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[2016] ZAGPPHC 1126
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Malan v Road Accident Fund (66248/2012) [2016] ZAGPPHC 1126 (6 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
PROVINCIAL DIVISION, PRETORIA)
CASE
NO: 66248/2012
Not
reportable
Not
of interest to other Judges
Date:
6/12/2016
In
the matter between:
BENJAMIN
PETRUS
MALAN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MAKGOKA.
J:
[1]
This judgment has taken inordinately long to deliver. The delay
occurred under the following circumstances. During the second
term of
this year I was assigned to the western circuit court in
Potchefstroom. I was assigned this matter on my return from circuit
court on 31 May 2016. On 1 June 2016 I was appointed acting judge of
appeal in the Supreme Court of Appeal. I had to clear my chamber
for
the acting judge who would occupy it during my absence. This file
should have been among the documents I removed from chambers
to my
residence. For some reason the judgment was not recorded by my
registrar in the list of reserved judgments. As a result,
the file
'fell through the cracks'. It was only during the weekend of 27
August 2016 that I happened to go through some documents
that it came
to my attention. I regret the delay and offer my sincere apologies to
the parties.
[2]
This is an action for damages in terms of the
Road Accident Fund Act
56 of 1996
, as amended (the Act). That followed a motor vehicle
collision on 30 June 2009. The plaintiff, then 33 years old, was a
driver
of a motor vehicle which collided with another. The plaintiff
sustained the following injuries: soft-tissue injury to the left
shoulder; soft-tissue injury to the lunar spine; head injury with
frontal impact; and moderate traumatic brain injury. He was treated
at a private hospital and discharged the same day. He was later
treated by a general medical practitioner and a pharmacist, which
treatment consisted mainly of injections for the back and shoulder
pain. He was employed as a second-hand car sales representative
at
the time of the accident. He was off from work for only three days
following the accident. He resumed his duties and continued
working
for three years until he resigned.
[3]
His current complaints include, among others, pain to the left
shoulder, which prevents him sleeping on the left side; inability
to
properly use the left-arm; pain in the lower back; short-memory;
severe headaches; shoulder and back pain; loss of balance;
intermittent and short episodes of vertigo; sleep disturbances; low
energy levels and fatigue; speech difficulties; disorganisation;
and
moodiness.
[4]
The defendant has conceded full liability for the plaintiff's proven
damages. With regard to future medical expenses in respect
of
treatment and accommodation, the defendant has agreed to furnish the
plaintiff with an undertaking in terms of
s 17(4)(a)
of the Act.
Accordingly, the only issue for determination is the plaintiff's
claim for loss of earning capacity.
[5]
There was no oral evidence by or on behalf of either party. The
parties, by agreement, stated a case in terms of rule 33 of
the
Uniform Rules of Court, and handed up a document which sets out the
common cause issues; the plaintiff's personal particulars
and
employment history; excerpts from hospital and medical reports, as
well as the medico-legal reports of the following experts
on behalf
of the plaintiff: Dr Volkersz (orthopaedic surgeon); Dr. Wilson
(radiologist); Dr. Edeling (neurosurgeon) Dr. DA Shevel
(psychiatrist) Mr. Reynolds (clinical psychologist); Mr. Gouws
(speech/language pathologist and audiologist); Ms. Cumming
(occupational
therapist); and Ms Vermaak (industrial psychologist).
[6]
Rule 33(1) of the Uniform Rules of Court provides that the parties to
any dispute may, after institution of proceedings, agree
upon a
written statement of facts in the form of a special case for the
adjudication of the Court. Rule 33(2) on the other hand,
reads as
follows:
'Such
a statement, shall set forth the facts agreed upon, the questions of
law in dispute between the parties and their contentions
thereon.
Such a statement shall be divided into consecutively numbered
paragraphs and shall be annexed thereto copies of documents
necessary
to enable the court to decide upon such questions...'
[7]
The plaintiff completed grade 10 in 1994. He subsequently obtained a
number of certificate qualifications. He was first employed
as an
apprentice mechanic in 1995. Three years later, in 1998, he was
employed as a cash in-transit security officer by a security
company.
He left a year later in 1999 to work as a mechanic. In 2000 he left
and was employed as a safety officer. A year later,
in 2001 he joined
another company, also as a security officer. In 2002 he left and
secured a job as used vehicle salesman. This
is where he was employed
when the accident occurred on 30 June 2009. He was responsible for
the following tasks: presenting vehicles
to potential clients;
accompanying potential clients on test drives; completing the
licensing and registration of each vehicle
sold; compiling invoices;
and signing contracts.
[8]
He continued in this job after the accident and resigned in November
2012 to work as a self-employed 'freelance vehicle dealer'.
He stated
to the experts who examined him that the reason for leaving was
'memory and concentration difficulties.' In the twelve
months
preceding the collision the plaintiff earned an income of
approximately R15 000 - R30 000 per month, the income varying
due to
earning commission on vehicle sales. The plaintiff currently works as
a freelance car salesman, sourcing vehicles over the
internet and
providing such information to dealerships. The plaintiff earns a
marginal commission from the dealerships for vehicles
purchased on
the basis of the information he provided. According to the industrial
psychologist, Ms Derryn Brummer, the plaintiff's
position is
considered to have the requirements which fall within the light
physical demand.
[9]
The plaintiff informed the occupational therapist, Ms Kelly Cumming,
that he did not experience any physical limitations in
relation to
his work after the accident. In her report, Ms Cumming stated:
'Mr
Malan states that post-accident he did not experience physical
limitations impending on his work ability; however he is of the
opinion that his memory and concentration deficits resulted in
careless mistakes being made at work. He thus resigned from the
company towards the latter part of 2012.'
Further
in the report, it is remarked that:
'He
(the plaintiff) states that if he were to return to his previous
occupation within a dealership, he would experience concentration
and
memory deficits. He states that he would then be at risk of
forgetting to complete administrative tasks such as licensing,
registration, signing of contracts and compilation of invoices.'
[10]
The legal representatives of the parties also handed up a document
titled 'Loss of Earnings Calculator', in which the plaintiff's
pre-
and post- morbid earnings are set out in scenarios 1 and 2, with
certain contingencies applied to those earnings. In scenario
1, the
total loss of earnings is calculated at R1 201 095.85 after a 25%
contingency was applied to the post-morbid earnings. In
scenario 2, a
30% contingency was applied to arrive at a figure of R1 475 935.80.
[11]
Mr Uys, on behalf of the plaintiff, conveyed to me that the
contingencies had not been agreed upon and were subject to adjustment
by the court. Mr Uys readily accepted that the link between the
collision and the behaviourial patterns exhibited by the plaintiff
post collision is not that strong. He however, urged me to have
regard to the views expressed by the plaintiff's wife and the report
of the neurosurgeon, Dr Edeling. He submitted that given the
unpredictable nature of the vehicle sales environment, contingencies
could be adjusted higher than usual. Counsel for the defendant, Mr
Ngoeljana,
placed on record the defendant's acceptance of the
reports of the plaintiff's experts, and also that the plaintiff had
resigned
from his work as a vehicle sales person due to the accident.
He submitted that if the court adopted scenario 1, a further 10%
deduction
should be applied, while a 15% should be applied in the
event the court prefers scenario 2.
[12]
It is trite that the plaintiff bears the onus of proving on a balance
of probabilities that any pathology emanating from the
accident
explains his current complaints which disables him from continuing
with his job as a car sales representative, as he was
able to do
pre-morbidly. The court must determine first, whether the injury has
translated into diminution in earning capacity,
and second, the
extent of such diminution. In the process of such determination, it
must be established with some certainty, among
others, what impact
the accident had on the plaintiff in carrying out his duties as a car
sales representative; the future opportunities
the plaintiff was
likely to be presented with, but for the accident; if plaintiff,
post-accident, was employed sympathetically;
and whether the
plaintiff received any warnings for lack of application or
performance.
[13]
These are all very important and pertinent considerations in
determining whether, in fact, the plaintiff has suffered diminution
in his earning capacity as a result of the accident. It is important
to emphasise that the mere fact of physical disability does
not
necessarily reduce the estate or patrimony of the person injured. Put
differently, it does not follow from proof of a physical
injury which
impaired the ability to earn an income that there was in fact a
diminution in earning capacity. See
Union and National Insurance
Co.
Ltd
v
Coetzee
1970 (1) SA
295
(A) at 300A;
Sanlam Versekerings Maatskapy Bpk v Byleveldt
1973 (2) SA 146
(A);
Dippenaar
v Shield
lncurance
Co Ltd
1979 (2) SA 904
(A).
[14]
As was explained in
Aaron's
Whale
Rock
Trust
v Murray
&
Roberts
Ltd
and
Another
1992 (1) SA652
(C) at 6551-656E:
'The
Court must not be faced with an exercise in guesswork; what is
required of a plaintiff is that he should put before the Court
enough
evidence from which it can, albeit with difficulty, compensate him by
an award of money as a fair approximation of his mathematically
unquantifiable loss. That this is so appears from the well-known
passage from the judgment of Stratford J in
Hersman v Shapiro
&
Co
1926 TPD 367
at 379, quoted with approval by Diemont JA in
Essa
Standard SA (Ply)
Ltd v
Katz
1981 (1)
SA 964
(A) at 970E, viz:
"Monetary
damage having being suffered, it is necessary for the Court to assess
the amount and make the best use it can of
the evidence before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if
it is certain pecuniary damage has
been suffered, the Court is bound to award damages. It is not so
bound in the case where evidence
is available to the plaintiff which
he has not produced; in those circumstances the Court is justified in
giving, and does give,
absolution from the instance."
[15]
The upshot of the above authorities is that it is not competent for a
Court to embark upon conjecture in assessing damages
where there is
no factual basis in evidence, or an inadequate factual basis, for an
assessment, and it is not competent to award
an arbitrary
approximation of damages to a plaintiff who has failed to produce
available evidence upon which a proper assessment
of loss could have
been made. Thus where evidence is available to a plaintiff to place
before the Court to assist it in quantifying
damages, and this is not
produced, so that it is impossible for the Court to do so, the
plaintiff must fail. See
Monumental
Art
Co
v Kenston Pharmacy
(Pty) Ltd
1976 (2) SA 111
(C) at 11SE;
Mkwanazi
v Van der Merwe and
Another
1970 (1) SA 609
(A) at 630.
[16]
In the present case, the plaintiff says that he resigned from his
previous job as a car sales representative because of memory
and
concentration problems. All I have about this is the plaintiffs mere
say-so. I take no issue with the reports by the experts
regarding his
cognitive abilities after the accident. The main question is how the
accident affected his ability to do the job
he did before the
accident. I cannot simply rely on his mere
ipse dixit,
when
there should be objective information from his previous employer to
confirm this. There has to be collateral information from
the former
employer as to the plaintiff s performance of his duties pre- and
post-morbid. What is more, the plaintiff does not
give specific
incidents to support the assertion that he had memory and
concentration difficulties. It is a customary and acceptable
practice
in matters such as the present one, to include collateral information
from the employer or former employer, in the report
of the industrial
psychologist.
[17]
There
is
no
indication
in
the
present
case
that
an
attempt
was made
to
contact the
plaintiffs former employer to obtain such collateral information.
There is
no
explanation why this was not done. The role played by collateral
information from
an employer
or former employer should never be undermined.
[1]
Employer
collateral information
is
particularly
relevant in
the present
case for the mere
fact that
physically,
the
plaintiff
does
not
appear
to
have
any
difficulty
in
coping
with
the
demands of
his
job,
post
the
accident. I
have
pointed out earlier that the nature of the
plaintiff's
job
fell
within
the
light
physical demand.
I have
diligently
perused
all the
expert
reports and bundles of documents on file for any information about
the views
of
the
plaintiff's
former
employer
as
to
the
plaintiff's
work
performance
after
the
accident.
I
have
found
none.
There
is
not
even
any
indication
of
the
employer's
certificate
which
is
normally
obtained
from
the
employer
after
termination of
employment
of
an
employee.
[18]
It does not assist the plaintiff that there are reports by experts
attesting to his loss of cognitive abilities. This is so
because even
the expert reports were largely compiled on the basis of the
information provided by him. I have, in para 9 above,
referred to
such example, where it is clear that the conclusions reached by the
occupational therapist, was largely based on the
plaintiff's own
opinion of his condition. It is therefore clear that if, for example,
collateral information comes to light that
the plaintiff had in fact
coped well in his job, post-morbid, and had actually been earmarked
for promotion, the assumptions postulated
by the industrial
psychologist would no doubt, alter significantly. It is trite that in
order to test the opinion of experts, the
facts upon which they draw
their conclusions must be considered. If the facts are incorrect,
which is part of the judicial
function to determine, then a
fortiori
the opinion is flawed. See
Ndlovu
v
RAF
2014 (1) SA 415
(GSJ) para 35. See also
Michael
and Another
v Linksfield Park
Clinic
(Pty) Ltd and Another
2001 (3) SA 1188
(SCA) paras 34 to
40 as to the proper approach a court should adopt in evaluating the
expert evidence.
[19]
It is irrelevant that the parties have agreed to state a case in
terms of rule 33 of the Uniform Rules of Court. The defendant
can
only admit that the plaintiff resigned from his employment. What it
cannot tenably agree to, without proof, is the reason for
the
resignation. This court is called upon to authorize payment of over
R1 million of public funds in favour of the plaintiff.
For that
reason, I must be satisfied about the basis on which such
compensation is premised. The court is not a rubberstamp for
agreements reached between attorneys. It has a duty, especially when
public funds are implicated, to make sure that compensation
is due,
fair and adequate.
[20]
In
Minister of Police v Mboweni
&
Another
2014 (6)
SA 256
(SCA) para 8, the Supreme Court of Appeal cautioned against
deciding a stated case on inadequate facts. Wallis JA stated:
'It
is clear therefore that a special case must set out agreed facts, not
assumptions. The point was re-emphasised in
Bane
&
Others
v
D' Ambrosi,
where ij was said that deciding such
a case on assumptions as to the facts defeats the purpose of the
rule, which is to enable a
case to be determined without the
necessijy of hearing all, or at least a major part, of the evidence.
A judge faced with a request
to determine a special case where the
facts are inadequately stated should decline the request. The
proceedings in
Bane
v
D'
Ambrosi
were only saved because the parties agreed that in
any event the evidence that was excluded by the judge's ruling should
be led,
with the result that the record was complete and this court
could then rectify the consequences of the error in deciding the
special
case.'
(footnote
omitted)
[21]
Under normal circumstances I would consider granting absolution from
the instance. However, as the parties had agreed to state
a case on
the agreed facts, and where both parties were remiss in the
inadequacy that I have pointed out, I am of the view that
the matter
should be postponed
sine die
to allow the plaintiff to obtain
a report from his former employer as to his performance of his duties
post morbid. All the
expert reports are before court, from which
it can be deduced that the accident had resulted in a number of
psychological and cognitive
seque/ae.
If these had resulted in
diminution of his earning capacity, he must be properly and
adequately compensated. It is in the interest
of justice that all the
evidence be laid before court to assist in the assessment of the
plaintiff's damages. Iassume that the
plaintiff's former employer can
readily avail the plaintiff's performance history and records. If
there are difficulties in that
regard, the plaintiff can report to
the court of those.
[22]
I am of the view that, rule 33(5) of the Uniform Rules of Court, is
suitable for the present situation. It provides, among
others, that
the court may give any direction with regard to the hearing of any
other issue in the proceedings which may be necessary
for the final
disposal thereof. At any rate, in terms of s 173 of the
Constitution, this court has the power to regulate
its procedure, in
the interests of justice.
[23]
In the result I make the following order:
1.
The matter is postponed
sine
die;
2.
In terms of rule 33(5) of the Uniform Rules of Court, the plaintiff
is directed to file a report
compiled by his former employer,
detailing:
(a)
the plaintiff's performance of his duties between 30 June 2009
and November 2012 when he resigned from
the employ of the company;
(b)
Whether the plaintiff had received any warnings (verbal or written)
in respect of his work performance;
(c)
The reason for the plaintiff's resignation, as well as all
documentation pertaining to the plaintiff's resignation,
including
the plaintiff's resignation letter.
3.
The plaintiff is given leave, on obtaining the information referred
to above, to supplement any
of the expert reports already filed;
4.
Once the above have been achieved, the plaintiff may enrol the matter
for the determination of
quantum, in liaison with the office of the
Presiding Judge.
___________________
T
M Makgoka
Judge
of
the High Court
31
August 2016
Appearances:
For
the Plaintiff:
Mr
P.J. Uys
Instructed
by:
Yvonne Kruger Inc.. Johannesburg
Scholtz Attorneys,
Pretoria
For
the Defendant:
Adv.
M.E
Ngoetjana
Instructed
by:
Mathipane Tsebane Attorneys, Johannesburg Macintosh Cross &
Farquharsen, Pretoria
[1]
See for example
Fulton
v Road Accident Fund
2012
(3) SA 255
(GSJ) paras 51 -55 where employer collateral
information
was
very
helpful
in
assisting the
Court
to
make a
determination
whether
the
plaintiff indeed had suffered loss of earning capacity.