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[2019] ZAECPEHC 15
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Sidlabane v Road Accident Fund (2136/2017) [2019] ZAECPEHC 15 (26 March 2019)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION (PORT ELIZABETH)
Reportable
/ Not Reportable
Case No: 2136/2017
In
the matter between:
SAMANTHA
SIDLABANE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
NQUMSE
AJ:
[1]
The plaintiff instituted a claim for damages against the defendant,
arising out of
a collision that was due to the sole negligence of the
insured driver in whose vehicle the plaintiff was a passenger.
[2]
It is as a result of the said collision that caused plaintiff to
suffer the following
injuries:
2.1
A mild brain injury;
2.2
A laceration of the left lower face
involving the left lower lip with tissue torn;
2.3
Laceration of the left side of the neck;
2.4
A small laceration of the right forehead;
2.5
Abrasion and bruising of the face and body;
2.6
An injury to the lower jaw;
2.7
An injury to the teeth and
2.8
A psychological and post-traumatic stress
disorder.
[3]
The defendant in the index in respect of minutes handed into court
has conceded the
merits and disability of the plaintiff’s claim
in its entirety
[1]
. At the time
of trial the following head of damages had become settled:
3.1
The defendant shall furnish the plaintiff with an undertaking in
terms of Section 17(4)
(a) of the Road Accident Fund
[2]
,to
pay to the plaintiff the costs of future accommodation in a hospital
or nursing home, or the treatment of or the rendering of
a service
to, or the supporting of goods to the plaintiff, as a result of the
injuries sustained by her in the motor vehicle collision
which
occurred on 31 August 2014 in Port Elizabeth, and the sequelae
thereof, after the costs have been incurred and upon proof
thereof;
3.2
General damages in the sum of R500 000; or
3.3
The plaintiff abandoned her claim for past medical expenses.
[4]
Accordingly, the only issues I am called upon to determine are;
4.1
Plaintiff’s past and future loss of income and earning
capacity; and
4.2
The costs consequent upon the employment of
two counsel.
[5]
It is common cause that at the time of the accident, plaintiff was an
employee of
Joshua Door since 01 August 2013. Her specific job was
that of a sales lady. According to Exhibit H which was handed in by
consent
the plaintiff earned a basic salary as well as commission
which was normally paid in the month following the month in which it
was earned. The pay slips indicated commission earned from delivery
charges, life insurance sold, BPP commission, SPIVS, and club
commission.
[6]
Mrs. Molloy, a lay witness who was the plaintiff’s sales
manager described the
plaintiff prior the accident as a vibrant young
girl, with customers who enjoyed her beautiful personality.
With her potential
she was independent and gave 100% performance in
her work. Her selection to attend a management course enabled
her to be
in line for a promotion to management.
[7]
According to Mrs. Molloy, plaintiff lost her vibrancy after the
accident. She no longer
wanted to mix with her sales colleagues. She
struggled to speak to her Xhosa clientele due to a difficulty with
the Xhosa click
sounds. She would spit whilst talking, with drool
coming out of her mouth. This caused her to be depressed and
withdrawn. As a
result she deployed the plaintiff to perform other
duties which are administrative in nature.
[8]
When the plaintiff returned to work after the incident in February
2015, she gave
the plaintiff her support. She also received the
support from the other sales ladies. The other sales ladies
attended
her customers, a gesture that earned the plaintiff high
commission for March and April 2015. Mrs. Molloy further testified
that
plaintiff was dismissed from work pursuant a disciplinary
hearing for absconding from work. Upon the plaintiff’s return
to
work in January 2016, she launched an appeal against her
dismissal, results of which she does not know.
[9]
She also testified that because she obtained an alternative
employment in February
2016, she left Joshua Doore leaving the
plaintiff behind and still in the employ of Joshua Doore.
[10]
A number of medico-legal reports compiled by medical practitioners,
who examined the plaintiff,
were placed before me by agreement. Those
are to be found in Exhibit A, B, C, D, E and F. The actuarial report
was admitted only
to the extent of the methodology used in the
calculations. The only expert witnesses which testified were,
Dr. Keely, a neurosurgeon,
Dr. de Witt, a clinical psychologist,
David Williams an Employment Consultant, two industrial
psychologists, Mr. Lani Martiny on
behalf of the plaintiff, Mr.
Gregory Shapiro on behalf of the defendant, Ms. C du Plessis a
Remuneration and Benefits Manager for
the JD Group and George William
Annandale a Human Resource Executive.
[11]
According to Dr. Keely, the plaintiff suffered a significant loss of
functions to her face and
mouth. Due to her lip being scarred and
distorted she cannot keep saliva in her mouth since it dribbles
continuously. Whatever
she eats and drinks leaks during the
process of chewing without the plaintiff being conscious due to loss
of sensation to her lower
lip. Her condition has also affected her
speech. He further describes her injury as an extensive
scarring from the left mouth
extending down to her chin for 6 cm to
the left and right along the lower jaw. Her ugly scarring
amounts to a severe disfigurement.
[12]
She also suffered a 13 cm hairline scar running vertically along the
side of her face just in
front of the ear. The disfigurement would
not be corrected despite multiple plastic surgeries. He further
described plaintiff’s
pain as a dyseasthetic pain that is a
persistent uncomfortable ‘tingling’ ache similar to an
electric shock.
He states that the origin of this pain is from
the tearing of the nerve fibres which in turn short circuit onto
adjacent nerve
fibres. It is significant to note that he opines that
this type of pain does not respond to medication and there is no
surgical
treatment therefor.
[13]
He further described the pain as permanent and will remain with the
plaintiff for the duration
of her life time. He further opined that
plaintiff is severely handicapped for seeking re-employment. He puts
the plaintiff’s
whole person impairment at 34%. Under
cross examination Dr. Keely confirmed that the plaintiff informed him
that she lost
employment as a result of her appearance, distorted
speech and being in and out of hospital.
[14]
Dr. de Witt a Clinical Psychologist testified that she interviewed
the plaintiff and in preparing
her report took into account the
medico-legal reports, RAF1 and other RAF documents as well as other
relevant hospital records.
[15]
The plaintiff informed her that she was an extremely talented and
vibrant person who after the
accident felt extremely self-conscious
about the injuries to her face and could not cope working with the
public. Plaintiff
further informed her that she has lost her
beauty and finds herself physically repulsive. She also finds
it stressful to
travel with taxis given the proximity with other
passengers and the feeling that she is being scrutinized and judged
by her appearance.
This further caused her to think that she is
being perceived as rude and an aggressive person, a character she
disavows. She is
dating a man who she believes is cheating on her but
for fear of being alone and lack of confidence that she will meet
another
man, she is tolerating his infidelity. She also
informed her that she was abusing alcohol as a coping mechanism.
[16]
Following the evidence of Dr. Keely in court, Dr. de Witt made the
following assessments:
16.1
Severe disfigurement with WPI of 34% which is a very high rating;
16.2
The plaintiff’s pain is permanent in nature;
16.3
The plaintiff has problems with her eating and with her speech, an
aspect which she finds important since
plaintiff cannot engage
properly with people as she struggles with pronunciation.
[17]
Her assessment of impairment according to the AMA guidelines, caused
her to score the plaintiff
at 48% which constitutes 20% impairment
and further scored her 10% on daily living activities. Her clinical
assessment revealed
a mental and behavioral impairment of 20% which
is regarded as a very high score. Dr. de Witt also found that the
plaintiff suffers
from Persistent Depressive Disorder (PDD), a Body
Dymorphic Disorder (BDD) with actual flaws which has no cure, and
Post Traumatic
Stress Disorder (PTSD).
[18]
She opined that the plaintiff’s prognosis is poor and it is
only her depression that can
be treated. She further opined that the
plaintiff will not be able to return to employment in which she is
required to engage directly
with fellow employees or members of the
public or an employment that requires the ability to communicate
verbally. As a result,
the plaintiff is not likely to be competitive
in the open labour market. She further concluded that for plaintiff
to return to
work or service will only exacerbate her psychiatric
condition.
[19]
Under cross-examination Dr. de Witt conceded that nowhere in her
report did she mention that
the plaintiff was dribbling. She also
conceded that she did not make a follow up with plaintiff’s
employer for an explanation
on how plaintiff was able to earn the
monies she earned after returning to work. She further stated that
plaintiff’s abscondment
as opposed to being retrenched would
make sense to her from a clinical perspective. According to her
the plaintiff would
have opted to abscond than to go through the
stressful pain of resigning or confront a disciplinary hearing, a
behavior she regards
as consistent with her clinical diagnosis.
She further stated that even if the plaintiff had absconded from work
that does
not change her clinical diagnosis.
[20]
According to David Williams, an Employment Consultant, plaintiff
completed her schooling in 2002.
Upon completing her studies she
enrolled at Edu-Options on a part time basis with the aim of
improving her grade 12 results. She
successfully completed the
mathematics and accountancy subjects. She enrolled for tertiary
training at Russel Road College on a
part time basis and was only
able to complete one year of the two year course she had enrolled
for.
[21]
He noted the plaintiff’s work as having worked as a waitress at
Fish Tales from December
2003 to December 2005. She was subsequently
transferred to another outlet where she worked as a manageress from
2005 to 2007. From
January 2008 to December 2012 she was
employed as a sales consultant at Russell Furnishers (part of the JD
Group) until her retrenchment
due to closing down of the store. In
April 2013 she rejoined the JD Group at their Joshua Doore Store as a
sales consultant/
stand-in manageress until the accident. After
her rehabilitation the plaintiff returned to work during February
2015 until
her retrenchment in January 2016.
[22]
He opined that the plaintiff had a successful career in sales and in
all probability would have
continued working in this field into the
future with a career progression as a strong possibility and would
have worked for various
employees until the normal retirement age of
65 years. He further opines that the plaintiff’s future
occupational prospects
have been severely curtailed and compromised.
They must be regarded as extremely poor going forward. According to
Mr. Williams
this is mainly due to the plaintiff’s severe
facial disfigurement and scaring, an inability to eat or speak
properly, the
effects of pain on her concentration, her psychiatric
and psychological mood disorders coupled with the depressed
employment conditions
which job seekers are exposed to across the
broad spectrum in general.
[23]
In his view plaintiff will not be competitive to do clerical work
such as a data capturer.
This is owing to her level of
experience, her physical and emotional problems compared to younger
persons with no impairments and
who are in possession of tertiary
qualifications. Under cross-examination, Mr. Williams conceded that
plaintiff was not retrenched
and that her employee was a sympathetic
employer. He also conceded that he failed to investigate the
reasons for plaintiff’s
abscondment. He also conceded
that plaintiff did not apply for any administrative jobs but only for
sales positions since
January 2016.
[24]
Mr. Martiny an industrial psychologist with a vast experience in
medico-legal matters of personal
injury claims, who has testified in
a number of High Courts and prepared over 4000 reports and
assessments, testified in this matter
using his report which was
admitted by agreement as a basis for his testimony. However,
before he testified on the body of
his report, taking advantage of
having been in court and listened to the oral evidence that was led,
he saw it prudent to correct
his report to the effect that the
plaintiff did not leave her employment at the end of 2016 but in
January/February 2016.
[25]
In addition to the collateral evidence contained in other expert
reports, he conducted two telephonic
consultations with Mrs. Molloy
(previous manager of plaintiff). According to Mr. Martiny he
has no doubt that plaintiff was
able to work as a salesperson and as
a shop manager but for the injuries she sustained. He has set
out the plaintiff’s
pre-morbid scenarios as a person who was a
prefect at school, who passed her schooling every year and obtaining
a grade 12 qualification.
She is born of parents who were
skilled and professional workers who fall on the Paterson C1/C2 level
category.
[26]
He further testified that the plaintiff’s ambitions to become
an accountant were thwarted
by lack of financial resources. His
interview with Ms. Juju, a former work colleague of plaintiff
revealed that plaintiff
was a competent salesperson prior to the
accident. Ms. Mboniswa also a former colleague reported to him
that the plaintiff
was a competent sales lady prior the accident and
both she and plaintiff attended a management course which she
(Mboniswa) completed
and she further confirmed to him that she worked
at Joshua Doore until she was retrenched. Ms. Mboniswa also
reported to
him that the plaintiff was a very intelligent person who
had a pleasant personality and in her view the plaintiff had a
managemental
potential.
[27]
Mr. Martiny expressed the plaintiff’s pre-morbid career
scenario as follows:
27.1 At
the time of the accident the plaintiff was earning R7117.58 (basic
salary with overtime and commission).
She would have received a 13
th
cheque (annual bonus). He assumes that the employer would have paid
contributions to the Alex Forbes Provident Fund to which she
belonged.
27.2
The plaintiff was intending to study part time for a tertiary
qualification the year after the accident.
That it is probable she
would have qualified by the end of 2018/2019 (4 to 5) years later and
that plaintiff would have been a
candidate for affirmative action
since she is an African female.
27.3
Plaintiff would have probably advanced in her career with gradual
annual increments from approximately when
she was retrenched from
Joshua Doore to where she would have been able to secure employment
at Paterson C1/C2 level in 2019/2020
at the age of 35-36 years.
27.4
She probably would have worked for a formal employer. In order to
consider corporate and non-corporate employment,
he suggested that
the average between the medians of the basic and full cost to
employment scales be used in the actuarial calculation.
It is likely
that with gradual increases, the plaintiff would have progressed to
Paterson C3 level at age 40 years.
27.5
She could have progressed to a supervisory/junior management role at
Paterson C4/C5 level at the age of 45
years.
27.6
An average annual increments of approximately 7% per annum would
probably have applied thereafter. He confirmed
with the JD Group that
their retirement age is 65 years.
[28]
Mr. Martiny further stated that a person does not have to carry a
qualification to be placed
on the Paterson C band but could work
their way up the bands through experience gained as well as in-house
training. It was
further his opinion that whether the plaintiff
had absconded from work or retrenched that had no bearing whatsoever
on her pre-morbid
scenario. With regards to her post-morbid career
path, he considered the impairments as set out in the admitted expert
reports.
It is his opinion that in light of all the evidence
plaintiff will remain unemployed in future.
[29]
He conceded under cross-examination that he did not investigate the
results at Edu-Options where
plaintiff re-wrote the matric
examinations. He also conceded that plaintiff had no further
qualifications post matric. He agreed
that on the Paterson C scale
you need a qualification to be a skilled worker and as a result the
plaintiff would be a semi-skilled
worker who is in the category B
band of the Paterson scale. He further conceded that his report is
incorrect where it states that
the plaintiff was retrenched. He
therefore accepts that the plaintiff was dismissed as a result of her
staying away from
work.
[30]
He also agreed that none of the experts appear to have investigated
the reason for plaintiff’s
abscondment and agreed that Dr. de
Witt speculated her reason therefor. He also did not dispute the
assertion that plaintiff stayed
away from work from 16 December 2016
to 29 December 2016. He further conceded the statement that was put
to him taken from the
unreported judgment of
Constable
v Road Accident Fund
,
[3]
that a plaintiff who elected to cease his employment, it scarcely
behoves him to now given the economic realities, complain about
the
difficulty in securing alternative employment as a perfectly logical
statement.
[31]
He further conceded that he did not mention in his report that the
plaintiff was dribbling and
spitting, neither did he proffer any
explanation for his failure therefor. He also conceded that the
plaintiff had attempted courses
which she did not complete.
That up to 2014 she had not attained any degree or diploma and she
also did not obtain the intended
qualification as a stock clerk. As a
result the only evidence the court should accept is that plaintiff
was a salesperson.
He accepts Mr. Shapiro’s view that the
average earnings as proposed by Mr. du Plessis in his report should
be used as a basis
for the actuarial calculations.
[32]
Mr. Shapiro is an industrial psychologist for 14 years and has been
involved in third party claims
and motor vehicle accident claims
since 2012 up to date. He has testified in the various high courts.
He has never been discredited
as an expert. He testified based on his
report and the addendum thereto, that the plaintiff had a significant
facial scarring.
He tried to contact Ms. Molloy in order to obtain
collateral information but failed and instead contacted Ms. Chantelle
du Plessis
as well as Mr. Balekisi of Lewis store, a similar industry
as Joshua Doore.
[33]
The information in Exhibit K, that plaintiff was employed until 4
January 2016 does not affect
his opinion and recommendation. He
agreed with Mr. Martiny that both parents of the plaintiff were in
the category C1/C2 band.
However, whilst family careers may be a
motivating factor, plaintiff had a work history from which you can
judge her future career
path. He testified that he gave two scenarios
and used the Paterson Grading System. He stated that to be in the
skilled band you
require a diploma or University degree and the
plaintiff was semi-skilled at the time of the accident. She obtained
matric in 2002,
attended a junior bookkeeping certificate that she
did not complete but completed only one year thereof.
[34]
He opined that if a person had presented with a pre-morbid
psychiatric history such as plaintiff
in this matter, it may affect
or exacerbate his post-morbid condition. He further testified
that plaintiff was not part of
the retrenched workers of Joshua
Doore. Instead he is of the view that the facts presented
in court make it unlikely
that plaintiff would have continued with
studies post the accident. He further testified that plaintiff
did not mention to
him that she could not continue with studies by
reason of finances. The plaintiff never advised him that she
applied for
other jobs except the job of a salesperson. He agrees
that plaintiff has an excellent command of the English language.
[35]
He further agrees with the observations indicated by Mr. Martiny in
his report that the plaintiff
would have been able to work as a
salesperson and as a shop manager but for her injuries.
According to Mr. Shapiro the actuaries
ought to have based their
actuarial calculations on the average actual earnings of plaintiff
and not one month’s salary after
commencing employment.
He further contends that the total cost to company contributions paid
by the employer during the absence
of plaintiff from work should be
considered as part of the past loss of earnings and not merely deduct
R66 000.00 since the plaintiff
had received her total income plus
cost to company benefits except in January 2016 as per the evidence
of Ms. Du Plessis and Mr.
Annandale.
[36]
It is further submitted by Mr. Shapiro that plaintiff’s
disability benefit ought to be
considered when past loss of earnings
is calculated and the actuary must work with the actual salary
advices not a projected figure.
He further contends that since
the plaintiff had absconded from work, and therefore not mitigating
her losses, this ought
to be considered when applying contingency
deductions to her future loss of earnings. In cross-examination
he stated that
the further information he obtained led him to change
his opinion that he expressed in his initial report and the main
reason therefor
is his discovery that plaintiff was not retrenched as
previously informed by her but had ceased her employment through
abscondment.
[37]
When he was asked if the court should ignore his entire initial
report, he stated that the only
part of the report that must be
ignored is the paragraph in which he wrote, “The writer opines
that Ms. Sidlabane would have
continued as a sales consultant
probably until the time of her retrenchment. She probably would
have been able to complete
her training for management yet such does
not guarantee placement as a Branch Manager, probably securing
another post as a sales
consultant in approximately one year.
Thereafter with further training and development reaching a branch
manager function where
her career would be expected to plateau.”
[38]
The additional information he received from plaintiff’s pay
slips is another reason that
influenced his change of opinion. He
stated that he stands by both his pre-morbid and post-morbid opinions
but qualified
by plaintiff’s cessation of work. He also
conceded that based on the evidence of Ms. Molloy, the plaintiff
would probably
have been retrenched when the store closed in April.
He further conceded that if the court accepts the evidence of
plaintiff’s
witnesses that she is unemployable into the future,
his statement about plaintiff’s red flagging and influencing
her post-morbid
scenario, would fall away.
[39]
He conceded that if the plaintiff is unemployable at the time of
losing her employment the red
flag falls away. He does not
agree that plaintiff’s resignation or retrenchment has no
bearing in her post-morbid scenario.
He opines that plaintiff
could have returned to employment of sedentary in nature because of
her residual capacity. He also
agreed under cross-examination
that you do not specifically need a diploma or degree to get on the
skilled band; however he qualified
his concession by stating that
it’s unlikely for one to be competitive without the necessary
qualifications. Whilst
conceding that the plaintiff has a
potential to advance in her career, he disagrees that she would have
attained the level of Regional
Manager.
[40]
He agreed notwithstanding the defendant’s pleadings to the
contrary, that if Dr. de Witt’s
evidence is accepted, it
therefore means the plaintiff would have suffered a past and future
loss of earnings. He further
confirmed his opinion that
plaintiff has suffered future loss of income.
[41]
Ms. du Plessis testified that as a Group Remuneration Manager of JD
Group she sees to the payments
of employees as well as their
benefits. Her evidence was to a large extent focused in
explaining Exhibit H which contained
the pay slips of the plaintiff
from April 2014 to February 2016, as well as the salary and benefits
received over the same period.
She further testified that she
did not come across any record in which the plaintiff lodged an
appeal against her dismissal.
Neither did she see a ‘red
alert’ against plaintiff’s name.
[42]
I find most of the questions she faced under cross-examination to
have been irrelevant since
they were specifically focused on her
personal education, development and career growth. She stated
that she had no dealings
with the plaintiff except to deal with her
file. She also stated that she cannot dispute that plaintiff
lodged an appeal
albeit not in the records at her disposal.
[43]
Mr. George Willem Annandale, a human relations executive at the
Joshua Doore Group testified
on behalf of the defendant and stated
that in 2015 he was the human resources executive of Joshua Doore
Group and responsible for
human resource functions, employment and
termination of employment contracts. The plaintiff was a
salesperson since 1 August
2013. He explains the disciplinary
procedure of his company pursuant an abscondment by an employee.
He further explained
that if a person is aggrieved by an outcome of a
disciplinary hearing, such a person may lodge an appeal within seven
(7) days
by completing the necessary form which must be addressed to
the immediate supervisor. He stated that there are no appeal
records in respect of the plaintiff. He also testified that an
employee whose employment has been terminated completes a form
to
withdraw retirement benefits from the Fund. He is of the view
that had the plaintiff been at their Govan Mbeki branch
during
February 2016, she would probably have been affected by the
retrenchment that took place.
[44]
He further testified that the only requirement to be a branch manager
is a matric certificate
but that position depends on the availability
of vacancies and willingness of an employee to relocate to
elsewhere. He further
explained the remuneration levels of
managers and regional managers according to their responsibilities
and size of their shops.
He also stated that African females
are in an advantage for affirmative action as they carry the most
BBBEE points. He cannot
dispute that the plaintiff lodged an
appeal against her dismissal neither can he say she was red-flagged.
He stated further
that, had the plaintiff presented the company with
her disability information she would have received her January 2015
payment
which she did not receive and further would have qualified
for a 75% disability benefit until retrenched or death had she not
absconded.
[45]
There can hardly be any dispute on the injuries sustained by the
plaintiff as a result of the
accident she was involved in. The
evidence of Dr. Keely is unassailable as far as the extent and import
of these injuries
on the plaintiff. The evidence that the
plaintiff is dribbling and spitting when she talks is
uncontroverted. As well
as his evidence that when she eats and
drinks, contents thereof would leak out without her being conscious.
Most significantly
is what he stated about plaintiff’s
inability to seek re-employment since she is severely handicapped.
[46]
It is not in dispute that prior to the accident the plaintiff was a
vibrant talented person who
is acclaimed by her supervisor and fellow
workers as someone who was extremely talented and intelligent with a
potential to become
a manager. However, the deflowering of her
face due to her injuries, produced a different person who is
distressed, who would
no longer cope in being in the presence of
people and instead found herself physically repulsive and preferred
to be isolated from
other people. Dr. de Witt explained that
due to the effect of her injuries her chances of employability are
affected.
Plaintiff suffers from a body dysmorphic disorder
which is an obsessive compulsive disorder which has resulted in
plaintiff being
pre-occupied with her lip. This disorder is
associated with high levels of anxiety, social avoidance, a depressed
mood, neuroticism,
perfectionism as well as low extroversion and low
esteem.
[47]
It is regrettable that the plaintiff was deliberate in lying to the
experts about her dismissal
from work. She chose not to be
candid to mention the reason for her dismissal and as a result she
misled them to accept her
story that she was retrenched whereas that
was not true. As a result Dr. Keely, Dr. de Witt, Mr. Martiny
and Mr. Shapiro
had to amend their reports to reflect the true
position that she was not dismissed from work but had been dismissed
following a
disciplinary hearing against her.
[48]
Dr. de Witt tried to explain for her abscondment without a proper
investigation and I find her
view in this regard speculative. I
tend to agree with the submission by counsel for the defendant that
the plaintiff ceased
her employment when, she absconded in December
2015.
[49]
Had the plaintiff been called to testify, that would have been very
helpful in establishing the
reason for concealing and avoiding to be
forthright about her dismissal. Be that as it may, I am only
left to rely on the
information before me and the value thereof.
[50]
This leads me to deal with the evidence of the two individual
psychologists, Mr. Martiny on behalf
of the plaintiff and Mr. Shapiro
on behalf of the defendant. At this juncture I find it
necessary to reiterate the legal
position pertaining to experts.
It is trite that an expert witness is required to assist the court
and not to usurp the function
of the court. In
Glenn
March BEE v Road Accident Fund
[4]
the court reiterated what was said in
Road
Accident Fund Appeal Tribunal and Others v Gouws & Another
[5]
where the following was said “courts are not bound by the view
of any expert. They make the ultimate decision on issues
which
experts provide an opinion”. (See also
Michael
and Another v Linksield Park Clinic (Pty) Ltd & Another
.
[6]
)
In Glenn March BEE
[7]
the court
went further and said “the facts on which the expert witness
expresses an opinion must be capable of being reconciled
with all
other evidence in the case. For an opinion to be underpined by
proper hearing, it must be based on correct facts.
Incorrect
facts militate against proper reasoning and the correct analysis of
the facts is favourable for proper reasoning, failing
which the court
will not be able to properly assess the agency of that opinion.
An expert opinion which lacks proper reasoning
is not helpful to the
court.” (my emphasis).
[51]
In this matter the court did not have the advantage of a joint report
from the two industrial
psychologists. Their opinions differed
remarkably on whether the plaintiff did suffer a past loss of
earnings and will suffer
future loss of earnings. Most of the
critical evidence Mr. Martiny relied upon was from the plaintiff
herself and some of
which was not verified. He did not confirm
plaintiff’s previous academic performance in order to formulate
a reasoned
opinion that she would have indeed pursued or achieved her
studies in 2015. This also goes for his failure to verify
whether
the plaintiff had ultimately passed the subjects she wrote at
Edu-Options.
[52]
Mr. Martiny remained resolute in his opinion that whether the
plaintiff had absconded or was
retrenched had no bearing on her
pre-morbid scenario. However, this is at the backdrop that
plaintiff, after rehabilitation
returned to her job and performed
relatively well in her duties with no noticeable reduction in her
salary and commission.
[53]
Mr. Shapiro on the other hand contends that plaintiff’s
abscondment means she has been
red flagged by the JD Group and will
no longer be eligible for employment. This statement is made
notwithstanding that none
of the witnesses from JD Group could state
with certainty whether the plaintiff was red flagged or not.
Mr. Shapiro has however,
opined that the plaintiff will secure work
intermittently with a sympathetic employer in the non-corporate
section doing basic
administration work as a data capturer.
That plaintiff will no longer progress in her career and will instead
face long periods
of unemployment. He concluded by saying
plaintiff should be compensated for her condition. I also
cannot find fault
in the opinion expressed by Mr. Shapiro that
plaintiff’s future employability has been compromised and at
best retains a
small residual capacity in a basic level as a data
capturer or similar position. His view in this regard resonates
with the
opinion expressed by Ms. Van Zyl, the occupational
therapist, that plaintiff had a residual work capacity in a secondary
position.
Mr. William an employment consultant was also not in
a position to jettison the opinion of Ms. Van Zyl in this regard.
Mr.
Shapiro’s submission that plaintiff’s actual earnings
ought to be considered from the payslips that were made available
is
a point that was in my view correctly made.
[54]
Much as Mr. Shapiro received a level of criticism from the defence
counsel to be someone who
is biased against the plaintiff, I find
this criticism as unduly harsh and unwarranted. In my view he
has met the requirement
enunciated in the case of
Michael
& Another v Linksfield Park Clinic (Pty) Ltd
[8]
that what is required in the evaluation of an expert’s evidence
is whether and to what extent is the opinion advanced founded
on
logical reasoning. He was willing to concede when an issue fell
outside of his expertise. This is demonstrated when
he conceded
that if the medical opinion and evidence points to the fact that
plaintiff is unemployable, then his statement regarding
her having
some residual working ability is incorrect. He went to the
extent of saying if the court accepts Dr. de Witt’s
evidence
regarding the abscondonment of plaintiff which Dr. de Witt found to
be consistent with her diagnosis, he was prepared
to concede that the
plaintiff’s resignation or retrenchment will be immaterial to
her pre-morbid career.
[55]
Both Mr. Martiny and Mr. Shapiro have had shortcomings in the
verification of the necessary information
pertaining to the
plaintiff. They have both based their opinions on the
information that was at their disposal. It
is on those bases
that I find the criticism on Mr. Shapiro to be undue.
[56]
Notwithstanding the brave fight put up by counsel for the defence to
categorize this case in
the scenario that obtained in the case of
Constable
v Road Accident Fund
[9]
where Chetty J made the following comment:
“
The
plaintiff elected to cease her employment and it scarcely behoves him
to now, given the economic realities, to complain about
the
difficulty in securing alternative work.”
I
have to disagree with that submission for the following reason.
In that matter the regressive work period of plaintiff was
of a short
duration and thereafter he continued to perform his tasks optimally
and the standard of his work was such that, upon
his supervisor being
apprised of that he opted to avail himself of the voluntary
retrenchment package, he implored the plaintiff
to reconsider his
decision.
[57]
However, in this matter, I am unable to ignore the evidence proferred
by Ms. Molloy that post
accident the plaintiff could not speak to her
customers, she struggled to communicate in isiXhosa owing to her
difficulty with
the click sound. As a consequence of her
spitting and drooling whilst talking, she was depressed and became
withdrawn.
As a result she had to allocate to plaintiff other
duties which were administrative in nature removing her from the rest
of other
workers.
[58]
In this regard there is no appraisal of the plaintiff performing her
tasks without any hindrance
or that she performed her work
optimally. Instead the evidence suggests that she had to
receive assistance from her colleagues
and her supervisor.
[59]
A careful interrogation of all the body of evidence persuaded me to
conclude that the plaintiff
has established that due to her
impairment she has suffered future loss of income and loss of earning
capacity. It therefore
follows that the conservative scenario
of Mr. Martiny is the most preferred of the two industrial
psychologists.
[60]
Any claim for future loss of income requires a comparison of what a
claimant would have earned
had the accident not occurred with what
she is likely to earn thereafter. The loss is the difference
between the monetary
value of the earning capacity immediately prior
to the injury and immediately thereafter. This can never be a
matter of exact
mathematical calculation and is, of its nature a
highly speculative inquiry. All the court can do is make an
estimation,
which is often a very rough estimate, of the present
value of the loss (see
Road
Accident Fund v Kerridge
[10]
).
[61]
The approach to adjudicating loss of earnings is stated aptly in the
off-quoted case of
Southern
Insurance Association v Bailey N.O
[11]
where Nicholas JA stated as follows:
“…
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the court can do is to make an estimate,
which is often a very rough estimate, of the present value of the
loss. It has open to it two possible approaches. On
is
for the judge to make a round estimate of an amount which seems to
him to be fair and reasonable. This is entirely a matter
of
guesswork, a blind plunge into the unknown. The other is to try
to make an assessment, by way of mathematical calculations,
on the
basis of assumption resting on the evidence. The validity of
this approach depends of course upon the soundness of
the
assumptions, and these may vary from the strongly probable to the
speculative. It is manifest that either approach involves
guesswork to a greater or lesser extent. But the court cannot
for this reason adopt a non-possumus attitude and make no award…”
[62]
The conservative scenario as proposed by Mr. Martiny assumes that the
plaintiff would have completed
a tertiary qualification by the end of
2018/2019. The proposition by Mr. Martiny that plaintiff would
have advanced in her
career to regional manager is too optimistic in
my view. No account has been taken of the fact that plaintiff
had a four
year old child and how that would have impacted on her
ambition to study further.
[63]
At the time of writing my judgment the court was of the view in light
of the incontrovertible
evidence that the actuarial figures arrived
at failed to take into account the benefits earned by plaintiff
post-accident more
particularly costs to company benefits as well as
information relating to average earnings that only emerged during the
trial.
This caused me to request both counsel for plaintiff and
defendant to favour the court with supplementary heads of argument in
respect of those aspects only. They both submitted sets of
detailed supplementary heads of argument for which I am indebted
to
them.
[64]
The request for supplementary heads of argument availed the plaintiff
with an opportunity to
correct a concession made in his earlier
submissions which was according to plaintiff’s counsel made in
contradiction to
the actuarial report that was admitted into evidence
as Exhibit G.
[65]
The erroneous concession made was that the court should deduct from
the claim for past loss of
earnings an amount of R66 233.35 as
money that was received by the plaintiff from the time of the
accident in September 2014
until February 2016. The plaintiff
now contends that according to Exhibit G (actuarial report), the
plaintiff does not claim
for loss of earnings for the period
September 2014 to February 2016. Therefore no amount of income
received during the aforesaid
period stands to be deducted as no loss
of earnings have been claimed for such period. Consequently any
amount earned being
cost to company from post the accident is not
deductible for the reason aforementioned.
[66]
According to the plaintiff’s counsel this correction settles
the matter that was brought
to bear by the plaintiff’s payslips
as per Exhibit H for the period September 2014 to February 2016.
The upshot hereof
is that plaintiff’s claim for past loss of
income/earning capacity is calculated by her actuaries from 1 January
2017 though
she may have lost income from September 2014 to end of
December 2016.
[67]
The defendant has not contested the submission above by the plaintiff
and has effectively acquiesced
to the proposition that no deduction
is warranted for the earnings covering the period from September 2014
to 31 December 2016.
Given that the calculations of the actuary
in Exhibit G does not include a claim for the plaintiff’s loss
of earnings for
the period September 2014 to February 2016, I am of
the view that the correction is justified and ought to be allowed.
[68]
It is a conceded fact that the defendant chose not to place before
the court evidence of an actuary.
The court therefore is left
only to consider the actuarial report that has been submitted by the
plaintiff. In the light
of the correction made by the plaintiff
to their earlier submissions, I am inclined to consider the
calculations of the actuaries
of the plaintiff.
[69]
In summary, it is proven facts that post the accident on 31 August
2014 the plaintiff returned
to work at JD Group in February 2015.
Due to her abscondment from work in December 2016, she was summarily
dismissed after
a disciplinary inquiry which was held on 4 January
2016. According to available facts the dismissal was not
challenged by
way of appeal since there is no proof thereof.
[70]
Plaintiff’s employment was officially terminated on 14 January
2016. Subsequently
the plaintiff completed and submitted a
withdrawal of her pension benefits, a clear indication that she was
accepting the fact
that her employment with JD Group had terminated.
[71]
According to Dr. de Witt plaintiff sustained a severe disfigurement
and as a consequence of her
injuries she suffered a mental and
behavioral impairment which has a high score of 20%. Dr. de
Witt opined that the plaintiff
will not be able to return to
employment that requires the ability to communicate verbally due to
her speech impairment.
Her employment opportunities are
severely limited and is therefore not likely to be competitive in the
open labour market.
[72]
At the time of the trial the plaintiff was unemployed. Whilst
Dr. de Witt’s contention
that the abscondment of plaintiff from
work was as a result of the accident is speculative and was not
investigated thoroughly,
I nevertheless find her opinion probable.
[73]
I turn now to deal with the question whether the costs of two counsel
should be awarded.
Plaintiff’s counsel referred me to the
case of Koekemoer v
Parity
Insurance Co. Ltd
[12]
where Coleman J crystalised some of the relevant considerations in an
enquiry of this nature to be the following:
(a)
the volume of evidence (oral or written)
dealt with by counsel or which he or they could reasonably have
expected to be called upon
to deal with;
(b)
the complexity of the facts or the
law relevant to the case;
(c)
the presence or absence of scientific or
technical problems; and their difficulty if they were present;
(d)
any difficulties or obscurities on the
relevant legal principles or in their application to the facts;
(e)
the importance of the matter in issue, in
so far as that importance may have added to the burden or
responsibility undertaken by
counsel.
[74]
It is without a doubt that this matter generated a lot of evidence
both oral and written.
This is so, given the number of expert
reports that were handed in and the number of expert witnesses as
well as lay witnesses
that testified during the trial. The
complexity thereof is evident in the stark differing positions of the
experts, particularly
the industrial psychologist. It therefore
follows that the issues of law that were challenging and the
technical aspects that characterized
the litigation of this matter
raised difficult legal aspects in their application to the facts.
It is undoubtedly so, that
the matter has important consequences for
the plaintiff. In light of the above I am inclined to award the
costs of two counsel
as requested by the plaintiff.
[75]
In the result I issue the following order:
1.
The defendant is to pay to the plaintiff
the sum of R221 237.00 in respect of loss of income/earning capacity.
2.
The defendant is to pay to the plaintiff
the sum of R6 196 390.00 in respect of plaintiff’s
claim for future loss
of income/earning capacity.
3.
Payment of the aforesaid amounts shall be
made within fourteen (14) days from date of this order directly to
plaintiff’s attorneys
of record, Roelofse Meyer Inc., trust
account, details of which are as follows:
Name
:
Roelofse
Meyer Inc.
Bank
:
Standard
Bank
Branch
:
Port
Elizabeth
Account
N. :
080….
4.
The defendant shall pay plaintiff interest
on the aforesaid amounts above at the rate of 10.25% per annum
calculated from a date
of fourteen (14) days after this order to date
of payment.
5.
The defendant is to pay to plaintiff’s
costs of suit, as taxed or agreed, such costs are to include:
5.1
The costs of the reports and supplementary reports, if any, of:
5.1.1
Dr. F Rank;
5.1.2
Dr. R J Keeley;
5.1.3
Dr. D Solomons;
5.1.4
Ms. A van Zyl;
5.1.5
Dr. E de Witt;
5.1.6
Dr. A Kassan
5.1.7
Mr. D Williams
5.1.8
Mr. L Martiny
5.1.9
Algorithm Consultants and Actuaries.
5.2
The reasonable qualifying, reservation fees and expenses; if any, of:
5.2.1
Dr. F Rank;
5.2.2
Dr. R J Keeley;
5.2.3
Dr. D Solomons;
5.2.4
Ms. A van Zyl;
5.2.5
Dr. E de Witt
5.2.6
Dr. A Kassan
5.2.7
Mr. D Williams
5.2.8
Mr. L Martiny
5.2.9
Algorithm Consultants and Actuaries.
5.3
The attendance and testifying fees, of:
5.3.1
Dr. R J Keeley;
5.3.2
Dr. E De Wit;
5.3.3
Mr. D Williams;
5.3.4
Mr. L Martiny.
5.4
The reasonable costs of consultations of plaintiff’s counsel
and plaintiff’s
attorneys with plaintiff’s experts and
lay witnesses in the preparation for the trial.
5.5
The costs involved in attending a pre-trial inspection in loco with
counsel where so employed.
5.6
The costs of photographs.
5.7
The cost of the employment of two counsel where so employed.
6.
The defendant is to pay interest on
plaintiff’s said taxed or agreed costs at the rate of 10.25%
per annum from a date fourteen
(14) days after allocator or agreed to
date of payment.
________________________
V M NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Counsel for the plaintiff
: Mr.
Frost & Ms Westerdale
Instructed
by
: Roelofse
Meyer Attorneys
Port
Elizabeth
Counsel for the
defendant
: Ms.
Veldsman
Instructed
by
: BLC Attorneys
Port
Elizabeth
Date
heard
: 23 –
25, 29 – 31 October and 1 – 2 November 2018
Date
judgment delivered
:
26
March 2019
[1]
Index
in respect of Minutes, Page 6
[2]
Road
Accident Fund Act, No 56 of 1996
[3]
Case no. 306/2016 ECLD (delivered on 28 June 2018)
[4]
(093/2017) [20180 SASCA 52 (29 March 2018)
[5]
[2017] SASCA 188,
[2018] 1 All SA 701
(SCA) at para 33
[6]
[2002] 1 All SA 384
(A) at para 34
[7]
supra
[8]
2001 (3) SA 1188 (SCA)
[9]
Supra
[10]
1024/2017)
[2018] ZASCA 151
(1 November 2018)
[11]
1984 (1) SA 98
at paras 113F – 114E
[12]
1964
(4) 138 (T) at 144 H – 145 A