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[2019] ZAECPEHC 51
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Gatya v Member of the Executive Council, Department of Education, Eastern Cape and Another (3671/2014) [2019] ZAECPEHC 51 (29 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 3671/2014
Date
heard: 20 – 22 May 2019
Date
delivered: 29 August 2019
NOT
REPORTABLE
In
the matter between:
XOLELWA
GATYA
Plaintiff
And
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF EDUCATION, EASTERN CAPE
First
Defendant
MISS
MADIKANE
Second Defendant
JUDGMENT
Goosen
J:
[1]
On 31 July 2013 the plaintiff suffered a bi-lateral ankle fracture
when
she jumped from the first floor of a school building. At the
time she was 15 years of age and a learner in Grade 10 at the school.
The circumstances giving rise to the incident resulted in action
being instituted against the defendant for recovery of damages
suffered by the plaintiff. On 30 May 2016, by agreement between the
parties, the issue of liability was settled on the basis that
the
defendant is liable to compensate the plaintiff for 80% of such
damages she is able to prove.
[2]
The damages sought by plaintiff are claimed under several heads viz.
general
damages; costs of future medical treatment; and loss of
earning capacity. Apart from the plaintiff’s own
testimony
she presented the evidence of several expert witnesses.
These included Dr
Oelofse
, who testified in respect of the
orthopaedic injuries and future medical treatment required; Ms
Ansie
van Zyl
, an occupational therapist, who testified about the
plaintiff's physical work and other capabilities; Mr
Dennis
Stigant
, a clinical psychologist, who testified to the
psychological sequelae arising from the injuries suffered and Dr
Peter Whitehead
, an industrial psychologist, who dealt with
plaintiff’s employability and projected earnings. The plaintiff
also presented
the evidence of Mr
Loots
, an actuary, who
calculated the losses based on the evidence presented. The defendant
presented only the evidence of Dr
Thomas
, an orthopaedic
surgeon.
[3]
It is common cause that the plaintiff suffered bi-lateral fractures
of
the ankles and that such injury is regarded as serious. She was
treated conservatively with Plaster of Paris. According to the
plaintiff she was in plaster casts for approximately three months.
[4]
At the time of the incident the plaintiff was in Grade 10. Following
treatment
she returned to school and successfully completed the
grade. She testified, however, that prior to the injury she was
active in
sport, playing netball for the Flamingos. Following the
injury she was unable to participate in sporting activities and was
accordingly
not physically active. She gained weight as a result. The
plaintiff proceeded to Grade 11 in 2014 which she passed and
thereafter
to Grade 12 in 2015. She did not pass mathematics, science
and economics and accordingly did not pass her matric. In 2016 she
repeated
the examinations in the three subjects, but only passed
economics. She accordingly does not have a matric certificate.
[5]
As indicated, the plaintiff claims damages under several headings.
The
claims for future medical treatment and general damages were
largely uncontested, as will be demonstrated hereunder. The principal
focus of the case concerned the plaintiff’s claim for loss of
earning capacity. Her claim was premised upon her orthopaedic
injuries and sequelae and upon psychological fall-out, in the form of
a post-traumatic stress disorder (PTSD), consequent upon
the
injuries. It was the plaintiff’s case that her failure to
obtain a Grade 12 pass was causally associated with the incident
inasmuch as she suffers from PTSD as a result thereof
and
that
said PTSD compromised her ability to obtain matric. She accordingly
claimed a post-morbid loss of earning capacity.
[6]
It is appropriate to begin with the claim for future medical care and
treatment since there was no dispute that such treatment would be
required.
[7]
Dr
Oelofse
examined the plaintiff on three occasions, viz.
2014, 2017 and in 2019. He prepared three reports which were
submitted in evidence.
In his assessment in April 2019, shortly
before trial, Dr
Oelofse
noted some deterioration in the
condition of the plaintiff's ankle. In this regard the plaintiff
complained of functional impairment
in that she is now unable to run
or to squat due to stiffness in the ankles and plain. On examination
he found that her muscular
strength was normal. He noted, however, a
limited range of movement on the left ankle resulting in a 50% loss
or range. On the
right ankle he noted a 20% loss of range. According
to him the radiographs indicated some signs of deterioration.
[8]
In his opinion, given that the injury involved high impact which
would
usually result in cartilage damage, it is likely that the
plaintiff will experience deterioration of the ankle joints over
time.
In his view, the right ankle would require conservative
treatment in the form of medication and physiotherapy. He, however,
agreed
with the opinion expressed by Dr
Thomas
that the right
ankle may require a ligament reconstruction in the future.
[9]
In regard to future treatment of the left ankle Dr
Oelofse
stated that surgery would be required. This would take the form of
debridement of the joint by arthroscopy. If that did not resolve
the
problems it may be necessary to provide for a total replacement
alternatively an arthrodesis or fixing of the joint. Provision
will
need to be made for a revision of these procedures given that the
plaintiff is still at a young age.
[10]
It was Dr
Oelofse’
s evidence that the probability of the
plaintiff requiring arthroscopy and debridement was between 30% and
50%. Such debridement
would in all probability need to be repeated.
For illustrative purposes the plaintiff utilized 40% as the
probability and calculated
the total based upon the current cost of
the procedure at R60 000.00, as being R48 000.00.
[11]
It was Dr
Oelofse’s
opinion that there was only a 20%
chance that the plaintiff would require arthrodesis. Both Dr
Oelofse
and Dr
Thomas
expressed the view that an arthrodesis was to be
preferred over an ankle replacement. The plaintiff accordingly
calculated the
provision for such treatment as being R20 000.00.
According to Dr
Oelofse
provision for revision thereof should
be made. He expressed the view that there was a 30% chance that
revisions will be required.
[12]
Based on this evidence the plaintiff submitted that the quantum of
the claim for orthopaedic
treatment was R148 000.00. This figure
was very close to the calculation based upon Dr
Thomas’
evidence, albeit that Dr
Thomas
envisaged different treatment
for the plaintiff’s orthopaedic injuries. For instance, Dr
Thomas
was of the view that the left ankle could be managed
more conservatively whereas the right ankle may require a ligament
reconstruction.
According to Dr
Thomas’
testimony the
total costs for his envisaged future treatment regime would be in the
order of R149 200.00.
[13]
It is unnecessary to make any findings as to the future treatment
that the plaintiff is
likely to require. That is so because
plaintiff’s counsel, reasonably and fairly, approached the
calculation on the
basis of the aggregate costs as provided by the
respective experts, being R148 600.00, and provided for 80%
thereof in accordance
with the previously agreed apportionment. The
defendant conceded the resulting claim of R118 800.00.
[14]
It was the evidence of Mr
Stigant
that the plaintiff suffers
from a post-traumatic stress disorder arising from the incident
giving rise to her physical injuries.
He conducted an assessment of
the plaintiff pursuant to a need identified by Ms
Ansie van Zyl
,
the occupational therapist.
[15]
Mr
Stigant
conducted his clinical evaluations in July 2017, 4
years after the incident. He conducted the Minnesota Multiphasic
Personality
Inventory-2 (MMPI2) test to assess her mental state and
personality functioning. Although she did not present as being in
psychological
distress, her elevated scores on the clinical
assessment scales indicated that she suffers from a post-traumatic
stress disorder.
[16]
I shall return hereunder to consideration of the evidence of Mr
Stigant
insofar as it concerns the assessment of the
plaintiff’s claim for general damages and more particularly in
relation to the
claim for loss of earning capacity.
[17]
Insofar as the claim for future medical treatment is concerned it
suffices to record that
Mr
Stigant’s
diagnosis and its
causal relationship to the incident was not disputed. It was Mr
Stigant’s
evidence that the plaintiff will require
psychotherapy in order to enable her to deal with the effects of
post-traumatic stress.
The defendant conceded this and, furthermore,
accepted Mr
Wim Loots’
quantification of the claim in
the amount of R49 400.00. Eighty percent of said claim, to which
the defendant agreed, is an
amount of R39 520.00.
[18]
A final aspect concerning the plaintiff’s claim for future
medical treatment and
care concerns a claim for certain specialised
equipment and domestic assistance. Plaintiff based this claim upon
the evidence of
Ms
Ansie van Zyl
.
[19]
Ms
van Zyl
consulted the plaintiff on 16 October 2016, some 3
years after the incident. She assessed the plaintiff's physical
strength and
movement functions. She noted stiffness in both ankles.
She found that the plaintiff walked functionally and could jog,
albeit
a short distance. Plaintiff was also able to manage stairs.
Walking on uneven terrain, however, presented some difficulty.
According
to Ms
van Zyl
the plaintiff was capable of managing
a job with light physical demands. This type of work would need to be
sedentary in nature.
[20]
She again consulted the plaintiff in April 2019. In her updated
report she records that
the plaintiff presented with a limp. Ms
van
Zyl
reported that the plaintiff is limited in tasks requiring
prolonged standing and walking. She is able to manage basic domestic
tasks although she requires rest between tasks. In respect of her
working capabilities Ms
van Zyl
expressed the opinion that,
based upon the assessment of her physical mobility, strength and
repetitive task performance, the plaintiff
demonstrated a residual
capacity to manage a job with light physical demands or a sedentary
position.
[21]
In regard to special and adaptive equipment Ms
van Zyl
recommended that provision be made for a shower/bath chair after
surgery; a trolley for shopping, a bucket on wheels and long-handled
broom. In regard to assistance it was recommended that the plaintiff
be provided with a domestic worker and gardener 1 day per
week when
she lives alone. The capitalized value for specialized equipment and
assistance was calculated by the actuary to be R315 199.00.
The
calculation was not challenged. It appears from exhibit “J”
that the capitalized value of the provision for domestic
assistance
is given as R315 199.00 and that the total does not include the
capitalized values of the assistive devices. The
effect of this is
that the total capitalized value of the assistive devices, viz. R8
017.00 must be added to the amount of R315 199
in order to
obtain the total present-day value.
[22]
In his evidence Mr
Loots
stated that he applied a discount
rate of CPI plus 1% to determine the value of the specialised
equipment. He did so because such
equipment is readily available.
Accordingly a normal price inflation factor ought to be applied. He
indicated that the figure for
the domestic assistants utilized a
similar factor.
[23]
In respect of both components of the claim it was his evidence that
general contingencies
can apply since the expenditure may be subject
to a wide variety of future contingencies. He suggested between 5%
and 10%. It appears
from the table setting out the calculation that
he did not apply such contingency factor.
[24]
The value of the claim having regard to the apportionment applied to
the adjusted total
(as set out above) amounts to R258 572. 80.
In a draft order submitted by plaintiff’s counsel this figure
is presented.
It appears, however, that the error in exhibit “J”
(where the total does not include the costs of assistive devices)
is
repeated in the plaintiff’s heads of argument. Ms
van Zyl’s
evidence regarding the need for certain assistive devices was not
seriously challenged. Her opinion, based upon her assessment
of the
plaintiff, was that these would be required. I accept her evidence in
this regard.
[25]
The same is not true of the recommendation as to the requirement for
domestic assistance.
Ms
van Zyl
noted that the plaintiff is in
fact able to perform the basic domestic tasks. She qualified her
opinion by stating that such assistance
may only be required if the
plaintiff lives alone.
[26]
The plaintiff confirmed that she presently manages domestic and
similar tasks. She is living
with her parents in her parental home.
She hopes to marry in the future.
[27]
In my view, the evidence does not support a finding that the
plaintiff will require domestic
assistance in the future. The onus is
upon the plaintiff to establish, on a balance of probabilities, that
such assistance is now
or will in future be required. Apart from an
expressed opinion that it may be required no factual basis was laid
upon which the
probabilities could properly be determined. In the
circumstances the costs of domestic assistance must be disallowed.
[28]
I turn now to deal briefly with the plaintiff’s claim for
general damages. The plaintiff
testified that prior to the incident
giving rise to the injuries she was an active person who participated
in sporting activities.
She played netball. She enjoyed school and
led a normal life of socialising. As a result of the injuries she was
(and is) no longer
able to play netball. She does socialise although
she cannot enjoy activities such as dancing. She experiences pain,
particularly
in cold weather. She is unable to stand for prolonged
periods or walk long distances. Since the injury she had gained
weight. The
medical reports suggest she is obese, although she did
not present as such at trial. Her evidence regarding her physical
symptoms
is supported by the clinical assessment, although the extent
of her current symptomatic pain may not correlate with the opinion
expressed by Dr
Thomas
.
[29]
As already indicated she has been diagnosed with a post-traumatic
stress disorder. The
defendant did not dispute that she is suffering
from such disorder. Nor was it disputed that the impact of the
disorder has left
her withdrawn, self-doubting, insecure and anxious.
According to Mr
Stigant
she suffers from low self-esteem.
[30]
Counsel for the plaintiff submitted that the physical injuries
suffered were of a serious
nature. These, together with the
psychological trauma with resultant development of PTSD have resulted
in a significant loss of
amenities. It was submitted that an award of
general damages in the amount of R360 000.00 would reasonably
compensate the
plaintiff. In support of the estimate of damages the
plaintiff relied on two, apparently comparable, awards.
[31]
In the
matter of
Rieder
v Road Accident Fund
[1]
Eksteen
J awarded a 43-year-old qualified artisan the sum of R300 000.00
for general damages (R458 000.00 at current value).
The matter
is, however, distinguishable. In that matter the plaintiff suffered a
right-side tibial plate fracture, a fracture of
the right ankle, an
injury to the peroneal nerve with associated soft tissue injuries and
damage to the muscle group to the lower
legs. These injuries are, in
my view, significantly more serious than those suffered by the
plaintiff in this matter. The case
summary of the
Rieder
matter records the following:
“
The consequences
of these injuries were devastating to the plaintiff and deprived him
entirely of the enjoyments of various sporting
activities which
formed a major part of life. Due to the injuries the plaintiff’s
employment was terminated and he has been
unable to return to work
since the accident whilst he was previously a highly motivated,
dedicated and skilled worker employed
in a technically skilled
capacity where there is a well-documented skills shortage in South
Africa. Plaintiff is now able to cope
with even a sedentary job due
to his emotional and cognitive fall-outs as well as low mental
endurance capacity and will never
become a competitive employee on
the open labour market. On an emotional level he has greatly reduced
motivation, on-going moods
of depression, increased irritability and
angry outbursts resulting in family members evading him and the loss
of the entire circle
of family friends. His personality also changed
significantly.”
[32]
The other
matter to which reference was made was
Coetzee
v Union and National Insurance Co Ltd
[2]
.
In that matter the trial court awarded an amount of R6200.00
(R1200.00 for pain and suffering and R5000.00 for loss of amenities)
as general damages to a 20-year-old student a fractured ankle and
dislocated shoulder. He underwent a reconstruction operation
with
arthrodesis of the ankle. This was partially successful and as a
result further operations would have to be undertaken in
the future.
The present value of the award is R482 000.00.
[33]
The trial
court’s award of damages for future loss of earnings (an amount
of R9000 .00) and for loss of amenities (R5000.00)
went on appeal. In
Union
and National Insurance Co Ltd v Coetzee
[3]
the then Appellate Division noted that the award for general damages
was undoubtedly high but declined to reduce the award because
it
found that there was no misdirection or exceptional circumstances
which warranted interference with the award. For reasons not
germane
to the present matter it reduced the award for future loss of
earnings.
[34]
Both
Rieder
and
Coetzee
would constitute awards not justified in the present circumstances.
No doubt for this reason plaintiff’s counsel pressed
for a
lower award. The amount was accepted by counsel for the defendant to
be reasonable and, defendant accordingly conceded the
claim. I too am
satisfied that it represents a fair and reasonable estimate of the
damages for pain and suffering and loss of amenities
of life. The
amount accords more closely with that made by Dambuza J (as she then
was) in
Alla
v Road Accident Fund
[4]
.
In that matter a 41-year-old Correctional Officer suffered a fracture
of the ankle with displacement of the tibial-fibula joint
and soft
tissue injury. The case note records the following:
“
Pain still
experienced in ankle resulting in difficulty in walking long
distances, standing for lengthy periods of time, ascending
or
descending stairs, walking on uneven surfaces, carrying heavy objects
and getting in or out of a vehicle. Unable to run or walk
fast or
play active sports. In the future there was a risk of degenerative
arthritis in which case an ankle fusion or ankle replacement
procedure would be necessary.”
[35]
An award of R200 000.00 was made. The present value is
R321 000.00. In
the result an award of R360 000.00
for general damages is reasonable.
[36]
This brings me to the claim for loss of earning capacity. Although
the claim formed the
primary focus of the trial, its determination
rests upon a fairly narrow dispute. That issue concerned the question
as to the causal
nexus between the injury, together with its
attendant psychological fall-out, and the plaintiff’s failure
to secure a matric
pass. It was the plaintiff’s case that but
for the injury, both physical and psychological, she would have
obtained a matric
pass and thereafter have pursued a career either as
a police officer or traffic officer. In consequence of the
psychological injury
she has been unable to procure a matric, thus
precluding a range of possible earning opportunities including that
of police officer
or traffic officer. Her physical injuries, in any
event, render her unsuitable for anything other than light sedentary
work.
[37]
It was the plaintiff’s evidence that she was progressing well
in her school career
at the time of the incident. She stated that she
was achieving a mark of 50% in her subjects. It is common cause that
she was 15
years old and in Grade 10 at the time she suffered the
injury. The plaintiff’s industrial psychologist, Dr
Peter
Whitehead
, stated that this was an age-appropriate level of
secondary school.
[38]
Dr
Whitehead
obtained collateral information regarding the
plaintiff’s family and educational background from the
plaintiff. It was to
the effect that the plaintiff’s father had
obtained a Grade 12 pass and works as a machine operator. The
plaintiff’s
mother has a Grade 11 pass and works as a cleaner
at a hotel. The plaintiff has two siblings both of whom are attending
school.
Dr
Whitehead
operated from the assumption, which he
regarded as safe, that in her pre-morbid state the plaintiff would
have obtained a matric
qualification. He based this assumption upon
the general observation that children tend to perform better than
their parents. He
also founded his assumption upon the fact, accepted
by him, that the plaintiff had maintained a 50% grade achievement up
to Grade
10 and that she had passed both Grades 10 and 11 subsequent
to the injury.
[39]
He states in his report that:
“
It is imperative
to regard the Clinical Psychologist opinion, with regards to the
sequelae of her injuries and how this impacted
on her educational and
work abilities in order to ascertain her Pre-Morbid educational and
career potential.
-
In his report,
Stigant, Clinical Psychologist,
indicates that
currently Ms Gatya suffers poor self-esteem and difficulty adapting
to environmental pressures. She has suffered
from PTSD since the
incident and has a result has withdrawn behaviour and difficulty
interacting with teachers following the incident,
whilst still at
school. As such, he regards her Grade 12
failure as a direct
result of her emotional challenges
due to her chronic PTSD.”
(
Sic
)
[40]
Dr
Whitehead
accordingly accepts the causal nexus between the
injuries and sequelae and the capacity to earn an income. In doing so
Dr
Whitehead
discounts the plaintiff’s explanation for
her failure to obtain a matric pass. It is recorded in the report
under the heading
“
Observations During Consultations
”
that:
“
It appears her
subject choices were the reason she failed grade 12 and again the
year thereafter.”
[41]
Elsewhere in the report it is recorded that the plaintiff reported
that she failed Grade
12
“
As the subjects
were difficult and often the teachers were not available”
[42]
It was stated by Dr
Whitehead
and Mr
Stigant
that the
plaintiff’s explanation for her failure to pass the subjects
reflects a lack of insight into the nature of her mental
state/psychological condition. Her reaction to more stressful
circumstances would be affected by her psychological condition. It
was on this basis that Mr
Stigant
formed the opinion that the
diagnosed post-traumatic stress syndrome contributed to her failure
to obtain her matric pass.
[43]
It is important to note that the defendant adduced no evidence to
gainsay the opinion expressed
by Mr
Stigant
. The challenge
focussed upon the fact that the plaintiff had, after the incident,
passed Grade 10 and Grade 11 notwithstanding
that she was by then
already suffering post-traumatic stress, albeit undiagnosed. Mr
Stigant
stated that the nature of a post-traumatic stress
disorder is that it becomes “
embedded
” or chronic
over time and that it affects the personality. He stated also that
the plaintiff had reported that her performance
at school had
deteriorated over time after the incident.
[44]
Her reported weight gain after the incident (which she confirmed in
evidence) would accord
with a pattern of comfort-eating stimulated by
her underlying psychological trauma. Mr
Stigant
records in his
report that the plaintiff had to face the teacher who was responsible
for the incident giving rise to her injuries
daily at school. This
was traumatizing. It resulted in a lack of motivation and resulted in
her becoming withdrawn and being beset
with self-doubt.
[45]
As indicated this evidence was not challenged. It is significant that
the defendant accepted,
as indicated hereinabove, that the plaintiff
indeed developed a post-traumatic stress disorder
in
consequence of the incident
and that it is chronic. No evidence
was presented by the defendant to disturb the probabilities,
established by the evidence presented
by the plaintiff, that she
would pre-morbidly have attained matric. I accordingly find that on a
balance of probabilities, but
for the incident giving rise to the
injuries suffered by the plaintiff her pre-morbid earning capacity is
to be determined on the
basis that she would have attained a matric
pass.
[46]
It is trite
that a plaintiff who seeks damages for loss of earning capacity must
prove a loss of patrimony. In
Prinsloo
v Road Accident Fund
[5]
Chetty J held:
“
[5] A person's
all-round capacity to earn money consists, inter alia, of an
individual's talents, skill, including his/her present
position and
plans for the future, and, of course, external factors over which a
person has no control, for instance, in casu,
considerations of
equity. A court has to construct and compare two hypothetical models
of the plaintiff's earnings after the date
on which he/she sustained
the injury. In casu, the court must calculate, on the one hand, the
total present monetary value of all
that the plaintiff would have
been capable of bringing into her patrimony had she not been injured,
and, on the other, the total
present monetary value of all that the
plaintiff would be able to bring into her patrimony whilst
handicapped by her injury. When
the two hypothetical totals have been
compared, the shortfall in value (if any) is the extent of the
patrimonial loss. That loss
is, as adumbrated hereinbefore,
calculated by the actuary on scenarios postulated by Dr Holmes.
[6] At the same time the
evidence may establish that an injury may in fact have no appreciable
effect on earning capacity, in which
event the damage under this head
would be nil. . . .”
[47]
This was
endorsed on appeal to the Full Bench in
Prinsloo
v Road Accident Fund
[6]
.
See also
Rudman
v Road Accident Fund
[7]
where
it was held that:
“
A
physical disability which impacts upon capacity to earn does not
necessarily reduce the estate or patrimony of the person injured.
It
may in some cases follow quite readily that it does, but
not on the facts of this case. There must be proof that
the reduction
in earning capacity indeed gives rise to pecuniary loss. Thus,
in
Union and National
Insurance Co Ltd v
Coetzee
which is referred to in the passage quoted above
from
Dippenaar
's case and which deals with a lump sum
award for loss of earning capacity, Jansen JA makes the point
that
'
'n
(b)
epaalde liggaamlike gebrek bring
egter nie noodwendig 'n vermindering van verdienvermoë mee nie
of altyd 'n vermindering van
gelyke omvang nie - dit hang o.a. af van
die soort werk waarteen die gebrek beoordeel word'.”
[48]
The principle is not confined to physical injury. It applies
irrespective of the injury.
What must be established is that the
plaintiff has suffered a diminution of her patrimony giving rise to a
pecuniary loss.
[49]
In this case the plaintiff’s claim is founded upon a
patrimonial loss which flows
from her failure to obtain a
matriculation pass and her consequent inability to enter the labour
market with that qualification.
It was the plaintiff’s case
that after she had been unsuccessful in obtaining her matric pass in
2015 she had enrolled for
the three courses at Iqhayiya College and
had re-written the examinations in 2016. On this occasion she passed
economics, but again
failed mathematics and physical science. No
evidence was led regarding any subsequent attempts at obtaining her
National Senior
Certificate. It appears from the reports of Ms
van
Zyl
and Dr
Whitehead
, however, that the plaintiff
undertook a computer literacy course in 2017 and successfully
completed it. She also took and completed
a security course.
[50]
It was not suggested by Mr
Stigant
that the plaintiff was
incapable, by reason of the post-traumatic stress disorder from
obtaining a matriculation qualification
or indeed other
qualifications of similar nature. His evidence was that the fact of a
PTSD explained why she had been unsuccessful
in her attempts in 2015
and 2016.
[51]
Dr
Whitehead’s
assessment of the plaintiff’s
earning capacity proceeded on the basis that pre-morbidly she would
have obtained a National
Senior Certificate. On this basis,
notwithstanding plaintiff’s expressed desire to pursue a career
as a police officer or
traffic officer, he based his assessment on a
generic career path utilizing the Paterson B scale as a framework. In
regard to the
plaintiff’s post-morbid capacity he assumed an A
scale progression, but took account of her physical limitations.
[52]
I have already indicated that it must be accepted that the plaintiff
would have, but for
the injuries sustained, obtained her matric. In
these circumstances the earnings capacity calculated on a generic
basis (i.e. the
postulated Paterson B scale) is in my view,
appropriate. Dr
Whitehead
was not challenged in this regard.
Dr
Whitehead’s
projected earnings progression in the
Paterson B band was also not challenged. The defendant presented no
evidence to contradict
the assumptions used nor to establish an
alternative basis for the calculation.
[53]
In the
circumstances the evidence as to the plaintiff’s pre-morbid
earnings capacity, and the actuarial calculation thereof,
must be
accepted. To these calculations general contingency deductions of 5%
for past loss and 15% for future loss were applied.
The defendant
also did not specifically challenge these contingency deductions as
being too low in the circumstances. That does
not, however, mean that
the proposed contingency deductions, are to be accepted. There are no
“
standard
”
or “
normal
”
contingency deductions. It is for the trial court to exercise a
discretion in determining, with reference to the facts what
would be
appropriate in the circumstances. See
Road
Accident Fund v Kerridge
[8]
.
[54]
In this
case the plaintiff is still very young. Age is an important factor in
determining contingencies for the simple reason that,
as noted in
Kerridge
[9]
,
“
The younger a
claimant, the more time he or she has to fall prey to vicissitudes
and imponderables of life. These are impossible
to enumerate but as
regards future loss of earnings they include,
inter alia
, a
downturn in the economy leading to reduction in salary, retrenchment,
unemployment, ill health, death, and the myriad of events
that may
occur in one's everyday life. The longer the remaining working life
of a claimant, the more likely the possibility of
an unforeseen event
impacting on the assumed trajectory of his or her remaining career.
Bearing this in mind, courts have, in a
pre-morbid scenario,
generally awarded higher contingencies, the younger the age of the
claimant. This court, in Guedes,
relying on Koch's Quantum Yearbook
2004, found the appropriate pre-morbid contingency for a young man of
26 years was 20% which
would decrease on a sliding scale as the
claimant got older. This, of course, depends on the specific
circumstances of each case
but is a convenient starting point.”
[55]
In my view, a deduction of 15% for future earnings is too low. It
does not adequately address
the extent of the vicissitudes referred
to above, having regard to the plaintiff’s age. Nor does it
adequately reflect the
state of the economy and the high levels of
unemployment and under-employment which beset youthful entrants into
the labour market.
In these circumstances I consider that a
contingency deduction of 25% would be appropriate. Mr
Mouton
,
for the plaintiff, conceded during argument that this would be a fair
deduction in the circumstances.
[56]
The result is that the future earnings (in respect of each of the
three scenarios addressed
by Dr
Whitehead
) and as calculated
by the actuary is to be reduced to R4 764 649.50 so that the
total projected pre-morbid earnings is an
amount of R5 155 990.50.
[57]
In regard to plaintiff’s post-morbid projected earnings Dr
Whitehead
utilized earnings scales for employment at a Basic
Skills level with progression over time to a lower semi-skilled
occupational
level (i.e. Paterson A level band of earnings). He
postulated three scenarios viz. one involving consideration only of
the plaintiff’s
physical injuries; one having regard to both
the physical injuries and psychological condition, and a third
involving sedentary
work only. He accepted that the plaintiff would
only be capable of performing light work or sedentary work.
[58]
The three scenarios, in essence, involved the application of a
contingency deduction to
the projected earnings. The starting point
in each was the same value for the projected earnings. In the case of
the first scenario,
a deduction of 50% was applied. This was based on
the fact that the plaintiff would be precluded from medium to heavy
manual work.
In the second scenario, in which the PTSD is taken as
rendering her less likely to sustain employment a contingency of 60%
is applied.
In the third scenario, which postulates sedentary work, a
lower contingency is applied, namely 30%. This is based on the fact
that
since she is capable of sedentary work it is likely that she
will sustain such employment for a longer period of her productive
working life. It was Dr
Whitehead’s
opinion that higher
than normal contingencies ought to be applied to plaintiff’s
post-morbid earnings. This, he opined, was
because apart from the
physical sequelae of her injuries, her emotional struggles would
continue to impede her.
[59]
This latter factor appears to be based on the view expressed by Mr
Stigant
that PTSD creates an impairment in functioning. He
explained that the condition is difficult to treat, particularly if
chronic.
He nevertheless was of the view that physiotherapy and
psychotropic medication would assist, in particular with anxiety. He
recommended
treatment on the basis that it would result in an
improvement in the plaintiff’s condition. Thus, while Mr
Stigant
accepted that the plaintiff’s condition would
impact on her functioning as far as employment is concerned he did
not suggest
that it would disable her to any great extent. It is no
doubt on this basis that Dr
Whitehead
postulated a greater
residual earning capacity in relation to sedentary work, should she
obtain such work.
[60]
Mr
Mouton
moved for determination of the plaintiff’s
loss of earnings to be based upon the second of Dr
Whitehead’s
scenarios namely one where her physical impairments preclude certain
type of work and her PTSD additionally impacts her employability.
In
my view, that scenario (which involves a 60% deduction) is unduly
generous to the plaintiff.
[61]
It is the court which is called upon to apply contingency deductions
to projected earnings.
In this instance the calculation of
plaintiff’s residual earning capacity proceeds on the basis of
application of the Paterson
A band earning potential until age of
retirement. That is fair and reasonable. It is to this earning
potential that general contingencies
are to be applied. The earnings
band includes both physical and sedentary earnings opportunities.
Whilst the plaintiff’s
earnings may be more impacted by reason
of her physical constraints that is not so in respect of more
sedentary type work. There
is no reason to conclude that she will not
be able in due course to obtain such work. She has in fact already
acquired some qualifications
in computer literacy.
[62]
I accept that a general contingency deduction which is higher than
may normally be applied
is warranted. This will take into account the
fact that the plaintiff is injured, and therefore at a disadvantage
in the labour
market. It must equally, however, take cognisance of
the fact that the earnings scenarios developed are conservative. Dr
Whitehead
envisaged that if the plaintiff obtained sedentary
work a 30% contingency would be appropriate. He did, however,
postulate that
such work would require a sympathetic employer given
the plaintiff’s physical limitations. I do not think that Ms
van Zyl’s
testimony supports the extent of the
limitations envisaged by Dr
Whitehead
. I am, however, prepared
to accept that it may be more difficult for the plaintiff to obtain
employment and accordingly propose
to apply a slightly higher
contingency than suggested by Dr
Whitehead
. I am accordingly
of the view that a deduction of 35% would be reasonable in the
circumstances.
[63]
As indicated the post-morbid earnings as calculated by the actuary,
Mr
Wim
Loots
, for each of the scenarios was the same
amount, namely R3 007 895.00. In coming to this figure Mr
Loots
applied, an actuarial assumption of earnings inflation
at CPI plus 1% resulting in a nett discount rate of 2.50%. These
assumptions
were not challenged and they accord with assumptions
usually applied in matters of this nature.
[64]
Application of a contingency deduction of 35% results in post-morbid
earnings of R1 955 131.
75. In the result the
pecuniary value of the plaintiff’s patrimonial loss is the
difference between the projected pre-morbid
earnings as set out above
and the post-morbid earnings, namely R3 200 858. 75.
[65]
Finally, there is the question of costs. The draft order submitted by
Mr
Mouton
makes provision for the costs of two counsel.
Plaintiff’s heads of argument do not address the matter and in
oral argument
these were not pursued. I am, in any event, not
persuaded that the issues in the trial, albeit important to the
plaintiff, were
of such complexity as to warrant the employment of
two counsel.
[66]
The trial was postponed on 22 November 2017 and the costs were
reserved. Mr
Dala
submitted that these should be paid by the
plaintiff since the postponement followed upon a substantial
amendment of the plaintiff’s
claim. Mr
Mouton
submitted
that the postponement arose so as to enable the plaintiff to consult
its own experts. Although the order granted by Chetty
J on 22
November 2017 does not include this phrase, the draft order submitted
to the learned judge reflects that this was the agreed
reason for the
postponement. In the circumstances the reserved costs should be costs
in the cause.
[67]
In the result I make the following order:
1. The
defendant is ordered to pay to the plaintiff the sum of R3 200 858.75
(Three Million Two Hundred
Thousand Eight Hundred and Fifty Eight
Rand and Seventy Five Cents) in respect of the plaintiff’s
claim for loss of income,
payable within 14 days (fourteen) calendar
days of date of this Order, together with interest thereon at the
rate of 10.25% per
annum, calculated from a date 14 (fourteen) days
after date of this Order, until date of payment.
2. The
defendant is ordered to pay to the plaintiff the sum of R118 880.00
(One Hundred and Eighteen Thousand
Eight Hundred and Eighty Rand) in
respect of the plaintiff’s claim for future orthopaedic medical
expenses, payable within
14 (fourteen) calendar days of date of this
Order, together with interest thereon at the rate of 10.25% per
annum, calculated from
a date 14 (fourteen) days after date of this
Order, until date of payment.
3. The
defendant is ordered to pay to the plaintiff the sum of R8 017.00
(Eight Thousand and Seventeen Rand) in
respect of the plaintiff’s
claim for specialised equipment payable within 14 days (fourteen)
calendar days of date of this
Order, together with interest thereon
at the rate of 10.25% per annum, calculated from a date 14 (fourteen)
days after date of
this Order, until date of payment.
4. The
defendant is ordered to pay to the plaintiff the sum of R39 520.00
(Thirty-Nine Thousand Five Hundred
and Twenty Rand) in respect of the
plaintiff’s claim for psychotherapy sessions, payable with 14
days (fourteen) calendar
days of date of this Order, together with
interest thereon at the rate of 10.25% per annum, calculated from a
date 14 (fourteen)
days after date of this Order, until date of
payment.
5. The
defendant ordered to pay to the plaintiff the sum of R360 000.00
(Three Hundred and Sixty Thousand
Rand) in respect of the plaintiff’s
claim for general damages, payable with 14 days (fourteen) calendar
days of date of this
Order, together with interest thereon at the
rate of 10.25% per annum, calculated from a date 14 (fourteen) days
after date of
this Order, until date of payment.
6. The
defendant is ordered to pay the plaintiff’s costs of suit, as
taxed or agreed, on a party and party
scale together with interest
calculated thereon at the rate of 10.25% per annum payable within 14
days (fourteen) calendar days
after date of taxation or agreement
until date of payment; such costs to include the reserved costs of
the trial set down for 22
November 2017; and
6.1
The costs of the reports and supplementary reports, if any, of:
6.1.1
Dr L A Oelofse, orthopaedic surgeon;
6.1.2
Dennis Stigant, clinical psychologist;
6.1.3
Ansie van Zyl, occupational therapist;
6.1.4
Dr Peter Whitehead, industrial psychologist;
6.1.5
Wim Loots, Actuary.
6.2
The reasonable qualifying fees and expenses, if any, of:
6.2.1
Dr L A Oelofse, orthopaedic surgeon;
6.2.2
Dennis Stigant, clinical psychologist;
6.2.3
Ansie van Zyl, occupational therapist;
6.2.4
Dr Peter Whitehead, industrial psychologist;
6.2.5
Wim Loots, Actuary.
_____________________
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the Plaintiff: Adv
P. Mouton / Adv
T. Rossi
Instructed
by: Johan
Cronje Attorneys
c/o Heine Ungerer
Attorney, 25 Cape Road, Port Elizabeth
Ref: Jaco Jansen
Tel: 041 374 3773
Obo
the Defendant: Adv
I. Dala
Instructed
by: State
Attorney, 29 Western Road, Central, Port Elizabeth
Ref:
M Govender
Tel:
041 585 7921
[1]
Case No 1864/2009 QOD Vol VI E6-1
[2]
The Quantum of Damages in bodily and fatal injury cases C & B
(Vol II) at 55
[3]
1970(1) SA 295 (A)
[4]
Case No 338/2010 QOD Vol VI E8-1
[5]
2009 (5) SA 406
(SECLD) at par [5] and [6]
[6]
Unreported, Case No. CA139/2009 Delivered 25 February 2010
[7]
2003 (2) SA 234
(SCA) at 241I-242B
[8]
2019 (2) SA 233
(SCA) par 42-43
[9]
Supra at [44]