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[2014] ZAGPPHC 149
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Ligthelm v Road Accident Fund (40091/2012) [2014] ZAGPPHC 149 (25 March 2014)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 40091/2012
DATE OF HEARING: 12 AND 13 MARCH 2014
DATE:
25 MARCH 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
LEANDI
LIGTHELM
......................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
...........................................................................
DEFENDANT
J U D G M E N T
AVVAKOUMIDES,
AJ
INTRODUCTION
1.
The
plaintiff was conveyed as a passenger in a motor vehicle on 27
November 2009 when the vehicle was involved in a head on collision
on
the road between Ladysmith and Winterton, KwaZulu Natal. She
sustained serious injuries which are dealt with in detail hereunder.
Prior to the trial the issue of liability was settled wholly in
favour of the plaintiff and the trial proceeded thus only on the
question of quantum. On the first day of trial I was advised by the
defendant’s counsel, Ms Olivier, that the travelling
costs
claimed by the plaintiff in the sum of R10 356.40 were conceded.
2.
It
is necessary to mention that inasmuch as the plaintiff had filed
several medico-legal reports pertaining to her injuries the
defendant
only filed reports of an Occupational Therapist and that of an
Industrial Psychologist. The defendant attempted to file
an actuarial
report and calculation late but this was objected to by the
plaintiff’s counsel, Mr De Waal SC and not taken
any further by
the defendant.
3.
It
is puzzling how the defendant was able to instruct its Occupational
Therapist and Industrial Psychologist and obtain reports
from them
without procuring any other medical reports, regard being had to the
serious injuries sustained by the plaintiff. No
meaningful reason was
evident.
4.
Moreover,
I noted from the pre-trial minute in respect of the conference held
on 3 March 2014 that the plaintiff’s medico-legal
reports were
admitted only because of the failure of the defendant to revert to
the questions set out therein by 6 March 2014.
The only
inference is that the defendant must have based its own Occupational
Therapist and Industrial Psychologist reports on
the plaintiff’s
doctors’ reports. I was also informed by defendant’s
counsel on the first day of trial that the
defendant had also
accepted an amount of approximately R899 000.00 in respect of the
plaintiff’s past medical expenses but
that she was waiting for
further instructions during the day in this regard.
5.
Although
I have sympathy with defendant’s counsel in her efforts to
present the case for the defendant, and bearing in mind
the
defendant’s approach to this case, and generally to third party
claims, it was very clear to me that counsel had been
instructed very
late and that very little preparation could have been done. On the
other hand the plaintiff’s legal team
were well prepared and
appeared to have done their best to try and settle the case prior to
trial. I say so with reference to the
questions and issues raised and
discussed with the defendant’s legal representative at both the
pre-trial conferences and
the exchange of documents and
correspondence which appears from the various bundles before me.
6.
As
early as November 2012 and before the merits were conceded, the
defendant was aware that the plaintiff and her legal team would
travel to Bahrain for an inspection of the plaintiff’s work
environment and the employment market there in respect of the
plaintiff’s occupation.
7.
The
issues that were not in dispute are that the plaintiff is entitled to
be furnished with an undertaking in terms of section 17(4)
(a) of the
Road Accident Fund Act, 56 of 1996 (“the Act”) and that
the plaintiff is entitled to general damages in
the amount of
R1 100 000.00 in terms of a settlement concluded between
the parties during the afternoon of the first
day of trial and the
travelling expenses referred to above in the sum of R10 356.40.
8.
The
issues in dispute were the plaintiff’s past loss of income
claimed by her in the amount of R147 456.00, the future loss
of
income claimed by her in the amount of R6 756 536.00 and the past
hospital, medical and related expenses claimed in the amount
of R2
802 066.86.
THE
PLAINTIFF’S INJURIES
9.
The
nature and extent of the plaintiff’s injuries were common cause
and based on the defendant’s admission of the relevant
medico-legal reports, and consisted of the following:
9.1 A closed fracture of the right humerus;
9.2 An open fracture of the left ilium;
9.3 A fracture of the right anterior iliac spine
at the level of L5;
9.4 A radial nerve palsy on the right;
9.5
A
lineal fracture of the right occipital bone;
9.6
A
minor concussive brain injury;
9.7
Perforation
of the small bowel (specifically the caecum);
9.8
A
laceration of the spleen with extensive intra-abdominal haemorrhage;
9.9
Blunt
chest trauma with right sided plural effusion and atelectasis;
9.10
Facial
abrasions and a peri-orbital haematoma;
9.11
Severe
psychological shock and trauma likely to endure for the plaintiff’s
lifetime.
10.
It
was also common cause that the plaintiff underwent various surgical
procedures and an extended stay in hospital of approximately
3 months
of which the most recent was a spinal fusion performed during June to
July 2013.
11.
It
was submitted by plaintiff’s counsel that insofar as the
remaining issues are concerned, the treatment which the plaintiff
will or may undergo in future is relevant to such remaining issues,
in particular the aspect of a future loss of earnings or earning
capacity.
12.
It
was common cause that the following aspects of future treatment would
have to be considered in the context of the plaintiff’s
claim
for future loss of earnings or earning capacity:
12.1
Removal
of the fixation of the right humerus;
12.2
Possible
surgery to the left sacro-iliac area;
12.3
Possible
neck surgery;
12.4
Possible
exploration of the right iliac crest area;
12.5
At
least two episodes of incomplete bowel obstruction requiring
hospitalisation;
12.6
Two
episodes of bowel obstruction requiring surgery;
12.7
One
episode of intra-abdominal abscess;
12.8
Repair
of abdominal wall defect due to a ventral hernia;
12.9
Likely
caesarean section procedures if the plaintiff falls pregnant, which
are likely to be highly risky and complicated due to
extensive
abdominal adhesions which can be expected;
12.10
Revision
of some scars with a high possibility of complications.
13.
It
was common cause that the plaintiff suffers and will continue to
suffer from pain and discomfort, and also complications secondary
to
her abdominal injury (unpredictable and potentially embarrassing
bouts of diarrhoea, nausea and vomiting) all of which is likely
to
cause early retirement at the approximate of 55.5 years.
14.
The
plaintiff’s Industrial Psychologist Mr Wessels, whose evidence
was largely uncontested, was that it should be borne in
mind that in
the period leading up to early retirement, the deteriorating
condition of the plaintiff is likely to have a
significant
impact on her employability and her competitiveness in the
international open labour market.
15.
The
future treatment envisaged and the inevitable impact on the
plaintiff’s career must be coupled thereto. This does not
take
into account any unforeseen or underestimated modalities of
treatment.
16.
Dr
Birrell for instance estimated the chance of the plaintiff requiring
lumbar surgery at 20% during July 2011 when he prepared
his first
report. Within 2 years of this report, it was necessary for the
plaintiff to undergo a spinal fusion.
PAST
HOSPITAL, MEDICAL AND RELATED EXPENSES
17.
The
minutes of the pre-trial conference of 3 March 2014 reflect the
defendant’s undertaking to revert to the plaintiff with
a
comprehensive schedule indicating which accounts or portions thereof
are not admitted and the reasons therefore by close of business
on
Monday 10 March 2014. It is no surprise that this did not happen.
18.
The
absence of the defendant’s response to the past hospital and
medical expenses meant that the plaintiff had to lead evidence
on
these costs. The defendant did not have any evidence to contradict
such evidence. On the second day of trial the defendant conceded
the
past hospital and medical expenses in the sum of R2 802 066.86.
PAST AND FUTURE
LOSS OF EARNINGS
19.
The
relevant evidence for determination of this part of the plaintiff’s
claim is the medico-legal reports that were admitted,
more
particularly the reports of Drs Birrell, White, Barnetson, du
Plessis, Mazabow and Trouw and the report of Ms K Havenga, a
counselling psychologist.
20.
In
addition the report and
viva
voce
evidence
of Ms T Brown, the Occupational Therapist, the report and
viva
voce
evidence
of Mr G Whittaker, the Actuary, the report and
viva
voce
evidence
of Mr Wessels, the Industrial Psychologist together with the admitted
affidavit of Mr B Johnson, the headmaster of the
school at which the
plaintiff is currently employed in Bahrain were of invaluable
assistance.
21.
According
to the report of the defendant’s Industrial Psychologist, Mr P
C Diedericks, who was neither called nor relied upon
by the
defendant, the plaintiff would have obtained her B Com degree in 2010
and would have entered the labour market at the end
of 2010, but for
the accident.
22.
This
in my view, and correctly submitted by Plaintiff’s counsel,
would be the reason for the defendant not challenging the
plaintiff’s
version that she would have been able to enter the labour market and
her current employment in at least January
2012, a year later than
envisaged by the defendant’s own industrial psychologist. It is
notable however that Mr Diedericks
considered the plaintiff’s
future employment within the South African content, incorrectly so,
and arrived at the conclusion
that the plaintiff would probably have
been employed until the age of 65 years.
23.
The
calculations by the actuary Mr Whittaker were not challenged and
according to his calculation, based on the plaintiff’s
current
level of employment, the loss sustained in respect of past loss of
earnings is R147 456.00 if the loss limit or “
cap
”
commonly referred to, in terms of the Act, is applied. In the absence
of any contradictory evidence from the defendant and
on the evidence
presented I am of the view that the amount of R147 456.00 is the
correct amount in respect of past loss of earnings.
24.
In
respect of the plaintiff’s future loss of earnings the
defendant challenged this claim on the basis of the plaintiff’s
retirement age but for the accident and the appropriate contingencies
to be applied to the future loss, particularly the contingencies
to
be applied to the calculated loss, having regard to the accident.
25.
The
defendant had conceded that the plaintiff’s future
employability has to be assessed on the basis of her employment in
the international sphere. The facts before me show that the plaintiff
underwent all her secondary schooling in the Middle East
and only
returned to South Africa to study towards her B Com degree. Her
parents moved to the United Arab Emirates (“UAE”)
in
1999. They have been there ever since. The plaintiff’s
intention has always been to seek employment in the UAE.
26.
On
the issue of the retirement age it would appear that the retirement
age where the plaintiff is currently employed is 60 years.
However Mr
Whittaker testified that international trends show that the
retirement age, especially in the western world, is on an
upward
trend mainly as a result of longer life expectancies and issues of
affordability as far as pension funds are concerned.
27.
The
evidence of Mr Johnson appearing on his affidavit, and admitted by
the defendant, is that the retirement age of 60 years only
applies in
Bahrain and despite that “semi-ceiling”, an employee may
work beyond that age. The plaintiff’s current
employer operates
schools worldwide. The plaintiff would have been able to seek
employment at any of the schools in any country
according to Mr
Wessels. She would also not have been limited to employment with her
current employer. On a balance of probabilities
and on the evidence
presented I am of the view that the plaintiff would probably have
been employed until the age of 67 years.
28.
On
the question of contingencies I was referred to what was stated in
the case of Southern Insurance Association Limited v Baily
NO
1984
(1) SA 98
(A) at 113G – 114C:
“
An inquiry 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 the court can do is to make
an estimate, which is often
a rough estimate, of the present value of
the loss…(and with reference to Anthony and Another v Cape
Town Municipality
1967 (4) SA 445
A at 541B – C) when it comes
to scanning the uncertain future, the Court is virtually pondering
the imponderable, but must
do the best it can on the material
available, even if the result may not inappropriately be described as
an informed guess, for
no better system has yet been devised for
assessing general damages for future loss…”
29.
It
is trite that every case has to be assessed on its own facts and no
two cases are exactly the same. Plaintiff’s counsel
submitted
that a high post-accident contingency ought to be applied to this
case and referred me to the case of Hall v Road Accident
Fund 2013
(6J2) QOD 126 (GSJ) at paragraphs 52 to 54 where the court applied a
fairly high post-accident contingency in the context
of already
having allowed early retirement of 12½ years. A 50%
contingency deduction was applied to the future loss.
30.
Plaintiff’s
counsel also referred me to the case of in
Swartz
v Road Accident Fund 2011 (6J2) QOD 74(ECP)
paragraph 38 in which Eksteen J stated the following:
“
The stronger the evidential basis for the
assumption the greater the validity of the calculation would be. The
weaker the evidential
basis for these assumptions become the greater
the doubt becomes as to the authority of the calculation. This, it
seems to me,
is a factor which would have considerable bearing on the
adjustment which needs to be made to such a calculation to allow for
the
possibility of error in the assumptions made. This may sometimes
be difficult, however, as Margo J remarked in Goodall v President
Insurance Company
1978 (1) SA 389
(W) at 392H-393A: ‘In the
assessment of a proper allowance for contingencies, arbitrary
consideration must inevitably play
a part, for the art or science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and by
modern authors of a certain type of almanac,
is not numbered among the qualifications for judicial office.”
31.
It
was clear from the evidence of Mr Wessels read with the affidavit of
Mr Johnson that the plaintiff is employed on a contract
basis
renewable every year depending on performance. She is currently only
26 years old and has a very long working life ahead
of her. There is
a real risk of her contract not being renewed over a long period. She
will be competing with able bodied individuals.
She requires multiple
surgical procedures and other forms of medical treatment in future.
32.
The
surgical procedures will inevitably necessitate periods off from work
from time to time. If the risk of complications is added
to the
equation, these periods may be extended. This in itself may
jeopardise renewal of contracts in her present employment situation
and her overall medical condition, and the envisaged treatment will
of necessity render her less attractive to any other employer
able to
pick and choose from able bodied individuals.
33.
Mr
Wessels was of the view that other employment opportunities have been
definitely closed to the plaintiff. On the facts and evidence
before
me I am inclined to agree. It must follow that some of the other
opportunities may include opportunities to earn more than
what the
plaintiff is currently earning or is likely to earn in future in her
current employment.
34.
Plaintiff’s
counsel submitted that the plaintiff’s loss may actually be
even greater if the loss limit was not applicable.
He submitted that
even with the application of the loss limit, the loss may have been
greater simply because the limit may have
applied in periods where
the plaintiff now falls below the limit.
35.
Given
the circumstances and taking into account the opinion of Mr Wessels
that a significantly higher contingency deducted, expressed
by him at
a figure in excess of 30%, appears to be justifiable and reasonable.
Based on the calculation of Mr Whittaker at scenario
2 of his report
the contingencies applied to the calculation of the future loss of
15% (the uninjured scenario) and 55% (the injured
scenario) resulting
in a differential of 40%, is conservative under the prevailing
circumstances.
36.
This
effectively means that, compared to an able bodied and uninjured
individual in the same position, it is assumed that the plaintiff
has
a 60% chance of sustaining and maintaining her present employment
until retirement at 55.5 years as envisaged by Dr Birrell.
Having
regard to the calculation of Mr Whittaker after application of the
loss limit in terms of the Act the plaintiff’s
future loss of
earnings is calculated at R6 756 536.00.
COSTS
37.
The
plaintiff’s counsel submitted that the defendant ought to be
censured with a punitive order for costs in respect of the
second day
of trial which, according to him, was unnecessary. He submitted that
the defendant should have conceded the past hospital
and medical
expenses well before the trial because the supporting documents had
been furnished to the defendant well in advance.
The defendant made
no effort to verify these expenses and led no contradictory evidence
to this aspect of the claim.
38.
Furthermore
plaintiff’s counsel submitted that in respect of the experts
that testified on behalf of the plaintiff, I should
consider ordering
that their costs should be paid by the defendant on the scale as
between attorney and own client. I have difficulty
in understanding
this concept in the context of expert witnesses. I deal with this
aspect hereunder.
39.
Defendant’s
counsel’s submissions in this regard were simply that the
defendant was entitled to challenge the evidence
and that doing so
should not attract any censure. She submitted that this case involved
public funds and as such the court should
adopt a protective approach
to such funds instead.
40.
As
I stated above it was clear that no instructions were forthcoming
from the defendant. Because of the defendant’s lackadaisical
attitude to third party litigation it is those funds that are
ostensibly being protected that are actually being wasted. However
that is not the issue. In my view the courts ought to adopt a
stricter approach to the obstructive and ineffective role played
by
the defendant in third party cases in allowing cases to go on trial
when such cases can and should be settled.
41.
As
at 3 March 2014 this case could and should have been settled. The
plaintiff had supplied the defendant with everything it required
to
consider the claim as a whole. Instead no decisions were made until
the last minute, when counsels’ first day trial fees
had
already been incurred, and then on the pretext that it is dealing
with public funds, the defendant tries to justify its actions
or
inactions on the basis that public funds should be protected. This
however has an impact on plaintiffs in third party cases
who have to
pay additional amounts, more often than not large amounts, being
those not recoverable on the scale as between party
and party.
42.
Consequently,
I am of the view that the second day of trial was indeed unnecessary
and as a result the costs of the second day of
trial ought to be paid
by the defendant on the scale as between attorney and own client. The
same applies to the first day of trial.
43.
Insofar
as the costs of the experts who testified for the plaintiff are
concerned the defendant’s counsel submitted that she
was
entitled to cross examine them and to challenge their evidence as
that this is the defendant’s right. Whilst this may
generally
be true the cross examination and challenge to the expert evidence
revealed that no meaningful challenge was made.
The defendant
did not rely upon its own expert witnesses.
44.
The
preparation of the three experts of the plaintiff that testified was
necessary for the trial. Because of the defendant’s
approach to
their reports and opinions expressed therein it was necessary for
these experts to attend the trial and testify. In
the case of all
three they spent the bulk of the first day in court. Mr Wessels in
particular spent the whole day in court. They
contributed largely to
the resolution of this case. I am thus of the view that they were
necessary for purpose of the trial.
45.
However
in the light of the decision of Transnet Ltd t/a Metrorail and
Another v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA) it is no longer necessary for
a court to declare a witness necessary. In terms of this decision the
qualifying fees of experts,
commonly referred to as preparation fees,
will only be allowed on taxation if such costs are authorised by the
court or with the
consent of all the parties. The proviso to item 5
of part D of Uniform rule 70 makes this clear, as follows: “Provided
that
the preparation fees of a witness shall not be allowed without
an order of the court or the consent of all interested parties.”
46.
This
proviso sets out the general duties of the taxing master as follows:
“ With a view to affording the party who has been
awarded an
order for costs a full indemnity for all costs reasonably incurred by
him in relation to his claim or defence and to
ensure that all such
costs shall be borne by the party against whom such order has been
awarded, the Taxing Master shall, on every
taxation, allow all such
costs, charges and expenses as appear to him to have been necessary
or proper for the attainment of justice
or for defending the rights
of any party, but save as appear to the Taxing Master to have been
incurred or increased through over-caution,
negligence or mistake, or
by payment of special charges and expenses to witnesses or to other
persons or by other unusual expenses.”
47.
The
allowances paid to witnesses and which are prescribed pursuant to
section 42 of the Supreme Court Act No. 59 of 1959 may be
claimed on
taxation in respect of any witness, lay or expert. The current
tariff, published in 2008 provides for a subsistence
allowance,
transport and travelling expenses, and an allowance up to a maximum
of R1500.00 for lost income in consequence of attendance
at a civil
case, and it no longer distinguishes between expert and other
witnesses.
48.
No
special charges or expenses paid to a witness can be taxed because of
the latter part of Uniform rule 70 (3) quoted above. An
agreement by
a party to remunerate a witness for testifying in his cause (as
opposed to an undertaking to pay a witness the statutory
allowances)
is against public morals and is unenforceable. See Van Aswegen v
Lombard
1965 (3) SA 613
(A) and the cases quoted therein. This also
applies to expert witnesses, although an expert can charge for
preparation. See Marais
v Pilkington
1905 TS 650
at 651-652 approved
in the case of Van Aswegen, supra.
49.
According
to the case of Transnet supra, though an expert differs from an
ordinary witness in this respect, that he is a volunteer
and must
qualify himself by ascertaining the facts upon which he then proceeds
to bring his opinion to bear, yet when he has done
so there is no
real distinction between his position and that of a man who happens
to have seen certain things take place and has
to depose regarding
the particulars of what he saw. A man who has gone out of this way to
qualify himself, who has put himself
in possession of the facts, and
has formed his opinion as an expert is as much bound to impart his
opinion to the court as an ordinary
man is to state what he knows
about facts in dispute.
50.
Although
an expert is free to stipulate for whatever rate he considers
appropriate for preparation, those fees cannot include remuneration
for time spent in the witness box. See Pakes v Moseley
1909 TS 166
also approved in the case of Van Aswegen, supra.
51.
Thus
if the court allows the preparation fees of an expert, it does not
follow that the allowances prescribed under the Supreme
Court Act
should also be claimable on taxation. By way of an example, if the
issue on which the expert was to testify falls away
after the
preparation fees were incurred and his attendance at court became
unnecessary, any allowances subsequently paid for this
purpose might
not be claimable on taxation. This would depend on whether such
allowances were reasonably necessary. This question
is to be answered
not with the benefit of hindsight but when the fees or expenses were
incurred. See Stauffer Chemical Co and Another
v Safsan Marketing and
Distribution Co (Pty) Ltd and Others
1987 (2) SA 331
(A) at
354I-355H.
52.
In
my view the preparation fees and time spent in court in respect of
the plaintiff’s three experts were reasonable and must
therefore be allowed. I direct the taxing master approach these costs
on the understanding that the court’s intention is
to grant the
plaintiff’s as much of these costs as possible. Consequently
the taxing master should apply his/her discretion
as wide as possible
to achieve this result.
CONCLUSION
53.
Consequently
I make an order in terms of the draft order annexed hereto as “A”,
save and except that the expert witnesses
referred to in paragraph
3.8.1 thereof shall be determined by the taxing master, as directed
above and that paragraph 3.7 thereof
is deleted.
AVVAKOUMIDES, AJ
JUDGE
OF THE HIGH COURT
Representation
for the Plaintiff:
Counsel:
Adv: W P De Waal SC
Instructed
by Adams & Adams
Representation
for Defendant:
Counsel:
Adv: M Olivier
Instructed
by: Maluleke Seriti Makume Matlala