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1989
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[1989] ZASCA 143
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Santam Insurance Ltd. v Joliffe (104/88) [1989] ZASCA 143 (17 November 1989)
Case no 104/88 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between
SANTAM INSURANCE LIMITED
Appellant
- and -
A. W.
JOLIFFE
Respondent
CORAM:
/ HOEXTER, VAN HEERDEN, MILNE,
EKSTEEN JJA et FRIEDMAN AJA.
HEARD:
1 NOVEMBER 1989.
DELIVERED:
17 NOVEMBER 1989.
JUDGMENT
FRIEDMAN AJA.
2/....
FRIEDMAN AJA:
This appeal relates to the loss of earning capacity suffered by a young boy,
Donovan Wade Joliffe (Donovan),as a result of the injuries
he sustained on 20
May 1983 when a collision occurred between a motor vehicle driven by his mother,
Mrs Howell, in which he was a
passenger, and a motor vehicle insured by the
appellant in terms of the Compulsory Motor Vehicle Insurance Act, no 56 of 1972.
Donovan
was at the time ten years of age (his date of birth is 13 April 1973)
and he was in standard three. He suffered a blow to the head
which caused a
comminuted fracture of the left frontal bone of the skull as well as a fracture
of the cheek bone and
3/...
3.
of the roof of the maxillary antrum. These fractures were repaired surgically
on 20 May 1983.
He also suf f ered a f racture of the base of the skull which
resulted in a permanent loss of the sense of smell. In addition this
fracture
caused a tear in the dura which led to bacteria entering the brain which in
turn, in January 1984, caused meningitis. As
a result of the meningitis Donovan
underwent a craniotomy which is a prophylactic
surgical procedure aimed at closing the tear in the
dura so as to prevent further attacks of
meningitis. A craniotomy of necessity causes
scarring of the brain. In Donovan's case this
occurred in the left frontal region of the brain.
Arising out of the injuries suffered by
Donovan, his father (the respondent, to whom I
4/....
4.
shall, for convenience, refer as "the plaintiff") instituted proceedings
against the appellant (to whom I shall refer as "the defendant")
in which he
claimed damages in his personal capacity as well as in his capacity as Donovan's
father and natural guardian, amounting
in the aggregate to R193 246,20. Included
in this figure was an amount of R100 000,00 which was claimed in respect of
"estimated
future loss of earnings". The defendant joined Donovan's mother as a
third party but she did not participate in the trial.
Defendant admitted liability and the minutes of the pre-trial conference
held, in terms of Rule 37, reveal that by the time the trial
commenced the only
items on which agreement had not been reached were the claim for future
medical
5/...
5.
expenses and the claim for future loss of earnings.
During the
coúrse of the trial agreement was reached in respect of the former item,
leaving the amount of the future loss of
earnings as the only issue in dispute.
Excluding this item the agreed damages amounted to R106 514,56.
Shortly
before the trial commenced the plaintiff gave notice of his intention to
increase the claim for loss of future earnings to
R461 179,00. The Court a
guo (MORRIS AJ)
assessed the loss of future earnings at R182 625,00 and
accordingly granted judgment in favour of the plaintiff in an amount of R288
139,56. Leave to appeal having been granted by the Court a
quo
, defendant
now appeals to this Court against the amount awarded in respect of future loss
of
6/....
6.
earnings.
A number of expert witnesses gave evidence at the trial. Two
neurosurgeons
testified, Dr Proman on behalf of the plaintiff and Dr Snyckers
on behalf of the defendant. The main area of dispute between the neurosurgeons
was the extent of the risk of Donovan developing epilepsy in the future. Two
psychologists, Barbara Donaldson and Shirley Cohen,
gave evidence for the
plaintiff and the defendant respectively. In addition plaintiff called a speech
and hearing therapist, Penelope
Ann Metcalf, as a witness. Anita Schlebush, a
clinical psychologist who furnished the plaintiff with a report on Donovan, was
not
called as a witness.
On 8 September 1987 the psychologists
7/.......
7.
held a meeting. (although Penelope Metcalf is not a psychologist she studied
psychology as part of her training and was, for purposes
of the meeting,
regarded as a psychologist). As appears from the minutes of this meeting (exh
B), the object was to attempt to reach
agreement on what Donovan would have
earned, but for the accident, and what he was likely to earn as a result of the
condition in
which he had been left as a result of his injuries.
There was a
great deal of debate about these
minutes both in the Court a
quo
as well as in this
Court. I therefore propose to set out in full
the relevant portion of exh B, which reads as
follows:
"
MINUTES OF PSYCHOLOGISTS' MEETING AT
8/....
8.
20H00 ON 8 SEPTEMBER 1987 AT 28 HALFORD AVENUE, HIGHLANDS NORTH RE
DONOVAN
JOLLIFFE
PRESENT: Shirley Cohen
Barbara Donaldson Penny Metcalf Anita Schlebusch
POINTS FOR DISCUSSION:
a)
Pre-Accident Occupation & Earnings
AGREED that Donovan would
have
obtained a Std 10 and Technikon diploma
(possibly in the engineering or allied
occupations).
AGREED that he
would have been able to
earn approximately Rl 775 per
month.
b)
Post-Accident Occupation & Earnings
1. Level of education.
AGREED that Donovan is likely to pass Std 7 (Lower Grade) on the basis of his
present symbols and be promoted to Std 8 (Lower Grade).
AGREED that he is
capable of
9/...
9.
passing Std 8 (Lower Grade) although this may take him 2
years.
2. Occupation
i) Without epilepsy
AGREED that he would fulfil the requirements for admission to an
apprenticeship, but that there is doubt whether he will complete
this
apprenticeship.
ii) Should he develop epilepsy AGREED that his range of career options would
be narrowed to those that would not endanger him or others.
3. Salary.
i) Under Optimal Circum= stances
- AGREED that should he indeed succeed in completing an apprentice=
10/....
10.
ship with Std 8 as an entry ,requirement, he could earn approximately Rl 650 per
month.
- AGREED that given his
personality problems,
doubt exists as to
whether
he could ever qualify as
an artisan and he will
then have to function as an artisan aide
(at ±R600 per month) or move into a low-level clerical function (at ±
R600-R750
per month). In addition, his work record is likely to be an unstable
one. ii) Epilepsy
- AGREED that this will
restrict his range of
career options to
low-
level clerical functions,
e.g. storeman or clerk
(±R600-R750
per month)."
11/...
11.
The Court a
quo
, in arriving at the figure of R182 625,00 for future
loss of earnings, found that but for the accident Donovan's earning capacity
would have been R1 775,00 per month and that as a consequence of the accident it
would be R600,00 per month. From the former figure
an amount of 12% was deducted
to allow for contingencies and from the latter figure 35%. Based on actuarial
calculations emanating
from a report which was
handed in by consent after the
trial, the potential
loss, had Donovan not been involved in the
accident, amounted to R293 000,00. Deducting 12% for contingencies, viz R36
625,00, left an amount of R256 375,00. On the basis of
R600,00 per month, the
prospective value of Donovan's income amounts to R115 000,00. Deducting 35%,
viz
12/...
12.
R40 250,00, from this figure, an amount of R74 750,00 is arrived at. The nett
loss was therefore fixed at R181 625,00. This figure
was then added to the
agreed amount of R106 514,56 and judgment was granted in favour of the plaintiff
in an amount of R288 139,56,
with costs.
Defendant's counsel argued that in
arriving at the figure of R181 625.00 the learned judge had misdirected himself
in a number of
respects, more particularly in regard to what had been agreed to
by the parties, what the true nature of Donovan's disability was
and the
application of contingency factors. As a result of these alleged misdirections,
this Court, so it was
contended on the basis of the decision in A A
Mutual Insurance Association Limited v Maqula
13/...
13.
1978(1) SA 805(A) at 809 B-D, is entitled to, and
should, assess the loss
of earnings afresh.
Defendant's counsel contended that there had in fact been
no agreement between the psychologists as to which of the three options
referred
to in annexure B was the appropriate one to apply and that the formulation of
these three options was merely an attempt
on the part of the psychologists to
limit the issues. He moreover contended that the doubt expressed in paragraph
b(3) of the agreement
as to whether Donovon would ever qualify as an artisan,
was merely Mrs Donaldson's doubt, based on Donovan's personality problems,
which
doubt was not shared by Mrs Cohen.
Appellant's counsel referred to a passage in the iudgment of the Court a
quo
which, so it
14/....
14.
was argued, was unclear and tended to suggest that the learned judge might
have mistakenly assumed that defendant's counsel had agreed
that as a result of
his injuries Donovan's earning capacity was limited to merely R600,00 per month,
whereas there had not been any
such agreement. The passage in the judgment reads
as follows:
"I understood Mr Rossouw correctly, however, intended that the award in respect
of loss of earnings should be based upon the respective
figures of Rl 775,00 and
R600,00 being the figures stated in exhibits (sic) B and those contended for in
Mr Dane's argument."
This passage is anything but
clear. The record generally has been badly prepared and contains numerous typing
errors. This particular
passage
15/...
15.
not only contains typing errors but words appear to have been omitted as
well. Having regard to the remainder of the judgment, however,
it appears that
what the learned judge intended to convey was that the defendant's counsel had
contended that the parameters of the
claim fell within the limits of R1 775,00
per month and R600,00 per month. The learned judge went on to analyse the
evidence and
to give his reasons for concluding that, but for the accident,
Donovan's earning capacity would have been R1 775,00 per month whereas
in
consequence of the accident it would be R600,00 per month. It is clear from the
judgment as a whole that he was not labouring
under a misconception that it was
common cause that the defendant's counsel had accepted the third option as being
the
16/....
16.
relevant one to apply.
At an early stage of the trial a dispute arose
between counsel as to the nature of the psychologists' agreement. During Mrs
Donaldson's
evidence-in-chief she stated that in her view Donovan was unlikely
to complete an apprenticeship. The court then raised the question
whether this
was not common cause and whether in the light of the psychologists' agreement,
it was necessary for evidence to be led.
The defendant's counsel pointed out
that it was not common cause that Donovan would not complete an apprenticeship
and that the defendant's
evidence was going to be that he would indeed complete
an apprenticeship. When defendant's counsel sought to cross-examine Mrs
Donaldson
in regard to the "doubt" as to whether
17/...
17.
Donovan would ever qualify as an artisan,the plaintiff's counsel objected,
contending that the defandant's counsel was bound by the
psychologists'
agreement. The trial judge stated that as he saw it, it was not open to either
party to challenge the agreement. He
suggested, however, that counsel should
endeavour to resolve the matter. Counsel were unable to resolve their
differences. The defendant's
counsel informed the court that he wished to
cross-examine Mrs Donaldson on what the actual agreement between the
psychologists was.
The court allowed the cross-examination to proceed, stating
that the matter could be dealt with in argument at the end of the trial.
The dispute between the parties in regard to the psychologists agreement
apparently centred
18/....
18.
upon paragraph (b) 3(i). There was no difference of opinion in regard to the
so-called first option viz that should Donovan pass standard
8 and complete an
apprenticeship, he could earn approximately R1 650,00 per month. There was also
no dispute in regard to the so-called
second option viz that after an
apprenticeship with standard 7 as an entry requirement, he could earn
approximately R1 230,00 per
month. The dispute was in regard to the so-called
third option, namely that doubt existed as to whether, given his personality
problems,
he could ever qualify as an artisan.
Under cross-examination Mrs
Donaldson conceded that there had not been an agreement between the
psychologists and that the doubt as
to whether Donovan could ever gualify as an
artisan,
19/....
19.
was her doubt. However, any conflict which might
have existed between Mrs
Donaldson and Mrs Cohen on
this question at the time of the
meeting,
disappeared during the course of Mrs Cohen's
evidence. Mrs Cohen
stated in her evidence-in-
chief that she was of the view that Donovan
could
pass standard 8 and that there would be a number of
apprenticeships.
open to him, depending on his
interests. In other words she felt that the first
option in paragraph (b)
3(i) of the psychologists'
agreement was the applicable one.
Under cross-examination she reiterated
that she had no doubt that Donovan would complete his apprenticeship. Later,
however, when she was specifically questioned on the
doubt expressed in the
third option referred to in paragraph (b) 3(i),
20/...
20.
she testifiedas follows:
"And as Mrs Donaldson said in her evidence, that he has got numerous factors
counting against him in that
labour market? Yes she said that in
her evidence.
And you would agree with that?
Yes,
he has got factors.
And I am talking about the apprentice iabour market. I am not talking about what
he wouid have done, I am talking about now, even
as he stands now and accepting
that he is going to go and become, or try to become an apprentice, he has got
numerous factors counting
against him? Yes, she mentioned those
factors and that is
And you agree with that? Well
that
is her field of work more than mine.
Expertise?
Yes.
And so you would agree with that? I
would agree with that yes."
21/....
21.
The trial judge, having analysed all the evidence, reached the following
conclusion.
"In all of the circumstances which I have detailed there is no evidence to
suggest that Donovan's potential earning capacity after
the accident should be
assessed, subject to contingencies, at any figure higher than that set out in
exhibit B. As regard his potential
but for the accident, similarly, the only
substantial evidence available is that reached by agreement as evidenced in
exhibit B.
Accordingly I propose to assume that but for the accident his earning
capacity would have been Rl 775,00 per month, and that, in
consequence of the
accident, it will be R600,00 per month."
Defendant's
counsel argued that apart from the question of epilepsy (which is deait with
22/...
22.
below) the real difference between the psychologists related to whether
Donovan was left with personality problems after the accident
and to what extent
these were likely to influence his future employability. Before dealing with the
psychologists evidence, it will
be convenient to refer briefly to the evidence
of the neurosurgeons. It is common cause that Donovan sustained an injury to the
left
frontal lobe of the brain which resulted in a loss of volume of that area
of his brain. Dr Snyckers conceded that the portion of
the brain which had been
lost was significant. The left f rontal lobe of the brain is the area which
controls the ability to absorb
new learning, the ability to concentrate, to show
initiative and to develop abstract thought processes. Dr Froman
23/....
23.
testified that the left frontal lobe is the area of
the brain which -
"integrates speech, auditory perceptions,
the organisation of speech,
the sequencing of words, the
interpretation and use of words and above all the reception of words. In other
words the understanding of words put to the
person."
Dr Froman further testified that "a head
injury of this order has global detrimental effects". As far as Donovan's
employability was
concerned Dr Froman testified that "he has very little to
offer the job market", that "he is not going to be the ideal employee and
he is
going to be at the back of
24/...
24.
the job queue". Dr Snyckers did not contest this evidence; his evidence was
mainly confined to a discussion of the percentage risk
of epilepsy.
The
defendant's counsel criticized Mrs Donaldson for having based her assessment of
Donovan's personality on what his mother had told
her. Donovan's mother told Mrs
Donaldson that whereas Donovan has been a placid, easy-going child before the
accident, he was now
continually irritable and impatient, unable to relax,
always fidgeting and had a terrible temper. It is common cause that Donovan's
mother's statements as to the changes that occurred in Donovan after the
accident were not reliable. It is clear, however, that Mrs
Donaldson's findings
in regard to Donovan were not based entirely on what his mother had told
her.
25/....
25.
She herself found Donovan to be "exceedingly
taciturn and
uncommunicative". She also found that he tended to be impatient ánd very
irritable. She initially stated that
Donovan was aggressive but in
cross-examination she conceded that during her interviews with him she did not
detect actual aggression,
although she did notice irritability and inappropriate
responses to stimuli. She also detected what she referred to as the elements
of
aggression because, as she stated, irritability was the beginning of aggression.
Mrs Cohen found Donovan to be withdrawn and lacking
in spontaneity. Mrs Metcalf
found him to be fidgetty and easily distracted. She also found that he had
difficulty in concentration
and that his comprehension was poor. In addition to
this he
26/....
26.
suffered from what Mrs Metcalf called "nominal aphasia" which is a difficulty
in finding the appropriate word during normal speech.
This is a form of stutter
which is directly due to brain damage. Mrs Metcalf pointed out that Donovan was
aware of his inability
to cope and that that frustrated him and made him
irritable. Asked how these characteristics . were likely to manifest themselves
in the work place, Mrs Metcalf stated:
"I feel that he can become very
irritable, storm out, you
know as one way
kind of opting out, he cannot explain
himself".
Donovan's school results are
also
27/...
27.
revealing. Prior to the accident he was about average. In 1982, which is the
year prior to the accident, his average mark was 65%
whereas the class average
was 66%. In 1983, the year of the accident, his average was 63% and that of the
class 66%. In 1984, the
year of the meningitis, his average dropped to 56% as
compared with the class average of 63%. In 1985 his average was an E symbol
whereas the class average was a C. In 1986
(in standard 6) his symbols were as follows:
English D, mathematics G, general science F,
history F, industrial art E, art E, German F (Afrikaans is described as
having been "condoned" and received a P which presumably means
that he was given
a pass). Dr Froman testified that these result were consistent with the head
injury Donpvan
28/...
28.
has suffered.
Mrs Donaldson is a psychologist in private practice who has
had six years experience as head of the assessment section in the division
of
assessments and counselling of the National Institute for Personnel Research.
She carried out certain tests on Donovan, the thrust
of which was to determine
how he would be able to compete with others who might be expected to write the
same tests as part of a
pre-screening, should he wish to
apply for a job.
According to the results of
these tests Donovan wanted to be a motor
mechanic. The normal route to be followed in order to achieve this result would
be a minimum
of standard 8 with English, Afrikaans and mathematics as subjects,
followed by an apprenticeship and a technical
29/....
29.
college qualification. Mrs Donaldson stated that Donovan was unlikely to pass
standard 8 with mathematics as a subject. (This is indeed
common cause). He
would therefore have to enter an adult artisan apprenticeship for five years. He
would not be required to undergo
a trade test, the five years apprenticeship
being seen as "in-service training". According to Mrs Donaldson, Donovan could
fulfil
the entry requirements for such a course, although she believed Donovan
would be severely disadvantaged at that stage. The scarring
on his head would
cause an interviewer to look at Donovan very closely as the layman is "very
frightened of head injury and invests
it with all kinds of things which smack of
mental retardation". Mrs Donaldson pointed out that if
30/...
30.
Donovan should, during the course of his apprenticeship, perform an unlawful
act, for example, should he assault a fellow employee
or walk out in a fit of
temper, his contract could be terminated and he would have to start
apprenticeship from the beginning again.
In her experience "job-hopping" was
common amongst brain damaged employees. This is due to personality problems.
Donovan would, she
felt, only be able to function at a level where he would have
to be under supervision all the time. People who work under direct
supervision
are not considered good employment material. Donovan appears to be ambitious.
When he sees himself remaining in the same
job over and over again he is likely
to "throw up his job and move horizontally,
31/...
31 .
stay a few months, and move horizontally again". Moreover, because Mrs
Donaldson saw him as an impulsive type of person, she felt
he would be inclined
to leave one job before he has another lined up. This was likely to lead to
periods of unemployment.
An additional factor with which Donovan would have
to contend, was the large number of black persons who would be entering the
market
with better qualifications than he would have, for example, a
matriculation certificate.
For all these reasons Mrs Donaldson felt that there was "almost no
possibility of Donovan remaining in a position with one employer
for the five
years necessary to complete the requirements
32/...
32.
for an aprenticehip". The kind of job Donovan would need to get, according to
Mrs Donaldson, was described by her as follows:
"One in which there is no demand for abstraction, conceptualisation, sequential
thought processing or initiative, one in which there
would be single repetitive
tasks with no demand for a multiplicity of tasks expected of him simultaneously,
one task which would
be given to him, not those which he would be required to
initiate, tasks in which there would be time pressures, tasks in which there
would be no people contact and a job in which he would be given supervision both
in terms of the regularity and amount of output.
Now these conditions appear to
me to be so limiting that there are few jobs on the open labour market which
could cater to them and
those that do are typically low level clerical or
machine operating
33/...
33.
functions."
In addition he would have to find
"sympathetic employment" in which there would be understanding for and tolerance
of his limitations.
For these reasons Mrs Donaldson was of the view that the
most likely job that he would be able to hold down would be that of an artisan
aide. He has no interest in a clerical job and in any event has little ability
to concentrate and to perform in the sustained manner
required of a clerical
worker.
Although Mrs Cohen initially testified. that Donovan would be able to enter
any number of trades, it became apparent during the course
of her evidence that
she was really not qualified to testify as to the skills required for any of
the
34/...
34.
numerous occupations she mentioned as potential options open to Donovan. She
also conceded that the anticipated entry of a large number
of black persons into
the labour market was a very real factor to be considered. It was obvious from
the evidence, and Mrs Cohen
conceded as much, that Mrs Donaldson was far better
qualified than she was to testify as to Donovan's prospects of completing an
apprenticeship and of the type of job he was
likely to be able to obtain.
It is necessary to refer briefly to the
evidence of
two of Donovan's school teachers who
were called as witnesses. Miss Smit, his
English
teacher, testified that Donovan was restless in
class and found it
difficult to concentrate. He
struggled to express himself and seemed to become
35/...
35.
frustrated. He tried very hard but he struggled with abstract issues and
although he wanted to participate in discussions he "tended
to lose the core of
what we were talking about, he cannot concentrate on what we are talking about
all the time". He also tended
to raise irrelevant topics or to refer to personal
experiences which were not
germane to the discussion. His
mathematics teacher, Mrs Grigoratos, testified
that he was quiet, polite and obliging but was
easily distracted, lacked concentration and did not
participáte in
the work of the class. He stammered when asked a question and mostly spoke in
monosyllables.
The evidence of his teachers is entirely consistent with that of the
psychologists as well
36/...
36.
as the evidence of Dr Froman.
Defendant's counsel contended that Donovan's
problem was that he had defects in his personality unrelated to his brain
damage. Personality
is a wide concept and it is difficult to draw a dividing
line between defective personality traits and intellectual malfunctioning.
It is
possible that Donovan does have defects in his personality but to the extent
that he might
have such defects, these must inevitably have been
aggrayated by the injuries he sustained and their
sequelae. It is, however, clear from the evidence
that the main
disabilities from which he suffers and which are likely to place him at a
disadvantage in the labour market, are directly
attributable to his head injury.
To sum these up, he has an
37/...
37.
inability to concentrate, to show initiative, to comprehend abstract
thoughts, he has difficulty in expressing himself, he is irritable
and tends to
become frustrated. If regard be had to the deterioration in his intellectual
capacity, it becomes clear that Donovan
is not likely to obtain better paid
employment than that suggested by Mrs Donaldson. The learned judge in the Court
a
quo
was therefore, in my view, perfectly justified
in finding, as he did, that Donovan was, as a
result of his injuries, unlikely to earn more than
R600,00 per month.
Should he become prone to epileptic attacks, his prospects in the labour
market would become even more dismal. Dr Froman testified
that there was a 15%
chance of Donovan developing epileptic seizures in the future. Dr Snyckers
on,
38/...
38.
the other hand, testified that there was no more than a 5% prospect of
Donovan developing epilepsy. The learned judge in the Court
a
quo
was
critical of Dr Snyckers for, as he put it, "doggedly defending his position and
refusing to make concessions which I thought
could legitimately have been made".
The trial court's criticism of Dr Snyckers was, in my view, justified, having
regard to the fact
that when he furnished his report he
had not had access to
the X-rays or to the
medical reports, nor did he know what type of
fracture of the skull was involved. The learned
judge in the Court a
quo
, nevertheless assumed,
for the purpose of calculating Donovan's loss,
that there was a 10% - 15% chance of his
suffering epileptic seizures. Defendant's counsel,
during the course of his oral argument, conceded
39/...
39.
that 10% would have been a reasonable percentage to adopt and that the
difference between 5% and 15% would make no appreciable difference
to the
result. This concession was, in my view, correctly made.
The trial judge dealt with the question of contingencies as follows: With
regard to the contingencies applicable to the amount which
Donovan would have
earned had he not been involved in the accident, he assessed the risk of
unemployment at 10% and he took into account whát
he called "potential economic factors which might
affect salaries or the prospects of re-employment"
and assessed these at 7%. This gave a total
deduction of 17%. Against this the learned judge
found there were chances of advancement which he
40/...
40.
assessed at 5%. He thus arrived at a figure of 12% but allowed 12½%
"bearing in mind a possible overlapping of the first two
factors". With regard
to the contingencies to be applied to the estimated earnings of R600,00 per
month, the learned judge arrived
at a figure of 45½% by taking into account
the following factors:
"Risk of unemployment
(including failure to comprehend and
limited
concentration) twenty-five percent
Economic factors seven and a
half percent
Disclosure of medical
history two percent
Poor
references three percent
Limited ability five percent
Health hazards one
percent
Personality problems two percent
TOTAL forty five-and a half
percent"
41/...
41 .
The learned judge then pointed out that all of these percentages had been
arbitrarily assessed and that the contingency factor could
range anywhere
between 33⅓% and 50%. In the result he decided to adopt a figure of
35%.
Appellant's counsel criticised these percentages as being, in the case
of the pre-accident
condition, too low and the post-accident condition, too
high. He suggested that it would have been reasonable to allow a 25% deduction
for contingencies
in respect of the pre-accident earning capacity and 30% in
respect of the post-accident earning capacity.
The assessment of the amount
that should be deducted to allow for contingencies in a case of this kind is of
necessity arbitrary.
As NICHOLAS JA stated in
Southern Insurance Association
v Bailey NO
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42.
1984(1) SA 98(A) at 116-117:
"The rate of the discount cannot of course be assessed on any logical basis: the
assessment must be largely arbitrary and must depend
upon the trial Judge's
impression of the case."
In my opinion there are no
valid grounds for disturbing the allowance of 12½% made by the trial judge
in respect of pre-accident
contingencies. On the other hand, his assessment of
the post-accident contingencies at 35% appears, on the face of it, to be
somewhat
on the high side. However, it cannot in all the circumstances, having
regard to the arbitrary nature of such an assessment, be said
to be so high as
to warrant interference by this Court. This is especially so if one has regard
to the fact that
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43.
there is an additional risk which has not been taken into account. That is
the risk of Donovan developing meningitis in the future,
despite the
prophylactic operation which has been performed on him. This appears from the
joint report of the ear, nose and throat
surgeons, which was handed in at the
trial by consent, after the neurosurgeons had testified. In this report it is
stated, under
the heading "Predisposition to further intracranial inf ection",
that the type of injury suf fered by Donovan and which led to the
attack of
meningitis was-
"well known in its ability to be the portal of entry for intracranial infection
even at a much later date. The osteoplastic approach
to the repair of this
defect is a very significant reality as
the
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44.
chance of infection via this route in the total lifespan ahead of this young man
is high although definitely not a certainty."
For
all these reasons there is in my view no basis for interfering with the award
made by the trial court.
Finally, it is necessary to refer to the question of
why the trial court, in granting leave to appeal, decided that leave should be
granted to appeal to this Court. In his judgment on the applicatioh for leave to
appeal, the learned judge stated that the defendant's
counsel had urged that the
matter was of such a nature that it should be dealt with by the Appellate
Division particularly in regard
to the method of assessing contingencies and the
method of applying deductions and that he did not
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45.
understand the plaintiff's counsel to seriously dispute this contention. The
learned trial judge, without any further reasoning, granted
leave to appeal to
this Court. There is, in my view, no merit in the argument advanced to the trial
court by the defendant's counsel.
The legal principles applicable to the issues
which arise in this case have all been clearly defined and it was merely a
matter of
applying the facts to the law. This is certainly not a case which
warrants the attention of this Court and leave should accordingly
have been
granted to a full court of the Transvaal Provincial Division or the
Witwatersrand Local Division. The appeal is dismissed
with costs.
G FRIEDMAN AJA.
HOEXTER JA)
VAN HEERDEN JA) Concur.
MILNE JA)
EKSTEEN JA)