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[2017] ZAWCHC 44
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M.A v Road Accident Fund (15323/2012) [2017] ZAWCHC 44 (5 April 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
CASE
NO.: 15323/2012
Reportable:
No
Of
interest to other judges: No
In
the matter between:
M
A
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
CANCA
AJ
INTRODUCTION
[1]
The plaintiff sues the defendant for damages arising from the
diffuse brain injury (“head injury”) she
sustained
in a motor vehicle collision which occurred on 10 July 2010 in
Bergvliet, Cape Town (“the collision”).
[2]
The merits of the matter have been settled on the basis that the
defendant is liable for 50 percent of the plaintiff’s
proven
damages. A court order to that effect was granted on 23 May 2016.
[3]
Regarding the quantum of the claim, the defendant has,
inter alia
,
agreed to:
3.1. Pay the plaintiff
general damages in the sum of R 750 000.00;
3.2. Furnish the
plaintiff with an undertaking in terms of
section 17(4)
(a) of the
Road Accident Fund Act, 56 of 1996
for 50 percent of her future
medical expenses;
3.3. Accept as correct
the actuarial methodologies set out in paragraphs A to J of the
Annexure to the report prepared by Munro
Forensic Actuaries (“Munro”
or “the Munro Report”). The defendant also agrees that
the actuarial assumptions
set out in paragraph 5.2 of the Munro
Report are appropriate;
3.4. The correctness of
the following factual assumptions in the Munro Report, namely that:
3.4.1 The plaintiff
earned no income from September 2010 to March 2011 i.e. 7 months;
3.4.2 The plaintiff’s
basic salary and travel allowance at the time of the accident as
reflected in paragraph 3 of the Munro
Report;
3.4.3 The plaintiff
earned no income as from June 2016 to the date of the trial;
3.4.4 The application to
Discovery Life for the medical boarding of the plaintiff was
unsuccessful;
3.4.5 The plaintiff’s
income from May 2015 included a monthly pension contribution to the
value of R 2 630.00, which was equivalent
to 8.22 percent of her
salary package;
3.4.6 The 8.22 percent
portion of the plaintiff’s total earnings from May 2015
consisted of non – taxable benefits;
3.4.7 The plaintiff’s
actual injured income from the date of the accident to the end of May
2016 is correctly reflected in
the Munro Report.
[4]
The parties agreed that the court should adjudicate the disputed
factual assumptions and determine the contingencies to be deducted
by
Munro when calculating the plaintiff’s past and future loss of
income.
[5]
There was no agreement on (a) the plaintiff’s future injured
earning capacity and (b) certain past hospital and medical
expenses.
The
contents of paragraphs, 2, 3, 4 and 5 above are contained in a minute
concluded by the parties on 15 November 2016.
[6
]
As I understand the issues, I have to determine, not
only the contingency factors to be applied, but also the assumptions
to be
used in determining what the plaintiff’s future income
would have been, had it not been for the head injury and what her
future income will probably be, having regard to that injury.
BACKGROUND
[7]
The plaintiff was born on the […] 1978 and completed Grade 12
at Wynberg Girl’s High School in […]. She
was involved
in a previous accident in 1995, whilst in Grade […], which
required surgery to insert a facial plate. It is
agreed that this
injury did not contribute to the
sequelae
caused by the head
injury the plaintiff sustained in the collision. The plaintiff
completed a course in business printing, another
one in computers and
also obtained two certificates in Hills Pet Nutrition, after Grade
12.
[8]
The plaintiff lost consciousness at the time of the collision, was
hospitalised as an in-patient for approximately 6 days, spent
time at
a facility for rehabilitation and was off from work from the date of
the collision until April 2011. During this period,
the plaintiff
continued to be seen by various medical practitioners.
[9]
The plaintiff worked as a practice manager of a veterinary clinic
(“the practice”) in the Southern Suburbs of Cape
Town at
the time of the collision, having started there as a receptionist.
The plaintiff’s prospects of further advancement
at the
practice were limited, unless she qualified as a veterinarian nurse
or a veterinarian surgeon. The owner of the practice,
Dr Siegfried,
testified for the plaintiff and described her pre-collision work in
glowing terms. According to him, she was not
the same person after
the collision and also did not return to her previous position as
practice manager. He kept her on as an
employee mostly out of
sympathy, so his evidence continued. His further testimony was that
on her return to work, the plaintiff
initially only worked limited
hours, re-integrated slowly, made various mistakes and interacted
poorly with her fellow employees.
However, by the time she eventually
resigned from the practice, some 5 years later, the plaintiff was
working normal hours, the
testimony continued.
[10]
Upon her retirement from the practice, the plaintiff took up
employment on 1 May 2015 as a sales representative in the animal
products division of an international pharmaceutical company (“the
company”). The plaintiff’s reasons for her
resignation
from the practice were placed in issue by the defendant. The
defendant contended that her resignation was a calculated
upward
career move which entailed a 50 percent salary increase. The
plaintiff, on the other hand, submitted that she resigned,
inter
alia
, because she felt that, given her inability to execute her
duties with the same high standard she did before the collision, she
was letting both Dr Siegfried and her fellow employees down. In
addition, she thought that a new work environment would be beneficial
to her, so her submission continued.
[11]
The plaintiff also testified that she had difficulty coping with the
demands of her new work and could not meet the various
sales targets
set by her employer. According to her, the main cause for this was
her physical and mental deficits which involved
fatigue, persistent
migraines, irritability, mood disorder and sensitivity to light and
sound, all of which required her to take
long periods of rest during
the latter part of the day. Her immediate superior at the
company, Mr Wright, confirmed that
the plaintiff appeared to fatigue
as the day wore on and that she struggled to meet her sales targets.
However, Wright also testified
that the company was, as a general
rule, not too strict in holding new employees to their targets during
their first year of employment.
The plaintiff’s employment at
the company was, on the advice of her treating neurologist, Dr Frost,
eventually terminated
on medical grounds in April 2016.
[12]
There was agreement among the medical experts and the lay witnesses
that, following the collision and her subsequent treatment,
the
plaintiff was a different person to the one she was before the
collision. What is placed in issue is the plaintiff’s
contention that her brain injury and its various
sequelae
has
rendered her unemployable.
[13]
I do not consider it necessary to furnish a detailed account of the
various consequences of the head injury sustained by the
plaintiff.
The neurosurgical and neuropsychological experts, as appears
hereunder, are at one that the plaintiff’s said injury
left her
with residual neuropsychological deficits which will have a permanent
impact on her personal and work life. The industrial
psychologists
are also agreed that she was likely to suffer future loss of
earnings.
MEDICAL
EVIDENCE
[14]
In support of her claim, the plaintiff presented the evidence of
various medico – legal experts, medical practitioners
and lay
persons, including her father. The experts were: Dr Domingo
(neurosurgeon); Dr Suttle (ophthalmic surgeon); Dr Madden (clinical
neuro and educational psychologist); Dr Ogilvy (speech therapist); Dr
Hunter (industrial psychologist); Munro; Ms Bester (occupational
therapist) and Mr Lewis (clinical psychologist).
[15]
The defendant admitted the medico-legal reports of Dr Suttle and Mr
Lewis. The expert reports of Drs Domingo, Madden, Hunter
and Ogilvie
as well as the one prepared by Ms Bester were in contention. These
experts testified at the trial in support of the
plaintiff and their
evidence is dealt with hereunder.
[16]
The defendant presented the court with expert reports from Dr Kieck
(neurosurgeon); Dr Hemp (neuropsychologist) and Mr Crous
(industrial
psychologist). The plaintiff admitted the medico-legal report
of Dr Kieck but contested those of Dr Hemp and
Mr Crous, who then
testified in support of the defendant. The defendant also relied on
the testimonies of two medical practitioners,
Dr Frost, the
plaintiff’s treating neurologist and Dr Wegner, the plaintiff’s
treating general practitioner.
[17]
Dr Domingo, for the plaintiff, and Dr Kieck, for the defendant, in a
joint minute, agreed
inter alia
that (a) the plaintiff’s
brain injury was severe, (b) her neuropsychological deficits were
permanent and (c) that she would
continue to suffer serious long-term
impairment in respect of her work and personal life.
[18]
The neuropsychologists, Drs Madden and Hemp, in summary, agreed
in a joint minute that: 1, physically, the plaintiff
has difficulties
with vision and integration of what she sees and with visual motor
coordination; 2, cognitively, she has difficulties
with the executive
functions of her working memory and sustaining her concentration
which becomes more marked as she fatigues;
3, the plaintiff’s
emotionality and irritability has increased due to the head injury;
4, the plaintiff’s fatigue
limits the number of hours she
is able to work and that she suffers from headaches, noise and light
sensitivity, motion sickness
and reduced coordination; 5, the
plaintiff’s migraines should be managed by a neurologist and 6,
the plaintiff should undergo
psychotherapy as that would help her to
cope with the problems caused by her injuries. The recommendation
that the plaintiff undergo
psychotherapy was supported by Lewis, who
conducted a psychological assessment of her.
[19]
The industrial psychologists, Dr Hunter and Mr Crous, also concluded
a joint minute from which it appears that the only areas
of agreement
between them were that the plaintiff suffered past loss of earnings
as a result of the collision for which she should
be compensated and
that she was likely to suffer future loss of earnings.
[20]
In his report and during his evidence at the trial, Dr Hunter, who at
the time of compiling his report in July 2015 predicted
that the
plaintiff would not be able to sustain her employment at the company
for longer than 6 to 18 months, was of the view that
(a) the
plaintiff’s employment prospects in the open labour market had
been adversely affected by her head injury, (b) she
would drift in
and out of employment, developing a scattered career path with poor
employment references. This would in his opinion
probability render
her unemployable or marginally employable in the open labour market.
Dr Hunter also testified that the plaintiff
could over a period of 5
years work intermittently for about 3 years, (c) prior to the
collision, the plaintiff would have
progressed to a Paterson Job
Grade band C4 to C5 which refers to skilled to middle management.
According to him, her injured state
denied her such an upward career
move as she would not cope with the demands that came with greater
responsibility and more pressure,
so the report continued. In his
view, the plaintiff might be able to assist in a kennel by, for
example, helping with feeding and
giving medication to the animals.
His further testimony was that the plaintiff could work in the non-
governmental sector, given
that, as a general rule, that sector was
more tolerant to their employees than was the case in the open labour
market.
[21]
Mr Crous, who conceded that he had not considered Dr Madden and
Bester’s reports, agreed that the plaintiff’s future
earning capacity had been negatively affected by the injuries
sustained as a result of the collision. However, notwithstanding
that
concession, he was of the opinion that the plaintiff was capable of
some form of future employment. He recommended that the
plaintiff’s
injured future income capacity be addressed by way of contingencies.
[22]
The occupational therapist, Ms Bester, also concluded that the
plaintiff’s occupational capacity has been impaired and
that
she would only physically cope with light work with low mobility
demands. The plaintiff would, in her view, be significantly
compromised in work that had high behavioural and cognitive demands.
Therefore she recommended that the plaintiff be considered
unemployable in the open labour market. Doing menial work with low
physical, behavioural and cognitive demands would lead to
dissatisfaction
and frustration, resulting in further deterioration
in the plaintiff’s health, so her testimony continued. Ms
Bester suggested
that the plaintiff consider home-based work done on
a part-time and flexible basis, alternatively, work in the non-profit
sector
possibly involving animals. She also made certain
recommendations which would be beneficial to the plaintiff, including
future
occupational therapy, assistive devices and home assistance in
the form of, for example, a domestic worker. I agree that the
plaintiff
would benefit from the services of a full time domestic
helper. However, the expense of such a domestic worker was not
quantified
and as there is no evidence as to what this might be, I
cannot give an order on this aspect of the matter.
[23]
Dr Hemp’s report essentially confirms Dr Madden’s
findings that the collision had a permanent and severe impact
on the
plaintiff’s interpersonal and social life. She also agreed that
the plaintiff’s career prospects were compromised
given that
she,
inter alia,
fatigues easily and suffers from migraines
which would impact her coping with a full day’s activities. Dr
Hemp was, however,
of the opinion that the plaintiff’s injury
did not render her totally unemployable. An opinion which, in her
view, was borne
out by the fact that, despite her limitations, Dr
Siegfried, kept her in his employ for approximately 5 years post the
collision.
It is also worth noting that the plaintiff, who earned
bonuses during this period, conceded during cross examination, that
she
would have remained with Dr Siegfried for possibly 10 years on
her return to work.
[24]
Dr Wegner, who suggested during his evidence that some of the
plaintiff’s medical complaints were baseless, conceded
during
cross examination that, firstly, as the plaintiff’s treating
general practitioner, he could not testify about her
collision
related neurological and neuropsychological
sequelae
,
secondly, in assessing the plaintiff, he had not considered
collateral information. He had also not assessed the plaintiff from
a
medico-legal perspective and, finally, having initially questioned
whether the plaintiff suffered from migraines, conceded that
her
headaches were in fact migraines. As a result, his testimony was of
little assistance to me in reaching the conclusions that
I have in
this matter.
[25]
Dr Frost’s evidence was that his relationship with the
plaintiff had been “
a therapeutic inventive”
one
and that he had not “
assessed her from a medico-legal
perspective which
requires a degree of objectivity and
“clinical distance”.
Consequently, he felt that his
opinion regarding the plaintiff’s management was “
biased
.”
In the light of that testimony, I find Dr Frost’s evidence as
to whether the plaintiff could work in the future also
of no value.
In any event, Dr Frost conceded during cross-examination that he
would defer to the views of the medico-legal experts
on whether or
not the plaintiff was capable of working in the future.
[26]
The plaintiff’s father and certain personnel, including Wright,
from the company also testified. The gist of their respective
testimonies was confirmation that the plaintiff struggled to cope in
the social and work environments.
[27]
I was, as a general proposition, impressed with the evidence given by
the witnesses in this case. Their accounts of the areas
which they
were asked to canvass were, on the whole, given rationally and in a
balanced manner. Concessions were made where appropriate.
Although I
do not think that there was obfuscation on the part of the witnesses,
I got the sense that there might have been a measure
of exaggeration
by the plaintiff and some of her witnesses when it came to the
plaintiff’s alleged inability to work, earn
an income and cope
with the challenges one normally encounters on a daily basis.
[28]
For instance, I am not convinced that the defendant should be
burdened with the costs of some of the treatments and articles
recommendations by Dr Madden and Ms Bester to help the plaintiff cope
with her condition. In particular, the costs of (1) a massage
therapist or a reflexologist, (2) a life coach, (3) mindfulness
training, (4) a black or whiteboard, and (5) electrical appliances
such as an electrical tin opener, juicer, food processor and the
like. In my view, the costs of the aforementioned treatments and
articles ought to be borne by the plaintiff herself as same appear to
be luxuries which, put colloquially, would be “
nice to have
but not essential.” There must be a measure of fairness to the
defendant.
[29]
It necessary to make a few remarks on certain aspects of the
plaintiff and Dr Frost’s testimonies. During cross examination
the plaintiff directed an unfortunate tirade, which included an
expletive, towards counsel for the defendant. This required me
to
inform her, rather sternly, that her behaviour amounted to contempt
of court. I then directed the plaintiff’s counsel,
Mr Van Der
Merwe, to impress upon her, during a short adjournment, the
consequences of being found to be in contempt of court and
the wisdom
of giving the rest of her evidence in a restrained manner. Dr Madden,
who was present in court when the outburst occurred,
testified that
the plaintiff’s behaviour was a symptom of her condition. No
adverse inference is drawn from this incident.
I consider it a slight
aberration, in otherwise satisfactory testimony given, her condition.
I do, however, make a negative finding
on one aspect of the
plaintiff’s testimony in paragraph 37 below.
[30]
Considerable court time was spent interrogating certain aspects of Dr
Frost’s evidence. These included, initially recommending
that
the plaintiff initiate “procedures for medical boarding”
and, approximately 2 months later, recommending to her
employer’s
Group Risk Disability Insurer that she be permanently boarded due to
her medical incapacity. However, he contradicted
this on 20 September
2016 when he,
inter alia
, stated that he did not “
believe
that she (the plaintiff)
[was]
necessarily “permanently
incapacitated”.
He was now of the opinion that “
she
may well be able to return to work in the future.”
In a
further letter written on 29 September 2016, in response to a
subpoena served on him by the defendant, Dr Frost states that
his
recommendation that the plaintiff be permanently medically boarded
was at the suggestion of her employer’s Human Resources
Consultant. That statement was, however, withdrawn during
cross-examination, when Dr Frost conceded that the aforesaid
recommendation
was made as a result of his advice to the plaintiff.
ACTUARIAL
EVIDENCE
[31]
As set out in paragraph 3 above, a number of the assumptions and
methodology adopted by Munro were uncontested.
[32]
The defendant, however, disputed a number of the factual assumptions
in Munro Report, including (a) that the plaintiff’s
future
injured income should be calculated on her May 2015 earnings of
R32 000.00 per month, plus commission and bonus; (b)
that her
career would have peaked in 2021 with earnings of approximately
R527 500.00. This income was equivalent to that earned
by
persons falling within the Paterson job band of Grade C4 or C5; and
(c) that, in the event that the plaintiff had children,
she would, as
suggested by Dr Madden, in addition to a domestic worker, require the
services of either a day, night or full-time
nurse. The defendant
also did not agree with the assumption that the plaintiff was
unemployable and would receive no income as
from 2018. This aspect of
the matter is dealt with more fully in the paragraphs that follow
hereunder.
THE
PLAINTIFF’S INJURED FUTURE EARNING CAPACITY.
[33]
It is now convenient for me to determine whether, in the light of the
evidence of the various experts, the plaintiff is employable.
[34]
It is not disputed that the plaintiff’s head injury has had
negative
sequelae
that are permanent. The defendant’s
contention that the plaintiff was employable is based on the fact
that, although she
worked limited hours on her return to work, post
the collision, she had resumed working normal office hours by March
2012. And,
Dr Siegfried had retained her services for approximately 5
years on her return to work, despite her limitations. Also, although
he might have reprimanded her for some mistakes, he had not subjected
the plaintiff to any form of disciplinary enquiry nor did
he put her
on notice or terminate her services. On the contrary, the plaintiff
resigned on her own accord to take up employment,
which not only paid
significantly more than that she was earning at the time, but also
appeared to be less structured and thus,
would be a less stressful
working environment.
[35]
The defendant also contended that the termination of the plaintiff’s
employment by the company was not initiated by it
but rather was as a
result of a recommendation by her treating neurologist. A neurologist
who had testified that he had not been
independent and neutral in his
assessment and treatment of the plaintiff due to the empathy a
treating practitioner develops for
his or her patient.
[36]
In reaching the conclusions I have in this case, I also took into
account the testimony of the plaintiff’s superiors
at the
company, including that of its Human Resources Consultant, regarding
the events that led to the termination of her employment.
In brief
summary, their testimony was that (1) no pressure is put on new
employees to meet sales targets during their first 6 to
12 months of
employment (the plaintiff testified that she struggled to cope after
5 months into her new employment); (2) the plaintiff
interviewed well
and was considered to be the best of those who had applied for the
position given that she had worked for approximately
13 years in a
veterinary practice; (3) she was made aware of the demands of the
job, which included approximately 60 percent travelling
and little
desk work; (4) she had approximately 130 outlets to cover in her
area, namely, the Southern Suburbs of Cape Town; (5)
the nature of
her collision related injuries were known to them; (6) she informed
the company that her treating neurologist had
recommended that she
stops working as continuing to do so would “kill her”;
(7) Dr Frost was the one who recommended
that she be boarded due to
medical incapacity and (8) they followed Dr Frost’s
recommendation after he had booked her off
sick for extended periods.
[37]
What is apparent from this evidence is that during the period that
she was employed by the company, no steps were taken or
contemplated
to discipline the plaintiff for failing to meet her targets. It is
also clear that Dr Frost’s suggestion that
the plaintiff stop
working on the grounds of medical incapacity did not emanate from the
company, which at that stage had no plans
to terminate her services
on the grounds of non-performance. The plaintiff, in my view, also
appears to have over dramatized the
consequences of her continuing to
work by informing the company’s senior representatives that Dr
Frost had told her that
to continue working would “kill her”.
There is no evidence to support this assertion. The company, like Dr
Siegfried,
appears to have been sympathetic to her condition.
However, I am alive to the fact that, unlike the practice, the
company is part
of a large international organisation whose
commercial imperatives probably dictate that the leniency shown by Dr
Siegfried would
have been of limited duration.
[38]
Moreover, the evidence of the plaintiff’s superiors suggests
that the plaintiff put undue pressure on herself to excel.
This could
possibly have contributed to her fatigue and migraines. Also, her
position as a sales representative was an entirely
new role for the
plaintiff. This role, unlike the mostly administrative one she had
performed for approximately 13 years, involved
a large amount of
travel, required her to meet targets and convince customers to
purchase the company’s wares. This required
skills which are
not easily acquired. And, a person without such skills would, in my
view, have found such work stressful.
[39]
The views expressed above must also be looked at in the light of the
testimony of some of the plaintiff’s own experts.
Dr Hunter’s
evidence was that the plaintiff was only “marginally
employable” in the open labour market and could,
over a period
of 5 years, work intermittently for 3 years. Also, in her joint
minute with Dr Hemp, referred to in paragraph 18
above, Dr Madden
states that the plaintiff’s full-time employability was
compromised by her fatigue and would deteriorate
as she grew older
and has a family. This indicates that there was a possibility that
the plaintiff could be employed. She also
states that the plaintiff’s
migraines could be managed by a neurologist and that sessions with a
psychologist could help
her cope. Ms Bester suggested part-time home
based work or work in the non-profit sector.
[40]
On all the evidence, it seems to me that the possibility of the
plaintiff finding employment in a sympathetic work environment
exists. I am fortified in this view by the evidence of Dr Madden and
Ms Bester that, if the plaintiff underwent regular sessions
with
neurologist, a psychologist and an occupational therapist, such
sessions would help her cope. Undergoing sessions with those
practitioners could, in my view, assist the plaintiff in holding down
an appropriate form of employment. Occupational therapy is
important
and should form part of the plaintiff’s future medical expenses
which will be borne by the defendant on a 50 percent
basis.
[41]
In the light of the above, it is hard to sustain the contention that
the plaintiff’s head injury has rendered her unemployable
and
that she is not in a position to earn an income in the future. The
plaintiff should be able to perform work that is not as
stressful as
the one she did whilst at the company (travel, meeting targets and
the like).
[42]
I therefore find that the plaintiff can earn injured income and
should be able to continue to do so until retirement at age
65.
Consequently, there is merit to the defendant’s submission that
Munro is wrong to assume that the plaintiff would not
earn income as
from January 2018.
[43]
During argument, Mr Van Der Merwe submitted that, in the event I
found that the plaintiff could earn injured income, then such
income
should be on the basis that she would only have worked intermittently
for a period of 3 years during the next 5 years. During
this period
the plaintiff would, according to Dr Hunter, earn a monthly income of
approximately R2 000.00 per month at an animal
shelter, so the
submission continued. In the alternative, Mr Van Der Merwe argued
that should she find work in a non- governmental
organisation during
the three year period, then the plaintiff’s salary should be
pegged at the Patterson Grade A1 level which
is applied to determine
the salaries of unskilled employees.
[44]
I am not convinced that these arguments are sound. Firstly, although
Dr Hunter testified that the plaintiff would have scattered
employment of 3 years in a 5 year cycle, this does not necessarily
mean that, upon the expiry of that cycle, she could not, after
an
interval of perhaps a few months, a year or possibly longer, return
to some form of employment for another 5 year cycle and
so forth,
until she reached retirement age. Consequently, in determining
her injured future income, it would be incorrect
to calculate same on
the basis that she would only have worked a total of 3 years. I am
also unpersuaded that the plaintiff could
only have found employment
in an animal shelter with the resultant reduction in remuneration.
There is nothing in the evidence
to suggest that the plaintiff’s
intelligence quotient has been compromised by her head injury or if
it has, she is now only
capable of unskilled work. The plaintiff’s
duties, at both the practice, post the collision, and at the company
were certainly
not the type of work done by unskilled persons.
[45]
The approximately 130 outlets serviced by the plaintiff, during her
short stint at the company, ranged from veterinary practices,
shops,
wholesalers and some equine outlets. It is conceivable that during
this period the plaintiff formed relationships with the
management or
staff at these outlets. It is therefore probably that the plaintiff
can obtain some form of employment at one of
these or similar type of
outlets. Given her long experience as an administrator, the
plaintiff would probably cope with light
secretarial work.
Should
the plaintiff’s future injured earning capacity be calculated
on the basis of her May 2015 or 2016 earnings?
[46]
Munro has based its computation of the plaintiff’s future
injured income on her May 2015 earnings. The defendant argued
that
this assumption is ill-founded as reliance therefor was based on (a)
Dr Hunter’s contested opinion that the plaintiff
would be
employable for only 3 years and (b) Dr Frost’s flawed
recommendation that she be medically boarded.
[47]
I agree with Ms Pillay’s submission that Munro incorrectly
computed the plaintiff’s future injured earning capacity
on her
May 2015 earnings. The computation should have been based on the
plaintiff’s earnings as at the date of her resignation
from the
company in May 2016 as the termination of her employment on medical
incapacity, was based on Dr Frost’s flawed recommendation.
Is
a contingency deduction is appropriate when calculating the
plaintiff’s future injured earnings?
[48]
Munro assumed that there would be no future injured income. Munro
correctly, in my view, did not make a contingency deduction
in
respect of actual past injured income earned. The defendant submitted
that a deduction in respect of future injured earnings
was
appropriate in this matter. I agree. Although I have found that the
plaintiff is employable, I must, in determining an appropriate
contingency factor, take into account the possibility that the
plaintiff might, as she advances in age, lose her employment due
to
illness- given her current compromised health – or that her
employer could go out of business particularly if such employment
is
in the small to medium size business sector or is in the
non-governmental sector. It being assumed that such businesses are
more likely to fail than larger ones. This, to my mind, would than
justify the application of the contingency factor proposed by
the
defendant. In the circumstances, I find that a contingency deduction
of 15 percent would be fair and just in determining the
plaintiff’s
future injured earning prospects.
THE
PLAINTIFF’S FUTURE UNINJURED INCOME
.
[49]
The defendant did not address this issue in its Heads of Argument. As
a consequence, I caused correspondence to be addressed
to the
parties’ legal representatives in order to obtain certainty
that the defendant no longer contested Munro’s assumption
underlying the plaintiff’s future uninjured career path. Ms
Pillay then furnished me with written submissions to which Mr
Van Der
Merwe responded.
[50]
It is evident from the respective submissions that the parties agree
that the plaintiff:
50.1 as at the
date of the collision in July 2010, earned R17 924.00 per month,
which salary increased to R 32 000.00
per month from 1 May 2015;
and
50.2 would have
earned a 10 percent annual bonus as from 1 May 2016.
[51]
There was no agreement on the plaintiff’s earnings as from 1
May 2016. Although the defendant’s suggested monthly
salary as
from 1 May 2016 is in line with the R 33 750.00 assumed by
Munro, it contended that the plaintiff would only earn
a commission
of R 7 500.00 per quarter from that date as well as the 10%
annual bonus. The defendant did not believe that
the plaintiff would
have earned the quarterly commission of R20 000.00 Munro
factored in the calculation of the earnings under
this heading.
[52]
I have already found that being a sales representative, irrespective
of having been a good employee before the collision, did
not match
the plaintiff’s acquired skill set. The differences in the
skills required for being an administrator, which she
was at the
practice, and those of a sales representative, are marked. Therefore,
the probability of the plaintiff meeting or surpassing
the targets
required to earn the additional commissions are at best marginal. I
would, in the light of the above, peg the plaintiff’s
commission to the quarterly incentive bonus of R 10 000.00 and
the 10 percent annual bonus agreed referred to paragraph 10.2
above.
[53]
There was also no agreement
as to
whether, as proposed by the defendant, a higher contingency factor
than that suggested by Munro, should be applied. Munro
applied a
factor of 13 percent on the plaintiff’s future uninjured
income. The defendant has not presented any persuasive
evidence as to
why the 13 percent contingency factor applied by Munro is
unreasonable nor has it suggested what that higher contingency
factor
should be. I therefore see no reason to deviate from the contingency
factor of 13 percent applied by Munro.
PAST
LOSS OF EARNINGS
[54]
The defendant has not presented evidence which contradicted Munro’s
factual assumptions and its application of a 5 percent
contingency
deduction in calculating the plaintiff’s past uninjured income.
There is only a bald submission in the defendant’s
Heads of
Argument that a 10 percent contingency deduction should be applied.
This stance, which is not supported by evidence, is
untenable and
therefore stands to be rejected. In the result I cannot fault the
contingency deduction of 5 percent applied by Munro
in this regard.
PAST
HOSPITAL AND MEDICAL EXPENSES
[55]
Prior to the conclusion of the trial, the parties agreed past
hospital and medical expenses in the sum of R105 869.93.
Consequently, it is only an amount of R16 757.63 that remains in
issue.
[56]
Argument in respect of the disputed past hospital and medical
expenses was presented by the parties during the trial. However,
I
reserve announcing my decision on same until receipt of Munro’s
adjusted figures calculated on the basis of the determinations
set
out in this judgment.
CONCLUSION
[57]
My order, at this stage of the proceedings, is limited to directives
on the disputed assumptions and the deductions made by
Munro. The
plaintiff must arrange for Munro to re- do its report in accordance
with the directives set forth in my Order hereunder.
When the report
has been re-done and delivered to the parties, the plaintiff may
re-enrol the matter for determination by me of
all outstanding issues
(including costs), on a date to be arranged with the defendant and
the Registrar.
[58]
In the result, I make the following order:
1.
The following determinations are made for the
purpose of calculating the plaintiff’s claim for past and
future loss of earnings:
1.1
Past Uninjured Income
The contingency factor of
5 percent assumed by Munro in its calculation of this portion of the
quantum is confirmed.
1.2
Future Uninjured Income
I find that the
commission the plaintiff would have earned is R10 000.00 per quarter
(and not the R20 000.00 per quarter assumed
by the actuaries) and
that she would have earned an annual bonus of 10 percent of her
salary. Both amounts would have increased
with earnings inflation
until her retirement at age 65. The rest of the assumptions adopted
by Munro in calculating the plaintiff’s
future uninjured income
are hereby confirmed.
1.3
Future Injured Income
1.3.1
It shall be assumed that the plaintiff is
employable as from the date of this judgment until she reaches the
retirement age of 65
years.
1.3.2
It shall be assumed that the plaintiff shall be
employed as a secretary on a half day basis. Such employment, it is
assumed, would
be in a sympathetic work environment, in either a
veterinary practice or in an outlet which sells animal products
1.3.3
Munro is directed to select a suitable income in
their calculation of the plaintiff’s future injured earning
capacity taking
into account the assumption that the plaintiff will
be employed as a secretary, on a half day basis, in either a
veterinary practice
or in an outlet which sells animal products.
1.3.4
A contingency factor of 15 percent shall be
applied to the plaintiff’s future injured income.
2
When the actuarial report has been re- done and
delivered, the plaintiff may re-enrol the matter for determination of
all outstanding
issues (including the final determination of the
plaintiff’s damages and costs), on a date to be arranged with
the defendant
and the Registrar.
3
The
parties may, if necessary, approach the court, before the resumption
of the trial, for clarification or additional directives,
on any
aspect of this judgment.
4
The
matter stands adjourned
sine die
.
_________________
MP
CANCA
Acting
Judge of the High Court
Heard
on : 12, 13, 14, 15 and 23 September 2016; 14, 15, 16 and 17 November
2016; 14 December 2016.
Judgment
delivered on : 5 April 2017
APPEARANCES
For
the Plaintiff
: Adv. JA van der Merwe SC
Instructed
by
: Sohn and Wood Attorneys, Cape Town.
For
the Defendant
: Adv. D Pillay
Instructed
by
: Mayats Attorneys, Claremont.