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2024
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[2024] ZANCHC 106
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Henry v Road Accident Fund (242017) [2024] ZANCHC 106 (29 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
reportable
Case
No: 24/2017
In
the matter between:
REMON GRADWILL
HENRY
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
Neutral
citation:
Henry v
Road Accident Fund
(Case no. 24/2017) (29 November 2024)
Heard:
08 August
2024 and 12 September
2024
Delivered:
29
November
2024
Judgment
Phatshoane
DJP
[1]
Mr Remon Gradwill Henry, the
plaintiff,
instituted action against the Road Accident
Fund
, the defendant (the
Fund),
for damages in respect of serious bodily
injuries sustained as a result of
a collision
that
occurred on 22 August 2015 in Daniëlskuil, Northern Cape, when a
motor vehicle driven by a certain E Swartz collided with
him when he
was a pedestrian. The Fund conceded liability for 100% of the proven
damages Mr Henry suffered.
[2]
Mr Henry sustained the following bodily injuries which are not in
dispute: a closed head injury
with probable concussion (a brain
injury presenting with hemiparesis), multiple facial fractures and a
bladder contusion, a fracture
of the pelvis, an open fracture of the
left tibia and fibula, and a fracture of the L5 transverse process.
He has a poor left leg
gait pattern.
[3]
Mr Henry’s claim for general damages, future hospital and
medical expenses and past loss
of earnings were settled. He had filed
the expert reports by an orthopaedic surgeon, a neurosurgeon, an
occupational therapist,
an educational therapist, a urologist, a
counselling psychologist, an industrial psychologist and an actuary.
The remaining issue
for consideration in the action is his future
loss of earnings.
[4]
The dispute in question revolves largely around the dichotomous
approach of the two industrial
psychologists on the effect, if any,
that the injuries suffered have had upon Mr Henry’s future
earning capacity. During
the trial, certain of the factual background
and conclusions contained in the report of Ms Megan Naude, an
educational psychologist,
were extensively referred to. It is
axiomatic that experts engaged in a particular case when conducting
their assessment, would
apart from their own research work, have
regard to each other’s reports including reports from
non-expert collaterals. Only
Dr E Jacobs, an industrial psychologist,
was called for Mr Henry’s case. He summarised the findings of
Dr Parker (Neurosurgeon),
who opined that the accident disrupted Mr
Henry’s whole future, Dr Scher (orthopaedic surgeon), Ms Crouse
(Occupational therapist)
and largely referred to Ms Naude’s
report which he explained formed the basis of his evaluation. The
Fund did not call witnesses
not even Ms Sandra Moses, an industrial
psychologist who compiled a report on its behalf.
[5]
Mr Henry is 28 years old. He was 19 years old at the time of the
collision which occurred less
than a year after he had completed his
Grade 12 in 2014 at Daniëlskuil High School and met the minimum
requirements for admission
to higher certificate study. He is married
with two children aged 2 and 1 years. His wife is unemployed, and
both his parents are
deceased.
[6]
Mr Henry did not repeat a grade and received merit awards for
performing well at school. Post-matric
he worked as a supervisor for
the cleaners earning R6500 per month at Tirisanommogo General
Training, his uncle’s business,
performing contract work at a
mine for a period of seven months. He had planned to study mechanical
engineering at Kathu Technical
College, albeit he reported to Ms
Naude that the finances were a challenge. On Ms Naude’s report
Mr Henry’s pre-accident
functioning shows that he would likely
have been able to study further and most likely follow a career as an
artisan. Should he
have been able to secure financing for his studies
it is likely that he would have completed N studies in mechanical
engineering
(NQF 5).
[7]
Post the accident, in November 2019, Mr Henry secured employment for
a fixed term period of a
month as a night porter at The Olive Rose
Hotel in Daniëlskuil. His duties included monitoring security
and checking guests
into the hotel. He was re-employed to this
position in February 2020 but was retrenched shortly thereafter due
to the COVID-19
pandemic. He was engaged again at the hotel, which
was operating with a skeleton staff, in October 2020. He performed
various services:
cleaning, laundry, meal preparations, was an
occasional bartender, checked in and out hotel guests, purchased
stock and conducted
stock taking. He worked long hours from 04h00 to
23h00. This impelled him to resign in May 2021 as he was unable to
keep up with
the job’s physical demands. Since September 2021
he occasionally assisted at Rus ‘n Bietjie Guesthouse when the
owners
or managers were away.
[8]
Post-morbid, Mr Henry has been restricted in terms of his ability to
perform light work. He is
not suitable to do sedentary work in which
he is required to sit for long periods. He experienced brain injury
although the precise
sequelae are unclear. He also experiences
significant working memory difficulties as demonstrated by the
psychometric assessment
performed by Ms Naude. The various
orthopaedic injuries he sustained will significantly affect his work
performance. His writing/fine
motor speed is also very slow. Ms Naude
reported that the fine motor difficulties such as the present may
likely be a sequelae
to his injuries.
[9]
According to Ms Naude it appears that some aspects of Mr Henry’s
cognitive functioning may
have been negatively affected by his
injuries. The information obtained from the experts’ reports
indicates that the CT scan
of the brain (post-accident) revealed a
contusion haemorrhage in the left thalamus and subarachnoid
haemorrhage (bleeding).
She opined that it is likely that these
injuries may have resulted in some cognitive dysfunction such as
challenges with memory,
planning and concentration. According to Ms
Naude Mr Henry’s performance on educational assessment
post-accident shows that
he experiences some difficulty with reading,
spelling and mathematical tasks. Mr Henry may be able to
perform light work.
However, he has remained unemployed for most of
his career since the accident as he is not regarded as an equal
competitor.
[10] Dr
Jacobs had consultations with Mr Henry, Mr Lodewickus Henry (Mr
Henry’s uncle), and Ms Traska Bosman
of the Olive Rose Boutique
Hotel. The pre-morbid background that Mr Henry relayed to Ms Naude
was largely repeated to Dr Jacobs.
Mr Henry also reported to Dr
Jacobs in the interview held on 08 September 2023 that his uncle
passed away. As discussed, Dr Jacobs
generously considered Ms Naude’s
report to determine Mr Henry’s uninjured career potential and
indicated that his career
intention should guide his earning
capacity. Pre-morbidly, Mr Henry earned R6500 per month (R78 000 per
annum in 2015). At first,
Dr Jacobs postulated three scenarios for
the projection of Mr Henry’s uninjured career income earning
capacity. In scenario
1, Mr Henry remains with his Grade 12
certificate (NQF 4). The income associated therewith is R81 000 -
R161 000 – 236 000
(MQ – packages). In scenario 2, Mr
Henry completes his N studies in mechanical engineering (NQF 5).
According to Koch
quantum yearbook 2023 the income for an
artisan is R78 000 - R206 000 – R435 000 per annum for
non-corporate employees and
in the corporate sector it is on a
Patterson C2 (R473 000 (LQ)- R550 000(MQ) – R638 000(UQ) per
annum in 2023. The income
for a semi-skilled worker in the
non-corporate sector is R36 800 - R78 000 - R206 000 per annum in
2023. In scenario 3, Mr Henry
continues to complete a national
diploma (NQF 6). The income for a Grade 12 and diploma is R184 000 –
R262 000 – R337
000 per annum in 2023.
[11] Dr
Jacobs considered Mr Henry’s career progression on the basis
that he was 19 years old at the time
of the accident and, therefore,
in the exploration phase. In support of his opinion Dr Jacobs
remarked that Mr Henry resides in
Daniëlskuil which is close to
several big mines. Based on Mr Henry’s career intention and the
collateral obtained from
his uncle and Ms Naude’s opinion, in
Dr Jacob’s view, Mr Henry in his uninjured career would most
likely have been
able to follow a career as an artisan.
[12] In
Dr Jacob’s second and final addendum report he postulates the
calculations as R78 000 per annum
in 2023 with a straight-line
approach reaching the MQ Patterson scale C2 of R550 000 per annum in
2023 at age 45. The retirement
age is 63 years (most likely having a
mine as an employer). He allowed three years of study. Therefore, the
calculation is from
age 23 to 63 in that Mr Henry would have worked
for one year at his uncle’s business and studied for three
years from 2015
to 2018. Dr Jacobs further explained that the
artisans at the mines (and other organisations such as
municipalities) are remunerated
on a Patterson C2 scale.
[13]
The figures Dr Jacobs proposed in the preceding paragraph implies
that Mr Henry would have worked in a non-corporate
sector first (such
as a contractor for a mine) in an unskilled capacity as the scales
overflows between unskilled and semi-skilled.
He regarded this
as
the most conservative earnings scenario because
here only
learnership is required. In his view, scenario 3 is
unlikely
for reasons that it was Mr Henry’s intention to attain
artisanship. Dr Jacobs was further of the view that financial
constraints
would not have stymied his career path as an artisan and
there appears to be no reason why he could not have been successful
in
his studies. This was so because Mr Henry worked for his uncle to
earn an income and there are many study opportunities, particularly
in the mining area where he hails from, such as bursaries,
internships, learnerships, scholarships and others.
[14] Dr
Jacobs noted that, in respect of Mr Henry’s injured career, he
was able to earn R4 250 per month
at The Olive Guesthouse which is
equivalent to R51 000 per annum in 2021. He therefore estimated his
residual earning capacity
as R51 000 per annum in 2021 reaching a
plateau of R78 000 per annum in 2023 at the age of 45 and working
until the retirement
age of 63.
[15] Ms
Moses, the Industrial psychologist for the Fund, also had an
interview with Mr
Henry.
The same background he conveyed to Ms Naude and Dr Jacobs is set out
in Ms Moses’s report. In the antithesis of the
above, Ms Moses
in the joint minutes between herself and Dr Jacobs, postulated that
it is not likely that Mr Henry would have followed
a practical career
route starting at an FET college due to lack of funds. She explained
that in light that Mr Henry lived in the
vicinity of the mines he
could have been employed by the mines before completion of his
schooling or immediately after leaving
school. Instead, he secured
work as a supervisor at a low level - a possible Grade 9 job. She
intimated that Mr Henry’s pre-accident
work did not provide a
platform for him to secure alternative employment in the corporate
sector or in a practical career. In Ms
Moses’s view this is an
indication that Mr Henry was prepared to take whatever job he came
across instead of strategically
pursuing a job commensurate with his
Grade 12 level of education.
[16] Ms
Moses stated that Mr Henry was exposed to the mines but that there
was no record that he applied for a
job at the mines. She opined that
chances were that he would have continued along the same lines of
employment post-accident as
he did pre-accident. Therefore, she
assessed that Mr Henry’s pre-accident income of approximately
R72 000 per annum falls
into the non-corporate semi-skilled earnings
(R36 800 - R78 000 – R206 000) as per RJ Koch’s Quantum
Yearbook 2023.
[17] Dr
Jacobs disagreed with Ms Moses’s conclusion on the basis that
Mr Henry was 19 years old at the time
of the accident with a residual
career of 44 years to retirement which would have afforded him an
opportunity to improve himself.
At 19 he did not have the opportunity
yet to grow his skills and capacity. He opined that it was wrong for
Ms Moses to ignore the
opinion of the educational psychologist.
[18] It
is to be remembered that Mr Henry remained unemployed for most of his
career since the accident and is
not regarded as an equal competitor
and might face periods of unemployment due to his physical and mental
impairments. Both the
Industrial psychologists agreed that he remains
a vulnerable employee and an unequal competitor, and that he should
be regarded
as unemployable. They also agreed that he suffered past
loss of income which claim has been settled.
[19]
Belatedly, at the argument stage, the Fund’s counsel took issue
that Dr Jacobs relied on hearsay evidence
of Ms Naude, Mr Henry and
Mr Henry’s uncle in his assessment of Mr Henry’s future
loss of earnings. Counsel for Mr
Henry countered that at no stage
during the trial did the Fund raise an objection that Dr Jacobs’s
evidence constituted hearsay
and therefore the Fund’s argument
amounts to impermissible trial by ambush.
[20]
Hearsay evidence is inadmissible. Prior to any weight being given to
an expert’s opinion the facts
upon which the opinion is based
must be found to exist. An opinion based on facts not in evidence has
no value for the Court.
[1]
It
also holds true that a
physical
disability which impacts upon capacity to earn does not necessarily
reduce the estate or patrimony of the person injured.
It may in
some cases follow quite readily that it does, but not in all
cases. There must be proof that the reduction in earning
capacity indeed gave rise to pecuniary loss.
[2]
However, in
Esso
Standard SA (Pty) Ltd v Katz
[3]
Diemont
JA remarked:
“
It
has long been accepted that in some types of cases damages are
difficult to estimate and the fact that they cannot be assessed
with
certainty or precision will not relieve the wrongdoer of the
necessity of paying damages for his breach of duty.”
[21]
Where
loss of income has been established, as here, but proof of the
quantum thereof cannot be produced in the usual manner, our
courts
have saved a claimant from being non-suited and made the best of the
evidence adduced to give effect to the finding of proved
reduction in
loss of income-earning capacity.
[4]
In
Hersman
v Shapiro
[5]
it
was said:
“
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little
more than an estimate; but even so, if it is certain
that
pecuniary damage has been suffered, the Court is bound to award
damages.”
See
also
Venter
v Bophuthatswana Transport Holdings (Edms) Bpk.
[6]
[22]
The pre-morbid
factual material upon
which Dr Jacobs based his opinion was common cause between the
parties or, as it were, accepted by the Fund.
In this case the
general damages were settled on the basis that Mr Henry suffered
serious bodily injuries. The Fund conceded past
loss of earnings
based on the same evidence. Both the industrial psychologists, in the
joint minutes, are of the opinion that Mr
Henry is a vulnerable
employee and would remain unemployable. The basis of this assessment
has its genesis in the same evidence.
I am of the view that the
evidence placed before the Court is the best evidence available and
thus, I am disinclined not to accept
the evidence which Mr Henry
placed before this Court for purposes of assessing his pecuniary
damages.
[23] Dr
Jacobs’s evidence was for the most part undisputed. As already
adverted to, the Fund did not tender
any expert evidence to the
contrary save the speculative statement Ms Moses made in the joint
minutes which falls altogether short
of justifying that Mr Henry
would not have pursued any further studies. In my view, insofar as Ms
Moses did not set out any basis
for her assessment
in the joint minute or through oral testimony, this weakened the
cogency of her process of reasoning.
[24]
The cross-examination of Dr Jacobs focused too intently on the
question whether Mr Henry would have studied
further to qualify as an
artisan because finances were a barrier to him. I have no reason not
to accept Dr Jacobs’s substantive
motivation that financial
constraints could not have impeded Mr Henry’s career
progression and that he would have pursued
his career as an artisan.
It is disingenuous that at the present day, where various student
financial aid schemes are available
to the youth of this country
irrespective of their impecunious background, argument could still be
raised that Mr Henry stood no
chance to study further.
[25] Dr
Jacobs’ evidence adduced to establish the quantum of Mr Henry’s
loss of earnings is logical
and sound. Munro Forensic Actuaries based
their actuarial calculation on the final proposed earning progression
as presented by
Dr Jacobs and allowed for earning inflation until
retirement age 63 for both uninjured and injured earnings. To the
capital value
of uninjured future loss of earnings must be applied
general contingencies which cover a wide field of considerations
which differ
from case to case. The actuaries suggested that a
contingency differential lower than 20% be applied as ‘normal’
in
the scenario proposed by Dr Jacobs. Mr Henry’s counsel
contended that a reasonable contingency to be applied was 19% in
terms
of the guidelines provided by RJ Koch
[7]
,
being a sliding scale: ½ % per year to retirement age, i.e.
25% for a child, 20% for a youth and 10% for middle age.
[8]
[26]
The Fund advanced no reason why the court ought to deduct a
percentage different from the 19% proposed nor
did it submit that the
percentage was unreasonable. As to the injured scenario,
counsel for Mr Henry suggested 80% contingency
deductions as both
parties agreed that Mr Henry would remain unemployable following the
injuries. In my view, the contingencies
suggested are reasonable. The
estimation of Mr Henry’s loss of earnings in terms of the
actuarial calculation is R6 019 276
taking into account the
contingency deductions set out above which I have accepted. I am
satisfied that this represents a reasonable
and equitable award in
respect of Mr Henry’s future loss of earning capacity.
[27]
The quantum of the claim and the issues that fell for determination
merits costs consequent upon the employment
of two counsel. An order
is therefore made:
Order:
1.
The defendant is to pay to the plaintiff the sum of R6 019 276 (six
million nineteen thousand
two hundred and seventy-six rands) for his
future loss of earnings.
2.
The payment referred to in para 1 above shall be made within 80 days
of the date of this
order directly into the trust account of the
plaintiff's attorneys of record, P Joubert Inc.
3.
The defendant shall pay interest on the amount referred to in para 1
above at the rate of
11.50 % per annum from the date 80 days after
the date of this order to date of payment thereof.
4.
The defendant is to pay the plaintiff's costs of suit on party and
party scale as taxed or
agreed, such costs to include:
4.1
The reasonable qualifying fees and the costs of the reports, if any,
of the plaintiff’s expert
witnesses; and
4.2
The costs consequent upon the employment of both senior and junior
counsel on
scale B in terms of Rule 67A
read with Rule 69 of the Uniform Rules of this Court
.
5.
Defendant is to pay interest on the plaintiff's taxed or agreed costs
of suit at the rate
of 11.50% per annum from a date 14 days after
allocator or agreement between the parties to date of payment.
________________________
Phatshoane DJP
Appearances:
For the plaintiff:
Adv W Coetzee
SC (with
Adv D Jankowitz)
Instructed
by:
P Joubert Inc, Kimberley
For the
defendant:
Mr MA Mogano
Instructed
by:
Office of the State Attorney, Kimberley.
[1]
PricewaterhouseCoopers
Incorporated and others v National Potato Co-operative Ltd and
another
[2015] 2 All SA 403
(SCA) para 99 (citing the Canadian decision by
Justice Marie St-Pierre in
Widdrington (Estate
of) v Wightman
2011
QCCS 1788 (CanLII).
[2]
Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA) para 11.
[3]
1981 (1) SA 964
(A) at 968H-969A.
[4]
Road
Accident Fund v Kerridge
2019
(2) SA 233
(SCA) paras 25-27.
[5]
Hersman
v Shapiro & Co
1926
TPD 367
at 379.
[6]
1997 (3) SA 374 (SCA).
[7]
Quantum Yearbook 2024 at p. 125.
[8]
See
Goodall
v President Insurance
1978 (1) SA 389(W).