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[2012] ZAGPJHC 3
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Fulton v Road Accident Fund (2007/31280) [2012] ZAGPJHC 3; 2012 (3) SA 255 (GSJ) (1 February 2012)
REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT
(JOHANNESBURG)
Case Number: 2007/31280
DATE: 01/02/2012
In the matter between:
JOHANNA JACOBA GERRINDINA
FULTON
.............
Plaintiff
And
ROAD ACCIDENT
FUND
..........................................
Defendant
JUDGMENT
C. J. CLAASSEN J
:
INTRODUCTION
The plaintiff is a 44 year old
lady teacher. She instituted action for damages against the
defendant, the Road Accident Fund,
suffered after she was involved
as a pedestrian in a collision with an insured motor vehicle on 23
February 2007. The defendant
has conceded liability for 100% of such
damages that the plaintiff proves.
The parties have agreed that
the plaintiff is entitled to general damages for pain and suffering
etc., in the amount of R180 000.00
as well as past medical expenses
in the amount of R43 082.15.
1
The defendant has made an interim payment in the amount of R223
082.15, which amount covers the two heads of damages referred
to
above. Thus the only remaining issue in dispute concerns the
plaintiff’s future loss of earnings and/or loss of earning
capacity.
THE COMMON CAUSE FACTS
The plaintiff matriculated at
Hoërskool Postmasburg in 1986. She attended the University of
the Free State where she read
for a BA Phys.Ed and a Higher Diploma
in Education, a four-year course. She was then appointed as Physical
Education teacher
at Henneman Hoërskool where she also taught
Afrikaans. She remained there until 1995 when she joined a private
school in
Johannesburg, St Martins School. She has so been employed
until the present time.
She testified that sporting
activities have always been her passion. She achieved provincial
colours in netball; she ran long
distance for the Free State (ran
with Zola Budd); and attended the University of the Free State on a
sports bursary. Physical
Education was her main subject but as one
was obliged to choose an academic subject too, she chose Afrikaans.
She also completed
various courses in high jump, a referees course
in netball, courses for coaching netball, hockey, tennis and
provincial swimming.
She testified that she has
always been a very active person and a perfectionist. Prior to the
accident she was able to demonstrate
her coaching instructions both
in tennis and hockey. Post accident she has to rely on other
(usually temporary) coaches to assist
her in her coaching
activities. This is a headache, she says, because coaches move on
and every year new coaches have to be appointed.
In response to how she would
react if she were asked to move out of the sports arena and work
purely as an Afrikaans teacher,
she replied “they can just as
well kill me” because sporting activities are her passion and
“it always will
be”.
Mr Welsh, the current principal
of St Martins School, testified. The evidence of Mr Welsh was not
countered by any evidence forthcoming
from the defendant. His
evidence therefore stands uncontroverted and forms part of the facts
which are common cause. I have no
reason to doubt his evidence nor
has any submission been made to me on behalf of the defendant that
his evidence was not totally
acceptable in every respect.
Mr. Welsh has some thirty five
years of teaching experience. He has been the principal of St
Martins School for the past 21 years.
He was responsible for
interviewing and employing the plaintiff some sixteen years ago in
1995. At that time, he was looking
for an Afrikaans teacher but was
also keen to improve the school’s sporting profile. A flurry
of application for the Afrikaans
teaching post was received. The
plaintiff presented with an impressive CV in terms of her sports
credentials and she took preference
over the other applicants
because of this. She has a physical education degree and is also an
Afrikaans teacher. In due course,
the plaintiff was promoted to head
the of girls’ sport. He, as principal, is solely responsible
for the hiring and the
dismissal of employees of the school.
The plaintiff is still head of
sport and is responsible for all the management and administration
of the girls’ sports department.
She does a very good job as a
coach “supervisor” as that is what she has actually
become because she cannot do the
active coaching demonstrations
herself anymore. Thus the school employed additional coaching staff.
The employment of additional
coaches costs the school about R25
000.00 to R30 000.00 a year. This is a cost that was never incurred
before and is the result
of the plaintiff’s injuries and her
inability to do what she did prior to sustaining those injuries.
Mr Welsh said he would be wary
of employing a sports teacher who was unable to physically
demonstrate aspects of the sport herself.
He said:
“
All the videos in the
world will not help. You need somebody who can actually take a
child’s hand and put it there and show
him how to flick a ball
into the back of the hockey ring. Those are things that Mrs Fulton
used to be very, very good at and cannot
do anymore.”
In respect of the future, if a
new principal were to take over, there could be no guarantees that
the plaintiff would be kept
on. In fact, Mr Welsh stated, with the
advent of a new principal, many changes can come about quickly, and
there would be a strong
cost cutting flavour to these changes. As a
point in case, when appointed principal, he dismissed four teachers
whom he thought
were not up to scratch.
If the plaintiff were to be
moved out of the sports department and employed simply as an
Afrikaans teacher, Mr Welsh stated, she
would earn approximately R25
000.00 to R30 000.00 per annum less than she does now.
Apart from the coaching, she
also requires assistance in the classroom as she cannot write on the
board without supporting her
arm, which is probably quite
uncomfortable. She utilises technology in the form of projectors and
laptops and “that sort
of thing”. As part of her
rehabilitative program she attends a gymnasium.
As to the future of Afrikaans
as a school subject, Mr Welsh pointed out that there are already
schools that no longer offer Afrikaans
as a subject. In his words,
if he were an Afrikaans teacher, he would retrain to “find
another string to his bow.”
Thus the future for Afrikaans as a
school subject is precarious.
He further stated that the
plaintiff has not been dismissed as a result of her loyalty to the
school and her excellent management
skills, ability to spot talent
and good coaches. He was, however, concerned that despite all her
good work she still was not
able to actively coach, other than to
instruct others how to coach.
Mr Welsh further stated that,
although her dismissal is not currently at stake, a point will be
reached in future where it will
become a real issue. The financial
implications of hiring additional coaches at approximately R30
000.00 per month in order to
accommodate her physical disabilities
will sooner or later force the school board to reconsider her
position. In such a case
there is a strong possibility, which he
later stated as a “strong probability”, that she will
have to be demoted
to a post of Afrikaans teacher only, without the
responsibility of heading up the sports activities at the school. He
said that
up to now he has been quite happy to defend her current
position at the school, but he would not be able to defend the
indefensible
and at some point he will have to say to her that the
budget is to be cut by R30 000.00 per annum resulting in moving the
plaintiff
to the post of Afrikaans teacher only.
Her most recent salary advice
dated 31 January 2011 indicated that her basic salary amounted to
R15 241.00 per month.
2
Ms J. White, an industrial psychologist, testified that in addition
to the amounts shown on her salary advice, the plaintiff
received
certain benefits i.e. free accommodation in a school house, free
telephone, free lights and water, subsidised school
fees for her
children attending the school and of course she does not have to pay
rates and taxes to any municipality. Ms White
also confirmed that
the plaintiff’s current employment is due to the endorsement
of Mr Welsh, who is currently 58 years
old and thus will reach
retirement age within seven years.
If the plaintiff were to enter
the open labour market, she would have lost the advantage of being
able to market herself as a
coach. She confirmed that Mr Welsh was
of the view that her coaching skills “won her the day in the
last round”.
She will also be disadvantaged when applying for
an ordinary post as a teacher as she will have to specify that she
requires
the assistance of a laptop and a projector and that she is
not able to write on the board.
THE PLEADINGS
The plaintiff’s pleadings
were amended a number of times, the latest being on 22 November 2011
at the stage when the evidence
had been completed and the parties
commenced arguing the case before me.
3
Currently the plaintiff’s
claim for future loss of earnings and loss of earning capacity is
pleaded in claim A, alternatively
claim B in the following terms:
“
CLAIM A
FUTURE LOSS OF EARNINGS AND
LOSS OF EARNING CAPACITY
R875 867.00
9.4.1 St. Martin’s School
still employs Plaintiff as a teacher at a current rate of R15 641.00
per month.
9.4.2 As a result of the
sequelae of the injuries sustained by the plaintiff, she is totally
unable to fulfil the physical demands
of her coaching job. The
monetary value of this aspect of her job is equivalent to R2 500.00
per month which the employer has continued
to pay on a gratuitous
basis.
9.4.3 But for the accident
Plaintiff would have continued earning R15 641.00 per month and an
annual 13
th
cheque with inflationary increases only until retirement at age 65
years.
9.4.4 Now that the accident
occurred Plaintiff will be required to take 3 weeks off work within
the next year to attend to the removal
of the internal fixation
present in her arm and 8 weeks off work in 15 years (time) to attend
to the debridement of her shoulder
joint and/or rotator cuff repair
and an acromioplasty. Plaintiff claims R15 122.00 in respect thereof.
9.4.5 In addition to the above,
the plaintiff claims an allowance for loss of employment prospects,
loss of marketability, loss
of productivity and generally, for being
compromised in the open labour market by way of a contingency
deduction of 10% to her,
but for the accident earnings (R2 565 170.00
less R256 517) and a 30% contingency deduction to her, having regard
to the accident
earnings, (R2 209 885.00 less R662 966.00 which
equals R860 745.00.
Alternatively to CLAIM A above:
CLAIM B
9.4
FUTURE
LOSS OF EARNING AND LOSS OF EARNING CAPACITY
:
R685 344.00
9.4.1 St Martins School employs
the plaintiff as a teacher and coach at a current rate of R15 641.00
per month, gross.
9.4.2 As a result of the
sequelae of the injuries sustained by the plaintiff, she is totally
unable to fulfil the physical demands
of her coaching job. The
monetary value of this aspect of her job is equivalent to R2 500.00
per month. At age 50, the plaintiff’s
monthly income will be
reduced to R2 500.00 as she will be removed from the post of head of
girls sport. Thereafter she will earn
inflationary increases only
until retirement at the age of 65 years.
9.4.3 Now that the accident
occurred Plaintiff will be required to take 3 weeks off work within
the next year to attend to the removal
of the internal fixation
present in her arm and 8 weeks off work in 15 years (time) to attend
to the debridement of her shoulder
joint and/or rotator cuff repair
and an acromioplasty. Plaintiff claims R16 003.00 in respect thereof.
9.4.4 In addition to the above,
the plaintiff claims an allowance for loss of employment prospects,
loss of marketability, loss
of productivity and generally, for being
compromised in the open labour market by way of a contingency
deduction of 10% to her,
but for the accident earnings (R2 565 170.00
less R256 517.00) and a 30% contingency deduction to her, having
regard to the accident
earnings, (R2 341 875.00 less R702 562.00)
which equals R669 341.00.”
Claim A and Claim B are
calculated in accordance with exhibit F, an actuarial report dated
17 June 2011 received from LG Actuarial
Services. Claim A is
calculated as scenario 3 on page 13 of exhibit F whereas claim B is
calculated as scenario 3 on page 6 of
Exhibit F. The difference
between these two calculations are as follows:
In claim A an accrued loss of
R99 011.00 and a prospective contingency factor of 30% are applied
to the scenario having regard
to the accident plus a future loss
earnings for eleven weeks while she is off duty for purposes of
further remedial medical
interventions in the amount of R15 122.00.
Claim B applies no accrued
loss, also a 30% prospective contingency in regard to the scenario,
taking account of the accident
plus a future loss of earnings for
time taken off for future medical interventions in the amount of
R16 003.00 instead of R15
122.00.
THE EXPERT MEDICAL
EVIDENCE
The courts’ approach to
the evaluation of expert evidence was recently restated in the case
of
Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at pages 1200 and 1201, paragraphs [34] to
[40]. Although that judgment dealt with the question whether or not
medical
negligence was established, the general principles in
evaluating expert medical evidence is also applicable in the present
case.
An extract from the judgment relating to the court’s
approach to expert evidence reads as follows:
“
[34] In the course of the
evidence counsel often asked the experts whether they thought this or
that conduct was reasonable or unreasonable,
or even negligent. The
learned Judge was not misled by this into abdicating his
decision-making duty. Nor, we are sure, did counsel
intend that that
should happen. However, it is perhaps as well to re-emphasise that
the question of reasonableness and negligence
is one for the Court
itself to determine on the basis of the various, and often
conflicting, expert opinions presented. As a rule
that determination
will not involve considerations of credibility but rather the
examination of the opinions and the analysis of
their essential
reasoning, preparatory to the Court's reaching its own conclusion on
the issues raised.
[35] What
must be stressed in this case is that none of the experts was asked,
or purported to express a collective or representative
view of, what
was or was not accepted as reasonable in South African specialist
anaesthetist practice in 1994. Although it has
often been said in
South African cases that the governing test for professional
negligence is the standard of conduct of the reasonable
practitioner
in the particular professional field, that criterion is not always
itself a helpful guide to finding the answer. …
[36] That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions
advanced are
founded
on logical reasoning.
That is the thrust of the decision of the House of Lords in the
medical negligence case of
Bolitho
v City and Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)). With the relevant
dicta
in the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised, they are to the following effect.
[37] The
Court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical practice.
The
Court must be satisfied that such opinion has a logical basis,
in other words that the expert has considered comparative risks and
benefits and has reached 'a defensible conclusion' (at 241G
- 242B).
...
[39] …
The assessment of medical risks and benefits is a matter of clinical
judgment which the court would not normally be
able to make without
expert evidence and it would be wrong to decide a case by simple
preference where there are conflicting views
on either side,
both
capable of logical support. Only where expert opinion cannot be
logically supported at all will it fail to provide 'the benchmark
by
reference to which the defendant's conduct falls to be assessed'
.
[40]
Finally, it must be borne in mind that expert scientific witnesses do
tend to assess likelihood in terms of scientific certainty.
Some of
the witnesses in this case had to be diverted from doing so and were
invited to express the prospects of an event's occurrence,
as far as
they possibly could, in terms of more practical assistance to the
forensic assessment of probability, for example, as
a greater or
lesser than fifty per cent chance and so on.
This
essential difference between the scientific and the judicial measure
of proof was aptly highlighted by the House of Lords in
the Scottish
case of
Dingley
v The Chief Constable, Strathclyde Police
200 SC (HL) 77 and the warning given at 89D - E that
'
(
o
)
ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead of assessing, as a Judge must do, where the
balance of
probabilities lies on a review of the whole of the evidence'.”
(Emphasis added)
In the matter of
Louwrens
v Oldwage
2006 (2)
SA161 (SCA) at paragraph [27] the court stated:
“
What
was required of the trial Judge was to determine to what extent the
opinions advanced by the experts were founded on logical
reasoning
and how the competing sets of evidence stood in relation to one
another, viewed in the light of the probabilities.
”
As to the duties of expert
witnesses, it was stated in
National
Justice Cia Naciera SA v Prudential Assurance Co Ltd The Ikranian
Reefer
[1993] 2
Lloyds Report 68:
“
1. Expert evidence
presented to the Court should be, and should be seen to be, the
independent product of the expert uninfluenced
as to form or content
by the exigencies of litigation.
An expert witness should
provide independent assistance to the court by way of objective
unbiased opinion in relation to matters
within his expertise.
An expert witness should state
the facts or assumption upon which his opinion is based. He should
not omit to consider material
facts which could detract from his
concluded opinion.
An expert witness should make
it clear when a particular question or issue falls outside his
expertise.
Following the accident, the
plaintiff was admitted to the Milpark Hospital. She underwent
surgery (an open reduction and internal
fixation) to the left arm
and approximately one week later she underwent surgery (debridement
and bursectomy) to the left knee.
She was admitted to hospital for a
total of six days. After discharge the plaintiff saw her treating
doctor, Dr Hadjiochristofis,
every week until the sutures were
removed. Thereafter she consulted him once a month. She continued
wearing a sling for six weeks
whereafter she had further x-rays. The
plaintiff only returned to work in May, some two and a half months
post injury, indicating
that the convalescence period was long and
in keeping with serious injuries. She did not resume active coaching
and since her
return to work she has made use of external coaches.
In the classroom she “battles” to use the blackboard as
she
is unable to work above shoulder height. This short medical
history of the treatment received by the plaintiff and her recovery
process is undisputed.
It is trite that the plaintiff
bears the onus of proving on a balance of probability that any
pathology emanating from the accident
explains her current
complaints which disables her from teaching and coaching as she was
able to do pre-morbidly.
The main purpose of the
disputed medical evidence in this matter is to determine the issue
as to whether or not the plaintiff
has suffered injuries which has
curtailed her ability to do the teaching and coaching that she had
been doing since being employed
at St Martins School up to the time
of the accident. In short, the plaintiff’s version is to the
effect that she cannot
continue with her duties as a coach and that
in all probability her future chances of being employed as a coach
have terminated.
The defendant’s version is that the plaintiff
could return to performing the duties of a coach if proper
rehabilitative
measures are adopted. To conclude that this is so, a
finding is required that the injuries suffered as a result of the
accident
have no sequelae which prevents the plaintiff from
performing her pre-morbid teaching and coaching duties. To resolve
this issue,
it will be necessary to look at the medical evidence
more closely.
The medical evidence in this
case was presented by two opposing orthopaedic surgeons, Dr Versfeld
on behalf of the plaintiff and
Professor Schepers on behalf of the
defendant. Their evidence is diametrically opposed in regard to the
issue at stake referred
to in the previous paragraph. Dr Versfeld
opines that pathology exists which explains the continuous symptoms
experienced by
the plaintiff. Contrary to this view, Professor
Schepers states that he was unable to find any pathology which
justified the
plaintiff’s current complaints.
The joint minute of the two
orthopaedic surgeons (exhibit “A”) reveals the following
common cause medical facts:
The expert orthopaedic
surgeons agreed that the plaintiff sustained a fracture of the left
humerus, an injury to the left shoulder
and an injury to the left
knee.
They agreed that the sequelae
of the arm injuries include:
The requirement for future
surgery in the form of removal of the internal fixation present in
the arm;
Symptoms in the left arm which
may be attributable to a neuroma and which would require to be
excised if the symptoms do not
settle;
Scarring of the left arm which
requires the intervention of a plastic surgeon;
An inability to work above
shoulder height;
The requirement for
conservative treatment of the shoulder injury;
Left arm weakness and the
requirement for conservative management of this.
The experts also agree that
the plaintiff “battles to carry out her normal duties”
in the course of her employment
as a sports teacher.
Disagreement existed between
the two doctors in the following respects:
Dr Versfeld was of the opinion
that it is probable that the plaintiff will require surgical
intervention to her left shoulder
in future. Professor Schepers
disagreed with this opinion.
Dr Versfeld was of the opinion
that she sustained an injury to her left elbow joint as a result of
the accident and that provision
should be made for the treatment of
her elbow symptoms. Professor Schepers disagreed with this opinion.
Dr Versfeld was of the opinion
that the plaintiff may suffer a recurrence of a bursa over her knee
in future and that provision
for this eventuality should be made.
Professor did not specifically refer to this aspect.
Professor Schepers is of the
opinion that when the plaintiff has been fully rehabilitated, she
should be able to return to full
normal work, but that provision
should be made for a period of time off work for future surgery,
i.e. removing the plate. Dr
Versfeld, however, is of the opinion
that she has effectively become unfit for the coaching activities
of her normal work.
She is likely to become unfit for even the
partial supervisory coaching that she currently is doing, in
approximately ten years
and that she will be compromised for normal
teaching activities.
4
The plaintiff, who is
left-handed, reported to Dr Versfeld the following complaints
regarding her left arm:
Her lower arm is sore and
sensitive to touch particularly above and behind her elbow;
She endures pain and
discomfort when hitting a ball;
She experiences a weakness of
the left arm;
She has difficulty working
with her arm above shoulder height such as when writing on a school
board;
She has difficulty playing
tennis. These type of activities cause discomfort and pain in the
left arm;
She is unable to carry heavy
items because of the arm injury;
She experiences difficulty
sleeping on her left side because of arm pain and she now sleeps on
her back. Her arm pain is aggravated
by cold weather; and
There is a sensation of
numbness over the left knee and pins and needles on either side of
the scar.
Shortly before the inception of
the trial, the plaintiff reported no improvement in the above
complaints since reporting these
to Dr Versfeld at the time of his
consultation with her.
Dr Versfeld’s examination
findings included:
A 21cm, quite broad scar at
the back of the left arm, extending down to the tip of the elbow. A
photograph was provided which
is contained in the report of the
occupational therapist.
5
The left arm measured 1 cm
more in circumference than the right arm and it appears that the
arm was severely swollen after the
accident and has not returned to
its pre-accident size. Professor Schepers did measure the
circumference of her left upper
arm.
There was a good range of
movement of the left shoulder but external and internal rotation
was reduced. Power of abduction was
reduced on the right. Abducting
and externally rotating the shoulder caused stiffness, which is
abnormal.
Full extension of the elbow
resulted in discomfort. There was decreased sensation around the
scar on the left arm. The power
of extension of the left elbow was
markedly reduced compared to the right.
There is evidence of nerve
damage because there is decreased sensation in the first web space
of the left hand and that is the
sensory distribution of the radial
nerves. The grip strength of the left was reduced in comparison to
the right.
There is scarring around the
left knee with a depression below it. There is tenderness of the
knee. The left calf measures 1cm
less than the right. This is
significant because it shows she is not using the left knee as much
as she is using the right
knee.
The x-rays show that the plate
and screws in the humerus are lying under the radial nerve. Dr
Versfeld is of the view that removing
the plate and screws is a
tricky and dangerous procedure because there is a risk of doing
further damage to the radial nerve.
As to future medical treatment
required, Dr Versfeld made the following observations:
Removal is required of the
plate and screws, which entail a period of three weeks’
absence from work.
Conservative treatment of the
shoulder in the form of anti-inflammatory and hydrocortisone
infiltrations into the shoulder joint
will be necessary.
6
In the longer term, approximately fifteen years hence, surgical
intervention will become likely in the form of a debridement
of the
shoulder joint and/or rotator cuff repair and an acromioplasty.
This would entail a period of disability of eight weeks.
Dr
Versfeld expressed the view that he predicts that the shoulder is
going to deteriorate with time.
There is a 20% to 30% risk of
a recurrence of a bursa over the knee, which will require surgical
removal.
The left arm weakness is
probably due to damage to the muscles during the surgery and radial
nerve damage. Professor Schepers
rejected this contention of Dr
Versfeld. In his view, there would have been no damage to the
muscles during the surgery implanting
the plate.
Dr Versfeld expressed the view
that after three and three quarter’s years of pain one is
unlikely to rehabilitate an injury.
This is in direct conflict with
the view expressed by Professor Schepers. According to him the
plaintiff did not proceed with
normal rehabilitative procedures.
This view on his part is, however, speculation. His report did not
indicate that he asked the
plaintiff as to what rehabilitative
actions she had undertaken. Furthermore Professor Schepers conceded
under cross-examination
that the treating specialist would indeed
have advised the plaintiff fully in regard to what rehabilitative
action she should
take.
A disconcerting fact emanated
from the medical evidence. It appeared from Dr Versfeld’s
report that he spent two and a half
hours examining the plaintiff.
7
In contrast, Professor Schepers did not deny that he spent less than
half an hour “possibly fifteen minutes” in examining
the
plaintiff. The plaintiff also expressed dissatisfaction with the
manner in which Professor Schepers conducted the examination.
Even a
cursory comparison between the first report of Professor Schepers
and that of Dr Versfeld indicates a fairly superficial
examination
by Professor Schepers and a very comprehensive examination by Dr
Versfeld. Professor Schepers produced a follow-up
medico-legal
report.
8
In this report concerning her employability, Professor Schepers
rather curtly opined: “Currently most of her symptoms are
subjective.” Incongruously he also found that the plaintiff
“has remained partially disabled since the accident,
but I
still feel that she should respond to treatment and be able to
return to normal activity.” This conclusion runs counter
to
her recorded statement that she still tries to work out in a
gymnasium. In addition Dr Versfeld said that the plaintiff’s
normal activity of being involved in coaching, all be it not
demonstrating the physical requirements of a particular sport, but
relying on sub-coaches to do so, she will still have moved about
sufficiently to remain active. In so doing she would be conducting
rehabilitative actions.
In neither of his reports, or
the expert minute or during his evidence in chief did Professor
Schepers cast aspersions on the
plaintiff’s honesty or the
genuineness of her complaints. Under cross-examination, however, he
said: “I was actually
very impressed by her honesty…I
was quite sympathetic to her plight, but seeing her again on a
second time I cannot demonstrate
her pathology…And until one
can demonstrate actual pathology, I cannot say she is genuine.”
This was the first time
ever that Professor Schepers expressed his
view that the plaintiff was not genuine. If he thought this at the
time of his second
consultation, why did he not put it in his
report? Why at the time of compiling the joint minute did he agree
to all that he
did without ever noting that he doubted the
plaintiff’s veracity? He said that at the time of the second
report he thought
that although she was not malingering, she was
overplaying the symptoms and not willing to try and get rid of them.
He came to
this conclusion, it appears, not because of any change in
her demeanour, but simply because she still has the symptoms! This
seems to be an afterthought on his part and an attempt to disguise
the real issue i.e that he had been somewhat cavalier in his
approach to his duties as a medico-legal expert when examining the
plaintiff.
It was put to him that as a
sports coach the plaintiff would have some
savoir-faire
in dealing with injuries and rehabilitation. He gave a tangential
reply stating that sports coaches have limited orthopaedic
knowledge
although he admitted that they may have knowledge with regard to
soft tissue injuries. Eventually he conceded that
she may have some
knowledge on how to deal with injuries. He admitted that he had not
asked her about this. Later he withdrew
his opinion in this regard.
The opnion of Professor
Schepers that the plaintiff was not genuine was also influenced by
an unscientific procedure. In order
to establish whether her
symptoms were subjective, he used a ploy by chatting to her and
putting her left arm through various
manoeuvres which according to
him did not elicit any pain. His assumption that the manoeuvres did
not cause pain was not confirmed
by him asking her whether she
experienced pain or not. None of this, however, is recorded in any
of his two reports nor was this
portion of his evidence ever put to
Dr Versfeld or the plaintiff.
He conceded that the sensory
deprivation in the first web space of her hand could be indicative
of irritation of the radial nerve.
When he was asked what other
causes could account for this loss of sensation, he said “it
might be something local, people
get funny little irritations.”
In the presence of a severe arm injury, this simplistic explanation
is not what one would
expect from an orthopaedic surgeon.
Professor Schepers suggested
that a situation where there is no objective abnormal pathology
could easily have been resolved by
the plaintiff undergoing an MRI
scan, but nowhere in his reports did he make mention of such a
solution. Nor did not he make
such a suggestion to Dr Versfeld in
order to resolve their differences of opinion. It was only in court
where he came up with
this suggestion for the first time. Nor was
the solution of asking for an MRI scan put to Dr Versfeld under
cross-examination.
Dr Versfeld testified that he
suspected radial nerve damage existed caused either by the injury
itself or by the surgery. Throughout
his evidence Professor Schepers
vehemently denied evidence of damage to the radial nerve. Then he
said:
“
The radial nerve curves
around the back of the humerus and where the fracture of the humerus
is, that is where the radial nerve
is and it is often damaged by the
injury…”
This was precisely the evidence
of Dr Versfeld.
Most pertinently is the
unsolicited attack made by Professor Schepers on the professional
ability and honesty of Dr Versfeld.
I find it difficult to ascertain
what had motivated Professor Schepers (other than professional
jealousy) to lash out against
a colleague in this fashion. One
thing, however, is certain and that is that this attack said more
about the partiality and bias
of Professor Schepers than the
professional abilities of Dr Versveld. The court room is not the
place to score points against
colleagues. Resorting to this kind of
tactics may very well disadvantage either of the litigants for
irrelevant reasons. Any
bias shown towards a colleague in this
fashion can easily redound to the disadvantage of litigants in that
a court may be taken
on a wild goose chase resulting in faulty
conclusions.
Professor Schepers on his own
showing acts in many medico-legal cases and he should know what the
role of an expert is. A court
requires objectivity and logical and
scientific reasoning from an expert witness in order to come to a
proper conclusion on the
facts. Professor Schepers’s conduct
in the witness box disqualified himself as an expert by contravening
this very basic
precept for expert opinion evidence. Instead of
applying himself to the proper goal for which expert evidence is
tendered, he
ventured on a frolic of his own seemingly motivated by
professional jealousy in attacking dr Versfeld in person.
More particularly I shall refer
to the following instances which indicate the bias against Dr
Versfeld in the evidence of Professor
Schepers:
He stated: “Dr Versfeld,
we cannot quote too much, because he does not know how to do
impingement tests.” Professor
Schepers supplied no reason,
basis or facts for casting this aspersion on Dr Versfeld’s
professional ability.
He further said: “I
cannot find anything wrong and I can promise you that every single
patient that Dr Versfeld sees,
he finds 30 things wrong with them.”
This statement constitutes an exaggeration and a generalisation
unsupported by any
facts.
He also said: “So where
there is genuine pathology, I stated I am just an ordinary honest
orthopaedic surgeon, I do not
try to make an issue out of nothing.”
By this statement Professor Schepers imputed malingering on the
part of his colleague,
Dr Versfeld. It also suggests that he
regards himself as honest, but not so Dr Versfeld. When I
questioned Professor Schepers
in this regard as to whether he is
suggesting that Dr Versfeld makes an issue out of nothing, his
reply was: “Absolutely.”
Again this constitutes a
generalisation by Professor Schepers unsupported by any evidence
before the court.
When it was put to him that Dr
Versfeld is simply attempting to find explanations for the real
symptoms that the plaintiff is
experiencing, Professor Schepers
replied:
“
That is because Dr
Versfeld cannot agree with any other orthopaedic surgeon…Whenever
we have cases, he finds a 100 things,
we find nothing. Whenever we
draw up minutes he sticks to his guns and we cannot persuade him.”
It is obvious that Professor
Schepers is playing the man and not the ball. It seems as if he is
bent upon a crusade against Dr Versfeld.
What is also surprising is
his criticism of Dr Versfeld for “sticking to his guns”.
Yet in evidence Dr. Schepers did
exactly the same. He testified about
the plaintiff’s complaints constituting “a typical
hysterical pattern”.
In this regard he was asked the following:
“
And you cannot say that
without a neurological assessment? – No, no,
I
stick to my guns
, I
will say that without a neurological assessment, but if you want to
settle the argument between the two witnesses, you get your
neurological assessment.” (Emphasis added)
Professor Schepers accused Dr
Versfeld of being “knife-happy”. In this regard
Professor Schepers testified as follows:
“
If you read every report
that Dr Versfeld issues, he will operate on every single thing that
the patient complains about. He will
go through conservative
treatment and then they will need an operation. So obviously
conservative treatment never works and I can
produce any number of
reports where he says that.”
This is yet another example of
his bias and lack of objectivity.
None of the allegations made by
Professor Schepers referred to in the previous paragraph were put to
Dr Versfeld when he testified.
Dr Versveld was denied the
opportunity to defend his character and professionalism. The
unleashing of Professor Schepers’
attack on Dr Versveld, in
fact came as an unfortunate surprise.
It is common cause that the
plaintiff suffered these injuries to her left arm. The disfiguring
scar on her left arm is clearly
visible.
9
A mere glance at a photograph of her arm also indicates a remaining
swelling of the left arm when compared with her right upper
arm.
Despite what is visible by the naked eye, Professor Schepers still
doubted the existence of this obvious pathology in her
left upper
arm.
The fact that the plaintiff is
unable to continue with her coaching activities as she did prior to
the accident was supported
by Dr Versfeld’s medical evidence,
by the plaintiff in her own evidence and by the evidence of the
headmaster of St Martins
School, Mr Welsh. In the light of this
formidable body of evidence, I have no reason to doubt the veracity
of her current complaints.
I also have no reason to find that she
would be able to return to her normal coaching activities if certain
rehabilitative measures
are now adopted. I find it to be highly
unlikely that the plaintiff would feign her physical disabilities to
the detriment of
the school to which she is loyal. It is even more
unlikely that she would continue to do so when she is aware of the
detrimental
financial consequences to the school. Also, why would
she feign these physical disabilities and thereby place her
reputation
at the school in jeopardy when she knows her job as a
coach may be on the line as testified to by Mr Welsh?
For the reasons set out above I
am of the view that the plaintiff succeeded in proving on a balance
of probability that due to
her injuries suffered during the
accident, she has been unable to do the coaching of the girl’s
sports at St Martins School
as she did prior to the accident.
However, if I am incorrect in this conclusion, and it is found that
the probabilities are evenly
balanced as to the cause of her
disabilities, then I would still come to the same conclusion based
on the incredulity and bias
of Professor Schepers’s evidence.
I am of the view that one can happily disregard his evidence as
biased and partial, lacking
the objectivity one expects of an expert
witness. On the other hand, I am of the view that Dr Versfeld gave
evidence in a calm
and collected manner supporting his opinions by
his findings of fact after properly examining the plaintiff in a
meticulous fashion.
Criticising Dr Versfeld for this precision with
which he executed his duties is, in my view, completely unfair. I
find his opinions
objectively correct and based on logical
reasoning. I cannot say the same about the contrary opinions
advanced by Professor Schepers’s
and the latter’s
contrary opinions falls to be rejected.
In coming to the aforesaid
conclusion I have not lost sight of the evidence of Mr Friedl van
der Westhuizen who testified on behalf
of the defendant. He is an
industrial psychologist. He attempted to convince the court that the
plaintiff suffered no loss of
future earnings. He was of the view
that her duties as a teacher were “cognitive” and that
any loss suffered in her
physical abilities, is irrelevant. This
view, however, falls to be rejected in the light of the evidence of
the plaintiff and
Mr Welsh regarding the current situation in the
educational industry where the teaching of Afrikaans as a school
subject is under
pressure of extinction. In my view, that severely
curtails the plaintiff’s marketability as an Afrikaans teacher
simpliciter
without the added advantage of being a sports coach. In any event, I
found Mr van der Westhuizen to be partisan and also lacking
the
necessary objectivity. This also affects his credibility.
10
LOSS OF EARNINGS AND/OR
LOSS OF EARNING CAPACITY
At the time of the accident,
the plaintiff was employed at St Martins School. She was a coach,
head of girls’ sport, head
of girls boarding and an Afrikaans
teacher.
Post accident the plaintiff
continued to be employed at St Martins in the same position and at
the same remuneration as prior
to the accident.
The difference since the
accident is that the physical sequelae of her injuries have
precluded her from active participation as
a coach. In the result,
the school under the leadership of the principal, Mr Welsh, has been
obliged to employ temporary auxiliary
coaches to carry out those
duties, which the plaintiff was no longer able to perform herself.
Even in the classroom the plaintiff
is now disadvantaged in that she
has to make use of more equipment than other teachers to facilitate
her teaching. Obviously
such additional equipment brings into the
equation a cost factor.
As testified by Mr Welsh, the
school is incurring an additional cost of approximately R25 000.00
to R30 000.00 for the payment
of such coaches. An expense which was
not incurred prior to the plaintiff being injured.
Despite having to employ
auxiliary coaches to assist the plaintiff in carrying out her
duties, the plaintiff has retained her
position as head of sports
for girls and in addition has continued receiving the same
remuneration as she did prior to the accident.
As head of sports,
the plaintiff receives an additionally an approximate amount of R30
000.00 per annum. Were she to be just
a teacher she would therefore
earn approximately R30 000.00 less per annum.
Mr Welsh testified that he has
to “defend” this additional expenditure to the finance
committee of the school on a
monthly basis and that he may not be
able to do so indefinitely. He stated:
“
I am aware though at some
point we may take away certain responsibilities, take the girls sport
away from her and give it to somebody
who is capable of doing the
coaching as well as whatever job they are doing and
that
is a real issue
.”
(Emphasis added)
The school, through its board
and/or Mr Welsh himself, are empowered to demote the plaintiff
should it be decided that the plaintiff
is costing the school too
much. She would then be offered a position as teacher of Afrikaans.
This could happen during the tenure
of Mr Welsh who is 58 years of
age at present. This means that he has another seven years to
retirement. Or it could occur when
a new principal is employed upon
Mr Welsh’s retirement.
The school continued payment of
her remuneration at the same level despite the plaintiff’s
diminished capacity to perform
her duties in the classroom and
despite her not performing her duties as a coach at all for the last
four years. This amounts
to an act of generosity and benevolence on
the part of her employer who has sought to assist her rather than to
diminish her
salary by the commensurate amount that she is costing
the school. The plaintiff is being remunerated for something she is
clearly
not providing. Thus the payment is to be treated as a
collateral benefit which is
res
inter alios acta
.
The payment is in the nature of a donation of the amount by which
the salary exceeds the value of the plaintiff’s services,
and
thus should be disregarded by the court when computing her future
loss of earnings or earning capacity.
THE COLLATERAL SOURCE RULE
The basic principle of
compensation in
delictual
actions is to place the plaintiff in the position she would have
been in had the delict not occurred. When a third party intervenes
and make payments to the plaintiff out of generosity or benevolence
or charity, the collateral source rule comes into play. Ultimately
this rule states that such payments are
res
inter alios acta
and
must be disregarded when quantifying the damages. One of the
reasons behind this is the reluctance on the part of the law
to
allow the “wrongdoer” to benefit from the acts of
kindness of another unrelated party.
The collateral source rule
forms part of South African law. In all jurisdictions where it is
recognised, the collateral source
rule has been fraught with
difficulty and diversely applied. Professor Boberg states at page
479 of “THE LAW OF DELICT”,
that the existence of the
collateral source rule cannot be doubted; to what benefits it
applies must be determined casuistically;
where the rule itself is
without logical foundation, it cannot be expected of logic to
circumscribe its ambit.
The rule must also be seen in
the context of being partially corrective of our “once and for
all” rule which of course
carries the danger of under
compensation.
It also has a bearing in the
argument pertaining to whether in delictual actions we compensate
for loss of earning capacity or
for loss of earnings. Loss of
earning capacity allows for a more flexible approach in that it
extends compensation to those who
at the time of injury were not
utilising their earning capacity e.g. the woman who is a qualified
accountant but chooses to take
time off of her career in order to
raise children, or the doctor who is working in missionaries in
Africa for charitable purposes.
Boberg argues that if the true
rationale of compensation is loss of earning capacity, the receipt
of collateral benefits is rightly
disregarded, for they do nothing
to restore that which is lost.
International Law
In Australia Harold Luntz in
“
Assessment of
Damages for Personal Injury and Death
”
2nd Edition, commented on the uncertainty of the law in regards to
the collateral benefits rule, and quotes
Browning
v War Office and Another
[1962] 3 All E. R. 1089 (CA) at 1093 E -- F where Donovan LJ said
that:
“…
in this field
logic is conspicuous by its absence.”
In
Browning
v War Office
supra
at page 1091 D-E Lord Denning MR said of the plaintiff’s duty
to mitigate his losses as follows:
“
He should, therefore,
give credit for all sums which he receives in diminution of his loss,
save in so far as it would not be fair
or just to require him to do
so. The difficulty is to say when it is or not fair or just, to take
the receipts into account”.
However, in criticising a
haphazard approach, Dixon CJ in
National
Insurance Co of NZ v Espagne
(1961) 105 CLR 556
, 572 said:
“
Intuitive feelings for
justice seem a poor substitute for a rule antecedently known, more
particularly where all do not have the
same intuitions.”
Subsequent decisions have done
little if anything to clarify the issue. Luntz states that the
courts have tended to confuse the
issues further by using Latin tags
such as
res inter
alios acta
which do
no more than state conclusions without offering guidance as to how
those conclusions are reached.
In
Griffiths
v Kerkemeyer
,
[1977] HCA 45
;
(1977)
139 CLR 161
, the court held that the plaintiff was entitled to
recover damages though the loss was actually borne not by the
plaintiff himself
but by a third party who had no direct right of
action.
In
Francis
v Brackstone
(1955)
SASR 270
it was held that neither payments made by an employer who
is contractually bound to do so nor those payments made on a
voluntary
basis were to be set off. The former were likened to
insurance benefits whilst the latter to charitable gifts.
The Court in
Hobbelen v Nunn
(1965) Qd R 105
, 124 held that if a benevolent employer chose not to
terminate a plaintiff’s contract of employment after he
becomes disabled
from working, the payments are still wages and not
gifts and the plaintiff may not claim for loss of earning capacity
during
the period that he received such wages. This appears to have
been premised on the rationale that the voluntary aspect is that of
the employer not terminating the employment contract and if he does
not do that then there is a contractual right on the part
of the
plaintiff to receive his wages. Luntz says that the reasoning is
“doubtful”.
In
Volpato
v Zachory
(1971)
SASR 166
, Bray CJ held that the plaintiff could not recover damages
for loss of earning capacity only if he had received his wages by
contractual right. The onus was on the defendant to show the true
nature of the payments. If, however, the money had been paid
voluntarily by the employer, there was to be no deduction.
According to Luntz, the best
that can be said for this approach are the words of Sholl J in
Johns
v Prunell
(1960) VR
208
, 211 which states:
“
In general, the law
seems…to have endeavoured to form a kind of moral judgment as
to whether it is fair and reasonable that
the defendant should have
the advantage of something which has accrued to the plaintiff by way
of recoupment, or other benefit
as a result of the defendant’s
infringement of the plaintiff’s rights.”
The
locus
classicus
on the
collateral benefits rule in England is
Parry
v Cleaver
[1969] 1
ER 555.
The issue before the court was whether an award for ill
health ought to be deductible in the assessment for loss of
earnings.
The court held that it was not deductible. Lord Reid, in
considering general principles applicable to the computation of
damages
for loss of earnings in injury cases said that in such cases
the following questions arise:
What did the plaintiff lose as
a result of the accident? What sums which he would have received
but for the accident, but which
by reason of the accident he can no
longer get?
What are the sums that he did
in fact receive as a result of the accident but which he would not
have received had there been
no accident?
The further question then
arises whether the latter amounts must be deducted from the former
in assessing the damages.
It was accepted by the court
that proceeds of insurance and sums coming to the plaintiff by
reason of benevolence are not deductible.
The common law has treated
this matter as one depending on justice, reasonableness and public
policy. In the case of benevolence,
it would be revolting to the
ordinary man’s sense of justice and therefore contrary to
public policy that the sufferer
would have his damages reduced so
that he would gain nothing from the benevolence of friends and
relations or the public at large
and that the only gainer would be
the wrongdoer.
In the case of insurance
payments, these should not be deducted because the plaintiff was
sufficiently prudent to take out insurance.
Lord Reid goes on to say
that insurance flowing from a contract of employment and insurance
arising simply because the employer
has so advised the employee
should be treated in the same way and in his view it is anomalous
that the first is deductible and
yet the second is not.
The decision of the Court of
Appeal in the case of
Donnelly
v Joyce
(1973) 3 All
ER 475
is particularly instructive vis-à-vis the facts of the
present case. The plaintiff, aged six, was severely injured when
a
lorry driven by the defendant ran over his legs. In consequence of
the injuries to his right leg the plaintiff was kept in
hospital for
some three months and for two months thereafter had to attend daily
as an out-patient. The injured leg required
special bathing and
dressing every evening as well as at midday. The plaintiff’s
mother had a part-time job which involved
working from 18:00 to
20:30, six nights a week. As soon as the plaintiff had been
discharged from hospital the mother gave up
her job in order to care
for him. She received special instructions from the hospital as to
the treatment of the leg.
In an action against the
defendant the plaintiff sought to recover as special damages the
loss of wages incurred by the mother
while caring for him. The
defendant contended,
inter
alia
, that the
plaintiff was not entitled to recover in respect of the mother’s
loss of wages since that loss was the mother’s
and not the
plaintiff’s and the plaintiff was under no moral or
contractual duty to pay his mother for her services in
caring for
him.
It was held that a plaintiff
was entitled to claim damages in respect of services provided by a
third party which were reasonably
required by the plaintiff because
of his physical needs directly attributable to the accident; the
question whether the plaintiff
was under a moral or contractual
obligation to pay the third party for the services provided was
irrelevant; the plaintiff’s
loss was the need for those
services, the value of which, for the purpose of ascertaining the
amount of his loss, was the proper
and reasonable cost of supplying
the plaintiff’s need. It followed therefore that the defendant
was liable to the plaintiff
for the cost of the mother’s
services, i.e. her loss of wages, necessitated by the defendant’s
wrongdoing.
The court further held:
“
Counsel for the
defendant’s first proposition is that a plaintiff cannot
succeed in a claim in relation to someone else’s
loss unless
the plaintiff is under a legal liability to reimburse that other
person. The plaintiff, he says, was not under legal
liability to
reimburse his mother. A moral obligation is not enough.
We do not agree with the
proposition, inherent in counsel for the defendant’s
submission, that the plaintiff’s claim,
in circumstances such
as the present, is properly to be regarded as being, to use his
phrase, ‘in relation to someone else’s
loss’,
merely because someone else has provided to, or for the benefit of,
the plaintiff – the injured person –
the money, or the
services to be valued as money, to provide for needs of the plaintiff
directly caused by the defendant’s
wrongdoing. The loss
is
the plaintiff’s loss. The question from what source the
plaintiff’s needs have been met, the question who has paid
the
money or given the services, the question whether or not the
plaintiff is or is not under a legal or moral liability to repay,
are, so far as the defendant and his liability are concerned,
irrelevant. The plaintiff’s loss, to take this present case,
is
not the expenditure of money to buy the special boots or to pay for
the nursing attention. His loss is the existence of the
need for
those special boots or for those nursing services, the value of which
for purpose of damages – for the purpose of
the ascertainment
of the amount of his loss – is the proper and reasonable cost
of supplying those needs. That, in our judgment,
is the key to the
problem. So far as the defendant is concerned, the loss is not
someone else’s loss. It is the plaintiff’s
loss.
Hence it does not matter, so far
as the defendant’s liability to the plaintiff is concerned,
whether the needs have been supplied
by the plaintiff out of his own
pocket or by a charitable contribution to him from some other person
whom we shall call the ‘provider’;
it does not matter,
for that purpose, whether the plaintiff has a legal liability,
absolute or conditional, to repay to the provider
what he has
received, because of the general law or because of some private
agreement between himself and the provider; it does
not matter
whether he has a moral obligation, however ascertained or defined, so
to do. The question of legal liability to reimburse
the provider may
be very relevant to the question of the legal right of the provider
to recover from the plaintiff. That may depend
on the nature of the
liability imposed by the general law or the particular agreement. But
it is not a matter which affects the
right of the plaintiff against
the wrongdoer.”
The court defined the
philosophy underpinning this principle in the following terms:
“
Moreover, apart from the
question of principle – involving, as the suggested principle
does, the idea that a liability can
be created, binding on a person,
by a contract to which he is not a party – is there not
something repulsive in the idea
that the extent of a wrongdoer’s
liability for a part of the consequences of his wrongdoing should
depend on the willingness
or otherwise of a would-be provider to
require such a legally binding bargain to be made with the injured
person as a condition
of his assistance? Suppose that a wife has been
seriously injured. Is the defendant’s liability to depend on
whether, and
if so when, the injured woman’s husband, or her
sister or her neighbour, had made a bargain with her (perhaps while
she is
lying gravely injured) that she will repay? Further, on the
doctrine applied in
Haggar
v de Placido
, any
money paid or expenses incurred by the provider before the agreement
has been made are irrecoverable. So, if you incur expenses
or render
services on behalf of a person who cannot contract because he is
unconscious, or is a child or is mentally incapable,
you do so for
the financial benefit of the wrongdoer. If that were the law, it
would, we think, be regrettable. Many people, we
believe, would
prefer that a loss should go uncompensated rather than that they
should make such bargains in such circumstances.
Many injured persons
would be distressed at the very fact that such a bargain was asked
for, even if they understood its purpose.
Many people, if they did
purport to make such bargains, would not intend for one moment that,
however the agreement might be phrased,
it should create any legal
effect in accordance with its terms; that is, the imposition of an
enforceable legal liability on the
injured person. If such were the
law, legal advisers would, we believe, often be gravely embarrassed
at having the duty to advise
that such agreements should be made. As
we believe and hold, that is not the law.”
The facts in
Liffen
v Watson
[1940] 1
All ER at 219 are also instructive. The plaintiff, a girl who had
worked as a domestic servant, was injured by the defendant’s
negligence. She had to give up her employment. By her contract of
employment she had been entitled to board and lodging as well
as
wages. Her father, after the accident, provided her with free board
and lodging. There was no agreement as to repayment. The
defendant
claimed that the damages referable to the girl’s lost
employment, while admittedly including the value of wages
lost,
could not include the value of the lost board and lodging: for she
had not lost that, since it was supplied gratuitously
by her father.
The court held that it was because of the defendant’s
negligence that the plaintiff needed to find board
and lodging. It
held that the girl plaintiff was entitled to recover that value. In
this regard Goddard LJ said:
“
The question whether the
plaintiff was entitled to recover damages under that head from the
defendant does not depend on whether
or not she had made a contract
for board and lodging with some one else. The plaintiff lost her
right to the board and lodging
provided by her employer because she
was rendered by the accident unfit for work. It does not matter
whether after the accident
she was taken in by her father or by a
friend to whom she might say: ‘I cannot make a contract with
you, but I will pay you
something if I recover damages.’ The
only consideration is what the plaintiff lost. She lost the value of
the board and lodging
just as she lost her wages and she is entitled
to be compensated for that loss. What she does with the compensation
when she receives
it is a matter for her and nobody else. If she
likes to pay her father for the board and lodging he has given her,
she can do so.
Perhaps he has got some claim on her, but, however
that may be, what is done with the compensation cannot affect the
question which
we have to decide.”
A more recent case came to a
similar conclusion. In
Lowe
v Guise
[2002] EWCA Civ 197
;
[2002] 3 All
ER 454
(CA) the facts were as follows: The claimant, who lived with
his mother and disabled brother, was injured in an accident caused
by the defendant’s negligence. In subsequent proceedings, the
claimant alleged that, before the accident, he had provided
gratuitous carer services to his brother, estimated at some 77 hours
per week, but that after the accident his injuries had limited
him
to providing such services for only thirty five hours per week, with
the difference being made up by his mother. A preliminary
issue
arose as to whether, on the facts pleaded by the claimant, he was
entitled to recover damages for the carer services that
he was no
longer able to provide.
It was held that where the
claimant in a personal injury action had, prior to his accident,
provided gratuitous care to a relative,
spouse or partner, living as
part of the same household, he was entitled to recover as damages
the value of the care which, as
a result of the defendant’s
negligence, he was no longer able to provide. Such a claimant
suffered the loss of being able
to contribute the value of his
services to the needs of his family, or he transferred the loss, by
reason of his injuries, to
another member of the family household
who was in turn obliged to contribute his service. There was no
difficulty in valuing
in pecuniary terms the gratuitous service
provided by such a claimant. Although the carer did not expect, or
at any rate was
willing to forego, compensation for the service, its
value could still be assessed as his loss if he were deprived by
another’s
fault of the ability to make that contribution or
financial sacrifice. The claimant was entitled, on the basis of the
pleaded
facts, to claim damages in respect of the loss of his
ability to look after his brother.
South African Case Law
Bosch v Parity Insurance Co
Ltd
1964 (2) SA 449
(W): The plaintiff claimed damages for personal injuries sustained
in a motor vehicle accident. During his recovery period he
was off
work for a period of some 68 days, for which he was remunerated by
his employer in terms of sick leave benefits stipulated
in his
contract of employment. The plaintiff therefore had received full
wages and his real loss had been using up his accumulated
sick
leave. The court held that the fact that the plaintiff had received
his wages during the period of incapacitation was to
be disregarded
in assessing his damages by virtue of the collateral source rule. It
was held that it mattered not the benefits
flowed from his contract
of employment as this right was deemed to have been purchased much
the same way as an insurance.
May v Parity Insurance Co
Ltd
1967 (1) SA 644
(D): The plaintiff claimed loss of earning for a period during which
he was off work. The plaintiff was entitled to receive payment
from
his employer for the time off work as of right and received sick
pay. The defendant argued that this amounted to double
compensation.
The court (Milne JP) held that the plaintiff was entitled to receive
compensation from the defendant irrespective
of what he had
independently bargained for with his employer.
Santam
Versekeringsmaatskappy Bpk v Byleveldt
1973 (2) SA 146
(A): The plaintiff had sustained a severe head
injury in a motor vehicle accident. Despite being “feeble
minded”
and virtually unfit for work, his former employer, a
garage proprietor, continued to employ him and remunerate him
commensurately
as a mechanic. In the twenty months before trial he
earned R4 123.00 in wages. The question before the court was whether
this
amount was recoverable from the defendant for loss of earnings.
The Appellate Division held by a majority of 4 to 1, that it was
recoverable.
Swanepoel v Mutual and
Federal Insurance Company Limited
1987 (3) SA 399
(W): In this case the issue was whether a pension or
a pensionable allowance to which the plaintiff was entitled in terms
of
the Military Pensions Act, was to be taken into account in the
assessment of damages. The plaintiff made no contributions to the
fund and did not rely on a contract of service with the defence
force when computing his damages. The court said:
“
When damages for personal
injury are to be assessed a person’s patrimony includes, inter
alia, the capacity to earn money
through his effort. This capacity to
earn money ‘is considered to be part of a person’s estate
and a loss or impairment
of that capacity constitutes a loss if such
diminishes his estate.’”
On the basis that the loss of
capacity is sought to be compensated, the reason for excluding
charitable payments and benefits
derived from a contract of
insurance becomes obvious. The charitable benefit is a donation and
the benefit in terms of an insurance
is purchased. Neither benefit
is in fact earned. The reasoning of the court in this case was that
the military pension bore no
relationship to the plaintiff’s
earning capacity and therefore could not be deducted.
Zysset and Others v Santam
Limited
1996 (1) SA
273
(C): In this matter Swiss nationals received substantial
benefits in terms of compulsory Swiss social insurance schemes. The
plaintiffs had been injured in South Africa. The issue to be decided
by the court was whether the benefits paid in essence by the
Swiss
insurance schemes were to be deducted. The court held that the
enquiry must inevitably involve to some extent considerations
of
public policy, reasonableness and justice. The considerations
include weighing up the factor of double compensation versus
the
factor that the guilty party ought not to be relieved of liability
on account of a fortuitous event such as the generosity
of a third
party. The court decided that in light of an agreement between the
parties and the Swiss insurance scheme requiring
the plaintiffs to
repay the amounts disbursed, the amounts were not deducted from the
plaintiffs’ awards.
Standard General Insurance
Company Limited v Dugmore NO
1997 (1) SA 33
(A): The issue was whether the plaintiff was entitled
to the capitalised value of his salary and pension as he would have
received
but for the injury, less the capitalised value of the
disability pension. The court said that it is generally accepted
that there
is no single test to determine which benefits are
collateral and which are deductible. Both in our country and in
England it
is acknowledged that policy considerations of fairness
ultimately play a determinative role. The court found that the
disability
pension which flowed from the terms of the contract of
employment was to be deducted. A further payment for disability at
the
behest and discretion of the employer was not deducted.
What emerges clearly from the
above extracts of law is that no hard and fast rules are applicable
in the determination and application
of collateral benefits; policy
considerations of what is just and fair come into play. What is
clear, however, is that where
the plaintiff receives a benefit of
whatever nature through a third party, and irrelevant of the motive
of that third party,
this gratuity cannot be taken into account when
assessing the losses of the plaintiff. On the basis of the
aforesaid authorities,
I am of the view that justice and fairness
demands on the facts of this case that the benefits provided by Mr.
Welsh (the “provider”)
in assisting the plaintiff to
retain her current salary and position despite her inability to
fully render the commensurate services,
constitute a gratuity which
should not be deducted from her loss.
QUANTUM OF DAMAGES
In my view there are at least
two alternative bases upon which a fair and reasonable amount of
damages may be calculated in the
present case. These are:
Scenario 1: Payments by the
employer are considered to be a collateral benefit:
The plaintiff has continued to
be remunerated as coordinator of girls sport although she is only
partially complying with those
duties since she is not doing the
actual coaching herself which she used to do prior to the accident.
Mr Welsh testified that if she
were to be demoted to a teacher of Afrikaans only, she would lose
about R30 000.00 per annum.
Mr Welsh said at some point he will be
faced with this decision.
Accepting that the payments of
R30 000.00 per annum to date are
inter
alios acta
, then
the defendant is obliged to compensate the plaintiff from her
return to work in May 2007. These payments are gratuitous
because
the payments are made at the employer’s discretion; the
plaintiff would not be able to enforce her right to such
payment if
she is in fact not doing the job for which she is being
remunerated. The plaintiff did not rely on her contract
of
employment to prove her loss of earnings.
Scenario 2: The payments are
not collateral benefits:
If it is assumed that such
payments are not
res
inter alios acta
and that the plaintiff has not lost any earnings to date, then it
must be accepted that this situation will survive with certainty
for only as long as Mr Welsh’s tenure as principal continues.
He has another seven years to retirement. During the next
seven
years as his evidence shows, he may be obliged to demote the
plaintiff. However, once he retires there is no guarantee
that a
new principal will keep the plaintiff in her current position.
In these circumstances the
plaintiff will in all probability be demoted to being a teacher of
Afrikaans only in about seven
years time and her actual loss will
amount to R30 000.00 per annum to age of retirement at 65 years.
In scenarios 1 and 2 above,
there is to be a contingency deduction included as well as time off
work for treatment:
In addition to the R2 500.00
per month which is a tangible loss, regard must also be had to the
plaintiff’s general loss
of marketability and hence
employability. There are multiple tiers of loss of earning
capacity. It is relevant in these circumstances
to take into
consideration the fact that if the plaintiff were to have a change
of circumstances (if she were to leave the
present employer), her
loss would include the loss of free accommodation and associated
benefits and the subsidy for her children
which have not been
factored into the calculations.
Time off work for treatment
amounts to eleven weeks over a fifteen year period.
CONTINGENCIES
The contingency deductions are
within the discretion of the court and dependant upon the Judge’s
impression of the case.
In
Southern
Insurance Association Limited v Bailey
1984 (1) SA 98
(A) at 117, on the issue of contingency deductions,
Nicholas JA quoted with approval an Australian case where it was
said:
“
It is a mistake to
suppose that it necessarily involves a ‘scaling down’.
What it involves depends, not on arithmetic,
but on considering what
the future may have held for the particular individual
concerned…(The) generalisation that there
must be a ‘scaling
down’ for contingencies seems mistaken. All contingencies are
not adverse. All ‘vicissitudes’
are not harmful. A
particular plaintiff might have had prospects or chances of
advancement and increasingly remunerative employment.
Why count the
possible buffets and ignore the rewards of fortune? Each case depends
upon its own facts. In some it may seem that
the chance of good
fortune might have balanced or even outweighed the risk of bad.”
The normal contingency applied
to the uninjured state is approximately 10% for someone with as
steady an employment record as
the plaintiff.
In considering contingencies in
respect of her earnings now that she is injured, the following
factors are to be noted:
A demotion could materialise
with a consequent reduction of earnings which could happen sooner
as a result of Mr Welsh leaving
the school before his retirement
age;
There exists this reality that
if she were to leave the school she would be a disadvantaged job
seeker on the following basis:
She is approaching or is in
middle age and that can be a disadvantage. She will be marketing
herself as a coach who physically
can no longer coach! Or, she will
be marketing her primarily as an Afrikaans teacher, the future of
which is unclear. She will
have to be forthright about not being
able to write on a board and her requirements regarding teaching
aids such as proxima,
computers, overhead projectors and the like.
She will have to be forthright about having been injured in the
past and the possible
requirements of medical treatment in later
years necessitating time off. As she ages, the sequelae of the
injuries will increase
as her condition deteriorates, as testified
by Dr Versfeld and time off work will be more frequent and her
general productivity
will diminish.
The other factor to be borne
in mind is all that she would lose if she were to leave her current
situation which includes free
housing including free water, lights
and telephone and a 66% subsidy in terms of her children’s
school fees.
The agreement between the
orthopaedic surgeons is that she battles to do her job. In addition
to the usual contingencies that
must apply to an injured person
amongst which are a greater propensity for taking sick leave,
plaintiff suffers from a more
vulnerable body which may be more
susceptible to injury, illness etc. In addition the retirement age
has been taken at 65 years
both pre- and post injury whilst there
is a greater chance that in her injured state she may have to
retire earlier.
In these circumstances, I am
of the view that a fair and reasonable contingency of 30% should be
deducted from her earnings
in her injured state.
ACTUARIAL CALCULATIONS
As previously stated, Exhibit
“F” contains the most recent actuarial calculations. In
my view the applicable scenarios
in this case are the following:
Scenario 1: The plaintiff has
suffered a loss of R2 500.00 per month since the date of accident
as payment thereof by her employer
is considered
res
inter alios acta
.
Past loss is equal to R99
011.00;
Future loss is equal to R775
865.00 where a 10% pre accident contingency and a 30% post accident
contingency is applied.
Time off work for treatment is
equal to R15 122.00.
Total loss of earnings in
scenario is equal to
R875
867.00
.
11
Scenario 2: The plaintiff has
sustained no loss to date but will do so in the future:
The loss is assumed to be R2
500.00 from the age of 50 years of age. Contingency deductions are
made as above.
Future loss of earnings (R669
341.00 and time off work for treatment (R16 003.00) equal
R685
344.00
.
12
CONCLUSIONS
In my view it is more
reasonable to regard the plaintiff’s loss as having commenced
immediately as from the date of accident.
The loss she suffered
while still in hospital and before she went back to work is
obviously the sum total of the loss of her
salary during that
period. After re-engaging her employment her loss would be the
amount it cost the employer to make the necessary
adjustments in
order for her to oversee the coaching without actually doing the
work of a coach yet being paid the salary as
if she was doing the
actual coaching. That is reflected in scenario 1 above and in my
view that is the amount of damages that
should be awarded in this
particular case.
I therefore make the following
order:
Future loss of earnings/future
loss of earning capacity is awarded to the plaintiff in the amount
of R875 867.00.
The interim payment of R223
082.15 is confirmed.
An undertaking in terms of
section 17(4)
of the
Road Accident Fund Act 56 of 1996
is to be
supplied by the defendant.
Costs of suit including the
preparation and attendance costs of Dr Versfeld and Ms J. White.
DATED THE ______ DAY OF
_______________ 2012 AT JOHANNESBURG
__________________________
C. J. CLAASSEN
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff: Adv
C. Vallaro
Counsel for the Defendant: Adv
S. Meyer
Attorney for the Plaintiff:
Munro Flowers and Vermaak
Attorney for the Defendant: M F
Jassat Dhlamini Inc
Trial commenced from 2 February
– 3 February 2011
Closing argument commenced on 22
November 2011
1
See Schedule “A” attached to the plaintiff’s
Particulars of Claim, page 12.
2
See the payment slip at p 20 of exhibit “B”.
3
See the amendment notices at pp 18 – 23 of the pleadings
bundle.
4
See the joint minute in exhibit “A” pp 1 – 2.
5
See Exhibit “C” p 34.
6
Professor Schepers agreed 100% with this treatment
despite his stance that the plaintiff’s problems are all
caused by a
generalised weakness due to insufficient rehabilitation.
7
See Exhibit “C” p 40 of the plaintiff’s Expert
Bundle
8
See Exhibit “D” pp 9 – 13
9
See the photograph at page 34 of exhibit “C”.
10
See
Stock v Stock
1981 (3) SA 1280
(AD);
B v B
(2006)
3 All SA 109
(W) at paragraph [95]
11
See Exhibit “F”, p 13
12
See Exhibit “F”, p 6