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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

Case No: 41574/2014

22/10/2019

 

In the matter between: -

 

MAHAPPY CHRISTELENE JOANNE                                                                    Plaintiff

 

And

 

ROAD ACCIDENT FUND                                                                                           Defendant

JUDGMENT

GWALA AJ

1.         Ms Joanne Christelene Mahappy, the plaintiff, instituted an action against the Road Accident Fund, the defendant, in which she claims compensation for the injuries sustained by her in a motor vehicle collision that occurred on 04 October 2012. At the time of the collision the plaintiff was a passenger. The matter was set down for the determination of the quantum, the merits having been previously resolved at 100% in favour of the plaintiff.

2.        As at the commencement of the trial, the parties had resolved all other heads of damages relating to quantum and what remained for determination was the question relating to the amount of contingency deductions applicable in respect of the plaintiff's future loss of income only.

3.         Both parties were in agreement that the actuarial calculations prepared by GW Jacobson of GW Jacobson Consulting Actuaries, who was appointed on behalf of the defendant, be used. The basis for the calculations and the assumptions made by GW Jacobson were undisputed. The scale of salary used by GW Jacobson is a sum of R141, 560.00 per annum. This too was agreed to between the parties.

4.         Parties had also agreed that 20% contingency deductions in respect of the past loss of income be applied. I need not deal with this further because it was an issue resolved between the parties. The only dispute that remained was the contingency deduction applicable in respect of the future loss of income. And that is what the court was required to determine.

5.         In their joint minutes dated 06 May 2019 the Industrial Psychologist, Ms Kotze and Mr Peverett recorded, in agreement, that the plaintiff was a grade 11 scholar at the time of the accident and would probably have been able to complete Grade 12 and obtain a higher certificate. The Grade 12 outcome would have been attained during the 2013/2014 academic years.

6.         The plaintiff secured employment during 2015 at Autoliv as an assembler. She became permanently employed thereat still as an assembler since January 2017. They agree that she is earning a rate of R33.23 cents per hour with an average gross income of R7, 376.00 per month which equates to an income indicated at median quartile of the A1 Paterson level. As aforesaid, the parties agreed that her income would be R141, 516.00 per annum.

7.         The Industrial Psychologists agree that the plaintiff would have been able to continue working until the age of 65 had the accident not occurred. The Orthopaedics Surgeons, on their part, record the rotational mal-alignment of the left femur and opine that if the operation to restore the alignment is delayed, the plaintiff will develop degenerative arthritis in either the hip or the knee. This would necessitate a joint replacement and would probable lead to significant early retirement by about five (5) to ten (10) years.

8.         The Industrial Psychologists agree that the plaintiff is compromised such that she should not work in highly physical demanding or labour-intensive jobs. According to them, she is best suited to tasks that can be performed in sitting position with limited prolonged standing and walking and she would not be suited to work in a manual demanding job. She faces severe restrictions in terms of employment as she is not able to generate income through manual labour.

9.         As such the Industrial Psychologist agree that the plaintiff has been compromised by the accident and is presently limited to sedentary work with limited standing and walking. She is not suited to her job as an assembler. She works in that capacity purely because she is accommodated to some extend by her supervisor. Had it not been for her current supervisor who is accommodating her, she would likely not have been able to sustain her employment for such a long period.

10.       The Industrial Psychologists agree that the plaintiff is facing severe restrictions towards possible future employment as she will not be able to generate an income by means of manual labour and that due to her low education level and limited work experience it is highly unlikely that she will be able to secure employment in sedentary administrative capacity.

11.         It is recorded that she has a chronic pain in the left leg and has to take rest breaks often and this impacts negatively on her concentration and attention. Once the plaintiff losses her currently employment she will remain unemployed. With the treatment though, a period of one (1) year should be allowed to recuperate fully and for her to seek job that is sedentary to light in nature with limited walking and standing. However, a typical sedentary position would not be available to her as she does not have a minimum of Grade 12 level of education.

12.       The Industrial Psychologists agree that the plaintiff has been rendered a highly vulnerable and compromised employee whose long-term employment prospects would be deemed significantly truncated, particularly as her prognosis deteriorates with age. As such they agree that a substantially higher contingency would be deemed applicable for consideration with regard to future earning loss based on the income postulated. The plaintiff submitted that the contingency deductions for future loss of earning be set at 50%. The defendant argues for 20%.

13.       The plaintiff is currently working with a broken body. Further, she will face an early retirement. She is currently faced with a possible loss of employment in a period of less than five (5) years due to her not being able to cope any longer with the work demand. She is in any events surviving on the mercy of sympathetic employer since she is accommodated by her supervisor. Absent such accommodation, it is likely that she would not be employed by now.

14.        She will have some periods of absence from work to attend treatment and recuperation and approximately a period of five (5) months will be required for that purpose. Should she lose her current employment, she is most likely not to be able to secure alternatives sedentary light employment due to her level of education and therefore will be unemployed.

15.         The defendant argues that the possibility of the plaintiff having to go on early retirement is nought because this speculation is based on the basis of there being a delay in the alignment of the left femur since this would occur only if the treatment was unnecessary delayed. The defendant argued that it has since provided the plaintiff with the undertaking certificate to enable her to obtain treatment in this regard.

16.         Contingencies generally provide for imponderables in the future. The imponderables in this matter are not limited to early retirement. Even if the re­ alignment of the femur is successful, the plaintiff retains other imponderables that should be accommodated by way of contingency deductions. There is no degree of certainty whether that treatment will be successful in any event. The future treatment does not take away the risks that the plaintiff is currently facing such as her being unemployable should she lose the present employment or at least unable to secure a work that would allow her sedentary type of job demand.

17.         The plaintiff is currently in a chronic pain in the left leg and has to take rest breaks often. She has no work experience in any administrative or clerical of any other form of sedentary job. She therefore faces difficulty in securing suitable alternative sedentary employment with her current condition and limited work experienced. If she loses her current employment, she will still have no choice but to seek employment in a light physical nature, according to Industrial Psychologists.

18.         There is a reality that her job choices have been significantly curtailed. This is despite the treatment she is likely to receive. The treatment, as argued by the defendant, is to cater for possible early retirement and no for all the risks attendant to the plaintiff. The plaintiff is entitled to a wider protection within the parameters of the law. In this case such can only be achieved through application of contingency deductions.

19.         Parties are, in any event, in agreement that contingencies be applied. This is progressive. They differ only on the amount of contingency deduction to be applied.

20.         The Industrial Psychologists agree that a substantially higher contingencies be applied on the plaintiffs future loss of income. The defendant did not repudiate this. It is accordingly bound by it and I have no reason to depart from this agreement and I do not find it unjustifiable. There is authority that where experts called by the respective parties agree on certain facts, such agreement binds the parties unless a party gives indication that it does not wish to be bound by that agreement. In Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161 Sutherland J said that:

"[9]      The general principle is that a decision on what constitutes the facts on any issue is the preserve of a court. (See: State v Harris 1965 (2) SA 340 (A) at 365C). There is only one category of exception: ie, when the parties agree on the facts. Even if a court might be sceptical about a set of agreed facts, there is no licence to go behind the parties' agreement, at least in a civil matter, just as the admitted facts on the pleadings are not to be interrogated by a court ...

[11]      Where the experts called by opposing litigants meet and reach agreements about facts or about opinions, those agreements bind both litigants to the extent of such agreements. No litigant may repudiate an agreement to which its expert is a party, unless it does so clearly and, at the very latest, at the outset of the trial ...

[12]      Where experts are asked or are required to supply facts, either from their own investigations, or from their own researches, and an agreement is reached with the other party's experts about such facts, such an agreement on the facts enjoys the same de facto status as facts that are expressly common cause on the pleadings or facts agreed in a pre-trial conference or in an exchange of admissions.

 

21.        This approach was endorsed by the Supreme Court of Appeal in the matter of Bee v Road Accident Fund 2018 (4) SA 366 (SCA). In that matter the Supreme Court of Appeal, in the majority judgment, endorsing that approach went further and stated that:

"[65]    In my view, we should in general endorse Sutherland J's approach, subject to the qualifications which follow. A fundamental feature of case management, here and abroad, is that litigants are required to reach agreement on as many matters as possible so as to limit the issues to be tried. Where the matters in question fall within the realm of the experts rather than lay witnesses, it is entirely appropriate to insist that experts in like disciplines meet and sign joint minutes. Effective case management would be undermined if there were an unconstrained liberty to depart from agreements reached during the course of pre-trial procedures, including those reached by the litigants' respective experts. There would be no incentive for parties and experts to agree matters because, despite such agreement, a litigant would have to prepare as if all matters were in issue …

[66]     Facts and opinions on which the litigants' experts agree are not quite the same as admissions by or agreements between the litigants themselves (whether directly or, more commonly, through their legal representatives) because a witness is not an agent of the litigant who engages him or her. Expert witnesses nevertheless stand on a different footing from other witnesses. A party cannot call an expert witness without furnishing a summary of the expert's opinions and reasons for the opinions. Since it is common for experts to agree on some matters and disagree on others, it is desirable, for efficient case management, that the experts should meet with a view to reaching sensible agreement on as much as possible so that the expert testimony can be confined to matters truly in dispute. Where, as here, the court has directed experts to meet and file joint minutes, and where the experts have done so, the joint minute will correctly be understood as limiting the issues on which evidence is needed. If a litigant for any reason does not wish to be bound by the limitation, fair warning must be given. In the absence of repudiation (i.e fair warning), the other litigant is entitled to run the case on the basis that the matters agreed between the experts are not in issue."

 

22.         Accordingly, I am of the view that it is fair, just and reasonable to allow the fifty percent (50%) contingency deduction for future loss of earning as proposed. I therefore determine that the fifty percent (50%) contingency deductions be allowed on the plaintiff's future loss of income.

23.         During the trial counsel for the parties submitted two concepts of the draft orders. One, by the plaintiff, was based on fifty percent (50%) percent contingency deduction on the future loss of earnings and the other, by the defendant, was based on twenty percent (20%) contingency deductions . Both concepts make provision for other heads of damages which, as alluded to herein before, were agreed to between the parties.

 

ORDER

24.         Accordingly, having determined that fifty percent (50%) contingency deductions be applied on the plaintiffs future loss of earnings, I make the following order:

24.1      The draft order marked X is made an Order of Court.

 

 

 

M. Gwala AJ

Judge of High Court of South Africa,

Gauteng Division, Pretoria

 

 

Appearances:

For the plaintiff:                 Adv S Strauss

For the defendant:             Adv KC Sioga

”X”

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA

 

CASE NO: 14/41574

 

ON 2 JULY 2019

 

Before the Honourable Justice GWALA AJ

 

In the matter between:

 

MAHAPPY CHRISTELENE JOANNE                                                                Plaintiff

 

And

 
ROAD ACCIDENT FUND                                                                                      Defendant

 

DRAFT ORDER

 

BY AGREEMENT BETWEEN THE PARTIES: and in full and final settlement of the claimant's claim for damages arising from a motor vehicle accident on 4 October 2012 it is ordered that the Defendant shall:

THE CAPITAL

1.        Pay to the Plaintiff the amount of R 2 696 021.5 (Two Million Six Hundred Ninety Six Thousand and Twenty One Rand and five cent) the capital in one single payment by means of an electronic transfer directly to the Plaintiff's attorney's trust account, the details which are set out hereunder;

RENE FOUCHE INC

 

STANDARD BANK - TRUST ACCOUNT

ACC. NR: [….]

BRANCH CODE: 004305

REF: JLR/GPS/RG/M598

1.1    In the event that the amount in paragraph 1 is not paid by within 30 days from date of the order the Defendant shall be liable for interest at the rate of 10,5% per annum on the said capital amount.

 

THE UNDERTAKING

2.        Provide an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 [“the undertaking”] and to compensate the claimant for 100% of the costs relating to the future accommodation of the Plaintiff in hospital or nursing home or treatment of or rendering of a service or supplying of goods to the Plaintiff after such costs have been incurred and on proof thereof, in consequence of the injuries sustained by the Plaintiff in the motor vehicle accident on 4 October 2012 excluding all previous pre-existing medical conditions not relating to the accident.

 

COSTS

3.        The Defendant shall pay the Plaintiff's Taxed or agreed Party and Party costs of suit on the High Court Scale, such costs including but not limited to:

3.1     The costs of the expert reports (including RAF 4 Forms and addendum reports, if any) of Dr. C. Kahanovitz, Dr. J.J. Van Niekerk, Sandton Radiology, Dr. A P Botha (Specialist physician) Dr. A. Peche, Dr. L. Fine, Dr. M Scott (Educational Psychologist) Dr C Naude (Specialist Physician) L.A. Chait, Dr. O Guy; Dr T Bingle (Neuro Surgeon),Ms S Aires (Physiotherapist) Dr J Goosen (Trauma Surgeon) Ms A Reynolds (Occupational Therapist) Ms N Kotze (Industrial Psychologist) N Lottering(Reconstruction expert) and L van Tonder (Assesors)

3.2     The qualifying fees of all experts who attended to the preparation of minutes;

3.3     The costs of Counsel

3.4     The costs of the actuarial reports of Mr. G Whittaker (Algorithm Consulting Actuaries);

3.5     Plaintiffs reasonable travelling expenses to and from medico-legal appointments;

3.6     The costs of the preparation and perusal of the six bundles;

4.       In the event the costs are not agreed, the Plaintiff's attorney shall serve a Notice of taxation on Defendants attorneys of record, The Defendant shall be granted a period of 14 days post taxation to pay the taxed costs.

 

 

 

BY ORDER

 

THE REGISTRAR

 

 

COUNSEL FOR PLAINTIFF: ADV. S STRAUSS (082 4126755)

ATTORNEY FOR PLAINTIFF: RENE FOUCHE INC

TEL: 011 484 4950

REF:JLR/GPS/RG/M804

 

COUNSEL FOR DEFENDANT: ADV SIOGA (079251 5380)

ATTORNEY FOR DEFENDANT: DIALE MOGASHOA

TEL: 012 346 5436

REF: VG/N/RAF/M0776

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