Spamer v Road Accident Fund (A665/2015) [2018] ZAGPPHC 608 (20 April 2018)

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

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)

NOT REPORTABLE

(2) REVISED.

CASE NO: A665/2015

20/4/2018

In the matter between:

JACOB

JOHANNES

SPAMER

Appellant

And

ROAD

ACCIDENT

FUND

Respondent

JUDGMENT

MOLOPA-SETHOSA J

[1] This is an appeal against the judgment and order by Makhubele AJ [as she then was] delivered on 13 March 2015 in terms whereof the court a quo dismissed the appellant's claim for loss of earning capacity.

BACKGROUND

[2] The appellant, Jacob Johannes Spamer, who was the plaintiff at the court a quo, ("appellant") had instituted an action against the Road Accident Fund, the defendant at the court a quo, ("respondent") for damages arising out of a motor vehicle collision which occurred on 3 January 2010 along the N1 highway in the direction of Polokwane, just before Stormvoel off-ramp, between a motor vehicle with registration letters and numbers [….], at the time driven by the appellant, and a motor vehicle with registration letters and numbers MADMAX L ("the insured vehicle") there and then driven by one Danie Senekal ("the insured driver").

[3] The issue of liability had been settled on the basis that the respondent is liable to pay to the appellant 100% of the agreed or proven damages. When the matter came before the court a quo for hearing on the quantum of damages, the parties had reached an agreement, in terms whereof the respondent had agreed:

[3.1] To pay to the appellant 100% of the appellant's proven or agreed damages.

[3.2] There was no claim for past hospital and medical expenses.

[3.3] To provide the appellant with an undertaking in terms of section 17(4) (a) of the Road Accident Fund Act, 56 of l 996("The Act") in respect of future medical and related expenses.

[3.4] The appellant did not qualify as a serious injury in respect of general damages.

[4] During the trial at the court a quo all that the court a quo was called upon to do was to adjudicate on the appellant's claims for future loss of earning and earning capacity, calculated as per the actuarial report of Mr G Whittaker of Algorithm Consultants and Actuaries CC dated 13 January 2014.

[5] It is common cause that at the pre-trial conference held on 15 January 2015, the respondent expressly and unequivocally made an admission admitting the factual allegations/findings, opinions and basis/evidence in support of the appellant's injuries and sequelae thereof as contained in the expert notices of the appellant, filed in terms of Rule 36(9)(b); referred to in paragraph [3.1], subparagraphs [3.1.2 to 3.1.9] read with paragraph [3.2] of the pre-trial minute.

[6] The learned Judge a quo however found as follows:

"[107] The 4% - 5% loss of work capacity that Dr Birrell was prepared to concede in his favour has not been shown to translate into a lessening of the plaintiff's patrimony because there is no evidence to suggest that what he would earn post-morbid has been compromised.

The plaintiff remains on the same position as a QS and there is no evidence to demonstrate that his anxiety about career progression has anything to do with the accident.

[108] Accordingly, the plaintiff's claim for loss of earning capacity fails.

ORDER

[109] I will amend the draft order that was handed in at the conclusion of the oral submissions by deleting paragraph 1 and renumbering the remaining paragraphs in chronological sequence.

[110] The order that I make is in terms of the draft I have marked " XY" as amended by me."

[7] In essence the learned Judge a quo dismissed the appellant's claim for future loss of earnings/earning capacity.

[8] In the draft order that was handed up by agreement between the parties, all that the learned judge was requested to do was to fill in an amount for future loss of earnings/earning capacity after deducting the contingency post-accident, which she, in her discretion, found to be fair and reasonable. Counsel for the defendant confirmed to the learned Judge a quo that all the expert reports, including the actuarial report prepared by Mr G Whittaker of Algorithm Consultants and Actuaries CC, dated 13 January 2014 had been admitted. The basis of the calculations used by Whittaker was not disputed; all that was in issue was the issue of contingency post-accident. The appellant's pre-accident earnings were valued at R796, 478 per annum at 01 February 2015, and thereafter inflation increases were made up to retirement age of 70. Post-accident earnings were valued at the same level of income as for pre-accident, until retirement at the age of 70. The expert opinion of Wessels, an Industrial psychologist, with regard to the productive nature of the work of a Quantity Surveyor and the fact that pain and concentration deficiency may affect productivity was taken into account. Slightly higher contingencies, as suggested by Wessels, were applied to off-set pre­ existing psychological disposition. Explicit provision was made for a 3.5% chance of the appellant being off work for eight (8) weeks in an assumed 10 years' time for cervical surgery as envisaged by Orthopaedic Surgeon, Dr D.A Birrell in his report dated 31 March 2014.

[9] The appellant now appeals to the Full Court of this Division, against the judgment and orders of the learned Judge a quo. The appeal is with leave of the court a quo, granted on 24 August 2015.

[10] The material underlying issue in this appeal is the effect of the admissions on record made by the respondent. As already set out above, at the pre-trial conference held on 15 January 2015, the respondent expressly and unequivocally made an admission admitting the factual allegations/findings, opinions and basis/evidence in support of the appellant' s injuries and sequelae thereof as contained in the expert notices of the appellant, filed in terms of Rule 36(9)(b); referred to in paragraph [3.1], subparagraphs [3.1.2 to 3.1.9] read with paragraph [3.2] of the pre­ trial minute.

[11] The appellant contends that the effect of the above admissions set out above is that the entire content of each of the expert reports referred to, is accepted as evidence before the Court rendering it unnecessary to adduce viva voce evidence by such experts in respect of the issues dealt with in the reports or for that matter, to adduce any other evidence, such as evidence by the appellant himself; further, that it was in fact unnecessary to adduce any further evidence, including the evidence of the appellant and the fact that it was done and/or the fact that the evidence might seem to be insufficient or was interpreted as being insufficient, cannot detract from the effect of the aforesaid admissions.

[12] The appellant submitted that this admission was an express admission and not a deemed admission by default.

[13] It is common cause that the respondent failed to respond to certain pre-trial questions asked in paragraphs 5.1 to 5.6 of the pre-trial minutes, within the agreed time frames, to which in the respondent's reply, it is specifically stated that the respondent "undertakes to revert by 16 January 2015 at 16h30, failing which same will be deemed to be admitted and no evidence will have to be adduced by the plaintiff (referring to the appellant)."

[My underlining].

[14] The appellant contends that the respondent's failure to revert before the trial or at all, to the specific questions asked in paragraphs 5.1 to 5.6 of the pre-trial minutes, as stated above, clearly had the effect that in addition to the above express blanket admission with regards paragraph 3.2, read with paragraph 3.1 of the pre-trial minute, the issues raised in paragraphs 5.1 to 5.6 of the pre-trial minutes were also specifically admitted by the respondent.

[15] The appellant thus submitted that by default, the respondent specifically admitted the sequelae suffered as a result of the injuries sustained by the appellant, as recorded in the respective medico-legal reports filed on behalf of the appellant; that the appellant' s productivity has been negatively affected by the sequelae of his injuries and that it will in future be negatively affected; that the appellant has, as a result of his injuries, suffered a loss of earning capacity; that the appellant will suffer a loss of income in the future.

[16] During the opening address, the respondent's attorney, on a question by the learned Judge a quo, unequivocally confirmed that all the plaintiff's experts reports " will have to be regarded as being admitted", and that the only dispute that the Court will be required to decide is the issue of the post-accident contingency deduction. [My underlining]

[17] In paragraph [10] of her judgement, the learned Judge a quo stated that the respondent's attorney confirmed during argument that the only dispute between the parties related to the correct contingencies to be applied in respect of future loss of earning capacity, and that the respondent's attorney contended in argument that a 3% differential (contingency spread) should be applied in quantifying the appellant's loss of earning capacity post-accident. In this regard, whereas the appellant's counsel at the court a quo argued for a 15% contingency deduction, the respondent's counsel argued for an 18% contingency deduction- a 3% differential (contingency spread).

[18] The facts and/or opinions relevant to the appellant's claim for loss of earning capacity contained in the expert reports that were admitted by the respondent, can briefly be summarized as follows:

[18.1] A report by Dr D A (Tony) Birrell ("Dr Birrell"), an orthopaedic surgeon, dated 15 October 2012. Dr Birrell stated the appellant still had neck pain which is increased by sitting at a computer for a long time or with rotation of the neck and the neck also becomes stiff, and the pain spreads to the trapezius areas; that he has frontal headaches which occur approximately once per week and he had no such headaches prior to the accident; that he developed mid to lower backache approximately six months ago and this is increased when he is bending over forwards;

Dr Birrell estimated the appellant's loss of work capacity as a result of the accident to be in the order of 4%, to 5%,. He opined this can be improved with conservative treatment by "a percentage or so".

[18.2] An addendum report by Dr Birrell dated 31 March 2014:

[18.2.1] Dr Birrell stated that the appellant still has headaches approximately 2 to 3 times a week; that lower back pain develops

during the course of the day and is brought on by daily activities, such as working on a computer for many hours. The appellant can perform his duties at work, but with difficulty as the day progresses due to neck and back pain. The appellant has to take breaks and do stretching exercises before he would be able to continue. Further, the appellant has pain and a sensation of restlessness of the left upper arm which leads to weakness and an inability to pick up objects with ease, even when it is only a cup of coffee;

[18.2.2] Dr Birrell's opinion remains that the appellant's loss of work capacity is (still) in the order of 4% to 5%. He (Dr Birrell) noted that the appellant does spend a lot of time on the computer; that this could be improved with conservative therapy by "a percentage or so".

[18.3] A report by Professor V U Fritz ("Prof Fritz"), a neurologist, dated 4 October 2012:

[18.3.1] Prof Fritz stated that the appellant also complained to him about back pain, headaches and pins and needles in his feet.

[18.4] A report by Dr M Mazabow, a clinical psychologist, dated 4 December 2012:

[18.4.1] In addition to the complaints about the headaches and the lower back pain, the appellant also complained to him that he becomes fatigued in the afternoons;

[18.4.2] On psychometric testing, Dr Mazabow found that the appellant was prone to intermittent lapses of attention, which resulted in a slow performance in certain tests. In his opinion Dr Mazabow attributed this firstly to pre-existing concentration difficulties, but also to the back pain and headaches which "would be expected to disrupt Mr Spamer 's attention and concentration rendering him more distractible at times when the pain symptoms are more salient".

[18.5] A report by Ms Petro Grove "(Grove"), an occupational therapist, dated 11 December 2014, wherein she recorded that:

[18.5.1] Grove stated that the appellant reported taking medication for pain. The appellant complained to Grove of neck pain and stiffness radiating into the trapezius muscles with pain between the scapulae, back pain and weakness of the left upper arm with difficulty picking up objects, even light objects at times. He reported that while employed by VDDB Quantity Surveyors, his job was usually office based but he was required to do site visits where he was required to walk around on the site, including climbing of steps and staircases and travelling (1 hour) to site visits in Johannesburg and also occasionally to Gaborone. That in his current position at PCC he still works on a computer. He goes on site visits (more often) and travels to Ellisras once a week (4 hours). During site visits he is required to climb stairs and scaffolding to do measurements, although the actual measurements are usually done by junior assistants.

[18.5.2] Ms Grove states in her report that she conducted a telephonic interview with a colleague of the appellant, Mr Nieuwoudt, who reported to her that although the appellant is able to perform his job, he complains of back pain in different situations, inter alia when he does measurements Mr Nieuwoudt is usually requested to continue with the measurements. The appellant takes regular breaks every half hour to one hour when doing office work and that it was his impression that the appellant had to put in longer hours as a result of taking regular breaks in order to complete his work, also that the appellant claims less overtime than what he actually puts in.

[18.5.3] The appellant reported to Ms Grove that sitting for long periods in the office while working on his laptop, is a problem for him; and he described the intensity of his neck pain, back pain and headaches to her as varying from moderate to severe.

[18.6] A report by Mr Wessels ("Wessels"), an industrial psychologist, dated 19 December 2014:

[18.6.1] The appellant reported to Wessels that he had neck problems radiating into the left shoulder and lower back pain from extended periods of sitting, also that performing of work becomes more difficult as the day progresses and especially after having worked on a computer for an extended period. Wessels concluded that the appellant did not suffer any past loss of earnings

[18.6.2] Wessels referred to the orthopaedic surgeon (Dr Birrell)'s opinion that the appellant has a loss of work capacity of 4% to 5% which might improve somewhat. He also refers to the opm1on of the clinical psychologist, Mazabow, that the back pain and headaches would be expected to disrupt the appellant's attention/concentration, rendering him more distractible at times when the pain symptoms are more salient.

[18.6.4] Wessels then expressed the following opinion:

"The work of a quantity surveyor has largely to do with productive performances in construction processes. In this capacity, optimal productive capacity is required by the quantity surveying incumbents. It is thus important to work to optimal capacity and to maintain attention and concentration to work towards achievement of production targets. Remuneration incentives in his instance are also linked to the achievement of production targets. Variable attention and concentration resulting inter alia from the impact of pain emanating from the orthopaedic injuries as well as the aggravation of his depressive condition, will have a direct influence on his productive capacity and ability to work to optimal productive performance and thus influencing his incentive remuneration negatively. "

In this regard, the appellant submitted that it is a matter of logic that, in addition to the factors stated by Wessels above, the

problems in the workplace alluded to by Wessels could also have the effect that the appellant loses out on promotions or receive delayed promotions (which will result in a direct loss of earnings) and that this could result in him losing his job.

[18.6.5] Wessels recommended that based on his expert opm1on, a slightly higher post-accident contingency deduction should be applied, to quantify the negative impact of the injuries and the sequelae on the appellant's work ability.

[19] From the factual observations by the experts, facts reported to them and opinions expressed by them in their reports referred to above, which were all admitted by the respondent, it is abundantly clear that the appellant's ability to perform his work and therefore his earning capacity has been negatively affected by the injuries and the sequelae thereof. As pointed out above, the respondent in addition (and clearly based on the above contents of the expert reports) admitted (in the pre-trial minute) that the appellant's productivity has been negatively affected by the sequelae of his injuries and that it will in future be negatively affected; that the appellant suffered a loss of earning capacity as a result of his injuries; that the appellant will suffer a loss of income in the future.

[20] In view of the aforesaid admissions, the appellant correctly submitted that it was not necessary for the appellant to adduce evidence from his current employer to support his claim that the orthopaedic injuries are impacting negatively on his work production.

[21] Evidence to that effect was before the Court:

[21.1] In the report by the occupational therapist, Ms Grove, referred to above, she relied on what was reported to her post accident by a colleague of the appellant, Mr Nieuwoudt. It cannot be argued that the report made by Nieuwoudt to Ms Grove is hearsay evidence, in view of the fact that in paragraph 3.2 of the pre-trial minute "the factual allegations/findings, opinions and basis/evidence in support of same, as contained in the aforementioned expert notice were admitted by the respondent.

[21.2] The appellant testified that "he often has to take breaks to lie down due to pain". He was criticized by the court a quo for not mentioning to the experts that he sometimes takes breaks "to lie down" to ease the pain. From what his colleague-Nieuwoudt informed Grove, it is apparent that he in fact did mention to the experts that he had to take breaks. The appellant did mention to Wessels that performing of his work becomes difficult as the day progresses and especially after having worked on a computer for an extended period. It can safely be inferred that in those instances he would take a break to alleviate the discomfort.

[22] In my considered view the court a quo erred in finding that the appellant still had to prove, based on the available evidence, that he had suffered a loss of earning capacity because ' the court cannot simply accept conclusions that are not supported by facts or logical reasoning.

[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 summarised 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 what 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 method proffered in the matter of Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) referred to in the court a quo's judgment, but it can be quantified by 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.

[26] Counsel for the appellant submitted that the basis on which an award for loss of earning capacity was made in Griffiths v Mutual & Federal Insurance Co Ltd [1993] ZASCA 121; 1994 (1) SA 535 (AD) is exactly the same as contended for by the appellant. Vivier JA in the Griffiths matter stated the following at 545 F - H:

"As I have shown medical opinion was unanimous that the Appellant is left with a permanently reduced working capacity. Her productivity is diminished: she can no longer work the hours she worked before; her powers of concentration are reduced; she tires more quickly and she can only do a limited amount of work as she finds this too stressful. That impairment of this nature will generally result in a loss of earning capacity for someone who is fulltime engaged in legal practice may safely be assumed. "

[27] As already stated the only dispute between the parties at the trial was what the difference between the pre-accident and post-accident contingencies should be for purposes of quantifying the appellant's future loss of earning capacity. The appellant submitted that the court a quo descended into the arena of conflict between the parties and created (or assumed) a dispute, which did not exist as between the parties.

[28] From the record it is clear that the learned Judge did not at any stage inform the plaintiff's representatives that she did not regard herself bound by the express and/or deemed admissions by the defendant in the pre-trial minute, as confirmed by the defendant' s attorney during the opening address, so as to forewarn the plaintiff's counsel that further evidence would be required by the court to prove these admitted facts and to give the plaintiff the opportunity to present such further evidence, or at least address the court in final argument on these issues.

[29] It is trite law that a judicial admission of fact is conclusive, rendering it unnecessary for the one party (in whose favour the admission was made) to adduce evidence to prove the admitted fact, and incompetent for the other party, making it to adduce evidence to contradict it, refer Gordon v Tarnow 1947 (3) SA 525 at 531-532; AA Mutual Assurance Association v Biddulph and Another 1976 (1) SA 725 AD at 725H-735B. This principle is also confirmed in section 15 of the Civil Proceedings Evidence Act, 25 of 1965, which provides:

"It shall not be necessary for any party in any civil proceedings to prove, nor shall it be competent for any such party to disprove, any fact admitted on the record of such proceedings".

[30] Admissions made during a pre-trial conference (as recorded in the pre-trial minute) have the same effect as admissions made by a party in the pleadings, and the party who makes the admissions, is bound by them. No further evidence need to be adduced by the other party in respect of those facts admitted and the Court can (and should) make an order purely based on those admissions; refer Unreported judgment by Khumalo J in this Division in Adv R Ferguson obo De Ridder LA v Road Accident Fund Case No A592/13. Admissions of facts made at a Rule 37 conference, constitute sufficient proof of those facts; refer Price NO v Allied JBS Building Society 1980 (3) SA 874 (A) at 882D-E.MEC for Economic Affairs, Environment and Tourism v Kruizenga 2010 (4) SA 122 (SCA) at 126.

[31] The effect of the above principle 1s that a party (the plaintiff/appellant in this case) should, and must conduct his case accordingly. The decision what evidence to adduce at the trial, has to take into account, and must be based on the aforesaid principle. As clearly stated above, the effect of this principle is that it is not necessary to adduce evidence to prove admitted facts. Where the salient facts necessary to prove a claim have been admitted, a plaintiffs claim cannot fail because no further evidence (or purportedly insufficient evidence) was adduced in respect of the admitted facts. The Court a quo erred in this regard by holding that the appellant's claim for loss of earnings and/or earning capacity failed due to this reason.

[32] In the circumstances the learned Judge a quo erred on a matter of law, by not taking cognisance of the trite evidentiary principles referred to above, and by not applying those principles correctly or at all; she misdirected herself in not finding that based on the undisputed facts in plaintiffs expert reports, the plaintiff did in fact prove that he will suffer a loss of earning capacity in future; see Kleinhans v RAF 2016 JDR 1274 GP.

[33] Counsel for the respondent conceded that the respondent's attorney signed the pre-trial minute and confirmed to the court that the only issue to be decided at trial was the post-accident contingency. He confirmed admissions made on behalf of the respondent pertaining to the evidence in the expert reports. In essence the respondent's counsel conceded that the learned judge a quo went beyond the scope of what she was required to do at the trial [without even warning the appellant's counsel of her intended approach/view, so as to allow the appellant to present appropriate evidence in the circumstances, like calling his employer; though his difficulties post-accident were articulated to Grove by Niewoudt].

[34] Counsel for the respondent reiterated that the respondent's bone of contention was that there must be a 3% post-accident contingency, based on Dr Birrell's opinion that the appellant's loss of work capacity can be improved with conservative treatment by a percentage or so. I agree with this postulation.

[35] In the circumstances, I am of the view that a proper case has been made out by the appellant for the appeal to be upheld.

[36] In her judgment on the application for leave to appeal, the learned Judge remarked in paragraph 6.1 that "there is a need for legal certainty on the principle that the litigant is bound by the admissions made, more especially in the context where such admissions are as a result of failure to answer pre-trial questions". In the circumstances of this case, it is not merely a matter of ''failure to answer pre-trial questions". The failure to provide further answers which the defendant undertook to do by 16 January 2015 at 16h30, must be judged in the context of the answers that were in fact provided by the defendant at the pre-trial meeting.

[37] The answer provided by the defendant at the pre-trial conference was that "the defendant undertakes to revert by close of business on Friday, 16 January 2015, at 16h30, failing which same will be deemed to be admitted and no evidence in respect thereof will have to be adduced by the plaintiff''. This was a clear and more unambiguous answer. The admission of the plaintiff's expert reports was not by default, but was an express admission in terms of the amendment to the original answer in paragraph 3.2 read with paragraph 3.1of the pre-trial minute. If it was not the intention of the defendant to make these admissions, it would have been the easiest thing to send a short letter or e-mail to the appellant/plaintiffs attorneys informing them in one short sentence, that "the defendant is not prepared to make any of the requested admissions ", which did not happen. As already stated, the appellant's counsel confirmed that the only dispute that the court would be required to determine, was the issue of the post-accident contingency deduction.

[38] The admissions cannot be said to have been made "by default". These admissions are in my considered view admissions as contemplated in section 15 of the Civil Proceedings Evidence Act 25 of 1965, alluded to above.

[39] With regard to the questions posed by the learned Judge in the court a quo in paragraph 7 of the judgment on the application for leave to appeal, which seem to limit the issues to be decided on appeal- the questions in paragraphs 7.1 and 7.2 of the judgment, cannot be considered in isolation, but need to be considered having regard to the legal principles confirmed in the judgments referred to in paragraphs [28] and

[38] here above, as well as the provisions of section 15 of the Civil Proceedings Evidence Act, 25 of 1965.

[40] The trial court is not precluded from scrutinising the expert reports that were expressly admitted by the respondent expressly, as per paragraph 3.2 of the relevant pre-trial minute, to ascertain whether there is a logical nexus between the facts and the conclusions reached. The appellant, correctly so, submitted that the trial court is nevertheless bound by any agreement reached between the parties, be it in the form of admissions or otherwise, and the trial court could not, and should not, descend into the arena, and interfere with such agreements/admissions, or create a dispute where it does not exist.

[41] In the present matter, the plaintiff was reassured into, what later transpired to be a false sense of security, by the admission of his expert reports, the further specific admissions in paragraphs 5.4 to 5.6 of the pre­ trial minute and the confirmation by the defendant's attorney at the trial that the only issue was the post-accident contingency deduction as well as his argument in this regard that 18°/o should be deducted

post-accident [My emphasis]

[42] Against this background it is understandable that the appellant contended that the learned Judge a quo erred in finding, particularly in view of the admissions made in paragraphs 5.4, 5.5 and 5.6 of the pre­ trial minute, that the 4% to 5% loss of work capacity contended for by Dr Birrell has not been shown to translate into a lessening of the appellant's patrimony because there was no evidence to suggest that what he would earn post-morbid has been compromised.

[43] On the facts, and having regard to all the circumstances of this case, namely the contents of the expert reports that were admitted, the further admissions by the respondent and the legal principles referred to above, I am of a considered view that on a balance of probabilities the appellant has suffered a loss of earning capacity due to the sequelae of the injuries he sustained in the collision. The learned Judge a quo erred in not allowing an award in respect of loss of earnings/earning capacity. The appellant in the Griffiths matter was in exactly the same position. In Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) at 150 A-C the court stated that although the loss of ability to earn income is usually measured against the standard of expected income, the loss of that ability is actually not a loss of earnings. It is the loss of earning capacity which should be quantified, not the loss of earnings. See also Dippenaar v Shield Insurance Company Ltd 1979 (2) SA 904 (A) at 917 B-D.

[44] Turning to the claim of the appellant for loss of earnings, the basis of actuarial calculations by Whittaker was admitted barring the post­ accident contingency deduction which remained in dispute. It is trite law that where mathematical proof of the damages suffered is in the nature of things impossible or difficult, then, provided that there is evidence that pecuniary damage in this regard will be suffered, the court must estimate the amount of the damages as best it can on the evidence available, and the appellant cannot be non-suited because the damages cannot be exactly computed mathematically. The application of appropriate contingencies is an accepted method in our courts to deal with the uncertainties of predicting the future. In the present case there is sufficient proof that the appellant will in future suffer pecuniary loss based on the opinion of Dr Birrell that there is a 4% to 5% loss of work capacity and the opinion of Mr Wessels regarding the effect of pain emanating from the orthopaedic injuries on a person's optimal capacity and productivity referred to in paragraphs 14.6.3 and 14.6.4 above.

[45] It was held that justice may require that a contingency allowance be made for a mere possibility of loss. See Corbett, Buchanan & Gauntlett, The Quantum of Damages in Bodily and Fatal Injury Cases, 3rd Edition (on general principles), Vol 1, p 10; Burger v Union National South British Insurance Co Ltd 1975 (4) SA 72 (W) at 74H-75H; Van Oudtshoorn v Northern Assurance Co Ltd 1963 (2) SA 642 (AD) at 650; Wilson v Birt (Pty) Ltd 1963 (2) 508 (D) at 517.

[46] In the circumstances of this case, it is for obvious reasons impossible to prove exactly to what extent the appellant's patrimony (or what he could have earned but for the injuries) will be affected by the injuries. What has been proved, is that there is a loss of work capacity which will result in a loss of earning capacity and for that matter a loss of earnings in future (as per the respondent's admission). There are two ways in which this can be quantified, by the application of appropriate contingency deductions, pre-morbidly and post-morbidly (Wessels suggests slightly higher contingency), or by awarding an arbitrary lump sum (as in the Griffiths matter).

[47] The only dispute to be adjudicated upon by the court a quo was the appropriate post-accident contingency deduction to be applied. In this regard the appellant submitted that a slightly higher post-accident (injured) contingency deduction, in comparison with the pre-accident (uninjured) contingency deduction, should be applied, as recommended by the industrial psychologist, Mr Wessels. The only direct evidence before the court in this regard was the evidence by Dr Birrell in his report that the plaintiff suffered a loss of working capacity of 4% to 5% which could slightly improve by 1% with successful treatment;

[48] Based on the actuarial calculations by Whittaker the appellant postulated that the following post-accident contingency deductions will result in a total loss as indicated below:

I. 20% (5% higher than pre-accident), will result in a loss ofR523,404.00, alternatively

II. 19% (4% higher than pre-accident), will result in a loss of R419,090.00, alternatively

III. 18% (3% higher than pre-accident) as contended for by the defendant's attorney during the trial, will result in a loss of R314,777.00.

[49] Taking into consideration Dr Birrell's opinion in his report that the plaintiff suffered a loss of working capacity of 4% to 5% which could slightly improve by 1% with successful treatment; I am of a considered view that a 3% post-accident contingency [as contended by the respondent] is fair

and reasonable.

[50] In the result I make the following order:

1) The appeal is upheld with costs, including the costs of the application for leave to appeal, as well as the costs of two counsel and the costs of preparing Heads of Argument.

2) the order of Makhubele AJ 1s set aside and replaced with the following order:

"2.1 The respondent (defendant) is ordered to pay to the plaintiff an amount ofR314 777.00 (three hundred and fourteen thousand seven hundred and seventy seven) in respect of future loss of earning capacity.

2.3 The remainder of the draft order marked XY remains in force."

L M MOLOPA-SETHOSA

JUDGE

OF THE HIGH COURT

I agree

W

R C PRINSLOO

M

J TEFFO

Appearances as follows:

Counsel for Plaintiff: Adv: J P J Du PLESSIS S.C.

Adv:

M VAN ANTWERPEN

Instructed by:

ADAMS & ADAMS

Counsel for Defendant: Adv:

C P J STRYDOM

Instructed by:

FOURIE FISMER INC