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[2019] ZAFSHC 167
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Hefer NO v Road Accident Fund (A109/2018) [2019] ZAFSHC 167 (17 September 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
A109/2018
In
the matter between:-
ADV
JJF HEFER N.O.
(CURATOR
APPELLANT
TO
M H“THE PATIENT”)
and
ROAD
ACCIDENT
FUND
RESPONDENT
CORAM
:
MBHELE J, CHESIWE, J et OPPERMAN, J
HEARD
ON
:
10 JUNE 2019
DELIVERED
ON
: 17 SEPTEMBER 2019
[1]
This is an appeal against the Judgment of Van Schalkwyk AJ. The
appellant, aggrieved by the manner in which the trial court
exercised
its judicial discretion in its determination of the patient’s
future loss of earnings, approached this court on
appeal.
[2]
The appellant prays for an order in the following terms:
2.1 That a post morbid
deduction of 85% be applied to the agreed post morbid earnings of
R4 764 854-00 resulting in a
nett loss of earnings in an
amount of R5 388 305.00.
2.2 That the amount of R3
244 035-00 in paragraph 1 of the order be substituted with the amount
of R5 388 305.00 and that such payment
be ordered to be paid to
Plaintiff on his representation capacity for the benefit of the
patient.
[3]
The grounds of appeal are stated as follows in the appellant’s
notice of appeal:
“
1. That the trial
court erred in finding:
1.1
That the Appellant was unduly pessimistic in
applying a 75% contingency deduction to actuarial calculation of the
Patient’s
post morbid agreed loss of income;
1.2
That a 40% contingency deduction to the post
morbid scenario would be more than adequate, therefore
implying that the
Patient has a 60% chance of maintaining
employment for the rest of her working life;
1.3
By necessary implication that the Patient has a
60% chance of earning the post morbid agreed amount of R4 764 854.00,
and in so doing not adequately considering the following agreements
and/or evidence:
1.3.1
The agreement by the psychiatrists that the
Patient suffers from an Organic Brain Syndrome due to a head injury
sustained in the
accident in question which resulted in permanent and
irreversible mood and behavioural and personality changes, and that
the Patient
requires suitable protection of any award of a large sum
of money.
1.3.2
That in accordance with the reports of the
clinical psychologists the Patient had a Glascow Coma Scale score
(GCS) of 6/15 and post
traumatic amnesia which extended for some
weeks, such being indicative of severe brain injury, and the
agreement between the clinical
psychologists that the
neuropsychological sequelae / deficits of the Patient were now
permanent and irreversible.
1.3.3
The agreement between the occupational therapists
that the Patient would be compromised regarding the pursuit of
further education
as well as securing work in the open labour market.
In addition, that emotional and psychological factors arising from
her injuries
could negatively impact her work potential, hence
limiting her future employment prospects and opportunities which she
might have
explored pre-morbidly. Furthermore, that depending on the
controllability of her epilepsy, she would need to avoid work
environments
that could trigger seizures.
1.3.4
That the accepted (admitted) report of the
neurosurgeon, Dr Lewer-Allen, the MRI brain scan revealed axonal
brain injury, especially
in the frontal lobes and in the temporal and
parietal areas and that further scans revealed subdural bleeding in
the right frontal,
temporal and parietal lobes. Further, that her GCS
after admission to hospital deteriorated to 3/15, leading Dr
Lewer-Allen, upon
his consideration of all pertinent factors, to
opine that the accident caused long term neurocognitive,
neurobehavioral and neuropsychiatric
changes which have in turn
compromised the Patient’s future career prospects and earning
capacity.
1.3.5
The agreement between the educational
psychologists that pre-morbidly the Patient would have completed
Grade 12 and a three year
diploma, whereas post-morbidly they were
agreed that she could, with concessions for extra time achieve a
basic Grade 12 and a
vocational certificate. This was attributed to
findings by Dr Rossi (for the Plaintiff) that the Patient’s
full scale intelligence
fell within the low average range
post-morbidly, while Dr Mayisela (for the Defendant) found her full
scale intelligence to fall
within the cognitively handicapped range
post-morbidly.
2.
His
Lordship erred in not finding, if not expressly, then by necessary
implications:
2.1
On the basis of the uncontested testimony of Dr
Rossi, the educational psychologist that the Patient only has a 75%
of completing
matric, and even in the event that she does obtain her
matric, and notwithstanding a 90% chance of her obtaining a one-year
vocational
certificate thereafter, the Patient would only have a 25%
chance of securing employment in view of the severe sequelae of her
brain
injuries.
2.2
In the light of the uncontested testimony Mr Van
Huyssteen, the industrial psychologist, that he estimated the
Patient’s chances
of obtaining employment to be between 25% and
30%, but that the Patient has limited capacity to sustain employment.
He was therefore
of the opinion that she only had a 10% to 15% chance
of sustaining employment over the rest of her working life.
3.
In
the premises it is respectfully submitted that this Honourable Court
should uphold this appeal and in so doing order:
3.1
That a post-morbid contingency deduction of 85%
be applied to the agreed post- morbid earnings of R4 764 854
resulting
in a nett loss of earnings in an amount of R5 388 305;
3.2
That the amount of R3 244 035,00 in
Paragraph 1 of the order be substituted with the amount of
R5 388 305,00
and that such payment be ordered to be paid
to Plaintiff in his representative capacity for the exclusive benefit
of the Patient.”
[4]
The appellant’s case hinges around the testimonies of Dr.
Rossi, the educational psychologist and Mr. Van Huyssteen, the
Industrial Psychologist.
[5]
Dr. Rossi’s testimony was to the effect that the appellant
sustained a head injury which involved a subdural bleeding
on the
right. Her investigations revealed that the appellant was an above
average performer before the accident. Her academic performance
dropped after the accident with year to year decline up to a point
where she performed below class average. Directly after the
accident
she failed a grade. Cognitively her IQ level showed a significant
drop. Her IQ test results and severe educational deficits
are
consistent with a severe head injury. She found
that her concentration was weak and that she struggled with
understanding language. She complained of headaches, weight gain, and
hoarse voice. She shows personality and behavioural changes;
she
becomes easily irritated, verbally aggressive and short tempered
since the accident. She opined that pre- morbidly she would
have
passed grade 12 and a 3 year diploma at the University of Technology.
It is assumed that post- morbidly she will pass grade
12 and attain
vocational certificate. Dr. Rossi estimated the patient’s
chances of holding on to a job at 5% in the
worst case scenario and
50% at best. She settled her chances of holding on to a job at 25%.
She found that she will not be able
to work in managerial capacity
because of her executive functioning difficulties. In addition, her
emotional liability places her
future relationships at home and work
at risk.
[6]
Mr. Van Huysteen referred to Dr. Rossi’s findings in relation
to the patient’s expected academic achievements before
and
after the injury. In his view the pre-morbid expected qualification
would have placed the patient at level 5 of the South African
Nation
Qualifilation Framework (NQF). She would have entered the
labour market on a Grade B3 and would have progressed to
C3/C4 on the
Patterson job grading system at the age of 45. He found
that the patient’s earning capacity will
be negatively impacted
by her reduced educational potential as well as neuropsychological,
psychiatric and communication deficits.
The above deficits will have
an impact on the patient’s ability to obtain and maintain
employment as well as on her progression
in the workplace. Because it
is difficult to indicate the exact impact from financial perspective,
Mr. Van Huyssteen is of the
view that these uncertainties can be
better addressed by contingencies.
[7]
The joint minutes of various experts were accepted as evidence:
Dr.
Rossi and Dr. Mayisela were in agreement that the patient may, with
learning support and extra time, achieve a basic mainstream
matric
and attain a vocational certificate. They recommended intensive and
long term learning support and psychotherapy.
[8]
Dr Angus found that the patient is best suited to work that is
relatively routine and structured. Irritability and poor insight
into
her behaviour could affect her relationships in the workplace and put
her at some risk for disciplinary problems.
[9]
The trial court found as follows in paragraphs 26 and 27 when dealing
with contingency and assumptions by the actuary:
“
26 Having regard
to inter alia the aforementioned considerations I am of the view that
a contingency deduction of 75 % is unduly
pessimistic and the
evidentiary value thereof is devaluated by the averment of the
actuary as set out in clause 4.1 of annexures
C, the joint minutes on
page 24 thereof where he asserted: “We have been instructed to
make the following deductions for
general contingencies:
27 I am of the view that
the contingencies contained in the Joint Minutes of the experts and
more specifically the actuarial calculation
thereof from page 21 –
24 will be more than adequately addressed by applying contingency
deduction of 40 % to the post morbid
scenario”
[10]
Mr Kriel, on behalf of the appellant submitted that the trial court
failed to consider all factors regarding the likelihood
of the
patient participating in open labour market as well as her ability to
sustain employment due to severe brain injuries which
had a severe
psychological effect on her. He contended that by applying 40%
contingency to the post morbid scenario, the trial
court meant that
the patient has 60% chance of finding and maintaining employment.
Mr,
Thompson, on behalf of the respondent submitted that the undertaking
in terms of section 17 (4) (a) is meant to help the patient
manage
her condition to cope with difficult work environment. He, further,
submitted that various experts whose reports were accepted
do not
exclude a possibility of the patient finding and sustaining
employment, they state there are chances she may be employed
but she
will require supervision and further medical attention to help her
cope.
APPLICABLE
LEGAL PRINCIPLES
[11]
Contingencies are arbitrary and also subjective in nature. In
Goodall
v
President
Insurance Co Ltd
1978
(1) SA 389
(W) at 392 H – 393 A
the
following was said:
‘
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by authors of a certain type
of almanack, is not
numbered among the qualifications for judicial office.’
[12]
The trial court has a wide discretion when it comes to determining
contingencies. An appeal court will therefore be slow to
interfere
with a contingency award of a trial court and impose its own
subjective estimates. An appeal court cannot simply substitute
its
own award for that of the trial court.
In
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA
)
the court set out the circumstances under which an appeal court is
entitled to interfere with the trial court’s assessment
of the
appropriate contingency deduction as follows:
(a)
Where there has been an irregularity or misdirection (for example the
court considered irrelevant facts or ignored relevant
facts); (b)
Where the appeal court is of the opinion that no sound basis exists
for the award made by the trial court; (c) where
there is a
substantial variation and striking disparity between the award made
by the trial court and the award which the appeal
court should have
made.
[13]
In determining contingencies the age of the claimant is one of the
factors that have to be taken into consideration. T
he
younger the victim, the longer the period over which the vicissitudes
of life will operate and the greater the uncertainty in
assessing the
claimant’s likely career path. See
Bee
v Road Accident Fund
2018
(4) SA 366
SCA
at para 116.
[14]
Courts are not bound by the view of any expert. They make the
ultimate decision on issues on which experts provide opinion.
See
Road Accident Appeal Tribunal & Others v Gouws & Another
2018 (1) ALL SA 701
(SCA) at par. 33.
Expert
opinions serve as a tool to assist the court to come to a conclusion.
[15]
The evidence does not suggest that the patient will not be in a
position to obtain and stay in employment. They evidence shows
that
her chances of finding employment and maintaining it have been
diminished. The argument that application of 40% contingency
by the
trial court suggests that the patient was considered to have 60%
chance of obtaining and sustaining employment is misplaced.
As stated
in
Bee
supra
a lot of factors have to be taken into
account particularly when the victim is young.
The
trial court had an advantage of appraising witnesses. This court
cannot interfere with the discretion of the trial court merely
because it would have come to a different conclusion. There must be a
just cause in law for the appeal court to interfere. In the
absence
of misdirection this court is not at liberty to substitute the
findings of a trial court. The trial court correctly analysed
the
evidence before it and further commented on the assumptions made by
the Actuary. Paragraph 4.1 of the actuarial report relied
upon for
calculations shows that the 75% contingency deduction was arrived at
as per the instruction from the plaintiff.
It is so that the
patient has permanent brain injury which has altered her life
significantly. The experts are of the view that
although the quality
of her life has been severely altered she may be able to stay in
employment albeit with difficulty. The defendant
made an undertaking
in terms of section 17 (4) (a) to provide future medical care for the
patient.
I
am unable to find any demonstrable or clear error on the part of the
trial court to justify interference with its findings. The
appeal
must fail. Costs are in the discretion of the court. This is a
typical matter where each party must pay its own costs.
In
the circumstances I make the following order.
ORDER
The
appeal is dismissed
Parties
to pay their own costs.
_____________
NM
MBHELE, J
I
concur
_______________
S
CHESIWE, J
I
concur
________________
ML
OPPERMAN, J
On
behalf of the Appellant: Adv AL Kriel
Instructed
by: MCINTYRE VAN DER POST
BLOEMFONTEIN
On
behalf of the defendant: Adv DR Thomson
Instructed
by: MADUBA ATTORNEYS
BLOEMFONTEIN