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[2011] ZAGPJHC 248
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Wilcocks v Hlongwa (5230/2008) [2011] ZAGPJHC 248 (9 December 2011)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 5230/2008
DATE:
09 SEPTEMBER 2011
In
the matter between
WILCOCKS,
OSMUND
DONALD
...........................................................................................
Plaintiff
A
nd
BRIAN
HLONGWA
.................................................................................................................
Defendant
JUDGMENT
EF
Dippenaar AJ
[1]
This is a damages action instituted by the
Plaintiff against the Health Department of the Gauteng Provincial
Government for damages
suffered as a result of the negligence of
staff at the Sebokeng Hospital which ultimately resulted in the
amputation of Plaintiff’s
leg below the knee. The
Plaintiff had fallen from a ladder and fractured his left ankle on 11
August 2005. Resulting
from complications due to septicemia,
his left leg was amputated below the knee on 23 January 2007.
[2]
This Court, on 11 May 2010 granted an Order
that the Defendant is liable to pay the Plaintiff 100% of his proven
damages.
[3]
The issue to be determined in the current
proceedings relate to the quantum of the Plaintiff’s
damages. The parties
have agreed on the quantum of Plaintiff’s
claim in respect of past and future medical expenses in an amount of
R1
000 000.00 and general damages in an amount of R400 000.00. The
quantum of the Plaintiff’s past loss of income and estimated
future loss of income must be determined.
[4]
Despite an interim payment Order having
been granted on 23 November 2010 in terms of which the Defendant was
obliged to pay the
Plaintiff an amount of R250 000.00, by the time
the trial commenced on 7 September 2001, this amount had not yet been
paid. Pursuant
to hearing oral evidence on the reasons why the
payment had not yet been made, I granted an order on 8
September 2011 directing the Defendant to make payment of the said
amount on or before 15 September 2011, together with interest
on the
said amount at the rate of 15.5% per annum from 25 March 2011, to
date of payment.
[5]
After the expiry of the said date and on 4
October 2011, I was notified by the Plaintiff’s attorneys that
the Defendant had
regrettably still not made the payment directed,
resulting in considerable hardship for the Plaintiff. The approach
adopted by
the Defendant to their responsibilities in this matter is
disturbing and smacks of a contemptuous attitude.
[6]
The Plaintiff testified personally and
called Ms May, an industrial psychologist as a witness. The Defendant
called Mr Thabane,
a psychologist and HR Practitioner. Both had
prepared reports, which formed part of the record.
[7]
Both parties had also filed expert
actuarial reports, the Plaintiff by Mr Kramer and the Defendant by Mr
Jacobson. The actuaries
were not called as witnesses. The various
actuarial reports contained calculations based on the various
scenarios as sketched by
Ms May and Mr Thabane respectively.
[8]
Neither party contested the calculations of
the other and were in agreement that, depending on which scenario was
found to be probable,
the appropriate actuarial calculations should
be applied and adapted, if necessary by other contingencies.
Absent oral evidence
on such issues, the rationale behind the
various contingencies used has not been debated, nor has any
variation thereof been
motivated.
[9]
A large number of other medico-legal
reports formed part of the record. The parties did not identify all
the medico-legal experts
in respect of whom reports were furnished.
Much of the evidence, however, dealt with the extent of the injuries
and their consequences
in a manner which relates more pertinently to
other issues, such as general damages, than necessarily to past
employment or future
employment prospects.
[10]
Indeed the relevant experts, whose
particular field of expertise relates to this issue, are only Ms May
and Mr Thabane, who testified
on behalf of the Plaintiff and the
Defendant respectively. Mr Thabane is a psychologist and HR
practitioner and not an Industrial
Psychologist, as is Ms May. They
met and discussed the Plaintiff’s past and future employment.
They recorded their areas
of agreement and disagreement in a four
page minute which formed part of the record and with which I shall
deal extensively. Other
than the actuaries, none of the reports of
the other experts were referred to and I primarily lean on the
evidence of the two psychologists
to decide the remaining issues.
[11]
Before doing so it is appropriate that
detail is provided of the Plaintiff’s employment history. I
believe that most of what
follows is common cause, but for ease of
reference I add that I took it indiscriminately from the available
medico-legal reports,
and also from the evidence given by the
Plaintiff himself which was not challenged in cross-examination. The
nature of Plaintiff’s
employment is an issue which featured
strongly in the trial.
[12]
The Plaintiff testified that he was born on
17 February 1952 and is presently 59 years
old. At the
time of his accident he was 53 years old. He had
fallen off a stepladder and broken his left ankle on 11 August 2005.
Pursuant
to complications consequent upon the treatment he received
at the Sebokeng Hospital, his leg was amputated below the knee on 23
January 2007.
[13]
The Plaintiff had completed Grade 10 during
1968 and obtained a N3 and N4 in Plating (Engineering Services)
during 1982 to 1983.
He commenced employment during 1972 as
apprentice boilermaker, qualified as boilermaker and was promoted to
shop foreman at SA
Fan & General Belting during the period 1972
to 1980. During the period 1980 to 1987, he was employed by
Engineering Management
Services (part of the Murray & Roberts
Group) as trainee structural draughtsman. He had changed jobs for
better prospects.
For the same reason, he switched jobs to Gold
Fields SA during 1987, where he was employed as CAD system supervisor
until 1989
when he moved to Murray & Roberts Engineering
Solutions in light of a probable restructuring and retrenchment
program at Goldfields.
He was employed as material controller
on the Mossgas Project until the project terminated during September
1994. Plaintiff
found alternative employment at Intertech
Systems during September 1994, which was terminated during November
1995 when the company
restructured.
[14]
During the same month Plaintiff was able to
secure contract employment at JCI Explorers as a training consultant
up to October 2000
when the company closed down. From October 2000 to
the end of 2004, Plaintiff again obtained contract employment with
Murray and
Roberts on its Mozel & Hillside projects which
contract terminated at the end of 2004.
[15]
During the aforesaid period, and
specifically from 1980 onwards, the Plaintiff applied his trade as
draughtsman uninterrupted, either
as a staff member or contract
worker, depending on how the employment was structured. He saw
himself as a freelance draughtsman
and testified that the industry
mainly functioned on this basis. This was not refuted by the
Defendant.
[16]
Throughout his career the Plaintiff had
done work over weekends as a handyman, taking on work from family,
friends and neighbours.
As he could not find any contract work after
his previous contract terminated at the end of 2004, he resorted as
necessity to doing
handyman work again from January 2005. At
the time of his accident he had been involved in a project with a
value of
some R60 000.00 to R80 000.00, installing,
inter
alia,
ceilings and staircases.
After the accident, the Plaintiff did not work again until February
2006 when he procured a contract
from Murray & Roberts which
lasted until February 2009, when he, together with other employees,
were retrenched.
[17]
Since February 2009 to the date of the
trial, Plaintiff was unable to secure any work in the formal sector,
despite leaving his
CV with numerous employment agencies and labour
brokers and going for multiple interviews. During this time he had
only succeeded
in generating an income of between R20 000.00 to
R30 000.00 doing handyman work, but now limited
mainly to a
supervisory capacity.
[18]
The parties were in agreement that after
the amputation of the Plaintiff’s leg during January 2007, he
was only suitable for
sedentary work.
[19]
The issues to be determined centre around
the very different approaches adopted by the parties’
respective expert witnesses,
Ms May and Mr Thabane to the nature of
the Plaintiff’s pre-accident and post-accident employment.
Regarding the Plaintiff’s
pre-accident employment, the experts
in the joint minute filed on their behalf, agreed that at the time of
the accident Plaintiff
had been formally unemployed (i.e. unemployed
in the formal sector) for two years.
[20]
This agreement does not accord with the
Plaintiff’s undisputed evidence that at the time of the
accident during August 2005,
he had not had employment in the
formal sector since January 2005, i.e. 8 months earlier, but had been
self-employed.
[21]
On behalf of the Plaintiff, Ms May
contended that the Plaintiff was a self-employed handyman at the time
of his accident (August
2005). The Plaintiff’s main
argument was that at the time of the accident, the Plaintiff was a
self-employed handyman,
a position adapted by him as result of
necessity.
[22]
The Defendant adopted the view that the
Plaintiff had been unemployed. Mr
Thabane contended
that Plaintiff was not self-employed in a sustained
manner, but was doing irregular odd jobs and that he was essentially
unemployed.
[23]
From there the views of the psychologists
further diverged, especially regarding the Plaintiff’s future
employment prospects.
[24]
Ms May postulated two scenarios in terms of
what could have occurred but for the accident, after the Plaintiff’s
retrenchment
during 2009.
[25]
Her most likely scenario was that the
Plaintiff would be self-employed and would probably have been able to
continue working as
a self-employed handyman. This would have been
born mainly of necessity having regard to various factors in the
formal labour market
which resulted in a shortage of contract work
opportunities. He would have started the handyman business on a small
scale and over
a period would have built up clientele and grown his
business. She was of the view that the Plaintiff would
initially have
generated a net income of around R5 000.00 per month.
[26]
After about two years he probably would
have steadily build up his earnings to around R15 000.00 per month at
current rates. From
about his fifth year of operation his profit
would have in all likelihood have plateaued at around
R20 000.00 per month at current rates. From about the age 65 the
Plaintiff would have slowed down his business and reverted to
a net
income of about R15 000.00 per month at current rates. He would
have retired at age 70.
[27]
Mr Thabane was of the view that the
Plaintiff was probably not entrepreneurial as he had never
established himself as a self-employed
person. He was usually looking
out for employment and only engaged in handyman’s work on a
casual basis as and when his services
were required. He did not
concertedly market himself and had not shown any commitment to
self-employment. He rejected the
earnings indicated by Ms May.
Mr Thabane was of the view that as a casual handyman, the Plaintiff
would have earned irregularly
and variably, at that.
[28]
The least likely scenario postulated by Ms
May was that the Plaintiff would have been able to secure work
similar to what he had
been doing prior to his retrenchment. I
have already dealt with his employment history. Considering his
post-accident
earnings in this regard, in her view the Plaintiff
would probably have been able to earn at the D1 to D2 Paterson level
at current
rates (manufacturing and operations; guaranteed monthly
package). At a small company his earnings would have dropped to the
Paterson
C4 / C5 level.
[29]
Mr Thabane did not agree with this view.
In his view the Plaintiff would have been intermittently
unemployed and would
have depended on contract work only if it became
available. He would not have expected steady earnings. In his view it
was also
unacceptable to impose the Paterson system salary scales,
which were normally afforded to permanent employees only.
[30]
Regarding the Plaintiff’s
post-accident employment the aforesaid experts agreed that at the
time of the amputation, the Plaintiff
was employed on contract at
Murray and Roberts Engineering Services as a material controller /
ISO controller. From February 2006
to February 2009, he would in
event have worked at Murray and Roberts Engineering Solutions.
However, he would not had to
take time off from work due to pain,
suffering, consultations and medical treatments. He would accordingly
not have lost income
in this regard.
[31]
They further agreed that following the
accident, the Plaintiff remained unemployed, but still did a small
amount of work as a handyman.
The Plaintiff was retrenched along with
other employees with effect from February 2009, for reasons entirely
unrelated to the accident.
From February 2009, the Plaintiff has been
unemployed. At times he does small private handyman jobs, but mainly
in a supervisory
role. Ms May confirmed the Plaintiff’s
evidence that he has earned a total of approximately R30 000.00 since
February 2009.
They further agreed that the Plaintiff is now only
suited to sedentary work, such as resuming work as a draughtsman and
that he
would not be able to work as a handyman.
[32]
From here the experts’ views again
diverged as reflected on the minutes. Ms
May is of
the view that the Plaintiff would probably have worked
until the usual retirement age of 65, if he was employed in the
formal labour
market. Had he been self-employed, he would probably
have worked beyond the usual retirement age to around the age of 70,
health
permitting. However, from around 65 he would probably have
slowed his business down and would have worked fewer hours.
[33]
Mr Thabane disagreed and was of the view
that, although the Plaintiff may have worked until the age of 65, he
may not have done
so on a continuous basis and in a fixed job as he
was primarily dependent on contract work. His work as handyman
would have
remained casual at best.
[34]
Ms May recorded that from 11 February 2006
to February 2009 the Plaintiff worked at Murray and Roberts
Engineering Solutions, moving
around to wherever he was needed.
During this period he had to take time off due to the sequelae of the
accident resulting in a
loss of income. Mr Thabane deferred to the
Plaintiff’s evidence, which I have detailed above.
[35]
Ms May further recorded that the Plaintiff
was again off work from the 19
th
of January 2007, just prior to the amputation until the first week of
April 2007 and confirmed the Plaintiff’s evidence
that he
consequently lost R326 750.11 due to pain, consultations and
hospitalisations, which amount was substantiated by documents
in the
record. Mr Thabane deferred to the Plaintiff’s evidence.
[36]
Ms May was of the view that given such
factors as the Plaintiff’s age, his absence from the formal
labour market as well as
affirmative action policies, it would be
unlikely for him to be able to secure employment as a draughtsman. In
her view, the Plaintiff
is now probably unemployable in the formal
labour market and will not be able to work in self-employment as a
handyman, other than
continuing with small private handyman jobs,
earning a meagre income, estimated on average at around R1 000.00 per
month. She perceived
that he would not continue with such jobs beyond
the age of 62.
[37]
Mr Thabane’s view was that the
Plaintiff should still be able to find placings through placement
agencies if work was available,
as that is what had happened
post-accident. His ability to find work should be seen in light of
the scourge of unemployment in
the country, a factor which is not
related to the accident.
[38]
Against this background the reports and the
further evidence led at trial should be considered. The primary
argument for the Plaintiff
was that the Plaintiff had been working as
a self-employed handyman at the time of the accident with
intermittent contract work
as a result of necessity and prevailing
circumstances in the formal labour market. The Plaintiff’s most
likely scenario was
that the Plaintiff would have continued work as a
self-employed handyman. The Plaintiff’s secondary argument was
that, being
able bodied and given his previous years of experience
and qualifications, the Plaintiff would probably have been able to
secure
contract work similar to what he had been doing prior to his
retrenchment which would have resulted in an average earnings of
R40
000.00 per month which fell within
the D2 Paterson level for August 2009.
[39]
As an alternative scenario, had the
Plaintiff secured employment as a draughtsman and, given his years of
experience, it was likely
that the Plaintiff would have been placed
in a senior position such as chief draughtsman in which event he
would have been able
to earn at the D1 Paterson level. At a small
company his earnings would have dropped to around the C4/C5 level.
[40]
Given the Plaintiff’s age and the
affirmative action policies, Ms May was of the opinion that that
would be the least likely
scenario and that the most likely scenario
was that the Plaintiff would function as a self-employed handyman.
[41]
Ms May’ evaluation was in my view
realistic, rationally based and well researched, although the
Plaintiff sought to criticise
her for using sources other than the
Theoretical Quantum Yearbook tables to do her research. I do not
think this criticism was
justified.
[42]
Mr Thabane testified that the Plaintiff’s
work history was inconsistent and indicative of vocational
instability because of
his various job changes. He did not agree with
or appear to appreciate the Plaintiff’s undisputed evidence
that the work
performed by the Plaintiff in the open labour market
was, as a norm in that industry, of a contract nature rather than in
the form
of permanent employment.
[43]
This forms the basis for Mr Thabane’s
view that the Plaintiff was in any event an unstable employee with
relatively poor employment
prospects who would have relied on short
term contractual employment with unavoidable intermittent spells of
unemployment. In his
report, he terms Plaintiff’s pre-accident
vocational situation as “
a
troubled one
”.
[44]
Mr Thabane’s views were clearly
predicated upon his perception of the Plaintiff being vocationally
unstable with limited prospects,
irrespective of the accident. Mr
Thabane’s view was accordingly that the Plaintiff’s
pre-accident work capacity and
employment abilities were limited. In
his view the Plaintiff’s loss of earnings should be determined
on the basis of an artisan
in accordance with Paterson job grade C1
to C3 scales. A basic salary level should be used having regard to
the Plaintiff being
a contract worker and one who would not have had
the benefits normally enjoyed by permanent employees.
[45]
Despite having no information to the
contrary, Mr Thabane did not accept the undisputed evidence on
earnings testified to by the
Plaintiff or Ms May.
[46]
Regarding the Plaintiff’s
post-accident employment prospects, Mr Thabane was of the view that
the Plaintiff had residual work
capacity, but that his employability
would be restricted to office type work. He would be precluded
from doing the work of
a handyman and could only pursue a purely
sedentary type occupation. The Plaintiff could however obtain
retraining for purposes
of vocational rehabilitation to affect career
changes or promotional changes, and as the Plaintiff was
multi-skilled, he would
be able to compete in the formal sector with
the specialised skills he has acquired through experience. He
concluded that the Plaintiff
should be able to find a placement
through the help of employment agencies. In his view the Plaintiff
should be compensated only
partially for his inability to perform the
heavy work of an artisan.
[47]
As opposed to considering actual factual
evidence, Mr Thabane placed a dogged reliance on the figures provided
in Koch’s Quantum
Yearbook, without considering the need to
individualise an individual’s circumstances. He resisted
any concessions
on this issue, despite rigorous cross-examination.
[48]
Mr Thabane was an argumentative and
defensive witness. His evidence was not helpful in determining the
issues at hand and it appears
that he misconceived the relevant
facts. It further does not appear to me that the basis for Mr
Thabane’s opinions are rationally
founded or motivated and he
appears to have substantially disregarded undisputed evidence
regarding the industry in which the Plaintiff
functioned and the
particular facts of this matter, without independent and proper
investigation. I am of the view that the scenarios
sketched by Mr
Thabane, both in respect of the Plaintiff’s past employment and
future employment prospects are improbable
and cannot be relied
upon.
[49]
Having regard to all the evidence presented
and on the probabilities, I am of the view that the so-called most
likely scenario as
postulated by Ms May, must be accepted that the
Plaintiff would, but for the accident, would have worked as a
self-employed handyman.
I further find that on the probabilities, the
Plaintiff was a self-employed handyman at the time of his accident.
[50]
The general pessimism expressed at
Plaintiff’s prospects of obtaining future contract work in the
formal labour market, does
not render Ms May’s secondary
scenario as probable.
[51]
In any event, if the Plaintiff is able to
secure such contract employment in future, there can be no risk of
over compensation in
context of the award which I envisage, which is
a conservative one.
[52]
I now turn to deal with the contents of the
actuarial reports.
[53]
Neither Mr Jacobson, nor Mr Kramer
testified and I was simply referred to the various scenarios sketched
in the medico-legal reports
and requested to make an appropriate
determination.
[54]
The report of Mr Kramer is based on the
scenario sketched by Ms May that the Plaintiff would post accident
have functioned as a
self-employed handyman. None of his assumptions
were criticized in argument, nor the contingencies accepted by him.
Based on his
calculations the loss of earnings of the Plaintiff is an
amount of R408 841.00 in respect of past loss of earnings and R1,198
543.00
in respect of prospective loss of income.
[55]
Mr Jacobson on the other hand has provided
five main options based on retirement ages of 65 and 70 respectively
and on the various
scenarios sketched by the experts.
[56]
The
percentage of the claim allowed for contingencies and circumstances
are dictated by the circumstances of each case. I have had
regard to
the principles enunciated in
AA
Mutual Insurance v Maqula
[1]
.
All the relevant facts and circumstances must be taken into account,
and I have sought to do so.
[57]
The contingencies adopted by Mr Jacobson
are substantially higher than those adopted by Mr Kramer. Absent a
rational motivation
for higher levels of contingency deductions, I
consider the more conservative deductions adopted by Mr Kramer to be
more appropriate.
[58]
I am accordingly of the view that the
following amounts should be awarded to the Plaintiff:
[58.1]
Past and future medical expenses (as
agreed) R1 000 000.00
[58.2]
General damages as agreed R
400 000.00
[58.3]
Past loss of earnings R
408 841.00
[58.4]
Future loss of earnings R1
198 543.00
[58.5]
The total monetary amount which the
Defendant is liable to pay Plaintiff, is accordingly the amount of R3
007 384.00.
[59]
I accordingly grant judgment in favour of
the Plaintiff against the Defendant for:-
[1]
Payment of the sum of R3 007 384.00;
[2]
The amount in [1] above shall be inclusive
of any interim payment made in terms of the Order of 23 November
2010;
[3]
Interest on the sum in [1] above at the
rate of 15,5% per annum from
24 December 2011; being fourteen (14) days from date of this Order to
date of payment;
[4]
Costs of suit, including the costs relating
to obtaining medico-legal reports and other expert reports and the
qualifying, reservation
and trial fees of the Plaintiff’s
expert witness, Ms May.
E
F DIPPENAAR
ACTING
JUDGE OF THE HIGH COURT
Date of
hearing : 7 & 8 September 2011
Date of
judgement :9 December 2011
For Plaintiff
: Adv I Zidel, SC
:De Broglio
Attorneys
For Defendant
:Mr Lekabe
: State
Attorney
[1]
1978
(1) SA 805
A