Bee v Road Accident Fund

• Jurisdiction: South Africa
• Citation: 2018 (4) SA 366 (SCA)

Bee v Road Accident Fund
2018 (4) SA 366 (SCA)

2018 (4) SA p366

Citation	2018 (4) SA 366 (SCA)
Case No	93/2017; [2018] ZASCA 52
Court	Supreme Court of Appeal
Judge	Seriti JA, Mathopo JA, Rogers AJA, Hughes AJA and Schippers AJA
Heard	March 29, 2018
Judgment	March 29, 2018
Counsel	MH van Heerden SC (with CW van Niekerk) for the appellant.; D Potgieter SC (with S Bisschoff) for the respondent.

Flynote : Sleutelwoorde

Damages — Bodily injuries — Loss of income or earning capacity — Plaintiff and brother each owned 50% of close corporation — Plaintiff's claim permissibly E quantified with reference to corporation's reduced profits.

Damages — Quantification — Collateral source rule — Benevolent payments increasing plaintiff's post-injury earnings beyond market-related salary for reduced role — Correctly disregarded in calculation of plaintiff's patrimonial loss resulting from diminished earning capacity.

Evidence F — Expert evidence — Joint minutes — Court generally bound by — Rules for repudiation by parties.

Headnote : Kopnota

In November 2007 the appellant (B) was injured in a collision and claimed, among other things, past and future loss of earnings from the respondent (the Fund). An award made by the trial court was set aside on appeal to a G full court. This is a further appeal.

B and his brother, R, were 50% partners in a business (BPW), to which B returned in January 2009. Despite the sequelae of his injuries he was, as before, paid a 50% share of BPW's profits. B claimed these profits were reduced because of his diminished effectiveness and that a portion of his H earnings was paid out of benevolence, and had to be disregarded when computing his loss of income. The Fund claimed that B's 50% membership in BPW meant he had a proprietary right to half its profits.

Forensic accountants from each side prepared a joint minute in which they agreed that B's injuries had affected his employability and that there was a gratuitous (benevolent) element to his pay. They disagreed, however, on its I quantification and on the application of the Rudman decision [*] to the present claim. There the court ruled, in circumstances broadly comparable to those in the present case, that it would not measure the claimant's loss of

2018 (4) SA p367

earnings by reference to the business's loss of profits. Instructed to 'apply A Rudman', the Fund's expert did not attribute some of BPW's losses to B's diminished abilities

During the trial the Fund's expert testified that BPW had refused him access to documents with information contradicting assumptions made in the joint minute, but the court ordered that no such evidence could be led, and upheld B's claim in full. In an appeal the full court found that B had failed B to prove that BPW's performance was affected by his injuries or that he had personally suffered any loss, and that his claim for loss of earnings should accordingly be dismissed. In the further appeal —

Held, per Rogers AJA (majority judgment)

The estimations made by the trial court in the calculation of B's damages should, barring misdirection, stand. Among these were the market-related salary B C would command in his injured condition; how much better BPW would have performed had B not been injured; and when B would have retired in his uninjured condition and when he was likely to retire in his injured condition. (See [46] – [48].)

Effective case management required parties to stick to the facts agreed in a joint minute (see [65] – [66]). If a litigant wished to depart from it, it had to give D due warning to the other side, and the same went for the experts themselves (see [67] – [68]). Therefore, if the Fund's expert had wished to testify inconsistently with the agreement in the joint minute, it should have notified the other side before the start of the trial (see [75]). The Fund's conduct amounted to impermissible trial by ambush (see [79] – [80]). The trial court was entitled, if not bound, to accept the matters agreed by E the experts, and its decision not to ask them to lead further evidence was entirely justified (see [73]). Given the trial court's ruling, it was not open to the full court to go behind the facts agreed to in the joint minutes (see [78]).

Rudman was concerned with the factual question whether the claimant had proved a patrimonial loss, which the court found he did not (see [81]). In the present case, however, the facts agreed on by the experts showed that B F did suffer a loss and that it was directly related to the impaired performance of BPW (see [82]). B's situation was distinguishable from the Rudman claimant's, who had held only 2,5% of the company, so that there was no necessary correlation between the company's profitability and his income (see [83]). And his intellectual capacities were undiminished, whereas, in the present case, the factual and expert evidence was all in one direction: G B's injuries had impaired his intellectual, mental and emotional functioning to the extent that he could not remotely function at his pre-injury level (see [83] – [84]).

If an employer, out of benevolence, allowed an injured employee to return to work and to perform such limited tasks as he was able to do, and continued H to pay him a salary, the injured employee was not obliged to deduct such salary when quantifying his loss of earnings (see [101]). The fact that this 'salary' was recorded in BPW's financial records as a salary rather than a donation, was neither here nor there (see [102]). Hence the only issue was the factual one, whether or not B's 'salary' was indeed prompted by considerations of benevolence on the part of BPW (see [103]). The Fund's argument that B had a proprietary right to half the profits was fallacious I because it assumed the permanence of B's 50% membership interest in BPW when in fact R could terminate the arrangement at any time by winding up BPW (see [104]). The trial court was, on the evidence, fully entitled to find that part of B's post-injury salary was gratuitous (see [105] – [108]). For the calculation of this portion, the method used by the Fund's expert would be preferred (see [110]). In the result the trial court's award would J

2018 (4) SA p368

be A upheld, save for the downward adjustment resulting from the adoption of the Fund's expert's method of calculation (see [45], [119]).

The full court's decision resulted in an unjust shifting of the responsibility from the wrongdoer (represented by the Fund) to BPW and R, and the law should not compel such an unpalatable result (see [107]).

Held, per Seriti JA (dissenting)

Other B credible evidence did not support the proposition that part of what B received after his injuries was gratuitous, and the trial court should have rejected the joint minute as unreliable (see [20] – [21], [30]). Since B failed to prove his pre- or post-accident salary, or that BPW suffered a loss of income due to his injuries and that his patrimony was therefore diminished, the appeal should fail (see [42] – [44]).

Cases cited

Southern C Africa

AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A): dictum at 809B – D applied

Campbell v Van Niekerk 1967 (2) PH J27 (D): referred to

Coopers D (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352 (A): applied

Fulton v Road Accident Fund 2012 (3) SA 255 (GSJ): referred to

Henning v South British Insurance Co Ltd 1963 (1) SA 272 (O): referred to

Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA) ([2014] ZASCA 113): referred to

Malema E v Road Accident Fund [2017] ZAGPJHC 275: referred to

Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd and Another 2016 (2) SA 586 (SCA) ([2015] ZASCA 164): referred to

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384): referred to

Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) ([2009] ZASCA 163): F dictum in para [22] applied

Molusi and Others v Voges NO and Others [2015] 3 All SA 131 (SCA) ([2015] ZASCA 64): dictum in para [19] applied

R v Dhlumayo and Another 1948 (2) SA 677 (A): referred to

R v Jacobs 1940 TPD 142: referred to

Road Accident Appeal Tribunal and Others v Gouws and Another 2018 (3) SA 413 (SCA) ([2018] 1 All SA 701; G [2017] ZASCA 188): referred to

Road Accident Fund v Coughlan NO [2011] ZAWCHC 10: referred to

Roux v Hattingh 2012 (6) SA 428 (SCA) ([2012] ZASCA 132): referred to

Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) ([2002] 4 All SA 422; [2002] ZASCA 129): discussed and distinguished

Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194: dictum at 200 applied

Santam H Bpk v Biddulph 2004 (5) SA 586 (SCA) ([2004] 2 All SA 23): referred to

Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A): dictum at 150F – H applied

Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161: discussed and qualified.

Australia I

Zheng v Cai [2009] HCA 52: referred to.

Botswana

Moloi v The State 1995 BLR 439 (CA): referred to

State J v Apadile 2011 (1) BLR 1 (HC): referred to.

2018 (4) SA p369

Canada A

Gillis v Breau (1971) 19 DLR (3d) 615: referred to

Kask v Tam 1996 CanLII 1929 (BC CA): compared.

England

Cunningham v Harrison and Another [1973] 3 All ER 463 (CA): referred to B

Dennis v London Passenger Transport Board [1948] 1 All ER 779 (KB): referred to

Huntley v Simmons [2010] EWCA Civ 54: distinguished

Parry v Cleaver [1969] 1 All ER 555 (HL): referred to. C

Namibia

S v Thomas 2016 (4) NR 1154 (HC) ([2016] NAHCMD 320): referred to.

United States

Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (113 S Ct 2786) (1992): referred to.

Case Information

MH van Heerden SC (with CW van Niekerk) for the appellant. D

D Potgieter SC (with S Bisschoff)...