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[2010] ZAWCHC 630
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Stemment v Road Accident Fund (3589/06) [2010] ZAWCHC 630 (15 December 2010)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case No.: 3589/06
In the matter between:
BARBARA
WILHELMINA STEMMET
…
.....................................................
Plaintiff
and
THE
ROAD ACCIDENT FUND
…
............................................................
Defendant
JUDGMENT
DELIVERED THIS 15 DECEMBER 2010
KOEN
AJ.
[1]
On 6 May 2003 the plaintiff was struck by a motor vehicle from behind
whilst cycling. As a result of the accident the plaintiff
suffered
injuries. She had sustained lacerations to her scalp, face and
thighs,
which has resulted in scarring. Her cheek bone and nose had been
fractured. Her shoulder and ankle had also been injured.
More
seriously, she had sustained a ligament injury to her cervical spine
with a slight or partial dislocation of the vertebrae
at C4/5. The
injury to the plaintiff's neck is inhibiting. In essence, as I
understood the thrust of the evidence, the injury has
caused her neck
to be less stable than it was. Thus, whenever she holds her head
still, or in a flexed position, for any length
of time the muscles in
her neck spasm and she experiences pain. Often this pain leads to
headaches
1
.
[2]
At the time of the accident the plaintiff was a medical student. She
graduated with a degree MB.ChB from the University of Stellenbosh
during December 2004. Her academic transcript reflects that she
passed many of the university subjects with distinction. During
2005
the plaintiff completed a year of internship at the Katatura Hospital
in Namibia. During 2006 she served one yearof community
service at
the Shongwe hospital in Mpumalanga. During 2007 the plaintiff moved
to Windhoek and commenced employment as a general
practitioner. At
the time of the trial the plaintiff was still employed as a general
practitioner in Windhoek. She works in one
of the less affluent areas
in Windhoek, and has mainly women patients. For some time she has
assisted Dr Smith, a gynaecologist
2
,
in theatre. This occurs about twice a week. She works long hours, and
is obviously dedicated to her profession and her patients.
[3] That she is an
intellectually capable person, hardworking and determined was never
seriously disputed by the defendant. Indeed,
it is fair to say that
this is common cause between the parties.
[4] The accident in which
she was injured led, in due course, to the institution of proceedings
against the defendant during April
2006. Initially the plaintiff
claimed an undertaking in regard to future medical expenses; an
amount of R
400 000 for loss of
earning capacity; and general damages in the amount of R 400 000.
[5] On the date the trial
commenced the defendant conceded the merits. As will appear from what
follows the claim for future medical
expenses is not contentious. By
the time the matter was argued the dispute about the quantum of
general damages had narrowed to
the degree that it was submitted on
behalf of the plaintiff that an award of between R250 000 and R300
000 should be awarded with
the defendant suggesting in the heads of
argument filed on its behalf that an amount of R 150 000 should be
awarded. In regard
to the claim for loss of earning capacity,
however, matters were not as straightforward.
[6] The original claim
for loss of earning capacity (R400 000) was amended during July 2008
to R869 300. The July 2008 amendment
to the claim for loss of earning
capacity was predicated upon the plaintiff having specialised as a
gynaecologist, and having commenced
practising as such during 2013,
but with a 10% reduction in earning capacity brought about as a
result of her injuries.
[7] During February 2009,
after the plaintiff had given evidence and on the third day of the
trial, the claim for loss of earning
capacity was further amended to
R 10 782 200. The February 2009 amendment to the claim was predicated
upon the plaintiffs evidence
to the effect that she had concluded,
after consulting with an orthopaedic surgeon, Dr Van Wyk, shortly
before the trial at the
commencement of 2009, that she could not
pursue her intention to specialise in gynaecology as a consequence of
her neck injury
and that she would remain a general practitioner.
[8] As I understood the
argument put forward by counsel for the defendant the claim for loss
of earning capacity was resisted on
two main grounds. Firstly, that
the plaintiff had not proved on a balance of probabilities that she
would have trained and practised
as a gynaecologist had the accident
not happened. And secondly, that although she was injured, she has
suffered no patrimonial
loss in the form of a reduction of her
earning capacity. In regard to the second point it was submitted that
the plaintiff could
still qualify and practise as a gynaecologist
without any loss of earning capacity (albeit with some neck pain for
which an award
of general damages was appropriate), or if not as a
gynaecologist that she had the ability to qualify and practise in a
similar
speciality without there being any loss of future earning
capacity.
[9] The first question
which it is necessary for me to decide is whether or not the
plaintiff has proved that had it not been for
her injury she would
have progressed in her career to specialise in gynaecology, and that
she would have qualified as a gynaecologist.
[10] Some of the
defendant's criticism of the plaintiffs evidence that she would have
pursued gynaecology as a medical speciality
was directed at the fact
that no mention is made of an intention on her part to do so in the
first medico-legal report of Dr Van
Wyk, an orthopaedic surgeon who,
according to his report, consulted with her during September 2004. I
do not think that there is
merit in this line of attack on her
evidence. At that stage the plaintiff was still a student. She had
not even obtained her medical
degree, which was awarded to her at the
end of 2004, when she saw Dr Van Wyk. Her evidence to the effect that
during the second
half of her internship at Katatura Hospital she
became exposed to gynaecology, and that during her year of community
service in
Mpumalanga she chose to continue in that direction, was
not seriously challenged in cross examination.
[11] Moreover, from 2008,
her second year in private practice, she in fact commenced assisting
Dr Smith, a gynaecologist practising
in Windhoek, in theatre. The
amendment to her claim made at about that time was predicated upon a
10% reduction in the amount she
would have earned as a gynaecologist.
The amendment coincides with her involvement in the surgical side of
Dr Smith's gynaecology
practice which has continued since. During
consultations with various expert witnesses in January and February
2009 the plaintiff
told them that she intended to become a
gynaecologist. She has persisted in assisting Dr Smith
notwithstanding the discomfort from
which she suffers as a result of
neck spasm caused by her injuries, and notwithstanding that the
financial rewards she gained from
this aspect of medical practice are
insignificant. Indeed, the plaintiff testified that she would earn
more if she were to forego
the time spent assisting Dr Smith, and
spend that time in general practice.
[12] The plaintiff also
gave evidence of a strong practical and commercial consideration
which, apart from her interest in the field,
motivated her decision
to progress her career in the gynaecology direction. It was not
disputed that there are few gynaecologists
in Namibia in general, and
in Windhoek in particular. There is only one other female
gynaecologist in Windhoek, namely Dr Smith.
The commercial advantage
to a female specialist in the field of gynaecology is self evident.
[13] That the plaintiff
has the intellectual capacity, determination and work ethic necessary
successfully to qualify for and practise
as a gynaecologist is clear
from the evidence which was led during the trial and was not placed
in issue by the defendant.
[14] On behalf of the
defendant it was contended that the plaintiff had not taken practical
steps to achieve her intention to become
a gynaecologist. Being
accepted to pursue specialisation in the gynaecology field is
exceedingly difficult, with few posts being
available at training
hospitals. Professor Theron, a Professor and Senior Specialist in the
Department of Obstetrics and Gynaecology
at the University of
Stellenbosch, explained in evidence that it often occurs that
applicants for a post in the field make contact
with a teaching
hospital and commence studies to evidence their enthusiasm before
being accepted to the training courses necessary
to qualify. They do
so to promote their chances of being accepted to such a course of
further study. The plaintiff had not taken
any substantial steps in
this direction.
[15] Furthermore, it was
contended by the defendant, it would be necessary for the plaintiff
to move from Windhoek to pursue training
in the field of gynaecology
at a teaching hospital. There was no evidence to suggest that the
plaintiff had taken any steps to
prepare for such a move.
[16] In my view, however,
the criticism of the plaintiffs evidence to the effect that she
intended to pursue a specialisation in
the gynaecological field is
not sufficient to rebut her evidence to this effect. Her decision was
made at a relatively early stage
in her professional career. She was
in her second year of private practice when her interest in the field
translated to active
surgical assistance to Dr Smith in spite of the
discomfort and pain and poor financial rewards she received. It is
clear from her
unchallenged evidence that her personal life had
during this time been somewhat less than settled. These circumstances
were not
conducive to a change of direction in the practise by her of
her profession. That she had not taken practical steps to pursue
specialising
in the field at so early a stage is not unsurprising in
my view.
[17] In my view the
evidence shows that it is probable that she intended to progress her
career in that direction and I therefore
find that the plaintiff has
proved that she intends to, and probably will become, a
gynaecologist.
[18] As indicated above,
the plaintiff testified that that during January 2009 she consulted
Dr Van Wyk for a second time in order
that the medico-legal report he
had prepared earlier could be updated. During this consultation he
emphasised the difficulty and
stress of private practice in the
gynaecology field, particularly in the light of her neck injury. In
the report he prepared a
day after the consultation he stated that it
was his opinion that her capacity to work would be limited in that
she was likely
to experience increasing symptoms of neck pain, spasms
and headaches during operations of long duration. He thought that she
should
avoid such a career. This advice, she says, caused her to
decide that she should not pursue her ambition to become a
gynaecologist
and precipitated the amendment to her claim adverted to
in paragraph 7 above.
[19] The next question to
be decided is whether or not the plaintiff has proved that as a
result of the injuries she suffered she
is not able to qualify and
practice as a gynaecologist. Qualifying requires some years of
intensive training during which the demands
placed upon students are
exacting. Once a student has qualified the demands imposed by the
profession upon gynaecologists can be
managed to an extent, so as to
cater for each person's individual requirements.
[20]
I did not understand Dr Van Wyk's evidence to indicate that the
plaintiff was physically incapable of qualifying and training
as a
gynaecologist. The point he was at pains to make, as I understood
what he said, is that he would advise against her pursuing
such a
course on account of the physical demands it would place upon her. Dr
Van Wyk is an orthopaedic surgeon, and because he
is not qualified to
express an opinion about the demands of gynaecological practice
expert evidence from other medical practitioners
was led by the
parties. Before dealing with their evidence I should add that Dr
Steyn, also an orthopaedic surgeon, gave evidence
on this point for
the defendant. He expressed the opinion that the plaintiff would be
able to cope with the demands of gynaecological
practice, but with
"sacrifice
of some quality of life".
3
[21] On behalf of the plaintiff Professor Cronje, the Head of the
Department of Obstetrics and Gynaecology at the University of
the
Orange Free State, gave
evidence.
He, too, thought that the plaintiff should not pursue her ambition to
become a gynaecologist in view of the physically
demanding nature of
the career and the inhibiting effects of her neck injury. The gist of
his evidence was that she
should
not
(as opposed to
could
not)
do so, in view of the pain and discomfort she suffered when
undertaking long operations. Professor Theron gave evidence for
the
defendant. The gist of his evidence was that although he would be
disinclined to encourage the plaintiff to pursue her ambition
to
qualify and practise as a gynaecologist he would encourage her to do
so if this was her passion. As I understood their evidence,
although
it would be difficult for the plaintiff to qualify as a
gynaecologist, they were not of the opinion that she was physically
incapable of doing so.
4
[22] Much evidence was
given so as to paint a picture of the daily demands and routines of
the practice of gynaecology. Very little
of this evidence was
controversial. Gynaecology and obstetrics involves both surgery and
medicine. Dr Smith, whom the plaintiff
assists in theatre in
Windhoek, testified for the plaintiff. She operates on two days a
week, and consults with patients for the
rest. She has a heavy work
load. Most of the surgical procedures she undertakes are
uncomplicated and of relatively short duration.
Dr Smith stated that
the plaintiff could and did manage a half day theatre list. Dr
Cheifitz is a gynaecologist practising in Cape
Town. He described a
not dissimilar work week. In essence, the practice of gynaecology is
divided between consultations and surgery.
Surgery forms the lesser
proportion of the two aspects of practice and most of the surgery
undertaken is uncomplicated and of short
duration. Particularly
complicated procedures, which might take a considerable time, would
usually be referred to more experienced
practitioners. Usually two
half day operating lists are undertaken by gynaecologists in private
practice. There is a degree of
flexibility in daily routine and
schedules can be planned so as to distribute the load between
surgical work and consultation work
in the manner best suited to an
individual practitioner. Dr Basson's evidence was along the same
lines.
[23] As stated above the
plaintiff had commenced assisting Dr Smith with gynaecological
procedures during 2008. She does so twice
a week. Although she
suffers pain and discomfort at times, this has not caused her to stop
assisting Dr Smith. She manages to continue
to do so in spite of the
pain and discomfort. In Dr Smith's view the plaintiff can manage a
half day theatre load. A full day theatre
list could be split, if the
plaintiff chose to do this. There are further facts which indicate,
in my view, that the plaintiff
is physically capable of qualifying
and practising as a gynaecologist. She completed her final year at
medical school in spite
of the injuries she had only recently
sustained. She undertook and successfully completed a demanding year
as an intern prior to
qualifying as a doctor. She completed her year
of community service at the Shongwe Hospital. Professor Theron's
unchallenged evidence
was that this hospital has a high work load and
there are insufficient medical staff. During this year the plaintiff
would have
been extremely busy and the demands placed upon her not
insignificant. She coped. There is no doubt, in my mind, that she is
a
determined and driven individual. What she has already achieved
speaks to her qualities and her passion for the career she has
chosen. I think it is not inaccurate to describe her as a gifted
individual. There is no question that she is intellectually up
to the
task.
[24] In my view, the
plaintiff has not proved that she is physically incapable of meeting
up to the demands of gynaecological practice.
Notwithstanding the
consequences of her neck injury, she will, in my judgment, be able to
manage professional life as a gynaecologist
in such a manner so as to
make it possible for her to do so.
[25] Counsel for the
defendant sought to persuade me that if I concluded that the
plaintiff was able to qualify and practise as
a gynaecologist then
she would not have sustained a loss of earning capacity.
[26]
It is trite that for the plaintiff to succeed she must prove that she
has suffered damage. It is also trite that the mere fact
that an
injury has been sustained does not cause a loss of earning capacity
and damages. In this connection I was referred to
Union
and National v Coetzee
1970
(1) SA 295
(AD);
Kruqell
v Shield Versekerinqsmaatskappy Bpk
1982
(4) SA 95
(T);
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA) and
Dippenaar
v Shield Insurance
1979
(2)SA 904 (A).
[27]
In
Dippenaar
the
following was stated:
"The
capacity to earn money is considered to be part of a person's estate
and the loss or impairment of that capacity constitutes
a loss, if
such loss diminishes the estate'
5
.
In
Rudman
it
was held that
"earning
capacity is a complex of abilities which together make up an
asset...'
6
.
[28]
It follows, as I see it, that it is an oversimplification to argue
that simply because the plaintiff is capable of becoming
a
gynaecologist, she has not suffered any loss. Any
"impairment
of that capacity"
(to
use the expression in
Dippenaar
)
might constitute a reduction in her patrimony recoverable in delict.
It follows that the mere fact that the plaintiff is capable
of
qualifying and practising as a gynaecologist does not rule out a
claim for loss of earning capacity.
[29] As I see it the
plaintiff has proved that her capacity to earn has been adversely
affected as a result of the injuries she
suffered, and that her
patrimony has in consequence been reduced. For one, she will in all
likelihood have to undergo a procedure
to fuse the bones in her neck
at some future stage which will keep her out of work. And it is clear
from the evidence that she
will not be able to undertake lengthy or
complex surgical procedures due to the fact that her neck pain is
aggravated during lengthy
procedures. The management of her post
qualification professional life as a gynaecologist will require that
she avoid complicated
and lengthy surgical procedures because of the
inadvisability of undertaking same due to the discomfort and pain she
will suffer.
It goes without saying that it will not be in the
interest of patients for their doctor to be distracted by pain and
discomfort
during a complicated procedure where full attention must
be paid to the patient. The evidence of Professor Theron supports
this
conclusion, at least to the degree that he states that he would
discourage a gynaecologist from performing surgery which is beyond
his or her capacity. Indeed, Professor Theron testified that
complications can often be predicted and other surgeons should be
called in this event.
[30]
How then does one go about quantifying the loss suffered by the
plaintiff as a result of the impairment to her earning capacity?
In
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA) Zulman JA put it as follows:
"The
calculation of the
quantum
of
a future amount, such as loss of earning capacity, is not, as I have
already indicated, a matter of exact mathematical calculation.
By its
nature, such an enquiry is speculative and a court can therefore only
make an estimate of the present value of the loss
that is often a
very rough estimate (see, for example,
Southern
Insurance Association Ltd v Bailey
NO).
The court necessarily exercises a wide discretion when it assesses
the
quantum
of
damages due to loss of earning capacity and has a large discretion to
award what it considers right. "
7
[31] In argument counsel
for the plaintiff invited me to choose from a bouquet of alternative
calculations presented during the
trial that which I considered to be
the most appropriate. None of these addressed in a sufficiently
direct manner the likelihood
that the plaintiff would be able to
qualify and practise as a gynaecologist, but with a degree of
impairment to her earning capacity.
[32] The approach adopted
by counsel for the plaintiff underscores the difficulty of assessing
loss of earning capacity claims with
precision and the fact that
courts are often required to speculate in this process.
[33] When pressed,
counsel for the plaintiff submitted that the second approach adverted
to by Mr Munro, an actuary who gave evidence
for the plaintiff, was
the most likely future scenario. In undertaking this particular
calculation Mr Munro had been instructed
to assume that the plaintiff
would have commenced training as a gynaecologist in January 2011 and
would have qualified as such
in January 2016. Applying a contingency
deduction of 15% to uninjured income, and 25% to injured income his
calculations resulted
in a total loss of income of R 5 292 000.
[34] Of course, Mr
Munro's calculation of a loss of income is predicated upon the
plaintiff not qualifying as a gynaecologist, whereas
I have concluded
that she will probably qualify and practise as a gynaecologist. It
assumes her post injury income to be that of
a general practitioner.
But his calculation of the plaintiffs assumed income as a
gynaecologist in uninjured state is helpful in
that it reveals what
the present value of such income is, applying the contingency
deduction of 15% he was instructed to make.
[35] In the second
scenario, to which I refer above, postulated by Mr Munro he
calculated that the present day value of what the
plaintiff would
have earned had she progressed in her career, qualified as a
gynaecologist, and commenced practising as such in
2016 is R 14 311
700. To this he applied a contingency deduction of 15% resulting in a
figure of R 12 165 000.
[36] The degree to which
the plaintiff will be inhibited in the practise of gynaecology is, in
my view, limited. It is only in regard
to complex and lengthy
surgical procedures that she will not be able to practise as normal.
I have very limited evidence at my
disposal to assist in assessing
the degree to which she will be impaired in this respect, but think
that the figure of a 10% reduction,
which was her own assessment of
this in July 2008 is fair and reasonable.
[37]
Mr Munro has calculated the present value of her future earnings as a
gynaecologist to be R 14 311 700. From this must be deducted
10% (R 1
431 170) which results in a figure of R 12 880 530. Applying a
contingency deduction of 15%, which I consider to be reasonable,
the
result is R 10 948 451
8
.
Her loss, in my judgment, is 10% of this amount, namely R 1 094 845.
[38] There remains the
question of general damages. As stated above the battle lines had
narrowed in this regard and it was contended
in argument for the
plaintiff that an amount of between R 250 000 and R 300 000 should be
made, while on behalf of the defendant
it was submitted than an award
of R 150 000 should be made. I was referred to certain authorities in
this regard. These can serve
only as a guide. Having regard to these
and the injuries suffered by the plaintiff I am of the view that an
award of R 150 000
in respect of general damages ought to be made.
[39]
In regard to costs the matter was postponed as a result of the
amendment to the plaintiffs particulars of claim made during
February
2009. The plaintiff is liable for such costs as were wasted by the
postponement. The plaintiff is declared a necessary
witness, as is Dr
Smith. She is also entitled to the qualifying costs of those experts
in regard to whom Rule
36
(9)
(a)
and (b) notices were filed. For the rest there is no reason why costs
should not follow the result.
[40]
In
the circumstances I make the following order:
(a)
the
defendant shall furnish an undertaking in terms of section
17
(4)
(a)
of
Act
56
of
1996;
(b)
the
defendant shall pay to the plaintiff the total sum of
r
1 244 845,
being
the aggregate of R
1
094 845
in
respect of loss of
earning capacity, and R
150
000
in
respect of general damages;
(c)
the
defendant shall pay the plaintiffs costs of suit. In this regard the
plaintiff and Dr Smith are declared necessary witnesses
and the
qualifying expenses of those experts in regard to whom Rule 36 (9)
(a) and (b) notices were filed are allowed.
STEPHEN,
KOEN AJ
1
The
plaintiff also testified that she suffered from dizziness as a
result of her injuries. The defendant disputed that dizziness
was
caused by the injuries sustained during the accident. No expert
evidence was led to link the dizziness with the injuries
suffered by
her as a result of the accident and I therefore leave dizziness out
of account in deciding this matter.
2
In
this judgement a reference to "gynaecologist" is to a
medical doctor trained as and specialising in the field of
obstetrics and gynaecology.
3
I
quote from a joint report signed by both witnesses on 21 July 2009.
4
This
is clear from the joint report they signed on 21 July 2009 - exhibit
"D".
5
At
917 B.
6
At
243 E - F
7
At
586 I to 587 B
8
I
round up to the nearest Rand.