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[2024] ZAECMHC 63
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Mdlaka v MEC for the Department of Health Eastern Cape Province (2645/2010) [2024] ZAECMHC 63 (15 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO. 2645/2010
In
the matter between:
BUYISWA
MDLAKA
PLAINTIFF
and
MEC
FOR THE DEPARTMENT OF HEALTH
EASTERN
CAPE PROVINCE
DEFENDANT
JUDGMENT
Rugunanan
J
[1]
This is an action for damages following the
negligence of the defendant’s employees during their treatment
of the plaintiff
at Bedford Orthopaedic Hospital in Mthatha.
[2]
On 12 May 2010, the plaintiff, then 37 years of
age, was admitted to Bedford hospital as an in-patient for a
girdlestone procedure
of the left hip. The ailment arose from her
prior involvement in a motor vehicle accident in 1997 (the accident).
Following the
insertion of a drip cannula in the area of her left
elbow, the plaintiff’s arm darkened in colour and became
grossly swollen.
She was transferred on the same day to Nelson
Mandela Academic Hospital, followed by a further transfer to Mthatha
General Hospital.
It was established that an obstruction of the
brachial artery had developed in consequence of the improper
insertion of the cannula
and resulted in necrosis of the left
forearm.
[3]
The condition necessitated amputation of the left
arm above the elbow on 18 May 2010 (the negligence).
[4]
Though not exactly clear from the contents of the
court file, I was informed from the bar that liability for the
negligence was
conceded by the defendant sometime during 2021.
Furthermore, on 3 August 2023, by order of this court, the plaintiff
received an
interim payment of R1 800 000 for future medical
expenses and treatment.
[5]
In issue is the proof and quantification of the
plaintiff’s heads of damages. These include:
General
damages
R2 800 000
Past
and future medical expenses
R3 500 000
Loss
of income
R3 500 000
Gardening
assistant
R1 583 980
[6]
The evidential matrix comprises of the oral
testimony of two witnesses – the plaintiff (who testified in
isiXhosa with the
assistance of an interpreter) and Mr Lance Marais,
an industrial psychologist who testified for the defendant.
[7]
Mr Marais prepared a report dated 31 July 2023 in
which he assessed and evaluated the plaintiff’s earning
potential following
an interview conducted with her on 30 March 2023.
His professional qualifications and experience were not disputed.
[8]
He confirmed the contents of his report without
deviation.
[9]
Prior to having filed the report by Mr Marais, the
defendant engaged an expert in a similar field, Mr Sabelo Gumede,
whose report
dated 25 May 2022 was filed on 23 November 2022. Relying
instead on the report by Mr Marias, the defendant led no testimony
from
Mr Gumede. His report, contrary to the submission by plaintiff's
counsel that it supported the plaintiff’s case, had no
evidential
weight – it being untested opinion evidence.
[10]
The plaintiff also filed a report by industrial
psychologist, Ms Busisiwe Pepu. She prepared a joint minute together
with Mr Marias.
The minute contains no recordial of agreed facts
and only served to accentuate their opposing views – but due to
the
absence of testimony from Ms Pepu, it deserves no detailed
analysis.
[11]
Ms
Pepu was in attendance on the first day of trial when the plaintiff
testified. It is the usual practice for an expert witness
to be
called after a witness of fact
[1]
.
To the surprise of the plaintiff’s legal representatives, Ms
Pepu was unavailable the following day. She belatedly notified
them
that she was undertaking travel abroad. Absent agreement between the
parties that her report may be admitted into evidence
without formal
proof, her conclusions assume no weight in these proceedings, and as
with those of Mr Gumede, are tantamount
to untested opinion
evidence.
[12]
The joint minute concluded between Ms Pepu and Mr
Gumede on 18 November 2022, likewise assumes no relevance save
to mention
that it was repudiated by the defendant as reflected in
the minutes of a pre-trial conference filed on 5 December 2023.
[13]
The remaining material comprising of additional
joint minutes by various other experts namely, orthopaedic surgeons,
psychologists,
occupational therapists, and orthotists and
prosthetists will be addressed where relevant to the heads of damages
dealt with below
– it being agreed by the parties in the
minutes of a pre-trial conference that the joint findings of these
experts are relevant
for determining the quantum issue.
Loss of earnings
[14]
The formulation of the claim under this head
appears in the particulars of claim as follows:
‘
16.4
Estimated future and potential loss of income calculated in line with
[the plaintiff’s] future income earning capacity
which the
injuries have negatively affected as her functional capacity,
vocational potential and orthopaedic and musculoskeletal
and/or
neurological deficits, apparent until the last day she was expected
to normally retire from employment, and such is in the
total sum of
R5 600 000.’
[15]
At the commencement of the trial counsel for the
plaintiff clarified that the claim being pursued is for loss of
earning capacity.
[16]
In
theory this refers to an individual’s ability to earn money.
[2]
In claims of this nature, the quantification of the monetary value of
the loss of earning capacity presents difficulty.
[3]
In familiar language, it involves a prediction as to the future
without the benefit of crystal balls, soothsayers, augurs or
oracles.
[4]
The value of the
loss is not determined on impulse or guesswork, but on a logical
basis.
[5]
Proof of probable
future income is the best proof of the individual’s earning
capacity.
[6]
[17]
In
Road
Accident Fund v Kerridge
[7]
the Supreme Court of Appeal formulated the method for assessing loss
of this nature in the following terms:
‘
Any
claim for future loss of earning capacity requires a comparison of
what a claimant would have earned had the accident not occurred,
with
what a claimant is likely to earn thereafter. The loss is the
difference between the monetary value of the earning capacity
immediately prior to the injury and immediately thereafter. This can
never be a matter of exact mathematical calculation and is,
of its
nature, a highly speculative inquiry. All the court can do is make an
estimate, which is often a very rough estimate, of
the present value
of the loss.
Courts
have used actuarial calculations in an attempt to estimate the
monetary value of the loss. These calculations are obviously
dependent on the accuracy of the factual information provided by the
various witnesses.’
[18]
The first sentence in the above quotation requires
proof of:
(a)
the
plaintiff’s future income without the negligence, and
(b)
her future income having regard to the negligence.
[19]
The standard of proof is on a balance of
probabilities.
[20]
It is
unnecessary to extrapolate the method of assessment beyond this
formulation
[8]
since the
plaintiff, for reasons to follow, has on her own version not
discharged the requisite onus.
[21]
There is no dispute that the plaintiff was
involved in the accident in 1997 as a result of which she received
and continues to receive
a permanent disability grant. It is also not
in issue that prior to the negligence the plaintiff, for most of her
working life,
was employed as a domestic worker in Durban.
[22]
During her testimony the plaintiff disclosed that
she did not resume domestic employment following the accident. She
testified that
it was a personal decision not to resume employment in
that capacity – there was no one to look after her home in
Buhlanyanga
(a settlement in the Eastern Cape) and, in any event, the
money that she drew from the disability grant was sufficient to
maintain
her. She also stated that she applied for grant assistance
because the disability occasioned by the accident precluded her from
resuming her employment. In the period 1997 following the accident
but prior to the negligence in 2010, she was able to perform
her own
household chores such as cooking, cleaning and doing laundry, though
at times she required assistance from her sisters.
After the
negligence she required use of a walking stick because the loss of
her arm affected her balance and rendered her unable
to function
normally and to perform her chores. She now permanently employs a
domestic assistant, but requires additional assistance
from someone
to plough her homestead which she estimates is the size of a soccer
field on which maize is planted. She did not state
whether the
domestic assistant is employed on a part-time or full-time basis.
[23]
In summary, the plaintiff’s evidence
indicates that prior to the accident she was employed in a domestic
capacity. Since 1997
subsequent to the accident she did not resume
employment and settled at home doing her own chores while receiving a
disability
grant. She required grant assistance because the
disability occasioned by the accident precluded her from resuming her
employment.
Subsequent to the negligence in 2010 she is no longer
able to function in the aforementioned capacity. From her own version
it
is evident that the plaintiff has effectively been unemployed
since 1997.
[24]
It is on the basis of this version, and the
unconfirmed report by Ms Pepu, that the plaintiff endeavoured to
present a pleaded case
that her loss was occasioned by the negligence
in 2010.
[25]
The fallacy with this approach is that it is
nowhere apparent in the plaintiff’s own testimony, as a primary
factual witness,
that she would have continued with employment to
earn an income as a domestic employee had the negligence not
occurred. She made
a decision not to resume employment following the
accident. Her choice to do so preceded the negligence. It cannot,
without the
relevant factual foundation being laid, translate into a
likelihood that she would have continued with or resumed earning an
income
from such employment had the negligence not occurred. That
likelihood cannot be found to be in the plaintiff’s favour,
even
as a matter of inference. Nor can it redound to her benefit
where Mr Marais indicates in his report that had the negligence
incident
not occurred plaintiff would have continued to have been
employed as a domestic worker until retirement at age 60.
[26]
Where
the relevant factual substrate has not been laid by the plaintiff,
the opinion by Mr Marais on the issue is not the product
of logical
reasoning
[9]
and is speculative.
[27]
On this analysis, the plaintiff has not laid the
foundation for determining her future income but for the negligence.
She has not
overcome the first hurdle in the
Kerridge
formulation.
[28]
As for the second hurdle, entailing proof of
income having regard to the negligence, the plaintiff has not
succeeded in surmounting
it for the following reasons.
[29]
In cross-examination she had no difficulty
admitting that she drew on a disability grant because the accident
rendered her disabled.
In dealing with the plaintiff’s
employment history, the report by Mr Marais indicates that in the
period 1995 to 1997 she
worked for a family as a household baker.
Following the accident, and during 1997 to 2005 she was unemployed
but received a permanent
disability grant. Since 2005 until 2010 she
was employed at a rate of R50 per day as a domestic aide in several
households. This
history indicates that the plaintiff, while being
the recipient of disability assistance, was employed prior to the
negligence.
It contradicts her evidence that she chose to stay at
home. It is highly improbable that Mr Marais could have manufactured
it.
In the timeline since the accident in 1997, Mr Marias concluded
that the plaintiff was already unemployable prior to the negligence.
The negligence merely exacerbated her previously compromised
condition which is ascribed to the accident for which she has, to
date, been drawing a disability grant, and has therefore suffered no
loss.
[30]
The facts informing the conclusion by Mr Marais
are not inconsistent with the plaintiff’s own version that she
was disabled
following the accident. In that respect there are
no conflicting versions between the parties save for the plaintiff’s
employment history charted by Mr Marias. It is however self-evident,
that the probabilities emerging from the plaintiff’s
evidence
indicate that her earlier compromised condition has merely been
further exacerbated by the negligence.
[31]
On her own version, the fact is that plaintiff has
since 1999 been receiving income in the form of a disability grant.
[32]
It has not been shown that she has suffered loss
directly as a result of the negligence.
[33]
The opinion by Mr Marais that the plaintiff was
rendered unemployable prior to the negligence is not anything new or
revealing to
advocate an argument that his report and testimony was
of assistance to this court. In fact, he conceded in
cross-examination that
he did not have access to all the medical
records of the plaintiff’s application for disability
assistance and could not
have readily made that deduction. In my view
there was no need to have called him to testify once it became clear
at the close
of the plaintiff’s case that her evidence was
materially deficient, and was unsupported by Ms Pepu.
[34]
In the circumstances the plaintiff, though
considered a satisfactory witness, has not discharged the requisite
onus.
[35]
This flows from her own evidence.
Non-patrimonial loss
(general damages)
[36]
In
practice this is loosely referred to as general damages in terms of
which compensation may be recovered for pain and suffering,
discomfort, shock, disfigurement, and loss of the amenities of
life.
[10]
These are subjective
considerations, hence the role of human consciousness, sensation or
emotions are not insignificant in assessing
loss of this nature.
[11]
In ascribing a value to the loss, the subjective experience of a
plaintiff (usually established through evidence by the plaintiff)
is
indispensable to the exercise.
[12]
[37]
In
terms of rule 18(10) of the Uniform Rules of Court, a plaintiff suing
for damages for personal injury (which includes compensation
for
non-pecuniary loss) must specify
inter
alia
the
nature and extent of the injuries and disfigurement as well as the
nature, effects and duration of the resultant disability.
[13]
[38]
Quoting only where relevant in the amended
particulars of claim, the material averments of plaintiff’s
pleaded case are set
out as follows:
‘
11.
The plaintiff’s injury has resulted [in] a permanent disability
of her left arm with such degenerative changes and at
this point in
time with or without treatment her condition cannot be salvaged …
12. Due to this permanent
condition the plaintiff had to completely break off from employment
as a result of her inability to hold
[or] grip objects … The
condition of her left arm is the major overriding reason why the
plaintiff has severe ongoing pain
and the long term restrictions in
performing physical activities …
13. The plaintiff endured
emotional and psychological trauma …
…
15. [T]he plaintiff
experienced severe intense pains which she continues to endure,
continuous discomfort and not being able to
perform daily activities
and enjoyment of life giving rise to loss of amenities of life.
16. Consequently, to the
extent that the injuries impacted on the plaintiff’s daily and
potential life activities the plaintiff
claims …
16.1 General damages for
pain and suffering and discomfort giving rise to loss of amenities of
life, loss of ability to bath herself
and perform other personal
grooming as a woman and keep herself attractive to members of the
opposite sex, including ability to
be intimate with a partner of the
opposite sex.’
[39]
The expert reports by orthoptist and prosthetist,
Mr Roland Toogood; orthopaedic surgeon, Dr P Olivier; and Dr M
Noqamza, a clinical
psychologist, all of which are attached to the
particulars of claim in support of these assertions were not admitted
by the defendant
save for their joint minutes that were dealt with in
the earlier-mentioned pre-trial conference.
[40]
The evidence on which the plaintiff’s
non-patrimonial loss falls to be assessed is lean. Except for having
testified of her
inability to do her own household chores which she
previously did without much assistance, no evidence was led to give
content
to, or to substantiate the material averments pleaded on her
behalf. I accept that she must have suffered pain and discomfort as
a
consequence of the botched insertion of the cannula, and as a result
of the amputation of her arm. The severity of her pain and
discomfort
and the duration for which she endured these symptoms is unknown. The
plaintiff testified only that her balance is affected
and that she is
reliant on a walking stick.
[41]
Focus shifts to the joint minutes.
[42]
The
occupational therapists
[14]
document the existence of reduced left shoulder flexion and abduction
with reduced strength in the relevant muscle groups. They
noted
further that the plaintiff is right handed and is able to execute her
activities of daily living. These are not specified.
The orthopaedic
surgeons recommend refashioning of the soft tissue surrounding the
bony stump of the plaintiff’s left arm.
The procedure will
occasion further pain and discomfort. The clinical psychologists
opine that the plaintiff presents with depressive
symptoms,
post-traumatic stress disorder and adjustment disorder. While they
opine that this may be attributed to an unspecified
but pre-existing
head injury, nothing of which is known, my sense is that the ‘thin
skull rule’ applies.
[43]
The aforegoing presents the sum totality of the
evidential framework for assessing damages. The exercise is
discretionary, and even
if the ultimate result is an informed guess,
fairness is the dominant norm.
[44]
I was
referred to present day inflation adjusted awards
[15]
in several cases dealing with loss of an upper limb. Some are
reported in the South African Law Reports, others in Corbett and
Honey’s,
The
Quantum of Damages in Bodily and Fatal Injury Cases
[16]
.
[45]
The cases are:
Smith v Road
Accident Fund
(R750 000)
King
v Geldenhuys
(R1 033 000)
Mokhethi
v MEC for Health, Gauteng
[17]
(R1 200 000)
Rens v MEC for
Health: Northern
Cape Provincial
Department of Health
(R1 287 000)
Cheney v Eagle
Star Insurance
Company Limited
(R1 300 000)
Blyth v Van Den
Heever
(R1 700 000)
Pheko
v Maine
(R2 540 000)
[46]
The cases are not entirely dissimilar from the
present case and are no more than a general guide as to what the
courts have regarded
as appropriate awards for upper limb amputees.
It is rarely, if ever, that two cases are on all fours, but I think
the cases define
a very wide parameter (R750 000 to R2 540 000)
for determining an award in this case. For the defendant it was
submitted
that R950 000 would be fair. On the other hand it was
submitted for the plaintiff that R1 500 000 would be
appropriate.
The reach between these limits does not show a
significant disparity between the parties’ respective views for
assessing
the plaintiff’s damages. On the one hand the paucity
of evidence does not justify awarding an amount of R950 000, nor
does it on the other hand justify an award at the upper limit of
R1 500 000 which I think is excessive. Anything else
exceeding that limit would be overgenerous.
[47]
It seems to me that fixing general damages at
R1 200 000 would be fair and reasonable.
Future medical
expenses
[48]
The plaintiff’s medical and related costs
under this head are not pleaded in accordance with the prescripts of
rule 18(10)
(a)
which
requires that medical, hospital and similar expenses be set out so as
to enable a reasonable assessment thereof.
[49]
The claim appears to be formulated on the
recommendations by Mr Toogood for the supply of prosthetic and
therapeutic goods. It also
includes the cost of therapeutic and
psychotherapeutic intervention without specifying what these entail
or identifying the clinician
by whom such interventions are
recommended.
[50]
The
quantification of the claim appears in a calculation
[18]
jointly by actuaries Ms J Valentini and Mr G Du Toit, respectively
for the plaintiff and the defendant, in which the categories
of
future medical expenses, prosthetic requirements and assistive
devices are set out in accordance with the recommendations by
the
occupational therapists
[19]
,
the orthopaedic surgeons
[20]
,
the clinical psychologists
[21]
,
and the orthotists and prosthetists
[22]
.
[51]
For ease of reference the relevant extract from
the calculation is incorporated at the end of this judgment. It will
be observed
that the extract comprises of two columns incorporating
comparative calculations by Ms Valentini and Mr Du Toit
postulated
on the recommendations by the experts aforementioned.
[52]
The defendant fairly conceded the following
expenses:
Orthopaedic surgeons
(items 42 to 45)
R90 070
(per Ms Valentini)
Clinical
psychologists
(item 47)
R56 040
(per Ms Valentini)
Orthotists and
prosthetists
(items 48 to 51)
R2 305 219
(per Mr Du Toit)
Occupational
therapists
(item 4 aeroplane
splint)
R56 705
(per Mr Du Toit)
Occupational
therapists
(item
39 domestic assistance)
R368 310
(per Ms Valentini)
[53]
In
relation to the recommendations by the occupational therapists, it
will be noted that the defendant’s concessions are limited
only
to items 4 and 39. For the rest of the items incorporated in the
calculations by Ms Valentini (i.e. items 5 to 39)
[23]
,
the joint minutes by the occupational therapists reflect
disagreement. It was correctly pointed out in argument that it is not
possible to for the court to determine and assess those
recommendations without the plaintiff having led evidence thereover.
[54]
Their validation requires proof, of which there is
none.
[55]
It will be noted that some of the items allowed
for by both occupational therapists are duplications (i.e. items 1,
2, 3, 39, and
40). These were never clarified by the plaintiff
herself nor by leading expert evidence. The further provision for a
washing machine
and tumble dryer (item 9) is inherently a duplication
of the award contemplated for the provision of ‘domestic
assistance’
(item 39) and ‘full-time domestic assistant’
(item 40).
[56]
The calculation at item 41 incorporates provision
for ‘gardening and house maintenance’. As correctly
pointed out in
argument, this is not supported by the plaintiff’s
evidence. She testified that she required someone to plough her land
and
that this is an annual expense. All indications are that this is
not an expense occasioned by the negligence. It was, however,
submitted for the defendant that provision for a domestic assistant
three times a week calculated by Ms Valentini in the amount
of
R368 310 (item 39) would not be unreasonable.
[57]
Before summarising the award to the plaintiff,
there is the additional issue regarding a deduction for
contingencies. The plaintiff
submitted that a contingency factor of
5% to 15% should be applied whereas the defendant contended for 25%
on the basis that the
award for assistive devices and a domestic
assistant will significantly ameliorate the prejudicial effects of
the negligence and
sequelae of the plaintiff’s compromised
state. I agree with this submission but am of the view that a 20%
deduction would
not be unreasonable.
[58]
The plaintiff’s future medical expenses
including domestic assistance are awarded as follows:
Orthopaedic surgeons
R90 070
Clinical
psychologists
R56 040
Orthotists and
prosthetists
R2 305
219
Occupational
therapists – aeroplane splint
R56 705
Occupational
therapists – domestic assistance
R368 310
Subtotal
R2 876
344
Less
interim payment
R1 800 000
Subtotal
R1 076
344
Total (less 20%
contingencies)
R861 075
[59]
In summary, the damages awarded to the plaintiff
are in the amount of R2 061 075 calculated as follows:
General damages
R1 200 000
Future medical
expenses inclusive of
domestic assistance
R861 075
Total
R2 061 075
[60]
What remains the issue of costs. The matter
proceeded to trial on 13, 14 and 16 May 2024 with the plaintiff being
the only witness
who testified on 13 May 2024 in support of her case.
The proceedings on 14 May 2024 were wholly dedicated to the claim for
loss
of income earning capacity when Mr Marias testified. Because the
plaintiff did not establish her claim under this head, counsel
for
the defendant urged that the claim be dismissed with the costs of the
day being awarded to the defendant. I disagree.
Counsel for the
defendant had conduct of the matter – they knew what the issues
were, and once the plaintiff had testified
it was obvious from her
own version that she did not discharge the onus on the claim for loss
of earning capacity – even
more, when Ms Pepu failed to
testify. For reasons already dealt with, the evidence of Mr Marais
did not assist this court. There
was no necessity to have called him
to testify once it became obvious that the plaintiff’s claim
under this head was not
proven.
[61]
The determination as to the costs for 14 May 2024
is reflected in the order below.
[62]
Plaintiff’s counsel, on the other hand,
contended in the overall for costs on an attorney and client scale
primarily because
the defendant was dilatory in not initiating early
settlement of the case. The argument is fanciful. A chronologically
detailed
rendition of the conduct of the matter with reference to
developments which ought to have been dealt with in the pre-trial
minutes
was not proffered, nor was any indication given as to whether
the question of settlement was elevated to case management. Except
for excluding 14 May 2024, an award of costs on the usual scale is
eminently reasonable. Last, is the question concerning the employment
of Ms Pepu, for which plaintiff’s counsel sought costs from the
defendant. One cannot be expected to speculate on the relevance
of
her report or her testimony. The fact of the matter is that she did
not testify. Her costs are to be borne by the plaintiff.
[63]
In the result, I make the following order:
1.
The defendant is ordered to pay the plaintiff the
amount of R2 061 075.00 as and for damages.
2.
The defendant shall pay interest on the
aforestated amount at the prevailing legal rate from date of judgment
to date of payment.
3.
The defendant shall pay the plaintiff’s
costs of suit for 13 and 16 May 2024 on a party and party scale,
which shall include:
3.1 Counsel’s fees
on scale B of rule 69 of the Uniform Rules of Court.
3.2 The costs of reports,
qualifying expenses if any, and joint minutes in respect of
plaintiff’s experts, barring Ms Busisiwe
Pepu.
4.
The costs shall include interest at the prescribed
legal rate from a date 14 days after allocator to date of payment.
5.
Each party shall bear their own costs for 14 May
2024.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiff:
D
Skoti
, Instructed by SB Bavu Incorporated, c/o M Hlazo
Attorneys, Mthatha 043-531 1771 (Ref:
S Bavu
).
For
the Defendant:
J
Hobbs
with
L
Sambudla
, Instructed by The State
Attorney, Mthatha (Ref 63/11-A1
M
Shumane
).
Dates
heard:
13,
14 and 16 May 2024.
Date
delivered:
15
August 2024.
[1]
Road
Accident Fund v Madikane
[2019]
ZASCA 103
para 3.
[2]
Visser and Potgieter
Law
of Damages
,
Juta 3rd ed at p464.
[3]
Terblanche
v Minister of Safety and Security
2016
(2) SA 109
(SCA) para 14.
[4]
Southern
Insurance Association Ltd v Bailey
N.O.
1984 (1) SA 98 (A).
[5]
Goldie
v City Council of Johannesburg
1948
(2) SA 913 (W) 920
[6]
Visser and Potgieter p464 fn 96.
[7]
Road
Accident Fund v Kerridge
[2018]
ZASCA 151
paras 40-41.
[8]
The complete formulation is summarised in Visser and Potgieter
op
cit
at
p469 as follows:
(a)
calculate the present
value of the future income which the plaintiff would have earned but
for his or her injuries and consequent
disability;
(b)
calculate the present
value of the plaintiff's estimated future income, if any, having
regard to his or her injuries and disability;
(c)
subtract the figure
obtained in
(b)
from that obtained under
(a)
;
(d)
adjust the figure
obtained as a result of this subtraction in the light of all
relevant factors and contingencies.
[9]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft fur
Schadelingsbekampfung MBH
1976
(3) SA 352
(A) at 371F-G where it is stated: ‘[A]n expert’s
opinion represents their reasoned conclusion based on certain facts
or data, which are either common cause, or established by their own
evidence or that of some other competent witness. Except
possibly
where it is not controverted, an expert’s bald statement of
their 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.’ See also the
full court appeal judgment in
Mbizo
v Old Mutual Life Assurance Company (SA) Ltd
,
Unreported Mthatha Case No. 3365/2017 delivered 14 May 2024,
emphasising that an expert may only draw inferences from facts,
and
that before any weight can be given to an expert’s opinion the
facts upon which the opinion is based must be found
to exist (paras
13-17).
[10]
Visser and Potgieter
op
cit
p497.
[11]
Visser and Potgieter
op
cit
p105.
[12]
Visser and Potgieter
op
cit
p507.
[13]
See generally Visser and Potgiter
op
cit
p497-498.
[14]
Joint minutes, 10 October 2022.
[15]
In 2024 Rand values.
[16]
Volumes I, II, III, IV, V and VI.
[17]
2014 (1) SA 93 (GSJ).
[18]
Dated 29 November 2022.
[19]
Ms P Mdlokolo and Ms A Vimbani, respectively for the plaintiff and
the defendant.
[20]
Dr P Olivier and Dr G Mthethwa, respectively for the plaintiff and
the defendant.
[21]
Dr M Nqamza and Dr N Nkwanyana, respectively for the plaintiff and
the defendant.
[22]
Mr R Toogood and Mr B Nothling, respectively for the plaintiff and
the defendant.
[23]
These being based on the recommendations by Ms Mdlokolo, the
plaintiff’s occupational therapist.