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FOURIE AJ
INTRODUCTION:
[1] This is an appeal against the Judgment and Order by Mazibuko AJ (Court a quo )
granted on 25 April 2024 whereby the Court a quo granted an order as per Draft
Order. In the draft order, the Defendant was by agreement held liable for payment
of 100% of agreed or proven damages of the Plaintiff. It was further recorded that
the issue of General Damages in the amount of R450 000.00 was previously
disposed of between the parties as detailed in the offer of settlement as accepted
by the Plaintiff, dated 15 April 2024 . The Defendant was ordered to furnish the
Plaintiff with an undertaking in terms of Section 17(4)(a) of Act 58 of 1996 . The
matter proceeded on trial only in respect of loss of income damages , whereafter
the De fendant was ordered to pay the Plaintiff the sum of R927 265.15 in respect
thereto, with interests at 11,25% per annum plus costs on party and party Scale
A.
[2] Leave to Appeal to this Court was granted by the Court a quo on 23 August 2024.
The appeal is aimed against the order made in respect of damages awarded for
loss of income.
[3] This Court is satisfied that the preliminary issues , such as the setting of security
and the providing of an authority to act , have been properly met.
[4] The Respondent did not oppose the appeal and has filed a Notice to Abide by
this Court’s decision.
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BACKGROUND:
[5] In the current matter, Patricia Nomafa Bhembe (the Appellant), instituted
action against the Road Accident Fund (the Respondent) for damages
suffered as a result of the personal injuries she sustained in a motor vehicle
collision on 19 April 2022.
[6] The underlying facts of the matter are not in dispute and it is further accepted by
the respective parties that merits have been settled 100% in favour of the
Appellant, general damages have been tendered by the Respondent and
accepted by the Appellant in the amount of R 450 000.00 (four hundred and fifty
thousand Rand) and in respect of future medical expenses the Respondent has
tendered an undertaking in terms of Section 17(4)(a) of the Road Accident Fund
Act, 56 of 1966 (hereinafter the “Act”) which tend er was also accepted .
[7] At the hearing of the matter in the Court a quo the Appellant personally gave
evidence and expert evidence was accepted by the Court after accepting a
Rule 38(2) application authorising such by agreement between the Appellant and
the Respondent whereby the evidence of the orthopaedic surgeon, the
occupational therapist, the industrial psychologist, and the actuary was admitted
into evidence by virtue of their affidavits being presented and accepted by the
Court.
[8] Unfortunately as is the case in too many litigious matters concerning the Road
Accident Fund, the Road Accident Fund elected not to appoint any experts that
could assist the court in coming to a just conclusion nor did the Respondent
advance any evidence w hich could either contrast or rebut the evidence as was
led by the Appellant or aid the Court a quo in coming to a just and fair order.
[9] The Appellant experts’ reports remain ing unchallenged , this Court cannot regard
the content thereof in any other light than same being accepted by the
Respondent .
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[10] Whilst the evidence as presented by the Appellant herself could be open to some
criticism , the evidence as led has not been rebutted by the Respondent.
[11] Although this Court has carefully evaluated and scrutinised the evidence of both
the experts and the Appellant in her personal capacity and has not summarily
accepted same, any opposition to the evidence as presented in the Court a quo
by the Appellant or her experts ought to be addressed with caution under
circumstances where no rebutting evidence was presented to the Court a quo .
[12] Although the Appellant states that she is appealing against the whole of the
Judgment of Mazibuko AJ, that can never be the case. The majority of the
Judgment of Mazibuko AJ was granted pursuant to a settlement being reached
between the Appellant and the Respondent. The only aspect with which the
Appellant can take any issue is with Order 2.3 of the Order being the amount
awarded by Mazibuko AJ to the Appellant in respect of past and future loss of
earnings reflecting and amount of R 927 265.15 (Nine hund red and twenty -seven
thousand two hundred and sixty -five rand and fifteen cents).
[13] The Appellant is also misguided in the Notice of Appeal , which I have to say
reads more like a Notice of Application for Leave to Appeal than it does an
appeal , but, irrespective the Appellant states that the Court a quo erred in finding
or assuming that there was no loss of future earnings. This line of reasoning
stands opposite to paragraph 2.3 of the Order of the Court a quo , which expressly
states the amount awarded by the Court to be an amount for both past and future
loss of earnings.
[14] Although I am of the intention of dealing with the requirements for a claim of loss
of earnings hereinafter, which I only do to be thorough, it is evident that the Court
a quo sufficiently evaluated the matter and found that a past and future loss of
earning capacity existed and premised upon same the Court a quo made a ruling
on a specific quantum it believed to be just under the circumstances.
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EVALUATION OF THE EVIDENCE IN THE COURT A QUO:
[15] This Court places value on the finding of the court in the matter of Spamer v
Road Accident Fund 2018 JDR 0604 (GP) as per Molopa -Sethosa J at
paragraphs 23 – 25 held as follows:
“[23] The conclusions by the experts set out in their reports referred to above,
are properly motivated expert opinions which were admitted by the
Respondent.
[24] It is a matter of logical reasoning that all the factors mentioned by the
experts and summarized in paragraph 17 above, will probably result in
future in a reduction of the Appellant’s patrimony (earnings) having
regard to the injuries, in comparison to wh at he would have earned, for
example, due to less incentive remuneration, delays in promotion and/or
career progression, lower career ceiling etc, all as a result of lower
productivity. The Appellant’s loss may not be calculable according to the
meth od proffered in the matter of Prinsloo v Road Accident Fund 2009
SA 406 (SE) referred to in the court a quo’s judgment, but it can be
quantified applying different contingencies (a higher post -accident
contingency) which method is applied on a daily basis in the courts over
many years.
[25] Having regard to the facts emanating from the various expert reports
referred to above there is a clear nexus between those facts and the
conclusions reached.”
[16] When confronted with expert reports the Court is to be guided by the reasoning
of the Supreme Court of Appeal in the matter of RAF v Zulu [2011] ZA SCA 223
in which matter the Court reaffirmed the principle of Michael and Another v
Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) :
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“[36] That being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced are
founded on reasoning. That is the thrust of the decision of the house of
lords in the medical negligence of Bolitho v City and Hackney Health
Authority [1997] UKHL 46 ”.
[17] While having regard to what the Court held in the matter of IM v Road Accident
Fund 2023 (1) SA 573 (FB) at paragraph 21 that:
“The common thing is that courts must jealously protect their role and
powers. Courts are the ultimate arbiters in any court proceedings. The
facts that caused the experts' opinions in this case are vital. They were
supplied by the Plaintiff and corroborated by experts and surrounding
evidence. They are logical and sound .”
This Court further remains guided by a decision of this Court, also sitting as a full
bench in the matter of Zodwa Nono Ngwenya v Road Accident Fund (Case
Number: A104/2019 delivered on 10 March 2022) held that :
“The acceptance of reports without their authors giving oral evidence in
Court is not unheard of in civil trials.”
[18] A challenge to the content of an expert report under circumstances where no
rebutting evidence has been provided should accordingly be dealt with , with
caution and not merely at a Defendant's asking , who had the opportunity of
leading evidence and elected not to do so.
[19] From the evidence led in the Court a quo evaluated together with the transcribed
record of appeal and the judgment of the Court a quo it is evident that the first
portion of the test, whether a diminishment of or reduction of earning capacity
existed, the Court already found in favour of the Appellant in that it does and as
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such it is not necessary for this Court to rule upon that aspect. Similarly, it was
not seriously contested in the Court a quo and as is evident from the Notice to
Abide the Respondent does not oppose same herein.
[20] As such, all that remains is for this Court to establish whether it ought to interfere
with the award for damages awarded by the Court a quo in respect of loss of
income.
[21] I align myself with what the Appellant Division (as it then was) found in the matter
of Southern Insurance Association v Bailey NO. 1984 (1) SA 98 A , where it
stated that:
“It is well settled that this Court does not interfere with awards of
damages made by the Trial Court unless there is substantial variation or
a striking disparity between the award of the Trial Court and what this
Court considers ought to have been awarded; or the Trial Court did not
give due effect to all the factors that properly entered into the
assessment; Or the Trial Court made an error in principle or misdirected
itself in a material respect.”
[22] The object of the Road Accident Fund, shall at all times be repayment of
compensation in accordance with the Act for loss or damage wrongfully caused by
the driving of a motor vehicle (See in this regard: Section 3, Road Accident
Fund Act, 56 of 1996 as amended) .
[23] The Plaintiff needs to be compensated sufficiently full, as he/she will not have an
opportunity at a later stage to amend their claim once their claim has been finalised
(See in this regard : Jacobs v Cape Town Municipality (1935) CPD 478) .
[24] The evaluation of the amount to be awarded for the loss, does not involve proof on
a balance of probabilities. It is a matter of estimation. Where a Court is dealing with
damages which are depending upon uncertain further events, which is generally
the ca se of claims for loss of earning capacity, the Plaintiff does not have to prove
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on a balance of probabilities and is it entitled to rely on the Court’s assessment of
how they should be compensated for their loss (See in this regard: MS v RAF
(10133/2018) [2019] ZAGPJHC at 84).
[25] The trial judge shall not be tied down by inexorable actuarial calculations. He has
a large discretion towards what he considers right. One of the elements in
exercising this discretion, is the making of a discount for contingencies, or
differently put, the uncertainties of life (See in this regard: Southern Assurance
Association Ltd v Baily N.O 1984 (1) SA 98 (A)).
[26] In assessing damages for loss of earnings or support , it is usual for a deduction to
be made for general contingencies for which no explicit allowance has been made
in the actuarial calculation. The deduction is the prerogative of the Court
(See in this regard: RAF v Guedes 2006 (5) SA 583 (SCA)) .
[27] Having found that the earning capacity of the Appellant was reduced and that
there was a need for compensation in respect of same to be paid to the Appellant
the Court a quo needed to evaluate an amount which it found to be just under
the circumstances with the evidence presented to it. Whilst the court would have
been guided by the expert reports filed by the Appellant and the report specifically
by the actuarial accountant, it is by now a settled principle that a court will not be
tied down by actuarial calculations when ordering damages that the court
believes to be just and justified.
[28] The Appellant’s actuar ial report and the confusion that arose at the hearing of
the matter in the Court a quo can be regarded as central to such confusion as
the actuar ial report and specifically page 360 of the indexed Appeal bundle sets
out the loss the Appellant avers to have suffered as an amount of R 5 827 657.00
(Five million eight hundred and twenty -seven thousand six hundred and fifty -
seven Rand) but which amount di d not have regard to any contingencies being
applied. I pause to state this can only be because the Appellant did not instruct
the Actuary to apply any contingencies. Actuaries do not decide which
contingencies to apply ; they make such an application based purely on the
instructions provided to them.
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[29] Contingencies are a helpful mechanism to account for the eventualities of life ,
and I am unaware of a legal precedent where no contingencies were applied in
matter s such as the matter at hand. By approaching the Court a quo without a
proper actuary report wherein justified contingencies were applied, the approach
by the Appellant needs to be frowned upon as it was not at all helpful for the
Court to come to a just conclusion in respect of what would be a just order. During
argument, the Appellant’s counsel agreed that higher -than-normal contingencies
ought to be applied and submitted that it would be just if the Court orders, in
respect of past and future loss of income that an amount of R 3 183 420.15
(Three million one hundred and eighty -three thousand four hundred and twenty
rand and fifteen cents) be awarded to the Plaintiff. The Plaintiff made such a
statem ent in the absence of an updated actuar ial report indicating the
calculations of the Plaintiff to be correct.
[30] The Defendant, in keeping with the reasoning that higher than usual
contingencies ought to be applied requested a contingency of 5% in respect of
past loss and 40% in respect of future loss to be applied.
[31] The fact that no proper calculations were at hand when the matter was heard
should be indicative to the litigants of the importance of actuarial calculations and
the accuracy thereof in order to guide the Court to come to a just conclusion in
respect of matter s such as this .
[32] From the appeal record, it is noted that the Court a quo tried its utmost best to
gather as much and as accurate information as possible from the Appellant and
the Respondent amidst legal argument , and it is evident that amidst the
submissions made , the correct amounts premised on the view of Court had
become lost.
[33] Although I am of the opinion that the confusion was in essence created by the
incomplete manner in which the Appellant elected to present its case, justice
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dictates that an evaluation of the matter as a whole be made to ensure that the
amount that is ultimately awarded causes justice to be done.
[34] For the purpose of this judgment and in coming to a just conclusion, the Court is
guided by that which the Plaintiff has sought, ultimately being an amount of
R 3 183 420.15 and the contingencies which the Respondent sought to be
applied by the court.
[35] In respect of the Appellant’s past loss of income , the Court is satisfied to apply a
contingency of 5% to the actuarial amount of the Appellant as per page 360 ,
which amount stands uncontested and which the Court is bound to accept.
[36] In respect of the past loss, the Appellant is accordingly entitled to compensation
in the amount of R 156 593.25.
[37] In respect of future loss of earnings, the Court a quo had several reservations in
respect of the evidence tendered by the Appellant. The respective parties
conceded, rightfully so , that higher -than-normal contingencies need to be
applied.
[38] The establishment of contingency percentages and to which portion of the loss
they need to be applied falls squarely within the discretion of the Court. Even
then, they shall serve merely as a guide in order for the Court to come to a just
conclusion.
[39] Having evaluated the evidence presented to the Court a quo and having heard
the submissions by the respective counsels , this Court is of the intention to apply
a 50% contingency to both the pre - and post -morbid future loss of earnings.
[40] As a result of the contingencies being ordered as stated , the future loss of income
of the Appellant is established and ordered to be R 2 913 808.50 (Two million
nine hundred and thirteen thousand eight hundred and eight rand and fifty cents).
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[41] The total loss of income of the Appellant is accordingly ordered to be in the
amount of R 3 070 401.75 (Three million seventy thousand four hundred and one
rand and seventy -five cents).
[42] Having regard to the facts represented by the Appellant in the Court a quo and
the fact that the Appellant at the hearing of the matter did not persist with claiming
any amount in excess of R 3 183 420.15 (Three million one hundred and eighty -
three thousand four hundred and twenty rand and fifteen cents), the application
of any other contingencies or the exercise of the court discretion in any other way
would lead to the court making an order that would amount to ordering an amount
in excess of that which the Appellant claimed when the matter was heard which
in itself would be un just.
[43] The current matter is not one where the Appellant presented an unsurmountable
case to a Court a quo who came to an incorrect conclusion but rather one where
the case the Appellant presented to the Court a quo was of such a confusing
nature that it was eminent that the confusion would spill over into the judgment
provided by the Court a quo . Although th is Court is willing to come to the
assistance of the Appellant in respect of loss of income it would not be in the
interest of justice if the Respondent is burdened with a cost order pertaining to
this appeal. The fact s of the matter , the fact that the Respondent did not oppose
the appeal and the interest s of justice dictate that no cost order is herein made.