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[2016] ZAGPPHC 52
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Van Rooyen NO v Road Accident Fund (66684/2012) [2016] ZAGPPHC 52 (9 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
66684/2012
Date:9/2/2016
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
ADV MARYKE VAN ROOYEN
N.O. (obo STEVEN JOUBERT) PLAINTIFF
And
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
PRETOR/US J.
(1) The plaintiff in this
action is Adv M van Rooyen, appointed as
curator ad litem
to
represent and assist Steven Joubert. Steven was involved in a motor
vehicle accident on 7 July 2010, when he was 17 years old.
(2) The defendant
accepted 100% liability for the merits of the claim. A court order
was granted on 26 February 2015, resolving
liability, as well as most
of the aspects of quantum. Loss of income and earning capacity are
the only outstanding issues.
(3) The Steven Joubert
Trust was created and the trustee appointed. The amount awarded in
respect of loss of income and earning
capacity will be paid into the
Steven Joubert Trust.
(4) The defendant
admitted the reports of the plaintiff's experts and their reports
were submitted as evidence. The experts whose
reports were admitted
are:
"Professor
Hofmeyr (Ear, Nose and Throat Surgeon), Dr Birrell (Orthopeadic
Surgeon), Dr Henning (Psychiatrist), Dr Mazabow
(Neuropsychologist),
Ms Gous (Speech/Language Pathologist and Audiologist), Dr Truter
(Clinical Psychologist), Ms Hatting (Speech
and Language Therapist),
Ms Bubb (Educational Psychologist) and Mr Whittaker (Actuary)."
(5) There are joint
minutes where the defendant had also appointed experts:
"Drs
du Plessis and Okoli (Neurosurgeons), Mesdames Graeff and Van
Ransburg (Occupational Therapists), and Mr Linde and Ms
Nel
(Industrial Psychologists)."
(6) It is important to
note that the parties have agreed to accept the correctness of the
joint minutes and to be bound by the joint
minutes.
(7) The agreement between
the neurosurgeons was:
"severe
diffuse axonal brain injury with significant irreversible
neurocognitive neurophysical and neuropsychiatric sequelae
[and]... a
focal injury to the right frontal lobe of the brain."
The agreement between the
industrial psychologists was:
"Steven
has been rendered practically unemployable in the open labour market.
He has suffered a total loss of income."
(8) An agreement was
reached that the predicted retirement age would be regarded as 65
years for actuarial calculations.
(9) Ms Nel, the
industrial psychologist for the defendant, raised certain concerns in
the joint minute regarding pre-morbid behaviour.
There is mention of
behavioural problems and admission to Denmar Psychiatric Hospital,
dabbling in drugs and Satanism.
(10) The plaintiff
addressed all the reservations of Ms Nel by submitting an affidavit
by his mother, who stated that all the problems
that were experienced
in grade 9 were resolved. He had passed grade 9, despite the problems
and then passed grade 10 and was in
grade 11 when the accident took
place, without being on medication for psychiatric problems at that
time. The independent evidence,
which was admitted by the defendant,
was that there were no problems with the plaintiff. He was working
during the holidays for
Mr Osborne when the accident happened.
According to Mr Osborne:
"Steven
was a hard worker, the other employees enjoyed working with him. He
was eager to learn and he was strong. We used him
as a ''fetcher"
to take items onto the roof. He was able to do the
administrative side of the work as well as he was
competent on a
computer. There is no doubt that Steven had a future in my company,
and that I would have assisted him in furthering
his education"
(11) The psychiatrist, Dr
Henning, found:
"When
he presented with behavioural difficulties in 2008 he was diagnosed
with bipolar and was treated with Epilim for a short
period of time.
However, he stopped the medication the same year and had a stable
mood until the accident."
(12) Dr Truter, the
clinical psychologist found:
"He
was admitted to Denmar Psychiatric Hospital and also
i;
attended a religious rehabilitation centre in
Vereeniging. He managed to pass Grade 9...[in 2009) he was a Grade 10
pupil.
He managed to pass Grade 10 without any behavioural or
disciplinary problems."
(13) All the factual
evidence, admitted by the defendant, indicates that all Ms Nel's
concerns were addressed and allayed.
CONTINGENCY
DEDUCTIONS:
(14) Mr Barn, for the
defendant argued that the court should allow a contingency deduction
of at least 30% post-morbid. His first
reason for the larger
deduction is the age of the plaintiff, who is young as he was 17
years old when the accident took place.
(15)
In the
locus classicus,
Southern
Insurance Association v Bailey NO 1984(1) 98 AD
Nicholas
JA found at p114:
"
In
a case where a Court has before it material on which an
actuarial
calculation can. usefully be made, I do not think that the first
approach offers any advantage over the second.
On the
contrary, while the result of an actuarial computation may be no more
than an "informal guess", it has the advantage
of an
attempt to ascertain the value of what was lost on a logical basis.
"
(Court's emphasis)
(16) Nicolas JA held at
116G - 117A:
"Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable
actuarial
calculations". He has "a large discretion to award what he
considers right". One of the elements in exercising
that
discretion is the making of a discount for "contingencies"
or the "vicissitudes of life". These include
such matters
as the possibility that the plaintiff may in the result have less
than a "normal" expectation of live; and
that he may
experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or general
economic
conditions. The amount of any discount may vary, depending upon the
circumstances of the case.
The
rate of the discount cannot
of
course be assessed on any logical basis: the assessment must be
largely arbitrary and must depend upon the trial Judge's impression
of the case."
(Court's
emphasis)
(17) In the article,
"Omvattende Omskrywing van Gebeurlikhede in die
Skadevergoedingsreg" 2005 THRHR 638, by Loma Steynberg
at page
645:
"Daar
moet verder daarteen gewaak word om alle moontlike omstandighede wat
daar in ons bekende wreld bestaan voor die voet
as gebeurlikhede in
ag te neem. Dit blyk uit die definisie dat die spesifieke
omstandighede van die betrokke persoon ook in ag
geneem moet word.
Getuienis moet demalwe aantoon dat daar ten minste 'n moontlikheid
bestaan dat die gebeurlikheid relevant is
of kan word. lndien
die kans daarvoor baie klein is behoort dit as de minimis non curat
lex beskou te word, en demalwe gelgnoreer
te word."
(18)
In
Road Accident Fund v
Reynolds (2005) 5 QOD 03-1 (W)
Malan
J dealt with contingencies as follows:
"The
Court must, of course, do the best it can in the particular
circumstances of each case.
Having done that, I am of the
view that the contingencies in this matter are fairly evenly
balanced. I have little doubt that fairness
requires me in the
exercise of my discretion to /eave the award made by the Court a quo
unaltered.
"
(Court's
emphasis)
The
parties in the present case were in agreement that contingency
deductions should be applied and that the court should start
at what
is termed the normal, or usual contingencies, which is 5% pre-morbid
and 15% post-morbid.
(20)
It is however so, that the assessment of contingencies is arbitrary
and the trial judge is in the best position to make a decision
after
considering all the facts
of the case and having regard to the expert opinions provided.
(21) The plaintiff's
counsel provided the court with previous decisions regarding
contingencies as an illustration of how conservative
or how liberal
the assumption is on which the underlying calculation is based. It
further illustrates that each case has to be
decided on its own
merits, but having regard to the previous cases. I mention only two
of the cases.
(22) In
Sgatya v Road
Accident Fund (2001) 5 QOD A2-1 (E),
where Jannet J found at
A2-9:
"I
have, however, to consider what allowance should be made to Dr Koch's
calculations for general contingencies ... In relation
to future loss
of earnings, which are based on the assumption that plaintiff would
have followed a career in the private sector,
I must take into
account the consideration that plaintiffs expectations as far as his
salary increases are concerned may not have
been met. Of course they
may have been exceeded. Plaintiffs claim for loss of earnings,
however, extends over a fairly extensive
period and the deduction I
make from plaintiff’s loss as calculated by Dr Koch in order
to provide for the ordinary
accidents and chances of life"
(Sigoumay v Gillbanks, supra, at 569A) is necessarily an arbitrary
one which I assess at 20%...".
(23)
In
Raupert v Road Accident
Fund (2011) 6A4 QOD 52 (ECP)
Nepgen
J applied a 20% contingency deduction and said in para [24]
of
his judgment at A4-58 to A4-59:
"In
the present instance there can be no doubt that there is a
considerable amount of speculation involved in trying to quantify
the
plaintiffs future loss of income, particularly as the approach
adopted by Martiny (the industrial psychologist for the plaintiff,
whose evidence was accepted) has not been based on salaries earned by
photographers ... It is my view, because the plaintiffs loss
is to be
determined without specific reference to what she could have earned
had she followed a photographic career and the further
uncertainty as
to the precise nature of the career she would have followed, that a
deduction of 20% for contingencies would be
appropriate."
(24) I was referred to
SM
Mngomezulu v RAF (0464312010) [2011] ZAGPJHC107 (8 September 2011)
where Kgomo J referred to Dr Robert Koch's principle that every
year of a person's remaining working life should represent a 0.5%
contingency deduction. It is so that it can be the starting point,
but once again it will depend on the facts of each case.
(25) Mr Mullins SC, for
the plaintiff, argued that Ms Nel was conservative as she took all
artisans into consideration when trying
to predict the future and did
not provide for the plaintiff to become an electrician, but only an
artisan, as was indicated by
the evidence. The defendant was of the
opinion, that under the circumstances, a 30% deduction should be
applied.
(26) I cannot agree with
this argument, as from the outset it was agreed by the parties to
accept the joint minutes and therefor
his argument as to Dr Mazabow's
evidence cannot take the matter any further. The same must apply in
regards to the educational
psychologist, Ms Bubb, as it was clear
that her finding was:
"Pre
accident, he probably was of average to high average ability. The
limited school reports and fluctuating marks suggest
that he was not
focusing on his work, but he passed each year. He probably would have
completed Grade 12 and studied further, probably
at an FET College,
achieving what was previously an N4 level. He indicated that he
wanted to qualify as an electrician or in electronics
pre injury and
probably would have completed this training and qualified as an
artisan."
(27) The defendant did
not consult with an educational psychologist and could not counter
this finding. This finding was supported
by the evidence of Mr
Osborne that the plaintiff would, most probably, have qualified as an
electrician.
(28) In these
circumstances, after considering all the facts, the expert reports as
well as the arguments by counsel, I find that
the difference between
Mr Whittaker, actuary for the plaintiff's scenario 1 and Mr Munro,
actuary for the defendant's scenario
must be split to calculate the
amount and a 20% deduction for contingencies must be applied.
(29) I agree with Loma
Steynberg that:
"The proven factual
situation should be paramount in making
a
contingency adjustment, rather than an arbitrary adjustment
that could be in conflict with the factual situation."
(2008
THRHR 287)
(30) In the light of what
Ihave found, based on the agreed aspects between the parties, which
includes the joint minutes the following
is the order of this Court:
1. The contingencies to
be applied will be 5% pre-morbid and 20% post-morbid.
2.
2.1. Advocates East and
Barn are given leave to approach me in chambers with the actuarial
calculations resulting from paragraph
1 above, for an order sounding
in money.
2.2. The aforesaid
capital amount that will be ordered as per paragraph 2.1 above will
not bear interest unless the defendant fails
to effect payment
thereof within thirty calendar days of the date of that Order, in
which even the capital amount will bear interest
at the rate of 9%
per annum calculated from the thirty first calendar day after the
date of that order up to and including the
date of payment thereof.
3. The defendant is
ordered to pay the plaintiff's taxed or agreed party and party costs,
including the following costs:
3.1. The costs of the
employment of two counsel (including the costs of senior counsel);
3.2. The costs of the
qualifying, preparation and reservation fees, if any, of the
following experts:
3.2.1. Mr L Linde; and
3.2.2. G Whittaker
3.2.3. The costs
attendant upon the obtaining of payment of the amounts referred to in
this Order; and
3.3. The costs relating
to the curator ad litem, including her preparation, the drafting of
her report, consultation with the patient,
as well as attendance at
court.
4. The following
provisions will apply with regards to the determination of the
aforementioned taxed or agreed party and party costs:
4.1. The plaintiffs
attorneys shall serve the Notice of Taxation on the defendant's
attorneys of record;
4.2. The defendant shall
be allowed 15 (fifteen) calendar days from date of settlement or of
taxation within which to effect payment
of the agreed or taxed costs;
and
4.3. Should payment not
be effected within the aforementioned period, the plaintiff will be
entitled to recover interest on the
taxed or agreed costs at the rate
of 9% per annum calculated from the thirty first calendar day after
the date of settlement of
the costs or of taxation, up to and
including the date of final payment thereof.
5. The nett proceeds of
the payments referred to above, after deduction of attorney and own
client costs ("the capital amount"),
shall be payable by
the plaintiff's attorneys to the Steven Joubert Trust.
6. There is no applicable
contingency fee agreement.
__________________________
Judge C Pretorius
Case number : 66684/2012
Matter heard on :28
January 2016
For the Applicant : Adv
Mullins SC I Adv East
Instructed by : Paul Du
Plessis Attorneys
For the Respondent : Adv
Bam
Instructed by : T Moabelo
Attorney
Date of Judgment