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[2015] ZAECMHC 5
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Mposi v Road Accident Fund (1168/2011) [2015] ZAECMHC 5 (26 February 2015)
NOT
REPORTABLE
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
Case
no: 1168/2011
In
the matter between:
LINDISWA
HAZEL
MPOSI
.....................................................................................................
Plaintiff
vs
ROAD
ACCIDENT
FUND
.....................................................................................................
Defendant
Date
heard : 30
th
October 2014
Date
delivered : 26
th
February 2015
Summary: This is an
action for damages resulting from a motor accident.
The issue to be
decided was the plaintiff’s damages regarding her loss of
income earning capacity. Each party called
one expert, an
industrial psychologist. Their opinions were contradictory.
The Court decided the case on the basis
of the plaintiff’s
expert witness.
JUDGMENT
TSHIKI J:
[1]
On the 30
th
April 2009, the plaintiff herein was a
passenger in a motor vehicle which was involved in an accident.
Consequently, the
plaintiff, a female person, suffered damages in
particular a fracture to her right femur which required surgical
reduction.
At the time of the accident, the plaintiff was 22
years old having been born on the 17
th
March 1987.
As a result of the damages caused by the accident, the plaintiff
instituted action against the defendant for
damages and in terms of
section 2 and 3 of the Road Accident Fund Act 56 of 1996 (hereinafter
referred to as the Act).
[2]
On the 30
th
October 2014 the parties herein made an
agreement which was made an order of the Court on the following
terms:
[2.1] “that
the defendant shall pay to the plaintiff the sum of three hundred and
fifty thousand rand (R350 000.00) as
and for general damages;
[2.2] payment of the
aforesaid amount is to be made within 14 days of this order;
[2.3] if payment is
not made by the date referred to in paragraph 2.2 above, interest
shall accrue on the capital amount at the
prescribed legal rate,
until the date of final payment;
[2.4] the defendant
shall within fourteen days hereof issue to the plaintiff, in terms of
section 17
(4) of the
Road Accident Fund Act 56 of 1996
, an
undertaking for the reasonable costs of medical treatment which
plaintiff may require for the injuries, or sequelae thereto,
arising
out of the motor vehicle collision which occurred on 30
th
April 2009, including a claim for costs of the future accommodation
of the plaintiff in a hospital or nursing home or treatment
of or
rendering of a service or supplying of goods to her, after such costs
have been incurred and upon proof thereof.
[2.5] the trial in
regard to plaintiff’s further damages is hereby postponed
sine
die
, pending the judgment of the above honourable Court;
[2.6]
the issue of any and all costs for the trial dates of 30
th
November 2014 and 31 November 2014 is reserved pending the judgment
of the above honourable court in regard to further damages,
as
referred to in paragraph 5 above.”
[3]
The parties further agreed which agreement was made an order of the
Court, that the merits of the matter were settled with the
defendant
being liable for 100% of the plaintiff’s proven damages.
The only issue between the parties being the quantification
of
plaintiff’s damages relative to loss of income earning capacity
was to be determined based upon the evidence of two witnesses,
as
well as a medico-legal report which was handed in by consent
between the parties. The following documents were handed
in by
agreement of the parties as follows:
[3.1]
an occupational therapists’ report compiled by
Ms
Peliwe Mdlokolo
on behalf of the
defendant, was admitted as well as an actuarial report compiled by
Munro Consulting as exhibit “B”.
a second bundle of
documents on behalf of the plaintiff inclusive of an actuarial report
prepared by
Mr Ivan Kramer
was also admitted. Another bundle which was submitted included
the plaintiff’s matric certificate and her academic
record at
Walter Sisulu University and was handed in as exhibit “C”.
It was further agreed by the parties that
once the matter had been
decided by the Court upon the available evidence, that the applicable
actuarial report of the successful
party would be utilised as the
basis for the final damages award, which would incorporate the
applicable contingency deduction
deemed appropriate by the Court.
[4]
It, therefore, became clear that the only issue in dispute is the
quantification of plaintiff’s damages relative to the
loss of
income earning capacity. This is so, because each party led
evidence of an industrial psychologist whose evidence
was
contradictory. Therefore, the plaintiff’s damages
regarding her loss of income earning capacity was to be determined
on
the basis of the contradictory evidence of two industrial
psychologists Messrs
Gregory Shapiro
and
Jean Du Randt
.
Pheliwe Dlokolo
’s
report was in regard to the plaintiff’s occupational
therapist’s report which was handed in by consent on behalf
of
the defendant.
[5]
Mr Gregory Shapiro
an industrial psychologist was called to testify on behalf of the
plaintiff and
Mr Jean Du Randt
also an industrial psychologist gave evidence on behalf of the
defendant.
[6]
Both
Du Randt
and
Shapiro
agree on the following:
[6.1] that the
plaintiff would probably have been able to work until retirement age
of 65 years pre-morbidly.
[6.2]
The plaintiff would have a loss productivity post-morbidly and
will have limited career options. In this regard,
Mr
Du Randt
opined that this was so
because, in addition to the damages reflected in the defendant’s
actuarial report, damages were calculated
by using a higher than
usual post-morbid contingency as had been sustained by the
plaintiff. Both parties seem to be in agreement
that a higher
than normal contingency deduction be applied to the post-morbid
scenario. According to
Shapiro
this was so to cater for the plaintiff’s post-morbid career
prospects, due to the lack of productivity and competitiveness
plaintiff would suffer as a result of the injury she sustained.
[7]
As already stated above, this Court has to determine one issue, being
the extent of the plaintiff’s pre-morbid earning
capacity as
against her post-morbid earning capacity.
[8]
The relevance of the evidence of both
Shapiro
and
Du
Randt
was to assess and look at how the
plaintiff’s employment and earnings would be affected with
regards to the plaintiff’s
future earnings. In other
words, the Court has to establish how plaintiff’s career may
have progressed if plaintiff
was not injured and therefore establish
the effect the accident has had on her future employment and possible
loss of income as
a result of the injuries plaintiff had sustained.
The same assessment was also made
by Mr
Du Randt
as well. In order for
the two industrial psychologists to come to an informed decision they
have to also have regard,
inter alia
,
to the plaintiff’s educational history inclusive of her matric
studies and beyond. It is common cause that at the
time of the
accident she was already a full time student doing a Bachelor of
Commerce (BCom) degree with Walter Sisulu University.
According
to
Mr Shapiro
,
the plaintiff would have progressed and would have passed her BCom
degree. On the contrary, according to
Mr
Du Randt
who also had to have regard to
the same academic progression of the plaintiff, testified that the
latter would not have passed
her degree.
[9]
In a nutshell in the opinion of
Mr Du
Randt
, the plaintiff would have left
university due to financial reasons and repeated failures in 2010 and
would have entered the formal
labour market in 2011. He opines
that due to a disability bursary which the plaintiff received as a
result of the accident,
she remained at university longer than she
would have otherwise remained. She, therefore, would have thus
entered the formal
labour market some three years later than she
would otherwise have had. This, therefore, has slowed her
career progression
somewhat and this should be catered for in the
actuarial calculations.
[10]
On the contrary, according to
Shapiro
’s
opinion the plaintiff would have obtained a degree and entered the
formal labour market a year earlier than she has, had
the accident
not occurred.
[11]
In my view, the fact that the plaintiff had indicated that she
intended to follow the profession of the chartered accountant
does
not mean that she could not end up changing to another degree in the
commercial sphere, or any other degree for that matter
which would
ultimately land her in a supervisory position. Even if she may
not have been able to pass the degree of chartered
accountant that
does not necessarily mean that all doors were shut for her to pursue
another commercial degree or an equivalent
tertiary qualification.
This is so, for the reason,
inter alia
,
that she managed to progress to her third year level of her BCom
degree. Post-accident she even registered with Unisa
with
the view to try and complete her studies. Any contention that
plaintiff would not have passed any degree when she had
so many
credits towards graduating her BCom degree (not necessarily a
chartered accountant) borders on pure speculation.
Mr
Du Randt
’s contention that the
plaintiff would never pass a degree pre-morbid was not based on any
cogent underlying reasoning based
on the facts of this case.
[12]
It is well established that an expert is required to assist the
Court, not the party for whom he or she testifies. Objectivity
is the central prerequisite for his or her opinions. In
assessing an expert’s credibility an Appellate Court can test
his or her underlying reasoning and is in no worse a position than a
trial Court in that aspect. In
Stock vs Stock
1981 (3)
SA 1280
(A) at 1296 E-F Diemont JA remarked as follows:
“
An
expert …must be made to understand that he (or she) is there
to assist the court. If he (or she) is to be helpful
he (or
she) must be neutral. The evidence of such a witness is of
little value where he, or she, is partisan and consistently
asserts
the cause of the party who calls him (or her). I may add that
when it comes to assessing the credibility of such
a witness, this
court can lest his reasoning and is, according[ly] to that extent, in
as good a position as the trial court was.”
(My emphasis)
[13]
The Court is at large to assess the expert evidence on the record
before it can decide which one, if any, of the two conflicting
opinions is to be preferred. In this case, it cannot be
concluded with certainty that the plaintiff could never have passed
her degree. I say so for the reason that she had progressed to
the third year level of her degree. It would be pure
speculation to suggest a generalised assumption which forms the basis
of the defendant’s expert evidence.
[14]
It is common knowledge that an expert is expected to give the Court
the benefit of his or her expertise and for the benefit
of the
Court. That he or she has been called by a particular party is
as a result of the reason that he or she has evaluated
the facts to
which he or she applied the expertise upon which he or she made an
opinion favourable to the party that has called
her or him.
That, however, does not absolve the expert from providing the Court
with an objective and unbiased opinion based
on his or her
expertise. When confronted with evidence or facts which are
contrary to his opinion he or she is expected to
agree or at least to
explain why he made his or her conclusion at the time it was made.
He or she is not expected to give
evidence which goes beyond the
logic which is dictated by the scientific knowledge which the expert
claims to possess. (
Schneider No
and Others v AA and Another
2010 (5) SA
203
(WCC) at 211J-212B).
[15]
In this case, it is common cause that the qualifications of both
parties’ expert witnesses were not disputed in any manner
whatsoever.
[16]
I agree with
Ms Redpath-Molony
that the main point of differentiation between
Shapiro
and
Du Randt
is the extent of the plaintiff’s pre-morbid earning capacity.
Shapiro
’s
opinion is that plaintiff would have ultimately achieved her
university degree, would have started as a semi-skilled level
B3 and
go on to achieve a C4 skilled position.
Du
Randt
disagrees and has opined that the
plaintiff would not have achieved a university degree and would have
remained in a semi-skilled
position thus making her unable to achieve
more than a B4 level.
Du Randt
is also quoted by
Koch’s Quantum
Yearbook
for 2014 as having regularly
recommended use of 50% of the corporate total package when projecting
loss of earnings for informal
sector employment. His (
Du
Randt
’s) opinion is said to be
not tested and is therefore without justification. To me it
also does not make sense for
Du Randt
to opine that the plaintiff’s position would be the same as
pre-morbidly with the exception that a higher than usual contingency
deduction should be catered for. On the other hand, Shapiro is
of the opinion that the plaintiff would not have progressed
beyond a
semi-skilled B3 level.
Du Randt
also opined that plaintiff would have left university due to
financial reasons, repeated failures in 2010 and would have entered
the formal labour market in 2011. He further states that
plaintiff has remained at university longer that she would have
otherwise done. He has thus entered the formal labour market
some three years later than she would otherwise have had.
For
this reason, says
Du Randt
,
plaintiff should be catered for in the actuarial calculations because
her career progression has somewhat been slowed.
[17]
On the other hand,
Shapiro
disagrees with
Du Randt
and
is of the opinion that plaintiff would have obtained a degree and
entered the formal labour market a year earlier than she
has, had
the accident not occurred.
[18]
The plaintiff explained the reason for her failure at Walter Sisulu
University in 2008 as having been caused by the lecturer’s
lack
of knowledge of the subject he or she was lecturing.
Shapiro
is of the view that this explanation is valid in that it had the
potential for resulting in the plaintiff failing the course.
Shapiro
further explains that the effect of the plaintiff’s injuries
caused by the accident would have had an effect on her academic
performance in 2009. He gives some of the reasons as lack of
mobility, the recovery period relating to the accident and other
reasons such as emotional impact of the accident which would have a
disadvantage on her life including her preparation for her
studies.
The above explanation is also explained by the plaintiff’s
ability to pass her 2010 and 2011 academic years.
In my view,
there is some sense in what
Mr Shapiro
says in this regard. I cannot agree with
Mr
Du Randt’
s attempt to downplay
the effect of the accident in the plaintiff’s failure as a
result of the accident. Evidence shows
that the plaintiff has
shown determination in her ability to get positive marks in her
studies. Her resilience is also proof
of the fact that she
would likely have completed her degree pre-morbidly a fact that
Mr
Du Randt
does not agree with and
without convincing reasons in my view.
[19]
I am satisfied that the evidence of the plaintiff in establishing on
a balance of probabilities that she would have obtained
her tertiary
education degree has been proved. This would have enabled her
to achieve a place at the level of C4 rating as
testified for by Mr
Shapiro.
[20]
For the above reasons, I do not agree with
Mr
Duda
for the defendant, that the
plaintiff has not proved her case on a preponderance of
probabilities.
[21]
At the beginning of the case, it was agreed by the parties that once
the matter has been decided by the Court upon the available
evidence
that the applicable actuarial report of the successful party would be
utilised as the basis for the financial damages
award which would
incorporate the applicable contingency deductions deemed appropriate
by the Court. The Court has decided
in favour of the plaintiff
and it follows, therefore, that the actuarial report of the plaintiff
is to be utilised herein.
[22]
It, therefore, follows that the calculations referred to in the
plaintiff’s actuarial report reflect the usual contingency
deductions of 5% and 15% to future loss of income pre-morbidly and
then reflect a 30% contingency deduction in regard to future
income
post-morbidly.
[23]
The net loss reflected in the actuarial report, based upon the
contingency deductions reflected in paragraph [22] above is
R5 434 248.00
[24]
Wherefore I make the following order:
(a) the Defendant
is ordered to pay the plaintiff the sum of R5 434 248.00 in
respect of her claim for past and future
loss of income/earning
capacity;
(b) payment of
the aforesaid amounts in paragraph (a) above shall be made within 14
days from date of this order directly to the
trust account of the
plaintiff’s attorneys of record;
(c) the
reasonable travel and accommodation expenses incurred by plaintiff’s
legal representatives in attending consultations
in preparation for
trial;
(d) interest on
the amount of damages awarded (at the legal rate) to run from 14 days
after date of judgment to date of payment;
and
(e)
interest on costs (at the legal rate) from a date 14 days from
allocateur to date of payment.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH
COURT
For
the plaintiff : Adv N Redpath-Molony
Instructed
by : Nonxuba Inc
MTHATHA
For
the defendant : Mr S Duda
Instructed
by : Mnqadi Inc
MTHATHA