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[2016] ZAECPEHC 52
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Kettledas v Road Accident Fund (3748/14) [2016] ZAECPEHC 52 (20 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 3748/14
D
ate
heard: 15 August 2016
Date
delivered:20 September 2016
In
the matter between:
BRYONI
SHANICE
KETTLEDAS
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MALUSI
AJ
[1]
This is an action for damages arising out of collision between two
motor vehicles in Kamesh Road, Uitenhage on 24 June 2011.
The
plaintiff was a passenger in one of the motor vehicles. She
sustained serious injuries as a result of the collision.
She suffered
head, neck, back, tooth, facial and knee injuries.
[2]
A substantial portion of the plaintiff’s claim has been
resolved by way of a settlement agreement between the parties
which
was made an order of Court by Revelas J. General damages were
agreed in the sum of R600 000,00. The defendant
tendered
to provide a statutory undertaking to compensate plaintiff for future
medical expenses in terms of
section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
. The only head of damages that remains in dispute
is the claim for past and future loss of earnings. Various
issues were
agreed except for the contingencies to be applied to the
loss of earnings.
[3]
At the start of the trial the parties submitted a list of issues on
which agreement had been reached between them. It
was agreed
that five reports by experts who had examined the plaintiff at
various times were to be handed in as evidence without
the necessity
for the experts to testify. The actuarial report was also
handed in as evidence save for the aspect of contingencies
in the
report. Dr Peter Whitehead, an industrial psychologist, was
called as an expert witness by the plaintiff.
[4]
The sole issue to be determined in this matter are the contingency
factors applicable to the plaintiff’s past and future
loss of
earnings.
[5]
According to orthopaedic surgeon, Dr Oelofse, the plaintiff
experiences moderately severe pain over the knee joint.
The pain is felt when sitting, standing, walking, crouching, handling
heavy objects, climbing and sleeping. He diagnosed
the
plaintiff as having severe traumatic chondromolacia of the knee
joint. He noted that the plaintiff has difficulty with
some
routine everyday activity. Dr Oelofse’ opinion was that
the plaintiff has become an unfair competitor in the open
labour
market. Furthermore, he stated that her working abilities have
been affected by the injuries sustained in the collision.
[6]
The maxillofacial and oral surgeon, Dr Kassan noted that the
plaintiff has a laceration on the left forehead extending to the
upper eyelid. She has severe myospasm related to her bilateral
facial muscles. She had a fractured canine tooth and
a missing
premolar on the lower jaw. His opinion was that her facial
muscle pain is debilitating which affects her concentration
and
execution of daily chores. This contributes to her persistent
headaches. The scarring and the pain were due to
a nerve
in the wound. The cosmetic effect of scarring has affected her
confidence. All these have affected her ability to
work to a
certain degree though they are not a severe disability.
[7]
According to the occupational therapist, Van Zyl, who examined the
plaintiff she suffered from headaches daily with blurred
vision.
She also experiences lower backache which affects her endurance when
sitting and standing. This also affects
her ability to lift and
carry heavy objects. She was of the view that the plaintiff has a
borderline clinical depression.
Based on plaintiff’s work
experience after the collision, Van Zyl was of the opinion that she
will be limited to work with
sedentary physical demands until surgery
is performed. She will be able to perform work with medium to
sedentary physical
demands following surgery and successful
rehabilitation.
[8]
The plastic surgeon, Dr Apostolis, held the view that plaintiff’s
work capacity was reduced due to the scar on her forehead.
It
impacted negatively her chances of obtaining work in any occupation
that involves any personal face to face encounters.
His opinion
was that though plastic surgery may improve the appearance of the
scar, she will have permanent disfigurement.
[9]
The clinical psychologist, Wessels assessed the plaintiff to be
suffering from an adjustment disorder with depressed mood. The
disfiguring scarring on her face caused her to develop significant
emotional problems. The chronic pain and mobility problems
after the collision also adversely affected her mood. She
further diagnosed the plaintiff as having a pain disorder associated
with her general medical condition. He also diagnosed her to be
suffering from a post-traumatic stress disorder which significantly
interferes with her general functioning currently. She also has
socio-emotional stresses in the form of unemployment and financial
pressures. She was measured on the global assessment
functioning scale to be 51 to 60 which means moderate difficulty in
personal, social and occupational functioning. The prognosis
for her recovery is guarded and related to her chronic pain
probably
continuing to negatively affect her mood despite psychological
treatment. Wessels’ opinion is that the sequalae
of the
collision has reduced plaintiff’s career prospects to sedentary
type of work.
[10]
Dr Whitehead, the industrial psychologist, testified that the
headaches suffered by plaintiff were detrimental to her future
employment. Her painful knee will not enable her to do physical
work. He stated that the diagnosis by Wessels will
negatively
impact on plaintiff’s ability to work. The plaintiff has
not been able to retain employment and holds a
position for a short
period of time. She is compromised when competing for work.
[11]
Dr Whitehead opined that plaintiff would likely have obtained only a
grade eleven qualification considering her poor performance
in lower
grades. In the uninjured stated she would have probably found
work in a more physical capacity. He was pessimistic
that
post-collision the plaintiff is in a position to have a career path.
[12]
Under cross examination, Dr Whitehead conceded that his pre-morbid
scenario was based on the corporate sector of the economy.
He
conceded that post-collision the plaintiff has residual earning
capacity doing sedentary work if one overlooks her compromised
state.
[13]
Arch Actuarial Consulting prepared a report to quantify the value of
plaintiff’s loss of earnings. Arch’s calculations
were
based on Dr Whitehead’s predicted pre-morbid and post-morbid
scenarios. The relevant portion of Arch’s report
reflects
the following:
“
2.2
Earnings
had the accident not occurred (Pre-morbid earnings)
At
the time of the accident the Claimant was a scholar. Were it
not for the accident, it is assumed she would have entered
the open
labour market in 2015. The following figures have been used in this
part of the calculation:
Pre-morbid
earnings
Date
Salary p.a.(2016
terms)
Benefits
01/2015
R35,000
Annual bonus equivalent to a 13
th
cheque
01/2016
R82,000
01/2022
R94,000
01/2028
R108,000
01/2034
R120,000
01/2040
R132,000
Earnings
levels were assumed to increase in the past and future in line with
Consumer Price Index (CPI) iinflation+1.5% per annum
compound.
As instructed, we have allowed for the Claimant to experience
increases each earnings level and after 01/2040 until
retirement age
at Consumer Price Index (CPI) inflation+1.5% per annum compound.
2.3
Earnings given that the accident has occurred (Post-morbid
earnings:
Following
the accident, the Claimant has earned as follows:
·
A
total of R300 in 2012;
·
An
average of R565 per week in October and December 2014;
·
R250
per week from the end of January to March 2016.
The Claimant is
expected to experience the following earnings path in the future:
Post-morbid
future earnings
Date
Earnings p.a.
(2016 terms
01/2017
R19,500
07/2029
R56,00
We have allowed for
even compound increases between earning levels. Earnings levels were
assumed to increase in the past and future
in line with Consumer
Price Index (CPI) inflation+1.5% per annum compound.
2.4
Retirement age:
Pre-morbid
65 years
Post-morbid
60 years
[14]
Mr
Schubart
,
on behalf of the plaintiff, submitted that the usual contingencies of
5% to past loss of earnings ought to be applied. He
pointed out
that plaintiff was claiming from 2015 to the present which is a
period of one and half year.
[15]
Mr
Paterson,
on behalf of the defendant, submitted that Dr Whitehead’s
evidence had erroneously been based on plaintiff being employed
in
the corporate sector. He argued a more reasonable contingency
was 10% in the circumstances of this case.
[16]
Past loss of earnings can be assessed with greater certainty
particularly with regard to the facts than future income. I accept
Dr
Whitehead’s reasons for using the corporate sector as the
plaintiff was employed at Spar after the collision. I
accept Dr
Whitehead’s evidence as it was not contradicted and cogent
reasons were given for his opinion. I am of the
view that on
the facts of this case and having regard to
Koch:
Quantum Yearbook 2016
,
at page 124 that the normal contingencies are 5%, they must be
applied to past loss of earnings.
[17]
Mr
Paterson
submitted
that a contingency deduction of 25% should be applied to plaintiff’s
pre-morbid future loss of earnings. He
based this on plaintiff
not likely to have achieved grade 12. He argues that she would
have competed with a high percentage
of unemployed school leavers,
some with matric. This would have placed plaintiff in
unfavourable competition with people
who have matric.
[18]
I agree with Mr
Schubart
that the submissions regarding unemployment are speculative as there
was no evidence tendered about levels of unemployment.
Furthermore, the learned author
Koch
supra
states that it has become customary for the court to apply a sliding
scale to contingencies “
that
is 25% for a child, 20% for a youth and 10% in middle age”.
Contingency
factors applied in other cases involving youths and/or children range
from 15% to 40%. I am of the view that taking
into account all
the circumstances in this case and plaintiff’s youthful age,
contingency deductions of 15% should be applied.
[19]
Mr
Parterson
contended
that having regard to the physical and psychological impact of
plaintiff’s injuries she still has a residual earning
capacity. He submitted that the evidence of Dr Whitehead that
half the period plaintiff would be unemployed is not supported
by
historical factors. He submitted a contingency deduction of 35%
is appropriate.
[20]
Mr
Shubart
submitted that the post-morbid career history of the plaintiff to
date gives an indication of the future. I find that on
the
uncontested evidence of Dr Whitehead a higher than normal contingency
ought to be applied in the plaintiff’s injured
state. Due
to her current compromised state her future career is indeed at
risk. I accept Dr Whitehead’s evidence
that she will
probably spend significant periods being unemployed and would not
work beyond the age of 60 years. This is
less than the 65 years
he predicted she would have worked in her uninjured state. I am
of the view that a 50% contingency
deduction on plaintiff’s
future loss of earnings is appropriate.
[21]
The parties had agreed on the amounts to which the contingencies are
to be applied. I relied heavily on the calculations
provided by
Counsel in reaching the final sum in the order.
[22]
In the circumstances and for the above reasons, it is ordered:
22.1 The
defendant shall pay to plaintiff, in respect of her claims for past
and future loss of earnings, the sum of R1 646 156,00;
22.2 Interest
shall accrue on the said amount at the legal rate of 10.5% per annum
payable as from 14 days from date of this
order until date of
payment;
22.3 The
defendant shall pay the plaintiff’s costs of suit, as taxed or
agreed, together with VAT thereon, on the party
and party scale.
Such costs shall include the qualifying expenses, if any, of the
following:
22.3.1
Dr Oelofse;
22.3.2
Dr Apostolis;
22.3.3
Dr Kassan;
22.3.4
Ilonka Wessels;
22.3.5
Dr Whitehead;
22.3.6
Ansie Van Zyl;
22.3.7
Arch Actuarial Consulting.
______________________
T.
MALUSI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the Plaintiff :
Mr Schubart
Instructed
by
: Heine Ungerer
Attorneys
PORT
ELIZABETH
For
the Defendant :
Mr Paterson
Instructed
by
: Friedman Schekter
PORT
ELIZABETH