Buthelezi v Road Accident Fund

• Jurisdiction: South Africa
• Judge: NF Kgomo J
• Judgment Date: 25 April 2014
• Docket Number: 12/26113
• Hearing Date: 23 April 2014
• Court: South Gauteng High Court, Johannesburg

N F Kgomo, J:

INTRODUCTION

[1]

The plaintiff, a 49 year old male person and heretofore a carpenter by trade, instituted proceedings against the defendant for damages arising out of

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a motor vehicle collision that occurred on or about 01 August 2009 and at or near Emangweni Section, Tembisa, Ekurhuleni District, Gauteng Province wherein or whereat he was knocked down by an unknown motor vehicle or vehicle while walking on the pavement of a street. The driver of the unknown vehicle ("insured vehicle") as well as the time the alleged collision took place is unknown.

[2]

The plaintiff alleged the unknown insured vehicle's driver ("insured driver") was negligent in several respects which have not been disputed by the defendant.

[3]

At the beginning of the trial, the defendant conceded the issue of liability or the merits, agreeing to be held liable for 100% of the plaintiff's proven damages.

[4]

The plaintiff has claimed for an amount of R4 400 000,00 (four million four hundred thousand rand) made up of the following heads of damages:

4.1	Estimated future medical expenses	=	R 500 000,00
4.2	Estimated future loss of earnings/ loss of earning capacity/loss of employment/employability	=	R1 000 000,00

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4.3 General damages for pain and suffering, loss of amenities of life, disability and disfigurement as well as contumelia = R3 000 000,00

[5]

It is clear that the plaintiff made a simple arithmetical error in his computations as the above heads of damages make out a total amount of R4 500 000,00. I assume that the estimated future medical expenses were supposed to have totalled R400 000,00.

[6]

The plaintiff is assisted in these proceedings by a curator ad litem, Advocate Zinhle Buthelezi.

[7]

The parties further reached agreement in respect of loss of earnings or earning capacity in the amount of R768 477,00 (seven hundred and sixty eight thousand four hundred and seventy seven rands).

[8]

The issue of future medical expenses was also settled between the parties on the bases that the defendant would issue the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund, 56 of 1996 (as amended).

[9]

The only outstanding issue unresolved between the parties was that of general damages.

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[10]

Both parties are agreed about the extent of the injuries suffered by the plaintiff as well as the sequelae thereof. As a consequence, they further agreed on dispensing with the leading of viva voce evidence: They argued this issue of general damages on the papers available, which are common cause.

THE PARTIES' SUBMISSIONS ON QUANTUM OF GENERAL DAMAGES

[11]

The plaintiff submitted and argued that the general damages herein should be awarded at the sum between R1 000 000,00 (one million rand) and R1 100 000,00 (one million one hundred thousand rand). The defendant submitted and argued that they be awarded at the sum of R600 000,00 (six hundred thousand rand).

ANALYSIS

[12]

I listened to and considered submissions and argument from counsel on both sides on general damages. Their cases were both anchored on the expert reports filed by the plaintiff as supported by joint minutes of their respective orthopaedic surgeons, Drs D Engelbrecht and C Edelstein; their clinical psychologists, Ms Lufuno Modipa and Dr Jackie Watts; the occupational therapists, Mesdames N September and Mellony Smit; the neurosurgeons, Drs T S Mpotoane and Frank Snyckers; and the industrial psychologists, Ms Sandra Moses and Mr Friedl van der Westhuizen.

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[13]

The only difference the two parties have on this aspect is thus only the quantum to be awarded and how each side justifies such quantum.

[14]

The ultimate decision as to how much the plaintiff should be awarded in general damages lies entirely within the ambit and discretion of this Court. Opinions of experts are only there to assist the court in the exercise of that discretion and decision. Consequently, experts should avoid overstepping their mandates and attempting to usurp the function of the court. It is the function of the court to base its inferences and conclusions ultimately on all the facts placed before it. [1]

[15]

Kotzé J put it as follows in S v Gouws: [2]

"The prime function of an expert seems to me to be to guide the court to a correct decision on questions found within his specialised field. His own decision should not, however, displace that of the tribunal which has to determine the issue to be tried."

[16]

Davis J summarised the role of experts and their reports aptly in Schreiner NO & Others v AA & Another [3] as follows:

"In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as

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possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess."

[17]

Both counsel in this matter advanced cogent and seemingly convincing argument in favour of the award each claimed would be appropriate in the circumstances herein, and I am indebted to them for their state of preparedness. However, this Court cannot and should not lose sight of its primary responsibility, being among others, to interrogate the expert reports in the light of the plaintiff's circumstances as they were prior to the accident and presently, post-accident and then exercise a value judgment after taking all relevant and material aspects into consideration. This Court must also warn itself against the pitfall of uncritically accepting one expert view and/or counsel's submission above the other.

[18]

This danger was highlighted in Louwrens v Oldwage [4] wherein Mthiyane JA put it as follows:

"[27] Confronted with the battery of experts on either side, presenting competing and contrasting evidence, the learned Judge preferred the evidence of the plaintiff's experts to that of the defendant without advancing any basis for so doing. All that he said was that the opinions of Professor De Villiers and Dr Parker are based on logical reasoning but he failed to give any demonstration of this. The learned Judge did not give equal credit to Drs de Kock and Stein and Professor Immelman whose views he harshly dismissed as being incapable of logical analysis and support. I do not share these views. The conclusion reached was clearly wrong. It is an approach which this

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Court has recently decried in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another, where it was said:

'(I)t would be wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support. Only where expert opinion cannot be logically supported at all will it fail to provide "the benchmark by reference to which the defendant's conduct falls to be assessed".'

The uncritical acceptance of the evidence of Professor De Villiers and the plaintiff's other expert evidence and the rejection of the evidence of the defendant's expert witnesses falls short of the requisite standard and the approach laid down by this Court in Michael v Linksfield Park Clinic. What was required of the trial Judge was to determine to what extent the opinions advanced by the experts were founded on logical reasoning and how the competing sets of evidence stood in relation to one another, viewed in the light of the probabilities. I have already indicated why I found the evidence adduced on behalf of the defendant to be more acceptable than that of the plaintiff's witnesses and why the conclusion of the trial Court cannot stand."

[19]

The learned justice was referring in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another [5] to paragraphs [36] and [37] thereof where the following was stated:

"[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 logical reasoning. That is the thrust of the decision by the House of Lords in the medical negligence case of Bolitho v City and Hackney Health Authority [1998] AC 232 (HL (E)). With the relevant dicta in the speech of Lord Browne-Wilkinson we respectfully agree. Summarised, they are to the following effect.

[37] The Court is not bound to absolve a defendant from liability for alleged...