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[2016] ZAFSHC 229
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S v Road Accident Fund (3583/2015) [2016] ZAFSHC 229 (12 August 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
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IN THE HIGH COURT OF
SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 3583/2015
In the matter between:
J.
S.
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY:
HINXA,
AJ
HEARD
ON:
12
AUGUST 2016
DELIVERED
ON:
20
DECEMBER 2016
[1] The plaintiff
instituted action proceedings against the defendant herein, the Road
Accident Fund (“RAF”), pursuant
to a motor vehicle
collision which occurred on 24 October 2013.
[2]
On 20 December 2016 I made the following order with an endorsement
that the reasons hereof would follow:
“
1.
The defendant shall pay the plaintiff the following amounts:
R960
00.00
c
being
in respect of general damages R3 583 084. 00
c
being
in respect of loss of income R1 214 395.16
c
being in respect of past medical and hospital expenses.
2.
The defendant is ordered to pay interest on the amounts set out in
paragraph 1 at the prescribed legal rate
from a date 14 days after
the date of this judgment to the date of payment.
3.
The above amounts shall be paid into the trust account
of Honey Attorneys, to wit, Nedbank – Maitland Street
Branch,
Branch Code 11023400; Account no. [1...]; BLOEMFONTEIN.
4.
The defendant shall pay the plaintiff’s costs of
the suit on the High Court party and party scale. Such costs
shall
include:
4.1
The fees and the qualifying expenses of the following experts:
4.1.1
Dr. JJ Schutte (Statutory RAF 1 medical report);
4.1.2
Ms. R Van Biljon (Occupational Therapist);
4.1.3
Dr. E Jacobs (Industrial
Psychologist);
4.1.4
Munro Actuaries
4.1.5 Dr.
LF Oeloefse (Orthopaedic Surgeon);
4.1.6 Dr.
W De Beer Lange (Endocrinologist);
4.1.7 Dr.
Cronje (Urologist)
4.1.8 Ms.
R Botha (Counselling Psychologist)
4.2
Reservation and preparation fees and travelling costs of the
following experts:
4.2.1 Dr.
E Jacobs (Industrial Psychologist)
4.2.2 Mr.
A Munro from Munro Actuaries
4.3
Counsels’ fees
FACTUAL BACKGROUND
[2] On 24 October 2013 at
± 14h45 at the intersection of Hudson Drive and Van der Lindi
Streets, Fichardtpark, Bloemfontein,
the plaintiff who was 17 years
old grade 11 learner suffered severe bodily injuries as a result of
an accident. The accident was
occasioned by a vehicle collision
between a motor cycle with registration number [F...] driven by the
plaintiff and a motor vehicle
with registration number [0...] driven
by a certain Mr. PJ Makhoe (“the insured driver”).
PLAINTIFF’S CASE
[3] In paragraph 4 of his
pleadings, the plaintiff contended that the aforesaid motor vehicle
collision was caused exclusively by
the negligence of the insured
driver who was negligent in one or more or all the respects
highlighted in sub-paragraphs 4.1-4.7
(which I didn’t deem
prudent to reproduce in order not to unnecessarily overburden this
judgment).
[4]
Pursuant to the collision, the plaintiff sustained severe bodily
injuries inclusive of,
inter
alia
,
the following:
4.1
Left tibia plateau fracture;
4.2
Bilateral superior and inferior pubic rami fractures;
4.3
Multiple rib fractures on the right side with a pneumothorax;
4.4
Internal bleeding due to a ruptured spleen;
4.5
Left orbital fracture;
4.6
Rupture of the urethra;
4.7
Disfigurement.
[5] As a direct
consequence of the aforestated injuries the plaintiff underwent
medical treatment as follows:
He was taken to the Life
Rosepark Hospital by ambulance;
He was admitted to the
Intensive Care Unit;
He
was taken to theatre for a splenectomy, open reduction and internal
fixation of the left tibia plateau fracture, as well as open
reduction and internal fixation of the left orbital fracture;
He
was sedated, intubated and mechanically ventilated in the Intensive
Care Unit;
His
Glasgow Coma Scale ranged between 7/15 to 10/15 on 3 November 2013;
He
had severe haematuria and received bladder irrigations via the
urinary catheter;
He
had a bronchoscopy in the Intensive Care Unit as part of his lung
toilet;
On
13 November 2013 he was taken to theatre for a cystoscopy and
retrograde pielogram, as well as debridement of both legs.
On
15 November 2013 he was extubated and given oxygen via face mask and
the orogastric tube was removed;
On
the 15 November 2013 his Glasgow Coma Scale was recorded as 15/15;
He
started mobilizing with the help of physiotherapist on 28 November
2013 to the chair;
On
29 November 2013 he was again taken to the intensive care unit for 3
days;
On
4 December 2013 he was again admitted to the Intensive Care Unit with
urethral bleeding. A new urinary catheter was inserted
and continued
bladder irrigation started;
On
5 December 2013 he had an RT scan of the pelvis and was taken to
theatre on 6 December 2013 for an angiogram and embolectomy
of the
right pelvis artery at the Universitas Hospital;
On
8 December 2013 a new intravenous line was inserted in the right
sub-clavian artery;
His
urinary catheter was removed on 13 December 2013 after which he
struggled with bladder control.
The
urinary catheter was re-inserted on 18 December 2013 and the ranger
knee brace was removed from the left leg;
He
was taken to theatre on 19 December 2013 for debridement and skin
graft on the right calve;
He
was transferred to the ward on 20 December 2013 and was discharged on
23 December 2013;
He received numerous
blood transfusion while he was in the hospital for a low haemoglobin
count;
He received
physiotherapy, occupational therapy and psychiatric counseling while
he was in hospital;
He had numerous follow up
consultations and procedures with his general surgeon and urologist;
He is currently still
experiencing pain and suffering on a daily basis;
His competitiveness on
the open labour market has severely been impaired.
DEFENDANT’S CASE
[6] In essence, the
defendant in its pleadings denied all the material allegations by the
plaintiff.
[7] In the alternative,
it (the defendant) contended that the plaintiff’s claim should
be apportioned in terms of the Apportionment
of Damages Act 34 of
1956.
[8] In its Heads of
Argument, the defendant submitted that the plaintiff had recovered
dramatically and, on his (plaintiff’s)
version, he had been
employed twice after the collision. He was coping well with his daily
activities including his employment
demands.
[9] The defendant
concluded by submitting that an amount of R2 496 900.20
would be a reasonable amount to be awarded.
SETTLEMENTS
[10]
a) The merits of the plaintiff’s claim
were, by agreement
between the
parties, determined on 23 February 2016.
In
terms of the aforestated agreement and the subsequent court order the
defendant accepted 80% liability towards the plaintiff
in respect of
the latter’s agreed or proven damages arising out of the
accident. The defendant was furthermore ordered to
furnish an
undertaking to the plaintiff in terms of Section 17(4)(a) of the Road
Accident Fund Act 56 of 1996 (“the act”)
for 80% of the
costs of the future accommodation of the plaintiff in a hospital or
nursing home or treatment of or the rendering
of a service or
supplying of goods to him arising out of the injuries that he
sustained in the motor vehicle collision.
b) At
the commencement of the trial on 16 August 2016, the parties settled
the plaintiff’s claim in respect
of his general damages, being
for pain and suffering, loss of enjoyment of amenities of life,
disfigurement and disability, totaling
R1 200 000-00.
ISSUES FOR
DETERMINATION
[11]
At the commencement of the trial the issue of liability was settled
between the parties in the total amount of R1 200 000.00.
The
liability agreed upon pertained to the general damages encapsulating
pain and suffering; loss of enjoyment of amenities of
life;
disfigurement and disability. The basis of the aforesaid settlement
was that the damages would be apportioned as to 80% to
20% in favour
of the plaintiff, being the amount of R960 000.00. Consequently,
the only issues for determination in this trial
were the plaintiff’s
claim for the past medical and hospital expenses; future loss of
income, as well as the costs of the
quantum related trial. For the
costs, the plaintiff claimed R1 517 993.95
c
,
and R4 387 300.00 for the rest.
COMMON CAUSE ISSUES
[12] Both parties engaged
various medical experts with a view to determining the extent of the
plaintiff’s injuries and the
sequelae thereof. The aforestated
experts then filed their reports and produced joint minutes wherein
they recorded their unanimous
opinions regarding the plaintiff’s
injuries as well as their sequelae.
[13]
The
aforesaid opinions may be summarised as follows:
13.1
ORTHOPAEDIC SURGEONS – DRS L OELOFSE AND HL MOLOTI
According
to the orthopaedic surgeons' joined minute dated 11 March 2016, it is
common cause that:
a) The plaintiff suffered
facial, chest, abdominal, bladder, bilateral pelvic and left lower
leg injuries;
b) The plaintiff was
hospitalised from 4 October to 23 December 2013, and underwent
numerous medical treatments.
c) The plaintiff is still
experiencing bilateral pelvic pain, bladder and urination problems, a
painful left lower leg and knee
and post-traumatic stress disorder;
d) The plaintiff’s
amenities of life have been drastically affected by the injuries;
e) Both doctors
opine that the plaintiff should be accommodated in a sedentary
working environment and that the injuries triggered
long term
impairment and loss of bodily functions.
13.2
OCCUPATIONAL THERAPISTS: MESDAMES E VAN ZYL AND S MOAGI
Both agreed that:
a) The plaintiff would
benefit from occupational therapy intervention;
b) The plaintiff would
require assistance of domestic and garden assistance;
c) The work that
the plaintiff performed as a mechanic in 2015 resorts under medium to
heavier work categories.
d) The plaintiff is
fit to do work in a sedentary to light work as his current physical
abilities are below the physical requirements
of the job of a
mechanic; that he is not an equal competitor for work in the medium,
heavy and very heavy work categories; and
that his reduced memory and
concentration may adversely affect his work performance and
promotional prospects, particularly in
relation to sedentary to light
work.
13.3
INDUSTRIAL PSYCHOLOGISTS: DR EJ JACOBS AND M KHESWA
13.3.1 The two
agreed that, pre-accident;
a) The plaintiff could
have been an artisan starting his career on a Patterson B1-B3
and reach his career
ceiling on a MQ of C2 Package (Koch Quantum Yearbook, 2016);
b) He would have reached
his career plateaux at age 45;
c) He would have had a
probable retirement age of 65 years if the accident did not happen.
13.3.2 They further
agreed that, post-accident:
a) The plaintiff's
competitiveness has been compromised and that he is not an equal
competitor in the open labour market;
b) He will not
achieve similar higher academic qualifications he would achieve had
the accident not occurred.
13.3.3 It bears
mentioning, subject to paragraph 13.3.4 hereunder, that the two could
however not agree on the plaintiff's post-accident
career income:
a) Dr. Kheswa (for the
defendant) is of the opinion that the plaintiff may enter the labour
market at a lower quartile of a Patterson
A3 level and then progress
to B3/4 median.
b) Dr. Jacobs for the
plaintiff is however of the opinion that it is unlikely that the
plaintiff will obtain work in the corporate
sector and that he will
only be able to obtain more sympathetic jobs around the median of the
semi-skills in the non-corporate
sector. His career will probablybe
categorised by periods of unemployment and early retirement,
concluded the opinion. The view
is also premised on the collateral
information obtained by his post-morbid employer that he just could
not cope with an environment
where physical capacity is required.
13.3.4 Despite the
aforesaid different views, both experts agreed that opinions
regarding the plaintiff's physical condition should
be considered to
guide the lost probable post-morbid career scenario.
EVIDENCE FOR THE
PLAINTIFF
[14]
PLAINTIFF’S
EVIDENCE
He was a grade 11 learner
when the accident occurred. After the accident, he only resumed
school academic activities during February
2014; commenced, and
completed his grade 12 year. Although he did not write his grade 11
final examinations, he was "
put through
" to grade
12. Before the accident, he was aspiring to
become a mechanic - he
had a passion for the type of work and was resolute that he would
become a qualified artisan after completing
his grade 12 year.
Pursuant to the injuries, he not realise his dream because he could
not meet the physical requirements of a
mechanic-related work. He got
employed as an assistant in the mechanical environment in 2015. He
could not cope with the physical
demands of the type of work,
experienced constant pain and, consequently, was dismissed during the
beginning of December 2015.
He was thereafter, around
February 2016, employed as a driver at SAC Trucks and earned a
monthly salary of R4 000.00. At the time
of his testimony he was
still so employed.
His job description
entailed delivery of heavy vehicle parts and accessories. He had to,
more after than not, travel long distances
in Free State and Northern
Cape provinces. When travelling long distances he experienced pain.
He could not, by himself, load and
offload heavy parts and objects
onto and from the vehicle. He repeatedly relied on the assistance of
other people. Consequent upon
the injuries and the fact that he still
experienced pain and limited functionality, he will not be able, in
future, to live up
to the physical demands and nature of the
mechanical work. He would only be suitable for an environment that
would not dictate
medium or heavy work. He would be confined to work
akin to a driver or an
office calibre. He was
unfortunately not qualified in the field of administrative or other
sedentary work.
[15] Under
cross-examination, he stated that he was unable to continue as an
assistant in the mechanical environment as he was experiencing
a lot
of pain and emotional relapse due to his realisation that he will
never accomplish his dream. He insisted that he was experiencing
pain
when he had to lift heavy objects and he could not cope with
mechanical work. He also highlighted that he only obtained his
driver’s licence after eight unsuccessful attempts.
[16]
DR. JACOBS'S
EVIDENCE
He gave expert evidence
regarding the plaintiff's loss of earning capacity. A summary of his
experience and qualifications was admitted
as Exhibit "B",
the defendant having not taken issue with his expertise. During his
testimony, he confirmed the contents
of the report dated 19 January
2016 he had compiled after scrutinising the reports by Dr. Oeloefse
(orthopaedic surgeon); Dr. P
Cronje (urologist); Ms. E Van Zyl
(occupational therapist); and the RAF4 report completed by Dr.
Schutte pertaining to the plaintiff's
injuries. He also testified
that he conducted an interview with the plaintiff on 2 December 2015.
In the aforestated report he
expressed his opinion, substantiated by
the relevant facts and reasons, in respect of the plaintiff's pre-
and post-accident career
development, earning capacity, and potential
loss of earning capacity. The report was admitted by consent as
exhibit "C".
He further testified that it is the domain of
the industrial psychologist to determine whether the injuries and
sequelae will have
an adverse effect on the plaintiff's career
development and future earning capacity. The industrial
psychologist’s determination
and opinion ultimately constitute
the basis of the determination and calculation by a qualified actuary
of a plaintiff's actual
loss of future income. He compiled his report
after having obtained the expert report from Dr. Chews (an industrial
psychologist
of the defendant). They both compiled a joint minute in
which they recorded their unanimous views as well as the issues in
dispute.
The joint minute was admitted by consent as Exhibit "D".
In the aforesaid joint minute they agreed that the plaintiff
would
have, pre-accident, become an artisan starting his career on
Patterson B1-B3 level and would reach his career ceiling on
the MQ of
the C2 package as published in the Koch Quantum Verkook, 2016. The
relevant employment levels (Patterson/FSA Level),
with the yearly
basic salary and total package in respect of each, are, according to
him, yearly published in Koch's Annual Income
Tables.
Consequently, according to the industrial psychologists' agreement,
the plaintiff would have, barring the accident,
started his career on
a Patterson B1-B3 level. That would be the semi-skilled corporate
sector with a career ceiling, and being
the highest level of
employment on the median quartile of C2 package with a retirement age
of 65 years.
Whilst both industrial
psychologists agreed that the plaintiff’s competitiveness was
compromised pursuant to the injuries
and that he was not an equal
competitor in the open labour market, they could not reach consensus
on his post- accident career
developments. Dr Jacobs was of the view
that the plaintiff would experience protracted periods of
unemployment; would be restricted
to light sedentary work with lower
compensation; and exposed to the risk of early retirement, most
probably age 60 or even earlier.
Under cross examination,
Dr. Jacobs stated that his opinion in relation to the plaintiff’s
post-accident career opportunities
was fortified by the fact that the
plaintiff attempted to work as assistant mechanic for some period,
but could not continue therewith
due to the physical functional
impairment ignited by the injuries. He conceded that the plaintiff
was employable, but his career
was, due to the injuries, lower than
what it could be had the accident not struck. He firmly stood his
ground that the plaintiff
would be limited to sedentary work, even if
his present condition might improve.
He concluded by opining
that according to his expertise:
The possibility that the
plaintiff would and could, post-accident, enter the non-corporate
semi-skilled market and remains therein,
is highly unlikely; and
The view expressed by Dr.
Chews that the plaintiff could, post-accident, enter the labour
market in the corporate sector and advance
to a B2 median quartile,
was improbable.
[17]
MR. A
MUNRO’S EVIDENCE
He qualified as an
actuary in 2000 and has since then been incessantly practising as
such. He summarised the role of an actuary
as follows:
“
M”lord
the actuary’s role is to assist the court in capitalising, so
calculating the value of the claim that the other
experts provided.
So we generally receive most of our instructions from industrial
psychologists where they have assessed their
earning potential, both
pre - and post the accident, and it is our job then using long term
economic assumptions and the other
experts’ input, it is our
job to calculate the value of that claim, the value of the loss of
income”.
He alluded to the
contents of his report dated 21 January 2016 and elaborated on the
method he followed in assessing the plaintiff’s
loss of future
income as encapsulated and calculated in that report. He stated that
his report was based on the agenda presented
to him as contained in
Dr. Jacobs report. On those two scenarios the plaintiff’s
losses were calculated and determined by
him in the amounts of
R2 950 520.00 and R4 387 300.00, respectively.
His report was compiled before Dr. Jacobs
and Dr. Kheswa compiled
their joint report which was filed during July 2016. He had, before
testifying in court, considered the
joint minute and also the
actuarial report of Dr. W Boshoff, which was filed by the defendant
in terms of Rule 36(9)(a) and (b)
on 2 August 2016.
According to Dr.
Boshoff’s report the plaintiff’s loss of income was
calculated on the two post-accident scenarios as
entailed in
industrial psychologists’ joint minute, being the scenario in
terms of Dr. Kheswa’s opinion. In terms of
the aforesaid
opinion the plaintiff would enter the labour market at the lower
quartile of the Patterson A3 and then progress to
a B3/4 median. In
respect of the opinion of Dr. Jacobs the plaintiff would get work in
the median semi-skilled non-corporate sector.
Pre-accident, the income
scenario as agreed upon by the industrial psychologists was applied
in terms of which the plaintiff could
have become an artisan,
starting his career on a Patterson B1/B3 and reaching his career
ceiling on the MQ of the C2 package. Mr.
Munro further highlighted
that:
Dr. Boshoff is known to
him. He was involved in Dr. Boshoff’s training.
He scrutinised the
contents of the joint minute of the industrial psychologists as well
as the contents of Dr. Boshoff’s report.
The facts on which the
Boshoff report was based as well as the method followed in assessing
the plaintiff’s loss in terms
of the two scenarios were indeed
according to his expertise, correct and it amounted to R4 888 700.00.
According to him, it is
in the court’s discretion to determine the contingency
percentage that may be applied in calculating
the said loss, which
will have the result that the calculated loss might decrease in
accordance with the said contingency percentage.
Mr. Munro also
testified that the plaintiff was presently earning an amount of
R48 000.00 per year, as he (plaintiff) testified.
Actual loss of
future income will be higher because Dr. Boshoff calculated his loss
of income, post-accident, on a yearly earning
of R56 000.00 at
the date of calculation. In this regard, he testified that a slightly
lowered injured income will increase
the claim and, if the loss of
income was calculated based on the plaintiff’s present earning
of R48 000.00 per year,
his claim would therefore logically
increase. Resultantly, the calculated loss of income based on Dr.
Jacobs evidence, as calculated
in scenario two of Dr. Boshoff’s
report i.e. R4 888 700.00, was thus advantageous to the
defendant. Under cross-examination,
Mr. Munro was only asked about
the basis on which his initial report dated 21 January 2016 was
compiled, being based on Dr. Jacobs’
report. He testified that
if the calculation was based on that report, the plaintiff’s
loss of income would be in accordance
with his initial actuarial
report, in particular scenario two as that scenario was in harmony
with Dr. Jacobs’ report.
DEFENDANTS CASE
[18] The defendant closed
its case without tendering any evidence.
ARGUMENTS
[19] The plaintiff’s
counsel placed reliance in a substantial measure on the following
cases in support of the plaintiff’s
claim:
19.1
Road
Accident Fund v Guendos
2006 (5) SA 583 (SCA), paragraph 13
wherein the Court held that, generally, contingencies of whatever
nature serve as a controlling
mechanism to adjust the loss to the
circumstances of the individual case in order to achieve justice and
fairness to the parties.
19.2
Southern
Insurance Association Ltd v Bailey N.O
1984
(1) SA 98 (A). At 113 F-114 A the court brazed the trail with regard
to the loss of the earning capacity as follows:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without benefit of crystal balls, soothsayers, augurs or oracles. All
that a court can do is to make an estimate, which is often
a very
rough estimate, the present value of the 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 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 and these may vary from the strongly probable to
the speculative”.
[20] Counsel for the
defendant on the other hand submitted that the court should award the
plaintiff an amount of R 2 496 900.00
for the future loss
if income. He relied heavily on the actuarial report of Dr. W Bohoff
based on scenario 1 which indicated that
the plaintiff’s career
and income would have progressed as depicted below had the accident
not occurred:
20.1
December 2014
Completed G12
20.2
January 2015
PattersonB1 earning
R158 000.00 p/a
20.3
January 2016
Patterson B2 earning
R171 000.00 p/a
20.4
January 2017
Patterson B2 earning
R193 000.00
p/a
20.5
December 2040 (Age 45)
Patterson C2 earning
R378 000.00 p/a
[21] Further reliance for
the defendant was pinned by its counsel on the following cases:
21.1 Mutual and
Federal Insurance Company LTD v Swanepoel 1988 (2) SA 1(A) where the
court held,
“
The
primary aim of compensation to the plaintiff is to try to mitigate
the loss suffered by him in monetary value and the aim is
not to
unduly enrich him by giving him more than what is due to him”.
21.2
Marine and
Trade Insurance Co. Ltd v. Goliath
1968 (4) SA 329 (A). Herein
the court opined as follows:
“
There
has never been two separate cases in which injuries sustained by both
plaintiffs are the same. The only reason why injuries
are compared in
these cases are to assist the courts to come closer to a just and
equitable amount and not to expect the court
to give the exact
amounts”.
ANALYSIS OF EVIDENCE
[22] First and foremost,
it bears mentioning that the defendant’s counsel did not
contest the plaintiff’s claim for
general damages and for the
past medical and hospital expenses in the heads of arguments. Of
crucial importance is that during
the oral arguments the court
pertinently elicited address on those two issues and the defendant’s
counsel conceded to the
amounts claimed by the plaintiff.
Consequently, what remains in dispute is the claim for the loss of
income and costs.
[23]
I deem it prudent to start with the claim for the loss of income. For
the plaintiff to succeed in his claim he has to prove
on a balance of
probabilities that he will suffer financial loss of diminution of his
income. In this regard I can do no more that
refer to
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194 at 198 where the court held,
“
It
is no doubt exceedingly difficult to value the damage in terms of
money, but that does not relieve the court of the duty of doing
so
upon the evidence before it. This is a principle which has been acted
on in several cases in South African Courts”.
[24] The court elaborated
further on this issue in Rudman v Road Accident Fund 2003 (2) SA 234
(SCA) at paragraph [11] as follows,
“
There
must be proof that the reduction in earning capacity indeed gives
rise to pecuniary loss”.
[25] In this regard Mr.
Munro testified that if the plaintiff was earning R48 000.00 per
annum as he averred, then his actual
loss of future income will be
higher because Dr. Boshoff (for the defendant) calculated the loss of
income post-accident on a yearly
income of R56 000.00 at the
date of calculation. On this aspect, he opined that if a slightly
lowered injured income is based
on the plaintiff’s current
earnings of R48 000.00 per annum, his claim will thus
effectively increase. Therefore, the
calculated loss of income
premised on Dr. Jacobs evidence, as calculated in scenario two of Dr.
Boshoff’s report (R4 888 700.00)
is to the
defendant’s benefit.
[26] At this juncture, it
may be well to recall that Mr. Munro was never cross-examined on the
calculation produced by the industrial
psychologists’ joint
minute. The same holds true of Dr. Boshoff’s calculation which
was endorsed by Mr. Munro’s
testimony.
[27] In his report Mr.
Munro indicated that he had applied and illustrated contingencies of
5% and 15% on the past and future injured
income respectively.
Furthermore, he had assumed that the claimant’s income would
increase with inflation until his retirement
age of 60. At this stage
it is apt to state that Mr. Munro’s material evidence in its
entirety stands unrefuted.
[28] Contingencies have
been described as the normal consequences and circumstances of life,
which beset every human being and which
directly affect the amount
that a plaintiff would have earned (See AA Mutual Insurance v Van
Jaarsveld 1974 (4) SA 729 (A)).
[29] In his book “The
Quantum Yearbook (2011)” at 104, Koch opines that when
assessing damages for loss of earnings
or support it is usual for a
deduction to be made for general contingencies for which no explicit
allowance has been made in the
actuarial calculation. The deduction
is in the prerogative of the court. General contingencies cover a
wide range of consideration
which may vary from case to case and may
include taxation, early death, loss of employment, promotion
prospect, diverse, etc.
[30] When a court is
called upon to exercise an arbitrary discretion that is largely based
on speculated facts it must do so with
necessary circumspection. In
the absence of contrary evidence, the court can assume that a
reasonable person in the position of
the plaintiff would have
succeeded to accept them. Both favourable and adverse contingencies
have to be taken into account in determining
an appropriate
contingency deduction. Bearing in mind that contingencies are not
always adverse, the court should, in exercising
its discretion, lean
in favour of the plaintiff as would have to be the subject of
speculation if the accident had not occurred
(Dlamini v Road Accident
Fund Unreported Case No. 59188/13 North Gauteng Division).
[31]
In
casu
the
defendant did not tender any opposing expert evidence, nor was the
plaintiff’s expert testimony disputed on the loss of
income.
Notwithstanding this anomaly, Adv. Khokho contended during oral
argument that the defendant’s case would be sustained
on the
records and documents of Dr. Kheswa filed of record.
When asked by the court
if it was his submission that if the documents and records were
filed, there was no need for corroborating
viva voce
evidence,
he replied affirmatively. On a follow up question by the court if he
had any authority for that contention, he further
replied positively
and undertook to favour the court with same soonest, an undertaking
he did honour.
[32] Under the
circumstances, I am driven to an ineluctable conclusion that the
actuarial calculations as reflected supra are fair
and just in the
interests of both parties.
[33]
In turn next
to
the question of costs.
Adv. Pienaar for the
plaintiff argued for the costs on an attorney and client scale. He
submitted that the court should show its
displeasure in the manner in
which the defendant conducted its case. He specifically alluded to
his request for admission of Dr.
Boshoff's report to minimize costs.
Adv. Khokho objected yet Dr. Boshoff was their own expert. Mr. Munro
(on behalf of Dr. Boshoff)
had to be flown from Cape Town on a Friday
to testify yet Adv. Khokho did not ask him any questions.
Adv. Khokho counter
argued that there was no justification for the punitive costs because
the qualifications of Mr. Munro were not
in issue. The issue was only
the flouting of the rules by the plaintiff. Plaintiff’s conduct
was also blameworthy in that
at some stage he (plaintiff) decided to
abandon his own actuarian report and accepted the evidence of Dr.
Boshoff. The plaintiff
was clutching on straws, concluded Adv.
Khokho.
[34]
At this juncture I must hasten to state that I was not persuaded by
any of the aforestated submissions. That having been said,
I
nevertheless exercised my discretion in favour of the defendant,
albeit on different grounds. It was my finding that the punitive
costs order would be substantially, if not totally, covered under
paragraph 4.1.4 and 4.2.2 of the order encapsulated in paragraph
2
infra. Consequently, the costs on a High Court party and party scale
would meet the interests of justice in
casu
and
it was so ordered.
[35]
In the circumstance, I still abide by the order I pronounced on 20
December 2016 as encapsulated in paragraph 2 infra.
M D
HINXA, AJ
On behalf
of the plaintiff: Adv. C. D. Pienaar
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On behalf
of the defendant: Adv. N. D. Khokho
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN