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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 62894/18
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 5 August 2024
JA Kok
In the matter between:
Nel, Chenique APPLICANT
and
Road Accident Fund RESPONDENT
JUDGMENT
Kok AJ
[1] The plaintiff was injured on 20 May 2014 in a motor collision. The merits have
been settled. The defendant also provided an undertaking in relation to the
plaintiff's future medical expenses. General damages stand over for later
determination. In this judgment I only consider the plaintiff's claim for future loss of
earnings.
[2] At the start of the hearing, I granted an application in terms of Rule 38(2) allowing
the plaintiff to adduce her expert evidence on affidavit. The defendant did not
oppose the application. The defendant did not appoint experts of its own. The
leading of oral evidence for the experts to confirm the facts, their assumptions,
their expert opinions and the basis for their opinions where the defendant was not
in a position to contest these, would only have led to the running up of
unnecessary expenses and legal costs.
[3] The plaintiff and defendant submitted arguments on how the various experts'
opinions should be interpreted and applied in determining the award to be made
for loss of future income. The following experts' reports were considered: Mr
Whittaker (actuary), Dr Birrell (clinical psychologist and neuropsychologist), Dr
Maritz (counselling and educational psychologist), Dr Annandale (plastic and
reconstructive surgeon), Dr Mazabow (clinical psychologist and
neuropsychologist, Mr Wessels (industrial psychologist) and Dr Nel (psychiatrist).
[4] It is not necessary to analyse these expert reports in great detail in this judgment.
The main disagreement between the plaintiff and defendant was how the following
amendment to the expert reports should influence the court's award:
[5] In Dr Maritz's initial report dated 2019/07/15, it was stated that pre -accident the
plaintiff had the potential to complete a NQF level 4 qualification, either through a
vocational college or by completing grade 12. The post -accident prognosis was a
condoned grade 11.
[6] Dr Maritz's subsequent report of 2023/11/03 notes that the plaintiff was at th e date
of this report registered for office administration at a TVET college for a National
Certificate (Vocational) level 3 qualification, which is the equivalent to grade 11.
The report then states that "with the transfer to TVET, [the plaintiff] will probably be
exposed to more practical application of skill sets. Given her circumstances
prevail, she can probably acquire the NCV qualification on NQF level 4".
[7] Mr Wessels's report of 29/3/2021 could obviously not take into account the
subsequent report by Dr Maritz. Based on Dr Maritz's initial assessment, Mr
Wessels opined that pre -accident the plaintiff would have entered an over -
saturated semi-skilled labour market and post-accident would be limited to a highly
dense unskilled labour market at minimum wage.
[8] The actuarial calculation was in turn based on the Wessels report of 29/3/2021.
[9] Based on Dr Maritz's view that the plaintiff's pre-accident potential was to acquire a
NQF level 4 qualification and post -accident "can probably acquire the NCV
qualification of NQF level 4", the defendant argued that the plaintiff's pre -accident
and post -accident earnings should therefore be roughly the same. Plaintiff's
counsel submitted that the actuarial calculation already included a pre -accident
deduction and post -accident contingency deduction. The plaintiff is enrolled for a
grade 11 qualification and had not obtained a grade 12 qualification.
[10] The following aspects of the experts' reports are also relevant.
[11] Mr Wessels noted in his report of 29/3/2021 that "plaintiff's residual ability and
earning capacity has been further compromised/curtailed. She will in all probability
find it substantially difficult to secure employment on a permanent basis. It is
expected that her employment tenure will be characterized by substantial periods
of unemployment and a disposition of total unemployment cannot be excluded".
[12] Dr Nel's expert opinion was that the plaintiff "will not reach her full pre -accident
potential due to the post -accident anxiety and mood symptoms with associated
cognitive deficits.”
[13] Although at first blush an attractive premise, the defendant's submissions do not
take into account that irrespective of the actuarial calculation, the expert reports
establish that post-accident the plaintiff has more limited employment prospects.
[14] The calculation of the award to be made for future loss of earnings lies somewhere
between a calculation made on some logical basis and a gut feeling or guesswork.
Goldie v City Council Of Johannesburg 1948 (2) SA 913 (W) 920; Southern
Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) 114A ; Road Accident
Fund v Kerridge 2019 (2) SA 233 (SCA) paras 40-43.
[15] Where actuarial calculations are relied on, a court should consider the
assumptions on which the calculations were made. Compare Bailey NO 113H.
[16] Where a court is satisfied that a patrimonial loss has been suffered, the court must
then assess the award to be made, using the evidence before it as best it can.
Bailey NO 114A-E and the authorities cited there.
[17] The expert reports taken as whole establish that the plaintiff pre -accident already
faced some challenges which would have impacted on her scholastic progress.
Pre-accident her employment and remuneration prospects were already limited.
Post-accident her prospects decreased further still.
[18] It is so that the actuarial calculation is based on the assumption that pre -accident
the plaintiff's prospects were to qualify with an NQF 4 level (grade 12), while these
prospects diminished to grade 11 post -accident. The later addendum to Dr
Maritz's report speculates that the plaintiff could probably obtain a vocational
qualification on NQF level 4, which were not reflected in the industrial psychology
report and subsequently not in the actuarial calculations.
[19] On the other hand she will probably face limited employment prospects until
retirement or even face extended periods of unemployment.
[20] The evidence established that the plaintiff suffered a patrimonial loss. The
actuarial calculations in this matter provide me with some basis from which to
assess an award. Even taking the deductions into account that the actuary has
already applied, the calculation still seems to be somewhat inflated, as it is based
on the more pessimistic forecast of a post -accident grade 11 qualification. In my
view the actuarial calculation should be adjusted downwards.
ORDER
In the result, the following order is granted:
1.1. The medico-legal reports and affidavits as referred to in the Rule 38 application are
adduced into evidence.
1.2. The adjudication of general damages is postponed sine die pending the outcome
of the decision of the HPCSA Appeal Tribunal.
1.3. The merits of the action have been settled between the parties as 100% in favour
of the plaintiff, payment of R2 000 000 to the plaintiff as loss of earnings, with
costs.
1.4. The amount of R2 000 000 shall be payable by direct transfer into the trust account
of Adams & Adams, details of which are as follows:
Nedbank
Account number : 1[...]
Branch number : 1[...]
Pretoria
Ref: N[...]
2. The defendant shall furnish the plaintiff and her trustee with an undertaking in terms of
section 17(4)(a) of the Road Accident Fund Act 56 of 1996, to compensate the plaintiff
for 100% of the costs of the future accommodation of the plaintiff in a hospital or nursing
home or treatment of or rendering of any services or supplying of any goods to the
plaintiff resulting fr om the injuries sustained by her as a result of the accident that
occurred on 20 May 2016.
3. The defendant is liable for payment of the reasonable costs of the trustee appointed
in terms of paragraph 5 of this order , in respect of establishing a trust and any other
reasonable costs that the trustee may incur in the administration thereof including his
fees in this regard, which shall be recoverable in terms of the undertaking issued in
terms of section 17(4)(a), and which costs shall be governed in accordance with
paragraph 16.1 to 16.3 of the Trust Deed attached hereto marked as Annexure A.
4. The nett proceeds of the payments referred to above as well as the plaintiff’s taxed or
agreed party and party costs payable by the defendant, after deduction of the
plaintiff’s attorney and own client legal costs and interest on unpaid disbursements
("capital amount"), shall be payable to the Trust, to be established within one year of
the date of this order.
5. HERCULES ALEXANDER SANDENBERGH will be the first Trustee with powers and
abilities as set out in the draft Trust Deed attached hereto, marked as Annexure “A”.
6. The main provisions of the Trust Deed attached hereto marked as Annexure “A” shall
deal with the following aspects: -
6.1. The objectives of the trust, set out in paragraph 5 of the attached trust deed;
6.2. The powers of the trustee set out in paragraph 8 of the attached trust deed;
6.3. The duties of the Ttustee set out in paragraph 11 of the attached trust deed.
6.4. The termination of the trust set out in paragraph 13 of the attached trust deed;
6.5. The remuneration of the trustee set out in paragraph 16.1 to 16.3 of the
attached trust deed;
6.6. The amendment of the trust set out in paragraph 18 of the attached trust deed;
6.7. The trustee shall be obliged to furnish security to the satisfaction of the Master
of the High Court of South Africa for the assets of the Trust and for the due
compliance of all his/her obligations towards the trust set out in paragraph 3.2
of the attached trust deed.
7. Should the aforementioned trust be established within the one year period, the trustee
thereof is authorised to pay the plaintiff’s attorney and own client costs and interest on
unpaid disbursements out of the trust funds in so far as any payments in that regard
are still outstanding at that stage.
8. Should the aforementioned trust not be established within the one year period:-
8.1. The plaintiff’s attorneys are directed to approach the court within six months
thereafter in order to obtain further directives in respect of the manner in which
the capital amount is to be utilized in favour of the plaintiff;
8.2. The plaintiff’s attorneys are authorised to invest the capital amount in an
interest bearing account in terms of section 86(4) of the Legal Practice Act to
the benefit of the plaintiff with a registered banking institution pending the
finalization of the directives referred to in paragraph 8.1 above;
8.3. The Plaintiff’s attorneys are prohibited from dealing with the capital amount in
any other manner unless specifically authorised thereto by this court, subject to
the provisions contained in paragraphs 5 to 8 hereof.
9. Until such time as the trustee is able to take control of the capital amount and to
deal with same in terms of the trust deed, the plaintiff’s attorneys are authorised
and ordered to pay from the capital amount:
9.1. any reasonable payments to satisfy any of the plaintiff’s needs that may arise
and that are required in order to satisfy any reasonable need for treatment,
therapy, care, aids or equipment that may arise in the interim;
9.2. the attorney and own client costs and interest on unpaid disbursements of the
plaintiff’s attorneys;
9.3. such other amount(s) as may reasonably be indicated and/or required for the
well-being of the plaintiff and/or in h er interest which a diligent curator bonis
would have paid, had such curator been appointed.
JA Kok
Acting Judge of the High Court
Delivered: This judgement is handed down electronically by uploading it to the electronic
file of this matter on CaseLines. As a cou rtesy gesture , it will be emailed to the
parties/their legal representatives.
For the plaintiff: JJ Scherman
Instructed by: Adams & Adams
For the defendant M Sekgotha
Instructed by: State Attorney
Date of the hearing: 29 February 2024
Date of judgment: 5 August 2024