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[2019] ZAFSHC 109
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D S v Road Accident Fund (1143/2017) [2019] ZAFSHC 109 (4 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
1143/2017
In
the matter between
:
D
S
Plaintiff
(Identity
Number: […])
and
ROAD ACCIDENT
FUND
Defendant
CORAM:
DAFFUE, J
HEARD
ON:
15 MAY 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
4 JULY 2019
I
INTRODUCTION
[1]
The matter was set down for trial on 14 and 15 May 2019. On the
first day the parties requested time for settlement negotiations.
They came to an agreement on some issues, but due to the lapse of
time it was agreed to proceed the next day with the hearing of
evidence. In his opening address plaintiff’s counsel
informed the court that the parties had settled the merits of
the
claim 70/30% in favour of plaintiff, that the Road Accident Fund
(“the RAF”) had agreed on past medical and hospital
expenses in the amount of R120 495.01 as claimed and that the
RAF would furnish the required undertaking in terms of
s 17(4)(a)
of
the
Road Accident Fund Act, 56 of 1996
. The plaintiff’s
averment that he has suffered a serious injury has been rejected by
the Health Professions Council
of South Africa (“HPCSA”)
and consequently, the claim for general damages cannot be adjudicated
by the court.
Therefore the court was called upon to adjudicate
plaintiff’s claim in respect of past and future loss of
earnings only.
It soon became evident that plaintiff did not
intend to claim for past loss of income.
II
THE PLAINTIFF
[2]
The plaintiff is D S, an adult male employed as a farm manager in the
district of Thabazimbi, Limpopo Province at the stage
when summons
was issued. At the time of the trial he was a Potato
Certification Officer resident in Christiana and employed
by the
Potato Certification Service with head office in Pretoria
ex
facie
plaintiff’s latest payslip.
[3]
Plaintiff was 23 years old when he sustained injuries in a motor
vehicle collision on 10 January 2016. The collision occurred
6
days before his 24
th
birthday. At the time he was a pedestrian. He was
unemployed then, having obtained his B Agric degree at the end of
2015. He was 27 years old when he testified.
[4]
Plaintiff started off as a farm manager for parents of a friend of
him, apparently sympathetic employers, as he was still ambulating
on
crutches at the time. His income was R10 000.00 per
month. After eleven months he obtained employment as a
sales
representative for Vetrivier Boeredienste CC at an increased gross
salary of R15 000.00 per month. On 1 January
2018 he
commenced employment with his present employer at a monthly salary of
R30 000.00. That increased to a total
monthly package of
R41 843.08 by the time he testified.
III
THE RELIEF CLAIMED
[5]
Plaintiff initially claimed the amount of R550 000.00 in respect
of past and future loss of income. I accept that
this was an
estimated amount. Plaintiff averred in his particulars of claim
that he might increase the amount upon receipt
of further medical
reports. The particulars of claim was amended as recently as 2
May 2019 in terms whereof the amount of
R550 000.00 was
increased to R880 764.00. This was done on receipt of the
actuary, Mr T Doubell’s report
dated 25 February 2019. At
that stage the actuary made his calculations based on income assumed
to be R30 000.00 per
month or R360 000.00
per annum
.
It remains incomprehensible why the actuary could not be provided
with the correct figures earlier. He was instructed
by
plaintiff’s legal team during the trial to make new
calculations based on the correct figure, to wit the total monthly
package of R41 843.08. I shall deal with the outcome
hereunder.
IV
THE DISPUTE TO BE ADJUDICATED
[6]
As mentioned above, the only dispute that requires the court’s
attention is the amount to be awarded for future loss of
earnings.
V
EXPERT EVIDENCE
[7]
Several expert reports have been filed by both parties. These
include reports from orthopaedic surgeons, occupational
therapists,
industrial psychologists and an actuary. None of them
testified, save for Mrs Susan van Jaarsveld, an industrial
psychologist and Mr Doubell, the actuary, who testified on behalf of
the plaintiff. The court was not told whether any of
the other
reports may be accepted as part of the evidential material in the
absence of
viva voce
evidence. Consequently I shall refrain from relying on any
reports, except insofar as these have been confirmed as correct
under
oath and/or insofar as Mrs Van Jaarsveld referred to other reports
which have not been questioned and successfully attacked
during
cross-examination.
[8]
Mrs Van Jaarsveld made certain assumptions which I regard as not
sustainable. Mr Doubell, in turn, relied on her assumptions
in
order to calculate plaintiff’s loss of earnings. I shall
explain later. The RAF closed its case without leading
any
evidence.
VI
FACTS NOT IN DISPUTE
[9]
Plaintiff’s employment history is not in dispute.
Although the extent of his injuries was not pertinently agreed
to
during the course of the hearing or earlier, I am of the view that it
may safely be accepted that plaintiff sustained the following
injuries as reported by Mrs Van Jaarsveld, relying on various other
expert reports, to wit fractures of the left femur, the left
tibia
and fibula and the right elbow. It was also not contested that
plaintiff was walking with a limping gait and that he
was
experiencing several difficulties from a physical point of view such
as walking on uneven terrain, walking long distances,
climbing stairs
and lifting and carrying heavy objects of 25 kg to mention some.
His right arm lacks strength due to the
elbow injury. I repeat
that plaintiff’s claim that he suffered a serious injury was
rejected by the HPCSA.
VII
THE REQUEST TO INCREASE THE CLAIM
[10]
Notwithstanding the recent amendment to increase the claim for loss
of earnings mentioned above, plaintiff informally and after
the
closure of both parties’ cases applied for a further amendment
in paragraph 3.6 of the heads of argument filed by his
counsel,
seeking an increase from R880 764.00 to R2 137 858.00.
This is a 250% increase from the recently
amended amount. This
is an opportunistic approach based on Mr Doubell’s calculations
and in particular the 3
rd
of his three supplementary
reports filed in the course of giving his evidence. I shall deal with
this aspect under the next heading.
It may perhaps be explained
that, once the parties closed their cases, both counsel sought an
opportunity to file written heads
of argument for me to adjudicate
the matter in chambers. I received both heads of argument on 23
May 2019. The RAF’s
counsel did not make any submissions
pertaining to the belated attempt to amend, but rather opted to
submit that the claim for
loss of earnings be dismissed
in toto
.
The actuary testified and supplemented his initial two reports in
order to rely on the correct and admitted salary package
of the
plaintiff and was cross-examined briefly, but the RAF failed to lead
any evidence to dispute his version. It may be
argued that
there is no reason why the court may not in its discretion increase
the amount claimed to an amount it regards just
and equitable,
bearing in mind the evidence led, even if this amount is higher than
the amount claimed. However, if the RAF
was alerted during the
hearing of an intention to amend, the matter might have followed a
different course. Even though three
different reports were
handed in as exhibits, plaintiff’s counsel did not seek an
amendment before the close of his case.
An amendment might have
caused the RAF not to close its case, but instead, to lead evidence,
especially insofar as the plaintiff’s
serious injury assessment
was rejected by the HPCSA. More vigorous cross-examination of
the actuary might have followed as
well. More importantly, the
RAF apparently settled the merits on the 70/30% basis, having regard
to the recent amendment
of the claim to R880 764.00. It
might have decided to contest the merits if it was confronted with a
claim in access
of R2m. Clearly, the RAF will be prejudiced if
an amendment is allowed at this stage.
VIII
LOSS OF EARNINGS
[11]
There is no doubt that plaintiff suffers from a physical disability,
but that does not mean, on its own, that he is suffering
a reduction
of his patrimony. Proof of actual loss must be established.
[12]
In order to assess plaintiff’s future loss of earnings a
comparison should be made between what he would have earned
pre-morbid and what he is likely to earn post-morbid.
In
casu
, the plaintiff was injured more than
three years ago. He did not suffer past loss of earnings.
As is generally the
case with the adjudication of future losses, it
is virtually impossible to be determined with mathematical precision
because of
unknown facts and to an extent speculative evidence.
[13]
Experts
are frequently called in to assist our courts, but courts are not
bound by the opinions of experts. It is the duty
of the expert
to furnish the court with the necessary scientific criteria for
testing the accuracy of the expert’s conclusions
so as to
enable it to form an independent judgment by the application of these
criteria to the facts proved in evidence.
[1]
In the evaluation of the evidence of experts it is required to
determine whether and to what extent their opinions are founded
on
logical reasoning
.
[2]
This
approach has been consistently followed. In
Linksfield
[3]
the SCA warned presiding officers against adjudicating evidence by
applying the yardstick used by expert scientific witnesses who
tend
to assess likelihood in terms of scientific certainty.
Presiding officers should not be seduced to apply to the expert
evidence the standard which the expert applies, but instead, the
balance of probabilities must be ascertained based on a review
of the
totality of the facts.
[14]
In
Medi-clinic
v
Vermeulen
[4]
Zondi, JA, writing for a unanimous SCA bench, stated with reference
to the judgment of that court in
Michael
and another v Linksfield Park Clinic (Pty) Ltd
that
an opinion expressed without logical foundation can be rejected.
[15]
An aspect that cannot be disregarded, although Mrs Van Jaarsveld was
not cross-examined in that regard, is the remark in paragraph
6.6 of
her report. During her interview with plaintiff he requested
her not to contact his employer
“
as he had
only recently started and that he had not disclosed the fact that he
was in an accident and sustained serious injuries.”
She
consulted and evaluated the plaintiff on 17 January 2018, less than
three weeks after he commenced employment with his present
employer.
It is now 18 months later and plaintiff is still employed at the same
employer.
[16]
Another aspect that must be accepted in considering an award for loss
of earnings in this instance is the plaintiff’s
ability to work
without his employer noticing his alleged disability. Contrary
to the sub-standard performance that might
have been expected of a
disabled person, plaintiff was even granted huge salary increases of
up to 50% in less than 18 months.
Unlike what courts encounter
in many similar cases, the employer was not called to testify in
order to show that it was sympathetic
towards the plaintiff and
accommodated him notwithstanding his inability to give 100%. It
cannot be forgotten that the plaintiff
was not injured during the
course of his present or previous employment, but when he was still
unemployed just after having obtained
his B Agric degree.
[17]
There is no logical foundation for Mrs Van Jaarsveld’s
assumption in paragraph 6.8 of her report
“
that
Mr S will not be able to work at the same rate as prior to the
accident and that his productivity had been negatively affected
by
the injuries he sustained during the accident.”
This
assumption is totally incorrect and rejected. There is no evidence of
a decline in the plaintiff’s performance.
His employer
did not complain about his performance and quite the contrary appears
to be true: he received a huge increase in salary
in a short period
of time. In any event, he became employed long after he had
sustained the injuries and did not testify
that he could not cope
with his obligations. I accept, however, that plaintiff’s
injuries may in future have a negative
effect on his ability to
perform at his peak. It is accepted, based on experience in
other similar matters and what Mrs Van
Jaarsveld testified, that the
type of leg injuries sustained, although healed, may in future affect
plaintiff’s knee, hip
and even ankle. The elbow may also
present further problems in future.
[18]
The application of contingencies must be considered. General
contingencies, also referred to as normal contingencies,
have
generally become accepted at 5% and 15% in respect of past and future
loss of earnings respectively. In a recent judgment
of the Supreme
Court of Appeal,
[5]
Willis, JA
referred to the normal range of contingencies in respect of future
loss of earnings as between 15 and 20%. However,
the
‘
sliding
scale’
approach
in terms whereof ½% is allowed for each year to retirement is
also recognised by our courts and I refer to
Guedes
[6]
in particular. It may be accepted as a guide and can never be
the alpha and omega. Different contingency percentages
may be
applied to pre-morbid and post-morbid income as was the case in
Guedes
.
In
Kerridge
[7]
the majority held that
“
(C)ontingencies
are arbitrary and also highly subjective”
and
“
(I)t
is for this reason that a trial court has a wide discretion when it
comes to determining contingencies.”
[19]
Mrs Van Jaarsveld submitted that contingencies should be applied
based on the following aspects, to wit
(a) plaintiff will not be
able to work at the same rate post-morbid as pre-morbid and therefore
his productivity will be negatively
affected which can also impact
negatively on his career progression;
(b) his lack of
productivity can result in his retrenchment or dismissal or his
inability to generate the same income;
(c) if he is to lose his
work, he will need to be accommodated by a sympathetic employer as he
will be an unequal competitor and
(d) he will not be able
to work until normal retirement age.
I
already indicated that I do not agree with the witness’
assumptions.
[20]
Mr Doubell relied on the assumptions and submissions of Mrs Van
Jaarsveld in order to prepare all his reports, save for the
ultimate
report dated 14 May 2019, accepted by the court as exhibit “D”.
In the first two reports contained in
exhibit “A”,
dated 12 April 2018 and 25 February 2019 respectively, he calculated
the loss of earnings to be R844 051.00
and R880 764.00.
The second report was merely an updated version. He relied on a
15% reduction on plaintiff’s
pre-morbid income and 25% on the
past-morbid income. The income of plaintiff was estimated to be
R30 000.00 per month.
In his third report, dated 14 May
2019, admitted as exhibit “B”, he used the same
methodology as in the first two reports,
but calculated the loss on
the exact income of plaintiff, arriving at an amount of
R1 013 306.00. Mr Doubell testified
that actuaries
usually make use of a standard deviation of 10% between future pre-
and post-morbid income. In the fourth
report of the same date,
accepted as exhibit “C”, the actuary came to a figure of
R1 925 282.00, after allowing
for contingencies of 19% and
38% in respect of pre-morbid and post-morbid income respectively and
a retirement age as in the previous
reports of 65 years. In his
last report mentioned above, the actuary applied 19% and 36%
contingencies on the basis of Ms
Kheswa, the industrial
psychologist’s report obtained by the RAF, that plaintiff might
be forced to retire between the ages
of 60 and 65 years. Also,
Ms Kheswa stated that plaintiff’s career ceiling might be a bit
higher than estimated by
Mrs Van Jaarsveld. Mr Doubell
conveniently did his calculations on a retirement age of 62.5 years
and arrived at a loss of
R2 137 858.00.
[21]
Mr Doubell explained that although actuaries in the past usually
calculated loss of income in similar situations on the basis
of a 10%
deviation as mentioned above, they have now changed their practice by
applying the ½%
per
annum
principle.
Although the sliding scale principle has received judicial
recognition years ago
[8]
, the
actuary did not provide a logical reason for the percentages applied
in casu
and why he differentiated so much between the pre-and post-morbid
percentages. I am not prepared to find that the calculations
in
the last two reports are based on a logical foundation. The
actuary’s first three reports were based on a standard
deviation of 10% and the third report is dated the same day as the
last two reports.
[22]
No doubt, the determination of contingencies is a process of
subjective impression or estimation rather than an objective
calculation. The application of contingencies is largely
arbitrary and depends on the trial judge’s impression of the
case. The future is uncertain and it is difficult to judge how a
person’s career prospects may change over a considerable
period
of time and/or what other factors may influence the career, either
positively or negatively. The facts and all relevant
circumstances must be considered as best as possible in order to
adjudicate the matter.
[9]
[23]
I criticised Mrs Van Jaarsveld’s approach above and do not
intend to repeat myself. In my view plaintiff proved
that he is
capable to continue with his employment obligations. He
impressed his employer to the extent that he received
huge salary
increases in a short period of time. He is not expected to
crouch underneath objects or to sit on his haunches
or to walk for
kilometres at a time or to carry heavy objects weighing 25 kg over
certain distances, aspects that cause him some
difficulty at this
stage. As a graduate with a B Agric degree, employment
opportunities in the agricultural field are wide-ranging.
He
may also improve himself in his present employment environment in
order to be promoted to a managerial or supervisory position
in
future. Surely, it is not expected from managers in the
particular environment to do much, if any, field work. Juniors
are tasked to do that. The mere fact that the head office of
plaintiff’s employer is in Pretoria is indicative of the
fact
that much administrative work is conducted in an office environment.
The difficulties that plaintiff may experience
as a result of his
injuries may be overcome as he gets promoted in future. In
saying this I do not turn a blind eye to the
possibility that
plaintiff may in future and as he gets older – he is still a
young man of 27 years - have more difficulties
to cope than at
present for the reasons advanced. However, I am not satisfied that
the standard deviation of 10% between pre- and
post-morbid loss of
earnings should be applied in respect of contingencies.
[24]
The actuary’s third report, exhibit “B”, is based
on the actual and correct salary package of the plaintiff,
whilst the same does not apply to the second report contained in
exhibit “A.” Even if I could have awarded an
amount
higher than claimed, I would have decreased the 10% deviation to
about 5%, the reason being that I am not as negative about
the
plaintiff’s post-morbid career prospects as testified to by Mrs
Van Jaarsveld. I say this notwithstanding the fact that
a 10%
difference is in line with the judgment in
Guedes.
[10]
The plaintiff’s future in Guedes was regarded to be
“
precarious”
which clearly does
not apply to the plaintiff
in
casu
.
I am prepared to find that plaintiff has proven a loss of earnings
equal to the amount claimed in the particulars of claim.
The
calculations to arrive at the figure claimed were done on a lower
income than the actual amount proven, but plaintiff received
the
advantage of a 10% deviation between pre- and post-morbid income,
contrary to what he is entitled to in my assessment. Instead
of
referring the matter back to the actuary and thereby incurring extra
costs, I prefer to finalise the matter on this basis which
I believe
is just and fair to both parties.
[25]
RAF’s counsel incorrectly relied on
RAF
v Sweatman.
[11]
This judgment, dealing with the statutory limits of loss of income or
so-called capping, does not apply
in
casu.
The
statutory limit at the time of the accident was R237 850.00
per
annum
which
is much higher than claimed by plaintiff.
IX
CONCLUSIONS
[26]
In summary, I am satisfied that the plaintiff has proven an
entitlement to the amount claimed in the particulars of claim.
I stated above that the parties agreed at the onset of the trial on a
70/30% apportionment of damages in favour of plaintiff, the
effect
being that the RAF is liable for payment of 70% of plaintiff’s
proven damages.
[27]
The amount found to be fair, to wit R880 764.00, must be reduced
with 30% and therefore an amount of R616 535.00
shall be awarded
in respect of loss of earnings. The parties agreed on the past
medical and hospital expenses in the amount
of R120 495.01.
70% thereof is R84 347.00 and this shall be added to the amount
of R616 535.00 which equals
R700 882.00.
X
THE ORDERS
[28]
Judgment is granted against defendant in favour of plaintiff as
follows:
1. Defendant shall pay to
plaintiff an amount of R700 882.00 (seven hundred thousand eight
hundred and eighty two Rand).
2. Defendant shall pay
interest on the above amount at the prevailing legal interest rate
calculated from 30 (thirty) days after
judgment to date of final
payment.
3. Defendant shall
furnish an undertaking in terms of
section 17(4)(a)
of the
Road
Accident Fund Act, 56 of 1996
to plaintiff in respect of 70% of the
costs of future accommodation of plaintiff in a hospital or nursing
home, or treatment of
or rendering of a service to him or supplying
of goods to him arising out of the injuries sustained by him in the
collision of
10 January 2016, and the
sequelae
thereof, after such costs have been incurred and upon proof thereof.
4. Costs of suit together
with VAT thereon, including the reasonable qualifying, preparation,
reservation and attendance fees, as
well as the accommodation and
travelling costs, if applicable, of all experts employed by the
plaintiff.
5. Interest on the costs
of suit at the prevailing legal interest rate from 14 (fourteen) days
after the Taxing Master’s allocator
to date of payment.
_______________
J
P DAFFUE, J
On
behalf of Plaintiff: Adv EG Lubbe
Instructed
by: McIntyre & van der Post
BLOEMFONTEIN
On
behalf of Defendant: Adv J Ferreira
Instructed
by: Maduba Attorneys
BLOEMFONTEIN
[1]
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellshaft für
Schȁdlingsbekȁmpfung MHB
1976 (3) SA 352
(A)
370H – 372A.
[2]
Michael and another v Linksfield Park Clinic (Pty) Ltd and another
2001 (3) SA
1188
(SCA) paras [36] – [40] and Medi-clinic v Vermeulen
2015
(1) SA 241
(SCA) at paras [5] – [8] & [25], [26] &
[31].
[3]
Op cit at
par [40].
[4]
Op cit at
par [5].
[5]
NK v MEC
for Health, Gauteng
2018 (4) SA 454
(SCA) at par [16].
[6]
See the
discussion in RAF v Guedes
2006 (5) SA 583
(SCA) at par [9] and also
the eventual 20% contingency percentage applied at paras [17] &
[18] in the ‘but for scenario’,
contrary to the 30%
percentage having regard to the accident.
[7]
RAF v Kerridge
2019 (2) SA 233
(SCA) at par [42]. See also
paras [41] – [44]
.
[8]
See Guedes
at footnote 6.
[9]
Ndokeni v RAF 2014 (7A4) QOD 9 (ECP) at A4-11 and Bonesse v RAF 2014
(7A4) QOD 1 (ECP) at A3-17 and Pickering, J’s reliance
on the
well-known Bailey judgment.
[10]
Op cit.
[11]
2015 (6) SA 186
(SCA).