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[2014] ZAGPPHC 108
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Road Accident Fund v De Bruyn (11976/2011) [2014] ZAGPPHC 108 (7 March 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
No: 11976/2011
DATE:
7 MARCH 2014
In the matter
between:
ROAD ACCIDENT
FUND
..........................................
APPLICANT/DEFENDANT
And
JAN BENJAMIN DE
BRUYN
..................................
RESPONDENT/PLAINTIFF
CORAM EBERSOHN AJ
DATE HEARD 30
January 2014
DATE JUDGMENT
HANDED DOWN: 7 March 2014
JUDGMENT
EBERSOHN AJ
[1] The parties are
referred to as in convention.
[2] The plaintiff
sued the defendant, the Road Accident Fund.
The matter proceeded
to trial and the court was eventually advised that the merits were
settled, the evidence of one witness of
the plaintiff, one Kobus
Prinsloo, was then heard about the quantum and the court was
requested to stand the matter down until
the next day as the parties
were negotiating a settlement of the quantum and would be preparing a
deed of settlement. This was
done. The counsel of the defendant
advised the court that he would not appear the next day as he was
involved in another matter
the next day and that the deed of
settlement would be brought to the court by his instructing attorney.
The parties indicated that
they abided in their arguments already
delivered.
The next day the
plaintiff’s counsel and his instructing attorney and the
defendant’s attorney came to the chambers
and informed the
court that the draft settlement was finalised and the only item the
court had to adjudicate and which they could
not agree on, was a
calculation of the plaintiffs loss of future income and the court was
requested to determine it. The court
specifically enquired from the
plaintiff’s counsel and the defendant’s attorney whether
they had anything to address
the court on with regard to the future
loss of income and they stated explicitly that they had nothing to
say and left everything
in the court’s hands and the court had
to make its own assessment thereof. By this time the court had
studied the the defendant
did not dispute especially the reports by
the orthopaedic surgeons and the report and evidence of Kobus
Prinsloo and his evidence
in court the previous day which were also
not disputed.
The legal
representatives then left. The court did its own calculations and
concluded that the report by Mr. Prinsloo, which was
not disputed or
attacked in any manner by the defendant’s legal representatives
was to be accepted and the court then finalised
the draft order by
calculating the court’s own assessment: a) The point of
departure of the calculation was by calculating,
on the one hand, the
plaintiff’s future uninjured income, and on the other hand the
plaintiff’s assumed future injured
income. The assumptions and
figures utilised in the calculation appear from paragraphs 4.1 and
4.2 of the actuarial report (bundle
C, p 131). No contingencies were
taken into account in the gross calculation (bundle C, par 4.3, p
131). The assumptions and figures
in respect of uninjured income and
injured income are the same, except that in the latter instance it
was assumed that the plaintiff
would reach his career ceiling 6
months later and would retire 5 years early (bundle C, par 3.2 p 131
and paras 4.1 and 4.2 p 1
31). The result of
the calculation yielded the capital value of the plaintiff’s
loss of income. Without taking the RAF Amendment
Act CAP into account
this loss of income amounted to R442 300,00 as set out in paragraph
4.2 of the actuarial report (bundle C,
par 4.5, p 131). Taking into
account the RAF Amendment Act CAP the capital value of loss of income
was reduced to R304 400,00 (bundle
C, par 4.7, p 132). These
calculations do not take into account any contingency adjustments in
respect of uninjured or injured
income. The capital value of future
sick leave was also actuarially computed and the results are
reflected in paragraph 4.8 of
the actuarial report (bundle C, p 132).
The total value of lost income in respect of future sick leave
amounted to R296 400,00
without any contingency in respect thereof
being applied. The correctness of the contents of the actuarial
report was admitted
by the defendant. Similarly this report
constitutes acceptable credible evidence which was clearly and
rightfully so accepted by
the court.
With regard to the
application of contingency adjustments the actuarial report expressly
states the following:
ADJUSTMENT FOR
CONTINGENCIES
It is normal
practice for the Court to decide on a deduction to be made from the
gross losses of income on account of contingencies.
Any such
deduction must depend on the particular facts and circumstances of
every individual case and are matters for the Court
to decide.”
(Bundle C, p 134, section H)
The actuarial report
also deals (for illustrative purposes) with the effect of a range of
contingency adjustments being applied
to the gross capitalised future
loss of income (bundle C, pp 135-136). It is common cause that the
cap introduced by the RAF Amendment
Act is applicable to the
calculations. The court accepted the plaintiff’s argument that
the uninjured income should be reduced
by a contingency deduction of
10%, and the injured income by a contingency deduction of 60%. This
yielded a nett future loss of
R3 594 400,00 to which was added the
amount of R266 760,00 (being the nett value of the loss in respect of
future sick leave after
deduction of a 10% contingency), which
finally resulted in a total award in respect of loss of earning
capacity amounting to R3
861160,00. The aforesaid contingency
adjustments, namely 10% in respect of uninjured earnings and 60% in
respect of injured earnings,
were based on the uncontroverted
evidence of Mr. Prinsloo. His evidence which is relevant to the
determination of appropriate contingencies
appears at pp 12-25 of the
transcript of the proceedings and is conveniently summarised in his
report (bundle C, pp US- 119). In
this regard it should be mentioned
that the plaintiff, at the time of the trial, was still functioning
in his pre¬accident
occupation and his future earnings (i.e.
injured earnings) postulate that he will continue earning on this
basis (i.e. at the levels
also assumed in the absence of any injury)
until age 60. In view of the uncontested medical evidence, especially
that of the orthopaedic
surgeons, it is clear that the plaintiff will
not be able to sustain the postulated levels of earnings going
forward. Accordingly
the court took into consideration that the
plaintiff is at dire risk of the postulated future earnings (i.e.
injured earnings)
not materialising over the remainder of his career
and hence this risk is adequately reflected in the 60% contingency
deduction
which the court found. It is common cause that in
determining the contingencies to be applied in this case to the
actuarial calculations
the trial court exercised a discretion. The
discretion so exercised was a discretion in the narrow sense (as
opposed to a discretion
loosely so called). In this event the power
to interfere on appeal is limited to cases in which it is found that
the court vested
with the discretion did not exercise the discretion
judicially, which can be done by showing that the court of first
instance exercised
the power capriciously or upon a wrong principle,
or did not bring its unbiased judgment to bear on the question or did
not act
for substantial reasons.
Bookworks (Pty) Ltd
v Greater Johannesburg TM Council
1999 (4) SA 799
WLD at 804-806
especially 805J-806A.
The nature of this
discretion was also dealt with by the Supreme Court of Appeal in
Naylor and Another v Jansen
2007 (1) SA 16
(SCA) in the context of
costs orders. At 24C- D Cloete JA said:
‘Put
differently, an appeal Court will interfere with the exercise of such
a discretion only where it is shown that the lower
Court had not
exercised its discretion judicially, or that it had been influenced
by wrong principles or a misdirection on the
facts, or that it had
reached a decision which in the result could not reasonably have been
made by a court properly directing
itself to all the relevant facts
and principles’.”
c) In Naylor the
court also observed that the exercise of a narrow discretion
necessarily involves a choice between permissible
alternatives, and,
accordingly, different judicial officers, acting reasonably, could
legitimately come to different conclusions
on identical facts. (At
25F-G). In casu none of the grounds relied upon by the defendant in
the application for leave to appeal
disclose a basis upon which it
can be contended that the court in exercising its discretion
concerning contingencies did not act
judicially.
The legal
representatives of the parties returned and the court handed down the
draft order completed by the court and made it an
order of court. All
the parties including the defendant’s attorney seemed to be
satisfied with the order and left.
An application for
leave to appeal was thereafter filed one day late by the defendant’s
attorney. This point was not taken
by the plaintiff’s legal
representatives and the failure was condoned. The grounds contained
therein read as follows (quoted
verbatim):
“1. The
learned judge erred in finding that the Applicant is entitled to an
order in terms of the above summary court order
granted on the
30/1/14 before him in chambers as prepared and presented in a draft
format by the plaintiff’s counsel.
2. The learned judge
failed to apply his mind to the main issue in contention which was
loss of earning capacity of the Plaintiff
in the matter.
3. The learned judge
failed to apply his mind to the evidence of the Plaintiff’s own
expert witness Kobus Prinsloo (industrial
psychologist) who testified
that the Plaintiff has residual work capacity and is not completely
unemployable. It is common cause
that Kobus Prinsloo deferred to the
synopsis of other experts which are Dr. N.J. de Graad, Dr. J.J. du
Plesis, Dr. J.D. Erlank,
Dr. H.B. Enslin, and Anneke Greef.
4. The learned judge
failed to apply allowable and reasonable contingencies relating to
the amount of R2 500 000,00 on their particulars
of claim as an
estimated sum and indicated that additional documents will be
furnished in due course and same was not furnished
to the defendant
or the court.
5. The learned judge
erred in ignoring the evidence of the Plaintiff’s expert
witness industrial psychologist Kobus Prinslo
who testified on both
post-morbid and past morbid employability profile the Plaintiff
(sic). His main evidence and report assessment
concluded a “mild
(minimal career impediment”). The post-mobid asessment of
employability (to gain employment and sustain
employment was placed
by Kobus Prinsloo at the scale between 51-75% and rated
as gppd.
6. The learned judge
failed to apply his mind and the law regarding the RAF Amendment Act
cap on the loss of earning capacity of
the Plaintiff. The capital
value of loss of income (including the RAF Amendment Act Cap was R304
400. The capital value of future
sick leave amounted to the total of
R296 400. (sic)
7. The law is trite
when dealing with contingencies. It is common cause that the court to
decide on a deduction to be made from
the gross losses of income on
account of contingencies. Any deduction must depend on the particular
facts and circumstances of
each individual case and are matters for
the court to decide.
8. The learned Judge
erred in allowing the inherent power of the court to be usrurped by
the Paintiff’s legal counsel who
presented a draft order an
order of court without applying his mind to the particular facts and
circumstances of the matter and
as such setting a bad precedent in
law.”
The application for
leave to appeal was argued on the 30th January 2014. The defendant’s
counsel dealt cursorily with the
grounds of appeal. The plaintiff’s
counsel then dealt with the alleged grounds of appeal and strongly
attacked them dealing
with the false allegations regarding the court.
The defendant’s counsel then got up and asked the court to
protect him. The
court pointed out that he is a counsel and must
protect himself. It must be mentioned that the plaintiff’s
counsel in a calm
manner dealt with the false and untrue grounds
which were derogatory and contemptuous of the court and defamatory of
him and which
he described as “drivel”. As the
plaintiff’s counsel continued to analyse the grounds of appeal
and the lack
of merit in them the defendant’s counsel again got
up and demanded that the court protects him. The court indicated that
he must protect himself as there was nothing before the court to
protect him against and the court asked him to sit down. He then
stated that he was withdrawing from the case and leaving the court
room as the court was not protecting him. His attorney, who
throughout all the proceedings, including the day on which the order
was made by the court, acted impeccably, held onto his robe
and
urgently spoke to him asking him not to leave. The court also asked
him not to leave. He then sat down again and the plaintiff’s
counsel then finished his argument. The defendant’s counsel
then addressed the court and requested leave to file heads of
argument which request the court readily granted. He filed long heads
of argument but the heads of argument did not really address
the
grounds of appeal and the substance of the argument raised on behalf
of the plaintiff when the application for leave to appeal
was argued
on Thursday 30 January 2014. The heads also did not mention nor
motivate why the scandalous allegations were inserted
in the
application for leave to appeal. The supplementary heads of argument
filed by the plaintiff’s counsel merely attempted
to capture,
in succinct form, the thrust of the argument previously presented
[[9] To sum up
regarding the grounds of appeal:
AD FIRST GROUND
OF APPEAL:
a) There is no merit
in this ground which is formulated in an excessively wide fashion.
Bearing in mind that the only issue before
the trial court was the
determination of the plaintiff’s loss of earning capacity, the
only part of the court order which
can conceivably be justifiable
questioned is paragraph 1 thereof, and in particular the globular
amount of R4 349 459,20, and then
only in so far as this amount
contains, as one of its components, the amount awarded in respect of
the plaintiff’s loss of
earning capacity, which component is,
in turn, constituted and computed as is set out in paragraph [5]
supra. Had the defendant’s
attorney called for reasons the
court would have furnished the reasons and the defendant need not
have
speculated.
AD SECOND GROUND:
There is no merit in
this ground whatsoever in view of the fact that it lacks any
particularity and is couched in such wide terms
as to render it
meaningless.
AD THIRD GROUND:
a) The formulation
of this ground presupposes that the trial court found, or that it is
implicit in the court’s order, that
the plaintiff has no
residual work capacity and is completely unemployable. No such
finding was made by the court nor was it implicit
in the order of the
court. In fact exactly the opposite is true. Implicit in the amount
awarded in respect of the plaintiff’s
loss of earning capacity
is that he has a residual capacity to earn 40% of the calculated
injured income in future. This follows
logically from the fact that a
contingency deduction of 60% was applied in respect of future injured
income as calculated by the
actuary and approved by the court in
granting the order reflecting the award for damages. It never was the
plaintiff’s case
that he is totally unemployable, and none of
the expert reports contain any suggestion to this effect, least of
all the evidence
of Mr. Kobus Prinsloo.
AD FOURTH GROUND.
a) This ground fails
to indicate what an allowable or reasonable contingency to be applied
to the amount of loss of earning capacity
would be. The bald
complaint in this regard is meaningless in the absence of any such an
indication. When the draft order with
the several possibilities was
handed to the court in chambers, there was no address nor comment
from the defendant’s legal
representative who left everything
in the court’s hands.
b) The second
assertion contained in this ground, namely that the particulars of
claim only disclosed a claim amounting to R2 500
000,00 as an
estimated sum and the incorrect assertion that no underlying
documentation was furnished to the defendant or the court
is also
meaningless in the context of the case. The report of the plaintiff’s
industrial psychologist, Mr. Prinsloo, and
the subsequent actuarial
report clearly indicated to the defendant what the potential value of
the plainiff’s claim for loss
of earning capacity amounted to
and at no relevant stage did the defendant object thereto on the
basis that the value of the claim
exceeded the amount set out in the
particulars of claim nor did the defendant insist on an amendment in
this regard. Furthermore,
the evidence
of Mr. Prinsloo in
respect of the approach to the quantification of this head of damages
and the underlying facts, opinions and
assumptions employed in the
actuarial calculation, which were squarely based upon the evidence of
Mr. Prinsloo, were not questioned
at all during the course of the
trial. At the end of the trial the only dispute between the parties
was what the extent of appropriate
adjustments to the actuarial
results would be. It was also noted by the court that the defendant
clearly accepted Mr. Prinsloo’s
evidence that on a higher
contingency deduction from the plaintiff’s calculated injured
income, on the grounds advanced by
him, was warranted.
c) This ground is
accordingly devoid of any merit.
AD FIFTH GROUND:
a) Mr. Prinsloo’s
report concerning the assessment of severity of career impediments
and the post-morbid assessment on employability
as is set out on p.
118 Section C of the Court bundle must be read subject to this viva
voce evidence in this regard. This evidence
appears at pp 24-25 of
the transcript and culminated in Mr. Prinsloo expressing the opinion
that a significantly higher post-morbid
contingency should be applied
to the future injured earnings in view of the factors, mentioned
in the report, which
would negatively affect the plaintiff’s future earning
capacity. On this basis the contingency which
was indeed applied to
the injured earnings is justified on the evidence of Mr. Prinsloo and
accordingly it cannot be said that
the court ignored material
evidence in coming to its conclusion concerning contingencies.
b) There is no merit
in this ground.
AD SIXTH GROUND:
a) In the context of
the order ultimately made by the court this ground is not only
meaningless but is simply incorrect on the evidence.
b) The results of
the calculations which were accepted by the court are based
foursquare on the application of the RAF Amended Act
CAP. To the
legal representatives of the defendant that much must be patently
clear from the figures constituting the amount awarded
in respect of
the plaintiff’s loss of earning capacity, read with the
actuarial report itself. It is equally clear that the
defendant now
simply, and most conveniently, ignores the evidence of Mr. Prinsloo,
which the defendant did not dispute in court,
that a significantly
higher post-morbid contingency is justified.
AD SEVENTH
GROUND:
As formulated this
so-called ground is in reality no ground whatsoever. It is, in fact,
merely a recital of trite principles and
does not warrant further
consideration.
AD EIGHTH GROUND:
This so-called
ground is a completely unnecessary outrage. Not only is it openly
contemptuous of this court but also defamatory
of plaintiff’s
counsel. These baseless allegations are deserving of censure by this
court by way of a punitive costs order
being granted against the
defendant and the matter will be referred to the Law Society of the
Northern Provinces and the Pretoria
Bar Council to take the necessary
steps against the counsel and attorney.
[12] Accordingly the
application for leave to appeal must fail.
[13] The plaintiff’s
counsel also argued that punitive costs should be awarded in respect
of the application for leave to
appeal in view of:
a) the fact that the
defendant seeks leave to appeal against the whole order granted by
the trial court in circumstances where only
one head of damages was
in issue and the remaining heads of damages were settled;
b) the defendant
merely filed a notice of application for leave to appeal and failed
to thereafter prosecute or advance the application
diligently or at
all;
c) the defendant did
not apply for reasons from the court for its order;
d) the defendant has
failed to provide the plaintiff with an undertaking in respect of
future medical costs and to pay the agreed
amount in respect of past
medical expenses and general damages (amounting to R488 299,20) to
the plaintiff despite the fact that
same were settled before the
trial commenced and are patently unappeallable.
(See the remarks
made by Goldstone J (as he then was) in Protea Assurance Co Ltd v
Januszkiewicz
1989 (4) SA 292
WLD at 298D-299B ).
[14] The following
order is made:
“1. The
application for leave to appeal is dismissed with costs on the
attorney and own client scale which costs will include
the costs of
senior counsel, several sets of heads of argument by the counsel and
paying for a record of the proceedings.
2. The Registrar is
requested to refer this judgment and the following documents to the
Law Society of the Northern Provinces and
The Pretoria Bar Council:
the summons and particulars of claim, the plea, the expert report of
Kobus Prinsloo, the report by the
orthopaedic surgeons, the record of
the proceedings in court, the actuarial report of Munro Consulting
Actuaries, the court order
of 30/1/2014, the application for leave to
appeal and the heads of the defendant’s counsel dated 5/2/2014,
to be able to
determine at whose behest it was decided to lodge the
scandalous attack on the court and the plaintiff’s counsel and
to take
adequate remedying steps.”
P.Z. EBERSOHN.
ACTING JUDGE OF
THE HIGH COURT
SEKATI , MONYANI
& PARTNERS Ref. Mr. J. Rahlagan/RB6686/JM Tel. 012 460 9701