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[2018] ZAFSHC 117
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Berry NO obo P v Road Accident Fund (1189/2014) [2018] ZAFSHC 117 (5 July 2018)
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FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 1189/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:-
ANDRE
BERRY N.O
o.b.o
S
P
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
DAFFUE, J
HEARD:
8 MAY 2018
JUDGMENT
BY
J
P DAFFUE
DELIVERED:
5 JULY 2018
I
INTRODUCTION
[1]
A claim was instituted by a mother on behalf of her minor son as long
ago as 2014. She was run over by a motor vehicle
whilst eight
months pregnant. She was found to have suffered from an
abruptio
placenta
and an emergency Caesarian section was done. The foetus suffered from
fetal distress and the child was later diagnosed
with cerebral
hypoxia and epilepsy.
[2]
The claim was defended, but as will be indicated, all disputes, save
one, have been settled. The only live dispute is
the percentage
of contingencies to be applied to the claim for loss of income.
II
THE PARTIES
[3]
Adv A Berry is the plaintiff in his representative capacity as
curator ad litem
for the minor child, S P (“the
child”). Mr B L Kretzmann is the
curator bonis
.
[4]
The Road Accident Fund (“RAF”) is the defendant.
III
HISTORY
OF LITIGATION
[6]
On 7 March 2017 defendant accepted liability in full for plaintiff’s
proven damages. In terms of the order of court
granted by
agreement, defendant also furnished the applicable undertaking in
accordance with
s 17(4)
of the
Road Accident Fund Act, 56 of 1996
.
[7]
The matter was postponed to 16, 17 and 19 May 2017 for the
quantum
trial. On 16 May 2017 defendant was ordered by agreement to pay
R1 500.000.00 to plaintiff in respect of general damages.
Further orders were granted,
inter
alia
to
assist with finalisation of the remainder of the claim.
[8]
The matter was eventually set down for 8 and 9 May 2018 for
adjudication of the remainder of the claim, to wit the loss of
income.
IV
THE
OUTSTANDING DISPUTE
[9]
The parties agreed eventually that the actuarial report of Mr Rosslee
of Argen Actuarial Solutions in respect of the loss of
income before
the application of contingencies should be accepted as correct.
The amount agreed upon is R1 045 676.00.
[10]
The only dispute is the percentage of contingencies, if any, to be
applied. Plaintiff submitted that 10%, alternatively
15%
contingencies should be applied to the pre-morbid income calculated
by the actuary to be R1 386 223.00. A 100%
contingency percentage should be applied to the post-morbid income
according to plaintiff’s counsel, which the actuary calculated
at R340 547.00 Defendant’s counsel submitted that
the percentages should be 25% in respect of pre-morbid income
and 35%
in respect of post-morbid income.
[11]
The parties agreed to lead no evidence and that the court may
adjudicate the matter on receipt of their written heads of argument.
V
EVALUATION
[12]
Several expert reports were placed before the court and reliance was
particularly placed on the joint minutes of the industrial
psychologists, Mrs S J van Jaarsveld and Ms M Kheswa. Plaintiff
also referred to a belated report obtained from an educational
psychologist, Ms N P Ntuli. As mentioned, the report of the
actuary was accepted by both parties as correct.
[13]
Due to the limited scope of the dispute, I do not intend to deal with
any of the reports or the submissions in the heads of
argument, save
in the limited manner
infra,
but
reiterate that cognisance has been taken thereof.
[14]
I accept that the child’s career opportunities have been
narrowed down significantly, but I cannot agree with Mrs Van
Jaarsveld’s submission that the child should be compensated for
the total loss of his pre-morbid income.
[15]
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. See:
Ndokeni
v RAF
2014 (7A4) QOD 9 (ECP) at A4-11 and
Bonesse
v RAF
2014 (7A4) QOD 1 (ECP) at A3-17 where Pickering J relied on the
well-known
Bailey
judgment.
[16]
In my view, and notwithstanding the experts’ and in particular
Mrs Van Jaarsveld’s views, there is no clarity that
the child
would have passed grade 12 pre-morbid, or at best, that he would have
done so at the age of 18. I refer to the
history of his
siblings. His sister, that excelled the best, finished school
at the age of 20 only. The Supreme Court
of Appeal mentioned in
Glenn Marc Bee v RAF
(093/2017)
[2018] ZASCA 52
(29 March
2018) para [30] that a court is entitled to test the reliability of
the joint opinion of experts. Such agreed opinion
may be
rejected if it is based on incorrect facts. I have no issue
with the joint minutes of the industrial psychologists
in this
regard, but the principle remains.
[17]
I mentioned the fact that the child’s one sister passed grade
12 at the age of 20. His mother is a hawker that
passed grade 7
and his father, also a hawker, passed grade 11. His brother and
half-brother passed grade 11 and both are unemployed.
One must
be realistic and experts in particular should be warned not to be
subjective and try to be too generous when reporting
on the
pre-morbid career prospects of plaintiffs. Our country is in a
financial crisis and our employment rate is in excess
of 25%; even
higher under the youth. Many people with grade 12 certificates,
even university degrees, are unemployed.
The future is bleak
for the majority of our young people.
[18]
The
“
sliding
scale”
principle
relating to contingency calculations in terms whereof a 1/2% is
allocated for each year till retirement was mentioned
and explained
in RAF v Guedes
2006 (5) SA 583
(A) 588B – C, but although it
may be accepted as a guide, it can never be the alpha and omega.
The same court approached
the matter totally different as is apparent
from paragraphs [16] – [19].
[19]
Bearing in mind the
“
sliding
scale”
principle
a 25% contingency deduction for a child is not unusual. In
matters as
in
casu,
as
was the case in
RAF
v Guedes
2006
(5) SA 583
(SCA), different contingency percentages may be applied to
pre-morbid and post-morbid income.
[20]
I am satisfied that a 25% contingency deduction in respect of both
pre-morbid and post-morbid income would be just and fair.
The
effect hereof is that plaintiff is entitled to payment in the amount
of R784 257.00, which is calculated as follows. The
pre-morbid
income is R1 386 223.00. If R346 557.00 (25%
contingencies) are deducted, the pre-morbid income
after
contingencies is R1 039 667.00. The post-morbid
income amounts to R340 547.00. Once contingencies
in the
amount of R85 137.00 (25%) are deducted, the total post-morbid
income is R255 410.00. The amount to be awarded
is therefore
R1 039 667.00 less R255 410.00 which is R784 257.00.
VI
CONCLUSION
[21]
The plaintiff is successful and entitled to party and party costs.
Costs orders have been made by agreement against the
RAF on 7 March
2017 and 16 May 2017 respectively. The costs order to be made
shall take those orders into consideration.
VII
ORDERS
[22]
The following orders are issued:
1) Defendant is ordered
to pay to plaintiff the amount of R784 257.00 (Seven hundred and
eighty four thousand two hundred and
fifty seven Rand) together with
interest at the prevailing rate from a date 14 (fourteen) days after
judgment to date of final
payment.
2) Defendant shall pay
plaintiff’s costs of the action, including the qualifying and
reservation fees and expenses of all
further necessary expert
witnesses for whose fees and expenses provision was not made in the
orders of 7 March 2017 and 16 May
2017.
_____________
J.
P. DAFFUE, J
On
behalf of applicants: Adv D.R Thompson
Instructed
by:
B
L Kretzmann INC
c/o
Claude Reid
BLOEMFONTEIN
On
behalf of respondents: Adv I Sander
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN