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[2014] ZAGPJHC 405
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Fourie v Ronald Bobroff And Partners Incorporated (12/3663) [2014] ZAGPJHC 405; [2015] 2 All SA 210 (GJ) (10 December 2014)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG
HIGH COURT
JOHANNESBURG
CASE
NO: 12/3663
DATE:
10 DECEMBER 2014
In
the matter between:
FOURIE,
URSHA
YVONNE
..............................................................
Plaintiff
And
RONALD
BOBROFF & PARTNERS INCORPORATED
....................
Defendant
JUDGMENT
WEINER J:
This
is a claim by the Plaintiff, an erstwhile client against a firm of
attorneys, Ronald Bobroff & Partners Incorporated,
for damages
allegedly suffered by Plaintiff in her personal capacity and on
behalf of her minor child, Lincoln. This claim is
based upon the
alleged under settlement on 1 August 2011 of her and her son’s
claims against the Road Accident Fund (“RAF”).
Background
The original claims
against the RAF were instituted as a result of a motor vehicle
accident which occurred on 27 June 2005. As
a result of the
accident, Plaintiff’s husband passed away. Some weeks after
the accident, her minor daughter, Cayleigh,
who had also been
injured in the accident, also passed away. Plaintiff and her minor
child Lincoln both suffered physical injuries
as well as
psychological and emotional injuries.
Plaintiff’s
claim is based on the alleged negligent breach by Defendant of the
mandate given to Defendant to institute and
pursue the claim against
the RAF with the standard of diligence, care and skill which could
reasonably be expected of a practising
attorney. In this matter, it
is accepted by Defendant that it was a firm specialising in personal
injury claims.
Defendant denies
that it was negligent in the execution of its mandate,
alternatively,
if it is found to have been negligent, then
that negligence constituted so-called “
negligence in the
air
”. It is submitted that the amount of another
settlement or the likely award a Court would have made on 1 August
2011, would,
in all probabilities, not have been more than the
amount of the actual settlement which Plaintiff accepted at the
time.
The
amount of the settlement on 1 August 2011 was the amount of
R1 777 810-50, which, according to the evidence led
at the
trial, was computed as follows :
Loss
of support in respect of Plaintiff
R838 804-60
Loss
of support in respect of Lincoln R323 509-00
Past
medical and hospital expenses - Plaintiff
R61 947-46
Past
medical and hospital expenses – Plaintiff R61 947-46
Past
medical and hospital expenses on behalf of minor daughter –
Cayleigh
R283 549-55
General
damages – Plaintiff
R200 000-00
General
damages – Lincoln
R70 000-00
Total
R1 777 810-50
Plaintiffs
claim is that the following amounts (in addition to the claims set
out in 6 above) would have been awarded, had the
matter gone on
trial on 1 August 2011 or had a proper settlement been sought by
Defendant:-
In
respect of a loss of earnings claim for Plaintiff
R5 380 000-00
In
respect of general damages for Plaintiff
R800 000-00
In
respect of general damages for Lincoln R
430 000-00
Total
R6 610 000-00
The
Court is, at this stage, called upon to decide on the issue of the
under-settlement as set out in Claim A of the Particulars
of Claim,
and not upon Claim B, which deals with an alleged overreaching of
Defendant resulting from an alleged invalid contingency
fee
agreement. Save for what is set out in prayer 2 of the order,
Claim B is to be dealt separately by another Court at
another time.
The current
litigation
The
current litigation commenced when Plaintiff, on or about 27
September 2012, issued Summons against Defendant.
Plaintiffs current
claim is based upon the failure to pursue the loss of earnings claim
and an under-settlement of general damages.
When
the summons was issued in September 2012, Plaintiff’s claim
was based on the following premise:- Plaintiff had the
capacity to
earn not less than R31 000-00 per month as a personal
assistant/bookkeeper, but, that, as a consequence of the
injuries
and their
sequelae,
she lost the capacity to be engaged in any remunerative activity,
and in particular to exercise a right to earn the R31 000-00
per month for a period of not less than 10 years from age 50 to 60.
(She was 39 at the time of the collision and 44 when the
matter was
settled). Thus the claim appeared to suggest early retirement at 50
as opposed to 60. She could continue to work until
age 50.
In
the actuarial report filed by Plaintiff during September 2013,
Plaintiff’s case was that her claim for loss of earnings
was
based on a loss as a result of early retirement, i.e. age 57½
instead of age 62½. I.e. she could work until
the age of 57½
(that is 13,5 years after August 2011).
When
this trial commenced on 21 October 2014, Plaintiff’s counsel
indicated that the Particulars of Claim would be amended
to allege
that, as a consequence of the injuries and the
sequelae,
Plaintiff lost the capacity to be engaged in any remunerative
activity and in particular to exercise a right to earn R36 000-00
per month for a period of not less than 18½ years from the
age of 44 to age 62.5. In other words, at the stage of
the
commencement of this trial, the basis of Plaintiff’s claim
changed to a claim that, as at 1 August 2011, when Plaintiff
was 44
years old, she had already lost her entire earning capacity for her
remaining working lifespan until age 62½. [It
also implied
that immediately after the collision, in 2005, she was unable to
work again].
It was only on the
third day of the trial that the amendment was filed to state the
basis of Plaintiff’s amended claim.
The amendment was
allowed by the Court. It was however ordered that no reliance could
be placed on the evidence of any experts
who compiled reports after
1 August 2011 and reference to such reports was not allowed.
The Relevant
Legal Principles
The
relevant legal principles relating to the liability of an attorney
for negligence are summarised by Harms in
Amler’s
Predecents of Pleadings, Seventh Edition
at
page 59
as follows:-
“
The
liability of an attorney towards a client for damages resulting from
that attorney’s negligence is based on a breach of
the contract
between the parties. It is a term of the mandate that the
attorney will exercise the skill, adequate knowledge
and diligence
expected of an average practising attorney. An attorney may be
held liable for negligence even if he or she
committed an error of
judgement on matters of discretion, if the attorney failed to
exercise the required skill, knowledge and
diligence.
In
order to succeed the client must allege and proof :
(a)
the mandate;
(b)
breach of the mandate;
(c)
negligence in the sense as described
above;
(d)
damages, which may require proof of
the likelihood of success in the previous proceedings;
(e)
that the damages were within the
contemplation of the parties when the contract was concluded
.”
See
also
Mouton v Mynwerkersunie
1977 (1) SA 119
(A);
Slomowitz
v Kok
1983 (1) SA 130
(A).
The following
principles appear from J.R. Midgley,
Lawyers’
Professional Liability
Juta 1
st
edition 1992.
Where
a Plaintiff alleges that he/she has suffered a loss because a
settlement was too low, he/she needs to prove that the amount
recovered is less than the amount which would have been determined
by a properly negotiated settlement or that which a Court
would
have ordered. The award will be the difference between the
two amounts. (p 172)
Every lawyer has a
duty to establish the facts and evidence which can best assist his
client. Where the settlement figure, as
a result of his failure to
investigate properly was too low, an attorney will be held liable.
Damages
suffered by a client as a result of breach of the mandate should be
assessed at the time when the agreement was concluded
containing
the alleged under-settlement. It is then when the loss is
crystallised. The Court dealing with a second
action to claim
the damages suffered as a result of the under-settlement will thus
have to establish the amount which would
have been recovered on a
balance of probabilities at the time of the under-settlement and
with the information then available
(p 68).
Plaintiff’s
case was that Defendant should have pursued both a loss of support
claim and a loss of earnings claim at the
time of the
trial/settlement.. Plaintiff submits that Defendant is relying on
the case of
Santam Insurance v
Fourie
[1996] ZASCA 122
;
1997 (1) SA 611
(A) in
claiming that the two claims are mutually destructive. Plaintiff
refers to various other cases in which it has been held
that the two
are not mutually destructive, one arising out of the death of the
deceased and the other as a result of the Plaintiff’s
own
injuries (
Evins v Shield Insurance
Co Ltd
1980 (2) SA 814
(A).
However, as will appear later in this judgment, in assessing the
amounts payable in respect of each claim they are not completely
distinct claims. The loss of support claim that Plaintiff lodged and
for which she received approximately R800 000,00 assumed
that
Plaintiff was unemployable and would rely totally on the deceased’s
income for the rest of her life.
However,
in the loss of earnings claim, Plaintiff contends that a totally
different assumption should be used, namely that Plaintiff
had been
working prior to the accident, and would have entered the formal
labour market again a few years after the accident,
and would have
remained employed as an accountant until retirement age.
The same
assumptions must be used in both calculations. In other words,
if it iscontended by Plaintiff that she had an earnings
potential
and career path prior to and after the accident, this cannot be
simply ignored in the loss of support claim.
At
some point in the future these two claims would have clashed with
each other. Plaintiff, at the time of the settlement, was
earning
approximately R36 000,00 and the deceased was earning approximately
R11 000,00 as at his death. When Plaintiff became
employed she would
no longer require support from the deceased at all and would not
have a loss of support claim from that day
onwards.
It
seems the two claims are not mutually destructive but the
calculations need to take into account the variables which are
described above. In other words, if Plaintiff’s claim
for loss of earning capacity would have succeeded as Plaintiff
claims and she would have received an amount of say R2,9 million,
from the date such claim became operative, her loss of support
claim
would have ceased (because her earning capacity was in excess of
his).
Plaintiff’s
evidence
Plaintiff’s
evidence was the following:-
In 2011, she was
in a very poor emotional state as she had,
inter alia
, used
up all her sick leave and had no money for doctors. She consulted a
physiotherapist, biokineticist, homeopath and chiropractor
in
regard to her physical problems. In regard to her psychological
problems, she used a homeopathic remedy.
She would get very
emotional around the time of the accident or on birthdays and
anniversaries and would suffer physical
pain including abdominal
pain, as a result of which it was difficult for her to work. She
did not consult a clinical psychologist
or psychiatrist as she
believed in alternative medication.
The reason she had
resigned from her employment at the church was because of her
physical injuries which influenced her psychological
wellbeing. She
experienced muscle spasms over the neck and right shoulder and also
had abdominal pain. She consulted a medical
practitioner, but
cannot remember what the cause of the pain was, although she was
told that she had developed ulcers. She
also had a hysterectomy in
2010. She referred to an “unhealed rib” which gave her
much pain, despite the fact that
X-rays showed that her ribs had
united in a good position.
In regard to what
she told the experts who assessed her and Phillipa Farraj (“Farraj”,
the attorney from Defendant
acting on Plaintiff’s behalf), in
regard to her claim that she was totally unable to work, Plaintiff
testified as follows:-
She never told
Professor Vorster (“Vorster”), Defendant’s
psychiatrist, that she was unable to work and was
tired because
Vorster never asked that question. Vorster had advised her that she
should take medication for her depressive
disorder. She did not go
with the recommended treatment of Vorster as she could not trust
the medical and pharmaceutical companies
as they were only after
money.
She was not
working at the time of the collision but started work in December
2005. Had the accident not happened, she would
have waited until
her daughter was 4 or 5 years old and then continued working for
the church until retirement at age 65. She
did plan with her
husband previously to develop the plot of land on which they lived,
either for an overnight stop or a B&B
but she would have had to
continue working and this would happen after retirement.
She wanted to
start her own business because she was tired and unable to work. If
this was not in the reports, it was because
the experts were in a
hurry and did not have time for her. She conceded that it was not
in any of the reports that she was
so tired and in so much pain
that she could not work any longer.
She was also
cross-examined on the appraisals from her employers and she stated
that they were a correct reflection of her abilities
in 2007 to
2011.
(In
general, the appraisals describe her, over the period of 2005 to
2011, as exceeding expectations, and only in 2011 (when the
accounting procedures changed slightly) was she described as
achieving the standard level, but not exceeding same).
Defendant’s
alleged negligence
Defendant’s
negligence is set out by Plaintiff
as
involving the following conduct, it:-
failed
to investigate, prepare and prosecute Plaintiff’s claim in a
reasonable period of time. It took 6 years and
8 days for
Defendant to settle Plaintiff’s claim. Defendant could
and should have prosecuted Plaintiff’s
claim for loss of
support immediately in order to obtain sufficient funds to enable
them to survive and recover from their
loss. (Although, this period
appears excessive and could, perhaps, have formed the basis of a
claim, the only claim would have
been one for interest, which was
not claimed).
failed
to properly investigate Plaintiff’s claim for loss of earning
capacity by:
i.
relying entirely upon the “crude
calculations” executed by Farraj as a basis for deciding that
the loss of earnings
claim was not worth pursuing; and
ii.
failing to timeously employ a qualified,
experienced actuary to calculate what Plaintiff’s loss of
earning capacity would
have been on the date that the accident
occurred and using that as a basis to decide whether it was prudent
to abandon that claim;
iii.
negligently abandoned the claim for
Plaintiff’s loss of earning capacity in circumstances where
that claim:
1.
existed in law;
2.
was supported by the opinions contained in
the reports of all of the medical experts employed by Defendant; and
3.
had not been properly assessed by a
qualified, experienced actuary;
iv.
negligently failed adequately to prepare
for trial in that:
1.
Farraj failed to instruct the experts to
meet in order to obtain the necessary joint minutes which would
ensure that:
a.
Farraj and Justin Erasmus (Erasmus), the
advocate briefed to appear on trial could properly assess the risks
of prosecuting Plaintiff’s
claim; and
b.
in the event that the matter did not become
settled, it could and would be eligible for allocation to a Judge on
Monday 1 August
2011;
negligently
under settled:
i.
Plaintiff’s claim for general
damages; and
ii.
Lincoln’s claim for general damages
.
Several
medical experts submitted reports. In addition, Plaintiff called an
expert, Daniel Weideman, who had practiced in the
field of liability
claims and personal injury for in excess of 27 years. While his
evidence was of interest to the court, I believe
that a court is
well able, itself, knowing the rules and procedures and the way in
which the courts and practitioners operate,
to ascertain whether or
not Defendant acted in accordance with correct practices and
procedures and/or negligently.
It
is common cause that the calculations of Farraj were based upon an
actuarial report in regard to the loss of support claim,
and only on
a “crude calculation” in respect of the loss of earnings
claim. Obviously it would have been more prudent
for Farraj to
obtain an actuarial report in respect of the latter but, having not
done so, it is this courts duty to assess whether
or not this, in
fact, constituted negligence and whether the “under-settlement
of the claim” is apparent from the
evidence now tendered.
The
Defendant did appoint all the relevant experts and obtained
medico-legal reports from all of them. The fact that Farraj did
not
obtain joint minutes for the court and comply with the practice
manual in regard to dates upon which these should be obtained
might
be negligent insofar as the practice of an attorney is concerned,
but, once again, this court must assess whether it has
any impact on
the final decision as to whether defendant was negligent, and
whether or not Plaintiff suffered damages as a result
of that
negligence.
Summary
of the expert reports
Plaintiff
summarises the reports of the medical experts as, at the 1
st
of August 2011, as follows.
It is common
cause or not seriously in dispute that, as a result of the accident
and at 1 August 2011, Plaintiff:
i.
was suffering from Major Depressive
Disorder (Vorster), Extended Bereavement Reaction together with
Depression (Fine);
ii.
sustained,
inter
alia
, internal abdominal injuries
(Scheepers), and was suffering from abdominal pains and neck,
shoulder and back pain (Read);
iii.
sustained some loss of employment potential
and as a result of being depressed (Vorster), her productivity could
be affected by
her neck symptoms and ongoing depression. It was not
possible to indicate to what extent this would have a negative impact
on her
income (Van Huysteen). Her depression resulted in some
loss of employment potential;
iv.
Plaintiff’s career and earning
potential would be negatively affected (Shaik).
What
was, at the time of the trial, and remains in dispute is, firstly
the extent to which the accident and its physical, psychological
and
emotional after effects affected Plaintiff’s income earning
capacity. Secondly, whether Defendant was negligent in
not assessing
Plaintiff as unemployable and failing to pursue the consequent
claim.
Plaintiff’s
earning capacity
Mrs.
Harris and Mr. Rothman gave evidence on behalf of Plaintiff
regarding her performance as an employee of the church. Harris
stated that Plaintiff was unable to cope with the work and had
placed a large burden on her colleagues from
her
shortfall in productivity. Rothman stated that her
post-accident output was substantially compromised as a result of
the accident. They both testified that neither of them had been
contacted by Defendant in regard to Plaintiff’s claim.
(The
appraisals were only tendered by Defendant through the witness,
Denise Butterfield, after these two witnesses gave evidence,
so they
were not cross-examined on them).
Plaintiff
alleges that Farraj should have obtained an actuarial report in
respect of the loss of earnings claim. The actuary had
calculated
the loss of support claim at the sum of R1.1 million (for both
Plaintiff and Lincoln). She also did a “crude
calculation”
based upon the information she had in her possession about
Plaintiff’s future employment and ascertained
that any loss of
support claim would be minimal as it would be “wiped out”
by the loss of earnings claim and vice
versa. She considered it
better to pursue the loss of support claim.
Farraj’s
version is that Plaintiff was not employed at the time of the
collision, as she had stopped working because of
her pregnancy and
the birth of Cayleigh. In August 2011, Plaintiff informed Farraj
that she was initially employed on a contract
basis by the church in
December 2005 and later in 2006, she took up a permanent position.
She did not inform Farraj that she
could no longer work and that she
was not coping at all with her working life and was totally
unemployable. It was common cause
that Plaintiff had always worked
and intended to go back to work when her daughter was 4 or 5. She
had informed one Candice,
an assistant employed by Defendant on 5
February 2007 that she wasn’t coping at work. There is a file
note to this effect.
However she continued in full-time employment
until 2011. Farraj stated that, in her crude calculations, she used
the reports
of the experts to assess that Plaintiff had lost
approximately 10% of productivity and earning capacity and
calculated the loss
of earnings in the region of R400 000,00.
When cross-examined on the fact that Dr. Read’s report only
referred to
her orthopaedic injuries and did not take into account
the psychological injuries, Farraj stated that, having looked at the
reports
of both sides, she assessed that Plaintiff would have bouts
of grief on a long term basis, but that she would be able to be
employed
and operate satisfactorily, if she received the suggested
medical treatment. Farraj stated that she looked at the report of
Plaintiff’s
industrial psychologist (Shaik) which was the most
favourable to Plaintiff, which stated that Plaintiff would have
reached the
Paterson scale level D1/D2, but for the accident. Shaik
did not state that Plaintiff was unemployable. None of the experts
reported
that Plaintiff was unemployable.
It
is trite that in order to assess whether Defendant was negligent the
court has to look at the situation as it was as at the
1
st
August 2011 to determine whether or not the Defendant acted
negligently. In this regard the following must be taken into
account:-
The
precise nature of Plaintiff’s medical condition;
The
income that Plaintiff was earning at the time;
Whether
or not Plaintiff’s earning capacity was totally extinguished;
and/or
Whether
or not it was partially extinguished and if so by what percentage.
As
is evident from what is stated above, Farraj claims that the
percentage of loss of production that she took into account in
her
crude calculations was 10%. Plaintiff, on the other hand, in terms
of the 2014 amendment claimed that she was totally unemployable
and
that this was the position as at August 2011. As is apparent
from the history of this matter, this was not the initial
basis of
Plaintiff’s claim which was, either, that she would be unable
to work after 50 years old, or,
alternatively
,
that she was required to take early retirement at 57½. In
argument at the close of the case Plaintiff’s counsel
utilised
figures on the basis that her residual earning capacity was 30% (not
nil
).
I
have referred to the experts’ reports above at 24. In addition
there is the evidence of Harris and Rothman that Plaintiff
was in
“
sympathetic employment
”. However both of
them related this to her psychological well-being which manifested
itself intermittently whereas
Plaintiff, in evidence, relied more
heavily on her physical pain stating that she could not work anymore
because of the physical
pain which she experienced in her abdomen
and shoulder. Obviously, this also led to emotional stress.
On
the other hand, Plaintiff herself confirmed the views in her
assessment reports where it appeared that up until 2011 Plaintiff
was exceeding expectations as far as her work was concerned.
In 2011 she did experience a slight setback but was still
operating
at a satisfactory level even though new programs were introduced in
the Accountancy Department. However, she had worked
consistently for
6 years as at August 2011 and, according to Farraj, Plaintiff
informed her that she would continue to do so.
Although
there is some confusion as to Plaintiff’s intentions at the
time that the matter was settled, it appears to be
common cause that
she wanted to purchase a maths study franchise and operate same. She
was intending to resign from her employment
in order to pursue this
avenue and business interest. According to Farraj, Plaintiff did not
indicate at the time that she was
totally unable to work and that
was the reason that she needed to give up work at the Church. This
is, however, her evidence
at present and what she says she stated to
various of the experts.
Plaintiff
further submits that Defendant failed to consult with any of her
employers and/or co-workers to ascertain how her injuries,
both
physical and psychological, had impacted on her work capability.
Farraj states that, according to the information given
to her by
Plaintiff and from the reports of the experts, she did not consider
this necessary as Plaintiff indicated that she
wished to carry on
working but in a different capacity by buying a franchise which she
was able to do once the settlement amount
was paid to her.
Simplistically,
this case turns on whether Defendant was negligent in assessing that
Plaintiff was still able to work and that
her income earning
capacity was only diminished by 10 percent.
Test
whether Defendant was negligent
I
have set out above the grounds upon which Plaintiff alleges Farraj
was negligent. Basically Plaintiff contends that Defendant
should have pursued both a claim for loss of support and a claim for
loss of earning potential as they were not mutually destructive.
In this regard, I
refer to the following authorities. Firstly, Gauntlett in
Quantum of Damages In Bodily And Fatal Injury Cases,
Volume
1, 4
th
Edition dealt with the widow’s duty to
mitigate her loss and that her earnings and prospective earnings
during widowhood
constituted a pecuniary advantage derived causally
from the death of the deceased.
In
the case of
Peri-Urban Areas Health
Board v Munarin
1965 (3) SA 367
(A) it was held that to suggest that she is obliged to mitigate her
damage by finding employment is to mistake the nature of
her loss.
“
What she has lost is a right –
the right of support. She cannot be required to mitigate that loss
by incurring the duty
of supporting herself. If she does
obtain employment, it is more appropriate to regard her earnings as
been the product
of her own work, and has consequent upon her
husband’s death.
”
Defendant
contends that
Munarin’
s
case and other cases such as
Santam
Insurance
Co
v Fourie
(supra)
are cases wherein the principle was stated that where a widow had
never worked before her husband’s death, it cannot be
expected
from her now to mitigate her damages by seeking employment to reduce
her claim for loss of support. However Farraj contends
that where,
according to the facts of a specific case,
a
widow had in fact earned an income prior to the deceased’s
death and in all probability, had it not been for the accident
would
have been gainfully employed and would have earned remuneration,
then and in that event such actual earnings during the
period of
potential earning capacity is relevant to the question as the amount
of support which the deceased would have provided
in the future, but
for his death.
[emphasis added]
See
Gauntlett
(supra)
p 72. See further the remarks of Vieyra J in
Ongevallekommissaris v Santam
Versekeringsmaatskappy Bpk
1965
(2) SA 193
(T) at 203 where the learned judge stated:
“
In
this latter regard I agree with the remarks of VIEYRA J in
Ongevallekommissaris v Santam
Versekeringsmaatskappy Bpk
1965 (2) SA 193
(T) at 203
where the learned Judge said :
‘
The
duty to mitigate by seeking employment can arise only if the
prospective earnings are relevant to the loss. They cannot
become relevant because of a duty to mitigate.
I
have no difficulty about the relevancy of the widow’s earning
capacity in so far as that must be considered for the purpose
of
determining what proportion of the husband’s earnings, had he
lived, would have gone to the support of his wife.
Although not bound to seek employment she may during her husband’s
lifetime in fact have earned an income by engaging
in some
remunerative occupation or professional activity, even despite the
necessity of raising a family. Or the evidence
may show that at
some stage she would in all probability have undertaken remunerative
work. These are factors which in my
view have bearing on the
position, because they are germane to the determination of what in
all the circumstances the husband would
in fact have afforded to his
wife had he not been killed’
”
.
[emphasis added]
See further
Milne
v Protea Assurance Co Ltd
1978 (3) SA 1006
(C) at 1007A-E and
1013A-D.
Accordingly it
seems that Defendant’s initial response that the two claims
were mutually exclusive needs to be modified
as Defendant conceded
by the answer which it gave in the paragraph 7 of the pre-trial
minutes;-
Based on the
report of the industrial psychologist Z. Shaik dated 17 July 2011,
the assumption was that Plaintiff would have
raised her children
until a date within a few years from the date of the accident, and
that she would from then on have remained
employed as an accountant
on a senior level in the formal labour market at the remuneration
at the middle between a Paterson
Level C2/D5. In other words on a
Paterson C5 Level, which is in the middle of a C2 and D5. The
assumption was that the
estimated date on which she would have
started working would have been 1 January 2010.
The correct
approach would have been to assume that she would have worked until
retirement age which according to the industrial
psychologists
Shaik was 60 to 65 years (in other word 62 ½ years). It
would have been reasonable to assume that she
would have reached
the maximum of her earnings ceiling at a Paterson Level D1/D2 at
retirement age. Plaintiff is referred
to the report of the
actuary mr G.A. Whittaker dated 17 September 2014 which is attached
hereto, wherein a calculation is made
on these assumptions.
This calculation shows that the Plaintiff and her son suffered a
total gross loss of support in
the amount of R342 816-00, and
that she suffered a total net loss of income of R243 688-00
based on the assumptions
as set out in the report which Defendant
contends are the correct assumptions.
”
Had
Plaintiff started working fulltime, it would have been, on her
version, from the 1
st
January 2010, when Cayleigh would
have been 4 or 5 years old. On that basis, having regard to
the fact that the settlement
was reached on 1
st
August
2011 and on the authorities set out above, Plaintiff would have had
no claim for future loss of support as at August 2011.
I have dealt above
with the medical reports and Plaintiff’s ability/inability to
work and the way in which Farraj calculated
what Plaintiff’s
loss of earnings would be. The question is then to ascertain whether
Farraj, in choosing to pursue the
loss of support claim as opposed
to the loss of earning capacity claim, acted negligently. This
turns, essentially on whether
Farraj’s assessment of
Plaintiff’s ability to work was totally compromised.
One
therefore has to put oneself in the position of Farraj at the time
that the claim was settled to ascertain whether or not
she was
negligent in any of the ways contended for by Plaintiff. Defendant
states that even if it was negligent in the execution
of the mandate
then the negligence is “
negligence
in the air
” as the amount of the
settlement would have exceeded the amount that Plaintiff would have
received if the loss of earnings
claim had been pursued. This,
Farraj bases on the fact that, as at August 2011, Plaintiff was
employed and was intending
to remain employed or at least intending
to continue working in some or other capacity (and earning more,
according to her).
Plaintiff had always worked and was employed at
the date of the settlement. On her own version, she would have gone
back into
full-time employment in 2010, when Cayleigh was 4 or 5.
Thus, she had every intention of re-joining the labour market in
2010.
It should be kept
in mind that at the time the particulars of claim in the current
matter were issued Plaintiff’s claim
was based on the premises
that she had the capacity to earn not less than R31 000,00 per month
as an accountant but that, in
consequence of her injuries and the
sequelae
she lost the capacity to be engaged from ages 50 to
60. She was 44 at the time.
During
September 2013, in terms of the actuarial report filed by Plaintiff,
her claim was that her loss of earnings occurred as
a result of
early retirement that is at age 57½
instead
of age 62½ and not total unemployability as at the 1
st
August 2011.
It
was only on the 21
st
October 2014 during opening address that Plaintiff’s counsel
indicated that the particulars of claim would be amended to
allege
that, as a consequence of the injuries and the
sequelae,
Plaintiff lost the capacity to be engaged in
any
remunerative activity and she was
totally unemployable for a period of not less than 18½
years from the age of 44 to the age 62½.
On this scenario, at the date the trial was settled, in August 2011,
when
Plaintiff was 44 years old, she had already lost her earning
capacity for her remaining working lifespan until age 62½.
It is alleged that Farraj should have conducted Plaintiff’s
case on that basis. It must however be borne in mind that,
at August
2011, Plaintiff had been working consistently from December 2005.
She was not working only because of finances. She
was well-qualified
and was achieving excellent reports at work, despite her physical
and emotional pain. This flies in the face
of Plaintiff’s
evidence that she was suddenly unable to work.
The
importance of these amendments and developments cannot be ignored
because either Plaintiff herself and/or her present attorneys
have
changed their view on her employability from time to time. Although
a total loss was claimed when the trial commenced, this
changed to a
70% loss in argument. Plaintiff’s case is unfortunately
hampered by the uncertainty of what her employment
prospects were as
at August 2011. The court however has to place itself in Farraj’s
position in August 2011 and ascertain
Plaintiff’s condition as
assessed by Farraj at that time.
The
report of Shaik in July 2011 indicated that Plaintiff would have
reached the maximum of her earning ceiling at a Paterson
level D1/D2
at retirement age (62½). Shaik assumed that Plaintiff would
have raised her children until a date within a
few years from the
date of the accident and estimated that she would have started
working full time on the 1
st
January 2010. She would then
have remained employed as an accountant on a senior level in the
formal labour market at the remuneration
at the middle between the
Paterson level C2/D5 (in other words on a Paterson C5 level). This
is the basis upon which Farraj calculated
Plaintiff’s loss of
earning capacity.
In
calculating awards for loss of earnings reference should be made to
the case of
Southern Insurance
Association Ltd v Bailey
NO
1984 (1) SA98 (A) at 99B-E where the
following was held at 99B-E:-
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the Court can do is to make an estimate,
which is often a very rough estimate, of the present value of the
loss. It has open to it two possible approaches. One
is
for the Judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely a matter
of
guesswork, a blind plunge into the unknown. The other is to try
to make an assessment, by way of mathematical calculations,
on the
basis of assumptions resting on the evidence. The validity of
this approach depends upon the soundness of the assumptions,
and
these may vary from the strongly probable to the speculative.
It is manifest that either approach involves guesswork
to a greater
or lesser extent. But the Court cannot for this reason adopt a
non-possumus attitude and make no award.
In a case where the
Court has before it material on which actuarial calculations can
usefully be made the first approach does not
offer any advantage over
the second. On the contrary, while the result of an actuarial
computation may be no more than an
‘informed guess’, it
has the advantage of an attempt to ‘ascertain feeling’ as
to what is fair and reasonable
is nothing more than a blind guess.
It is true that, in the case of a young child, the assessment of
damage for loss of earnings
is speculative in the extreme.
Nevertheless, even in such a case, it is not wrong in principle to
make an assessment on the
basis of actuarial calculations
.”
And
Margo J in
Goodwill v President Insurance Co Ltd
1978
(1) SA 389
(W) at 392H put it succinctly when he stated the
following:
“
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art of
science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanac,
is not numbered among the qualifications for judicial office
.”
The
question then is whether or not Farraj was negligent in settling the
claim based upon the facts set out above.
In
dealing with this the court has to find that Plaintiff has proved
the elements set out above.
In
particular, if this court finds that there has been negligence as
described, Plaintiff has to prove damages which requires
proof of
the likelihood of success in the previous proceedings and that the
damages were within the contemplation of the parties
when the
contract was concluded. See
Slomowitz
v Kok
1983 (1) SA 130
(A).
The
negligence relied on is that Farraj failed to obtain the joint
minutes of the experts, failed to consult necessary witnesses,
failed to obtain the actuarial report in respect of Plaintiff’s
loss of earnings, and under settled in respect of both
that claim
and general damages. There are other criticisms of Farraj’s
conduct, such as the fact that could find no notes
of her
consultations and conduct in this matter. These appear to be
legitimate , but again, the question is whether this “negligence”
is relevant to the issue to be decided.
Although
there was non-compliance with the practice manual by the failure to
file joint minutes, this is negligence in the air
and I must
ascertain whether or not it had any effect on the ultimate results.
In my view it did not. Whilst it seems clear
that Defendant was not
ready to proceed to trial (as no joint minutes had been requested
and filed), this must be seen in the
light of the actual settlement.
In regard to the loss of earnings claim, it would, of course, have
been prudent for Farraj to
have obtained an actuarial report.
However, a report has now been put up by Defendant showing that, had
Farraj obtained an actuarial
report based on the information that
she had and her assessment of Plaintiff’s condition based on
the expert reports, the
total net loss in respect of loss of
earnings would have been (depending on contingencies) between R576
600,00 and R816 334,00.
This is based on a report of an
actuary Algorithm Consultants and Actuaries dated the 29
th
October 2014 and handed to the court for information purposes. Thus
again, I reiterate that the real issue is not whether Farraj
failed
to obtain the actuarial report, but whether Farraj’s
assessment of Plaintiff’s employability was negligent.
As
stated above, Farraj had run the case according to correct practice
and procedure by having Plaintiff assessed by all the
necessary
experts for both sides. She based her assessment on these reports,
Plaintiff’s own discussions with her and her
discussions with
counsel.
The
actuary took into account the agreed income of Plaintiff and the
deceased. He calculated that, on the basis of the above earnings
and
assumptions, the loss of support in respect of the deceased’s
dependants from the date of the accident until 1 August
2011 after
an application of a contingency deduction of 5% would have been R19
452,00 in respect of Plaintiff and R20 644,00
in respect of the
minor child Lincoln.
He
calculated that the future loss of support was
nil
(based on Plaintiff’s earning capacity). In regard to the
Plaintiff’s claim for loss of income as at the 1
st
August 2011, the actuary made the following assumptions:
1.
The chances of survival were based on the
life table of Dr R J Cox the Quantum Yearbook 2011. Tax tables have
been utilised and
net earnings had been capitalised at a net discount
rate of 2,5% per annum compound.
2.
The pre-accident earnings are taken as R447 036,00 per annum
increasing uniformly
to earnings of R536 296,00 per annum at
(the equal to an
average between a median package of the Paterson D1 level and the
median package of the Paterson D2 level in July
2011 as per Shaik’s
report). From the 1
st
August 2011 earnings had been
capitalised at a net discount rate of 2,5% per annum compound until
retirement at instructed age
of 62,5. He then applied a 20%
contingency deduction to the present value of future uninjured income
(which was described
as slightly high because of a number of
uncertainties as the fact that she wanted to start her own business
and not continue on
the salary that she had been receiving).
Post-accident
the earnings were taken as at R438 241,32 per annum. This has been
capitalised at a net discount rate of 2,5% per
annum until
retirement at age 62,5. A contingency of 25% deduction,
alternatively 30%, was applied to the value of future
injured
income. On the two scenarios the future loss of income, taking
into account the 25% contingency deduction, was
R576 600,00 and on a
30% contingency deduction was R816 334,00.
Plaintiff
accepts the value of the uninjured income in Farraj’s
calculation, but submits that the post-accident income should
be
based upon a 30% residual earning capacity. The value of the injured
income would have been 30% of R4 172 608,00 that is R1 251 782,40
and thus the claim (without contingencies) would have been a claim
for R2 920 825,00 in respect of loss of earnings.
This is
based upon a 70% loss of capacity to work.
Plaintiff’s
future loss of income was quantified on the basis of the available
evidence contained in the reports of the
industrial psychologists.
According to the reports, Plaintiff’s loss had to be
quantified on the basis that Plaintiff
probably would have
progressed further in her career with a commensurate increase in
remuneration if the accident had not occurred,
but that she probably
would not progress further now, having regard to the accident.
The
present value of Plaintiff’s future income if the accident had
not occurred was calculated on the assumption that Plaintiff’s
earnings would have increased to an average between the median
package of Paterson D1 and D2 and that she would have retired
at age
62½, as per Shaik’s report of July 2011.
The
present value of Plaintiff’s future income having regard to
the accident was calculated on the assumption that Plaintiff’s
earnings would not have increased at all in future and that she
would also have retired at age 62½, and was similarly
based
on Shaik’s expert report. It was thus assumed that
Plaintiff would have stagnated from 1 August 2011 onwards
as Shaik
advised.
The
actuary was instructed to apply a 20% contingency deduction on the
calculated present value of Plaintiff’s future income
if the
accident had not occurred and 25% (scenario1)
[1]
/ 30% (scenario 2)
[2]
on the
calculated present value of Plaintiff’s future income having
regard to the accident.
Farraj
testified that she provided for a 10%
contingency
in her “crude calculations”. She discussed the
contingency deductions with Erasmus, and he was satisfied.
Defendant
contends that they applied their minds to the calculation and the
contingency to apply and cannot be found liable if
this Court is of
the opinion they should have applied a higher contingency.
Defendant
contended that
a 10% to 15% loss of
productivity does not equate to an equal contingency spread.
Reference was made to
Union and
National Insurance Co v Coetzee
1970(1) SA295;
Redman v RAF
2003(2) SA @ [11] SCA.
Defendant
contends further that the approach
followed by Farraj in respect of contingencies was a reasonable
approach and complied with
the legal principles relating to
contingencies. Even if the Court is of opinion that somewhat
different contingency deductions
should have been applied, it is
submitted that the approach followed by Farraj and Erasmus at that
stage was sufficiently in
proportion to what should have been
applied that they cannot be found to have been negligent.
Farraj
calculated that based upon Shaik’s report, and Read’s
report (read with those of the other experts), Plaintiff’s
income had been affected by 10%. This might have been low in
the circumstances but it is not so disparate from what this
Court
believes that it can be held that Farraj acted negligently. Even on
the best case scenario for Plaintiff, one must take
into account
that from any amount awarded for loss of earning capacity must be
deducted the amount Plaintiff received in the
loss of support claim.
If the 10 percent deduction was low, perhaps a 20 percent deduction
would have been more appropriate.
Thus the loss of earning capacity
claim would have been R834 521,00. Plaintiff’s loss of
support claim would have
been
nil.
She
would have received slightly less than the amount settled upon.
In
order for this Court to find that Farraj was negligent at the time
it will be necessary to find that Farraj ignored facts which
were
raised in the expert reports as well as in Plaintiff’s
consultations, that Plaintiff was suffering so badly that she
was
contemplating leaving work and never working again. The
evidence at that stage did not point to that. Even at this
stage it
does not appear that Plaintiff is totally unemployable. The fact
that she is in pain and still has some psychological
sequelae
does not render her unemployable and certainly did not render her
totally unemployable at the time that the settlement was reached.
The
actuarial calculation of Mr Whittaker of Algorithm Consultants and
Actuaries dated 29 October 2014 is a proper calculation
of
Plaintiff’s claims for both loss of support and loss of income
on the available facts;
The
total value of Plaintiff’s loss of support / loss of earnings
claims according to the calculation of Algorithm Consultants
and
Actuaries dated 29 October 2014 is either R596 052.00 (R19 452.00 +
R576 600.00), or R835 786.00 (R19 452.00 + R816 334);
The
acceptance of the offer of the RAF in respect of loss of support in
the amount of R1 162 313.60 (including R838 804.60
allocated to
Plaintiff) was a favourable settlement of Plaintiff’s loss of
support / loss of earnings claims and Defendant
cannot be held to
have been negligent in settling as it did.
Taking
into account the evidence of the witnesses, the reports of the
experts on Plaintiff’s condition at the time of the
settlement
and the information which Plaintiff conveyed to her attorney and to
the experts, it is this Court’s view as
at August 2011, it
would not have been in the contemplation of Farraj that Plaintiff
was totally unemployable, alternatively,
that Plaintiff had lost 70%
productivity.
Plaintiff’s
reasons for retiring from the church were not at the time the
reasons she gives now. It appeared that she wanted
the settlement in
order to operate a franchise. However, after purchasing it and
failing, I believe that it then occurred to
Plaintiff that the money
which she had received was insufficient for her needs, having given
up the job at the church. The court
also has to take into account
that despite being diagnosed and suffering from a major depressive
order with extended bereavement
reaction and suffering from
abdominal pains, Plaintiff chose not to seek conventional medical
treatment and if she is still suffering
from the same disorder at
present it must be found that she has not exhausted all remedies in
an attempt to find some sort of
relief from this (see
Allie
v RAF
QOD
Vol V K3-1).
According to Read her
orthopaedic injuries only contributed to between 10 and 15% of her
loss in productivity and it appears from
Plaintiff’s evidence
as well as the evidence from members of the church where Plaintiff
was employed that even if she did
lose some productivity her salary
was not affected by it.
General
damages
77.
Plaintiff claims that Defendant under
settled in regard to the general damages for Plaintiff and Lincoln.
Plaintiff claims
that in terms of the medico-legal reports,
Plaintiff’s orthopaedic and other extensive bodily injuries, as
well as the psychiatric
and psychological injuries and their
sequelae,
were serious. She contends that at the 1
st
of August 2011 they had had a profound impact on her. Accordingly,
the general damages in the sum of R200 000,00 was “so
inappropriately low” that it induces a sense of shock to any
reasonable person. Plaintiff submits that an appropriate award
would
be between R650 000, 00 and R750 000, 00 in 2011.
78.
The factors which need to be taken into
account in regard to general damages are the following:-
a.
Plaintiff’s husband and daughter,
Cayleigh, passed away as a result of the injuries sustained in the
collision;
b.
Plaintiff’s husband was 37 years of
age at the time and they had been married for 9 years;
c.
Her husband passed away at the scene of the
collision;
d.
Cayleigh was 10 months old at the time of
the collision and passed away approximately 1 month later;
e.
Plaintiff was 37 years of age at the time
of the collision and 44 years of age at the time of the trial in
August 2011.
f.
Plaintiff suffered physical injuries
consisting of fractured ribs, a soft tissue neck injury, a soft
tissue injury to her right
shoulder, a clavicular fracture,
haematomas to her right upper and lower leg and an abdominal injury.
She was admitted to the Vereeniging
medi-clinic on the date of the
collision and transferred to the Milpark hospital where she remained
until the 8
th
of July 2005.
g.
Plaintiff was informed of the death of the
deceased at the hospital by her pastor.
79.
In addition to assessing the general
damages, Farraj had to consider whether the offers made by the RAF in
respect of the claims
for general damages, would place Plaintiff at
risk. The RAF offered R200 000,00 in respect of
Plaintiff’s general
damages.
80.
In regard to referring to other cases when
considering an appropriate reward, I am aware of the judgment of
Minister of Safety and Security v
Seymour
2006 (6) SA 320
(SCA) where
Nugent JA said the following:-
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
Courts
have considered to be appropriate but they have no higher value than
that....
The
dangers of relying excessively on earlier awards are well illustrated
by comparing the award in [May v Union Government
1954 (3) SA 120
(N)] to the award that was made in Maphalala v Minister of Law and
Order [unreported WLD of 10 February 1995]
“
....
Whether the award in May was excessive,
or the award in Maphalala was niggardly, is beside the point. I use
them only to illustrate
that the gross disparity of the facts in each
case is not reflected in the respective awards, and neither is in
those circumstances
a safe guide to what is appropriate.
”
81.
Bearing in mind the words of Nugent JA, I
will consider certain other cases simply as a useful guide to what
other courts have considered
to be appropriate in similar
circumstances.
82.
Defendant referred to various cases which
it submitted would serve as a good indicator of an appropriate award
for damages because
of the similarity of the injuries and of the
circumstances surrounding them. In the matter of
Allie
v RAF
(supra)
the Plaintiff sustained personal
injuries in a collision in which his wife and unborn baby died. He
had sustained a fracture of
the C6 vertebra and his neck pain was not
likely to be eradicated even though it could be managed with
medication. In addition,
he sustained injuries to both knees and
would require surgery. He also sustained an injury to the chest which
left him with occasional
residual pain. An injury to the right
forearm healed. The court accepted that the pain experienced by him
at work had impacted
adversely on his performance. In addition he
witnessed his pregnant wife being flung through the windscreen and
watched her bleeding
to death while a policeman on the scene refused
to call an ambulance until his superior arrived. Allie also suffered
a major depressive
disorder which the court accepted would never be
completely cured and that the residual psychological impairment
impacted negatively
on his ability to work. He resigned from his
longstanding employment and could not return as a result of the
combination of the
physical and psychological injuries. The
Plaintiff, according to the quantum yearbook 2011 Robert J Coch, was
awarded general damages
of R88 000,00 in December 2002 which
adjusts to R132 000,00 at 2011.
83.
There are several cases that refer to the
emotional shock which is suffered by a party after becoming aware of
the loss of loved
ones. In
Kritzinger
& Kritzinger v RAF
QOD Vol V
K3-21, the Plaintiff was informed of a collision and discovered his
two daughters had been killed when he arrived at
the scene. He
suffered from chronic bereavement reaction with contracted grief,
chronic post-traumatic stress disorder and chronic
major depressive
disorder. He was awarded R150 000,00 in March 2009. The adjusted
value was R166 000,00.
84.
In
Majeet v
Sandton
QOD Vol IV K3-1 the
Plaintiff discovered the body of her 9 year old son lying in the road
shortly after he had been struck and
killed by a motor vehicle. She
suffered a major depressive disorder and was awarded R35 000,
00 in May 1997 which adjusts
to R79 000,00 at 2011.
85.
What the above shows is that awards for
emotional shock alone are relatively small. Similarly, awards in
respect of abdominal injuries
which do not require surgery, are also
not substantial. Awards for soft tissue neck and back injuries are
treated similarly.
86.
A case which is also similar to that of
Plaintiff (in regard to her physical injuries) is the matter of
Daniels v RAF, Corbit & Honey
Vol V at C3-1 where the Plaintiff was injured in a motor vehicle
accident as a result of which she sustained a mild whiplash injury.
Her chest was bruised with tenderness in the midline, her left hip
was painful. Initially she was treated with analgesics
and
anti-inflammatories. Thereafter she experienced discomfort in
her neck. Her doctor’s assessment of the discomfort
was
that she suffered from a whiplash syndrome. She was
subsequently boarded from work. She experienced pain in her
shoulder and neck which was exacerbated by the increasing anxiety
levels. She had a diminished range of movement of her neck,
of
flexion and extension, rotation and lateral flexion. She was
diagnosed to have suffered severe psychological disorder
which had
become chronic. On two occasions she attempted to commit
suicide as a result of her mood state; she experience
episodes of
panic attacks and agoraphobia. She was on anti-depression
medication and was receiving psycho-therapy.
In respect of
general damages for the whiplash injury and the psychological
sequlea
thereof she was awarded R80 000,00 (the value of which in 2011
was R152 000,00).
87.
Having regard to the authorities referred
to above, it appears reasonable, and not negligent, that the
Defendant accepted the sum
of R200 000,00 as general damages for
Plaintiff.
88.
In respect of Lincoln, R70 000,00 was
awarded as general damages. His physical injuries were minor and he
was not hospitalised.
In regard to his emotional
sequelae,
obviously the death of his father and sister had an effect on him
which might have caused his tendency to misbehave. However the
sum of
R70 000,00 does not appear to be so inappropriate that a court
would have found differently.
Conclusion
89.
Defendant submitted that it properly
investigated the quantum of Plaintiff’s claim and the merits
and considered that the
settlement offer received from the fund was a
reasonable offer. According to Farraj and Erasmus, they discussed
these issues and
also the choice between pursuing the loss of support
claim, on the one hand, as opposed to the loss of earnings claim on
the other.
In considering the loss of earnings claim, she took into
account that Read had stated that Plaintiff only suffered a loss of
productivity
in the order of 10 to 15 percent. She also took into
account the fact that, according all to the experts, Plaintiff still
had full
residual earning capacity at that stage and therefore (with
an applicable contingency as per Shaik) she believed that the loss of
earnings claim would be minimal. It has to be remembered that as at
August 2011 Plaintiff had been employed in a permanent position
for
approximately 5 years and that it appeared that she was fully able to
continue with her work despite post-traumatic
sequelae
such as muscle spasms and emotional
stress. Defendant refers to actuarial calculations which it submitted
during the trial in regard
to the loss of income for Plaintiff.
According to Farraj, this calculation is based on the best case
scenario for Plaintiff. It
takes into the account the report of
Shaik, and disregarding any concessions that Shaik may have made in a
meeting with Van Huysteen
(who followed a far more conservative
approach) yields an amount of R243 688,00 in respect of loss of
income for Plaintiff.
The loss of support claim for both Lincoln and
Plaintiff was calculated in the amount of R342 816,00.
90.
According to Farraj, when she deducted a 5
percent contingency to a accrued loss of support and 20 percent to
prospective loss of
support and further deducted 22 percent for
remarriage as per the remarriage tables in Koch’s quantum
yearbook, the amount
for loss of support for Plaintiff was
R824 997,00 and the loss of support for Lincoln was R323 509,00.
Farraj accordingly
submits that even if she had instructed an actuary
to apply a higher contingency deduction than the 10 percent
contingency she
applied in her crude calculation, the loss of
earnings would still not have exceeded the R824 997,00 which she
was able to
settle on for Plaintiff’s loss of support.
91.
It is my view that Plaintiff has failed to
prove causal negligence as against Defendant. Even if Defendant did
not conduct itself
at the highest standard of an expert personal
injury lawyer, Plaintiff still has to prove that a higher award would
have been obtained
if Plaintiff proceeded to trial on the loss of
earnings claim. Having regard to the calculations set out above, this
does not appear
to be the case.
92.
Plaintiff has failed to prove that, as at
the date of the settlement, she was totally unemployable, nor has she
proven that her
productivity had decreased by 70 percent and that
Defendant, being aware of this, failed to take the necessary steps.
93.
Plaintiff’s physical injuries,
although persistent, are being dealt with through conservative
medication – physiotherapy
and such other medical interventions
which are all covered by the certificate which Plaintiff obtained for
future medical expenses.
In regard to her psychological and
posttraumatic condition, Plaintiff has refused conventional medical
treatment and she
has not shown that if she had received treatment in
this regard, she would still be in the same psychological condition .
It is
to be borne in mind, as stated above, that Plaintiff was in
fulltime employment as at August 2011 and only resigned from same
once
she received the settlement and decided to purchase the
franchise. It has not been shown, despite the evidence of Harris and
Rothman,
that Plaintiff was in sympathetic employment. Whilst it
might be that the employer treated her with a certain amount of
consideration,
it appears that she was still fulfilling her tasks and
receiving her salary as before.
94.
In regard to general damages Plaintiff has
not shown that the amount of the settlement was startlingly
inappropriate.
95.
Although Claim B is not being adjudicated
upon in this court, the attorney and client Bill of costs prepared by
Defendant was dealt
with in some detail in Farraj’s testimony.
She could not explain, and no-one else from Defendant was called to
explain, why
the amount of hours and days charged for in the attorney
and client Bill were substantially higher than those reflected in the
party and party bill of costs. The inference seems inescapable that
the attorney and client Bill was manipulated in order to obtain
a
higher fee from the Plaintiff. This issue requires investigation by
the Law Society.
Accordingly
1.
Plaintiff’s claim is dismissed with costs, including the costs
of two counsel and the costs of all medico-legal reports
obtained
after August 2011.
2.
The issue of the fees debited and the time periods charged for in
Defendant’s attorney and client Bill of costs is referred
to
the Law Society of the Northern Provinces for investigation.
WEINER
J
Counsel
for the Plaintiff: Adv B Ancer SC; Adv A Berkowitz
Plaintiff’s
Attorneys: Norman Berger & Partners Inc
Counsel
for the Defendant: Adv D Mills SC; Adv F Grobler
Defendant’s
Attorneys: Gildenhuys Malatji Inc
Date
of Hearing: 21 October 2014
Date
of Judgment:10 December 2014
[1]
In
other words a 5% spread.
[2]
In
other words a 10% spread.