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[2010] ZAGPJHC 100
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Donough v Road Accident Fund (8962/06) [2010] ZAGPJHC 100 (5 November 2010)
FLYNOTES:
LOSS OF INCOME – EXPERT WITNESSES
ACTUARIAL
– Loss of income – Expert witnesses – Contended
that post-accident plaintiff left several jobs
because she could
not cope due to injuries – Employers actually content with
her work and in one case she got an increase
for outstanding
performance – Plaintiff changing jobs for better prospects
in as she did before the collision –
Unacceptable that
certain of plaintiff’s experts did not contact her employers
post-accident to corroborate their opinions
and instead based
their opinions on the say-so of plaintiff.
REPUBLIC OF SOUTH
AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
NOT REPORTABLE
CASE
NO: 8962/06
DATE:
05/11/2010
In
the matter between:
DONOUGH,
BRONWYNN
MARCHE
.....................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..................................................................
Defendant
JUDGMENT
MBHA, J:
INTRODUCTION
[1]
The plaintiff sued the defendant in terms of the
Road Accident Fund
Act 56 of 1996
, for damages suffered as a result of injuries
sustained in a motor collision that occurred at Witkoppen Road,
Fourways, Johannesburg
on 20 April 2003.
[2]
The matter became defended and it proceeded to trial on 10 August
2010. On the first day
of the trial, the defendant conceded the
merits in favour of the plaintiff and agreed that it was liable for
100% of the plaintiff’s
agreed or proven damages.
[3]
The defendant also agreed to:
3.1
furnish the plaintiff with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, for the plaintiff’s future medical, hospital
and associated medical expenses;
3.2
pay
the plaintiff R36 000,46 in respect of the plaintiff’s past
medical expenses.
[4]
The only issue this Court was called upon to determine related to the
following heads of
damages:
4.1
the
quantum of general damages; and
4.2
the past and future loss of earnings
of the plaintiff.
[5]
The plaintiff led the evidence of the
following witnesses:
5.1
the
plaintiff;
5.2
Mr Donough (the plaintiff’s
husband);
Dr. C. Angus –
Clinical Psychologist;
Ms. I. Hattingh –
Speech Therapist;
Dr. H. Edeling –
Neurosurgeon;
Dr. G. Read –
Orthopaedic Surgeon;
Ms. S. Vos –
Industrial Psychologist;
Ms. L. Maphutha –
Occupational Therapist.
[6]
The expert witnesses mentioned above also furnished reports on behalf
of the plaintiff.
[7]
The defendant led the evidence of one witness, Mr A. Kok, an
industrial psychologist who
also furnished a report on behalf of the
defendant.
GENERAL DAMAGES
[8]
It is trite that when considering general
damages comprising pain and suffering, disfigurement, permanent
disability and loss of amenities of life, a trial court has a wide
discretion to award what it considers to be fair and adequate
compensation to the injured party. See
RAF
v Marunga
2003 (5) SA 164
(SCA) at
169E-F.
[9]
In
Wright v
Multilateral Vehicle Accident Fund,
Corbett
& Honey Vol 4 at E3-36, Broom DJP, whilst recognising the
necessity of making a comparison to past awards, emphasized
that
there was no such thing as a case which is on all fours and that past
awards serve no more than to give some indication of
what sort of
awards were considered appropriate on the facts of the particular
case. He nonetheless acknowledged that generally,
awards were higher
than those made in the past and said:
"
I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards to now be higher than
they were in the past. I believe this to be a natural reflection of
the changes in society, the recognition of greater individual
freedom
and opportunity, rising standards of living, and recognition that our
awards in the past have been significantly lower
than those of most
other countries”
.
[10]
In
Protea Insurance Co Ltd
v Lamb
1971 (1) SA 530
(A) at
535H-536A, Potgieter JA emphasised that a comparison of a plaintiff’s
general damages with previous awards need not
take the form of a
meticulous examination of awards made in other cases in order to fix
an amount of compensation, nor should the
process be allowed to
dominate the enquiry so as to fetter the general discretion of the
court. Comparable cases should rather
be used to afford some
guidance in a general way towards assisting the court to arrive at an
award which is not substantially out
of general accord with previous
awards in broadly similar cases, regard being had to all the factors
which are considered to be
relevant in the assessment of general
damages.
[11]
Clearly, the court has a wide discretion in awarding
general damages and while awards for analogous
sequelae
can provide a guide the court may, if it so chooses, award an amount
that is higher than those given previously.
[12]
Drs. Read and Ismail, the parties’ respective orthopaedic
surgeons, were agreed that the plaintiff
was injured in a motor
vehicle accident which occurred on 20 April 2003, that she sustained
a head injury as well as a posterior
dislocation of her right hip,
and an injury to her left eye.
[13]
Dr Read was of the opinion that the plaintiff sustained a soft tissue
injury to her right knee that requires
conservative treatment as well
as a possible arthroscopy.
[14]
Regarding the injury to the hip, both doctors agreed that the
plaintiff requires conservative treatment
and that she is at
considerable risk in the future of developing osteoarthritis in the
hip which will require total hip replacement.
Dr. Read was of the
opinion that the plaintiff will need a hip replacement in about
twenty years time.
[15]
Regarding the brain injury, Dr Edeling was of the view that the
plaintiff suffered what was initially a
mild primary diffuse
concussive brain injury which got complicated by certain respiratory
difficulties and other physical injuries.
Dr Edeling was
accordingly of the view that the brain injury, though initially
moderate, probably became, progressively, a severe
head/brain injury.
[16]
Dr Edeling noted in his report that considering the
nature and degree of the brain injury sustained, as well as
what he
described as the clinically evident
sequelae
,
a significant degree of permanent employment disability should be
expected. However, when he testified he changed and said that
a more
acceptable view was that the plaintiff suffered no more than 10%
permanent employment disability.
[17]
The
sequelae
which were described by the plaintiff to the doctors were
inter
alia
, fatigue, headaches, visual
impairment, impairments of cognitive mental function, impairments of
executive mental function, insecurity,
depression and emotional
difficulties of a permanent nature.
[18]
Regarding the injury to the right knee, Dr Read noted that the
plaintiff still complains of pain in the
right knee which is
aggravated by cold and inclement weather.
[19]
Based on the findings of Dr Edeling, I am prepared to accept that the
plaintiff did sustain a brain injury.
I am however unable to agree
with Dr Edeling’s assessment that this was so severe to have
rendered the plaintiff virtually
unemployable. I have already stated
that Dr Edeling changed saying that the plaintiff suffered no more
than 10% permanent employment
disability. I will revert to this
aspect in fuller detail when I consider the plaintiff’s claim
in respect of loss of future
earnings.
[20]
Counsel for both parties referred me to various cases
and the one which, in my view, is somewhat similar to that
of the
plaintiff, is the one of
Prinsloo v MMF
1997 (4) C&B B4-16, where the court
gave an award of R149,000,00 for a post-traumatic organic brain
injury.
[21]
In my view an amount of R175 000,00 is adequate compensation in
respect of the plaintiff’s head injury.
[22]
Regarding the injuries to the plaintiff’s right hip, left eye
and knee and the sequelae thereto, I
am of the view that a
compensatory amount of R150 000,00 is appropriate.
[23] The total
amount that must be paid to the plaintiff as compensation in respect
of general damages, comes to R325,000.00
LOSS OF INCOME
A.
Future loss of income
[24]
The defendant has put into issue whether the plaintiff
has discharged the
onus
the plaintiff bears in regard to the following:
(1)
Whether the plaintiff would have
successfully completed her studies for the Chartered Institute of
Secretaries (“CIS”)
diploma qualification.
In the event that she did
manage to complete the CIS qualification, whether she would be able
to cope with the attendant pressure
or workload.
That post collision, the
defendant left several jobs because of her inability to cope as a
result of the injuries she sustained
in the collision.
(2)
Whether
the plaintiff will suffer any future loss of earning capacity as a
result of the collision.
[25]
The plaintiff is currently 37 years old and was 30 years of age when
the collision occurred in April 2003.
[26]
The plaintiff left school in 1990 while in Grade 10 to start work, as
the family apparently needed money.
[27]
She managed to pass matriculation whilst working and also
successfully completed courses in bookkeeping
for which she received
certificates.
[28]
The plaintiff resumed with her studies for the CIS diploma course in
2001. In that year she registered
for a single course which she
subsequently passed. In 2002 she passed three other subjects.
As such at the time of
the collision, she had completed four of the
required 17 subjects.
[29]
It was submitted on behalf of the plaintiff that in view of:
29.1
the plaintiff’s proven ability
to study while working, her high intelligence and academic ability
prior to the brain injury;
29.2
her acknowledged drive and ambition
to better herself;
the supportive family
environment regarding her studies,
it
may be accepted that on a balance of probabilities, the plaintiff
would have achieved the CIS diploma.
[30]
Initially the plaintiff contended that she would have completed her
CIS diploma in the year 2005.
Later she conceded that it would
not be possible for her to have achieved the diploma in that year
considering the fact that the
institution where she is studying would
have allowed her to only register for a maximum of four subjects a
year.
[31]
The plaintiff, after conceding that it would not have been feasible
for her to have completed the diploma
during 2005, then adopted a
very conservative approach contending that she would have completed
the remaining 13 subjects in the
8 years between January 2003 and
January 2011, and that she would have found employment as a company
secretary six months later
in July 2011.
[32]
Ms Vos, the plaintiff’s industrial psychologist, contended that
the plaintiff would have been able
to find such employment and that
she would have worked in that capacity until the retirement age of
65. Ms Vos then set out
the expected salary progressions in her
report.
[33]
On the other hand Mr André Kok, the industrial psychologist
who led evidence on behalf of the defendant,
testified that it could
not be said with any precision whether or not the plaintiff would
complete and obtain the CIS diploma.
In support of this contention,
he said that the plaintiff was in the early stages of the course.
Furthermore, the birth of the
plaintiff’s third child in 2002
was definitely one of the factors that could have prevented her from
completing the course
in the year she hoped she would have. Mr Kok
pointed out further that it had to be recalled that during 2002 the
plaintiff took
off eight months from her work for the birth of her
child.
[34] In my view Kok’s
opinion is to be preferred to that of Vos as it is more realistic,
considering the plaintiff’s
particular circumstances.
[35] It is clear that as
at the time of the collision the plaintiff had not any made
significant progress towards attaining the
CIS diploma
qualification. There is no certainty that she would have
completed her studies considering the fact that she
had only
completed four courses out of the required 17. Therefore to draw the
conclusion that the plaintiff would have definitely
completed her CIS
qualification would be to have too much faith in the plaintiff and to
ask the court to make such a conclusion
would be to set a precedent
that courts can determine the imponderable based on inconclusive
evidence given by experts for the
plaintiff, who could and probably
often make a wrong diagnosis. In my view, the external circumstances
concerning the plaintiff
such as giving birth and raising children,
coupled with the apparent busy lifestyle that she maintained, would
in all probability
have hindered her success
[36] It must also be
borne in mind that from 2002 till to date, the plaintiff has only
managed to pass two subjects. She still has
to complete 11 courses
before she can obtain the CIS diploma. Even her concession that she
would complete her studies in 2011 is
clearly out of reach.
[37] I
have not lost sight of the plaintiff’s testimony when she said
she was hoping to eventually pass
and obtain her CIS diploma.
Clearly the question that remains to be answered is when will she be
able to do that. Even if
she were to ultimately pass the CIS course,
there is no certainty or indication as to when that will happen.
[38]
I am of the view that the plaintiff’s studies for
the CIS diploma course should not be taken into account
in the
post-accident scenario and that a probable and realistic scenario
would have allowed the plaintiff to continue with her
work within the
secretarial/general administration environment for the remainder of
her natural working life.
[39]
In assessing the plaintiff’s employment potential post
collision, I have considered the plaintiff’s
work history which
has been elaborately set out in the various expert reports and in
bundle G, the plaintiff’s employment
documentation.
[40]
It is trite that the positions which the plaintiff held were all of a
secretarial/personal assistant nature.
Furthermore, at the time
of the collision she was employed by PPC Cement in the capacity of
personal assistant. She commenced working
at PPC Cement on 3 March
2003 and resigned on 31 March 2004.
[41]
It is common cause that in the 13 years prior to the collision, the
plaintiff held seven positions and on
each occasion she left because
of better prospects. Significantly, her salary at each
successive employer was an improvement
on the last. The only
exception to this being in 2002 when she took eight months off for
the birth of her child.
[42]
Post-accident the plaintiff worked for various employers for varying
periods and in all of these she continued
working in the same
capacity as secretarial/personal assistant.
[43]
Except for one or two occasions, her salary at each successive
employer continued to be an improvement on
the last. In fact in
her last employment at Rand Water, where she was employed on a six
months fixed term contract as Manager:
secretariat services, she
earned R47 000,00 per month. This was almost a 100% improvement
on her previous salary at Computer
Share Investor Services where she
had started earning R21 938,46 per month. As will be apparent
later, at this company she
got promoted twice from being company
secretarial administrator to manager where her salary was R317 400,00
per annum.
[44]
The picture that emerges is that post-collision, the plaintiff
changed jobs frequently for better prospects
in the same manner as
she had done before the collision. It is common cause that the
plaintiff’s employers, post-collision,
never dismissed her or
forced her to resign on any allegation of being unable to cope with
the work that was expected of her.
[45]
The documentary evidence in bundle “G” conclusively shows
that the plaintiff always left her
employment as a result of
voluntary resignation.
[46]
Dr C Angus, testifying on behalf of the plaintiff, said that as a
result of the accident, the plaintiff
has not been able to keep jobs
because of her inability to cope with the work that she was given.
The plaintiff testified to the
same effect and cited problems such as
redoing work twice, inability to solve problems and a general
inability to meet her employers’
requirements.
[47]
Significantly, Dr Angus never contacted the majority of the employers
of the plaintiff’s employers
post-collision, to verify whether
the plaintiff was unable to cope with her work. The only
employer that Dr Angus contacted
post-collision was one Mrs Natalie
Domingo, the company secretary at Anglo American where the plaintiff
worked as the assistant
company secretary from September 2005 until
July 2006. It is significant that the Plaintiff testified that when
Mrs Domingo resigned
as the company secretary, it was suggested to
the plaintiff that she should assume the role of company secretary
but she declined
to consider the offer. This is confirmation that the
company had definite confidence in the plaintiff’s work
ability.
[48]
On page 121 of her report, Dr Angus has recorded that Mrs Domingo
described the plaintiff
as an adequate worker who worked quickly but seemed to get bogged
down and ended up taking a lot of work
home. Mrs Domingo
also told Dr Angus that
the plaintiff’s standard of work was very good and that overall
her work was of a high standard, that
she was meticulous and
particular although it was clear that the plaintiff could not perform
the volume of work and took twice
as long to do things as she
constantly double checked things. Generally speaking, Mrs Domingo had
found that the plaintiff had
a very nice nature and generally got on
well with everyone, was easy going and not bad-tempered.
[49]
Ms S Vos, also testified that post-accident, the
plaintiff resigned from her various employments due to her inability
to cope with the work demand. However, it is noteworthy that Ms
Vos never made any attempt whatsoever to contact any of the
plaintiff’s employers post-accident. I personally asked Ms Vos
why she never did so and she answered saying “
I
did not have the time to check with her employers
”.
[50]
On the other hand Mr Kok, who testified on behalf of the defendant,
contacted the plaintiff’s former
employers post-collision who
confirmed in no uncertain terms that they were all content with the
level of the plaintiff’s
work. Mr Kok also did a survey
based on categories such as work speed, general work output and
potential for employment and
the results revealed that the plaintiff
always scored high marks regarding her work performance.
[51]
At the survey conducted with the plaintiff’s line manager at
PPC Cement, Mr R. Burn, it was in fact
revealed that the plaintiff
was even eligible for promotion. In this regard it must be
reiterated that the scores obtained
by the industrial psychologist
were as high as 3 out of 4 and even 4 out of 4. These marks
suggest not only an employee who
is able to meet her employer’s
requirements, but even exceeded them. At the second survey regarding
her post-accident potential
for promotion, the plaintiff was awarded
a 4 out of 4 which translates to excellent.
[52] The court takes
cognisance of the fact that Mr Kok phoned PPC Cement, the plaintiff’s
employer to assess her performance
before and after the accident.
The survey conducted revealed that there is no noticeable difference
between her pre-accident
and post-accident state of working ability.
To the contrary, the evidence confirms that should the company have
wanted to
promote the plaintiff, they would have easily done so.
[53] The plaintiff’s
employment at a company called Computer Share is significant. She
started working at this company on
13 November 2008 where she was
appointed on a fixed period contract as a company secretarial
administrator at a salary of R23 000,00
per month.
[54]
On 13 March 2009 she was promoted from the position of company
secretarial administrator to manager.
On 4 May 2009 she was
advised that in recognition of her outstanding performance, her
salary was accordingly adjusted from R23
000,00 to R24 466,25 per
month.
[55] I
find it totally unacceptable that the plaintiff’s experts,
particularly Dr Angus, Ms Vos and Ms
Hattingh omitted to contact the
plaintiff’s employers post-accident, to corroborate their
opinions. Clearly their opinions
are merely based on the say-so of
the plaintiff. On the other hand I find Mr Kok’s
assessment totally reliable and
of assistance to this Court. To show
the court’s displeasure in the manner in which these experts
conducted their investigations,
I have decided that they should not
be entitled to their full qualifying fees.
[56] I
also have great difficulty with certain aspects of the findings of Dr
Edeling, the neurosurgeon who testified
on behalf of the plaintiff.
In his report he noted that considering the nature and degree of the
brain injury sustained, one would
expect a significant degree of
permanent employment disability to have resulted. He also said that
in addition to limitations imposed
by the plaintiff’s cognitive
mental impairment, communication disorder, and physical impairment,
it was anticipated that
her ability to apply her retained
intellectual capacity will be jeopardised by executive mental
impairment, as well as by mood
and personality factors.
Significantly, during his testimony Dr Edeling changed and told the
court that the plaintiff would not
suffer more than 10% of permanent
disability.
[57]
Dr Edeling examined the plaintiff on 17 January 2007. His assessment
and projections as set out above are
neither supported nor borne out
by the plaintiff’s actual experiences at the workplace
post-collision. As I have shown
above, the plaintiff’s
work’s performance and ability, post
collision,
speaks something entirely different from Dr Edeling’s
assessment and to the contrary, the plaintiff’s employment post
collision suggests one of excellence and high potential of promotion.
[58] In the light of all
the evidence before this court, I am satisfied that the plaintiff
will be able to continue with her vocation
in the
secretarial/personal assistant field.
[59]
The court accepts that the plaintiff will retire five
years early i.e. at age 60 and not at 65 years because of
the
physical injuries she sustained in the collision. Her right hip in
particular, is still presenting serious
sequelae
.
The court accordingly finds that the plaintiff’s loss of future
earnings will only be in relation to the plaintiff’s
truncation
of working lifespan from age 65 to age 60.
[60]
In assessing the plaintiff’s loss of future earnings, I have
decided to have these calculated on the
basis of the salary she
earned at PPC Cement, where she was working at the time of the
collision. Upon her resignation at this
company in March 2004, she
was earning R12 360-00 per month. I have been advised that in current
terms this translates to R18 875,
45 per month, thus placing her on a
C4 Paterson scale on the Deloitte Consulting Guide. I have also
decided that given all the
particular circumstances of the plaintiff,
a contingency of 20% would be appropriate.
[61]. The court also
notes that the plaintiff will require a maximum of eight weeks off
work in order to attend to the treatment
in relation to her hip. This
period will be included in the calculation of the plaintiff loss of
future earnings.
[62] Taking all these
factors into consideration, the plaintiff’s loss of future
earnings amounts to R 374,866,00.
PAST LOSS OF EARNINGS
[63]
The plaintiff was off work for a period of six weeks while she was
recuperating from her injuries. It is
trite that during this
aforesaid period she continued to receive her normal salary from her
employers at PPC Cement.
[64]
The evidence conclusively shows that post collision the plaintiff
changed jobs frequently for better prospects.
There is no
evidence whatsoever which shows that the plaintiff sustained any past
loss of earnings due to the collision. To the
contrary, post
collision, she was able to change jobs frequently and work without
any impediment as she had done before the collision.
Furthermore, the
evidence shows conclusively that she continued to perform at her
optimum best without any impediment whatsoever.
[65]
The court notes that during argument Mr Erasmus, appearing for the
plaintiff, told the court that the parties
had come to an agreement
about a certain figure which would cover the plaintiff’s past
loss of earnings. However, as
there was no such agreement at
the commencement of the trial, the entire trial proceeded on the
basis that the claim for past loss
of earnings was in dispute.
Whatever the terms of such agreement are, such would not be in
accordance with my findings, namely
that the plaintiff could not
discharge the onus on her of proving any loss in respect of past
earnings.
[66]
I accordingly find that the plaintiff has failed to
discharge the
onus
of proving that she sustained any loss under this heading.
[67] I
accordingly make an order as follows:
1.
The defendant shall pay the
plaintiff the amount of R735,866,46.
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
, for the
plaintiff’s future medical, hospital and associated medical
expenses.
The defendant is ordered
to pay the plaintiff’s costs on the High Court scale either as
taxed or agreed, to date hereof, including
any costs attendant upon
the obtaining of payment referred to in 1 above and the full
qualifying fees of Dr. Edeling, Dr. Read
and Ms Lephutha. Dr Angus
and Ms Vos are only entitled to 50% of their qualifying fees.
_____________________________
B
H MBHA
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG