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[2016] ZAGPJHC 366
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M v Road Accident Fund (08588/15) [2016] ZAGPJHC 366 (15 December 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:08588/15
Reportable:
No
Of interest to other judges: No
Revised.
15/12/2016
In
the matter between:
C
M
M
Appellant
and
Road
Accident
Fund Respondent
JUDGMENT
KLAAREN
AJ
:
Introduction
[1]
This case concerns a former security guard claiming damages for the
loss of future earnings from the Road Accident Fund as the
result of
a road accident. [2] The parties agreed that the plaintiff was
20% liable for the accident and the insured/uninsured
driver was 80%
liable. The parties further agreed that the issue of general
damages could be referred to the Health Professions
Council.
Those aspects are dealt with in the order below but did not form part
of the hearing in front of this court.
[3]
In an accident while he was on duty in November 2012, the armed
response vehicle driven by the plaintiff, M. C. M., collided
with a 4
X 4 vehicle at an intersection. M. suffered a fracture of the
left medial femoral condyle and a haemarthrosis of
the right knee.
As laid out more fully below, these injuries interfered with his
performance of his then job as a reaction
officer. M. used two
crutches for four and a half months after his discharge and one
crutch for a further six months.
After a further operation, he
used crutches for a further two months. It is M.’s case
that these injuries have reduced
him to the potential performance of
sedentary work and occasional light physical demands.
[4]
What was in dispute between the parties was the likely career path of
the plaintiff, but for the accident. At the hearing,
two
witnesses were called, the plaintiff and the expert industrial
psychologist Lewis Rosen. Called by the plaintiff, Rosen
had
submitted an expert’s report, ‘M. C. M.: Report on
Career Prospects’, dated 7 August 2015 and an amended
report
with the same title dated 4 September 2016.
M.’s
Likely Career Path But-For the Accident
[5]
M. C. M. gave evidence that, as of about two months before the
hearing, he was no longer working at his former job as a reaction
officer at ADT. In his view, his employment had been terminated
due to his inability to wear and carry the heavy bullet-proof
vests
required for the job and his inability to run and chase after
suspects. He tried to upskill to a typing position within
ADT
but failed the skills examination for that post. Since 2012,
the company had assigned him ‘light duty’, keeping
him on
his reaction officer salary. He had been invited and had tried
to go back to his job but was unable to perform.
As he put it,
“I didn’t take a full day.” He was currently
looking for work but had not found anything.
Cross-examination
revealed that ADT had made a disability application on behalf of M.
to Sanlam but this had been denied.
[6]
M. joined ADT in 2008 and had been promoted twice by the time of his
accident. His next promotion, should it occur, would
have been
to the level of supervisor. He admitted there was no promise
nor any guarantee of a promotion, but noted that ADT
was a large
company and that they needed many supervisors.
[7]
Lewis Rosen has six degrees and has worked as an industrial
psychologist for 22 years. He was an impressive witness who
clearly knew the theory and the practice of his field. Insofar
as the issues before this court were narrowed to the question
of the
likely career path of M. but for the accident, Rosen’s evidence
was of great assistance to this court.
[8]
Rosen contextualized his reports within the changing nature of the
private security industry in South Africa. Rosen also
explained
briefly the theory behind the Paterson bands (termed the
decision-band method elsewhere). Rosen noted that, based
on
M.’s job description before the accident, he placed M. as
working at a Paterson B1 band. In his view, M. would likely
have been promoted to a B2 post within about a year of the accident
and then in a further three years would have likely been promoted
to
a supervisory post. Such a post in the terminology of the
Paterson method is B4, a band supervising other B band employees.
This description of M.’s likely career progression is dictated
by Paterson general rules and methodology and does not represent
a
prediction of a jump over a B3 band. Rosen noted that ADT was
paying M. a salary generally appropriate within the industry
for the
work he was performing before the accident, paying just slightly
under the median. This correlation assisted Rosen
in placing M.
in a Paterson B1 band.
[9]
Rosen justified his assessment that M. would be likely to be promoted
on M.’s history of receiving good service certificates
from his
employer, the performance bonuses he received, and on a discussion
Rosen had with his supervisor, Mr Ronnie Zwane, as
part of Rosen’s
second report. Documentary evidence was presented to
corroborate the good service certificates and
bonuses. Rosen
stated that in an industry such as the private security sector
factors like trust, integrity and good work
performance were valued.
M. exhibits these factors. Further, M. had been experiencing
upward mobility in his work history
at ADT. While M.’s
career prospects out of the Paterson B band were constrained by his
educational level, there was
no reason to think that he would not be
promoted within the B band. Rosen’s view was that large
companies such as ADT
would wish to retain valued employees such as
M.. Rosen noted that ADT’s action in placing M. on ‘light
duty’
was consistent with this view of the company’s
perception of the value of M..
[10]
Rosen nonetheless stated that M.’s current career prospects
were not good, unless there was significant retraining for
skills
such as typing. Rosen also noted that such skills were usually
obtained through other experiences. In terms
of future
employability, M. was thus in a difficult position. His physical
constraints prevent him from re-lapsing to the A band.
M.’s
lack of skills and his lack of experience make his hiring into
another B band post difficult. Rosen stated it
would be a very
remote prospect for M. to find work in a saturated market where there
were a limited number of jobs. In his
updated report, Rosen
wrote “Given that in the year subsequent to our report he has
been unable to undergo [possible retraining
into more sedentary
work], together with the fact that he has been dismissed despite
being polite and cooperative with his employer,
we believe it
unlikely that he will find retraining opportunities.”
[11]
Under cross-examination, Rosen stated he had considered, within his
scope of expertise, the views of the doctor who was of
the view that
M. could work. These views were referenced in, for instance,
the disability application that ADT had made to
Sanlam on behalf of
M., an application which was denied. In Rosen’s view, the
doctor’s views were only one input
in his estimation of M.’s
ability to perform work. Other inputs were also of value in
forming Rosen’s opinion,
including the plaintiff’s own
views of his inability to perform certain physical work – in
this case the work of a
reaction officer – where the plaintiff
had tried but had failed to perform such work after his accident.
This was confirmed
by M.’s supervisor, Ronny Zwane, who stated
M. had tried several times to do the work of a reaction officer.
Zwane
noted that, despite his failure, M. had remained “respectful
and cooperative”. This was significant, according
to
Rosen, as it demonstrated that M. had not entered into a situation of
learned helplessness after his accident. As the
second of
Rosen’s reports stated, “[t]he obvious problem was that
there is a disconnect between the view of [the doctor]
and the
subjective experience of Mr M..” Rosen further pointed to
views and evidence within his expert community supporting
the
importance of patients’ beliefs in chronic pain.
[12]
Under cross-examination, the Fund also asked Rosen why he had not
asked Zwane what M.’s Paterson band grading was according
to
ADT. Rosen admitted that Zwane might have been able to access
such information from ADT’s human resources or administrative
divisions. But Rosen noted that he had contacted Zwane as part
of his second report for an update regarding M.’s current
status with ADT and had already performed the work of Paterson
banding for M.’s reaction officer post in his earlier report,
objectively grading the post and noting the correlation with the
salary paid by ADT.
[13]
With respect to the likely career path of M. but for the accident,
Rosen’s evidence withstood cross-examination by the
Fund.
I find it likely that M.’s career within ADT but for the
accident would have progressed through a B2 and a B4
promotion within
the time frames indicated by Rosen. I also note the information
gained through the cross-examination of
Rosen that M. is not in a
situation of learned helplessness, although his retraining
opportunities were unlikely.
Calculation
of Loss of Future Earnings
[14]
M.’s counsel urged that I adopt a calculation of loss of future
earning based on the experts’ reports provided.
The
latest actuarial report provided was dated 28 October 2016. To
do so would be to adopt the second of the two methods
referred to in
Southern v Bailey. Indeed, he argued that such a method was to
be preferred. The actuarial report provided
a figure of R2 949
171 (Basis 1) for the loss of income by M. assuming he would be
unemployed and R 2 299 604 (Basis 2) assuming
he would have a
residual earning capacity of R6000 pm to age 65.
[15]
Within the mode of calculating loss of income through reference to
the expert reports, to the extent that I have doubts regarding
M.’s
career path, M.’s counsel noted I can temper those doubts by
increasing the contingencies provided for.
[16]
The deductions used for general contingencies in the expert’s
report of 28 October 2016 for the value of the income but
for the
accident were 5% for accrued income and 15% for prospective income.
The deductions used for general contingencies
for the value of the
income having regard to the accident were 0% for accrued income and
40% for prospective income.
[17]
Counsel for the Fund argued that I should adopt the method of
estimating the future loss of earning without detailed reference
to
financial calculations. She suggested that I award a figure
representing 20% of the present value of the future earnings
of M.
but for the accident. This meant a figure of R589 834.20 as 20%
of R2 949 171, the figure calculated as loss of income
but for the
accident on the basis of M. remaining unemployed (Basis 1).
[18]
The amount of damages for loss of future earnings will be reduced by
20% in line with the parties’ agreement that M.
was 20%
negligent for the 2012 road accident.
[19]
Assisted by Rosen’s expert evidence and the cross-examination
thereof, I do indeed have some doubts that M.’s future
earnings
capacity will be merely residual. His demonstrated value to ADT
and his continuous exemplary attitude work to show
both his loss of
future earnings and his potential to rebound. I thus propose to
adjust the contingencies from the expert
report of 28 October 2016
from 15% to 25% for M.’s gross prospective value of income but
for the accident. I propose
to use Basis 1, where the base
assumption is that M. remains unemployed.
[20]
Assuming correct maths, this use of a 25% contingencies level yields
a net prospective value of income but for the accident
as R3 273 693
less R818 423 or R2 455 270. To this we must add the net
accrued loss of income having regard to the accident,
R166 532.
The total loss of income on Basis 1 (unemployed) with a 25%
contingencies level is thus R2 621 802.
[21]
In line with the agreement between the parties of 80% liability in
the plaintiff’s favour, this sum will be reduced to
R2 097
441.60 in the order granted.
[22]
Having heard the counsel for the parties and having read the
documents filed of record, it is ordered that:
1.
The Defendant is liable for 80% of the
plaintiff’s proven damages.
2.
The Defendant shall provide the plaintiff
with an undertaking in terms of
section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
to pay 80% of the costs relating to the future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or
rendering of a service or supplying goods to him
arising out of injuries sustained by him in a motor vehicle collision
which occurred
on 2 November 2012, after such costs have been
incurred and on proof thereof.
3.
The Defendant shall pay to the plaintiff
the amount of R 2 097 441.60 in respect of the plaintiff’s loss
of earnings/earning
capacity on or before 31 December 2016.
Should any payment be late, interest on the amount will be calculated
at the rate
of 10.5%. Payment shall be made through means of a
direct transfer to the account of the plaintiff’s attorneys:
Swartz Attorneys, Trust Account number 6202 1804 259, First National
Bank, Balfour Park, Branch Code 212 217.
4.
The Defendant is ordered to pay the
plaintiff’s costs of suit up to date, as taxed or agreed, such
costs to include:
a.
The costs attendant upon the obtaining of
payment of the amount referred to in paragraph 3 above;
b.
Costs of counsel; and
c.
The costs of preparing and obtaining the
medico-legal reports and qualifying fees, if any, of the plaintiff’s
following experts:
Dr Barlin, Ms Reynolds, Dr Kaplan, Ms
Prinsloo, Mr Rosen, and Mr Kramer.
5.
The plaintiff shall, in the event that
costs are not agreed, serve the notice of taxation on the defendant’s
attorneys of
record and allow the defendant 14 court days to make
payment of the taxed costs.
6.
The issue of general damages is postponed
sine die
for determination by the Health Professions’ Council of South
Africa.
_______________________________________________
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION (JOHANNESBURG)