party, presumably because
the conclusions
of the expert, using his or her expertise, are in favour of the line
of argument of the particular party. But that
does not absolve the
expert from providing the court with as objective and unbiased an
opinion, based on his or her expertise,
as far as possible. An expert
should not be a hired gun who dispenses his or her expertise for the
purpose of a particular case.
An expert does not assume the role of
an advocate, nor gives evidence which goes beyond the logic which is
dictated by the scientific
knowledge which that expert claims to
possess.”
26.
In
RAF v Zulu
[2011] ZASCA 223
the court dealt with the
approach to expert evidence that has to be adopted by the courts. The
court reaffirmed the principles
set out in
Michael v Linksfield
Clinic (Pty) Ltd
2001 (3) SA 1188
SCA
that: "What is
required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced
are founded on logical
reasoning".
27.
The common theme is that courts must jealously protect their role and
powers. Courts are the ultimate arbiters in any court
proceedings.
28.
The facts that caused the expert opinions in this case are vital. It
was sourced from the plaintiff.
V THE PLAINTIFF
29.
The plaintiff`s educational psychologist reported that numerous
inconsistencies were noted in the information given by the plaintiff
compared with the information related to other experts, mostly
related to his scholastic history. He even altered information
regarding his school progress at the assessment noting within a
different context that he had never repeated any grades in school.
She stated that:
“He was not
regarded a reliable historian.”
This shows that the
facts on which the conclusions were based lacks veracity.
30.
The plaintiff, born on 25 January 1996, was 19
years old at the time of the incident. At the time of his assessment
in 2018 his
highest level of education was grade 10 and he was
unemployed. His father held a grade 12 certificate and was employed
with the
Military Police. In 2011 the father was killed in a motor
vehicle accident. The plaintiff, his mother and two siblings lived of
the father’s pension until her sudden passing away. He and his
brothers continued to reside in the family home. They currently
rely
on an income of R1800.00 per month from renting out two rooms on
their property. He was involved in a relationship from which
relationship a daughter was born in 2015.
31.
He has never been employed pre-and-post the incident. He had just
completed grade 10 when he was involved in the accident. He
was not
allowed back to school due to his age. He remained at home during
2016. He enrolled at a training centre to complete
grade 11 but
was unable to walk daily long distances and did not have the finances
to travel with public transport. He stopped
attending after a few
weeks.
32.
That said; she reported from further information from the plaintiff
that he did attend pre-school but repeated grade1 and grade
2 and
failed grade 3. He again later failed grade 7. He had to terminate
his grade 9 studies because his mother could not afford
school fees
for three children. According to the plaintiff he completed N2 and N3
studies at a college but never received the results.
He never
returned to education after the accident. The evaluation is that:
Pre-accident: From the
available information and my assessment results, he was an individual
with learning problems pre-accident.
His learning challenges
influenced his functioning and progress in school. He was a learner
with average intellectual ability.
In the current school system, he
would have been able to complete grade 12. He would have obtained an
NQF4 qualification, but with
lower marks and without exemption and 2
years later than the norm. He probably would have entered the labour
market in line with
his parents and siblings, 2 years later than his
peers. He would have relied on strength and stamina to find practical
employment.
He would have been able to care for himself with the
basics as seen in his family.
Post-accident: The
accident under discussion left him with challenges and disfigurement.
His problems influence him negatively and
had a significant impact on
his emotional and psychological functioning. Post-accident, he is not
able to do practical work comfortably
relying on his strength and
stamina. He is rendered an unequal competitor in the open labour
market. He is not suitable for administrative
work and from practical
perspective, with his aptitude; physical and psychological
restrictions, he is
probably
unemployable for the competitive
open labour market.
VI
CONCLUSION
33.
The evidence shows that the foundation of the experts` conclusions is
shaky and contradictory. What has been proven is that
the plaintiff`s
pre-accident earning ability and record is a major contributor to his
current unemployability; more so than the
injuries. The injuries are
stated to have a possibility of radical improvement but the
contradictory finding is that the plaintiff
is probably unemployable
for the competitive open labour market. The facts on which the
opinions are based are unconfirmed in that
the background of the
plaintiff is contaminated by his ambiguous evidence.
34.
The plaintiff has a residual income capacity and a contingency of 45%
is an apt and generous measurement that is supported by
the case in
its totality.
Future
loss of earnings
R2 281 961.00
[7]
Less
contingency of 45%
R1 026 882.45
Less
interim
R200 000.00
Total
entitled to
R1 055 078.55
VII
ORDER
1.
The Defendant is liable to pay 100%
(Hundred percent) of the proven or agreed damages.
2.
The Defendant to pay the Plaintiff’s
attorneys the sum of R1 055 078.55 in respect of loss of
earnings into the
Plaintiff’s Attorney’s trust account
with details.
ACCOUNT
HOLDER: VZLR INC
BRANCH:
ABSA BUSINESS BANK HILLCREST
BRANCH
CODE: 632005
TYPE
OF ACCOUNT: TRUST ACCOUNT
ACCOUNT
NUMBER: […]
3.
In the event of default on the above
payment, interest shall accrue on such outstanding amount at 10.25%
(at the mora rate of 3.5%
above the repo rate on the date on this
order, as per the
Prescribed Rate of Interest Act, 55 of 1975
, as
amended) per annum calculated from due date until the date, as per
the
Road Accident Fund Act, of payment
.
4.
The issue of loss of earnings is separated
from all the other issues in terms of
Rule 33(4)
, with the remainder
of the issues of quantum being postponed to the pre-trial roll of 12
August 2019.
5.
The Defendant to pay the Plaintiff’s taxed or agreed party and
party costs in the above-mentioned account, for the instructing-
and
correspondent attorneys, which costs shall include, but not be
limited to the following:
5.1
All reserved costs to be unreserved, if any;
5.2
The fees of Senior Junior Counsel;
5.3
The costs of obtaining all expert medico legal- and any other reports
of an expert nature which were furnished to the Defendant
and/or its
experts;
5.4
The costs of obtaining documentation / evidence, scans, considered by
the expert(s) to finalise their reports;
5.5
The reasonable taxable qualifying, preparation and reservation fees
of all experts, including the costs of consultation fees
with the
legal teams, if any;
5.6
The reasonable traveling- and accommodation cost, if any, incurred in
transporting the Plaintiff to all medico-legal appointments;
5.7
The reasonable costs for an interpreter’s attendance at the
medico legal appointments for translation of information,
if any;
5.8 The above-mentioned
payment with regard to costs shall be subject to the following
conditions:
5.8.1
The Plaintiff shall, in the event that costs are not agreed, serve
the notice of taxation on the Defendant’s attorney
of record;
and
5.8.2
The Plaintiff shall allow the Defendant 14 (fourteen) calendar days
to make payment of the taxed costs;
5.8.3 In the event of
default on the above payment, interest shall accrue on such
outstanding amount at the prescribed mora rate
on the date of
taxation / settlement of the bill of cost, as per the
Prescribed Rate
of Interest Act, 55 of 1975
, as amended, per annum, calculated from
due date until the date of payment.
___________________
M OPPERMAN, J
COUNSEL
FOR THE PLAINTIFF
ADV. M LOUW
Advocate`s
Chambers
Bloemfontein
ATTORNEY
FOR THE DEFENDANT
AJ JEJE
MADUBA
ATTORNEYS
67
PRES REITZ STREET
WESTDENE
BLOEMFONTEIN
MA/RAF/2960
[1]
INDEX: JOINT MINUTES: Page 8.
[2]
Exhibit A dated 12 June 2018 handed in by the plaintiff during the
hearing.
[3]
Plaintiff`s
Heads of Arguments at paragraph 12.
[4]
INDEX PLEADINGS: Page 9.
[5]
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A),
Louwrens
v Oldwage
2006 (2) SA 161
(SCA),
Michael
And Another v Linksfield Park Clinic (Pty) Ltd And Another
2001 (3)
SA 1188
(SCA), Raf v Zulu & Others
[2012] JOL 28456
(SCA), Rex v
Jacobs
1940 TPD 142
, S v Malindi 1983 (4) SA 99 (T).
[6]
https://www.hg.org/legal-articles/the-role-of-expert-evidence-in-south-africa-27251
dated
12 April 2019.
[7]
Sauer calculation dated 12 June 2018.