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[2017] ZAGPPHC 828
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Cawood NO obo Cloete v Road Accident Fund (82369/2014) [2017] ZAGPPHC 828 (13 February 2017)
FLYNOTES:
LOSS OF INCOME – OBJECTIVE EVIDENCE
ACTUARIAL
– Loss of income – Industrial psychologist –
Relied on salary told to her by plaintiff –
Did not test
information with reference to his payslip or other objective
evidence – Opinion of little value if material
facts relied
upon are flawed – Actuaries directed to recalculate loss of
income based on payslip and employment certificate.
REPUBLIC OF SOUTH
AFRICA
OFFICE
OF THE CHIEF JUSTICE
GAUTENG
DIVISION. PRETORIA
13
February 2017
CASE
NO: 82369/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
ADV
CLAIRE CAWOOD N.O. obo SHAUN ENRICO CLOETE
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
Fourla
AJ
1.
This is a claim for damages arising from a motor vehicle
collision that occurred on 2 February 2011 when a truck left the N7
roadway
and overturned after the driver had lost control thereof. The
initial plaintiff, to whom I will for the most part refer to as Mr
Cloete, was a passenger on the back of the truck at the time.
2.
At the outset I was informed by counsel that the issue of
liability had been settled and that the defendant had agreed to pay
100%
of Mr Cloete's proven or agreed damages.
3.
I was subsequently informed that agreement had been reached in
respect of the following heads of damages:
3.1.
The defendant agreed to furnish Mr Cloete with an undertaking
in terms of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of
1996
to cover his claim for future hospital medical and related
expenses.
3.2.
The defendant agreed to pay an amount of R 250 000.00 in
respect of Mr Cloete's claim for general damages.
3.3.
Mr Cloete abandoned his claim for past medical expenses.
4.
The issue that remains in dispute is accordingly Mr Cloete's
loss of earnings and/or loss of earning capacity.
5.
Once the evidence had been led, counsel both requested an
opportunity to file written heads of argument and a time frame was
agreed
upon. The last submissions were received by me on 25 September
2016. Thereafter I requested a copy of the papers relating to the
appointment of the
curator
ad litem,
to which reference
had been made in the heads of argument. It took several weeks to
obtain the papers. Once I was able to commence
preparing my judgment,
it became clear to me that the issues had not been fully canvassed by
counsel in their respective heads
of argument. I accordingly
requested the Deputy Judge President to set the matter down once
again in order that the arguments be
completed. Argument was heard on
18 January 2017, hence the delay in preparing this judgment.
6.
The parties had agreed to the submission of a number of expert
reports as evidence to be adduced for purposes of quantification of
Mr Cloete's· damages. In addition, each party called an
industrial psychologist to give evidence on its behalf and Mr Cloete
also called a witness who testified in respect of the status of his
claim instituted against the Department of Labour.
7.
The minutes of the second pre-trial conference held on 14 June
2016 reflect an agreement in terms of which, should the defendant
fail to indicate no later than 5 Court days before the hearing, which
of the expert reports delivered by the plaintiff it admits,
such
report shall be deemed to have been admitted. It is further agreed in
paragraph 11 of the said minute that if the defendant
does not deny
any fact(s) contained in an expert report, the defendant shall be
deemed to have admitted such facts. It is common
cause that the
defendant did not formally dispute any of the expert reports, and
neither did the defendant place any facts contained
in the
plaintiff's expert reports in dispute as contemplated in the
pre-trial minute. The defendant, however, filed a report by
an
industrial psychologist, Dr Cillie-Schmidt, which was handed in
without objection as Exhibit D. The report is undated but it
was
evidently prepared and provided to Ms Auret-Besselaar prior to the
meeting of the respective witnesses on 19 August 2016. The
joint
minute was handed in as Exhibit A.
8.
The parties also handed in the actuarial calculations prepared
by Deloitte Consulting on the basis of the two opinions set out in
the aforesaid joint minute, as Exhibit B.
9.
In addition to the industrial psychologist, Mr Cloete gave
notice of his intention to adduce the evidence of the following
experts:
9.1.
Dr K le Fevre, psychiatrist;
9.2.
Dr JS Sagar, orthopaedic surgeon;
9.3.
R de Wit, clinical psychologist;
9.4.
R van Zyl, occupational therapist;
9.5.
Munro Consulting, actuary.
The
plaintiff:
10.
Mr Cloete is a 30 year old man who was 24 years old when the
collision occurred in 2011. The injuries sustained by him consist of
a severe facture dislocation right sub talar joint involving the
talus, as well as the medial malleolus, and a compression fracture
of
the L1 vertebrae. At the time of the collision he was employed by
Stein Civils CC, but he is no longer employed.
11.
Mr Cloete did not testify. Mr Laubscher, who appeared on
behalf of Mr Cloete, submitted that his testimony was not required in
view
of the defendant's deemed admission of the expert reports and
the facts therein contained, and that to draw a negative inference
from Mr Cloete's failure to testify, would be unfair.
12.
The following information in respect of Mr Cloete appears from
the report of Ms Auret-Besselaar:
12.1.
He was born and has only ever lived in Steinkopf, Northern
Cape.
12.2.
He attended the Steinkopf Secondary School until mid-grade 10,
when he says he left school due to a disagreement with one of his
teachers. He did not return to school and did not finish his
secondary school education.
12.3.
Subsequent to leaving school he had casual employment on the
Steinkopf building site for a subcontractor for about 8 months, and
during the following 5 years, he did general work when he could find
it, such as gardening, cleaning and washing.
12.4.
From 2008 until the date of his injury some 2% years later, Mr
Cloete was employed by Steyn Civils, initially as a general worker,
whereafter he was promoted to excavator operator. He worked in the
latter position for about a year.
12.5.
After his recovery, his previous employer gave him lighter
work from time to time, however the company was liquidated in August
2011. Mr Cloete has subsequently remained unemployed.
The
experts:
13.
Counsel for Mr Cloete, Mr Laubscher, highlighted the following
aspects in the additional expert reports filed in respect of Mr
Cloete:
13.1.
Dr Sagar, the orthopaedic surgeon, was of the view that as a
result of his injuries, he will be permanently limited with regard to
mobility and agility; and "He
needs to do sedentary
or
semi-sedentary work in future and considering his limited
education and lack of skill, he is significantly compromised in this
regard."
13.2.
Dr le Fevre, the psychiatrist, states the following in his
report:
·Level
of
changes: considerable. He had
a
good job and was
a
breadwinner, partner and parent.
Now
he struggles with socialising, is stressed
as
a partner and
parent has unrealistic expectations of studying for his matric. It is
now
5
years after his accident and he
has
as
yet
done nothing of the sort”.
13.3.
In her report in respect of Mr Cloete, the clinical
psychologist, Ms De Wit, states the following:
"8.1.1.
He continues to experience right ankle pain and restricted range of
motion, the ankle swells after physical activity,
and pain and
stiffness is exacerbated by inclement weather.
He
is no longer
able to wear safety boots. He cannot walk for long distances, run or
stand for extended periods of time, and the ankle
is unstable
..;
8.1.2.
He reported that he experiences back pain, exacerbated by physical
activity or sitting in the same position for extended
periods of
time.”
and
"Clinically his level of intelligence
appears to be lower than average
and
"considering his
presentation at this assessment and his pre-accident educational
level (Grade 9), from
a
psychological and neuropsychological
perspective he is not suitable for most sedentary types of positions,
which typically require
a
slightly higher intellectual ability
and skillset, communication skills and interpersonal skills”.
The Industrial
psychologists:
14.
Ms Auret-Besselaar, who had interviewed Mr Cloete, testified
that he had immersed himself in the role of excavator operator, which
he did well and with which he wanted to continue. His attempt to
continue working in his injured state showed drive, and his interest
in qualifying as a grater operator demonstrated that he is keen and
interested. There is no reason why he would not have obtained
additional qualifications. He was a good candidate for re-employment
on the liquidation of his employer, as his co-workers and
friends
found employment. He would, in her opinion, have continued working
until age 65 as he would have been valued due to his
qualifications
and as a father, he would have been required to do so.
15.
At the time of the accident Mr Cloete was earning a basic
salary of R3 800.00 per month, and overtime of between R600.00 and
R700.00,
equating to total earnings of R4 500.00 per month (February
2011 value).
16.
She testified that she had taken a conservative view in
considering his work path, but for the accident, and believed that he
would
probably have continued in the position of excavator operator,
receiving inflationary adjustments for 3-4 years, while learning
in-service skills and gaining job exposure and experience. Had he
done so, he would have been earning, in 2016 terms, at least
R 7
140.00 per month.
17.
He would 5-6 years thereafter have obtained employment from
another employer at an increased basic salary of between R10 000.00
and R 14 000.00 per month (2016 value) due to his work experience,
in-service training, his good work ethic and track record. Another
employer may have paid him more and provided benefits such as a 13th
cheque, employer contributions to medical aid and provident
fund of
7.5% respectively. It could not be discounted that he could have been
employed as an experienced operator, earning the
equivalent of R 16
500.00 per month plus benefits in the Johannesburg region.
18.
In this regard, she had obtained collateral evidence from Ms
Heleen Basson, the financial manager at TR Civil Engineering in
Kakamas,
and Mr Pero Scholtz, manager at Mass Hire in Upington, and
advertisements drawn from the internet. The salaries ranged from R 5
940.00 per month (plus overtime, i.e. R 7 140.00), to as high as R 18
000.00 plus substantial benefits. The figures that she relied
on to
demonstrate employment opportunities and salaries paid included those
in the Johannesburg area, because, in her view
"nothing
stopped him from moving there".
Finally, in her view, Mr
Cloete's employment as excavator operator falls into the semi-skilled
formal labour sector.
19.
Under cross-examination, it was pointed out to her that while
she had postulated Mr Cloete's future earnings on an initial gross
salary of R 4 500.00 per month, equating to R 54 000.00
per annum,
Mr Cloete's employment certificate reflected a basic salary at
the time of the accident of only R 2 736.51 per month, as did his
payslip dated 28 February 2011 (and overtime of R 294.00). Ms
Auret-Besselaar conceded that she had not been provided any evidence
of Mr Cloete's earnings, but he had not impressed her as someone who
exaggerates and she accordingly accepted his say-so that he
had been
earning R 4 500.00 per month. Her view was that it was more important
to look at collateral evidence as to salaries payable,
than the
actual salary earning by Mr Cloete at the time of the accident. It
was put to the witness that it was more appropriate
to make use of
the tables in Koch, she disagreed as it was not necessary to use the
“
default position”
where she had facts. During
oral argument, Mr Mashaba also referred to a second salary slip
contained in the plaintiff's bundle,
dated 30 June 2010, which
reflected a basic salary of R1 881.60 plus total overtime of R
690.56. Although I accept that it is dated
8 months before the
accident, it is strikingly less than the amount which Ms
Auret-Besselaar had accepted as correct.
20.
Her evidence was further to the effect that Mr Cloete's
prospects of finding alternative employment were limited to
non-existent.
Insofar as sedentary work is concerned, it required at
least matric and the labour market for that kind of work is flooded.
According
to Ms Auret Besselaar he is not suited for sedentary work
in his personality and the older he gets, further studies become less
attainable.
21.
Mr Mashaba submitted in his heads of argument on the other
hand, that as Mr Cloete had told the clinical psychologist, Ms De
Wit,
that he sometimes manages to find odd light jobs in his
neighbourhood, it appears that he still has a residual earning
capacity,
even in his injured state. In my view there is no evidence
of any real earning capacity on the part of Mr Cloete, and such a
view
was not supported by the industrial psychologist called to
testify on behalf of the defendant, either.
22.
In his heads of argument, Mr Laubscher pointed out that the
report of Dr Cillie-Schmidt, Exhibit D, had not been proved when she
testified insofar as she was not requested to confirm the report
under oath, and neither did she refer to her report during her
evidence. On this basis
,
it was submitted by Mr Laubscher that
the report of Dr Cillie-Schmidt has no evidentiary value whatsoever.
23.
I have a further difficulty with the evidence tendered by Dr
Cillie-Schmidt. She did not purport to testify as an expert witness,
no evidence was led in respect of her qualifications and no
particulars thereof appear from her report, Exhibit D, from which her
expertise could possibly be deduced.
24.
Mr Mashaba argued that as her report had been handed into
evidence, and her expertise had not been challenged by the
plaintiff's
counsel, her evidence should be accepted as relevant.
25.
I cannot agree with Mr Mashaba. In the matter of
Mkhlze v
Lourens &
Another,
2003 (3) SA 292
en no evidence was
led of the qualifications of a witness called as an expert. Objection
was made to the evidence as being irrelevant.
Webster J upheld the
objection and said the following:
"It is my considered view
that the objection to Shedden's evidence is well taken. The
Rule
36(9)(a)
and (b) notice and summary of the evidence to be given by an
expert at
a
trial have no evidential value. Their purpose is
to apprise the opposition of these facts
so
that proper and
timeous preparation can be made to meet such evidence and to
challenge if it is necessary to do
so.
A party does not waive
his right to object to evidence given by someone who
is
described
as
an expert if there are reasons for doing
so.
The
Court has to be satisfied that such witness does indeed possess
expert and specialised knowledge which the Court does not know
or can
take judicial cognisance of (Ruto Flour Mills case supra). The
failure to have Shedden's qualification and alleged expert
knowledge
established
was
accordingly
a
fatal flaw. His evidence
remains mere opinion evidence that is irrelevant."
26.
In the absence of the qualifications and expert knowledge of
Dr Cillie Schmidt being established, her evidence is mere
opinion,
is irrelevant and must be disregarded. It follows that I am
left with the evidence of the plaintiff's industrial psychologist
only.
Determining the loss
of earnings:
27.
The premise that Mr Cloete was earning a basic salary of R 3
800.00 per month at the time of the accident, is contradicted by the
documentary evidence that was discovered by him and which clearly
indicates that he was earning significantly less. Ms
Auret-Besselaar's
explanation for the discrepancy - that the salary
slip shown to her pertains to the month during which he was injured
and in respect
of which he did not work a full month - is speculative
and unconvincing. There was no evidence that Mr Cloete was not paid
in full
for February 2011. Mr Laubscher suggested that the payslip
and employer certificate were both patently incorrect and should be
disregarded in favour of the evidence of Ms Auret-Besselaar, as the
defendant had admitted her report.
28.
The submission cannot be upheld. The payslip and employer
certificate are not patently incorrect. Even if the documents are not
correct, it was incumbent on Mr Cloete and his attorney to discover
documents in support of his claim and to obtain for this purpose
a
payslip and employer certificate reflecting the correct amount.
Unfortunately, Mr Cloete was not called to testify in respect
of his
earnings at the time of the accident. The defendant cannot, in any
event, be deemed to have admitted the report of Ms Auret
Besselaar and the facts therein contained. The defendant delivered a
report of Dr Lydia Cillie-Schmidt, therein described as an
industrial
psychologist; she met with the plaintiff’s expert industrial
psychologist and they prepared a joint minute pursuant
thereto; she
was called to give evidence on behalf of the defendant. The
plaintiff’s counsel did not at any time either object
to either
her expertise or to her evidence. Notwithstanding that I may have
found that she did not testify as an expert, it is
clear that the
defendant, in presenting her evidence, timeously disputed the .report
of Ms Auret-Besselaar as intended in the minute
of the pre-trial
conference. The defendant's witness disputed, in particular, the
methodolqgy used by Ms Auret-Besselaar.
29.
It appears therefore that Ms Auret-Besselaar relied on the
information supplied to her by Mr Cloete without testing the
information
with reference to his payslip or other objective
evidence, which could - and should - have been made available to her.
30.
In
Ndlovu v the Road Accident Fund,
2014 (1) SA 415
(GSJ), the Court warned against expert reports or evidence where the
expert does not distinguish between objective originating
data (such
as, in that case, hospital records), and Mr Cloete's say-so or
unsubstantiated hearsay.
"An opinion is of little value if
the material facts relied upon are flawed."
(at [109]).
31.
I accordingly agree with the submission of Mr Mashaba that Mr
Cloete has failed to prove that at the time of accident he was
earning
R 4 500.00 per month. On the evidence before Court, Mr Cloete
was earning a basic salary of R 2 736.51. The payslip of June 2010
supports the contention that his overtime amounted to RS00.00 to
R700.00 per month and I accordingly accept, in his favour, that
he
was earning a total salary of R3 436.51 per month.
32.
Robert Kochis
Quantum Yearbook 2016,
states the
following on page 128:
"The
best guide to likely earnings is often what the victim was earning at
the time of the accident. This is particularly
so
when there
is an extended history of earnings at this level.”
33.
However, the Court is not necessarily restricted to the actual
earnings at date of the injury, but must consider the earning
capacity
by reference to all the evidence available to the Court.
Shield Insurance Co Ltd v Booysen
,
1979 (3) SA 953
(A) at 964.
This would include the expert opinions in respect of his earning
capacity and the collateral data upon which the plaintiff's
expert
relied, if accepted.
34.
Mr Mashaba submitted that Ms Auret-Besselaar concentrated on
the potential earnings of Mr Cloete, rather than the likely earnings.
He referred to the statement in the
Quantum Yearbook 2018
at
page 128 that “
as the law stands at the moment, compensation
for loss of earning capacity is directed at the likely earnings, not
possible potential
earnings”
and the authority relied upon
by the learned author, being
Minister van Velllgheid v Geldenhuys,
2004 (1) SA 515
(SCA):
"die vraag is nie wat Geldenhuys
kon verdien het nie, maar wat hy waarskynlik sou verdien het”.
35.
“..
.An expert's opinion represents his reasoned
conclusion based on certain facts or data, which are either common
cause, or established
by his own evidence or that of some competent
witness. Except possibly where it is not controverted, an expert's
bald statement
of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process of
reasoning
which led to the conclusion, including the premises from
which reasoning proceeds,
are
disclosed by the expert."
Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft Für
Schadlings-bekampfung MbH
,
1976 (3) SA 352
(A) at 371F-G.
36.
Bearing this in mind, I was troubled by the following aspects
of Ms Auret Besselaar's evidence:
36.1.
Mr Cloete had been employed as an excavator operator for a
year, and for the same employer for some two and a half years. Prior
to that he did
"piece jobs",
the extent of which is
not clear. There is accordingly no evidence of
"his good work
ethic and track-record evident at that stage"
upon which she
then bases her assumptions as to his ambitions and future employment.
This is a young man who left school during
grade 8 due to an
altercation with a teacher, never to return. The position of
excavator operator appears to have been the first
occasion upon which
he was employed in a position requiring any form of skill or
responsibility, and he had only been in that position
for a year.
Unfortunately, there was no evidence from Mr Cloete himself with
regard to his ambitions and intentions. I do however
accept that he
would at some point have enjoyed an increase in his salary as reward
for his experience. To this end I assume that
such an increase would
have occurred in year 10 (to accord approximately with Ms
Aret-Besselaars views), and would have been an
additional 12% over
and above normal inflation.
36.2.
Mr Cloete had lived in Steinkopf in the Northern Cape his
whole life, as did his family and the mother of his child, which in
itself
renders the contention that he would have relocated to
Johannesburg most unlikely. Once again, his own evidence would have
been
valuable. The salaries that may be earned in Johannesburg may
accordingly safely be ignored.
36.3.
The witness accepted that Mr Cloete would have earned benefits
comprising medical aid, pension, cell phone allowance and UIF. He
was
not receiving such benefits at the time of the accident and the only
basis upon which she assumes he would have earned such
benefits
later, is the information obtained from Sasson and Scholtz, which is
hearsay. Although Mr Laubscher submitted that this
evidence should be
accepted as the defendant had admitted it, I have already indicated
that in my view the defendant did not admit
the report, and there was
no evidence of the chance that such benefits could have been achieved
and no basis upon which I can conclude
that Mr Cloete would indeed
have earned such benefits at any time in the future.
37.
The question therefore arises whether the correct approach
would not be to use the tables provided by
Robert Koch
setting
out the estimated earnings to determine Mr Cloete's uninjured career
progression. The difficulty that presents itself however
is the
appropriate table and the appropriate job grading that should be
applied.
38.
Ms Auret-Besselaar expressed the opinion that Mr Cloete's job
description and the typical earnings and fringe benefits associated
therewith, place him in the
"formal sector'
of the job
market. These factors, she further opined, place him at the Paterson
B4/B5 job grading level in the formal sector. She
did not provide any
basis for placing him on this level, and Mr Laubscher submitted that
I must accept it as a product of her experience.
Her view is however
contradicted by Koch. He states that earnings and benefits do not
determine the job grading. The grading allocated
to a particular job
must be determined according to the content of the job by way of
skills needed and demand for independent decision-making.
(See
Robert
J Koch CC Newsletter 67 of 2007.)
I prefer this view.
39.
Mr Mashaba did not take the matter any further in his
arguments.
40.
The result is that I am unable to establish the correct job
grading level and the tables do not assist me.
Contingencies:
41.
Counsel both submitted that the contingencies to be applied to
Mr Cloete's claim for past loss of earnings be 5% and in respect of
his future uninjured earnings, 15%. Bearing in mind Mr Cloete's
relatively young age, I think that a contingency of 20% would be
more
appropriate.
The COIDA claim:
42.
The plaintiff also called Ms Elize Coetzer to testify in
regard to the status of his claim for compensation in terms of the
Compensation
for Occupational Injuries and Diseases Act, 130 of 1993
(“
COIDA
"). Ms Coetzer is a consultant dealing with
COIDA aspects from employers / employees. Mr Cloete was at the time
of the accident
an
"employee"
as defined in COIDA
and was injured in an “
accident· "arising out of
and in the course of an employee's employment and resulting in
a
personal injury".
This meant that he was entitled to
“
compensation"
from the Compensation Commissioner.
43.
It appeared from a letter she had received from the Department
of Labour on 24 August 2016, that Mr Cloete had been paid R 412.00
in
respect of medical expenses but that his claim for compensation had
not yet been finalised. She testified that it was difficult
to say
whether he would receive any further payments, particularly as his
employer was no longer in business. She testified that
he would not
be paid for permanent disability, but in respect of temporary
disability, he may be paid a small percentage of his
salary for six
weeks, if the Commissioner receives the required information.
44.
Mr Mashaba suggested that payment of the award for past loss
of earning capacity only be paid once the award of the Compensation
Commissioner has been finalised, and with due regard to such award.
Mr Laubscher submitted that it appeared from the evidence of
Ms
Coetzer that Mr Cloete would receive no further COIDA payments and I
am inclined to agree with this view. As pointed out by
Ms Coetzer,
the outstanding information must be provided by the employer, which
was liquidated soon after the accident occurred.
45.
Under the circumstances I find that there is no deduction to
be made in this regard.
Actuarial
calculations:
46.
Deloitte Consulting (Pty) Ltd prepared two calculations
premised on the opinions of each of the parties' appointed industrial
psychologist.
46.1.
Scenario 1, based on the views of Ms Auret Besselaar, provided
for the following:
46.1.1.
Uninjured income: The claimant would have likely continued
working as excavation operator earning at least R 7 140.00 per month
(2016 terms). He may have received a 13th cheque and employer
contributions to medical aid and provident funds of 7.5%
respectively.
He would have received inflationary increases for 6 to
8 years (assumed 7 years) thereafter. He would have then started
earning
R 12 500.00 to R 16 500.00 per month (2016 terms) (assumed R
14 500.00 per month) plus benefits (assumed 13th cheque and employer
contributions to medical aid and provident fund of 7.5%
respectively). Thereafter, inflationary increased would have applied
until
retirement at age 65.
46.1.2.
Injured income: Following the accident, Mr Cloete is unsuited
to compete in open labour market as an operator or to perform
sedentary
work (which requires skills that he does not possess and is
unlikely to acquire). He is considered unemployable considering his
orthopaedic and neurological deficits. She has therefore assumed zero
earnings from accident date until retirement age.
46.2.
Scenario 2, postulated by Dr Cillie-Schmidt, cannot be
considered for the reasons already set out.
47.
Having considered the evidence and other factors, the parties
are directed to obtain from Deloitte Consulting, a recalculation of
Mr Cloete's past and future loss of earnings, to be made on the
following basis:
47.1.
Mr Cloete was injured in a motor vehicle collision that took
place on 11 February 2011;
47.2.
As a result of the injuries sustained in the collision, Mr
Cloete has been left with no residual earning capacity;
47.3.
Mr Cloete was earning a basic salary of R 2 736.51 per month,
and overtime of R 700.00 per month, at the time of the collision;
47.4.
It is assumed that if Mr Cloete had not been injured, he would
have continued working until 65 years of age;
47.5.
Normal inflationary increases must be applied;
47.6.
An additional increase in salary of 12% should be provided for
in year 10;
47.7.
Contingencies of 5% must be applied to his past loss of
earnings, and 20% to his future loss of earnings.
48.
The parties may approach this Court once the calculation has
been provided to them, for an order to be made. Written objections to
the calculation made by Deloitte Consulting received within 7 days,
will be considered.
Costs:
49.
The plaintiff is entitled to an order for costs. I was
provided with a copy of the contingency fee agreement as well as an
affidavit
of attorney Jurgens Stephanus Terblanche who confirmed that
the schedule of fees to which Mr Cloete agreed, complies with the
Contingency
Fee Act, and that no monies in addition to that for which
provision is made in the said agreement, has or will be received from
the
curator
ad litem
or Mr Cloete.
The
curator ad
litem:
50
.
It is necessary to refer to the issue of the
curator ad
litem.
51.
In his heads of argument, Mr Mashaba stated that it appears
that one Advocate C Cawood had been appointed a
curator ad litem
to Mr Cloete, but that it did not appear from the Court papers
whether such appointment had been granted by this Court, no Order
of
Court had been brought to his attention and Mr Cloete was still cited
as plaintiff in the Court papers. He referred to rule
57 of the
Uniform Rules of Court, and suggested that as the protection of the
funds to be awarded to Mr Cloete had not been addressed
as envisaged
in
Sibusislwe Ruca v RAF,
Case No: 73012/2013 (Gauteng
Division, Pretoria), the appointment of a
curator ad litem
had
not been proven to be necessary.
52.
Mr Laubscher responded to these submissions by stating that as
the relevant Court Order had been provided to all concerned, the
submissions of Mr Mashaba are irrelevant and premature. In any event,
he proceeded, it is for a Curt approached to declare the Patient
of
unsound mind and to appoint a
curator bonis
or not, to deal
with the issues raised in the defendant's submissions.
53.
As Mr Cloete had not suffered a head injury, there had not
been a
curator ad litem
present in Court, and the Order I am
to make would have to take into account the
curator's
recommendations, I requested the application, the Order granted
and the
curator
's report.
54.
It is not surprising that Mr Mashaba was unaware of the grant
of the Order appointing Adv Cawood as
curator ad litem
for the
plaintiff. The application was granted under case number 14567/16 in
the Western Cape Division of the High Court on 19 August
2016, just
one week prior to the commencement of the trial in this Division. A
number of aspects pertaining to this application
concern me.
54.1.
The applicant is Mrs Lena Cloete, Mr Cloete's grandmother, and
she states in her affidavit that she lives at 1 River Road,
Steinkopf,
Western Province.
This is not correct. Steinkopf is
in the Northern Cape Province. She makes the same statement in
respect of Mr Cloete. The import
of this is that the Honourable Judge
hearing the application would have been led to believe that the
Western Cape Division of the
High Court had jurisdiction to hear the
application, while, as a matter of fact, it did not.
54.2.
She states further that pursuant to the collision, a claim was
lodged with the Road Accident Fund. She does not disclose that action
had already been instituted against the Road Accident Fund, much less
did she disclose that the trial was due to commence in the
Gauteng
Division, Pretoria, just one week later. While this in itself may
seem trifling, it must be considered with the other aspects.
54.3.
The application was served on the offices of the Road Accident
Fund at 8th Floor, 1 Thibault Square, Cape Town. As no case number
or
claim reference number appears from the papers, one can safely assume
that the application would not have received appropriate
attention in
the Cape Town offices of the Road Accident Fund. The Road Accident
Fund has attorneys on record and these attorneys
were not notified of
the application. The less said about this, the better.
54.4.
The application was also served on the offices of the Master
of the High Court in Cape Town. The Master in Cape Town does not have
jurisdiction over Mr Cloete and will not report on the matter as is
required by Rule 57(7). lhe Master having his office at the
seat of
the Northern Cape High Court in Kimberley is the only Master having
the necessary jurisdiction. See section 4(2) of the
Administration
of Estates Act,
66 of 65,
Ex parte
Beukes,
2011
(5) SA 521
(WCC).
54.5.
I am also concerned by the contentions made by Mrs Cloete to
lay a basis for the appointment of the
curator ad litem
and
subsequently a
curator bonis.
She states that the serious
bodily injuries sustained by Mr Cloete include anxiety/mood disorder
and psychiatric injuries, that
he is in need of supervision and
assistance and that she is particularly worried about the mental
consequences of his injuries
(whatever this may mean). She continues
to state that “
all aspects of his life had been affected by
the trauma of the accident, and have rendered him less able to manage
his cognitive,
executive, emotional and spiritual wellbeing as well
as
all challenges
of
life. The various injuries
reinforce each other and cannot be perceived independently."
These contentions are not supported by the reports of either the
psychologist or the psychiatrist, and were certainly not attested
to
by Ms Auret-Besselaar, who, on the contrary, was extremely impressed
by Mr Cloete.
55
.
The Order sought, and indeed granted, was to the effect
that the
curator ad litem
be directed to furnish her report to
the Western Cape Division of the High Court. The
curator ad litem
informed me that she had not yet provided her report to the
Master, and neither had she reported to the Court.
56.
While conceding that I had reason to be concerned, Mr
Laubscher contended that the Order appointing the
curator ad litem
stands until set aside. He later conceded that his attorney may
have to bring an application to set aside the Order. I agree that
that would be the appropriate course. Mr Mashaba argued that I should
set the Order of the Western Cape Division aside in terms
of Rule
42(1) which provides that the Court may
mero motu
rescind or
vary Orders or judgments. His primary concern was that the defendant
be held liable for the costs incurred in bringing
the application in
terms of Rule
57.
This Court does not,
however, have jurisdiction to set aside an Order granted in another
Division. Accordingly I make no Order in
respect of the appointment
of Adv Cawood as
curator ad litem
for Mr Cloete.
57.
For the reasons set out in the preceding paragraphs, I intend
ensuring that
this judgment is brought to the attention of all
interested parties, including the Master of the Western Cape High
Court, the Master
of the Northern Cape High Court, the Judge that
granted the order appointing the
curator ad litem
as such, the
Registrar of the Western Cape High Court and Mr Cloete personally.
58.
Due to the uncertainty surrounding Mr Cloete's status, as well as the
status
of the
curator ad litem,
it will be necessary that the
funds payable by the defendant in terms of this Order, be held in
trust by Adendorff Attorneys, pending
resolution of the issue of
curatorship of Mr Cloete.
Order:
1.
Shaun Enrico Cloete's claim for loss of earnings is postponed
sine
die,
pending the recalculation of Mr Cloete's past and future
loss of earnings by Messrs Deloitte Consulting (Pty) Ltd on the basis
provided
for in paragraph 47 of this judgment.
2.
The parties may approach this Court once the calculation has been
provided to them, for an order to be made in respect of Mr Cloete's
claim for loss of earnings.
3.
It is recorded that the defendant has undertaken to furnish Mr Cloete
with an undertaking in terms of
section 17(4)(a)
of the
Road Accident
Fund Act, 56 of 1996
, to compensate him for 100% of the cost of
future accommodation in a hospital or nursing home or treatment of or
rendering of a
service for supplying of goods to him, due to injuries
sustained by him in the collision and the
sequelae
thereof,
after such costs have been incurred and upon proof thereof.
4.
It is recorded that the defendant has agreed to pay an amount of R
250 000.00 in respect of Mr Cloete's claim for general damages.
5.
The defendant is ordered to pay the costs of suit, including the
qualifying expenses of the following experts:
5.1.
Ms Auret Besselaar, industrial psychologist;
5.2.
Dr K le Favre, psychiatrist;
5.3.
Dr JS Sagar, orthopaedic surgeon;
5.4.
R de Wit, clinical psychologist;
5.5.
R van Zyl, occupational therapist;
5.6.
Munro Consulting, actuary; and
5.7.
Deloitte Consulting (Pty) Ltd.
6.
Payments made by the defendant in terms of this Order shall be made
into the trust account contemplated in section 78(2) of the Attorneys
Act, 53 of 1979 of Adendorff Attorneys, for the sole benefit
of Mr
Cloete, pending the appointment of a
curator bonis
of Mr
Cloete.
7.
Adendorff Attorneys shall pay the amount held in its aforesaid trust
account, less such amounts that Adendorff Attorneys are entitled to
deduct in respect of the accounts rendered by the expert witnesses
and counsel employed on behalf of Mr Cloete, and the fees to which
Adendorff Attorneys are entitled in terms of the fee agreement
concluded with Mr Cloete, directly to Mr Cloete, should a
curator
bonis
not be appointed for Mr Cloete within 3 months of the grant
of this Order, or to the
curator bonis,
should such have been
appointed.
HR
FOURIE
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF:
ADV
A LAUBSCHER
ATIORNEYS
FOR PLAINTIFF:
ADENDORFF
ATTORNEYS, CAPE TOWN
COUNSEL
FOR DEFENDANT:
ADV
MG MASHABA
ATTORNEY
FOR DEFENDANT:
MALULEKE
MSIMANG & ASSOCIATES, PRETORIA