About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 152
|
|
P.M.M v Road Accident Fund (873/2019) [2024] ZALMPPHC 152 (24 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
Case
Number: 873 / 2019
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED: YES/NO
DATE:
24 Oct 2024
SIGNATURE:
In
the matter between:
P[…]
M[…]
M[…]
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MARAIS C AJ:
INTRODUCTION:
[1]
As law students, we often questioned the
relevance of studying old philosophers' works. To some, philosophy
was a difficult topic
to grasp or pass on your first attempt. I found
myself in the situation before me, seeking the advice of old
philosophers on whether
the evidence of an expert witness must be
simply accepted as true and correct or whether we, as lawyers and
jurists, should delve
deeper and ask the more difficult question of
whether the expert reports or recommendations make logical and
reasonable sense.
[2]
In claims against the Road Accident Fund,
we depend significantly on specialists to assess the fairness and
equity of a plaintiff's
claim and, if deemed valid, to ascertain a
reasonable and just compensation sum under the circumstances.
[3]
It is crucial for attorneys or trust
advocates seeking expert reports to engage specialists who comprehend
the fundamental principles
of civil procedure legislation,
particularly the regulations governing the presentation of evidence
in court. Neglecting to accomplish
this constitutes a tragedy for
jurisprudence and reveals a deficiency in the expert's adherence to
their own ethical standards
and code of conduct.
[4]
On 23 July 2016, at around 16:18, the
Plaintiff, a fifty-year-old adult female at the time, was a passenger
in a taxi with registration
number [D.....GP] and a trailer that was
hitched to the taxi with registration number [KR..GP] (the “vehicle”
or “taxi”)
when it was engaged in an accident. T.T.
is said to have been the driver of the taxi. Further allegations
state that the
taxi overturned while travelling from Mokopane to
Polokwane on the N1, where the driver allegedly lost control of the
vehicle due
to a burst tyre.
[5]
The Plaintiff pleaded that because of the
negligent driving of T.T., she suffered injuries as follows:
a.
L1 compression fracture.
b.
C-spine fracture.
c.
Pelvis fracture.
d.
Loss of control of the anal sphincter.
e.
A left ankle fracture.
f.
Below knee backslap.
[6]
In her particulars of claim, the Plaintiff
also stated that she was initially admitted to Mankweng Provincial
Hospital and subsequently
transferred to CN Phatudi Hospital. Her
ongoing pain and suffering, which will persist, are a result of her
sustained injuries.
She is currently experiencing psychological
trauma, which will continue. She has required hospital and medical
treatment and will
require additional medical care. She has lost and
will continue to lose amenities. She has incurred a loss of earnings
and future
earning capacity. Additionally, she has lost full anal
sphincter control, necessitating the use of adult nappies..
[7]
On 12 June 2023, the Honourable Kganyago J
granted an order whereby the issue of merits and quantum were
separated, as provided
for in rule 33(4) of the Uniform Rules of
Court (or “rules of Court”) and that the Defendant is
100% liable on the
merits in favour of the Plaintiff. The issue of
quantum was postponed
sine die
.
[8]
The matter came before me for the first
time on 09 October 2023. I was called upon to determine the issue of
quantum. However, no
notice of set down was served upon Defendant,
and Plaintiff failed to file heads of argument. I postponed the
matter to 18 October
2023 and ordered Plaintiff to serve and file a
notice of set down upon Defendant, forthwith, and further to file
heads of argument
on or before 17 October 2023.
[9]
The Defendant's intention to defend the
matter and their plea, which included three special pleas,
necessitated that the matter
be properly brought to their attention.
The special pleas pertaining to general damages are not to be
adjudicated upon at this
juncture. The Defendant’s plea
contains a bare denial. After filing their special pleas and plea,
the Defendant took no further
steps.
[10]
When I received the heads of argument and
began reading through the expert reports, which were accompanied by
their expert affidavits,
I noticed that the expert reports were more
than two years old, prior to the hearing of the matter (some dating
back as far as
2018 and 2019) and that several of the experts'
signatures on their reports, differed significantly from their
signatures on their
expert affidavits.
[11]
On 18 October 2023 the matter proceeded on
default. I issued an order directing the Plaintiff to submit updated
expert reports that
were no older than two years at the time of the
hearing in this matter. Additionally, I directed that several experts
be subpoenaed
to appear before me and provide an explanation for the
discrepancy between their signatures on their affidavits and those of
the
reports. The matter was subsequently removed from the roll, costs
to be costs in the cause. It is important to note that the
Plaintiff's counsel conceded that only two of the eight expert
reports and affidavits filed bore identical signatures, while six
expert signatures were distinct.
[12]
To facilitate the experts who were
subpoenaed to appear on 26 April 2024, I permitted the matter to be
heard virtually, as a significant
number of them practised outside of
Polokwane. The matter was unable to proceed on this day due to the
Plaintiff's counsel's connection
issues and difficulties with some of
the experts. Further, the Plaintiff neglected to submit the updated
expert reports in accordance
with my order dated 18 October 2023. I
subsequently had to postpone the matter
sine
die
to allow the Plaintiff to file
heads of argument and coordinate with local experts to appear in
person in court on the next appearance
date. Only those experts who
practised outside of Polokwane would appear virtually. The virtual
appearance would occur in an open
court.
[13]
The matter was subsequently set down for 25
September 2024. A formal notice of set down was delivered to the
Defendant, but the
Plaintiff specified in the notice that the hearing
was scheduled for 25 to 27 September 2024. The matter was never
certified
trial-ready for three days.
[14]
On 25 September 2024, the hearing proceeded
partially in person in open court and partially in a virtual format,
which was also
held in open court. Only five expert witnesses
attended. The matter proceeded on the issue of loss of past and
future earnings
only. The determination of general damages was
postponed
sine die
at
the request of the Plaintiff's counsel, as Defendant had not yet
accepted or rejected it.
EXPERT EVIDENCE
[15]
The first expert witness summoned was Ms SP
Pale, an occupational therapist. She appeared in person and stated
under oath that she
received her qualification from the University of
Cape Town and has been working as an occupational therapist since
2016. Ms Pale
was shown her expert reports and expert affidavits, and
she conceded that the signatures were different. This, she attributed
to
the fact that when she signed her report electronically, she did
so in a 'more clearer' manner than she would ordinarily sign a
document by hand. Ms Pale indicated multiple times that the attorneys
(presumably the Plaintiff's attorney on record) brought the
expert
affidavit to her Polokwane office, where she signed it [alone]. She
later changed her version, claiming that she went to
a commissioner
of oaths office with the attorneys on 26 July 2023, and signed the
affidavit in front of him. She also signed an
additional affidavit on
22 November 2023, based on her updated expert report. The signatures
on the two affidavits also differ
from each other.
[16]
In Ms. Pale’s updated report, she
states that the Plaintiff’s highest grade achieved in school
was grade 9 and that
she obtained a “Masecho Clothing
Certificate of dressmaking”. From 1996 to 2016, the Plaintiff
was self-employed as
a dressmaker. Her work required light physical
labour.
[17]
After administering an objective "FCE
ErgoScience" test meant to elicit the ability to satisfy the
physical demands of
any occupation, Ms Pale concluded that Plaintiff
will only be able to perform sedentary to never lifting labour in
terms of dynamic
strength exercises. Plaintiff's posture tolerance
level ranged from sedentary to never. The mobility task demonstrated
that the
Plaintiff could perform light to sedentary motion.
Plaintiff's overall balance was moderate, and her tolerance for an
8-hour workday
or 40-hour work week was also sedentary.
[18]
The expert opined that Plaintiff will
“
always struggle to find
employment
”
regardless of her
work experience and that it would be impossible for her to continue
running her own business “
as a
self-employed seamstress due to her impaired working speed and severe
pain and impairments post the accident
”
.
[19]
Dr. Ramushu was the second witness called
to testify, and she was present in person. She has been practising as
a specialist Orthopaedic
Surgeon for the past 12 years. Dr.
Ramushu conceded that the signatures on her expert report and the
affidavits subsequent
thereto differ. She explained that the initial
expert report contained her "long" signature, which she has
since "shortened,"
which is why the signatures differ. Dr
Ramushu testified that she signed the affidavits before a
commissioner – the same
commissioner before whom Ms Pale
allegedly signed her affidavit.
[20]
Dr Ramushu’s report states that the
Plaintiff had no scar on her left ankle, and it was healed. There was
a bony swelling
over the lateral malleolus, and there was no
tenderness of the ankle joint. On her lower back, there was also no
tenderness. Tension
signs were negative. Her left leg had power of 4
out of 5 from L4 to L5. The Plaintiff was wearing adult diapers
during the consultation
as she suffers from poor perianal sensation
and anal tone. Her reflexes were normal and there were no other
obvious abnormalities
detected. An X-ray showed that the left ankle
had bony deformity distal fibula with normal ankle mortise, with a
loss of height
at L1. There was scoliotic deformity at the
thoracolumbar junction and faecal loading. A malunited L1 compression
fracture was
observed with Cauda Equina syndrome.
[21]
In conclusion, the expert stated that the
Plaintiff has reached her maximum level of medical improvement and
that she will have
some discomfort with closed shoes and should be
afforded excision of the bony deformity. For pain, the Plaintiff
regularly uses
analgesia, and she is also on antiretroviral medical
treatment.
[22]
The third witness called to testify was Ms
M Kheswa, an industrial psychologist. She appeared virtually. Her
practice is situated
at 386 Justice Mohamed Street, Pretoria. She has
been practising as an industrial psychologist for more than 15 years.
[23]
Ms. Kheswa was informed that her signatures
on the two medico-legal reports and subsequent affidavits are
inconsistent. Ms. Kheswa
clarified that she utilised a "kokie-pen"
to execute her electronic signature on the reports, while she
utilised a standard
pen to sign the affidavits. The affidavit was
received by her
via
email,
printed, and signed at her office. No one else was present when she
signed it. Subsequently, she instructed her secretary
to return the
signed document to the attorney
via
courier. The initial affidavit was ostensibly
executed on 28 August 2023, in the presence of a commissioner at the
South African
Police Service ("SAPS") in Garsfontein. The
second affidavit was purportedly signed on 22 November 2023, in the
presence
of the same commissioner who signed the affidavits of the
first and second witnesses. However, Ms Kheswa claims that she is
unaware
of the date or location of the ‘commissioning’,
as she was not present.
[24]
The first expert report by Ms Kheswa is
dated 19 July 2021 (the “July 2021 report”), and the
second report is dated
17 November 2023 (the "November 2023
report”).
[25]
In the July 2021 report, it is recorded
that the Plaintiff’s immediate family is “Florah”,
her mother, who was
born in 1945, uneducated and a pensioner. Her
son, “Alona” was born in 1986 (thus aged 35 at the time
of the report)
and allegedly in grade 11. Her daughter, “Khomotso”
was born in 1995 and had a degree in education and was an educator.
The last-born child of the Plaintiff is a girl, “Dineo”
born in 2009 and was in grade 7 at the time of compiling the
report.
[26]
It was recorded that the Plaintiff resided
in a “02-bedroomed house with her family”. After the
accident, the Plaintiff
was diagnosed with arthritis. Plaintiff
stated to the expert that she obtained grade 7 at “Nekane
Primary School” but
could not recall in which year. There is
also no documentary evidence to prove this. From 1992 to 1995 the
Plaintiff was a dressmaker
at Lebowakgomo Masetlho Clothing and
earned approximately R280.00 per month. From 1995 to the date of the
accident, the Plaintiff
was self-employed as a hawker and vendor
selling chickens, mopane worms, school clothes and various other
items. She made a profit
of approximately R4’000.00 to
R5’000.00 per month – without any documentary proof to
support this. After the
accident, the Plaintiff was allegedly
hospitalised at the Polokwane Provincial Hospital for “14 days”
and then transferred
to Phatudi Hospital for an unknown period, and
then transferred back to Polokwane where she spent “at least 02
months”.
This report vastly differs from the November 2023
report.
[27]
In the November 2023 report, it is
recorded that Plaintiff’s immediate family is “Norah”,
her mother, who was
born in 1945, uneducated and a pensioner. Her
son, “Apnah”, was born in 1986, completed grade 12 and
obtained an N5
Mechanical Engineering qualification. Her daughter,
“Khomotso” was born in 1995 and had a degree in education
and was
an educator. The last-born child of the Plaintiff is a girl,
“Dino” born in 2009 and was in grade 9, when the report
was compiled.
[28]
It was further recorded in the November
2023 report that the Plaintiff resided in a 07-roomed house with her
family and has been
a Government Disability Grant beneficiary since
2014 – which date was prior to the accident. The allegation of
being diagnosed
with arthritis after the accident was not confirmed
in this report. Plaintiff stated to the expert that she obtained
grade 9 at
“Segalajwan High School” and again could not
recall in which year, and there was no documentary evidence to prove
this.
The Plaintiff did not give a timeframe for her first employer
but stated that she worked for “01 Rack Room” and earned
approximately R3’400.00 per month. Then, from 2005 to the date
of the accident, Plaintiff was allegedly a self-employed informal
trader who made a profit of approximately R5,200.00 to R12,200.00 per
month. There is no documentary evidence to prove this alleged
income.
After the accident, the Plaintiff was allegedly hospitalised at the
Polokwane Provincial Hospital for three weeks and then
transferred to
Dr CM Phatudi Hospital for “01 months and 01 week” (sic).
[29]
As a consequence of the accident, the
expert determined that the Plaintiff suffered a loss of earnings, as
she was unable to resume
her informal trade and will unlikely do so
in the future. The expert is of the opinion that the Plaintiff could
have continued
trading until the age of 65 to 70 had the accident not
occurred. In November 2023, the Plaintiff was 57 years old at the
time of
the report's filing. Curiously, the expert did not
request that Plaintiff provide bank statements from after the
accident
to demonstrate whether she continues to earn money as a
trader. Additionally, it is crucial to bear in mind that informal
traders
typically engage in cash transactions.
[30]
The fourth witness called to testify was Dr
Mazwi, a neurosurgeon by profession. He appeared virtually. He
confirmed that he has
been in practice for approximately 10 years,
and his practice is situated at Office 1035 Stanza Bopape Street,
Hatfield, Pretoria.
[31]
Dr. Mazwi confirmed under oath that he
received the expert affidavit
via
email,
printed it, and subsequently signed it. He was alone when he affixed
his signature to the alleged affidavit. He subsequently
gave the
document to his secretary, who couriered it back to the attorney on
record.
[32]
Dr. Mazwi signed two purported affidavits
to verify his expert reports. The initial purported affidavit was
signed on 25 August
2023 and 'commissioned' at Postnet Brooklyn Mall.
However, the stamp does not indicate that it was commissioned;
rather, it indicates
that it is a certified true copy. The
second alleged affidavit was commissioned at Postnet Brooklyn Mall on
03 November 2023.
Dr. Mazwi maintained that he did not sign the
documents at Postnet, Brooklyn Mall, but rather at his office, where
he was alone
at the time.
[33]
According to the expert, the Plaintiff
sustained a mild head injury as a consequence of the accident with a
Glasgow Coma Scale of
15/15. Dr. Mazwi confirmed that the Plaintiff
has substantial long-term mental disturbance. The matter was referred
to a neuropsychologist.
She additionally sustained a compression
fracture of the lumbar spine at L1, with neurogenic bladder
dysfunction. In addition,
the Plaintiff struggles with chronic
migraines and bowel dysfunction. She further sustained a left ankle
injury that was deferred
until she could be seen by an Orthopaedic
surgeon.
[34]
Dr Mazwi’s conclusion is that the
Plaintiff suffered a combined whole person impairment of 41% and
qualifies for compensation
for general damages. Whereas I am only
called upon to adjudicate the loss of earning capacity, this issue
will not be taken further
at this stage.
[35]
Dr Baloyi, an independent medical assessor
with a practice in Polokwane, was the fifth witness to testify, which
he did virtually.
He verified that he has been a medical assessor for
the past six years and has been a doctor for the past 13 years.
[36]
Dr. Baloyi was informed that the signatures
on his expert reports and those appended to this ‘affidavit’
differ substantially.
Dr. Baloyi conceded the significant discrepancy
in the signatures but provided an explanation for the discrepancy:
the reports
were signed electronically, while the affidavits were
signed in person. The signatures of the two expert reports, signed
electronically,
are also distinct. In response, Dr. Baloyi clarified
that he used a different laptop for the first report compared to the
second
report. His new laptop bore an electronic signature that was
distinct from his previous one.
[37]
Dr. Baloyi further confirmed that hard
copies of the affidavits were delivered to his practice, in
Polokwane, for signature. It
was presented to him by his secretary,
and he signed it whilst being alone. Dr. Baloyi maintained that he
did not sign the document
before a commissioner of oaths. The initial
purported affidavit was executed on 12 July 2023, and the subsequent
one was executed
on 24 October 2023. Before two distinct attorneys,
the two purported affidavits were ‘commissioned’.
[38]
I afforded the Plaintiff’s counsel an
opportunity to reply or raise questions after I questioned the
experts, but he stated
that he had no further questions. This was an
opportunity missed by the counsel, as he could have clarified the
issue of why the
signatures were not appended before a commissioner
of oath. His silence on this issue causes a negative inference to be
drawn.
[39]
Two expert reports and subsequent
affidavits thereto were prepared by Ms M Lebese, a clinical
psychologist. Her signatures appended
to her two reports and the
subsequent affidavits appeared to be similar and she was not called
to testify in person or virtually.
I accepted her report and
subsequent affidavit, as provided for in rule 38(2) of the rules of
this Court.
[40]
After consulting with the Plaintiff, Ms
Lebese confirmed in her report that the Plaintiff has been taking
retroviral medication
since 2015 (which is before the date of the
accident) and has never had any mental or cognitive issues before the
accident. The
Plaintiff confirmed to Ms Lebese that she had only
attended school till Form 2. Prior to the accident, she was an
informal
trader. The Plaintiff informed Ms. Lebese that she was
unable to continue operating her dressmaking business because her
sewing
machine had been stolen. This version differs from the
information given to the other experts. To the other experts, she
stated
that she is unable to work as a result of her injuries
suffered.
[41]
The clinical psychologist performed
numerous tests on the Plaintiff, and the expert concluded that the
Plaintiff suffers from moderate
to severe depression symptoms.
Her neurological test results indicate minor cognitive deficits such
as below-average to average
memory and attention and/or
concentration. From a neuropsychological standpoint, the expert
determines that the Plaintiff has reached
the point of maximum
medical improvement, with no further significant and spontaneous
recovery expected. The Plaintiff has lost
amenities of life as a
result of the accident, which also affected her emotional,
psychological, social, occupational, cognitive,
physical, and
interpersonal functioning.
[42]
An actuary report was compiled by Mr DT
Mureriwa from One Pangaea Expertise and Solutions, situated in
Pretoria. The actuary
also compiled two different reports based
on the different or updated expert reports. In his second report
(based on the November
2023 report), he opined that the purported
profit that the Plaintiff states she earned as an informal trader,
which ranged between
R5’200.00 and R12’500.00 per month,
seems to be above the upper quartile of self-employed individuals in
the informal
sector per Robert Koch 2016 - given the Plaintiff’s
level of education, expertise and capacity to work.
ANALYSIS OF THE
EVIDENCE
[43]
The industrial psychologist does not
provide a rationale for the substantial discrepancies between the two
reports. The November
2023 report, the second to be compiled by this
expert, appears to have been deliberately exacerbated. The
Plaintiff's assessment
of past and prospective earnings is
excessively inflated, as evidenced by the industrial psychologist's
data analysis. This, in
turn, had a direct impact on the actuary's
calculations.
[44]
I agree with the actuary when he states the
income allegedly earned by the Plaintiff seems to be above the upper
quartile of self-employed
individuals in the informal sector. More
so, as the expert did not have any documentary evidence to prove what
the Plaintiff’s
income was prior to the accident.
[45]
Our courts have held that an individual
undergoing retroviral treatment is not inherently considered to have
a diminished life expectancy.
Nevertheless, life expectancy can only
be ascertained after a thorough examination of the individual's prior
medical treatment
records. This was not done. The Plaintiff commenced
her treatment before the accident.
[46]
The estimates were conducted without
considering that informal traders or hawkers, who were significantly
impacted by the Covid-19
pandemic, were unable to work at all. They
were legally barred from travelling to purchase products for
subsequent resale door-to-door
or on the streets. This factor also
had to be taken into account when assessing the loss of earnings.
[47]
The estimates presented in the actuarial
report dated 01 August 2021, appear to be rational and coherent, only
in as far as it was
considered based on the July 2021 report,
considering the Plaintiff’s pre- and post-morbid
conditions—encompassing
physical, mental, and emotional
aspects, as well as the prevailing economic circumstances. The
Plaintiff's age, as well as the
fact that she is a beneficiary of a
disability and/or old age grant, ought to have also been the primary
determining factor. The
latter was not considered when the
calculations were done.
[48]
The actuary applied a 5% contingency for
past loss of earnings and 15% for future loss. Uninjured, the actuary
opines that the Plaintiff
could have earned R313’955.00 and
post-morbid, she could suffer a loss of earnings in the amount of
R801’985.00. These
figures are without the proposed
contingencies of 5% and 15%, respectively.
LEGAL PRINCIPLES AND
DISCUSSION:
[49]
Expert witnesses are called upon to provide opinions on the
facts pertaining to their expertise. If their expert reports rely on
hearsay rather than substantive evidence to substantiate their
opinions, the reports are of little assistance to the Court.
[50]
When an expert relied on hearsay evidence
in formulating their report, as the industrial psychologist did in
this instance, it was
the obligation of the Plaintiff's counsel to
challenge the hearsay evidence to guarantee its admissibility and
appropriate evaluation
by this Court. The counsel failed to meet this
requirement, despite the clear necessity, as the expert reports
significantly differ
from one another.
[51]
In trials, it is customary for any party
aware of the potential introduction of hearsay evidence to invoke a
limited sanction under
the provisions of
section 3(3)
of the
Law of
Evidence Amendment Act 45 of 1988
. When the scope of the evidence is
restricted, and its admissibility may be disputable, it may be
suitable to admit it provisionally
to allow the trial to proceed. The
party requesting the admission of hearsay evidence must then seek
leave from the Court to have
the evidence deemed admissible.
[52]
As
to the nature of an expert’s opinion, Wessels JA stated that
‘
an
expert's opinion represents his reasoned conclusion based on certain
facts or data, which are either common cause, or established
by his
own evidence or that of some other competent witness. Except possibly
where it is not controverted, an expert's bald statement
of his
opinion is not of any real assistance. Proper evaluation of the
opinion can only be undertaken if the process of reasoning
which led
to the conclusion, including the premises from which the reasoning
proceeds, are disclosed by the expert
.’
[1]
[53]
As
quoted in the case of
PriceWaterhouseCoopers
Inc & Others v National Potato Co-Operative Ltd & Another
9451/20120
[2015] ZASCA 2
(4 March 2015)
[2]
"Courts
in this and other jurisdictions have experienced problems with expert
witnesses, sometimes unflatteringly described
as ‘hired guns’.
In
The
Ikarian Reefer
[3]
Cresswell
J set out certain duties that an expert witness should observe when
giving evidence. Pertinent to the evidence of Mr ….
in this
case are the following:
‘
The
duties and responsibilities of expert witnesses in civil cases
include the following:
1.
Expert evidence presented to the
Court should be and should be seen to be the independent product of
the expert uninfluenced as
to form or content by the exigencies of
litigation …
2.
An expert witness should provide
independent assistance to the Court by way of objective unbiased
opinion in relation to matters
within his expertise … An
expert witness in the High Court should never assume the role of
advocate.
3.
An expert witness should state the
facts or assumptions on which his opinion is based. He should not
omit to consider material facts
which detract from his concluded
opinion.
4.
An expert witness should make it
clear when a particular question or issue falls outside his
expertise.’
These
principles echo the point made by Diemont JA in
Stock
[4]
that:
‘An expert … must be made to understand that he is there
to assist the Court. If he is to be helpful he 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. I may add that when it comes to assessing the credibility of
such a witness, this Court can test his
reasoning and is accordingly
to that extent in as good a position as the trial Court was.’
[54]
Legal
principles and tools for evaluating credibility and dependability
stipulate that before any significance can be attributed
to an
expert's opinion, the underlying facts must be established as
existent. Provided there exists admissible evidence
underpinning the expert's testimony, it cannot be disregarded.
However, it follows that the more the expert's reliance on facts
not
in evidence, the lesser the weight accorded to their opinion. A
factually unsupported opinion holds no merit for the Court.
[5]
[55]
The
probative value of expert testimony is regarded similarly to that of
a standard witness's testimony. The Court is not obligated
to adhere
to the expert witness's opinion. The objectivity of an expert witness
and the credibility of their opinions may be questioned,
particularly
when they agree to fulfil their role in a limited capacity, present a
product shaped by the demands of litigation,
exhibit a lack of
independence or bias, possess a vested interest in the litigation's
outcome due to a relationship with the retaining
party or otherwise,
advocate for the position of the retaining party, or selectively
analyses only the evidence that corroborates
their conclusions or
exclusively consider the evidence supplied by the retaining party.
[6]
[56]
The acceptance of the expert reports is
further complicated by the improper commissioning of their subsequent
affidavits. The bulk
of the experts testified under oath that they
did not sign the declarations before a commissioner but rather
independently at their
offices. If not properly commissioned, those
affidavits must be rejected. Consequently, the expert report that the
disregarded
affidavit was intended to validate should also be
rejected, or at the very least, minimal weight should be attributed
to the opinions
indicated therein.
[57]
I am disinclined to believe the
occupational therapist's amended version that she signed her
affidavit before a commissioner. She
asserted this subsequent to
repeatedly claiming that she signed it in her office. In my view,
after evaluating how most other experts
executed their declarations
independently at their respective offices, it is likely that the
occupational therapist also signed
her declaration at her office
rather than before a commissioner of oaths.
[58]
I am of the view that the industrial
psychologist did not satisfy the criteria for an expert witness.
First, she failed to
establish a foundation for her status as an
expert witness in a trial, with the exception of her industrial
psychology credentials.
Secondly, her assessments were substantially
predicated on unverified evidence that she had obtained from the
Plaintiff rather
than on established facts. Third, her testimony,
when viewed objectively, was merely that of an advocate advocating
for the Plaintiff.
Fourth, it was not objective; rather, it was
intended to substantiate the conclusions she had reached. Fifth,
whereas she did not
sign the affidavits before a commissioner of
oaths and the vast discrepancies between her two reports, should
weigh adversely against
her.
[59]
Although the Plaintiff endeavoured to
substantiate her loss of earnings
via
the report and calculations of the
industrial psychologist and the actuary who based his report on the
findings of the industrial
psychologist, the actuary's calculations
lack evidentiary weight due to the fact that I am unable to accept
the industrial psychologist
reports and affidavits, as (a) their
reliance on reports and subsequent declarations, were not properly
commissioned and sworn
to under oath and (b) the significant
discrepancies between the two reports. No rationale is provided for
the discrepancy between
the first report, which states that the
Plaintiff earned between R4,000.00 and R5,000.00 per month before the
accident, and the
second report, which indicates an average monthly
income of R5,200.00 to R12,200.00. An inference is drawn that the
industrial
psychologist did not base her report on factual
information but rather on unverified evidence or unestablished facts.
If it were
grounded in verified facts, the figures would not have
varied so significantly.
[60]
In
A
M and Another v MEC for Health, Western Cape
2021 (3) SA
337
(SCA)
at para
21, the SCA stated:
“
The
opinions of expert witnesses involve the drawing of inferences from
facts. The inferences must be reasonably capable of being
drawn from
those facts. If they are tenuous, or far-fetched, they cannot form
the foundation for the court to make any finding
of fact.
Furthermore, in any process of reasoning the drawing of inferences
from the facts must be based on admitted or proven
facts and not
matters of speculation. As Lord Wright said in his speech in Caswell
v Powell Duffryn Associated Collieries
Ltd: ‘Inference must be
carefully distinguished from conjecture or speculation. There can be
no inference unless there are
objective facts from which to infer the
other facts which it is sought to establish … But if there are
no positive proved
facts from which the inference can be made, the
method of inference fails and what is left is mere speculation or
conjecture.”
[61]
In
addition to the industrial psychologist's reliance on hearsay
evidence for her report, a document within the Hospital Records
Bundle A
[7]
requires more
scrutiny about the loss of earnings and earning ability. This
document headed "Dept of Health & Social Deve"
contains
every information regarding the Plaintiff, excluding her employment
data. It is reasonable to anticipate that if the Plaintiff
were
self-employed, as claimed, she would have included such information
in this document. However, this section of the document
was not
completed, giving the impression that the Plaintiff was unemployed.
[62]
Jurisprudence must evolve, and during its
evolution, it should consider the contemporary environment, including
advancements in
technology and socio-economic aspects. In other
words, jurisprudence will perpetually be orientated towards the
future. To do this
and envision the future, we must first reflect on
history and revert to the fundamental principles of law.
[63]
Descartes
is renowned for his methodological scepticism. He contended that one
ought to question whatever can be doubted, even expert
witness, until
reaching an indubitable conclusion. Although he did not explicitly
address expert witnesses in contemporary terms,
his philosophy
implies that we ought to exercise caution in accepting others'
knowledge without rigorous scrutiny.
[8]
[64]
John
Locke contended that specialists, while frequently dependable, are
vulnerable to human limits. He underscored the significance
of
personal reasoning and scepticism, arguing that we ought to
critically evaluate expert testimony and use our own judgment to
determine its authenticity. According to Locke, reliance on
specialists should not supplant the necessity for individual
investigation
and logical reasoning.
[9]
[65]
Karl
Popper highlighted the fallibility of all human knowledge,
encompassing expert opinion, within the philosophy of science. Popper
indicated that experts may be erroneous and should not be accepted
uncritically. He thought that scepticism and the continual
interrogation of authority were vital for the progression of
knowledge.
[10]
[66]
Recently,
philosophers such as Collins and Evans have explored the concept of
"interactional expertise." They contend
that non-experts
can occasionally confront specialists effectively, especially when
they possess sufficient knowledge of the domain
to engage critically.
This viewpoint endorses a prudent stance towards expert testimony,
promoting informed scepticism.
[11]
[67]
Upon examining the philosophical
foundations of our legal system, modern jurisprudence, and the
specific evidence the Plaintiff
was required to establish, logic
dictates that I treat the expert findings with considerable
scepticism.
[68]
The
financial compensation resulting from the injuries experienced in an
accident caused by the Defendant must be substantiated.
The Plaintiff
bears the burden of proving each pertinent fact from which these
conclusions may be inferred based on a balance of
probabilities.
[12]
[69]
The Plaintiff's claim for past and future
loss of earnings must thus be dismissed. In the absence of admissible
evidence presented
to the Court demonstrating a loss of earnings and
a prospective loss of future earnings due to the accident, no claim
for quantum
is compensable.
[70]
The Plaintiff's injuries and subsequent
hospitalisation are undisputed. The expert reports indicate that she
will likely need additional
medical care. It is my
prima
facie
view that the Plaintiff’s
claim pertains to general damages. However, that is not for this
Court to determine.
[71]
I queried the Plaintiff's counsel on the
handling of past and future medical expenses, which he was unable to
affirm. Having considered
all the evidence as stated above, I will
address this matter in my subsequent order, as to do so at a later
stage will not be in
the interest of justice.
Accordingly, I make the
following order:
ORDER:
[72]
The Defendant
shall furnish Plaintiff with an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, in respect of
future medical, hospital and related expenses.
[73]
The Plaintiff’s
claim for general damages is postponed
sine
die
.
[74]
The Plaintiff’s
claim for past and future loss of earnings is dismissed.
[75]
There shall be no
order as to costs.
[76]
The Registrar of this
Division is directed to bring this judgment under the attention of
the Director for the Limpopo Provincial
Council (“LPC”)
forthwith for their further investigations into the expert
declarations that were not properly commissioned.
C MARAIS
ACTING JUDGE OF THE
HIGH COURT
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON
:
25 September 2024
JUDGMENT
DELIVERED ON
:
24 October
2024
.
This judgment was handed
down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be
24
October 2024
at
10:00
APPEARANCES
:
Counsel for the
Plaintiff:
Adv Motseamedi
Attorney for the
Plaintiff:
Mohale Incorporated
Email
Address:
mohaleinc@gmail.com
Counsel for the
Defendant:
none
Attorney for the
Defendant:
Email Address:
[1]
Gentiruco
AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(AD)
at 616H; See also Wigmore on
Principles
of Evidence
(3ed) Vol VII para 1923;
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A
)
at 370G-H and at 371F-H.
[2]
Para
98.
[3]
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd ('The
Ikarian Reefer') [1993] 2 Lloyd's Rep 68 [QB (Com Ct)]
at 81 – 82. Approved in
Pasquale
Della Gatta, MV; MV Filippo Lembo
;
Imperial
Marine Co v Deiulemar Compagnia Di Navigazione Spa
2012 (1) SA 58
(SCA)
para 27, fn 12 and
Schneider
NO and Another v AA and Another
2010 (5) SA 203
(WCC)
at 211E-I.
[4]
Stock
v Stock
1981 (3) SA 1280
(A)
at
1296 E-G.
[5]
As
quoted in the case of
PriceWaterHouseCoopers
Inc & Others v National Potato Co-Operative Ltd & Another
(451/2012)
[2015] ZASCA 2(4 March 2015)
at para 99.
[6]
Ibid.
[7]
Page
80.
[8]
Descartes’
Meditations
on First Philosophy
(1641);
See also:
https://1000wordphilosophy.com/2018/08/04/descartes-meditations-1-3/
accessed on 14 October 2024.
[9]
An
Essay Concerning Human Understanding
(1690);
See also:
https://www.philotextes.info/spip/IMG/pdf/essay_concerning_human_understanding.pdf
accessed on 14 October 2024.
[10]
The
Logic of Scientific Discovery (1934)
and
Conjectures
and Refutations
(1963);
See also:
https://philotextes.info/spip/IMG/pdf/popper-logic-scientific-discovery.pdf
accessed on 15 October 2024.
[11]
Harry
Collins and Robert Evans
:
Rethinking Expertise
(2007)
[12]
Evins
v Shield Insurance Co Ltd
[1980] 2 All SA 40
(A)
at 58.