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[2024] ZAFSHC 342
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Maris v Road Accident Fund (A49/2023) [2024] ZAFSHC 342 (18 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF
SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number: A49/2023
In
the matter between:
WILLEM
PIETER
MARAIS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
VANZYL
et
REINDERS,
JJ
et
MAJOSI,
AJ
JUDGMENT
BY:
REINDERS,
J
HEARD
ON:
19 APRIL 2024
DELIVERED
ON:
18 OCTOBER
2024
This
judgment was handed down in open court and distributed to the parties
via electronic mail communication.
[1]
This is an
appeal against the order and judgment granted by a single Judge of
this Division (hereafter the trial judge or the trial
court) on 12
September 2022. The appeal came before us with leave from the Supreme
Court of
Appeal.
[2]
The appellant
in his notice of appeal dated 6 April 2023 relied on several grounds
of appeal in respectfully
averring that
the learned trial judge had erred. Counsel for both parties provided
us with able and comprehensive heads of argument
for which we are
indebted, and proffered compelling arguments in submission before us.
It is common cause that, prior to the commencement
of the trial
and at the proverbial doorsteps of the court, the parties verbally
agreed to
certain terms (the settlement) regarding the issues to be determined
by the trial court with a view of curtailing the
proceedings,
and informed
the trial judge thereof. In our view the overarching question evident
from the criticism levelled by the appellant,
is whether the trial
judge had erred by adjudicating issues outside the ambit of what had
been agreed upon between
the parties
prior
to
the commencement
of the trial.
Put differently, whether the trial court had erred by not confining
its
adjudication
of the issues
to be determined,
to the
settlement between the parties. During argument before us it was
submitted by the appellant that the answer to the question
must be in
the affirmative,
whilst the
respondent submitted that the judgment and order of the trial court
cannot
be
faulted
.
[3]
The appellant
as plaintiff
issued
summons
as a result of
a motor vehicle collision that occurred
on 7 August
2015
on
the R702 road between Dewetsdorp and Bloemfontein
.
[4]
According to
the amended particulars of claim (the particulars) the respondent is
the Road Accident fund who in terms of
s 17
of the
Road Accident Fund
Act 56 of 1996
, as amended, (the Act) is liable to pay appellant for
the damages he proves that the has suffered
.
As is clear
from the above, the appellant is the plaintiff and the respondent is
the defendant in the aforementioned action. For
sake of convenience,
I intend to
refer to the parties as in this court.
[5]
In his
particulars,
the
appellant
averred
that the
collision
was
caused
by
the sole
negligence of the insured driver on the grounds as stated in the
particulars. He averred that as a direct result of the
collision, he
sustained physical injuries as
it
appears
from
the
medico-legal
report
compiled
by
orthopaedic
surgeon
which
was attached to the particulars
.
It is further
averred that, as a result of the collision and subsequent injuries,
he suffered damages in the amount of R 6 883 196.42
which consisted
of past medical and hospital expenses, future medical and hospital
expenses, past and future loss of income (calculated
to be R 4 621
300-00) and general damages in the amount of R 500 000-00.
[6]
The Respondent
filed a plea and save for admitting that it is the Road Accident Fund
in terms of the Act, that a collision occurred
and its failure to pay
the claimed amount, denied the allegations in the particulars.
[7]
The minute of
a pre-trial meeting held between the parties on 28 September 2021
reveals that the respondent conceded that it is
liable for payment of
100% of appellant's proven or agreed damages
.
What was
required from the trial court was to adjudicate the quantum of the
appellant's damages.
[8]
It is indeed
common cause that the merits of the case were separated from the rest
of the issues, and on 25 April 2019 Mathebula
J granted judgment on
the merits (100%) in favour of the appellant. This was followed by an
order (by agreement) of Daffue J on
4 April 2022 settling the
plaintiff's claim for general damages,
an undertaking
by the
defendant
in
terms of
sec 17(4)(a)
of the Act for
future hospital and medical expenses and an interim payment in the
amount of R 1 000 000-00 in respect of appellant's
claim for past and
future loss of earnings.
[9]
The matter was
ultimately enrolled for 19 and 20 July 2022 and served before the
trial court. According to the record, reports of
the following
experts were admitted into evidence: Dr JJ Schutte (general surgeon),
Dr LF Oelofse (orthopaedic surgeon), Addendum
medico-lego report
compiled by Dr LF Oelofse and Dr MD Deacon (orthopaedic
surgeons), Ms
L van Zyl (occupational therapist), Munro Forensic Actuaries
(actuarial report) and that of Dr EJ Jacobs (industrial
psychologist). The record reveals that appellant's counsel on 20 July
2022 informed
the trial
court
that
the expert reports,
including
the report of
the actuary,
was
admitted
by
the
respondent
save
for
the
contingencies
to
be applied and
the report of Dr E Jacobs, the industrial psychologist.
[10]
The record reveals
the following:
'MR
ZIETSMAN:
Thank
you M'Lady, the Road Accident Fund has indicated, or let me put it
differently, my learned colleague has indicated that she
received
instructions from the defendant the Road Accident Fund to proceed
with this case on the basis that the reports as I have
previously
placed on record including the report of Monro Actuaries are admitted
into evidence safe for the contingencies to be
applied and this
agreement obviously does not include the aspects of Dr Jacobs
verslag
as I have
already indicated also this morning in court, so yes and we are ready
to proceed
on
that basis, we also agreed the fund has indicated that they are not
going to call witnesses and they will argue the contingencies
at the
end of the case. It is for that reason M'Lady, we will present the
evidence, the parties will then, both parties will close
their case
after I have presented the evidence for the plaintiff
...
'
[11]
The court was
thus informed that appellant
was to proceed
with the matter on the aforementioned basis and that the respondent
was not going to call any witnesses and would
argue the contingencies
at the conclusion of the matter. Certain procedural arrangements
were discussed
pertaining to the preparation of heads
of argument
and a
postponement
to argue
the matter.
On a question
of the trial judge
to the
respondent's
legal
representative, the latter confirmed the aforementioned
communications. According to the appellant (and is evidenced from
the
record) the limited issue raised by the respondent with regards to
the industrial psychologist's report turned on incapacity
procedures
followed by the plaintiff before he resigned
and the
question
of
what would be the consequences had the appellant, before he resigned,
followed any internal remedies of his employer. The appellant
then
testified, whereafter Dr Jacobs was called as a witness for the
appellant and confirmed his report.
Both the
appellant and respondent closed their cases.
[12]
The
appellant's career path was not in dispute. At the time of the
accident,
he
had been employed with the Department of Public Works for a period of
30 years, and at that date as a construction project manager.
Post-accident, after having been discharged from hospital, he
returned to work for a period of two years, but resigned in 2017.
He
started a handyman business with his son, but terminated his position
herein (in a supervisory position) in 2019 and had since
been
unemployed.
[13]
The common
cause medical evidence was the reports of experts filed by the
plaintiff and admitted into evidence by the trial court.
The
orthopaedic surgeon Dr Oelofse diagnosed injuries to the cervical
spine, lumbar spine, right shoulder and left knee. He confirmed
that
after appellant had returned to work following the accident, he
struggled to execute his work-related tasks, particularly
when doing
inspections on building sites with tasks such as climbing ladders and
getting into a roof, using his hands above his
head when inspecting
ceilings and lifting heavy loads when doing the sampling due to pain
in his right shoulder. Due to daily headaches
he struggled to
concentrate with administrative work. The occupational therapist's
report was likewise common cause and admitted,
which included her
opinion that as a result of the injuries suffered by appellant, he
could not perform his post-accident work
as a construction project
manager nor is he suited to perform aspects of light work in a
supervisory role of his handyman's business.
The injuries sustained
would have a negative impact on appellant's productivity and
workability and as a result he is an unfair
competitor in the open
labour market and he should not perform work exceeding sedentary
work. Appellant is disadvantaged in the
competitive workplace in
respect of efficiency and effectiveness, compared to uninjured
persons. As mentioned, the aforementioned
was common cause between
the parties. The industrial psychologist testified viva voce. His
uncontested evidence is that it is highly
unlikely that appellant
would obtain and sustain a sedentary position requiring some
administrative capacity and skills and although
the orthopaedic
surgeon suggested a three-year early retirement, Dr Jacobs was of the
view that appellant would remain unemployed
for the remainder of his
career.
[14]
The actuarial
calculation was conducted by Munro Actuaries and based on the actual
common cause earnings
of the
appellant and the report of Dr Jacobs. The actuarial calculation was
not in dispute, save for the contingencies to be applied.
[15]
The trial
court ultimately issued the following
order:
'1.
Absolution
from
the instance is ordered.
2.
Leave
is
granted
for the plaintiff to proceed
on his
claim on the
same
papers duly amplified should he be
so
inclined.
3.
Each
party to pay their own
costs.
4.
The
plaintiff's
claim
for
past medical
and
hospital expenses
is
postponed
to the
pre-trial roll of 24 October 2022: 14h15.'
[16]
In a
comprehensive
judgment the
trial court found that the appellant caused his own loss by resigning
from his
employment and that there is a lack of evidence to prove a causal
link between the injuries sustained and loss suffered
by the
appellant. The resignation by the appellant from his employment was
considered to
be a
novus
actus interveniens.
[17]
In
Filta
-Matix
(Pty)
Ltd v Freudenberg
&
Others
[1]
the
principle
was
stated that a party is bound by
an
agreement
to
limit the ambit of its case and will not be allowed, save in special
circumstances, to resile
from
an agreement.
[18]
Since
the judgment of the trial court was delivered, the Constitutional
Court in
Mafisa
v Road Accident Fund and Another
[2]
has
repeated and ordained how a trial court should evaluate, consider and
deal with issues between litigating parties. Although
not on all
fours with facts of this appeal (the Constitutional Court held the
application to concern whether a court may unilaterally
amend a
settlement agreement concluded by litigating parties), the legal
principles enunciated in respect of agreements finds application.
[19]
In
discussing
the
principles relating to a compromise,
the
following was held:
[3]
"The
High Court in
Le Grange
cited the statement made by the
Appellate Division in
Schierhout,
where it was said that
"[t]he law, in fact, rather favours a compromise
(transactio),
or other agreements of this kind; for
interest rei publicae ut
sit finis litium
[it is in the public interest that there be an
end to litigation]". The court's authority is limited to the
issues in the action
brought before the court and the issues that the
parties have specifically raised in their pleadings.'
and
further in paragraph [36]:
"Contractual
agreements concluded freely and voluntarily by the parties ought to
be respected and enforced. This is in accordance
with the established
principle pacta sunt servanda (agreements must be honoured)."
[footnotes
omitted]
[20]
Counsel
appearing for the appellant reiterated that the trial court, by
agreement between the parties, was simply called upon to
make a
finding in respect of the contingencies
whereafter it
was to be referred to the actuary for calculation. The court however
and notwithstanding this agreement, adjudicated
the defences even
though none of the defences were pleaded nor pursued by the
respondent in evidence, so the argument went.
[21]
There seems to
be merit in these submissions in my considered view. The evidence of
the orthopaedic surgeon and the occupational
therapist was admitted
by the respondent. Their evidence was that the appellant, post
accident, was not suited to perform
his pre-accident work as a result
of the injuries that he had sustained. Having informed the trial
judge that the
mentioned
reports as well as the report of Munro actuaries are common cause,
save for the contingencies to be applied, this evidence
should have
been accepted.
[22]
I conclude
therefore that the trial court ought to have followed the guidelines
enunciated
in
Filta-Matix
and
Mafisa
supra.
In
any
event, I
am satisfied
that the
admitted (and therefore
common cause)
facts in the expert reports, prove the appellant's case, save for the
contingencies
to be applied.
[23]
It follows
that paragraph 1-3 of the trial court's order is incorrect and should
be set aside.
[24]
We
are satisfied that this court is in a position to make the order that
the trial court should have made as it is fully appraised
of
the relevant
facts.
Although the assessment of contingencies is arbitrary and depends
upon a court's impression of the case, such discretion
should remain
a judicial discretion. In
Southern
Insurance Association Ltd v Bailey N.O.
[4]
the following principles were enunciated:
•
Any
enquiry into damages for loss of earning capacity is of its nature
speculative,
as it involves
a prediction
as to the
future. The Court can only make an estimate, which is often a very
rough estimate, of the present value of the loss.
•
Where
the method of actuarial computation is adopted in assessing damages,
it does not mean that the trial judge is tied down by
actuarial
calculations. The court has a large discretion to award what the
court considers right.
•
In
exercising that discretion one of the considerations is the making of
a discount for "contingencies" or the "vicissitudes
of
life". These include such matters as the possibility that a
plaintiff may as a result have less than a "normal"
expectation of life, may experience periods of unemployment by reason
of incapacity due to illness or accident, to labour unrest
or general
economic conditions.
•
Depending
on the circumstances
of the case,
the amount of any discount may vary. The rate of discount cannot be
assessed on any logical basis: the assessment must
be largely
arbitrary and must depend upon the trial judge's impression of the
case and may be favourable or less favourable to
a plaintiff.
[25]
The
technique of assessing damages involves consideration of relevant
events which may occur, or conditions which may arise in the
future.
Even
when it cannot be said to have been proved, on a balance of
probability, justice may require that what is called a contingency
or
allowance, be made for a possibility of that kind
[5]
.
Contingencies
will apply to the different earning scenarios, namely the uninjured
and injured. In line with the disabilities suffered,
certain risks
may attach more likely to certain plaintiffs.
[26]
The appellant
suggested that in the event the appeal finds favour with us, we
should consider
the
contingencies
to be applied
having
regard
to the
accident in respect of the injured scenario to be the following:
•
During
October 2017 the appellant received a Government Employees Fund pay
out.
•
The
actuaries have spread the lumpsum payment on an actuarial neutral
basis from the first month after retirement since it should
not be
allocated to a single year's loss. This was done assuming a monthly
amount that increases with inflation and after discounting
and mortality
gives the same present value as the lump sum.
•
The
appellant's injured earnings in the past and future scenarios include
the lump sum award already received.
•
The
actuarial calculation was done on 31 March 2021 wherefore the injured
future scenario
does not
include any injured future earnings as the appellant had been
unemployed since December 2019.
•
The
amount reflected in the injured future scenario represents only the
lump sum award already received,
apportioned
evenly over time.
•
Regarding
the past injured scenario, the amount includes the appellant's
handyman's
earnings
from October
2017 until
December
2019
and the income
from the Department
of Public
Works from date of the accident until retirement date of September
2017.
[27]
In respect of
the uninjured scenario, the contingencies
to be applied
"but for the accident", the appellant suggested that
contingencies should only be applied to the uninjured
past and
future scenario. The appellant
urged us, in
determining to contingencies, to take into account that:
•
The
Appellant was 49 years old at the time of the accident.
•
He
had 16 years remaining until retirement
age.
•
Should
the accident be disregarded no pre-existing conditions would have
prevented the appellant from earning an income in the remaining
work
years.
•
The
appellant, prior to the accident, was employed by the Department of
Public Works for 28 years.
•
The
appellant, but for the lumbar fusion, enjoyed good health and on the
available evidence his career was not at risk
.
•
The
industrial psychologist opined that the appellant would most likely
have been employed in the capacity of a project manager
at the
Department of public Works
until normal
retirement
age
of 65 years.
•
Before
the accident the appellant had a lumbar fusion, pre-existing
spondylosis of the cervical spine, signs of degeneration of
his
shoulder joint and degeneration of this left knee. He was free of
pain and able to perform physical tasks which all changed
after the
accident.
[28]
Having regard
to all the above,
the appellant
submitted
that the
so-called normal contingencies as referred to by Dr Robert J Koch's
Quantum Yearbook 2013
(at p106) be
applied
namely
5% for past
loss and 15% for future loss in the uninjured state.
[29]
Counsel
representing
the
respondent
in
submission before
us
and
in
his
heads of argument did
not seriously attack the approach of the appellant in respect of the
suggested contingencies. He, understandably
so, rather focused on and
suggested that the trial court was correct to have made the orders it
did
.
In the
judgment of the trial court (paragraph 14 thereof) the arguments
advanced by the legal representative for the respondent
in respect of
the contingencies
to be applied,
was quoted verbatim from the heads of arguments filed:
'46.
It is the
submission of the Defendant, that it cannot be held liable for the
loss suffered by a person who in no manner mitigated,
but in fact
exasperated his loss
.
The evidence
which flows from the Plaintiff's own testimony in Court, cannot
simply be ignored, and only be addressed by contingencies.
The
Defendant respectfully submit that the only fair outcome would be to
instruct the Actuary Counsel to do the following calculations:
1)
Had the
Plaintiff follow internal remedies and the employer have accommodated
him, and he continued working on the same salary and
postulations and
before the accident, with 3 years early retirement;
2)
Had the
Plaintiffs services been terminated on the basis of ill-health
retirement;
52.
(sic)
A
fair
outcome
would
lie
in
the
median
between
the
above
mentioned
calculations.
53.
Should the
Honourable Court not be inclined to make such an order, then it is
important to note that Dr Oelofse apportioned only
50% of the
sequelae of the cervical spine injuries as attributable to the
accident. He also only attributed 50% of the sequelae
of the knee
injury to the accident, considering pre-accident Osteoarthritis,
which was also present in the injured, right knee.
The Lumber spine
injury and fusion occurred prior to the accident.
54.
It would then
be the submission of the Defendant that much higher contingencies be
applied to the uninjured scenario.
55.
Dr Jacobs did
not in any manner verify the Plaintiffs alleged post-accident income,
by requesting bank statements or tax returns.
This should also be
considered by the Court when applying contingencies."
[30]
From the
aforementioned quotation it is evident that the respondent did not
dispute the fact that no contingencies should be applied
to the
injured scenario. In respect of the uninjured scenario the respondent
suggested higher contingencies than 5% for past and
15% for future
loss. Having considered the aforementioned suggested contingencies of
the appellant as well as that of the respondent
as argued in the
trial court, I am of the view that the evidence placed before the
trial court indeed calls for higher contingencies
to be applied in
respect of the uninjured scenario as submitted by respondent's legal
representative in the trial court. We deem
contingency deductions of
10% and 25% to be fair and just, and the intended order to be granted
would therefore reflect these figures
and subsequent referral for a
recalculation by the actuaries. The appellant
provided a
draft order to accommodate
for the
contingencies
to be applied
by the actuary as may be ordered by this court.
[31]
In respect of
costs, there is no reason why costs should not follow the event.
Having considered the nature of the appeal we deem
it appropriate
that the cost of counsel should be on Scale B.
[32]
The result is
that the appeal succeeds and paragraphs 1, 2 and 3 of the court order
dated 12 September 2022 is to be set aside.
I would therefore make
the following order:
1.
The appeal is
upheld with costs on Scale B, such costs to include the costs
of the
application
for leave to
appeal
before
the court a
quo and the costs of the application for leave to appeal before the
Supreme Court of Appeal.
2.
Paragraphs 1,
2 and 3 of the order dated 12 September 2022 is set aside and
replaced with the following:
'1.
The plaintiff's claim for past and future loss of earning capacity is
referred1to Munro actuaries to be calculated, within 20
days of the
date of this order, in accordance with the actuarial report dated 31
March 2022 (Ref M53899, p 189 - 194 of the expert
bundle filed of
record) which calculation is to be done with reference to date of
this order, and applying the following contingency
deductions:
Uninjured
- past 10% Uninjured - future 25%
Injured
- past 0% Injured - future 0%
2.
Upon
receipt
of
the
actuarial
calculation
the
parties are
to
approach court
to make the actuarial
calculation of the plaintiff's claim for past and future loss of
earning capacity an order of court. It is
recorded that the
aforementioned actuarial calculation will be inclusive of the R 1 000
000,00 interim payment ordered by Daffue
J on 4 April 2022.
When the
parties approach the court to make the actuarial calculation an order
of court the interim payment of R 1 000 000,00 must
be deducted from
the said actuarial calculation.
3.
The defendant
to pay the plaintiff's taxed or agreed party and party costs on the
High Court scale, until date of this order, including
but not limited
to the costs set out hereunder:
3.1.1
Dr JJ Schutte
(General
Practitioner);
3.1.2
Dr LF Oelofse
and Dr MB
Deacon (Orthopaedic
surgeons);
3.1.3
Ors van Dyk
and Partners Inc. (Diagnostic Radiologists);
3.1.4
Burger
Radiologists
Inc.
(Diagnostic
Radiologists);
3.1.5
Lucindy
van Zyl of
Rita van Biljon (Occupational
Thereapists);
3.1.6
Dr
EJ
Jacobs
(Industrial
Psychologist);
3.1.7
Munro
Forensic
Actuaries.
4.
The payment
provisions in respect of the afore going are ordered as follows:
4.1
Payment of the
capital amounts shall be made without set-off or deduction,
within 180
(hundred and eighty) calendar days from date of the granting of this
order, directly into the trust account of the plaintiff's
attorneys
of record by means of electronic transfer, the details of which are
the following:
Honey
Attorneys Bank
Branch
Code Account No. Reference
Trust
Account
Nedbank,
Maitland Street, Bfn 11023[…]
11024[…]
HL
Buchner/J03699
(please
quote the reference at all times)
4.2
Payment of the
taxed or agreed costs shall be made within 180 (hundred and eighty)
days of taxation, and shall likewise be effected
into the trust
account of the plaintiff's attorney
5.
Interest shall
accrue at 7% (the statutory rate per annum), compounded, in respect
of:
5.1
the capital of
the claim, calculated from 14 (fourteen) days from date of this order
5.2
the taxed or
agreed costs, calculated from 14 (fourteen) days from date of
taxation, alternatively date of settlement of such costs.'
C
REINDERS, J
I
concur.
C
VAN ZYL, J
I
concur
.
O
MAJOSI, AJ
It
is so ordered.
On
behalf
of
the
Appellant:
Adv
PJJ Zietsman SC
Instructed
by
:
Honey
Attorneys
BLOEMFONTEIN
On
behalf
of
the
Respondent:
Adv
MS
Mazibuko
Instructed
by:
State
Attorneys
BLOEMFONTEIN
[1]
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA) at
614
B-D
[2]
(CCT
156/22) (2024) ZACC
[3]
At
paragraph 35.
[4]
1984
(1) SA 98 (A).
[5]
See:
Burger
v Union National South British Insurance Co
1975
4 SA 72
(W) at 75.