CASE NO: 5857/2006 
								APPEAL CASE NO: 010/2010
In the matter between: 
THE ROAD ACCIDENT FUND							Appellant

 and

In his capacity as Curator Ad Litem to 
MARC ATHOL GORDON BLACKBEARD
Respondent

JUDGMENT : 2 MARCH 2011

GAMBLE, J:
INTRODUCTION

[2] The issue of liability was settled between the parties before the matter went to trial in May 2009 and it was agreed that the patient's damages would be apportioned on a 70/30 basis in his favour.

[3] Prior to the commencement of the trial before Justice H.J. Erasmus on 12 May 2009 the parties settled all other heads of damages and the trial proceeded only on the issue of the patient's loss of earnings.

THE PATIENT'S ENVISAGED CAREER PROGRESSION IN THE UNINJURED STATE

"The Atlantis Group operates within a 'hi tech' environment and has benefited from contracts awarded in the Counter Trade Industrial Programs' which require that certain foreign imports to South Africa must be accompanied by local foreign investment. In recent years, the Atlantis Group has. for example, been involved, with other entities, in the development of an Offshore Oil Rig Component capacity at Saldana Bay with reciprocal capacity at Cape Town Harbour Another example is its involvement along with the German firm MAN Ferrostaal, in the development of a 10m by 15m yacht lift at Saldanha Bay.'

" ...Our company develops new business. Every new business we treat as a project, so the basic requirement is to be able to manage projects, no matter how large or how small they are. Every business opportunity is operated and conducted as a separate project. So he [i.e. the patient] needed to be capable to be able to work in the project domain."

"[21]....The essence of the attack on Shaw is that he had in effect surrendered his professional independence and allowed himself to be misled and overwhelmed by Blackbeard. As I have indicated, there is no evidence to support this allegation and I have no reason to doubt the professional integrity of Shaw. Although he favoured the case of the Plaintiff he did not do rt in a manner and to an extent that undermined his objectivity and professionalism.'

[22].... As regards Crous. his opinion may be flawed in that it is based upon inadequate information, but the allegations that he was disingenuous' and that he was a self-serving recalcitrant, evasive and argumentative witness', and that his evidence is not worthy of being termed expert' are not justified. Valid criticism is his unwillingness to reconsider his opinion in the light of facts not known to him at the time when he compiled his report, and more particularly his unwillingness to give consideration to the information concerning the patient's overall performance as testified to by Dr. Gowans and Dr. Taylor. In this respect, he might have been wrong, even wrong-headed, but his scepticism as to the value of that evidence is an opinion honestly held."

THE APPROACH OF A COURT ON APPEAL

It is well settled that this Court does not interfere with awards of damages made by a trial Court unless there is a 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 which properly entered into the assessment; or the trial Court made an error in principle, or misdirected itself in a material respect."

[12] Coupled with that is the general approach on appeal to the findings of the trial Court on questions of credibility and demeanour which are applicable, not only in respect of Blackbeard Snr, but also in respect of Shaw and Crous.

THE PATIENT'S PRE-ACCIDENT WORK RECORD

"Blackbeard is a man of strong personality who promoted his sons case with vigour, but there is no evidence that he overwhelmed' any of the experts, or that of any of the experts sacrificed their professional independence and integrity in the face of pressure from him."

[23] As I have said, in both cases the experts worked with the total annual cost of employment or the so-called "cost to company" of employment. The P-E Corporate Service document is more detailed than The Quantum Yearbook 2009 extract in that it reflects the total annual costs of employment over three levels - a lower quartile, a median and an upper quartile. Furthermore it distinguishes between small/medium sized companies, intermediate companies and large companies

[27] The trial Court weighed up all this evidence and came to the following conclusion:

"145] In my view, it is apparent from the foregoing that the Defendants projected career path which takes the patient, who was at the time of the accident in the Paterson C1 job grading band, no further than the Paterson D1 level, is unrealistic and not in accordance with the evidence. In my view, the career path projected by Shaw is with one qualification, more realistic. Shaws projection takes the patient from Junior Executive Director (D4/5 on the Paterson job grading band to be attained by 2015) into the Paterson E1 job grading band as Executive Director by 2020. In my view the upward step from Junior Executive Director to Executive Director is a progression too uncertain to project."

"[49] Shaw suggested that the cost to company figures should be utilized for the purposes of comparing the actual earnings and projected income against the industry norms as represented by the Peromnes scale. On that approach, the following career path must be accepted as the basis for the computation of the patient's loss of earnings:

(iii)     General Manager from 1 March 2010 at R650 000.00 per annum

"Junior Executive Director by 2015:

PROFIT SHARE

[35] In his expert summary (which was confirmed in evidence) Mr De Kroon explained the position as follows:

"[48] The Plaintiff submitted that a profit share component is to be brought into the calculation of loss of earnings The submission derives from Blackbeard s evidence that the son would receive 30% of his (Blackbeard s) shares on his retirement, entitling [him] to 30% of the profits This would increase to 50% upon the demise of either Blackbeard or his wife, and 100% when they had both passed away. The acquisition of a shareholding is not dependant upon the patient fulfilling any management position within the Group; he is a member of the family and the shares may (will?) in any event accrue to him."

[38] The passage from Shaw's report referred to in para 32 above reflects that the basic annual remuneration for a Junior Executive Director would be R975 000 with a further component of profit share of the order of R1 million.

[40] The reference to "900 goes up to 19" is once again a reference to the passage from the expert summary referred to in para 32 above. As I understand it. Mr Shaw was saying that annual remuneration of the order of R900 000,00 was compatible with a Paterson D4/5 level and that any remuneration in excess of that figure would effectively be acquired through the benefits of shareholding in the company and the ability to ultimately divert dividends to oneself through the family trust.

POST-MORBID EARNINGS

"[50] The notional value of the patients future injured earning capacity has been agreed at between R1 000.00 and R3 000.00 per month The parties are not in agreement as to the likelihood of the patient generating such earnings, and whether any such earnings would be deductible, as opposed to earnings which are gratuitous in nature.

[51] The patients post-injury positions of employment, where he earned an income in a minimal amount, were created especially for him and he was unable to sustain them This outcome was consistent with the evidence of the experts of both parties, in particular that of the clinical psychologists Renee de Wit and Frances Hemp, and the occupational therapists Thea Coetzer and Joan Andrews. Thus Ms Coetzer says that she agreed with the views of Joan Andrews and Frances Hemp that the patient -

...is not going to be able to work in any setting other than some form of sheltered employment and such a position is going to be difficult to procure to suit his profile."'

sv moeder en skoonouers oo n ad mtserecordiam-grondslaa met die

[46] While awaiting settlement of his claim against the Appellant, the patient's family secured a social security grant for him. This step was criticised by Appellant's counsel as being an unnecessary waste of State resources given the apparent wealth of the patient s family.   It is not necessary to comment on this aspect further other than to say that it does not fall in the mouth of the Appellant to express such criticism in circumstances where the process of litigation has taken well in excess of five years and the patient has had to fend for himself in the interim.

CONTINGENCY DEDUCTIONS

'It is a mistake to suppose that it necessarily involves a scaling down'. What it involves depends, not on arithmetic but on considehng what the future may have held for the particular individual concerned... (The) generalisation that there must be a 'scaling down' for contingencies seems mistaken. All contingencies are not adverse All vicissitudes are not harmful A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might nave balanced or even outweighed the nsk of bad."

COSTS Record
[51] The record on appeal originally filed by the Appellants attorneys was hopelessly inadequate and did not comply with the provisions of Rules 49(7) and (8). This shortcoming resulted in the patient launching an application in terms of Rule 49(7)(d) for an order declaring that the appeal had lapsed.

[53] In an application for condonation the Court looks at the explanation proffered and weighs up against that the prospects of success on appeal.

Appeal

[56] In the result it seems fair to me that the Appellant should be granted the costs directly associated with the first day of the hearing on appeal with the second day's costs to be borne by the parties individually. Over and above that. I am of the view that the Appellant's limited success on appeal entitles it only to one half of the remaining costs on appeal including the application for leave to appeal The engagement of the services of two counsel by the parties was warranted

CONCLUSION

[58]   In the circumstances I would make the following order:
(A)	The Appellant's application for condonation for the late filing of the appeal record is granted.

"(i)    The calculation is to be based upon the assumptions contained in paragraphs [46] to [49], save that the amount of R1 250 000.00 contained in paragraph [49] (iv) is replaced with the amount of R975 000.00;

(iii) 	The Plaintiffs earnings in the uninjured state would have been as set out in paragraph [49], save that the amount of R 1 250 000.00 in paragraph [49] (iv) is substituted with the amount of R975 000,00."

"(vii) All amounts received by the patient from the social security grant paid to him are to be taken into account in any actuarial calculation."

(G) The parties are at liberty to approach this Court for a further order in relation to the exact amount of the award payable to the Respondent after a fresh actuarial calculation has been made.

							P.A.L GAMBLE, J

I agree. It is so ordered

							E. MOOSA, J

I agree

							E. BAARTMAN, J