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[2017] ZAGPJHC 141
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Chakela v Road Accident Fund (33599/2015) [2017] ZAGPJHC 141 (5 June 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
33599
/2015
Not
reportable
Not
of interest to other judges
Revised.
5/6/2017
In
the matter between:
Chakela,
Masabata
Emily
Plaintiff
and
Road
Accident
Fund
Defendant
JUDGMENT
Van
der Linde, J:
Introduction
[1]
This is an action for damages resulting from personal injuries
sustained by a metro police officer when she was run down by
a motor
vehicle on 26 June 2014. At the time she was employed by the Benoni
Ekurhuleni Metropolitan Council. She sustained soft
tissue injuries
to her right ankle and right shoulder, soft tissue injuries to the
axial skeleton involving both the cervical and
dorso-lumbar spine,
and multiple rib fractures.
[2]
Pleadings were exchanged, discovery undertaken, and experts consulted
and their reports received. The opposing experts met and
prepared
joint minutes of their meetings, recording the agreements that they
had been able to reach. The agreements reached were
such that
ultimately, just before the matter was called on 31 May 2017, the
parties were able to agree a stated case in terms of
rules 33(1),
(2), (3) and (6), and it was received as exh A.
[3]
That document comprised not only a setting out of the common cause
facts, an identification of the issues remaining in dispute,
and the
parties’ contentions thereon, but also three attachments, being
the three joint minutes of the meetings between the
parties’
opposing experts, being respectively the orthopaedic surgeons, the
occupational therapists, and the industrial psychologists.
These three sets of minutes reflected in each instance the agreements
that had been reached between the three sets of experts,
and the
plaintiff did not hand up any of the underlying original expert
reports.
[4]
Exh A reflected that a single issue remained in dispute between the
parties. It was two-fold, the first being whether the plaintiff
had
suffered any future loss of earnings; and the second, if she has
suffered such a loss, whether a contingency differential should
be
applied in calculating any difference in the plaintiff’s future
earnings but for the injuries, and her future earnings
having regard
to those injuries.
[5]
The plaintiff’s counsel proceeded to make submissions on the
plaintiff’s behalf, and then closed her case. The defendant’s
counsel then began making submissions on behalf of the defendant, and
in the course of those, wished to refer to the contents of
some of
the original expert reports. Since those were not evidence before the
court, I indicated that unless the reports went in
without objection,
they could not be referred to.
[6]
The plaintiff’s counsel was requested by the defendant’s
counsel to agree to the mere handing in of the original
expert
reports, but he declined to provide his consent. The defendant
informed the court that the defendant wished to call two
experts who
had provided reports to testify viva voce, since the defendant
disagreed with the joint minutes of the experts that
were attached to
the stated case, at least to the extent that they might suggest that
in fact a loss of earnings had been suffered.
The matter stood down
at the defendant’s request to afford it an opportunity to
telephone these experts.
[7]
After the lunch adjournment the court was informed that the
defendant’s industrial psychologist was not available, and
that
it had not been possible to make contact with the orthopaedic
surgeon. The defendant proceeded to apply for a postponement
of the
trial sine die on the basis of the unavailability of these experts.
[8]
After hearing argument from the parties, the matter was stood down
until later in the afternoon when I delivered a judgment
with
reasons. The judgment concluded with a refusal of the application for
a postponement, with costs, and the trail then stood
down until 10h00
on 1 June 2017.
[9]
On that day the defendant made its submissions, and the plaintiff
replied. Judgment was reserved.
The
parties’ respective cases
[10]The
submission for the plaintiff was that the fact that impairment had
occurred had been shown, and that the contingency differential
that
would appropriately reflect the extent of that impairment, was
between 30% and 25%, although in reply the plaintiff’s
counsel
rested his case on 25%. The five reasons that were advanced,
and the bases relied on, were the following.
Loss
of efficiency and productivity
[11]The
plaintiff relied here on the agreement between the orthopaedic
surgeons, that “
she is always likely to have some residual
chronic pain.”
The defendant submitted that the plaintiff’s
superintendent said that there had been a marked deterioration in her
performance
post the accident, but it did not appear that she was, in
consequence, sent for retraining. Accordingly, according to the
submission,
this basis fails.
Possible
forced early retirement
[12]The
plaintiff relied here on the agreement between the industrial
psychologists “
that allowance should be made for a possible
truncation in her career as it refers to her potential to the rank of
inspector.”
Reliance was also placed on the agreement
between the occupational therapists, to the effect that “
if/when
she develops pathology in the right ankle, right shoulder or spine
she can be considered unable to do the work of a metro
police woman.”
[13]The
defendant submitted that the plaintiff’s own industrial
psychologist opined that the plaintiff will be able to continue
working, provided she receives medical treatment. The submission was
that she was being give an undertaking in terms of
s.17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, and so she has the means to
receive the correct treatment. Logically, she will thus be able to
continue working. Further, the
submission was that the defendant’s
industrial psychologist opined that in fact the plaintiff will be
rendered pain free.
Promotion
impairment
[14]Here
the plaintiff relied on the juxtaposition said to be established in
the minutes of the industrial psychologists between
the pre- and
post-accident scenarios. In respect of the former, they recorded:
“
She was considered to have potential for progression to the
rank of inspector and possibly the rank of superintendent (long
term).”
In respect of the latter, they recorded, as said
above: ““
that allowance should be made for a possible
truncation in her career as it refers to her potential to the rank of
inspector.”
[15]The
defendant submitted that there was no proof at all for this. The
submission was that if she was not promoted when she ought
to be, she
would be able to lay a charge at the CCMA based on the discrimination
against her. It was pointed out that pre-accident
she was never
promoted, as she had remained in the position of constable. The
submission was that ultimately promotion was vacancy
bound.
At
risk employee
[16]The
plaintiff submitted that she was now, post-accident, an at risk
employee, and that her employment potential in the open
market had
been impaired. Here reliance was placed on the express agreement
between the occupational therapists that the plaintiff
was “
an
at risk employee.”
[17]The
defendant submitted that the industrial psychologists have agreed
that there will be no early retirement, and so this basis
has not
been shown.
Time
off work to receive treatment
[18]Here
the plaintiff submitted that it followed as a matter of axiom that if
she is to receive future medical treatment –
as is common cause
– she will have to take off work to receive it. This impairs
her standard provision for being off sick.
[19]The
defendant submitted that the plaintiff does not suffer any loss in
this respect, since she will be on paid sick leave.
No
impairment of earning capacity shown
[20]The
defendant’s overarching submission was however that the
plaintiff has not shown on a balance of probability that she
has
suffered, as a fact, any impairment in her capacity to earn an income
in the future. It is only once impairment has, as a fact,
been
established, that the question of quantification arises. And the
question of an appropriate contingency provision fits into
the
quantification exercise; not the first, a priori, enquiry.
[21]In
this context the defendant referred to the following judgments. In
Deysel v Road Accident Fund (2483/09) [2011] ZAGPJHC 242
(24 June
2011) the following appears at [15] and [18] (emphasis supplied):
“
15. Loss of
income arises primarily from a loss of earning capacity, In other
words, if the plaintiff loses a certain degree of
earning capacity',
this will show in that they will lose actual income in future. This
is also true in that when a person loses
income due to a
damage-causing event such loss is due to a lowered earning capacity
arising from the same cause of action.”
…
“
18. In my view
this does not mean that such plaintiff would be claiming for loss of
income and not loss of earning capacity per
se it is merely this loss
of income that provides evidence of a loss of earning capacity, and
visa-versa.
Earning capacity is part of
a
person
's
patrimony, but this capacity can only be proven
to have been lowered, and the damages for this quantified by proving
án
actual
loss of income.
However, when both of these losses have
been shown to exist, then the claim for one is also the claim the
other and they appear
to be interchangeable.”
[22]In
Rudman v Road Accident Fund (370/01)
[2002] ZASCA 129
;
[2002] 4 All
SA 422
(SCA) (26 September 2002) the following is said (emphasis
supplied):
“
[11]
In
my opinion the learned judge in the Court a quo has not misdirected
himself in his understanding of these authorities or in his
application of the law to the facts. His judgment correctly
emphasizes that where a person’s earning capacity has been
compromised,
“that incapacity constitutes a loss,
if
such loss diminishes the estate
”
(Rumpff CJ in the above quotation from Dippenaar’s case) and
“he is entitled to be compensated
to
the extent that his patrimony has been diminished
”
(Smalberger JA in President Insurance Co Ltd v Mathews).
8
(The underlining is from the trial judge’s judgment.) In his
view, Rudman’s disability giving rise to a diminished
earning
incapacity was proved, but the evidence did not go further and prove
that his incapacity constituted a loss which diminished
his estate.”
[23]In
Van Heerden v Road Accident Fund (6644/2011) [2014] ZAGPPHC 958 (8
December 2014) the following dicta are relied on (emphasis
supplied):
“
75.
The
loss of work capacity postulated by the orthopaedic surgeons does
not, however, equal to a straight loss of income, but represents
an
inconvenience at work and at times pain, possibly sick leave
.
It is clear therefore that her allegations in the particulars of
claim for a future loss of income, are not supported by the evidence.
76.
I
therefore, find, that the plaintiff has failed to prove that her
injury had a cognisable effect on her earning capacity and the
type
of work she does
. It would have been different if she had
been, for example, a domestic worker. Her damages are therefore nil
and accordingly no
award will be made under this heading. Given the
view I take there is no need for me to consider the amounts
postulated in the
actuarial report. They are based on a fallacious
premise.”
[24]Finally,
reliance was placed on Prinsloo v Road Accident Fund (3579/06)
[2008]
ZAECHC 193
;
2009 (5) SA 406
(SE) (18 November 2008) where the
following appears from the judgment of Chetty, J (emphasis supplied):
“
[18] Dr Holmes
expressed the opinion in his report that post-accident “whatever
prospects Ms Prinsloo may have enjoyed for
promotion to the rank of
captain, and, therefore, superintendent, would now be very reduced if
not negated”. Ergo, he concluded
that the plaintiff was
unlikely to proceed beyond the level of inspector and was likely to
suffer emotional trauma, become frustrated
in her normal working life
and, as a result, be compelled to opt for early retirement.
During
his testimony Dr Holmes laid stress on the fact that given the
plaintiff’s penchant for the physical demands of her
job, the
growing realisation that she could no longer do so, would cause her
such frustration that she would no longer be able
to perform
optimally and would gradually lose interest to such an extent that
she would virtually give up.
[19] This conclusion
is in my view untenable. The impression I gained is that the
plaintiff, notwithstanding the injury, has not
allowed it to impact
on her performance. She admittedly has some difficulties for instance
in driving for long distances or standing
for prolonged periods but
these aside, she never adverted to the fact that she was not coping.
In fact when regard is had to her performance plan, (exhibit “F”)
compiled and scored by her, it shows, unequivocally
that the
plaintiff consistently excels in her work situation.
The results
of the performance plan are inconsistent not only with Dr Holmes’
findings but with the plaintiff’s evidence
regarding her
present work performance.
…
[21] The evidence of
Ms De Witt does not in any manner advance the plaintiff’s claim
under this head of damage. Her report
and the evidence adduced by her
is primarily concerned with the plaintiff’s ability to cope
given the pain she admittedly
endures. The agreement reached by the
medical experts suggests that the envisaged treatment would result in
an 80 % significant
reduction of pain. Working in an ergonomically
friendly environment, would also prove beneficial. Consequently her
conclusion that
the plaintiff’s “work abilities have also
been severely compromised” can no longer be sustained. It is
regrettable
to say the least, that despite being referred to the
medical experts’ agreement she steadfastly defended her
conclusion.
[22]
In my judgment therefore I remain
unpersuaded that the plaintiff has discharged the onus resting upon
her to show that her earning
capacity has been compromised by her
injury.
No award can
consequently be made under this head.”
[25]These
judgments are pertinent in the present context. Having regard to
them, the correct approach is, in my view, the following.
There is a
conceptual difference between the question whether a plaintiff has
suffered an impairment of earning capacity, and the
question whether
a plaintiff will in fact suffer a loss of income in the future.
[26]The
answer to the former question is determined on a balance of
probability, and the plaintiff has the onus to discharge. The
latter
is a question of assessment in respect of which there is no onus in
the traditional sense. This assessment involves the
exercise of
quantifying as best one can the chance of the loss actually
occurring.
[27]Put
differently, the answer to the former question is, at least
theoretically, answered affirmatively if the plaintiff will
have
established a 51% change of the impairment being present; the answer
to the latter question is provided by the best match
between the
likelihood of a loss being suffered, and a fraction expressed as a
percentage.
[28]Turning
then to the agreed facts of this case, the first question is whether
the experts’ agreements attached to and incorporated
within the
stated case establish, probably, permanent impairment of future
earning capacity. Here the crucial expert views must
of necessity be,
at least as a starting point, those of the orthopaedic surgeons, to
whom the occupational therapists and the industrial
psychologists
must necessarily defer.
[29]This
proposition may be put the other way around: if the orthopaedic
surgeons conclude that there have been no injuries, or
that there
have been injuries but that there has been complete recovery from
those, then it would follow that any consequences
or sequelae
discussed by the occupational therapists or industrial psychologists
have no causatively relevant origin.
[30]The
plaintiff saw the two specialists relatively recently. As regards her
lower back, the observation on examination was some
tenderness, over
the C3, C4 and C5 regions, in the paraspinal muscles of the
dorso-lumbar spine, and lumbo-sacral spine. The plaintiff
had
discomfort at the extreme ranges of movement of her neck. There was
also discomfort over the T 7 to T10 vertebrae. Finally,
there was
tenderness over the L4, L5, and
S1
vertebrae.
[31]The
x-rays of the ankle, foot and shoulder were all normal, but there was
discomfort on passive dorsiflexion of the right ankle.
[32]It
is common cause between these two experts that ongoing conservative
treatment was necessary. Regrettably these experts do
not express a
view as to future employability. The furthest they were able to go,
was to conclude that there is likely always to
be some residual
chronic pain. What may be concluded, however, is that these experts
agree that there have been injuries; and they
agree too that that the
plaintiff has not completely recovered from these, and will, as a
matter of probability, in the future
continue to experience the
consequences of these injuries.
[33]The
occupational therapists agreed, however, that if the plaintiff has
access to assistance and optimal management, she should
have relief
of her endurance and pain problems. They say that in those
circumstances she “
would be able to continue her current
work till retirement age.”
[34]But
they then go on, in the very next sentence, to agree: “
She
is an at risk employee.”
And they in turn defer to
the industrial psychologists, specifically as regards the extent to
which she might be an “
at risk employee.”
These
latter experts then agree “
that allowance should be made for
a possible truncation in her career.”
[35]At
the end of the day it seems fair to say that the expert agreements
conclude that the plaintiff is not the person she used
to be, that
much is certain. But they opine that the extent to which, if any,
this change will impact her financial future, is
uncertain.
[36]That
seems to me to fit precisely the difference between clearing the
first hurdle on a balance of probability, and then leaving
it to a
measure of crystal ball-gazing to fit an appropriate contingency
differential to the chance of monetary loss actually occurring
in the
future. Therefore, the first hurdle has been cleared; she is an
at risk employee – that is what the experts
agreed. Now, what
about the contingency differential percentage fit?
[37]In
my view the extent to which the plaintiff is no longer the person she
used to be, is slight. The pain is not a persistent
presence; it is a
recurring if unwelcome visitor. And it can and should be treated.
[38]I
should add too that it seems wholly artificial to pretend that a
court can rationally distinguish, in the present context,
between
contingency differential margins as small as 5%. It seems to me that
the appropriate number is either 10% or 25%; but not
really anything
in between.
[39]In
my view the realistic fit errs on the conservative side, and should
therefore be 10%. There parties were agreed that the
conclusion to
which I come should be reflected in paragraph 1 of the draft order
that was handed up, that order being agreed in
respect of the
remainder of the paragraphs. In the result the amount for which
judgment is entered in paragraph one of the draft
order is R275 724.
[40]In
the premises I make an order in terms of prayers 1 to 7 of the draft
order attached hereto, the amount to be inserted in
paragraph being
R275 724.
WHG
van der Linde
Judge,
High Court
Johannesburg
For
the plaintiff: Adv. JC Pieterse
Instructed
by: Davidson England Attorneys
(C/O
Swanepoel Attorneys)
94
Pritchard Street
17
th
Floor, Schreiner Chambers
Johannesburg
011 845
1767
Ref:
TB/ Chakela/az
For
the defendant: Adv. TE Mafafo
Instructed
by: Borman Duma Zitha Attorneys
(C/O
Nelson Borman & Partners)
94
Pritchard Street
17
th
Floor, Schreiner Chambers
Johannesburg
011 886
4628
Ref:
RD2061/AV Duma/Lerato
Date
argued: 31 May and 1 June 2017
Date
judgment: 5 June 2017