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IN THE HIGH COURT OF SOUTH AFRICA
( WITWATERSRAND LOCAL DIVISION )

NOT REPORTABLE

APPEAL CASE NO. 504/06

HIGH COURT CASE NO. (WLD NO. 11154/06)

In the matter of the appeal between:

ROAD ACCIDENT FUND

and

TALITA BOTHA

JUDGMENT

WILLIS J:

[1] The appellant, who was the defendant in the Court a quo (per De Jager AJ), appeals with the leave of that Court against the award of R3 897 720, 00 in respect of loss of earnings and profits. I shall, for the sake of convenience, refer to the appellant as “the fund” and the respondent as “the plaintiff”.

[2] The claim arises from a collision which, it is common cause, took place on the N2 near Leeuwenbosch (which, in turn, is near Humansdorp) on 1^st December 1998.

[3] The fund admitted its liability to pay the plaintiff 100% of her proven damages in terms of the provisions of the Road Accident Fund Act, No 56 of 1996.

[4] The issue which came before De Jager AJ was the question of quantum only. De Jager AJ handed down his judgment on 22^nd June 2006. Included in his award were other aspects upon which leave to appeal was not granted.

[5] It is common cause that the plaintiff was 19 years old at the time of the collision. She was, at the time, a student at the Witwatersrand Technikon studying for a diploma in Sports Administration and Marketing. She had been an excellent all-round sportswoman, showing a particular talent for karate in which she had been a South African national champion and had won a silver medal in the world karate championships.

[9] The plaintiff had set her heart upon becoming a sports administrator as well as becoming a trainer/instructor, having her own karate club, starting with training pupils after hours. She had never had any other career in mind.

[10] The plaintiff suffered greatly as a result of the accident and spent a substantial period of time in hospital. For the purposes of this judgment it is not necessary to repeat all the tragic details.

[11] For purposes of this judgment it is important to note that it is common cause that, as a result of the accident, the plaintiff has extensive, permanent injuries to her right upper thigh and buttock as well as an injury 12 centimetres below her right lateral knee joint line; her right leg is shorter and thinner than her left, causing her to limp; she has osteoarthritis in various joints and there is a high probability that this will develop in the right hip joint as well. In addition, she suffers from permanent pain and psychological problems.

[12] All the experts agreed on the obvious: she will never be able to pursue the careers which, but for the accident, seemed to have been her destiny. As De Jager AJ noted, “Her dreams about a career in those fields has been shattered.”

[13] The experts agreed that she would, notwithstanding the accident, be able to do sedentary or “desk work” for which she would have to requalify. They also accepted that, in all probability, she would have to retire several years earlier than would otherwise have been the case. Her working capacity will decrease with the passing of the years.

[14] The nub of this appeal is concerned with the appropriate calculation to be made for the estimate of the plaintiff’s estimated future income, upon the assumption that the collision had not occurred. This, in turn, depends on whether one accepts the version on behalf of the plaintiff that she would not only have been able to earn a salary as a sports administrator but also coach karate on a part-time basis and build up a little business as well. De Jager AJ accepted that the plaintiff would, in all probability, have followed a double career. He came to this conclusion, relying, inter alia, on the evidence of one Roets that the majority of karate sensei (coaches) follow such a double career and in accepting the credibility of the plaintiff and her father. It is this finding which the fund’s counsel has severely criticised and upon which the appeal, essentially, turns.

[15] Mr Joseph, who appears for the fund has submitted that “the version of this sustained double income is a fabrication” and has also submitted that it “does not take into account the amount of time and energy involved in a full-time job as a sports promoter and the time and energy involved in running a karate business. Acceptance of this version ignores the reality of life being, inter alia, the respondent’s probable marriage, her probable family and the resultant commitments in that regard.”

[16] If one takes into account the plaintiff’s obvious talent, energy, dedication, industry and motivation as well as her celebrity status in the field of karate before the accident, one cannot fault De Jager AJ’s finding that she would, as a matter of probability, have successfully pursued a “double career.” Whatever various experts may assumed and, as Mr Joseph submitted, they may even, at a certain stage, have agreed upon, it was the learned Judge in the Court a quo who heard the plaintiff’s testimony and made his assessment of probabilities, taking into account his impressions of her as a person. One does not become a karate champion unless one is prepared to invest considerable time and energy into that field of human endeavour. Moreover, the world is changing, not only in the direction of “double careers” but also away from wifedom and motherhood being choices that militate against the pursuit of a career. There is nothing intrinsically implausible or unacceptable in the calculations made by the plaintiff’s actuary, Mr du Plessis. Accordingly, one cannot, in all the circumstances of this case, fault De Jager’s AJ’s reliance thereupon in coming to his award on the issue with which this appeal is concerned. If anything, the “double income” approach is conservative. Had the plaintiff become successful in her own karate business to the extent that it no longer became necessary for her to work in salaried employment (i.e. had she become a self-employed entrepreneur), the figure for her earnings “but for” the accident would have been considerably higher. The record shows that that would have been “first prize” for her. It should also not pass without comment that the main reason for the wide difference between the figures arrived at in the final actuarial reports presented on behalf of the respective parties was that Mr Gerard Jacobson, the fund’s actuary, did not take into account the assumptions which the learned Judge in the Court a quo indicated would predicate his award.

[17] It is common cause that from the amount calculated for her estimated future earnings (had the accident not taken place) must be deducted a figure in respect of the sum that she is now nevertheless expected to earn (even though the accident has occurred). In the light of the overall magnitude of the amount which, inevitably, the fund would be liable, there is not a substantial difference between the amount which the actuaries for the opposing sides estimated should be deducted in this regard. The fund, in this appeal, has suggested a figure of R2 190 851,00, after allowance for contingencies, which should be deducted in this regard. Mr Du Plessis, the plaintiff’s actuary suggested an amount of R 2 413 411 under this head. De Jager AJ made a 30% contingency deduction on this figure and came to a figure of R1 791 495, 00 which he deducted from the capitalised value of her estimated income but for the accident. The ambit of the dispute on this issue relates, essentially, to the appropriate contingency deduction. Even if this Court might have or should come to a different conclusion in this regard, the difference between the figure thus to be derived and the one which De Jager AJ adopted is not so great as to warrant any interference by this Court.¹ Furthermore there is a substantial difference of time between the estimates of the opposing actuaries as to the time it would take for the plaintiff to requalify. The fund’s actuary estimated one year. The plaintiff’s estimated five years. I consider the plaintiff’s estimate to be more realistic. Besides, this estimate depends not so much on actuarial expertise but a common sense projection of the time which a person in the circumstances of the plaintiff would take for her suitably to equip herself to earn an appropriate income.

[18] De Jager AJ’s calculations were as follows:

HLM Du Plessis’s (the actuary) estimates based on the assumption that she would be a sports officer to age 65 and operate a small karate club to age 70

Salary earnings

Capitalised value of past salary earnings 307 682

Capitalised value of future salary earnings 4 590 578

4 898 260

Less: 15% deduction for contingencies 734 739

__________

(a) 4 163 521

Karate Club Profit

Capitalised value of past profit 209 442

Capitalised value of future profit 1 824 817

2 034 259

Less: 25% deduction for contingencies 508 565

________

(b) 1 525 694

Total for Salary and Karate Club Profit

(i.e 4 163 521 + 1 525 694 9 ((a)+(b) above)) 5 689 215

Less: 1 791 495²

________

3 897 720

[19] It is well settled law that a Court of appeal will not, in the absence of any misdirection or irregularity, interfere with a trial Court’s award of damages unless there is a substantial variation or a striking disparity between the trial Court’s award and what the Court of appeal considers should be awarded, or unless the Court of appeal thinks that no sound basis exists for the award made by the trial Court.³ Insofar as the contingency deductions for estimated future salary earnings and karate club profits, upon the assumption that the accident had not occurred, are concerned, similar considerations to those referred to in paragraph [17] above apply. There is no striking disparity between what this Court might consider appropriate and that which the Court a quo decided upon such that there would be a substantial variation between the two awards. But, in any event, even if a higher contingency deduction had been allowed for the Karate Club Profits, this would not have had any considerable impact on the final amount to be awarded. For example, if 40% had been deducted, instead of the 25% which De Jager AJ applied, this would have made a difference, in round figures, to the final sum of R305 000,00. This would be less than 10% of the total. As has been said over and over again, the calculation of the quantum of a future amount of earnings cannot be a matter of exact mathematical calculation and that, by its nature, the enquiry is speculative and a Court can therefore only make an estimate of the present value of the loss which is very rough.⁴ It cannot be right, and would undermine well settled law and policy if this Court were to interfere with the painstaking and careful considerations of the trial judge when there is, in relative terms, such a small margin of discrepancy between what this Court might have awarded and the trial Court did award on such a speculative matter. It needs perhaps to be emphasised that an award is particularly speculative when, as in this case, one is dealing with very serious injuries to such a young person.

[20] De Jager AJ committed no misdirection or irregularity. It also cannot be said that there was no sound basis for the award made by him.

[20] The appeal should be dismissed with costs.

DATED AT JOHANNESBURG THIS 29th DAY OF JUNE, 2007

N.P.WILLIS

JUDGE OF THE HIGH COURT

I agree. The appeal is dismissed with costs.

M.M.JOFFE

JUDGE OF THE HIGH COURT

I agree.

J.I. DU TOIT

ACTING JUDGE OF THE HIGH COURT

Counsel for the Appellant: B. Joseph

Attorneys for the Appellant: M. F. Jassat Dhlamini & Associates

Counsel for Respondent: M.W. Verster

Attorneys for Respondent: Robbetze-Steyn

Date of hearing: 28^th June, 2007

Date of judgment: 17^th July, 2007

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